Nevada Reports 1986 (102 Nev.) PDF

102 Nev.
1, 1 (1986)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 102
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102 Nev. 1, 1 (1986) Nevada Power Co. v. Public Serv. Comm'n
NEVADA POWER COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION OF
NEVADA; ALL OTHER PARTIES OF RECORD in Docket Nos. 83-707 and 83-667
Before the Public Service Commission of Nevada; and THE
ATTORNEY GENERAL'S OFFICE OF ADVOCATE FOR
CUSTOMER OF PUBLIC UTILITIES, Respondents.
No. 16274
January 6, 1986 711 P.2d 867
Appeal from summary judgment; First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
Utility appealed from order of the district court which granted summary judgment in favor
of those challenging rate increase. The Supreme Court held that statute requiring that copies
of all new or amended schedules be filed and posted in stations and offices of public
utilities as in the case of original schedules does not require the posting of proposed rates
prior to rate hearings.
Reversed and remanded.
Beckley, Singleton, DeLanoy & Jemison, Las Vegas, and Allison, Brunetti, MacKenzie,
Hartman, Soumbeniotis & Russell, Carson City, for Appellant.
Bill Kockenmeister, Carson City, for Amicus Curiae, Public Service Commission.
Jon Wellinghoff, Vargas & Bartlett and Robert Marshall, Reno, for Respondents.
1. Statutes.
In determining legislative intent, the whole act, its object, scope, and extent, must be examined.
2. Statutes.
While not controlling, interpretation of statute by agency charged with administration of the statute is
persuasive.
3. Public Utilities.
NRS 704.100, subd. 2 providing that copies of all new or amended schedules must be filed and
posted in the stations and offices of public utilities as in the case of original schedules does not require
utilities to post their proposed rate schedules.
OPINION
Per Curiam:
This is an appeal from summary judgment. We have determined that the grant of summary
judgment was improper as a matter of law; therefore, we reverse the order granting summary
judgment and remand this case to the district court for proceedings in accordance with this
opinion.
On July 5, 1983, Nevada Power Company filed an application with the Public Service
Commission (Commission) to increase rates by some $42,000,000. This filing was made
pursuant to NRS 704.100(1) which provides:
No changes may be made in any schedule, including schedules of joint rates, or in
the rules and regulations affecting any rates or charges, except upon 30 days' notice to
the commission, and all changes must be plainly indicated, or by filing new schedules
in lieu thereof 30 days before the time the schedules are to take effect. The commission,
upon application of any public utility, may prescribe a less time within which a
reduction may be made.
On the first day of hearings on this application before the Commission, several intervenors
made a motion to dismiss the rate application because no copy of the proposed rate schedule
had been posted by Nevada Power in their offices. The Attorney General's Office of Advocate
for Consumers of Public Utilities (Consumer Advocate) joined in this motion. Both the
intervenors and the Consumer Advocate maintained that NRS 704.100{2) required the
posting of proposed rate schedules in the offices of a utility in addition to the filing
required by NRS 704.100{1).
and the Consumer Advocate maintained that NRS 704.100(2) required the posting of
proposed rate schedules in the offices of a utility in addition to the filing required by NRS
704.100(1). NRS 704.100(2) states: Copies of all new or amended schedules must be filed
and posted in the stations and offices of public utilities as in the case of original schedules.
After hearing from five witnesses who testified that no copy of the proposed rate schedule
had been posted at Nevada Power Company's offices, the Commission decided that NRS
704.100(2) did not clearly set out what the Commission must do in the event that a utility was
in violation of the statute. Without making a finding that Nevada Power had violated NRS
704.100(2), the commission held that a violation of NRS 704.100(2) would not warrant a
dismissal of the application in its entirety. After approximately fourteen days of hearings, the
Commission granted to Nevada Power a rate increase of some $20,000,000 on December 20,
1983.
In February, 1984, Nevada Power filed a petition with the district court to set aside
portions of the order of the Commission granting the rate increase. The Consumer Advocate
then filed a motion for summary judgment asking the court to find that because no copy of the
proposed rate schedule had been posted, the rate application was not properly noticed. The
Consumer Advocate argued that without proper notice the Commission had no jurisdiction to
hear the rate application, see Public Serv. Comm'n v. Southwest Gas, 99 Nev. 268, 271, 662
P.2d 624 (1983); therefore, the order granting the $20,000,000 rate increase was void. Both
the Commission and Nevada Power opposed the motion for summary judgment arguing that
NRS 704.100(2) requires the posting of new approved rate schedules not proposed rate
schedules. The district court granted the motion for summary judgment stating that NRS
704.100(2) requires posting of proposed rate schedules contemporaneously with the filing of
these schedules with the Commission.
While several cases have discussed either NRS 704.100(2) or posting, the issue of posting
proposed rates is one of first impression before this court. In Nevada Power Co. v. Public
Serv. Comm'n, 91 Nev. 816, 820, 544 P.2d 428 (1975), NRS 704.100(2) was mentioned in
passing; however, posting of proposed rate schedules was not before the court. Similarly, we
have held that posting of approved rate schedules is not a condition precedent to the
effectiveness of those rates. See Crumley v. Southern Pacific Co., 42 Nev. 337, 177 P. 17
(1918). Neither of these cases answers the issue presented by this appeal; therefore, we must
look to the rules of statutory construction.
[Headnotes 1, 2]
It is well established that if the language of a statute is plain and unambiguous, there is
simply no room for construction of that statute by the court. See Blaisdell v. Conklin, 62 Nev.
370, 373, 151 P.2d 626 (1944). However, it is also well established that if there exists an
ambiguity in the language of the statute, the courts must adopt a construction of that statute
that best reflects the intent of the legislature. See In Re Lavendol's Estate, 46 Nev. 181, 209 P.
237 (1922). In determining legislative intent, the whole act, its object, scope and extent must
be examined. State of Nevada v. Toll-Road Co., 10 Nev. 155 (1875). Also, while not
controlling, the interpretation of the statute by the agency charged with administration of the
statute is persuasive. See Alper v. State ex rel. Dep't Hwys., 96 Nev. 925, 929, 621 P.2d 492
(1980.
It is apparent from a reading of NRS 704.100(1) that the phrase new schedules refers to
proposed new schedules because these new schedules are filed with the Commission 30
days before they are to take effect. However, a reading of NRS 704.100(2) provides no clear
meaning for the phrase new or amended schedules. The language as used in NRS
704.100(2) could refer to either proposed new schedules or approved new schedules. Because
the language in NRS 704.100(2) is ambiguous, we must construe that language in a manner
that best reflects the intention of the legislature.
[Headnote 3]
A close reading of the statute as enacted in 1919, see 1919 Nev. Stats. ch. 109, 14,
reveals no indication that the legislature intended to require the posting of proposed rate
schedules. In fact, the language indicates that the rate schedules were to be posted only after
they had been approved by the Commission. We also find persuasive the fact that the
Commission has determined that posting of currently effective schedules is required;
however, proposed new schedules need not be posted. See Nev. Admin. Code 703.410.
Based on our examination of the statute and the Commission's interpretation of that statute,
we conclude that the legislature did not intend to require utilities to post their proposed rate
schedules.
1
Therefore, we conclude that the district court was incorrect when it determined
that NRS 704.100(2) required posting of proposed rate schedules.
Accordingly, we reverse the order of the district court granting summary judgment and
remand this case to the district court for further proceedings consistent with this opinion.
____________________

1
We also note that only two utilities operating in the State of Nevada, Sierra Pacific Power Co. and CP
National, post their proposed rate schedules.
summary judgment and remand this case to the district court for further proceedings
consistent with this opinion.
Springer, C. J., Gunderson, Steffen, and Young, JJ., and Whitehead, D. J.
2

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2
The Honorable Jerry C. Whitehead, Judge of the Second Judicial District Court, was designated by the
Governor to sit in place of Justice John C. Mowbray who voluntarily disqualified himself. Nev. Const., art. 6,
4.
____________
102 Nev. 5, 5 (1986) Dorion v. Bell Telephone Co.
LORRAINE B. DORION, Appellant, v. BELL TELEPHONE
COMPANY OF NEVADA, Respondent.
No. 16231
February 20, 1986 714 P.2d 174
Appeal from summary judgment in favor of respondent; Second Judicial District Court,
Washoe County; Robert L. Schouweiler, Judge.
Employee brought claim for industrial compensation under disability plan governed by
Employee Retirement Income Security Act. Employees' benefit committee denied
compensation, and employee appealed. The district court entered summary judgment in favor
of employer, and employee appealed. The Supreme Court held that legislation affording
procedural safeguards upon denial of compensation and benefits for employees of
self-insured employers retroactively applied, and thus, remand was required with instructions
that District Court order that employee's entitlement to disability compensation be considered
anew under State Industrial Insurance Act.
Reversed.
Warren W. Goedert, Reno, for Appellant.
Woodburn, Wedge, Blakey and Jeppson, Suellen Fulstone, for Respondent.
1. Pensions.
NRS 616.272, providing procedural safeguards upon denial of compensation and benefits for
employees of self-insured employers, applied retroactively to case involving denial of industrial
compensation under disability plan governed by Employee Retirement Income Security Act [Employee
Retirement Income Security Act of 1974, 2 et seq., 29 U.S.C.A. 1001 et seq.] which arose prior to
enactment of legislation affording such protections.
102 Nev. 5, 6 (1986) Dorion v. Bell Telephone Co.
2. Social Security and Public Welfare.
Following remand with instructions that district court order that employee's entitlement to disability
compensation under disability plan governed by Employee Retirement Income Security Act [Employee
Retirement Income Security Act of 1974, 2 et seq., 29 U.S.C.A. 1001 et seq.] be considered under
State Industrial Insurance Act and final determination at such level, judicial review could be exercised if
appropriately requested. NRS 616.272.
OPINION
Per Curiam:
This appeal is from a summary judgment in favor of Bell Telephone Company of Nevada
and against appellant Dorion, an industrial injury claimant claiming under a disability plan
governed by the Employee Retirement Income Security Act (ERISA).
Dorian's claim for industrial compensation was denied by an Employees' Benefit
Committee acting in accordance with Nevada Bell's employee disability benefits plan.
[Headnotes 1, 2]
The only issue which we address relates to the availability of procedural safeguards on
denial of compensation in benefits for employees of self-insured employers. This case arose
in 1978 prior to the 1979 legislative enactment of procedures which adequately protected
claimants of this kind. No such protections were in place in 1978. Justice and fairness require
that these protections be applied retrospectively; therefore, we reverse the judgment and
remand to the district court with instructions that the district court order that Dorion's
entitlement to disability compensation be considered anew under the State Industrial
Insurance Act in accordance with NRS 616.272. After a final determination has been made at
the administrative level, judicial review may be exercised if appropriately requested by one of
the parties.
____________
102 Nev. 7, 7 (1986) Brannen. v. State
JOHN A. BRANNEN, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 16341
February 20, 1986 714 P.2d 175
Appeal from judgment of conviction for one count of lewdness with a child under the age
of fourteen years; Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Defendant was convicted in the district court of lewdness with a child under the age of
fourteen, and defendant appealed. The Supreme Court held that state's failure to file
complaint against defendant within three years of alleged commission of crime precluded
such prosecution.
Reversed.
Patrick J. Mullen and Will G. Crocket, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Gary H.
Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
Criminal Law.
State's failure to file complaint against defendant for offenses of lewdness with a child under fourteen
within three years of alleged commission of crime precluded prosecution. NRS 171.085, 201.230.
OPINION
Per Curiam:
A criminal complaint, filed on March 8, 1984, charged that during the summer months of
1980 John Brannen committed the crime of lewdness with a child under the age of fourteen.
NRS 201.230. A magistrate conducted a preliminary hearing and ordered Brannen to stand
trial. The state filed the information charging the offense on April 5, 1984.
After a jury trial Brannen was convicted of the crime charged and sentenced to five years
in the Nevada State Prison. The trial judge suspended the sentence and placed Brannen on
probation.
On appeal Brannen contends that his conviction must be reversed because the statute of
limitations had run, and the district court lacked subject matter jurisdiction over the appellant,
an issue which counsel did not raise at trial. We agree.
NRS 171.095(2) requires that prosecution for the offense of lewdness with a child under
fourteen be brought within three years of commission of the crime.1 The state failed to file
its complaint against Brannen within the statutory period mandated by the legislature.
102 Nev. 7, 8 (1986) Brannen. v. State
years of commission of the crime.
1
The state failed to file its complaint against Brannen
within the statutory period mandated by the legislature.
Brannen's prosecution under NRS 201.230 is therefore precluded by the statute of
limitations.
2
See Melvin v. Sheriff, 92 Nev. 146, 546 P.2d 1294 (1976); Cherubini v. Sheriff,
92 Nev. 111, 54 P.2d 598 (1976).
Reversed.
____________________

1
This appeal is governed by NRS 171.085 as it appeared in 1984. It provided as follows:
2. An indictment for any other felony than murder, theft, robbery, burglary, forgery, arson or sexual
assault must be found, or an information or complaint filed, within 3 years after the commission of the
offense.

2
Respondent contends that the 1984 version of NRS 171.095 tolled the running of the statute of limitations;
the state's arguments do not have merit and need not be discussed here.
____________
102 Nev. 8, 8 (1986) General Motors Corp. v. Reagle
GENERAL MOTORS CORPORATION, A Delaware Corporation, Appellant, v.
CHARLENE REAGLE, Individually; CHARLENE REAGLE, Guardian
ad Litem of CHANCE W. P. REAGLE, STACEY M. REAGLE
and KAREY C. REAGLE, Minors, Respondents.
No. 16398
February 20, 1986 714 P.2d 176
Appeal from a judgment of the district court based on jury verdict of negligence; Eighth
Judicial District Court, Clark County; James Brennan, Judge.
Wrongful death action was brought against manufacturer of chassis of motor home, arising
out of accident wherein mechanic was fatally struck by motor home which was being driven
into service bay. Judgment was entered upon jury verdict for plaintiffs in the district court and
manufacturer appealed. The Supreme Court held that: (1) manufacturer was entitled to offset
only for present value of annuities, rather than total future return of annuities plaintiffs
received in settlement with other tortfeasors, and (2) manufacturer who did not offer evidence
at trial as to value of annuities was not entitled to complain on appeal concerning
computation of offset.
Affirmed.
[Rehearing denied May 28, 1986] Beckley, Singleton, DeLanoy & Jemison, and Daniel F.
Beckley, Singleton, DeLanoy & Jemison, and Daniel F. Polsenberg, Las Vegas, for
Appellant.
W. Randall Mainor, Las Vegas, for Respondents.
1. Appeal and Error.
Jury verdict in favor of plaintiffs on theory of negligence will be upheld where there is substantial
evidence to support any one of several theories of negligence presented.
2. Death.
Defendant manufacturer of chassis of motor vehicle was entitled to offset only for present value of
annuities, rather than total amount which would eventually be paid on annuities received by plaintiffs in
settlement with other tortfeasors in wrongful death action arising out of accident wherein mechanic was
fatally struck by motor home which was being driven into service bay. NRS 17.245.
Defendant manufacturer which failed to offer evidence at trial as to value of annuities received by
plaintiffs in settlement with other tortfeasors in wrongful death action was not entitled to complain on
appeal concerning computation of offset allowed for previous settlements, where trial court determined
value of annuities based on only evidence presented. NRS 17.245.
OPINION
Per Curiam:
On June 1, 1981, mechanic William Reagle was fatally struck by a motorhome which was
being driven into a service bay. The driver of the vehicle testified that it accelerated rapidly
when only slight pressure was applied to the gas pedal. In addition, there was a total loss of
power brakes. The chassis of the vehicle was manufactured by General Motors Corporation
(GM). An enhanced braking system which could have prevented the accident was available
on other GM vehicles, but was not available on any motorhome chassis manufactured by GM.
Suit was brought by Mrs. Reagle, on behalf of herself and her three children. The jury
returned a verdict in favor of the Reagles, on a theory of negligence.
[Headnote 1]
GM's first contention is that the evidence was insufficient to support the verdict. It is well
established that, in considering such a claim, this court must look at the facts from the
viewpoint of the prevailing party, assuming that the jury believed all the evidence favorable
to that party and drew all reasonable inferences in his favor. See, e.g., El Dorado Hotel v.
Brown, 100 Nev. 622, 626, 691 P.2d 439-40 (1984). The verdict will be overturned only if
there is no substantial evidence to support it. Id. Where, as in this case, several theories of
negligence are presented, it is necessary only that substantial evidence exists to support
any one of those theories.
case, several theories of negligence are presented, it is necessary only that substantial
evidence exists to support any one of those theories. After reviewing the trial transcript and
applying these standards, we conclude that there was substantial evidence to support the
verdict.
GM's next contention is that the district court erred in determining offset for previous
settlements under NRS 17.245 (Article 4 of the Uniform Contribution Among Tortfeasors
Act).
1
Prior to trial, settlements were reached with the manufacturer and retailer of the
motorhome. Both settlements included provisions for the purchase of annuities for the Reagle
children. One defendant provided funds necessary for Mrs. Reagle to purchase the annuities,
while the other defendant itself purchased annuities on the children's behalf. The cost of the
latter annuities was not specified in the settlement agreement, but the agreement did state the
total future return which the annuities would yield.
The trial court held that GM was entitled to offset the present value of the annuities. GM
claims that it is entitled to offset the total amount which the annuities will eventually pay.
[Headnotes 2, 3]
The language of NRS 17.245 indicates an intent to allow plaintiffs to settle with one
tortfeasor without losing the right to proceed against the rest, while at the same time
preventing double recovery to the plaintiff. Since the Reagles will not receive the face amount
of the annuities for many years, the actual consideration they have received is the present
value of the annuities. In order to allow full recovery, it is necessary to reduce the verdict by
only the present value of the structured settlement package. This was not specified in the
release. The trial court determined the value of the annuities based on the only evidence
presented. GM did not offer evidence, and cannot now complain concerning the computation
of offset.
GM's remaining contentions are unmeritorious. Respondents' request for sanctions under
NRAP 38 is denied. The judgment is affirmed.
____________________

1
NRS 17.245 provides, in relevant part:
When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of
two or more persons liable in tort for the same injury or the same wrongful death:
1. It does not discharge any of the other tortfeasors from liability for the injury or wrongful
death unless its terms so provide; but it reduces the claim against the others to the extent of any amount
stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is
the greater . . . .
___________
102 Nev. 11, 11 (1986) Las Vegas Star Taxi, Inc. v. St. Paul Ins.
LAS VEGAS STAR TAXI, INC., a Nevada Corporation; THOMAS FLETCHER,
Individually, Appellants, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY,
Respondent.
No. 16011
February 20, 1986 714 P.2d 562
Appeal from a summary judgment in favor of respondent; Eighth Judicial District Court,
Clark County; Thomas A. Foley, Judge.
Insured taxi company brought action to recover from its liability insurer. The district court
entered summary judgment in favor of insurer, and insured appealed. The Supreme Court
held that: (1) timely notice to insurer was condition of coverage not met by insured, and (2)
insurer was not required to show that settlement, entered into by insured without its consent,
was excessive in order to avoid coverage.
Affirmed.
Thompson and Harper, and Donald Green, Las Vegas, for Appellants.
J. Bruce Alverson, Las Vegas, for Respondent.
1. Insurance.
It was not required that specific words condition precedent appear in liability policy for timely notice
by insured to be condition precedent to coverage under policy; policy otherwise made it amply clear that
timely notice was required condition of coverage.
2. Insurance.
Insured's mere claim that it was its policy to immediately inform insurer of any claim was insufficient to
establish that timely notice was given insurer; insured failed to in any way establish when, how, to whom,
or by whom alleged notice was given.
3. Insurance.
Where insured failed to give timely notice of claim to insurer, and further entered into settlement
agreement regarding claim without consent of insurer, insurer was not required to prove that settlement
amount was excessive in order to avoid coverage.
OPINION
Per Curiam:
This is an appeal from a summary judgment in favor of respondent St. Paul Fire and
Marine Insurance Company based upon a holding that as a matter of law its insured, Las
Vegas Star Taxi, had not complied with policy requirements of notice and that the insurance
company was not required to prove prejudice in order to avoid coverage.
Two issues are raised on appeal. The first issue is whether the court erred in determining,
as a matter of law, that timely notice to the insurance company was a condition of coverage
which was not met by the policy holder. The second issue is whether the insurance company
must show prejudice in order to avoid coverage responsibility, even in cases where notice
required by the policy is not given.
[Headnote 1]
As to the first issue Star Taxi claims that the policy does not clearly define notice by the
insured to the company as being a condition precedent, principally because the words
condition precedent do not appear in the policy. The language used in the policy makes it
amply clear that timely notice is a condition of coverage and must be carried out in order to
render the insurance company liable under its contract of insurance.
1
Indeed, the policy not
only specifies that notice is a condition of coverage, it also provides that no legal action may
be brought against the insurer unless the insured has complied with the contract terms. The
policy is unambiguous in this regard.
[Headnote 2]
The trial judge was correct in ruling that the notice condition of the policy was not
fulfilled. The accident claimed to be covered by the policy occurred on August 3, 1981. On
October 20, 1982, the injured party sued Star Taxi; the complaint was answered by Star Taxi
in March of 1983. Later a trial date was set for February 13, 1984. There is no evidence that
notice of the accident or of the lawsuit had been given to the insurance company by Star Taxi
until shortly before the date set for trial.
On February 3, 1984, ten days before the trial date, Star Taxi told the insurance company
about the lawsuit. On February 9, 1984, the company filed the present lawsuit seeking a
judicial declaration of its legal coverage obligations under the stated circumstances. On the
next day, February 10, 1984, Star Taxi, on its own, and without telling the insurance
company, settled the personal injury lawsuit by paying the injured party $150,000.00.
____________________

1
The policy language in question is as follows;
PART VICONDITIONS
The insurance provided by this policy is subject to the following conditions:
A. YOUR DUTIES AFTER ACCIDENT OR LOSS.
1. You must promptly notify us or our agent of any accident or loss. You must tell us how, when and
where the accident or loss happened. You must assist in obtaining the names and addresses of any injured
persons and witnesses.
2. Additionally, you and other involved insureds must:
. . . .
b. Immediately send us copies of any notices or legal papers received in connection with the accident or
loss.
personal injury lawsuit by paying the injured party $150,000.00. Star Taxi now wants the
insurer to pay this $150,000.00.
In response to St. Paul's motion for summary judgment Star Taxi does not say when, how,
to whom or by whom notice was given. Star Taxi says only, in effect, but we always give
notice. In the hearing on the summary judgment motion, the district judge asked counsel for
Star Taxi if he would please advise the court of the time frame during which notice was
supposedly given. Counsel advised that he did not know.
The affidavits in opposition to summary judgment do not claim that any specific notice
was given. An agent of Star Taxi, Tom Malone, merely says that he is confident that
Crawford and Company was notified on August 3, 1981, basing this confidence on his
knowledge of a company policy that when a driver got in an accident he was required to
notify the dispatcher. According to Malone, under these circumstances the dispatcher would
always and without exception contact an insurance adjuster who represented St. Paul and
notify the adjuster of the accident as reported by the driver to the dispatcher.
The district judge saw the absurdity of Star Taxi's position, based as it was on an assertion
by a taxi company representative that he was confident that if the driver notified the
dispatcher, then the dispatcher as a matter of company policy would have notified an
insurance adjuster for St. Paul. Even if the trial court was satisfied that affiant Malone, was
confident that Crawford and Company was notified on August, 1981 (the date of the
collision), the judge was certainly justified in not sharing such confidence and in rejecting
this confidence as competent evidence that some unidentified notice had been given at some
unknown time and place between persons unknown.
Rather than simply throwing such unreliable opinion out, the judge patiently offered Star
Taxi an opportunity to come forth with some actual evidence that some, definitive notice of
the claim or the lawsuit had been given to the insurance company. The district court granted
the summary judgment conditionally, offering Star Taxi the opportunity to bring forward
proof as distinguished from hearsay and conjecture pursuant to Rule 56(f). Star Taxi came
forward with no such proof, and summary judgment went into effect. The district court acted
prudently and correctly, and we will not set aside its judgment in this regard.
2

[Headnote 3]
Star's second point is that even absent the notice required by the policy St.
____________________

2
Star Taxi claims also that St. Paul should have been on notice by reason of a notice sent by Star Taxi to the
Department of Motor Vehicles of which Star Taxi claims St. Paul was informed by the Nevada Department of
Motor Vehicles of said accident sometime after October 2, 1981. The district judge was equally correct in
disregarding this kind of proof.
the policy St. Paul would, as stated in its brief, still have to show actual prejudice in order to
avoid liability and would need to prove that the settlement figure of $150,000 was
excessive. By Star's way of thinking it would be perfectly all right for an insured to fail to
give notice to the insurer of the existence of claims covered by the insurance policy and then
settle such claims on its own and on its own terms. The insured would then simply send a bill
to the insurance company and, unless it could show actual prejudice, that is, that the amount
paid was excessive, the insurer would have to pay the bill. On its face this is not a very
reasonable position.
On this record Star Taxi did not give St. Paul any notice of the accident or of the lawsuit
until ten days before the lawsuit was scheduled to go to trial. No purpose can be seen in the
giving of notice at this time other than Star's apparent wish to get the insurance company
involved in indemnification of the claim this late in the day. One would think that once
having made this request for indemnity and defense Star Taxi would at last stay out of the
matter. Instead of staying out Star Taxi went to the claimant and settled the injury claim for
$150,000.00 without notice to or consent by the insurance company. Now it wants the
insurance company to pay the $150,000.00 unless the company can prove that . . . $150,000
was excessive. (Emphasis added.)
Reason rejects Star Taxi's position. No insurance company can fairly be called upon under
such circumstances to come in and prove that the insured's settlement compromise was
excessive or that the insurance company would not under all of the contingencies of the
injured party's claim have had to pay the settlement sum or more.
Under the facts of this case the insurance company cannot be fairly required or expected to
prove anything. Star Taxi certainly will not be allowed to obligate itself to pay $150,000.00
and then be entitled to require the insurance company to pay unless the company can come to
court and prove that the settlement figure was too high. Such a position emasculates both the
letter and spirit of the insurance contract.
If we were to consider the question of prejudice raised by Star Taxi, we would have to
decide in this case that St. Paul was prejudiced as a matter of law; but it is not necessary to
consider the issue here because Star Taxi's conduct in settling the law suit goes so far beyond
the legitimate limits of the insurance contract as to absolve the insurance company of any
liability under the policy.
The district judge was correct in ruling that St. Paul was entitled to judgment as a matter of
law. The judgment is affirmed.

102 Nev. 15, 15 (1986) Imperial Palace Hotel v. Clements
IMPERIAL PALACE HOTEL, Appellant, v.
LILAYNE CLEMENTS, Respondent.
No. 16371
February 20, 1986 714 P.2d 564
Appeal from order affirming award of benefits for work-related injury; Eighth Judicial
District Court, Clark County; Thomas J. O'Donnell, Judge.
Claim was filed for benefits under the State Industrial Insurance System for work-related
injury. The district court awarded benefits. Employer appealed. The Supreme Court held that
statute excused claimant's failure to file claim for five months while treating injury herself.
Affirmed.
Jerry Collier Lane, Las Vegas, for Appellant.
Charles J. York, State Industrial Attorney, and James M. Stuart, Deputy State Industrial
Attorney, Las Vegas, for Respondent.
Workers' Compensation.
Statute [NRS 616.500, subd. 6] which appears to excuse both failure to give notice of injury and
failure to file claim but omits failure to file claim as specific ground for excuse excuses late filing of
claim so as to permit claimant to file claim more than 90 days after injury where claimant treated injury
herself for over five months. NRS 616.500, subd. 4.
OPINION
Per Curiam:
This case centers on whether late filing of a claim for benefits under the State Industrial
Insurance System (SIIS) may be excused under NRS 616.600(6). We hold that it may.
On April 10, 1983, Lilayne Clements, a maid at the Imperial Palace Hotel, strained her
back while cleaning a tub. She immediately informed her employer, and completed a notice
of industrial accident. However, she did not seek medical treatment for over five months,
initially treating the injury herself with heat and rest.
Her claim for SIIS benefits was denied based on failure to file a claim within 90 days as
required by NRS 616.500(4). The appeals officer reversed, and ordered payment of benefits.
1
The district court affirmed, and from that judgment the self-insured employer appeals.
____________________

1
Although it appears that certain language in the appeals officer's decision was inadvertently inserted from
another case, a review of the decision as a whole reveals that it was based on a finding of justifiable excuse.
102 Nev. 15, 16 (1986) Imperial Palace Hotel v. Clements
district court affirmed, and from that judgment the self-insured employer appeals.
The dispute arises from an apparent contradiction in the language of 616.500(6), which
states:
Failure to give notice or to file a claim for compensation within the time limit
specified in this section is a bar to any claim for compensation under this chapter, but
such failure may be excused by the insurer on one or more of the following grounds:
(a) That notice for some sufficient reason could not have been made.
(b) That failure to give notice will not result in an unwarrantable charge against the
state insurance fund.
(c) That failure to give notice was due to the employee's or beneficiary's mistake or
ignorance of fact or of law, or of his physical or mental inability, or to fraud,
misrepresentation or deceit.
While the opening language indicates that [f]ailure to give notice or to file a claim . . .
may be excused . . . (emphasis added), the specific excuse provisions omit reference to
claims while providing excuses for late giving of notice. This creates an ambiguity in the
statute, which must be resolved in reference to its overall purpose. We have repeatedly stated
that workmen's compensation statutes should be liberally construed in order to accomplish
the legislature's goal of providing compensation for work-related injuries and illnesses. See,
e.g., SIIS v. Jesch, 101 Nev. 690, 709 P.2d 172 (1985); Nyberg v. Nevada Industrial Comm'n,
100 Nev. 322, 324, 683 P.2d 3 (1984). With this in mind, we hold that the excuse provisions
of NRS 616.500(6) apply to both late giving of notice and late filing of claims. The judgment
is therefore affirmed.
____________
102 Nev. 17, 17 (1986) Campus Village v. Brown
CAMPUS VILLAGE SHOPPING CENTER TRUST, HAROLD R. SHULER, Trustee, dba
CAMPUS VILLAGE CENTER, Appellant and Cross-Respondent, v. JOE W.
BROWN and LEON WILEY, dba CAPTAIN AMERICA'S, et al., Respondents and
Cross-Appellants.
No. 16237
February 20, 1986 714 P.2d 566
Appeal and cross-appeal from judgment and order denying motion for new trial. Eighth
Judicial District Court, Clark County; Miriam Shearing, Judge.
Successor of shopping center lessor filed suit against lessee seeking rent due, and the
lessee counterclaimed alleging breach of its exclusive rights. The district court entered
judgment on verdicts in favor of the successor in its action and in favor of the lessee in
counterclaim. Appeal was taken. The Supreme Court held that the successor was entitled to a
new trial on the counterclaim after lessee's counsel threatened a witness and the successor
with a defamation suit if testimony about the alleged intoxication of the lessee's manager
during business hours proved false.
[Rehearing denied November 3, 1986]
Albright, Stoddard, Warnick & Albright, Las Vegas, for Appellant and Cross-Respondent.
Jones, Jones, Close & Brown, Will Kemp and Kirk R. Harrison, Las Vegas, for
Respondents and Cross-Appellants.
Appeal and Error.
Successor of shopping center lessor was entitled to new trial on lessee's counterclaim alleging breach of
exclusive rights where lessee's counsel had, prior to witness taking stand threatened witness and counsel for
successor with slander action if testimony regarding lessee's manager's intoxication during business hours
proved false, where there was no evidence tending to show that witness was about to lie and where trial
judge failed to direct witness to respond to question or otherwise allay fears after threat was made. NRCP
59(a).
OPINION
Per Curiam:
In August 1978, respondents/cross-appellants Joseph W. Brown and Leon Wiley (Wiley)
dba Captain America's leased space in the Campus Village Shopping Center in Las Vegas.
The lessor granted Captain America's the exclusive right to offer live entertainment in the
shopping center.
entertainment in the shopping center. The lessor also granted Captain America's the exclusive
right to a cocktail bar license in the center. Appellant Campus Village Shopping Center Trust,
Harold R. Shuler, trustee, dba Campus Village Center (Campus Village Center), thereafter
purchased the shopping center from the lessor.
In June 1982, the lessee of the property directly below Captain America's, Phillip Boeckle
(Boeckle), opened a restaurant-night club called P. T. Boeckle's at which a disc jockey
announced records over a microphone and patrons danced to the music. At P. T. Boeckle's,
the bartender served hard liquor directly to customers in violation of the bar's service bar
license. Captain America's sales declined after P. T. Boeckle's opened and Captain America's
then failed to pay rent from March 1983 until it closed in August l983. Campus Village
Center filed a complaint seeking the rent due; Captain America's counterclaimed alleging
breach of exclusive rights. The jury returned verdicts in favor of Campus Village Center in
the amount of $46,668.18 and in favor of Captain America's on the counterclaim in the
amount of $267,253. This appeal ensued.
During trial, and outside the presence of the jury, Campus Village Center sought
permission of the court to elicit from Boeckle testimony to the effect that he had observed
Wiley, who managed Captain America's, intoxicated and high during Captain America's
business hours. Captain America's counsel thereupon threatened to sue Boeckle and Campus
Village Center's counsel for slander if Boeckle made a false allegation on Wiley's character.
Boeckle then refused to answer the question. Campus Village Center contends the court erred
both in refusing to explain to the witness the doctrine of absolute privilege of testifying in
judicial proceedings as protection against defamation liability and in failing to order the
witness to answer the question. We agree.
The control of the conduct of counsel in trial rests largely in the discretion of the trial
judge and will not be disturbed absent an abuse of such discretion. Counsel's behavior in
insulting and disparaging a witness in such a way as to imply the witness is about to falsify,
where not cured by proper instruction, may be ground for a new trial. Berger v. United States,
295 U.S. 78 (1935); State v. Moran, 121 A. 277 (Conn. 1923); McKinnon v. Lively, 122 P.
124 (Okla. 1912); Burks v. State, 82 S.W. 490 (Ark. 1904). There was no evidence tending to
show Boeckle was about to lie about Wiley's character. The district court, when so requested,
should have rectified counsel's attack on the witness where the threat was unfair and
improper. An admonition to counsel and appropriate instruction to the witness could have
corrected the situation.
corrected the situation. See Nickovich v. Mollart, et al, 51 Nev. 306, 274 P. 809 (1929).
Respondents contend that the trial judge did not preclude nonleading questions to Boeckle
that would have elicited testimony concerning the subject of Wiley's alleged on-the-job
intoxication. However, we are unpersuaded that any clear indication to that effect occurred.
At best, appellant's counsel was left with the obvious impression that he would not be
allowed to ask questions bearing on the subject of Wiley's intoxication during business hours.
Moreover, the trial judge failed to direct Boeckle to respond to a question concerning Wiley's
condition or otherwise allay the witness' fears after Captain America's counsel's highly
improper threat of a defamation suit. In fact, the record reflects that counsel for Captain
America's had, prior to Boeckle taking the witness stand, threatened Boeckle and counsel for
appellants with a slander action if Boeckle's testimony regarding Wiley's intoxication proved
false. Such misconduct by counsel is intolerable and totally justifies resolving any doubt as to
prejudice and error in favor of appellants.
The judge is charged with the responsibility of providing an effective forum for eliciting
evidence on relevant points in a case thereby promoting the fair and expeditious development
of facts in the interest of justice and to elicit the truth. The judge, where necessary, must be
assertive in assisting a witness who is confused, hesitant or evasive. Poliondakis v. City and
County of San Francisco, 276 P.2d 126 (Cal.Ct.App. 1954); United States v. Brandt, 196 F.2d
653 (2d Cir. 1952). Boeckle's reason for not answering the question, viz, that he did not feel it
was right to judge another's character, is not recognized as a confidence or privilege
warranting refusal to answer. See Carr v. District Court, 76 Nev. 403, 356 P.2d 16 (1960).
The duty to disclose testimony within one's control is paramount over unprivileged private
interests which may be affected. Id.; McMann v. Securities and Exchange Commission, 87
F.2d 377 (2d Cir. 1937). In light of the threat to Boeckle, the district court should have
ordered Boeckle to answer the question after assuring him that his testimony would be
absolutely privileged and a complete defense to defamation liability.
The evidence that the manager was intoxicated during working hours was offered to prove
that Captain America's profits declined because of ineffective management rather than
because of the breach of the exclusive rights clauses of the lease. The testimony regarding the
manager's condition was material evidence upon which the jury could have based a finding
that the breach of the exclusive rights clause of the lease was not the proximate cause of the
decline and ultimate business failure of Captain America's.
Captain America's. This could have resulted in a verdict for Campus Village Center on the
counterclaim. The record reveals no other similar evidence from which the jury could have
inferred that mismanagement caused the failure of the business. We conclude that the
exclusion of Boeckle's testimony resulted in the denial of a fair defense on the counterclaim
and accordingly the matter is remanded for new trial on the counterclaim. NRCP 59(a); see
Lum v. Stinnet, 87 Nev. 402, 488 P.2d 347 (1971).
In light of our disposition of this issue, we need not reach the other contentions raised.
Accordingly, the order of the district court is reversed and the matter is remanded for new
trial on the counterclaim. In all other respects, the judgment is affirmed.
____________
102 Nev. 20, 20 (1986) United Brotherhood v. Dahnke
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL
NO. 1780, Appellant, v. MERLIN J. DAHNKE, Respondent.
No. 16193
February 20, 1986 714 P.2d 177
Appeal from final judgment in favor of respondent after a bench trial. Eighth Judicial
District Court, Clark County; Donald M. Mosley, Judge.
Employee filed suit against employer, seeking pay both for his work in dual positions as an
employee and officer and for overtime pay for work as an employee. The district court
entered judgment for employee on both causes of action. The Supreme Court held that: (1)
employee waived his right to assert his claims, and (2) employee's claims were barred by the
doctrines of laches and estoppel.
Dennis M. Sabbath and Mark C. Hafer, Las Vegas, for Appellant.
Gerald W. Hardcastle, Las Vegas, for Respondent.
1. Labor Relations.
Courts will safeguard the right to secure compliance with privileges guaranteed by union's constitution
and bylaws.
2. Estoppel.
Equitable estoppel operates to prevent the assertion of legal rights that in equity and good conscience
should be unavailable because of a party's conduct.
3. Master and Servant.
Employee who continued to serve in dual positions of recording secretary and assistant business
representative with a settled expectancy of a single salary with no overtime pay and who voluntarily
returned to employment under the same conditions after his dispute over pay arose waived his right to
assert claims for his work in dual positions as an employee and officer and for overtime pay for work as an
employee.
4. Estoppel; Master and Servant.
Employee's claim for payment for past wages for working in dual positions and for overtime pay were
barred by the doctrines of laches and estoppel, where employee had already worked in a dual capacity for
an employee's salary over a two year period, having been informed by employer that he would not be
compensated with extra income for simultaneously holding an officer's position, and did not assert his
claim for overtime pay prior to filing action.
OPINION
Per Curiam:
Plaintiff-respondent Merlin J. Dahnke was elected recording secretary of
defendant-appellant United Brotherhood of Carpenters and Joiners of America, Local No.
1780 in June 1978. In July 1978, Dahnke also accepted employment as an assistant business
representative in the appellant Local 1780. Throughout the period when Dahnke served both
as a recording secretary and assistant business representative, appellant paid him only for the
latter position. In August 1978, Dahnke quit his job as an assistant business representative
because he was not being paid for the recording secretary position. Appellant thereafter
commenced paying Dahnke for the recording secretary position. Dahnke returned to work as
an assistant business representative in April 1979, whereupon appellant discontinued paying
him for his services as recording secretary.
During the period of time Dahnke was employed as an assistant business representative,
appellant's business representative required him to work from 7 a.m. to 5 p.m., a total of nine
working hours, exclusive of one lunch hour. Appellant paid Dahnke for only one day's work
per nine-hour day, although its bylaws and applicable labor agreement provided that eight
hours, exclusive of the meal period, constituted a day's work. All work beyond the defined
workday was to be compensated at an overtime rate.
Dahnke filed suit against appellant in August 1981 seeking pay both for his work in dual
positions as an employee and officer and for overtime pay for work as an employee.
Appellant maintained that, prior to Dahnke's employment, it informed him of its policy not to
pay officer's pay in addition to an employee's regular salary.
salary. The district court entered judgment for Dahnke on both causes of action and this
appeal ensued.
[Headnotes 1, 2]
Courts will safeguard the right to secure compliance with privileges guaranteed by a
union's constitution and bylaws. Fox v. Knight, 350 P.2d 177 (Or., 1960); Caliendo v.
McFarland, 175 N.Y.S.2d 869 (1958). However, equitable estoppel operates to prevent the
assertion of legal rights that in equity and good conscience should be unavailable because of a
party's conduct. See 25 Corporation v. Eisenman Chemical, 101 Nev. 664, 709 P.2d 164
(1985); Noble Gold Mines Co. v. Olsen, 57 Nev. 448, 66 P.2d 1005 (1937); Gilman v.
Douglas County, 6 Nev. 27 (1870).
[Headnotes 3, 4]
We conclude that because Dahnke continued to serve in dual positions with a settled
expectancy of a single salary with no overtime pay and voluntarily returned to employment
under the same conditions after this dispute arose, he waived his right to assert these claims.
Although Dahnke wrote to appellant's international division's representative and to the
executive board of appellant's local division in April 1981 requesting payment for past wages
for working in dual positions, Dahnke had already worked in a dual capacity for an
employee's salary over a two year period. Additionally, Dahnke did not assert his claim for
overtime pay prior to filing the instant action. Appellant had informed Dahnke it would not
compensate an employee with extra income for simultaneously holding an officer's position.
Dahnke thus accepted protracted performance conditions at variance with the contract, which
equitably estops him from asserting a claim for breach of contract. The district court thus
improperly held that Dahnke's claims were not barred by the doctrines of laches and estoppel.
Accordingly, the judgment of the district court is reversed and remanded with directions
that it order entry of judgment for appellant.
___________
102 Nev. 23, 23 (1986) St. James v. Diversified Commercial Fin.
DENISE E. B. ST. JAMES and TIMOTHY T. B. ST. JAMES, Individually and dba LAS
VEGAS CHIROPRACTIC CENTER, Appellants, v. DIVERSIFIED COMMERCIAL
FINANCE CORPORATION, Respondent.
No. 16397
February 20, 1986 714 P.2d 179
Appeal from an order granting summary judgment; Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
Suit was instituted to recover balance owing on promissory notes executed by buyers to
lender in connection with service agreement with seller. The district court granted lender
summary judgment, and buyers appealed. The Supreme Court, Young, J., held that: (1) close
connection doctrine, holding lenders subject to defenses that a buyer has against his seller, is
applicable in all transactions where buyer can demonstrate a close connection between seller
and lender, and (2) question of fact precluding summary judgment was raised with respect to
whether lender and seller were so closely connected that, with respect to notes executed by
buyers in connection with service agreement with seller and made payable to lender, buyers
could also assert against lender defense of failure of consideration available to them against
seller.
Fadgen, Lovell, Bilbray, Potter & Gewerter and David Schieck, Las Vegas, for Appellants.
Wanderer & Wanderer and Sally Loehrer, Las Vegas, for Respondent.
1. Bills and Notes.
A payee may be a holder in due course as long as he is shown to have taken the instrument for value, in
good faith, and without notice that it is overdue or has been dishonored or of any defenses or claims to it.
NRS 104.3302, subds. 1, 2, 104.3305; U.C.C. 3-305.
2. Bills and Notes.
Status as a holder in due course operates to insulate the holder from certain defenses to the instrument of
a party with whom the holder has not dealt, but not with respect to defenses of a party with whom the
holder has dealt. NRS 104.3302, subds. 1, 2, 104.3305; U.C.C. 3-305.
3. Bills and Notes.
Close connection doctrine, holding lenders subject to defenses that a buyer has against his seller, is
applicable in all transactions where buyer can demonstrate a close connection between seller and lender.
NRS 104.3302, subds. 1, 2, 104.3305; U.C.C. 3-305.
4. Bills and Notes.
A lender should be considered a participant in original transaction and thereby precluded from enjoying a
holder in due course status with respect to buyer when it appears from totality of circumstances that lender
has had a substantial voice in setting standards for underlying transaction, or has approved standards
established by seller, and has agreed to take all or a predetermined or substantial quantity of negotiable
paper which is backed by such standards. NRS 104.3302, subds. 1, 2, 104.3305; U.C.C. 3-305.
5. Judgment.
Question of fact precluding summary judgment was raised with respect to whether lender and seller were
so closely connected that, with respect to notes executed by buyers in connection with service agreement
with seller and made payable to lender, buyers could also assert against lender defense of failure of
consideration available to them against seller. NRS 104.3302, subds. 1, 2, 104.3305; U.C.C. 3-305.
OPINION
By the Court, Young, J.:
On February 22, 1982, Denise E. B. St. James and Timothy T. B. St. James, dba Las Vegas
Chiropractic Center (appellants), purchased a debt collection service from National Revenue
Corporation (NRC). John Walker, an NRC employee, sold the service to appellants and had
them sign two promissory notes payable to respondent Diversified Commercial Finance
Corporation (Diversified) to finance the purchase.
Diversified acknowledges that it provides financing for NRC and facilitates that financing
by supplying NRC with preprinted promissory notes for NRC's customers to sign. The
promissory notes contained the following preprinted provision:
Borrower recognizes and acknowledges that all funds borrowed on this Promissory
Note will be paid to National Revenue Corporation (NRC). Borrower authorizes NRC
to pay to Lender [Diversified] any credits or refunds that may become due Borrower to
the extent of any outstanding principal amount and interest due under this Promissory
Note, with any remaining balance from said credit or refund going to Borrower.
Appellants stopped making payments on the notes after several months because NRC
allegedly was not providing the services promised. Diversified filed a complaint seeking the
balance due on the notes ($3,940.00) plus interest, costs and attorney's fees. Appellants
answered, setting forth as an affirmative defense failure of consideration, i.e., NRC's failure
to provide the services promised in the service agreement. The district court granted
Diversified's motion for summary judgment on February 1, 19S5.
1985. The court concluded that Diversified was a holder in due course of the notes and
therefore immune from the defenses available against the seller, NRC.
[Headnotes 1, 2]
A holder in due course of an instrument is one who takes the instrument (1) for value, (2)
in good faith and (3) without notice that it is overdue or has been dishonored or of any
defenses or claims to it. See NRS 104.3302(1). Payees may be holders in due course. NRS
104.3302(2). Holder in due course status operates to insulate the holder from certain defenses
to the instrument of any party with whom the holder has not dealt. NRS 104.3305 (hereafter
referred to as 3-305). However, 3-305 makes the holder subject to all defenses of a
party with whom the holder has dealt.
Appellants contend that they may assert the defense of failure of consideration against
Diversified because they are a party with whom the holderDiversifiedhas dealt. Under
traditional analysis, however, appellants' argument fails because Diversified did fulfill its
obligation on the contract: It paid NRC for the services NRC was to provide to appellants.
There was no failure of consideration with respect to the transaction because Diversified was
not obligated to perform the collection service but only to pay NRC. The failure of
consideration allegedly arose in the transaction between appellants and NRC.
Many jurisdictions have broken with this traditional analysis of the holder in due course
rule and have limited its application either by statutory enactment or judicial adoption of the
close connection doctrine. See, e.g., Commercial Credit Co. v. Childs, 137 S.W.2d 260 (Ark.
1940) (consumer transaction for purchase of automobile; closely-connected assignee of note
not a good faith holder in due course because for all intents and purposes [it was] a party to
the agreement and instrument from the beginning); Commercial Credit Corp. v. Orange
County Mach. Wks., 214 P.2d 819 (Cal. 1950) (sale of mechanical press; finance company
not in good faith where it actively participated in transaction by supplying forms to seller);
Unico v. Owen, 232 A.2d 405 (N.J. 1967) (consumer sale of stereo and record album
package; financier not holder in due course because not a good faith purchaser where it
participated in the underlying transaction); Westfield Investment Co. v. Fellers, 181 A.2d 809
(N.J.Super.Ct. Law Div. 1962) (door-to-door sale of food plan and freezer; finance company
subject to defenses against seller because inextricably linked to seller by supplying preprinted
promissory notes and otherwise participating in the transaction). The close connection
doctrine holds lenders subject to the defenses that a buyer has against his seller where the
lender and seller are closely connected. The Uniform Consumer Credit Code {U3C) and
Federal Trade Commission {FTC) rules both contain provisions which make not only
assignees of consumer credit paper but also direct lenders in consumer transactions
subject to the consumer's claims and defenses against the seller.
Code (U3C) and Federal Trade Commission (FTC) rules both contain provisions which make
not only assignees of consumer credit paper but also direct lenders in consumer transactions
subject to the consumer's claims and defenses against the seller. See U3C 3.404, 3.405;
FTC Holder in Due Course Regulations, 16 C.F.R. 433.2 (1978)
[Headnote 3]
The FTC rule would have easily disposed of the case at bar had it involved a consumer
transaction. One commentator has noted that the omission of nonconsumer transactions from
the rule is unfortunate since the reasons for the rule appear equally applicable in both kinds of
transactions.
1
See 1 J. Fonseca and P. Teachout, Handling Consumer Credit Cases 2.18, at
64 n. 7 (1980). We can discern no reason to limit the doctrine to consumer transactions; we
therefore adopt the close connection doctrine with respect to all transactions where the buyer
can demonstrate a close connection between the seller and lender.
[Headnote 4]
Whether a lender and seller are closely connected will necessarily depend upon the facts of
each case. We adopt the test articulated by the New Jersey Supreme Court in Unico v. Owen,
232 A.2d 405 (N.J. 1967) for determining whether such a connection exists:
[W]hen it appears from the totality of the arrangements between [seller] and financer
that the financer has had a substantial voice in setting standards for the underlying
transaction, or has approved the standards established by the [seller], and has agreed to
take all or a predetermined or substantial quantity of the negotiable paper which is
backed by such standards, the financer should be considered a participant in the original
transaction and therefore not entitled to holder in due course status.
Unico, 232 A.2d at 417.
[Headnote 5]
We conclude that the district court erred in granting summary judgment to Diversified.
Rule 56(c) of the Nevada Rules of Civil Procedure provides that summary judgment is
appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law."
____________________

1
Advocates of the close connection doctrine reason that lenders are better able to investigate the integrity of
the sellers whose transactions they finance and to bear the costs of the seller's nonperformance. See generally
Note, Direct Loan Financing of Consumer Purchases, 85 Harv.L.Rev. 1409 (1972).
no genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law. The record in this case shows that a genuine issue of material fact, whether
Diversified and NRC are closely connected, remains to be tried. The promissory notes
themselves, as exhibits to the pleadings, indicate that Diversified may have been in reality a
party to the service agreement. The notes were supplied to NRC by Diversified and provided
in preprinted type that the money loaned by Diversified to appellants would be paid directly
to NRC. In addition, the notes were prepared around the same time as the NRC service
agreement by an NRC employee, John Walker. Walker's name appears in the upper
right-hand corner of the notes as well as on the service agreement. Finally, in preprinted type
the notes designate that a yellow copy should be kept by NRC. We conclude that the
promissory notes on their face were sufficient to demonstrate that a material fact remained to
be tried. Diversified was not, therefore, entitled to judgment as a matter of law. See In re
Hilton Hotel, 101 Nev. 489, 706 P.2d 137 (1985)
Accordingly, we reverse and remand this matter for further proceedings in conformance
with this opinion.
Mowbray, C. J., and Springer, Gunderson, and Steffen, JJ., concur.
___________
102 Nev. 27, 27 (1986) Odoms v. State
JOHN BENJAMIN ODOMS, Appellant, v. THE
No. 15626
February 20, 1986 714 P.2d 568
Appeal from jury verdict and judgment convicting appellant of attempted murder with use
of a deadly weapon and burglary and from denial of motion for new trial. Eighth Judicial
District Court; Howard W. Babcock, Judge.
Defendant was convicted in the district court of attempted murder with use of deadly
weapon and burglary. Defendant appealed. The Supreme Court held that: (1) defendant had
no standing to challenge search conducted in apartment in which defendant was not guest; (2)
conviction for two, distinct primary offenses arising out of same attempted homicide justified
two enhanced sentences as habitual offender; and (3) defendant could not receive
enhancement sentence for use of deadly weapon in addition to enhancement of sentences as
habitual offender.
Affirmed in part; reversed in part.
[Rehearing denied April 14, 1986] Terry, Winter & Wessel, Carson City, for Appellant.
102 Nev. 27, 28 (1986) Odoms v. State
Terry, Winter & Wessel, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney, Clark
County, for Respondent.
1. Searches and Seizures.
Defendant had no legitimate expectation of privacy in apartment which tenant had vacated and in which
defendant was not staying as guest; thus defendant lacked standing to challenge seizure of gun and shoulder
holster defendant was wearing at time of arrest in apartment. U.S.C.A.Const. Amend. 4.
2. Criminal Law.
Photographic lineup matching defendant's general description was not impermissibly suggestive in
prosecution for attempted murder with deadly weapon and burglary where witnesses independently
reviewed six photographs, and officer conducting lineup did nothing to suggest which photograph was
defendant. U.S.C.A.Const. Amends. 5, 14.
3. Criminal Law.
Witnesses' in-court identifications of defendant after permissible photographic lineup were admissible in
prosecution for attempted murder with deadly weapon and burglary where witnesses had sufficiently long,
unobstructed view of defendant, and defendant cross-examined witnesses. U.S.C.A.Const. Amends 5, 14.
4. Criminal Law.
Defendant had no right to counsel at photographic displays conducted for purpose of allowing witnesses
to attempt an identification of offender. U.S.C.A.Const. Amend 6.
5. Criminal Law.
Defendant's conviction of two, distinct primary offenses, attempted murder with use of deadly weapon
and burglary, arising out of attempted homicide in repair garage justified two, consecutive, enhanced life
sentences without possibility of parole under habitual offender statute. NRS 207.010, subd. 2.
6. Criminal Law.
Defendant who was convicted of principal crime of attempted murder with use of deadly weapon and
who was adjudged habitual criminal could receive enhancement of sentence for either habitual offender
status or use of deadly weapon, but not both. NRS 193.165, 207.010.
OPINION
Per Curiam:
A jury found appellant John Odoms guilty of attempted murder with use of a deadly
weapon and burglary. The district court adjudged Odoms an habitual criminal. The district
court sentenced Odoms to three consecutive life terms without the possibility of parole: one
for the burglary conviction, a second for the attempted murder conviction, and a third as an
enhancement for Odoms' use of a deadly weapon in the commission of the attempted murder.
We conclude that the district court erred when, pursuant to NRS 193.165, it sentenced Odoms
to a separate life sentence for Odoms' use of a deadly weapon.
102 Nev. 27, 29 (1986) Odoms v. State
rate life sentence for Odoms' use of a deadly weapon. We therefore vacate that life sentence.
Otherwise, we affirm the judgment of the remaining convictions.
THE FACTS
On November 20, 1981, at approximately 7:40 a.m., Robert Koenigsfeld, the owner of
Bob's Auto Repair in Las Vegas, arrived at his garage. Douglas Doescher, one of
Koenigsfeld's employees, arrived with Koenigsfeld. Upon their arrival, both men noticed
Odoms. Koenigsfeld was in the garage when Odoms entered. Koenigsfeld said, Good
morning sir. Can I help you? Odoms replied, How are you doing, man? and then shot
Koenigsfeld twice. Koenigsfeld fell to the floor wounded.
1
Odoms left the shop.
Harold James, the owner of the nearby Charleston Garage, heard the two gunshots and he
saw Odoms run from Bob's Auto Repair. James saw a pistol fall from Odoms' coat pocket. He
watched Odoms pick up the pistol, run down the alley, and jump into a red pickup truck
driven by another man. James telephoned this information to the police.
The police traced the license plate number and found that the pickup truck was registered
to a Roland Brown, a bartender at Toots Bar. When the police arrived at Toots Bar to
question Brown, Odoms was in the bar. As the police started questioning Brown, Odoms ran
out carrying a brown paper bag.
The police traced Odoms to the Beverly Palms Apartments where he had been staying with
Claudette Slaughter. The next morning, Odoms returned to the apartment and told Slaughter
to go and get a gun hidden in a brown paper bag behind an A&W Root Beer stand. Odoms
told her it was the only evidence against him. Slaughter did not get the gun.
On November 20, 1981, Miriam Broughton, the manager of the Studio Plaza Apartments,
asked her husband to check room 281 to verify that the former tenant had removed her
belongings. Willard Broughton checked room 281 and discovered a man sleeping in the
room. He called the police. Officer DuPont responded to the call. Willard Broughton and
DuPont went to room 281 and discovered that the man sleeping in the room was Odoms.
DuPont arrested Odoms. At the time of his arrest, Odoms was wearing a shoulder holster
containing a chromeplated gun.
The police conducted separate photographic lineups for Koenigsfeld and Harold James.
Koenigsfeld and Harold James independently selected Odoms' picture from the
photographic lineup.
____________________

1
Koenigsfeld suffered an extensive gunshot wound to the chest that destroyed most of his liver and a gunshot
wound to the hip.
102 Nev. 27, 30 (1986) Odoms v. State
independently selected Odoms' picture from the photographic lineup. At trial, Koenigsfeld
and Harold James again identified Odoms.
Following trial, the jury found Odoms guilty of attempted murder with the use of a deadly
weapon and burglary. The district court adjudged Odoms an habitual criminal. The district
court then sentenced Odoms under NRS 207.010 and NRS 193.165 to three consecutive life
sentences without possibility of parole. Odoms appeals from the judgment of conviction and
challenges his sentence.
THE MOTION TO SUPPRESS
[Headnote 1]
Odoms contends that the district court erred by denying his motion to suppress the gun and
shoulder holster that he was wearing at the time of his arrest at the Studio Plaza Apartments.
Odoms claims that he was sleeping in room 281 with the occupant's permission; that
therefore the seizure of his pistol and holster violated his reasonable expectation of privacy.
He suggests that this evidence was inadmissible as the fruits of an illegal search and seizure.
We must disagree.
Before Odoms may raise a Fourth Amendment challenge to the search and seizure of his
pistol and holster, he must demonstrate a violation of a legitimate expectation of privacy.
Hicks v. State, 96 Nev. 82, 605 P.2d 219 (1980); Rakas v. Illinois, 439 U.S. 128 (1978). A
person wrongfully on the premises has no legitimate expectation of privacy of the premises.
See Rakas at p. 142.
Janet Johnson had been the registered guest of room 281 of the Studio Plaza Apartments
where Odoms was discovered and arrested and the evidence seized. Johnson's tenancy had
expired at noon, November 20, 1981. Miriam Broughton testified that on November 21,
1981, Johnson informed her that Odoms had not been her guest and that she had left the door
to room 281 unlocked when she had left.
Odoms did not have a legitimate expectation of privacy in the premises. Hicks, supra. See
also, Obermeyer v. State, 97 Nev. 158, 625 P.2d 95 (1981). Therefore, Odoms lacks standing
to challenge the search and seizure.
THE IDENTIFICATION OF ODOMS
The district court admitted evidence of the photographic lineups and the identification of
Odoms by Koenigsfeld and Harold James. Odoms now contends that his conviction must be
set aside because the photographic lineups were so impermissibly suggestive as to give rise to
a substantial likelihood of misidentification and deprive him of his right to a fair trial.
102 Nev. 27, 31 (1986) Odoms v. State
The applicable due process standard regarding photographic lineups as enunciated in
Simmons v. United States, 390 U.S. 377, 384 (1968) is: [C]onvictions based on eyewitness
identification at trial following a pretrial identification by photograph will be set aside on that
ground only if the photographic identification procedure was so impermissibly suggestive as
to give rise to a very substantial likelihood of irreparable misidentification. Coats v. State,
98 Nev. 179, 643 P.2d 1225 (1982).
[Headnote 2]
Our review of the record reveals that the six photographs used in the lineup matched the
general description of the assailant which was provided by the witnesses, and that the lineup
itself was not impermissibly suggestive. See Lamb v. State, 96 Nev. 452, 611 P.2d 206
(1980). We note that the witnesses independently reviewed the six photographs; that the
officer conducting the lineup did nothing to suggest to either Koenigsfeld or James which
photograph to select or which photograph was Odoms. We conclude that the photographic
lineup and the identification procedure were not impermissibly suggestive. French v. State,
95 Nev. 586, 600 P.2d 218 (1979)
[Headnote 3]
At trial, Koenigsfeld and Harold James identified Odoms based on their eyewitness
observations at the time of the shooting. Both men had a sufficient time to see and observe
Odoms. Both had a clear and unobstructed view of Odoms. Defense counsel cross-examined
the witnesses at trial. The witnesses' identifications of Odoms were properly admitted. French
at p. 590. Odoms' due process rights were not violated. Coats at p. 181.
THE RIGHT TO COUNSEL
[Headnote 4]
Odoms claims that he was denied his right to counsel during the photographic displays as
guaranteed by the Sixth Amendment of the United States Constitution. We disagree.
The Sixth Amendment does not grant the right to counsel at photographic displays
conducted by the government for the purpose of allowing a witness to attempt an
identification of the offender. United States v. Ash, 413 U.S. 300 (1973); see also, Lamb v.
State, 96 Nev. 452, 611 P.2d 206 (1980); and French v. State, 95 Nev. 586, 600 P.2d 218
(1979). Odoms' contention is meritless.
THE MULTIPLE SENTENCE ENHANCEMENTS
After the jury found Odoms guilty of burglary and attempted murder with the use of a
deadly weapon, Odoms was adjudged an habitual criminal pursuant to NRS 207.010.2
Pursuant to NRS 207.010{2) the district court imposed the enhanced penalty of a life
sentence without possibility of parole for each of the primary offenses with the two
sentences to run consecutively.
102 Nev. 27, 32 (1986) Odoms v. State
habitual criminal pursuant to NRS 207.010.
2
Pursuant to NRS 207.010(2) the district court
imposed the enhanced penalty of a life sentence without possibility of parole for each of the
primary offenses with the two sentences to run consecutively. Pursuant to NRS 193.1653 the
district court imposed an enhancement of a third life sentence without possibility of parole for
Odoms' use of a deadly weapon in the commission of the attempted murder.
On appeal Odoms challenges the three multiple sentence enhancements. Odoms argues
that the maximum penalty he could have received under both NRS 207.010 and NRS 193.165
was one life sentence without possibility of parole. Odoms contends that the district court
erred by imposing three multiple consecutive life sentences because the convictions arose out
of the same act, transaction or occurrence and under NRS 207.010 must therefore be treated
as one conviction for sentence enhancement purposes.
The purpose behind habitual criminal statutes is to increase sanctions for the recidivist.
Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966). By enacting the habitual criminal statute,
the legislature sought to discourage repeat offenders. Rezin v. State, 95 Nev. 461, 596 P.2d
226 {1979).
____________________

2
NRS 207.010 provides, in pertinent part, as follows:
. . . .
2. Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or
of petit larceny, or of any felony, who has previously been three times convicted, whether in this state or
elsewhere, of any crime which under the laws of the situs of the crime or of this state would amount to a
felony, or who has previously been five times convicted, whether in this state or elsewhere, of petit larceny,
or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, shall be
punished by imprisonment in the state prison for life with or without possibility of parole. If the penalty fixed
by the court is life imprisonment with the possibility of parole, eligibility for parole begins when a minimum
of 10 years has been served.
3. Conviction under this section operates only to increase, not to reduce, the sentence otherwise provided
by law for the principal crime.
4. It is within the discretion of the district attorney whether or not to include a count under this section in
any information, and the trial judge may, at his discretion, dismiss a count under this section which is
included in any indictment or information.

3
NRS 193.165 provides, in pertinent part, as follows:
1. Any person who uses a firearm or other deadly weapon or a weapon containing or capable of emitting
tear gas, whether or not its possession is permitted by NRS 202.375, in the commission of a crime shall be
punished by imprisonment in the state prison for a term equal to and in addition to the term of imprisonment
prescribed by statute for such crime. The sentence prescribed by this section shall run consecutively with the
sentence prescribed by statute for such crime.
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.
102 Nev. 27, 33 (1986) Odoms v. State
Nev. 461, 596 P.2d 226 (1979). The statute allows an enlarged punishment for one who
cannot be rehabilitated, and, who as a recidivist, repeatedly violates the law. Howard v. State,
83 Nev. 53, 422 P.2d 548 (1967). As we opined in Howard, society has the right to remove
from its ranks for a longer time those who refuse to conform to a lawful mode of living. Id.
[Headnote 5]
Odoms was convicted of two distinct primary offenses: (1) attempted murder with the use
of a deadly weapon and (2) burglary. Enhancement of the penalty for each primary offense is
applicable to each felony conviction. See Schuler v. State, 668 P.2d 1333 (Wyo. 1983);
Wingo v. Ringo, 408 S.W.2d 469 (Ky. 1966), cert. denied, 386 U.S. 946 (1967); cf. Crew v.
State, 100 Nev. 38, 675 P.2d 986 (1984) (enhancement of penalty of each count pursuant to
enhancement statute NRS 193.165 is proper when each count requires proof of an additional
fact which the other does not); Koza v. State, 100 Nev. 245, 680 P.2d 44 (1984) (consecutive
enhanced penalties proper where separate and distinct statutes and offenses are involved). We
conclude that under NRS 207.010 the district court properly enhanced Odoms' sentence under
the habitual criminal statute for the two primary offenses.
After the district court enhanced the sentences for the burglary and attempted murder
convictions pursuant to NRS 207.010, the judge then imposed an additional enhanced
sentence under NRS 193.165(1) for Odoms' use of a deadly weapon in the commission of the
attempted murder. We conclude that the district court erred by doing so.
NRS 193.165 demonstrates generally the legislature's concern regarding the increased use
of deadly weapons in the commission of crimes and its belief that such proscription will serve
to deter persons from using weapons during the perpetration of certain crimes. Anderson v.
State, 95 Nev. 625, 600 P.2d 241 (1979). The use of a deadly weapon in the commission of a
crime does not constitute a separate substantive offense under NRS 193.165 and does not
subject a defendant to separate penalty; instead, NRS 193.165 serves only to enhance the
penalty imposed for the primary offense. NRS 193.165(2); Biffath v. Warden, 95 Nev. 260,
593 P.2d 51 (1979); Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975). In Carter v.
State, 98 Nev. 331, 647 P.2d 374 (1982), we considered the sentencing of a defendant under
the enhancement statutes NRS 193.165 and NRS 193.167. Carter at p. 331. The district court
imposed consecutive sentences for multiple enhancements under those statutes. Id. We found
the legislative intent ambiguous as to whether a single substantive offense was subject to
more than one consecutive enhancement penalty. Id. We held that the sentencing court
may not impose consecutive enhancement penalties under NRS 193.165 and NRS
193.167.
102 Nev. 27, 34 (1986) Odoms v. State
enhancement penalty. Id. We held that the sentencing court may not impose consecutive
enhancement penalties under NRS 193.165 and NRS 193.167. Carter at p. 335.
[Headnote 6]
We conclude in the instant case that as the habitual criminal statute does not constitute a
substantive offense, a sentence imposed pursuant to that statute cannot be further enhanced
pursuant to NRS 193.165. We hold that when a defendant is convicted of a principal crime
with the use of a deadly weapon and is adjudged an habitual criminal, the sentencing court
may either enhance the sentence for the primary offense pursuant to NRS 193.165 for the use
of a deadly weapon, or, alternatively, the court may enhance the sentence under the habitual
criminal statute.
A district court may not enhance a primary offense under both NRS 193.165 and NRS
207.010. In the present case the district court chose to sentence Odoms pursuant to the
habitual criminal statute. The court therefore was not then permitted to also sentence Odoms
pursuant to NRS 193.165. We therefore vacate the life sentence without possibility of parole
imposed pursuant to NRS 193.165.
We have considered Odoms' remaining contentions and conclude that they are meritless.
Accordingly, we affirm Odoms' convictions. We also affirm the two consecutive life
sentences without possibility of parole imposed pursuant to NRS 207.010, but we vacate the
life sentence without possibility of parole imposed pursuant to NRS 193.165.
____________
102 Nev. 34, 34 (1986) Savage Constr. v. Challenge-Cook
SAVAGE CONSTRUCTION, INC. and JOHN TOM ROSS, Appellants and
Cross-Respondents, v. CHALLENGE-COOK BROS., INC., Respondent and
Cross-Appellant.
No. 16215
February 20, 1986 714 P.2d 573
Appeal and cross-appeal from a judgment awarding respondent a deficiency judgment
after a sale of secured collateral; First Judicial District Court, Carson City; Michael R.
Griffin, Judge.
Secured party brought action to recover deficiency judgment after purchase of collateral at
public sale and subsequent private resale. The district court awarded deficiency but credited
price received from private sale against debt. Appeal and cross-appeal were taken. The
Supreme Court held that failure to comply with notice requirements, price obtained at public
sale, price obtained at subsequent private sale, low number of bidders in attendance at
auction, and especially secured party's failure to advise known potential buyers of public
sale indicated secured party failed to conduct public sale in commercially reasonable
manner.
at subsequent private sale, low number of bidders in attendance at auction, and especially
secured party's failure to advise known potential buyers of public sale indicated secured party
failed to conduct public sale in commercially reasonable manner.
Robert A. Grayson, Carson City, for Appellants and Cross-Respondents.
Allison, Brunetti, MacKenzie, Hartman, Soumbeniotis & Russell, Carson City, for
Respondent and Cross-Appellant.
1. Secured Transactions.
Notice of public sale given in two newspapers whose circulation and readership were unknown and given
in paper not published in county of sale failed to satisfy notice requirements under California law for public
sale of collateral. West's Ann.Cal.Com. Code 9504(3).
Conditions of sale of collateral must be reasonably calculated to facilitate wholesale or retail sale at fair
market value, even though not necessarily highest possible price under California law.
For deficiency judgment purposes, higher price secured party received at subsequent retail sale, held
within two weeks of auction sale, was indicator of fair market value of cement mixers under California law.
For deficiency purposes, price that secured party paid for collateral at public sale rather than price that
secured party received upon subsequent sale is amount to be credited against debt if public auction is
commercially reasonable under California law.
Commercially unreasonable public sale of collateral precludes deficiency judgment under California law.
For deficiency purposes, secured party's use of same advertising efforts for many years which draw only
secured party may indicate either lack of good faith or inadequate and ineffective publication by secured
party under California law, even though lack of attendance and purchase of collateral by secured party does
not necessarily indicate improper notice.
Secured party's failure to inform known potential buyers of collateral of public auction breached secured
party's duty to sell collateral in commercially reasonable manner under California law.
Secured party's failure to comply with notice requirements for public sale of collateral, public sale at
lower price than subsequent retail sale by secured party, low attendance and purchased by secured party at
public auction, and secured party's failure to advise known potential buyers of public auction indicated that
public sale of collateral was not conducted in commercially reasonable manner under California law.
West's Ann.Cal.Com. Code 9504(3).
OPINION
Per Curiam:
Factual and Procedural Background
In the spring of 1979, Challenge-Cook Bros., Inc. (Challenge-Cook) entered into
negotiations with Savage Construction, Inc. (Savage) and John Tom Ross (Ross) for the
purchase and sale of four cement mixers. These negotiations led to the contract purchase, by
Savage, of the cement mixers. The installment contract provided that it should be interpreted
under California law, which brings the contract under the California version of the Uniform
Commercial Code. After the installment payments became delinquent, Challenge-Cook
peacefully repossessed the equipment in September of 1981. Challenge-Cook then caused the
publication of notice of a public sale, to be held October 15, 1981, in San Leandro,
California, in three publications; October 4th, 11th and 14th in the Nevada Appeal, once on
October 5th in the Inter-City Express and once October 9th in the Daily Pacific Builder.
Challenge-Cook, the only bidder at the public sale, purchased the equipment for the amount
of their own in-house appraisal of $39,500 per cement mixer. Within two weeks after the
auction, Challenge-Cook sold two of the cement mixers for a combined cash price of
$99,000, plus tax, and the other two cement mixers for a total of $94,000, plus tax, on a
conditional sales contract. The record indicates that the source of at least one of these
purchases was negotiating with Challenge-Cook before the auction regarding a retail purchase
of the equipment; however, Challenge-Cook did not notify that potential purchaser of the
upcoming auction.
Challenge-Cook filed suit to recover a deficiency judgment. The case was tried to the
court, which found Savage and Ross liable for the deficiency but, nevertheless, credited
Savage and Ross with the price received by Challenge-Cook in its retail sale of the
equipment.
Subsequent to the judgment, Savage and Ross filed a motion to retax and settle costs. This
motion was denied. Challenge-Cook also filed a motion to alter or amend judgment. This
motion was also denied. This appeal, seeking to set aside the deficiency judgment, followed.
The cross-appeal by Challenge-Cook requests the recomputation of the amount of the
deficiency judgment.
The Appeal
Initially, we note that because the parties intended that California law govern this matter,
we have deferred to the law of that jurisdiction.
Appellants first contend that the public auction that occurred after the repossession of the
equipment was not commercially reasonable. We agree. They point to a number of factors
that support this position: the quality of the publicity, the price obtained at the auction, the
price obtained at a subsequent retail sale that took place within two weeks of the auction, the
number of bidders in attendance at the auction, and the respondent's failure to advise known
potential purchasers of the scheduled auction. We will examine each of these factors
individually.
The law is clear that [t]he fact that a better price could have been obtained by a sale at a
different time or in a different method from that selected by a secured party is not of itself
sufficient to establish that the sale was not made in a commercially reasonable manner.
Clark Equipment Co. v. Mastelotto, Inc., 87 Cal.App.3d 88, 96 (1978). However, the
conditions of the sale must be reasonably calculated to bring the fair market price that is
equitable to both the debtor and the secured party. General Elec. Credit Corp. v. Bo-Mar
Construction Co., 72 Cal.App.3d 887, 889 (1977). Since a secured creditor is generally in the
best position to influence the circumstances of sale, it is reasonable that the creditor has an
enhanced responsibility to promote fairness.
The Quality of Publicity
[Headnote 1]
Section 9504(3) of the California Commercial Code requires that Notice of the time and
place of a public sale shall also be given at least five days before the date of sale by
publication once in a newspaper of general circulation published in the county in which the
sale is to be held. (Emphasis added.) In order to meet the requirements of Section 9504(3),
Challenge-Cook was required to advertise the sale:
1. At least five days before the sale;
2. In a paper of general circulation; and
3. In a paper published in the county in which the sale is to take place.
The sale in the instant case took place in San Leandro, California. The publications used to
meet the legal requirements were the Nevada Appeal, the Inter-City Express and the Daily
Pacific Builder. There is no question that the advertisements used were timely. The Nevada
Appeal, however, is not published in the county where the sale took place. The record shows
that the other two papers were used without knowledge of circulation or readership.
Publicity is intended to encourage competitive bidding. The sources of advertising utilized
by Challenge-Cook were notably inefficacious in light of the fact that Challenge-Cook was
the only bidder at the auction.
inefficacious in light of the fact that Challenge-Cook was the only bidder at the auction.
The Price Obtained at the Auction and the
Subsequent Retail Sale
[Headnotes 2, 3]
A public auction need not bring in the highest possible price. See Clark Equipment Co.,
supra, 87 Cal.App.3d at 96. However, the conditions of sale must be reasonably calculated to
facilitate a sale at fair market value, whether wholesale or retail. See Bo-Mar, supra, 72
Cal.App.3d at 889. So, in the instant case, the price received at the subsequent retail sale, held
within two weeks of the auction sale, is an indicator of fair market value of the equipment.
See Kobuk Engineering & Contracting Services, Inc. v. Superior Tank & Constr. Co-Alask,
Inc., 568 P.2d 1007 (Alaska 1977).
[Headnotes 4, 5]
Using the price received at the subsequent retail sales as an indicator of fair price, it is
difficult for this Court to justify the actions of the district court in computing Ross' and
Savage's deficiency judgment. The district court held that the public auction was
commercially reasonable. Yet appellants were given credit based on the subsequent retail
sale. We find no basis for this in the law. If the public auction was commercially reasonable,
it follows that the price received at the earlier sale should have been credited to appellants'
remaining indebtedness. If the public auction was not commercially reasonable then, under
California law, no deficiency judgment is allowed. See Atlas Thrift Co. v. Horan, 27
Cal.App.3d 999 (1972).
The Number of Bidders in Attendance at the Auction
[Headnote 6]
It is important to advertise a public sale properly in order to provide public notice to a
potential buying audience, but the actual goal is to have bidders attend the auction. When no
one attends the auction, there are many inferences that may be drawn. The lack of attendance
and the purchase of collateral by a secured party does not necessarily indicate improper
notice. In fact, the California Commercial Code permits a secured creditor, following
repossession, to purchase collateral for himself provided he acts in a good faith and
commercially reasonable manner. Bo-Mar, supra, 72 Cal.App.3d at 889. However, the fact
that the same advertising efforts are used for many years and never produce anyone other than
the secured party may indicate either a lack of good faith or inadequate and ineffective
publication on the part of the secured party.
The Respondent's Failure to Advise
Potential Buyers of the Auction
[Headnote 7]
When a sale is being advertised to an open but unknown market, then the normal
minimum legal requirements for commercial reasonableness of an auction may be sufficient.
But when, as in the instant case, potential buyers are identified and not advised of the auction,
then there is a breach of duty by the secured party. See Connex Press, Inc. v. International
Airmotive, Inc., 436 F.Supp. 51 (D.C.Dist.Cal. 1977).
Conclusion
[Headnote 8]
We have carefully considered all the factors involved in Challenge-Cook's public auction.
We have also considered the approach taken by the district court in determining the
deficiency assessed against appellants. We conclude that the district court erred when it
determined that the auction was commercially reasonable, but that appellants should be
credited with the price received by Challenge-Cook from the subsequent retail sale. We also
conclude that the respondent's public sale was not commercially reasonable for the reasons
previously specified, and in particular, because potential buyers had been identified but were
not advised of the upcoming auction sale. Therefore, the judgment of the district court is
reversed and the case is remanded to the trial court for entry of judgment in favor of the
appellants and a determination of costs and attorney's fees, if any.
Due to our disposition of this appeal, it is unnecessary to address the issue regarding
appellant Ross' execution of a personal guaranty. Likewise, there is no need to consider those
issues raised on cross-appeal and we make no decision with regard to them.
____________
102 Nev. 40, 40 (1986) Western Pacific Railroad v. Krom
WESTERN PACIFIC RAILROAD COMPANY; FRANK ARREGUI and ELENA
ARREGUI, His Wife; LOUIS DRESSI, JR., dba DRESSI RANCHING COMPANY,
Appellants, v. JOYCE KROM, His Guardian ad Litem, and SEAN KROM, a Minor, by
JOYCE KROM, His Guardian ad litem, and JOYCE KROM as Administratrix of the Estate
of WILLIAM H. KROM, Deceased, Respondents.
No. 16127
CHARLES KEVIN DRESSI, Appellant, v. JOYCE KROM and SEAN KROM, a Minor, by
JOYCE KROM, His Guardian ad litem, and JOYCE KROM as Administratrix of the Estate
of WILLIAM H. KROM, Deceased, Respondent.
No. 16418
February 20, 1986 714 P.2d 182
Appeal from the denial of defendant-appellant Western Pacific Railroad Company's
motion to change venue consolidated with an appeal from an order denying
defendant-appellant Charles Dressi's motion to change venue; Second Judicial District Court,
Washoe County; Roy L. Torvinen, Judge.
Wife and son brought action against railroad and fictitiously named landowners for
wrongful death of husband in collision with train at railroad crossing. Railroad removed case
to United States District Court, which remanded case after substitution of real landowners for
fictitiously named landowners destroyed diversity. The district court denied two separate
motions by defendants to change venue to Elko County, and defendants appealed. The
Supreme Court held that: (1) individual defendant who had stipulated to substitution of his
name for a fictitious name in initial complaint could challenge venue within twenty days from
date that stipulation was approved, and (2) mere fact that railroad did business in certain
county did not deny right of individual defendant to move venue to county where all
defendants except railroad resided.
Reversed and remanded in No. 16418.
Appeal dismissed in No. 16127.
Woodburn, Wedge, Blakey & Jeppson, and Suellen Fulstone, Reno; Allison, Brunetti,
MacKenzie, Hartman, Soumbeniotis & Russell, Carson City; Bilyeu and Matthews, Elko; for
Appellants.
Milos Terzich, Gardnerville, and John Farrell, Oakland, California, for Respondents.
1. Stipulations.
Defendant who stipulated to substitution of his name for fictitious name listed on initial complaint and
adopted answer of another defendant did not intentionally relinquish right to challenge venue of action and
could bring such challenge within twenty days from date of court's order approving stipulation making
defendant party to action, where stipulation and court order approving stipulation were silent as to
defendant's right to attack venue.
2. Venue.
Venue statute [NRS 13.040, 13.050 subds. 1, 2(a)] allowing action to be tried in county in which any
or all of defendants reside does not entitle defendant to have action moved to county of his residence unless
no other defendant resides in county where action is brought.
3. Corporations.
Mere fact that defendant corporation was doing business in county did not defeat right of co-defendant
under NRS 13.040, 13.050 subds. 1, 2(a) to move venue to different county where all defendants
except corporation resided.
OPINION
Per Curiam:
On September 26, 1979, William H. Krom, husband of respondent Joyce Krom and
father of respondent Sean Krom, sustained injuries which resulted in his death when the truck
he was driving collided with a train at a railroad crossing located one mile east of Elko,
Nevada. Respondents filed a complaint in the Second Judicial District Court in and for the
County of Washoe alleging causes of action of wrongful death against appellant Western
Pacific Railroad Company (Western Pacific) in July 1980. Respondents alleged Western
Pacific has Reno as its principal place of business; in its answer filed in October 1981,
Western Pacific admitted it transacted business in Nevada, but denied Nevada was its
principal place of business.
Western Pacific removed the case to United States District Court for the District of
Nevada. In September 1981, respondents amended the complaint to substitute
individually-named Elko County residents who owned realty surrounding the railroad
crossing for fictitiously-named defendants. The federal court then remanded the matter to the
Second Judicial District Court on the ground that diversity jurisdiction no longer existed.
Appellant Louis Dressi answered the complaint in December 1981. In July 1984, appellants
moved the court to change the place of trial to Elko County pursuant to NRS 13.050(2)
([w]hen the convenience of the witnesses and the ends of justice would be promoted by the
change) on the ground the individually-named appellants and the expected witnesses resided
in Elko County. The district court denied the motion for change of venue on the ground it was
untimely and appeal No. 16127 ensued.
On January 29, 1985, the court approved the stipulation of appellant Charles Dressi, a
resident of Elko County, that provided that he both submit to the in personam jurisdiction of
the court and adopt the answer previously filed in the action by defendant Louis Dressi. On
February 13, 1985, Charles Dressi moved the court for a change of venue to Elko County
pursuant to NRS 13.040 but the district court denied the motion as untimely. Appeal No. 16148 followed
and was consolidated for disposition with No. 16127. We will first examine the contentions regarding Charles
Dressi.
Respondents initially assert Charles Dressi waived the right to change venue because he
was a party from the commencement of the action when his name was substituted for a
fictitious name. With this assertion we disagree.
[Headnote 1]
It is true that when the true name of a defendant is substituted for a fictitious name by
amended complaint, the defendant is considered a party to the action from its commencement
for the purpose of the statute of limitations. Sullivan v. Terra Marketing of Nev., 96 Nev.
232, 607 P.2d 111 (1980). However, here the true name was substituted by stipulation and
adoption of the answer of another defendant and the stipulation and court order approving
same were silent as to the right to attack venue. Under these circumstances, we cannot
conclude Charles Dressi intentionally relinquished the right to challenge venue. See Melahn
v. Melahn, 78 Nev. 162, 370 P.2d 213 (1962) (to establish a waiver, the intent to waive must
clearly appear.) Additionally we note respondents have not presented any circumstances
which demonstrate thay have been prejudiced by any delay. Under NRCP 12(a), a defendant has
twenty days from the date of the service of the summons and complaint in which to answer. Charles Dressi
moved the court to change venue within twenty days from the date of the court's order approving the stipulation
that made Dressi a party to the action. Hence, his motion for change of venue was timely.
[Headnote 2]
NRS 13.040 provides: . . . [T]he action shall be tried in the county in which the
defendants, or any one of them, may reside at the commencement of the action. . . . NRS
13.040 does not entitle a defendant to have the action moved to the county of his residence unless no other
defendant resides in the county where the action is brought. Byers v. Graton, 82 Nev. 92, 411 P.2d 480
(1966). However, under NRS 13.050(1) and (2)(a), when the county designated in the complaint is not the
proper county, then, upon motion by a defendant, the change of place of trial is mandatory and not within
the discretion
mandatory and not within the discretion of the court to which the motion is addressed.
Williams v. Keller, 6 Nev. 141 (1870). Therefore, the court was required to grant Charles
Dressi's motion to change the place of trial to Elko County if no other defendant resides in
Washoe County.
[Headnote 3]
. . . [W]here the co-defendant is a foreign corporation, the mere fact that it is doing
business in this state does not fix its residence in any particular county for the purpose of
venue, so as to defeat the right of the other defendant to move the place of trial to the county
of his residence. Byers v. Graton, supra, 82 Nev. at 95, 411 P.2d at 481. Thus, although
Western Pacific may have had a resident agent in Washoe County, the mere fact that it was
doing business there did not defeat the right of its co-defendant Charles Dressi to move the
venue to the county of residence of all other defendants. Because the fact that Western Pacific
conducted business in Washoe County did not make it the proper county for venue purposes,
the district court erred in failing to change the place of trial to Elko County.
Accordingly, the order of the district court denying Charles Dressi's motion for change
of place of trial is reversed and the case is remanded to the district court with directions to
vacate the order denying change of venue and to order a change of venue to Elko County.
Turning to appeal No. 16127, we conclude that because we order that Charles Dressi's motion
for change of venue be granted, Western Pacific's appeal is moot. We hereby ORDER it
dismissed.
____________
102 Nev. 43, 43 (1986) Burgeon v. State
SERGIO BURGEON, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 15114
February 21, 1986 714 P.2d 576
Appeal from judgment of conviction for second degree murder with use of a deadly
weapon. Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
Defendant was convicted in the district court of second degree murder with use of deadly
weapon. Defendant appealed. The Supreme Court held that: (1) specific, violent acts of
victim unknown to defendant were not admissible to establish reasonableness of defendant's
fear; (2) testimony of victim's reputation for violence was admissible, even though unknown
to defendant; and {3) defendant's failure to make offer of proof waived preservation for
appeal of trial court's refusal to permit reputation testimony allegedly indicating victim's
reputation for violence.
and (3) defendant's failure to make offer of proof waived preservation for appeal of trial
court's refusal to permit reputation testimony allegedly indicating victim's reputation for
violence.
Affirmed.
Morgan D. Harris, Public Defender, and Marcus D. Cooper, 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. Homicide.
Defendant's lack of knowledge of victim's prior specific acts involving violence precluded admission into
evidence of victim's violent acts in order to show reasonableness of defendant's fear or state of mind, in
prosecution for second degree murder.
2. Homicide.
Evidence of victim's general reputation established by opinion or testimony as to reputation, but not
specific acts, was admissible in prosecution for second degree murder to show victim was likely aggressor,
even though reputation was unknown to defendant. NRS 48.045, subd. 1(b), 48.055, subd. 1.
3. Criminal Law.
Defendant's failure to make detailed offer of proof of testimony of victim's father regarding victim's
reputation for violence waived preservation for appeal of trial court's refusal to admit evidence in
prosecution for second degree murder.
4. Criminal Law.
Substantial testimony from both state and defense witnesses concerning victim's gang-related activities of
violent nature minimized prejudice, if any, arising from trial court's ruling in prosecution for second degree
murder excluding testimony of victim's father allegedly showing victim's reputation for violence.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction upon jury verdict of one count of second
degree murder with the use of a deadly weapon. For the reasons expressed below, we affirm.
At appellant Burgeon's jury trial, the state presented testimony by Jesus Salas, the state's
only eyewitness to the events which led to the death of the victim, Luis Badillo. Salas
testified that he and the victim had driven to a local convenience store on the evening in
question. The victim went into the store and Salas remained in the car in the parking lot.
Appellant approached the vehicle and asked Salas if he wanted to buy a revolver. Salas told
appellant that he did not have the money to purchase the revolver. At this point, the victim
returned to the car and entered the passenger's side of the vehicle.
point, the victim returned to the car and entered the passenger's side of the vehicle.
Appellant was standing outside the car when another individual, Eddie Bustamante,
approached the car, spoke to the victim, and hit the victim in the face. Salas testified that
appellant attempted to stop the altercation between the victim and Bustamante and that Salas
simultaneously put the car in reverse and began to back away. As Salas was backing up the
car, Eddie Bustamante threw a beer can at the car, hitting the windshield. Finally, Salas
testified that appellant then drew a gun and fired approximately three shots, one of which hit
the victim in the head and killed him.
Appellant testified on his own behalf at trial. His testimony was consistent with Salas' with
one major exception. Appellant stated that as the car was backing away, the victim had
pointed a gun at appellant and Eddie Bustamante. Appellant, believing that his life was in
danger, then drew his gun and fired.
Eddie Bustamante also testified at trial, and his testimony corroborated appellant's version
of the events. In particular, Bustamante also stated that he and the victim disliked each other
and had previously fought.
Appellant also presented the testimony of Luis Talavera, who had been standing in the
parking lot of the convenience store during the altercation. Talavera testified that he saw the
victim point a gun at appellant before appellant drew a gun.
Appellant's theory at trial was that he acted in self-defense. Before closing his
case-in-chief, appellant's counsel moved to introduce evidence of specific acts of violence
previously committed by the deceased victim for the purpose of showing that the victim was
the likely aggressor. A detailed offer of proof was presented in support of the motion.
Appellant's counsel also sought to call the victim's father to testify regarding his son's
character and reputation for violent behavior. The state opposed both motions. The district
court denied appellant's motions and refused to allow the testimony of the father relating to
his son's reputation or the testimony of other witnesses concerning specific acts of violence
attributable to the victim, for the purpose of proving the issue of self-defense. The court's
ruling was apparently based on the fact that appellant did not have any knowledge of the
victim's reputation or specific acts of violence. Appellant contends that this ruling was in
error.
[Headnote 1]
When it is necessary to show the state of mind of the accused at the time of the
commission of the offense for the purpose of establishing self-defense, specific acts which
tend to show that the deceased was a violent and dangerous person may be admitted,
provided that the specific acts of violence of the deceased were known to the accused or
had been communicated to him.
provided that the specific acts of violence of the deceased were known to the accused or had
been communicated to him. See State v. Sella, 41 Nev. 113, 138, 168 P. 278, 286 (1917). In
the present case, appellant concedes that the specific acts of violence of the victim were not
previously known to him. Since appellant did not have knowledge of the acts, evidence of the
victim's specific acts of violence were therefore not admissible to establish the reasonableness
of appellant's fear or his state of mind.
[Headnote 2]
Appellant also admits that he did not have any knowledge of the deceased's general
character. NRS 48.045(1)(b), however, permits the admission of evidence of the character of
the victim of the crime when it is offered by the accused, whether or not the accused had
knowledge of the victim's character.
1
Appellant's lack of knowledge of the victim's character
was irrelevant to the issue of the admissibility of evidence of general reputation tending to
prove that the victim was the likely aggressor. See State v. Jacoby, 260 N.W.2d 828 (Iowa
1977). Under NRS 48.055(1), proof of character may be established by testimony as to
reputation or in the form of an opinion.
2
The character of the victim cannot be established by
proof of specific acts. See also Government of Virgin Islands v. Carino, 631 F.2d 226 (3rd
Cir. 1980) (interpreting similar federal statutes). Thus, although the district court correctly
excluded evidence of the deceased's prior acts of violence, we conclude that evidence of the
victim's general reputation would have been admissible. See State v. Helm, 66 Nev. 286,
300-01, 209 P.2d 187, 193-94 (1949); State v. Sella, 41 Nev. at 136-37, 168 P. at 285-86.
In determining whether the trial court erred in refusing to allow the deceased's father to
testify concerning his son's reputation for violence, it is necessary to consider both the motion
and the offer of proof made by the appellant in connection with such testimony. Appellant's
counsel sought to call the victim's father to the stand with the following statement to the
court: And, lastly, I intend to call the father of the alleged victim in this case, Mr. Pedro
Badillo, to inquire of him, not specific acts of the prior conduct, but general character and
reputation of his son for violent behavior."
____________________

1
NRS 48.045 provides in pertinent part:
1. Evidence of a person's character or a trait of his character is not admissible for the purpose of
proving that he acted in conformity therewith on a particular occasion, except:
. . .
(b) Evidence of the character or a trait of character of the victim of the crime offered by an accused. .
. .

2
NRS 48.055(1) provides:
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by
testimony as to reputation or in the form of an opinion. On cross-examination, inquiry may be made into specific
instances of conduct.
Badillo, to inquire of him, not specific acts of the prior conduct, but general character and
reputation of his son for violent behavior. The state has conceded that the father's testimony
concerning his son's general reputation for violence, if indeed the father has such knowledge,
is admissible. We are simply unable to conclude from the record what, if anything, the father
may have known on the subject. Appellant's counsel merely indicated he wished to inquire of
the father about the victim's general reputation for violence. For all we may surmise, the
father may have denied that his son had a reputation for violence. Since Appellant's counsel
made no offer of proof as to the father's testimony we, like the trial court, can only speculate
as to what the father may have said.
[Headnote 3]
If the trial court sustains an objection to testimony sought for the consideration of the jury,
it is the responsibility of the party against whom the objection is sustained to make an offer of
proof that specifies what the party expects to prove by the proffered testimony. We have
consistently held that this Court will not speculate as to the nature and substance of excluded
testimony. Van Valkenberg v. State, 95 Nev. 317, 594 P.2d 707 (1979). If appellant desired to
preserve for our review the testimony that he reasonably expected the jury to hear, absent the
adverse ruling of the trial court, a detailed offer of proof was essential. See Foreman v. Ver
Brugghen, 81 Nev. 86, 398 P.2d 993 (1965); McCall v. State, 97 Nev. 514, 634 P.2d 1210
(1981). As noted previously, no such offer of proof was provided to the district court.
Appellant's failure to make an offer of proof as to what the father would have presented by
way of testimony not only prevented this Court from reviewing the trial court's adverse
ruling, it also deprived the trial judge of the opportunity to change or modify his ruling
because of added enlightenment that frequently results from such an offer. We are therefore
unable to conclude that the district court erred in refusing to allow the victim's father to
testify.
3

[Headnote 4]
Moreover, it is clear from the record that the jury heard substantial testimony from both
state and defense witnesses concerning the victim's gang-related activities of a violent nature.
____________________

3
Obviously, we may not infer that the testimony of the father would have been favorable to appellant merely
because of appellant's intent to have the father testify. To do so would effectively negate both the purpose and
necessity of making an offer of proof since it could always be presumed that counsel would not intentionally call
a witness who would provide testimony detrimental to the client.
We cannot conclude, therefore, that appellant was prejudiced by the court's ruling on the
testimony of the victim's father.
Appellant's final contention has been considered, and is without merit. Accordingly, we
hereby affirm appellant's judgment of conviction.
4

____________________

4
The Honorable Cliff Young, Justice, did not participate in the disposition of this appeal.
____________
102 Nev. 48, 48 (1986) Santillanes v. State
ISMAEL G. SANTILLANES, Appellant, v. THE
No. 16276
February 21, 1986 714 P.2d 184
Appeal from judgment of conviction for first degree murder with use of a deadly weapon
and from an order denying new trial. Eighth Judicial District Court, Clark County; Donald M.
Mosley, Judge.
Defendant was convicted in the district court of first degree murder with use of a deadly
weapon, and he appealed. The Supreme Court, held that admission of testimony regarding
defendant's failure to take polygraph test and prosecutor's comments that, if defendant were
innocent, he would have taken polygraph test as quickly as possible constituted prejudicial
error requiring reversal.
H. Leon Simon, Las Vegas, for Appellant.
James N. Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Evidence of results of polygraph test is admissible if both parties have signed written stipulation to that
effect, but, in the absence of such a stipulation, polygraph evidence is inadmissible to impeach or
corroborate testimony of witness.
2. Criminal Law.
Evidence of unwillingness to undergo polygraph test is inadmissible.
3. Criminal Law.
Admission of testimony regarding defendant's failure to take polygraph test and prosecutor's comments
that, if defendant were innocent, he would have taken polygraph test as quickly as possible constituted
prejudicial error requiring reversal of defendant's murder conviction.
OPINION
Per Curiam:
Appellant Ismael Santillanes was arrested and charged with first degree murder with use of
a deadly weapon. A jury found Santillanes guilty. Santillanes was sentenced to two
consecutive life sentences with the possibility of parole. For the reasons set forth below, we
conclude that the district court committed prejudicial errors. We reverse and remand for a
new trial.
THE FACTS
On January 22, 1984, at 8:20 a.m., Pamela Leavitt was found dead in her apartment.
Pamela Leavitt had died as the result of a stab wound in the chest.
The appellant, Ismael Santillanes, and Bruce Bennett shared the apartment above Leavitt.
At trial, Santillanes testified that at approximately 3:00 a.m., while he was sitting alone in his
apartment watching T.V., he heard footsteps outside his apartment and the breaking of a
window. Upon investigation he saw a person with a flashlight walking away and noticed that
one of Leavitt's windows was broken. Santillanes went to Leavitt's apartment and asked
Leavitt what had happened. Santillanes and Leavitt called the police. The police arrived and
found a window broken, the door to Leavitt's apartment pushed in and one of the locks
broken. At the police's request Santillanes brought a hammer and tape from his apartment
which he gave to Leavitt so that she could repair the broken window. The police left at
approximately 3:30 a.m. Santillanes testified that he left Leavitt's apartment soon thereafter,
and returned to his apartment. He testified that he did not hear anything else for the rest of the
night except dogs barking.
The next morning Santillanes left his apartment to attend church. When Santillanes
returned to his apartment, the police informed him of Leavitt's murder. Pursuant to a consent
search, the police searched the Santillanes-Bennett apartment and confiscated a penlight, a
pair of green fatigue pants and a white towel. All of the items had small spatterings of blood
on them. The fatigue pants belonged to Santillanes and were found in his bedroom. Bennett
testified that the blood on the towel was his as a result of a shaving accident. An expert
witness testified that he was not able to identify the blood on the penlight other than it was
human and not animal blood. Blood tests revealed that both Santillanes and Leavitt were
blood type O. Further testing of the enzymes and proteins in their blood and the blood stains
found on the fatigue pants revealed that the blood on the fatigue pants could not have
originated from Santillanes but could have originated from Leavitt.
Upon request by the police, Santillanes agreed to go to the police station and give a
statement. At the police station, Santillanes consented to give a blood and hair sample and to
take a polygraph test at a later date.
At trial, witnesses testified that no foreign human hairs were found on Leavitt's body. No
hairs from Leavitt were found upstairs in the Santillanes-Bennett apartment. Neither of the
shoe prints taken from and around Leavitt's apartment was made by shoes confiscated from
Santillanes' apartment. Latent fingerprints taken from the Leavitt apartment did not match any
of the prints from Leavitt, Santillanes, Bennett and various police officers who had been in
the apartment.
On January 31, 1984, Santillanes left Las Vegas prior to taking the polygraph test. He went
to Mexico and upon re-entry into the United States was arrested for desertion from the Air
Force.
At trial the district court admitted, over objection, testimony surrounding Santillanes'
failure to take the polygraph test to show Santillanes' consciousness of guilt.
THE EVIDENCE OF FAILURE TO TAKE
A POLYGRAPH TEST
Santillanes contends that the admission of the evidence that he failed to take a polygraph
test was prejudicial, constitutional error which mandates a reversal of the conviction. We
agree.
On January 22, 1984, the day of Leavitt's murder, Santillanes did agree to take a polygraph
test. On January 24, 1984, Santillanes spoke with a police detective. The test was scheduled
for January 26, 1984. On January 25, 1984, Santillanes again spoke with the detective and
informed the detective that he wanted to consult with a counselor at Nellis Air Force Base
before taking the polygraph test. The detective told him that he should not talk to the legal
counsel on the Base. Santillanes left Las Vegas on January 31, 1984.
[Headnote 1]
Evidence of the results of a polygraph test is admissible if both parties have signed a
written stipulation to that effect. Aguilar v. State, 98 Nev. 18, 639 P.2d 533 (1982). In the
absence of such a stipulation, polygraph evidence is inadmissible to impeach or corroborate
the testimony of a witness. Corbett v. State, 94 Nev. 643, 584 P.2d 704 (1978).
The prevailing rule is that proof that a defendant in a criminal trial either refused to take a
polygraph test or offered to submit to one is inadmissible and incompetent evidence. State v.
Biddle, 599 S.W.2d 182 (Mo. 1980); State v. McDavitt, 297 A.2d 849 (N.J. 1972); See
generally, 95 A.L.R.2d 819 for a discussion of cases which have considered this matter.
As the court in State v. Driver, 183 A.2d 655 (N.J. 1962) stated:
If the results of polygraph examinations are not competent evidence, a fortiori, refusal
by a defendant in a criminal case to submit to one cannot be made the subject of
testimony. In terms of degree of prejudice, the average jury, unfamiliar with the present
scientific uncertainty of the tests, might very well be even more affected by proof of a
defendant's refusal to take the test than by the evidence of results adverse to him
coupled with proof of its scientific imperfection.
[Headnote 2]
In the instant case the State contends that Santillanes' unwillingness to undergo the
polygraph test was relevant because it tends to establish Santillanes' consciousness of guilt.
We do not agree.
In People v. Carter, 312 P.2d 665 (Cal. 1957), the court said an accused may refuse to take
a polygraph test, not because he fears that it will reveal consciousness of guilt, but because it
may record as a lie what is in fact the truth.
Disclosure of a murder suspect's refusal to take a polygraph test, evidence of which refusal
was admitted on the theory that it tended to show a consciousness of guilt, was held in Mills
v. People, 339 P.2d 998 (Colo. 1959) to constitute prejudicial error. The Colorado court
noting that the defendant's conviction relied only upon circumstantial evidence (as in the
instant case) held that the erroneous admission of evidence of the defendant's refusal to
undergo a polygraph test might well be sufficient to tip the scales against him and that such
refusal is not equivalent to evidence of consciousness of guilt.
[Headnote 3]
In the case at bar Santillanes, by pretrial motion, unsuccessfully objected to the
introduction of evidence surrounding his failure to take the polygraph test. And in his
argument to the jury the prosecutor stated:
If he [Santillanes] is innocent, what is the first thing he wants to do. Go get the
polygraph just as quick as he can. But if his state of mind is that of a guilty man . . .
We conclude that the admission of Santillanes' failure to take the polygraph test and the
prosecutor's comments thereon constituted prejudicial error.
1
We therefore reverse and
remand the case to the district court for a new trial.
____________________

1
We have considered appellant's remaining assignments of error and find them meritless.
____________
102 Nev. 52, 52 (1986) 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
February 26, 1986 714 P.2d 1001
Appeal from a money judgment, Third Judicial District Court, Churchill County; Howard
D. McKibben, Judge.
Purchasers brought action against vender for rescission of contract for sale of operating
brothel. Vendor counterclaimed for foreclosure. The district court entered judgment for
vender, 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 contract and, after offsetting for damages to premises, awarded remainder of
purchase price to purchasers. Vender appealed. The Supreme Court, 686 P.2d 235, modified
that portion of award relating to prejudgment interest, affirmed as modified, and remanded.
On motion for rehearing, the Supreme Court held that: (1) statute, which provided for interest
in contract cases where no other rate was provided in contract, applied to both prejudgment
and postjudgment interest awards; (2) suit for rescission of contract was for purposes of
interest statute, suit arising out of contract; and (3) interest statute, which provided for interest
at rate of 12 percent, applied retroactively to cause of action arising before effective date of
statute.
Petition for rehearing granted; opinion modified.
Ronald J. Logar, Reno, for Appellant.
Gary R. Silverman and Mary Anne Decaria, Reno, for Respondents.
1. Interest.
NRS 99.040, providing for interest in contract cases where no other rate is provided in contract,
applied to both prejudgment and postjudgment interest awards.
2. Interest.
Suit for rescission of contract is suit arising out of contract, for purposes of statute providing for interest
in contract cases where no other rate is provided in contract [NRS 99.040].
3. Interest.
NRS 99.040, providing for interest in contract cases where no other rate is provided in contract,
applied to plaintiff's suit for rescission of contract, where plaintiff's tort claims had previously been
disposed of.
4. Interest.
NRS 99.040, providing for 12 percent interest in contract cases where no rate is provided in contract,
applied to cause of action for rescission arising before effective date of statute.
OPINION ON REHEARING
Per Curiam:
On April 11, 1983, the district court awarded judgment in the amount of $76,329.00 to
respondent Pacific Maxon, Inc. (PMI). The district court ordered that the judgment should
bear interest at the rate of TWELVE PERCENT (12%) per annum from October 17, 1977,
until paid. (Emphasis in original.) Wilson appealed. In Wilson v. Pacific Maxon, 100 Nev.
479, 686 P.2d 235 (1984), we affirmed the judgment, but reduced the prejudgment interest
award from 12 percent to 7 percent. PMI has petitioned this court for a rehearing on the
interest rate issue. Cause appearing, we grant rehearing and modify our former opinion.
[Headnote 1]
Preliminarily we note that our previous opinion considered prejudgment interest only.
However, in her brief on appeal, Wilson argued that no prejudgment interest should be
awarded and that postjudgment interest should be limited to 7 percent per annum.
Accordingly, in this opinion we consider the entire interest award which includes components
of both prejudgment and post judgment interest. Further, we note that some of the language in
our prior opinion may be read to indicate that NRS 99.040 is purely a prejudgment interest
statute. Such a construction of NRS 99.040 is inconsistent with the terms of the statute and
with prior decisions of this court. By its terms, NRS 99.040 is neither a prejudgment nor a
postjudgment interest statute. Instead, NRS 99.040 provides an interest rate on all money
from the time it becomes due and there is no limitation on the length of the period. This
period could include both prejudgment and postjudgment interest. Indeed, in the seminal case
construing NRS 99.040, this court stated that NRS 99.040 provided for interest prior to and
after judgment. Paradise Homes v. Central Surety, 84 Nev. 109, 117, 437 P.2d 78, 84
(1968). Our previous opinion in this matter should be read as consistent with this authority.
[Headnotes 2, 3]
Wilson argues strenuously on rehearing that our prior opinion in this case was correct
because NRS 99.040 should not apply. Instead, Wilson argues, the interest award in this case
should be governed by NRS 17.130(2), which provides that interest must be allowed on
judgments in all cases where no other rate of interest is provided for by contract or by law.
Wilson claims the damages awarded in this case were not contract damages because PMI
sued to rescind the contract. Further, Wilson argues that PMI's original claims sounded in
fraud, making the damages awarded tort damages to which NRS 17.130{2) applies.
tort damages to which NRS 17.130(2) applies. We disagree. A suit for rescission of a contract
is a suit arising out of a contract to which NRS 99.040 applies. More importantly, in an
earlier opinion in this case, we disposed of PMI's tort claims and remanded only the contract
questions to the district court. See Pacific Maxon, Inc. v. Wilson, 96 Nev. 867, 619 P.2d 816
(1980). Therefore, NRS 99.040 governs the award of interest in this case.
[Headnote 4]
We turn now to PMI's claim for relief in its petition for rehearing. PMI argues, and we
agree, that the following language in our prior opinion was in error: 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. Wilson, 100 Nev. at 482, 686 P.2d at 237
(emphasis in original; footnote omitted). A review of the history of the legislative increases in
1979 and l981 in the statutory rate of interest is necessary to an understanding of this
contention.
When this cause of action arose in 1977, NRS 99.040 provided for interest at a rate of 7
percent per annum. In addition, four other statutes also provided for interest at 7 percent per
annum.
1
In 1979, the legislature amended all five statutes to provide for interest at 8 percent
per annum. Section 6 of the 1979 amendment provided: The provisions of this act apply to
all actions and proceedings filed on or after July 1, 1979. Therefore, the entire 1979
amendment was prospective in nature.
In 1981, the legislature again amended the five statutes, increasing the interest rate to 12
percent per annum. Each of the five statutes constituted one section of the bill amending the
five statutes. NRS 99.040 was section 3 of the bill. Section 6 of the bill provided: The
provisions of sections 1, 2 and 4 of this act apply to all causes of action which arise on or
after July 1, 1981. NRS 99.040 was excluded from this section which made three of the
sections expressly prospective.
2
The significance of this exclusion is central to the issue we
now face.
PMI argues that because the legislature chose not to make NRS 99.040 prospective, it
must have intended NRS 99.040 to be
____________________

1
The five interest rate statutes are NRS 17.130, providing for interest on judgments when interest is not
otherwise provided by contract or law; NRS 37.175, providing for interest in eminent domain actions; NRS
99.040, providing for interest in contracts cases where no other rate is provided in the contract; NRS 108.237,
providing for interest in statutory lien cases; and NRS 147.220, providing for interest on claims
retroactive.against a decedent's estate.

2
NRS 147.220, concerning interest on claims against the estate of a deceased, was also excluded from section
6 and thus not made prospective only.
retroactive. This argument has merit. In Bing Constr. v. Vasey-Scott Eng'r, 100 Nev. 72, 674
P.2d 1107 (1984), the plaintiff's cause of action arose prior to the 1979 amendment to NRS
99.040 and our final disposition of the case occurred after the 1981 amendment. However, we
determined that the statutory rate in effect at the time of the district court's judgment was the
appropriate rate of interest on the judgment under NRS 99.040. Thus, prejudgment and
postjudgment interest was allowed on the debt at the statutory rate of 8 percent per annum.
See also 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). Although the
interest question in those cases was not directly considered in the light presented in this
appeal, the conclusion that the appropriate interest rate is the statutory rate in effect at the
time of the judgment is consistent with the legislative directive that NRS 99.040 not be given
prospective application only. We conclude, therefore, that the district court properly allowed
interest on the judgment at the rate of 12 percent per annum from the time the debt became
due until satisfied. Accordingly, we modify our prior opinion and affirm the judgment of the
district court in all respects.
____________
102 Nev. 55, 55 (1986) Schwabacher and Co. v. Zobrist
SCHWABACHER AND CO., Appellant, v. RAY V.
ZOBRIST and MARILYN ZOBRIST, Respondents.
No. 16025
March 5, 1986 714 P.2d 1003
Appeal from a district court judgment in favor of respondents. Eighth Judicial District
Court, Clark County; Addeliar D. Guy, Judge.
Brokerage house filed action for damages against seller of stock. After presentation of
brokerage house's case the district court granted seller's motion to dismiss. The Supreme
Court reversed and remanded, 97 Nev. 97, 625 P.2d 82. The case was retried and the district
court entered judgment for the seller. Brokerage house appealed. The Supreme Court held
that brokerage house was entitled to recover from seller for shortages resulting from seller's
receipt and retention of stock dividends on stock sold prior to the record date of the dividend.
Jolley, Urga, Wirth & Woodbury, Las Vegas, for Appellant.
Leavitt & Leavitt, Las Vegas, for Respondents.
1. Brokers.
A brokerage house is entitled to recover from a seller of stock where, at the seller's request, the brokerage
house sells stock owned by the seller, after the sale but before the sale registers in the corporation's stock
transfer agent's records, the corporation declares and pays a stock dividend, which the seller receives and
retains, and the brokerage house is obliged to purchase additional stock to make up for the consequent
shortage.
2. Corporations.
An unregistered transfer of stock is valid as between purchaser and seller of stock.
3. Trusts.
Where unregistered transfer of stock has occurred, seller is the trustee of the stock for benefit of
purchaser of stock.
OPINION
Per Curiam:
Appellant Schwabacher and Co. (Schwabacher) commenced this action to recover
damages from respondents Ray V. Zobrist and Marilyn Zobrist (the Zobrists) resulting from a
stock sale transaction. The trial court ruled in favor of the Zobrists and Schwabacher
appealed.
In the late 1960's Schwabacher was a San Francisco stock brokerage house with a branch
office in Las Vegas. On July 24, 1967, the Kentucky Fried Chicken (KFC) stock transfer
agent issued to the Zobrists two hundred shares of KFC stock which the Zobrists had
previously purchased through Schwabacher's Las Vegas Branch office. Those two hundred
shares of KFC stock were represented by KFC stock certificates N13353 and N13354, each
certificate representing one hundred shares of KFC stock.
On November 26, 1967, the Zobrists asked Schwabacher to sell the two hundred shares of
KFC stock. On December 6, 1967, the Zobrists delivered the KFC stock certificates to
Schwabacher and Schwabacher sold the stock. The sale of the one hundred shares of KFC
stock represented by KFC stock certificate N13354 registered immediately in the KFC stock
transfer agent's records. However, the sale of the one hundred shares of KFC stock
represented by KFC stock certificate N13353 did not register in the KFC stock transfer
agent's records until January 3, 1968
On December 5, 1967, KFC declared a two hundred percent stock split with a record date
of December 15, 1967, and a payment date of December 16, 1967. On December 16, 1967,
the KFC stock transfer agent issued to every KFC shareholder of record on December 15,
1967, two shares of KFC stock for every share already owned.
Though the Zobrists had sold their two hundred shares of KFC stock on December 6,
1967, according to the KFC stock transfer agent's records, the Zobrists were the record
owners of the one hundred shares of KFC stock represented by KFC stock certificate N13353
until January 3, 1968. Consequently, on December 16, 1967, the KFC stock transfer agent
issued to the Zobrists two hundred new shares of KFC stocktwo new shares of KFC stock
for every share of KFC stock that KFC stock certificate N13353 indicated the Zobrists
owned. These two hundred new shares of KFC stock were represented by KFC stock
certificate N18609.
On September 23, 1968, pursuant to the Zobrists' prior request, Schwabacher sold the two
hundred new shares of KFC stock represented by KFC stock certificate N18609.
Schwabacher received $14,797.10 for the stock, issued the Zobrists a check for $1,511.39,
and credited the Zobrists' account with the difference.
At the end of 1968, Schwabacher discovered that it was short four hundred shares of KFC
stock--the two hundred shares of KFC stock represented by KFC stock certificate N18609
plus an additional two hundred shares because, meanwhile, KFC stock had split again. On
December 31, 1968, to make up for this shortage, Schwabacher purchased four hundred
shares of KFC stock on the market for $17,600.00.
In 1972, Schwabacher traced the shortage to the Zobrists. The assistant manager of
liquidation of Schwabacher testified that on January 18, 1972, Mr. Zobrist told her over the
telephone that he would pay Schwabacher $14,797.10, the amount the Zobrists had received
as a result of the sale of the two hundred new shares of KFC stock represented by KFC stock
certificate N18609. The assistant manager of liquidation of Schwabacher also testified the
Mr. Zobrist thereafter changed his mind and refused to pay Schwabacher the money.
Schwabacher filed a complaint against the Zobrists in which it sought recovery of the
$14,797.10 that the Zobrists received as a result of the sale of the two hundred new shares of
KFC stock represented by KFC stock certificate N18609. The case was tried without a jury.
After Schwabacher had concluded the presentation of its case-in-chief, the district court
granted the Zobrists' motion to dismiss. We reversed the district court dismissal and
remanded the case to the district court for a new trial. Schwabacher & Co. v. Zobrist, 97 Nev.
97, 625 P.2d 82 (1981). The case was again tried without a jury and the district court entered
judgment for the Zobrists.
[Headnote 1]
Schwabacher argues on appeal that a stock brokerage house is entitled to recover against a
seller of stock where (1) at the seller's request, the brokerage house sells stock owned by
the seller, and the sale does not immediately register in the corporation's stock transfer
agent's records, {2) after the sale, but before the sale registers in the corporation's stock
transfer agent's records, the corporation declares and pays a stock dividend, which the
former seller receives and retains, {3) and the brokerage house thereafter is obliged to
purchase additional stock on the market to make up for the shortage caused by the
seller's retention of the stock dividend.
seller's request, the brokerage house sells stock owned by the seller, and the sale does not
immediately register in the corporation's stock transfer agent's records, (2) after the sale, but
before the sale registers in the corporation's stock transfer agent's records, the corporation
declares and pays a stock dividend, which the former seller receives and retains, (3) and the
brokerage house thereafter is obliged to purchase additional stock on the market to make up
for the shortage caused by the seller's retention of the stock dividend. We agree. We reverse
the district court judgment in favor of the Zobrists and order the district court to enter
judgment in favor of Schwabacher for $14,797.10, interest, and costs.
[Headnote 2]
An unregistered transfer of stock, that is, a transfer of stock that has not yet registered in
the corporation's stock transfer agent's records, is valid as between the purchaser and the
seller of the stock. 12 W. M. Fletcher, Fletcher Cyclopedia of the Law of Private
Corporations, 5496 (C. M. Thompson rev. ed. 1985). This Court stated in Petition of
Simrak, 61 Nev. 431, 434, 132 P.2d 605, 606 (1942): A transfer of stock between
individuals, in order to receive recognition by the corporation, must be registered upon its
books; however, if not so registered, the transfer is binding upon the parties, and the equitable
title, at least, passes. See Miller v. Wahyou, 235 F.2d 612 (9th Cir. 1956).
[Headnote 3]
Where an unregistered transfer of stock has occurred, the seller of the stock is the trustee
of the stock for the benefit of the purchaser of the stock. When an unregistered transfer of
stock has occurred, the purchaser of that stock is entitled, as against the seller of the stock, to
the benefits growing out of the stock and is likewise responsible for the burdens and liabilities
growing out of its ownership. 12 W. M. Fletcher, Fletcher Cyclopedia of the Law of Private
Corporations, 5498 (C. M. Thompson rev. ed. (1985). If an unregistered transfer of stock
has occurred, and the seller of the stock receives dividends that accrued after the sale, the
purchaser of the stock is entitled to recover those dividends from the seller of the stock. As is
stated in 12 W. M. Fletcher, Fletcher Cyclopedia of the Law of Private Corporations, 5499
(C. M. Thompson rev. ed. 1985) (footnotes omitted): Since an unregistered transfer is good
as between the parties, . . . the transferee, in the absence of agreement to the contrary, is
entitled to all dividends declared after the transfer, even though the transfer is not registered,
in the absence of some statutory provision to the contrary.
Because, where an unregistered transfer of stock has occurred, the purchaser of the stock
is entitled to recover from the seller of the stock dividends that have accrued after the
sale, we hold that, so too, is a brokerage house entitled to recover from a seller of stock
such dividends in circumstances similar to those that occurred in the instant case.
the purchaser of the stock is entitled to recover from the seller of the stock dividends that
have accrued after the sale, we hold that, so too, is a brokerage house entitled to recover from
a seller of stock such dividends in circumstances similar to those that occurred in the instant
case. Brower v. Fenner & Beane, 188 So. 240 (Ala. 1939). Denying a brokerage house
recovery in such circumstances would be unjust to the brokerage house and would result in a
windfall to the seller of the stock to which he is neither legally nor equitably entitled.
We will not hesitate to reverse a verdict where there is no substantial conflict in the
evidence on any material point and the verdict is manifestly contrary to the evidence. Avery
v. Gilliam, 97 Nev. 181, 625 P.2d 1166 (1981). In the instant case, there is no conflict in the
evidence on any material point. The district court judgment in favor of the Zobrists is
manifestly contrary to the evidence. Consequently, we reverse the district court judgment in
favor of the Zobrists and order the district court to enter judgment in favor of Schwabacher
for $14,797.10, interest, and costs.
____________
102 Nev. 59, 59 (1986) Collins v. Johnson
In the Matter of the Estate of CONNIE COLLINS, Deceased, RAT COLLINS, Appellant, v.
MOSIE LEE JOHNSON, Administratrix of the Estate of Connie Collins, Deceased,
Respondent.
No. 16488
March 5, 1986 714 P.2d 1006
Appeal from a decree of distribution of a will and from a denial of a petition to set aside
estate without administration; Eighth Judicial District Court, Clark County; Michael J.
Wendell, Judge.
Niece of testator sought probate of holographic will. The district court admitted
holographic will into probate and later admitted witnessed will, on same sheet of paper as
holographic will, by way of nunc pro tunc order. Husband of testator learned of proceedings
after niece filed petition for distribution, and he appealed their admission into probate. The
Supreme Court, held that neither will was properly admitted into probate in accordance with
applicable statutory provisions.
R. Paul Sorenson, Las Vegas, for Appellant.
Gladstone & Stark, Frank Sorrentino, Las Vegas, for Respondent.
102 Nev. 59, 60 (1986) Collins v. Johnson
1. Wills.
Holographic will was void on its face, not being dated in deceased's handwriting.
2. Wills.
Witnessed will was not properly admitted into probate in accordance with applicable statutory provisions
where it was admitted by way of nunc pro tunc order and there was no petition on file for admission of
will.
OPINION
Per Curiam:
[Headnotes 1, 2]
This appeal involves the probate of two wills, a holographic will and a formally witnessed
will, both of which appear on the same sheet of paper. The petition for probate, filed by
respondent Johnson, seeks probate of the holographic will. Notice of the petition to probate
the holographic will was sent to the wrong address and was never received by appellant
Collins, the deceased's husband. Notwithstanding the fact that the holographic will in this
record is void on its face, not being dated, in the deceased's handwriting, the holographic will
was admitted by the court into probate. Later the witnessed will (which was on the same sheet
of paper as the supposed holographic will) was admitted into probate by way of a nunc pro
tunc order. There is no petition on file for the admission of this will.
Appellant Collins found out about these proceedings after Johnson filed her petition for
distribution. He claims that the holographic will is invalid on its face and that the order
admitting the witnessed will was void because of lack of notice.
Without elaborating on the facts of this case we note that neither the holographic will nor
the witnessed will was properly admitted to probate in accordance with the applicable
statutory provisions.
There are two claimants to the estate of the deceased, Connie Collins, namely, her
husband, appellant Collins, and her niece, Mosie Johnson, who claims under the wills. Since
the proceedings already conducted are of no effect, the orders entered below are reversed and
the parties may proceed in the district court to assert their respective claims in the manner
provided in the probate code.
____________
102 Nev. 61, 61 (1986) In re Mitchell
GORDON HENRY GIPSON, aka JAMES DAVID DAVENPORT, Appellant,
v. THE STATE OF NEVADA, Respondent.
In The Matter of THOMAS MITCHELL,
Attorney at Law.
No. 16351
March 5, 1986 714 P.2d 1007
Motion to disqualify court from presiding over contempt proceedings.
Motion was filed to disqualify the Supreme Court from presiding over contempt
proceeding. The Court held that counsel's failing to appear at scheduled hearing was a
direct contempt.
Motion denied.
Robert A. Bork, State Public Defender and Thomas Mitchell, Deputy, Carson City, for
Appellant.
Brian McKay, Attorney General, Carson City, and Eileen Barnett, District Attorney,
Lincoln County, for Respondent.
Laurence McNabney, Reno, for Thomas Mitchell.
Contempt.
Counsel's failure to appear for scheduled hearing before the Supreme Court, conduct occurring within
immediate view and presence of the court, was a direct rather than an indirect, contempt; hence, the
Supreme Court was not disqualified from presiding over the contempt proceedings. NRS 22.030, subd.
3.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction for possession of stolen property. On
December 5, 1985, this court entered an order stating that this appeal would stand submitted
on the briefs and record, unless counsel filed a request for argument. Such a request was filed
on December 17, 1985, by Thomas Mitchell, the Deputy Public Defender responsible for
representing appellant in this matter. Accordingly, on December 18, 1985, the court
scheduled argument for February 19, 1986.
On the appointed date, respondent's counsel, Lincoln County District Attorney Eileen
Barnett, who is based in Pioche some 400 miles distant from Carson City, journeyed here by
automobile despite inclement weather to appear for oral argument. The weather
notwithstanding, the members of this court, including two justices who traveled from
Reno, likewise assembled for argument.
weather notwithstanding, the members of this court, including two justices who traveled from
Reno, likewise assembled for argument. The court clerk, and a number of staff attorneys and
secretaries, also commuted from Reno to Carson City without difficulty or any evident
danger. All attorneys scheduled to appear that morning, save Mr. Mitchell, found themselves
able to arrive punctually at this court.
However, shortly before argument was to commence in the above matter, attorney
Mitchell reportedly telephoned the office of the clerk, claiming that the highway between
Reno and Carson City was impassable. When the clerk returned his call to advise him that the
court was assembled and waiting, he reportedly said that the Public Defender's Office did not
pay him enough to undertake the journey. At the direction of the court, the clerk then
contacted Robert Bork, the State Public Defender, to advise him of attorney Mitchell's
apparent dereliction. Although Mr. Bork had not tried the case below (as Mr. Mitchell had),
written the briefs on appeal (as Mr. Mitchell had), or objected to our submission order (as Mr.
Mitchell had), Mr. Bork was thus constrained to appear at the argument in Mr. Mitchell's
place. The argument then proceeded in Mr. Mitchell's absence. Mr. Bork could neither
explain Mr. Mitchell's initial insistence that he be given an opportunity to argue this case
orally, nor satisfactorily explain Mr. Mitchell's failure to appear for the argument we had
scheduled at his instance.
On February 21, 1986, we entered an order directing Mr. Mitchell to show cause why he
should not be held in contempt for failing to appear at oral argument. Our order further
directed Mr. Mitchell to appear before us on March 13, 1986, to explain his conduct in this
matter.
Mr. Mitchell has now moved to disqualify the justices of this court from presiding at the
scheduled hearing on March 13. His objection, made pursuant to NRS 22.030(3), is premised
upon his contention that his failure to appear constituted an indirect contempt only, rather
than one committed in our presence.
1

We reject that contention. Where an attorney fails to appear for a scheduled hearing, his
offensive conductto wit, his absenceoccurs within the immediate view and presence of the
court and thus cannot be characterized as indirect contempt. See Arthur v. Superior Court of
Los Angeles County, 398 P.2d 777 (Cal. 1965); Chula v. Superior Court, 368 P.2d 107 (Cal.
1962); Lyons v. Superior Court, 27S P.2d 6S1 {Cal. 1955); Vaughn v. Municipal Court of
Los Angeles Judicial Dist.,
____________________

1
NRS 22.030(3) provides in pertinent part:
In all cases of contempt arising without the immediate view and presence of the court, the judge of
such court in whose contempt the defendant is alleged to be shall not preside at such trial over the
objection of the defendant. . . .
v. Superior Court, 278 P.2d 681 (Cal. 1955); Vaughn v. Municipal Court of Los Angeles
Judicial Dist., 60 Cal.Rptr. 575 (Cal.Ct.App. 1967), cert. denied, 393 U.S. 856 (1968);
Murphy v. State, 416 A.2d 748 (Md.Ct.Spec.App. 1980). See also In re Contempt of Potter,
301 N.W.2d 560 (Neb.1981); State v. Dias, 184 A.2d 535 (N.J.Super.Ct.App.Div. 1962). As
the Supreme Court of California noted in Lyons, supra:
It is clear that the [hearing] and the attorney's participation in it are in the court's
immediate view and presence and, obviously, petitioner's obstruction of the [hearing]
by absenting himself from the court is just as directly within the view and presence and
knowledge of the court as would be any other conduct by him during, and directly
affecting, the [hearing]. If, in truth, the absence with its ensuing interruption of the
court proceedings is occasioned by some cause not reasonably within the attorney's
control, the duty of explanation is but part and parcel of his duty to be present, and the
burden of producing the exculpatory facts to the court properly falls upon the attorney.
278 P.2d at 683.
Accordingly, statutory provisions relating to indirect contempt have no application in a
case of this nature. Arthur, 398 P.2d at 780. The rights of the attorney are fully protected by
an order to show cause apprising him of the charge against him, followed by an opportunity
to be heard. Chula, 368 P.2d at 112 (Gibson, C.J., concurring); In re Contempt of Potter, 301
N.W.2d at 563. And, in such a case, no question of the disqualification of the judge
affronted by the direct contempt can arise. The necessities of the case require that the
affronted judge preside. Vaughn, supra, 60 Cal.Rptr. at 586 (quoting Turkington v.
Municipal Court, 193 P.2d 795, 799 (Cal.Ct.App. 1948)). Contrary to Mr. Mitchell's
suggestion, nothing in our opinion in Kellar v. District Court, 86 Nev. 445, 470 P.2d 434
(1970), is inconsistent with these views. Indeed, we cited Arthur, Chula and Lyons, supra,
with approval in that opinion.
For these reasons, we deny Mr. Mitchell's request that we disqualify ourselves in this
matter.
____________
102 Nev. 64, 64 (1986) Schrader v. State
JURGEN SCHRADER, Appellant, v. THE
No. 16608
March 5, 1986 714 P.2d 1008
Appeal from judgment of conviction for one count each, commission of a fraudulent act
and conspiracy to cheat at gaming; Fourth Judicial District Court, Elko County; Joseph O.
McDaniel, Judge.
Defendant was convicted before the district court of commission of a fraudulent act and
conspiracy to cheat at gaming, and he appealed. The Supreme Court held that prosecutor's
closing comment that the state had other evidence that was not introduced was reversible
error.
Reversed.
Fadgen, Lovell, Bilbray, Potter and Gewerter, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Mark D. Torvinen, District Attorney, John
S. McGimsey, Deputy District Attorney, Elko County; James Wilson, Reno, for Respondent.
Criminal Law.
Prosecutor's closing comment that the state had access to information that did not come out at trial
required reversal where prosecutor twice repeated the argument after being admonished not to do so and
considering relative strength of the evidence of guilt.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction for one count each of commission of a
fraudulent act and conspiracy to cheat at gaming. The details of the alleged crimes are not
important here, for the conviction was tainted by the closing argument remarks of the
prosecutor and must now be reversed.
Our decision in this case turns on a single issue: Whether certain comments made by the
prosecutor during closing argument amounted to misconduct warranting reversal. When
presented with this question in the past we have not hesitated to reverse a conviction if the
comments were so egregious as to deny the defendant a fair trial. See, e.g., Collier v. State,
101 Nev. 473, 705 P.2d 1126 (1985).
The complained of comments in the instant case occurred during the prosecutor's closing
argument: [By Mr.
102 Nev. 64, 65 (1986) Schrader v. State
[By Mr. McGimsey, the prosecutor]: Give us credit for our ace in-the-hole-here, Mr.
Hochdorf. Mr. Hochdorf indicated that we didn't getwe, of course, have access to our
information that didn't come out in trial and can't present that too
MR. POTTER: Objection, Your Honor.
THE COURT: Don't argue anything that was not put in evidence, Mr. McGimsey.
MR. McGIMSEY: I am not. Is it not true that we have access to things that are not in
the trial?
THE COURT: I don't know. That's why you can't bring it up. You can't do that.
MR. McGIMSEY: What I'm saying, we have access to things that are not available,
so we can't really get into that about what happened before.
Comments by a prosecutor such as those made in this case have the effect of diverting the
jury's attention from its proper purpose. They serve to give the jury a verbal wink and nod
indicating that the state has some other or secret evidence against the defendant which for
some reason it was not allowed to present. A defendant has a right to a verdict based on the
evidence admitted at trial. Remarks by a prosecutor which imply that the state is possessed
with further incriminating evidence impair that right. State v. Kassabian, 69 Nev. 146, 243
P.2d 264 (1952).
The harmful effect of the comments in the instant case was compounded because the
prosecutor twice repeated them after being admonished by the trial court that, You can't do
that. By repeating the comment the prosecutor served only to make certain that the matter
was firmly impressed in the minds of the jurors.
The state has argued that this error was harmless and should not be grounds for reversal.
We cannot agree. The character of this error, the prosecutor's persistence in twice repeating it,
and the relative strength of evidence of guilt lead us to conclude that the error was not
harmless. Judgment of conviction is reversed.
____________
102 Nev. 66, 66 (1986) Daly v. Daly
SUZANNE LINDLEY DALY, Formerly Known as TIM DALY,
Appellant, v. NAN TOEWS DALY, Respondent.
No. 15423
March 6, 1986 715 P.2d 56
Appeal from a district court's order terminating appellant's parental rights. Second Judicial
District Court, Washoe County; John E. Gabrielli, Judge.
The district court terminated parental rights of father, a transsexual, and father appealed.
The Supreme Court, Steffen, J., held that jurisdictional and dispositional grounds necessary
for termination were present.
Affirmed.
Ann Casamajor, Albany, California, and Semenza & Brown, Reno, for Appellant.
Nada Novakovich, Reno, for Respondent.
1. Infants.
Jurisdictional grounds for termination of parental rights of natural father, who underwent sex
reassignment surgery, were satisfied in view of medical evidence of serious physical, mental or emotional
injury to child if visitation were resumed and child was forced to maintain contact with father, of father's
failure to support the now ten-year-old child or communicate with her for more than six months and fact
that that child stated she did not want to see father and that it would be distributing to visit with father.
NRS 128.012, subd. 2, 128.105, 128.105, subds. 1, 4, 5(a), 128.107.
2. Infants.
In parental rights termination proceedings the interests of the child are paramount. NRS 128.105.
3. Infants.
A child should not be forced to undergo psychological adjustments, especially in view of the risk
involved, solely to avoid termination of a parent's rights. NRS 128.105.
4. Infants.
In regard to termination of parental rights, a parent's rights should be preserved if at all possible, but not
at expense of the child. NRS 128.105.
5. Infants.
Dispositional grounds required for termination of parental rights are satisfied when it is found that
termination is in the child's best interest. NRS 128.105.
6. Infants.
Dispositional grounds for termination of natural father's parental rights were satisfied in that efforts by
father, who had undergone sex change, to regain visitation rights were continuing source of apprehension
to ten-year-old daughter, natural mother was loving and conscientious person who provided a desirable
environment for child and child was happy and well-adjusted in mother's care and there
was evidence that if visitation were permitted with father there would be a serious
risk of maladjustment, mental or emotional injury and expert testimony reflected
substantial doubt as to success of psychiatric counseling to change child's mental
attitude concerning father's condition.
102 Nev. 66, 67 (1986) Daly v. Daly
was happy and well-adjusted in mother's care and there was evidence that if visitation were permitted with
father there would be a serious risk of maladjustment, mental or emotional injury and expert testimony
reflected substantial doubt as to success of psychiatric counseling to change child's mental attitude
concerning father's condition. NRS 128.105.
OPINION
By the Court, Steffen, J.:
Appellant, a transsexual, contends that there is no legal basis for the order terminating her
parental rights and that the lower court is merely and improperly enforcing the private
prejudices of the respondent. Palmore v. Sidote, 104 S.Ct. 1879 (1984). We have considered
the arguments presented by counsel, carefully reviewed the record and conclude that the
district court ruled correctly and should be affirmed.
Respondent Nan Daly is the natural mother of the child. Appellant Suzanne Daly is the
natural father of the child. Appellant's name was changed from Tim Daly on December 9,
1982. Appellant underwent sex-reassignment surgery, changing her sexual anatomy from
male to female, on December 13, 1983, after a trial period of living as a female for
approximately one year.
The parties were married September 17, 1969, at Oakland, California. The minor child at
issue in this action, Mary Toews Daly, was born August 21, 1973, at Oakland. A final decree
of divorce was entered February 17, 1981, at Reno, Nevada, in the Second Judicial District
Court. Respondent was awarded custody and control of Mary, subject to the visitation rights
of appellant. Initially, appellant regularly exercised visitation rights under the decree, seeing
the child approximately one weekend per month, alternate holidays and one month in the
summer of 1981.
While Mary was with appellant in August, 1981, appellant revealed that she was a
transsexual and would be undergoing hormonal and surgical reassignment as a female under
the care of medical professionals.
1
Appellant told Mary that neither respondent nor her
grandmother, who lives with respondent, should know of appellant's plans. Mary did not
reveal appellant's intentions for six months.
When Mary returned from her visit to Oakland in August of 1981, respondent noticed she
was withdrawn and afraid to tell her something.
____________________

1
Soon thereafter, Suzanne introduced Mary to the community of alternate lifestyles by taking her to a session
at the Pacific Center where other transsexuals gather for support and counseling and discuss their experiences
with one another.
102 Nev. 66, 68 (1986) Daly v. Daly
something. On February 14, 1982, Mary revealed her father's plans to her mother. Mary was
taken to a psychologist and evaluated by Dr. Towle, who advised respondent that it was very
dangerous to allow Mary to be in the company of her father again.
Respondent testified that when Mary returned from the August visitation with her father,
she would vacillate from being wide awake to being very sluggish. A certified academically
talented child since seven years of age, she would sit at the kitchen table for hours cutting a
large piece of paper into small pieces. She would take a pencil and trace the grain of the oak
floor for hours. She wet the bed and, in fact, was incontinent in class a week prior to trial.
Mary had not wet the bed since she was two years old. She had a short attention span and
could not follow instructions, nor perform simple tasks. She also became inattentive and her
handwriting degenerated into a scrawl. In addition, Mary became quiet and withdrawn.
In May of 1982, the respondent mother petitioned the lower court to terminate appellant's
parental rights. On April 11, 1983, the court rendered its decision terminating appellant's
parental rights. Appellant thereafter appealed.
In Carson v. Lowe, 76 Nev. 446, 357 P.2d 591 (1960), this Court recognized its duty to
scrutinize the termination of parental rights. Moreover, this Court in Cloninger v. Russell, 98
Nev. 597, 655 P.2d 528 (1982), adopted the clear and convincing evidence standard of proof
in parental rights termination proceedings as set forth in Santosky v. Kramer, 455 U.S. 745
(1982). NRS 128.110 authorizes the termination of parental rights upon finding grounds
pursuant to NRS 128.105. In the recent decision of Champagne v. Welfare Division of the
Nevada State Department of Human Resources, 100 Nev. 640, 691 P.2d 849 (1984), we
elaborated on the grounds set forth in NRS 128.105 and held that there must be a finding of
both jurisdictional and dispositional grounds in order to justify issuance of a termination
order. Our review of the evidence in the instant case persuades us that both grounds were
satisfied.
JURISDICTIONAL GROUNDS
[Headnotes 1-4]
NRS 128.1052 specifies the jurisdictional grounds for termination.
____________________

2
NRS 128.105 recognizes the following jurisdictional grounds:
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:
102 Nev. 66, 69 (1986) Daly v. Daly
tion. The district court primarily focused upon the risk of serious physical, mental or
emotional injury to the child if visitation were resumed and the child were forced to maintain
contact with appellant.
3
NRS 128.105(4).
At trial Dr. Weiheir, respondent's expert witness who examined Mary, testified that there
is a serious risk of emotional or mental injury to the child if she were allowed to be in her
father's presence. In addition, the doctor testified that Mary would not be injured if she did
not see her father again. The doctor also considered alternatives, such as consultation with
psychologists and psychiatrists and testified there was no guarantee it would work and that
there would be a serious risk of emotional injury.
4
It is precisely this risk that the lower court
was asked to eliminate. It must be remembered that in termination proceedings, the interests
of the child are paramount and a child should not be forced to undergo psychological
adjustments, especially in view of the risk involved, solely to avoid termination of a parent's
rights. Certainly a parent's rights should be preserved if at all possible, but not at the expense
of the child.
Appellant's expert witness also provided support for respondent's position by testifying
that there are children who are not able to accept a parent as a transsexual. This witness also
stated this was a new area and concluded there is a risk that there would be harm done either
direction. Dr. Weiheir, however, had the opportunity to observe and interview Mary and
determined the risk to Mary would exist only if visitation were forced upon Mary.
____________________
(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.

3
In addition to the risk to Mary involved in this case, the evidence indicates that appellant left Mary in the
care and custody of Nan Daly without provision for the child's support and without communication for more than
six months. This constitutes a presumption of abandonment under NRS 128.012(2). Abandonment is also an
acceptable jurisdictional ground for termination proceedings. See NRS 128.105(1). Moreover, what little
communication or attempted communication existed during this period consisted of token efforts; again a
recognized jurisdictional ground. See NRS 128.105(5)(a). Hence, the court's decision was fully supported on the
issue of jurisdiction.

4
While other court's have imposed certain restrictions upon visitation with the child, such as the length of
visitation, the location, or type of permissible activity, in this case such restrictions would accomplish nothing.
The court recognized the effect appellant's transsexualism had upon Mary; any modification in visitation would
not change that fact. To reiterate, the court did not conclude that appellant was an unfit parent merely because
she is a transsexual. Rather, the court recognized the effect the situation had upon Mary in this time of her life
and the serious risk of emotional or mental injury if visitation were allowed. Mary is very uncomfortable about
the possibility of resuming visitation and is presently unprepared to cope with such a prospect.
102 Nev. 66, 70 (1986) Daly v. Daly
be harm done either direction. Dr. Weiheir, however, had the opportunity to observe and
interview Mary and determined the risk to Mary would exist only if visitation were forced
upon Mary.
Notwithstanding the possible harm that would befall Mary if visitation were resumed,
NRS 128.107 provides that the child's desires regarding the termination should be a specific
consideration, if the child has sufficient capacity to express his or her desires. Considering
Mary's age and intelligence, the lower court found her to have the requisite capacity. We
agree with the court's finding. In the present case, Mary told Dr. Weiheir and the trial judge
that she did not want to see her father. Mary also said it would be disturbing to visit with her
father and made it graphically clear that she didn't want to see him again.
The evidence presented in this case decisively establishes the jurisdictional grounds
necessary to terminate parental rights. Therefore, our attention will now focus upon the
dispositional grounds.
DISPOSITIONAL GROUNDS
[Headnotes 5, 6]
Dispositional grounds are satisfied when it is found that the termination is in the child's
best interests. At trial, it was undisputed that Mary's mother, Nan, is a very loving and
conscientious mother who provides a desirable environment for her daughter. Nan always
keeps Mary well fed and clothed and is absolutely dedicated to her child. At the present time,
Mary is happy and well adjusted. Nevertheless, if visitation were permitted, there would be a
risk of serious maladjustment, mental or emotional injury. Hence, recognizing Mary's present
situation, her attitude and feelings, and the substantial risk of emotional or mental injury were
she forced to visit with her father, it appears clear that termination of appellant's parental
rights is in Mary's best interest.
5

The trial court was fully aware of the seriousness and finality of a decree terminating
parental rights, noting that such a remedy should be applied with caution. The court carefully
considered the record and found abandonment and risk of serious mental and emotional
harm.
____________________

5
It was shown that Mary is at the tender age when she is very much concerned about the impression of her
peers and doesn't want to have any sort of uncomfortable fears. Mary would prefer to have her personal life
remain a private event. By terminating Suzanne's parental rights, Mary will finally have the assurance and
comfort of knowing the visitation matter is settled. Also, Mary's emotional state is preserved, thereby providing
her the forum to mature and resolve the situation in her own way. There is nothing to prevent Mary from
rekindling the relationship with her father in later years if she so desires, but that choice should be hers, made at
a time when the risk of emotional or mental injury is eliminated.
102 Nev. 66, 71 (1986) Daly v. Daly
the record and found abandonment and risk of serious mental and emotional harm. The court
also found Suzanne to be a selfish person whose own needs, desires and wishes were
paramount and were indulged without regard to their impact on the life and psyche of the
daughter, Mary.
Our review of the record indicates that the district court's findings are fully supported
therein. Suzanne's efforts to regain visitation rights are shown to be a continuing source of
apprehension to the child. Suzanne's solution is to subject the child to psychiatric counseling
in order to change her mental attitude concerning her father's condition. Inferentially, the
child will be more likely to succumb to a process of mental conditioning if she realizes that
she will be forced to endure periods of visitation with Suzanne. However, expert testimony at
trial reflects substantial doubt as to the success of such counseling at best, and a serious risk
of further emotional injury to the child at worst. Such considerations are further complicated
by the apparent degree of Mary's revulsion over Suzanne and the irretrievable loss of
Suzanne's former relationship with Mary as a parent-father. The future prospects for
emotional family stability are also dimmed by Suzanne's indication that Mary should know
lesbians, homosexuals and transsexuals and be a part of their lives if they are my
[Suzanne's] friends. Suzanne, who admitted that many of her friends are to be found among
the aforementioned groups, has thus postured herself in a position of recurring conflict with
the child's mother and the traditional upbringing enjoyed by Mary during her formative
years. The resulting equation does not bode well for the emotional health and well-being of
the child. This Court can perceive no basis for such disruption of Mary's life. Nor do we see
the necessity for inflicting a continuing sense of instability and uneasiness on this child. As
noted previously, when Mary reaches the age of majority she can decide whether to reinstate a
relationship with Suzanne. In the meantime, given the circumstances concerning Mary's view
of Suzanne and the extent of her opposition to further ties with a vestigial parent, it can be
said that Suzanne, in a very real sense, has terminated her own parental rights as a father. It
was strictly Tim Daly's choice to discard his fatherhood and assume the role of a female who
could never be either mother or sister to his daughter.
In sum, the record discloses the fact that appellant has paid no support for over a year, and
what little communication there was during this time may be appropriately described as
token. Moreover, the court concluded that termination of appellant's parental rights would
be in Mary's best interest. We have determined that the trial court's findings and decision are
clearly and convincingly supported by the evidence. Both the jurisdictional and dispositional
requisites for the termination of appellant's rights as a parent have been satisfied.
102 Nev. 66, 72 (1986) Daly v. Daly
and dispositional requisites for the termination of appellant's rights as a parent have been
satisfied.
The trial court had all the parties before it, observed their demeanor and weighed their
credibility. In this area of such sensitivity, we must accord the lower court due deference. We
have considered appellant's remaining contentions and conclude they either lack merit or do
not require a reversal. Accordingly, we affirm the lower court's decision.
Mowbray, C. J., and Young, J., concur.
Gunderson, J., with whom Springer, J., concurs, dissenting:
The natural mother of Mary Toews Daly (Mary), Nan Toews Daly (Nan), filed a petition to
terminate the parental rights of the natural father of Mary, who is now legally known as
Suzanne Lindley Daly.
1
After a hearing, the district court terminated the father's parental
rights over Mary. He then filed the instant appeal. We should reverse, because the district
court lacked clear and convincing evidence which demonstrated the need to terminate
parental rights over Mary. At the outset, it should be emphasized that the father does not seek
visitation rights at the present time. Hence, with all respect to my brethren in the majority, it
seems inappropriate to bottom a ruling against him on the supposition that visitation with
him could injure Mary.
I
The parties were married in 1969. Their daughter, Mary, was born in August, 1973. By
1979, they had separated. After the separation, the mother worked and resided with Mary
in Reno.
____________________

1
The father's name formerly was Tim Daly. He changed his legal name to Suzanne Lindley Daly in
December, 1982. In this opinion, to avoid confusion I shall refer to the parties as the mother and the father.
The father was a transsexual. A transsexual, or a person with sexual dysphoria, is biologically the member of
one gender while considering himself as a member of the other gender. Green, Sexual Identity of 37 Children
Raised by Homosexual or Transsexual Parents, 135 Am.J.Psych. 692, 692 (1978). The medical profession does
not know the etiology of transsexuality; however, a person's self-identification as a transsexual appears to occur
early in life, probably by the age of four, but might even occur prenatally. See Doe v. McConn, 489 F.Supp. 76,
78 (S.D. Tex. 1980); M.T. v. J.T., 355 A.2d 204, 205 (N.J.Super.Ct.App.Div. 1976). Currently, psychotherapy
appears to be an ineffective treatment for transsexuality. See Doe v. Department of Pub. Welfare, 257 N.W.2d
816, 819 (Minn. 1977). According to Ira Pauly, M.D., a psychiatrist and expert in transsexuality, who testified at
trial, the medical profession believes that sex reassignment surgery is the best treatment available for a
transsexual. For further information on transsexuality, see Comment, M.T. v. J.T.: An Enlightened Perspective
on Transsexualism, 6 Cap.L.Rev. 403, 403-10 (1976-1977); Comment, The Law and Transsexualism: A
Faltering Response to a Conceptual Dilemma, 7 Conn.L.Rev. 288, 288-94 (1974-1975); Comment,
Transsexualism, Sex Reassignment Surgery, and the Law, 56 Cornell L.Rev. 963, 965-72 (1970-1971).
102 Nev. 66, 73 (1986) Daly v. Daly
separation, the mother worked and resided with Mary in Reno. The father lived in Oakland,
California, where he worked at the Lawrence Berkeley Laboratory, a part of the University of
California. A final divorce decree was entered on February 17, 1981, in our Second Judicial
District Court. Under the decree, the mother received custody of Mary. The father received
visitation privileges; he also was required to provide child support and health insurance for
Mary.
In 1983, the mother petitioned the court to terminate her former husband's parental rights.
The key issue underlying her petition appears to be his transsexuality. Prior to the 1981
medical diagnosis that the father was a transsexual, he had led a seemingly normal life. After
high school, he received an appointment to the United States Naval Academy; however, he
was unable to attend Annapolis because of poor eyesight. Instead, he enlisted in the United
States Army and served honorably. Upon discharge, he attended the University of California
at Berkeley. While at Berkeley, he worked at the Lawrence Berkeley Laboratory and double
majored in Anthropology and in Slavic Language and Literature. After graduation, he
continued to work for the Lawrence Berkeley Laboratory. His job, as a scientific research
specialist, requires him to design and build complex research equipment and experimental
devices. The parties also started to raise a family.
After their separation, the father had doubts about his gender identity. He consulted with
Lynn Frazier, Ph.D., a psychotherapist specializing in the treatment of transsexuals. Dr.
Frazier evaluated him for a potential gender identity problem and, using medical guidelines
for the diagnosis of transsexuals, Dr. Frazier diagnosed him as a transsexual. Following Dr.
Frazier's advice, the father then entered into the preoperative treatment regimen prescribed for
transsexuals.
At the termination hearing, Ira Pauly, M.D., a psychiatrist and recognized expert in the
field of transsexualism testified about the standards employed to screen candidates for sex
reassignment surgery. Those standards require the candidate to undergo at least six months of
psychological evaluation, to undergo a full year of hormonal therapy which allows the
candidate to develop the secondary sexual characteristics of the opposite gender, and to
undergo the real life test which requires the candidate to dress and act as a member of the
opposite gender. According to Dr. Pauly, the length and depth of these tests permit the
medical professionals evaluating the candidate to determine if he is psychologically prepared
to live the remainder of his life as a member of the other gender. The testing also permits the
candidate to decide whether he wants to go through the sex reassignment surgery. When the
father completed the evaluation phase, Dr.
102 Nev. 66, 74 (1986) Daly v. Daly
Dr. Frazier decided that he was a proper candidate for the surgical phase of the treatment. The
surgery was then performed.
In 1981, after having been evaluated as a legitimate candidate
2
for sex reassignment
surgery, the father revealed to his daughter that he had been diagnosed as a transsexual, and
that his doctors had advised him to undergo sex reassignment therapy. Seeking to prepare her,
he discussed with Mary what transsexuality is and what was going to happen to him. Mary, a
bright child, apparently developed a reasonable understanding of what he explained to her.
Before Mary returned to her mother, the father asked her to keep information secret from her
mother; for he believed, correctly as matters turned out, that the mother would seek to use the
information against him.
In February of 1982, Mary informed her mother that her father was a transsexual. Upon
hearing this disclosure, the mother claimed to be worried about Mary's condition. After Mary
had returned from her visit to Tim during the summer of 1981, the mother, in hindsight,
thought that Mary had been quieter than normal. However, prior to the disclosure, it appears
the mother had no special concerns over Mary's behavior. In addition, a neighbor and school
teacher, both of whom knew Mary, did not notice any particular problems with Mary during
this period either.
To resolve her concerns, the mother consulted a lawyer and had Mary visit a psychologist.
As a result of these discussions, the mother unilaterally decided to deny the father visitation
privileges, in violation of the divorce decree. Soon after the mother had made that decision,
the father attempted to visit Mary in Reno. However, the mother, using the pretext of a
nonexistent court order, had two sheriff's deputies intercept and deter the father before he was
able to visit with Mary. Then, in August of 1982, the mother refused to pick up the father's
birthday present for Mary at the post office. She also requested him to not telephone their
residence.
Once again, in January of 1983, the father was barred from contacting Mary based upon
the mother's assertion of another nonexistent court order. Later that day, he attempted to visit
Mary at home; however, he was deterred by Mary's gun-wielding grandmother, who would
not permit him to enter the premises.
After this incident, the mother sought and received a restraining order prohibiting the
father from contacting Mary. She then initiated the instant proceedings to terminate his
parental rights.
____________________

2
Dr. Pauly stated, for example, that homosexuals are not appropriate candidates for sex reassignment surgery
because, unlike a transsexual who does not accept his biological gender, a homosexual accepts his biological
gender and thus does not require this surgery.
102 Nev. 66, 75 (1986) Daly v. Daly
initiated the instant proceedings to terminate his parental rights. At the termination hearing,
both parties testified. Expert testimony was also provided on transsexuality, on the father's
medical treatment for transsexuality, and on Mary's psychological condition.
The district court then terminated the father's parental rights. In reaching its decision, the
district court basically concluded that Mary would be better off if she did not visit him. The
court reached this conclusion based upon its evaluation of the father's emotional stability and
upon the potential influence of his friends on Mary. The district court also noted that his
selfishness did not serve Mary's interest. In addition, the district court found that he had
failed to support Mary.
II
Termination of parental rights is governed by NRS 128.005 et seq. The grounds for
termination of parental rights applicable to the father are listed in NRS 128.105-.107. Beyond
the statutes, in reviewing a termination order, we look (1) for the existence of jurisdictional
grounds, concerning a parent's conduct or capacity to raise a child, which fall below
minimum standards, and (2) for the existence of dispositional grounds, concerning the child's
interests, which require that the parental rights be terminated. Champagne v. Welfare
Division, 100 Nev. 640, 647, 691 P.2d 849 (1984). To affirm a termination order, both types
of grounds must exist. Id. at 640, 691 P.2d 849. In addition, the evidence supporting
termination must be clear and convincing. Cloninger v. Russell, 98 Nev. 597, 598, 655 P.2d
528 (1982). I turn, therefore, to consider application of the Champagne test to the district
court's order.
3

A
The district court identified several jurisdictional grounds. First, the district court noted
that the father had abandoned Mary because of a lack of support and communication over a
period of six months or longer. See NRS 128.105(1), (5)(a). The mother, however, played an
instrumental role in inhibiting contacts with Mary, and manipulated sheriff's deputies and
school officials to obstruct attempted visits. Considering these facts and others, we cannot
properly ignore the obstacles the mother placed in the father's way.4 See in re Adoption of
Doe, 677 P.2d 1070, 1074 {N.M.Ct.App.), cert.
____________________

3
In applying Champagne to district court's findings, I characterize the court's pre-Champagne decision in
terms of Champagne's jurisdictional and dispositional categories. See e.g., McGuire v. Welfare Division, 101
Nev. 179, 180-81, 697 P.2d 479 (1985).
102 Nev. 66, 76 (1986) Daly v. Daly
father's way.
4
See in re Adoption of Doe, 677 P.2d 1070, 1074 (N.M.Ct.App.), cert. denied,
677 P.2d 624 (N.M. 1984). Despite such barriers, the father continued to maintain medical
insurance for Mary. Unlike the case of Pyborn v. Quathamer, where no real attempt to
communicate or to support the child occurred, 96 Nev. 145, 146, 607 P.2d 1141 (1980), he
attempted to visit Mary, attempted to communicate with Mary, and did help support Mary.
There is thus no clear and convincing showing of a conscious abandonment of Mary. E.g., In
re Appeal in Maricopa County, Juvenile Action No. JS-3594, 653 P.2d 39, 43-44
(Ariz.Ct.App. 1982); In re Appeal in Pima County, Juvenile Action No. S-624, 616 P.2d 948,
950 (Ariz.Ct.App. 1980). Therefore, this jurisdictional ground fails.
The district court also found that Mary faced a risk of serious physical, emotional or
mental injury if the father exercises any parental rights. However, without the exercise of
visitation rights, which he is voluntarily foregoing, such injury admittedly cannot occur. Thus,
this jurisdictional ground fails also.
Finally, the district court found that the father's selfishness, his unrealistic thinking about
Mary, and his lifestyle adversely affect his ability to be a parent. Because he does not ask to
exercise visitation rights, however, these considerations do not currently affect Mary's life.
Therefore, the jurisdictional grounds invoked by the district court fail to provide an adequate
basis to terminate the father's parental rights.
B
The district court also found several categories of dispositional grounds. The district court
noted that Mary should not be around someone with a gender identity problem, should not be
in an environment where she might confront sexual minorities, and does not presently wish to
be with her father. Again, without visitation, none of these concerns have substance.
Therefore, this first category of dispositional grounds fails to justify a termination of the
father's parental rights.
The second category of dispositional grounds raised by the district court concerned Mary's
anxieties over the dispute between her parents. Yet, no judicial resolution of the instant
appeal can stop any hostilities that exist between the parties. With the father foregoing any
contact with Mary, little else can be done to resolve Mary's anxieties.
____________________

4
We further note that the father was attempting to regain visitation rights during this same period; he was
hindered by counsel who evidently did not expeditiously aid his cause. Where a parent attempts through an
attorney to regain his rights, we obviously should not hold that he has abandoned his child merely because of the
seemingly ineffective assistance of counsel.
102 Nev. 66, 77 (1986) Daly v. Daly
to resolve Mary's anxieties. Thus, this dispositional ground fails to justify a termination of all
parental rights.
Finally, the district court noted that Mary does not now desire to be with appellant and
believes he is no longer her father. I recognize the importance of considering a child's views
of her parents where the child can sufficiently articulate her desires. NRS 128.107(2). Still,
we also should recognize the importance of not severing a parent's rights where a less
restrictive alternative exists to permit preservation of a family tie. E.g., In re Brooks, 618
P.2d 814, 822 (Kan. 1980). While Mary may no longer have a father figure, she still has a
second parent who desires to contribute to her financial support, and who might someday in
the future provide her with needed comfort, affection, and help.
III
In conclusion, I reiterate that Mary and her father currently are totally separated, for he is
willing to forego visitation rights at present, in order to maintain his legal status as Mary's
parent. This separation protects Mary from all of the concerns, imagined or real, which
underlay the district court's termination of parental rights.
A close reading of the majority opinion simply underscores this fundamental point. In
attempting to justify the district court's ruling, the majority recite, inter alia: The district
court primarily focused upon the risk of serious physical, mental or emotional injury to the
child if visitation were resumed and the child were forced to maintain contact with
appellant. (Emphasis added.) The majority also state: At trial Dr. Weiheir, respondent's
expert witness who examined Mary, testified that there is a serious risk of emotional or
mental injury to the child if she were allowed to be in her father's presence. (Emphasis
added.) Again, the majority point out: Dr. Weiheir, however, had the opportunity to observe
and interview Mary and determined the risk to Mary would exist only if visitation were forced
upon Mary. (Emphasis added.) The majority go on to assert: Nevertheless, if visitation were
permitted, there would be a risk of serious maladjustment, mental or emotional injury.
(Emphasis added.) Hence, it is to be seen that the majority opinion is premised, not upon fact,
but upon suppositions which are contrary to the facts and which ignore the appellant father's
basic legal position.
As previously noted, the appellant father in this matter is a well educated person, long
employed by one of this nation's eminent academic institutions. He served this country
honorably in its armed forces, and, the record indicates, has never been known to violate any
of our country's laws. Appellant fathered Mary Daly in wedlock, and, since divorce, has
maintained an interest in her and has continued attempts to provide for her, even though
the respondent has improperly impeded those legitimate efforts.
102 Nev. 66, 78 (1986) Daly v. Daly
in wedlock, and, since divorce, has maintained an interest in her and has continued attempts
to provide for her, even though the respondent has improperly impeded those legitimate
efforts.
In psychological distress, the father has consulted legitimate and respected medical
authorities. The advice given by those medical authorities may offend the religious precepts
of many. In the ultimate judgment of history, such advice may well yet be condemned as
quackery. Still, I respectfully submit that a court of law should not stigmatize an emotionally
distressed person for following the advice of highly trained and licensed physicians, who are
practicing medicine under government authority, and who possess the most exalted
credentials their profession can bestow. Nor should any parent be stigmatized for attempting
to forewarn a child concerning medical procedures the parent is about to undergo pursuant to
such advice.
Recognizing that the medical procedures he has undergone currently occasion distress to
her child, the father does not contend he should now be allowed visitation rights. Rather, he
contends merely that he has done nothing to warrant severing his formal legal parental tie to
Mary Daly, apparently hoping that the passage of time will restore in Mary a desire to know
him. In the meantime, the father recognizes, he would have to accept the duty of contributing
to Mary's support, while foregoing visitation with the child.
As I assess the record, the fact that the appellant father has suffered emotional problems
which are foreign to the experience of this court's members, and has followed the possibly
poor advice of eminent medical authorities in his attempt to relieve them, does not justify a
total and irrevocable severance of appellant's formal legal tie to a child he obviously cares
about and desires to nurture. By holding that such a severance is justified in these facts, it
seems to me, we are being unnecessarily and impermissibly punitive to the exercise of a
medical option we personally find offensive, thereby depriving a child of a legal relationship
which might well be to the child's advantage in the future.
____________
102 Nev. 79, 79 (1986) Breen v. Caesars Palace
RAINA LEE BREEN, Widow of JOHN J. BREEN, Deceased, and MARK ANTHONY
BREEN and CRYSTAL FAY BREEN, Infants, by RAINA LEE BREEN, as Their
Guardian, and JOHN JOSEPH BREEN, Infant, by DEBRA ANN MEYERS, as His
Guardian, Appellants, v. CAESARS PALACE, a Nevada Corporation, Respondent.
No. 16164
March 13, 1986 715 P.2d 1070
Appeal from an order affirming the decision of an appeals officer of the Department of
Administration. Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
Department of Administration permitted self-insured employer to assert a subrogation lien
against proceeds of a third-party medical malpractice settlement. The district court affirmed,
and appeal was taken. The Supreme Court held: (1) self-insured employer may assert a
subrogation interest in a medical malpractice recovery; (2) lien did not extend to medical
expenses accrued before the medical malpractice occurred; (3) employer was to bear portion
of malpractice litigation costs; and (4) lien extended to recovery of non-economic damages.
Affirmed in part; reversed and remanded in part.
Vannah, Roark & Madison and Stephen G. Snyder, Las Vegas, for Appellants.
King, Clark, Gross & Sutcliffe, Las Vegas, for Respondent.
1. Workers' Compensation.
Self-insured employer could assert subrogation lien against proceeds of third-party medical malpractice
settlement. NRS 616.560.
In determining whether legislature intended to give compensation carriers or self-insured employers an
unrestricted lien on third-party recovery when it used the phrase total proceeds the court could look to
the purpose of the statute as a whole, as evidence by the statutory scheme. NRS 616.560.
Employer's lien on medical malpractice recovery obtained by deceased employee's survivors did not
encompass medical expenses which accrued before the medical malpractice occurred, notwithstanding that
statute gives a lien on the total proceeds. NRS 616.560, subd. 2.
Employer would be unjustly enriched if it could assess its compensation lien against total proceeds of
medical malpractice settlement without bearing its share of litigation expenses; employer's share of
litigation expenses was the total amount of lien divided by the settlement minus fees and costs, and
workman's survivors' share was the amount of excess recovery over the amount due
under the compensation act divided by the settlement minus fees and costs.
minus fees and costs, and workman's survivors' share was the amount of excess recovery over the amount
due under the compensation act divided by the settlement minus fees and costs. NRS 616.560.
Self-insured employer's subrogation interest in total proceeds of medical malpractice settlement
included that portion of settlement proceeds attributable to non-economic losses, i.e., loss of deceased
workman's society, association, protection, etc., notwithstanding that the Industrial Injury Act does not
compensate workers for non-economic damages. NRS 616.560.
Where a liberal construction of Industrial Injury Act would not further legislative purpose to compensate
insured employees the court is bound by the literal language. NRS 616.560.
OPINION
Per Curiam:
In this appeal appellants challenge a district court order upholding an appeals officer's
decision to permit a self-insured employer to assert a subrogation lien against the proceeds of
a third-party malpractice settlement. We affirm the order insofar as it permits the employer to
assert the lien but reverse and remand with instructions for a determination of the proper
scope of the lien.
THE FACTS
On June 13, 1981, John J. Breen (hereafter Decedent) was refueling a portable stove in
the course of his duties as a banquet chef for respondent Caesars Palace (hereafter Caesars)
when the stove exploded causing Decedent to suffer serious but apparently non-fatal burns
over 35% of his body. Decedent was admitted to Southern Nevada Memorial Hospital where
he died two days later from an accumulation of fluid in his lungs.
Caesars, a self-insured employer, paid Decedent's medical bills, burial expenses and
pension benefits to appellants, Decedent's wife and three minor children.
In a malpractice suit filed against Decedent's treating physicians and the hospital,
appellants alleged that Decedent's death was not caused by the burns but by negligent medical
treatment. Specifically, appellants alleged that the doctors had pumped fluids into Decedent
faster than his body could expel them, causing his lungs to fill with fluid and drown him.
Caesars filed a subrogation lien against the prospective settlement proceeds on July 27,
1983. Appellants settled the malpractice suit against the doctors and hospital for
$1,000,000.00 on August 18, 1983. At the time of settlement, Caesars had disbursed
$39,72S.16 in benefits to appellants.
bursed $39,728.16 in benefits to appellants. Caesars had also reserved $650,000.00 as future
pension benefits.
Appellants reimbursed Caesars the $39,728.16 in benefits out of the $1,000,000.00
settlement. In its letter acknowledging the receipt of the $39,728.16, Caesars broke down the
settlement per appellant and declared the offset it was claiming as to each appellant's pension
benefits. Caesars stopped paying pension benefits at the time of the settlement.
Appellants challenged the propriety of Caesar's subrogation interest in the malpractice
settlement proceeds before a Department of Administration hearing officer. The hearing
officer, the appeals officer and the district court all found for Caesars, concluding that,
pursuant to NRS 616.560, Caesars was entitled to assert a subrogation lien against the
malpractice settlement proceeds for the entire amount due appellants under worker's
compensation. From the district court's order affirming the decision of the appeals officer,
appellants bring this appeal.
DISCUSSION
[Headnote 1]
Pursuant to NRS 616.560
1
an employer may assert a subrogation interest in compensation
paid to an employee by a third-party tortfeasor where a work-related "injury was caused
under circumstances creating a legal liability" in a third party.
____________________

1
1. When 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, to pay damages in
respect thereof:
(a) The injured employee, or in case of death, his dependents, may take proceedings against that
person to recover damages, but the amount of the compensation to which the injured employee or his
dependents are entitled under this chapter, including any future compensation under this chapter, must be
reduced by the amount of the damages recovered, notwithstanding any act or omission of the employer or
a person in the same employ which was a direct or proximate cause of the employee's injury.
(b) If the injured employee, or in case of death his dependents, receive compensation under this
chapter, the insurer has a right of action against the person so liable to pay damages and is subrogated to
the rights of the injured employee or of his dependents to recover therefor. In any action or proceedings
taken by the insurer under this section evidence of the amount of compensation, accident benefits and
other expenditures which the insurer has paid or become obligated to pay by reason of the injury or death
of the employee is admissible. If in such action or proceedings the insurer recovers more than the
amounts it has paid or become obligated to pay as compensation, the excess must be paid to the injured
employee or his dependents.
(c) The injured employee, or in the case of death his dependents, shall first notify the insurer in
writing of any action or proceedings, pursuant to this section, to be taken by the employee or his
dependents.
2. In any case where the insurer is subrogated to the rights of the
tortfeasor where a work-related injury was caused under circumstances creating a legal
liability in a third party. Injury is defined in the Nevada Industrial Insurance Act (NIIA) as a
sudden and tangible happening of a traumatic nature, producing an immediate or prompt
result. NRS 616.110(1). Appellants contend that Caesars may not assert a subrogation lien
on the malpractice settlement because the malpractice injury was severable from the
work-related injury; appellants argue that the definition of injury does not encompass the
aggravation of an original injury by medical malpractice.
We conclude, however, that the aggravation of an injury by medical malpractice is within
the scope of risks created at the time the original injury occurs. Since an employer must
compensate the employee for the aggravation of the injury
2
it stands to reason that the
employer should be able to seek reimbursement from the third party via a subrogation lien.
We will not construe a statute to produce an unreasonable result when another interpretation
will produce a reasonable result. See Alper v. State ex rel. Dep't of Hwys., 96 Nev. 925, 930,
621 P.2d 492 (1980). Appellants construction of the statute would indeed produce an
unreasonable result by permitting an employee to recover twice for the same injury. The
statutory scheme itself contemplates that an employee should not be allowed to receive a
double recovery. NRS 616.560(2) provides that an employee, or in the case of his death his
dependents, are not entitled to double recovery for the same injury. In holding that an
employer is entitled to reimbursement from malpractice proceeds we join the overwhelming
majority of jurisdictions which have construed their statutes to permit subrogation under
similar circumstances. See 2A Larson, Law of Workmen's Compensation 72.61(a),
72.65(e) (1983).
Having decided that Caesars' assertion of a subrogation lien was proper, we now determine
the scope of that lien. The district court concluded that Caesars could discontinue paying
benefits to appellants until the entire $1,000,000.00 settlement had been offset.
____________________
injured employee or of his dependents as provided in subsection 1, the insurer has a lien upon the total
proceeds of any recovery from some person other than the employer, whether the proceeds of such
recovery are by way of judgment, settlement or otherwise. The injured employee, or in the case of his
death his dependents, are not entitled to double recovery for the same injury, notwithstanding any act or
omission of the employer or a person in the same employ which was a direct or proximate cause of the
employee's injury.
3. The lien provided for under subsection 2 includes the total compensation expenditure incurred by
the insurer for the injured employee and his dependents.

2
Jurisdictions which have addressed the issue universally hold that an employer is liable in compensation
for aggravation of a compensable injury by a physician's negligence. 2A Larson, Law of Workmen's
Compensation 72.61(c) (1983). This is the apparent policy of the Department of Administration and is
uncontested by Caesars in this appeal.
court concluded that Caesars could discontinue paying benefits to appellants until the entire
$1,000,000.00 settlement had been offset. Appellants contend that pre-malpractice medical
expenses, non-economic damages and attorney's fees and costs must first be deducted from
the settlement before calculating Caesars' lien. Caesars argues that the statutory language
makes no provision for adjusting the amount of the lien but instead provides that the insurer
has a lien upon the total proceeds of any recovery from a third party. NRS 616.560(2)
(emphasis added).
[Headnote 2]
To determine whether the legislature intended to give insurers an unrestricted lien on
third-party recoveries when it used the phrase total proceeds, we may look to the purpose of
the statute as a whole as evidenced by the statutory scheme. See Colello v. Administrator,
Real Est. Div., 100 Nev. 344, 683 P.2d 15 (1984). It is unquestionably the purpose of
worker's compensation laws to provide economic assistance to persons who suffer disability
or death as a result of their employment. SIIS v. Jesch, 101 Nev. 690, 709 P.2d 172 (1985).
This court has a long-standing policy of liberally construing these laws to protect workers
and their families. Id. Mindful of these guidelines, we proceed to analyze each of the
deductions claimed by appellants.
Pre-Malpractice Medical Expenses
[Headnote 3]
Appellants contend that Caesars should reimburse them for $4,860.34 in medical expenses
which accrued before the medical malpractice occurred. Presumably the malpractice
settlement compensated appellants only for expenses related to the malpractice; appellants
will not be compensated for expenses that accrued before the malpractice if Caesars is
allowed to obtain reimbursement out of the settlement proceeds for expenses unrelated to the
malpractice.
A literal reading of NRS 616.560(3) would, however, permit insurers to recoup expenses
out of third-party proceeds even though the proceeds had not compensated the employee for
those expenses:
The lien provided for under subsection 2 includes the total compensation expenditure
incurred by the insurer for the injured employee and his dependents.
NRS 616.560(3) (emphasis added).
The leading rule for the construction of statutes is to ascertain the intention of the
legislature in enacting the statute, and the intent, when ascertained will prevail over the literal
sense.' [citations omitted]. Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635, 637,
503 P.2d 457 {1972).
Nev. 635, 637, 503 P.2d 457 (1972). We decline to read NRS 616.560(3) literally as it is
evident that the statutory scheme was designed to accommodate situations where the
work-related injury and third-party tortious conduct occur simultaneously. In the usual
situation, medical expenses for the work-related injury and the third-party injury will not be
severable. Other jurisdictions which have had to deal with similar statutory gaps have held
that the insurer's lien extends only to the expenses attributable to the medical aggravation of
the injury. In other words the amount of the employer's lien is limited to the amount that he
is required to pay because of the malpractice. Heaton v. Kerlan, 166 P.2d 857, 861 (Cal.
1946); see also Drypolcher v. New York Tel. Co., 446 N.Y.S.2d 728, 729 (App.Div. 1981)
(employer may not recoup through subrogation lien any sums expended prior to the
occurrence of the malpractice); 2A Larson, Law of Workmen's Compensation 72.65(b)
(1983) (citing Heaton as achieving fair and sensible results in face of statute that fails to
segregate payments for original and aggravated portions of a compensable injury).
We conclude that the legislative intent to compensate injured employees should prevail
over the literal reading of the statute. Caesars must reimburse appellants for the $4,860.34 in
medical expenses that accrued prior to the malpractice.
Attorney's Fees and Costs
We next determine whether Caesars' lien should extend to only two-thirds of the
settlement proceeds because appellants paid one-third of the proceeds in attorney's fees and
costs. NRS 616.560 makes no provision for the allocation of these expenses between the
insurer and the injured employee.
Under third-party statutes containing no reference to fees and costs, the majority of courts
currently hold that the carrier or employer may be charged with a proportionate share of the
costs and attorneys' fees incurred by the employee in the third-party suit. 2A Larson, Law of
Workmen's Compensation 74.32(a)(3)(1983). Jurisdictions which have held an employer
liable for a proportionate share of litigation expenses in the absence of an authorizing statute
have done so on principles of equity and unjust enrichment:
Where no guidance is given . . . fundamental fairness must be the guidelines. In the
instant case it was the claimant who bore the burden of the expense and risk of
litigation of the third party action. It would be unduly burdensome on the claimant to
pay all of the expenses and by the same token it would unjustly enhance the economic
position of the carrier not to assess a portion of the costs against it.
Transport Indemnity Company v. Garcia, 522 P.2d 473, 476 (N.M. Ct.App. 1976). See also
Security Insurance Company of Hartford v. Norris, 439 S.W.2d 68, 70 (Ky. 1969)
(employer/insurer's liability for litigation costs based on principles of equity, fairness and
justice, such as are invoked in cases of unjust enrichment).
[Headnote 4]
We conclude that Caesars would be unjustly enriched if it were permitted to assess its lien
against the total proceeds of the settlement without bearing its share of litigation expenses.
Caesars will have obtained a substantial benefit, the almost complete extinguishment of its
obligation to appellants, at appellants' expense if Caesars is not held accountable for a
proportionate share of the costs of obtaining the settlement. We are unable to determine the
parties' proportionate shares of the attorney's fees and costs on the record before us. We
instruct the district court to determine upon remand the parties' respective shares according to
the following formulas:
Total amount of lien
Caesars' share =
______________________________________________

Settlement(fees and costs)
Excess recovery over amount due under NIIA
Appellants' share =
______________________________________________

Settlement(fees and costs)
To illustrate how these formulas work, we provide the following hypothetical. Suppose the
district court determines Caesars' lien to be $650,000.00. Appellants' excess recovery is then
computed by deducting attorney's fees, costs and Caesars' lien from the total settlement:
$1,000,000.00 - 333,333.33 - 650,000.00 = $16,666.66. By inserting these figures into the
formulas, we arrive at the parties' proportionate shares:
650,000.00
Caesars' share =
______________________
= .975
1,000,000.00333,333.33
16,666.66
Appellants' share =
______________________
= .025
1,000,000.00333,333.33
Ceasars thus bears 97.5% of the litigation expenses; appellants bear the remaining 2.5%.
3
Non-economic Damages
____________________

3
If Caesars' lien equals or exceeds $666,666.66, Caesars will, obviously, bear the total litigation expense.
Non-economic Damages
[Headnote 5]
In their malpractice suit, appellants sought compensation for non-economic losses, i.e., the
loss of Decedent's society, association, protection, etc. Non-economic losses are not
compensable under the NIIA. Therefore appellants contend that Caesars' subrogation lien
should extend only to that portion of the malpractice proceeds attributable to economic
losses.
The prevailing rule in the United States has been to allow an employer to reach an entire
award or settlement even where the non-economic damages have been segregated and
identified. 2A Larson, Law of Workmen's Compensation 74.35 (1983). In United States v.
Lorenzetti, 467 U.S. 167, 104 S.Ct. 2284 (1984), a federal employee was injured in a car
accident in the course of his employment. He received payment for his medical expenses and
lost wages under the Federal Employees' Compensation Act (FECA) which, like the NIIA,
does not compensate victims for non-economic damages. The employee recovered only
damages for pain and suffering from the driver of the other car because the no-fault insurance
system in effect limited the other driver's liability to non-economic damages. The Supreme
Court held that the Government was entitled to reimbursement from the third-party award
even though the award was for damages not compensable under FECA. The Court reasoned
that Congress knew that third-party recoveries might encompass compensation for pain and
suffering when it enacted FECA with the provision giving the Government an unrestricted
right of reimbursement. Had the Legislature wanted to restrict the right of reimbursement, the
Court concluded, it could have done so. It is for Congress, not the courts, to revise
longstanding legislation in order to accommodate the effects of changing social conditions.
Congress simply has not done so here. Id. at ___, 104 S.Ct. at 2292.
In interpreting their state worker's compensation statutes, other courts have been
influenced by language in the statute permitting the employer a subrogation right in the
total proceeds. The Arizona Supreme Court held that an insurer's lien extended to the
employee's entire third-party recovery, including items not covered by worker's
compensation, because the statute speaks of total recovery. See Hendry v. Industrial
Commission, 538 P.2d 382 (Ariz. 1975), cert. denied, 424 U.S. 923 (1976). The court
concluded that the statutory language was controlling even if it did produce an inequitable
result.
We similarly conclude that we are bound by the statutory language which gives an insurer
a subrogation interest in the total proceeds. It is the legislature's prerogative, not this
court's, to correct any injustice occasioned by a literal reading of the statute.
court's, to correct any injustice occasioned by a literal reading of the statute. The rules of
statutory construction which enabled us to liberally construe NRS 616.560 with respect to the
payment of pre-malpractice medical expenses and attorneys fees and costs are not applicable
here. With respect to this issue, there is no room for statutory interpretation; the language of
the statute is plain and no legislative purpose would be served by deviating from the literal
language. See Spencer v. Harrah's, Inc., 98 Nev. 99, 641 P.2d 481 (1982).
[Headnote 6]
The literal reading of the statute controls with respect to this issue because, unlike the
issue of pre-malpractice medical expenses, the purpose of the statute is not thwarted by a
literal reading. The NIIA was enacted to compensate injured employees for economic losses.
Since a liberal construction would not further this purpose, we are bound by the literal
language.
In concluding that Caesars should bear a proportionate share of attorney's fees and costs,
we did not usurp the legislative function. We were able to reach an equitable result on that
issue because of the absence of legislative guidance. Here, however, the legislature has
provided that an insurer's lien extends to the total proceeds of a third-party recovery. We
conclude that the legislature must have known that this language might permit an insurer to
reach an employee's non-economic loss recovery from a third party. The legislature may well
have decided that the objective of reimbursing the insurer would prevail over the employee's
interest in a recovery for non-economic losses.
CONCLUSION
This matter is remanded to the district court with instructions to determine the scope of
Caesars' lien in conformance with this opinion.
Mowbray, C.J., Springer, Gunderson, and Young, JJ., and White, D.J.,
4
concur.
____________________

4
The Honorable Earle White, Jr., Judge of the Eighth Judicial District Court, was designated by the Governor
to sit in place of Justice Thomas L. Steffen, who voluntarily disqualified himself. Nev.Const., art. 6, 4.
____________
102 Nev. 88, 88 (1986) Imperial Palace v. Dawson
IMPERIAL PALACE, Appellant, v. ISIAH
DAWSON, Respondent.
No. 16525
March 18, 1986 715 P.2d 1318
Appeal from judgment affirming the appeals officer's decision. Eighth Judicial District
Court, Clark County; Donald M. Mosley, Judge.
Self-insured employer brought action to challenge workers' compensation award. The
district court entered judgment ordering employer to pay award. Employer appealed. The
Supreme Court, Gunderson, J., held that: (1) employer was obligated to pay for treatment of
automobile accident which aggravated work-related injury and which occurred while claimant
was traveling to receive treatment for work-related injury, and (2) employer's dilatoriness in
payment of award ordered without benefit of stay justified sanctions against employer.
Affirmed; sanctions imposed.
[Rehearing denied July 29, 1986]
Jerry Collier Lane, Las Vegas, for Appellant.
Self-insured employer must demonstrate ability to meet expenses of operating compensation program and
must accept responsibility of complying with workers' compensation laws before employer leaves State
Industrial Insurance System. NRS 616.112, 616.272, 616.291-616.298.
Medical care that injures employee receiving workers' compensation obligates workers' compensation
system to pay for treatment of additional injury. NRS 616.565, subd. 2
Self-insured employer was obligate to pay for injury resulting from automobile accident which
aggravated work-related back injury and which occurred while claimant was traveling to receive treatment
for work-related injury. NRS 616.565, subd. 2.
Self-insured employer failed to comply with duties of paying claimant compensation ordered by hearing
officer and promptly reporting, administering, and settling all claims where self-insured employer failed to
pay benefits to claimant ordered by hearing officer without benefit of stay. NRS 616.010 et seq.,
616.272, 616.5416, subd. 5, 616.5422, subd. 2.
Self-insured employer's failure for 17 months to pay award ordered by hearing officer without benefit of
stay justified award of $7,500 to claimant for legal expenses and interest at 1 percent per month upon
workers' compensation award. NRAP 38; NRS 616.010 et seq., 616.5416, subd. 5, 616.5422, subd. 2.
OPINION
By the Court, Gunderson, J.:
[Headnote 1]
The Imperial Palace, a self-insured employer, appeals a district court judgment affirming
an award of workers' compensation benefits to Isiah Dawson.
1
Dawson had received a
work-related back injury, which was later aggravated by an automobile accident that occurred
while he was traveling to a physical therapy treatment. Nominally, this appeal concerns the
applicability of the going-and-coming rule to these facts. As we perceive it, however, the
more significant concern raised by this appeal centers upon how Imperial Palace delayed
paying Dawson his compensation benefits for longer than one and one-half years. In light of
the self-insured employer's duty to treat its workers' compensation claimants fairly, we not
only affirm the district court's judgment but impose sanctions.
On January 18, 1984, Dawson injured his back in a fall from a stepladder while in the
course of his work for the Imperial Palace. After initial diagnosis and treatment, a medical
examination in early February indicated that Dawson still had back pain. Then, on February
8, 1984, he was in an automobile accident while en route to a physical therapy session.
Although the accident aggravated his back pain, it did not affect the course of his treatment.
On March 21, 1984, Imperial Palace suspended Dawson's compensation benefits,
ostensibly because his physician had not submitted a disability extension slip. Then Imperial
Palace terminated Dawson's benefits, purportedly due to the non-industrial nature of his
intervening injury. Dawson thereupon challenged these decisions before the hearing officer.
Under NRS 616.5414, an employee who is dissatisfied with his employer's decision may
request the hearing officer to review his claim.
On May 2, 1984, the hearing officer rendered his decision, reversing the suspension and
termination of Dawson's benefits, and ordering the benefits reinstated. The Imperial Palace
appealed this decision to an appeals officer under NRS 616.5422(1). In a November 13, 1984
order, the appeals officerwho has the ultimate right to determine facts de novoconfirmed
the hearing officer's decision.
____________________

1
An employer may elect to provide its employees with workers' compensation benefits in lieu of the benefits
provided by the State Industrial Insurance System (SIIS). Before an employer may leave the SIIS program and
become a self-insured employer, among other things it must demonstrate the wherewithal to meet the expenses
of operating a compensation program and must accept the responsibility of complying with the workers'
compensation laws. NRS 616.112, .272, .291-.298.
confirmed the hearing officer's decision. The appeals officer noted that the automobile
accident resulted from Dawson's seeking treatment for his prior work-related injury; thus,
injuries sustained in the accident were work-related. In addition, the appeals officer noted that
Dawson's claim had been closed without an adequate basis and that Imperial Palace continued
to refuse Dawson benefits even after the hearing officer had entered his decision. From these
actions, the appeals officer concluded that the Imperial Palace had been engaging in bad
faith practices in the management of this claim.
Thereafter, Imperial Palace petitioned for judicial review. On April 2, 1985, the district
court found the appeals officer's decision to be well supported by the evidence. Also, the
district court found no abuse of discretion or errors of law. Accordingly, the district court
entered its judgment ordering Imperial Palace to comply with the appeals officer's decision.
On May 10, 1985, the Imperial Palace initiated an appeal to this court and moved the
district court for a stay pending appeal. Although the district court declined to grant a stay,
Imperial Palace, nonetheless, continued to withhold Dawson's benefits.
Dawson, then, sought assistance from the Department of Industrial Insurance Regulation,
which directed Imperial Palace to pay his benefits, but still payment was not forthcoming.
Dawson returned to the district court and moved for sanctions, and only then, in the fall of
1985, did Imperial Palace disburse approximately $17,000 of accrued benefits to Dawson and
begin paying Dawson his temporary total disability compensation every other week. In this
posture, Imperial Palace has presented its appeal to this court.
1. We first discuss Imperial Palace's asserted reason for depriving Dawson of his
compensation benefits for longer than a year and one-half, to-wit: that an intervening injury
absolves the workers' compensation system from liability to treat the prior injury. In
particular, Imperial Palace asserts that Dawson's benefits are precluded under the
going-and-coming rule. As a general proposition, this rule contemplates that injuries an
employee sustains while traveling to or from work are not deemed to arise out of or in the
course of employment. Crank v. Nev. Indus. Comm'n, 100 Nev. 80, 81-82, 675 P.2d 413
(1984). However, when an injury arises out of the course of employment, an employee may
receive workers' compensation benefits. NRS 616.515.
[Headnotes 2, 3]
We note that in recovering from a work-related injury, the employee must accept
reasonable medical treatment. NRS 616.565(2). If this medical care injures the employee, the
worker's compensation system pays for the treatment of the additional injury. E.g., Breen
v. Caesars Palace, 102 Nev. 79
er's compensation system pays for the treatment of the additional injury. E.g., Breen v.
Caesars Palace, 102 Nev. 79, 715 P.2d 1070 (1986). In order to receive treatments, the system
also requires the employee to travel to the place of his medial treatment. Thus, similarly, it
has also been held the system should pay for accidental injuries sustained while traveling to
or from that treatment. E.g., Laines v. Workman's Comp. Appeals Bd., 122 Cal.Rptr. 139,
142-44 (Cal.Ct.App. 1975); Moreau v. Zayre Corp., 408 A.2d 1289, 1293 (Me. 1979); Immer
& Co. v. Brosnahan, 152 S.E.2d 254, 257 (Va. 1967); see generally 1A. Larson, The Law of
Workmen's Compensation 13.13 (1985). We agree. Both types of subsequent injuries are
foreseeable consequences of a work-related injury, and we therefore believe that the workers'
compensation system should pay for the treatment of a subsequent accidental injury to an
employee which occurs while traveling to receive medical care.
[Headnote 4]
2. We next examine the duties of a self-insured employer such as Imperial Palace.
Self-insured employers accept the duty of complying with the Nevada Industrial Insurance
Act and regulations promulgated thereunder by the Department of Industrial Relations. NRS
616.272; NAC 616.156(3)(a). Among other things, these require a claimant to receive the
compensation ordered by a hearing officer unless the payment of that compensation is stayed.
NRS 616.5416(5), .5422(2). Another rule requires self-insured employers to promptly
report, administer and settle all claims. NAC 616.156(3).
The Imperial Palace, however, complied with neither of these duties. For example, after
the hearing officer's decision, Imperial Palace, without the benefit of a stay, withheld
Dawson's compensation. It then also ignored the appeals officer's decision. In addition, even
after the district court expressly denied Imperial Palace a stay pending appeal, the employer
paid Dawson no benefits. Not before burdening its injured employee with the necessity of
seeking further administrative and judicial relief did Imperial Palace pay Dawson his
long-withheld entitlement. These breaches of duty delayed Dawson's receipt of compensation
from May 1984, until the fall of 1985.
Delays of this unjustifiable kind subvert the humanitarian purposes underlying the
worker's compensation system. As this court said in Dep't Ind. Relations v. Circus Circus,
101 Nev. 405, 411-12, 705 P.2d 645, 649 (1985):
Self-insured employers are not excepted from the law in this State. When a self-insured
employer elects to accept the benefits of administering its own worker's compensation
program, in exchange for relief from tort liability, it must assume the burdens.
assume the burdens. One of the burdens of the system is the prompt payment of
benefits, and if payment is determined to be unwarranted, the self-insurer must seek
reimbursement of benefits it paid. The self-insured employer is protected by the system
in the same manner as is the SIIS: it must pay the benefits until a stay order is issued, or
until an appeal determines the injury is not compensable. If the stay order is denied, as
was the case here, the self-insured employer must not deny the injured worker the
prompt payments mandated by worker's compensation statutes, agency regulations and
the decisions by this court. The self-insured employer is obligated to act as the SIIS
would do in like circumstances. Merely because the appeal process may take quite
some time, the self-insured employer cannot properly delay payment, thereby starving
out its injured employee and violating the public policy established by our worker's
compensation scheme. Along with the benefits of being a self-insurer, this is one of the
burdens accepted: the employer must pay the claim and seek recovery later if payment
is in error, thus assuring the employee some measure of economic security. The injured
employee must not be forced to survive on no income for whatever time the employer
may expend in pursuing the appeal process.
[Headnote 5]
3. After reviewing Imperial Palace's conduct in light of the foregoing, we feel compelled to
sanction Imperial Palace. Under NRAP 38, we may award attorneys' fees, damages, costs, and
such other relief as we may fashion. In re Herrmann, 100 Nev. 149, 152, 679 P.2d 246
(1984); Varnum v. Grady, 90 Nev. 374, 377, 528 P.2d 1027 (1974). In the instant appeal,
after taking into account the legal efforts required to protect Dawson's interests, we sanction
Imperial Palace $7,500.00 to help defray Dawson's legal expenses. Furthermore, considering
the approximately seventeen months that Dawson's benefit were withheld unjustifiably, we
believe that damages in the form of interest also constitute an appropriate additional sanction.
Calculating the interest at one percent (1%) per month upon the $17,000.00 of withheld
benefits, this additional sanction equals some $2,900.00. Finally, if Imperial Palace fails to
pay these sanctions to Dawson and his counsel within thirty (30) days after the date that this
opinion is filed, interest at the rate of two percent (2%) per month shall accrue upon any
unpaid sums.
4. In summary, we affirm the district court's judgment. We also sanction Imperial Palace
$10,400.00 for its dilatory conduct in handling Dawson's claim.2 In the future, when
self-insured employers engage in unacceptable dilatory tactics, in addition to reasonable
attorney's fees this court may award the aggrieved worker double costs.
in handling Dawson's claim.
2
In the future, when self-insured employers engage in
unacceptable dilatory tactics, in addition to reasonable attorney's fees this court may award
the aggrieved worker double costs. NRAP 38(b), and also damages computed on the basis of
two percent (2%) interest per month on all sums improperly withheld. NRAP 38(a); Varnum
v. Grady, cited above.
3

Mowbray, C. J., Springer, Steffen and Young, JJ. concur.
____________________

2
In Dep't Ind. Relations v. Circus Circus, cited above, we indicated that the Department of Industrial
Insurance Regulation should reconsider the fine the Department had imposed on Circus Circus--in part because
it appeared to us that management personnel of Circus Circus were not culpably implicated in the wrongful
withholding of benefits, but had only failed to pay as a result of incorrect legal advice. In those circumstances,
and given the fact that we had not previously imposed sanctions for improperly withholding benefits after denial
of a stay order, we believed the employer should not be penalized. In the instant case, however, we have been
advised by counsel at oral argument that the improper decision to withhold benefits from respondent, even after
a stay had been denied to Imperial Palace, emanated from management personnel of the employer corporation
itself.

3
As set forth in Varnum v. Grady, id., there is substantial historical authority for employing this measure of
damages when imposing sanctions for dilatory abuse of appellate procedures. See also Wheeler v. Floral M. &
M. Co., 10 Nev. 200 (1875); Gammans v. Roussell, 14 Nev. 171 (1879); Allen v. Mayberry, 14 Nev. 115
(1879); Escere v. Torre, 14 Nev. 51 (1879); Lehane v. Keyes, 2 Nev. 361 (1867).
____________
102 Nev. 93, 93 (1986) Szekeres v. Robinson
PHYLLIS DIANE SZEKERES; PETER F. SZEKERES; ERICA SZEKERES, APRIL
SZEKERES, SHELLEY SZEKERES and ROBIN SZEKERES, Minors by and
through their Guardian Ad Litem PHYLLIS DIANE SZEKERES, Appellants, v.
WILLIAM ROBINSON, M.D. and PATRICK FLANNAGAN, M.D. and WOMEN'S
HOSPITAL, Respondents.
No. 15115
March 18, 1986 715 P.2d 1076
Appeal from an order dismissing the complaint under NRCP 12 (b); Eighth Judicial
District Court, Clark County; James A. Brennan, Judge.
Action was brought in contract and tort against attending physicians and hospital at which
failed surgical sterilization procedures were performed. The district court dismissed all
claims, and mother, father, daughter, and daughter's brothers and sisters appealed. The
Supreme Court, Springer, J., held that: {1) birth of healthy, although unwanted, child as
result of alleged professional negligence did not result in legally compensable damages in
tort and, thus, did not constitute a civil wrong for which remedy in the form of an action
for damages would be provided, but {2) attending physicians and hospital could be sued,
on contract theory, at least for costs of medical, surgical, and hospital care associated
with the failed surgery.
and mother, father, daughter, and daughter's brothers and sisters appealed. The Supreme
Court, Springer, J., held that: (1) birth of healthy, although unwanted, child as result of
alleged professional negligence did not result in legally compensable damages in tort and,
thus, did not constitute a civil wrong for which remedy in the form of an action for damages
would be provided, but (2) attending physicians and hospital could be sued, on contract
theory, at least for costs of medical, surgical, and hospital care associated with the failed
surgery.
Dominic P. Gentile, Las Vegas, for Appellants.
Keefer, O'Reilly & Haight and Mark E. Ferrario, Las Vegas; Beckley, Singleton, DeLanoy
& Jemison, and Daniel F. Polsenberg, Las Vegas, for Respondents.
1. Physicians and Surgeons.
Birth of healthy, although unwanted, child as result of alleged professional negligence did not result in
legally compensable damages in tort and, thus, did not constitute a civil wrong for which remedy in the
form of an action for damages would be provided; rejecting Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d
568; Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463; Troppi v. Scarf, 31 Mich.App. 240, 187
N.W.2d 511; and Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.).
2. Torts.
Tort liability is part of body of law which is directed toward compensation of individuals for wrongs
which are suffered within scope of their legally recognized interests and for which the law considers that
compensation is properly and morally required.
3. Hospitals; Physicians and Surgeons.
Even though there was no tort liability, attending physicians and hospital could be sued, on contract
theory, at least for costs of medical, surgical, and hospital care associated with the failed surgical
sterilization, which allegedly caused mother to deliver healthy, though unwanted, child, in that it was
certainly within contemplation of the parties that failure to carry out the sterilization procedures in the
manner promised would result in such damages.
OPINION
By the Court, Springer, J.:
This case arises out of a claimed failure of surgical sterilization procedures and the
delivery by Phyllis Szekeres of a normal baby girl, Erica. Phyllis sues on her own behalf and
on behalf of Erica and Erica's brothers and sisters claiming that all have been damaged by
the birth of Erica. The father of Erica, Peter Szekeres, joins the suit and asks for damages
caused by his wife's unavailability during pregnancy.
Szekeres, joins the suit and asks for damages caused by his wife's unavailability during
pregnancy. The Szekereses sue, in both contract and tort, the attending physicians and the
hospital where the surgery was performed. The district court dismissed all claims, and this
appeal ensued.
The district court's orders of dismissal of all tort claims are affirmed on the ground that
one of the essential elements of a negligent tort, namely compensable damages, is not present
in this case. The case is remanded, however, to permit Phyllis and Peter Szekeres to pursue a
breach of contract claim relative to the outcome of the surgery.
TORT LIABILITY
[Headnote 1]
It has been said that a really satisfactory definition of a tort has yet to be found; still, the
definition is offered that [b]roadly speaking, a tort is a civil wrong, other than breach of
contract, for which the court will provide a remedy in form of an action for damages.
Prosser and Keeton on the Law of Torts p. 2, West Publishing Co., (5th ed. 1984). Tort law is
overwhelmingly common law, court-made law, developed in case-by-case decision making
by the courts. Today this court decides that in Nevada the birth of a normal child is not a civil
wrong for which the court will provide a remedy in the form of an action for damages. Even
if negligent or careless conduct were found to have contributed to the eventual birth of Erica,
this event would not give rise to tort liability in negligence. The reason is that a negligence
action may not be maintained unless one has suffered injury or damage, Cannon v. Sears,
Roebuck & Co., 374 N.E.2d 582 (1978), and the birth of a normal healthy child is not
legally compensable damages in tort. Restatement (Second) of Torts, 328A (1965).
1
See
Byrd v. Wesley Medial Center, 699 P.2d 459, 468 (Kan. 1985) (We hold simply that under
the public policy of this state a parent cannot be said to be damaged by the birth of a normal,
healthy child, and the parent may not recover because of the birth of such a child.) This is a
case of first impression in Nevada.
____________________

1
Restatement (Second) of Torts, 328A (1965) provides:
328A. Burden of Proof
In an action for negligence the plaintiff has the burden of proving
(a) facts which give rise to a legal duty on the part of the defendant to conform to the standard of
conduct established by law for the protection of the plaintiff.
(b) failure of the defendant to conform to the standard of conduct,
(c) that such failure is a legal cause of the harm suffered by the plaintiff, and
(d) that the plaintiff has in fact suffered harm of a kind legally compensable by damages.
This is a case of first impression in Nevada. Courts in other jurisdictions have resolved the
issue in a variety of ways. Some have found tort liability present yet have limited damages to
those resulting from the pregnancy and birth while excluding recovery for the cost of rearing
the child. See, e.g., Wilbur v. Kerr, 628 S.W.2d 568 (Ark. 1982). Other jurisdictions have
permitted full tort recovery including economic, physical and emotional costs attendant to the
birth and rearing of the child. See, e.g., Custodio v. Bauer, 251 Cal.App.2d 303, 325, 59
Cal.Rptr. 463, 477 (1967). While a third view is taken by other jurisdictions which permit
recovery but set up complicated computation of damages formulas whereby the trier of fact
must set off what the child costs against what the child is worth, a system which seems to us
as a mercenary approach employing questionable accounting practices. See, e.g., Troppi v.
Scarf, 187 N.W.2d 511, 519 (Mich.App. 1971).
The cases allowing tort recovery have the underlying assumption that the issues involved
are indistinguishable from any other professional negligence case, saying, for example, that
[a]nalytically, such an action is indistinguishable from an ordinary medical negligence
action where a plaintiff alleges that a physician has breached a duty of care owed to him
[or her] with resulting injurious consequences. Where the purpose of the physician's
actions is to prevent conception or birth, elementary justice requires that he [or she] be
held legally responsible for the consequences which have in fact occurred.
Sherlock v. Stillwater Clinic, 260 N.W.2d 169, 174 (Minn. 1977) (citing W. Prosser, Torts
41, 42 (4th Ed. 1971)).
From our point of view what is overlooked in these decisions is the basic question of just
what is the damage or the wrong to be legally redressed.
2
A case involving the birth of a
normal child is analytically distinguishable from an ordinary medical negligence action with
its attendant resulting injurious consequences, such as death, disability or other adverse
iatrogenic consequences; and it should not be facilely assumed that childbirth is a "wrong" or
the type of injurious consequences for which society should, through its courts, as a
matter of public policy, give reparation.
____________________

2
The word tort derives from the past participle, tortus, of the Latin verb torquere, meaning to bend or
twist. What is twisted or not straight became in French tort, a general synonym for wrong. What is wrong or
right, of course, is a matter of moral judgment. The jurisprudence of England from which we derive our own
common law was greatly influenced by the legal philosophies of continental Europe, and accordingly the
common law evolution of negligence. The common law evolution of negligence very much evolved from ideas
of morality taken from these philosophies. What was proper morally should be proper legally; hence, a system
developed which was based on wrongs which resulted from the fault of another. This idea is still properly part of
our jurisprudence.
birth is a wrong or the type of injurious consequences for which society should, through its
courts, as a matter of public policy, give reparation.
Many courts have taken for granted that normal birth is an injurious and damaging
consequence and have disagreed only the how-much part of such claims. We do not take
the wrongness nor the injuriousness of the birth event for granted and say, to the contrary, that
normal birth is not a wrong, it is a right. It is an event which, of itself, is not a legally
compensable injurious consequence even if the birth is partially attributable to the negligent
conduct of someone purporting to be able to prevent the eventuality of childbirth.
3

[Headnote 2]
It has been argued by at least one text writer that Roe v. Wade, 410 U.S. 113 (1973), in
which the United States Supreme Court recognized a constitutionally protected right of a
parent to decide on a first trimester abortion, should constitute a forceful argument against
any decision denying recovery for wrongful birth based on public policy. Dooley, Modern
Tort Law, Callaghan and Company (1982 Revision). We fail to see any forceful argument
contrary to this opinion which emanates from Roe v. Wade. It has also been argued that all
decisions since Roe v. Wade that deny recognition of the action [for birth of a normal child]
are ignoring the Supreme Court rulings regarding the individual's right not to have children.
Holt, Wrongful Pregnancy, 33 S.C.L. Rev. 759, 793 (1982). Even if we were to assume that
our Founding Fathers intended that our Constitution embrace a right not to have children,
as suggested by some writers, we must ask what the consequences of the existence of such a
right would be in the present context. Our refusal to recognize the birth of a normal, healthy
child as a compensable wrong does not in anyway interfere with a person's ostensible right to
avoid conception or, per Roe v. Wade, to abort a fetus in the first trimester. Tort liability is
part of a body of law which is directed toward the compensation of individuals for wrongs
suffered within the scope of their legally recognized interests and where the law considers
that compensation to be properly (and morally) required. Tort obligations are in general
obligations imposed by law on policy considerations to avoid some kind of loss to others.
Prosser and Keeton, above, at 656. Our decision to disallow tort actions for the birth of a
normal child, sometimes called "wrongful birth" actions, does not interfered with
anyone's right to have children or not to have children; it simply holds that one cannot
recover in tort for such an event because the constituent element of a negligence tort,
namely damages, is not present here.
____________________

3
Although there is nothing in this opinion to imply otherwise, we take the trouble to declare that this decision
has nothing to do with ordinary medical malpractice cases in which medical negligence results in birth injuries,
genetic deformities and the like. We deal here only with the rather narrow situation in which professional
negligence is claimed to the cause of the birth of a healthy, although unwanted child.
the birth of a normal child, sometimes called wrongful birth actions, does not interfered
with anyone's right to have children or not to have children; it simply holds that one cannot
recover in tort for such an event because the constituent element of a negligence tort, namely
damages, is not present here.
CONTRACT LIABILITY
[Headnote 3]
The denial of tort liability does not mean that there is no remedy in a case such as this. As
stated above, if a physician or someone else is found to have contracted to prevent a
pregnancy from occurring, certainly it was within the contemplation of the contracting parties
that failure to carry out the process in the manner promised would result in an award, at least,
of the costs of medical, surgical and hospital care associated with the failed surgery. In such a
case damages could be awarded in accordance with what was contemplated by the parties at
the time the contract was made. Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (1854).
We hold here only that the birth of Erica, of itself, is not the basis for a tort action in
negligence and remand it to the district court for consideration of the contract aspect of the
Szekeres claims.
The judgment dismissing all claims is reversed, and the cause is remanded to the district
court to consider the case in a manner consistent with this opinion.
Mowbray, C. J., Gunderson, and Steffen, JJ., and Foley, D. J.
4
concur.
____________________

4
The Honorable Richard Bryan, Governor, designated the Honorable Thomas A. Foley, District Judge of the
Eighth Judicial District, to participate in this case. Nev. Const., art. 6, 4.
____________
102 Nev. 98, 98 (1986) Reno Police Protective Assoc. v. City of Reno
RENO POLICE PROTECTIVE ASSOCIATION and JOSEPH C. BUTTERMAN,
Appellants, v. CITY OF RENO, Respondent.
No. 15980
March 25, 1986 715 P.2d 1321
Appeal from judgment of the district court; Second Judicial District Court, Washoe
County; James J. Guinan, Judge.
Police officer, who was demoted from sergeant to patrolman, appealed decision of
Employee-Management Relations Board finding that his demotion did not violate statutes
relating to local government-employee relations.
government-employee relations. The district court affirmed decision, and police officer
appealed. The Supreme Court held that decision of Board was clearly erroneous.
Reversed.
Patrick D. Dolan, and Paul H. Lamboley, Reno, for Appellants.
Robert L. Van Wagoner, City Attorney; Robert L. Groves, Assistant City Attorney, Reno,
for Respondent.
1. Municipal Corporations.
Police officer has a right under statute [NRS 288.270, subd. 1(a), (c)] providing that it is prohibited
practice for local government employer to interfere with employee's right to engage in union activities or
discriminate with regard to any term or condition of employment, to appeal city's action in demoting him.
2. Labor Relations.
Aggrieved employee must make prima facie showing sufficient to support inference that protected
conduct was motivating factor in employer's decision and once that is established, burden of proof shifts to
employer to demonstrate by preponderance of evidence that same action would have been taken even in the
absence of protected conduct after which aggrieved employee may offer evidence that employer's proffered
legitimate explanation is pretextual and thereby conclusively restore inference of unlawful motivation.
3. Labor Relations.
Employee-management Relations Board's decision that demotion of police officer from sergeant to
patrolman did not violate statutes [NRS 288.010 et seq.] relating to local government-employee relations
was clearly erroneous, although city contended that demotion was justified by officer's cancelling case
numbers assigned criminal report and failing to inform immediate supervisor that victim wished to file
criminal complaint, where it was not unusual to remove case numbers from criminal reports and victim was
never denied opportunity to file criminal complaint.
OPINION
Per Curiam:
Joseph C. Butterman appeals the district court's decision affirming that portion of the
Employee-Management Relations Board's (EMRB) decision finding that Butterman's
demotion from sergeant to patrolman did not violate NRS ch. 288. We reverse.
Butterman was a police officer in the Reno Police Department since September 2, 1971.
On March 3, 1980, the Department promoted him to the rank of sergeant. His status as a
promotional probationary sergeant was one year. At all times relevant to this appeal,
Butterman was a member and the president of the Reno Police Protective Association
{RPPA).1
appeal, Butterman was a member and the president of the Reno Police Protective Association
(RPPA).
1

1. On May 30, 1980, the City Manager demoted Butterman from sergeant to patrolman.
Butterman's demotion was based upon his alleged mishandling of an investigation of a May
4, 1980 incident at a bar in Reno. The incident involved an off-duty policeman who hit a
patron. The City disciplined the other probationary officers who were involved in the
incident. The other three officers, including Butterman's immediate supervisor, were
suspended for either three or twenty days without pay. Butterman was the only officer who
was demoted.
Butterman and the RPPA filed concurrent actions with the district court and the EMRB.
2
Butterman claimed that the City's action constituted an unfair labor practice and violated NRS
288.270(1)(a), (c) and (f).
3
With respect to Butterman's claim, the district court deferred to
the EMRB's jurisdiction for initial action, but reserved jurisdiction to review the EMRB
decision.
____________________

1
The RPPA is the local government employee organization which is the exclusive bargaining representative
of certain bargaining units in the Reno Police Department. As president of the RPPA, Butterman engaged in
collective bargaining negotiations with the City for the fiscal year 1980-1981. Since January, 1980, he was a
member of the negotiating committee of the RPPA. Negotiations with the City grew difficult and strained in the
spring of 1980. Beginning in March, 1980, there were discussions of the RPPA affiliating with Teamsters Local
No. 955. Apparently, the City was strongly opposed to this association, as the Chief of Police commented on TV
that he thought the RPPA was smarter than to affiliate with the teamsters. On May 29, 1980, Butterman publicly
expressed strong views in support of RPPA's demands, including statements critical of the policies and
administration of the City and of the Reno Police Department.

2
The RPPA's action against the City was also for violation of NRS ch. 288. The RPPA contended that the
City unlawfully refused to bargain in good faith and participate in advisory fact-finding. The district court
granted the RPPA injunctive relief and ordered the City to participate in advisory fact-finding. The EMRB also
found that the City's conduct violated NRS 288.200 and NRS 288.270(1)(e) and constituted an unfair labor
practice. This portion of the EMRB decision and the district court's decision was not appealed.

3
NRS 288.270 provides in relevant part:
1. It is prohibited practice for a local government employer or its designated representative willfully
to:
(a) Interfere, restrain or coerce any employee in the exercise of any right guaranteed under this
chapter.
* * *
(c) Discriminate in regard to hiring, tenure or any term or condition of employment to encourage or
discourage membership in any employee organization.
* * *
(f) Discriminate because of race, color, religion, sex, age, physical or visual handicap, national origin
or because of political or personal reasons or affiliations.
The EMRB held that the City's action did not constitute an unfair labor practice and upheld
the City's demotion of Butterman.
Butterman filed a Request for Judicial Review of this part of the EMRB's decision.
Butterman also filed an amended complaint in the district court alleging statutory and
constitutional violations of his rights which were not considered by the EMRB. The district
court granted the City's motion to dismiss this first amended complaint. Finding that there
was substantial evidence to support the EMRB's decision, the district court upheld that
decision. Butterman appeals these decisions.
[Headnote 1]
2. As a threshold matter, we reject the City's contention that as a probationary employee
Butterman has no right to appeal the City's action. The City relies upon the Reno City Charter
and the Reno Civil Service Commission Rules and Regulations for this proposition.
NRS 288.270(1)(a) and (c) provide that it is a prohibited practice for a local government
employer to interfere with an employee's right to engage in union activities or discriminate
with regard to any term or condition of employment. NRS ch. 288 permits an aggrieved
employee to challenge the propriety of the local governmental employer's action before the
EMRB. Where there is a conflict between a general law enacted by the legislature and a
charter provision, the general law is superior and supersedes the charter provision. City of
Reno v. Reno Police Prot. Ass'n, 98 Nev. 472, 653 P.2d 156 (1982). Butterman has a right to
appeal the City's action pursuant to NRS ch. 288.
3. Butterman contends that the EMRB's decision is not supported by the record and is
therefore clearly erroneous, Butterman argues that even if the EMRB's findings are accepted
as true, that the City's reason for the disparate treatment are neither significant nor substantial
under any criteria. Butterman claims that the City's grounds for demoting him do not pass the
test of reasonableness in light of the factual circumstances and protected rights at issue in this
case. We agree.
[Headnotes 2, 3]
An aggrieved employee must make a prima facie showing sufficient to support the
inference that protected conduct was a motivating factor in the employer's decision. See,
N.L.R.B. v. Transportation Management Corp., 462 U.S. 393 (1983). Once this is established,
the burden of proof shifts to the employer to demonstrate by a preponderance of the evidence
that the same action would have taken place even in the absence of the protected conduct. Id.
The aggrieved employee may then offer evidence that the employer's proffered legitimate
explanation is pretextual and thereby conclusively restore the inference of unlawful
motivation.
pretextual and thereby conclusively restore the inference of unlawful motivation. N.L.R.B. v.
United Sanitation Service, 737 F.2d 936 (11th Cir. 1984). Under the Reno City Charter and
Civil Service Commission Rule IX, Section 3 a promotional probationary employee, such as
Butterman, may only be demoted upon a showing of unsatisfactory performance, i.e., for
cause.
The City advanced the following reason to justify Butterman's demotion arising from the
incident at the bar: specifically, that Butterman had cancelled a case number assigned to a
criminal report and that he had failed to inform his immediate supervisor that the victim
wished to file a criminal complaint. There was testimony adduced that it was not unusual to
remove a case number from a criminal report. The record shows that Butterman informed his
immediate supervisor that he had cancelled the case number. The record also reveals that
there was no established operating procedure in such situations.
The victim was never denied the opportunity to file a criminal complaint. Butterman's
actions did not prejudice the victim's ability to file a criminal complaint. Overall, the EMRB
found that this was a unique incident in which proper police procedures were unclear and
not agreed upon.
Two days prior to his demotion, Butterman had received an exemplary job performance
evaluation that stated his performance as sergeant since his promotion was above average
in almost all respects. The City failed to demonstrate that Butterman's job performance was
unsatisfactory and that the City demoted Butterman for a legitimate business reason. We
conclude that the City failed to meet its burden of proof.
We therefore find that the EMRB's decision is clearly erroneous. See, Apeceche v. White
Pine Co., 96 Nev. 723, 615 P.2d 975 (1980). We also find that the district court's decision
upholding the challenged portion of the EMRB's decision is also clearly erroneous.
We reverse the judgment of the district court and remand with instructions that Butterman
be reinstated to the rank of sergeant and that he receive all salary and emoluments, including
pension rights, due him from May 30, 1980 to the date of his reinstatement. This award shall
be offset by the salary and emoluments Butterman has already received during this period.
4

____________________

4
Our decision here renders moot Butterman's concurrent action in the district court. Therefore, we need not
address those assignments of error relating to that action raised on appeal.
____________
102 Nev. 103, 103 (1986) Bradley v. Romeo
MARTHA BRADLEY, Appellant, v. DONALD J. ROMEO, M.D., UNITED PACIFIC
VENTURES, INC. dba AMERICAN AMBULANCE, Respondents.
No. 16228
March 25, 1986 716 P.2d 227
Appeal from judgment of dismissal in action for enforcement of promissory note; Eighth
Judicial District Court, Clark County; James Brennan, Judge.
Individual, who had lent money to corporation, brought action against individual who had
subsequently signed promissory note to guarantee corporate debt. The district court denied
enforcement based on finding that individual received no consideration for the note.
Administratrix of plaintiff's estate appealed. The Supreme Court held that payor on
promissory note was personally obligated and parol evidence of representative capacity was
not admissible, even between immediate parties, where note neither named corporate debtor,
nor indicated that individual payor signed on behalf of corporate debtor.
Reversed.
[Rehearing denied May 28, 1986]
Burris & Thomas, Las Vegas, for Appellant.
Dennis M. Sabbath and Kevin B. Christensen, Las Vegas, for Respondent Donald J.
Romeo, M.D.
Brown, Wells, Beller & Kravitz and Harry P. Marquis, Las Vegas, for Respondent United
Pacific Ventures, Inc., dba American Ambulance.
1. Bills and Notes.
Under NRS 104.3408, governing consideration for note, antecedent debt flowing to third party is
sufficient consideration to support liability on promissory note. U.C.C. 3-408, 3-408 comment.
Supreme Court may consider relevant issues sua sponte in order to prevent plain error, such as where
statute which is clearly controlling was not applied by trial court.
3. Evidence.
Payor on promissory note was personally obligated and parol evidence of representative capacity was not
admissible, even between immediate parties, where note neither named corporate debtor, nor indicated that
individual payor signed on behalf of corporate debtor. U.C.C. 31403(2)(a), (b).
4. Alteration of Instruments.
Fact that promissory note was separate document executed in transaction subsequent to loan to
corporation which was evidenced by check, precluded finding that enforcement of note was
barred under NRS 104.3407 or NRS 104.3119, governing, respectively, alteration of
check, and other writings affecting instrument.
precluded finding that enforcement of note was barred under NRS 104.3407 or NRS 104.3119,
governing, respectively, alteration of check, and other writings affecting instrument.
Supreme Court would not order new trial to give payor of promissory note second chance to prove
defenses that note might have been discharged by impairment of collateral, or partial payment, where he
failed to present any evidence to support such defense at trial. NRS 104.3606, subd. 1.
6. Bills and Notes.
Payor, who individually signed promissory note to guarantee preexisting corporate debt, which note
neither named corporate debtor nor indicated that payor signed in representative capacity, was personally
liable on that note.
OPINION
Per Curiam:
The issue presented is whether one who individually signs a promissory note to guarantee
a preexisting corporate debt is personally liable on that note. Our examination of the relevant
statutes reveals that there is liability. Accordingly, we reverse.
On February 14, 1980, Chester Ham
1
loaned $15,000 to United Pacific Ventures, Inc. dba
American Ambulance (American). Although the check was made out to Donald Romeo (a
shareholder in American), the trial court found that the loan was made to American rather
than to Romeo personally.
2
Several months later Romeo and Ryan Johnson, who is the
president and principal shareholder of American, signed a promissory note in the amount of
$15,000, plus interest, in favor of Ham. The note does not indicate that either of the
signatures was made in a representative capacity, and no company or corporate name appears
on the face of the note. Both American and Johnson subsequently filed for bankruptcy, and
Ham brought this action against Romeo to enforce the note.
The district court denied enforcement based on a finding that Romeo received no
consideration for the note. This result is contrary to NRS 104.3408 (UCC 3-408).
Consideration. Want or failure of consideration is a defense as against any person
not having the rights of a holder in due course (NRS 104.3305), except that no
consideration is necessary for an instrument or obligation thereon given in payment
of or as security for an antecedent obligation of any kind.
____________________

1
Ham died on August 27, 1985. This appeal is being prosecuted by Martha Bradley, the administratrix of
Ham's estate.

2
After the check was negotiated, Ham inserted the words personal loan on the face of the check. The trial
court held that this was done in order to bolster Ham's claim against Romeo.
eration is necessary for an instrument or obligation thereon given in payment of or as
security for an antecedent obligation of any kind.
(Emphasis added.)
[Headnote 1]
Under that statute, antecedent debt flowing to a third party is sufficient consideration to
support liability on a promissory note. See, e.g., UCC 3-408, comment 2;
3
Farmers & Merc.
Ntl. Bank of Hatton v. Lee, 333 N.W.2d 792 (N.D. 1983).
[Headnote 2]
Romeo urges this court to disregard NRS 104.3408 because the question of its
applicability was raised for the first time by this court. The ability of this court to consider
relevant issues sua sponte in order to prevent plain error is well established. See, e.g.,
Western Indus., Inc. v. General Ins. Co., 91 Nev. 222, 230, 533 P.2d 473, 478 (1975). Such is
the case where a statute which is clearly controlling was not applied by the trial court.
Romeo requests a new trial to present additional defenses to enforcement of the note.
However, an examination of the defenses relied upon reveals that they either lack merit as a
matter of law or have been waived due to Romeo's failure to pursue them at trial.
The contention that Romeo did not intend to be personally liable on the note can be
dispensed with by examining NRS 104.3403 (UCC 3-403). That statute provides, in relevant
part:
2. An authorized representative who signs his own name to an instrument:
(a) Is personally obligated if the instrument neither names the person
represented nor shows that the representative signed in a representative capacity.
(b) Except as otherwise established between the immediate parties, is personally
obligated if the instrument names the person represented but does not show that the
representative signed in a representative capacity, or if the instrument does not name
the person represented but does show that the representative signed in a representative
capacity.
____________________

3
UCC 3-408, comment 2 provides, in relevant part:
The except clause is intended to remove the difficulties which have arisen where a note or a draft,
or an indorsement of either, is given as payment or as security for a debt already owed by the party
giving it, or by a third person. The provision is intended to change the result of decisions holding that
where no extension of time or other concession is given by the creditor the new obligation fails for lack
of legal consideration.
(Emphasis added.)
[Headnote 3]
Romeo argues that since this action involves the immediate parties, he is entitled under
3-403(2)(b) to demonstrate his intent to sign in a representative capacity only. However,
3-403(2)(b) applies only where the instrument names the person represented or shows that the
signature is in a representative capacity. Since the note neither names American nor indicates
that Romeo signed on behalf of American, Romeo is personally obligated by virtue of
3-403(2)(a) and parol evidence of representative capacity is not admissible, even between the
immediate parties. E.g., Schwartz v. Disneyland Vista Records, 383 So.2d 1117, 1119-20
(Fla.App. 1980) (no parol evidence even though payee intended obligation from corporation);
Bostwick Banking Company v. Arnold, 178 S.E.2d 890, 893 (Ga. 1970) (One who executes
a note in his own name with nothing on the face of the note showing his agency cannot
introduce parol evidence to show that he executed it for a principal, or that the payee knew
that he intended to execute it as an agent.); K-Ross Bldg. Sup. Ctr. v. Winnipesaukee
Chalets, 432 A.2d 8, 11 (N.H. 1981); Mid-America Real Estate & Inv. Corp. v. Lund, 353
N.W.2d 286, 288-89 (N.D. 1984). See also J. White & R. Summers, Handbook of the Law
Under the Uniform Commercial Code 13-4, at 493 (2d ed. 1980) (Even if the person
taking the instrument knows that the agent is signing in a representative capacity, the agent
cannot introduce parol evidence to show that his signature was made for another.).
Because the note neither names American nor indicates that Romeo signed in a
representative capacity, he is personally obligated as a matter of law.
[Headnotes 4, 5]
Romeo also contends that Ham's insertion of the words personal loan on the face of the
check can bar enforcement of the promissory note executed months later. The fact that the
note was a separate document executed in a subsequent transaction precludes a finding that
enforcement is barred under NRS 104.3407 or 104.3119. Neither does the earlier alteration or
Ham's testimony that the loan was made to Romeo rather than to American justify
cancellation of the note due to lack of good faith under NRS 104.1203. Accord, see Bill's
Coal Co. v. Board of Public Utilities, etc., 682 F.2d 883 (10th Cir. 1982), holding that a
party's bad faith in urging an interpretation of a contract provision contrary to the parties'
original intent could not serve as the basis for cancellation of the contract.
[Headnote 6]
Regarding Romeo's claim that the note may have been discharged by impairment of
collateral (NRS 104.3606(1) or partial payment, it should be noted that these questions
were in issue when the matter was tried below.
payment, it should be noted that these questions were in issue when the matter was tried
below. Since Romeo failed to present any evidence to support these defenses, we are not
inclined to order a new trial to give Romeo a second chance to prove his case. See, e.g., Snow
v. Pioneer Title Ins. Co., 84 Nev. 480, 487, 444 P.2d 125, 129 (1968) (appellant not entitled
to new trial in order to call witness where he did not consider witness's testimony important
under theory presented at first trial).
Romeo chose to guarantee an antecedent corporate debt by signing his name to a
promissory note. The promise is enforceable. We therefore reverse and order that judgment
be entered for appellant.
____________
102 Nev. 107, 107 (1986) Portal Enterprises, Inc. v. Cahoon
PORTAL ENTERPRISES, INC., A Nevada Corporation, Appellant and Cross-Respondent, v.
HOWARD W. CAHOON, dba CAHOON INVESTMENTS, a Utah Partnership,
HOWARD CAHOON, a General Partnership, Respondents and Cross-Appellants.
No. 16304
March 25, 1986 715 P.2d 1324
Appeal and cross-appeal from judgment of district court; Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
Lessee brought action for constructive eviction, and lessor counterclaimed for breach of
lease agreement. The district court found in favor of lessor. Lessee appealed. The Supreme
Court held that: (1) lessor constructively evicted lessee by failing to correct water quality
deficiencies that led to county health district's order to cease operation of theatre, and (2)
lessee avoided waiver of right to claim constructive eviction by surrender of premises within
reasonable time.
David Goldwater, Ltd. and Gary E. Schnitzer, Las Vegas, for Appellant and
Cross-Respondent.
Wiener, Waldman & Gordon and Robert J. Gower, Las Vegas, for Respondents and
Cross-Appellants.
1. Landlord and Tenant.
Substantial nature of repairs needed to correct water quality deficiencies and comply with order of county
health district, five year duration of lease, nineteen month remainder of lease term, and
absence of parties' contemplation of repairs at time of execution of lease created
duty in lessor to correct deficiencies.
duration of lease, nineteen month remainder of lease term, and absence of parties' contemplation of repairs
at time of execution of lease created duty in lessor to correct deficiencies.
Lessor's failure to perform repairs to correct water quality deficiencies and comply with order of county
health district constituted constructive eviction of lessee when county health district ordered theatre to
close.
Lessee did not waive its right to claim constructive eviction where lessee vacated premises within
reasonable time after county health district's order to improve water quality or cease operations but before
order to cease operation of theatre, even though lessee remained at property after earlier notice of water
quality deficiencies.
OPINION
Per Curiam:
The issue presented is whether Portal Enterprises, Inc., appellant-lessee of the Skyway
Drive-In Theatre (Theatre) in Clark County, was constructively evicted from the Theatre
when the Clark County Health District ordered the leased premises closed because the lessor,
respondents herein, failed to bring the Theatre's water quality up to state secondary standards.
The appellant-lessee commenced this action by filing a constructive eviction complaint for
damages. The respondent-lessor counterclaimed, contending that the lessee breached the lease
agreement. The district court held that the lessee had waited an unreasonable time before
electing to claim constructive eviction. The court found in favor of the lessor's counterclaim
and awarded damages. We hold that the district court erred and reverse.
1. The State of Nevada, Department of Health, first notified the lessee of the Theatre's
water quality deficiencies during the first year of its lease, 1977-1978. In early 1979 the
Department of Health notified the lessee that the water quality would have to be corrected to
comply with state secondary standards. The lessee obtained a one-year variance. In mid-1980
the lessee's request for an extension of the variance for a second year was denied. Not until
the fall of 1980 did the Clark County Health District issue its order to either bring the water
quality up to standard by December 31, 1980, or cease operations.
During this period the lessor was aware that improvements to the Theatre's water system
were necessary. The lessor refused to take any action to remedy the problem.
2. On appeal, the lessor contends that there was no constructive eviction. The lessor argues
that under the lease agreement the lessee had the duty to make the improvements ordered by
the public authorities.
[Headnotes 1, 2]
If repairs ordered by a public authority are substantial, or structural in nature, such that
they could not have been contemplated by the parties when the lease was executed, the lessor,
not the lessee, is responsible for making them. Polk v. Armstrong, 91 Nev. 557, 540 P.2d 96
(1975). The reason for the rule is that any alteration or repair ordered by a public authority
would ordinarily be outside the tenant's common law duty to repair, and the expenses of
compliance would more properly be regarded either as capital expenditures or as necessary
carrying charges to be paid out of rent. Id. For a lessee to make structural repairs that would
revert to the benefit of the lessor would be inequitable. Id. The Theatre's sole source of water
was a water well located in the basement of the leased premises. Possible methods to correct
the water quality included installation of a reverse osmosis plant, connection with the water
district, or sinking a deeper well. The cost of any of these methods was substantial. The lease
was for a short duration, five years. At the time of the Theatre's closure only nineteen months
of the lease remained. The improvements were necessary to the continued operation of the
Theatre. The benefit of the expenditure reverted to the lessor. We conclude that the repairs
were substantial and not within the contemplation of the parties. See, Polk at p. 561. The
lessor had the duty to make the necessary improvements pursuant to the County's order.
Failure of the landlord to perform the government-ordered alterations constituted a
constructive eviction. See, Polk at p. 562; Scott v. Prazma, 555 P.2d 571 (Wyo. 1976);
Magnolia Warehouses v. Morton Realty Co., 117 S.E.2d 552 (Ga. 1960).
[Headnote 3]
3. We next consider whether the lessee waived its right to claim constructive eviction by
not promptly surrendering the premises. The district court found that despite notice to the
lessee in early 1979 of the water quality deficiencies, the lessee did not choose to elect to
terminate the lease until December 31, 1980. The district court found that the lessee's
termination was not within a reasonable time and that the lessee waived its right to claim
constructive eviction. The lessee argues on appeal that under the facts of this case there is no
evidence in the record to support the district court's selection of early 1979 as the time the
constructive eviction occurred. We agree.
When a constructive eviction occurs, the tenant must elect to treat such interference as an
eviction, and surrender the premises within a reasonable time. Baker v. Simonds, 79 Nev.
434, 386 P.2d 86 (1963). The lessee terminated its lease and vacated the premises within a
reasonable time. The County issued its order in the fall of 1980. The lessee vacated the
premises and terminated its lease on December 31, 19S0.
its lease on December 31, 1980. On January 1, 1981, the County ordered the Theatre to cease
operations until the water quality was brought up to standard. Thus, the lessee in the instant
case acted promptly and did not waive its right to claim constructive eviction.
We, therefore, reverse the judgment of the district court. We remand the instructions to the
district court to conduct proceedings to determine the damages due, if any, appellant-lessee.
1

____________________

1
Our decision in this matter renders meritless the respondent-lessor's cross-appeal.
____________
102 Nev. 110, 110 (1986) Smith v. Smith
PATSY K. SMITH, Appellant, v.
JAY N. SMITH, Respondent.
No. 16662
March 25, 1986 716 P.2d 229
Appeal from judgment denying motion to set aside a decree of divorce. Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
Former wife filed motion to set aside decree of divorce. The district court denied the
motion. Former wife appealed. The Supreme Court held that district court had no evidence
upon which to base denial of former wife's motion to set aside decree of divorce, on ground
that, two days before divorce decree was entered, former husband had physically abused
former wife until she agreed to sign papers necessary to obtain divorce, which ground was
asserted by former wife in affidavit and corroborated by couple's daughter.
Edward Marshall, Las Vegas, for Appellant.
George Frame, Las Vegas, for Respondent.
When party seeks to set aside judgment pursuant to NRCP 60(b), governing relief from judgment,
decision of district court will be affirmed if there is sufficient evidence contained in record to support that
decision. (NRCP 60 (b), (b)(2).
2. Divorce.
District court had no evidence upon which to base denial of former wife's motion to set aside decree of
divorce, on ground that, two days before divorce decree was entered, former husband had physically
abused former wife until she agreed to sign papers necessary to obtain divorce,
which ground was asserted by former wife in affidavit and corroborated by couple's
daughter.
102 Nev. 110, 111 (1986) Smith v. Smith
abused former wife until she agreed to sign papers necessary to obtain divorce, which ground was asserted
by former wife in affidavit and corroborated by couple's daughter.
OPINION
Per Curiam:
This is an appeal from a judgment denying Patsy Smith's (Patsy) motion to set aside a
decree of divorce entered on May 11, 1984. Because we have concluded that the district court
erred in denying Patsy's motion, we reverse the decision and remand this case to the district
court for further proceedings in accordance with this opinion.
On May 10, 1984, Jay Smith (Jay) filed for divorce. Patsy answered on the same day in
proper person. On May 11, 1984 that divorce was granted. Of the parties' extensive
community property holdings, Patsy was awarded as her sole and separate property the
parties' Las Vegas home, two vehicles, one acre of land located in Utah, and her personal
effects and clothing.
1
Patsy also received $50,000 in alimony.
On November 8, 1984, Patsy moved to set aside the decree of divorce pursuant to NRCP
60(b)(2). NRCP 60(b) provides in pertinent part:
(b) On motion and upon such terms as are just, the court may relieve a party or his
legal representative from a final judgment, order, or proceeding for the following
reasons:
. . . (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation
or other misconduct of an adverse party which would have theretofore justified a court
in sustaining a collateral attack upon the judgment . . . .
In the affidavit supporting her motion, Patsy alleged that Jay had come home two days before
the divorce decree was entered and had physically abused her until she agreed to sign the
papers necessary to obtain a divorce. This was corroborated by Patsy and Jay's daughter,
Mika. Jay did not deny that this abusive incident occurred.
[Headnote 1]
When a party seeks to set aside a judgment pursuant to Rule 60(b), the decision of the
district court will be affirmed if there is sufficient evidence contained in the record to
support that decision.
____________________

1
Patsy estimated that the parties' community property holdings total approximately 1.2 million dollars. Based
on Patsy's figures, she received only approximately 15 percent of the community property. Although Jay
contended that Patsy's list of community property was inaccurate and outdated, he did not provide any accurate
and current information.
102 Nev. 110, 112 (1986) Smith v. Smith
sufficient evidence contained in the record to support that decision. See Westside Chtr. Serv.
v. Gray Line Tours, 99 Nev. 456, 644 P.2d 351 (1983); Norris v. Phillips, 86 Nev. 619, 472
P.2d 347 (1970).
[Headnote 2]
There is no evidence contained in the record to contradict Patsy's and Mika's versions of
the events prior to the entry of the divorce decree. Jay simply denied that the division of
property was obtained as the result of any threats of bodily harm. Clearly, no threats were
used to obtain Patsy's signature on the required documents while in attorney George Frame's
office; however, no evidence exists to contradict Patsy's account of the beating that she
received the day prior to going to Mr. Frame's office. Because there is no evidence to
contradict Patsy's allegations, the district court had no evidence upon which to base a denial
of Patsy's motion.
Therefore, for the above reasons, we reverse the decision of the district court denying
Patsy's motion, and we remand this case to the district court so that the extent of the parties'
community property may be ascertained and divided justly and equitably pursuant to NRS
125.150.
2

____________________

2
1. In granting a divorce, the court:
. . .
(b) Shall make such disposition of:
(1) The community property of the parties . . . as appears just and equitable, having regard to the
respective merits of the parties and to the condition in which they will be left by the divorce, and to the
party through whom the property was acquired, and to the burdens, if any, imposed upon it, for the
benefit of the children.
____________
102 Nev. 112, 112 (1986) Kroeger Properties v. Silver State Title
KROEGER PROPERTIES & DEVELOPMENT, INC., a Nevada Corporation, KROEGER
PROPERTIES, INC., a California Corporation; HENRY KROEGER and KATHRYN
KROEGER, Husband and Wife, Appellants, v. SILVER STATE TITLE COMPANY,
a Nevada Corporation, Respondent.
No. 16047
March 28, 1986 715 P.2d 1328
Appeal from order granting a new trial. Ninth Judicial District Court, Douglas County;
Norman C. Robison, Judge.
Property owners brought action against title company for violation of escrow agreement.
Following jury verdict awarding owners $3,100,000, the district court denied title company's
motion for judgment notwithstanding the verdict, but granted title company's motion for
new trial, based on insufficiency of evidence, and owners appealed.
motion for judgment notwithstanding the verdict, but granted title company's motion for new
trial, based on insufficiency of evidence, and owners appealed. The Supreme Court held that
document reciting that development agreement contemplated by escrow contract had been
entered into did not render jury's verdict for property owners manifestly and palpably contrary
to evidence so as to authorize new trial.
Reversed.
Joseph I. Cronin, Minden, for Appellants.
Manoukian, Scarpello & Alling, Carson City; Richard Glasson, Zephyr Cove; and Michael
R. Specchio, Reno, for Respondent.
1. New Trial.
Plain error or manifest injustice exception to NRCP 59, eliminating insufficiency of evidence as ground
for granting new trial, must be strictly construed.
2. Vendor and Purchaser.
In determining whether developer and finance company entered into development agreement which was
condition precedent to title company's conveyance of owners' property under escrow agreement, fact that
title company did not even possess copy of alleged development agreement was strong circumstantial
evidence of nonexistence of development agreement.
3. New Trial.
Document reciting that development agreement had been entered into did not render jury's verdict for
property owners manifestly and palpably contrary to evidence so as to authorize new trial in owners' action
against title company for breach of escrow agreement requiring that developer and finance company enter
into development agreement by certain date before title company could convey owners' properties, where
there was no copy of development agreement, title company deeded out bulk of properties one to three
months after date specified in escrow agreement and title company did not notify owners of conveyances.
NRCP 59.
OPINION
Per Curiam:
In this breach of contract action, the jury found that respondent, Silver State Title
Company, violated an escrow agreement by conveying appellants' properties. We are faced
with the question of whether the trial court erred in ordering a new trial based on
insufficiency of the evidence, where the court found that the evidence was not so
overwhelming as to justify granting judgment notwithstanding the verdict. We hold that such
order was erroneous, and reverse with instructions to reinstate the jury verdict.
Prior to January 18, 1978, Mr. Kroeger discussed with Ferdi Sievers the possibility of
developing certain properties in the Lake Tahoe area. Sievers stated that Gura Nevada, Inc.
might be willing to finance the project, but that the company wished to deal directly with
Sievers. It was agreed that Kroeger and Sievers (and related persons and entities) would
contribute properties which would be placed in escrow pending the outcome of negotiations
between Sievers and Gura Nevada, Inc. On January 18, 1978, appellants, Kroeger Properties
& Development, Inc., Kroeger Properties, Inc., Henry Kroeger and Kathryn Kroeger (the
Kroegers), entered into an escrow contract with respondent, Silver State Title Company
(Silver State). The contract provided that if Ferdi Sievers and Gura Nevada, Inc. entered into
a written agreement for the development of the properties by February 28, 1978 (or within 60
days thereafter, if Gura Nevada, Inc. opted to extend the time), Silver State was to convey the
properties in accordance with the terms of that agreement. If no such agreement was
forthcoming, Silver State was to return the properties to the original owners. Silver State
conveyed the properties to Tahoe Nevada, Inc. (a limited partnership between Ferdi Sievers
and another limited partnership of which Roman Gura, individually, was a partner) between
May 26, 1978 and February 21, 1979.
The Kroegers' contention was that Sievers and Gura Nevada, Inc. did not enter into the
development agreement, and therefore the conveyance of the Kroegers' properties to a third
party was in breach of the escrow contract. The jury agreed, awarding the Kroegers
$3,100,000.
[Headnote 1]
Silver State moved for judgment notwithstanding the verdict or, in the alternative, for a
new trial. The trial court concluded that the facts and inferences are not sufficiently
overwhelming in favor of the defendant to justify judgment non obstante verdicto. However,
the court granted a new trial based on the failure of plaintiff to meet the burden of
disproving the existence of the Sievers-Gura Nevada, Inc. agreement. This amounts to
granting a new trial based on insufficiency of the evidence. In 1969 this court amended
NRCP 59 to eliminate insufficiency of the evidence as a ground for granting a new trial.
Although an exception has been recognized where there is plain error or manifest injustice
(Price v. Sinnott, 85 Nev. 600, 607, 460 P.2d 837, 841 (1969); Rees v. Roderiques, 101 Nev.
302, 701 P.2d 1017 (1985)), this exception will be strictly construed.
In order to find manifest injustice a case must be presented where the verdict or decision
strikes the mind, at first blush, as manifestly and palpably contrary to the evidence . . . .
Price, 85 Nev. at 60S, 460 P.2d at S42 {citations omitted); see also Amundsen v. Ohio
Brass Co., S9 Nev. 37S, 3S1
Nev. at 608, 460 P.2d at 842 (citations omitted); see also Amundsen v. Ohio Brass Co., 89
Nev. 378, 381, 513 P.2d 1234, 1236 (1973) (standard not met). The fact that the weight of
the evidence . . . may have been against the verdict returned in the view of the trial judge,
does not invest him with authority to order that the cause be tried again. Fox v. Cusick, 91
Nev. 218, 221, 533 P.2d 466, 468 (1975).
[Headnotes 2, 3]
We cannot say in this case that a new trial was warranted. The key issue was whether
Sievers and Gura Nevada, Inc. did enter into the development agreement. The fact that Silver
State did not possess even a copy of such an agreement is strong circumstantial evidence of
its non-existence. There was testimony by James Owens,
1
the president of Silver State, that
he conveyed the properties in reliance on a limited partnership agreement which created
Tahoe Nevada Properties. (This document did not involve Gura Nevada, Inc. and did not
mention the properties or development of any properties.) It was undisputed that Silver State
deeded out the bulk of the properties one to three months after the date specified in the
escrow agreement.
2
It was also undisputed that Silver State did not notify the Kroegers of the
conveyances, even though Mr. Kroeger was in contact with Silver State several times a month
during the time the property was being conveyed. In fact, the Kroegers contacted Silver State
on August 25, 1978, to express their concern that the properties might be conveyed even
though no development agreement had been reached. An officer of Silver State prepared a
written instruction forbidding conveyance of their properties by Silver State. Silver State
failed to inform the Kroegers that the bulk of the property had already been conveyed and
went on to convey the remaining property almost six months later, on February 21, 1979. All
of these factors support the jury's finding that Silver State breached the escrow contract.
____________________

1
Owens' testimony concerning the existence of such a development agreement was vague and contradictory.
He testified at various times that he didn't believe he had seen such an agreement prior to conveying the
properties, that he didn't recall whether he had seen an agreement, that he believed he had seen an agreement,
and that he didn't know how many pages the agreement was or where he had seen it.

2
The escrow contract specified that the written development agreement had to be reached by February 28,
1978; however, Gura Nevada, Inc. had an option to extend that date by 60 days. Although Silver State produced
an Exercise of Option extending the time, Owens testified that Silver State did not possess a copy of that
document at the time the properties were conveyed.
Although there was some evidence that a development agreement had been executed,
3
the
jury was entitled to disbelieve it. See, e.g., Fox v. Cusick, 91 Nev. at 221, 533 P.2d at 468;
Ewing v. Sargent, 87 Nev. 74, 78, 482 P.2d 819, 822 (1971). In light of the conflicting nature
of the evidence, it cannot be said that the verdict was manifestly and palpably contrary to the
evidence. Therefore the trial court erred in granting a new trial.
The order is reversed, with instructions to enter judgment according to the verdict.
____________________

3
A document entitled DECLARATION OF COMPLIANCE WITH AGREEMENT OF JANUARY 18,
1978 was introduced. That document, signed in April of 1979 by Ferdi Sievers and a representative of Gura
Nevada, Inc., recited that the development agreement contemplated by the escrow contract was entered into on
February 28, 1978.
____________
102 Nev. 116, 116 (1986) EG & G Special Projects v. Corselli
EG & G SPECIAL PROJECTS, INC. and STATE INDUSTRIAL INSURANCE SYSTEM,
Appellants, v. JAMES CORSELLI, Respondent.
No. 16543
March 28, 1986 715 P.2d 1326
Appeal from a judgment affirming the decision of an administrative appeals officer;
Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge.
State Industrial Insurance System terminated employee's rehabilitation and maintenance
benefits after employee wrote employer asking whether employer would be willing to
consider alternatives to light duty job employer had offered employee, and employee
appealed. The appeals officer ordered reinstatement of maintenance benefits, and employer
and System appealed. The district court affirmed, and employee and System appealed. The
Supreme Court held that job offer which required employee who had worked, for past
twenty-five years, three days on at Nevada test site, with four days off at his home in
California, to be present five days per week in Nevada, was unreasonable, and thus, employee
was entitled to reinstatement of maintenance benefits.
Affirmed.
Jerry Collier Lane, Las Vegas; Darla A. Anderson, Las Vegas; Pam Bugge, Carson City,
for Appellants.
State Industrial Insurance System has responsibility to facilitate return of injured worker to gainful
employment. NRS 616.222, subd. 1.
Purpose of State Industrial Insurance System regulation permitting injured worker to refuse offer of
employment in cases where insurer finds that offer is demeaning, degrading or embarrassing or finds that
salary is less than would be received under disability or by other employees doing similar work, is to
require employer to make legitimate offer of employment. NRS 616.222, subd 1.
Offer of employment made to injured worker cannot be considered legitimate, for purposes of regulation
requiring employer to make legitimate offer of employment, where location of job imposes unreasonable
burden on worker. NRS 616.222, subd. 1.
Job offer made to injured employee, which required employee to be present five days per week in
Nevada, was unreasonable, where employee had worked for past twenty-five years under job arrangements
pursuant to which employee worked three days on at Nevada test site, with four days off at his home in
California, and thus, employee was entitled to reinstatement of maintenance benefits. NRS 616.222,
subd. 1.
OPINION
Per Curiam:
Appellant State Industrial Insurance System (SIIS) terminated respondent James Corselli's
rehabilitation and maintenance benefits shortly after Corselli wrote his employer on May 24,
1984, and asked if it would be willing to consider alternatives to the light duty job that it
had offered him. The employer, co-appellant EG&G Special Projects, Inc. (EG&G), made
available to Corselli the position of security officer in Las Vegas, even though he had worked
as a firefighter at the Nevada Test Site and had lived continuously in Riverside, California for
twenty-five years.
The employer and SIIS interpreted Corselli's letter as a rejection of employment and
terminated him. In Corselli's resulting administrative appeal the appeals officer found that
during his entire employment term Corselli had resided in Riverside, California, during which
time arrangements were made for him to commute by air at government expense to his place
of employment, the Nevada Test Site, where he worked three days on, four days off. The
appeals officer noted that the job offered by the employer required Corselli to be present five
days a week in Las Vegas. It was further recognized by the appeals officer that Corselli's
letter merely asked the employer to consider offering him an arrangement similar to that
which he had enjoyed for the past twenty-five years, or in the alternative, a job near his
home in Riverside, California.
past twenty-five years, or in the alternative, a job near his home in Riverside, California.
The appeals officer found that Corselli was a credible witness and that he appeared
genuinely interested in returning to gainful employment with his physical limitations.
The appeals officer concluded that considering Corselli's long-standing residence in
Riverside, California, and also considering his long-standing work history at the Nevada Test
Site, the offer of employment in Las Vegas did not constitute a legitimate offer of
employment pursuant to NAC 616.086 and that, therefore, termination was not justified under
the circumstances.
Based on these rulings the appeals officer ordered reinstatement of maintenance benefits.
This order was appealed to the district court, which affirmed the order of the appeals officer.
Appellants argue that the appeals officer exceeded his jurisdiction by holding that the job
offer was unreasonable under the circumstances. Appellants claim that the only allowable
justifications for refusing employment are set out in NAC 616.086.
1
The express limitations
set out in 616.086 are as follows. Subparagraph 2 simply requires that offered employment
must not exceed any limitation defined by an attending physician. Subparagraph 2 of the
regulation permits refusal in cases where the insurer find that the offered job is demeaning,
degrading or embarrassing or finds that the salary is less than would be received under
disability or by other employees doing similar work. This regulation, say appellants, narrowly
limits the scope of refusal, and no other grounds will justify refusal. Since the regulation
places no restriction as to place, the employer argues that the appeals officer exceeded his
jurisdiction by, in effect, implying a condition of reasonableness on the job offer.
____________________

1
NAC 616.086 provides:
616.086. Offer of employment.
1. Except as otherwise provided in subsection 2, a worker may no longer receive rehabilitative
services if an employer offers him gainful employment which does not exceed any limitations defined by
a treating or examining physician.
2. An injured worker who refuses such an offer of employment may no longer receive rehabilitative
services unless the insurer finds that:
(a) The job offer is demeaning, degrading or subjects the worker to ridicule or embarrassment.
(b) The net salary offered is less than the compensation he would receive for temporary total
disability or less than the starting salary a fellow employee would receive for performing similar duties.
(c) The worker has no reasonable prospect of continued employment.
(d) The worker accepted employment with light duties but has been dismissed through no fault of his
own.
(e) The employment is offered after a rehabilitative program for retraining has begun.
implying a condition of reasonableness on the job offer. The district court rejected this
argument, saying that the appeals officer did not exceed his jurisdiction when he clearly
imputed to the regulation an implied standard of reasonableness. We agree with the district
court.
[Headnotes 1-3]
We recognize that the SIIS has the discretion to terminate benefits when the claimant is
uncooperative. See State Indus. Ins. System v. Snapp, 100 Nev. 290, 680 P.2d 590 (1984).
But the SIIS also has a responsibility to facilitate the return of the injured worker to gainful
employment. NRS 616.222(1). The purpose of NAC 616.086(2) is to require the employer to
make a legitimate offer of employment. An offer of employment cannot be considered
legitimate if the location of the job imposes an unreasonable burden on the worker.
[Headnote 4]
The requirement of reasonableness is especially applicable to the location of the job offer.
If this were not so, the employer could make a job offer that is intended only for refusal and
conveniently relieve itself of its obligation to the injured worker's rehabilitation. Our
interpretation of this regulation is consistent with the policy of a reasonable, liberal and
practical construction of the provisions of the Nevada Industrial Insurance Act. S.I.I.S. v.
Jesch, 101 Nev. 690, 709 P.2d 172 (1985).
In conclusion, the appeals officer acted within the bounds of his jurisdiction in remanding
the matter to the SIIS for payment of benefits. Appellants' contention lacking merit, we
hereby affirm the judgment of the district court.
____________
102 Nev. 119, 119 (1986) Sipsas v. State
WILLIAM SIPSAS, Appellant, v. THE
No. 14927
March 28, 1986 716 P.2d 231
Appeal from judgment of conviction of first degree murder and felony child abuse and
from an order denying motion for new trial; Eighth Judicial District Court, Clark County;
Carl J. Christensen, Judge.
Defendant was convicted in the district court of first degree murder and child abuse, and
he appealed. The Supreme Court, Foley, District Judge, held that: (1) autopsy photograph of
eviscerated child could not be admitted as document used to refresh memory of expert
witness and was more prejudicial than probative; {2) prosecutor's remarks disparaging
California coroner testifying as expert witness for defendant were improper and were
sufficiently prejudicial to require trial court to act sua sponte; and {3) cumulative effect of
errors warranted reversal.
memory of expert witness and was more prejudicial than probative; (2) prosecutor's remarks
disparaging California coroner testifying as expert witness for defendant were improper and
were sufficiently prejudicial to require trial court to act sua sponte; and (3) cumulative effect
of errors warranted reversal.
Johns & Johns, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney, and James
Tufteland, Deputy District Attorney, Las Vegas, for Respondent.
1. Criminal Law.
Color autopsy photograph of eviscerated child victim could not be properly admitted as a writing used to
refresh memory of witness pursuant to NRS 50.125, subd. 1(d) where photograph was neither needed
nor used to refresh recollection of expert medical witness.
2. Criminal Law.
Prejudicial effect of color autopsy photograph of eviscerated child victim exceeded its probative value in
prosecution for first degree murder and child abuse.
3. Criminal Law.
Prosecutor's remarks during closing argument characterizing California coroner who testified as expert
witness for defense as a politician and a hired gun from Hot Tub Country were so prejudicial as to
require court intervention sua sponte to protect defendant's right to a fair trial on first degree murder and
child abuse charges.
4. Criminal Law.
Defense counsel's failure to raise objection to prosecutor's remarks during closing argument which
characterized coroner testifying as expert witness for defense as a politician and a hired gun from Hot
Tub Country did not preclude Supreme Court consideration of such error where error was sufficiently
prejudicial to have required court intervention sua sponte.
5. Criminal Law.
Cumulative effect of prosecutor's improper remarks about defense expert witness during closing
argument and admission of prejudicial autopsy photograph of eviscerated child victim was sufficiently
prejudicial to warrant reversal of conviction for first degree murder and child abuse.
OPINION
By the Court, Foley, D. J.:
William Sipsas was convicted of first degree murder and child abuse for the death of his
live-in girl friend's five-year old daughter, Jennelle Kay Rahja. Jennelle bled to death as a
result of a blunt force injury to her abdomen, which ruptured her mesentery.1
a blunt force injury to her abdomen, which ruptured her mesentery.
1

Sipsas testified that on the day of her death, Jennelle had choked on a sandwich and he
stopped the choking by use of the Heimlich Maneuver. He stated he pumped her stomach and
jammed his finger into her mouth until she coughed up the sandwich and began breathing
again. He also testified that at about 3:00 a.m. on the day of her death, Jennelle was playing
with an ashtray and other things on the coffee table in the living room where she slept. Sipsas
grabbed her, slapping her on the chest with his hands, and then swatted her buttocks so
awfully hard that his own hand hurt.
2
At the police station, after having been given his
Miranda
3
rights, Sipsas asked how the child was doing, and the investigating officer advised
him that Jennelle was dead. In response, Sipsas put his face in the palm of his hands and said
[S]he had been crying for a couple of days. I lost my head and beat her. Sipsas then told
police that he disciplined Jennelle by hitting her with his hands and with a wooden spoon.
At trial, Dr. Giles Sheldon Green, the State's expert who also performed the autopsy,
testified that many of the bruises on Jennelle's body were the result of injuries occurring two
weeks before her death. Dr. Green concluded that Jennelle was a victim of child abuse.
The defense expert, Dr. Ervin Jindrich, Coroner for Marin County, California, stated that
the bruises on Jennelle were no older than 20 hours before death. He testified that it was
theoretically possible for the child's internal injuries to have been caused by the Heimlich
Maneuver, although he had never seen such a result. Dr. Jindrich also testified that in his
opinion, the evidence was insufficient to conclude that Jennelle was a battered child.
A three-judge panel sentenced Sipsas to life without the possibility of parole for the first
degree murder count.
4
The trial court sentenced Sipsas to twenty years in prison for the
felony child abuse, to run consecutively to the sentence for murder.
____________________

1
The mesentery is a long structure which attaches the intestine to the rest of the body. It carries all the blood
vessels to and from the entire small intestine.

2
Sipsas took care of Jennelle while Jennelle's mother, Lori Rahja, worked. Lori testified that she never
noticed any bruises on Jennelle except for one, and stated that Sipsas bathed and disciplined Jennelle and
Jennelle dressed herself.

3
Miranda v. Arizona, 384 U.S. 436 (1966).

4
A three-judge panel was convened because the jury was unable to reach a verdict at the penalty phase.
abuse, to run consecutively to the sentence for murder. Sipsas filed a motion for new trial on
numerous grounds. The district court denied the motion and this appeal followed.
Admission of the Photographs
[Headnotes 1, 2]
Numerous autopsy photographs of the deceased child were offered and received into
evidence. Eight were photographs taken at the morgue, from which testimony as to the size,
coloration, extent and number of bruises was derived. Four other photographs showed the
child just prior to evisceration.
While the State's expert, Dr. Green, was testifying, the district attorney attempted to lay a
proper foundation for the admission of one particular autopsy photoExhibit 28. That color
photograph shows the body during evisceration with the skin opened, exposing the child's
organs. The photograph is distinctly abhorrent and repulsive. The exchange of dialogue
between the district attorney and Dr. Green was as follows:
Q. [Can you identify Exhibit 28?]
A. This photograph was taken after the initial incision to open the body. It shows the
contents of the abdomen, from blood still there; And this loop of small intestine, which
is a very dark dusky red color.
Q. Would it aid you in your explanation of these findings to the jury to refer to that
which is depicted in that photograph?
A. Possibly.
Q. Was this condition linked to the cause of death?
A. Yes, it was.
Q. Would it, therefore, help you in your explanation to [sic] the cause of death to
refer to what is shown in this photograph to examine the phenomenon involved?
A. It might. (Emphasis added.)
After this testimony, the photograph was offered and objected to, and a hearing was held
outside the presence of the jury in accord with Dearman v. State, 93 Nev. 364, 566 P.2d 407
(1977). The district court, after hearing the matter, and presumably having in mind the
expert's indefinite answers, stated: I think I should also state on the record that I find the
prejudicial effect [of the photograph] outweighs the probative value. Thus, the photograph
was denied admission. The examination of Dr. Green continued without the use of Exhibit
28.
After the State rested its case, the defense called Dr. Morton Wooley, an expert in the field
of plastic surgery. For his testimony Dr. Wooley relied on all of the admitted photographs and
as well on Dr. Green's pathology report. Dr. Wooley was asked by defense counsel: Q.
Q. Does the pathologist's report, Exhibit No. 30, contain a thorough and accurate
description of the internal hemorrhaging in the abdominal area?
A. Yes. It's a very good, thorough description, in my opinion.
During cross-examination, Dr. Wooley stated that his opinion was based, at least in part,
on the autopsy report, emergency room records, and some 65 photographs. The prosecutor
inquired of the doctor:
Q. You say that one of the things that, specifically, that you based your opinion on
was review of the photographs of the ilium itself.
I'm going to show you Exhibit No. 28 and ask if that is an enlargement of the
photograph that you looked at, upon which you based your opinion?
A. It is.
At this time, the State moved for the admission of Exhibit 28, and the motion was granted.
It appears from the record that the photograph was admitted pursuant to NRS 50.125(1)(d).
5

The photograph, however, was not used to refresh the memory of Dr. Wooley. Before
refreshing a witness's memory it must appear that the witness has no recollection of the
evidence to be refreshed. Dr. Wooley was capable of testifying from Dr. Green's pathology
report which presented a thorough description of the internal areas of the child's body.
Although he had previously viewed the photograph, it was not used, nor was it needed, to
refresh Dr. Wooley's recollection of the event. The photograph, therefore, was improperly
admitted on the grounds of NRS 50.125(1)(d).
Admissibility of photographs lies within the sound discretion of the district court, and,
absent an abuse of that discretion, the decision will not be overturned. Turpen v. State, 94
Nev. 576, 577, 583 P.2d 1083, 1084 (1978) (citing Dearman v. State, 93 Nev. 364, 566 P.2d
407 (1977)). It is within the district court's discretion to admit photographs where the
probative value outweighs any prejudicial effect the photographs might have on the jury. See
Allen v. State, 91 Nev. 78, 530 P.2d 1195 (1975); Ybarra v. State, 100 Nev. 167, 679 P.2d
797 (1984).
The admissibility of Exhibit 28 was determined in a hearing outside the presence of the
jury when the State initially sought admission of the photograph.
____________________

5
NRS 50.125(1)(d) states:
1. If a witness uses a writing to refresh his memory, either before or while testifying, an adverse party
is entitled:
. . .
(d) To introduce in evidence those portions which relate to the testimony of the witness for the
purpose of affecting his credibility.
outside the presence of the jury when the State initially sought admission of the photograph.
At that time, the court found that the prejudicial effect of the photograph outweighed any
possible probative value. The record does not reflect that the trial court ever reversed this
previous finding. Instead, the court incorrectly admitted the photograph under the guise of
NRS 50.125(1)(d). This is an abuse of the court's discretion. As the court found initially, the
photograph in question was more prejudicial than probative, and the admission was in error.
6

Standing alone, the admission of the photograph might not warrant reversal. However, as
discussed below, the accumulation of error in this case resulted in Sipsas being denied his
constitutional right to a fair trial.
Prosecutorial Misconduct
[Headnotes 3, 4]
Ervin J. Jindrich, M.D., was qualified as an expert witness.
7
The state rejected the
opportunity to conduct a voir dire examination of the doctor's competency as an expert, and
Dr. Jindrich was qualified as an expert in the field of forensic pathology. Notwithstanding the
rules of professional conduct prescribed under Supreme Court Rule 188(4), the prosecutor
expressed the following vituperative remarks during closing argument: Now, that brings us
to to [sic] Dr.
____________________

6
It is of no surprise that the district court originally found the photograph to be more prejudicial than
probative. No jury could be free from thoughts of compassion and sympathy after viewing an 8 x 10 inch color
photograph of an eviscerated child. A photograph lends dimension to otherwise nondimensional testimonial
evidence. That an erroneous admission of a photograph would cause undue prejudice is certain. The extent of
that prejudice is immeasurable.

7
The qualifications of the expert, Dr. Jindrich, follow:
He is a medical doctor, attended Northwestern University Medical School from 1960 to 1964, held a rotating
internship at Charity Hospital in New Orleans, Louisiana, from 1964 to 1965, entered the United States Army,
serving both in Korea and later in Colorado Springs, Colorado, as a general medical officer from 1965 to 1967.
He then moved to California and practiced as a general practitioner in the County of Contra Costa, both in the
clinic and in the emergency room of its County Hospital. He began a pathology residence at Kaiser Hospital in
San Francisco in 1968. He was there from 1968 until 1972, studying both anatomic pathology and clinical
pathology and became Board-certified in both. He was granted a fellowship by the college of American
pathologists, to study forensic pathology, which is medical-legal pathology, and he was also Board-certified in
forensic pathology. He was appointed as coroner of the City and County of San Francisco, reorganized that
office and became Chief Medical Examiner of the City and County of San Francisco. He then ran for and was
elected to the office of Coroner of Marin County in 1974. He took office in January of 1975 and has served
continuously in that capacity ever since, having been re-elected in 1978 and 1982.
Now, that brings us to to [sic] Dr. Jindrich. The hired gun from Hot Tub Country. Have
stethoscope, will travel.
. . .
I think Dr. Jindrich is a living example of Lincoln's law. You can fool all of the
people enough of the time.
He is a politician. He runs for office.
No objection was made to these comments. As a general rule, the failure to object, assign
misconduct, or request an instruction will preclude review by this court. Garner v. State, 78
Nev. 366, 374 P.2d 525 (1962). However, where the errors are patently prejudicial and
inevitably inflame or excite the passions of the jurors against the accused, the general rule
does not apply. Garner, 78 Nev. at 373, 374 P.2d at 529. In this case, the prosecutorial
misconduct was so prejudical as to require court intervention sua sponte to protect the
defendant's right to a fair trial. See Garner, above; see also McGuire v. State, 100 Nev. 153,
677 P.2d 1060 (1984). Failure to do so was error.
[Headnote 5]
The state argues that any error resulting from the prosecutor's comments was, at most,
harmless. While the improper comments of the prosecutor, alone, may have constituted only
harmless error, the cumulative effect of the offensive comments and the inadmissible
photograph warrant reversal. The accumulation of error is more serious than either isolated
breach, and resulted in the denial of a fair trial.
Moreover, we note that the evidence against Sipsas was less than overwhelming on the
question of whether Sipsas harbored the requisite intent to be convicted of first degree
murder. This question was hotly disputed at trial, and we therefore cannot say that the above
two errors did not influence the jury's finding of guilt in this regard.
In reviewing the record it is apparent that because of cumulative error, Sipsas was denied
his constitutional right to a fair trial. Accordingly, the judgment is reversed, the sentence
vacated, and the cause remanded for a new trial.
8

Mowbray, C.J., and Springer and Gunderson, JJ., and McGroarty, D. J.,
9
concur.
____________________

8
The Honorable Richard Bryan, Governor, designated The Honorable Thomas A. Foley, District Judge of the
Eighth Judicial District, to sit on this case. Nev. Const. art. 6, 4.

9
The Honorable Richard Bryan, Governor, designated The Honorable John S. McGroarty, District Judge of
the Eighth Judicial District, to sit on this case in the place of The Honorable Thomas L. Steffen, Justice, who
recused himself. Nev. Const., art. 6, 4.
____________
102 Nev. 126, 126 (1986) Ford v. State
PRISCILLA FORD, Appellant, v. THE
No. 14057
April 8, 1986 717 P.2d 27
Appeal from judgment of conviction and sentences of death entered upon jury verdicts for
six counts of murder in the first degree and consecutive sentences of twenty years for each of
twenty-three counts of attempted murder. Second Judicial District court, Washoe County;
John W. Barrett, Judge.
Defendant was convicted in the district court of six counts of murder in the first degree
and twenty-three counts of attempted murder, and sentenced to death for the murder
convictions and consecutive sentences of twenty years for each attempted murder count, and
she appealed. The Supreme Court, Steffen, J., held that: (1) trial judge did not abuse his
discretion in denying motion for change of venue; (2) district court did not err in denying
challenges for cause or in denying defendant's request for additional peremptory challenges;
(3) district court did not abuse its discretion in not ordering psychiatric examination of
defendant during trial; (4) trial court did not err in submitting issue of defendant's sanity to
jury; (5) record provided substantial evidentiary support for jury's findings, in support of
death penalty, of two aggravating circumstances; and (6) death sentence was not excessive or
disproportionate.
Affirmed.
David G. Parraguirre, Public Defender, Lew Carnahan, Deputy Public Defender, Jane
McKenna, Deputy Public Defender, Mark Mausert, Deputy Public Defender, Reno, for
Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Gregory
Shannon, Deputy District Attorney; Calvin R. X. Dunlap, Reno, for Respondent.
1. Criminal Law.
Preeminent issue in motion seeking transfer of trial site is whether ambiance of place of forum has been
so thoroughly perverted that constitutional imperative of fair trial and impartial panel of jurors is
unattainable.
2. Criminal Law.
Venue determinations are committed to sound discretion of trial judge and will remain undisturbed on
appeal absent clear demonstration of abuse of discretion.
3. Criminal Law.
Trial judge did not abuse his discretion in denying motion for change of venue on ground of pretrial
publicity, where pretrial publicity could hardly be described as monolithic condemnation of
defendant and record revealed lengthy sifting process in individual voir dire of venire
that produced trial-worthy jury.
102 Nev. 126, 127 (1986) Ford v. State
could hardly be described as monolithic condemnation of defendant and record revealed lengthy sifting
process in individual voir dire of venire that produced trial-worthy jury.
4. Jury.
District court did not err in denying challenges for cause or in denying defendant's request for additional
peremptory challenges, despite defendant's contention that a number of veniremen presented no reliable
evidence of impartiality, having merely parroted symbols of impartiality orchestrated by trial judge.
5. Mental Health.
District court did not abuse its discretion in not ordering psychiatric examination of defendant during
trial, and, on balance, trial testimony given by defendant vindicated district court's perception of her mental
state.
6. Criminal Law.
Insanity is affirmative defense which presumedly sane defendant must prove by preponderance of
evidence.
7. Criminal Law.
Presumption of sanity is not rebutted merely by history of prior institutional commitments or diagnosis of
mental deficiency or derangement.
8. Criminal Law.
Legal insanity is not circumscribed in meaning or purpose by medical criteria concerning human
psychosis.
9. Criminal Law.
Trial court did not err in submitting issue of defendant's sanity to jury.
10. Homicide.
Record provided substantial evidentiary support for jury's findings, in support of death penalty, of two
aggravating circumstances that murder was committed by person who knowingly created great risk of death
to more than one person by means of weapon, device or course of action which would normally be
hazardous to lives of more than one person, and that murder was committed upon one or more persons at
random and without apparent motive.
11. Criminal Law.
Record revealed no evidence undermining jury's imposition of death sentence by reason of influence of
passion, prejudice or any arbitrary factor.
12. Homicide.
Sentence of death for six murders committed in connection with defendant's driving automobile onto
crowded sidewalk was not excessive or disproportionate to penalty imposed in similar cases, considering
both crime and defendant.
OPINION
November 27, 1980 was a fateful Thanksgiving Day in the State of Nevada. Defendant
below, Priscilla Ford, drove her mechanically sound 1974 Lincoln Continental automobile
onto a crowded sidewalk in downtown Reno.
102 Nev. 126, 128 (1986) Ford v. State
crowded sidewalk in downtown Reno. The resulting carnage included six dead and
twenty-three injured.
1
After a jury selection process of nearly a month's duration, trial
commenced on November 12, 1981, and concluded over four months later with the jury
convicting Mrs. Ford of six counts of first degree murder and twenty-three counts of
attempted murder. Subsequently, the penalty phase of the trial resulted in sentences of death
on the six murder convictions and consecutive sentences of twenty years imprisonment on
each of the twenty-three convictions for attempted murder. Mrs. Ford unsuccessfully appeals
from her convictions and sentences as we have determined that she was fairly tried and
sentenced.
Procedural History
Mrs. Ford was arrested at the scene. Almost immediately her mental competence became a
matter of focused concern. A series of psychiatric evaluations prompted by a defense motion
for psychiatric examination culminated in a determination by the district court that Mrs. Ford
was not competent to stand trial. After a period of treatment at Lake's Crossing that included
a court-authorized, defense-resisted regimen of anti-psychotic drug therapy, the district court
ordered a sanity commission consisting of three psychiatrists to examine Mrs. Ford. As a
result of the commission's findings, the district court concluded that Mrs. Ford was mentally
competent to undergo trial.
Several weeks prior to trial, defense counsel again moved the trial court for a psychiatric
examination of the defendant. After the judge refused to hear the motion in chambers, defense
counsel withdrew the motion. Later, when Mrs. Ford insisted on testifying, against her
counsel's advice, counsel asked the court to refuse her the right to testify or order a
psychiatric examination. At the time of Mrs. Ford's sentencing, defense counsel sought again
to have the defendant evaluated by psychiatrists. The trial court denied both motions.
On May 19, 1982, Mrs. Ford filed a declaration of waiver of appeal here in the Nevada
Supreme Court. We ordered the district court to canvass the defendant for purposes of
determining her competence to waive her right of appeal. The trial court, refusing the
prosecutor's request for a psychiatric evaluation, determined that Mrs. Ford had knowingly
and intelligently waived her right to appellate review. We were unconvinced and directed the
district court to appoint a panel of three psychiatrists to examine Mrs.
____________________

1
Actually seven persons ultimately died as a result of impact with the vehicle driven by the defendant. The
State elected not to amend the information as it existed at the time of trial. The murder counts therefore remained
at six.
102 Nev. 126, 129 (1986) Ford v. State
directed the district court to appoint a panel of three psychiatrists to examine Mrs. Ford to
determine whether she was, indeed, competent to waive a right of such magnitude and
consequence. The panel unanimously found that Mrs. Ford was not mentally competent to
rationally elect to forego her right of appeal. We therefore rejected her attempted waiver and
this appeal ensued.
Issues on Appeal
Four issues were raised on appeal as a basis for relief from defendant's convictions and
sentences. Considered individually or collectively, the issues do not justify interfering with
the product of the jury's deliberations over the protracted course of defendant's trial.
I. The Guilt Phase
A.
Change of Venue
Mrs. Ford challenges the trial court's ruling denying her motion for a change of venue. The
trial court did not err.
[Headnote 1]
In view of the pathos and fury permeating the Thanksgiving Day disaster, it is not difficult
to appreciate the extent of media attention it received. Nevertheless, considerations
compelling a venue change are not necessarily coextensive with the degree and nature of
media coverage accorded the underlying criminal act. The preeminent issue in a motion
seeking a transfer of trial site is whether the ambiance of the place of the forum has been so
thoroughly perverted that the constitutional imperative of a fair and impartial panel of jurors
has been unattainable. Kaplan v. State, 96 Nev. 798, 618 P.2d 354 (1980). The net concern of
a criminal defendant is whether the community hosting the trial will yield a jury qualified to
deliberate impartially and upon competent trial evidence, the guilt or innocence of the
accused. This, of course, implicates the jury selection process and explains why a motion for
a change of venue must be presented to the court after voir dire of the venire. NRS 174.455.
We have previously validated the tenet that an ignorant jury is neither the hallmark nor the
sine qua non of a constitutionally qualified jury in today's society. See, e.g., Gallego v. State,
101 Nev. 782, 711 P.2d 856 (1985); cf. Irvin v. Dowd, 366 U.S. 717 (1961). It is clear on the
record that virtually every juror had some pretrial awareness of the facts surrounding the
incident on Thanksgiving Day. In support of the motion for venue change, defense counsel
produced sixty-six newspaper articles pertaining to the Ford incident.2 Additionally,
attention, was drawn to the extensive publicity that occurred via television and radio. In
short, defendant's criminal conduct on Thanksgiving Day, 19S0, expectedly precipitated
pervasive news coverage that undoubtedly reached a high percentage of Nevada
residents., both in Reno and elsewhere throughout the State.3
102 Nev. 126, 130 (1986) Ford v. State
to the Ford incident.
2
Additionally, attention, was drawn to the extensive publicity that
occurred via television and radio. In short, defendant's criminal conduct on Thanksgiving
Day, 1980, expectedly precipitated pervasive news coverage that undoubtedly reached a high
percentage of Nevada residents., both in Reno and elsewhere throughout the State.
3

[Headnotes 2, 3]
Venue determinations are committed to the sound discretion of the trial judge and will
remain undisturbed on appeal absent a clear demonstration of an abuse of discretion. Cutler v.
State, 93 Nev. 329, 566 P.2d 809 (1977). Appellant has presented no such demonstration
here. The trial judge pondered the nature and scope of the pretrial publicity surrounding the
circumstances of this case and rightfully concluded that the totality thereof did not corrupt the
trial atmosphere to the point of precluding a fair trial by an impartial jury. The pretrial
publicity of the nuances of the holiday tragedy, its victims and perpetrator, could hardly be
described as a monolithic condemnation of Mrs. Ford. Segments of reports were devoted to
her history of mental illness and her claim of accident. Reports of her mental history or
condition did not appear to be exaggerated or discounted. Moreover, given the fact that Mrs.
Ford was indisputably behind the wheel of the death car, it was noteworthy that virtually all
of the pretrial publicity was free of rhetoric ascribing legal guilt to Mrs. Ford. Both the
seemingly senseless nature of the catastrophe and the speculation concerning Mrs. Ford's
mental history and condition may have actually benefited defendant since her only plausible
defense at trial was that of insanity.
4
Finally, the record reveals that the lengthy sifting
process in the individual voir dire of the venire produced a trial-worthy jury.
____________________

2
The newspaper articles appeared in the Nevada State Journal, Reno Evening Gazette and Reno Gazette
Journal, newspapers having circulation in the Reno area. Although reference was on occasion found among the
articles to Thanksgiving Day Massacre, the death car and analogies to a battlefield, it is the media's credit
that most of the reporting could be appropriately characterized as informative, restrained, non-inflammatory and
even-handed. One article covering the memorial service for the victims referred to remembering the defendant
with understanding rather than bitterness or outrage. Other articles addressed defendant's claim of accident and
her questionable mental capacity. In sum, the pre-trial publicity attending this incident of such high public
interest could not be accurately termed uniformly detrimental to Mrs. Ford by any means.

3
The defense commissioned a survey involving a telephone poll of some 380 persons in the Reno area. This
patently unscientific exercise did reveal that 97 percent of the people contacted were aware of the incident.

4
Defendant also proceeded through trial under a secondary theory of accident. This theory was of slight
consequence considering the unrefuted evidence of the mechanically sound condition of the vehicle and such
declarations and admissions by the defendant as: I will get you honkies, I deliberately planned to get as many
as possible. A Lincoln Continental can
102 Nev. 126, 131 (1986) Ford v. State
Finally, the record reveals that the lengthy sifting process in the individual voir dire of the
venire produced a trial-worthy jury. It is true that numerous veniremen were unsuited for jury
service because of irredeemable prejudice, but that fact alone was not dispositive of the issue
of venue. Moreover, given the uncontested involvement of Mrs. Ford in the calamity of
Thanksgiving Day, it was significant that no venireman was asked whether he or she had
formed an opinion as to Mrs. Ford's guilt under the law based upon her mental condition at
the time of the incident. Since the question was not posed, the record reflects no instances
where prospective jurors not discharged for cause admitted harboring preconceived opinions
of the defendant's mental state or legal culpability at the time of the disaster. Most
importantly, the trial judge, who witnessed the demeanor and apparent sincerity of the jurors
at great length, accepted the declaration of each that he or she would forsake any opinion and
follow the law and the evidence as presented during trial. Also, each juror expressed a
willingness to entertain a sentence other than death in the event of a guilty verdict. Although
defendant characterizes the aforementioned commitments as coached responses to improper
importunings by the trial judge, we conclude to the contrary. The trial judge displayed great
patience and concern in the process of selecting a jury panel genuinely committed to
constitutional attitudes and behavior.
In Gallego v. State, supra, we said:
Given the realities of our age, it is unlikely that a high-profile criminal defendant
will be presented with a venire of uninformed individuals from which to select a jury.
Indeed, it is conceded by many jurists that such a panel would least likely provide the
considered, enlightened judgment that can best serve the demands of trial. As a result,
courts abide by the following standards:
To hold that the mere existence of any preconceived notion as to the guilt or
innocence of an accused, without more, is sufficient to rebut the presumption of a
prospective juror's impartiality would be to establish an impossible standard. It is
sufficient if the juror can lay aside his impression or opinion and render a verdict based
on the evidence presented in court.
101 Nev. 785-86, 711 P.2d 859 (citations omitted).
The trial judge determined that the ranks of the venire produced a jury composed of men
and women legally qualified to serve as jurors in defendant's trial.
____________________
do a whole lot of damage, can't it?, How many did I get?, The more dead the better. Give the mortuaries the
business. That's the American way. Did I get 50? How many did I get? I hope 75.
102 Nev. 126, 132 (1986) Ford v. State
serve as jurors in defendant's trial. We discern no basis for holding otherwise. The trial court
did not err in denying the motion for a change of venue.
B.
Challenges for Cause
Defendant contends that several prospective jurors never should have survived challenges
for cause. The gravamen of this issue is that a number of veniremen presented no reliable
evidence of impartiality, having merely parroted the symbols of impartiality orchestrated by
the trial judge. A thorough examination of the record repels such a characterization of the
unsuccessfully challenged individuals.
[Headnote 4]
It is true that firm commitments of impartiality were often delayed because of vacillations
stemming from several factors, not the least of which were the form and nature of questions
posed by defense counsel. The latter aspect of the problem included such questions as: (1)
As you sit there right now and look over at Mrs. Ford, do you see her as an innocent person
in all honesty? (of course, the response was no) and (2) Do you think you are the kind of
person that might have made the statement Whoever would do something like that ought to
be taken out and shot?' (the response was right). Other questions pertained to the
unascertainable attitude of a man's subconscious mind and the comparison between a
venireman's experiences in Viet Nam and the incident on Thanksgiving Day. In reviewing the
very lengthy voir dire of the venire, at least four factors are clear. First, Mrs. Ford engaged in
tragic, sensational behavior on Thanksgiving Day that resulted in pervasive news coverage of
an event that naturally elicited strong feelings among informed, normal, humane elements of
the community, state and national populace. Second, the passage of time and considerations
beyond the immediate horror of the incident produced an attenuation of feelings among the
venire. Third, given the fact that Mrs. Ford was concededly behind the wheel of the
implement of death and injury, preconceived general opinions of guilt should not have been
unexpected. The key question, never posed, was whether members of the venire had formed
concrete opinions of the defendant's legal guilt based upon conclusions regarding her mental
competence. It must be emphasized that the only credible defense raised to the crimes
charged against Mrs. Ford was that of innocence by reason of insanity. Any venire in the
country, thus informed of Mrs. Ford's involvement, could have responded affirmatively, in
one voice, to a general question of Mrs. Ford's guilt. The difficult issue was deciding whether
jurors so informed would nevertheless fairly and impartially decide whether Mrs.
102 Nev. 126, 133 (1986) Ford v. State
so informed would nevertheless fairly and impartially decide whether Mrs. Ford was guilty or
innocent under the law based solely on the evidence produced at trial, including that evidence
relating to her insanity defense. All jurors ultimately selected convinced the trial judge of
their suitability under the constraints inherent in the latter issue. Fourth, individual responses
to counsel and ultimately the presiding judge reflected unconditioned attitudes and
commitments upon which the judge could properly base his decision regarding challenges for
cause. In brief, we do not find on this record persuasive evidence of judicial brainwashing.
Nor do we perceive error in the district court's rulings on this issue, including an ancillary
ruling denying defendant's request for additional peremptory challenges not provided by
statute. See Gallego v. State, supra.
C.
Competency Hearing
Defendant advances the dubious proposition that in spite of defense counsel's failure to
recognize the need for a competency hearing throughout most of the trial, the district court,
sua sponte, should have ordered such a hearing. Defendant's contention lacks merit.
The United States Supreme Court has declared the conviction of a criminal defendant
while mentally incompetent a violation of due process. Pate v. Robinson, 383 U.S. 375
(1966). Moreover, we have held that a competency hearing is required when reasonable doubt
exists on the issue. Melchor-Gloria v. State, 99 Nev. 174, 660 P.2d 109 (1983).
In the instant case, trial was scheduled after Mrs. Ford had been evaluated by a panel of
psychiatrists and declared mentally competent to stand trial by the trial judge. Thereafter, the
issue of mental competence did not arise until a few weeks before trial when defense counsel
requested another psychiatric examination of the defendant. Inexplicably, the request was
withdrawn when the judge refused to hear the motion in chambers. The motion was never
formally renewed by defense counsel throughout the period of trial. We also note that this
Court sustained defendant's objection to the continuation of mandatory ingestion of
anti-psychotic medication during trial, and granted mandamus directing the district court to
vacate its order enforcing the administration of such drugs to Mrs. Ford. See Ford v. District
Court, 97 Nev. 578, 635 P.2d 578 (1981). Our decision denying the State the right to impose
continued anti-psychotic drug therapy on the protesting defendant was based upon the fact
that Mrs. Ford had been determined to be mentally competent to stand trial and was thus
outside the purview of Nevada's statutes mandating detention and psychiatric treatment. Id.
579-S0, 635 P.2d 579.
102 Nev. 126, 134 (1986) Ford v. State
detention and psychiatric treatment. Id. 579-80, 635 P.2d 579. Moreover, the finding of
mental competence remained essentially free of challenge throughout the pretrial and trial
periods.
5

[Headnote 5]
Defendant contends that her trial behavior should have alerted the trial judge to the fact
that her mental competence was reasonably in doubt. In support of this contention, we are
directed to the lengthy trial testimony by both lay and expert witnesses, describing her history
of aberrational behavior, mental disorders and institutional observation. Defendant also refers
us to her insistence in taking the witness stand against the solemn advice of her counsel and
the substance of her trial testimony. While Mrs. Ford's history reflects the hardships of a
troubled person, it would be difficult to characterize that history in unequivocal terms. In any
event, the historical testimony of Mrs. Ford's trials and tribulations related to periods
substantially remote in time from the period in issue. Moreover, defense counsel is
unpersuasive in raising defendant's insistence in testifying as evidence of mental
incompetence. The trial judge examined Mrs. Ford regarding her desire to testify and found
her responses consistent with those of an understanding, mentally competent person. Our
reading of the record confirms the judgment of the trial judge in concluding that Mrs. Ford
was competent and that there was no basis for any further hearing on that subject. On balance,
the trial testimony given by the defendant likewise vindicates the district court's perception of
her mental state.
6
As indicated previously, defendant's counsel apparently considered her to
be competent until she insisted on disregarding his advice against testifying.
____________________

5
During the latter stages of trial, defense counsel informed the trial judge that his client intended to take the
stand contrary to his advice. Defense counsel contended that defendant's decision to take the stand was untimely
and urged the court to deny her the opportunity to testify. Alternatively, counsel requested that Mrs. Ford receive
a psychiatric examination. The trial judge recognized the constitutional right of the defendant to testify on her
own behalf, Alicea v. Gagnon, 675 F.2d 913 (7th Cir. 1982), and that a denial of the right to so testify, even
against her attorney's advice, is reversible error. Ingle v. State, 92 Nev. 104, 546 P.2d 598 (1976). Nevertheless,
the judge carefully canvassed Mrs. Ford concerning her understanding of the consequences involved in taking
the stand prior to denying the relief sought by counsel. Counsel's secondary request for a psychiatric evaluation
of his client was made without specifications of incompetence. In any event, the judge was satisfied that Mrs.
Ford had remained competent throughout trial to that point.

6
While certain segments of the defendant's testimony may be described as somewhat bizarre, it is doubtful
that they could be safely characterized as the unmistakable outpourings of a psychotic mind. For instance, given
Mrs. Ford's views on religion and spirit matters, it is not altogether clear, as claimed by defense counsel, that she
considered herself to be the solitary
102 Nev. 126, 135 (1986) Ford v. State
The trial judge had the opportunity to evaluate Mrs. Ford's demeanor and the substance of
her testimony during the course of a lengthy trial. At no time did the judge find cause to
question defendant's competence. In reviewing the record, we are not persuaded that the
district court abused its discretion in not ordering a psychiatric examination of the defendant
during trial.
Defendant nevertheless points to this Court's determination that she was incompetent to
waive her right of appeal as evidence of incompetence during trial. This contention is also
without merit. Priscilla Ford's trial concluded in March, 1982. We declared her incompetent
to waive her right of appellate review some twenty-one months later, in December, 1983.
Considering the impact of a death sentence and her long-discontinued drug therapy, it is
strongly possible, if not probable, that Mrs. Ford reached a level of incompetence during the
lengthy interim between trial and our decision. Moreover, this Court's determination was a
product of both a unified opinion of three psychiatrists and our concern that the vital right of
review not be denied a defendant sentenced to death where evidence of the capacity to
knowingly and intelligently waive that right was not clearly and convincingly demonstrated.
In other words, we resolved the benefit of all doubt against waiver.
D.
Validating Guilt Under M'Naghten Rule
Defendant argues that the trial evidence conclusively negated the presumption of Mrs.
Ford's sanity at the time of the offenses, thereby precluding consideration of the issue as a
jury question. We disagree.
[Headnotes 6-8]
Under Nevada law, insanity is an affirmative defense which the presumedly sane
defendant must prove by a preponderance of the evidence. Clark v. State, 95 Nev. 24, 588
P.2d 1027 (1979). The presumption of sanity operates most critically, of course, at the time
the offense is committed. See, e.g., Ybarra v. State, 100 Nev. 167, 679 P.2d 797 (1984); see
also State v. Roadenbaugh, 673 P.2d 1166 (Kan. 1983); State v. Hartley, 565 P.2d 658 (N.M.
1977); State v. Romero, 684 P.2d 643 (Utah 1984); State v. Crenshaw, 659 P.2d 488 (Wash.
1983). This Court has long adhered to the rule in M'Naghten's case as the test for criminal
responsibility for the commission of an offense which, absent the requisite mental
incapacity, constitutes a criminal act.
____________________
embodiment of Christ and the Holy Spirit. Moreover, the articulate defendant also displayed the mind of one
who is decidedly above average in intelligence. In any event, it is important to remember that the jury had
extensive exposure to Mrs. Ford throughout trial and, considering the defendant's testimony and the conflicting
views of the trial experts, determined that she satisfied the applicable law concerning the standard of competence
to commit a criminal act.
102 Nev. 126, 136 (1986) Ford v. State
adhered to the rule in M'Naghten's case as the test for criminal responsibility for the
commission of an offense which, absent the requisite mental incapacity, constitutes a criminal
act. Briefly stated, M'Naghten's rule provides:
[I]f a man has capacity and reason sufficient to enable him to distinguish right from
wrong as to the particular act in question, and has knowledge and consciousness that
the act he is doing is wrong, and will deserve punishment, he is, in the eye of the law,
of sound mind and memory, and should be held criminally responsible for his acts. . . .
State v. Lewis, 20 Nev. 333, 351, 22 P. 241, 247-48 (1889); accord Criswell v. State, 84 Nev.
459, 443 P.2d 552 (1968). Focusing on defendant's contention, it is apparent that the effect of
the presumption of sanity may be negated only if: (1) the basic facts are unsupported by
substantial evidence; (2) the basic facts are not otherwise established; or (3) the evidence as
a whole negatives the existence of the presumed fact. NRS 47.230(2). The presumption of
sanity is not rebutted merely by a history of prior institutional commitments or diagnoses of
mental deficiency or derangement. Legal insanity is not circumscribed in meaning or purpose
by medical criteria concerning human psychosis. State v. Crenshaw, 659 P.2d at 491, 495.
[Headnote 9]
As noted previously, evidence reflected the fact that Mrs. Ford has exhibited the attitudes
and behavior of a troubled person over a prolonged period of years. Her life's experiences
also proved her to be intelligent and resourceful, if not devious. On those few occasions,
remote in time from the offenses here considered, when Mrs Ford was institutionalized her
periods of commitment were brief and uneventful. She functioned resourcefully in society
and seemingly had little difficulty securing employment. In any event, the extent, if not the
existence, of mental deficiencies in Mrs. Ford was sharply disputed by trial experts and lay
witnesses. There was ample evidence for the district court to conclude that the issue of the
defendant's mental capacity at the time of the Thanksgiving Day offenses should be decided
by the trier of fact. A review of the record does not reveal error by the trial court in submitting
this issue to the jury.
II. The Penalty Phase
Defendant has not challenged the legal propriety of her sentences. It is nevertheless
incumbent on this Court to review the ultimate sentence given to Mrs. Ford and determine its
applicability under Nevada law as it existed at the time of her criminal conduct.7 We are
therefore enjoined to determine whether {1) the evidence supports the finding of
aggravating circumstances; {2) the death sentence was imposed under the influence of
passion, prejudice, or any arbitrary factor; and {3) the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases in the State, considering both the
crime and the defendant.
102 Nev. 126, 137 (1986) Ford v. State
conduct.
7
We are therefore enjoined to determine whether (1) the evidence supports the
finding of aggravating circumstances; (2) the death sentence was imposed under the influence
of passion, prejudice, or any arbitrary factor; and (3) the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases in the State, considering both the
crime and the defendant.
[Headnotes 10, 11]
The jury found two statutorily defined, aggravating circumstances present in the
commission of defendant's criminal acts: (1) The murder was committed by a person who
knowingly created a great risk of death to more than one person by means of a weapon,
device or course of action which would normally be hazardous to the lives of more than one
person; and (2) the murder was committed upon one or more persons at random and without
apparent motive. The jury specified that the two aggravating circumstances existed with
respect to each of the six counts of murder and that there were no mitigating circumstances
sufficient to outweigh the aggravating circumstances. The jury then proceeded to fix the
penalty at death. The record provides substantial evidential support for the jury's findings.
Similarly, the record reveals no evidence undermining the jury's verdict by reason of the
influence of passion, prejudice, or any arbitrary factor.
[Headnote 12]
Finally, we conclude that defendant's sentence of death is not excessive or disproportionate
to the penalty imposed in similar cases in this State, considering both the crime and the
defendant.
8
Since the jury determined that Mrs. Ford was legally guilty of the crimes charged
against her, thereby negating the defense of innocence by reason of insanity, it is not for this
Court to diminish her punishment because of a conflict in the evidence regarding defendant's
mental deficiencies. Suffice it to say that a jury consisting of impartial, fair-minded people
could reasonably have concluded, on the basis of competent trial evidence, that defendant
never proved by a preponderance of the evidence that the presumption of sanity was rebutted.
In every other respect, defendant's sentence is proportionate to other death sentences imposed
on Nevada defendants. See, e.g., Gallego v. State, supra; Miranda v.
____________________

7
NRS 177.055(2)(d) was amended to abolish the proportionality review requirement. This amendment took
effect on June 6, 1985. 1985 Stats. ch. 527 1, at 1597-1598. The prohibition against ex post facto laws requires
that we apply the law as it existed when the crime was committed. See Goldsworthy v. Hannifin, 86 Nev. 252,
468 P.2d 350 (1970). In Goldsworthy we held that an act amending parole eligibility could not be applied to the
detriment of a defendant whose crime was committed before the amendment took effect. Because Mrs. Ford's act
took place well before June 6, 1985, we must conduct a proportionality review of her sentences.
102 Nev. 126, 138 (1986) Ford v. State
imposed on Nevada defendants. See, e.g., Gallego v. State, supra; Miranda v. State, 101 Nev.
562, 707 P.2d 1121 (1985); Rogers v. State, 101 Nev. 457, 705 P.2d 664 (1985); Wilson v.
State, 101 Nev. 452, 705 P.2d 151 (1985); Bishop v. State, 95 Nev. 511, 597 P.2d 273
(1979).
We have carefully examined the other nuances involved in the issues raised by defendant
and conclude that they provide no basis for relief.
Conclusion
Having concluded that Mrs. Ford was fairly tried, convicted and sentenced, we affirm in
all respects the judgment of conviction and sentences imposed thereon.
9

Gunderson and Young, JJ., and Wendell
10
and Robison,
11
D.J., concur.
____________________

8
Notwithstanding our disposition of this appeal, we do not perceive this case to be among the brightest stars
in the judicial firmament. The senseless nature of Mrs. Ford's conduct, coupled with her troubled and poignant
history as wife and mother, lead us to conclude that the better course would have been a negotiated resolution
assuring society of the defendant's permanent sequestration. Such a resolution would have been just considering
the ambivalent nuances of her mental condition and the unrelenting obsession of a mother deprived of her child
that haunted her life for many years prior to her unfocused act of vengeance. A partial list of direct trial costs
involving special disbursements totaled $274,494. These costs do not include such allocable costs as attorneys'
fees attributable to the district attorney's and public defender's offices, judicial salaries, judicial support staff
salaries and the prolonged commitment of limited physical resources and facilities. All of the foregoing items are
substantially increased by costs incident to this appeal and will continue to increase by future expenditures on
such matters as determining the point at which Mrs. Ford will be competent to receive her decreed punishment.

9
Under Nevada law, a person may not be punished for a public offense while incompetent. NRS 178.400. It
is clear, therefore, that the execution of sentence shall not occur absent an appropriate predetermination of
competence.

10
The Honorable Michael J. Wendell, judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of Chief Justice John Mowbray, who voluntarily disqualified himself. Nev. Const., art.
6, 4.

11
The Honorable Norman C. Robison, judge of the Ninth Judicial District Court, was designated by the
Governor to sit in place of Justice Charles E. Springer, who voluntarily disqualified himself. Nev. Const., art. 6,
4.
____________
102 Nev. 139, 139 (1986) Central Bit Supply v. Waldrop Drilling
CENTRAL BIT SUPPLY, INC., a Nevada Corporation, Appellant, v. WALDROP
DRILLING & PUMP, INC., A Washington Corporation, Respondent.
No. 15884
April 9, 1986 717 P.2d 35
Appeal from an amended judgment awarding respondent damages in tort and contract and
awarding appellant the unpaid balance of an open account. First Judicial District Court,
Carson City; Michael E. Fondi, Judge.
Buyer brought suit against seller of drill bit alleging that it suffered damages as result of
failure of bit. The district court rendered judgment for buyer, and seller appealed. The
Supreme Court held that: (1) recovery of economic loss could be supported under breach of
warranty theory, and (2) trial court erred in calculating amount of damages.
Julian C. Smith, Jr., Carson City, for Appellant.
Erickson, Thorpe, Swainston & Cobb; Lawrence D. Wishart;
and Martin H. Wiener, Reno, for Respondent.
1. Negligence; Products Liability.
Plaintiff may not recover economic loss under theories of strict products liability or negligence.
2. Sales.
Pure economic loss may be recovered under breach of warranty theory.
3. Sales.
Recovery of economic loss against seller of drill bit could be supported under breach of warranty theory.
4. Sales.
There was substantial evidence to support district court's findings that seller of drill bit made both express
and implied warranties and breached them, and to support finding that buyer did not alter or misuse bit.
5. Damages.
Burden of establishing damages lies on injured party.
6. Damages.
Injured party need not prove its damages with mathematical precision, but only establish reasonable basis
for ascertaining those damages.
7. Sales.
Award of $19,200 damages as consequence of forced abandonment of first water well was incorrectly
based on reasoning that buyer of drill bit was entitled to same amount for loss of first well as buyer
received on second well, where second well reached depth of 400 feet, but abandoned well only reached
level of 135 feet.
8. Sales.
Buyer of faulty drill bit was entitled to damages for lost services while employee was fishing out first well
and traveling to purchase another drill bit, $400 for trip to purchase replacement bit and $615 for cost of
new bit.
OPINION
Per Curiam:
This is an appeal from a judgment for Waldrop Drilling & Pump, Inc. (Waldrop) arising
out of the purchase of an eighteen-inch hole opener (drill bit) from Central Bit Supply, Inc.
(Central Bit). Issues addressing both the theory of liability and the amount of damages
awarded were presented. We have concluded that Central Bit may be held liable on a theory
of breach of warranty; however, because we have also concluded that the trial court erred in
calculating the amount of damages, we affirm the judgment in part and reverse and remand in
part.
On September 3, 1981, Waldrop purchased a drill bit from Central Bit. The drill bit was
used to widen water wells to the appropriate diameter after a pilot hole had been drilled to the
required depth. Waldrop was using the drill bit to open a water well at the Almanor West
subdivision in September of 1982 when two of the four drill cones broke off and lodged in
the pilot hole. The drill bit had been used on two prior occasions without incident.
The drill bit failed at approximately the 135 foot level. The cones lodged in the pilot hole
at the 210-225 foot level which made any further drilling impossible unless the cones could
first be removed from the hole. Waldrop's employees attempted to fish the cones from the
hole for three or four days before the hole was abandoned. A new well was successfully
completed about six feet from the abandoned hole after Thomas Waldrop and another
employee drove nonstop to Oregon to purchase another drill bit.
Waldrop then brought suit against Central Bit alleging that Waldrop suffered damages as a
result of the drill bit failure. Waldrop based its claim for damages on the theories of strict
products liability, negligence, and breach of express and implied warranties. After a trial
without a jury, the district court found that Central Bit was liable for damages based on all
three theories and that Waldrop had suffered consequential damages in the amount of
$20,535. It is from this decision that Central Bit appeals.
[Headnotes 1-3]
Central Bit contends that Waldrop suffered only economic loss; therefore, the judgment in
favor of Waldrop was in error. It is true that a plaintiff may not recover economic loss under
theories of strict products liability or negligence.
of strict products liability or negligence. See Local Joint Exec. Bd. v. Stern, 98 Nev. 409,
410-411, 651 P.2d 637 (1982). However, purely economic loss may be recovered under a
breach of warranty theory. See Hiles Co. v. Johnston Pump Co., 93 Nev. 73, 79, 560 P.2d 154
(1977). Therefore, the judgment in favor of Waldrop may be supported on this theory alone.
[Headnote 4]
There was substantial evidence presented at trial to support the district court's findings that
Central Bit made both express and implied warranties and, then, breached those warranties.
There was also substantial evidence presented to support the finding that Waldrop did not
alter or misuse the drill bit. Therefore, we will not disturb the disturb the judgment in favor of
Waldrop on appeal. See Udevco Inc. v. Wagner, 100 Nev. 185, 678 P.2d 679 (1984).
We conclude, however, that the district court erred in its assessment of damages.
Therefore, we reverse the damage portion of the judgment and remand this case to the district
court in order that damages may be awarded in a manner consistent with this opinion.
When a seller breaches express or implied warranties, a buyer may recover the difference
at the time and place of acceptance between the value of the goods accepted and the value
they would have had if they had been as warranted. . . . NRS 104.2714(2). The buyer may
also recover consequential damages so long as those damages result from general or
particular requirements and needs [of buyer] of which the seller at the time of contracting had
reason to know
1
and which could not reasonably be prevented by cover
2
or otherwise. . . .
NRS 104.2715(2)(a). In the case at bar, the district court awarded consequential damages
only. Specifically, the district court stated:
[S]aid damages include the cost of drilling a second well as a result of loss of the first
in the amount of $19,200; $320 for lost income to Plaintiff while trying to fish the
broken out of the well; $400 for the costs of a trip to Oregon to obtain a new bit to
replace the broken one; and an allowance of $615 toward the cost of the new bit which
was purchased by Plaintiff from an Oregon supplier.
____________________

1
This is a requirement that the seller must have reasonably foreseen the possibility of consequential damages.
See Gerwin v. Southeaster Cal. Ass'n of Seventh Day Adv., 92 Cal.Rptr. 111 (Cal.App. 1971). This test of
foreseeability is akin to that first expressed in the well-known case of Hadley v. Baxendale, 156 Eng. Rep. 145
(1854). See Frank B. Bozzo, Inc. v. Electric Weld Division, 423 A.2d 702 (Pa.Super.Ct. 1980), aff'd, 435 A.2d
176 (Pa. 1981.)

2
A buyer covers by making in good faith and without unreasonable delay any reasonable purchase of or
contract to purchase goods in substitution for those due from the seller. NRS 104.2712(1).
[Headnotes 5, 6]
Additionally, the burden of establishing damages lies on the injured party, Waldrop. See
Dinwiddie Constr. Co. v. Campbell, 81 Nev. 469, 406 P.2d 294 (1965). Waldrop need not
prove its damages with mathematical precision; it need only establish a reasonable basis for
ascertaining those damages. See Bader v. Cerri, 96 Nev. 352, 609 P.2d 314 (1980).
[Headnote 7]
Based on the foregoing explanation of the applicable law, we turn now to the damage
award in the case at bar. The district court found that Waldrop was entitled to recover
$19,200 in damages as a consequence of the forced abandonment of the first well. It appears
that the district court reasoned that since Waldrop spent twelve days on the second well and
was paid $19,200, Waldrop should receive a like amount for the loss of the first well on
which Waldrop also spent approximately twelve days. This award is obviously incorrect.
Waldrop was paid at a contract rate of $48 per foot drilled. Because the second well reached a
depth of 400 feet, Waldrop received $19,200. The abandoned well only reached a level of 135
feet. Had Waldrop been compensated for the partial well at the contract rate, Waldrop would
have received only $6,480. To award Waldrop damages equal to drilling 400 feet when, in
fact, Waldrop only drilled 135 feet would result in overcompensation.
[Headnote 8]
As to the remaining elements of the damage award, we conclude that the district court did
not err. Waldrop did indeed lose four days of Thomas Waldrop's services; therefore, Waldrop
is entitled to receive $320 for the lost services while Thomas Waldrop was fishing out the
first well and traveling to Oregon.
3
Also, the $400 allowed for the trip to Oregon to purchase
the replacement bit was proper as a foreseeable consequential expense caused by the breaking
of the first bit. Finally, while the trial court would have been more correct had it awarded
Waldrop the difference between the value of the drill bit as accepted and the value of the drill
bit had it been as warranted, the $615 allowance toward the cost of the new bit was not in
error. We therefore remand this case to the district court for a reevaluation of damages in
accordance with the views expressed in this opinion.
____________________

3
Even though Waldrop paid Thomas Waldrop no salary in 1982, Waldrop did establish that Thomas
Waldrop's serviced were worth $80 per day to Waldrop.
____________
102 Nev. 143, 143 (1986) Point v. State
PATRICK OLIN POINT and DARLENE WALKER POINT, Appellants, v. THE STATE OF
NEVADA, Respondent.
No. 15418
April 9, 1986 717 P.2d 38
Appeal from judgment of conviction for burglary, grand larceny and possession of stolen
property. Eighth Judicial District Court, Clark County; Addeliar Guy, Judge.
Defendants were convicted in the district court of burglary, grand larceny, and possession
of stolen property. They appealed. The Supreme Court held that: (1) one defendant could not
be convicted of both theft offenses and possession of stolen property necessitating reversal of
possession conviction; (2) failure to mention informant's incarceration in search warrant
affidavit did not reveal bad faith; and (3) evidence was sufficient to sustain convictions for
burglary and larceny.
Affirmed as to appellant Darlene Point; affirmed in part and reversed in part as to
appellant Patrick Point.
[Rehearing denied September 4, 1986]
Morgan D. Harris, Public Defender, Susan Deems Roske, Deputy Public Defender, Las
Vegas, for Appellant Patrick Olin Point.
Thomas P. Pitaro, Las Vegas, for Appellant Darlene Walker Point.
James Tufteland, Deputy District Attorney, Las Vegas, for Respondent.
1. Criminal Law.
When any felony is committed after building is entered with specific intent to commit felony, perpetrator
has committed both burglary and subsequent felony and may be charged and sentenced for both offenses.
2. Criminal Law.
Defendants could be convicted of both burglary and grand larceny committed after building was entered
with intent to commit grand larceny.
3. Receiving Stolen Goods.
Defendant could not be convicted of both theft offenses and possession of stolen property necessitating
reversal of possession conviction.
4. Criminal Law.
Where accused cannot be convicted of both of two crimes, such convictions are reversible when
reviewing court cannot ascertain what verdict would have been returned by properly instructed jury;
however, where it is ascertainable upon which count, if either, properly instructed jury would have
convicted defendant, new trial would result in unnecessary expenditure of judicial resources.
102 Nev. 143, 144 (1986) Point v. State
5. Criminal Law.
Under circumstances where elements of greater offense are sufficiently established, lesser offense of
possession or receiving stolen property should be reversed without affecting conviction for more serious
crime.
6. Receiving Stolen Goods.
Defendant, who was not found guilty of second burglary but was in possession of property taken in both
burglaries, could be found guilty of possession of property taken by her husband during commission of the
crimes.
7. Criminal Law.
Defendant failed to preserve for review on appeal issue that her convictions were infirm because
indictment failed to allege theory of aiding and abetting where there was no objection at trial that would
have alerted district court to necessity of avoiding the possibility of that error.
8. Criminal Law.
In light of sufficiency of self-verifying detail of informant's statements to establish probable cause, failure
to mention informant's incarceration in search warrant affidavit did not reveal bad faith on part of detective
which would have justified suppression.
9. Burglary; Larceny.
Evidence was sufficient to sustain convictions for burglary and larceny; there was evidence of defendants'
possession of stolen goods, one defendant's knowledge of whereabouts of property prior to theft, physical
evidence surrounding circumstances of theft, and evidence of defendants' spending spree prior to their
arrest.
OPINION
Per Curiam:
Appellant Patrick Olin Point assigns numerous errors to his convictions for burglary (two
counts), grand larceny (two counts) and possession of stolen property. All of Patrick's
contentions are without merit except as to the conviction for possession of stolen property,
which must be reversed. Appellant Darlene Walker Point's convictions for burglary, grand
larceny and possession of stolen property are affirmed without exception.
FACTUAL AND PROCEDURAL BACKGROUND
Mike and Zella Burns, victims of appellants' criminal activities, owned and operated a
restaurant and motel in Mesquite, Nevada. The two proprietors customarily kept large
quantities of currency in their residence to service the needs of their businesses. They also
collected silver dollars and uncirculated dollar bills. On September 25, 1982, Mike and Zella
returned home from a nine-day vacation and discovered that their house had been ransacked
and about $200,000 in bills and $40,000 in silver and other coins had been taken from a vault
in the garage. The victims testified at trial that a window to their house had been pried open
and a set of men's footprints together with a smaller set of footprints were visible leading
from the window and across a ditch away from their property.
102 Nev. 143, 145 (1986) Point v. State
pried open and a set of men's footprints together with a smaller set of footprints were visible
leading from the window and across a ditch away from their property.
On March 9, 1983, when the two victims again returned from a trip, one or more intruders
had removed numerous coins, including a silver dollar with a hole in it, and a number of
foreign coins. This time a garage window had been broken and the same vault had been
relieved of its contents. The alarm system at the residence had been disconnected.
On April 30, 1983, after receiving an informant's tip, Las Vegas police detective Eric
DuCharme served a search warrant at appellants' residence and seized bank bags, containers
filled with over $8,000 in silver dollars, including a silver dollar with a hole punched through
the center of it, nickels, pennies and foreign coins, a rubber mask, a pistol, and handwritten
tally sheets with numerical computations similar to those made by Mike and Zella Burns
when bundling their bills. A bundle of $100 bills bound by a paper bill wrapper was removed
from Darlene's purse. On May 10, 1983, DuCharme executed a second search warrant at
appellants' residence and seized furniture and other property thought to have been purchased
with the victims' money, various receipts, personal papers, and an additional amount of cash.
At trial, Zella Burns identified as her property the bank bags, the handwritten tabulation
sheets, the bundle of $100 bills wrapped with the paper bill wrapper and several unusual
coins. A handwriting expert confirmed that the handwriting on sheets with numerals on them
seized in the search was that of Mike Burns.
Darlene Point had worked for Mike and Zella Burns as a cashier in 1982 and had observed
large sums of cash being brought in and out of the business. Patrick Point was absent from his
work from September 20, 1982 to October 7, 1982. The secretary for a doctor who signed a
work release slip for Patrick covering those dates testified at trial that the release was given as
a courtesy, that Patrick was not examined by the doctor and that Patrick appeared to have no
medical problems when the release slip was given. Patrick resigned from his place of
employment on October 14, 1982.
The bookkeeper for Patrick's former employer testified that Patrick's annual income was
less than $22,000 in both 1981 and 1982. Testimony also revealed that in late September
1982 Patrick purchased for cash a $9,000 motor home. Several days later, Patrick purchased a
1978 Winnebago motor home by adding approximately $14,000 in hundred dollar bills to the
trade-in allowance for the other motor home. In the middle of October 1982, Patrick bought a
1983 Ford Bronco and in early December 1982, he paid for a pickup truck with a quantity of
two dollar bills and a check, stating that he had won the money gambling.
102 Nev. 143, 146 (1986) Point v. State
bills and a check, stating that he had won the money gambling. During the course of the trial,
testimony revealed numerous other acquisitions of furniture and other property by appellants
during the seven-month period immediately following the first burglary.
The defense presented evidence indicating that when Mike Burns was taken to appellants'
residence at the time of the search to identify property, he had freely moved in and out of the
house unaccompanied officers. The defense argued in closing that Mike Burns had planted
the stolen property in the Points' residence and that Zella Burns misidentified the stolen
property.
The jury found Patrick guilty of two counts of burglary, two counts of grand larceny and
possession of stolen property. The jury found Darlene guilty of the September 1982 burglary
and larceny, and possession of stolen property, and acquitted her of the March 1983 burglary
and larceny.
DISCUSSION
Patrick argues that it was error to convict him on both the theft offenses and the offense of
possession of stolen property. We agree and accordingly reverse Patrick's conviction for
possession of stolen goods.
[Headnotes 1, 2]
When any felony is committed after a building is entered with the specific intent to
commit a felony, the perpetrator has committed both burglary and the subsequent felony and
may be charged and sentenced for both offenses. Sheriff v. Stevens, 97 Nev. 316, 630 P.2d
256 (1981). Thus, Patrick and Darlene could properly be convicted of both burglary and
grand larceny. However, in interpreting the federal theft statutes, the United States Supreme
Court has held it is error for trial courts to fail to charge the jury that they could not convict of
both larceny and receiving stolen property. Milanovich v. United States, 365 U.S. 551, 555
(1961). The United States Supreme Court has also decided that it was improper to pyramid
penalties for the offense of receiving the fruits of one's own theft. Heflin v. United States,
358 U.S. 415, 419 (1958); United States v. Gaddis, 424 U.S. 547 (1975). The Supreme Court
concluded that the Legislature, in enacting the proscription against receipt and possession,
was trying to reach a new group of wrongdoers, not to multiply the offense of the . . .
robbers themselves. Heflin v. United States, 358 U.S. at 420. We have accordingly required
a new trial on burglary and receiving stolen property charges where an instruction in
accordance with Milanovich was not given and there was no way of knowing whether a
properly instructed jury would have found the defendant guilty of burglary or receiving.
Shepp v. State, 87 Nev. 179, 484 P.2d 563 (1971).
102 Nev. 143, 147 (1986) Point v. State
In the absence of any legislative intent to the contrary we similarly refuse to attribute to the
Nevada Legislature an intent to compound the punishment for larceny, robbery or
embezzlement by permitting convictions for the receipt or possession of stolen property
against the one who took the property in the first instance. By enacting the statute addressing
the receipt or possession of stolen property, NRS 205.275, it is apparent that the Legislature
sought to reach and punish those who unlawfully receive or possess stolen property from the
initial wrongdoer.
[Headnote 3]
The State produced sufficient evidence to convict Patrick for burglary and grand larceny.
However, his conviction for possessing the same property that he had stolen constituted
punishment unintended or specified by any Nevada criminal statute. Moreover, because
Patrick did not distribute his booty to others, society's interest in proscribing possession of
stolen property, i.e., isolating thieves from networks for disposal of their spoils, was not
furthered in any way when the jury convicted him of possession. Patrick was not part of the
class of persons that society has an interest in punishing for possession of stolen goods. The
jury should have been instructed that they could convict defendant of either theft or
possession, but not both. The court did not so instruct, and the refusal to grant the motion for
new trial on this ground was error. See Shepp v. State, 87 Nev. at 179, 484 P.2d at 563;
Thomas v. United States, 418 F.2d 567, 568 (1969).
[Headnotes 4, 5]
Where the accused cannot be convicted of both crimes, both convictions are reversible
when the reviewing court cannot ascertain what verdict would have been returned by a
properly instructed jury. Milanovich v. United States, 365 U.S. at 551; Heflin v. United
States, 358 U.S. at 415; Shepp v. State, 87 Nev. at 179, 484 P.2d at 563. However, where it is
ascertainable upon which count, if either, a properly instructed jury would have convicted the
defendant, a new trial would result in an unnecessary expenditure of judicial resources. Under
circumstances where the elements of the greater offense are sufficiently established, the lesser
offense of possession or receiving should simply be reversed without affecting the conviction
for the more serious crime. United States v. Gaddis, 424 U.S. at 551-553; People v. Francis,
180 Cal.Rptr. 873 (Cal.Ct.App. 1982); People v. Perez, 115 Cal.Rptr. 405 (Cal.Ct.App.
1974); People v. Lohman, 86 Cal.Rptr. 221 (Cal.Ct.App. 1970); People v. Taylor, 40 P.2d
870 (Cal.Ct.App. 1935).
Zella Burns testified that the disfigured silver dollar was taken in the March 1983 burglary.
The jury apparently based Patrick's conviction for the larceny connected with that burglary
on the inference of theft that arose from his possession of distinctive property taken at
that time.
102 Nev. 143, 148 (1986) Point v. State
conviction for the larceny connected with that burglary on the inference of theft that arose
from his possession of distinctive property taken at that time. People v. McFarland, 26
Cal.Rptr. 473 (Cal. 1962). Other physical evidence of the circumstances of the March 1983
burglary, i.e., the burglar alarm had been disconnected and the thief knew where to look for
valuables without having to ransack the home as in the September 1982 burglary, also
supports the conclusion that the jury, under proper instruction, would have convicted Patrick
of the March 1983 burglary and larceny. We therefore reverse Patrick's conviction of
possession, but leave his burglary and larceny convictions intact. People v. Perez, 115
Cal.Rptr. at 405.
[Headnote 6]
Our holding with regard to Patrick does not render erroneous the conviction of Darlene for
possession of stolen property. Darlene falls precisely within the class of persons which the
Legislature intended to affect by its enactment of the statute proscribing possession of stolen
property. The State lacked sufficient evidence to prove Darlene guilty of the second burglary,
but she was in possession of the property taken in both burglaries. As a possessor who did not
personally participate in the March 1983 burglary and larceny, Darlene was properly adjudged
guilty of the possession of property taken by Patrick during the commission of those crimes.
People v. Taylor, 40 P.2d at 870.
Appellants next contend that their convictions are infirm because the indictment failed to
allege the theory of aiding and abetting. Appellant argue that the prosecutor's implications
during closing argument that Darlene encouraged Patrick's criminal activity after learning
through her employment of the substantial amounts of money kept by Mike and Zella Burns
constituted a change in the theory of the case and allowed the jury to convict on the theory of
aiding and abetting. Appellants are wrong.
[Headnote 7]
In Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983), we held where the prosecution seeks
to establish a defendant's guilt on a theory of aiding and abetting, the indictment should
specifically allege this theory and, if known, the specific acts constituting the means of the
aiding and abetting in order to afford the defendant adequate notice to prepare a defense.
However, we need not consider this issue on appeal since there was no objection at trial that
would have alerted the district court to the necessity of avoiding the possibility of error.
Mercado v. State, 100 Nev. 535, 688 P.2d 305 (1984). Moreover, this case, unlike Barren,
did not involve the problem of the prosecution concealing its primary theory until just prior to
trial, or vacillating in its theory during trial.
102 Nev. 143, 149 (1986) Point v. State
trial. Additionally, appellants have not shown how uncertainty concerning the State's theory
proved prejudicial to the presentation of their defense to the jury.
1

Appellants also maintain that the trial court erred in denying their motion to suppress
evidence obtained in the search of their residence. Appellants argue that detective
DuCharme's affidavit in support of the April search warrant omitted the fact that the
informant, Larry Magnum, was incarcerated and had a criminal record at the time the
affidavit was prepared. Appellants reason that such an omission reveals bad faith on the part
of the detective justifying suppression under United States v. Leon, 104 S.Ct. 3405 (1984).
We disagree.
United States v. Leon held that evidence obtained by officers acting in reasonable reliance
on a search warrant issued by a neutral judge or magistrate that is ultimately found to be
invalid for want of probable cause is admissible in the prosecution's case in chief. The court
concluded that where law enforcement officers act in objective good faith reliance within the
scope of a warrant obtained from a judge or magistrate, exclusion of evidence does not serve
the purpose of deterring law inforcement officers when the warrant is subsequently found
legally devoid of probable cause. United States v. Leon does not stand for appellants'
proposition that the detective's failure to include all facts of which he may have knowledge
concerning the character of an informant establishes bad faith of the officer justifying
suppression of evidence. Rather, suppression is appropriate if the officers were dishonest or
reckless in preparing their affidavit or could not have harbored an objectively reasonable
belief in the existence of probable cause. United States v. Leon, 104 S.Ct. at 3423; Illinois v.
Gates, 462 U.S. 213 (1983); Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas,
378 U.S. 108 (1964).
[Headnote 8]
In the affidavit supporting the April search warrant, DuCharme declared that he was
informed by Mike Burns that Magnum had told Burns that Patrick Point had burglarized
Burns' office subsequent to the burglary of Burns' residence. Magnum stated that Patrick was
in possession of money taken in that burglary. Magnum also specified that part of the money
was in a safe in Patrick's bedroom in a back closet, part of the money was in a shed behind
Patrick's house, and part of the money was stacked in boxes in a southwest corner inside
Patrick's house.
____________________

1
Appellants objected to the jury instruction on aiding and abetting on the ground the evidence did not support
a charge of aiding and abetting. However, the evidence of Darlene's possession of the stolen property and her
knowledge of the money cache acquired during her employment supported a theory that she willfully promoted
the thefts and was a participant therein. Although both Patrick and Darlene raise the aiding and abetting issue on
appeal, it is clear that Patrick had no basis for challenging his conviction under this issue since he was
prosecuted throughout as a principal in both occurrences of burglary and larceny.
102 Nev. 143, 150 (1986) Point v. State
Patrick's bedroom in a back closet, part of the money was in a shed behind Patrick's house,
and part of the money was stacked in boxes in a southwest corner inside Patrick's house.
Magnum also told Burns that Patrick had worked on burglar alarms and was familiar with
their operation. Magnum indicated that Burns was his good friend and that he intended to
help Burns. Magnum informed an officer J. Robinson that he was providing the information
because he wanted to see justice done. The affidavit further declared that through independent
investigation, DuCharme learned Patrick was unemployed but had been living
extravagantly, and had recently made cash purchases of property in an amount in excess of
$5,800. DuCharme testified that although he knew Magnum had been in jail, he had no
knowledge of Magnum's prior criminal record. The foregoing constituted a sufficient basis
upon which DuCharme could have harbored an objectively reasonable belief in the existence
of probable cause and the magistrate could have concluded probable cause existed. In light of
the sufficiency of the self-verifying detail of the informant's statements to establish probable
cause, we conclude that the failure to mention Magnum's incarceration in the affidavit
supporting the search warrant was of peripheral relevancy. Franks v. Delaware, 438 U.S. 154
(1977). Appellants merely claim the detective omitted a fact but there is no claim of
deliberate falsity or reckless disregard for the truth as in Franks v. Delaware, 438 U.S. at 171.
The court did not err in denying the motion to suppress.
Appellants unsuccessfully petitioned the district court for a new trial on the theory that
they had been ineffectively represented by counsel. We have considered each of the points
raised by appellants in support of this claim and conclude that none have merit. The district
court correctly determined that appellants had received the benefit of the reasonably
effective assistance of counsel. Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984);
Strickland v. Washington, 104 S.Ct. 2052 (1984).
[Headnote 9]
Finally, appellants claim the evidence was insufficient to support the verdicts of guilt as to
the burglary and larceny counts. In reviewing the sufficiency of the evidence, the question is
not whether this Court is convinced of appellants' guilt, but whether the jury acting
reasonably, could have been convinced beyond a reasonable doubt by the evidence it had a
right to consider. State v. Rhodig, 101 Nev. 608, 707 P.2d 549 (1985). The jury may
reasonably rely on circumstantial evidence of guilt. The verdicts are supported by sufficient
evidence of appellants' possession of the stolen goods, Darlene's knowledge of the
whereabouts of the property prior to the thefts, the physical evidence surrounding the
circumstances of the thefts, and the evidence of appellants' spending spree prior to their
arrest.
102 Nev. 143, 151 (1986) Point v. State
property prior to the thefts, the physical evidence surrounding the circumstances of the thefts,
and the evidence of appellants' spending spree prior to their arrest. See Wilkins v. State, 96
Nev. 367, 609 P.2d 309 (1981); People v. McFarland, 26 Cal.Rptr. at 473. Appellants'
contention is without merit.
DISPOSITION
We affirm the judgment as to appellant Darlene Point, and reverse the judgment as to
appellant Patrick Point on the conviction for possession of stolen property. In all other
respects, the judgment as to appellant Patrick Point is affirmed.
____________
102 Nev. 151, 151 (1986) Bennett v. Topping
CLIFFORD O. BENNETT & LINDA C. BENNETT, Appellants,
v. WILBERT P. TOPPING, Respondent.
No. 16441
April 9, 1986 717 P.2d 44
Appeal from an order dismissing the complaint; Second Judicial District Court, Washoe
County; James J. Guinan, Judge.
Husband and wife brought action in negligence claiming damages for personal injuries of
husband and claiming, in a separate claim for relief, damages by wife for loss of society and
companionship of husband. The district court dismissed complaint as to both husband and
wife when husband died and no motion for substitution was made within ninety days as
required by procedural rule. The wife appealed. The Supreme Court held that trial court acted
properly in dismissing complaint as to husband but not as to wife.
Samuel B. Francovich, Reno, for Appellants.
Barker, Gillock & Perry and Thierry V. Barkley, Reno, for Respondent.
Parties.
When one plaintiff died and no motion for substitution was made within ninety days as required by
procedural rule, trial court properly dismissed complaint as to that party; however, it was improper to
dismiss complaint as to remaining plaintiff, who was surviving spouse bringing separate action for loss of
companionship. NRCP 25(a)(1).
OPINION
Per Curiam:
This case involves a dismissal of a complaint of the named appellants under NRCP
25(a)(1),
1
which provides generally that if the death of a party comes about during the
pendency of a lawsuit, a motion to substitute for the deceased litigant must be timely made or
the action will be dismissed as to the deceased party.
The deceased party in this case is Clifford O. Bennett. He is survived by his wife Linda C.
Bennett. Clifford and Linda filed a complaint in negligence claiming damages for the
personal injury of Clifford and claiming, in a separate claim for relief, damages by Linda for
loss of the society and companionship of her husband Clifford.
When Clifford died the defendant, respondent Topping filed, on September 20, 1983, a
suggestion of death on the record. No motion for substitution was made within the ninety
days provided for in the rule. The district court dismissed the complaint as to both Clifford
and Linda.
The district judge acted properly in dismissing the complaint as to Clifford but not as to
Linda.
The rule is quite clear that unless the motion for substitution is made within ninety days
after the death is suggested upon the record, the action shall be dismissed as to the deceased
party. The district judge was required to dismiss the deceased party, Clifford Bennett.
2

The rule provides only that the action is to be dismissed as to the deceased.
____________________

1
NRCP 25(a)(1) provides:
If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper
parties. The motion for substitution may be made by any party or by the successors or representatives of
the deceased party and, together with the notice of hearing, shall be served on the parties as provided in
Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons.
Unless the motion for substitution is made not later than 90 days after the death is suggested upon the
record by service of a statement of the fact of the death as provided herein for the service of the motion,
the action shall be dismissed as to the deceased party.

2
Appellant attempts to rely on our case of Barto v. Weisharr, 101 Nev. 27, 692 P.2d 498 (Adv. Opn. No. 7,
January 3, 1985); however, this case is of no help in this appeal. In Barto, dismissal was reversed because the
suggestion of death was filed by counsel for the deceased party without identifying a successor or representative.
We held in Barto that this event did not trigger the ninety-day period because any other construction would
open the door to a tactical maneuver to place upon the plaintiff the burden of locating the representative of the
estate within ninety days. This situation obviously does not present itself in the case before us.
deceased. As to the surviving spouse, her separate action for loss of companionship does not
abate either by her husband's death or by dismissal of her deceased husband as a party to the
lawsuit.
In General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972), this court recognized
that in cases such as this the husband is entitled to recover for his own injuries, and the wife
is entitled to recover for her own, separate injury done to herself by the loss of his
companionship. Bush, 88 Nev. at 367, 498 P.2d at 371.
In the Bush opinion we noted that in recognizing such an independent claim by the wife,
any supposed hazard of double recovery by such plaintiffs was remedied by eliminating the
possibility of both the husband's and wife's recovering for her right of support and as an
additional safeguard against the danger of double recovery we require that she will have her
cause of action only if joined for trial with the husband's own action against the defendant.
Id.
Here, the wife's action was joined with the husband's, although not for trial because her
husband died. Now, because of Clifford's death, Linda has an independent action for
negligence to recover damages for loss of support, love, companionship, affection, society,
sexual relations, solace and more from the period beginning with the date of the accident to
the date of her husband's death. Bush, 88 Nev. at 367, 498 P.2d at 370.
The action was filed by the parties jointly. There is no risk of double recovery or other
policy reason which should preclude Linda's claims for her own damages merely because her
husband died during the pendency of their actions.
The dismissal as to Linda Bennett is reversed and the matter remanded for trial on her
claim.
____________
102 Nev. 153, 153 (1986) White v. State
RUSSELL LEE WHITE, Appellant, v. THE
No. 16495
April 9, 1986 717 P.2d 45
Appeal from an order denying post-conviction relief after petitioner was convicted of
perjury. Ninth Judicial District Court, Douglas County; Lester H. Berkson, Judge.
The defendant, who was convicted of perjury, filed a petition seeking post-conviction
relief. The district court denied relief, and the defendant appealed. The Supreme Court held
that: (1) defendant, who signed an affidavit in the presence of a notary public in which he
falsely stated that he had not been convicted of any crime of violence, could not be
convicted of perjury since there was no proof presented that he swore an oath, and {2)
since no Nevada statute required a defendant to support his claim of eligibility for
rehabilitative treatment under oath, his false affidavit, even when attached to the notice
of election for treatment and filed in criminal action against him for driving under the
influence of intoxicating liquors, was not made in a proceeding where an oath or
affirmation was required by law and therefore he could not be convicted of perjury.
102 Nev. 153, 154 (1986) White v. State
public in which he falsely stated that he had not been convicted of any crime of violence,
could not be convicted of perjury since there was no proof presented that he swore an oath,
and (2) since no Nevada statute required a defendant to support his claim of eligibility for
rehabilitative treatment under oath, his false affidavit, even when attached to the notice of
election for treatment and filed in criminal action against him for driving under the influence
of intoxicating liquors, was not made in a proceeding where an oath or affirmation was
required by law and therefore he could not be convicted of perjury.
Reversed.
Norman Y. Herring, Carson City, 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.
Petition for post-conviction relief was an appropriate procedural vehicle for challenging the defendant's
perjury conviction where a direct appeal was precluded by delay incident to defendant's counsel's attempt
to determine the validity of a conviction underlying a habitual criminal finding. NRS 177.315, subd. 2.
2. Perjury.
Defendant, who signed an affidavit in the presence of a notary public in which he falsely stated that he
had not been convicted of any crime of violence, could not be convicted of perjury since there was no
proof presented that he swore an oath. NRS 199.120.
3. Perjury.
Mere signing of an affidavit before an officer does not constitute the act necessary to constitute an oath
for purposes of perjury prosecution. NRS 199.120.
4. Perjury.
Statutory section providing that it is no defense to perjury prosecution that an oath was administered or
taken in an irregular manner was not intended to excuse the necessity of a valid oath. NRS 199.180.
5. Perjury.
Since no Nevada statute required a defendant to support his claim of eligibility for rehabilitative
treatment under oath, his false affidavit, even when attached to the notice of election for treatment and filed
in criminal action against him for driving under the influence of intoxicating liquors, was not made in a
proceeding where an oath or affirmation was required by law and therefore he could not be convicted of
perjury. NRS 199.120, 458.290-458.350.
6. Perjury.
A perjury conviction is proper only where an oath is not only authorized or permitted but actually
required by law; declining to follow People v. Watson, 85 Ill.App.3d 649, 406 N.E.2d 1148, 40 Ill.Dec.
781.
102 Nev. 153, 155 (1986) White v. State
OPINION
Per Curiam:
Appellant Russell Lee White was arrested and charged with driving under the influence of
intoxicating liquors (DUI) after an automobile accident in Douglas County. Pursuant to NRS
458.300, certain DUI offenders are permitted to elect to undergo an alcohol abuse treatment
program. Upon completion of the program, the DUI offender's conviction is set aside. 1975
Nev. Stats. ch. 553, 1.5-7 inclusive, p. 971. A person with a criminal record of one or more
convictions of crimes of violence is ineligible for such treatment. Ibid. As part of the DUI
proceedings, White signed a sworn affidavit in support of a motion to elect participation in
the treatment program. The affidavit, submitted to establish eligibility for treatment, asserted
that White had not been convicted of any crime of violence or of selling any controlled
substance.
White signed the affidavit in his attorney's Carson City office in the presence of his
attorney's secretary, a notary public. The secretary notarized the affidavit below a portion of
the jurat which stated Subscribed and Sworn to before me. . . . After the affidavit was
presented to a justice's court in Douglas County, White was admitted to the treatment
program, which he successfully completed. Thereafter, the DUI charge was dismissed. Later,
White was charged with perjury when the State learned that he previously had suffered two
convictions for crimes involving acts of violence.
At trial on the perjury charge, the notary testified that the signature and stamp on the
affidavit were hers, but that she had no independent recollection of signing the affidavit or
seeing White sign it. She testified her usual practice before notarizing a signature was to ask
the affiant to sign the document after first determining that affiant had read it and found it to
be correct. The witness also testified she never administered an oath in the process of
notarizing affidavits.
Following conviction on a jury verdict, the district court sentenced White to a ten-year
prison term for perjury and a ten-year term for being a habitual criminal under NRS 207.010.
White did not timely file a notice of appeal, but petitioned the district court for
post-conviction relief. The district court denied the petition and this appeal followed.
[Headnote 1]
Procedurally, a petition for post-conviction relief was appropriate here since direct appeal
was precluded by delay incident to the attempt by White's counsel to determine the validity of
a conviction underlying the habitual criminal finding.
102 Nev. 153, 156 (1986) White v. State
conviction underlying the habitual criminal finding. NRS 117.315(2); Gunter v. State, 95
Nev. 319, 659 P.2d 886 (1983).
[Headnote 2]
White primarily contends that there was no proof presented on an essential element of
perjury under NRS 199.120,
1
viz, that he swore an oath. We agree and accordingly reverse
the judgment of conviction.
We have previously addressed the question of the sufficiency of the evidence necessary to
support a perjury conviction in State v. Pray, 64 Nev. 179, 179 P.2d 449 (1947). Reversing a
conviction for subornation of perjury, we held that no prima facie presumption arose that the
affiant actually made an oath or performed any act that could be deemed the equivalent of an
oath. We also determined that the evidence was insufficient to support the conclusion that
affiant was administered an oath. State v. Pray cited O'Reilly v. People, 86 N.Y. 154 (1881),
which reversed a conviction for perjury on evidence that the defendant signed and handed a
document to an officer and the officer affixed his name to it in silence. The New York court
noted that, under such circumstances, any form of an oath is rendered unnecessary, and the
intention to swear is put in the place of the oath actually administered and taken. . . [O]nly by
some unequivocal form could the sworn be distinguished from the unsworn averment. . . .
Id., at 157. That court also stated that there must be an unequivocal and present act by which
the affiant consciously takes upon himself the obligation of an oath and that the mere delivery
of a signed affidavit to an officer was not such an act. See also In re Rice, 181 N.E.2d 742
(Ill.App.Ct. 1962); Spangler v. District Court of Salt Lake County, 140 P.2d 755 (Utah 1943).
The court pointed out that the wording of the affidavit [affiant] being duly sworn, rather
than I do hereby swear, showed that the signing itself did not constitute the act or obligation
of the oath itself.
[Headnotes 3, 4]
We agree with the courts which have held that the mere signing of an affidavit before an
officer does not constitute the act necessary to constitute an oath.
____________________

1
NRS 199.120 provides:
Every person, having taken a lawful oath or made affirmation in a judicial proceeding or in any other
matter where, by law, an oath or affirmation is required and no other penalty is prescribed, who willfully
makes an unqualified statement of that which he does not know to be true, or who swears or affirms
willfully and falsely in a matter material to the issue or point in question, or who suborns any other
person to make such unqualified statement or to swear or affirm in such manner is guilty of perjury or
subornation of perjury, as the case may be, and 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. 1979 Nev. Stats., ch. 655 13, p. 1420.
102 Nev. 153, 157 (1986) White v. State
of an affidavit before an officer does not constitute the act necessary to constitute an oath.
Spangler v. District Court of Salt Lake County, 140 P.2d at 755; Youngker v. State, 215
So.2d 318 (Fla.App. 1968); Rogers v. People, 422 P.2d 377 (Colo. 1967); Stewart v. State,
142 So. 590 (Ala.App. 1932); O'Reilly v. People, supra. We are unpersuaded by other
distinguishable authority which holds that signing in the presence of a notary is sufficient. See
Blackburn v. Motor Vehicles Division, Dept. of Transportation, 576 P.2d 1267 (Or.Ct.App.
1978); In re Rice, 181 N.E. at 742; Cincinnati Finance Co. v. First Discount Corp., 171
N.E.2d 383 (Ohio 1938). Moreover, we conclude that NRS 199.1802 was not intended to
excuse the necessity of a valid oath. See People v. Cohen, 50 P. 20 (Cal.S.C. 1897). Although
the notary testified it was her understanding that White was sworn there is no direct evidence
in the record of an outward act by White supporting the conclusion that his attention had been
directed to the necessity of swearing to his statement.
[Headnote 5]
White also argues that because nothing in the statutory scheme governing civil
commitment of alcoholics convicted of crime (NRS 458.290-458.350) mandates giving a
statement under oath as a prerequisite for rehabilitative treatment, the oath was not required
by law as contemplated under NRS 199.120. We are convinced White is correct.
This Court has previously construed the language of NRS 199.120 to mean that a perjury
charge may be sustained only where the false statement was made in a judicial or other
setting where an oath or affirmation is legally required. Licata v. State, 99 Nev. 331, 333,
661 P.2d 1306, 1307 (1983). We there noted the statement must be made under an oath
required by law and held that a voluntary statement taken in an insurance company's lawyer's
office was not of that character.
[Headnote 6]
A perjury conviction is proper only where an oath is not only authorized or permitted but
actually required by lawoccasions of such solemnity and gravity that the law demands the
administration of an oath as the price of legal recognition of the act. People v. Lillis, 158
N.Y.S.2d 191, 194 (1956). Where the statement is accorded the same legal recognition
whether it is affirmed or not, it is not required by law and will not serve as a basis for
invoking the perjury statute. Id. at 195.
____________________

2
It shall be no defense to a prosecution for perjury that an oath was administered or taken in an
irregular manner or that the defendant was not competent to give the testimony, deposition, certificate or
affidavit of which falsehood is alleged. It shall be sufficient that the actually gave such testimony or made
such deposition, certificate, or affidavit.
102 Nev. 153, 158 (1986) White v. State
affirmed or not, it is not required by law and will not serve as a basis for invoking the perjury
statute. Id. at 195.
Because no Nevada statute required White to support his claim of eligibility for
rehabilitative treatment under oath, his affidavit, even when attached to the notice of election
for treatment and filed in the criminal action against him was not made in a proceeding where
an oath or affirmation is required by law, an essential predicate to a conviction for perjury.
We decline to follow People v. Watson, 406 N.E.2d 1148 (Ill.App.Ct. 1980), in which the
court concluded perjury was proved where the oath was authorized or permitted by law and in
fact sworn. This interpretation substitutes a defendant's specific intent to willfully make the
false statement for the element of a formal oath required by law. Considerations of due
process persuade us to reject this interpretation and resolve the question concerning the
purview of our perjury statute in favor of lenity. Dunn v. United States, 442 U.S. 100 (1978).
Because we reverse the conviction on the primary offense of perjury, the finding and
sentence based on the habitual criminal statute, which is not a separate crime but is only an
averment of fact affecting the punishment on the primary offense, is also reversed. See
Hollander v. State, 82 Nev. 345, 418 P.2d 862 (1966). In light of our conclusion that White
committed no crime, it is unnecessary to consider appellant's argument concerning venue.
Accordingly, the judgment of conviction for perjury and the finding that White is a habitual
criminal are reversed.
____________
102 Nev. 158, 158 (1986) Crump v. State
THOMAS WAYNE CRUMP, Appellant, v. THE STATE
No. 15974
April 9, 1986 716 P.2d 1387
Appeal from judgment of conviction for first degree murder and robbery, both with use of
deadly weapon, and from sentence of a death. Eighth Judicial District Court, Clark County; J.
Charles Thompson, Judge.
Defendant was convicted in the district court of first degree murder and robbery. He
appealed. The Supreme Court held that: (1) testimony of individual, who witnessed defendant
kill individual's roommate in unrelated homicide, was admissible during penalty phase; (2)
evidence that after he killed victim, defendant committed and was convicted of other murders
and violent felonies was admissible during penalty phase; and (3) sentence of death was
neither excessive nor disproportionate to penalty imposed in similar cases.
102 Nev. 158, 159 (1986) Crump v. State
death was neither excessive nor disproportionate to penalty imposed in similar cases.
Affirmed.
Morgan D. Harris, Public Defender; Robert L. Miller, Deputy Public Defender, Las
Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney; James
N. Tufteland, Deputy District Attorney, Las Vegas; Daniel Seaton, Deputy District Attorney,
Las Vegas, for Respondent.
1. Criminal Law.
Evidence of unrelated crime for which defendant has not been convicted is not admissible during penalty
phase if it is dubious or tenuous, or if its probative value is substantially outweighed by danger of unfair
prejudice, confusion of issues, misleading jury, undue delay, waste of time, or needless presentation of
cumulative evidence. NRS 48.035.
2. Criminal Law.
Testimony of individual, who witnessed defendant kill individual's roommate, in unrelated homicide, was
admissible during penalty phase of trial since testimony was neither dubious, tenuous, nor of questionable
probative value.
3. Criminal Law.
Evidence that after defendant killed victim, defendant committed and was convicted of other murders and
violent felonies was admissible during penalty phase. NRS 200.033, subd. 2.
4. Homicide.
Evidence supported jury's finding of aggravating circumstances that murder was committed by a person
who had previously been convicted of another murder or of a felony involving use or threat of violence to
person of another, murder was committed while person was engaged in commission of or flight after
committing robbery, and murder involved depravity of mind. NRS 177.055, subd. 2(b).
5. Homicide.
Sentence of death imposed on defendant, who was convicted of first degree murder and robbery, both
with use of deadly weapon, was neither excessive nor disproportionate to penalty imposed in similar cases.
NRS 177.055, subd. 2(d).
OPINION
Per Curiam:
A jury convicted appellant Thomas Wayne Crump of first degree murder and robbery, both
with the use of a deadly weapon. At the penalty hearing for Crump's first degree murder
conviction, the jury found three aggravating circumstances: the murder was committed by a
person who had previously been convicted of another murder or of a felony involving the use
or threat of violence to the person of another; the murder was committed while the
person was engaged in the commission of or flight after committing a robbery; and the
murder involved depravity of mind.
102 Nev. 158, 160 (1986) Crump v. State
threat of violence to the person of another; the murder was committed while the person was
engaged in the commission of or flight after committing a robbery; and the murder involved
depravity of mind. The jury found no mitigating circumstances and sentenced Crump to
death. On appeal, Crump raises several assignments of error, which are directed to the
propriety of his sentence of death. We reject them as meritless.
THE FACTS
On October 4, 1980, Jodie Jameson's naked corpse was discovered in the bathtub of a
motel room in Las Vegas. Jameson's arms and legs were tightly bound with panty hose.
Around Jameson's neck was a loosely fitting ligature made from thin knotted strips of torn
pillowcase fabric. An autopsy revealed the cause of Jameson's death to be ligature
strangulation.
In a videotaped confession received in evidence during the guilt phase of his trial, Crump
confessed that he killed and robbed Jameson, who was employed by a Las Vegas escort
service, because he believed that she had robbed him. In his videotaped confession, Crump
stated:
I snapped. . . . I didn't have nothin'. . . . I told her she could take it [the money] to hell
with her and I drowned her. . . . No crime of murder, of violence is justifiable, but in
my estimation it was. . . . She deserved what she got, I don't feel no remorse over it.
. . . I could have obtained my money without killing her. I just wanted to kill her. . . .
Its an eye for an eye. . . . I premeditated. I knew I was going to kill her and I did.
In a second videotaped confession also received in evidence during the penalty phase of
his trial, Crump spoke at great length about the multiplicity of crimes he had committed
during his life. Crump confessed that he had committed: (1) seven murders, (2) seven
attempted murders, and (3) innumerable robberies, assaults, and kidnappings. Crump
additionally confessed that he had participated in a prison uprising in which a prison guard
was taken hostage and killed. He had also escaped from a New Mexico jail. In this videotaped
confession, Crump stated:
I would escape if you give me the opportunity; Time is nothing. . . . Penitentiary
time doesn't affect me at all; If I was to get out of here today, I'd hurt somebody
today; and I would like the death penalty because I deserve it. . . . I don't want to hurt
nobody else.
THE LAW
[Headnote 1]
1. During the penalty phase of Crump's trial, the district court admitted into evidence the
testimony of Jerome Strickland who witnessed Crump kill Strickland's roommate, Ernie
Ritchie.
102 Nev. 158, 161 (1986) Crump v. State
court admitted into evidence the testimony of Jerome Strickland who witnessed Crump kill
Strickland's roommate, Ernie Ritchie. Crump had not been convicted of this unrelated
homicide. Crump suggests that the district judge erred in admitting this evidence. In Gallego
v. State, 101 Nev. 782, 711 P.2d 856 (1985), we held that evidence that a defendant had
committed an unrelated homicide for which he had not been convicted may be admitted
during the penalty phase of the defendant's trial, not to establish the existence of an
aggravating circumstance, NRS 200.033(2), but rather as other matter which the court deems
relevant to sentence. NRS 175.552.
1
See State v. Skipper, 328 S.E.2d, 58 (S.C. 1985);
Watkins v. Commonwealth, 331 S.E.2d 442 (Va. 1985); State v. Malone, 694 S.W.2d 723
(Mo. 1985); People v. Del Vecchio, 475 N.E.2d 840 (Ill. 1985); State v. Rault, 445 So.2d
1203 (La. 1984); Milton v. Procunier, 744 F.2d 1091 (5th Cir. 1984); State v. Hensley, 691
P.2d 689 (Ariz. 1984); Smith v. State, 683 S.W.2d 393 (Tex.Ct.App. 1984); People v. Easley,
654 P.2d 1272 (Cal. 1982). Such evidence is not admissible if it is dubious or tenuous,
see Allen v. State, 99 Nev. 485, 665 P.2d 238 (1983), or if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury,
undue delay, waste of time, or a needless presentation of cumulative evidence. NRS 48.035.
2
See Jones v. State, 101 Nev. 573, 707 P.2d 1128 (1985); Rogers v. State, 101 Nev. 457, 705
P.2d 664 (1985); Biondi v. State, 101 Nev. 252, 699 P.2d 1062 (1985).
[Headnote 2]
The district judge did not err in admitting Strickland's testimony during the penalty phase
of Crump's trial. Strickland's testimony was not admitted to establish the existence of an
aggravating circumstance. Gallego v. State, supra. Strickland's testimony was neither
dubious, tenuous, nor of questionable probative value: Strickland testified that he witnessed
Crump kill Ritchie. Allen v. State, supra; NRS 48.035. His testimony was properly received.
____________________

1
NRS 175.552 provides, in pertinent part:
In the [penalty] hearing, evidence may be presented concerning aggravating and mitigating circumstances
relative to the offense, defendant or victim, and on any other matter which the court deems relevant to
sentence, whether or not the evidence is ordinarily admissible. (Emphasis added.)

2
1. Although relevant, evidence is not admissible if its probative value is substantially outweighed by
the danger of unfair prejudice, of confusion of the issues or of misleading the jury.
2. Although relevant, evidence may be excluded if its probative value is substantially outweighed by
considerations of undue delay, waste of time or needless presentation of cumulative evidence.
102 Nev. 158, 162 (1986) Crump v. State
[Headnote 3]
2. During the penalty phase of Crump's trial, the district court admitted evidence that, after
he killed Jameson, Crump committed and was convicted of other murders and violent
felonies.
3
Crump argues that the district court erred in admitting this evidence.
The district court did not err. In Gallego v. State, supra, we held that NRS 200.033(2)
4
permits the introduction at the penalty phase of evidence of convictions of murders or crimes
of violence occurring after the primary offense but prior to the penalty phase of a defendant's
trial and that such convictions may serve as aggravating circumstances. See State v.
Steelman, 612, P.2d 475 (Ariz. 1980); State v. Jordan, 614 P.2d 825 (Ariz. 1980).
[Headnotes 4, 5]
3. The evidence supports the jury's findings of three aggravating circumstances. NRS
177.055(2)(b). Nothing contained in the record indicates that the sentence of death was
imposed under the influence of passion, prejudice, or any arbitrary factor. NRS 177.055(2)(c).
Considering the egregiousness of the insensible killing in this case, the multiplicity of crimes
Crump has committed during his life, and his statement that he will kill again, we conclude
that the sentence of death imposed in this case is not excessive or disproportionate to the
penalty imposed in similar cases within the state. NRS 177.055(2)(d).
5
See Gallego v. State,
supra; Cole v. State, 101 Nev. 585, 707 P.2d 545 (1985).
____________________

3
The record reveals that, after killing Jameson, Crump committed and was convicted of committing: two first
degree murders with the use of a firearm; one attempted murder with the use of a firearm; three armed robberies;
and one kidnapping.

4
The only circumstances by which murder of the first degree may be aggravated are:
* * * * *
2. The murder was committed by a person who was previously convicted of another murder or of a
felony involving the use or threat of violence to the person of another.

5
The United States Supreme Court recently held that state courts are not constitutionally required to conduct
proportionality reviews of sentences of death. Pulley v. Harris, 465 U.S. 37 (1984). NRS 177.055(2)(d) was
recently amended to abolish the proportionality review requirement; this amendment CONCLUSION
We find Crump's became effective June 6, 1985. 1985 Nev. Stats. ch.527, 1, at 1597-1598. The prohibition
against ex post facto laws requires that we apply the law as it existed when the crime was committed. See
Goldsworthy v. Hannifin, 86 Nev. 252, 468 P.2d 350 (1970).
102 Nev. 158, 163 (1986) Crump v. State
CONCLUSION
We find Crump's assignments of error meritless. Accordingly, we affirm Crump's
judgment of conviction and his sentence of death.
____________
102 Nev. 163, 163 (1986) Moore v. Shreck
EDMUND C. MOORE, Appellant, v. ROBERT
W. SHRECK, M.D., Respondent.
No. 16030
April 9, 1986 717 P.2d 49
Appeal from an order granting respondent's motion to dismiss for failure to effect timely
service; Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
The district court dismissed medical malpractice action after failure to serve summons
until some nineteen months after complaint was filed, and plaintiff appealed. The Supreme
Court held that the delay would not justify dismissal absent a rule setting specified time in
which service must be completed. The Court also announced an amendment to rules issued
contemporaneously with its opinion to require a complaint to be served upon a defendant
within 120 days after filing.
Reversed.
Cochrane & Rose, Las Vegas, for Appellant.
Barker, Gillock & Perry, and Jerry Busby, Las Vegas, for Respondent.
Pretrial Procedure.
Failure to serve summons until nineteen months after complaint was filed would not support
dismissal, even though action had not been prosecuted with diligence, because such drastic action should
not be allowed absent rule or statute setting specified period in which service must be completed
providing notice to counsel that failure to make timely service will itself provide grounds for dismissal;
however, rules would be amended to require prompt service. NRCP 4.
OPINION
Per Curiam:
Moore's complaint against Shreck for medical malpractice was dismissed by the district
court for failure to serve the summons in a timely manner. Moore waited nineteen months
from the time the complaint was filed until the summons was served.
102 Nev. 163, 164 (1986) Moore v. Shreck
the complaint was filed until the summons was served. Shreck filed a motion to dismiss the
action urging as grounds the failure to effect timely service. The motion was granted and
Moore appeals the dismissal of his law suit
This court has great sympathy with the action of the trial court and its decision to dismiss
an action which clearly was not prosecuted with diligence. It is with reluctance that we
reverse under these circumstances and do so only because we have concluded that such
drastic action as complete dismissal of an entire law suit should not be allowed absent a rule
or statute setting a specified period of time within which service must be completed. Such is
the case, for example, with NRCP 41(e) with its specified two-year and five-year limitation
periods, and more relevant to this case, the 120-day period within which a summons and
complaint must be filed in the federal courts under FRCP 4(j).
It is not that the trial court acted unreasonably that brings us to the stated conclusion but
rather that counsel in this case and comparable cases have not been afforded fair notice that
failure to make timely service will of itself provide grounds for dismissal.
Although the practice of delay in effecting summons service is not to be approved, we do
recognize that such a practice has been engaged in on a fairly widespread basis. We intend to
stop this practice by amending NRCP 4 to require service of the summons and complaint to
be served upon a defendant within 120 days after the filing of the complaint. The rule
amendment is issued contemporaneously with this opinion. Our decision in this regard
renders it unnecessary to discuss the case law cited by the parties.
____________
102 Nev. 164, 164 (1986) Carter v. State
OLIVER A. CARTER, Appellant, v. THE
No. 16287
April 24, 1986 717 P.2d 1111
Appeal from a judgment of conviction of one count of embezzlement; Eighth Judicial
Defendant was convicted in the district court of embezzlement, and he appealed. The
Supreme Court held that defendant's double jeopardy rights were not violated by retrial
following involuntary mistrial declared due to a conflict which appeared in defense counsel's
dual representation of defendant and co-defendant.
Affirmed.
Kevin M. Kelly, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney, James
Tufteland, Deputy District Attorney, John E. Ham, Deputy District Attorney, Clark County,
for Respondent.
1. Criminal Law.
Defendant may waive right to conflict-free representation; however, this right of waiver cannot
preclude a trial court from declaring mistrial when there is a manifest necessity for doing so.
2. Criminal Law.
Defendant's double jeopardy right was not violated by retrial following an involuntary mistrial
declared due to conflict in counsel's representation, although defendant and co-defendant had been
repeatedly canvassed concerning ostensible conflict and had sought to waive right to conflict-free
representation, when statements were clearly tied to advice of their mutual counsel and trust placed in
him, requiring statements to be received with caution and permitting mistrial to be declared after clear
conflict of interest appears. U.S.C.A.Const. Amend. 5; Const. Art. 1, 8.
OPINION
Per Curiam:
An information named appellant Carter and his co-defendant, Robert Holding, as joint
defendants and charged them with committing felony embezzlement on January 15, 1983, in
violation of NRS 205.300. Both defendants elected to be represented by the same attorney,
Kevin Kelly, who had represented Holding in a prior unrelated matter. Attorney Kelly
discussed with the two defendants the possibility of a conflict of interest arising out of his
dual representation. Both defendants told the attorney that they were content to be represented
by him. Subsequently, the two defendants formally acknowledged their acceptance of dual
representation in two different formal appearances before Justice of the Peace Earle White
and District Judge Joseph Pavlikowski, each of whom canvassed them on the possibilities of
conflict inherent in their joint representation.
Thereafter, the state filed an additional charge of embezzlement against Holding for
activities occurring between January 10 and January 14, 1983. Kelly also represented Holding
on this separate charge.
The original case against Carter and Holding was set for trial on November 2, 1983.
Before the jury was selected, defense counsel made an oral motion in limine to preclude the
state from introducing any testimony concerning Holding's activities relative to the second
case, wherein Holding alone was charged. The trial judge denied this motion, ruling that
the state could legitimately introduce such evidence.
trial judge denied this motion, ruling that the state could legitimately introduce such evidence.
The judge suggested at the same time that, in the interest of judicial economy, the two cases
might be consolidated because both involved essentially the same parties, witnesses, and
circumstances. Defense counsel Kelly then moved to consolidate the two cases, and the state
agreed to the consolidation. The court granted the motion and the two cases were
consolidated.
At the time of the mentioned hearing the trial judge indicated a concern about the potential
conflict in legal representation resulting from the dual representation during the trial of the
consolidated cases. Defense counsel then urged the trial judge to canvass the co-defendants
again about the possible prejudice which could result from the joint representation. The court
thereupon informed the co-defendants of the potential for conflict and obtained their waiver
of any prejudice that might result from the joint representation.
The consolidated cases did not come to trial until March 5, 1984. Outside the presence of
the jury, the trial judge again canvassed the co-defendants on their waiver of the possible
conflict. The judge reminded counsel that in this kind of arrangement conflict could manifest
itself in a variety of ways. Attorney Kelly assured the court, There is no conflict.
The state then presented its case-in-chief along the following lines: Holding was the store
manager of a supermarket. It was customary on weekends for him to make a bank drop of the
store's cash receipts. According to the state's theory, Holding and Carter embezzled this
money by staging a robbery of company funds in front of the bank, with Carter playing the
part of the bandit. The robbery was staged in order to cover up an embezzlement by
Holding of the store's money earlier in the week. Holding's previous, direct embezzlement
was the subject of the separate charge against him.
Holding reported to the police that the perpetrator of the robbery had fled in Holding's
personal vehicle. This report was contradicted by a witness for the state who had observed
Carter park Holding's car one block away from the scene of the supposed robbery and then
leave the area in another car. This eyewitness also obtained the license plate numbers of both
vehicles, thinking that they were stolen. The plates were traced back to Holding and Carter,
who lived at the same residence.
One of the last of the state's witnesses to be called was Patrolman Rocky Alby, who took
the initial robbery report from Holding. The report was marked as Exhibit 9. It indicated the
manner and the direction in which the suspect fled as well as a description, which stated that
the suspect was a male of unknown race, 5'10", 1S0 pounds, approximately 25 or 30 years
old, wearing dark clothes and a black ski mask.
race, 5'10, 180 pounds, approximately 25 or 30 years old, wearing dark clothes and a black
ski mask.
When the state sought admission of the report, defense counsel Kelly objected on the
grounds of lack of relevancy. The relevancy objection was overruled, the exhibit was
received, and Alby concluded his testimony. Thereafter the jury was admonished, sent home
for the evening, and advised to return the following day.
After the jury retired, the trial judge addressed defense counsel asking him if he persisted
in his hearsay objection to Exhibit 9.
1
The court's obvious and expressed concern was
that the exhibit was a proper subject of hearsay objection for client Carter, but not so for
client Holding. The judge then observed that this raises a complete conflict and that he
could think of no joinder more prejudicial to Mr. Holding than the joinder with Mr. Carter in
view of this latest testimony that has come in.
The trial judge decided to declare a mistrial, saying:
Number one is that the joinder of these two cases is in the Court's view disastrous.
That is to say that the case against Mr. Holding individually, that same case being
C64070, may and must be defended in a manner quite different than that where both
defendants are charged in C61953, but that should Mr. Holding and Mr. Carter,
particularly Mr. Carter, be found guilty in the cases which they are both charged, the
jury would, it is apparent to the Court, automatically hold Mr. Holding guilty of the
case in which he is charged by himself.
Two is although counsel for the defense has been canvassed on more than one
occasion regarding possible conflict in the case and has assured the Court and his
clients and opposing counsel no such conflict does exist, an apparent conflict has
already arisen, namely the introduction of Exhibit No. 9 by the State over the hearsay
objection by counsel for the defense.
Counsel for the State asserts that the hearsay to Mr. Carter of Mr. Holding's prior
statement to the police might be construed by a higher court to be admissible against
Mr. Carter as well as an exception to the hearsay rule in the line that this document
would be a statement by one co-conspirator in furtherance of the conspiracy, and
although neither one is charged with conspiracy, the Goldsmith case cited by the
State is the case upon which the State relies to make that document admissible.
____________________

1
Defense counsel, as stated, objected on grounds of relevancy not hearsay. Nevertheless, when asked by the
court if he persisted in his hearsay objection to Exhibit 9, counsel replied, I do. As a consequence we
must assume an objection was interposed on hearsay grounds. Defense counsel's failure to object on hearsay
grounds in the first instance may be taken as further indication of the impediment resulting from dual
representation.
neither one is charged with conspiracy, the Goldsmith case cited by the State is the case
upon which the State relies to make that document admissible. The Court, of course,
disagrees with this conclusion, in regarding Exhibit 9, the prior exculpatory statement
of Mr. Holding would be hearsay as to Mr. Carter which brings me to my third and final
point. Aside from the disastrous joinder of these two cases and the conflict which has
already appeared, there is little doubt in the Court's mind that an appellate court would
reverse this for the conflict that will occur in representing both of these defendants, and
likewise in view of what I construe to be an improper joinder of the two cases.
Carter was retried after the involuntary mistrial, and on the second trial he was convicted
of embezzlement. On appeal Carter raises a number of issues, but the critical issue is whether
he was subjected to double jeopardy by reason of the second prosecution after the first trial
was declared a mistrial.
A defendant may not be prosecuted more than once for the same offense and be subjected
to double jeopardy. U.S. Const., amend. V; Nev. Const., art. I, 8.
In a jury trial, jeopardy attaches when the jury is empaneled and sworn, Crist v. Bretz,
437 U.S. 28, 29 (1978); State v. Helm, 66 Nev. 286, 291, 209 P.2d 187, 190 (1949). The
defendant, at that point, has a valued right to have his trial completed by a particular
tribunal,' United States v. Jorn, 400 U.S. 470, 484 (1970), quoting Wade v. Hunter, 336 U.S.
684, 689 (1949).
As a general rule the prosecutor is entitled to only one opportunity to require an accused to
stand trial. Where a criminal trial ends in acquittal or conviction, retrial is, of course,
automatically barred (unless, of course, the conviction is later reversed); however, in the case
now before us, the criminal trial was terminated without a final resolution of the charge and
without the consent of the accused.
A number of possible circumstances may arise during a trial which may make it necessary
to discharge a jury before the trial is concluded by either acquittal or conviction. In such
instances, when the jury is necessarily discharged, the constitutional question arises as to
whether a second trial can ensue without violating the accused's right to freedom from
exposure to double jeopardy.
An example of a proper second trial can be found in our case of State v. Helm, 66 Nev.
286, 209 P.2d 187 (1949). In that case, after the trial had begun, it was discovered that the
defendant had not been allowed his sixth peremptory challenge. Counsel for the defendant
refused to waive the deficiency in jury selection; whereupon, the trial judge declared a
mistrial saying: Whenever a trial has commenced whether for misdemeanor or felony
[and] the judge discovers any imperfection which will render a verdict against the
defendant either void or voidable by him, he may stop the trial, and what has been done
will be no impediment in the way of any future proceedings.
Whenever a trial has commenced whether for misdemeanor or felony [and] the judge
discovers any imperfection which will render a verdict against the defendant either void
or voidable by him, he may stop the trial, and what has been done will be no
impediment in the way of any future proceedings.
Helm, above, 66 Nev. at 291, 209 P.2d at 190; see also Illinois v. Somerville, 410 U.S. 458
(1973). (A defective indictment that was reversible error and could not be cured under state
law after the jury was sworn was sufficient grounds for declaring a mistrial.) There was a
manifest necessity to declare a mistrial in the Helm case.
The Supreme Court of the United States has recognized that because of the importance of
the right of an accused not to be faced with more than one trial, the state has the burden of
justifying the granting of a mistrial if it is to bring the accused to trial again and avoid the
double jeopardy bar. Arizona v. Washington, 434 U.S. 497 (1977). The prosecutor must
demonstrate manifest necessity' for any mistrial declared over the objection of the
defendant. Id. at 505.
The phrase manifest necessity is taken from United States v. Perez, 9 Wheat. 579, 580
(1824) (Mr. Justice Story), in the following context:
We think, that in all cases of this nature, the law has invested Courts of justice with the
authority to discharge a jury from giving any verdict, whenever, in their opinion, taking
all the circumstances into consideration, there is a manifest necessity for the act, or the
ends of public justice would otherwise be defeated. They are to exercise a sound
discretion on the subject; and it is impossible to define all the circumstances, which
would render it proper to interfere. To be sure, the power ought to be used with the
greatest caution, under urgent circumstances, and for very plain and obvious causes. . . .
But, after all, they have the right to order the discharge; and the security which the
public have for the faithful, sound, and conscientious exercise of the discretion, rests, in
this, as in other cases, upon the responsibility of the Judges, under their oaths of office.
(Emphasis added.)
The Supreme Court in Arizona has interpreted manifest necessity to mean a high degree
of necessity, 434 U.S. at 506. Whether a high degree of necessity has been reached is
answered more easily in some cases than in others. In Helm it was easy; the facts made it
abundantly clear that it was absolutely necessary to declare a mistrial. In the case before us, it
is not so clear. The question now presented is what other circumstances will meet the
manifest necessity standard so as to justify the declaration of a mistrial without resulting
in double jeopardy to the defendant upon retrial.
question now presented is what other circumstances will meet the manifest necessity standard
so as to justify the declaration of a mistrial without resulting in double jeopardy to the
defendant upon retrial.
[Headnotes 1, 2]
We recognize that a defendant may waive the right to conflict-free representation. Kabase
v. District Court, 96 Nev. 471, 611 P.2d 194 (1980). This right of waiver, however, cannot
preclude a trial court from declaring a mistrial when there is a manifest necessity for doing so.
Although defendants were repeatedly canvassed concerning ostensible conflict, their
statements are rather clearly tied to the advice of their mutual counsel and to the trust they
have placed in that counsel. Such statements must be received with caution and in the context
of other factors inherent in the dual representation, factors which are more palpable by the
trial judge than to anyone else.
It was not extreme nor beyond the court's discretion for the trial judge to view the
consolidated trial as being disastrous. The trigger for the court's final decision to declare a
mistrial was the difference of the two defendants' standing to make hearsay objections, a
point raised by the court on its own. Viewing the trial as a whole we cannot and should not
say that a manifest necessity to declare a mistrial was lacking in this case.
The appellant's constitutional right not to be twice placed in jeopardy has not been
violated. Other assignments of error are without merit. We therefore affirm the conviction.
____________
102 Nev. 170, 170 (1986) Roberts v. State
DOUGLAS DOYLE ROBERTS, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 16242
April 24, 1986 717 P.2d 1115
Appeal from judgment of conviction pursuant to a jury verdict of one count of second
degree murder with use of a deadly weapon; Fourth Judicial District Court, Elko County;
Joseph O. McDaniel, Judge.
Defendant was convicted in the district court of second degree murder with use of deadly
weapon. Defendant appealed. The Supreme Court held that evidence was sufficient to support
defendant's requested voluntary manslaughter instruction.
[Rehearing denied June 19, 1986] Conner & Steinheimer, Reno, for Appellant.
Conner & Steinheimer, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Mark Torvinen, District Attorney, Elko
County; James Wilson, Reno, for Respondent.
1. Homicide.
Evidence that defendant killed girlfriend in sudden heat of passion caused by provocation making passion
irresistible was sufficient to require requested instruction on voluntary manslaughter. NRS
200.040-200.060.
2. Homicide.
Serious and highly provoking injury which causes sudden heat of passion for purposes of voluntary
manslaughter can occur without direct physical assault. NRS 200.040-200.060.
OPINION
Per Curiam:
In the early morning hours of March 7, 1984, Ranae Loddy and Charlie Johnston were
asleep in the bedroom of Johnston's trailer in Jackpot. They were awakened by a persistent
knock on the trailer door. Ms. Loddy climbed from bed and went to answer the knock. When
she opened the door, she was shot and killed by her boyfriend, the appellant, Douglas Doyle
Roberts. Johnston exited the trailer via a back door and was not harmed. He phoned the
police from a neighbor's trailer; and when they arrived, Roberts was arrested.
Prior to the night of the shooting Roberts was a senior highway maintenance foreman for
the Nevada Department of Transportation. He had worked for the department for twenty-eight
years and had no prior record of criminal activity. For six years he and Loddy had lived
together in his home with her two children. Ms. Loddy and her children moved out of that
house in September of 1983, although she and Roberts continued to see each other. Loddy's
son, Rick, continued to live with Roberts for a month after she moved out. Thereafter, Rick
occasionally visited Roberts on weekends.
Roberts testified that he believed that he and Loddy would get back together. With that
hope in mind he kept Loddy's car on his insurance policy and continued to pay the premiums.
He also gave Loddy money for her February, 1984, car payment and bought clothes for her
children after they moved out. Roberts stated he did these things because, I felt that they
were still my family. Roberts insisted that he continued to love Loddy and that he saw no
reason not to help her and the children.
On March 6, 1984, Roberts worked only half a day. He had made arrangements with
Loddy to take Rick to Twin Falls, Idaho, to retrieve one of Roberts' pickup trucks.
made arrangements with Loddy to take Rick to Twin Falls, Idaho, to retrieve one of Roberts'
pickup trucks. Roberts intended to loan the truck to Rick so that the boy would have
transportation. Loddy asked Roberts to stop at a drug store in Twin Falls and buy her some
hair rinse. After retrieving the truck and the hair rinse, Robert and Rick returned home around
4:00 p.m. Loddy agreed to get together with Roberts later that evening. Roberts then drove to
a nightclub in Jackpot and had a couple of drinks. He left that club and went to another
where he stayed most of the rest of the evening, leaving once to see if Loddy was home and
returning when he could not find her.
Roberts drank throughout the evening until the bar closed. The bartender at the club,
Charles Sallee, testified that Roberts drank 15-25 drinks between 9:00 p.m. and 1:00 a.m.
when the bar closed. According to Sallee, Roberts was intoxicated when he left the bar.
Sallee testified that Roberts spent the evening drinking and dancing and that he did not appear
to be upset. When Sallee closed the bar at 1:00 a.m., he and some of the other patrons agreed
to meet Roberts at another bar.
Roberts testified that he drove by Loddy's trailer one his way to the other bar. He did not
see Loddy's car at her trailer and drove on; however, as he passed Charlie Johnston's trailer he
noticed Loddy's car parked there. Roberts stated that the next thing he remembered was
Loddy's falling and his yelling for help. He had no other memory of the shooting, but he
denied that he ever intended to kill Loddy.
Charlie Johnston testified that he and Loddy had spent the evening talking and had then
gone to bed. At 1:19 a.m. they heard a knock on the door, and Loddy went to answer it,
assuming it was Roberts. As the door opened, Johnston heard a pop and saw Loddy fall. He
then saw Roberts kneel beside her. As stated above, Johnston left via a backdoor and called
the police.
When sheriff's deputies arrived at Johnston's trailer, they found Roberts' car in the
driveway with the lights on and the engine running. Roberts was sitting in the trailer doorway
cradling Loddy in his lap. He was calling for someone to come help. When the deputies
approached him Roberts was whining and saying, Oh my God, I killed her, please kill me.
Please put me out of my misery. The deputies found Roberts' gun on the couch where he had
tossed it. Roberts was then taken into custody. He had to be strapped to a stretcher to get him
to leave Loddy's body.
Roberts was tried and found guilty of second degree murder.
The only issue it is necessary for us to address is the trial court's refusal to grant Roberts an
instruction on voluntary manslaughter. We conclude that this refusal was error warranting the
reversal of Roberts' conviction and the granting of a new trial. A defendant in a criminal case
is entitled, upon request, to a jury instruction on his theory of the case so long as there is
some evidence, no matter how weak or incredible, to support it.
instruction on his theory of the case so long as there is some evidence, no matter how weak or
incredible, to support it. Williams v. State, 99 Nev. 530, 665 P.2d 260 (1983).
[Headnote 1]
The crime of voluntary manslaughter is defined and described in NRS 200.040, NRS
200.050 and NRS 200.060, the pertinent language being set forth in the margin.
1
It appears
that there is some evidence in this case to support a jury finding that the crime of
manslaughter had been committed.
2
Indeed, the trial judge himself observed that the jury
could have inferred that the defendant was acting in the heat of passion.
3
That there is
evidence to support a finding of the "sudden" nature of the passion cannot be gainsaid.
____________________

1
NRS 200.040 states:
200.040 Manslaughter defined.
1. Manslaughter:
(a) Is the unlawful killing of a human being, without malice express or implied, and without any
mixture of deliberation
. . . .
2. Manslaughter must be voluntary, upon a sudden heat of passion, caused by provocation apparently
sufficient to make the passion irresistible. . . .
NRS 200.050 states:
200.050 Voluntary Manslaughter defined. In cases of voluntary manslaughter, there must be a
serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible
passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on
the person killing.
NRS 200.060 states:
200.060 When killing punished as murder. The killing must be the result of that sudden, violent
impulse of passion supposed to be irresistible; for, if there should appear to have been an interval
between the assault or provocation given and the killing, sufficient for the voice of reason and humanity
to be heard, the killing shall be attributed to deliberate revenge and punished as murder.

2
As indicated, the defendant and the victim has a long-standing relationship. He continued after their
separation to provide her with financial support and to see her romantically. He said that he considered the
victim and her children to be his family. The day of the killing was to a large degree dedicated to her
convenience. He had taken a half day off from his job to furnish her son with a truck. He ran an errand for her
and expected to spend that evening with her. He would have been justified in viewing her standing him up as a
callused insult, greatly aggravated by her taking up sexually with another man on the night of his planned
get-together with her. It is not unreasonable to infer from such circumstances that his discovery provoked him
into a sudden and excessive anger or heat of passion, as the statute reads.

3
This observation was made by the trial court following arguments by the attorneys on the issue of granting a
voluntary manslaughter instruction. We agree with the trial court that the jury may infer that Roberts was in a
rage (i.e., the heat of passion) from his testimony that he cannot recall the shooting and the events immediately
preceding it.
dence to support a finding of the sudden nature of the passion cannot be gainsaid. NRS
200.040 requires that the sudden heat of passion be caused by a provocation apparently
sufficient to make the passion irresistible. NRS 200.050 additionally defines sufficient
provocation in terms of a serious and highly provoking injury inflicted upon the person
killing.
This appeal turns on the question of whether there is evidential support for a fact finding
that this passion could have been caused by sufficient provocation, namely, a serious and
highly provoking injury inflicted upon Roberts.
[Headnote 2]
A serious and highly provoking injury need not be a direct physical assault on the accused.
See Nevada v. Ah Mook, 12 Nev. 369 (1877).
4

From the foregoing, no reason presents itself why a voluntary manslaughter instruction
should not have been given. Accordingly, the conviction is reversed and the cause remanded
for retrial.
____________________

4
Ah Mook admitted killing the victim but claimed that a very short time prior to the killing he had witnessed
a fight between the deceased and Ah Mook's brother. His brother was shot, and when Ah Mook asked the
deceased why he shot his brother, the deceased replied that it was none of his business and that if Ah Mook did
not look out he would kill him too. Ah Mook stepped into his house, got a pistol and shot and killed the
deceased. The trial court gave a manslaughter instruction under these circumstances.
Although the propriety of such an instruction was not in issue on appeal, this court discussed the instruction
at some length, observing that if the killing was the result of a mere blind impulse of passion, then it could not
be murder, unless, of course, the passion was caused by insufficient provocation. . . .
____________
102 Nev. 174, 174 (1986) Keever v. Jewelry Mountain Mines
VIRGIL V. KEEVER, ANNETTE KEEVER and GARDNER CAPLE, Appellants, v.
JEWELRY MOUNTAIN MINES, INC., by and through JOHN M. TRIPP and
NICHOLAS M. HUGHES, Respondents.
No. 16360
April 24, 1986 717 P.2d 1117
Appeal from an order denying motion for costs of an appeal; Eighth Judicial District
Court, Clark County; Donald M. Mosley, Judge.
Appeal was taken by defendants from an order of the district court denying their motion
for costs from an earlier appeal. The Supreme Court held that: (1) the mandatory requirement
set forth in statute of awarding the costs of an appeal is clear, emphatic, and peremptory,
and {2) costs of appeal should have been awarded to defendants upon reversal of
judgment against them and stockholders' derivative action.
in statute of awarding the costs of an appeal is clear, emphatic, and peremptory, and (2) costs
of appeal should have been awarded to defendants upon reversal of judgment against them
and stockholders' derivative action.
Jolley, Urga, Wirth & Woodbury, Las Vegas, for Appellants.
Edwin Dotson, Las Vegas, for Respondents.
1. Costs.
The mandatory requirement set fort in statute of awarding the costs of an appeal is clear, emphatic,
and peremptory. NRS 18.060.
2. Corporations.
Costs of appeal should have been awarded to defendants upon reversal of judgment against them in
stockholders' derivative action. NRS 18.060.
OPINION
Per Curiam:
This appeal follows from an order from the trial court denying a motion by appellants for
their costs from an earlier appeal. In the previous controversy, appellants successfully
obtained a reversal of a judgment against them in a stockholders' derivative action. See
Keever v. Jewelry Mountain Mines, 100 Nev. 576, 688 P.2d 317 (1984). Appellants taxed the
costs of that appeal to this court. Pursuant to NRAP 39(c) the clerk awarded them $250.00.
Appellants then moved for the awarding of costs which are recoverable at the district court
under NRAP 39(e). On January 9, 1985, the trial court denied appellants' motion and
explained that the awarding of costs was discretionary.
[Headnote 1]
Appellants now raise the question of whether the awarding of costs on appeal is mandatory
when the party appealing successfully obtains relief. We find that NRS 18.060 already
addresses this question. It provides as follows:
18.060 Costs of appeal to supreme court; discretion of court. In the following cases
the costs of an appeal to the supreme court shall be in the discretion of the court:
1. Where a new trial is ordered.
2. When a judgment is modified.
In the event no order is made by the court relative to the costs in the two instances
mentioned in this section, the party obtaining any relief shall have his costs.
(Emphasis supplied.) In construing this statute, we have held that its mandatory requirement
of the awarding of costs is clear, emphatic, and peremptory. See Canepa v. Durham, 62 Nev.
429, 155 P.2d 788 (1945); Sorge v. Sierra Auto Supply, 48 Nev. 60, 227 P. 320 (1924);
Dixon v. Southern Pacific Co., 42 Nev. 90, 177 Pac. 14 (1918).
[Headnote 2]
We hold, therefore, that the district court erred in denying the costs of appeal and ruling
that it had the discretion to do so. Appellants were entitled to their costs after our reversal of
the judgment in the derivative action. We reverse the decision denying costs and remand to
the district court.
____________
102 Nev. 176, 176 (1986) State, Dep't of Mtr. Vehicles v. Thompson
STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES, Appellant,
v. KATHERINE B. THOMPSON, Respondent.
No. 16845
April 25, 1986 717 P.2d 580
Appeal from an order to remand to the Department of Motor Vehicles for rehearing;
Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Driver's license was revoked by the Department of Motor Vehicles for driver's failure to
submit to evidentiary test in compliance with implied consent statute. The district court held
that administrative hearing on issue of whether driver in fact failed to submit to required
evidentiary test was invalid as a matter of law in that hearing officer acted improperly as
prosecutor in violation of statute and should have disqualified herself, and remanded to the
Department for a new hearing, and the Department of Motor Vehicles appealed. The Supreme
Court held that: (1) mere fact that hearing officer produced Department documents and
accepted them as being duly authenticated did not make her a prosecutor for the
Department, so as to require hearing officer to disqualify herself from participating in
adjudication, and (2) hearing officer's actions in producing, marking, and offering Department
exhibits, and in questioning Department witnesses to obtain narrative responses did not
suggest hearing officer's taking a prosecutorial role, so as to require her to disqualify herself.
Reversed.
Brian McKay, Attorney General, Carson City, Paul L. Wilkin, Deputy Attorney General,
Las Vegas, for Appellant.
George Foley, Sr., Las Vegas, for Respondent.
1. Automobiles.
Mere fact that hearing officer produced Department documents and accepted them in license
revocation administrative hearing as being duly authenticated did not make hearing officer a prosecutor
for the Department of Motor Vehicles who would thereby be disqualified from taking part in adjudication
of license revocation proceeding. NRS 233B.122.
2. Automobiles.
Department of Motor Vehicles' hearing officer who conducted administrative hearing did not take
prosecutorial role so as to disqualify her from participating in adjudication by producing, marketing, and
offering Department exhibits and questioning Department witnesses with questions requiring narrative
responses that did not suggest a prosecutorial role. NRS 233B.122.
OPINION
Per Curiam:
Respondent Thompson's driver's license was revoked by the Department of Motor
Vehicles (DMV) for her failure to submit to an evidentiary test in compliance with Nevada's
implied consent statute, NRS 484.383. Thompson sought a hearing under NRS 484.387 on
the issue of whether she had in fact failed to submit to the required evidentiary test.
The administrative hearing was conducted on February 28, 1984. Present at the hearing
were the department hearing officer, Thompson, her attorney, and the arresting officer. The
department was not represented by counsel.
Thompson did not argue the question of her failure to submit to the required test; rather,
she argued at the administrative hearing and argues here that the hearing process was invalid
by reason of the hearing officer's acting as a prosecutor in violation of NRS 233B.122.
1
The
district court agreed with Thompson and held that as a matter of law the hearing officer
acted improperly as a "prosecutor" in violation of NRS 233B.122{1) and that the hearing
officer should have disqualified herself under NRS 233B.122{2) and {3).
____________________

1
NRS 233B.122 provides:
233B.122 Certain members of agency prohibited from taking part in adjudication; replacement of
disqualified officer.
1. No agency member who acts as an investigator or prosecutor in any contested case may take any
part in the adjudication of such case.
2. If an officer of an agency disqualifies himself or is disqualified from participating in the
adjudication of any contested case in which a decision will be rendered which is subject to judicial
review, the officer shall send within 3 working days after the disqualification a notice of it to the authority
which appointed him to the agency. The appointing authority shall within 5 working days after receiving
the notice appoint a person to serve in the place of the disqualified officer only for the purpose of
participating in the adjudication of the contested case.
3. The person appointed under subsection 2 shall have the same qualifications required by law of the
officer whom he replaces and is entitled to the same salary and per diem and travel expenses allowed to
that officer.
The district court agreed with Thompson and held that as a matter of law the hearing
officer acted improperly as a prosecutor in violation of NRS 233B.122(1) and that the
hearing officer should have disqualified herself under NRS 233B.122(2) and (3). The district
court remanded to the department for a new hearing. We reverse the district court. We hold
that the procedures employed in this case do not constitute such a violation of the
administrative procedures act or of any of Thompson's rights as to require an invalidation of
the department's adjudication or an administrative rehearing of Thompson's license
revocation proceedings.
[Headnote 1]
Thompson's primary concern appears to be the hearing officer's producing, marketing, and
offering department exhibits. The hearing officer had in her possession at the commencement
of the hearing documents supporting the department's position. The mere fact that the hearing
officer produced department documents and accepted them as being duly authenticated does
not make her a prosecutor for the department. Administrative hearing officers are
commonly known to commence hearings with the introduction and acceptance of official
administrative documents relating to the cause to be heard. We discover no inherent
prosecutorial bias involved in the procedure at hand.
[Headnote 2]
Thompson also complains that the hearing officer questioned department witnesses in such
a manner as to be acting as a prosecutor for the department rather than as an independent and
unbiased adjudicator. For example, there being no counsel for the department present, the
hearing officer asked the arresting officer to relate the circumstances that led up to the
revocation of Petitioner's driving privilege. In response to questioning the arresting officer
gave narrative answers which do not suggest the hearing officer's taking a prosecutorial role.
Certain instances can be imagined in which a department hearing officer, one who is in
fact an agent of the department, could be seen to have crossed the line into the prosecutorial
and adversarial realm. In such cases the hearing would have to be invalidated by reason of
claimed statutory violations but also because of the inherent unfairness of a hearing officer's
acting in a prosecutorial role. This is not the case here; so we reverse the district court and
reinstate the decision and order of the department.
____________
102 Nev. 179, 179 (1986) York v. York
BILLY DEAN YORK, Appellant, v. JEANNE
DARLENE YORK, Respondent.
No. 15536
May 1, 1986 718 P.2d 670
Appeal from judgment distributing community assets. Second Judicial District Court,
Washoe County; Robert L. Schouweiler, Judge.
In divorce action, the district court awarded former wife $15,000. Former husband
appealed. The Supreme Court, 99 Nev. 491, 664 P.2d 967, reversed and remanded. On
remand, the district court determined that the former wife was entitled to $13,042.41 and
awarded her $2,900 for other services. Former husband appealed. The Supreme Court held
that: (1) former wife was entitled to interest in former husband's separate property, where
community funds were expended for mortgage payments on that property, and it was not error
to award former wife monies to offset acquired interest in former husband's separate property
residence; (2) trial court properly took into account interest on community debt, for which
former wife had assumed responsibility after separation, in determining equal distribution of
responsibility for a debt; and (3) award to former wife of $2,900 for other services, which
was based upon former wife's performance of household duties and care of former husband's
children during marriage, was error.
Petty and Petty, Reno, for Appellant.
W. H. Tobeler, Reno, for Respondent.
1. Husband and Wife.
Community acquires interest to extent and in proportion that purchase price of separate property is
contributed by community.
Former wife was entitled to interest in former husband's separate property, where community funds were
expended for mortgage payments on that property, and it was not error to award former wife monies to
offset acquired interest in former husband's separate property residence.
3. Divorce.
Trial court properly took into account interest on community debt, for which former wife had assumed
responsibility after separation, in determining equal distribution of responsibility for a debt.
4. Divorce.
Award to former wife of $2,900 for other services, which was based upon former wife's performance of
household duties and care of former husband's children during marriage, was error.
102 Nev. 179, 180 (1986) York v. York
OPINION
Per Curiam:
On June 15, 1983, this court determined that an award to Ms. York of $15,000.00 in a
divorce action was error. The cause was remanded with instructions that the district court
should determine whether it is necessary to redistribute the community assets in light of our
determination that respondent is not entitled to the $15,000.00 which she was awarded. York
v. York, 99 Nev. 491, 493, 664 P.2d 967, 968 (1983). On remand, the district court
determined that Ms. York was entitled to $13,042.41. We hold that the district court erred by
awarding $2,900.00 for other services. We reverse and remand for a modification of the
judgment as to this amount.
Discussion
The district court determined that Ms. York was entitled to $13,042.41 for her
contributions to Mr. York's separate property residence, for her repayment of a community
debt and for other services. On appeal, Mr. York claims that the district court abused its
discretion.
[Headnotes 1, 2]
Mr. York first contends that the lower court erred because part of the award was based on
the fact that during the marriage, community funds were used to pay a second mortgage
outstanding against his separate property residence. Mr. York claims the second mortgage
secured a personal loan acquired by the parties after their marriage. There is no evidence
before this court, however, to support his contention. An order was filed by this court on
January 4, 1985, directing that the record be supplemented with this particular evidence. This
was not done. The order directed that if the record was not supplemented, [w]e will presume
that this evidence was not before the district court and we will disregard any factual
allegations contained in the briefs and not supported by the record on appeal. It is
uncontested that community funds were expended for the mortgage payments on Mr. York's
separate property. Thus, the community acquires an interest to the extent and in the
proportion that the purchase price is contributed by the community. Sly v. Sly, 100 Nev. 236,
239, 679 P.2d 1260, 1262 (1984). Thus, Ms. York would be entitled to an interest in the
property. The district court did not err by awarding her monies to offset this acquired interest
in Mr. York's separate property residence.
[Headnote 3]
Mr. York also contends that the district court erred by failing to order an equal
distribution of responsibility for a community debt.
102 Nev. 179, 181 (1986) York v. York
order an equal distribution of responsibility for a community debt. Examination reveals that
the district court did apportion the debt equally. Mr. York's claim that his community
obligation for this debt should only be $750.00 is erroneous in that he fails to acknowledge
interest accrual. The Yorks borrowed $1,500.00 around the time of their separation. After
separation, Ms. York assumed responsibility for repayment of the loan. During oral argument,
counsel for Mr. York conceded that the terms of the loan required $72.36 per month for
thirty-six (36) months. Thus, repayment totalled $2,604.96. One-half of this amount is
$1,302.48 and this was the award to Ms. York. Thus, the district court did not err.
Mr. York next contends that the district court erred by awarding $2,900.00 to Ms. York
for other services. This award was based on evidence that Ms. York performed general
household duties and cared for Mr. York's children.
[Headnote 4]
It is generally recognized that the marital community is a partnership to which both parties
contribute. Each spouse contributes his or her industry in order to further the goals of the
marriage. There was evidence to show that Ms. York labored for the benefit of her marital
relationship by performing household duties. She fails, however, to cite any authority for the
proposition that such services are compensable upon divorce. This court has repeatedly held
that contentions which are unsupported by authority need not be considered. Cf., Cummings
v. Tinkle, 91 Nev. 548, 551, 539 P.2d 1213, 1215 (1975). Thus, the district court erred by
awarding $2,900.00 for other services. Accordingly, we reverse this portion of the district
court's ruling and remand for a modification of the judgment.
____________
102 Nev. 181, 181 (1986) Koza v. State
MAGGIE JO KOZA, Appellant, v. THE STATE
No. 15799
May 1, 1986 718 P.2d 671
Appeal from a judgment of conviction for first degree murder with the use of a deadly
weapon, and robbery with the use of a deadly weapon; Eighth Judicial District Court, Clark
County; Addeliar D. Guy, Judge.
Defendant was convicted in the district court of first degree murder with the use of a
deadly weapon, and she appealed. The Supreme Court held that: (1) contact of detectives with
defendant at time in question constituted an interrogation which, by reason of defendant's
prior assertion of counsel, was prohibited without presence of an attorney where
detective not only told defendant that she would be charged with murder, but also
detailed part of evidence against her, an act obviously beyond necessities of any
rebooking, making it apparent from defendant's perspective that detectives were hoping
to elicit a statement, and {2) statements made by defendant pursuant to an interrogation
conducted without presence of counsel when defendant had previously invoked her right
to counsel were not admissible notwithstanding whether particular counsel was actually
representing defendant.
102 Nev. 181, 182 (1986) Koza v. State
at time in question constituted an interrogation which, by reason of defendant's prior assertion
of counsel, was prohibited without presence of an attorney where detective not only told
defendant that she would be charged with murder, but also detailed part of evidence against
her, an act obviously beyond necessities of any rebooking, making it apparent from
defendant's perspective that detectives were hoping to elicit a statement, and (2) statements
made by defendant pursuant to an interrogation conducted without presence of counsel when
defendant had previously invoked her right to counsel were not admissible notwithstanding
whether particular counsel was actually representing defendant.
Helen I. Jones, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City, Robert Miller, District Attorney, James
Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
A court determining whether there has been a proper waiver of right to counsel must separately focus on
whether the waiver was voluntary and whether it was knowingly and intelligently made. U.S.C.A.Const.
Amend 6.
2. Criminal Law.
Once an accused has asserted the right to counsel, all interrogation must cease until an attorney is present.
U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Waiver of right to counsel during subsequent interrogation is not established by a showing that accused
was once again advised of his rights. U.S.C.A.Const. Amend. 6.
4. Criminal Law.
A waiver of right to counsel is invalid when an accused's prior assertion of right is not honored.
U.S.C.A.Const. Amend 6.
5. Criminal Law.
Contact of detectives with defendant at time in question constituted an interrogation which, by reason of
defendant's prior assertion of right to counsel, was prohibited without presence of an attorney, where
detective not only told defendant that she would be charged with murder, but also detailed part of evidence
against her, an act obviously beyond necessities of any rebooking, making it apparent from defendant's
perspective that detectives were hoping to elicit a statement. U.S.C.A.Const. Amend. 6.
6. Criminal Law.
Statements made by defendant pursuant to an interrogation conducted without presence of counsel when
defendant had previously invoked her right to counsel were not admissible notwithstanding whether
particular counsel was actually representing defendant. U.S.C.A.Const. Amend. 6.
102 Nev. 181, 183 (1986) Koza v. State
7. Criminal Law.
Rule in Edwards prohibiting interrogation of an accused in custody if he has clearly asserted his right to
counsel does not turn on employment of counsel, but rather on invocation of right to counsel.
8. Criminal Law.
Withdrawal of particular counsel does not constitute a waiver of asserted right to counsel so as to
authorize reinterrogation of accused without counsel. U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
On November 5, 1980, Maggie and Joe Koza were arrested and charged with conspiracy to
commit robbery. Subsequently they were also charged with the murder of a Las Vegas taxi
cab driver. Joe Koza was convicted of that murder and his conviction was upheld by a
decision of this court in Koza v. State, 100 Nev. 245, 681 P.2d 44 (1984). This appeal
concerns Maggie's murder conviction for her role in that slaying. The only issue we need
address is the admissibility of Maggie's November 7, 1980, custodial statements.
1

At approximately 11:00 a.m., the morning after her arrest, Maggie was taken from the
Clark County Jail Annex to the Las Vegas Metropolitan Police Department's Detective
Bureau. At that time she was advised of her rights as required by Miranda v. Arizona, 384
U.S. 436 (1966).
The detectives informed Maggie that she was a suspect in a murder unrelated to the one in
the instant appeal. Maggie then asked that she be permitted to speak with her husband before
discussing any murders. (At that time Joe Koza was in Southern Nevada Memorial Hospital
being treated for drug withdrawal and a related infection.) The detectives ceased their
questioning of Maggie and returned her to the jail. They then proceeded to the hospital to
interview Joe. Joe Koza told the detectives that he and Maggie each had a $500.00 per day
heroin and cocaine habit. Joe refused to discuss the charges against him and requested to
speak with attorney John Momot. The detectives then returned to the detective bureau and
tried unsuccessfully to contact Momot.
At approximately 2:00 p.m. the detectives brought Maggie back to the detective bureau
and arranged a telephone conversation between the Kozas. After talking with her husband,
Maggie told the detectives that she would also like to speak with attorney Momot.
____________________

1
Because our disposition of this appeal turns on this single issue, the reader is referred to Koza v. State,
above, for details of the crime.
102 Nev. 181, 184 (1986) Koza v. State
Momot. The detectives did not question her further but left her handcuffed to a rail in the
interrogation room.
Momot arrived at the detective bureau at approximately 4:45 p.m. When Momot
completed his conference with Maggie she was returned to the jail. Momot testified that he
told the detectives that he did not know if he would be representing both the Kozas or only
Joe, that no determination had been made but that for the time being he represented them
both. He also told the police that he had advised Mrs. Koza not to talk with them.
The detectives next spoke with Maggie on the following morning, November 7. The
detectives first returned to the hospital to see Joe; however, he refused to speak to them. One
of the detectives then telephoned Momot to verify that Koza was asserting his right to
counsel. According to that detective Momot told him that they were not to question Joe and
that he was not going to represent Maggie. Momot testified that he did not tell the detectives
until several days later on November 11 that he would not be representing Maggie.
The detectives left the hospital and returned to the detective bureau where they once again
brought Maggie to the interrogation room. The detectives claimed that Maggie was only
returned to the interrogation room so that they could rebook her for the murder involved in
the instant appeal. After again advising her of her rights the detectives advised Maggie that
they had evidence against her in connection with an additional murder and that she would be
charged with that crime. They then proceeded to detail the evidence they claimed to have
against her, namely, a palm print and the results of a ballistics test. According to one of the
detectives, Maggie then stated: I knew it was coming. I knew the horse was going to kick,
and it hurts. She then spoke for about an hour, detailing three separate murders which she
stated that she and her husband were responsible for. Maggie agreed to give a formal
statement to the detectives but wanted to speak with her husband first. The detectives
arranged for a phone call; however, after speaking with her husband, Maggie refused to talk
to the police any further. She was then returned to her jail cell.
The district court ruled that the statements made by Maggie were made after a voluntary,
knowing and intelligent waiver of her fifth, sixth and fourteenth amendment rights. Such is
not the case; so we reverse.
[Headnote 1]
To determine whether there has been a proper waiver of right to counsel the court must
separately focus on whether the waiver was voluntary and whether it was knowingly and
intelligently made. Edwards v. Arizona, 451 U.S. 477 (1981). The United States Supreme
Court has noted that the right to counsel is a prime example of those rights requiring the
special protection of the knowing and intelligent waiver standard."
102 Nev. 181, 185 (1986) Koza v. State
the knowing and intelligent waiver standard. Edwards at 483, citing Schneckloth v.
Bustamonte, 412 U.S. 218, 241 (1973). See also Tomarchio v. State, 99 Nev. 572, 665 P.2d
804 (1983).
[Headnotes, 2, 3]
Once an accused has asserted the right to counsel, all interrogation must cease until an
attorney is present. Miranda v. Arizona, 384 U.S. 436 (1966). In Edwards, above, the United
State [States] Supreme Court held that it was inconsistent with Miranda and its progeny for
the authorities, at their instance, to reinterrogate an accused in custody if he has clearly
asserted his right to counsel. 451 U.S. at 485. Waiver of that right is not established by a
showing that the accused was once again advised of his rights:
[W]e now hold that when an accused has invoked his right to have counsel present
during custodial interrogation, a valid waiver of that right cannot be established by
showing only that he responded to further police-initiated custodial interrogation even
if he has been advised of his rights. We further hold that an accused, such as Edwards,
having expressed his desire to deal with the police only through counsel, is not subject
to further interrogation by the authorities until counsel has been made available to him,
unless the accused himself initiates further communication, exchanges, or
conversations with the police.
451 U.S. at 484, 485 (footnote omitted).
[Headnote 4]
In a recent decision, Michigan v. Jackson, 54 U.S.L.W. 4334 (1986), the United States
Supreme Court discussed and applied the principle of Edwards v. Arizona to a situation in
which two defendants requested appointment of counsel at separate arraignments. Before the
defendants had had an opportunity to consult with counsel, police officers, after advising the
defendants of their Miranda rights, questioned them and obtained written waivers of rights
and confessions. The Supreme Court noted that under Edwards once a suspect has invoked
his right to counsel, the police may not initiate interrogation until counsel has been made
available to the suspect. Quoting Edwards, for the proposition that the assertion of the right
to counsel [is] a significant event, the Court in Michigan held that a waiver of rights was
invalid where the defendant's assertion of the right to counsel had not been honored.
If there could have been any doubt about the meaning of Edwards such a doubt was
removed by the reaffirmation and expansion of the Edwards ruling in Michigan. There is no
way in which this court can hold the interrogation here to be valid.
102 Nev. 181, 186 (1986) Koza v. State
The impermissible further interrogation prohibited by Edwards and Michigan need not,
of course, take the form of a question and answer session. In Rhode Island v. Innis, 446 U.S.
291 (1980), the Supreme Court held that techniques of persuasion other than questioning
may amount to interrogation.
That is to say, the term interrogation under Miranda refers not only to express
questioning, but also to any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect. The latter portion of this
definition focuses primarily upon the perceptions of the suspect, rather than the intent
of the police. This focus reflects the fact that the Miranda safeguards were designed to
vest a suspect in custody with an added measure of protection against coercive police
practices, without regard to objective proof of the underlying intent of the police. A
practice that the police should know is reasonably likely to evoke an incriminating
response from a suspect thus amounts to interrogation. But, since the police surely
cannot be held accountable for the unforeseeable results of their words or actions, the
definition of interrogation can extend only to words or actions on the part of the police
officers that they should have known were reasonably likely to elicit an incriminating
response.
446 U.S. at 301, 302 (emphasis partially supplied; footnotes omitted).
Maggie Koza was first interrogated on the morning of November 6. After talking with her
husband, Maggie told the detectives that she did not want to talk to them and wanted instead
to talk to attorney Momot. The next day, November 7, the detectives took Maggie back to the
interrogation room in the detective bureau. The detectives testified that this was not done to
interrogate Maggie, but rather to rebook her on the murder charge. The detectives admitted
that it was not necessary to the rebooking that they return Maggie to the interrogation room.
There was testimony by others that Maggie said that she did not want to go with the
detectives. The lower court expressly found that there was no doubt that a jail matron told
Maggie that she had to go with the detectives.
Once Maggie was confined in the interrogation room the detectives read her her rights and
told her that she was under arrest for murder. Maggie refused to sign a rights waiver. They
then explained to her that ballistics tests on a gun found in the motel room where she was
originally arrested had revealed that the gun positively matched a bullet removed from the
victim. They also told her that her fingerprints had been identified on the victim's taxi.
102 Nev. 181, 187 (1986) Koza v. State
taxi. At that point she made the incriminating statements which are the subject of this appeal.
[Headnote 5]
It is immediately apparent that the detectives' contact with Maggie on the 7th of November
constituted an interrogation within the meaning of Rhode Island v. Innis, above. Focusing on
the perception of Maggie, rather than the intent of the police, as Innis requires, we see that
Maggie was told that she had to go with the detectives. She was placed in an interrogation
room where she had spent several hours the day before. The detectives not only told her she
would be charged with murder, they also detailed part of the evidence against her, an act
obviously beyond the necessities of any rebooking. From the perspective of a suspect in
Maggie's position it would be apparent that the detectives were hoping to elicit a statement.
Certainly the officers should have known that their comments and actions were reasonably
likely to elicit an incriminating response. Innis at 301.
The Supreme Court of Delaware has very recently addressed a factual scenario similar to
the one now at bar. In Wainwright v. State, 504 A.2d 1096 (1986), the defendant had invoked
his right to counsel. Subsequently, while being booked, a police officer told the defendant
that he was being charged because a codefendant had made a statement implicating him.
Forty-five minutes later the defendant made to the officers a statement which was used
against him at his trial. The Delaware Supreme Court characterized the police officer's
comments about the evidence against the defendant as a gratuitous and totally unnecessary
tactic which was reasonably calculated to elicit a reaction from the defendant. 504 A.2d at
1103. The Delaware court went on to hold that [a]ny attempt to spark' a statement in the
absence of counsel through presentation of evidence will contaminate the waiver. 504 A.2d
at 1103.
[Headnotes 6, 7]
Because the instant interrogation and consequent statement resulted from police initiative
and not at the instance of Maggie, Edwards v. Arizona, above, requires that her statements be
suppressed if she had previously invoked her right to counsel. The lower court ruled that the
Edwards doctrine does not apply to Maggie because she was not represented by counsel. That
ruling was erroneous as Edwards does not turn on the employment of counsel, but rather on
the invocation of the right to counsel. Edwards above.
There is no dispute that Maggie demanded to speak to attorney Momot on November 6.
The testimony was conflicting as to when Momot told the detectives that he was not going to
represent Maggie; Momot said it was on the 11th and they said it was on the 7th,
immediately before Maggie was brought back to the interrogation room.
102 Nev. 181, 188 (1986) Koza v. State
on the 7th, immediately before Maggie was brought back to the interrogation room. Two
things are certain: Maggie was not informed on the 7th that Momot was not going to
represent her, and although she had requested counsel, she was not provided another attorney
until November 12, 1980.
[Headnote 8]
As Edwards v. Arizona holds, it is no saving grace to a police-initiated interrogation that
the accused is once again read his or her rights if the accused has already invoked the right to
counsel. Once invoked, that right must be scrupulously honored. In the instant case it is
apparent that Maggie invoked her right to counsel on the 6th. Attorney Momot expressly told
the detectives that Maggie had been advised not to speak to them. Whether the detectives
knew on the 7th that Momot would not be representing Maggie is irrelevant because, either
way, she had invoked her right to counsel and their actions violated that right. The
withdrawal of particular counsel does not constitute a waiver of the right to counsel. As the
United States Supreme Court stated in Main v. Moulton, 54 U.S.L.W. 4039 (1985), Once
the right to counsel has attached and been asserted, the State must of course honor it. This
means more than simply that the State cannot prevent the accused from obtaining the
assistance of counsel. The Sixth Amendment also imposes on the State an affirmative
obligation to respect and preserve the accused's choice to seek this assistance. 54 U.S.L.W.
4042 (footnote omitted).
The burden of proving waiver by a preponderance of the evidence is on the state. North
Carolina v. Butler, 441 U.S. 369 (1979); Brimmage v. State, 93 Nev. 434, 567 P.2d 54
(1977). Because the finding of waiver in this case is clearly not supported by the record the
lower court's refusal to suppress Maggie's November 7, 1980, statements was error and must
be reversed. See Tomarchio v. State, above.
Accordingly, the judgment of the district court is reversed and this matter is remanded for
further proceedings consistent with this opinion.
____________
102 Nev. 189, 189 (1986) National Tow v. Integrity Ins. Co.
NATIONAL TOW & ROAD SERVICE, INC., Appellant and Cross-Respondent, v.
INTEGRITY INSURANCE CO., Respondent and Cross-Appellant.
No. 16383
May 1, 1986 717 P.2d 581
Appeal and cross appeal from summary judgment in favor of respondent. Second Judicial
District Court, Washoe County; Richard C. Minor, Judge.
Appeal and cross appeal were taken from summary judgment of the district court declining
to award title to automobile to holder of lien for towing and storage charges. The Supreme
Court held that statute providing that costs may be awarded in action to recover possession of
personal property was inapplicable to action brought to obtain issuance of title certificate for
automobile.
Affirmed.
Fran P. Archuleta, Reno, for Appellant and Cross-Respondent.
D. G. Menchetti, Ltd. and Bradley P. Elley, Incline Village, for Respondent and
Cross-Appellant.
1. Automobiles.
Auction sale to foreclose on lien for towing and storing automobile was void where lienor failed to give
written notice to Department of Motor Vehicles prior to occurrence of the sale. NRS 108.270,
108.310.
2. Costs.
Statute providing that costs may be awarded in action to recover possession of personal property was
inapplicable to action brought to obtain issuance of title certificate for automobile. NRS 18.020.
OPINION
Per Curiam:
This is an appeal and cross appeal from the granting of summary judgment in favor of
respondent. We have determined that summary judgment was proper as a matter of law;
therefore, we affirm.
On or about October 6, 1983, appellant, pursuant to a request by the Reno Police
Department, towed and stored a certain 1983 Nissan Sentra. Appellant rendered services for
towing and storage amounting to $540.00. Thereafter, at appellant's request, a vehicle
appraisal report was completed on November 1, 1983, by the Department of Motor Vehicles
(DMV). This report included a check of the National Crime Information Computer (NCIC)
which revealed no information on the vehicle. Additionally, the DMV had Oregon check the
lower 4S states by computer.
DMV had Oregon check the lower 48 states by computer. This effort also turned up no
information on the vehicle. Having failed to ascertain the owner of the Sentra by the
aforementioned means, appellant proceeded to pursue enforcement of its lien rights under
NRS ch. 108. Appellant purchased the car at an auction sale after having published notice in
the Reno Gazette Journal on January 17, 24 and 31, 1984. No notice of the sale had been
directed to the DMV.
After the sale, appellant sought the issuance of a title certificate from the DMV reflecting
appellant's newly acquired ownership of the vehicle. In the process of considering appellant's
request, the DMV contacted a private organization known as the National Automobile Theft
Bureau to conduct a title search on the Sentra. As a result, it was determined that the vehicle
had been embezzled from a Lakeport, California, automobile dealer. The DMV thereafter
refused to issue a certificate of title and appellant filed suit to determine its rights in the
vehicle.
Respondent offered to pay all storage and towing charges in return for appellant
relinquishing the car. Appellant refused on the basis that the auction was valid and that
appellant was the true owner of the vehicle. Initially, appellant obtained a temporary
restraining order (TRO), restraining anyone from moving the car from appellant's possession.
After the TRO expired, the court refused to extend it. Appellant then moved for a writ of
mandamus to compel the DMV to issue a title. The motion was denied. Thereafter,
respondent filed a motion for summary judgment, which was granted.
[Headnote 1]
The procedure for establishing a statutory lien is set forth in NRS chapter 108, et seq. Two
sections apply directly to liens for the storage of motor vehiclesNRS 108.270 and 108.310.
NRS 108.310, in pertinent part, provides:
108.310 Satisfaction of lien; sale by auction; disposition of proceeds. Subject to the
provisions of NRS 108.315, the lien created in NRS 108.270 to 108.360, inclusive, may
be satisfied as follows:
1. The lien claimant shall give written notice to the person on whose account the
storing, maintaining, keeping, repairing, labor, fuel, supplies, facilities, services or
accessories were made, done or given, and to any other person known to have or to
claim an interest in the motor vehicle, aircraft, motorcycle, motor or aircraft equipment,
aircraft parts or trailer, upon which the lien is asserted, and to the:
* * * *
(b) Registration division of the department of motor vehicles and public safety. . . .
The statute requires written notice to the DMV prior to the occurrence of the auction sale. In
the case at bar, the DMV was not notified until after the auction had occurred. Shortly
thereafter, a secondary source was contacted and additional information was obtained on the
vehicle in question. Had the DMV been contacted prior to the auction as required, the entire
controversy would have been avoided. Due to appellant's failure to so notify the DMV, the
auction sale is void. It is well established that if the language of a statute is plain and
unambiguous, there is no basis for its construction by the court. See Silverman v. Fireman's
Fund Amer. Ins., 96 Nev. 30, 604 P.2d 805 (1980). Therefore, the summary judgment granted
by the district court was proper.
[Headnote 2]
Additionally, respondent in its cross appeal contends that the district court had an
obligation to award attorney fees and court costs when the motion for summary judgment was
granted. NRS 18.020 provides that costs must be awarded in an action to recover the
possession of personal property where the value is more than $1,250. However, the instant
case arose from a dispute over ownership. It was not an action to recover personal property.
Therefore, under NRS 18.050, costs are within the discretion of the court. NRS 18.010
specifies instances when the court may allow attorney fees. The district court exercised its
discretion in not allowing attorney fees. There is no evidence that the district court abused its
discretion in either of its discretionary rulings.
Accordingly, we affirm in its entirely the order of the district court granting summary
judgment.
___________
102 Nev. 191, 191 (1986) Kraft v. Nev. Emp. Sec. Dep't.
ROBERT D. KRAFT, Appellant, v. NEVADA EMPLOYMENT SECURITY
DEPARTMENT, STATE OF NEVADA; STANLEY P. JONES, in his capacity as
Executive Director of the NEVADA EMPLOYMENT SECURITY DEPARTMENT;
and IMPERIAL 400 MOTOR LODGE, Respondents.
No. 15960
May 1, 1986 717 P.2d 583
Appeal from order upholding administrative denial of unemployment benefits. First
Judicial District Court, Carson City; Michael E. Fondi, Judge.
After an appeals referee awarded unemployment benefits, the Employment Security
Department determined that the employee had been fired for misconduct.
had been fired for misconduct. The district court upheld that determination. Employee
appealed. The Supreme Court held that: (1) the board of review was authorized to undertake a
de novo review of the appeals referee's decision, and (2) the employee's conduct of remaining
with his disabled automobile for over three hours without notifying the employer was
misconduct which rendered the employee ineligible for benefits.
Affirmed.
Nevada Indian Rural Legal Services and Richard E. Olson, Carson City, for Appellant.
Crowell, Crowell, Crowell & Susich and Daniel L. O'Brien, Carson City, for Respondents.
Employment Security Department Board of Review has authority to undertake de novo review of appeals
referee's decision awarding unemployment benefits. NRS 612.515, subd. 3, 612.530, subd. 4.
Employee's conduct of remaining with his disabled automobile for three hours without notifying
employer amounted to misconduct which rendered employee ineligible for unemployment benefits. NRS
612.385.
OPINION
Per Curiam:
1

Employment Security Department (ESD) determined that appellant, an employee fired by
his last employer, had been terminated for misconduct and was therefore ineligible for
unemployment benefits. The district court upheld that determination and this appeal followed.
Appellant was employed as a laundry worker at the Imperial 400 Motor Lodge in Las
Vegas from December, 1982, until May, 1983. On May 21, 1983, appellant was on his way to
work when his car broke down. Although he initially stated that he had been driving along the
freeway when the breakdown occurred, he later testified that he had been on the Boulder
Highway and had stalled near the Showboat Casino.
Appellant had previously been told by his employer to call in if he anticipated being late
or absent. In this instance appellant claimed, there was no telephone in the vicinity and,
accordingly, he made no attempt to contact his supervisor in order to apprise her of the
problem.
____________________

1
This appeal was previously dismissed on the merits in an unpublished order of this court. Upon motion of
respondent Employment Security Department, we have determined that our decision should be issued in a public
opinion. Accordingly, we hereby issue this opinion in place of our order dismissing appeal filed March 5, 1986.
accordingly, he made no attempt to contact his supervisor in order to apprise her of the
problem. Instead, he remained standing next to his car for over 3 hours, until a passerby
stopped and volunteered to give him a tow. Appellant was fired either the same day or the day
after.
Appellant's subsequent application for unemployment benefits was denied on the ground
that he had been terminated for misconduct within the meaning of NRS 612.385.
2
This
determination was appealed to an appeals referee, who entered an order awarding benefits.
The employer thereafter sought review by the ESD board of review. Although the board
largely accepted appellant's version of the facts, it entered a decision reversing the appeals
referee. Appellant filed a petition for review in the district court, which upheld the decision of
the board. This appeal followed.
[Headnote 1]
Appellant initially contends that the board of review impermissibly substituted its
judgment for that of the appeals referee; he argues that the board was obligated to uphold the
referee's decision if that decision was supported by substantial evidence. Although this
precise question was not then before us, we implicitly rejected appellant's argument in a case
decided last year. See Leeson v. Basic Refractories, 101 Nev. 384, 705 P.2d 137 (1985). In
Leeson, the district court had reversed a decision of the board of review. We held that,
because the board's determination was supported by substantial evidence, the district court
had erred in setting it aside. In so holding, we stated:
Pursuant to NRS 612.515(3), the Board of Review is authorized to affirm, modify
or reverse a decision of the appeals referee. The Board may act solely on the basis of
evidence previously submitted, or upon the basis of such additional evidence as it may
direct to be taken. Id.
The district court's power to review a decision of the Board, however, is more
limited. Where review is sought, the factual findings of the Board, if supported by
evidence . . . shall be conclusive, and the jurisdiction of the court shall be confined to
questions of law. NRS 612.530(4). Our decisional law is to the same effect. . . . In
short, while the Board of Review is empowered to conduct a de novo review of the
decisions of the appeals referee, the district court has no similar authority with respect
to the decisions of the Board.
____________________

2
NRS 612.385: A person is ineligible for benefits for the week in which he has filed a claim for benefits, if
he was discharged from his last or next to last employment for misconduct connected with his work, and remains
ineligible until he earns remuneration in covered employment equal to or exceeding his weekly benefit amount in
each of not more than 15 weeks thereafter as determined by the executive director in each case according to the
seriousness of the misconduct.
101 Nev. at 385-86, 705 P.2d at 138; emphasis added. If the two statutes referred to in Leeson
are read together, it seems clear to us that appellant's argument must be rejected. While the
board of review is authorized to affirm, modify or reverse the appeals referee on the basis
of the existing record, the jurisdiction of the district court is confined to questions of law.
NRS 612.515(3); 612.530(4). The district court has no power to undertake a de novo review,
but it is clearly contemplated that the board of review shall have such authority. Accordingly,
we reject appellant's argument on this point.
[Headnote 2]
Appellant's primary contention is that his conduct did not amount to misconduct within the
meaning of NRS 612.385. We have defined misconduct to include [c]arelessness or
negligence on the part of the employee of such a degree as to show a substantial disregard of
the employer's interests or the employee's duties and obligations to his employer. Barnum v.
Williams, 84 Nev. 37, 41, 436 P.2d 219, 222 (1968). While this court has never addressed
conduct of the sort at issue here, numerous decisions in other jurisdictions hold that an
employee is guilty of misconduct if he unreasonably fails to give his employer notice of his
anticipated absence or tardiness. See, e.g., Jenkins v. Agri-Lines Corp., 602 P.2d 47 (Idaho
1979); Cronnelly v. Industrial Commission, 533 P.2d 950 (Colo.Ct.App. 1975). As the
Supreme Court of Idaho has stated, [i]t is the duty of the employee to have regard for the
interests of his employer and for his own job security, and to act as a reasonably prudent
person would in keeping contact with his employer. . . . Doran v. Employment Security
Agency, 267 P.2d 628, 630 (Idaho 1954). Although circumstances may vary this duty,
good faith on the part of the employee must always appear. Id. Cf. Northeastern Hosp. v.
Com., Unemployment, Etc., 439 A.2d 1337 (Pa.Commw.Ct. 1982) (misconduct not present
where employee made good faith effort to notify employer).
Two reasons were offered here for appellant's failure to contact his employer. First,
appellant stated that he was unwilling to leave his disabled car. Clearly, however, appellant
might have remained standing in the highway indefinitely had he not been offered assistance;
there must be a point when inaction can only be viewed as the product of indifference.
Implicit in the board's decision is a finding that appellant failed to act reasonably and in good
faith under the circumstances. Even if we disagreed with that finding, we would be powerless
to set it aside. See McCracken v. Fancy, 98 Nev. 30, 639 P.2d 552 (1982) (reviewing court
may not substitute its judgment for that of the agency). Appellant also asserted that he could
not have called his employer because there was no telephone in the vicinity.
because there was no telephone in the vicinity. Given the fact that appellant was in a business
district, near a large casino, the board obviously rejected this testimony as incredibleas it
was undoubtedly free to do. See Cross v. Industrial Commission, 359 S.W.2d 494
(Mo.Ct.App. 1962). Appellant's argument on this point is likewise without merit.
We have considered appellant's remaining contentions and reject them without further
discussion. The judgment of the district court is affirmed.
____________
102 Nev. 195, 195 (1986) Summers v. State
SHEILA ANN SUMMERS, Appellant v. THE STATE
No. 15524
May 1, 1986 718 P.2d 676
Appeal from judgment of conviction for first degree murder with use of a deadly weapon
and sentence of death. Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
Defendant was convicted by jury in the district court of first degree murder with use of
deadly weapon and sentenced to death. On appeal, the Supreme Court held that: (1) defendant
had not established nonneutrality of death-qualified jury; (2) defendant was not entitled to
voir dire each prospective juror individually; (3) warrantless, electronic recording was
admissible; (4) co-defendant's suicide note violated defendant's confrontation right; and (5)
admission of suicide note was prejudicial error.
Morgan D. Harris, Public Defender, Terrence M. Jackson, Deputy, and Craig D. Creel,
Deputy, Clark County, for Appellant.
Brian McKay, Attorney General, Carson City, and Robert J. Miller, District Attorney,
Nancy Oesterle, Deputy, Clark County, for Respondent.
1. Jury.
Denial of motion opposing death qualification of jury that was supported only by citation to articles
indicating that death-qualified juries are conviction prone did not deprive defendant of right to fair trial.
2. Criminal Law; Jury.
Scope and method by which voir dire is pursued are within district court's discretion, and court's
determination to conduct collective voir dire will not be disturbed absent showing of abuse or prejudice.
3. Telecommunications.
While interceptor of communication from listening device attached to police informant need not secure
order permitting interception, interception must satisfy statutory authorization requirements. NRS
179.470, 179.475, 200.650.
4. Criminal Law.
Recordings made from body bugging of informant, who was seeking to purchase murder weapon and
who had authorized police to intercept communication, were admissible in prosecution for first degree
murder with use of a deadly weapon. NRS 200.650.
5. Witnesses.
Prior inconsistent statements are admissible for impeachment purposes if made by witness to be
impeached.
6. Witnesses.
Alleged accomplice's suicide note implicating defendant was not admissible as prior inconsistent
statement to impeach accomplice's cellmate's testimony that accomplice had admitted firing both shots at
homicide victim and planned to blame defendant for victim's death.
7. Criminal Law.
Accomplice's suicide note implicating defendant was not admissible as prior inconsistent statement to
impeach accomplice who did not testify at defendant's trial and who was not subject to cross-examination.
8. Criminal Law.
Admission of accomplice's suicide note violated homicide defendant's right to be confronted with
witnesses testifying against her. U.S.C.A.Const. Amends. 6, 14.
9. Criminal Law.
Whether admission of statement violating defendant's rights secured by confrontation clause requires
reversal of conviction depends on whether properly remaining admitted evidence of guilt is overwhelming,
whether out-of-court declarant's statement is cumulative, and whether prejudicial effect of statement is
insignificant by comparison. U.S.C.A.Const. Amends. 6, 14.
10. Criminal Law; Witnesses.
Error in admitting, for impeachment purposes, alleged accomplice's suicide note implicating defendant
required reversal where defendant's guilt was predicated on circumstantial evidence in form of testimony of
drug user and recording made when defendant was drugged and intoxicated.
OPINION
Per Curiam:
A jury found Sheila Ann Summers guilty of first degree murder with the use of a deadly
weapon. The jury also found that the crime involved depravity of mind and sentenced
Summers to death. Summers has raised several assignments of error. We are persuaded that
the district court erred in admitting into evidence a suicide note implicating Summers in the
murder which violated Summers' constitutional rights and constitutes reversible error.
Accordingly, we reverse Summers' judgment of conviction and remand for a new trial.
THE FACTS
On the evening of September 14, 1982, Joy Spinney visited her friend, Joan Mack, at
Mack's trailer. Spinney had told her husband that Mack planned to travel to Florida the
following day. From 11:00 p.m. that night until 2:30 a.m. the next morning, Spinney
telephoned her husband four times from Mack's trailer. In their final telephone conversation,
Spinney told her husband that she had been drinking continuously and that she planned to
spend the night at Mack's trailer and then drive Mack to the airport in the morning.
Spinney's corpse was found on September 19, 1982 in the desert. An autopsy established
that Spinney had been shot twice, once in the abdomen, and once in the right cheek. The
cause of death was the shot to the right cheek. Spinney had been dead two and one-half to
three days.
Officers of the Las Vegas Metropolitan Police contacted Spinney's husband on September
21, 1982, who told them that, when he last spoke to Spinney, she was at Mack's trailer. An
officer who had telephoned Mack's trailer testified that Summers answered the telephone and
said that she was house-sitting for Mack and that she did not know Spinney.
Robert Autry, an acquaintance of Summers', and a drug user, met Summers. Autry testified
that Summers offered to sell him two guns which Summers told him had been used in a
murder. Autry testified that Summers had said she wanted to get rid of the guns and would
sell the guns for $100 each; that the victim of the shooting was a female. Summers told Autry
that Mack had first shot the victim in the abdomen in Mack's trailer and that Summers then
shot the victim in the head. Autry reported to officers of the Las Vegas Metropolitan Police
what Summers had told him.
The Las Vegas Metropolitan Police taped a transmitter to Autry's chest with instructions to
purchase the two guns that Summers had told him had been used to kill Spinney. The officers
tape-recorded the conversation between Autry, Summers, and a Ted Hanson, Summers'
boyfriend, as the three drove to the location in the desert where Summers had hidden the
guns. During the course of that conversation, Summers stated: [I]t wasn't stupid because she
[Spinney] was half dead. . . . [S]o what else you gonna do, what do you do with a . . . horse
who has a broken leg. Shoot it in the . . . brain, right? . . . [S]o that's all I did, was put her out
of her . . . misery. I couldn't believe [Mack]. She . . . shot her right in the . . . liver . . . [Mack]
shot her first. Then she called me in. . . . After Summers had retrieved the two guns,
Summers was arrested.
Mack was arrested on October 6, 1982 in Florida for Spinney's murder.
murder. At trial, Autry testified that, several days after Summers' arrest, Summers telephoned
him and told him that she was not worried because Mack was going to the whole rap.
Mack's cellmate in Clark County Jail testified that Mack had told her that she had fired both
shots but that she, Mack, planned to blame Summers for Spinney's murder.
Before the date of her own trial, Mack committed suicide. Prior to committing suicide,
Mack wrote the following suicide note:
Karen and Mike [the Las Vegas Metropolitan Police homicide detectives investigating
Spinney's murder] and Heaven: I finally found a way not ever be harassed again in my
life, just to die. I'm too old and sick to go through a trial that is unnecessary at my State
of Nevada's cost. I am not guilty of anyone's death. Sheila killed my best friend, Joy
Spinney. Please, dear Lord, make her, Sheila, serve and die the death penalty. Please,
please, please. Do justice for the guilty and that is Sheila Summers Domnisse. J. Mack.
At Summers' trial, Summers testified that she and Mack were casual acquaintance and that
Summers had once met Spinney. She stated that Mack telephoned her and she drove to
Mack's trailer. Mack answered the door with a revolver in her hand. She appeared drunk and
disheveled. Behind Mack, Summers saw Spinney lying on the floor covered with a bloody
sheet. When Summers asked Mack what had happened, Mack told her that [Spinney] was
not going to interfere in another relationship with her and Charlie (Mack's boyfriend). Mack
then told Summers that if Summers opened her mouth she would harm Summers' children.
Summers further testified that she was forced at gunpoint to drag Spinney to Spinney's car,
place her in the back seat, and drive the car. Summers tried to drive to Southern Memorial
Hospital, but Mack pointed the revolver at her head and said, No, you're not taking her
there. Mack then directed Summers at gunpoint to a deserted spot outside of Las Vegas.
After Summers stopped the car, Mack dragged Spinney several feet away from the car, shot
Spinney, and then ordered Summers, once again at gunpoint, to drive back to Mack's trailer.
THE GUILT PHASE
1. Summers asserts that the district court's denial of her motion opposing
death-qualification of the jury violated her constitutional right to a fair trial.
1
Summers
postulates that deathqualified juries are conviction-prone.
____________________

1
We note that Summers does not assert that the death-qualification of a particular juror was not conducted
according to the guidelines set by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510
qualified juries are conviction-prone. In support of this postulation, Summers cites a number
of journal articles which she alleges demonstrate that death-qualified juries are
conviction-prone. From this postulation, Summers argues that death-qualified juries are not
neutral and, therefore, that the death-qualification of the jury that tried her case violated her
constitutional right to a fair trial.
[Headnote 1]
In McKenna v. State, 101 Nev. 338, 705 P.2d 614 (1985), we stated: [U]nder
Witherspoon, we are not required to presume that a death-qualified jury is biased in favor of
the prosecution. Rather, the accused has the burden of establishing the nonneutrality of the
jury. We will not hesitate to hold that a criminal defendant's constitutional right to a fair trial
has been violated when the defendant has met the burden imposed upon him by our decision
in McKennathat is, when the defendant has established the nonneutrality of the jury that
convicted him. Summers has not, however, met that burden by merely citing a number of
journal articles that she alleges demonstrate that death-qualified juries are conviction-prone.
Consequently, we are unable to hold that the district court denial of Summers' motion
opposing death-qualification of the jury violated her constitutional right to a fair trial.
[Headnote 2]
2. The district court conducted a collective voir dire of prospective jurors. The voir dire of
each prospective juror was conducted within the presence of the remaining prospective jurors.
Summers argues that the district court erred in denying her motion requesting the court to
voir dire each prospective juror individually, that is, out of the presence of the remaining
prospective jurors. Both the scope of voir dire (Cunningham v. State, 94 Nev. 128, 575 P.2d
936 (1978)) and the method by which voir dire is pursued (Wilkins v. State, 96 Nev. 367, 609
P.2d 309 (1980)) are within the discretion of the district court. See NRS 175.031. Absent a
showing that the district court abused its discretion or that the defendant was prejudiced, we
shall not disturb a district court's determination to conduct a collective voir dire of
prospective jurors. Summers has made no such showing. We hold that the district court did
not err in denying Summers' motion requesting the court to voir dire each prospective juror
individually.
3. Summers suggests that the district court erred in denying her motion to suppress the
admission into evidence of the recordings made from the October 5, 1972, "body bugging"
of Autry and of the fruit derived therefrom.
____________________
(1968). Rather, Summers asserts that the district court erred in permitting the death-qualification of any of the
jurors who sat on the panel that tried her case.
ings made from the October 5, 1972, body bugging of Autry and of the fruit derived
therefrom. We must disagree.
[Headnote 3]
In State v. Bonds, 92 Nev. 307, 550 P.2d 409 (1976), we held that the warrantless,
electronic recording of a communication from a transmitter-type listening device attached
to a police informant did not constitute the interception of either a wire communication
2
or
an oral communication.
3
Consequently, we held that the interceptor of such a
communication need not first secure an order permitting the interception. NRS 179.470; NRS
179.475. Such an interception must, however, satisfy the authorization requirements set forth
in NRS 200.650.
4

[Headnote 4]
The recordings made from the October 5, 1982, body bugging of Autry are warrantless,
electronic recordings of a communication from a transmitter-type listening device which, in
Bonds, we held did not constitute the interception of either a wire communication or an oral
communication. The interceptor of such a communication, therefore, need not first secure an
order permitting the interception (NRS 179.470; NRS 179.475) so long as the authorization
requirements set forth in NRS 200.650 are met. Autry authorized the interception.
Consequently, we hold that the district court did not err in denying Summers' motion to
suppress the recordings and the fruit derived therefrom.
4. During the State's rebuttal case, the district court, over Summers' objection, admitted
into evidence Mack's suicide note implicating Summers in Spinney's murder.5 The district
court found Mack's suicide note admissible as a prior inconsistent statement for the
purpose of impeaching Mack's cellmate who testified that Mack told her that Mack had
fired both shots at Spinney and that Mack planned to blame Summers for Spinney's death.
____________________

2
NRS 179.455 defines Wire communication as:
[A]ny communication made in whole or in part through the use of facilities for the transmission of
communications by the aid of wire, cable or other like connection between the point of origin and the
point of reception furnished or operated by any person engaged as a common carrier in providing or
operating such facilities for the transmission of intrastate, interstate or foreign communications.

3
NRS 179.440 defines Oral communication as:
[A]ny verbal message uttered by a person exhibiting an expectation that such communication is not
subject to interception, under circumstances justifying such expectation.

4
Except as otherwise provided in NRS 179.410 to 179.515, inclusive, no person shall intrude upon the
privacy of other persons by surreptitiously listening to, monitoring or recording, or attempting to listen to,
monitor or record, by means of any mechanical, electronic or other listening device, any private
conversation engaged in by such other persons, or disclose the existence, contents, substance, purport,
effect or meaning of any such conversation so listened to, monitored or recorded, unless authorized to do
so by one of the persons engaging in the conversation. (Emphasis added.)
implicating Summers in Spinney's murder.
5
The district court found Mack's suicide note
admissible as a prior inconsistent statement for the purpose of impeaching Mack's cellmate
who testified that Mack told her that Mack had fired both shots at Spinney and that Mack
planned to blame Summers for Spinney's death.
[Headnotes 5, 6]
The district court erred in admitting Mack's suicide note as a prior inconsistent statement
for the purpose of impeaching Mack's cellmate. The rule permitting the admission of
impeaching prior inconsistent statements requires that the impeaching prior inconsistent
statements be statements made by the witness to be impeached. Dorsey v. State, 96 Nev. 951,
620 P.2d 189 (1979); McCormick on Evidence, Sect. 34 (3rd Ed. 1984). The witness the
State sought to impeach in the instant case was Mack's cellmate. Mack's suicide note was
written by Mack, not Mack's cellmate.
[Headnote 7]
Neither is Mack's suicide note admissible as a prior inconsistent statement for the purpose
of impeaching Mack. In Kaplan v. State, 99 Nev. 449, 663 P.2d 1190 (1983), we stated that
prior inconsistent statements are normally admissible for purposes of impeachment over
hearsay objection . . . under NRS 51.0356 . . . if two requirements are met: (1) the proffered
statement is inconsistent' with the declarant's testimony; and (2) the declarant testified at the
trial or hearing and is subject to cross-examination concerning the statement.' Kaplan v.
State, 99 Nev. at 451-452. See McCormick on Evidence, Sect. 34 (3rd Ed. 1984). Viewing
Mack, in this instance, as the declarant, the second requirement enunciated in Kaplan as
being prerequisite to the admission of an impeaching prior inconsistent statement is not
satisfied. Mack did not testify at Summers' trial and was not subject to cross-examination
concerning her suicide note.
[Headnote 8]
Because Mack did not testify as a witness and was not subject to cross-examination
(California v. Green, 399 U.S. 149 (1970); Corbin v. State, 97 Nev. 245, 627 P.2d S62
{19S1); Sparkman v. State, 95 Nev. 76, 590 P.2d 151 {1979); Levi v. State, 95 Nev. 746,
602 P.2d 1S9 {1979); Maginnis v. State, 93 Nev. 173, 561 P.2d 922 {1977)), the district
court's error in admitting Mack's suicide note violated Summers' right to be confronted
with the witnesses testifying against her, a right secured by the confrontation clause of
the Sixth Amendment7 and made obligatory on the States by the Fourteenth Amendment
{Pointer v. Texas, 3S0 U.S. 400 {1965); Summit v.
____________________

5
The district court did not admit into evidence the following sentence from Mack's suicide note: Please, dear
Lord, make her, Sheila, serve and die the death penalty.

6
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. . . .
Corbin v. State, 97 Nev. 245, 627 P.2d 862 (1981); Sparkman v. State, 95 Nev. 76, 590 P.2d
151 (1979); Levi v. State, 95 Nev. 746, 602 P.2d 189 (1979); Maginnis v. State, 93 Nev. 173,
561 P.2d 922 (1977)), the district court's error in admitting Mack's suicide note violated
Summers' right to be confronted with the witnesses testifying against her, a right secured by
the confrontation clause of the Sixth Amendment
7
and made obligatory on the States by the
Fourteenth Amendment (Pointer v. Texas, 380 U.S. 400 (1965); Summit v. State, 101 Nev.
159, 697 P.2d 1374 (1985); Messmore v. Fogliani, 82 Nev. 153, 413 P.2d 306 (1966)).
[Headnote 9]
A violation of the rights secured by the confrontation clause of the Sixth Amendment will
not automatically require a reversal of a criminal conviction: Where the properly remaining
admitted evidence of guilt is overwhelming, the out-of-court declarant's statement
cumulative, and the prejudicial effect of the statement insignificant by comparison so that it is
clear beyond a reasonable doubt that the improper admission of the statement was harmless
error, we shall not reverse the conviction. However, reversal is mandated where the evidence
of guilt is woven from circumstantial evidence and it is not established beyond a reasonable
doubt that the admission of the statement was harmless error. Stevens v. State, 97 Nev. 443,
634 P.2d 662 (1981); Corbin v. State, 97 Nev. 245, 627 P.2d 862 (1981); Davies v. State, 95
Nev. 553, 598 P.2d 636 (1979).
[Headnote 10]
Summers' guilt was predicated on circumstantial evidence. The State concedes that Mack
fired the first shot. No physical evidence introduced at trial shows that Summers fired the
second shot. Aside from Mack's suicide note, the only other evidence introduced at trial that
indicates that Summers fired the second shot is the testimony of Autry, a drug user, and the
recording made when Summers was purportedly drugged and intoxicated. The remaining
evidence of Summers' guilty is not overwhelming. The prejudicial effect of the admission of
Mack's suicide note is not so insignificant by comparison that we are able to hold that it is
clear beyond a reasonable doubt that the admission of the suicide note was harmless error.
Stevens v. State, 97 Nev. at 443; Corbin v. State, 97 Nev. at 245; Davies v. State, 95 Nev. at
553.
____________________

7
In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him. U.S. Const. amend. VI.
Accordingly, the improper admission of Mack's suicide note mandates that we reverse
Summers' judgment of conviction and remand for a new trial.
8

____________________

8
It appears from the record that the trial judge may have sought to balance the testimony of Mack's cellmate,
Ethyl Louise Callier, by the admission of Mack's suicide note. Upon retrial, if the State objects to Callier's
testimony concerning Mack's alleged admission, the trial judge will have to determine whether there are
sufficient corroborating circumstances to indicate clearly the trustworthiness of the alleged statement to Callier
by Mack. NRS 51.345.
____________
102 Nev. 203, 203 (1986) Nevada Pay TV v. District Court
NEVADA PAY TV, a Partnership, CHARLES ZEIGLER, R. PAUL ZEIGLER, Petitioners,
v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA,
THE HONORABLE JOHN F. MENDOZA, Judge, Respondent.
No. 15528
May 28, 1986 719 P.2d 797
Original Petition for writ of mandamus or, alternatively, prohibition; Eighth Judicial
District Court, Clark County; John F. Mendoza, Judge.
Peremptory challenge was filed against judge in district court. The district court entered
order striking challenge on ground that it was untimely and challenging party sought petition
for writ of mandamus or prohibition. The Supreme Court held that: (1) judge had jurisdiction
to determine timeliness of challenge filed against him, and (2) peremptory challenge was not
timely filed.
Writ denied.
Lionel Sawyer & Collins, and Mark Solomon, Las Vegas, for Petitioners.
Gifford & Vernon, and Steven Glade, Las Vegas, for Respondent.
1. Judges.
Judge against whom peremptory challenge was filed was not required to transfer case to another
department in that he retained jurisdiction to determine whether challenge was timely.
2. Judges.
Peremptory challenge against judge was untimely in that it was not filed at least 3 days before date set for
hearing of any pretrial matter. SCR 48.1, subd. 3(b).
OPINION
Per Curiam:
1

Petitioners are the defendants in an action pending below. Pursuant to SCR 48.1 they filed
a peremptory challenge in the district court against the respondent judge, the Honorable John
F. Mendoza. Judge Mendoza entered an order striking the challenge on the ground that it was
untimely. Petitioners contend, however, that the judge was required to transfer the matter to
another department; they assert that he lacked jurisdiction to strike their challenge.
Accordingly, petitioners bring this original petition, seeking a writ of mandamus to compel
the transfer and a writ of prohibition to restrain further action by Judge Mendoza.
The action below was initiated by the real party in interest Sears Roebuck & Company.
Sears sought to depose several of the individual petitioners. Petitioners moved for a
protective order, seeking to postpone the depositions to a more convenient date. A hearing on
petitioners' motion was set for September 7, 1983, before Judge Mendoza. Thereafter,
however, counsel for the parties were able to resolve their dispute and, on September 6,
1983one day before the scheduled hearing of petitioner's motionthe matter was taken off
the calendar.
More than three months later, on December 27, 1983, petitioners filed their peremptory
challenge. Sears responded with a motion to strike the challenge as untimely. Judge Mendoza,
over petitioners' objection, presided at a hearing on the motion. He subsequently entered an
order granting the motion and striking the challenge. This petition followed.
During the events in issue here, Rule 48.1 provided, in pertinent part:
1. In any civil action pending in a district court, which has not been appealed from a
lower court, each side is entitled, a matter of right, to one change of judge by
peremptory challenge. . . .
. . .
3. Except as provided in subsection 4, the peremptory challenge shall be filed:
(a) Not less than 30 days before the date set for trial or hearing of the case; or
(b) Not less than 3 days before the date set for the hearing of any pretrial matter.
____________________

1
This petition was previously denied on the merits in an unpublished order of this 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 filed April 24, 1986.
. . .
5. A notice of peremptory challenge may not be filed against any judge who has
made any ruling on a contested matter or commenced hearing any contested matter in
the action.
6. The judge against whom a peremptory challenge is filed shall transfer the case to
another department of the court, if there is more than one department of the court in the
district, or request the chief justice to assign the case to the judge of another district.
2

Relying upon Rule 48.1(6), petitioners first argue that Judge Mendoza lacked jurisdiction to
entertain the motion to strike. At any rate, petitioners claim, the challenge was filed within the
time limits established by former Rule 48.1(3) and 48.1(5) and should not have been stricken.
We consider these arguments in turn.
[Headnote 1]
We have never had occasion to apply Rule 48.1(6) in the factual context presented here.
However, NRS 1.235(5)(a), relating to challenges for actual or implied bias, is virtually
identical to Rule 48.1(6). Applying that provision, we have held that a judge is not required to
transfer a case to another department where an untimely affidavit of prejudice is filed against
him. See State ex rel. Dep't Welfare v. District Ct., 85 Nev. 642, 462 P.2d 37 (1969). See also
Jacobson v. Manfredi, 100 Nev. 226, 679 P.2d 251 (1984). The necessary implication of
these decisions is that a judge challenged for cause is not thereby divested of jurisdiction, but
retains authority to determine whether the challenge is timely.
We see no basis for distinguishing the situation described above from that presented here.
Indeed, given the ease with which a peremptory challenge may be asserted, there is even
greater danger that the device will be abusedwith all the delay and waste of judicial
resources that such abuse entails.
3
Accordingly, we reject petitioners' claim that Judge
Mendoza was without jurisdiction to entertain the motion to strike.
____________________

2
We acknowledge that Rule 48.1(3)(b) has recently been amended. As amended, section (3)(b) provides that
a peremptory challenge must be filed at least 3 days before the date set for the hearing of any contested pretrial
matter. (Emphasis added.) Nevertheless, the policy considerations underlying the Rule, discussed below, have
not been affected by the amendment. Even if our analysis of this case might be different under the present
version of the Rule, we are precluded from giving the amendment retroactive application. See NRS 2.120
(amendment to supreme court's rules may not take effect less than 30 days after entry of order adopting
amendment).

3
The record does not indicate, nor do we mean to suggest, that the challenge in issue here was filed with any
improper motive.
[Headnote 2]
We now turn to the question of whether petitioners' challenge was timely. Sears argued
below, and Judge Mendoza agreed, that the challenge was untimely because it was not filed at
least 3 days before the date set for the hearing of petitioners' motion for a protective order.
SCR 48.1(3)(b). In arguing to the contrary, petitioners appear to assume that the sole purpose
of Rule 48.1 is the prevention of judge shopping. While that of course is one function of the
Rule, the Rule is also intended to minimize the danger that the peremptory challenge will be
used as a dilatory tactic. Under the Rule, the privilege of asserting the challenge must be
exercised quickly or else lost forever. The operations of the Rule will be hindered, we
believe, unless its provisions are strictly construed. See United States v. Conforte, 457
F.Supp. 641, 654 n. 7 (D. Nev. 1978), aff'd, 624 F.2d 869 (9th Cir.), cert. denied, 449 U.S.
1012 (1980). Accordingly, we conclude that the phrase any pretrial matter, as used in
former Rule 48.1(3)(b), must be read literally. Because petitioners' challenge was not filed at
least 3 days before the date set for the hearing of any pretrial matter, it follows that the
challenge was untimely.
Having concluded that petitioners' arguments are without merit, we deny their petition.
It is so ORDERED.
____________
102 Nev. 206, 206 (1986) Epperson v. Roloff
DAVID R. EPPERSON and SHIRLEY A. EPPERSON, Appellants, v. HENRY ROLOFF,
MYLAN BARIN ROLOFF and RUTH K. LESSER, Respondents.
No. 15900
May 28, 1986 719 P.2d 799
Appeal from summary judgment. Second Judicial District Court, Washoe County; Robert
L. Schouweiler, Judge.
Purchasers brought action for deceit and breach of contract against vendors. The district
court granted vendors motion for summary judgment and purchasers appealed. The Supreme
Court held that: (1) jury issue was presented as to whether vendor made misrepresentation as
to solar heating system and whether vendor intended real estate agent to make certain
representations concerning solar system; (2) jury issue was presented as to whether the system
was defective; and (3) jury issue was presented as to whether purchasers had accepted the
house when they knew or should have known of the defect.
Affirmed in part; reversed in part and remanded.
Charles A. Price, Incline Village, for Appellants.
Gene R. Barbagelata, Reno, for Respondents.
1. Fraud.
Action of deceit or misrepresentation requires the plaintiff to establish that the defendant made a false
representation to him with knowledge or belief that the representation was false or without a sufficient
basis for making the representation; plaintiff must establish that defendant intended to induce the plaintiff
to act or refrain from acting on the representation and that the plaintiff justifiably relied on representation;
plaintiff must also establish that he was damaged as result of the reliance.
2. Evidence.
Integration clause in purchase agreement did not preclude purchasers from bringing misrepresentation
action against vendors.
3. Fraud.
Plaintiff who makes independent investigation is deemed to have relied on his own judgment and not on
defendant's representations and thus cannot maintain action for deceit or misrepresentation.
4. Fraud.
Independent investigation will not preclude reliance on defendant's representation where the falsity of the
defendant's statements is not apparent from the inspection, where the plaintiff is not competent to judge the
facts without expert assistance, or where the defendant has superior knowledge about the matter at issue.
5. Fraud.
Evidence presented jury issue as to whether purchasers could or should have discovered alleged defects
in solar heating system during initial inspection and thus had not relied on vendors' representations.
6. Fraud.
Evidence presented jury issue as to whether vendors misrepresented nature of solar heating system by
referring to a heating system which had solar implication.
7. Principal and Agent.
Party may be held liable for misrepresentation where it communicates misinformation to its agent
intending or having reason to believe that the agent will communicate the misinformation to a third party.
8. Fraud.
Evidence presented jury question as to whether vendor's statement to listing agent that the home had a
solar feature which included a solar storage area for auxiliary heating was made with intent that the
listing agent would tell prospective purchasers that the home contained a fully functioning solar heating
system.
9. Fraud.
Defendant may be found liable for misrepresentation even when the defendant does not make an express
misrepresentation if, instead, he makes a representation which is misleading because it partially suppresses
or conceals information.
10. Fraud.
Purchasers could recover from vendors for misrepresentation as to solar heating system, even if real
estate agent's statements and statements in brochure did not expressly misrepresent status of the solar
heating system, if jury found that statements were calculated to mislead the purchasers into
believing that the home had fully functioning solar heating system and that they were
justified in relying on those statements in purchasing the home.
the purchasers into believing that the home had fully functioning solar heating system and that they were
justified in relying on those statements in purchasing the home.
11. Fraud.
Exception to rule that action and deceit will not lie for a nondisclosure exists where the defendant alone
has knowledge of the material facts which are not accessible to the plaintiff.
12. Fraud.
Evidence presented jury issue as to whether vendors had knowledge of leakage problem, whether
existence of the problem was apparent to the purchasers, and whether the vendors thus had a duty to
disclose the problem prior to sale.
13. Contracts.
Purchasers' mere acceptance and occupation of home could not constitute waiver of rights under contract
in absence of showing that they knew or had reason to know that solar heating system was defective.
14. Contracts.
Evidence presented jury issue as to whether purchasers knew or should have known prior to close of
escrow of defect in solar heating system so that their decision to close notwithstanding that knowledge
precluded them from subsequently recovering for breach of contract.
15. Vendor and Purchaser.
Evidence presented jury issue as to whether solar heating system was defective and represented a breach
of contract for sale of home in view of fact that it could produce approximately 6.6% of the annual heating
load of the house where the system, which consisted of corrugated metal painted black, had a western
exposure, would be covered by snow during the winter months, was in the shade during peak collecting
hours, and would produce heat only during the summer months.
OPINION
Per Curiam:
This is an action for breach of contract, fraud and rescission arising out of the sale of a
home in Incline Village, Nevada. The district court awarded summary judgment to
respondents, the defendants below. This appeal followed. Because appellants have apparently
abandoned their rescission claim, we affirm the judgment to that extent. With respect to the
other claims, however, material issues of fact remain to be tried, and summary judgment was
therefore improper. Accordingly, we reverse the judgment and remand the matter for trial.
I. The Facts
In evaluating the propriety of a summary judgment, we review the evidence in the light
most favorable to the party against whom judgment was rendered. Servaites v. Lowden, 99
Nev., 240, 660 P.2d 1008 (1983). So viewed, the record in the case reveals the following
facts.
In 1981, appellants David and Shirley Epperson decided to sell their home in California
and move to Lake Tahoe to retire. They contacted Fran Mercer, a local real estate agent with
whom they had previously dealt, and asked her to help them find a home at the lake. Mrs.
Mercer saw a listing on a home located in Incline Village. She contacted the listing agent,
Michael Alexander, and arranged a tour of the home.
The Eppersons saw the home for the first time in the summer of 1981, in the company of
Mrs. Mercer and Mr. Alexander. Near the beginning of their tour, Alexander told the
Eppersons that the home had a solar heating system and sought to explain the control panel
which allegedly operated the system. At some point during the tour, the Eppersons were
shown a brochure by Alexander which stated that the home had forced air gas/solar
implecations [sic]. According to Mr. Epperson, Alexander stated that the solar really saves
on your gas bill.
The Eppersons concluded their tour and decided to make an offer on the home. The
contract between the Eppersons and the seller, respondent Mylan Roloff, was entered into in
July, 1981.
1
By an addendum to the contract, the parties agreed that all mechanical
equipment at the home was to be in good operating order at the close of escrow.
The Eppersons moved into the home in late September, about one week before the close of
escrow. At some point after they moved in, Mr. Epperson noticed water stains on the drywall
in the garage. It rained within approximately a week after escrow closed, and Mr. Epperson
noticed that water was leaking into the garage. He climbed into the attic over the garage and
found the source of the leak. He discovered that the solar panel on the roof was actually a
part of the roof and that he could see daylight through numerous holes in the panel.
Moreover, the panel consisted of corrugated metal which had simply been painted black.
For the first time, Mr. Epperson spoke directly with Mrs. Roloff. He called her to complain
about the operation of the solar heating system. According to Epperson, Mrs. Roloff
expressed surprise at the problem and claimed that the heating system had worked great
while she had lived in the house. During her subsequent deposition, however, Mrs. Roloff
conceded that she had never used the system. According to her, there had been some delay in
completing the system, additional work had been done, and she had thereafter been told that
the system was operational.
____________________

1
Respondent Henry Roloff, Mylan's husband, was not a party to the contract. The record fails to reflect
whether he had an interest in the property at the time the contract was signed. It is unclear why he is a party to
this action. Equally unclear is the status of respondent Ruth Lesser. The parties have not explained who she is or
what she is alleged to have done.
was operational. Mrs. Roloff also admitted that she had told Mr. Alexander, when the home
was listed for sale, that it had a solar feature, which she described to him as a solar storage
area for auxiliary heating. She was not asked to explain what a solar implecation might be.
The Eppersons' complaint set forth three claims for relief against the respondents. First, it
alleged that respondents had breached that portion of the purchase agreement relating to the
operation of mechanical equipment. Second, it alleged that respondents were guilty of fraud.
Finally, the Eppersons sought to rescind the purchase agreement on the theory that there had
been a failure of consideration.
Respondents answered the complaint and moved for summary judgment. In granting
summary judgment, the district court concluded that there had been no breach of the purchase
agreement. The court apparently reasoned that the Eppersons had waived any right to
complain of defects by failing to complain prior to the close of escrow. With respect to the
fraud claim, the court concluded that the evidence presented contains no misrepresentation
by defendants or their agents. . . . Finally, because it found no breach of the agreement, nor
any fraud in inducing the Eppersons to enter into the agreement, the court held there was no
right to rescission.
2

We have repeatedly held that summary judgment is proper only if there is no genuine issue
as to any material fact and the moving party is entitled to judgment as a matter of law. See
Cladianos v. Coldwell Banker, 100 Nev. 138, 676 P.2d 804 (1984); Casarotto v. Mortensen,
99 Nev. 392, 663 P.2d 352 (1983); see also NRCP 56(c). Our review of the record reveals
that several issues of fact remained to be resolved in the court below on both the
misrepresentation and the contract causes of action set forth in the Eppersons' complaint, and
that summary judgment was therefore improper.
II. The Misrepresentation Claim
[Headnote 1]
The tort action of deceit or misrepresentation requires the plaintiff to establish that the
defendant made a false representation to him, with knowledge or belief that the representation
was false or without a sufficient basis for making the representation. Further, the plaintiff
must establish that the defendant intended to induce the plaintiff to act or refrain from acting
on the representation, and that the plaintiff justifiably relied on the representation. Finally, the
plaintiff must establish that he was damaged as a result of his reliance.
____________________

2
On appeal, the Eppersons have not challenged the dismissal of the rescission claim. Accordingly, we deem
that claim to have been abandoned.
result of his reliance. See Sanguinetti v. Strecker, 94 Nev. 200, 577 P.2d 404 (1978); Lubbe v.
Barba, 91 Nev. 596, 540 P.2d 115 (1975). See generally W. Prosser, Handbook on the Law of
Torts, 105, at 685-86 (4th ed. 1971). Whether these elements are present in a given case is
ordinarily a question of fact. Lentz Plumbing Co. v. Fee, 679 P.2d 736 (Kan. 1984); Tice v.
Tice, 672 P.2d 1168 (Okla. 1983). Respondents contend, however, that no genuine issues of
fact remained to be decided on the Eppersons' misrepresentation claim. Respondents argue
first that the Eppersons were barred from bringing such a claim, and second, that the
Eppersons failed to present sufficient evidence of misrepresentation in support of their claim.
We disagree.
[Headnote 2]
First, respondents contend that the Eppersons were barred from bringing the
misrepresentation claim because of an integration clause in the purchase agreement.
3
No
relevant authority is cited in support of this proposition and, in fact, there is authority directly
to the contrary, indicating that an integration clause does not bar a claim of this nature. See
Herzog v. Capital Co., 164 P.2d 8 (Cal. 1945); Kett v. Graeser, 50 Cal. Rptr. 727
(Cal.Ct.App. 1966).
Additionally, respondents contend that the Eppersons waived their right to make a claim of
misrepresentation because the Eppersons and their agent were given the opportunity to
inspect the premises, and did in fact examine the premises on at least three occasions prior to
the purchase of the home. Respondents further point out that the Eppersons took possession
of the home eight days prior to the close of escrow and allowed escrow to close without
objection. Respondents assert that, under these facts, the Eppersons should be charged with
knowledge of the alleged defects in the solar heating system, as well as the leakage problems,
prior to the purchase. Respondents therefore conclude that the Eppersons waived their right to
complain of the problems when they permitted escrow to close.
[Headnotes 3-5]
We have previously held that a plaintiff who makes an independent investigation will be
charged with knowledge of facts which reasonable diligence would have disclosed. Such a
plaintiff is deemed to have relied on his own judgment and not on the defendant's
representations. See Freeman v. Soukup, 70 Nev. 198, 265 P.2d 207 (1953). Nevertheless, an
independent investigation will not preclude reliance where the falsity of the defendant's
statements is not apparent from the inspection, where the plaintiff is not competent to
judge the facts without expert assistance, or where the defendant has superior
knowledge about the matter in issue.
____________________

3
Paragraph 14 of the contract provides, in pertinent part: The foregoing constitutes the entire agreement
between the parties and no verbal statements made by any party are a part hereof unless incorporated in writing.
ant's statements is not apparent from the inspection, where the plaintiff is not competent to
judge the facts without expert assistance, or where the defendant has superior knowledge
about the matter in issue. See Stanley v. Limberys, 74 Nev. 109, 323 P.2d 925 (1958);
Bagdasarian v. Gragnon, 192 P.2d 935 (Cal. 1948). The question of whether the Eppersons
could or should have discovered the alleged defects during their initial inspections of the
home was a question of fact for the jury to decide. Accordingly, the district court erred by
deciding this issue as a question of law prior to trial.
Respondents also contend the Eppersons failed to allege or establish that the respondents
made any direct or express representations to them regarding the functioning or efficiency of
the solar heating system, on which the Eppersons could have justifiably relied in purchasing
the home. In this regard, respondents contend that the brochure that was shown to the
Eppersons referred only to solar implecation, and made no representations regarding the
functioning or efficiency of the system. Respondents also appear to contend that they cannot
be held liable for the statements their listing agent made to the Eppersons regarding the
system, or that the agent's representations were not in any event sufficient to cause the
Eppersons' reliance.
[Headnotes 6-8]
We conclude, however, that a material issue of fact remains on the question of whether
respondents misrepresented the nature of the solar heating system to the Eppersons. First, we
note that a party may be held liable for misrepresentation where he communicates
misinformation to his agent, intending or having reason to believe that the agent would
communicate the misinformation to a third party. See generally W. Prosser, supra, 107 at
703; Restatement (Second) of Torts, 533 (1977). In her deposition in the court below,
respondent Mylan Roloff admitted that she had told Michael Alexander, respondents' listing
agent, that the home had a solar feature which included a solar storage area for auxiliary
heating. We conclude that it was for a jury to decide whether respondents intended or had
reason to believe that their listing agent would tell prospective purchasers that the home
contained a fully functioning solar heating system, based on Mrs. Roloff's statements.
[Headnotes 9, 10]
In this regard, we also note that a defendant may be found liable for misrepresentation
even when the defendant does not make an express misrepresentation, but instead makes a
representation which is misleading because it partially suppresses or conceals information.
See American Trust Co. v. California W.
States Life Ins. Co., 98 P.2d 497, 508 (Cal. 1940). See also Northern Nev. Mobile Home v.
Penrod, 96 Nev. 394, 610 P.2d 724 (1980); Holland Rlty. v. Nev. Real Est. Comm'n, 84 Nev.
91, 436 P.2d 422 (1968). Therefore, even if the agent's statements and the statements in the
brochure did not expressly misrepresent the status of the solar heating system, the Eppersons
were entitled to argue to a jury that those statements were calculated to mislead them into
believing that the home had a fully functioning solar heating system, and that they were
justified in relying on those statements in purchasing the home. The court therefore erred by
concluding that no genuine issue of fact remained on this matter.
[Headnotes 11, 12]
Finally, with regard to the leakage problem, respondents argue that no affirmative
representation was ever made that the house was free of leaks. At least implicitly, they argue
that an action in deceit will not lie for nondisclosure. This has, indeed, been described as the
general rule. See discussion, W. Prosser, supra, 106, at 695-97. An exception to the rule
exists, however, where the defendant alone has knowledge of material facts which are not
accessible to the plaintiff. Under such circumstances, there is a duty of disclosure. Thus, in
Herzog v. Capital Co., supra, the court upheld a jury's award of damages to the purchaser of a
leaky house, holding under the circumstances of that case, that the jury correctly found that
the vendor had a duty to reveal the hidden and material facts pertaining to the leakage
problem. Id. at 10. In numerous other cases, involving analogous facts, a jury's finding of a
duty of disclosure has been upheld. See, e.g., Barder v. McClung, 209 P.2d 808 (Cal.Ct.App.
1949) (vendor failed to disclose fact that part of house violated city zoning ordinances);
Rothstein v. Janss Inv. Corporation, 113 P.2d 465 (Cal.Ct.App. 1941) (vendor failed to
disclose fact that land was filled ground). Therefore, the Eppersons were entitled to argue to a
jury that respondents had knowledge of the leakage problem, that the existence of the
problem was not apparent to the Eppersons and that respondents therefore had a duty to
disclose the problem to them prior to their purchase of the home.
Accordingly, we conclude that numerous issues of fact remained in dispute on the
Eppersons' claim of misrepresentation. The district court therefore erred by granting summary
judgment on this claim.
III. The Contract Claim
As stated above, the parties' contract provided that the home's mechanical equipment
was to be in good operating condition at the close of escrow. The Eppersons' complaint
alleges that this condition was not satisfied, on the ground that the "solar heating system"
is nonfunctional.
condition was not satisfied, on the ground that the solar heating system is nonfunctional.
[Headnotes 13, 14]
Respondents contend, and the district court apparently agreed, that the Eppersons waived
their right to allege a breach of the contract because the Eppersons inspected the home and
actually lived in the home prior to the close of escrow without complaining about any
mechanical defects in the solar heating system. We note, however, that a waiver in this
context has been defined as an intentional relinquishment of a known right. J. Calamari and
J. Perillo, The Law of Contracts 11-34, at 446 (2d ed. 1977). The Eppersons' mere
acceptance and occupation of the home alone could not constitute a waiver of their rights
under the contract; in order to establish such a waiver, respondents would have to establish
that the Eppersons knew or had reason to know that the solar heating system was defective.
See generally Dial v. Graves, 351 So.2d 598 (Ala.Civ.App. 1977). Again, it is a question of
fact for the jury to decide whether the Eppersons knew or should have known of the defect
prior to the close of escrow. Id. The district court therefore erred by granting summary
judgment on this issue.
[Headnote 15]
Finally, respondents appear to contend that the solar heating system cannot be viewed as
defective. In this regard, respondents assert that the Eppersons' own expert testified in his
deposition that the system could produce approximately 6.6% of the annual heating load of
the home. Respondents therefore argue that the Eppersons at most established only that the
system was inefficient as opposed to defective. We note, however, that the Eppersons'
expert witness also testified that the system was worthless because of its western exposure,
because it would normally be covered by snow during the winter months, and because the
panel is in the shade during peak collecting hours. The expert also testified that the system
would only produce heat during the summer months. Accordingly, we conclude that the
Eppersons made a prima facie showing that the system was defective. Therefore, this issue
should have been presented to a jury for resolution.
IV. Conclusion
For these reasons, we conclude that the district court erred in awarding summary judgment
on appellants' fraud and contract claims. We reverse that portion of the judgment and remand
this matter for trial. Appellants having abandoned their rescission claim, the judgment is to
that extent affirmed.
____________
102 Nev. 215, 215 (1986) Jones v. Rosner
STANLEY JONES, EMPLOYMENT SECURITY DEPARTMENT OF THE State of
Nevada and CENTRAL TELEPHONE COMPANY, Appellants v. LINDA C.
ROSNER, Respondent.
No. 16111
May 28, 1986 719 P.2d 805
Appeal from an order reversing administrative decision. Eighth Judicial District Court,
Clark County; Paul S. Goldman, Judge.
Claimant applied for unemployment compensation benefits. The Executive Director of the
State Employment Security Department denied claimant benefits and an appeals referee
affirmed the decision of the Department.The Board of Review refused to accept appeal and
the claimant sought judicial review. The district court reversed the decision of the appeals
referee and ordered claimant to receive compensation and the Department appealed. The
Supreme Court held that substantial evidence supported decision of appeals referee that
claimant's conduct constituted misconduct.
Reversed.
Crowell, Crowell, Crowell & Susich, Carson City, for Appellants.
Denton & Denton, Las Vegas, for Respondent.
1. Administrative Law and Procedure; Social Security and Public Welfare.
The district court is free to decide pure legal questions without deference to State Employment Security
Department determination, but the Board's conclusions of law, which will necessarily be closely related to
the Board's view of the facts, are entitled to deference and will not be disturbed if they are supported by
substantial evidence.
A single act may amount to misconduct, on the part of employee, under some circumstances, sufficient to
preclude recovery of unemployment compensation.
Substantial evidence supported the decision of appeals referee in unemployment compensation
proceeding that claimant's conduct in destroying document which she knew her employer would have relied
on to evaluate her performance constituted misconduct. NRS 612.385.
OPINION
Per Curiam:
This is an appeal from an order of the district court reversing a decision of an appeals
referee of the Nevada Employment Security Department.
decision of an appeals referee of the Nevada Employment Security Department. Because we
conclude that the district court improperly substituted its judgment for that of the
administrative department, we reverse.
Respondent was employed as a customer service representative of Central Telephone
Company. She held the highest classification for a service representative and was required to
maintain a 90% accuracy level.
On February 10, 1984, respondent picked up the mail for her department from the internal
mail box. As she sorted through the mail, respondent discovered a photocopy of one of her
service orders indicating that she had made an error. Rather than delivering the copy to her
supervisor, as she was required to do, respondent deposited it into a wastebasket. The
supervisor would have used the copy to determine respondent's accuracy level. Also, if the
supervisor did not receive the copy, she would not discover that an error had been made.
One of respondent's co-workers saw respondent discard the copy and reported the incident
to respondent's supervisor. When respondent was confronted, she readily admitted having
destroyed the document. Respondent's employment was terminated.
Respondent sought unemployment compensation. The executive director of the Nevada
Employment Security Department denied respondent benefits on the basis that she was
terminated for misconduct. See NRS 612.385. Following a hearing, an appeals referee
affirmed the decision of the department. The board of review refused to accept the appeal. See
NRS 612.515(1). Respondent sought judicial review of the administrative decision. The
district court reversed the decision of the appeals referee and ordered that respondent receive
unemployment compensation. The district court's order stated no reason for the reversal.
On appeal, appellants contend that the district court, in reviewing an agency determination,
is confined to the record and must affirm the agency decision if it is based on substantial
evidence and is neither arbitrary nor capricious. See State, Emp. Sec. Dep't v. Weber, 100
Nev. 121, 676 P.2d 1318 (1984); McCracken v. Fancy, 98 Nev. 30, 639 P.2d 552 (1982);
Lellis v. Archie, 89 Nev. 550, 516 P.2d 469 (1973). Appellants assert that the district court
may not substitute its judgment for the judgment of the agency. Id.
Respondent contends, on the other hand, that the cases cited by appellants apply only to
questions of fact. Respondent then asserts that whether her acts amounted to misconduct
within the meaning of NRS 612.385 is a question of law which may be decided by the
district court without deference to the agency.
decided by the district court without deference to the agency. See Nyberg v. Nev. Indus.
Comm'n, 100 Nev. 322, 683 P.2d 3 (1984).
[Headnote 1]
While it is true that the district court is free to decide pure legal questions without
deference to an agency determination, the agency's conclusions of law, which will necessarily
be closely related to the agency's view of the facts, are entitled to deference, and will not be
disturbed if they are supported by substantial evidence. See Barnum v. Williams, 84 Nev. 37,
42, 436 P.2d 219, 222 (1968) (district court erred in reversing agency because the findings
of fact and conclusions of law submitted by the appeals referee were supported by the
evidence presented at the hearings); see also 5 K. Davis, Administrative Law Treatise 29:1
(2d ed. 1984).
[Headnotes 2, 3]
We have defined misconduct to include any deliberate violation or disregard on the part
of the employee of standards of behavior which his employer has the right to expect. Lellis,
89 Nev. at 553, 516 P.2d at 470. Further, a single act may amount to misconduct under some
circumstances. See Barnum v.Williams, 84 Nev. 37, 436 P.2d 219 (1968). Applying this
standard, substantial evidence supports the decision of the appeals referee that respondent's
conduct amounted to misconduct under NRS 612.385. Respondent admittedly destroyed a
document which she knew her employer would have relied on to evaluate her performance.
She also knew that the employer would not discover she had made an error if the document
were destroyed. The employer characterized this act of dishonesty as significant, rather than
minor, and stated that respondent could no longer be trusted. Therefore, the district court
erred by substituting its judgment for the judgment of the appeals referee.
Accordingly, we reverse the order of the district court and reinstate the decision of the
appeals referee.
____________
102 Nev. 218, 218 (1986) Sterling v. Goodman
PHILIP C. STERLING and JUDY M. STERLING, as TRUSTEES FOR TRUST No.
061489-00-13, Appellants, v. KENNETH S. GOODMAN and MYRNA B.
GOODMAN, His Wife, Respondents.
No. 16191
May 28, 1986 719 P.2d 1262
Appeal from a money judgment in respondents' favor. Ninth Judicial District Court,
Douglas County; Norman C. Robison, Judge.
Vendor of real estate sought payment of late charges from purchaser who made late
payments of installments and final balloon payment. The district court held for vendor and
purchaser appealed. The Supreme Court held that purchaser was not liable to vendor for late
charges due to late payment of balloon payment where contract provided for late fees on
installment payments and clearly differentiated between installment payments and final
balloon payment.
David G. Pumphrey, Minden, for Appellants.
Manoukian, Scarpello & Alling and Richard Glasson, Zephyr Cove, for Respondents.
Vendor and Purchaser.
Purchaser of real estate was not liable to vendor for late charge due to late payment of balloon payment
where contract provided for late fees on installment payments and clearly differentiated between
installment payments and final balloon payment.
OPINION
Per Curiam:
On or about June 1, 1981, respondents sold a piece of real estate to appellants. Pursuant to
this sale, and as a part of the purchase price, appellants executed and delivered a note secured
by a deed of trust on the property to respondent. Subsequently, this note and deed of trust was
refinanced, and on August 29, 1983, appellants executed and delivered a new note and deed
of trust regarding the subject property. The note and deed of trust were executed
contemporaneously and are part of one contract. The note required appellants to make
monthly payments of principal and interest of $1,803.11 until February 1, 1984, at which time
the entire remaining balance of principal and accrued interest was due and payable.
Appellants were late in making the December 1983 payment. Appellants did not make the
January 1, 1984, payment or the February 1, 1984, balloon payment. On January 18, 1984,
pursuant to instructions from respondents, the trustee formally gave notice of respondents'
election to sell due to default.
On May 22, 1984, pursuant to a written agreement between parties, the title was
reconveyed to appellants, and respondents were paid all of the funds they claimed to be owed
to them pursuant to the note and deed of trust, except for the sum of $6,515.48. Appellants
claim that they were not liable for this sum. Respondents dispute this contention and claim
that appellants owe said sum in payment of a previously agreed upon late charge as provided
in the contract.
The case was submitted to the district court under NRS 29.010. The stipulation also
provided that the prevailing party would also be awarded attorney's fees and court costs. The
district court entered judgment for respondents in the amount of $6,515.48 plus costs and
attorney's fees. For the following reasons, we conclude that the decision of the district court
was erroneous and therefore reverse and remand.
The main issue on appeal concerns the definition of installment payment under the
contract. The land sale contract provides that the parties promise to pay principal and interest
as follows:
Principal and interest payable in installments of One Thousand Eight Hundred Three
and 11/100ths Dollars ($1,803.11), or more, on the 1st day of each and every month
beginning on the 1st day of September 1983, and continuing until the 1st day of
February 1984 at which time the principal then remaining, together with interest
thereon, shall be paid.
This clause makes a clear differentiation between an installment and the principal
remaining. Since the contract is clearly phrased to show a difference between an installment
payment and the final balloon payment, it is improper for the district court to interpret the
contract otherwise. See Watson v. Watson, 95 Nev. 495, 596 P.2d 507 (1979).
Additionally, respondents were paid their costs incident to the acceleration and election to
sell due to delinquency of payment plus interest on the remaining balance. They received all
late fees on the regular installment payments which were not paid on time. Generally, a
contract will be interpreted in accordance with the intentions of the parties. See Shel-A1
Corporation v. American National Insurance Company, 492 F.2d 87 (5th Cir. 1974).
However, in the case at bar, the intentions of the parties are obscured by the fact that the late
fee clauses were not discussed by the parties at any time during the negotiations of the
contract.
parties at any time during the negotiations of the contract. In Mohr Park Manor, Inc. v. Mohr,
83 Nev. 107, 424 P.2d 101 (1967), this Court stated, an interpretation which makes the
contract or agreement fair and reasonable will be preferred to one which leads to harsh or
unreasonable results. Id. at 112. Attaching a late payment to a balloon payment is an
unreasonable result when it does not appear to have been intended under the contract.
Finally, due to the agreement between the parties, we also conclude that appellants should
receive their court costs and attorney's fees from respondents.
Accordingly, we reverse the decision of the district court and remand this case to the
district court for entry of judgment consistent with this opinion.
____________
102 Nev. 220, 220 (1986) Colgain v. State
GUS BEN COLGAIN, Appellant, v. THE
No. 16278
May 28, 1986 719 P.2d 1263
Appeal from conviction of one count of ex-felon in possession of a firearm, and from
finding of habitual criminality with three prior felony convictions. Sixth Judicial District
Court, Humboldt County; Richard J. Legarza, Judge.
Defendant was convicted in the district court of being an ex-felon in possession of firearm
and he appealed. The Supreme Court held that it was an abuse of discretion not to allow
defendant continuance after he was permitted to represent himself in order to give him time to
subpoena witnesses.
Kilpatrick, Johnston & Adler, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City; Virginia Shane, District Attorney, William
C. Jeanney, Deputy District Attorney, and Wilbur H. Sprinkel, Deputy District Attorney,
Humboldt County, for Respondent.
1. Criminal Law.
It was an abuse of discretion for trial court to deny defendant's request for continuance which he needed,
after being allowed to represent himself, in order to subpoena witnesses.
2. Criminal Law.
Letter in which defendant complained of representation by public defender's office and of being shuttled
from one public defender to another was not an expression of intent to represent himself
and determination of whether defendant had adequate time to prepare himself to
represent himself could not be based on theory that he began to represent himself at
the time that he sent the letter to the judge.
another was not an expression of intent to represent himself and determination of whether defendant had
adequate time to prepare himself to represent himself could not be based on theory that he began to
represent himself at the time that he sent the letter to the judge.
3. Criminal Law.
Defendant was prevented from presenting an effective defense where he had been shuffled among five
different public defenders, where no discovery motions were made by any of the public defenders, where
public defender's office informed defendant that it would not serve subpoenas on witnesses identified by
him and where defendant was not permitted any time to prepare his defense when his request to conduct his
own defense was granted.
OPINION
Per Curiam:
Appellant was convicted of being an ex-felon in possession of a firearm. The court found
that Colgain had three prior felony convictions, and sentenced him to life imprisonment. On
appeal, Colgain contends that the court erred in: (1) refusing to grant a continuance in order
to allow Colgain the opportunity to subpoena witnesses; (2) allowing impeachment by use of
a prior felony conviction contrary to NRS 50.095; (3) allowing the State to amend the
information to add a third prior conviction to the habitual felony count after the verdict on the
primary offense; and (4) considering prior convictions which were constitutionally infirm in
finding Colgain to be an habitual felon. Because we conclude that Colgain did not receive a
fair trial, we reverse the conviction on the primary offense.
Over Memorial Day weekend, 1984, Colgain and his girl friend, Linda Tate, traveled from
their home in Salt Lake City to Valmy, Nevada, in order to retrieve some of Colgain's
belongings from his previous residence. They stayed with Colgain's friend, Earl Parrick.
While in Valmy, Colgain had a dispute with Parrick's neighbor, Jess Allen Bogue. Parrick
and Colgain testified that Bogue repeatedly threatened to kill Colgain. On May 27, Bogue
came to Parrick's trailer looking for Colgain, and a fight ensued. Colgain chased Bogue off
the property, warning him not to return, and that if he did return, Colgain would assume
Bogue had a gun or a knife and Colgain would have one waiting. Bogue left, and Colgain and
his girl friend decided to leave Valmy at once in order to avoid further confrontation. As he
was packing up his truck, Colgain saw Bogue drive up to the Parrick residence. Colgain
grabbed a black powder pistol
1
which was in the cab of his truck, and pointed it toward
Bogue.
____________________

1
The black powder pistol was a nineteenth century relic which used black powder, a ball and wadding.
cab of his truck, and pointed it toward Bogue. Colgain then observed that Bogue was
followed by a police vehicle, and Colgain placed the pistol in the cab of his truck.
2

Bogue, assisted by the two officers, placed Colgain under citizen's arrest for battery.
Colgain indicated that he wished to place Bogue under arrest for battery, and the officers
informed him that he had that right. Parrick came out and convinced Bogue and Colgain that
they should not pursue their complaints against each other. At this point, according to Bogue,
one of the officers stated, We didn't drive all the way out here for nothing, so we are going to
arrest somebody. Colgain was charged with being an ex-felon in possession of a concealable
firearm. The State later added allegations of habitual criminality.
Colgain was represented by the public defender's office. Through no fault of his own,
Colgain was shuffled among five different public defenders from the time of his arrest until
the time set for trial. Prior to trial, Colgain twice asked to be appointed to represent himself
due to what he alleged was inadequate representation by the various public defenders.
Approximately five weeks before his trial, Colgain wrote a letter to the court in which he
again complained that he was not being adequately represented, and demanded to have a
say in his defense. On the day of trial, Colgain complained that the public defender had
refused to subpoena witnesses necessary to Colgain's defense,
3
and asked to be appointed to
represent himself. The motion was granted. Colgain immediately requested a continuance in
order to subpoena the witnesses, which was denied.
During the trial, Colgain moved to preclude the prosecutor from inquiring into Colgain's
prior felony convictions. The motion was based, in part, on NRS 50.095.
4
The judge ruled
that the fact of the prior convictions could be elicited for impeachment if Colgain took the
stand. The prosecutor elicited statements from Colgain that he had been convicted of felonies
three times. Colgain then moved for a mistrial on the basis that, since Colgain finished
serving his sentence on one of the priors more than ten years before, the fact of that
conviction was inadmissible for purposes of impeachment under NRS 50.095.
____________________

2
Bogue had called the Humboldt County Sheriff's office to complain of the battery committed upon him by
Colgain. Two officers had been dispatched, and had met Bogue at a Valmy restaurant, where Bogue filled out
what was purported to be a citizen's arrest form.

3
Colgain's attorney admitted that he had told Colgain that the public defender's office didn't have the
manpower to serve the subpoenas.

4
2. Evidence of a conviction is inadmissible under this section if a period of more than 10 years has
elapsed since:
a) The date of the release of the witness from confinement; or
b) The expiration of the period of his parole, probation or sentence, whichever is the later date.
finished serving his sentence on one of the priors more than ten years before, the fact of that
conviction was inadmissible for purposes of impeachment under NRS 50.095. The court
admitted that the fact of that conviction should not have been brought in, but blamed Colgain
for not addressing the age of the conviction and denied the motion on that basis.
Colgain was convicted by the jury of one count of being an ex-felon in the possession of a
concealable firearm. The court found that Colgain was an habitual criminal, having been
three times before convicted of a felony. Colgain was sentenced to life imprisonment with the
possibility of parole.
Colgain contends that the trial court erred in refusing to allow a continuance to permit him
to subpoena witnesses. He contends that where a defendant's request to act as his own
attorney is granted, he is entitled to a reasonable opportunity to prepare his defense. Two
California cases clearly support Colgain's position. In People v. Maddox, 433 P.2d 163 (Ca.
1967), Maddox had sought unsuccessfully to represent himself for over two months prior to
trial. On the morning trial was to begin, the court granted Maddox's request to represent
himself, but denied his motion for a continuance (Maddox wished to subpoena witnesses).
The California Supreme Court reversed, holding that a denial of the continuance deprived
Maddox of the opportunity to prepare adequately for his defense. To deny him that
opportunity would be to render his right to appear in propria persona an empty formality, and
in effect deny him the right to counsel. Id. at 176. This language was quoted with approval
in People v. Hill, 196 Cal.Rptr. 382 (Ca.App. 1983), in which the court held that granting
Hill's request to represent himself while denying him a continuance in order to prepare his
defense constituted infringement of Hill's rights to due process and effective assistance of
counsel. Id. 389. The Hill case is similar to the case at bar in that the defendant requested to
represent himself only after his case was transferred to three different public defenders, and
the attorney appointed at the time of trial had, according to Hill, failed to discuss with him the
witnesses to be subpoenaed.
[Headnote 1]
In this case, Colgain wished to subpoena witnesses who would substantiate Colgain's
claim that the pistol was inadvertently left in his truck by Kelly Kirk, and was discovered by
Colgain enroute to Valmy. According to Colgain, the witnesses would also have confirmed
Colgain's claim that he picked up the pistol only because he feared for his life. Under the
standards set forth in Banks v. State, 101 Nev. 771, 710 P.2d 723 (1985), it was an abuse of
discretion for the trial court to deny Colgain's request for a continuance.
[Headnote 2]
Under the circumstances of this case, the denial of Colgain's request for a continuance
rendered him unable to prepare for trial. We disagree with the trial court's holding that
Colgain's letter of September 6 constituted an unequivocal expression of his intent to
represent himself, and thus that he had adequate time to prepare his defense. That letter,
which is contained in the record, constituted a plea for adequate representation, in which
Colgain expressly recognized his inability to represent himself without the concerned aid of
the public defender's office. Granting Colgain's motion to represent himself while denying
him the opportunity to prepare his own defense constituted a denial of due process and of the
right to effective assistance of counsel. Reversal is warranted.
[Headnote 3]
Aside from this, we note that the entire record reveals a lack of respect for the fundamental
principle that every criminal defendant is entitled to a fair trial. Prior to trial, Colgain was
shuffled among five different attorneys. He continuously complained concerning the lack of
communication and preparation by the various public defenders. Indeed, the record shows
that no discovery motions were ever made by any of the public defenders appoint to represent
Colgain. The public defender's office informed Colgain that it would not serve subpoenas on
witnesses identified by Colgain who could apparently corroborate his defense. When Colgain
finally requested and was granted the right to conduct his own defense, he was not permitted
any time whatsoever in which to prepare that defense or procure the attendance of his
witnesses. The trial transcript indicates that Colgain was unable to adequately represent
himself at that time. During jury selection, the prosecutor revealed that he had discussed the
case with a member of the jury panel. Another juror testified that she was a close friend of the
district attorney who tried the case. Colgain did not challenge these jurors for cause. Although
Colgain attempted to make proper motions and objections during the course of the trial, he
often had difficulty in articulating the basis and authority for his propositions. Nevertheless,
the trial court apparently did not take Colgain's inexperience into account in considering such
matters. An example of this is the failure of the trial court to determine the age of the prior
convictions while allowing their use for impeachment under NRS 50.095.
The cumulative effect of the factors discussed above prevented Colgain from presenting an
effective defense. We note that Colgain has maintained that he momentarily picked up an
antique and allegedly unloaded weapon owned by another in order to deter what he believed
to be a threat to his life.5 It is possible that further inquiry from the witnesses identified
by Colgain, as well as consideration of the nature of the offense charged and the time
already served by Colgain, will lead the State to conclude that retrial on this charge would
simply compound what appears to have been extremely poor judgment from the time of
Colgain's arrest through the nature and expense of the prosecution and subsequent
incarceration of the defendant.6 While perhaps technically within the scope of activity
proscribed by law, it seems unlikely that the legislature had this type of conduct in mind
when it enacted the statute in question.
deter what he believed to be a threat to his life.
5
It is possible that further inquiry from the
witnesses identified by Colgain, as well as consideration of the nature of the offense charged
and the time already served by Colgain, will lead the State to conclude that retrial on this
charge would simply compound what appears to have been extremely poor judgment from the
time of Colgain's arrest through the nature and expense of the prosecution and subsequent
incarceration of the defendant.
6
While perhaps technically within the scope of activity
proscribed by law, it seems unlikely that the legislature had this type of conduct in mind when
it enacted the statute in question.
Our disposition of this issue renders it unnecessary to discuss Colgain's remaining claims
of error. For the foregoing reasons, the judgment of conviction is reversed, and the case
remanded for further proceedings consistent with this opinion. We further order the clerk of
this court to issue the remittitur forthwith.
____________________

5
Parrick's testimony lent support to the assertion that Colgain had cause to believe Bogue desired to kill
Colgain.

6
Although our decision reversing the conviction on the primary offense renders it unnecessary to consider the
issues presented as to the validity of the habitual criminality charge, it should be noted that, if Colgain is
reprosecuted, the State must rebut Colgain's contention that constitutional infirmities appear on the face of each
prior conviction. See, e.g., Anglin v. State, 86 Nev. 70, 464 P.2d 504 (1970); Scott v. State, 97 Nev. 318, 630
P.2d 257 (1981).
____________
102 Nev. 225, 225 (1986) Sutro Tunnel Co. v. Lipscomb
SUTRO TUNNEL COMPANY, a Nevada Corporation, Appellant, v. WILLIAM F.
LIPSCOMB; ANN E. LIPSCOMB; WILLIAM F. LIPSCOMB and ANN E.
LIPSCOMB, Husband and Wife, As Joint Tenants, Respondents.
No. 15750
June 20, 1986 720 P.2d 1204
Appeal from a judgment quieting title in respondents. First Judicial District Court, Storey
County; Howard D. McKibben, Judge.
Landowner brought action seeking to quiet title to subject property. The district court
quieted title in favor of subsequent purchaser by virtue of tax deed and landowner appealed.
The Supreme Court, held that: (1) landowner who properly recorded its deed and continued to
pay taxes on property thereafter was never properly divested of property by purported tax sale
which resulted from errors of tax assessor's office and thus landowner title was prior in
time to that of subsequent purchaser who purportedly purchased property at tax sale, and
{2) landowner who in good faith paid all taxes due on property and who had no
knowledge or reason to know of adverse claim to his property could not be dispossessed
of that property by adverse possessor.
resulted from errors of tax assessor's office and thus landowner title was prior in time to that
of subsequent purchaser who purportedly purchased property at tax sale, and (2) landowner
who in good faith paid all taxes due on property and who had no knowledge or reason to
know of adverse claim to his property could not be dispossessed of that property by adverse
possessor.
Michael W. Dyer and Victor L. McDonald, Carson City, for Appellant.
McDonald, Carano, Wilson, Bergin, Frankovich & Hicks and William A. S. Magrath, II,
Reno, for Respondents.
1. Taxation.
Statute providing that all proceedings in assessing and levying taxes and in the sale and conveyance
therefore, must be presumed to be legal until it is shown affirmatively to the contrary did not require
landowner to demonstrate affirmatively that no actual notice of sale had been given because to permit such
a construction would result in a taking of property without due process of law in cases where a landowner
could not affirmatively demonstrate that no notice had been given. NRS 47.250, subd. 9, 361.590,
361.590, subd. 6, 361.600.
2. Taxation.
Statute providing that all proceedings in assessing and levying taxes and in the sale and conveyance
therefore must be presumed to be legal until it is shown affirmatively to the contrary required affirmative
evidence that assessment and levying of taxes was illegal, or that the sale or conveyance of property to
satisfy a tax debt was illegal and did not specifically require affirmative evidence of notice. NRS 47.250,
subd. 9, 361.590, subd. 6.
3. Taxation.
Evidence that although county had no records showing actual notice of sale held to satisfy tax
delinquency but that in minutes of meeting of the county commissioners it was indicated that notice of sale
was given by publication was insufficient to establish that proper notice was given to landowners of
proposed sale to satisfy tax delinquency. NRS 47.250, subd. 9, 361.590, 361.590, subd. 6, 361.600.
4. Taxation.
Evidence established that property taxes on subject property were not properly or legally assessed, and
that the property was illegally sold as a result of an error made by county assessors office and thus
presumption that all proceedings in assessing and levying taxes, and in the sale and conveyance of property
thereof was legal, was rebutted by affirmative evidence. NRS 47.250, subd. 9, 361.590, subd. 6.
5. Taxation.
General presumption created by statute that official duty had been regularly performed was rebutted by
evidence showing numerous errors committed by county assessors office in assessing and selling property
to satisfy delinquent tax assessment. NRS 47.250, subd. 9, 361.590, subd. 6.
6. Taxation.
Landowner who properly recorded deed to property and continued to pay taxes on the property thereafter
was never properly divested of property by purported tax sale, which resulted from errors committed by the
tax assessor's office and thus landowner's title to subject property was prior in time to that of subsequent
purchaser who purported to purchase property at tax sale.
7. Adverse Possession.
Action of party asserting title to subject property by adverse possession in adding their name to sign post
at the entrance of the property, regrading and regravelling an existing road on two occasions and erecting a
gate on the property, after learning of landowner's asserted interest in property did not give notice to
landowner of parties' adverse claim where parties asserting adverse claim owned the adjacent parcel which
was accessed by the same roadway. NRS 11.120.
8. Adverse Possession.
Landowner who in good faith paid all taxes due on his property, and who had no knowledge or reason to
know of an adverse claim to his property could not be dispossessed of that property by adverse possessors
and thus landowner was entitled to judgment on claim of parties seeking ownership by adverse possession,
as a matter of law. NRS 11.150.
OPINION
Per Curiam:
Appellant acquired title to lots 26, 27 and the west 125 feet of lot 25, block 5, range C,
Town of Gold Hill, Storey County, Nevada, in 1932. The deed was properly recorded in the
Storey County Recorder's Office.
In 1943, the Storey County Assessor's Office mistakenly changed the assessment notice by
changing the range designation from range C to range O. All tax notices to appellant after that
date contained the erroneous property description. The correct property description, however,
also remained on the assessment roll.
Appellant continued to receive assessment notices, and continued to pay taxes on the
subject property until 1981. However, because of the misdescription, the payments were not
credited against the taxes due on the subject property. Thus, the records reflected that the
taxes had become delinquent between 1943 and 1960. Therefore, the treasurer of Storey
County sold the property at a tax sale on May 31, 1960. Respondents' predecessor in interest
purchased the subject property at that tax sale.
From 1960 to 1981, the subject property was assessed under the improper description to
appellant, and under the proper description to respondents and their predecessors in interest.
Both appellant and respondents paid the taxes assessed.
In 1979, the assessor's office committed a second error by changing the block description
from 5 to 1. This apparently occurred because there was no block 5 in range O, but there was
a block 1. Appellant was not informed of this change.
Because of the county's errors, the assessment received by appellant for the subject
property improperly described the property as lots 26, 27 and the west 125 feet of lot 25,
block 1, range O, Town of Gold Hill, Storey County, Nevada, (instead of the proper
description of block 5, range C). Coincidentally, in addition to the property that is the subject
matter of this dispute, appellant also owned property in block 1, range O, Town of Gold Hill,
Storey County, Nevada. On reviewing its records, appellant did not realize that it was not
receiving a proper assessment for block 5, range C. Instead, appellant thought it was receiving
two assessments for the property located in block 1, range O. Thus, in 1981, appellant
informed the Storey County Board of Equalization of the assumed duplicate assessment, and
the assessment for the subject property with the improper description was deleted from the
assessment roll. Appellant then stopped paying taxes on the subject property.
Shortly thereafter, appellant discovered that respondents asserted an interest in the subject
property. Appellant then commenced an action in the district court seeking to quiet title to the
subject property. Respondents answered, claiming ownership to the property by virtue of a
tax deed and, alternatively, by adverse possession. The district court quieted title in favor of
respondents by virtue of the tax deed, and this appeal followed.
Appellant contends that the county failed to provide it with notice of the county's intention
to sell the property to recover the alleged tax delinquency. This, according to appellant,
resulted in a taking of appellant's property without due process of law. Appellant argues
correctly that if actual notice of the sale was not given to appellant, the tax sale was void, and
respondents' predecessor in interest took no interest in the property at the sale. See Bogart v.
Lathrop, 90 Nev. 230, 523 P.2d 838 (1974); see also Mennonite Board of Missions v. Adams,
462 U.S. 791 (1983).
At trial, James Schryver, president of appellant Sutro Tunnel Company since 1960,
testified that appellant was never notified of a tax sale of its property. John Flannagan, the
Storey County Assessor at the time of trial, also testified that the county had no records
showing that actual notice of the sale was given to appellant. However, Flannagan surmised
that notice of the sale had been given by publication. In addition, minutes of a meeting of the
commissioners of Storey County, at which the 1960 sale was reported, indicated that notice of
the sale was given by publication.
publication. The district court rejected this evidence as insufficient to demonstrate whether
actual notice had been given to appellant.
In the absence of affirmative evidence to show that actual notice of the sale had not been
given, the district court decided that pursuant to NRS 47.250(9)
1
and NRS 361.590(6),
2
it
would presume that notice had been given. The district court then concluded that appellant's
cause of action was barred by the statute of limitations contained in NRS 361.600.
3
In this
conclusion, the district court erred.
[Headnote 1]
We have held that the curative provisions of NRS 361.590 and NRS 361.600 are not
effective to cure a jurisdictional defect such as the failure to provide a taxpayer the minimum
notice required by due process of law. See Bogart v. Lathrop, 90 Nev. 230, 523 P.2d 838
(1974). Therefore, appellant's cause of action is barred by the statute of limitations only if
appellant was given notice of the tax sale of its property. In this case, our review of the record
reveals no evidence to support the conclusion that appellant was given proper notice of the
tax sale. Further, the presumptions set forth in NRS 47.250(9) and NRS 361.590(6) are
inadequate, under the circumstances of this case, to provide a basis for finding that actual
notice of the sale was given to appellant. In relevant part, NRS 361.590(6) provides: All such
proceedings in assessing and levying taxes, and in the sale and conveyance therefor,
must be presumed by all the courts of this state to be legal until the contrary is shown
affirmatively.
____________________

All other presumptions are disputable. The following are of that kind:
. . .
9. That official duty has been regularly performed.

6. No tax assessed upon any property, or sale therefor, may be held invalid by any court of this state
on account of:
(a) Any irregularity in any assessment;
(b) Any assessment or tax roll not having been made or proceeding had within the time required by
law; or
(c) Any other irregularity, informality, omission, mistake or want of any matter of form or substance
in any proceedings which the legislature might have dispensed with in the first place if it had seen fit so
to do, and that does not affect the substantial property rights of persons whose property is taxed.
All such proceedings in assessing and levying taxes, and sale and conveyance therefor, must be presumed
by all the courts of this state to be legal until the contrary is shown affirmatively.

NRS 361.600, as it existed on May 31, 1960, provided:
No action or counterclaim for the recovery of lands sold for taxes shall lie unless the same be brought
or interposed within 3 years after the execution and delivery of the deed therefor by the county treasurer,
any law to the contrary notwithstanding.
All such proceedings in assessing and levying taxes, and in the sale and conveyance
therefor, must be presumed by all the courts of this state to be legal until the contrary is
shown affirmatively.
The district court construed this statute as placing a burden on appellant to demonstrate
affirmatively that no notice was given of the tax sale. Such a burden would be impossible to
satisfy in a great majority of cases. Records may indicate the sending of notice; however,
records will seldom exist indicating that no notice was sent. Consequently, the district court's
construction of NRS 361.590(6) would result in a taking of property without due process of
law in many cases where the claimant could not affirmatively demonstrate that no notice was
given. The legislature certainly did not intend such a result.
[Headnotes 2-5]
A closer reading of NRS 361.590(6) reveals that the statute does not specifically require
affirmative evidence of notice. Instead, NRS 361.590(6) requires affirmative evidence that
the assessment and levying of taxes was illegal, or that the sale or conveyance of property to
satisfy a tax debt was illegal. In this case, the evidence clearly shows that the taxes were not
properly or legally assessed, and that the property was illegally sold as a result of an error
made by the county assessor's office. Therefore, the presumption of NRS 361.590(6) was
rebutted by affirmative evidence, and the district court erred in relying on the presumption.
Similarly, the general presumption created by NRS 47.250(9) that official duty has been
regularly performed was clearly rebutted in this case by evidence showing the numerous
errors committed by the county assessor's office in assessing and selling the property.
Assuming, therefore, without deciding, that these presumptions could be relied on in a proper
case as a basis for a finding that a jurisdictional requirement had been satisfied, we hold that
the district court improperly relied on the presumptions in this case because the presumptions
were rebutted.
[Headnote 6]
Appellant's title to the subject property is prior in time to respondents'. Appellant properly
recorded its deed to the property in 1932, and continued to pay taxes on the property
thereafter. Our review of the record reveals no evidence to support the conclusion that
appellant was ever properly divested of the property by the purported tax sale of 1960, which
resulted from the errors of the assessor's office. Therefore, the judgment of the district court
was erroneous.
[Headnotes 7, 8]
Respondents also contended below that they acquired title to the subject property by
adverse possession. We conclude, however, that respondents failed to establish that their
possession was hostile, actual, peaceable, open, notorious, continuous and uninterrupted
as required to establish a claim of ownership by adverse possession.
ever, that respondents failed to establish that their possession was hostile, actual, peaceable,
open, notorious, continuous and uninterrupted as required to establish a claim of ownership
by adverse possession. See Brooks v. Jensen, 87 Nev. 174, 483 P.2d 650 (1971); See also
NRS 11.120.
4
Since acquiring their alleged title to the property, respondents' improvements
to the property have been limited to: (1) adding their name to a sign posted at the entrance of
the property; (2) regrading and regravelling an existing road on two occasions; and (3)
erecting a gate on the property in 1982, after learning of appellant's asserted interest in the
property.
5
In light of the fact that respondents own the adjacent parcel which is accessed by
the same roadway, these actions did not give notice to appellant of respondents' adverse
claim. Cf. Rodgers v. Carpenter, 44 Nev. 4, 189 P. 67 (1920) (adverse possessor's actions
were sufficient where they gave owner knowledge, or reason to know, that adverse possessor
claimed the property as his own). Finally, although respondents and their predecessors in
interest have paid taxes on the subject property since 1960, appellant has paid taxes on the
property since 1932. A party who in good faith pays all taxes due on his property, and who
has no knowledge or reason to know of an adverse claim to his property, cannot be
dispossessed of that property by an adverse possessor. Cf. NRS 11.150 (requiring claimant to
pay taxes on property for a period of five years in order to prevail on a claim of adverse
possession on the theory that taxes will be paid only once and that owner who has not paid his
taxes may properly be divested of his property). Therefore, as a matter of law, appellant is
entitled to judgment on respondents' claim of ownership by adverse possession. Accordingly,
we reverse the judgment of the district court, and we remand this case for the entry of
judgment quieting title in favor of appellant.
____________________

4
For the purpose of constituting adverse possession by any person claiming a title, founded upon a
written instrument or judgment or decree, land shall be deemed to have been possessed and occupied in
the following cases:
1. Where it has been usually cultivated or improved.
2. Where it has been protected by a substantial inclosure.
3. Where, though not inclosed, it has been used for the supply of fuel, or of fencing timber, for the
purpose of husbandry; or for the use of pasturage, or for ordinary uses of the occupant.
4. Where a known farm or single lot has been partly improved, the portion of such farm or lot that
may have been left not cleared, or not inclosed according to the usual course and custom of the adjoining
country, shall be deemed to have been occupied for the same length of time as the part improved and
cultivated.

5
When respondents erected the gate, appellant immediately informed respondents that it did not object to the
gate so long as appellant was not denied access to the subject property.
____________
102 Nev. 232, 232 (1986) State, Dep't Mtr. Vehicles v. Vezeris
STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES, Appellant, v. GUSTUS
VEZERIS, Respondent.
No. 16841
STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES, Appellant v. ALFREDO
ALVAREZ, Respondent.
No. 16879
STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES, Appellant v.
LAWRENCE A. DEFALCO, Respondent.
No. 16886
June 20, 1986 720 P.2d 1208
The State of Nevada, Department of Motor Vehicles, appeals three district court orders
remanding the causes to the Department of Motor Vehicles for new hearings. Eighth Judicial
District Court, Clark County; Paul S. Goldman and Stephen L. Huffaker, Judges.
Three drivers had their licenses suspended by the Department of Motor Vehicles for
driving while under the influence of alcohol, and the drivers petitioned for review. The
district court ruled that hearing officer erred in admitting certain affidavits into evidence over
objections by drivers and remanded the cases to the Department for new hearing, and the
Department appealed. The Supreme Court, held that: (1) only defendants in criminal
proceedings may object to the use of affidavits of persons drawing blood samples and parties
seeking administrative review of driver's license revocations could not object to the use of
such affidavits; (2) admitting affidavits over objection of drivers did not violate drivers' due
process rights.
Reversed.
Brian McKay, Attorney General, Carson City, and Paul L. Wilkin, Deputy Attorney
General, Las Vegas, for Appellant.
John G. Watkins, Las Vegas, for Respondents.
1. Statutes.
When a statute is ambiguous, it is the duty of the Supreme Court to construe the statute in line with what
reason and public policy would indicate the legislature intended.
2. Administrative Law and Procedure; Automobiles.
Only defendants in criminal proceedings may object to use of affidavits of persons drawing blood
samples to determine existence of alcohol or controlled substances in the blood, and parties
seeking administrative review of driver's license revocation may not object to use of
such affidavits.
alcohol or controlled substances in the blood, and parties seeking administrative review of driver's license
revocation may not object to use of such affidavits. NRS 50.315, subd. 5, 50.325, 50.325, subd. 4.
3. Constitutional Law.
The suspension or revocation of a driver's license implicates a protectable property interest under the due
process clause of Fourteenth Amendment to the United States Constitution. U.S.C.A.Const. Amend. 14.
To determine the requirements of procedural due process in a particular case, a court must balance
private interest that will be affected by the official action, the risk of an erroneous deprivation of that
private interest through the procedures used and the probable value, if any, of additional or substitute
procedural safeguards, and the government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirements would entail.
Driver seeking administrative review by Department of Motor Vehicles of driver's license suspension has
right to call any witnesses, and if driver feels that affidavit of person who drew blood, as to determine
existence of alcohol or controlled substances in the blood,is suspect, driver can demand presence of affiant.
NRS 233B.123, subd. 4.
Admission of affidavits of persons who drew blood, concerning existence of alcohol or controlled
substances in the blood, over objections by respondents, at Department of Motor Vehicles hearing to
review drivers license revocation, was not violative of respondents' procedural due process rights. NRS
50.315, subd. 5, 50.325, subd. 4; U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
The resolution of this consolidation of three appeals rests upon the proper interpretation of
NRS 50.325. Because we have concluded that the district courts erred in determining that
NRS 50.325 is applicable to administrative proceedings, we reverse the decisions of the
district courts.
THE FACTS
The facts in these three cases are the same or similar in many instances. Each respondent
was arrested in Clark County during the latter part of 1984 for driving while under the
influence of alcohol. After arrest, each respondent elected to submit to a blood test in order to
determine his blood alcohol content. In all three instances, the person who drew the blood
samples filled out an affidavit attesting to the identity of the person from whom the blood was
drawn, the occupation of the person drawing the blood, and the chain of custody.
After chemical analysis, blood samples from all three respondents showed a blood alcohol
content greater than the legal limit of 0.10 percent.
1
Based on the blood alcohol content of
respondents, the State of Nevada, Department of Motor Vehicles (DMV) revoked
respondents' driving privileges. Pursuant to NRS 484.387,
2
each respondent requested a
hearing to review the revocation. At each respondents's hearing, the hearing officer allowed
into evidence, over objection by respondents, the affidavit of the person who drew the blood
samples. Evidently, the hearing officer used the affidavits to establish that the persons who
drew the blood samples were registered nurses.
3

At the conclusion of each hearing, the hearing officer found substantial evidence to
support the revocation of respondent's driving privileges; therefore, the decision of DMV to
revoke the driving privileges of respondents was upheld. Thereafter, each respondent
petitioned the district court for review of the action taken by the hearing officer. In each
instance, the district court ruled that the hearing officer erred in admitting the affidavits into
evidence over objections by respondents; therefore, the district court remanded the cases to
DMV for new hearings. DMV appealed each decision which resulted in this consolidated
appeal.
DISCUSSION
The affidavits of the persons who drew the blood samples are clearly admissible in
administrative proceedings before DMV. See NRS 50.315(5). The district courts ruled that,
despite NRS 50.315(5), respondents could object to the use of such affidavits and could
compel the attendance at the hearings of those persons who drew the blood samples. The
district courts found authority for this position in NRS 50.325 which states:
50.325 Affidavit of expert as to existence of alcohol or controlled substance:
Procedure for admission.
1. Whenever a person is charged with an offense punish-
____________________

1
Respondents had the following blood alcohol contents:
Vezeris 0.25%
Alvarez 0.11%
Defalco 0.16%

2
NRS 484.387(1) states in relevant part:
At any time while a person is not eligible for a license, permit or privilege to drive following an order
of revocation . . . he may request in writing a hearing by the department to review the order of revocation
. . . .

3
The occupation of the person who drew the blood samples is important because only the results of blood
samples drawn by a physician, registered nurse, licensed practical nurse, advanced emergency medical
technician, or a medical laboratory technician are admissible in a revocation hearing. NRS 484.393.
able under chapters 453 or 484 of NRS or homicide resulting from driving a vehicle
while under the influence of intoxicating liquor or a controlled substance as defined in
chapter 453 of NRS, or a chemical, poison or organic solvent, and it is necessary to
prove the existence of any alcohol or the existence or identity of a controlled substance,
chemical, poison or organic solvent, the prosecuting attorney may request that the
affidavit of an expert or other person described in NRS 50.315 be admitted in evidence
at the trial or hearing concerning the offense.
2. The request must be made at least 10 days before the date set for the trial or
hearing and must be sent to the defendant's counsel and to the defendant, by registered
or certified mail by the prosecuting attorney.
3. If the defendant or his counsel notifies the prosecuting attorney by registered or
certified mail at least 96 hours before the date set for the trial or hearing that the
presence of the expert or other person is demanded, the affidavit must not be admitted.
A defendant who demands the presence of the expert or other person and is convicted
of violating NRS 484.379 or a provision of chapter 484 of NRS for which a driver's
license may be revoked shall pay the fees and expenses of that witness at the trial or
hearing.
4. If at the trial or hearing the affidavit of an expert or other person has been
admitted in evidence, and it appears to be in the interest of justice that the expert or
other person be examined or cross-examined in person, the judge, justice of the peace
or hearing officer may adjourn the trial or hearing for a period of not to exceed 3
judicial days for the purpose of receiving such testimony. The time within which a
preliminary examination or trial is required is extended by the time of the adjournment.
(Emphasis added.) We conclude, however, that the district courts erred in ruling that
respondents could object to the use of such affidavits at administrative proceedings.
NRS 50.325 is ambiguous on its face. It is not obvious from a reading of the statute
whether it applies to both criminal and civil proceedings or solely to criminal proceedings.
Clearly, defendant, trial, and prosecuting attorney refer to criminal proceedings.
However, NRS 50.325 also uses the word hearing without indicating whether it is a
reference to administrative hearings or criminal preliminary hearings. It is well established
that administrative hearings concerning the revocation of driver's licenses are civil in nature,
not criminal. See Ballard v. State, Motor Vehicle Division, 595 P.2d 1302 (Utah 1979);
McDonnell v. Department of Motor Vehicles, 119. Cal.Rptr. 804 (Cal.App. 1975). Therefore,
should NRS 50.325 apply solely to criminal proceedings, administrative proceedings would
be exempt from the operation of NRS 50.325.
proceedings, administrative proceedings would be exempt from the operation of NRS 50.325.
[Headnotes 1, 2]
When a statute is ambiguous, it is our duty to construe that statute in line with what
reason and public policy would indicate the legislature intended. Cannon v. Taylor, 87 Nev.
285, 288, 486 P.2d 493, 495 (1971), modified on other grounds, Cannon v. Taylor, 88 Nev.
89, 493 P.2d 1313 (1972). With this standard in mind, we conclude that only defendants in
criminal proceedings may object to the use of affidavits of persons drawing blood samples;
parties seeking administrative review of driver's license revocations may not object to the use
of such affidavits.
4
This interpretation is supported by our review of the legislative history of
NRS 50.325. Originally, district attorney was used. See 1971 Nev. Stats. ch. 477, 3, at
929. This is clearly a reference to criminal proceedings. This conclusion is not changed by the
fact that prosecuting attorney was substituted for district attorney in NRS 50.325(1) in
1983. See 1983 Nev. Stats. ch. 597, 9, at 1917. Prosecuting attorney is the public officer
who is appointed or elected to conduct criminal prosecutions on behalf of the state. Black's
Law Dictionary 1099 (5th ed. 1979). Also, the statute continually refers to defendant;
participants in administrative hearings are not generally known as prosecutors or defendants,
they are simply known as parties. For the above reasons, we conclude that NRS 50.325 does
not give participants in administrative hearings before DMV the right to object to the use of
affidavits authorized by NRS 50.315(5).
[Headnotes 3, 4]
We are convinced that this decision will result in no violation of respondents' procedural
due process rights. It is well settled that the suspension or revocation of a driver's license
implicates a protectable property interest under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. Bell v. Burson, 402 U.S. 535 (1971).
However, due process is a flexible, not rigid, concept. To determine the requirements of
procedural due process in any particular case, a court must balance (1) the private interest that
will be affected by the official action, (2) the risk of an erroneous deprivation of that private
interest through the procedures used and the probable value, if any, of additional or substitute
procedural safeguards, and (3) the government's interest, including the function involved
and the fiscal and administrative burdens that the additional or substitute procedural
requirements would entail.
____________________

4
We note that NRS 50.325(4) does permit a judge, justice of the peace or hearing officer to continue the trial
or hearing to allow for receiving testimony of an expert if his affidavit has been admitted and the interest of
justice requires the testimony. It is apparent that this subparagraph was intended to apply to administrative
proceedings; however, this is only made clear by the use of hearing officer. The first three subparagraphs
contain no such clear indication of intent.
interest, including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirements would entail. Mathews v. Eldridge, 424 U.S.
319, 334-335 (1976).
[Headnotes 5, 6]
Applying this balancing test to the procedure of admitting affidavits over objection of
respondents, we find no violation of respondents' due process rights. It is true that the private
interest of respondents in retaining their driving privileges is substantial and important;
however, the governmental interest in keeping its highways safe is also very substantial. See
Mackey v. Montrym, 443 U.S. 1, 17-18. Also substantial are both the fiscal and
administrative burdens if each driver requesting a hearing were entitled to have those persons
whose affidavits are admissible pursuant to NRS 50.315(5) present at hearings. Finally,
examining the remaining factor, the risk of error is not great. The additional procedural
safeguard of having affiants present at the hearings would not significantly lessen any risk of
error. The issues at the hearing are not complex; the scope is limited to ascertaining whether
the driver refused to submit to a blood, breath or urine test or whether the blood alcohol
content was 0.10 percent or greater; therefore, the risk of error is not great. Also, pursuant to
NRS 233B.123(4),
5
a driver has the right to call any witnesses; therefore, if he feels that an
affidavit is suspect, he can demand the presence of the affiant. Also, pursuant to NRS
50.325(4), the hearing officer can order a three day adjournment should the interests of justice
require the examination of an affiant. Additionally, we note that governmental
decision-making need not comply with standards that assure perfect, error-free
determinations. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12-13 (1979).
Therefore, the admission of the affidavits authorized by NRS 50.315(5) over objections by
respondents at the hearings before DMV is not violative of respondents' procedural due
process rights.
CONCLUSION
We have concluded that parties to administrative hearings before DMV may not object to
the use of affidavits authorized by NRS 50.315(5). Also, this is not violative of respondents'
due process rights. Accordingly, we reverse the decisions of the district courts remanding
these cases for new hearings.
____________________

5
NRS 233B.123(4) provides:
Each party may call and examine witnesses, introduce exhibits, cross-examine opposing witnesses on
any matter relevant to the issues even though such matter was not covered in the direct examination,
impeach any witness regardless of which party first called him to testify, and rebut the evidence against
him.
____________
102 Nev. 238, 238 (1986) Lizotte v. State
PATRICK HENRY LIZOTTE, Appellant, v. THE
No. 15203
June 20, 1986 720 P.2d 1212
Appeal from a conviction for first degree murder and attempted murder; Eighth Judicial
District Court, Clark County; Robert G. Legakes, Judge.
Defendant was convicted in the district court of murder with deadly weapon and attempted
murder. Defendant appealed. The Supreme Court held that defendant who only made
inadequate motion to challenge allegedly involuntary administration of drugs failed to
preserve for appeal argument that defendant was denied right to fair trial by allegedly
involuntary administration of drugs.
Affirmed.
Morgan D. Harris, Public Defender, Robert H. Thompson, Deputy Public Defender, Clark
County, for Appellant.
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney, Melvin
T. Harmon, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Defendant whose only motion sought discontinuation of involuntary medication so that defendant could
be free of medication prior to trial, omitted name of drug and description of effects of drug, omitted
affidavit to show involuntary administration, requested relief for period prior to trial, omitted legal grounds
or points and authorities, and was not accompanied by oral argument failed to preserve claimed error for
appeal from conviction for murder with use of deadly weapon and attempted murder.
2. Criminal Law.
Record failed to reveal that defendant's appreciation of events of trial was diminished by allegedly
involuntary medication or that defendant was denied right to fair trial by reason of mental condition
allegedly related to involuntary drug ingestion. U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
On March 19, 1982, Patrick Henry Lizotte, a high school student, entered his psychology
class, pointed a gun at his teacher and killed him. After shooting the teacher, Lizotte walked
out of the classroom and shot and wounded two of his fellow students. Lizotte himself was
later shot and wounded during his capture by police officers.
After his arrest, three court-appointed psychiatrists examined Lizotte and concluded that
he was psychotic at the time of the shooting and that he was not mentally competent to stand
trial. After being declared incompetent to stand trial by the district court, Lizotte was
committed to the custody of Lake's Crossing Center, an institution for mentally disordered
offenders.
At Lake's Crossing a course of chemical treatment was instituted involving the use of an
antipsychotic drug called Navane. As a result of this treatment Lizotte's mental state changed,
and some eleven months after the shooting episode he was determined by the court to be
competent to assist his attorney and proceed to trial. Throughout the trial Lizotte continued to
be treated with Navane.
Lizotte's sole defense was that he was insane at the time he shot the teacher and students.
Conflicting psychiatric testimony was presented. Lizotte did not testify. The jury found
Lizotte guilty of murder with the use of a deadly weapon and of two counts of attempted
murder. He was sentenced to two consecutive life sentences without possibility of parole for
murder with use of a deadly weapon and to an additional sixty years imprisonment for the
attempted murders.
[Headnote 1]
On appeal Lizotte claims that the state required him involuntarily to be in a drugged
condition before and during the trial and that this denied him a fair trial. Because of failure to
preserve the claimed error by bringing it properly to the attention of the trial court, we affirm
the conviction.
In the record before us there is only one formal motion made to the court relating to
cessation of drugs. This motion was made and filed on April 11, 1983, one month before trial.
This motion sought an order discontinuing the involuntary medication provided to the
defendant. The only ground stated was the conclusion by Lizotte's counsel that Lizotte
should be free of drugs and medication prior to trial. (Emphasis supplied.) No motion was
made during trial, and none after.
The problems with the one motion that was filed are: (1) no name, description, or
reference to the effect of the drug was given; (2) there was no affidavit or other factual
support that the drug was being involuntarily administered; (3) the moving papers specify that
the relief requested was for the period prior to, not during, trial; (4) no legal grounds or points
and authorities were presented; and (5) no oral argument was presented by defense counsel at
the time set.
We are generally willing to overlook minor procedural flaws, but it remains a necessity of
appellate review that the district judge be given a chance to rule on the legal and
constitutional questions involved rather than being asked, without a statement of legal
grounds, merely to discontinue some unidentified drug prior to trial without specifying
the supposed involuntary nature of the drug ingestion.
questions involved rather than being asked, without a statement of legal grounds, merely to
discontinue some unidentified drug prior to trial without specifying the supposed involuntary
nature of the drug ingestion.
It is noted that the district judge invited but did not receive a proper application for relief.
The drug question was first brought up informally on February 28, 1983. No motion or ruling
was made, however. On March 23, 1983, at a hearing on another matter the question was
again raised informally when defense counsel expressed an objection to his client's being
given medication or drugs, to keep him drugged during the trial or whatever. At this time the
court suggested that perhaps [counsel] could articulate some reason for the court to prescribe
if medical treatment should be discontinued. Until that time, I think its speculative.
We must agree with the trial judge that until the nature and effect of the drug is made
known to the court, until the involuntary nature of administration of the drug is established on
the record, and until some legal basis for the motion is expressed, the informal complaints of
counsel must be considered as merely speculative.
The mentioned motion was denied on April 13, 1983. The subject of drugs did not come
up again until May 9, 1983, which was the day before the trial began. A substitute judge
appeared on the scene on this date. The substitute judge made it clear that he would take no
dispositive action other than setting the case over for trial on the next day. Defense counsel
again referred to involuntary heavy medication being given to his client, but made no
motion, and no action was taken by the court. The matter was never brought up again.
We are constrained to conclude that no proper request by motion or otherwise was ever
made to effect cessation of mind-altering drugs either to permit Lizotte to appear and be
present at trial or to present himself in his natural state as part of the insanity defense or for
any other stated constitutional or legal reason.
Failure to assert these rights is much more than a mere technicality. In our reviewing
function we must insist that the trial judge have a reasonable opportunity to consider fairly
and rule on matters brought before the court by defense counsel. This simply was not done
here; still, we have gone further and sifted through the entire record in an attempt to find on
our own any indication that Lizotte was treated unfairly.
[Headnote 2]
Lizotte's counsel argues in his brief that his client sat motionless during trial, made no
statements, and did not testify. The record itself, however, does not reveal that Lizotte's
appreciation of the events of the trial was in any way diminished by the medication, and it
does not appear that he was, by reason of any mental condition related to drug ingestion,
denied his right to a fair trial.
of the events of the trial was in any way diminished by the medication, and it does not appear
that he was, by reason of any mental condition related to drug ingestion, denied his right to a
fair trial. He may have had the right not to be forced to take the drugs, but that right was not
timely asserted or properly brought to the attention of the court. There is no basis for finding
from the record itself that Lizotte was denied the right to appear and defend in person or
that he was denied a right to a fair trial.
As stated, Lizotte did not testify. Neither did he, during trial, request of the trial judge the
right to appear in his undrugged state. A reading of the record fails to disclose inherent
unfairness. The jury did get an opportunity to see Lizotte in his psychotic phase in a
videotaped interview. Absent denial of an express request for an opportunity to be viewed
physically in his undrugged state, there is no unfair treatment manifest in the record in this
regard.
Other claims of error are without merit. Finding no prejudicial error in this record, we
affirm the convictions.
Mowbray, C. J., and Springer, Gunderson, and Steffen, JJ., concur.
____________
102 Nev. 241, 241 (1986) Van Buskirk v. State
GENE P. VAN BUSKIRK, Appellant, v. THE
No. 16123
June 20, 1986 720 P.2d 1215
Appeal from judgment of conviction of one count of grand larceny upon plea of guilty
entered pursuant to plea bargain. Eighth Judicial District Court, Clark County; Donald M.
Mosley, Judge.
Defendant was convicted in the district court of grand larceny. Defendant appealed. The
Supreme Court held that: (1) district court which accepted defendant's negotiated plea of
guilty in exchange for dismissal of two felony theft charges, withdrawal of habitual criminal
allegation, and evaluation and treatment for alcoholism prior to sentencing, but which
sentenced defendant prior to evaluation and treatment for alcoholism, violated terms and
spirit of plea bargain and defendant's due process rights, and (2) specific enforcement was
appropriate remedy for violation of plea bargain.
Affirmed, sentence vacated, remanded with instructions.
Graves, Leavitt & Cawley, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney, James
N. Tufteland, Deputy, Clark County, for Respondent.
1. Constitutional Law; Criminal Law.
District court which accepted defendant's negotiated plea of guilty to grand larceny in exchange for
dismissal of two felony theft charges, withdrawal of habitual criminal allegation, and evaluation and
treatment for alcoholism prior to sentencing, but which sentenced defendant prior to evaluation and
treatment for alcoholism, violated terms and spirit of plea bargain and defendant's due process rights.
U.S.C.A.Const. Amends. 5, 14.
2. Criminal Law.
Appropriate remedy for district court's violation of terms of negotiated plea bargain by failing to permit
evaluation and treatment for alcoholism before sentencing for grand larceny was specific enforcement in
that enforcement would not bind district court to inappropriate disposition of case or otherwise impinge
upon sentencing discretion and in that specific performance would promote informed exercise of discretion
by providing district court with further information.
OPINION
Per Curiam:
Appellant Gene P. Van Buskirk appeals from a judgment of conviction of one count of
grand larceny upon a plea of guilty entered pursuant to a plea bargain. Van Buskirk's appeal
raises the issue of whether the plea bargain was violated and, if so, what is the proper remedy.
THE FACTS
The State charged Van Buskirk with one count of grand larceny for stealing an attache
case from a Las Vegas department store. In return for a negotiated plea of guilty to that
charge, the State agreed to dismiss two felony theft charges pending against Van Buskirk,
withdraw a habitual criminal allegation, and send Van Buskirk to Lakes Crossing Center prior
to sentencing for evaluation and treatment for alcoholism. When the district court canvassed
Van Buskirk regarding his plea, it told him that the sentence he received would depend upon
the results of his evaluation and treatment.
The district court ordered Van Buskirk to be transported to Lakes Crossing Center. The
district court order, however, did not instruct the director of Lakes Crossing Center to
evaluate and treat Van Buskirk for alcoholism. Instead, the order instructed the director to
conduct an evaluation of [Van Buskirk] to determine whether or not on the date of the
alleged crime . . . [he] knew the difference between right and wrong, or the nature, quality
and consequences of his physical actions."
difference between right and wrong, or the nature, quality and consequences of his physical
actions. While at Lakes Crossing Center, Van Buskirk was evaluated for competency to
stand trial.
Lakes Crossing Center, in fact, had no facility for evaluation and treatment for alcoholism.
When Van Buskirk's counsel notified the district court of that fact, the district court continued
Van Buskirk's sentencing date to enable Van Buskirk to be placed in a facility for evaluation
and treatment for alcoholism. Before such a facility could be located, however, the district
court, after denying Van Buskirk's motion to withdraw his guilty plea, sentenced Van Buskirk
to prison for eight years.
THE LAW
Van Buskirk argues that the district court violated the plea bargain by sentencing him
before he was evaluated and treated for alcoholism. We agree and conclude that Van Buskirk
is entitled to enforcement of the plea bargain.
Plea bargaining has become an essential component of the administration of justice in
America. Blackledge v. Allison, 431 U.S. 63 (1976); Santobello v. New York, 404 U.S. 257
(1971). Due process, however, requires that the bargain be kept when the plea of guilty is
entered. Santobello v. New York, supra. Gamble v. State, 95 Nev. 904, 604 P.2d 335 (1979).
In determining whether the state has fulfilled its part of a plea bargain, the state is held to the
most meticulous standards of both promise and performance. Kluttz v. Warden, 99 Nev.
681, 683-684, 669 P.2d 244 (1983). The violation of the terms or the spirit of the plea
bargain requires reversal. Id.
[Headnote 1]
Van Buskirk's plea of guilty was induced, in part, by the State's promise that he would be
evaluated and treated for alcoholism and that the sentence he received would depend upon the
results of his evaluation and treatment. The district court, after accepting the terms of the plea
bargain, violated both the terms and the spirit of the plea bargain by sentencing Van Buskirk
to prison before he was evaluated and treated for alcoholism.
[Headnote 2]
We conclude that specific enforcement of the plea bargain is the appropriate remedy. The
California Supreme Court stated in People v. Mancheno, 645 P.2d 211 (Cal. 1982):
The goal in providing a remedy for breach of the [plea] bargain is to redress the
harm caused by the violation without prejudicing either party or curtailing the normal
sentencing discretion of the trial judge. The remedy chosen will vary depending on the
circumstances of each case.
vary depending on the circumstances of each case. Factors to be considered include
who broke the bargain and whether the violation was deliberate or inadvertent, whether
circumstances have changed between entry of the plea and the time of sentencing, and
whether additional information has been obtained that, if not considered, would
constrain the court to a disposition that it determines to be inappropriate. . . .
The usual remedies for violation of a plea bargain are to allow defendant to
withdraw the plea and go to trial on the original charges, or to specifically enforce the
plea bargain. Courts find withdrawal of the plea to be the appropriate remedy when
specifically enforcing the bargain would have limited the judge's sentencing discretion
in light of the development of additional information or changed circumstances
between acceptance of the plea and sentencing. Specific enforcement is appropriate
when it will implement the reasonable expectations of the parties without binding the
trial judge to a disposition that he or she considers unsuitable under all the
circumstances.
Id. at 214-215. See Santobello v. New York, supra at 263, 267; McGuire v. State, 100 Nev.
153, 160 n. 5, 677 P.2d 1060, 1065, (1984); Kluttz v. Warden, supra; Doan v. State, 98 Nev.
75, 639 P.2d 565 (1982); Gamble v. State, supra.
In this case specific enforcement of the plea bargain is the most effective method of
repairing the harm caused by the violation and implementing the reasonable expectations of
the parties. Specific enforcement will not bind the district court to an inappropriate
disposition of the case or otherwise impinge upon the court's sentencing discretion. Indeed,
specific enforcement would promote informed exercise of that discretion by providing the
district court with further information with which to make an appropriate sentencing decision.
CONCLUSION
Accordingly, the conviction is affirmed, the sentence is vacated, and the case is remanded
to the district court with instructions that a different district judge shall specifically enforce
the plea bargain.
1

____________________

1
Our disposition of this issue renders it unnecessary to address Van Buskirk's contention that the district
court relied upon improper information at sentencing. Van Buskirk's remaining assignments of error are
meritless.
____________
102 Nev. 245, 245 (1986) Aldana v. State
ANGEL RUBIN ALDANA, Appellant, v. THE
No. 16188
June 26, 1986 720 P.2d 1217
Appeal from judgment of conviction of three accounts of attempted murder with use of a
deadly weapon. Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Defendant was convicted before the district court of three counts of attempted murder with
the use of a deadly weapon, and he appealed. The Supreme Court held that refusal to instruct
jury on law governing the insanity defense was error, where victim and members of her
family testified that defendant became increasingly abnormal on days preceding shooting of
victim and her siblings and that victim and her family members sought psychiatric help for
defendant.
Morgan D. Harris, Public Defender, Robert H. Thompson, Deputy, Clark County, for
Appellant.
N. Tufteland, Deputy, Walter Ayers, Deputy, Clark County, for Respondent.
1. Criminal Law.
Defendant need not introduce expert medical testimony regarding his sanity to be entitled to jury
instructions on law governing the insanity defense; instead, defendant need only introduce some evidence
tending to show he was insane when he committed the crime.
2. Criminal Law.
Refusal to instruct jury on law governing the insanity defense was error, where victim and members of
her family testified that defendant became increasingly abnormal on days preceding shooting of victim and
her siblings and that victim and her family members sought psychiatric help for defendant.
OPINION
Per Curiam:
Appellant Angel Rubin Aldana appeals from a judgment of conviction of three counts of
attempted murder with the use of a deadly weapon. We are persuaded that the district court
erred in refusing to instruct the jury on the law governing Aldana's theory of defense.
Accordingly, we reverse Aldana's judgment of conviction and remand the case to the district
court for a new trial.
THE FACTS
Aldana was arrested and charged with three counts of attempted murder with the use of a
deadly weapon. Aldana pleaded not guilty by reason of insanity.
Uncontroverted evidence introduced at trial established that at midnight on March 16,
1984, Aldana shot and injured Pilar Aldana, his ex-wife, and two of her siblings at her Las
Vegas apartment.
Although Aldana called no witnesses to testify on his behalf, Pilar and members of her
family were called by the state and testified extensively about his behavior. They testified that
Aldana became increasingly abnormal on the days preceding the shooting. He did not go to
work, was extremely nervous, and sat on the floor shaking for extended periods of time. He
was convinced that Pilar had taken a lover and that Pilar, her lover, and her family, were
poisoning his food. Aldana became so abnormal that, several days before the shooting, Pilar
scheduled an appointment for him to be examined by a counselor. Pilar's brother-in-law took
Aldana to the Southern Nevada Memorial Hospital Mental Health Services Department for
treatment twice on the day of the shooting. Although Pilar testified that she believed Aldana
knew right from wrong at the time of the shooting, she characterized him as crazy at that
time.
At the close of evidence, Aldana's counsel requested that the district court instruct the jury
on the law governing the insanity defense. The district court refused, stating that, as a matter
of law, the evidence did not support an insanity defense.
THE LAW
[Headnotes 1, 2]
Aldana argues that the district court erred in refusing to instruct the jury on the law
governing the insanity defense. We agree. We have repeatedly stated that [a] defendant in a
criminal case is entitled, upon request, to a jury instruction on his theory of the case so long
as there is some evidence, no matter how weak or incredible, to support it. Roberts v. State,
102 Nev. 170, 717 P.2d 1115 (1986). Consequently, unless [n]o witness testified to any fact
tending to show insanity of the defendant on the day of the homicide, and no opinion was
expressed by any witness to that effect, State v. Hartley, 22 Nev. 342 (1895), a criminal
defendant is entitled, upon request, to jury instructions on the law governing the insanity
defense. Johnson v. State, 693 P.2d 1 (Okla.Cr. 1984). A criminal defendant need not
introduce expert medical testimony regarding his sanity in order to be entitled to jury
instructions on the law governing the insanity defense.
Criswell v. State, 84 Nev. 459, 443 P.2d 552 (1968); State v. Butner, 67 Nev. 436, 220 P.2d
631 (1950). It is within the province of the jury to weigh the evidence . . . and determine
whether appellant knew the nature and quality of [his] acts, had the capacity to determine
right from wrong or knew whether [he] was doing wrong when [he] committed the crime.
Clark v. State, 95 Nev. 24, 27, 588 P.2d 1027 (1979). In order to be entitled to jury
instructions on the law governing the insanity defense, the defendant need only introduce
some evidence tending to show he was insane when he committed the crime. State v. Hartley,
supra; Johnson v. State, supra. Evidence introduced at trial supported the insanity defense:
Pilar and members of her family testified that Aldana became increasingly abnormal on the
days preceding the shooting; so abnormal, in fact, that they sought psychiatric help for him.
Aldana requested that the district court instruct the jury on the law governing the insanity
defense. The district court, therefore, erred in refusing to instruct the jury on the law
governing the insanity defense. Our disposition of this issue renders it unnecessary to address
Aldana's remaining assignments of error.
DISPOSITION
We reverse Aldana's judgment of conviction and remand the case to the district court for a
new trial.
____________
102 Nev. 247, 247 (1986) Natchez v. State
JEFFREY C. NATCHEZ, O.D., Appellant, v. THE STATE OF NEVADA
and NEVADA STATE BOARD OF OPTOMETRY, Respondents.
No. 15803
June 26, 1986 721 P.2d 361
Appeal from judgement of the district court affirming the decision of the State Board of
Optometry suspending appellant's license to practice optometry. First Judicial District Court,
Carson City, Michael R. Griffin, Judge.
Optometrist filed petition for review of decision of State Board of Optometry suspending
his license to practice. The district court affirmed, and optometrist appealed. The Supreme
Court held that: (1) Ophthalmologist was within definition of person not licensed to practice
optometry and not an optometrist for purpose of statute which prohibits optometrists from
accepting employment from person not licensed to practice optometry and which prohibits
division of fees by optometrists with person who is not an optometrist, and {2) optometrist
was not deprived of his due process right to fair and impartial tribunal.
is not an optometrist, and (2) optometrist was not deprived of his due process right to fair and
impartial tribunal.
Affirmed.
Walther, Key, Maupin, Oats, Cox, Lee & Klaich, and Monique Laxalt Urza, Reno,
Attorneys for Appellant.
Brian McKay, Attorney General, and Gregory Giordano, Deputy, Carson City, Attorneys
for Respondent The State of Nevada.
Bible, Santini, Hoy & Miller, Reno, Attorneys for Respondent State Board of Optometry.
Ophthalmologist was within definition of a person not licensed to practice optometry and not an
optometrist for purpose of statute which prohibits optometrists from accepting employment from person
not licensed to practice optometry and which prohibits division of fees by an optometrist with person who
is not an optometrist. NRS 636.300, subds. 2, 5.
Assignment of error was untimely where the issue was raised for first time on appeal; nonetheless,
Supreme Court would consider merits of the claim, since it raised issue of constitutional dimension.
Neither fact that three of four members of State Board of Optometry were members of optometry
profession, nor fact that secretary of Board participated in drafting of complaint against optometrist and
then engaged in limited questioning at his hearing, deprived the optometrist of his due process right to fair
and impartial tribunal; Board was not shown to have pecuniary interest in the case, and secretary
voluntarily disqualified himself from deciding the case and abstained from voting. NRS 636.010 et seq.;
OPINION
Per Curiam:
This appeal challenges the district court's ruling affirming the Nevada State Board of
Optometry's decision and interpretation of NRS 636.300(2) and (5) which prohibits the
employment of an optometrist by an ophthalmologist. We affirm the decision of the district
court.
THE FACTS
Appellant Jeffrey C. Natchez is an optometrist licensed by the Nevada State Board of
Optometry (Board). Jack E. Talsma is a licensed physician in Nevada. By virtue of his status
as a physician, Talsma is also an ophthalmologist.1 Talsma is not licensed by the Nevada
State Board of Optometry.
cian, Talsma is also an ophthalmologist.
1
Talsma is not licensed by the Nevada State Board
of Optometry.
Natchez practices optometry under the name of Carson Vision Clinic in Carson City,
Nevada. Natchez is a salaried employee of Talsma. Local optometrists filed a complaint
against Natchez. The optometrists alleged that Natchez's employment by an ophthalmologist
violated NRS 636.300(2) and (5).
NRS ch. 636 sets forth the statutory provisions regulating the optometry profession in
Nevada. NRS 636.200(2) and (5) bar employment by a person not licensed to practice
optometry in this state and the division of fees with any person not an optometrist as
unethical or unprofessional acts and subject an optometrist to the suspension or revocation of
his license under NRS 636.295(9).
2

The Board held that Natchez violated NRS 636.300(2) and (5) by virtue of his
employment relationship and compensation and fee arrangement with Talsma. It also held
that Natchez's practice of optometry under the name of Carson Vision Clinic violated NRS
636.350. The Board ordered that based upon the finding of unethical or unprofessional
conduct, Natchez's license to practice optometry be suspended for three months.
____________________

1
An ophthalmologist is a duly licensed physician who specializes in the care of eyes. Annot., 88 A.L.R.2d
1290, 1292 (1963). An optometrist examines eyes for refractive error, recognizes (but does not treat) diseases of
the eye, and fills prescriptions for eyeglasses. Id. The professions, while complementary, are distinct.

2
Any of the following acts by a licensee constitutes unethical or unprofessional conduct:
. . . .
(2) Accepting employment, directly or indirectly, from a person not licensed to practice optometry in
this state for the purpose of assisting him in such practice or enabling him to engage therein.
. . . .
(5) Division of fees or any understanding or arrangement with any person not an optometrist.
The following acts, conduct, omissions, or mental or physical conditions, or any of them, committed,
engaged in, omitted, or being suffered by a licensee, shall constitute sufficient cause for revoking or
suspending the license:
. . . .
(9) Perpetration by the licensee of unethical or unprofessional conduct in the practice of optometry,
within the provisions of NRS 636.300.
We note that while these provisions were amended in 1985 the substantive effect of these statutory
provisions remains unchanged.
optometry be suspended for three months. It stayed the suspension and placed Natchez on
probation to allow Natchez time to comply with NRS ch. 636.
Natchez filed a petition for judicial review. The district court issued a judgment affirming
the Board's interpretation of NRS 636.300(2) and (5) and rejecting Natchez's assignments of
error. Natchez appeals this judgment.
NRS 636.300(2) and (5)
We first consider Natchez's contention that the legislature did not intend NRS 636.300(2)
and (5) to bar an optometrist from being employed by an ophthalmologist or to ban the
division of fees between optometrists and ophthalmologists.
[Headnote 1]
NRS 636.390 specifically exempts physicians and surgeons from the regulatory provisions
of NRS ch. 636.
3
NRS ch. 636 creates a distinction between optometrists and
ophthalmologists for regulatory purposes: ophthalmologists are regulated by the Board of
Medical Examiners and optometrists are regulated by the Board of Optometry. NRS
636.300(2) prohibits optometrists from accepting employment from a person not licensed
under NRS ch. 636 to practice optometry. NRS 636.300(5) prohibits the division of fees by
an optometrist with a person who is not an optometrist. NRS 636.390 provides that an
ophthalmologist is not bound by the regulations governing optometrists under NRS ch. 636.
The plain language of the statutory provisions demonstrates that the legislature intended to
include an ophthalmologist within the definition of a person not licensed to practice
optometry and not an optometrist for purposes of NRS 636.300(2) and (5), and all other
provisions of NRS ch. 636. Accordingly, the legislature intended to prohibit an optometrist
from being employed by an ophthalmologist.
A review of the legislative history of NRS ch. 636 after the commencement of this action
confirms this interpretation of legislative intent. Subsequent to and in direct response to the
district court's decision in the case at bar, a bill was introduced into the 1985 legislative
session to amend NRS ch. 636 to permit the employment of optometrists by
ophthalmologists. Prior to the bill's enactment, the legislature deleted this provision. Thus,
when presented with an amendment of NRS ch. 636 permitting this type of business practice,
the legislature rejected it. Where a former statute is amended or a doubtful interpretation of a
former statute is rendered certain by subsequent legislation, it has been held such
amendment is persuasive evidence of the legislature's intention in the first statute.
____________________

3
This chapter shall not be construed to apply to physicians and surgeons duly licensed to practice in
this state.
statute is rendered certain by subsequent legislation, it has been held such amendment is
persuasive evidence of the legislature's intention in the first statute. Hughes Properties v.
State of Nevada, 100 Nev. 295, 680 P.2d 970 (1984).
We conclude that the legislature intended to prohibit the employment of optometrists by
ophthalmologists. Accordingly, we conclude that Natchez's arguments lack merit.
THE RIGHT TO AN IMPARTIAL TRIBUNAL
We next turn to Natchez's contention that he was deprived of his due process right to a fair
and impartial tribunal. Natchez argues that the composition of the Board (composed of four
members: one public member and three members of the optometry profession) created the
potential for and appearance of bias. Moreover, Natchez complains that the secretary of the
Board participated in the drafting of the complaint against him and then engaged in limited
questioning at his hearing.
Natchez claims that the employment relation between ophthalmologists and optometrists
presented a threat to the competitive advantage of each of the optometrist-Board members
who were sole practitioners. Natchez suggests that it was in their economic and competitive
advantage to prohibit this type of an employment relation. Natchez argues that as in Gibson v.
Berryhill, 411 U.S. 564 (1973), the Board had a substantial pecuniary interest in the
proceedings and, hence, he was deprived of his right to a fair and impartial hearing. Natchez
does not allege any facts that would constitute actual bias by a Board member, i.e., that any
particular Board member had a personal, economic interest in prohibiting the employment of
optometrists by ophthalmologists.
[Headnote 2]
As a threshold matter, we note that Natchez raised this issue for the first time on appeal.
Thus, Natchez's assignment of error is untimely. See, United States v. Tucker Truck Lines,
344 U.S. 33 (1952). Nonetheless, as the issue raised by Natchez is of constitutional
dimension, we will consider the merits of his claim. See, McCullough v. State, 99 Nev. 72,
657 P.2d 1157 (1983).
Mere membership in a professional organization which has responsibility for prosecution,
under peer disciplinary procedures, does not indicate a disqualifying bias or interest on the
part of a judge or other adjudicator sufficient to violate due process. See Burleigh v. State Bar
of Nevada, 98 Nev. 140, 643 P.2d 1201 (1982); Kachian v. Optometry Examining Board, 170
N.W.2d 743, 748 (WI 1969). In Gibson v. Berryhill, 411 U.S. 564 (1973), the United States
Supreme Court found that the members of the Board of Optometry in Alabama had a
substantial pecuniary interest in the proceedings, and, hence, bias, and deprived the
petitioners of their right to a fair and impartial hearing.
niary interest in the proceedings, and, hence, bias, and deprived the petitioners of their right to
a fair and impartial hearing. In Gibson, the Board sought to revoke the licenses of all
optometrists employed by certain business corporations. Id. This would have meant revoking
the licenses of nearly half the optometrists practicing in Alabama. Id. The court found that the
Board's pecuniary interest in revoking all of these licenses had sufficient substance to warrant
disqualification. The case at bar is distinguishable from Gibson.
[Headnote 3]
In the instant case, Natchez failed to set forth any facts to establish his allegation that a
rivalry existed between sole practitioners, optometrists, and optometrists employed by
ophthalmologists. The Board did not prohibit Natchez from practicing optometry. Thus, the
Board would not incur any economic gain by prohibiting this type of business practice, as
Natchez was free to retain his existing clientele after he ceased his employment with Talsma.
As the court stated in Kachian v. Optometry Examining Board, 170 N.W.2d 743 (Wis.
1969):
If the indirect interest deriving from membership in the profession or occupation being
regulated disqualifies an individual from serving on a regulatory board, the result would
be dentists could not examine dentists, attorneys could not serve on bar examiner
boards, pharmacists could not give pharmacy examinations. Would it be preferable, or
even workable, to have the dentists giving bar examinations and optometrists giving
pharmacy tests? The gain in presumed purity would be matched by a loss in knowledge
and experience in drafting and administering professional and occupational rules and
regulations.
Finally, the fact that the secretary of the Board participated in the filing of the complaint
and then asked Natchez limited questions during the hearing did not violate Natchez's due
process rights. The secretary of the Board voluntarily disqualified himself from deciding the
case and abstained from voting. Substantial evidence supports the district court's decision that
there was no evidence presented to indicate that the secretary of the Board participated in or
influenced the Board's deliberations in any way. Ivory Ranch v. Quinn River Ranch, 101 Nev.
471, 705 P.2d 673 (1985).
We conclude that in the case at bar the Board did not have a pecuniary interest nor a
disqualifying bias in the proceedings. Natchez's due process right to a fair and impartial
tribunal was not violated. See Burleigh v. State Bar of Nevada, 98 Nev. 140, 643 P.2d 1201
{19S2); Contra In Re Ross, 99 Nev. 1
643 P.2d 1201 (1982); Contra In Re Ross, 99 Nev. 1, 656 P.2d 832 (1983); Gibson v.
Berryhill, 411 U.S. 564 (1973).
We have reviewed appellant's remaining contentions and conclude that they are meritless.
Accordingly, we affirm the district court's decision in all respects.
____________
102 Nev. 253, 253 (1986) Cox v. State
JAMES RICHARD COX, aka JOHN KING, Appellant.
No. 16432
June 26, 1986 721 P.2d 358
Appeal from judgment of conviction for one count of attempted sexual assault; Eighth
Judicial District Court, Clark County; J. Charles Thompson, Judge.
Defendant was convicted in the district court of attempted sexual assault, and he appealed.
The Supreme Court held that: (1) trial court improperly excluded evidence that alleged victim
had applied for escort license shortly after incident giving rise to prosecution, and (2)
prosecutor improperly made statement of personal opinion regarding guilt during closing
argument.
Morgan D. Harris, Public Defender, and Gary H. Lieberman, Deputy Public Defender,
Las Vegas, for Appellant.
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Defendant's failure to make a pretrial motion under NRS 48.069 did not require exclusion of evidence
that complainant applied for an escort license shortly before incident giving rise to prosecution for
attempted sexual assault, where defendant was not attempting to use evidence to prove consent, since he
steadfastly maintained that offense never occurred.
2. Criminal Law.
Confrontation clause of the United States Constitution guarantees criminal defendant right to confront his
accusers and opportunity to demonstrate existence of possible bias or prejudice of witness in support of
defendant's theory of case, including right to introduce evidence challenging victim's credibility, in order to
dispel inference which jury might otherwise draw from circumstances. U.S.C.A.Const. Amends. 6, 14.
102 Nev. 253, 254 (1986) Cox v. State
3. Assault and Battery.
Evidence that alleged attempted sexual assault victim had applied for escort license shortly after incident
giving rise to prosecution was relevant to defendant's theory of defense, that victim invented allegations of
assault after defendant refused to give her money, and was therefore improperly excluded, where evidence
was admitted that victim was born-again Christian and former secretary at local high school, making it
possible that jury found defendant's version of incident unbelievable in light of impression of victim's
character. NRS 48.035; U.S.C.A.Const. Amends. 6, 14.
4. Criminal Law.
Prosecutor's comment during closing argument that she guaranteed that she thought jury should find
defendant guilty of attempted sexual assault constituted statement of personal opinion by prosecutor
regarding guilt, and was therefore clearly improper.
5. Criminal Law.
Trial court's erroneous refusal to admit evidence of alleged victim's application for license as escort and
misconduct by prosecutor, in prosecution for attempted sexual assault, required that defendant's conviction
be reversed and that new trial be held, given cumulative nature of error and fact that evidence of
defendant's guilt was not overwhelming.
OPINION
Per Curiam:
Following a jury trial, appellant James Cox was convicted of one count of attempted
sexual assault. On appeal he raises two assignments of error: (1) the district court erred by
excluding evidence that the complainant applied for a license as an escort shortly after the
alleged incident occurred; and (2) the prosecutor improperly expressed to the jury her
personal opinion of appellant's guilt. We agree with both of these contentions and hold that
reversal is warranted.
The complainant's version of the incident differs markedly from Cox's. According to the
complainant, she went to Cox's apartment to borrow money from Mrs. Cox. Upon entering
the apartment, she discovered that Mrs. Cox was not home, and waited a few minutes for her
return. The complainant testified that as she attempted to leave, Cox grabbed her, and a thirty
minute struggle ensued. During the struggle, Cox unzipped his pants and partially undressed
her. Eventually a teenager (Daniel Di Gennaro) and a neighbor (Dale Landreth) responded to
her screams and forced open the door, allowing her to flee the apartment.
Di Gennaro testified that he heard screams, went to the apartment and saw a woman
holding on to the bottom of the door. He ran outside the complex and asked someone to call
the police. Then he returned to the apartment and saw Landreth trying to force open the door.
He saw the complainant lying on the floor with Cox sitting on top of her and trying to pull
her away from the door.
102 Nev. 253, 255 (1986) Cox v. State
with Cox sitting on top of her and trying to pull her away from the door. When she ran out of
the apartment, he noticed that her pants and shirt were open.
Landreth testified that he heard screams coming from Cox's apartment. He saw a black
woman lying inside the apartment with her hands on the bottom of the door, trying to pull it
open. He tried to push the door open but could not, due to a force on the inside. Shortly after
Di Gennaro arrived, the force subsided and the door opened. The complainant's blouse was
raised, and Landreth could not tell if she was wearing anything under her blouse. Due to poor
eyesight, Landreth cannot see at all beyond three to five feet.
One of the police officers who responded testified that the complainant's fingers were
swollen, and that there were marks on her neck which appeared to be caused by fingernails or
a tight grip of the hand. Another neighbor, William Butler, testified that he saw no scratches
or bruises on the complainant a few minutes after the incident. He also testified that the
complainant whispered to him, Tell Brenda [Mrs. Cox] I didn't mean this to happen. Three
witnesses stated their opinion that the complainant was an untruthful person.
Cox's defense was that the complainant invented her allegations of assault after he refused
to give her money. He testified that she first asked to borrow money; when he refused, she put
her hand on his leg and said, for ten or twenty dollars I'll do you right or make it right for
you.
1
According to Cox, he told her to leave, and when she continued to make such
statements he tried to push her out of the apartment. She chained the door, and they struggled
for four to five minutes, with him attempting to open the door.
2
When she saw the teenager
in the hall, she screamed, Rape . . . help me. . . .
Undisputed evidence at trial established that the complainant demanded and received
$450.00 from Mrs. Cox as an inducement to drop the charges against her husband.
3
However, because Mrs. Cox refused to pay additional sums demanded by the complainant,
the case was pursued.
[Headnote 1]
At his trial, Cox attempted to introduce evidence that the complainant had applied for an
escort license shortly after the incident.
____________________

1
The complainant was aware that Cox had been unable to achieve an erection since he was involved in an
automobile accident approximately one year prior to the incident. The State did not refute the evidence of Cox's
impotence.

2
The automobile accident left Cox partially disabled. Eight witnesses, including a physician and five women,
testified that he could be easily pushed aside. There was testimony that Cox would be unable to engage in a
struggle such as that described by the complainant.
102 Nev. 253, 256 (1986) Cox v. State
incident. The court ruled that this evidence was inadmissible, concluding that Cox's failure to
make a pretrial motion under NRS 48.069 barred the introduction of the evidence.
4
On
appeal, Cox contends that the district court erred by excluding the evidence. We agree.
Specifically, we note that NRS 48.069 only applies to cases in which evidence of prior sexual
conduct is offered to prove that a victim of a sexual assault consented to the assault. In this
case, Cox was not attempting to use this evidence to prove consent, since he steadfastly
maintained that the offense never occurred. NRS 48.069 was therefore inapplicable.
The lower court also concluded that the evidence was more prejudicial than probative.
The State contends that this ruling justifies exclusion of the evidence under NRS 48.035
because it does not necessarily follow that an applicant for an escort license will be more
likely to solicit prostitution.
5
However, the trial court's conclusion in this regard fails to
consider Cox's rights under the confrontation clause.
[Headnote 2]
The confrontation clause of the Sixth and Fourteenth Amendments to the United States
Constitution guarantees a criminal defendant the right to confront his accusers and the
opportunity to demonstrate the existence of a possible bias or prejudice of a witness in
support of the defendant's theory of the case. Davis v. Alaska, 415 U.S. 308, 317-18 (1974).
This also includes a right to introduce evidence challenging the victim's credibility, in order
to dispel an inference which the jury might otherwise draw from the circumstances. Summitt
v. State, 101 Nev. 159, 697 P.2d 1374 (1985).
____________________

3
Apparently, this was pursuant to negotiations made on behalf of the complainant by the district attorney's
office. We find this conduct by the district attorney somewhat questionable.

4
Previous sexual conduct of victim of sexual assault: Procedure for admission of evidence to prove
victim's consent. In any prosecution for sexual assault or for assault with intent to commit, attempt to
commit or conspiracy to commit a sexual assault, if the accused desires to present evidence of any
previous sexual conduct of the victim of the crime to prove the victim's consent.
1. The accused shall first submit to the court a written offer of proof, accompanied by a sworn
statement of the specific facts that he expects to prove and pointing out the relevance of the facts to the
issue of the victim's consent.

5
(1) Although relevant, evidence is not admissible if its probative value is substantially outweighed
by the danger of unfair prejudice, of confusion of the issues or of misleading the jury.
102 Nev. 253, 257 (1986) Cox v. State
[Headnote 3]
In this case, the jury heard evidence that the complainant was a born-again Christian and a
former secretary at a local high school. It is possible that the jury found Cox's version of the
incident unbelievable in light of this impression of the complainant's character. It is also
possible that the jury might have been more inclined to believe Cox's allegations that the
complainant offered him sex for money, and invented her allegations of assault to extort
money, if the jury knew she was willing to work as an escort. The evidence was therefore
relevant to appellant's theory of the defense and was therefore improperly excluded.
[Headnote 4]
Cox's second claim of error relates to the prosecutor's comment during closing argument,
that I guarantee you . . . that I think you should find him guilty of attempted sexual assault.
This constitutes a statement of personal opinion by the prosecutor regarding guilt, and was
therefore clearly improper. See, e.g., McGuire v. State, 100 Nev. 153, 159, 677 P.2d 1060,
1064 (1984); Owens v. State 96 Nev. 880, 885, 620 P.2d 1236, 1239-40 (1980); Ellison v.
State, 87 Nev. 4, 479 P.2d 461 (1971). It should be noted that we have previously
admonished this same prosecutor concerning her interjection of her personal opinion of a
defendant's guilt. We are not inclined to excuse such improper remarks when they cause
multiple appeals to reach this court. See generally McGuire v. State, 100 Nev. at 160, 677
P.2d at 1065.
[Headnote 5]
Based on the foregoing analysis, we conclude that the district court erred by refusing to
admit evidence of the complainant's application for a license as an escort, and that the
prosecutor committed misconduct. Because of the cumulative nature of this error and because
we do not believe the evidence of appellant's guilt was overwhelming, reversal is warranted.
Accordingly, we reverse the judgment of conviction and remand for a new trial consistent
with the dictates of this opinion.
______________
102 Nev. 258, 258 (1986) Bergendahl v. Davis
ALAN BERGENDAHL, KINGS INN CASINO, LTD., a Nevada Corporation, G.M.F.C. OF
NEVADA, INC., B.C.I. OF NEVADA, INC., SOVEREIGN ENTERPRISES, INC., a
General Partner, JAMES MALLEN, as a Trustee of Alan Bergendahl and His Various
Corporate and Business Entities, MATTHEW CHOTAS, OTIS K. SCOGGIN,
JOSEPH FISCHER, Appellants, v. MARSHALL P. DAVIS, Respondent.
No. 16510
June 26, 1986 720 P.2d 694
Appeal from a judgment. Second Judicial District Court, Washoe County; Charles M.
McGee, Judge.
Following a seven year delay between end of bench trial and entry of judgment, the district
court denied post-trial motions for new trial, and defendants appealed. The Supreme Court
held that delay of seven years between end of trial and entry of judgment and unavailability of
transcript of trial effectively deprived defendants of right to appeal in violation of due
process, in that record on appeal precluded Supreme Court from deciding the complex factual
and legal disputes involved in the appeal.
Vargas & Bartlett; Bowen, Swafford, Hoffman & Test; Woodburn, Wedge, Blakey &
Jeppson; O'Mara & Kosinski, Reno, for Appellants.
Robison, Lyle, Belaustegui & Robb, Reno; Robert E. Rose, Las Vegas, for Respondent.
Delay of seven years between end of trial and entry of judgment and unavailability of transcript of trial
effectively deprived appellants of right to appeal in violation of due process, in that record on appeal
precluded Supreme Court from deciding the complex factual and legal disputes involved in the appeal.
U.S.C.A.Const. Amend 14.
Delay between end of trial and entry of judgment, in and of itself, is not necessarily grounds for reversal
of judgment.
Lack of transcript, without more, is not sufficient justification for reversal of a judgment.
When delay between end of trial and entry of judgment results in severe prejudice to right to appeal of
one of the parties, the wrong can best be remedied by ordering a new trial.
When transcript necessary to proper disposition of appeal is unavailable through no fault of appellants,
new trial may be only remedy that will serve the ends of justice.
OPINION
Per Curiam:
This is an appeal from a judgment, following a bench trial, against all appellants jointly
and severally in the amount of $310,000. Because we conclude that an inordinate delay
between the trial and the district court's judgment effectively deprived appellants of their right
to an appeal, we reverse and remand this matter for a new trial.
Respondent Davis sued appellants Chotas, Scoggin and Fischer for breach of a limited
partnership agreement, breach of fiduciary duty, and conversion of a partnership asset. In the
same action, Davis sued appellant Bergendahl and his various corporate entities for
intentionally inducing Chotas, Scoggin and Fischer to breach their limited partnership
agreement with Davis and for conversion of a partnership asset. Bergendahl and his various
corporate entities cross-claimed against Chotas, Scoggin and Fischer.
Following a seven day bench trial,
1
Judge John W. Barrett took the case under
advisement in January of 1978. On December 20, 1984, almost seven years after trial, Judge
Barrett issued a judgment against all of the appellants and denied Bergendahl's cross-claim.
On February 8, 1985, Judge Charles M. McGee replaced Judge Barrett on the bench.
Subsequently, appellants filed various post-trial motions with Judge McGee requesting a new
trial on the ground that the court reporter's notes had been destroyed during the seven year
interval between trial and judgment.
2
Judge McGee denied the motions, and this appeal
followed.
[Headnote 1]
Although we granted appellants several extensions of time to produce the record on
appeal, appellants have not been able to piece together an adequate record from the
documents filed in the district court, the memories of the parties, and other available
sources.
____________________

1
The district court's findings of fact indicate that the trial lasted only five days. However, the appellants'
statements of the evidence indicate that the trial was seven days long. Davis did not contradict these assertions.

2
Pursuant to an informal policy among court reporters in Washoe County, trial notes apparently are
destroyed five years after trial. In this case, one day's worth of trial notes were not destroyed. However, the
remaining six days worth of trial notes were destroyed.
piece together an adequate record from the documents filed in the district court, the memories
of the parties, and other available sources. Appellants contend that the seven year delay and
the unavailability of a transcript have effectively deprived them of the right to an appeal in
violation of due process of law. We agree.
We cannot understand, nor can we condone, the seven year delay between the trial and the
decision of this case. We express our dismay and our displeasure that such a delay could
occur in the courts of this state.
[Headnotes 2-5]
We recognize that delay, in an of itself, is not necessarily grounds for reversal of a district
court's judgment. See Anderson v. Richards, 96 Nev. 318, 608 P.2d 1096 (1980); Exton
Drive-In, Inc. v. Home Indemnity Co., 261 A.2d 319, 323 (Pa.), cert. denied, 400 U.S. 819
(1970). Nor is the lack of a transcript, without more, sufficient justification for a reversal. See
Shute v. Big Meadow Inv. Co., 45 Nev. 99, 198 P.227 (1921). However, when delay results
in severe prejudice to the right to an appeal of one of the parties, as it has in this case, the
wrong can best be remedied by ordering a new trial. Further, when a transcript necessary to
the proper disposition of an appeal is unavailable through no fault of the appellants, a new
trial may be the only remedy that will serve the ends of justice. See Feldman v. Katz, 325
P.2d 597 (Cal.Dist.Ct.App. 1958) (where court reporter died and stenographic notes could not
be transcribed, trial court abused its discretion by denying motion for new trial); Brooks v.
National Shawmut Bank of Boston, 84 N.E.2d 318 (Mass. 1949) (stenographer's death
entitled appellant to new trial); Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d
312 (Tex.Civ.App. 1975) (where no record was kept of the evidence presented at a default
proceeding, appellant was entitled to new trial because of lack of a transcript); Reliance
National Life Insurance Company v. Caine, 439 P.2d 283 (Utah 1968) (where piecemeal trial
resulted in the lack of an adequate transcript, a new trial was ordered).
On the record presently before us, we cannot decide the complex factual and legal disputes
involved in this appeal. Accordingly, we reverse the judgment of the district court, and we
remand this case for further proceedings.
____________
102 Nev. 261, 261 (1986) Wright v. Las Vegas Hacienda
ISABELL WRIGHT, Appellant, v. LAS VEGAS HACIENDA, INC., a
Nevada Corporation, Respondent.
No. 13755
June 26, 1986 720 P.2d 696
Appeal from a final judgment and from an order denying a motion for a new trial, Eighth
Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Plaintiff who injured her ankle when she tripped and fell on stairway brought personal
injury action. The district court entered judgment on jury verdict for defendant and plaintiff
appealed. The Supreme Court held that exclusion of plaintiff's expert's testimony concerning
cause of accident was abuse of discretion.
Richard A. Avila, Las Vegas, for Appellant.
Fitzgibbons & Beatty, Las Vegas, for Respondent.
1. Evidence.
Exclusion, in personal injury action, of testimony of purported expert in field of human factors
engineering, on grounds of lack of academic credentials and lack of license to practice psychology or
engineering was abuse of discretion; witness in fact had appropriate credentials and was not required to be
licensed to practice in given field in order to be qualified to testify as expert. NRS 50.275.
2. Trial.
Exclusion of personal injury plaintiff's expert's testimony was abuse of discretion; fact that defendant's
corresponding expert testified as to cause of accident did not render plaintiff's expert's testimony
cumulative.
OPINION
Per Curiam:
This is an appeal from a judgment pursuant to a jury verdict in a personal injury action,
and from an order of the district court denying appellant's motion for a new trial. Because we
conclude that the district court abused its discretion in excluding the testimony of appellant's
expert at trial, we reverse.
Appellant injured her ankle when she tripped and fell on respondent's stairway. The stair
on which appellant tripped was the last stair before the first landing of the stairway. It had a
metal strip across its tip that was raised about one-eighth of an inch. None of the other stairs
had a metal strip.
During the course of the trial, appellant attempted to call Dr. Charles Rasmussen,
Chairman of the Department of Psychology at the University of Nevada at Las Vegas, as an
expert in the field of human factors engineering. Dr. Rasmussen would have testified that the
metal strip on the final stair created a dangerous condition which may have caused appellant's
fall because of the psychological effects of variations in the height and materials of the
stairway. The district court excluded the testimony.
At trial, the sole reason given by the district court for the exclusion of Dr. Rasmussen's
testimony was that Dr. Rasmussen was unqualified to testify in the field of human factors
engineering because he did not possess the requisite academic credentials. In response to
appellant's motion for a new trial, the district court added that Dr. Rasmussen was not
licensed as a psychologist or as an engineer. The district court concluded that Dr. Rasmussen
was therefore unqualified to testify, because Dr. Rasmussen would thereby engage in the
unlicensed practice of psychology or engineering. See NRS 641.025; NRS 625.050. The court
also concluded that Dr. Rasmussen's testimony would have been cumulative because
respondent's expert had testified concerning the psychological factors of descending stairs
where there is a variation in the height and material. Appellant contends that the district
court's refusal to allow Dr. Rasmussen to testify as an expert in the field of human factors
engineering was error. We agree.
The admission of expert testimony is a matter generally left to the discretion of the district
court. See Provence v. Cunningham, 95 Nev. 4, 7, 588 P.2d 1020, 1021 (1979). However, this
court will not hesitate to intervene if that discretion is manifestly abused. Id.
[Headnote 1]
The record reveals that Dr. Rasmussen was the Chairman of the Department of Psychology
at the University of Nevada at Las Vegas, and had been with the department for nine years.
Dr. Rasmussen's academic background included a bachelor's degree in psychology, and a
Ph.D. in psychology with an emphasis on experimental psychology. His doctorate minor was
in systems engineering with an emphasis on human factors engineering. Dr. Rasmussen's
doctoral studies focused on physiological psychology, which involves the relationship
between the brain and the behavioral processes, and Dr. Rasmussen had taken several courses
in human factors engineering designs. Finally, Dr. Rasmussen had previously taught a course
in human factors engineering at the University of Nevada at Las Vegas. Clearly, Dr.
Rasmussen was academically qualified to testify as an expert in the field of human factors
engineering.
The district court's alternative grounds for excluding Dr. Rasmussen's testimony are
equally unsupportable. A witness need not be licensed to practice in a given field in order to
be qualified to testify as an expert. NRS 50.275 provides that a person with special
knowledge, skill, experience, training or education may testify [as an expert] to matters
within the scope of such knowledge.
1
This statute does not require an expert to be licensed.
As noted, Dr. Rasmussen possessed special knowledge, training and education that would
have enabled him to testify as an expert in the field of human factors engineering. Further,
contrary to the district court's conclusion, a person does not unlawfully engage in the
unlicensed practice of psychology or engineering when he testifies to his knowledge of the
subject in a court of law.
[Headnote 2]
Finally, the district court's conclusion that Dr. Rasmussen's testimony would have been
cumulative cannot be upheld. The fact that respondent's expert was allowed to testify does not
render the testimony of appellant's expert unnecessary. On the contrary, it exacerbates the
prejudice to appellant, because the only expert allowed to testify opined that the step did not
cause appellant's accident. In light of this, appellant was clearly entitled to present her expert's
testimony to the jury.
Accordingly, we reverse the judgment of the district court and we remand this case for a
new trial.
2

____________________

1
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill,
experience, training or education may testify to matters within the scope of such knowledge.

2
In light of this disposition, we need not consider appellant's contention that jury misconduct deprived her of
a fair trial.
____________
102 Nev. 263, 263 (1986) Smith v. Smith
MARVIN STEPHEN SMITH, Appellant, v. DANIELLE R. SMITH, Respondent.
No. 16940
June 26, 1986 720 P.2d 1219
Appeal from order terminating parental rights. Sixth Judicial District Court, Humboldt
County; Jerry V. Sullivan, Judge.
Custodial mother petitioned for termination of noncustodial father's parental rights,
alleging abandonment and nonsupport. The district court terminated father's parental rights
and father appealed.
102 Nev. 263, 264 (1986) Smith v. Smith
appealed. The Supreme Court held that: (1) facts indicated that father lacked intent to
abandon child necessary for finding of abandonment justifying termination of parental rights;
(2) post-divorce termination of parental rights was not justified by father's arrearages in
support obligations; and (3) postdivorce termination of rights of noncustodial father on
ground of neglect was not justified.
Reversed.
Jack T. Bullock, II, Winnemucca, for Appellant.
Callahan and Maher, Winnemucca, for Respondent.
1. Infants.
Severance of parental rights is an exercise of awesome power, a power which the Supreme Court
questions closely.
Fundamental liberty interest of natural parents in care, custody, and management of their child does not
evaporate simply because they have not been model parents.
3. Infants.
Intent, which may be shown by facts and circumstances, is decisive factor in determining whether parent
has abandoned child so that termination of parental rights is justified. NRS 128.105.
4. Infants.
Noncustodial father had not abandoned child so as to justify postdivorce termination of father's parental
rights on custodial mother's motion, where father had visited Nevada in 1984 and spent five days with child
after moving to Arkansas in 1982, father telephoned mother to determine what child might need over the
years, father occasionally sent child Christmas and birthday cards and gifts, father called child every two to
six months, and six weeks prior to mother's commencement of proceeding, father called mother to
determine if child needed money for school clothes. NRS 128.105.
5. Infants.
Failure to pay child support is not in and of itself a ground for termination of parental rights. NRS
128.105.
6. Infants.
Postdivorce termination of noncustodial father's parental rights was not justified by fact father was in
arrears with his child support payments, where father had not abandoned child, but had maintained contact
with her. NRS 128.105.
7. Infants.
Neglect sufficient to justify termination of parental rights is not established during time when child is not
in parent's custody and child is known to be receiving proper care. NRS 128.105.
8. Infants.
Postdivorce termination of noncustodial father's parental rights on ground of neglect was not justified,
where child was in mother's custody. NRS 128.105.
102 Nev. 263, 265 (1986) Smith v. Smith
9. Infants.
Custodial mother had not established that postdivorce termination of noncustodial father's parental rights
would be in child's best interest by clear and convincing evidence, where the only evidence adduced at trial
was expert testimony of child psychologist who testified that termination of parental rights would not be in
best interest of the child. NRS 128.105.
OPINION
Per Curiam:
Appellant Marvin Stephen Smith challenges the district court's order terminating his
parental rights. Marvin contends that the district court lacked the requisite jurisdictional and
dispositional grounds to terminate his parental rights. We agree and reverse.
Appellant and respondent Danielle R. Smith were divorced in September, 1978. They had
one child, Erica Jane Smith, who was five months old at the time of the divorce. The court
awarded Danielle the care, custody and control of Erica. The decree gave Marvin limited
visitation rights and ordered him to pay monthly child support payments in the amount of
$100.00. It is undisputed at the time this proceeding commenced that Marvin was in arrears
with his child support payments.
From 1978 to 1981 Marvin exercised his visitation rights, although not to the maximum
extent provided for by the divorce decree. Marvin moved to Arkansas in 1982. Marvin visited
Nevada in 1984 and spent five days with Erica. Over the years, Marvin telephoned Danielle
to determine what Erica might need. Occasionally he sent Erica Christmas and birthday cards
and gifts. Marvin called Erica every two to six months. Six weeks prior to the commencement
of this proceeding, Marvin called Danielle to determine if Erica needed money for school
clothes. During this last telephone conversation, Marvin informed Danielle that he had
remarried and that he had a new family. Soon thereafter Danielle filed the instant petition to
terminate Marvin's parental rights.
In her petition, Danielle alleged abandonment and nonsupport as the grounds for
termination. Danielle did not allege that Marvin was an unfit parent. Nor that Erica had
suffered any emotional or physical abuse due to her relationship with Marvin.
The district court ruled that Marvin had neglected and abandoned Erica and that Erica's
best interest would not be served by continuing the parental tie. The district court ordered
Marvin's parental rights with Erica terminated.
102 Nev. 263, 266 (1986) Smith v. Smith
[Headnotes 1, 2]
Termination of parental rights is an extreme measure. Champagne v. Welfare Division,
100 Nev. 640, 691 P.2d 849 (1984). Severance of parental rights is an exercise of awesome
power, a power which this court questions closely. Id. The fundamental liberty interests of
natural parents in the care, custody, and management of their child does not evaporate simply
because they have not been model parents. Santosky v. Kramer, 455 U.S. 745 (1982).
NRS 128.105 sets forth the statutory grounds for termination of parental rights.
1
In
Champagne v. Welfare Division, 100 Nev. 640, 691 P.2d 849 (1984), this court explicated
these grounds and held that both jurisdictional (specific fault or condition related to the
parents) and dispositional (what is in the best interest of the child) grounds must exist before
a parent's rights can be terminated. We further held that one who institutes termination
proceedings must prove the jurisdictional and dispositional grounds by clear and convincing
evidence. Id.
[Headnotes 3, 4]
We turn first to consider Danielle's allegation of abandonment. We have held that in order
to constitute abandonment the parent's conduct must demonstrate an intent to abandon, a
settled purpose to relinquish all parental rights in the child. Sernaker v. Ehrlich, 86 Nev. 277,
468 P.2d 5 (1970). Intent is the decisive factor. It may be shown by the facts and
circumstances. In Re Barassi, 71 Cal.Rptr. 249 (Cal.App. 1968). Danielle failed to introduce
clear and convincing evidence to demonstrate Marvin's intent to abandon Erica. To the
contrary, the facts of this case demonstrate that Marvin lacked the requisite intent to abandon.
During oral argument, respondent's counsel conceded that this was not a case of
abandonment. The district court erred by so holding.
____________________

1
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, 128.107 and 128.108:
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; or
(d) To eliminate the risk of serious physical, mental or emotional injury to the child; or
6. With respect to termination of the parental rights of one parent, the abandonment by that parent.
102 Nev. 263, 267 (1986) Smith v. Smith
[Headnotes 5, 6]
The other basis for termination alleged by Danielle was Marvin's failure to pay child
support. Failure to pay child support in and of itself is not a ground for termination. See,
Sernaker, 86 Nev. at 280; Barassi, 71 Cal.Rptr. at 254; Blankenship v. Brookshier, 420 P.2d
800 (Idaho 1966). While we do not condone nonpayment of child support, to terminate
Marvin's parental rights under the facts presented would be a severe remedy. Danielle has
alternative remedies to compel Marvin to meet his child support obligations.
[Headnotes 7, 8]
The district court also ruled that Marvin had neglected Erica. During this time, Marvin was
the noncustodial parent pursuant to the divorce decree. Neglect is not established during a
time when the child is not in the parent's custody and when the child is known to be receiving
proper care. See, Champagne, 100 Nev. at 658; Chapman v. Chapman, 96 Nev. 290, 607 P.2d
1141 (1980). The jurisdictional ground of neglect is not supported by the evidence.
[Headnote 9]
We also observe that Danielle failed to introduce clear and convincing evidence that it
would be in Erica's best interest to terminate Marvin's parental rights. The only evidence
adduced at trial was the expert testimony of Dr. Nancy Heckel, a child psychologist. Dr.
Heckel testified that termination of parental rights would not be in the best interest of the
child.
We conclude, therefore, that Danielle failed to establish by clear and convincing evidence
the requisite jurisdictional and dispositional grounds for the termination of Marvin's parental
rights. The district court erred. We hereby reverse the district court's order terminating the
parental rights of Marvin Stephen Smith.
____________
102 Nev. 268, 268 (1986) Bryant v. State
LLOYD BRYANT, aka HERSCHEL BRYANT, Appellant,
No. 15336
ROBERT FRANK DVORAK, Appellant, v.
No. 15852
June 26, 1986 721 P.2d 721
Consolidated appeals from district court orders denying motions to withdraw guilty pleas.
Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge (No. 15336); Addeliar
D. Guy, Judge (No. 15852).
Consolidated appeals were taken by defendants from orders of the district court denying
their motions to withdraw guilty pleas. The Supreme Court held that: (1) plea canvasses must
be taken in future to save judicial resources by obviating need to look beyond technical
sufficiency of a plea and eliminate need to engage in type of time-consuming review of
record, and (2) facts and circumstances of instant cases revealed that both pleas were entered
knowingly and intelligently in that defendants, though perhaps not presented at all elements
of offenses with which they were charged at time they entered their pleas, were nevertheless
showing to have understood true nature of charges against them.
Affirmed.
Wright Shinehouse & Stewart, Las Vegas, for Appellant Lloyd Bryant; John G. Watkins,
Las Vegas, for Appellant Robert Frank Dvorak.
Brian McKay, Attorney General, Carson City, Robert J. Miller, District Attorney, Randall
H. Pike and James Tufteland, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
A trial court must address a defendant personally at time he enters a plea of guilty to determine whether
he understands nature of charge to which he has pleaded guilty. NRS 174.035, subd. 1.
2. Criminal Law.
An understanding from the defendant as to nature of charge to which he has pleaded guilty may be
obtained by eliciting either a statement from defendant indicating that he understands elements of offense
or an admission from defendant indicating that he committed offense. NRS 174.035, subd. 1.
3. Criminal Law.
The trial judge himself is not required to explain the elements of the offense to a defendant pleading
guilty and may instead request one of the attorneys present to explain the elements to the defendant. NRS
174.035, subd. 1.
4. Criminal Law.
The defendant himself need not make a factual admission of guilt on entering a guilty plea, but may
instead adopt a factual statement of guilt made by the judge or one of the attorneys present. NRS
174.035, subd. 1.
5. Criminal Law.
The Supreme Court will not look only to the technical sufficiency of a plea canvass to determine whether
a plea of guilty has been entered with a true understanding of the nature of offense charged, but will review
the entire record and look to the totality of the facts and circumstances of the case in making a
determination. NRS 174.035, subd. 1.
6. Criminal Law.
A defendant may not challenge the validity of the guilty plea on direct appeal from the judgment on
conviction, but must raise a challenge to the validity of the plea in the district court in the first instance,
either by bringing a motion to withdraw the guilty plea, or by initiating a postconviction proceeding. NRS
34.360, 174.035, subd. 1, 177.315.
7. Criminal Law.
It is the duty of a trial court receiving a plea of guilty to review the entire record to determine that plea is
valid either by reason of the plea canvass itself or under a totality of the circumstances approach. NRS
174.035, subd. 1.
8. Criminal Law.
A plea of guilty must be viewed as presumptively valid with the burden being on the defendant to
establish that the plea was not entered knowingly and intelligently. NRS 174.035, subd. 1.
9. Criminal Law.
Finding that defendant's plea of guilty to crime of obtaining or possessing a credit card without
cardholder's consent was entered voluntarily, knowingly and intelligently was warranted under totality of
the facts and circumstances, notwithstanding that court accepting plea neither explained intent element to
defendant nor elicited a factual admission from defendant covering specific element of criminal intent,
where defendant was shown to have understood true nature of charge against him as evidenced by fact that
he responded affirmatively to question from court as to whether he had discussed elements of offense with
his attorney prior to entry of plea. NRS 174.035, subd. 1, 205.690.
10. Criminal Law.
Statement of guilt made by defendant at time he entered plea of guilty to crime of obtaining money under
false pretenses, though somewhat inarticulate and inadequate insofar as it failed to delve into details of
entire transaction as set forth in information, was nevertheless sufficient to indicate that defendant was
willing to admit his guilt to basic elements of offense and was sufficient to warrant finding that defendant's
plea of guilty was entered knowingly and intelligently. NRS 174.035, subd. 1, 205.380.
OPINION
Per Curiam:
In these two consolidated appeals, we are faced with challenges to the validity of two
guilty pleas. In both cases, the defendants challenge their pleas on the ground that they were
not entered knowingly and intelligently because the lower courts did not sufficiently canvass
them to determine if they understood the nature of the charges to which they were
pleading guilty.
sufficiently canvass them to determine if they understood the nature of the charges to which
they were pleading guilty.
In the past, this court has been faced with similar challenges to guilty pleas, and has on
those occasions set forth the criteria necessary for the entry of a valid plea. See, e.g., Hanley
v. State, 97 Nev. 130, 624 P.2d 1387 (1981); Heffley v. Warden, 89 Nev. 573, 516 P.2d 1403
(1973); Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970). Nevertheless, we continue to be
presented with numerous challenges to guilty pleas, and often these challenges reveal a
confusion or a misunderstanding of the criteria and rules pertaining to the validity of guilty
pleas. Accordingly, we have consolidated the two present cases to clarify our position on the
law relating to the acceptance of guilty pleas.
1
Before discussing the intricacies of these two
cases, however, a brief review of the law in this area is warranted.
[Headnote 1]
In 1941, the United States Supreme Court held that as a matter of due process, a defendant
must enter a guilty plea with real notice of the true nature of the charge against him. See
Smith v. O'Grady, 312 U.S. 329, 334 (1941). Both our legislature and this court have adopted
this constitutional rule by requiring a trial court to address a defendant personally at the time
he enters his plea to determine whether he understands the nature of the charge to which he is
pleading guilty. See NRS 174.035(1);
2
see also Hanley v. State, supra.
[Headnote 2]
As we held in Hanley, two methods exist whereby a district judge may affirmatively elicit
such an understanding from a defendant at the time the judge accepts a plea of guilty. The
judge may elicit either a statement from the defendant indicating that he understands the
elements of the offense, or an admission from the defendant indicating that he committed the
crime charged. See Hanley, 97 Nev. at 134, 624 P.2d at 1390.
We have always preferred that trial courts conduct plea canvasses in accordance with the
above standards whenever possible and in as thorough a manner as possible. As we noted in
Higby v. Sheriff, supra, judicial resources are wasted when a defendant is given the
opportunity to attack a plea on appeal to this court as a result of a technically inadequate
plea canvass; attacks on guilty pleas are clearly more difficult to dispose of when we are
not able to point to clear and uncontradicted admissions made by the defendant at a plea
hearing.
____________________

1
We note that the present two cases involve challenges pertaining solely to whether the defendants
understood the nature of the charges against them, and the defendants do not challenge the validity of their pleas
in any other respect. See generally Hanley v. State, supra.

2
NRS 174.035(1) provides in part that a trial court shall not accept [a guilty] plea or a plea of nolo
contendere without first addressing the defendant personally and determining that the plea is made voluntarily
with understanding of the nature of the charge and the consequences of the plea.
given the opportunity to attack a plea on appeal to this court as a result of a technically
inadequate plea canvass; attacks on guilty pleas are clearly more difficult to dispose of when
we are not able to point to clear and uncontradicted admissions made by the defendant at a
plea hearing.
[Headnotes 3, 4]
Nevertheless, this court has never required the articulation of talismanic phrases at plea
hearings, and we have instead been flexible in terms of permitting a district judge wide
latitude in fulfilling the above requirements. See generally Wynn v. State, 96 Nev. 673, 615
P.2d 946 (1980); Heffley v. State, supra. For example, we have held that the trial judge
himself is not required to explain the elements of the offense to the defendant, and may
instead request one of the attorneys present to explain the elements to the defendant. See Ball
v. Warden, 99 Nev. 400, 663 P.2d 698 (1983). We have also held that the defendant himself
need not make a factual admission of guilt, but may instead adopt a factual statement of guilt
made by the judge or one of the attorneys at the hearing. See Croft v. State, 99 Nev. 502, 665
P.2d 248 (1983).
[Headnote 5]
Furthermore, while we believe trial courts should in all circumstances conduct sufficient
and thorough plea canvasses, as an appellate court reviewing the validity of a plea, we cannot
be constrained to look only to the technical sufficiency of a plea canvass to determine
whether a plea has been entered with a true understanding of the nature of the offense
charged. As the United States Supreme Court has recognized, an appellate court should
review the entire record, and look to the totality of the facts and circumstances of a
defendant's case, to determine whether a defendant entered his plea with an actual
understanding of the nature of the charges against him. See Marshall v. Lonberger, 459 U.S.
422 (1983); Henderson v. Morgan, 426 U.S. 637 (1976).
In Lonberger and Henderson, the Supreme Court reviewed two cases in which trial courts
had failed to elicit statements on the record at the time of the defendants' plea hearings
indicating that the defendants understood the nature of the charges against them. In assessing
the validity of the defendants' pleas, however, the Court looked beyond the technical
sufficiency of the plea canvasses to determine if the defendants had true notice of the charges
against them. In both cases, the Court combed the entire record to determine if the defendants
had received actual notice of the charges against them at some other time during the criminal
proceedings, taking into account such factors as the defendants' level of intelligence and
ability to understand the nature of the proceedings.
level of intelligence and ability to understand the nature of the proceedings. In Henderson, the
Court concluded that the defendant's plea was invalid where the defendant had an unusually
low mental capacity, and where the record did not reflect that anyone had previously
explained the charges to him. Henderson 459 U.S. at 642-43. Conversely, in Lonberger, the
Court upheld the validity of the defendant's plea, where the defendant was of average
intelligence, and where the Court could infer from certain statements made at the time of
sentencing that the defendant had previously read the criminal information, which fully set
forth the charges against him. The Court concluded from those factors that the defendant had
received true notice of the charge against him.
[Headnotes 6-8]
Although this court has in the past relied upon the totality of the circumstances test in
reviewing the validity of guilty pleas, see, e.g., Taylor v. Warden, 96 Nev. 272, 607 P.2d 587
(1980), we have not had occasion to discuss in detail how this test should be applied.
Therefore, we have consolidated the two present appeals to illustrate how this test is to be
applied in various circumstances. Initially, however, we note that the application of this type
of test is essentially factual in nature, and thus best suited to trial court review in the first
instance. Accordingly, in the future we will no longer permit a defendant to challenge the
validity of a guilty plea on direct appeal from the judgment of conviction. Instead, a
defendant must raise a challenge to the validity of his or her guilty plea in district court in the
first instance, either by bringing a motion to withdraw the guilty plea, or by initiating a
post-conviction proceeding under NRS 34.360 or NRS 177.315. It shall then be the duty of
the trial court to review the entire record to determine whether the plea was valid, either by
reason of the plea canvass itself or under a totality of the circumstances approach. As we have
held in the past, the trial court should view the guilty plea as presumptively valid and the
burden should be on the defendant to establish that the plea was not entered knowingly and
intelligently. See generally Wingfield v. State, 91 Nev. 336, 535 P.2d 1295 (1975). On appeal
from the district court's determination, we will presume that the lower court correctly
assessed the validity of the plea, and we will not reverse the lower court's determination
absent a clear showing of an abuse of discretion. See generally Wynn v. State, supra.
With the above considerations in mind, we consider the merits of the present appeals.
Bryant v. State, No. 15336
Appellant Bryant entered a guilty plea to one count of obtaining or possessing a credit card
without the cardholder's consent, in violation of NRS 205.690.
violation of NRS 205.690. Shortly after he entered his plea, Bryant filed a motion to set aside
his plea, which was denied by the district court. This appeal followed.
On appeal, Bryant contends that his plea was not entered knowingly and intelligently
because the record does not reflect that he understood the nature of the charge against him.
Specifically, Bryant contends that the trial court did not advise him that a fraudulent intent to
circulate, use or sell the credit card was an element of the offense to which he was pleading
guilty; Bryant also contends that the trial court failed to elicit a sufficient factual admission
from him indicating that he possessed such an intent. See generally Ridings v. State, 99 Nev.
709, 669 P.2d 718 (1983).
As noted above, this court is concerned with determining whether a defendant understood
the true nature of the charge against him. Such an understanding does not always require that
a defendant express an understanding of, or admit to, every specific element of the crime
charged.
3
Such a requirement is not necessary in all cases to a basic and true understanding
of the nature of the crime.
In Bryant's case, it is true that the district court neither explained the intent element to
appellant nor elicited a factual admission from appellant covering the specific element of
criminal intent. Nevertheless, a review of the record as a whole reveals no basis for
concluding that Bryant did not understand the true nature of the charge against him.
[Headnote 9]
Initially, we note that at the plea hearing itself the district court asked appellant if he had
discussed the elements of the offense with his attorney prior to the entry of his plea, and
appellant responded affirmatively. Although this admission standing alone might not be
sufficient to infer that Bryant fully understood the nature of the charge against him, when we
view the record as a whole, we are more than satisfied that Bryant did understand the true
nature of the offense, and in fact did understand that a fraudulent intent was an element of the
crime charged.
First, we note that Bryant was present at his preliminary hearing, when his own counsel
explained that a fraudulent intent was an element of the offense charged. In fact, Bryant's
counsel argued at the preliminary hearing that the State did not present sufficient evidence to
establish that Bryant harbored the requisite criminal intent to circulate, use or sell the credit
cards in his possession in a fraudulent manner. Further, counsel filed a pretrial petition for a
writ of habeas corpus in the district court on Bryant's behalf, again alleging that the State
did not present sufficient evidence of Bryant's fraudulent intent at the preliminary
hearing.
____________________

3
To the extent that our opinion in Ridings v. State, supra, holds to the contrary, it is hereby overruled.
Bryant's behalf, again alleging that the State did not present sufficient evidence of Bryant's
fraudulent intent at the preliminary hearing. Given the fact that this issue was prominently
and frequently raised prior to the entry of Bryant's plea with his obvious knowledge, it would
be difficult to believe that Bryant did not understand that a fraudulent intent was an element
of the charge against him.
Moreover, we note that at Bryant's sentencing hearing, Bryant's counsel stated in Bryant's
presence, that Bryant had previously admitted to him that he was selling credit cards he knew
to be stolen for approximately $25 each. Counsel also stated that he had told appellant that
this conduct was in violation of the statute. Further, at the sentencing hearing, the trial judge
read Bryant the charging information, which included a statement that Bryant possessed the
credit cards with the felonious intent to circulate, use or sell the credit cards. Bryant did not
try to contradict his attorney's statement regarding Bryant's criminal intent at that hearing, nor
did he express any confusion regarding the trial court's recitation of the elements of the
offense. It is difficult to believe that Bryant would have waited until after he was formally
sentenced to protest the insufficiencies of the above explanations and recitations of the facts,
if in fact he did not understand the explanations and recitations at the time they were made.
See Director, State Prisons v. Powell, 101 Nev. 736, 710 P.2d 73 (1985).
Finally, we note that the lower court made a specific factual finding that Bryant had
received post-secondary education and possessed a sufficient intelligence to understand the
above proceedings, and that Bryant was able to and did understand the nature of the charge
against him based on those proceedings. In light of the above, Bryant has failed to convince
us that the lower court abused its discretion by finding Bryant's plea to have been voluntarily,
knowingly and intelligently entered under the totality of the facts and circumstances of his
case. Accordingly, we affirm the lower court's refusal to withdraw Bryant's plea.
Dvorak v. State, No. 15852
Dvorak pleaded guilty to the crime of obtaining money under false pretenses in violation
of NRS 205.380. Shortly thereafter, Dvorak filed a motion to withdraw his guilty plea in the
district court, but the district court denied the motion and this appeal followed.
The charging information in this case accused Dvorak of falsely advising the victim that he
(Dvorak) would obtain a government approved home improvement loan for the victim in the
amount of $3,500. According to the information, Dvorak advised the victim that she would
receive 15 percent of the $3,500 and that Dvorak would use the remaining monies to
make certain improvements on the victim's home.
advised the victim that she would receive 15 percent of the $3,500 and that Dvorak would use
the remaining monies to make certain improvements on the victim's home. Dvorak did not
obtain a government loan on the victim's behalf. Instead, the victim executed a second
mortgage on her home in the amount of $3,500, which Dvorak ultimately obtained for the
ostensible purpose of making the agreed-upon improvements on the victim's home. The
information alleged that Dvorak failed to complete the improvements and further did not
refund to the victim any of the money intended for the improvements. The charging
information additionally alleged that Dvorak had taken the victim's money with no intent to
complete the improvements.
At the plea hearing, the district court asked Dvorak what he had done that caused him to
plead guilty. Dvorak replied as follows: I loaned Ruby Mackie [the victim] thirty-five
hundred dollars, and which she was to receive and did not receive. Dvorak contends that this
recitation of the facts did not constitute a full or sufficient admission of guilt to the crime
with which he was charged. Dvorak further contends that the district court failed to explain
the elements of the offense to him at the time of the entry of his guilty plea. Dvorak therefore
concludes that his plea was not entered knowingly and intelligently. We disagree.
[Headnote 10]
As in the Bryant case, Dvorak readily admitted at the plea hearing that he had previously
discussed the elements of the offense with his attorney prior to the entry of the plea. Further,
while Dvorak's statement of guilt was somewhat inarticulate and did not delve into the details
of the entire transaction as set forth in the information, it did sufficiently indicate that Dvorak
was willing to admit his guilt to the basic elements of the offense itself, to-wit: that he helped
arrange a loan transaction for the victim, retained the loan proceeds, and failed to provide the
victim with the monies or services which Dvorak promised her she would receive.
Moreover, our review of the record convinces us that Dvorak was familiar with the state's
more detailed theory of his guilt. Specifically, we note that Dvorak was present at his
preliminary hearing and heard the victim describe in detail the facts of the charged offense.
Additionally, at the plea hearing, Dvorak stated that he was pleading guilty to the charges in
the information, and in fact admitted on the record that the factual allegations set forth in the
information were true and correct. Since the information fully set forth the nature of the
offense to which he was pleading guilty, Dvorak's acknowledgement that he was familiar
with the information clearly indicates that Dvorak was aware of the exact nature of the
charge against him at that time.
nature of the charge against him at that time. See Marshall v. Lonberger, supra.
Moreover, we also note that at Dvorak's sentencing hearing, Dvorak's own attorney
described the facts of Dvorak's crime, and admitted that the victim did not receive all the
money to which she was entitled and/or that some monies were missing. Dvorak neither
protested these statements nor expressed any confusion with regard to them. As in Bryant's
case, it is therefore difficult to believe that Dvorak only became confused about the nature of
the case against him after the termination of the above proceedings. See Director, State Prison
v. Powell, supra.
Finally, we note that there is nothing in the record to indicate that Dvorak did not possess a
sufficient intelligence or mental ability to understand the above proceedings. Therefore, in
light of the above factors, we conclude that the lower court did not abuse its discretion by
finding that Dvorak's plea was entered knowingly and intelligently. Accordingly, we hereby
affirm the district court's order denying Dvorak's motion to withdraw his plea.
Conclusion
As discussed above, we affirm both pleas in this case because the record as a whole
reveals that the defendants both possessed an actual understanding of the charges against
them when they entered their guilty pleas. Again, however, we strongly encourage district
courts to conduct thorough plea canvasses, affirmatively eliciting a complete understanding
of the nature of the charge to which a defendant is pleading guilty on the record at the time of
the plea hearing itself, in accordance with our previous opinions. See, e.g., Hanley v. State,
supra. Such canvasses will save judicial resources by obviating the need to look beyond the
technical sufficiency of a plea and eliminating the need to engage in the type of
time-consuming review of the record which we were forced to conduct in the present cases.
Nevertheless, we emphasize that a court reviewing the validity of a guilty plea should not
hesitate to look at the entire record whenever necessary to determine whether a plea was
entered knowingly and intelligently in light of all the facts and circumstances of the particular
case. Because the facts and circumstances in the present two cases reveal that both pleas were
entered knowingly and intelligently, we affirm the lower court's refusal to set the pleas aside.
____________
102 Nev. 277, 277 (1986) City Council v. Irvine
CITY COUNCIL OF THE CITY OF RENO, STATE OF NEVADA,
Appellant, v. RICHARD D. IRVINE, Respondent.
No. 16810
June 26, 1986 721 P.2d 371
Appeal from district court issuance of writ of mandamus compelling appellant to issue
liquor cabaret license to respondent; Second Judicial District Court, Washoe County; Roy L.
Torvinen, Judge.
Appellant sought issuance of a writ of mandamus compelling city to issue liquor cabaret
license. The district court granted applicant a writ, and city appealed. The Supreme Court,
Springer, J., held that refusal by city to grant a cabaret license to applicant because its
proposed operation next door to applicant's adult bookstore would be contrary to public
welfare was not an arbitrary nor a capricious disregard of city's legally delegated licensing
powers considering very close association of two operations, need to monitor noise level,
likelihood of personnel from one operation being involved as personnel for other operations,
and expectation that patrons taking drinks from cabaret to bookstore would create a situation
that would be inconsistent with general welfare of public.
Reversed.
Robert L. Van Wagoner, City Attorney, Tudor Chirila, Senior Assistant, Reno, for
Appellant.
Raggio, Wooster & Lindell, for Respondent.
Theaters and Shows.
Refusal by city to grant a cabaret license to applicant because its proposed operation next door to
applicant's adult bookstore would be contrary to public welfare was not an arbitrary nor capricious
disregard of city's legally delegated licensing powers considering very close association of two operations,
need to monitor noise level, likelihood of personnel from one operation being involved as personnel for
other operation, and expectation that patrons taking drinks from cabaret to bookstore would create a
situation that would be inconsistent with general welfare of public.
OPINION
By the Court, Springer, J.:
The City of Reno brings this appeal because the district court has commanded it to issue
a cabaret license1 for "Le Cabaret," proposed to be operated by respondent Irvine next
door to his Virginia Street Adult Book Store, which features an "X-rated S channel private
video arcade" known to display on video screens unadorned homosexual and
heterosexual activities.
has commanded it to issue a cabaret license
1
for Le Cabaret, proposed to be operated by
respondent Irvine next door to his Virginia Street Adult Book Store, which features an
X-rated 8 channel private video arcade known to display on video screens unadorned
homosexual and heterosexual activities.
The city refused to grant the license because it was contrary to public welfare. We hold
that the Reno City Council acted well within its powers in denying the license and reverse the
order of the district court commanding issuance of the license.
Irvine seeks a license to operate a cabaret, that is, a license which permits singing,
dancing, floor show and other live entertainment. . . in [an] establishment where alcoholic
beverages are sold. . . . R.M.C. 4.06.290. Such licenses are authorized by the municipal
code only when they are in harmony with the general welfare of the inhabitants of the city.
R.M.C. 4.06.020.
The municipal code gives the council broad discretion in granting this kind of license, and
as a general rule the courts will not interfere with such discretion. Gragson v. Toco, 90 Nev.
131, 520 P.2d 616 (1974). An exception to this general rule can be found in cases in which
the council acts arbitrarily or capriciously. Gragson at p. 133; Henderson v. Henderson Auto,
77 Nev. 118, 359 P.2d 743 (1961).
The city council certainly has the general power to determine whether the granting of this
kind of license privilege is contrary to the general welfare of the inhabitants of the city. The
courts, as a general rule, have no business telling a city board who should or who should not
be granted this kind of license or which cabaret licenses would be and which cabaret licenses
would not be contrary to the public welfare. Only rarely may a court interfere with such a
decision of a municipality's governing board, and then only when it can be demonstrated by
the one seeking the privilege that the governing board is acting outside of its legal powers.
If one seeking such a privilege can show that the city board, in denying the license, acted
in a manner that was arbitrary (baseless, despotic)
2
or capricious (caprice: a sudden turn of
mind without apparent motive; a freak, whim, mere fancy"),3 then the board is said to be
abusing its discretion and is not acting within its legally delegated powers.
____________________

1
Reno Municipal Code Section 4.06.290 provides:
Sec. 4.06.290. Cabaret licenses.
It shall be unlawful for any person to permit any singing, dancing, floor show or other live
entertainment to be conducted or carried on in any establishment where alcoholic beverages are sold in
the city without first obtaining a cabaret license. Such a license will be subject to revocation if it appears
to the satisfaction of the council that the singing, dancing or entertainment unreasonably disturbs any
person in any adjourning room or building or neighborhood.

2
The Oxford Universal Dictionary.
without apparent motive; a freak, whim, mere fancy),
3
then the board is said to be abusing
its discretion and is not acting within its legally delegated powers. Such illegal actions on the
part of a city's governing board may be subject to judicial action to prevent interference with a
license applicant's legal or constitutional rights.
If a municipal governing body decides to deny a license, even of the highly privileged kind
involved here, in an arbitrary and capricious manner, it has abused its discretion and invited
judicial review. As stated in Henderson, the license applicant has the burden of demonstrating
the impropriety of governmental action and is required before the trial court to establish
abuse of discretion on the part of the city council in the denial by that body of the
application. Henderson, 77 Nev. at 122, 359 P.2d at 745. Interference by the court is not
warranted except where there [is] a manifest abuse of discretion. 77 Nev. at 122; 359 P.2d
at 745. The question here, then, is whether Irvine has sustained his burden before the trial
court of proving a manifest abuse of discretion by way of establishing the groundless,
arbitrary or capricious action of the city council in denying the license. It is clear that Irvine
has not sustained this burden and that the trial court has erred in commanding the council to
issue a license.
A city board acts arbitrarily and capriciously when it denies a license without any reason
for doing so. In previous cases, e.g., Henderson, we have spoken in terms of there being a
lack of substantial evidence
4
before the council (77 Nev. at 122); but the essence of the
abuse of discretion, of the arbitrariness or capriciousness of governmental action in
denying a license application, is most often found in an apparent absence of any grounds
or reasons for the decision. "We did it just because we did it."
A perfect example of this kind of groundless, arbitrary denial can be found in the case of
County of Clark v. Atlantic Seafoods, 96 Nev. 60S
____________________

3
Idem.

4
Expressions like lack of substantial evidence, arbitrary and capricious, sufficient reason, and abuse
of discretion recur throughout these cases at the administrative, district court and appellate levels. They are
useful in describing the need for local governmental decision to be made on a rational basis. City charters grant a
very broad discretion to city boards in granting or denying licenses and permits; but this discretion is not totally
without limits. City boards may not, for example, deny an application for no reason at all (arbitrarily) or for an
improper reason (discriminatory, e.g.) When they do, they are said to have abused their discretion. Thus, when
an applicant can persuade the district court that there is no substantial evidence to support a denial decision or
simply that there is no reason for the denial, the district court may order the license or permit to be issued (there
being no reason why it should not) or may remand to the city authority for further proceedings. Given the
foregoing, given the presumption of propriety of the governmental action, and given the heavy burden placed
upon a disappointed applicant, there is no legal requirement that a city board explain a denial or that it
expressly state or enumerate grounds in the administrative record. The more, however, that the city board can
set forth, in its record, straightforward reasons and grounds for the decision, the less likely is a court to interfere
with the normal course of city business.
the essence of the abuse of discretion, of the arbitrariness or capriciousness of governmental
action in denying a license application, is most often found in an apparent absence of any
grounds or reasons for the decision. We did it just because we did it.
A perfect example of this kind of groundless, arbitrary denial can be found in the case of
County of Clark v. Atlantic Seafoods, 96 Nev. 608, 615 P.2d 233 (1980).
The owner of Atlantic Seafoods sought a license to sell packages of wine or beer to his
seafood customers. Clark County said no and gave no reason. The trial court ordered that
the license be issued because, there being no evidence or apparent reason to support the
denial, the board's exercise of discretion was capricious and arbitrary.
On appeal the county argued that Atlantic's being a fish market was sufficient reason to
deny its application for a license. This court affirmed, holding that the county board's decision
must be related to the public welfare and not arbitrary and capricious. We noted that the mere
fact that Atlantic is a fish market has no bearing on the public health and welfare.
Atlantic Seafood appears to be an appropriate place to sell wine and beer. The county
has not affirmatively explained how the denial promotes the public welfare or why
Atlantic would be an inappropriate licensee. Consequently, the denial was a clear abuse
of discretion because it was not based on any good and sufficient reason related to the
public's well being.
5

(Our emphasis.)
Henderson is another example of a case in which the trial court ruled that where there is
no evidence or reason found in the record of the licensing proceedings to support a license
denial, the license must be issued. These cases do not stand for the proposition that the board
must explain its decision or even that it must make formal findings or conclusions. The
decision of the trial court in these matters must, rather, be based upon the applicant's ability to
establish in some manner that the council has abused its discretion. This may be done, as it
was in Seafoods and Henderson by showing that the municipal record discloses no sufficient
reason to support the denial.
____________________

5
The emphasized sentence, it should be mentioned, refers to the county's burden as appellant to demonstrate
error by explaining to this court why granting a package beer and wine license to a fish market was contrary to
the public interest. It does not mean that the licensing board had any burden to explain its action at the
administrative or district court level. As stated, the applicant has the burden of establishing before the council
and the trial court any claimed abuse of discretion on the part of the board.
We have recently had occasion to apply these principles in a zoning case, City Council,
Reno v. Travelers Hotel, 100 Nev. 436, 683 P.2d 960 (1984), Travelers Hotel sought a special
use permit to build a 305-room hotel-casino complex. The planning commission
recommended issuance of the permit. No objections were made to issuance of the permit at
the public hearing. At the hearing before the council testimony was limited to one witness
who testified that she thought the project was too close to a high school. The trial court found
that the denial under these circumstances was an abuse of discretion and not supported by
substantial evidence.
This court upheld the trial court in Travelers, noting that the mere statements of interested
parties and their counsel and the opinions of council members did not provide a proper reason
for the decision. In coming to this conclusion we cited with approval language from
Henderson which declared the above-discussed principles relating to the nature of judicial
intervention in license denial cases.
When we look at the record presented to the trial court in this case, we find a set of
circumstances clearly distinguishable from that found in Seafoods, Henderson, and Travelers.
In this case we find an abundance of reasons in the record to support denial of the license.
As part of the licensing process the application was referred to the police department for
study and recommendations. Because of the proximity to the X-rated book and movie
operation and other reasons stated in the police report the police recommended granting the
license only upon the imposition of certain conditions. These conditions included: a condition
prohibiting the cabaret from expanding into the X-rated business by way of common doors
and such; a condition stating that [d]ue to its location, one-half block from residential
dwellings, noise from music, disc jockey, band, etc. [should] be kept at an acceptable level;
a condition that personnel of the two businesses not be allowed to intermingle back and forth
between the two businesses; a condition that the X-rated business not advertise its wares in
Le Cabaret; and a condition that Le Cabaret not allow its drinks to be carried to the X-rated
business. Five other more general restrictions and conditions were also imposed.
In reviewing council deliberations it appears that council members were concerned about
the obvious: the inherent difficulties in enforcing the mentioned police conditions. As put by
Councilman Nunez: I don't know how we are going to enforce those things in a lot of cases.
As an example of the type of enforcement problem mentioned by the councilman, one can see
that it would be difficult indeed to try to prohibit the sex shop's advertising to Le Cabaret
patrons as it would be impossible to enter Le Cabaret without seeing the advertising on
the outside of the X-rated business next door.
would be difficult indeed to try to prohibit the sex shop's advertising to Le Cabaret patrons as
it would be impossible to enter Le Cabaret without seeing the advertising on the outside of
the X-rated business next door.
Councilman Nunez and other members of the council had good and sufficient cause to
conclude that a combination of factors including the very close association of the two
operations, the need to monitor the noise level, the likelihood of personnel from one being
involved as personnel for the other, and the expectation of patrons taking drinks from the
cabaret to the book store and sex-movie pavilion would create a situation that would be
inconsistent with the general welfare of the public.
It would appear to be an uphill struggle indeed for Irvine to show that the city council was
being whimsical when the City denied to him the privilege of engaging in abutting
pornography
6
and dance hall operations. No person, including Irvine, spoke or requested to
speak at the hearing in support of the creation of such a menage. If there were nothing before
the council but the one factputting dancing and drinking next to an adult book and X-rated
video arcadethe courts would be hard-pressed to conclude that denial of such a scheme was
beyond government powers or was an act of arbitrariness or capriciousness on the part of the
governmental body.
In addition to the above-stated combination of reasons, the necessity of burdensome
enforcement of the police-imposed conditions provides a separate and independent rational
basis for the denial of this cabaret license. Still another discrete and singly supportable reason
for denial which can be taken from the record is that the city could have relied on the police
department's notation that the cabaret was only one-half block from residential buildings.
Absent an affirmative showing that Irvine was being discriminated against, the police
department's concern about the cabaret's location one-half block from residential dwellings
[and] noise from the music and other natural incidents of dance-hall frolicking provide in
themselves a rational basis for the denial decision.
Irvine, it appears from the record, did not even make a token showing of arbitrariness or
other misfeasance on the part of the Reno board. Absent a showing by Irvine of impropriety
on the part of the city council in making its decision to deny the license, the city's decision
must be upheld.
____________________

6
Pornography has been defined as being a [d]escription of the life, manners, etc., of prostitutes and their
patrons; hence the expression or suggestion of obscene or unchaste subjects in literature or art. The Oxford
Universal Dictionary. Without giving into the question of whether the written and pictorial depiction of explicit
sexual activities comprises what can be called literature or art, we feel quite safe in using the term pornography
as above defined.
part of the city council in making its decision to deny the license, the city's decision must be
upheld.
In this case the council unanimously concluded that it would be contrary to the public
welfare to grant the license. This conclusion was based on good and sufficient reasons
appearing in the record. Irvine did not show in any way that the action taken by council was
arbitrary, capricious, or in excess of its lawful powers.
Mowbray, C. J., and Steffen, Gunderson, and Young, J.J., concur.
____________
102 Nev. 283, 283 (1986) Passarelli v. J-Mar Development
ARTHUR PASSARELLI, Appellant, v. J-MAR DEVELOPMENT, INC., A
No. 16394
June 26, 1986 720 P.2d 1221
Appeal from an order denying appellant's motion for new trial or to set aside the judgment.
Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
Defendant moved to set aside judgment entered against him and grant new trial, after
judgment had been entered against defendant after review of documents and hearing of
testimony of witnesses when neither defendant nor his counsel appeared. The district court
denied defendant's motion, and he appealed. The Supreme Court held that: (1) affidavits
disputing charges made by plaintiff which claimed balances due on construction contract and
opinion of counsel for defendant that meritorious defense existed were sufficient to show
existence of meritorious defense, in determining whether application to set aside judgment
should be granted; (2) defendant was entitled to relief pursuant to civil rule authorizing court
to relieve party from final judgment for mistake, inadvertence, surprise, or excusable neglect,
where defendant had been effectually and unknowingly deprived of legal representation by
reason of his counsel's substance abuse leading to degradation of performance and practice,
which abuse was a recognized psychiatric disorder; and (3) plaintiff, which had initially
anticipated trial on the merits and fees associated with that, would not be awarded attorney
fees.
R. Paul Sorenson, Las Vegas, for Appellant.
Carelli & Miller, Las Vegas, for Respondent.
1. Judgment; New Trial.
Decision to grant or deny new trial or to set aside judgment rests with sound discretion of lower court, but
that discretion must be exercised within established guidelines.
2. Judgment.
Affidavits disputing charges made by corporation which claimed balances due on construction contract,
and opinion of counsel for defendant incorporation's action that meritorious defense existed were sufficient
to show existence of meritorious defense, in determining whether defendant was entitled to new trial after
judgment had been entered against him when neither he nor his counsel appeared at trial.
3. Judgment.
Civil defendant was entitled to grant of new trial pursuant to civil rule authorizing court to relieve party
from final judgment based on mistake, inadvertence, surprise, or excusable neglect, from judgment entered
for corporation claiming balances due on construction contract after neither defendant nor his counsel
appeared at trial, where defendant was effectually and unknowingly deprived of legal representation by his
counsel's substance abuse which caused progressively erratic performance and was a recognized psychiatric
disorder, defendant promptly applied to set aside judgment, and review of the record revealed existence of
meritorious defense. NRCP 60(b)(1).
4. Costs.
Plaintiff who had obtained judgment that was set aside based on determination that failure of civil
defendant and his attorney to appear at trial constituted excusable neglect justifying grant of new trial was
not entitled to award of attorney fees; plaintiff initially anticipated trial on the merits and fees associated
with the same.
OPINION
Per Curiam:
J-Mar Development, Inc. (J-Mar) claimed balances due on a construction contract. The
matter was called to trial on November 28, 1984, and neither Arthur Passarelli (Passarelli)
nor his counsel appeared. After reviewing the documents and hearing the testimony of
witnesses, the lower court entered judgment against Passarelli for the sum of $13,247.60
along with interest and costs.
On December 24, 1984, a motion was filed requesting the court to set aside the judgment
and grant a new trial. This motion was pursuant to NRCP 59(a)(3), or alternatively, NRCP
60(b)(1).
1
We agree with Passarelli that he is entitled to a new trial.
____________________

1
NRCP 59(a) reads:
A new trial may be granted to all or any of the parties and on all or part of the issues for any of the
following causes or grounds materially affecting the substantial rights of an aggrieved party: . . . (3)
Accident or surprise which ordinary prudence could not have guarded against.
NRCP 60(b)(1) reads:
On motion and upon such terms as are just, the court may relieve a
trial. The conduct of his prior counsel constituted excusable neglect and a trial is necessary in
order that Passarelli may put forth his defenses.
The Facts
Passarelli had engaged the services of a local attorney to assist him with the J-Mar
litigation. Trial was scheduled for November 28, 1984, but neither Passarelli nor his attorney
made an appearance. After reviewing the documents and hearing the testimony of witnesses,
the lower court entered judgment against Passarelli.
A review of the record reveals that Passarelli's then attorney was the victim of substance
abuse. As a result, the attorney's law practice had disintegrated. It was late 1984, that
Passarelli's attorney was closing his law office and preparing to enter a treatment program.
The secretary of the law office reported that the attorney's performance became erratic in
early 1984, and became progressively worse. By August, 1984, the attorney was not coming
to the office and was missing most appointments. The secretary felt that this attorney was
unable to function after May, 1984, due to his disability. Colleagues of the attorney
determined that the law practice had been suffering from inattention for approximately a year.
Only when confronted by professional friends and colleagues, did the attorney elect to close
his office and seek medical treatment. Additionally, pursuant to the recommendation of the
Southern Nevada Disciplinary Board for the State Bar of Nevada, the attorney was transferred
to disability inactive status pursuant to SCR 117.
It is now the responsibility of this court to determine whether the conduct of Passarelli's
counsel is to be imputed to Passarelli. We agree that to do so would be improper.
Discussion
[Headnote 1]
This court has repeatedly held that cases are to be heard on the merits if possible. E.g.,
Hotel Las Frontier v. Frontier Prop., 79 Nev. 150, 155, 380 P.2d 293, 295 (1963). The
decision to grant or deny a new trial or to set aside a judgment rests with the sound discretion
of the lower court. Id. at 153. However, that discretion must be exercised within established
guidelines. In Hotel Last Frontier, this court announced guidelines to be utilized by the lower
court in an exercise of such discretion. We determined that there must be a prompt
application to remove the judgment; there cannot be an intent merely to delay the
proceedings; there must be a showing of good faith, and; a meritorious defense must exist.
Id. at 154.
____________________
party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1)
mistake, inadvertence, surprise, or excusable neglect.
be a showing of good faith, and; a meritorious defense must exist. Id. at 154.
[Headnote 2]
Here, we note that there was prompt application to set aside the judgment. Additionally,
there is no showing that Passarelli's actions were for the purpose of delay. Passarelli was
acting in good faith because he felt that he was deprived of the opportunity to present his
defenses to the action. We agree. A review of the record reveals the existence of a meritorious
defense. There are affidavits which dispute certain charges made by J-Mar. There is also the
opinion of counsel, based upon the facts available to him, that a meritorious defense exists.
We deem the evidence satisfactory to show the existence of a meritorious defense. See Hotel
Last Frontier at 155.
[Headnote 3]
The remaining issue to be addressed is whether relief is available to Passarelli pursuant to
NRCP 59(a)(3) or NRCP 60 (b)(1). A review of the record and a consideration of the policies
involved leads us to determine that relief is available pursuant to NRCP 60(b)(1). Counsel's
failure to meet his professional obligations constitutes excusable neglect. The disintegration
of this attorney and his law practice was the result of a recognized psychiatric disorder. See
Brinkley v. State, 101 Nev. 676, 681, 708 P.2d 1026, 1030 (1985). Passarelli was effectually
and unknowingly deprived of legal representation. It would be unfair to impute such conduct
to Passarelli and thereby deprive him of a full trial on the merits.
[Headnote 4]
We decline to award J-Mar's requested attorney's fees. We note that J-Mar initially
anticipated a trial on the merits and the fees associated with same. Accordingly, we reverse
the ruling of the lower court and remand for a trial on the merits.
____________
102 Nev. 287, 287 (1986) State v. State, Employees Assoc.
THE STATE OF NEVADA, and PUBLIC EMPLOYEES RETIREMENT BOARD OF THE
STATE OF NEVADA, TOM WIESNER, CLAIR HAYCOCK, JULIUS
CONIGLIARO, PEGGY GLOVER, WILSON McGOWAN, MARGIE MEYERS and
SAM PALAZZOLO, Members of the Public Employees Retirement Board of the
State of Nevada, Appellants, v. STATE OF NEVADA EMPLOYEES
ASSOCIATION, INC., a Nevada Corporation, BRENT HARPER, RAY
CALLAHAN, ALAN KIGHTLINGER, JOHN KOSKI, TIM LUCICH, JAMES
RECTOR, JOSEPH REINHARDT, JON WAGNER and PAUL STEPHEN
WILLIAMS, Respondents.
No. 16550
June 26, 1986 720 P.2d 697
Appeal from summary judgment in action seeking respondents' contributions to appellants'
retirement accounts. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
State employees brought action contesting State's interpretation of statute requiring equal
contributions by State and employees to employees' retirement accounts. The district court
granted summary judgment for employees and State appealed. The Supreme Court held that
statute providing for equal payments required State and employees to contribute equal dollar
amounts, rather than equal percentage amounts of compensation, to retirement plan.
Affirmed.
Brian McKay, Attorney General, and Scott W. Doyle, Deputy Attorney General, Carson
City for Appellants.
Norah Ann McCoy, Carson City, for Respondents.
States.
Statute requiring total retirement contributions for state employees to be equally divided between
employer and employee required employer and employee to contribute equal dollar amounts, rather than
equal percentage amounts of compensation, to retirement plan. NRS 286.421, 286.421, subd. 7.
OPINION
Per Curiam:
NRS 286.421 provides for employer paid or a noncontributory" method of retirement
contribution.1 Respondent State of Nevada Employees Association's employees were
mandatorily transferred from another method of contribution to the NRS 2S6.421 plan.2
Respondent's employees were therefore required to have their compensation reduced on
July 1, 19S3, as a condition of this transfer.3 NRS 2S6.421{2), {S).
contributory method of retirement contribution.
1
Respondent State of Nevada Employees
Association's employees were mandatorily transferred from another method of contribution to
the NRS 286.421 plan.
2
Respondent's employees were therefore required to have their
compensation reduced on July 1, 1983, as a condition of this transfer.
3
NRS 286.421(2), (8).
The rate of
____________________

1
NRS 286.421 provides, in part:
1. Beginning July 1, 1985, a participating public employer shall pay on behalf of an employee the
contributions required by subsection 1 of NRS 286.410 if:
(a) The employee is hired after July 1, 1986; or
(b) The employee's benefits have vested pursuant to NRS 286.6793. The employer shall begin paying
an employee's portion of contribution on the date his benefits vest, if they vest after July 1, 1985.
2. Except for persons chosen by election or appointment . . . any such payment of the employee's
portion of the contributions must be:
(a) Made in lieu of equivalent basic salary increase or cost of living increases, or both; or
(b) Counterbalanced by equivalent reductions in employees' salaries.
* * * *
6. If an employer is paying the basic contribution on behalf of an employee the total contribution rate
is, in lieu of the amounts specified in subsection 1 of NRS 286.410 and subsection 1 of NRS 286.450:
contribution for respondents' employees to the fund is eighteen percent of
compensation.
* * *
(b) For police officers and firemen, 18 percent of compensation. Except as provided in subsection 7, a
public employer which is paying the basic contribution on behalf of its employees may, to the extent that
the respective percentage rates of the contribution are increased above the rates set forth in this section on
May 19, 1975, require each employee to pay one-half of the amount of the increase as provided in
subsection 2.
7. For the purposes of adjusting salary increases and cost of living increases or of salary reduction, the
total contribution must be equally divided between employer and employee.
8. Public employers other than the State of Nevada shall pay the entire employee contribution for
those employees who contribute to the police and firemen's retirement fund on and after July 1, 1981, and
may before that date pay all or part of this contribution. The State of Nevada shall pay the entire
contribution on or after July 1, 1983, for:
(a) Members of the Nevada highway patrol;
(b) Inspectors or field agents of the motor carrier division of the department of motor vehicles; and
(c) Firemen in the division of forestry of the state department of conservation and natural resources,
who contribute to the police and firemen's retirement fund. [Emphasis added.]

2
The issue is not before us, and we accordingly express no opinion as to whether state employees hired on a
short-term basis are required to contribute under NRS 286.421.

3
Fund members are entitled to a spouse option benefit whereby the member's spouse is entitled to receive a
benefit equal to fifty percent of that received by the member. NRS 286.667. The cost of this benefit is one
percent of compensation. One percent of the total retirement contribution is the exclusive responsibility of
respondent employees and the remaining
contribution for respondents' employees to the fund is eighteen percent of compensation.
NRS 286.421(6). Under NRS 286.421, . . . the total contribution must be equally divided
between employer and employee. NRS 286.421(7).
Appellant Public Employees Retirement Board of the State of Nevada implemented the
NRS 286.421 method by calculating the employer's one-half contribution of the total eighteen
percent of compensation against the employee's net salary after the nine and one-half percent
employee reduction. Respondents' suit alleged that appellants misconstrued NRS 386.421(7)
in calculating the amount of appellants' contribution. The district court granted respondents
summary judgement. The district court concluded NRS 286.421(7) required the employee and
employer to contribute equal dollar amounts, not equal percentage amounts of compensation,
to the retirement plan. The district court ordered, inter alia, that respondents recover from
appellants amounts by which appellants' contribution to respondents retirement fund has been
less than equal with that of respondents' contribution. This appeal followed.
Appellants argue that the contribution that must be equally divided is a percentage of
compensation as referred to in NRS 286.421(6), NRS 286.450(1) and 286.465(1). Appellants
also contend that because NRS 286.421(6) refers to basic contribution, total contribution
within the meaning of NRS 286.421(7) refers to the contribution rate in NRS 286.421(6). We
do not agree.
Appellants' argument that other parts of the statute reveal the meaning of contribution
therefore begs the question. Total contribution is not expressly statutorily defined. NRS
286.421(6) merely refers to the total rate by percentage of compensation to be contributed,
i.e., eighteen percent. NRS 286.450(1) refers to the same percentage rate of contribution for
the alternate method set forth in that section. The phrase in NRS 286.421(7) has not been
construed by other provisions of NRS Chapter 286.
Appellants argue alternatively that the use of contribution rate in NRS 286.421(6) and
total contribution in NRS 286.421(7) create a statutory ambiguity requiring resort to
legislative and administrative history. We disagree. When a statute uses words which have a
definite and plain meaning, the words will retain that meaning unless it clearly appears that
such meaning was not so intended. Balboa Ins. Co. v. Southern Distrib. Corp., 101 Nev. 774,
710 P.2d 725 (1985); City of Las Vegas v. Macchiaveria, 99 Nev. 256, 661 P.2d 879 (1983).
If language is plain and unambiguous, it must be given effect.
____________________
seventeen percent is to be equally divided, eight and one-half percent to be paid by the employer and eight and
one-half percent to be paid by the employee.
plain and unambiguous, it must be given effect. The wording of NRS 286.421(7) the total
contribution must be equally divided between employer and employee is plain and
unambiguous. Therefore, resort to legislative history is unnecessary.
Summary judgment is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. NRCP 56; Balboa Ins. Co. v.
Southern Distrib. Corp., 101 Nev. at 774, 710 P.2d at 725. Appellants' method applies equal
percentage rates of eight and one-half percent to unequal monetary bases, which does not
produce a total contribution equally divided between employer and employee as required by
NRS 286.421(7). The district court properly interpreted the statute and granted summary
judgment to respondents.
The judgment is affirmed.
____________
102 Nev. 290, 290 (1986) Walker v. State
JAMES WALKER, Appellant, v. THE
No. 16814
June 26, 1986 720 P.2d 700
Appeal from a judgment of conviction of one count of assault and battery on a peace
officer with the use of a deadly weapon; First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
Inmate was convicted in the district court of assault and battery on police officer with the
use of a deadly weapon, and he appealed. The Supreme Court held that: (1) correctional
counselor should have warned inmate of Miranda rights before obtaining testimony; (2)
admission of that testimony violated due process; and (3) inmate was entitled to instruction as
to lesser offense of resisting public officer.
Robert A. Bork, State Public Defender, Michael K. Powell, Chief Appellate Deputy Public
Defender, Carson City, for Appellant.
Brian McKay, Attorney General, Arthur Noxon, Deputy Attorney General, Carson City, for
Respondent.
1. Criminal Law.
Correctional counselor who interviewed inmate in prison cell as to alleged assault on peace officer was
required to inform inmate of his Miranda rights; correctional counselor was in adversary
relationship with inmate, and cell, as scene of involuntary interrogation, was coercive
environment.
Miranda rights; correctional counselor was in adversary relationship with inmate, and cell, as scene of
involuntary interrogation, was coercive environment. U.S.C.A.Const. Amend 5.
Correctional counselor's testimony concerning defendant's statement that was obtained in violation of
defendant's Miranda rights was not admissible under Harris exception, which permits statements to be used
for impeachment, and thus admission of counselor's testimony was due process violation, where defendant
did not testify and the statements attributed to him in counselor's testimony were not inherently
contradictory.
3. Criminal Law.
Defendant charged with assault and battery on peace officer with the use of a deadly weapon was entitled
to instruction on lesser offense of resisting public officer, in view of testimony of other inmates that could
have led reasonable jury to conclude that defendant had not committed greater offense. NRS 199.280.
OPINION
Per Curiam:
James Walker, the appellant, is an inmate at the Nevada State Prison. While serving a
sentence for an unrelated crime, Walker was charged with and found guilty of assault and
battery on a peace officer with the use of deadly weapon. He now appeals that conviction.
On May 21, 1984, Walker was being escorted to his cell by prison guard Jacobs when the
two of them got into a fight. Testimony was conflicting as to who started the fight. Jacobs
testified that the fight started when he removed a set of belly chains from Walker.
According to Jacobs, Walker grabbed the chains and started hitting him with them. Jacobs
tackled Walker and they wrestled on the floor until some other guards arrived. At that point
Walker stopped the struggle.
Jacobs' version of the altercation was disputed by several inmates who claimed to have
observed the fight. Those inmates testified that Jacobs started the incident by verbally abusing
Walker and then grabbing him around the neck. Many of the inmates also testified that Jacobs
had a reputation in the prison community for verbally and physically abusing prisoners.
Walker did not testify at the trial.
Walker's first assignment of error concerns the use at trial of a statement attributed to him
by one of the state's witnesses. During the state's case-in-chief it called Alois Hanke, a prison
guard who responded to Jacobs' call for back up. Hanke had difficulty recalling the incident,
and the state used a copy of his incident report to refresh his recollection. Hanke then testified
that when he and another guard arrived at the scene of the scuffle Walker was holding Jacobs
in a headlock but was not hitting him or trying to hit him with the chains.
trying to hit him with the chains. Walker released Jacobs when ordered to do so by Hanke.
During the defense's cross examination of Hanke, Walker's attorney requested the
admission of the report Hanke had used to refresh his recollection. The state did not object
and the report was admitted. That report contained the following:
Inmate Walker stated When he, officer Jacobs, took the chains off I stepped away
and he grabed [sic] me by the waist and threw me down. So I had to protect myself.
Inmate Walker seemed to be relatively calm, repeated several times, he threw me down,
I just had to protect myself.
Following the close of the defense's case the state sought to rebut the Hanke report with
the testimony of correctional counselor Delliquadri. Delliquadri testified that in his
investigation of the incident Walker made a statement to him that Walker struck Jacobs
because he was tired of Jacobs' abuse. This testimony was admitted as a prior to inconsistent
statement over the defense's objection. Delliquadri admitted that he had not informed Walker
of his rights prior to questioning him as required by Miranda v. Arizona, 384 U.S. 436
(1966).
Walker now asserts that the admission of Delliquadri's testimony was error on both
constitutional and evidentiary grounds. First, Walker argues that the admission of the
non-Mirandized statement violated his rights as guaranteed by the fifth and fourteenth
amendments to the United States Constitution. We agree.
[Headnote 1]
The failure to warn an accused of the right to an attorney, the right to remain silent and the
fact that statements taken from him may be used against him at trial renders those statements
inadmissible. Miranda, above. The state attempts to argue that no Miranda warnings were
necessary because Delliquadri was a counselor, not a law enforcement officer, and because
Walker was interviewed in his own prison cell, a supposedly non-coercive atmosphere. These
arguments are meritless. Delliquadri testified that he was a correctional classification
officer, commonly referred to as a unit counselor. By Delliquadri's own testimony the role of
a correctional classification officer is to investigate offenses by inmates and to sit on
disciplinary committees. Clearly there is an adversary relationship between that role and a
prisoner accused of an offense. Also, the notion that a prisoner's cell is not a coercive
environment must be rejected, particularly when that cell is the scene of an involuntary
interrogation.
[Headnote 2]
The state also argues that even if Walker should have been given the Miranda warnings,
Delliquadri's testimony is nonetheless admissible under Harris v. New York, 401 U.S. 222
{1971).
given the Miranda warnings, Delliquadri's testimony is nonetheless admissible under Harris
v. New York, 401 U.S. 222 (1971). In Harris, the United States Supreme Court recognized a
very narrow exception to Miranda. The high court held that Harris could be cross-examined
about a non-Mirandized custodial statement, after Harris had taken the stand and testified in
direct conflict with it. In ruling that Harris' statement could thus be used to impeach him, the
Supreme Court reasoned that it would not allow the fifth amendment to become a shield from
behind which a defendant could be free to commit perjury. The factors which led to the
Harris decision are simply not present in the instant case. Not only did Walker not testify,
there is nothing inherently contradictory about the statements attributed to him by Hanke and
Delliquadri. Walker told Hanke that he acted out of self defense. He told Delliquadri that he
acted because he was tired of Jacobs' abuse. We do not consider these statements in conflict
and certainly cannot view the statement to Hanke as the type of perjurious testimony which
the Supreme Court viewed in Harris as necessary to the admissibility of a non-Mirandized
statement. The admission of the Delliquadri testimony was therefore error.
Because of our conclusion that Walker's constitutional rights were violated by the
admission of Delliquadri's testimony, we need not address his argument that the testimony
was also inadmissible as a prior inconsistent statement except to say that the statement
attributed to him by Delliquadri did not meet any of the foundational requirements of a prior
inconsistent statement as set forth in this court's opinions in Summers v, State, 102 Nev. 195,
718 P.2d 676 (1986) and Kaplan v. State, 99 Nev. 449, 662 P.2d 1190 (1983).
[Headnote 3]
Because the state may choose to retry Walker, we are compelled to address his argument
concerning the failure of the trial court to grant him an instruction on the lesser offense of
resisting a public officer, a violation of NRS 199.2801 This court has consistently held that
it is error to refuse to give an instruction on a lesser offense if there is any evidence,
however slight, to support that instruction.
____________________

1
NRS 199.280 reads:
Every person who, in any case or under any circumstances not otherwise specially provided for, willfully
resists, delays or obstructs a public officer in discharging or attempting to discharge any legal duty of his
office shall be punished:
1. Where a dangerous weapon is used in the course of such resistance, obstruction or delay, by
imprisonment in the state prison for not less than 1 year nor more than 6 years, and may be further
punished by a fine of not more than $5,000.
2. Where no dangerous weapon is used in the course of such resistance, obstruction or delay, for a
misdemeanor.
consistently held that it is error to refuse to give an instruction on a lesser offense if there is
any evidence, however slight, to support that instruction. Roberts v. State, 102 Nev. 170, 717
P.2d 1115 (1986). A prison guard is an employee of the State of Nevada and therefore a
public officer as defined by NRS 193.019. See NRS 193.010. In the instant case the testimony
of some of the other prison inmates could have led a reasonable jury to conclude that Walker
merely resisted Jacobs without committing an assault and battery and that Jacobs'
over-reaction resulted in the wrestling match. It was therefore error for the trial court to refuse
the instruction on the offense of resisting a public officer.
Based on the foregoing we hereby reverse Walker's judgment of conviction for assault and
battery on a peace officer with use of a deadly weapon and remand this case for proceedings
____________
102 Nev. 294, 294 (1986) Talancon v. State
ROBERT MARTIN TALANCON, Appellant, v.
No. 15279
June 26, 1986 721 P.2d 764
Appeal from a judgment of conviction upon jury verdict of one count each of first degree
murder and robbery with the use of a deadly weapon. Second Judicial District Court, Washoe
County; Robert Schouweiler, Judge.
Defendant was convicted in the district court of first degree murder and robbery with use
of deadly weapon, and he appealed. The Supreme Court held that: (1) it had to be concluded
that legislature intended two separate punishments when defendant violated both
felony-murder statute and robbery statute, for purposes of determining whether imposition of
separate punishments for violation of those statutes violated double jeopardy, and (2)
defendant's rights were not violated by separate sentences he received for first degree murder
and robbery offenses.
Affirmed.
David G. Parraguirre, Public Defender; Jane McKenna and Mark Mausert, Deputy Public
Defenders, Washoe County, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney; Michael L.
Mahaffey, Edwin T. Basl and Alzora Jackson, Deputy District Attorneys, Washoe County, for
Respondent.
1. Criminal Law.
Supreme Court would presume, for purposes of appeal challenging imposition of separate sentences for
first degree murder and associated robbery offense as violative of double jeopardy, that first degree murder
conviction was based upon felony-murder theory rather than upon premeditated and deliberate manner of
murdering theory, where state had relied primarily on felony-murder theory of guilt and was unable to
present any direct evidence to support its alternative theory of premeditated murder. U.S.C.A.Const.
Amend. 5; NRS 200.030, subd. 1(a), (b).
2. Criminal Law.
Protecting defendant from multiple trials for same offense following acquittal or conviction involves
different aspect of double jeopardy clause than protecting defendant from imposition of cumulative
sentences for the same offense. U.S.C.A.Const. Amend. 5.
3. Courts.
United States Supreme Court's interpretation of Congress' intent in enacting federal statutory offenses of
rape and killing in course of rape was not binding on Nevada Supreme Court or dispositive of question of
Nevada legislature's intent in enacting Nevada felony-murder statute, for purposes of determining whether
imposition of cumulative punishments for felony-murder and underlying robbery offense violated double
jeopardy. U.S.C.A.Const. Amend. 5.
4. Criminal Law.
Nevada legislature intended two separate punishments when defendant violated both robbery statute and
felony-murder statute, for purposes of determining whether imposition of cumulative punishments for
robbery and felony-murder convictions violates double jeopardy, where it appeared legislature sought to
protect against two separate societal interests when it enacted felony-murder statute and robbery statute,
and legislature had not revised felony-murder statute to reflect different intent after court decision
expressing view that legislature intended separate punishments for felony-murder and robbery.
U.S.C.A.Const. Amend. 5; NRS 200.030, subd. 1(b).
5. Criminal Law.
Where two statutory offenses constitute the same offense under Blockburger test, double jeopardy will
not be violated by separate sentences for those two offenses following single trial, if it appears that
legislature intended separate punishments, disapproving of Litteral v. State, 97 Nev. 503, 634 P.2d 1226;
Givens v. State, 99 Nev. 50, 657 P.2d 97; Owens v. State, 100 Nev. 286, 680 P.2d 593; Moore v.
State, 100 Nev. 698, 692 P.2d 1278; Meador v. State, 101 Nev. 765, 711 P.2d 852. U.S.C.A.Const.
Amend. 5.
6. Criminal Law.
Defendant's double jeopardy rights were not violated by imposition of separate sentences for
felony-murder and underlying offense of robbery with use of deadly weapon. U.S.C.A.Const. Amend. 5;
NRS 200.030, subd. 1(b).
7. Criminal Law.
Appellant is not permitted to raise issue on appeal in criminal proceeding for first time in his reply brief.
8. Criminal Law.
Supreme Court would not address issue of whether defendant was improperly subjected to sentence
enhancement for use of deadly weapon in commission of crime based on fact that jury never returned
special verdict on question of whether defendant was in "control" of weapon, where
defendant had failed to object to form of jury verdict in court below or to imposition
of sentence enhancement itself.
verdict on question of whether defendant was in control of weapon, where defendant had failed to object
to form of jury verdict in court below or to imposition of sentence enhancement itself.
OPINION
Per Curiam:
Appellant Robert Martin Talancon was convicted upon jury verdict of one count each of
first degree murder and robbery with the use of a deadly weapon. He was sentenced to life
imprisonment with the possibility of parole for his first degree murder conviction, and to two
consecutive seven year prison terms for his conviction of robbery with the use of a deadly
weapon. On appeal, Talancon contends that his convictions and sentences for these two
offenses violated his constitutional right to be free from double jeopardy. For the reasons set
forth below, we disagree.
At appellant's jury trial, the state presented circumstantial evidence to demonstrate that
appellant and his brother robbed and killed Mike Williams on the night of December 24,
1982. The district court instructed the jury that it could find appellant guilty of first degree
murder for the killing under either of two alternative theories. First, the court instructed the
jury that it could find appellant guilty of first degree murder if it concluded that appellant
murdered the victim in a premeditated and deliberate manner. See NRS 200.030(1)(a).
Second, the court instructed the jury that it could alternatively find appellant guilty of first
degree murder under a felony-murder theory, if it concluded that the killing took place during
the course of the robbery. See NRS 200.030(1)(b).
The jury returned its verdict of guilt for first degree murder, without specifying which of
these two theories it relied on, along with its verdict of guilt for the robbery offense.
Appellant contends that because the jury may have found him guilty under a felony-murder
theory, he could not be convicted of both the murder offense and the robbery offense, because
the robbery was used as the underlying felony to support the felony murder theory of guilt.
Specifically, appellant contends that these two offenses are the same offense for double
jeopardy purposes, and that they must merge together at sentencing because double
jeopardy prohibits the imposition of cumulative sentences for the same offense. Appellant
therefore submits that his robbery conviction must be reversed.
[Headnote 1]
Initially, because the jury did not specify which theory of first degree murder it relied on,
we address the question of whether we should presume that the jury premised its verdict
on a felony-murder theory for purposes of this appeal.
we should presume that the jury premised its verdict on a felony-murder theory for purposes
of this appeal. We note that in some cases it might not be appropriate to make such a
presumption, particularly where the evidence of premeditation and deliberation is substantial.
See, e.g., Breedlove v. State, 413 So.2d 1, 8 (Fla. 1982), cert. denied, 459 U.S. 882 (1982);
Buford v. State, 403 So.2d 943, 948-49 (Fla. 1981), cert. denied, 454 U.S. 1163 (1982). In the
present case, however, the state relied primarily on a felony-murder theory of guilt in the
proceedings below, and was unable to present any direct evidence to support its alternative
theory of premeditated murder. In fact, the prosecution's closing arguments in this case
contained numerous references to the felony-murder theory of guilt, and only referred to the
premeditated theory of guilt in passing. Under these circumstances, we believe it would be
improper to presume that the jury's verdict was premised on anything but a felony-murder
theory for purposes of this appeal. Nevertheless, even assuming that appellant was convicted
under a felony-murder theory, we disagree with his contention that double jeopardy prohibits
his conviction for both felony-murder and the underlying felony.
In Koza v. State, 100 Nev. 245, 681 P.2d 44 (1984), we addressed an identical contention,
and we concluded that double jeopardy did not prohibit the imposition of cumulative
sentences for felony-murder and the underlying felony following a single trial.
1
Appellant,
however, contends that our holding in Koza is in conflict with two United States Supreme
Court opinions, Missouri v. Hunter, 459 U.S. 359 (1983), and Whalen v. United States, 445
U.S. 684 (1980), as well as our own prior caselaw. Although we disagree with appellant's
contention that Koza should be overruled, we believe it is necessary to review our position on
this particular aspect of the double jeopardy clause at this time.
We begin our analysis by reviewing the relevant Supreme Court opinions in this area,
beginning with the Court's decision in Whalen v. United States, supra. In Whalen, the
defendant was sentenced to two consecutive terms for his convictions for rape, and for killing
the same victim in the course of the rape, following a single trial. He argued that those two
sentences constituted multiple punishment for the same offense in violation of the
Double Jeopardy Clause. The Court initially noted that the defendant was correct in
contending that the rape and the killing in the course of the rape were the "same offense"
for purposes of the Double Jeopardy Clause, under the test set forth in Blockburger v.
United States, 2S4 U.S. 299, 304 {1932). In Blockburger, the Court held that "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." Id. In applying this test in
Whalen, the Court noted that proof of a rape was a necessary element of the crime of
killing in the course of a rape, and the Court was not persuaded that the case should be
treated any differently from other cases in which "one criminal offense requires proof of
every element of another offense."
____________________

1
As indicated below, different considerations are involved when a defendant is convicted of two crimes that
are the same offense for double jeopardy purposes following multiple trials, rather than following a single
trial. See infra, note 2. Because the present case involves a conviction for two offenses following a single trial,
this opinion addresses only the considerations attendant to this latter situation.
defendant was correct in contending that the rape and the killing in the course of the rape
were the same offense for purposes of the Double Jeopardy Clause, under the test set forth
in Blockburger v. United States, 284 U.S. 299, 304 (1932). In Blockburger, the Court held
that 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. Id. In applying this
test in Whalen, the Court noted that proof of a rape was a necessary element of the crime of
killing in the course of a rape, and the Court was not persuaded that the case should be treated
any differently from other cases in which one criminal offense requires proof of every
element of another offense. Whalen, at 694.
The Court in Whalen, however, cautioned that double jeopardy will not always be violated
simply because a defendant is convicted and sentenced under two statutory offenses which
may be viewed as one offense under the Blockburger test. Instead, the Court noted that
cumulative sentences would be permissible in such a circumstance, where the legislature
specifically authorized cumulative sentences. Whalen at 688. The Whalen Court went on to
note, however, that the Blockburger test does serve to guide a court in determining whether
the legislature intended that separate sentences should be imposed for two particular statutory
offenses. Thus, the Court determined that where two statutory offenses can be viewed as only
one offense under the Blockburger test, double jeopardy prohibits the imposition of separate
punishments for the two offenses following a single trial, only in the absence of a clear
legislative expression of intent to the contrary. The Court then concluded that because
Congress had failed to expressly indicate an intent to impose cumulative sentences for rape
and for killing in the course of rape, cumulative sentences for those two offenses were
prohibited under the Double Jeopardy Clause.
Later, in Albernaz v. United States, 450 U.S. 333, 340 (1981), the Court again clearly
stated that the Blockburger test was not dispositive of a double jeopardy claim and that the
test is only a rule of statutory construction, to be used as a means of discerning
Congressional purpose. Thus, in Albernaz, because the Court discerned a clear legislative
purpose in favor of cumulative sentences for the two statutory offenses the defendant had
committed, it upheld the imposition of such sentences against a double jeopardy attack.
Finally, in Missouri v. Hunter, 459 U.S. 359 (1983), the Court stated even more
emphatically that the question of whether double jeopardy is violated by cumulative sentences
for the same offense depends solely on the legislature's intent in authorizing such sentences.
such sentences. Further, the Court noted that the question of legislative intent is best left to
the individual state courts to decide. Hunter, at 368.
[Headnote 2]
In Koza, we based our conclusion that double jeopardy did not prohibit the imposition of
cumulative sentences for a felony-murder conviction and the underlying felony offense
following a single trial on two considerations. First, we noted that in a previous case,
Brimmage v. State, 93 Nev. 434, 567 P.2d 54 (1977), we held that felony murder and the
underlying felony are two separate and distinct offenses, and did not qualify as the same
offense under the Blockburger test. Appellant correctly points out that this conclusion is
subject to dispute in view of the United States Supreme Court's decision in Whalen, which
held that a rape and a killing in the course of a rape are one and the same offense under the
Blockburger test. See also Harris v. Oklahoma, 433 U.S. 682 (1977) (Court rules that
felony-murder and the underlying felony are the same offense under the Blockburger test).
2

Nevertheless, we did not limit our holding in Koza to the question of whether
felony-murder and the underlying felony are the same offense under the Blockburger test.
Instead, we went on to review the legislature's intent in enacting the felony-murder statute,
and we concluded that the legislature had indeed intended for a defendant to receive separate
sentences for a felony murder conviction and the underlying felony conviction. Koza at p.
255-56.
Appellant, however, asserts that our interpretation of the legislature's intent in this regard
is in direct conflict with the above Supreme Court decisions, and in particular, with the
decision in Whalen. Appellant points out that under Whalen, we must presume that the
legislature did not intend multiple punishments for felony-murder and the underlying
felony in the absence of a clear legislative intent to the contrary.
____________________

2
As indicated above, the Supreme Court did hold in Harris that felony-murder and the underlying felony
were the same offense under the Blockburger test. The Court further concluded in Harris that the Double
Jeopardy Clause prohibited a defendant's prosecution for robbery, because the defendant had already been
convicted in an earlier separate proceeding of felony murder for a killing which occurred in the course of the
same robbery. We note, however, that the holding in Harris is distinguishable from the present case, as well as
the cases cited above, because the Court in Harris sought to protect the defendant from multiple trials for the
same offense, rather than from cumulative sentencing for the same offense in a single trial. See also Ashe v.
Swenson, 397 U.S. 436, 453-54 (1970) (Brennan, J., concurring) (defendant may not be prosecuted for the same
offense in multiple proceedings except in extremely limited circumstances). As the Court noted in Hunter,
protecting a defendant from multiple trials for the same offense following an acquittal or a conviction involves a
different aspect of the Double Jeopardy Clause than is involved in the present case. Hunter at 365.
sume that the legislature did not intend multiple punishments for felony-murder and the
underlying felony in the absence of a clear legislative intent to the contrary. Appellant then
asserts that the statutory scheme in the present case is not substantially different from the
statutory scheme in Whalen; appellant reasons, therefore, that because the court in Whalen
concluded that the statutory scheme under consideration therein did not evidence a legislative
intent to impose multiple punishments, we must reach the same result regarding our own
statutory scheme. We disagree.
[Headnote 3]
Initially, we note that the United States Supreme Court's interpretation of Congress' intent
in enacting the federal statutory offenses of rape and killing in the course of a rape, is not
binding on this court or dispositive of the question of our own legislature's intent in enacting
our felony murder statute. As noted above, the Court in Hunter stated that questions of
legislative intent must be left to the individual state courts to decide. Hunter at 368.
[Headnote 4]
Second, while we agree with appellant that a court should normally presume that a
legislature did not intend multiple punishments for the same offense absent a clear expression
of legislative intent to the contrary, we are convinced that our legislature did intend multiple
punishments for felony murder and the underlying felony. Specifically, upon reviewing the
statutory scheme devised by our legislature, we believe that it sought to protect against two
separate societal interests when it enacted the felony murder statute and the robbery statute. In
essence, the robbery statute is intended to protect against robbery only, while the felony
murder statute seeks to protect against homicides. In light of this intent to protect against two
separate evils, we must conclude that the legislature intended two separate punishments when
a defendant violates both statutes. See generally State v. Close, 623 P.2d 940 (Mont.
1981)(court concludes that its state legislature intended two separate punishments for felony
murder and the underlying felony offense, under statute similarly worded to Nevada's).
Further, we note that the Koza opinion, which clearly expressed our view that the
legislature intended separate punishments for these two offenses, was issued in April of 1984,
over two years ago. If the legislature had disagreed with our interpretation in Koza, it had
ample time to revise the felony-murder statute to reflect a different intent. Because the
legislature has not done so, we must presume that we correctly interpreted its intent in
Koza.
done so, we must presume that we correctly interpreted its intent in Koza. Accordingly, we
decline to ascribe a different intent to the legislature's enactment of the felony murder statute
at this time.
[Headnote 5]
Finally, appellant contends that our holding in Koza is in conflict with the approach we
have taken in other cases in the double jeopardy area. Specifically, appellant points out that in
a line of cases beginning with Litteral v. State, 97 Nev. 503, 634 P.2d 1226 (1981), this court
indicated that it would find a double jeopardy violation any time cumulative punishments
were imposed for the same offense. Appellant further notes that in those opinions, we never
discussed the question of whether double jeopardy would permit multiple punishments for the
same offense, where the legislature has expressed an intent that multiple punishments be
imposed.
3
Appellant thus intimates that perhaps Nevada law does not permit multiple
punishments for the same offense, even where a legislative intent has been expressed in
favor of multiple sentences.
We recognize that the Litteral line of cases might be read for this proposition, since those
cases indeed do not discuss the role that legislative intent plays in a double jeopardy analysis.
Nevertheless, this court has never expressly held that the legislature cannot constitutionally
provide for cumulative sentences for the same offense. Further, when we adopted the
holding in Hunter in our Koza opinion, we specifically acknowledged that the crucial
consideration in a double jeopardy analysis is whether the legislature intended to impose
cumulative sentences. Thus, as set forth above, we conclude that where two statutory offenses
constitute the same offense under the Blockburger test, double jeopardy will not be violated
by separate sentences for those two offenses following a single trial, if it appears that the
legislature intended separate punishments. To the extent that our opinions in the Litteral line
of cases can be read otherwise, they are hereby disapproved.
[Headnotes 6-8]
We have reviewed appellant's remaining arguments on the double jeopardy issue and find
them to be without merit. In light of the above, we conclude that appellant's double jeopardy
rights were not violated by the consecutive sentences he received in this case.4 Accordingly,
appellant's judgment of conviction and sentence are hereby affirmed.
____________________

3
We note that the holding in Litteral was followed in Meador v. State, 101 Nev. 765, 711 P.2d 852 (1985);
Moore v. State, 100 Nev. 698, 692 P.2d 1278 (1984); Owens v. State, 100 Nev. 286, 680 P.2d 593 (1984); and
Givens v. State, 99 Nev. 50, 657 P.2d 97 (1983).
case.
4
Accordingly, appellant's judgment of conviction and sentence are hereby affirmed.
____________________

4
Appellant argues, for the first time in his reply brief, that he was improperly subject to a sentence
enhancement for his use of a deadly weapon in the commission of his crime, primarily on the ground that the
jury never returned a special verdict on the question of whether appellant was in control of the weapon. See
generally Anderson v. State, 95 Nev. 625, 600 P.2d 241 (1979). Aside from the fact that an appellant is not
permitted to raise an issue on appeal for the first time in his or her reply brief, we also note that appellant failed
to object to the form of the jury verdict in the court below, or to the imposition of the sentence enhancement
itself, and we therefore decline to address this issue on appeal. See generally Krueger v. State, 92 Nev. 749, 557
P.2d 717 (1976); Walker v. State, 89 Nev. 568, 516 P.2d 739 (1973).
____________
102 Nev. 302, 302 (1986) Coury v. Whittlesea-Bell
RONALD T. COURY, dba PRESIDENTIAL LIMOUSINE SERVICE and PUBLIC
SERVICE COMMISSION OF NEVADA, Appellants, v. WHITTLESEA-BELL
LUXURY LIMOUSINE, a Nevada Corporation, dba WHITTLESEA VIP
LIMOUSINE SERVICE; SILVER STATE LIMOUSINE, and LAS VEGAS MINI
BUS, WHITTLESEA BLUE CAB COMPANY, a Nevada Corporation; and S & F
ENTERPRISES, INC., a Nevada Corporation, dba LUCKY 7 LIMOUSINE
SERVICE, Respondents.
No. 16512
June 26, 1986 721 P.2d 375
Appeal from an order of the district court overturning a decision of the Public Service
Commission to grant a certificate of public convenience and necessity to appellant; Eighth
Judicial District Court Clark County; Thomas A. Foley, Judge.
Intervenors petitioned for judicial review of Public Service Commission decision granting
certificate of public convenience and necessity to operator of stretch limousine service. The
district court, declared the certificate void and appeal was taken. The Supreme Court held
that: (1) Commission's defining and certifying stretch limousine constituted ad hoc rule
making contrary to Administrative Procedure Act, and (2) notice of certification hearing was
sufficiently deficient to invalidate certificate.
Affirmed.
Lionel, Sawyer & Collins, David C. Whittemore, Carol R. Davis, Las Vegas, for Appellant
Coury.
William H. Kockenmeister, Carson City for Appellant Public Service Commission.
Norman Ty Hilbrecht, Las Vegas, for Respondents.
1. Administrative Law and Procedure.
Agency makes rule when it does nothing more than state its official position on how it interprets
requirement already provided for and how it proposes to administer its statutory function.
Public Service Commission improperly issued certificate to operate stretch limousine service absent
statutory definition for special type of limousine; Commission's defining and certifying such vehicle set
standard of general applicability and thus constituted ad hoc rule making contrary to Administrative
Procedure Act. NRS 233B.010 et seq.
Notice of Public Service Commission hearing was sufficiently defective to invalidate certificate of public
convenience and necessity where notice did not give intervenors adequate opportunity to oppose
application, conceived after hearing commenced, to operate service for freshly defined stretch limousines
to be employed in development of entirely new market. NRS 233B.121.
OPINION
Per Curiam:
In dispute here is the validity of a certificate of public convenience and necessity issued by
the Public Service Commission to appellant Ronald T. Coury, doing business as Presidential
Limousine Service.
In the administrative proceeding before the commission Whittlesea-Bell and the other
respondents in this appeal intervened, objecting to the issuance of the certificate to Coury.
After issuance of the certificate intervenors petitioned for judicial review. The district court
declared the certificate void; whereupon, Coury and the commission filed this appeal. The
district judge's order is affirmed.
The commission's order granted a certificate authorizing a limousine service for stretch
vehicles only. The certificate restricted the limousine service so that the stretch limousines
may not approach the McCarran airport unless it has been prearranged by the customer.
Coury's application before the commission requested permission to establish service for
operation of an on call limousine service over irregular routes."
service over irregular routes. Exhibit 1 to the application indicates that the applicant was
seeking authority to operate one (1) limousine on an on call over regular routes basis.
Under the heading Geographical Area, the applicant stated that the proposed service was to
be a luxury service using a stretch' limousine with a relatively high hourly charge and that,
therefore, the appellant did not anticipate direct transportation to and from the airport.
Exhibit 1-E to the application indicates that the applicant was proposing a luxury stretch'
limousine service based on a relatively high hourly rate directed towards the occasional user
of a limousine as a luxury expenditure. The exhibit further represents that only six of some
100 certified limousines were of the so-called stretch variety.
In sum, the words of application seek an unrestricted limousine service with an indication
of intention appearing in one of the exhibits that a special kind of stretch limousine was
what was really contemplated.
The notice of application issued by the commission gave notice that application was made
for authority to operate a limousine service, on call, over irregular routes, with [sic] Clark
County, Nevada.
Respondents petitioned to intervene and protested the application. No mention was made
in the protest of any qualification, stretch or otherwise, on the nature of Coury's application
for authority to operate a limousine service in Clark County.
Reference was frequently made throughout the commission hearing to what Coury had
termed stretch limousines, but the application itself was never amended to ask for
certification of this breed of limousine, and the distinction between stretch and formal
limousines was not covered in the final briefing of the parties.
In the briefing before the commission the applicant did not seek authorization to operate a
stretch limousine as such nor was any opposition to such limited service expressed by the
protestors.
Rule-Making
The district court decided that the commission in officially defining a vehicular entity as a
stretch limousine and in issuing a certificate of public convenience and necessity
exclusively for operations of this kind of vehicle was engaging in ad hoc rule making in
violation of NRS 233B. . . .
1
NRS 233B.03S describes a "regulation" in terms of being a
"standard" of "general applicability" which "effectuates policy."
____________________

1
The commission in a footnote to its opinion supporting issuance of the stretch certificate defined stretch
limousine as follows:
A stretch limousine is a prestigious limousine which is modified in length from four (4) to six (6) feet,
or more, in order to provide
NRS 233B.038 describes a regulation in terms of being a standard of general
applicability which effectuates policy. By defining stretch limousines the commission
appears to have been setting a standard of general applicability.
To define means to determine the limits of, to state exactly what (a thing) is. (The
Oxford Dictionary of English Etymology.) By determining the limits of what a stretch
limousine is (a prestigious limousine which is four to six feet longer and which contains
certain luxury amenities) the commission was properly seen by the district court as setting a
standard of general applicability which effectuates commission policy.
Definition of a stretch limousine is a new definition. A limousine (the type of service
applied for) is already defined as a motor vehicle excluding taxicabs of a passenger capacity
of seven or less, including the driver, engaged in general transportation of persons for hire'
not on a regular schedule or over regular routes. At the time these proceedings commenced
at the commission level there was no such thing as a stretch limousine or a luxury
limousine or a prestige limousine known to the scheme of public utility regulation in this
state. It now would appear that, by commission fiat, there will henceforth be two kinds of
limousines in the world, an ordinary or formal limousine and an extraordinary or stretch
limousine, which is larger and rents for more money and contains certain luxury amenities
presumably not contained in the formal limousine.
[Headnote 1]
An agency makes a rule when it does nothing more than state its official position on how it
interprets a requirement already provided for and how it proposes to administer its statutory
function. K-Mart Corp. v. State Indus. Ins. Sys., 101 Nev. 12, 693 P.2d 562 (1985). The
district judge cannot be faulted for concluding that the commission had set, ad hoc, (i.e.,
without the formal requisites for promulgation of regulations provided for in NRS 233B) a
new standard for limousines, namely, a stretch limousine. It is difficult, on this record, to
claim that this new standard was not of general applicability, or does not set policy for the
future.
Coury argues that granting him a stretch certificate was merely placing a limit or
condition on the certificate as authorized by NRS 706.391(4) and (5). The commission's
granting of authority to operate a special kind of limousine, a stretch as distinguished from
a "formal" limousine is far more than a mere limitation on the operation of limousines, it
is a specific grant of authority to operate a special, previously undefined kind of
limousine.
____________________
additional space for passengers without the need for a bench or fold-up seat, in contrast to the more
common formal limousine. A vehicle of this type contains such luxury amenities as: a television, radio,
tape player, privacy partions [sic], moonroof, bar set-up, ice compartment and other like features.
distinguished from a formal limousine is far more than a mere limitation on the operation
of limousines, it is a specific grant of authority to operate a special, previously undefined kind
of limousine. This is different from a mere limit or condition. A good example of a limitation
or condition would be the restriction denying approach to the McCarran airport. This is the
type of limitation or condition which properly can be imposed on a certificate under the
statute and cases cited by Coury.
[Headnote 2]
The commission argues that its new definition of this distinct kind of limousine is merely
part of a decision in a contested matter and is of no prospective or general applicability.
We stated in Public Service Comm'n v. Southwest Gas Corp., 99 Nev. 268, 662 P.2d 624
(1983):
A regulation is a rule, standard, directive or any statement of general applicability
which effectuates or interprets policy of the agency concerned. NRS 233B.038.
Although the order changing Southwest's rate design is directed to Southwest only, it
certainly has a general applicability which affects other gas utilities and their
customers. Also, the decision to flatten Sierra's rates appears from the record to be
part of a general policy to move to full volumetric pricing for all utilities. The order is
of such major policy concern and of such significance to all utilities and consumers that
it cannot be characterized as a simple adjudication in a contested case and thus outside
of the statutory definition of a regulation. See NRS 233B.038(1).
99 Nev. at 273; 662 P.2d at 627.
Certainly, if the commission ultimately defines a new kind of vehicle and recognizes the
possibility of allowing new stretch limousine service, others in addition to Coury may be
interested in sharing this new market.
Taking language from the Southwest Gas case, such an order would be of such major
policy concern and of such significance to all limousine operators, present or future, that it
could not be characterized as a simple adjudication in a contested case and thus outside of the
statutory definition of a regulation. We therefore hold that the district court did not err in
setting aside the certificate to operate a stretch limousine on the ground that the commission's
defining and certifying such a vehicle constituted ad hoc rulemaking contrary to the
administrative procedure act.
Notice
[Headnote 3]
It also appears that the district court was correct in ruling that the order of the
commission should be invalidated because of improper notice having been given to the
public and the intervenors, respondents herein.
the order of the commission should be invalidated because of improper notice having been
given to the public and the intervenors, respondents herein.
Notice in this case is wanting in almost every respect. For some inexplicable reason the
commission failed almost entirely to comply with the requirements of NRS 233B.121.
2
The
notice provides no short and plain statement of the matters asserted, no statement of the
nature of the hearing, no statement of legal authority under which the hearing was to be held,
no statement of the issues and no reference to particular sections of statutes and regulations
involved. The district court did not err in invalidating the non-conforming notice given in this
case.
It is true that we have held in Nevada State Apprenticeship Council v. Joint
Apprenticeship and Training Committee for the Electrical Industry, 94 Nev. 763, 587 P.2d
1350 (1978), that where parties are sufficiently apprised of the nature of the proceedings
so that there is no unfair surprise, facially improper notice may in some cases be upheld.
____________________

2
NRS 233B.121 provides:
233B.121 Notice of hearing in contested case; contents of record.
1. In a contested case, all parties must be afforded an opportunity for hearing after reasonable notice.
2. The notice must include:
(a) A statement of the time, place and nature of the hearing.
(b) A statement of the legal authority and jurisdiction under which the hearing is to be held.
(c) A reference to the particular sections of the statutes and regulations involved.
(d) A short and plain statement of the matters asserted. If the agency or other party is unable to state
the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the
issues involved. Thereafter, upon application, a more definite and detailed statement must be furnished.
3. Any party is entitled to be represented by counsel.
4. Opportunity must be afforded all parties to respond and present evidence and argument on all
issues involved. An agency may by regulation authorize the payment of fees and reimbursement for
mileage to witnesses in the same amounts and under the same conditions as for witnesses in the courts of
this state.
5. Unless precluded by law, informal disposition may be made of any contested case by stipulation,
agreed settlement, consent order or default. If an informal disposition is made, the parties may waive the
requirement for findings of fact and conclusions of law.
6. The record in a contested case must include:
(a) All pleadings, motions and intermediate rulings.
(b) Evidence received or considered.
(c) A statement of matters officially noticed.
(d) Questions and offers of proof and objections, and rulings thereon.
(e) Proposed findings and exceptions.
(f) Any decision, opinion or report by the hearing officer presiding at the hearing.
7. Oral proceedings, or any part thereof, must be transcribed on request of any party.
8. Findings of fact must be based exclusively on substantial evidence and on matters officially
noticed.
where parties are sufficiently apprised of the nature of the proceedings so that there is no
unfair surprise, facially improper notice may in some cases be upheld. The crucial question in
making a determination in these kinds of cases is whether there has been an adequate
opportunity to prepare.
In the case before us the notice is so completely defective as to justify the district court's
finding of invalidity on this ground alone. It cannot be fairly said that any of the intervenors
had an adequate opportunity to oppose an application, conceived after the hearing
commenced, to operate a service for freshly defined stretch limousines to be employed in the
development of an entirely new market.
We need not consider appellants' other assignments of error as the district court was
clearly correct in setting aside the commission order. The district court's judgment is
affirmed.
____________
102 Nev. 308, 308 (1986) Cheyenne Construction v. Hozz
CHEYENNE CONSTRUCTION, INC., a Nevada Corporation; DAVID W. BINGHAM;
KATHIE E. BINGHAM; and ST. PAUL FIRE AND MARINE INSURANCE
COMPANY, a Corporation, Appellants, v. MORRIS HOZZ, Respondent.
No. 16243
June 26, 1986 720 P.2d 1224
Appeal from judgment in action for breach of contract. Eighth Judicial District Court,
Clark County; Robert G. Legakes, Judge.
Mobile home park owner brought action against contractor for breach of contract for
paving work at park, and contractor filed counterclaim for payment due for work completed.
The district court awarded owner the cost of an asphalt overly required to remedy contractor's
breach of the contract and awarded contractor the contract price for the work performed.
Contractor appealed. The Supreme Court held that: (1) factual findings were supported by the
evidence; (2) refusal to qualify, as an expert, witness who was not a licensed engineer was not
an abuse of discretion; (3) testimony by owner's attorney did not waive attorney-client
privilege as to whether attorney advised owner not to repair damaged paved areas; (4)
calculation of cost to correct paving defects as of time of trial, rather than time of breach, was
not error; but (5) owner was improperly awarded a double recovery of damages.
Affirmed in part and remanded.
Gordon C. Richards, Las Vegas, Heaton, Doescher & Owen, Carson City, for Appellants.
Jolley, Urga & Wirth and Troy Peyton, Las Vegas, for Respondent.
1. Contracts.
Findings that contractor was responsible for delay in paving work at mobile home park, that contractor
breached contract for paving work by failing to apply part of prime coat, failing to apply seal coat, and
using type of gravel other than that specified in contract, and that asphalt overly would make paving
conform to its expected state of durability were supported by the evidence, in action by park owner against
contractor for breach of paving contract.
2. Evidence.
Decision concerning competency of witness to offer opinion as expert is within sound of discretion of
trial court. NRS 50.275.
Ruling as to competency of witness to offer opinion as an expert will not be disturbed unless clear abuse
of trial court's discretion is shown. NRS 50.275.
4. Evidence.
Refusal to qualify as an expert a witness who was not a licensed engineer was not an abuse of discretion,
in action for breach of contract for paving work at mobile home park. NRS 50.275.
5. Witnesses.
If there is disclosure of privileged communications, such disclosure waives remainder of privileged
consultation between attorney and client on the same subject. NRS 49.095.
6. Witnesses.
Acts or services which are performed by attorney for his client in course of employment and are
accessible to others or to public do not fall within attorney-client privilege, in that no private
communication is involved NRS 49.095, 49.385.
7. Witnesses.
Testimony by attorney for a mobile home park owner, regarding attorney's dealings with contractor in
respect to construction, repair work, and payment involving paving project, did not concern acts which
were private communications within attorney-client privilege and, thus, did not waive attorney-client
privilege as to whether attorney advised park owner not to repair damaged paved areas. NRS 49.095,
49.385.
8. Damages.
Where special circumstances show proximate damages of amount greater than that which existed on date
of breach of contract, date different from time of breach may be fixed for establishing damages.
9. Damages.
Calculation of cost to correct paving defects as of time of trial, rather than time of breach of contract by
contractor for paving work at mobile home park, was not error.
10. Damages.
Where there has been partial performance, contractor is entitled to recover total price promised less cost
of completing performance and other consequential damages.
11. Damages.
Measure of owner's damages for contractor's partial performance of construction contract is sum that will
put owner in as good a position as if contract had been fully performed.
12. Damages.
Mobile home park owner improperly received double recovery for contractor's partial performance of
contract for paving work at park, where sum awarded to contractor for its partial performance of contract
was reduced sums allocable to missing prime and seal coats, and owner's award of damages was increased
to cover the costs of the same two treatments.
OPINION
Per Curiam:
The Facts
Appellant Cheyenne Construction, Inc. (Cheyenne) and respondent Morris Hozz entered
into a contract in which appellant agreed to perform paving work at respondent's mobile
home park. The contract specified that the subsoil on which the pavement was to be applied
was to be compacted to a specified degree and depth; the gravel bases were to be compacted
to another specified degree. Cheyenne utilized a different type of gravel than that specified in
the contract. Cheyenne also failed to apply part of a prime coat specified in the contract and
failed to apply a seal coat as required by the contract. Portions of the paving thereafter
subsided and cracked and the gravel base ravelled away from the concrete surface.
Respondent sued for breach of contract and Cheyenne counterclaimed for payment due for
work completed. At trial, respondent's geotechnical engineer testified that the subbase and
gravel base were below the compaction level required by the contract and concluded that poor
compaction caused the subsidence and ravelling. The engineer expressed the opinion that the
foregoing deficiencies would reduce the life of the paving work to approximately one-half its
normal expected life. The engineer recommended that an asphalt overlay be applied to the
surface so that the paving would conform to its expected state of durability.
The district court found that the failure both to apply the seal coat and part of the prime
coat and to use the specified type of gravel constituted breach of contract. The court also
found that the failure to achieve adequate compaction constituted both a breach of contract
and the cause of the ravelling and subsidence. The court awarded respondent the cost of an
overlay to remedy the ravelling and subsidence and awarded Cheyenne the contract price for
the work performed. This appeal followed.
Discussion
[Headnote 1]
Cheyenne claims that the factual findings are unsupported by the evidence. We disagree.
Respondent's testimony of delays in performance of the contract supports the court's finding
that Cheyenne was responsible for delay in construction. Udevco, Inc. v. Wagner, 100 Nev.
185, 678 P.2d 679 (1984). The findings that Cheyenne breached the contract by failing to
apply part of the prime coat, failing to apply the seal coat, and using a type of gravel other
than that specified in the contract are also supported by the testimony. Id. The testimony of
respondent's expert engineer established that in many areas there was a compaction level of
less than that specified in the contract. Respondent's expert engineer's testimony that the
overlay would cure the ravelling problem, would fill in the cracks, and provide a stronger
structural section supports the district court's finding that the overlay would remedy the
breach.
[Headnotes 2-4]
Cheyenne next contends that the district court erred in refusing to qualify its witnesses as
experts because the witnesses were not licensed engineers. A decision concerning the
competency of a witness to offer an opinion as an expert is within the sound discretion of the
trial court and the ruling will not be disturbed unless a clear abuse of the court's discretion is
shown. NRS 50.275; Provence v. Cunningham, 95 Nev. 4, 7, 588 P.2d 1020, 1021 (1979);
Cardinal v. Zonneveld, 89 Nev. 403, 514 P.2d 204 (1973). Many courts, including this Court,
permit witnesses to testify as experts based on the witness' practical experience. McKiernan
v. Caldor, Inc., 438 A.2d 865 (Conn. 1981). However, it was within the district court's
discretion to refuse to qualify appellant's witness as an expert where, among other factors, he
was not a licensed engineer. Cardinal v. Zonneveld, 89 Nev. at 407, 514 P.2d at 206.
[Headnotes 5, 6]
Cheyenne also argues that the district court erred in refusing to require respondent's
attorney to testify over an attorney-client privilege objection concerning whether respondent's
attorney advised respondent not to repair damaged paved areas. Cheyenne contends
respondent waived the privilege by calling his attorney to the witness stand. The client has a
privilege to refuse to disclose and to prevent any other person from disclosing confidential
communications between himself and his lawyer. NRS 49.095; Tahoe Regional Planning
Agency v. McKay, 769 F.2d 534, 539-540 (9th Cir. 1985). If there is disclosure of privileged
communications, this waives the remainder of the privileged consultation on the same
subject.
communications, this waives the remainder of the privileged consultation on the same
subject. However, acts or services performed by an attorney for his client in the course of
employment and which are accessible to others or to the public do not fall within the privilege
because no private communication is involved. NRS 49.385; Arkansas National Bank v.
Cleburne County Bank, 525 S.W.2d 82, 84 (Ark. 1975).
[Headnote 7]
Respondent's attorney testified regarding his dealings with Cheyenne in respect of the
construction, repair work and payment involving the project. Respondent's attorney's
testimony therefore concerned acts that were neither private communications nor within the
attorney-client privilege. Arkansas National Bank v. Cleburne County Bank, 525 S.W.2d at
84. Therefore, the attorney did not testify concerning privileged communications which
waived disclosure of the remainder of the privileged communication on the same topic.
However, respondent's attorney's advice to respondent would be an unrelated privileged
confidential communication. Moreover, Cheyenne has not demonstrated how the exclusion of
evidence regarding advice not to repair was relevant or how the exclusion of the evidence was
prejudicial. The district court did not err in excluding the testimony.
[Headnotes 8, 9]
Cheyenne next claims that the district court erred in calculating the cost to correct the
paving defects as of the time of trial. Where special circumstances show proximate damages
of an amount greater than existed on the date of the breach, a date different than the time of
breach may be fixed for establishing damages. Fairway Builders, Inc. v. Malouf, Etc. 603
P.2d 513, 526 (Ariz.Ct.App. 1979) (measure of the damages for breach of a construction
contract as of the time of trial). There was no error.
[Headnotes 10-12]
Finally, Cheyenne complains that by reducing the amount of its award on the counterclaim
by sums allocable to the missing prime and seal coats and increasing respondent's award to
cover the costs of the same treatments constitutes a double recovery by respondent. We agree.
Where there has been partial performance, a contractor is entitled to recover the total price
promised less the cost of completing performance and other consequential damages. Fleming
v. Twine, 58 A.2d 498, 499-500 (D.C. 1948). Thus the deduction from Cheyenne's award for
the uncompleted application of the prime and seal coats was proper. The measure of the
owner's damages is the sum that will put him in as good a position as if the contract had been
fully performed. Fleming v. Twine, 58 A.2d at 499-500. The court awarded respondent the
cost of the overlay, which also included a cost component covering the application of
prime and seal coats.
cost of the overlay, which also included a cost component covering the application of prime
and seal coats. Respondent was not entitled to be placed in a better position because of the
breach than he would have enjoyed had the contract been performed. Here, by reducing
Cheyenne's award to cover the missing prime and seal coats, and then awarding damages to
respondents to cover the application of the same two treatments, resulted in respondent
receiving the benefit for said treatments without cost. This was improper and constituted an
unwarranted advantage to respondent. Accordingly, upon remand, the district court will have
to determine the cost of repairing the defects, less the cost of the application of one-half of the
prime coat and the seal coat.
Cheyenne's remaining contentions have been considered and are without merit.
1

Disposition
We remand this case to the district court for a re-determination of respondent's damages as
noted above and for entry of judgment in accordance therewith. In all other respects the
judgment of the district court is affirmed.
____________________

1
The district court dismissed the complaint as to the individual appellants David W. Bingham and Kathie E.
Bingham. The district court entered judgment against Cheyenne's bonding company, St. Paul Fire and Marine
Insurance Company. David W. Bingham, Kathie E. Gingham and St. Paul Fire and Marine Insurance Company
have not raised any contentions on appeal.
____________
102 Nev. 313, 313 (1986) Garton v. City of Reno
GEORGE HENRY GARTON, Appellant, v. THE
CITY OF RENO, NEVADA, Respondent.
No. 16664
June 26, 1986 720 P.2d 1227
Appeal from district court order and judgment granting respondent's motion for
involuntary dismissal. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Action was brought against arresting officer for false arrest, false imprisonment and
excessive force. The district court granted officer's motion for involuntary dismissal, and
plaintiff appealed. The Supreme Court held that: (1) evidence focusing on procedural
irregularities of and damages occasioned by plaintiff's arrest did not make out prima facie
case of false arrest or false imprisonment, in light of lack of evidence addressing issue of
legal cause or justification, but {2) evidence established prima facie case of excessive
force.
legal cause or justification, but (2) evidence established prima facie case of excessive force.
Affirmed in part; reversed in part; remanded.
William Whitehead, Reno, for Appellant.
Shamberger, Georgeson, McQuaid & Thompson, Reno, for Respondent.
1. False Imprisonment.
Plaintiff in false arrest/false imprisonment case need not prove lack of probable cause for arrest as part of
his prima facie case.
2. False Imprisonment.
Evidence focusing on procedural irregularities of and damages occasioned by plaintiff's arrest did not
make out prima facie case of false arrest or false imprisonment, in light of lack of evidence addressing
issue of legal cause or justification.
3. Assault and Battery.
Evidence that arresting officer hit and kicked plaintiff, that result of force applied was that plaintiff had to
see physician who prescribed muscle relaxers for his back and that plaintiff did not resist arresting officer
established prima facie case of excessive force.
OPINION
Per Curiam:
On April 22, 1981, police officers arrested appellant for a crime he had not committed.
Appellant sued respondent for false arrest, false imprisonment, and excessive force. This is an
appeal from a district court order and judgment granting respondent's motion for involuntary
dismissal pursuant to NRCP 41(b) of appellant's causes of action against respondent.
A district court may grant a NRCP 41(b) motion for involuntary dismissal when,
interpreting the evidence presented at trial in the light most favorable to plaintiff, upon the
facts and the law the plaintiff has failed to prove a sufficient case for the court or jury.
Culley v. County of Elko, 101 Nev. 838, 841, 711 P.2d 864, 866 (1985).
[Headnotes 1, 2]
Appellant first argues that the district court erred in involuntarily dismissing his false
arrest and false imprisonment causes of action. We disagree. In order to defeat respondent's
NRCP 41(b) motion for involuntary dismissal of these causes of action, appellant had to have
made out a prima facie case of false arrest and false imprisonment. Culley, supra. To
establish false imprisonment of which false arrest is an integral part, it is . . .
necessary to prove that the [plaintiff was] restrained of his liberty under the probable
imminence of force without any legal cause or justification.' Marschall v. City of Carson, 86
Nev. 107, 110, 464 P.2d 494 (1970). Hernandez v. City of Reno, 97 Nev. 429, 433, 634 P.2d
668 (1981) (emphasis added). In his case-in-chief, appellant introduced scant evidence
addressing the issue of the legal cause or justification, Hernandez, supra,
1
of his arrest.
Appellant's case-in-chief focused, instead, on the procedural irregularities of and damages
occasioned by his arrest. Interpreting this evidence in the light most favorable to appellant,
Culley, supra, we hold that appellant did not make out a prima facie case of false arrest and
false imprisonment. Therefore, the district court did not err in involuntarily dismissing
appellant's false arrest and false imprisonment causes of action.
[Headnote 3]
Appellant next argues that the district court erred in involuntarily dismissing his excessive
force cause of action. We agree. In order to defeat respondent's NRCP 41(b) motion for
involuntary dismissal of this cause of action, appellant had to have made out a prima facie
case of excessive force. Appellant testified that the arresting officers hit and kicked him and
that, as a result, he had to see a physician, who prescribed muscle relaxers for his back.
Appellant testified that he did not resist the arresting officers. No evidence contradicted
appellant's testimony. Interpreting this evidence in the light most favorable to appellant,
Culley, supra, we hold that appellant made out a prima facie case of excessive force.
Therefore, the district court erred in involuntarily dismissing appellant's excessive force cause
of action.
We reverse and remand the case to the district court for a new trial.
____________________

1
Respondent suggests that the requirement enunciated in Hernandez that a plaintiff in a false arrest/false
imprisonment case prove that he was restrained of his liberty without any legal cause or justification as part of
his prima facie case means that such a plaintiff must prove lack of probable cause for arrest as part of his prima
facie case. Respondent is mistaken. It is well established that a plaintiff in a false arrest/false imprisonment case
need not prove lack of probable cause for arrest as part of his prima facie case. Strozzi v. Wines, 24 Nev. 389,
398 (1899); Annot., 137 A.L.R. 504 (1942); Annot., 19 A.L.R. 671 (1922).
____________
102 Nev. 316, 316 (1986) Aesoph v. State
GERALD JOSEPH AESOPH, Appellant, v.
No. 16540
June 26, 1986 721 P.2d 379
Appeal from a judgment of conviction for first degree murder, burglary and robbery with
use of a deadly weapon. Fifth Judicial District Court, Nye County; J. Charles Thompson,
Judge.
Defendant was convicted in district court of, inter alia, first degree murder, and he
appealed. The Supreme Court held that: (1) death qualification of jury did not violate
defendant's constitutional rights to impartial jury and to fair and impartial trial; (2)
preliminary hearing testimony of physician who conducted autopsy on victim was admissible
where physician was unavailable at time of trial; (3) prosecutor committed reversible error by
commenting on defendant's post-arrest and post-Miranda silence; and (4) prosecutor's
injection of his personal beliefs and opinions during closing arguments constituted
prosecutorial misconduct.
Goodman, Terry, Stein & Quintana and William H. Smith, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; A. D. Demetras, District Attorney, Nye
County, for Respondent.
1. Jury.
Murder defendant failed to meet his burden of showing nonneutrality of death qualified jury which
convicted him.
2. Jury.
Defendant's right to jury selected from representative cross-section of community does not extend to petit
jury itself, as opposed to jury panels or venires. U.S.C.A.Const. Amends. 6, 14.
3. Jury.
Murder defendant's constitutional right to fair trial was not violated by removal for cause, prior to guilt
phase of bifurcated capital trial, of prospective jurors whose opposition to death penalty was so strong that
it would have prevented or substantially impaired the performance of their duties as jurors as sentencing
phase of trial. U.S.C.A.Const. Amends. 6, 14.
4. Criminal Law.
Physician's preliminary hearing testimony, concerning autopsy of victim, was admissible at trial where
murder defendant was represented by counsel at preliminary hearing, counsel cross-examined physician
and physician was unavailable at time of trial. NRS 171.198, subd. 7.
Prosecutor's comment on murder defendant's post-arrest and post-Miranda silence violated defendant's
right against self-incrimination and defendant's due process right to fair and impartial trial, and constituted
reversible error in prosecution based on circumstantial evidence where defendant's
credibility before jury was crucial to his defense.
reversible error in prosecution based on circumstantial evidence where defendant's credibility before jury
was crucial to his defense. U.S.C.A.Const. Amends. 5, 14.
6. Criminal Law.
Prosecutor's injection of his personal beliefs and opinions during closing arguments constituted
prosecutorial misconduct which, when cumulated with prejudicial impact of prosecutor's improper
comments during trial, warranted reversal.
OPINION
Per Curiam:
Following a jury trial, appellant Gerald Aesoph was convicted of first degree murder,
burglary and robbery with use of a deadly weapon. After review of Aesoph's assignments of
error, we conclude that prosecutorial misconduct constituted reversible error. Accordingly,
we reverse and remand for a new trial.
THE FACTS
On the evening of April 28, 1982, Gerald Aesoph shot and killed William Apfel, aka Bill
Martin, in Apfel's home. At trial, Aesoph claimed that he shot Apfel in self-defense. The state
argued that Aesoph committed premeditated murder. Except for Aesoph, there were no
witnesses to the actual shooting. Thus, Aesoph's defense depended heavily upon his
credibility before the jury.
After shooting Apfel, Aesoph forced Beverly Blair Bruce (Blair), Apfel's live-in lover, to
accompany him to the Coach House Bar. Apfel owned the Coach House Bar and the
Shamrock brothel which were located adjacent to Aesoph's residence in Lathrop Wells,
Nevada. At the Coach House Bar, Aesoph ordered Blair to get money out of the safe. Aesoph
testified that Apfel owed him money and that Aesoph believed the money belonged to him.
Aesoph and Blair then got into his car and headed south. The police apprehended and
arrested Aesoph shortly thereafter.
The jury found Aesoph guilty of first degree murder, burglary and robbery with use of a
deadly weapon. During the penalty phase, the jury rejected the imposition of the death penalty
and sentenced Aesoph to life with the possibility of parole for the murder conviction. The
district court then sentenced Aesoph for the remaining convictions. Aesoph appeals the
judgment of conviction.
QUALIFICATION OF JURORS IN A
DEATH PENALTY CASE
Prior to trial, the state filed a notice to seek imposition of the death penalty. During voir
dire all members of the venire were asked whether, upon a finding of guilty, they would
be able to consider the death penalty as a possible punishment, i.e., the jury was "death
qualified."
death penalty. During voir dire all members of the venire were asked whether, upon a finding
of guilty, they would be able to consider the death penalty as a possible punishment, i.e., the
jury was death qualified. The district court excluded for cause a prospective juror who
stated that he could not impose the death penalty. On appeal, Aesoph argues that the death
qualification of the jury deprived him of an impartial jury and a fair trial in violation of the
sixth and fourteenth amendments. Aesoph's argument is two-pronged.
[Headnote 1]
First, Aesoph contends that a death qualified jury is more likely to be conviction-prone.
Aesoph contends that this violated his right to an impartial jury.
1

In McKenna v. State, 101 Nev. 338, 705 P.2d 614 (1985), cert. denied, 106 S.Ct. 868
(1986) we held that under Witherspoon v. Illinois, 391 U.S. 510 (1968), we are not required
to presume that a death qualified jury is biased in favor of the prosecution. The accused has
the burden of establishing the nonneutrality of the jury. McKenna, 101 Nev. at 344. Aesoph
failed to meet his burden of proof to establish the nonneutrality of the jury who convicted
him. Summers v. State, 102 Nev. 195, 718 P.2d 676 (1986). McKenna, 101 Nev. at 344.
Aesoph next contends that the removal for cause of persons of a distinct and sizable group,
the Witherspoon-excludables, i.e., persons who because of their attitudes and beliefs are
unalterably opposed to the death penalty, violated his rights under the sixth and fourteenth
amendments to a jury selected from a representative cross-section of the community.
2
Aesoph argues that this systematic exclusion of Witherspoon-excludables violated his right
to an impartial jury.
[Headnote 2]
We recognize that a defendant has a right to a jury selected from a representative
cross-section of the community. See Lockhart v. McCree, ..... U.S. ....., 106 S.Ct. 1758, 1764
(1986). But this fair cross-section requirement does not extend to the petit jury itself, as
opposed to jury panels or venires.
____________________

1
Aesoph does not assert that the canvass and death qualification of the jury and exclusion of any
prospective juror was not conducted pursuant to the standards established by Wainwright v. Witt, ..... U.S. .....,
105 S.Ct. 844 (1985) and Witherspoon v. Illinois, 391 U.S. 510 (1968). Rather, Aesoph's objection is to the
death qualification per se of any prospective juror during the guilt phase of trial.

2
In his arguments, Aesoph refers to this type of prospective juror by the term Witherspoon-excludables.
We will refer to this particular group by this term in this opinion. Lockhart v. McCree, ..... U.S. ....., 106 St.Ct.
1758, 1761, fn. 1 (1986).
jury itself, as opposed to jury panels or venires. Lockhart, 106 S.Ct. at 1764-1765.
Even if this requirement did extend to petit juries, death qualification would not violate
that requirement. Lockhart, 106 S.Ct. at 1765. The basis for the removal for cause of a
Witherspoon-excludable is an attitude or belief, within the individual's control, which
prevents or substantially impairs members of this group from performing one of their duties
as jurors. Lockhart, 106 S.Ct. at 1766. The right to a representative jury does not include the
right to be tried by jurors who have explicitly indicated an inability to follow the law and
instructions of the trial judge. Lockhart, 106 S.Ct. at 1766; Lockett v. Ohio, 438 U.S. 586,
597 (1978). Groups, such as the Witherspoon-excludables, which are defined solely in
terms of shared attitudes that would prevent or substantially impair members of the group
from performing one of their duties as jurors, are not distinctive groups for fair
cross-section purposes. Lockhart, 106 S.Ct. at 1765. Thus, exclusion of prospective jurors
who fall into such a group does not contravene any of the basic objectives of the fair
cross-section requirement. Lockhart, 106 S.Ct. at 1766. We hold that death qualification
does not violate the fair cross-section requirement. Id.
[Headnote 3]
We hold that a person's constitutional right to a fair trial is not violated by the removal for
cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose
opposition to the death penalty is so strong that it would prevent or substantially impair the
performance of their duties as jurors at the sentencing phase of trial. Lockhart v. McCree, 106
S.Ct. 1758 (1986). The death qualification of the jury did not violate Aesoph's
constitutional rights to an impartial jury and to a fair and impartial trial.
PRELIMINARY HEARING TESTIMONY
[Headnote 4]
Aesoph contends that the admission at trial of a witness's preliminary hearing testimony
violated his constitutional right to confront witnesses. We disagree.
At the preliminary hearing, Dr. Green, the pathologist who performed Apfel's autopsy,
testified as to the nature of Apfel's gunshot wounds and cause of death. Aesoph was
represented by counsel who cross-examined Dr. Green. Aesoph concedes that Dr. Green was
actually unavailable at the time of trial.
NRS 171.198(7) governs the admissibility of preliminary hearing testimony at trial.3 In
Drummond v. State, S6 Nev. 4
ing testimony at trial.
3
In Drummond v. State, 86 Nev. 4, 462 P.2d 1012 (1970), we
enunciated three preconditions that must be met before a witness's preliminary hearing
testimony may be received in evidence during trial: first, that the defendant was represented
by counsel at the preliminary hearing; second, that counsel cross-examined the witness; third,
that the witness is shown to be unavailable at the time of trial. All three of these preconditions
were met in the case at bar. Moreover, we observe that Dr. Green's preliminary hearing
testimony was a thorough account of his autopsy findings and pathology report. The cause
and manner of death was not at issue at trial. Thus, Aesoph failed to demonstrate any
prejudice at trial as a result of the admission of Dr. Green's preliminary hearing testimony.
We conclude that Aesoph's argument lacks merit. The district court properly allowed the
use of the preliminary hearing testimony at trial pursuant to NRS 171.198(7)
PROSECUTORIAL MISCONDUCT
Next we consider whether Aesoph's fifth amendment right against self-incrimination and
his fourteenth amendment due process right to a fair and impartial trial were violated. During
the state's case-in-chief, the prosecutor elicited the testimony of police officers that after they
had arrested Aesoph and had given him the warnings required by Miranda v. Arizona, 384
U.S. 436 (1966) that Aesoph chose to exercise his constitutional right to remain silent.
4
In
addition to focusing the jury's attention on Aesoph's election of his right to remain silent,
the prosecutor's questioning and later comments also served to impeach Aesoph's
credibility.5
____________________

3
The testimony so taken may be used:
(a) By the defendant; or
(b) By the state if the defendant was represented by counsel or affirmatively waived his right to
counsel,
upon the trial of the cause, and in all proceedings therein, when the witness is sick, out of the state, dead,
or when his personal attendance cannot be had in court.

4
On three separate occasions, the prosecutor elicited testimony concerning Aesoph's post-arrest,
post-Miranda silence. The impermissibility of the prosecutor's line of questioning is exemplified by the
following exchange:
Q: Did you give him any Miranda rights?
A: Yes, I did. I read him his Miranda rights.
Q: Had he said anything prior to the time that you found the money? Did he
A: After I had read him his rights, he indicated that he wanted an attorney and did not wish to speak to
us.
Q: Okay. What were the Miranda warnings that you gave him? Do you recall?
A: What were they?
Q: Yes. Can you repeat them?
* * * *
A: You have the right to remain silent. Anything you say can and will be used against you in a Court
of law.
You have the right to talk to a lawyer and have him present with you
Aesoph's election of his right to remain silent, the prosecutor's questioning and later
comments also served to impeach Aesoph's credibility.
5

[Headnote 5]
It is constitutionally impermissible to admit evidence of a defendant's invocation of his
fifth amendment right to remain silent. Miranda v. Arizona, 384 U.S. 436, 468 fn. 37 (1966).
See also, McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984); Franklin v. State, 98 Nev.
266, 646 P.2d 543 (1982). Moreover, prosecutorial comment on a defendant's post-arrest,
post-Miranda silence for substantive or impeachment purposes is constitutionally prohibited
as it violates a defendant's due process right to a fair trial. See, Wainwright v. Greenfield, .....
U.S. ....., 106 S.Ct. 634 (1986); Doyle v. Ohio, 426 U.S. 610 (1976). The implicit assurance
contained in the Miranda warnings is that silence will carry no penalty. Doyle, 426 U.S. at
618. What is impermissible is the evidentiary use of an individual's exercise of his
constitutional rights after the state's assurance that the invocation of those rights will not be
penalized. Wainwright, 106 S.Ct. at 641. We find that in addition to violating Aesoph's right
against self-incrimination, the prosecutor's use of Aesoph's post-arrest, post-Miranda silence
was fundamentally unfair and violated Aesoph's due process right to a fair and impartial
trial.
____________________
while you are being questioned. If you cannot afford to hire a lawyer, one will be one will be
appointed to represent you before any questioning, if you wish.
You can decide at any time to exercise these rights and not answer any questions or make any
statements.
And then there is the actual waiver which is: Do you understand each of these rights as I have
explained them to you and having these rights in mind, do you wish to talk to us now?
Q: Did he say anything after that?
A: He indicated he did understand his rights and he indicated he did not want to talk to us.

5
In his closing argument to the jury the prosecutor made the following vituperative comment:
The didn't have to say anything. They sit back and watch and what you have tied down, they twist.
What we have proved beyond a doubt that the bullet came out of the gun is, oh, well, sure [sic]; that the
chase ran into Inyo, was forced to a stop, because we can prove it and we did so they have to build a
defense around what we have. You have to understand this. They don't have to say anything. They could
just sit here and rap, rap, rap and complain about the bad law enforcement and fit their story to ours
because we got to go first. You got to keep that in mind.
How many times did Beverly Blair say different things? She was interrogated by Flud, I believe
Adams, I believe the other people and she had some discrepancies.
How many times was Aesoph interviewed? Any guesses? Zero.
Although the court sustained the defense counsel's objection and gave the jury a curative instruction, by this
time the prejudicial effect of the prosecutor's comments was irreparable.
lated Aesoph's due process right to a fair and impartial trial. Wainwright v. Greenfield, .....
U.S. ....., 106 S.Ct. 634 (1986); Doyle v. Ohio, 426 U.S. 610 (1976).
We are unable to conclude that this was harmless error. The issue at trial was whether or
not Aesoph shot Apfel in self-defense. The evidence was circumstantial. Aesoph's credibility
before the jury was crucial to his defense. The prosecutor's references to Aesoph's post-arrest,
post-Miranda silence were pervasively repeated throughout the trial. Absent these
prosecutorial comments, it is not clear that the jury would have reached the same verdict. We
are unable to state that the error was harmless beyond a reasonable doubt. See, Moore v.
State, 96 Nev. 220, 607 P.2d 105 (1980); Chapman v. California, 386 U.S. 18, 24 (1967).
[Headnote 6]
Aesoph further contends that the prosecutor's injection of his personal beliefs and opinions
during closing arguments constituted prosecutorial misconduct. We agree.
We have consistently held that prosecutors must not inject their personal beliefs and
opinions into their arguments to the jury. Collier v. State, 101 Nev. 473, 705 P.2d 1126
(1985); McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984); Owens v. State, 96 Nev. 880,
620 P.2d 1236 (1980). As we stated in Collier,
Such an injection of personal beliefs into the arguments detracts from the
unprejudiced, impartial, and nonpartisan role that a prosecuting attorney assumes in
the courtroom. [Citation omitted.] By stepping out of the prosecutor's role, which is to
seek justice [citation omitted], and by invoking the authority of his or her own
supposedly greater experience and knowledge, a prosecutor invites undue jury reliance
on the conclusions personally endorsed by the prosecuting attorney. [Citations omitted.]
Collier, 101 Nev. at 480.
In the case at bar, the prosecutor, continually injected his beliefs and opinions throughout
his closing arguments.
6
This could only serve to influence the jury to rely upon the
prosecutor's expertise and authority, rather than objectively weighing the evidence.
____________________

6
We observe that the prosecutor's expression of his opinions permeated his closing argument. We set forth
some of the more egregious examples:
In the instructions you will see a definition of an expert. That was Atkinson and that was his job here and he
did it in my opinion very well. . . . As the testimony proceeded through the trial, it became apparent that we had
proved that in my opinion and I found my experience when they say: Oh, well, sure, I fired the shots but I didn't
mean it, but in my opinion they would not have said that if we hadn't had Atkinson who said those bullets come
[sic] out
evidence. To permit this prosecutorial misconduct was error. Collier, 101 Nev. at 481. We
need not decide whether standing alone this prosecutorial misconduct would warrant reversal.
The cumulative effect of this misconduct aggravated the prejudicial impact of the prosecutor's
comments on Aesoph's post-arrest, post-Miranda silence and mandates reversal.
We conclude that Aesoph's constitutional right to a fair and impartial trial was violated.
Accordingly, we reverse and remand for a new trial.
____________________
of that gun. They would never have admitted that shooting. That's my opinion.
* * * *
Those other two shots, they say, self-defense, fell down [sic]. He fell down when the one hit him in the back
of the head.
Okay. Well, I don't believe that either but when he went out and came back in the house and he shoved this
Beverly Blair towards that door and fired within a distance of twelve to eighteen inches into his skull right here,
that was premeditated, deliberate and a malicious act of Murder. That's it. That's the shot that should give him
that charge. That proves it to me in my opinion beyond any doubt.
* * * *
You have to find, in my opinion, Ladies and Gentlemen, that Robbery is committed and he used that deadly
weapon to commit it, to terrorize that woman.
____________
102 Nev. 323, 323 (1986) Fava v. Hammond
SARA L. FAVA, Appellant, v. THE HAMMOND COMPANY, a California Corporation;
STATE SAVINGS AND LOAN ASSOCIATION, A California Corporation;
RENAISSANCE DEVELOPMENT CO., INC., a Nevada Corporation dba
GENERAL EQUITY MORTGAGE CO.; WARREN C. RIVERS; LINDA RIVERS;
TITLE INSURANCE & TRUST CO., a California Corporation, Respondents.
No. 16566
June 26, 1986 720 P.2d 702
Appeal from an order and judgment of dismissal pursuant to NRCP 41(b) in favor of
respondent Title Insurance & Trust Co. and a judgment in favor of respondents The
Hammond Company and State Savings and Loan Association. Eighth Judicial District Court,
Clark County; Donald M. Mosley, Judge.
Investor brought negligence action against title company which allegedly reconveyed deed
of trust and extinguished investor's priority on that deed. The district court granted
defendant's motion to dismiss, and plaintiff appealed.
motion to dismiss, and plaintiff appealed. The Supreme Court held that power of attorney
executed by investor which named real estate company as attorney-in-fact in connection with
unrelated transaction was not a general power of attorney, so that title company did not have
authority to reconvey deed of trust and extinguish investor's original priority.
R. L. Rickdall, Las Vegas, for Appellant.
Monsey, Andrews & Reed, Las Vegas, for Respondents, The Hammond Company and
State Savings and Loan Association.
Deaner & Deaner, and Susan Williams Scann, Las Vegas, for Respondent, Title Insurance
& Trust Co.
Principal and Agent.
Power of attorney executed by investor which named real estate company as attorney-in-fact in
connection with unrelated transaction was not a general power of attorney, so that title company which
acted as escrow holder did not have authority to reconvey deed of trust at instruction of real estate
company, thus extinguishing investor's original priority.
OPINION
Per Curiam:
The central issue on appeal is whether a power of attorney executed by appellant Sara L.
Fava (Fava) was a general power of attorney as a matter of law.
1
We conclude that it was
not. We reverse the district court's order granting respondent Title Insurance & Trust Co.'s
(Ticor) NRCP 41(b) motion.
On March 16, 1981, Mr. and Mrs. Fava invested $25,000 through General Equity
Mortgage (GEM). The Favas and Christian Javelly loaned a Mr. and Mrs. Rivers $45,000,
evidenced by a promissory note secured by a third deed of trust on real property located in
Clark County, Nevada. GEM was the Favas' agent. Ticor was the escrow holder.
____________________

1
Fava brought an action in negligence against respondent Title Insurance & Trust Co. (Ticor). Fava asserted
that Ticor negligently reconveyed a March 1981 deed of trust and extinguished Fava's priority on that deed of
trust. In this same action, Fava also sought declaratory relief due to Ticor's reconveyance in a dispute concerning
the priorities of deeds of trust as between respondents The Hammond Company and State Savings and Loan
Association (collectively referred to as State Savings). At the close of the declaratory relief action, the district
court entered a judgment in favor of State Savings and dismissed State Savings' cross-claim against Ticor.
In May, 1981, the Favas made an additional investment (the Christianson transaction)
through GEM. During this transaction, the Favas executed a power of attorney naming GEM
as their attorney-in-fact. The escrow holder for this transaction was a title company other than
Ticor. This power of attorney was recorded on May 20, 1981.
In the fall of 1981, the Rivers applied for a new loan. Respondents, The Hammond
Company and State Savings and Loan Association, (hereafter collectively referred to as State
Savings) agreed to loan the Rivers $175,000 on the condition that State Savings would hold a
first deed of trust on the same property that was subject to the Fava/Javelly deed of trust.
In December, 1981, the Rivers paid the monies due on the previous promissory notes,
including the Fava/Javelly note. On December 30, 1981, GEM reinvested the Favas' $25,000
in a second loan to the Rivers which was secured by a different deed of trust on the same
property.
2
Ticor was the escrow holder.
On January 12, 1982, State Savings recorded its $175,000 deed of trust. At this time the
State Savings' deed of trust was junior to the original Fava/Javelly deed of trust.
On January 13, 1982, GEM requested Ticor to issue a full reconveyance of the
Fava/Javelly deed of trust. Relying upon the original May, 1981 power of attorney executed
by the Favas, Ticor acted upon GEM instructions. On January 14, 1982, Ticor executed and
recorded a full reconveyance of the original Fava/Javelly deed of trust and extinguished
Fava's priority over State Savings' deed of trust.
Mrs. Fava testified that she did not request nor authorize the full reconveyance. Mrs. Fava
stated that she did not receive actual notice that her deed of trust had become junior to State
Savings' deed of trust until the fall of 1982 when the Rivers defaulted and declared
bankruptcy. At that time, Mrs. Fava claimed that she had not consented to Ticor's
reconveyance of the Fava/Javelly deed of trust and the extinguishment of her original priority.
Ticor's position was that the May, 1981 power of attorney was a general power of attorney
and that it clothed GEM with the necessary authority to request the full reconveyance. Mrs.
Fava asserted that the May, 1981 power of attorney was limited and executed only for the
unrelated Christianson transaction. The district court agreed with Ticor and granted its NRCP
41(b) motion to dismiss.
In reviewing such a motion to dismiss, the plaintiff's evidence and all reasonable
inferences that can be drawn from the evidence must be admitted.
____________________

2
Ticor recorded this deed of trust on January 13, 1982.
must be admitted. The evidence must be interpreted in the light most favorable to the
plaintiff. Shepard v. Harrison, 100 Nev. 178, 678 P.2d 670 (1984).
In the case at bar, the power of attorney was executed in May, 1981, six months prior to
the January, 1982 deed of trust. The power of attorney was directed to a different title
company concerning another transaction. The language utilized in the power of attorney was
in the singular: and, upon payment of the Note, a Request for Full Reconveyance.
(Emphasis added.) Mrs. Fava claimed that she did not consent to the December/January
transactions. An inference to be drawn from these facts is that the power of attorney was a
limited power of attorney and not executed by Mrs. Fava in contemplation of the subsequent
transaction. We conclude that the district court erred by granting Ticor's NRCP 41(b) motion.
It is undisputed by the parties that State Savings was an innocent party to these
transactions. State Savings had no actual or implied notice that Mrs. Fava did not consent to
Ticor's reconveyance of the Fava/Javelly deed of trust. The district court properly found in
favor of State Savings and dismissed State Savings' cross-claim against Ticor. Udevco, Inc. v.
Wagner, 100 Nev. 185, 678 P.2d 679 (1984).
We reverse the judgment of dismissal and remand for further proceedings.
3

____________________

3
We note that after the district court rendered its decision, appellant failed to seek a stay pending appeal.
Hence, the property which secured the deeds of trust was sold at a foreclosure sale. Thus, the only relief, if any,
available to Mrs. Fava is damages.
____________
102 Nev. 326, 326 (1986) Morelli v. Morelli
LISA JO MORELLI, Appellant, v. ROBERT
J. MORELLI, Respondent.
No. 16705
June 26, 1986 720 P.2d 704
Appeal from judgment of the district court granting appellant reimbursement for college
tuition by denying appellant's request for child support payment arrearages. Second Judicial
District Court, Washoe County; Robert Schouweiler, Judge.
Child brought action to enforce property settlement agreement incorporated as part of
divorce decree. The district court determined that child lacked standing to enforce payment of
child support arrearages and that former husband was responsible for costs of child's tuition.
costs of child's tuition. Child appealed. The Supreme Court held that: (1) child was third party
beneficiary of agreement and had standing to enforce payment of child support arrearages; (2)
property settlement agreement obligated former husband to make child support payments
until child who was attending college reached twenty-two years of age; and (3) former
husband was obligated to pay overdue tuition.
Edward B. Horn, Reno, for Appellant.
Bradley & Drendel and Thomas Drendel, Reno, for Respondent.
1. Contracts.
Child who was intended third party beneficiary of settlement agreement which was ratified, approved,
and incorporated as part of divorce decree had standing to enforce provisions which obligated former
husband to pay child support and pay college tuition until age twenty-two for child receiving C average
or better.
Property settlement agreement which was ratified, approved, and incorporated as part of divorce decree
and which required former husband to pay child support until child reached age twenty-two, if child
attended college and maintained at least a C average, required payment of child support until age
twenty-two by former husband who allegedly did not know of child's college attendance as result of former
husband's desire not to communicate with child.
Child, who was third party beneficiary of property settlement agreement which was ratified, approved,
and incorporated as part of divorce decree and which required payment of child's tuition for college as
husband and wife reasonably agreed, did not step into shoes of former wife after wife's death, and
therefore, was entitled to payment of tuition costs without reasonable agreement as to college most
appropriate for child.
4. Interest.
Child who was entitled to child support arrearages and overdue tuition pursuant to property settlement
agreement which was ratified, approved, and incorporated as part of divorce decree and which required
payment of child support and tuition owed to child was entitled to interest on overdue amounts.
OPINION
Per Curiam:
This appeal arises out of a settlement agreement between respondent and appellant's
mother (hereinafter wife), entered into in March 1977. The settlement agreement was later
ratified, approved and incorporated as part of the decree of divorce. That agreement
provided that respondent would pay alimony to the wife until 19S2.
agreement provided that respondent would pay alimony to the wife until 1982. The alimony
payment included funds for child support. The agreement also provided that in the event of
the wife's death or remarriage, respondent would remain obligated to pay $475 per month per
child for child support.
The agreement further specified that respondent would pay child support until each child
reached the age of majority, died, married or was emancipated, provided, however, that such
payments would continue until twenty-two years of age for each child who attended college
and maintained a C average or better.
Finally, the agreement provided that respondent would also pay the costs of tuition for
college as the parties may reasonably agree upon as the college or other school most
appropriate for attendance by such child or children.
At the time the agreement was entered into, appellant was fourteen years old. The wife
died about two years later. After living for a time with respondent, appellant decided to move
in with another family. At that time, respondent paid the family $5,400 for appellant's support
until she turned eighteen. After appellant's eighteenth birthday, respondent paid no additional
child support. Appellant started college in the fall after graduation from high school. She
always maintained better than a C average.
The district court found that respondent was responsible for the costs of appellant's tuition,
but was not responsible for child support arrearages due, in part, to appellant's lack of
standing to enforce such payment. For the reasons set forth below, we reverse and remand to
the district court.
[Headnote 1]
Appellant contends that she does have standing to enforce the provisions of the property
settlement agreement. We agree. It is clear that appellant is an intended third party beneficiary
of the agreement between her parents. Lipshie v. Tracy Investment Co., 93 Nev. 370, 566
P.2d 819 (1977). It is also clear that the agreement includes specific provisions in case of the
wife's death. Normally court are reluctant to give children standing to enforce the payment of
child support because the party directly entitled to receive such payments, usually the
custodial parent, is responsible for managing the child's financial needs and accordingly,
should and ordinarily would seek enforcement. However, courts have recognized that special
circumstances may arise that give the child standing. In Drake v. Drake, 455 N.Y.S.2d 420
(Sup.Ct.App.Div. 1982), the Supreme Court of New York addressed the case of a child who
sued to enforce the terms of a separation agreement between her parents. In that case, the
court determined that the child lacked standing, however, the court stated: We have no doubt
that circumstances may arise, such as death or disability, or outright refusal of a
contracting parent to seek enforcement of periodic support provisions for a child, which
would give a child the necessary standing to enforce the agreement.
We have no doubt that circumstances may arise, such as death or disability, or outright
refusal of a contracting parent to seek enforcement of periodic support provisions for a
child, which would give a child the necessary standing to enforce the agreement.
Id. at 424. The special circumstances giving rise to the recognition of standing in a child to
enforce an order of support exist in the case before us. We conclude that appellant has
standing.
[Headnote 2]
Respondent entered into a contract wherein he agreed to pay child support. There is no
evidence in the record of any defense that would relieve respondent of his responsibilities
under that contract. The agreement specifically provides that respondent will pay child
support until each child reaches the age of twenty-two if the child attends college and
maintains at least a C average. The evidence in the record shows that appellant fulfilled
these requirements. Generally, a contract will be interpreted in accordance with the intentions
of the parties. See Club v. Investment Co., 64 Nev. 312, 182 P.2d 1011 (1947). Nevertheless,
respondent asks this Court to uphold the decision of the trial court as to child support because
appellant did not communicate with him and he did not know she was in college. The
uncontroverted evidence reflects, however, that respondent wanted no contact from his
daughter. In Mohr Park Manor, Inc. v. Mohr, 83 Nev. 107, 424 P.2d 101 (1967), this Court
stated, an interpretation which makes the contract or agreement fair and reasonable will be
preferred to one which leads to harsh or unreasonable results. Id. at 112. To excuse
respondent of his contractual obligation due, in part, to his own desire not to have any
communication from his daughter would be unreasonable. Therefore, respondent has a
contractual duty to pay appellant $475 per month from the time she was sixteen to the time
she reached the age of twenty-two.
[Headnote 3]
Finally, the contract also provides that respondent will pay the cost of tuition for the
college or other school as the parties may reasonably agree upon as the college or other
school most appropriate for attendance by such child or children. That provision requires the
reasonable agreement of the parties. However, the parties are the husband and wife. Once the
wife died, the provision could no longer operate. Respondent contends that appellant, as a
third party beneficiary, steps into the shoes of the wife. Such an interpretation is a
misstatement of the law. A third party beneficiary who seeks to enforce a contract does so
subject to the defenses that would be valid as between the parties. Britton v. Groom, 373 P.2d
1012 {Okl.
v. Groom, 373 P.2d 1012 (Okl. 1962). However, the wife's death makes the compliance with
that provision impossibleit does not shift the responsibility to appellant. Therefore, the
district court was correct in finding that respondent is liable to appellant for the costs of her
tuition.
In accordance with the foregoing, respondent must pay $475 per month in child support
for ten months of 1979, all of 1980, all of 1981, all of 1982, all of 1983 and seven months of
1984. This amounts to 65 months at $475 per month for a total of $30,875 in child support.
Respondent paid $5,400 of the $8,075 due for appellant's support for the seventeen months
before she turned eighteen. We, therefore, conclude that respondent should receive an offset
in the amount of $5,400 against the total child support owed.
[Headnote 4]
However, when an amount is due under a contract and it is not paid when due, interest is
payable. NRS 99.040 provides:
When there is no express contract in writing fixing a different rate of interest, interest
must be allowed at the rate of 12 percent per annum upon all money from the time it
becomes due.
This means that each of the child support payments should accrue interest from the date each
payment was due.
We therefore remand this case to the district court for a determination of interest owing on
the child support arrearages and for entry of judgment consistent with this opinion.
1

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

1
Justice Cliff Young voluntarily recused himself from consideration of this case and took no part in its
disposition.
____________
102 Nev. 331, 331 (1986) BHY Trucking v. Hicks
BHY TRUCKING, INC.; ROY L. BARROW; PEARSON TRUCKING AND RIGGING,
INC., Appellants, v. JOSEPH HICKS, dba HICKS ENGINEERING CO., Respondent.
No. 16688
June 26, 1986 720 P.2d 1229
Appeal from judgment and order denying motion to amend the judgment; Second Judicial
District Court; Washoe County, James J. Guinan, Judge.
Shipper brought action against carriers for damage to heavy milling machinery exposed to
elements caused by shredding of plastic tarpaulins which had covered machinery during
transit. The district court entered summary judgment in favor of carriers, and shipper
appealed. The Supreme Court, 99 Nev. 519, 665 P.2d 253, reversed and remanded. On
remand, the district court entered judgment on a jury verdict in favor of shipper, and one
carrier appealed. The Supreme Court held that: (1) evidence supported award of damages in
favor of shipper; (2) general statute on computation of interest on judgments, rather than
statute governing interest rate when there is no express contract in writing fixing a specified
rate of interest, was applicable for purposes of computing interest; and (3) award of interest
was incorrect and had to be remanded to provide for rate of seven percent per annum assessed
on entire judgment beginning with date of entry of judgment until paid.
Barker, Gillock & Perry and Ken Bick, Reno, for Appellants Pearson and BHY Trucking,
Leeder, Sferrazza & Zeh, Reno, for Appellant Roy L. Barrow.
Durney & Brennan, Reno, for Respondent.
1. Interest.
General statute on computation of interest on judgments, rather than statute governing interest rate when
there is no express contract in writing fixing the rate of interest, applied to action by shipper for damage to
heavy milling machinery exposed to elements caused by shredding of plastic tarpaulins which covered
machinery during transit, in that damages awarded to shipper did not relate to any sum due pursuant to a
promise of performance under the shipping contract. NRS 17.130, 99.040.
2. Interest.
Neither 1979 amendment nor 1981 amendment to general statute on computation of interest on
judgments applied to action in which complaint was filed on February 9, 1979, before either of the
amendments became effective; thus, award of interest on judgment, which distinguished between
prejudgment interest and post-judgment interest and between past and future damages was
incorrect and had to be remanded to provide for rate of seven percent per annum
assessed on entire judgment beginning with date of entry of judgment until paid.
between past and future damages was incorrect and had to be remanded to provide for rate of seven percent
per annum assessed on entire judgment beginning with date of entry of judgment until paid. NRS 17.130.
OPINION
Per Curiam:
This is the second time these parties have been before this court. In Hicks v. BHY
Trucking, 99 Nev. 519, 665 P.2d 253 (1983), this court reversed a summary judgment in
favor of BHY Trucking, Inc., (BHY) and all other defendants. After trial on the merits, the
district court entered judgment on a jury verdict in favor of Joseph Hicks, dba Hicks
Engineering Co. (Hicks). BHY, Pearson, and Barrow now bring this appeal.
Respondent Hicks contracted with appellant Pearson Trucking and Rigging, Inc. (Pearson)
to transport heavy milling machinery from Burbank, California to Reno, Nevada. Pearson
then contracted with BHY Trucking to have the machinery transported to Reno. The
machinery was loaded onto BHY trucks, and Hicks was informed that the load would be
delivered to Reno by the following day. The machinery did not arrive as expected; and, when
the shipment did arrive, the machinery had been damaged by exposure to the elements caused
by shredding of the plastic tarpaulins which had covered the machines during transit.
A number of issues are raised in this appeal. We find no merit in appellants' claims that
Hicks' action was barred for failure to submit a timely claim. There is ample evidence to
support a finding of estoppel under our ruling in Hicks, above. Likewise, there is evidence to
support the jury's award of damages. It does appear, however, that the trial court erred in
applying an incorrect rate of interest on the judgment.
The judgment entered by the district court totaled $350,000.00. The court awarded
prejudgment interest at the rate of eight percent per annum on the amount of $155,000.00,
which sum represented past damages. This rate was applied from the time of service of
summons to the date of the judgment. The district court also awarded post judgment interest
on this same amount ($155,000.00) at the rate of twelve percent per annum, applicable from
the date of judgment until the judgment is paid. Finally, the district court awarded interest on
the balance of the judgment ($195,000.00) at the rate of twelve percent per annum beginning
with the date of the judgment and to be applicable until the judgment is paid. As the
$155,000.00 award was necessarily for past damages, the $195,000.00 must be considered as
an award for future damages.
[Headnote 1]
The parties disagree regarding which statute should apply to interest calculations. Hicks
contends that NRS 99.0401 applies because the action arose out of his shipping contract.
Pearson and BHY argue that NRS 17.130, the general statute on computation of interest on
judgments, applies. For the following reasons, we agree with Pearson and BHY.
Initially, we note that NRS 99.040 provides for an interest rate upon all money from the
time it becomes due. . . . The judgments awarded to Hicks have nothing to do with any
amounts due under the terms of the shipping contract. Indeed, the interest award could not
be ascertained by the court until after the jury rendered its verdict. There can, therefore, be no
due date associated with the damages in this case. Since the damages awarded to Hicks do
not relate to any sum due pursuant to a promise of performance under the shipping contract,
NRS 99.040 is not relevant to interest payable on the judgment in favor of Hicks. See
Paradise Homes v. Central Surety & Ins. Corp., 84 Nev. 109, 116, 437 P.2d 78, 83 (1968).
In Wilson v. Pacific Maxon, Inc., 102 Nev. 52, 714 P.2d 1001 (1986), we resolved an
issue similar to the one presently at bar. We note the following language in the Wilson
opinion:
Wilson claims the damages awarded in this case were not contract damages because
PMI sued to rescind the contract. Further, Wilson argues that PMI's original claims
sounded in fraud, making the damages awarded tort damages to which NRS 17.130(2)
applies. We disagree. A suit for rescission of a contract is a suit arising out of a contract
to which NRS 99.040 applies. More importantly, in an earlier opinion in this case, we
disposed of PMI's tort claims and remanded only the contract questions to the district
court. [citation omitted] Therefore, NRS 99.040 governs the award of interest in this
case.
102 Nev. 53-54, 714 P.2d at 1002.
____________________

1
99.040 Interest rate when no express written contract.
When there is no express contract in writing fixing a different rate of 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.
2. Upon the settlement of book or store accounts from the day on which the balance is ascertained.
3. Upon money received to the use and benefit of another and detained without his consent.
4. Upon wages or salary, if it is unpaid when due, after demand therefor has been made.
The provisions of this section do not apply to money owed for the construction or remodeling of a
building pursuant to NRS 624.325.
Our decision in Wilson was based on an action for rescission, which is a remedy peculiar
to contracts and not applicable to actions sounding in tort. In the present case, Hicks was
seeking general damages rather than pursuing a remedy peculiar to an action ex contractu
such as PMI elected to pursue in Wilson, above.
Additionally, Hicks' action against Pearson and BHY was for negligent performance of the
shipping contract and did not arise from a specific promise or term in the contract. The
damage caused to Hicks' machinery was the result of negligent application of the tarpaulins
which were intended to protect the machinery from the elements in transit. The duty on the
part of Pearson and BHY to use reasonable care in protecting the machinery from harm was
imposed by law rather than through specific terms or promises under the shipping contract.
We also observe that the action was pleaded in negligence as well as breach of contract. The
entire action sounds in tort rather than breach of the specific terms of the contract; the proper
statute to apply for computing interest on the judgment is NRS 17.130.
[Headnote 2]
Although it appears that the district court applied NRS 17.130 to determine interest on the
judgment,
2
Pearson and BHY correctly contend that the lower court applied interest at rates
which only came into effect by virtue of two amendments of NRS 17.130 which became
effective after Hicks filed his complaint. The 1979 amending statute provided that the
provisions of this act apply to all actions and proceedings filed on or after July 1, 1979. 1979
Nev. Stats. ch. 448, 6 at 831. The 1981 amending statute provides that the act will only
apply to all causes of action which arise after July 1, 1981. 1981 Nev. Stats. ch. 739, 6 at
1S59.
____________________

2
The current version of NRS 17.130 provides:
17.130 Computation of amount of judgment; interest.
1. In all judgments and decrees, rendered by any court of justice, for any debt, damages or costs, and
in all executions issued thereon, the amount must be computed, as near as may be, in dollars and cents,
rejecting smaller fractions, and no judgment, or other proceedings, may be considered erroneous for that
omission.
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 12 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.
This statute was amended in 1979 changing, inter alia, the interest rate from seven percent per annum to eight
percent per annum. 1979 Nev. Stats. ch. 448, 2 at 830. The statute was again amended in 1981 changing the
interest rate from eight percent to twelve percent. 1981 Nev. Stats. ch. 739, 1 at 1858.
6 at 1859. The complaint in this action was filed on February 9, 1979, before either of these
amendments became effective. Thus, neither the 1979 nor the 1981 amendment of NRS
17.130 were intended to apply to this action. Arnold v. Mt. Wheeler Power Co., 101 Nev.
612, 707 P.2d 1137 (1985).
NRS 17.130(2) as it existed at the time the complaint in this action was filed provided: 2.
When no rate of interest is provided by contract or otherwise by law, or specified in the
judgment, the judgment shall draw interest at the rate of 7 percent per annum from the time of
entry of the judgment until satisfied. 1979 Nev. Stats. ch. 448, 2 at 830. This former
version of the statute does not distinguish between pre-judgment interest and post-judgement
interest; nor does it distinguish between past and future damages as the present version does.
The statute merely provides for interest at seven percent per annum starting with the date of
entry of the judgment and ending upon payment. Therefore, we hold that the lower court's
assessment of interest was incorrect and must be vacated and replaced with a rate of seven
percent per annum assessed on the entire judgment ($350,000.00) beginning with the date of
entry of the judgment until paid. Accordingly, we reverse this portion of the district court's
ruling and remand for a modification of the judgment.
___________
102 Nev. 335, 335 (1986) SIIS v. Conner
STATE INDUSTRIAL INSURANCE SYSTEM, An Agency of the State of
Nevada, Appellant, v. JOHN L. CONNER, Respondent.
No. 16701
June 26, 1986 721 P.2d 384
Appeal from district court order reversing appeals officer's denial of SIIS benefits; Eighth
Judicial District Court, Clark County; Stephen Huffaker, Judge.
Appeal was taken from an order of the district court awarding police officer permanent
partial disability benefits in petition to occupational disease benefits he was already receiving.
The Supreme Court held that aggravation of preexisting heart disorder, resulting in heart
attack, when police officer was assaulted while subduing a suspect was not compensable
under statute governing permanent partial disability benefits for an accidental injury, defined
as any heart ailment or disorder, arising out of and in course of employment, but was
compensable under statute governing occupational disease benefits for police officers due to
diseases of the heart, resulting in either temporary or permanent disability or death, if caused
by extreme over-exertion in times of stress or danger.
102 Nev. 335, 336 (1986) SIIS v. Conner
disability or death, if caused by extreme over-exertion in times of stress or danger.
Reversed.
[Rehearing denied December 15, 1986]
Darla R. Anderson, Las Vegas, Pamela Bugge, SIIS, Carson City, and Jay Brewer,
Appeals Officer, Las Vegas, for Appellant.
Frank A. King, Las Vegas, for Respondent.
Permanent partial disability benefits may be awarded where an injury to the heart occurs on the job and is
caused by a sudden, unforeseen, and violent application of force, but may not be awarded where conditions
in work place aggravated preexisting heart disorder, resulting in a heart attack. NRS 616.110, subd. 2.
Aggravation of preexisting heart disorder, resulting in heart attack, when police officer was assaulted
while subduing a suspect was not compensable under statute governing permanent partial disability benefits
for an accidental injury, defined as any heart ailment or disorder, arising out of and in course of
employment, but was compensable under statute governing occupational disease benefits for police officers
due to diseases of the heart, resulting in either temporary or permanent disability or death, if caused by
extreme overexertion in times of stress or danger. NRS 616.110, subd. 2, 617.457, subd. 1; St. 1979, c.
533, 56.5.
Work place aggravation of a preexisting heart disorder, resulting in a heart attack, warrants an award for
occupational disease benefits, rather than award for permanent partial disability benefits. NRS 616.110,
subd. 2, 617.457, subd. 1; St. 1979, c. 533, 56.5.
Police officer, having received occupational disease benefits for nearly six years when a preexisting heart
disease, resulting in a heart attack, was aggravated as a result of an assault while subduing a suspect, was
not also entitled to permanent partial disability benefits for accidental injuries arising out of and in course
of employment. NRS 616.110, subd. 2, 617.457, subd. 1; St. 1979, c. 533, 56.5.
OPINION
Per Curiam:
This appeal involves a workmen's compensation claimant who, after receiving benefits
under the Nevada Occupational Diseases Act (NRS chapter 617) for nearly six years, asserted
that he was entitled to additional benefits under the Nevada Industrial Insurance Act (NRS
chapter 616). We hold that the claim was properly classified as one for occupational disease
benefits under NRS chapter 617 and that, therefore, the district court erred in ordering
payment of additional benefits under NRS chapter 616.
102 Nev. 335, 337 (1986) SIIS v. Conner
On August 3, 1978, Conner, an officer with the Las Vegas Metropolitan Police
Department, was assaulted while subduing a suspect. Twenty to thirty minutes later he
experienced chest pains, and was diagnosed as having suffered a myocardial infarction. A
workmen's compensation claim was filed, and Conner was notified on August 30, 1978, that
occupational disease benefits would be awarded. In 1979, Conner underwent a quadruple
coronary bypass operation. The surgery was successful, and Conner returned to work with the
Las Vegas Metropolitan Police Department. In May of 1984, Conner was instructed to report
for a disability rating examination. SIIS Medical Advisor, Dr. Joseph George, concluded that
Conner's heart disorder justified a 12 percent permanent partial disability (PPD) rating.
However, Conner was notified shortly after the examination that no PPD award would be
made, since PPD benefits were not available for occupational disease claims prior to January
1, 1980. See 1979 Nev. Stats. ch. 533, 56.5, at 1063. Since Conner's heart attack occurred in
1978, the SIIS determined that Conner was not entitled to PPD benefits. Conner appealed this
determination, and both the hearings officer and the appeals officer affirmed the denial of
additional benefits. However, the district court reversed, holding that Conner's claim should
be classified as an industrial injury, and therefore that PPD benefits should be awarded under
NRS chapter 616.
[Headnotes 1, 2]
NRS 616.110(2) provides that, [f]or 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. In contrast, NRS 617.457(1) provides that, as to police
officers, diseases of the heart, resulting in either temporary or permanent disability or death,
are occupational diseases and compensable as such under the provisions of this chapter if
caused by extreme overexertion in times of stress or danger. . . . A reading of these two
statutes compels the conclusion that the legislature intended Conner's condition to be
compensated under chapter 617 rather than chapter 616. Since entitlement to benefits is
determined as of the date of injury (NRS 617.240; 616.625), the fact that PPD benefits were
not authorized for occupational disease claims in 1978 precludes an award of such benefits to
Conner.
[Headnote 3]
Conner's assertion that a different result is mandated by this court's ruling in SIIS v.
Buckley, 100 Nev. 376, 682 P.2d 1387 (1984), lacks merit. In that case, the claimant suffered
a severe electric shock on the job which resulted in a mitral valve prolapse.
102 Nev. 335, 338 (1986) SIIS v. Conner
electric shock on the job which resulted in a mitral valve prolapse. The claimant had no
preexisting heart condition. This court held that NRS 616.110(2) was not intended to
preclude compensation under that chapter where 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.
100 Nev. at 379, 682 P.2d at 1389 (footnote omitted). In contrast, this court held in Spencer
v. Harrah's Inc., 98 Nev. 99, 641 P.2d 481 (1982), that NRS 616.110(2) precludes an award of
SIIS benefits under chapter 616 where the conditions at the claimant's workplace aggravated a
preexisting heart disorder, resulting in a heart attack.
[Headnote 4]
In the present case, both the SIIS medical advisor and Conner's own physician testified that
Conner had a preexisting coronary disease which was aggravated by the assault. This case is
clearly controlled by Spencer, which precludes an award of benefits under chapter 616.
While we are sympathetic to the cause of a dedicated police officer who suffered a heart
attack arising in the line of duty, we are unable to increase the workmen's compensation
benefits recoverable beyond the limits set by the legislature. As stated in Spencer, We are
not empowered . . . to go beyond the face of the statute to lend it a construction contrary to its
clear meaning. . . . Nor is it within our province to question the wisdom of this statute,
although we may be sympathetic to appellant's claim. 98 Nev. at 101-02, 641 P.2d at 482.
We do note that Conner did receive substantial benefits arising out of this claim, including
the expenses of surgery and compensation for time lost as a result of this condition.
In light of the above, it is unnecessary to determine whether there was substantial evidence
to support the appeals officer's determination that Conner did not file a timely claim under
chapter 616.
Accordingly, the order of the district court is reversed, and the decision and order of the
appeals officer is reinstated.
____________
102 Nev. 339, 339 (1986) Bader Enterprises, Inc. v. Becker
BADER ENTERPRISES, INC., Appellant, v. ERNEST A. BECKER dba
CHARLESTON HEIGHTS SHOPPING CENTER, Respondent.
No. 15036
June 27, 1986 720 P.2d 1232
Appeal from judgment, Eighth Judicial District Court, Clark County; James A. Brennan,
Judge.
The district court found that one party's claim to attached equipment was superior to the
other party's claim based on interpretation of ground lease and security agreement. The
Supreme Court dismissed appeal, but on rehearing held that second party's claim to attached
equipment was superior.
Petition for rehearing granted; Order Dismissing Appeal modified; remanded.
Stanley W. Pierce, Las Vegas, for Appellant.
O'Brien & Johnson, Las Vegas, for Respondent.
Landlord and Tenant.
Under terms of ground lease, under which one party had specifically disclaimed interest in attached
equipment and other party had right to remove attached equipment, party which had specifically disclaimed
interest in attached equipment did not have claim to attached equipment superior to claim of party which
had right to remove attached equipment.
OPINION ON REHEARING
Per Curiam:
On June 26, 1985, this court issued an Order Dismissing Appeal in the case of Bader
Enterprises, Inc. v. Ernest A. Becker dba Charleston Heights Shopping Center. Bader has
petitioned for a rehearing, contending that this court erred in sustaining the district court's
finding that Becker's claim to certain attached equipment was superior to Bader's. NRAP 40.
We grant rehearing for the limited purpose of considering that contention.
The district court's finding that Becker's claim to the attached equipment was superior to
Bader's was based upon its interpretation of a ground lease and security agreement. The
district court's interpretation arose solely from the four corners of the written instrument[s]
rather than from any extrinsic evidence as to the meaning of the terms used. Caldwell v.
Consolidated Realty, 99 Nev. 635, 63S, 66S P.2d 2S4 {19S3).
102 Nev. 339, 340 (1986) Bader Enterprises, Inc. v. Becker
Nev. 635, 638, 668 P.2d 284 (1983). Consequently, we are bound neither by the district
court's interpretation of the ground lease and security agreement nor by the district court's
finding that Becker's claim to the attached equipment was superior to Bader's.
Under the terms of the ground lease, Bader's claim to the attachment equipment was
superior to Becker's. In the ground lease, Becker specifically disclaimed any interest in the
attached equipment. In addition, the ground lease gave Bader the right to remove the attached
equipment. The district court's finding that Becker's claim to the attached equipment was
superior to Bader's was incorrect. This court erred in sustaining the district court's finding.
Accordingly, we modify our prior Order Dismissing Appeal and remand the case to the
district court for further proceedings consistent with this opinion.
1

Mowbray, C. J., and Springer, Gunderson, and Steffen, JJ., and Foley, D.J.,
2
concur.
____________________

1
Bader's remaining assignments of error are meritless.

2
The Governor designated the Honorable Thomas A. Foley, Judge of the Eighth Judicial District Court, to
participate in this appeal. Nev. Const., art. 6, sec. 4. The Honorable Cliff Young, Justice, did not participate in
the consideration of the appeal or the petition for rehearing.
____________
102 Nev. 340, 340 (1986) Casazza v. A-Allstate Abstract Co.
ROY J. CASAZZA and GWEN T. CASAZZA, Appellants, v. A-ALLSTATE ABSTRACT
COMPANY, a Nevada Corporation, SYNDICATED INVESTORS, INC., a Nevada
Corporation, FIRST COMMERCIAL TITLE, A Nevada Corporation, Respondents.
No. 15514
June 27, 1986 721 P.2d 386
Appeal from summary judgment, Sixth Judicial District Court, Lander County; Richard J.
Legarza, Judge.
Junior trust deed beneficiaries filed complaint for declaratory relief against senior trust
deed beneficiaries to quiet title in property which junior beneficiaries purchased from county
treasurer after payment of delinquent taxes, penalties, and costs. The district court granted
summary judgment in favor of senior beneficiaries. Junior beneficiaries appealed. The
Supreme Court held that reconveyance from county treasurer to junior beneficiaries after
expiration of two-year period to redeem property operated as redemption, rather than absolute
deed free of all encumbrances, and, thus, junior beneficiaries' repurchase of property did not
extinguish senior beneficiaries superior interest in property.
property did not extinguish senior beneficiaries superior interest in property.
Affirmed.
Stan L. Lyon, Reno, for Appellants.
Gordon C. Shelley, Don Aimar, Robert Bruce Lindsay, and Richard C. Minor, Reno, for
Respondents.
Taxation.
Reconveyance from county treasurer to junior trust deed beneficiaries after expiration of two-year
period to redeem property held for nonpayment of property taxes operated as redemption, rather than
absolute deed free of all encumbrances, within meaning of statute which requires county treasurer to
reconvey property to beneficiary under deed of trust upon payment of overdue taxes, penalties, interest, and
costs, and, thus, junior trust deed beneficiaries' repurchase of property did not extinguish senior trust deed
beneficiaries' superior interest in property; overruling McIntosh v. Burroughs, 92 Nev. 417, 551 P.2d
1104. NRS 361.570, 361.570, subds. 1, 3(a), (b), 4, 361.585-361.595, 361.585, subds. 1, 3, 4.
OPINION
Per Curiam:
This is an appeal from a summary judgment. For the reasons expressed below, we affirm.
Respondents and appellants each held separate deeds of trust on three parcels of land as
security for loans made to the landowners. Respondents' deed of trust was recorded prior to
appellants' deed of trust. Therefore, respondents' lien was senior to that of appellants.
The landowners failed to pay the property taxes on the three parcels of land. Accordingly,
pursuant to NRS 361.570,
1
the county tax receiver issued a certificate to the county
treasurer, authorizing the county treasurer to hold the properties for the two-year
redemption period.
____________________

1
1. Pursuant to the notice given as provided in NRS 361.565 and at the time so noticed, the tax
receiver shall make out his certificate authorizing the county treasurer as trustee for the state and county
to hold the property described in the notice for the period of 2 years after the 1st Monday in May of the
year the certificate is dated, unless sooner redeemed.
2. The certificate should specify:
(a) The amount of delinquency, including the amount and year of assessment;
(b) The taxes and the penalties and costs added thereto, and that interest on the taxes will be added at
the rate of 10 percent per annum from the date due until paid; and
(c) The name of the owner or taxpayer, if known.
3. The certificate must state, and it is hereby provided:
county tax receiver issued a certificate to the county treasurer, authorizing the county
treasurer to hold the properties for the two-year redemption period. Because the properties
were not redeemed during the two-year statutory period, two tax deeds pursuant to NRS
361.5902 were issued to the county treasurer as trustee for the state and county. After
appellants paid the delinquent taxes, interest and assessments, the county treasurer issued two
deeds of reconveyance to the appellants pursuant to NRS 361.585(3) and (4).
3
Appellants
subsequently recorded their deeds and took possession of the properties.
____________________
(a) That the property may be redeemed within 2 years from its date; and
(b) That if not redeemed, the title to the property vests in the county for the benefit of the state and
county.
4. Until the expiration of the period of redemption, the property held pursuant to the certificate must
be assessed annually to the county treasurer as trustee, and before the owner or his successor redeems the
property he shall also pay the county treasurer holding the certificate any additional taxes assessed and
accrued against the property after the date of the certificate, together with the interest on the taxes at the
rate of 10 percent per annum from the date due until paid.
5. It shall be the county treasurer's duty to take certificates issued to him under the provisions of this
section.

2
1. If the property is not redeemed within the time allowed by law for its redemption, the tax receiver
or his successor in office must make to the county treasurer as trustee for the state and county a deed of
the property, reciting in the deed substantially the matters contained in the certificate of sale or, in the
case of a conveyance under NRS 361.604, the order of the board of county commissioners, and that no
person has redeemed the property during the time allowed for its redemption.
. . . .
5. The deed conveys to the county treasurer as trustee for the state and county the property described
therein, free of all encumbrances, except any easements of record for public utility purposes, any lien for
any taxes or assessments by any irrigation or other district for irrigation or other district purposes, and
any interest and penalties on the property, except when the land is owned by the United States or this
state, in which case it is prima facie evidence of the right of possession accrued as of the date of the deed
to the purchaser, but without prejudice to the lien for other taxes or assessments or the claim of any such
district for interest or penalties.
. . . .
(Emphasis added.)

3
1. When the time allowed by law for redemption has expired, and no redemption has been made, the
tax receiver who issued the certificate, or his successor in office, shall execute and deliver to the county
treasurer a deed of the property described in each respective certificate in trust for the use and benefit of
the state and county and any officers having fees due him in such cases.
2. The county treasurer and his successors in office, upon obtaining a deed of any property in trust
under the provisions of this chapter,
Respondents, acting in their capacity as senior lienholders, served appellants with a notice
of default and election to sell the properties. Appellants then filed a complaint for declaratory
relief in the district court seeking to quiet title. Thereafter, both parties moved for summary
judgment. The district court granted summary judgment in respondents' favor, concluding
that the tax deeds issued to appellants did not extinguish respondents' rights as senior
lienholders. This appeal followed.
Appellants contend that when the two-year redemption period contained in NRS
361.570(3) expired, the tax receiver issued to the county treasurer a deed free of all
encumbrances except for easements of record and certain tax liens. See NRS 361.590(5).
Appellants further contend that the county treasurer granted all of the county's title and
interest in the properties to the appellants when they paid the tax delinquency pursuant to
NRS 361.585(3). Accordingly, appellants conclude that they now hold the properties free of
all encumbrances, including respondents' prior lien.
On the other hand, respondents argue that the reconveyance statute, NRS 361.585(3), is
designed to grant one last chance for redemption prior to public tax sale but after the
expiration of the two-year redemption period. Respondents conclude that when appellants
paid the tax delinquency, they in effect redeemed the properties for appellants' own
benefit, and for the benefit of other holders of interests in the properties.
____________________
shall hold that property in trust until it is sold or otherwise disposed of pursuant to the provisions of this
chapter.
3. Notwithstanding the provisions of NRS 361.595 or 361.603, at any time during the 90-day period
specified in NRS 361.603, or before the public notice of sale by a county treasurer, pursuant to NRS
361.595, of any property held in trust by him by virtue of any deed made pursuant to the provisions of
this chapter, any person or persons specified in subsection 4 is entitled to have such property reconveyed
upon payment to the county treasurer of an amount equal to the taxes accrued, together with any costs,
penalties and interest legally chargeable against such property. A reconveyance shall not be made after
expiration of the 90-day period specified in NRS 361.603 or after commencement of posting or
publication of public notice pursuant to NRS 361.595.
4. Property may be reconveyed pursuant to subsection 3 to one or more of the persons specified in the
following categories, or to one or more persons within a particular category, as their interests may appear
of record:
(a) The owner.
(b) The beneficiary under a deed of trust.
(c) The mortgagee under a mortgage.
(d) The person to whom the property was assessed.
(e) The person holding a contract to purchase the property before its conveyance to the county
treasurer.
(f) The successor in interest of any person specified in this subsection.
. . . .
(Emphasis added.)
the properties for appellants' own benefit, and for the benefit of other holders of interests in
the properties.
When a statute may be interpreted in varying ways, it is the duty of this court to select the
construction that will best give effect to the intent of the legislature. See Thompson v. District
Court, 100 Nev. 352, 683 P.2d 17 (1984) (although court will not go beyond statutory
language if it is clear on its face, the legislature's intent in enacting the statute is the factor
that controls its interpretation). With this standard in mind, we turn to an analysis of the
statutes in question.
The present statutory scheme for the collection of property taxes was first enacted by the
legislature in 1953. See 1953 Nev. Stats., ch. 344. Under this scheme, a two-year period was
allowed in which the owner or his successor could redeem the property after the taxes were
declared delinquent by the tax receiver. If the property was not redeemed, the tax receiver was
required to make out a deed to the county treasurer for the benefit of the state and the county.
The treasurer could then proceed to sell the property at a public tax sale. In order to enable the
treasurer to give the purchaser at the tax sale an absolute deed to the property, it was
necessary that the treasurer hold a title free of all encumbrances. Id. Therefore, the deed to
the treasurer from the receiver was necessarily free of all encumbrances. Significantly, the
scheme enacted in 1953 did not include any provision for transfer of the property by the
treasurer other than through a tax sale.
Although the statutory scheme has been amended a number of times since 1953, the
substance of the scheme has remained unchanged with the exception of one major alteration
made in 1957 when the legislature enacted the reconveyance statute that is the subject of this
appeal.
In 1957, the legislature enacted the statute that eventually became the present NRS
361.585(3) and (4). Under this statute, the legislature provided owners and others holding
interests in property conveyed to the county treasurer following the two-year redemption
period an additional opportunity to protect their interests. Persons listed in NRS 361.585(4)
may, pursuant to NRS 361.585(3), obtain from the county treasurer a reconveyance of
properties conveyed to the county treasurer following the two-year redemption period by
paying the delinquent taxes, plus penalties, interest and costs incident to the administration of
the tax statutes. This appeal presents the issue of the characterization of this additional
opportunity to have the property reconveyed.
A close reading of the statutory scheme set forth in NRS 361.565 through NRS 361.604
compels the conclusion that the legislature intended the reconveyance provided in NRS
361.585(3) to operate as a redemption. Two statutes provide in similar terms for a
conveyance of property to the county treasurer following the two-year redemption period
specified in NRS 361.570.
similar terms for a conveyance of property to the county treasurer following the two-year
redemption period specified in NRS 361.570. The first statute which provides for a deed to
the county treasurer is NRS 361.585(1) and (2). Subsections (3) and (4) of that same statute
contain provisions allowing reconveyance of the property upon the payment of the delinquent
taxes, plus penalties, interest and incidental costs, to certain persons who held interests in the
property prior to the time the property was conveyed to the county. Significantly, this section
of the statutory scheme does not include any provision relating to the quality of the deed from
the tax receiver to the county treasurer, or the quality of the deed from the county treasurer to
the person entitled to reconveyance of the property.
The second statute that provides for a deed to the county treasurer is NRS 361.590. NRS
361.590(5) provides expressly that the deed transfers the property to the county treasurer
free of all encumbrances. As noted above, it is necessary that the county treasurer obtain
title free of encumbrances in order that he be enabled to convey a clear title to a subsequent
purchaser at a tax sale. Apparently, however, the legislature did not deem it necessary for the
county treasurer to obtain a title free of encumbrances in order to enable him to reconvey title
pursuant to NRS 361.585(3) and (4), because the legislature did not provide in NRS 361.585
that the deed to the county treasurer was free of all encumbrances.
NRS 361.595 provides the following methods by which the county treasurer may transfer a
title free of all encumbrances:
1. Any property held in trust by any county treasurer by virtue of any deed made
pursuant to the provisions of this chapter may be sold and conveyed in the manner
prescribed in this section and in NRS 361.603 or conveyed without sale as provided in
NRS 361.604.
(Emphasis added.) Pursuant to this statute, the county treasurer may convey title to the
property in one of three ways: (1) by public sale; (2) by private sale to a government entity,
NRS 361.603; or (3) by transfer without sale to a qualifying Indian tribe, NRS 361.604. When
the property is so conveyed, the county treasurer must execute and deliver to the purchaser
an absolute deed. NRS 361.595(4). This statute does not provide that the property may be
conveyed to any of the prior interest holders enumerated in NRS 361.585.(4) who may
compel reconveyance by paying the delinquent taxes, plus penalties, interest and costs.
The legislature has not used the terms convey and reconvey synonymously. Instead, each
term has a specific meaning which cannot be confused without frustrating the legislative
scheme.
significantly, the county treasurer may only convey the property to a purchaser for a price
equal to or greater than a price set by the board of county commissioners. NRS 361.595. It is
contemplated that this price reflect the full value of the property. See County of Clark v.
Roosevelt Title Ins., 80 Nev. 530, 396 P.2d 844 (1964). On the other hand, the county
treasurer must reconvey the property pursuant to NRS 361.585(3) and (4) in return for
payment of the delinquent taxes plus penalties, interest and costs.
4
It seems clear, therefore,
that a party cannot have an interest reconveyed which it did not previously possess. The
opposite result, advanced by appellants, could cause harsh, unfair and even absurd results.
For example, under NRS 361.585(4), the owner of property, or his successor in interest, is
among those enumerated who may cause reconveyance of the property. It would clearly be
unfair to allow an owner of property to mortgage the property heavily, then fail to pay the
taxes or redeem the property during the two-year redemption period, but nonetheless obtain a
title to the property free of the mortgage debts upon late payment of the delinquent taxes
pursuant to NRS 361.585(3) and (4).
Even more disturbing, under NRS 361.603, if a local government wishes to purchase
property which was not redeemed during the two-year redemption period, notice must first be
given to the last known owner of the property. The owner is then given an additional 90 days
in which to redeem the property by paying the delinquent taxes, plus penalties, interest and
costs. It is during this 90 day period that prior holders of interests in the property, including
the owner, may compel reconveyance of the property pursuant to NRS 361.585(3) and (4).
Therefore, under appellants' construction of the statutes, the owner could either redeem the
property subject to all outstanding interests pursuant to NRS 361.603(3), or pay the same
amount of money and compel the county treasurer to reconvey the property to him free and
clear of all encumbrances pursuant to NRS 361.585(3) and (4).
The facts of this case serve as an appropriate illustration of a third example of the arbitrary
results that could be reached under appellants' theory of the case. Appellants assert that
respondents did nothing to protect their interests in the property, although respondents could
have procured a reconveyance of the property in the same manner as appellants. However,
simple reasoning compels the conclusion that the county treasurer could not have delivered a
deed free of all encumbrances to respondents after the treasurer delivered a similar deed to
appellants.
____________________

4
While it is true, as appellants assert, that in some cases the taxes, penalties, interest and costs could exceed
the value of the property, in the majority of cases, the value of the property will far exceed the cost of
reconveyance. Indeed, if the cost of reconveyance of the property exceeds the value of the property, we may
safely assume that no one will want to pay the price of reconveyance.
treasurer delivered a similar deed to appellants. Therefore, respondents could only have
protected their interests in the property in the manner proposed by appellants if they had
arrived at the treasurer's office before appellants did. Surely, the legislature did not intend
such a race to the treasurer's office, because the legislature provided expressly that
reconveyance could be to one or more of the parties listed in NRS 361.585(4).
Numerous other examples could be hypothecated. However, the three examples mentioned
above are sufficient to demonstrate that the legislature did not enact NRS 361.585 with the
intention of allowing any party to cause reconveyance of any interest greater than the interest
he previously held.
With this analysis as a backdrop, the legislative scheme seems clear. If property taxes
become delinquent, the tax receiver issues a certificate to the county treasurer which allows
the treasurer to hold the property for a two-year period. NRS 361.570(1). During this
two-year period, the owner of the property or his successor may redeem the property by
paying the delinquent taxes, plus penalties, interest and costs. NRS 361.570(3)(a) and (4). If
the property is not redeemed, title to the property vests in the county immediately on the
expiration of the two-year redemption period. NRS 361.570(3)(b). The tax receiver must then
deed the property to the county treasurer. NRS 361.585(1); NRS 361.590. This deed is free of
all encumbrances. NRS 361.590(5). A short period follows during which the owner and other
holders of interests of record may cause reconveyance of the property by paying the taxes
due, plus penalties, interest and costs. NRS 361.585(3) and (4). This reconveyance is in the
nature of a redemption, and divests the county of its title to the property. If no redemption is
made during this additional redemption period, the county may dispose of the property in an
appropriate sale. NRS 361.595. The purchaser of the property receives an absolute deed to the
property from the county treasurer. NRS 361.595(4).
We conclude that appellants redeemed the property from a tax sale subject to the superior
lien of respondents. We are aware that this opinion is inconsistent with our decision in
McIntosh v. Burroughs, 92 Nev. 417, 551 P.2d 1104 (1976). Accordingly, McIntosh is
expressly overruled. We have considered appellants' remaining contentions and conclude that
they are without merit. We, therefore, affirm the decision of the district court in all respects.
Mowbray, C. J., and Gunderson, Steffen, and Young, JJ, and Guy D. J.,
5
concur.
____________________

5
The Governor designated the Honorable Addeliar D. Guy, Judge of the Eighth Judicial District Court, to sit
in place of Justice Charles E. Springer, who voluntarily disqualified himself. Nev. Const., art. 6, 4.
____________
102 Nev. 348, 348 (1986) Thompson v. State
WILLIAM PAUL THOMPSON, Appellant, v.
No. 16221
July 8, 1986 721 P.2d 1290
Appeal from judgment of conviction for first degree murder, attempted murder, robbery,
attempted robbery, all with the use of a deadly weapon and carrying a concealed weapon, and
from sentence of death. Second Judicial District Court, Washoe County; John E. Gabrielli,
Judge.
Defendant was convicted before the district court of first degree murder, attempted
murder, robbery, attempted robbery, all with use of a deadly weapon, and carrying a
concealed weapon, and was sentenced to death, and he appealed. The Supreme Court held
that: (1) defendant was not prejudiced by refusal to sustain challenge for cause to venireman
who held strong feelings in favor of capital punishment and indicated he would accord
district attorney a lesser standard of proof during penalty phase of trial; (2) admission of
evidence of two collateral homicides committed by defendant in California to show
defendant's plan to obtain money to allow him to flee state was not manifestly wrong; and (3)
death sentence was appropriate.
Affirmed.
David G. Parraguirre, Public Defender, Mark Mausert, Deputy Public Defender, and Jane
G. McKenna, Deputy Public Defender, Washoe County, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Gary
1. Criminal Law; Jury.
Challenge for cause to venireman, who held strong feelings in favor of capital punishment for those who
kill with premeditation and indicated that he would accord district attorney a lesser standard of proof
during penalty phase of trial and that a person convicted of murder one should die for it, should have
been granted; however, failure to excuse venireman for cause did not prejudice defendant, where
venireman was removed by defendant's first peremptory challenge, defendant did not demonstrate that any
other jurors proved unacceptable and would have been excused had an additional peremptory challenge
been available, defense counsel expressly accepted entire panel, and defendant never requested additional
peremptory challenges.
2. Criminal Law.
Admission of evidence of two collateral homicides committed by defendant in California, in order to
show defendant's plan to obtain money to flee Nevada due to his knowledge that law enforcement officers
were looking for him concerning the other homicides, was not manifestly wrong, in
that full consideration was given to quality of State's proof and probative value of
such evidence prior to ruling on its admissibility, and jury was instructed on the
limited use of such evidence.
were looking for him concerning the other homicides, was not manifestly wrong, in that full consideration
was given to quality of State's proof and probative value of such evidence prior to ruling on its
admissibility, and jury was instructed on the limited use of such evidence. NRS 48.045, subd. 2.
3. Criminal Law.
Even though it did not explain basis for every aspect of its ruling, district court did not err in procedure
used to admit evidence of two collateral homicides committed in California, where district court clearly
weighed the evidence before allowing its admission.
4. Criminal Law.
Standard of review concerning district court's ruling as to admissibility of evidence of other crimes is
manifest error.
Prohibition against ex post facto laws required application of proportionality review requirement of death
penalty statute as statute existed at the time the homicide in question was committed. NRS 17.005(2)(d);
U.S.C.A.Const. Art. 1, 9, cl. 3, 10, cl. 1.
OPINION
Per Curiam:
A jury convicted William Paul Thompson of first degree murder, attempted murder,
robbery, attempted robbery, all with the use of a deadly weapon, and carrying a concealed
weapon. At the penalty hearing for the first degree murder conviction, the jury found two
aggravating circumstances and no mitigating circumstances and sentenced Thompson to
death. On appeal, Thompson raises two assignments of error. We conclude that his
contentions lack merit.
On April 21, 1984, appellant met Randy Waldron and Arnold Lehto, who were camping
by the railroad tracks in Reno. At that time, appellant knew that the police were looking for
him regarding a double homicide in California. Appellant had spent a good portion of the day
drinking and gambling. Waldron was sniffing paint from a plastic bag. Waldron and Lehto
asked if appellant was a police officer, commenting that they were afraid of strangers because
they had been beaten up a couple of weeks before. Thompson said he was not a police officer
and that he was not afraid of others. Appellant then showed them the .22 caliber pistol he
carried. After spending some time drinking and talking, Waldron pulled out his wallet and
gave Lehto some money to purchase more liquor. At this time, appellant saw the fifty dollar
bill Waldron had in his wallet. Lehto left and returned after making the purchases. After more
drinking, Lehto left for his own camp. Thompson claims that after this, he and Waldron were
talking while Waldron carved an apple with a knife. Suddenly, Waldron swung at appellant
with the knife. At this point, appellant pulled his gun and shot Waldron four times in the
head.
lant pulled his gun and shot Waldron four times in the head. Thompson then moved the body
and covered it with a blanket. He also took Waldron's wallet and money, silver watch and a
bottle of wine.
Appellant then headed for downtown Reno. Enroute, he met another man who had been
evicted from his home. The men talked and concluded that they should find a car and leave
town. When the men reached a casino parking lot, they saw two women by a truck. The
women noticed the men and were wary. The men approached the women, Thompson pulled
his gun and told the women to move. One of the women had picked up a tire iron. She threw
it at appellant, hitting him in the chest and knocking him down. The women ran and hid
behind a building. Appellant shot at the women as they ran. One of the victims peeked out
from behind the building and another shot rang out. Appellant then fled, but was arrested a
short time later after leaving a casino. After Waldron's body was discovered, appellant denied
any knowledge of what had happened, only later to claim self-defense.
[Headnote 1]
Thompson relies on two alleged errors on the part of the trial court. First, Thompson
contends that the trial court committed reversible error because it did not excuse one member
of the venire for cause. This argument is not persuasive. It is apparent that the challenged
venireman held strong feelings in favor of capital punishment for those who kill with
premeditation. As he explained during voir dire, he favors a life for a life. Moreover,
although he proclaimed a willingness to follow the law and be fair, his final two responses
to defense counsel indicated he would accord the district attorney a lesser standard
(presumably of proof) during the penalty phase of trial and that his personal conviction favors
an eye for an eye and a tooth for a toothmeaning that a person convicted of murder one
should die for it. We are persuaded that the challenge for cause should have been granted.
Nevertheless, it is clear from the record that appellant was not prejudiced by the district
court's ruling. The venireman was removed by appellant's first peremptory challenge and
appellant has not demonstrated that any other jurors proved unacceptable and would have
been excused had an additional peremptory challenge been available. In fact, defense counsel
expressly accepted the entire panel. Moreover, appellant never requested additional
peremptory challenges. Accordingly, this assignment of error is without merit.
[Headnote 2]
In appellant's second assignment of error, he contends that the trial court erred in
admitting evidence of two collateral homicides from California.
trial court erred in admitting evidence of two collateral homicides from California.
The admission of evidence of other crimes is governed by NRS 48.045(2).
1
That statute
provides for the admission of such evidence when used for certain limited purposes. One of
the listed exceptions concerns evidence tending to show that a defendant's crime was
committed in furtherance of a plan. The State offered the evidence in question to show
Thompson's plan to obtain money to allow him to flee the state because he knew that law
enforcement officers were looking for him concerning another homicide. The evidence was
admitted for this purpose. The district court did not err in allowing the admission of such
evidence.
[Headnote 3]
This Court has previously addressed this issue in Petrocelli v. State, 101 Nev. 46, 692 P.2d
503 (1985). In that case, we identified the necessary procedures that should be followed in
order to admit such evidence. A review of the record reveals that the requisite procedures
were followed by the State. Although the district court did not explain the basis for every
aspect of its ruling, it clearly weighed the evidence before allowing its admission. Therefore,
the trial court did not err in the procedure used for the admission of such evidence.
Appellant asks this Court to apply our holding in Longoria v. State, 99 Nev. 754, 670 P.2d
939 (1983), to exclude the collateral offenses in the case at bar. We decline to do so. The two
cases can easily be distinguished. In Longoria, the defense had no notice that a collateral
offense would be raised by the state. In that case, the collateral offense was first brought out
during cross-examination, and the state was ill-prepared to prove Longoria's culpability in the
prior incident. In the case at bar, there was a motion limine for exclusion of the collateral
offenses before the beginning of trial. The defense was clearly on notice, and full
consideration was given to the quality of the state's proof and the probative value of the
collateral offenses prior to a ruling outside the jury's presence, on admissibility.
[Headnote 4]
Finally, the jury was instructed on the limited use of the evidence presented. The standard
of review concerning the district court's ruling is manifest error.
____________________

1
That statute provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order
to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.
trict court's ruling is manifest error. See Brown v. State, 81 Nev. 397, 404 P.2d 428 (1965).
This Court will continue to respect the trial court's rulings unless they are manifestly wrong.
The evidence presented by the State was substantial and convincing. It was admitted for a
proper purpose under Nevada's evidence code. Accordingly, we perceive no basis for
concluding that the district court was manifestly wrong.
[Headnote 5]
Appellant has not challenged the legal propriety of his death sentence. It is, however,
necessary for this Court to review that sentence and determine its applicability under Nevada
law as it existed at the time of Thompson's criminal conduct.
2

The jury found two aggravating circumstances present in the homicide committed by
Thompson: (1) the murder was committed while the person was engaged in the commission
of, or an attempt to commit, or flight after committing, or attempting to commit, a robbery;
and (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest.
The jury also found that there were no mitigating circumstances and fixed Thompson's
penalty at death. The record provides substantial evidence in support of the jury's findings.
Also, the record reveals no evidence that would otherwise undermine that jury's verdict.
We also conclude that appellant's sentence of death is not excessive or disproportionate to
the penalty imposed in similar cases in this State. The jury determined that Thompson was
guilty of the crimes charged. The jury also determined that there was no valid defense that
would otherwise excuse or mitigate Thompson's conduct. In every respect, therefore,
appellant's sentence is proportionate to other death sentences imposed in Nevada. See, e.g.,
Gallego v. State, 101 Nev. 782, 711 P.2d 856 (1985); Wilson v. State, 101 Nev. 452, 705
P.2d 151 (1985); Rogers v. State, 101 Nev. 457, 705 P.2d 664 (1985); Miranda v. State, 101
Nev. 562, 707 P.2d 1121 (1985); Bishop v. State, 95 Nev. 511, 597 P.2d 273 (1979).
Finally, the record reveals no aspect of Thompson's death sentence resulting from the
influence of passion, prejudice or any arbitrary factor.
____________________

2
NRS 17.005(2)(d) was amended to abolish the proportionality review requirement. However, this
amendment took effect on June 6, 1985. 1985 Stats. ch. 527 1, at 1597-1598. The prohibition against ex post
facto laws requires that we apply the law as it existed at the time the crime was committed. See Goldsworthy v.
Hannifin, 86 Nev. 252, 468 P.2d 350 (1970). In Goldsworthy we held that an act amending parole eligibility
could not be applied to the detriment of a defendant whose crime was committed before the amendment took
effect. Id. at 256-257. Because Mr. Thompson's crime took place in 1984, we must conduct a proportionality
review of his sentence.
We conclude that Thompson's assignments of error lack merit. Accordingly, we affirm
Thompson's judgments of conviction and his sentence of death.
Gunderson, Steffen, and Young, JJ., and Whitehead
3
and Berkson, D.J.,
4
concur.
____________________

3
The Honorable Jerry Carr Whitehead, Judge of the Second Judicial District Court, was designated by the
Governor to sit in place of Chief Justice John Mowbray, who voluntarily disqualified himself. Nev. Const., art. 6
4.

4
The Honorable Lester Berkson, Judge of the Ninth Judicial District Court, was designated by the Governor
to sit in place of Justice Charles E. Springer, who voluntarily disqualified himself. Nev. Const., art. 6 4.
____________
102 Nev. 353, 353 (1986) Clark County v. SIIS
CLARK COUNTY, NEVADA, Appellant, v. STATE
INDUSTRIAL INSURANCE SYSTEM, Respondent.
No. 16381
September 4, 1986 724 P.2d 201
Appeal from order affirming the decision of a State Industrial Insurance System appeals
officer; Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
Appeal was taken from an order of the district court affirming decision of State Industrial
Insurance System appeals officer that court reporters were county employees and county
was therefore required to pay State Industrial Insurance System premiums for court reporters.
The Supreme Court held that court reporters were not employees of county, and county was
therefore not required to pay State Industrial Insurance System premiums.
Reversed.
Robert Miller, District Attorney; James L. Taylor, Deputy District Attorney; and E. Lee
Thomson, Deputy District Attorney, Clark County, for Appellant.
Pamela M. Bugge, General Counsel, Carson City, and Robert G. Giunta, Las Vegas, for
Respondent.
1. Master and Servant.
In determining whether employer-employee relation exists, courts will give substantially equal weight to
degree of supervision, source of wages, existence of right to hire and fire, right to control hours and
location of employment, and extent to which workers' activities further general business concerns of
alleged employer.
Court reporters were not employees of county, and therefore county was not required to pay State
Industrial Insurance System premiums for court reporters; county had no authority to supervise court
reporters, although court reporter fees were paid in part by county, county had no authority to set wages,
county had absolutely no authority over hiring and firing of court reporters, and court reporters did not
directly further general business concerns of county. NRS 3.320, subds. 1, 2, 3.340, 616.055.
OPINION
Per Curiam:
The issue presented is whether court reporters are properly categorized as employees of
appellant, Clark County. We hold that they are not, and therefore reverse the district court
decision requiring the payment of SIIS premiums by the County.
NRS 616.055 defines employee as every person in the service of an employer under any
appointment or contract of hire or apprenticeship. . . . Although this definition is to be
construed broadly in order to effectuate the legislative purpose of assuring SIIS benefits, see,
e.g., Antonini v. Hanna Industries, 94 Nev. 12, 573 P.2d 1184 (1978), we have recognized
that the protection is by no means absolute. There is some limit to its coverage. Meers v.
Haughton Elevator, 101 Nev. 283, 701 P.2d 1006 (1985). The initial determination is whether
an employer-employee relation exists. Id.
[Headnotes 1, 2]
In determining whether an employer-employee relation exits, the courts will give
substantially equal weight to several different factors: (1) the degree of supervision; (2) the
source of wages; (3) the existence of a right to hire and fire; (4) the right to control the hours
and location of employment; and (5) the extent to which the workers' activities further the
general business concerns of the alleged employer. Whitley v. Jake's Crane & Rigging, Inc.,
95 Nev. 819, 821, 603 P.2d 689, 690 (1979). See also Montgomery v. Ponderosa Constr., 101
Nev. 416, 705 P.2d 652 (1985). A review of these factors as they apply to court reporters
reveals that the County cannot be considered the statutory employer for purposes of SIIS
coverage.
The County has no authority to supervise court reporters. The Nevada Constitution grants
the power to supervise and administer the court system to the judiciary. Nev. Const. art. 6,
1; art. 6, 19. The inability of the alleged employer to control the activities of the claimant is
highly persuasive in determining whether an employer-employee relationship exists.
Montgomery, 101 Nev. 416, 705 P.2d 652 (1985). See also Kuehn v. State, 271 N.W.2d 30S
{Minn.
308 (Minn. 1978); Matter of Compensation of Hunter, 635 P.2d 1371 (Or.App. 1981).
1
Although court reporter fees are paid in part by the County, the County has no authority to set
the wages of court reporters. NRS 3.370. The County has absolutely no authority over the
hiring and firing of court reporters. They are appointed by the judges and serve at the pleasure
of the appointing judge. NRS 3.320(1). The County does not control the hours or location of
the reporters' employment. Court reporters must be available for work at hours set by the
appointing judge. NRS 3.320(2); 3.340. However, the reporters are free to accept outside
work that does not conflict with their court duties. Court reporters do not directly further the
general business concerns of the County. The direct benefit of court reporters' services
accrues to the district courts, which are part of the state judiciary system. Accord, see Hunter,
635 P.2d at 1373. We conclude that court reporters are not County employees within the
definition of NRS 616.055.
2
NRS 616.085 does not operate to alter this result where it is
determined that the County is not the statutory employer.
3
See Meers, 101 Nev. 283, 701
P.2d 1006 (1985).
Because Clark County is not the statutory employer, the appeals officer incorrectly ordered
payment of SIIS benefits by Clark County. The order of the district court is therefore
reversed.
____________________

1
Both Kuehn and Hunter held that, for purposes of determining liability for workmen's compensation, court
reporters could not be considered county employees.

2
We express no opinion as to whether court reporters are State employees under that statute.

3
NRS 616.085 provides, in part, that [s]ubcontractors and their employees shall be deemed to be employees
of the principal contractor.
____________
102 Nev. 356, 356 (1986) State, Emp. Ass'n v. State, Dep't Prisons
STATE OF NEVADA EMPLOYEES ASSOCIATION, INC., a Nevada Corporation,
Appellant and Cross-Respondent, v. THE STATE OF NEVADA, EX REL., ITS
DEPARTMENT OF PRISONS, VERNON HOUSEWRIGHT, in His Official
Capacity as Director of the State of Nevada Department of Prisons; JAMES
WITTENBERG, in His Official Capacity as Chief of the Personnel Division of the
State of Nevada Department of General Services; GOVERNOR ROBERT LIST, in
His Official Capacity as Chief Executive Officer of the State of Nevada, Respondents
and Cross-Appellants.
No. 16415
September 4, 1986 724 P.2d 732
Appeal and cross-appeal from judgment awarding damages; First Judicial District Court,
Carson City; Michael E. Fondi, Judge.
Suit was brought against state officials on behalf of prison employees who were denied
promised travel and uniform allowances incident to their job. The district court entered
judgment awarding uniform allowances but denying travel allowances, and employees
appealed. The Supreme Court held that state, which advertised travel allowance in recruiting
employees for prisons at which there was little or no available housing closer than 30 miles,
was contractually bound to continue to pay travel allowance as well as uniform allowance,
and could not reduce travel allowance as budget saving measure.
[Rehearing denied March 24, 1987]
Norah Ann McCoy, Carson City, for Appellant and Cross-Respondent.
Brian McKay, Attorney General, Robert A. Kirkman, Deputy Attorney General, Carson
City, for Respondents and Cross-Appellants.
1. Prisons.
State, which advertised travel allowance in recruiting employees for prisons at which there was little or
no available housing closer than 30 miles, was contractually bound to continue to pay travel allowance as
well as uniform allowance, and could not reduce travel allowance as budget saving measure, where both
uniform and travel pay were part of total compensation package offered to prison employees. U.S.C.A.
Const. Art. 1, 10, cl. 1; Const. art. 1, 15; NRS 353.225.
Fact that government is authorized by statute to limit expenditures does not provide state with excuse to
breach preexisting contractual obligations. U.S.C.A.Const. Art. 1, 10, cl. 1; Const. art. 1, 15.
Employment contracts are within ambit of contract clause. U.S.C.A.Const. Art. 1, 10, cl. 1; Const.
art. 1, 15.
OPINION
Per Curiam:
Appellant State of Nevada Employees Association (SNEA) sued respondent state officials
on behalf of employees of the Department of Prisons (DOP), who were denied promised
travel and uniform allowances incident to their jobs. Denial of these monies to prison
employees came about as a result of budget cuts effectuated under the terms of NRS 353.225.
1

The employees claim that they have a contractual right to receive travel and uniform
allowances and claim further that denial of these allowances is improper because NRS
353.225 is unconstitutional. Since we agree that the employees are entitled contractually to be
paid the claimed allowance, we do not address the constitutional question. The district court's
judgment awarding uniform allowances is affirmed. The district court's judgment denying the
travel allowances is reversed, and this case is remanded with instructions that these
allowances be awarded to appellant employees.
The facts in this case are not in dispute. Among the facts found by the district court are the
following:
The 1981 Legislature as a travel allowance for the Southern Nevada Correctional Center
(SNCC) and the Southern Desert Correctional Center (SDCC) for the fiscal year 1982-83
appropriated $6.60 per day per employee. The purpose of the travel allowance was to
reimburse the employees of SNCC and SDCC for the necessity of traveling at least 30 miles
to work at the facilities. At the time of the appropriation and prior thereto, there was little or
no available housing closer that 30 miles from either of the facilities.
____________________

1
NRS 353.225 provides as follows:
353.225 Reserves.
1. In order to provide some degree of flexibility to meet emergencies arising during each fiscal year in
the expenditures for the state distributive school fund and for operation and maintenance of the various
departments, institutions and agencies of the executive department of the state government, the chief,
with the approval in writing of the governor, may require the state controller or the head of each such
department, institution or agency to set aside a reserve in such amount as the chief may determine, out of
the total amount appropriated or out of other funds available from any source whatever to the department,
institution or agency.
2. At any time during the fiscal year this reserve or any portion of it may be returned to the
appropriation or other fund to which it belongs and may be added to any one or more of the allotments, if
the chief so orders in writing.
of the facilities. The availability of the travel allowance was advertised by DOP in its job
announcements in recruitment of employees for employment at SNCC and SDCC. The
employees of both facilities who do not have housing at the location of the facilities have and
continue to incur travel expenses every day they work at the facilities.
The 1981 Legislature appropriated for uniform allowance for all uniformed employees of
the DOP for the 1982-83 fiscal year $77.50 per employee per quarter. The purpose of the
uniform allowance was and is for the purchase and replacement of required uniform items.
Such an allowance has been received in varying amounts by DOP uniformed employees for in
excess of ten years.
Governor Robert List determined that a fiscal emergency existed for fiscal year 1982-83
because revenue projections from the State Budget Office indicated that there would be
insufficient monies to fund state agencies' budgets through the end of the fiscal year of June
30, 1983, if no action were taken. On September 29, 1982, Governor List gave instructions to
the director of the Department of Administration as chief budget officer to implement a
reduction of revenue expenditures to meet the anticipated reserve required to pay all
executive agency obligations of $19,270,272.
Pursuant to instructions from the chief of the Budget Division to all executive state
agencies, DOP Director Housewright began efforts to reduce the DOP's expenses. Uniform
allowance and remote area differential expenditure (travel allowance) reductions were only
two of the budget saving actions which were taken by the DOP in order to reach the targeted
figure mandated by the Governor and his Budget Chief.
Beginning in October, 1982, the travel allowance was reduced to $1.00 per employee per
day and continued at that rate for the remainder of the fiscal year, 1982-83. The uniform
allowance was reduced in October, 1982, to $15.50 per uniformed employee per quarter and
continued at that rate for the final three quarters of the fiscal year 1982-83.
[Headnote 1]
In reviewing the employees' claims the district court held that the state was contractually
obligated to pay the uniform allowance but not the travel differential. We see no rational basis
to distinguish the two. The record is clear that both the uniform and travel pay were part of
the total compensation package offered to workers at these two southern Nevada facilities. As
such they constitute integral portions of the contractual consideration given by the state in
exchange for the labor of the prison employees. The state was no less bound to pay these
forms of compensation than it was the employees' regular salary.
[Headnotes 2, 3]
The fact that the Governor was authorized by statute to limit expenditures does not provide
the state with an excuse to breach its preexisting contractual obligations. The state may not
pass a law which impairs the obligation of contracts. U.S. Const. art. I, 10; Nev. Const. art.
1, 15. As we held in Public Emp. Ret. v. Washoe County, 96 Nev. 718, 615 P.2d 972
(1980), employment contracts are within the ambit of the contract clause. Simply put, the
duty to maintain sound fiscal control of the state's budget cannot supplant the state's
concomitant duty to honor its contracts with state workers.
We affirm the judgment of the district court as it pertains to the uniform allowance and
reverse as to the travel differential. This cause is remanded to the district court with
instructions to enter a judgment in accordance with this opinion.
____________
102 Nev. 359, 359 (1986) Sheriff v. Crockett
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
KENNETH A. CROCKETT, Respondent.
No. 16477
September 4, 1986 724 P.2d 203
Appeal from order granting a pretrial petition for a writ of habeas corpus. Eighth Judicial
District Court, Clark County; Paul S. Goldman, Judge.
Defendant was charged by information with one count of obtaining signature by false
pretenses. The district court granted defendant's retrial petition for writ of habeas corpus and
dismissed charge against him. The sheriff appealed. The Supreme Court held that district
court committed substantial error when it determined there was insufficient evidence to bind
defendant over for trial.
Reversed.
Brian McKay, Attorney General, Carson City, Robert J. Miller, District Attorney, Las
Thomas D. Beatty, Las Vegas, for Respondent.
1. False Pretenses.
Violation of false pretenses statute is established when person: (1) obtains signature of another person;
(2) to written instrument; (3) by the use of false pretenses; and (4) with intent to defraud another. NRS
205.390.
2. Criminal Law.
Testimony, that defendant obtained person's signature to a request for reconveyance by telling
person that in return for person's signature on that reconveyance person would
receive interest in certain property when defendant allegedly did not own any
interest in that property, provided adequate foundation to support admission of
deeds concerning the transaction into evidence at preliminary hearing in false
pretenses prosecution.
for reconveyance by telling person that in return for person's signature on that reconveyance person would
receive interest in certain property when defendant allegedly did not own any interest in that property,
provided adequate foundation to support admission of deeds concerning the transaction into evidence at
preliminary hearing in false pretenses prosecution.
3. Criminal Law.
Evidence provided sufficient probable cause to believe that defendant through use of false pretenses and
with intent to defraud had obtained person's signature to reconveyance of property securing loan to
defendant's corporation, and therefore, it was substantial error to determine there was insufficient evidence
to bind defendant over for trial, even though there were discrepancies concerning terms and amount of
original loan and even though original loan document was not admitted into evidence.
OPINION
Per Curiam:
Respondent Kenneth A. Crockett was charged by information with one count of obtaining
a signature by false pretenses, a felony in violation of NRS 205.390. The district court
granted respondent's pretrial petition for a writ of habeas corpus, dismissed the charge against
him, and this appeal followed. For the reasons set forth below, we reverse the order of the
district court.
At respondent's preliminary hearing, the state established that respondent was the president
of both Nicro Construction, Inc. (Nicro), and S.C.R. Construction, Inc. (S.C.R.). The alleged
victim in this matter, Vincent Ewy, testified that he co-signed a note evidencing a loan from
Nevada National Bank to Nicro to facilitate Nicro's purchase of certain property owned by
Ewy's Keough trust. Ewy testified that, in return for his signature, respondent, in his capacity
as president of S.C.R., executed a deed of trust on certain property in Los Angeles, naming
Ewy as beneficiary. According to Ewy, the deed was to serve as Ewy's security in the event
Nicro defaulted on the loan. At the hearing, Ewy identified a copy of the deed to the Los
Angeles property, which was later admitted into evidence.
Ewy further testified that respondent later requested him to execute a reconveyance of the
Los Angeles property. In return for the reconveyance, Ewy testified that respondent executed
a deed of trust purporting to give Ewy a beneficial interest in certain property located in Las
Vegas and allegedly owned by Nicro. Respondent executed the deed of trust to the Las Vegas
property in his capacity as president of Nicro. At the preliminary hearing, Ewy identified the
deed to the Las Vegas property, testified that he was familiar with respondent's handwriting,
identified respondent's signature on that deed, and testified that when he accepted the deed
to the Las Vegas property, he was unaware of the fact that neither respondent, Nicro, nor
any other corporation associated with respondent had an interest in the property.
accepted the deed to the Las Vegas property, he was unaware of the fact that neither
respondent, Nicro, nor any other corporation associated with respondent had an interest in the
property. The state also introduced a certified copy of a deed showing that neither respondent,
Nicro, nor any other corporation associated with respondent had an interest in the Las Vegas
property at the time of the alleged transaction. Another witness, Robert Krause, testified that
the property was, at that time, owned by Krause and another individual, Michael Signorelli.
In his pretrial petition for a writ of habeas corpus, respondent contended that the evidence
adduced at the preliminary hearing did not comport with the allegations contained in the
information. Specifically, respondent argued that there were discrepancies in the evidence
regarding the terms and amount of the original loan, that the state had failed to introduce the
original loan document as required by NRS 52.235 (the best evidence rule), and that the
above mentioned deeds were admitted without an adequate foundation. Respondent
concluded, therefore, that the evidence adduced at the preliminary hearing was insufficient to
establish probable cause that he committed the charged offense. The lower court agreed with
respondent and granted his request for a writ of habeas corpus. This appealed followed.
[Headnote 1]
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, 630 P.2d 265 (1981). The finding of
probable cause to support a criminal charge may be based on slight, even marginal'
evidence, . . .because it does not involve a determination of the guilt or innocence of an
accused. Sheriff v. Hodes, 96 Nev. 184, 186, 606 P.2d 178, 180 (1980) (citations omitted).
To commit an accused for trial, the State is not required to negate all inferences which which
might explain his conduct, but only to present enough evidence to support a reasonable
inference that the accused committed the offense. Kinsey v. Sheriff, 87 Nev. 361, 363, 487
P.2d 340, 341 (1971).
Every person who, with intent to cheat or defraud another, shall designedly by color
or aid of any false token or writing or other false pretense, representation or
presentation obtain the signature of any person to a written instrument, shall be
punished by imprisonment in the state prison for not less than 1 year nor more than 6
years, or by a fine of not more than $5,000, or by both fine and imprisonment.
A violation of NRS 205.390 is established when a person: (1) obtains the signature of another
person; (2) to a written instrument; {3) by the use of false pretenses; and {4) with the
intent to defraud another.
ment; (3) by the use of false pretenses; and (4) with the intent to defraud another. See
generally Smith v. State, 681 S.W.2d 71, 75 (Tex.App. 1983) (Texas court, construing
similar statute, held that offense was complete when a person causes another to execute a
document with the intent to defraud or harm').
In the present case, Ewy testified at the preliminary hearing that respondent: (1) obtained
Ewy's signature; (2) to a request for reconveyance; (3) by telling Ewy that, in return for Ewy's
signature on the reconveyance, Ewy would receive an interest in certain property in Las
Vegas; (4) when respondent allegedly did not own any interest in the Las Vegas property.
Ewy's testimony was supported by a copy of the deed containing the reconveyance signed by
Ewy, and the original deed to the Las Vegas property purporting to transfer a beneficial
interest in that property from Nicro to Ewy. The latter document was signed by respondent in
his capacity as president of Nicro.
[Headnotes 2, 3]
In light of the above testimony, we conclude that an adequate foundation existed to
support the admission of the deeds into evidence at the preliminary hearing. Further, we
conclude that sufficient evidence was adduced at the preliminary hearing to establish
probable cause to believe that respondent, through the use of false pretenses, and with an
intent to defraud, obtained Ewy's signature to the reconveyance. The details of the underlying
loan transactions appear irrelevant to the question of whether respondent used false pretenses
to obtain Ewy's signature on the reconveyance. Accordingly, we conclude that the district
court committed substantial error when it determined that there was insufficient evidence to
bind respondent over for trial on the charged offense. See Sheriff v. Provenza, 97 Nev. 346,
630 P.2d 265 (1981). Therefore, we reverse the order of the district court granting the pretrial
petition for a writ of habeas corpus, and remand this matter for further proceedings consistent
with this opinion.
___________
102 Nev. 363, 363 (1986) Stagecoach Util. v. Stagecoach Gen. Imp. Dist.
STAGECOACH UTILITIES, INC., A NEVADA CORPORATION, Appellant, v.
STAGECOACH GENERAL IMPROVEMENT DISTRICT, Respondent.
No. 16678
September 4, 1986 724 P.2d 205
Appeal from a judgment awarding appellant damages in the amount of $1.00 in a property
condemnation action. Third Judicial District Court, Lyon County; Mario G. Recanzone,
Judge.
Water utility's water system was condemned by general improvement district, and the
district court awarded damages of $1.00. Utility appealed. The Supreme Court held that
utility was entitled to damages between amount equal to salvage value of water system and
amount equivalent to reproduction cost of water system minus depreciation, plus interest
running from date of taking until date of payment.
Alan Smith, Reno, for Appellant.
William G. Rogers, District Attorney, Lyon County, for Respondent.
Eminent Domain.
Utility company, whose water system was condemned, was entitled to damages between amount equal to
salvage value of water system and amount equivalent to reproduction cost of water system minus
depreciation, plus interest from date of taking until date of payment. Const. art. 1, 8.
OPINION
Per Curiam:
This case presents a challenge to the district court's award of damages of $1.00 to
appellant in the condemnation proceedings below. Because we have concluded that the
district court erred in determining the amount of damages, we reverse the judgment of the
district court and remand this action for a reevaluation of damages in accordance with the
views expressed in this opinion.
Prior to August 1984, appellant, Stagecoach Utilities, Inc. (the Utility), owned and
operated a water distribution system which provided water for domestic uses and fire
protection to the Stagecoach area of Lyon County, Nevada. At the very least, the water
distribution system was unprofitable, and extensive repairs were needed to enable the system
to provide an adequate level of service to Stagecoach residents.
In August 1984, respondent, Stagecoach General Improvement District (the District),
initiated proceedings to condemn the water system. Subsequently, the Utility stipulated to the
condemnation of its property. As a result, the District received title to two parcels of land, all
water tanks, water mains, water laterals, pumps, lifts, meters, valves, and all water rights
contained in four specified water permits. Therefore, the sole issue remaining for trial was
that of damages. Three experts testified as to their opinion of the value of the condemned
property; however, the district court stated that it received no assistance whatsoever from the
experts' testimony. In fact, the district court found that, in view of the evidence presented, any
finding that the Utility had suffered any real and substantial damage would be based on mere
speculation. Therefore, the district court awarded damages in the amount of $1.00 to the
Utility.
It is clear that when private property is taken for public use, just compensation must be
paid to the property owner. Nev. Const. art. 1 8. 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. Sorenson v. State ex rel.
Dep't of Hwys., 92 Nev. 445, 447, 552 P.2d 487, 488 (1976). It is undisputed that placing a
value on a utility for condemnation purposes is a difficult endeavor at best. Onondaga County
Water Auth. v. New York W. S. Corp., 139 N.Y.S.2d 755 (1955). There is no established
market for utilities; therefore, comparable sales with which to compare the instant
condemnation are few. Valuation is made all the more difficult when the condemned utility is
a losing proposition such as the Stagecoach water system, yet difficulty in assessing a value
does not relieve a court from its duty to award just compensation to the condemnee.
Ordinarily, the rule in condemnation actions is that when determining the value of the
condemned property, the trial court must look to the value that the property had to the
condemnee, not the condemnor. See Monongahela Navigat'n Co. v. United States, 148 U.S.
312, 328 (1893). Accordingly, from the Utility's standpoint, it appears that the Utility has
been relieved of the enormous burden of repairing an unprofitable water system by virtue of
the condemnation. Nevertheless, the Utility has had property that it once owned taken by the
District. Obviously, the District wishes to acquire the system, and the constitutional mandate
is clear: Just compensation must be paid to the Utility. Therefore, in cases such as this, it has
been suggested that the court look to the value that the utility has to the condemnor to arrive
at a damage amount. See Port Auth. Trans-Hudson Corp. v. Hudson R. T. Corp., 231 N.E.2d
734 (N.Y. 1967), cert. denied, 390 U.S. 1002 (1968). The rationale for such an approach has
been succinctly stated as follows: Where . . . the utility has been operated over a
substantial period of time at a loss the property is not an asset of the condemnee, and, as
a matter of fact, is a definite liability which is all the more onerous by reason of the
inability of the company to effect a unilateral discontinuance of its project. "Value to the
owner" under such circumstances has been held not to be controlling.
Where . . . the utility has been operated over a substantial period of time at a loss the
property is not an asset of the condemnee, and, as a matter of fact, is a definite liability
which is all the more onerous by reason of the inability of the company to effect a
unilateral discontinuance of its project. Value to the owner under such circumstances
has been held not to be controlling. The rationale in support of the exception is
predicated upon the fact that from the standpoint of the governmental condemnor there
are other facts equally controlling. It must be assumed that if the condemnor desires to
acquire a particular utility, it does so because it considers the property of value to it. It
wishes to make available a supply of the product of the utility whether the operation is
carried on at a profit or at a loss. Only two means are available to the condemnor to
accomplish that end. It can either build a new plant or it has the power to acquire the
existing plant by paying just compensation. If the condemnee's plant was not in
existence and a new one had to be constructed, the cost to the condemnor would
normally be an amount larger than the value of the condemnee's plant, plus the cost of
placing it in first class operating condition. From the standpoint of the condemnor, the
fair value in such cases must be between the salvage value of the property, as a
minimum, and the depreciated cost of the property minus certain deductions, as the
maximum.
4A J. Sackman, Nichols on Eminent Domain 15.4[1] (3d ed. 1985) (footnote omitted). See
also 2 Orgel, Valuation Under the Law of Eminent Domain 217 (2d ed. 1953). We conclude
that such an approach is sound in a situation such as herein presented.
1

Accordingly, it is our opinion that an accurate measure of the just compensation to be paid
to the Utility for the condemnation of its property lies between an amount equal to the salvage
value of the water system and an amount equivalent to the reproduction cost of the water
system minus depreciation. Salvage value is that amount representing the value of the plant
and equipment remaining after the useful life of that plant and equipment has expired. Black's
Law Dictionary 1203 (5th ed. 1968). Reproduction cost is that amount representing the cost
that would be incurred should the District undertake to build a plant identical to that
condemned.
____________________

1
Counsel for appellant asks us to look at the experts' testimony and fix an amount to be awarded for the
taking of the Utility's property. Cf. Cardan Overseas, Ltd. v. Harris, 92 Nev. 62, 544 P.2d 1202 (1976)
(reviewing court must take remedial action if there is no conflict in the evidence presented on any given material
point). In view of the fact that the three experts gave a total of seven different amounts, we simply cannot agree
with counsel's opinion that the evidence was not in conflict. For that reason, we decline to fix the amount of
damages.
the District undertake to build a plant identical to that condemned. See 2 Orgel, Valuation
Under the Law of Eminent Domain, above, 210. Depreciation is the combination of two
separate quantities: The first, physical depreciation, is that amount representing the decline in
value of the water system due to the expiration of the useful life of plant and equipment, and,
the second, functional depreciation, is that amount representing the decline in value of the
water system due to inadequacy and obsolescence of the system at the time of condemnation.
2 Orgel, Valuation Under the Law of Eminent Domain, above, 212-213. We also note that
any award in this action must include an amount representing the fair market value of the real
property taken from the Utility by the District.
Because the record before us is devoid of any evidence representing the above range of
damages, it will be necessary for the district court to hear additional evidence of value.
Therefore, we remand this case to the district court for a determination of damages in
accordance with this opinion.
2
Finally, we note that the Utility is entitled to interest on the
award made by the district court on remand, running from the date of the taking until the date
of payment. County of Clark v. Alper, 100 Nev. 382, 392, 685 P.2d 943, 950 (1984).
____________________

2
The Utility has argued that it is entitled to receive as severance damages the amount of $13,500 in accounts
receivable. Contrary to the Utility's assertion, the accounts receivable are not rendered uncollectable by the
condemnation. The Utility no longer has the option of shutting off the delinquent customers' water to force
payment, but the Utility may initiate legal proceedings to collect any amounts still owing. Also the Utility
suggests that it should receive damages for the loss of its water rights. There was substantial evidence presented
below showing that only excess water rights would have value and that there were no such excess water rights
owned by the Utility. Therefore, the refusal of the district court to award a sum for water rights will not be
disturbed on appeal. See Udevco, Inc. v. Wagner, 100 Nev. 185, 678 P.2d 679 (1984).
____________
102 Nev. 367, 367 (1986) Massey v. Sunrise Hospital
DONALD J. MASSEY, and BERTHA M. MASSEY, His Wife, Appellants, v. SUNRISE
HOSPITAL, a Nevada Corporation, Respondent.
No. 16370
September 4, 1986 724 P.2d 208
Appeal from order and judgment granting dismissal for want of prosecution. Eighth
Judicial District Court, Clark County; Stephen Huffaker, Judge.
Medical malpractice action was brought against hospital and physician. Hospital's motion
to dismiss for want of prosecution was granted by the district court and plaintiffs appealed.
The Supreme Court held that three-year extension, after remittitur of appeal, as to five-year
period in which action must be brought to trial was triggered by appeal of order granting
physician's motion for summary judgment, and such extension applied to hospital, which was
not involved in appeal.
Eric Zubel, Las Vegas; Jeffrey Fihn, Las Vegas, for Appellants.
Barker, Gillock & Perry, Las Vegas; George Cromer, Las Vegas, for Respondent.
1. Pretrial Procedure.
Absent written stipulation, dismissal of claim not brought to trial within five years of commencement of
action is mandatory. NRCP 41(e).
During pendency of appeal, any time limitations with respect to dismissal for lack of prosecution are
tolled.
Three-year extension, after remittitur of appeal, as to five-year period in which action must be brought to
trial was triggered by medical malpractice plaintiffs' appeal of trial court order granting defendant
physician's motion for summary judgment, and such three-year extension of five-year period in which
action must be brought to trial applied to defendant hospital, which was not involved in appeal. NRCP
41(e).
Where claim involves multiple defendants and plaintiff chooses to exercise right of appeal with regard to
order as to fewer than all of defendants, other defendants are held to three-year extension, following
remittitur of appeal, of five-year period in which action must be brought to trial.
OPINION
Per Curiam:
Bertha and Donald Massey initiated a claim against Sunrise Hospital for professional
malpractice.
Hospital for professional malpractice. They later amended their complaint to name Ralph J.
Litton, M.D., as a co-defendant. Dr. Litton was granted a separate trial in order to hear his
statute of limitations defense. A jury returned a verdict in favor of Dr. Litton. Later, Sunrise
Hospital moved to dismiss for want of prosecution pursuant to NRCP 41(e). The district court
granted this motion. The Masseys argue that the district court erred in its construction of the
rule. We agree. Therefore, we reverse and remand for further proceedings consistent with this
opinion.
The Facts
Ms. Massey experienced numbness and paralysis in her left foot following hip replacement
surgery. An initial complaint was filed July 28, 1978, against Sunrise Hospital (Sunrise)
alleging negligence. On September 11, 1979, an amended complaint was filed naming Dr.
Litton as a co-defendant. He moved to dismiss on the ground that the statute of limitations
barred the claim. On April 16, 1982, Dr. Litton's motion to dismiss was granted, and
judgment was entered in his favor pursuant to NRCP 54(b).
The Masseys then appealed to this court claiming that the district court erred in its
construction of the statute of limitations. During the pendency of the appeal involving Dr.
Litton, the Masseys and Sunrise Hospital entered a stipulation, which the district court
approved, to waive NRCP 41(e) until six months after remittitur of the appeal.
1
This was
accomplished on June 15, 19S3.
____________________

1
NRCP 41(e) states:
The court may in its discretion dismiss any action for want of prosecution on motion of the defendant
and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to
bring such action to trial. Any action heretofore or hereafter commenced shall be dismissed by the court
in which the same shall have been commenced or to which it may be transferred on motion of the
defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought
to trial within five years after the plaintiff has filed his action, except where the parties have stipulated in
writing that the time may be extended. When, in any action after judgment, a motion for a new trial has
been made and a new trial granted, such action shall be dismissed on motion of defendant after due notice
to plaintiff, or by the court of its own motion, if no appeal has been taken, unless such action is brought to
trial within three years after the entry of the order granting a new trial, except when the parties have
stipulated in writing that the time may be extended. When in an action after judgment, an appeal has been
taken and judgment reversed with cause remanded for a new trial (or when an appeal has been taken from
an order granting a new trial and such order is affirmed on appeal), the action must be dismissed by the
trial court on motion of defendant after due notice to plaintiff, or of its own motion, unless brought to
trial within three years from the date upon which remittitur is filed by the clerk of the trial court. A
dismissal under this subdivision (e) is a bar to another action upon the same claim for relief against the
same defendants unless the court otherwise provides.
1983. Expiration of the mandatory five-year period was July 28, 1983. Remittitur was filed by
the trial court December 28, 1983. As per the stipulation, trial was to be commenced by June
28, 1984.
In Massey v. Litton, 99 Nev. 723, 669 P.2d 248 (1983), we deemed summary judgment
improper and remanded the issue for an evidentiary hearing. Dr. Litton was granted a separate
trial for resolution of his affirmative defense and judgment was rendered in his favor on April
11, 1984. On December 6, 1984, Sunrise moved to dismiss pursuant to NRCP 41(e). The
motion was granted and this appeal followed.
Statutory Interpretation
[Headnote 1]
NRCP 41(e) contains several provisions which provide for dismissal for want of
prosecution. The provision with which we are concerned is as follows:
When in an action after judgment, an appeal has been taken and judgment reversed with
cause remanded for a new trial (or when an appeal has been taken from an order
granting a new trial and such order is affirmed on appeal), the action must be dismissed
by the trial court on motion of the defendant after due notice to plaintiff, or of its own
motion, unless brought to trial within three years from the date upon which remittitur is
filed by the clerk of the trial court.
The spirit of the law contemplates a trial on the merits. E.g., Spiegelman v. Gold Dust
Texaco, 91 Nev. 542, 545, 539 P.2d 1216, 1218 (1975). Balanced against this policy,
however, is the desire to end litigation after a reasonable amount of time. Bank of Nevada v.
Friedman, 86 Nev. 747, 751, 476 P.2d 172, 175 (1970). Rule 41(e) accomplishes this end by
requiring counsel's diligence in pursuing claims. Absent a written stipulation, claims not
brought to trial within five years of commencement are dismissed pursuant to motion. Such
action is mandatory. E.g., Meredith v. Arden, 92 Nev. 620, 621, 555 P.2d 1241, 1242 (1976).
The three-year provision, however, extends the five-year rule when an appeal is taken.
Such an extension is necessary in order to assure that plaintiffs are treated fairly. Without a
three-year extension after remittitur of the appeal, many claims would be outside the five-year
limitation period.
It is noted, however, that NRCP 41(e) explicitly addresses new trials. Here, Dr. Litton
was summarily dismissed as a defendant in the action. There had never been an initial trial on
the merits of the case. In McGinnis v. Consolidated Casinos Corp., 97 Nev. 31, 623 P.2d 974
(1981), we faced a similar situation. There, an amended complaint was dismissed by the
lower court and, on appeal, we reversed the order of dismissal and remanded with
instructions to reinstate the amended complaint.
lower court and, on appeal, we reversed the order of dismissal and remanded with
instructions to reinstate the amended complaint. The respondent was then granted summary
judgment and a second appeal ensued. The respondent moved to dismiss the appeal
contending that even if the summary judgment was reversed, the five-year rule would
require dismissal. Id. at 32.
We determined that the three-year provision was triggered even though the case had
been remanded for an initial trial. Id. at 33.
If a district court should be permitted to allow a maximum of three years to re-try a case
following reversal, then surely like exigencies dictate that the district court should have
discretion to allow equal time, following remand, to conclude preparation and bring a
matter to trial in the first instance.
Id.
[Headnotes 2, 3]
Any plaintiff who perceives error by the district court is entitled to appeal a final judgment
pursuant to NRAP 3A(b)(1). During the pendency of an appeal, any time limitations are
tolled. A plaintiff cannot be penalized for exercising a right to challenge the trial judge in
such a situation. Here, the district court judge granted Dr. Litton's motion for summary
judgment. The court certified that the judgment was final and there was no just reason for
delay. See generally, Wilmurth v. State, 79 Nev. 490, 387 P.2d 251 (1963). The Masseys
chose to appeal this decision and did not want to proceed to trial solely against Sunrise. In
effect, the case was delayed by the ruling of the district court; thus, the three-year provision
was triggered. These same policy considerations were asserted in Boren v. City of North Las
Vegas, 98 Nev. 5, 638 P.2d 404 (1982). The appellant there claimed that dismissal of the
action was mandated by the five-year rule. This was notwithstanding the fact that
proceedings had been stayed for more than four years immediately preceding the motion to
dismiss. Id. We determined that [f]or a court to prohibit the parties from going to trial and
then to dismiss their action for failure to bring it to trial is so obviously unfair and unjust as to
be unarguable. Id, at 5-6.
[Headnote 4]
Sunrise urges, however, that the three-year rule cannot be utilized to bind one defendant
when an appeal is taken by the plaintiff against a co-defendant. We disagree. Proceeding to
trial against one defendant during the pendency of such an appeal is unduly burdensome to
the plaintiff as well as to the judiciary. In effect, by its NRCP 54(b) certification, the district
court determined that an interlocutory appeal should take precedence over a trial.
trial. Therefore, where the claim involves multiple defendants and the plaintiff chooses to
exercise the right to an appeal, we hold the other defendants likewise will be held to the
three-year rule.
We note that the motion to dismiss pursuant to NRCP 41(e) was brought by respondent
based on the five-year rule. As elucidated above, such action is mandatory. Although the
order of dismissal is silent as to the reasons for same, we must assume the trial judge felt such
dismissal was mandatory and failed to exercise the necessary discretion which the
three-year rule requires. A court's failure to exercise discretion (when available) is error.
People v. Massie, 428 P.2d 869, 881-82 (Cal. 1967); Moser v. Zion's Co-op. Mercantile Inst.,
197 P.2d 136, 139 (Utah 1948).
Accordingly, we reverse the order and judgment of the district court. The cause is
remanded for a trial on the merits.
___________
102 Nev. 371, 371 (1986) Farmers Home Mutual Ins. v. Fiscus
FARMERS HOME MUTUAL INSURANCE COMPANY, Appellant, v. JOHN FISCUS,
JR., and BEVERLY L. FISCUS, Respondents.
No. 16831
September 4, 1986 725 P.2d 234
Appeal from judgment in an action against insurer for denial of insurance claim; Eighth
Insureds brought action against insurer alleging breach of homeowner's policy and unfair
settlement practices. The district court entered judgment in favor of insureds. The insurer
appealed. The Supreme Court held that: (1) coverage existed for damaged personal property;
(2) evidence was sufficient to sustain finding that employer breached implied covenant of
good faith and fair dealing; (3) insureds were entitled to recover compensatory damages for
mental and emotional distress; (4) insureds were entitled to recover prejudgment interest; and
(5) insureds were entitled to recover attorney fees.
Affirmed.
Fadgen, Lovell, Bilbray & Potter and David Schieck, Las Vegas, for Appellant.
Rogers, Moore, Mahoney, & Cook, Las Vegas, for Respondents.
1. Insurance.
Recovery for personal property damaged by water which flowed from disconnected water supply pipes in
home existed under homeowner's policy section providing coverage for direct loss to property caused by
accidental discharge or overflow of water or steam from within plumbing, heating or air conditioning
system or from within household appliance.
2. Insurance.
Evidence was sufficient to sustain trial court's finding that insurer was liable for breach of implied
covenant of good faith and fair dealing by manner in which it denied insureds' claim under homeowner's
policy without a reasonable basis and by reason of insurer's unprofessional claims investigative procedures.
3. Damages.
Insurers were entitled to recover compensatory damages for mental and emotional distress due to
insurer's breach of homeowner's policy and unfair settlement practices given unrebutted testimony of one
insured that majority of family's personal possessions had been destroyed, that home had been rendered
uninhabitable, that because of insurer's actions he lacked money to repair home, that as a result his home
had been condemned, and that wife suffered total emotional breakdown shortly after visit from insurer's
claims adjuster.
4. Interest.
Evidence before trial court in action brought by insureds against insurer alleging breach of contract and
unfair settlement practices was of insureds' mental and emotional distress from date of water damage to
home and personal property until date of trial, and there was nothing to indicate that future damages were
included in that award; therefore, insureds were entitled to prejudgment interest on that amount. NRS
17.130, subd. 2.
5. Costs.
Insurer's bad faith refusal to pay legitimate claim persisted from a time prior to enactment of statute,
which provided for award of attorney fees to prevailing party when court finds that claim, counterclaim,
cross claim or third-party complaint was brought without reasonable ground or to harass prevailing party,
after enactment and to the present time; therefore, insureds could recover attorney fees pursuant to that
statute. NRS 18.010, subd. 2(b).
OPINION
Per Curiam:
Appellant Farmers Home Mutual Insurance Company (Farmers) denied the claim of
respondents, John Fiscus, Jr. and Beverly L. Fiscus (Fiscuses), for damages to personal
property which was covered by their homeowner's insurance policy. The Fiscuses filed an
action against Farmers, seeking recovery for breach of contract and for unfair settlement
practices. The district court found in the Fiscuses' favor on their causes of action for breach of
contract and for breach of the implied covenant of good faith and fair dealing. The district
court after a bench trial awarded damages for breach of contract and for mental distress.
The court also gave an award for attorney's fees, costs and prejudgment interest. This appeal
followed.
On August 9, 1981, the Fiscuses returned from a three-week vacation to find their Boulder
City home flooded with water flowing from disconnected water supply pipes connecting to
the roof-mounted swamp cooler and from under the kitchen sink. Carpets, draperies,
furniture, appliances, clothing and personal property throughout the house were damaged in
the amount of $21,160.00.
In early February, 1982, the Fiscuses reported their loss to Farmers and filed a claim on
their insurance policy. Shortly after the filing of the claim Farmers' claims adjuster and a
contractor/estimator, also employed by Farmers, briefly interviewed the Fiscuses. They
inspected the water-damaged home and photographed the damage. On February 23, 1982,
Farmers denied the claim. Farmers' basis for denial was that the policy did not provide
coverage for seepage of water which had occurred over a prolonged period of time. On
October 12, 1982, the Fiscuses commenced a civil action against Farmers, which had
persisted in denying the personal property claim on this same basis.
Farmers' Contract Liability Under the Policy
[Headnote 1]
Farmers contends that the district court's findings of contract liability under the policy
were unsupported by evidence presented at trial. The district court found that the Fiscuses'
substantial personal property loss was covered by the homeowner's policy to the policy limit
of $18,500.00.
Farmers' refusal to pay the personal property water damage claim was based entirely on
one provision in Coverage A and B, the real property provision of the policy, which provides:
SECTION IPERILS INSURED AGAINST
Coverage A
Dwelling
We insure for all risks of physical loss to the property described in
Coverage A and B except
and . . . .
Coverage B
Other
Structures
6. Continuous or repeated seepage or leakage of water or steam over
a period of time from within a plumbing, heating or air conditioning
system or from within a household appliance.
The Fiscuses contended that Farmers was liable for injury to their personal property under
Coverage C of the policy and that there was no exclusion in the personal property section of
the policy for continuous or repeated seepage of water.
Coverage C provides: Coverage C Personal Property
We insure for direct loss to the property described in Coverage C caused by:
Coverage C Personal Property
Coverage C
Personal
Property
We insure for direct loss to the property described in Coverage C
caused by:
. . . .
13. Accidental discharge or overflow of water or steam from within a
plumbing, heating or air conditioning system or from within a
household appliance.
We agree with the district court that coverage existed for personal property under
Coverage C, section thirteen. Further, we agree that Farmers wrongfully denied coverage
under a policy exemption that was clearly inapplicable to this claim. This unjustified denial
persisted from the inception of the Fiscuses' claim through the present appeal.
Farmers' Breach of Implied Covenant of Good Faith
[Headnote 2]
The district court also decided that Farmers was liable for breach of the implied covenant
of good faith and fair dealing by the manner in which Farmers denied Fiscuses' claim without
reasonable basis and by reason of the insurance company's unprofessional claims
investigative procedures. There is sufficient evidence on the record for this court to conclude
on appeal that the district court did not err in finding that Farmers committed a breach of its
implied duty of good faith and fair dealing. See United States Fidelity v. Peterson, 91 Nev.
617, 540 P.2d 1070 (1975).
Mental and Emotional Distress Damages
[Headnote 3]
Farmers contends that the district court erred in the award of mental distress damages of
$5,000.00 to John Fiscus and of $15,000.00 to Beverly Fiscus. Farmers maintains that Mr.
Fiscus' testimony alone, without support of medical testimony, medical records, prescriptions
or independent witnesses, was insufficient evidence to prove mental distress. Further,
Farmers contends that, even if there were a proper finding of mental distress, there was no
evidence that it was caused by Farmers.
The district court heard unrebutted testimony from Mr. Fiscus that a majority of his
family's personal possessions had been destroyed, that his home had been uninhabitable since
August 9, 1981, that because of Farmers' actions he lacked the money to repair the home, and
that as a result the home had been condemned. He testified that his wife had suffered from a
total emotional breakdown shortly after the visit from Farmers' claims adjuster. In reviewing
the record, we conclude that the district court could have reasonably concluded that the
Fiscuses suffered compensable anxiety, worry, mental and emotional distress from the
date of Farmers' February, 19S2, denial of the claim until the date of judgment in August
of 19S5.
compensable anxiety, worry, mental and emotional distress from the date of Farmers'
February, 1982, denial of the claim until the date of judgment in August of 1985.
Compensatory damages were properly awarded against Farmers for this injury.
Prejudgment Interest
[Headnote 4]
NRS 17.130(2)
1
allows prejudgment interest except in the case of future damages.
Farmers' point here is that in the district court's award of $20,000.00 to the Fiscuses for
anxiety, worry, mental and emotional distress the court did not specify whether the award was
for past or future damages. Therefore, it is argued, no interest can be awarded. Farmers cites
Stickler v. Quilici, 98 Nev. 595, 655 P.2d 527 (1982), for the proposition that where it is
impossible to determine what portion of a verdict was allocated for past damages, then the
entire prejudgment interest award is unascertainable, and grounds exist for reversible error.
Stickler is distinguishable from the present case. In Stickler the amount of past damages
was not ascertainable. Here, evidence was presented before the district court of the Fiscuses'
mental and emotional distress from the date of the water damage until the date of trial. There
is nothing in the record to suggest that future damages were included in the award; whereas in
Stickler, the defendants had requested a special verdict and related instructions which would
require a jury to distinguish between past and future damages. The damages in Stickler were
the result of extensive injuries from an automobile accident. When the trial court refused such
instructions and the jury returned a general verdict for the plaintiffs, this court held that
prejudgment interest on the entire amount was impermissible.
Prejudgment interest in this case constitutes compensation for use by Farmers of money to
which the Fiscuses were entitled from the time of the cause of action until the time of
judgment. There was no testimony regarding future mental distress nor lack of clarity in the
record to indicate the trial court improperly awarded prejudgment interest for future mental
distress damage. Farmers' argument on this point is without merit.
Attorney's Fees
The district court awarded attorney's fees of $5,000.00 pursuant to newly amended
section {2){b) {July 1, 19S5),2 NRS 1S.010.
____________________

1
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 12 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.
ant to newly amended section (2)(b) (July 1, 1985),
2
NRS 18.010. It reasoned that a finding
of bad faith against the insurance company was at least tantamount to finding that Farmers'
defense was maintained without reasonable ground.
3

Farmers argues that their defense was brought two and one-half years prior to the effective
date of the amendment and that attorney's fees represent a substantive right. Farmers cites the
general rule that an amendment cannot be construed as to act upon parties' already existing
rights and liabilities unless the legislature has provided for such construction in express
terms, citing Halloway v. Barrett, 87 Nev. 385, 487 P.2d 501 (1971).
Halloway does not lend support to Farmers' argument. Contrary to Farmers' contentions,
this court in Halloway ruled that the trial court's order did not constitute retroactive
application of a statute, but rather, that the deficiency judgment in question arose after the
effective date of the statute. The statute in question in Halloway did not, therefore, impair
preexisting obligations or constitutional rights since the foreclosure on the property occurred
after the effective date of the statute.
In Kuehn v. Paroni, 20 Nev. 203, 19 Pac. 273 (1888), this court sanctioned the award of
costs which arose out of a wrong committed before the change in an amending statute. In
Kuehn, an amended statute authorized attachment in an action for damages arising out of the
perpetration of the crime of rape, even though the rape in question had occurred prior to the
effective date of the statute. The court reasoned: The cause of action [for damages] arose
from expenses incurred and services lost in consequences of defendant's wrongful act, and
these damages occurred, in part at least, after the amendment became a law.
[Headnote 5]
In the case now before us Farmers' bad faith refusal to pay a legitimate claim persisted
from a time prior to the enactment of the statute in question, after enactment and to the
present time. The Fiscuses have continued to incur legal expenses after the time of enactment
of the amendment. We follow the settled rule that recoverable litigation costs are subject to
change by the legislature and are governed by the law in effect at the time of judgment.
____________________

2
NRS 18.010(2)(b) provides:
2. In addition to the cases where an allowance is authorized by specific statute, the court may make an
allowance of attorney's fees to a prevailing party:
. . . .
(b) Without regard to the recovery sought, when the court finds that the claim, counterclaim,
cross-claim or third-party complaint or defense of the opposing party was brought without reasonable
ground or to harass the prevailing party.

3
Farmers disagrees, submitting there were numerous reasonable grounds for defending the suit. In view of the
district court's findings of bad faith, it is unnecessary for us to address this issue.
that recoverable litigation costs are subject to change by the legislature and are governed by
the law in effect at the time of judgment. American Bank and Trust Co. v. Community Hosp.,
204 Cal.Rptr. 671, 683 P.2d 670, (Cal. 1984); Coast Bank v. Holmes, 97 Cal.Rptr. 30
(Cal.App. 1971); Songer v. State Farm Fire & Cas. Co., 414 N.E.2d 768 (Ill.App. 1980). The
district court did not err in awarding attorney's fees under NRS 18.010(2)(b).
Because it appears to this court that Farmers continued in bad faith denial of the
respondents' claim by bringing this appeal, under NRAP 38, we award $5,000.00 to help
defray attorney fees for which respondents have contracted in the instant appeal.
4

The judgment of the district court is affirmed.
____________________

4
On July 30, 1986, respondents filed a motion with this court requesting punitive damages and attorney's fees
pursuant to NRAP 38. Farmers opposed the motion. This opinion encompasses disposition of that motion.
___________
102 Nev. 377, 377 (1986) Hill v. State
JAMES EARL HILL, Appellant, v. THE
No. 15543
September 4, 1986 724 P.2d 734
Appeal from sentence of death. Eighth Judicial District Court, Clark County; John F.
Mendoza, Richard Legarza, and Norman Robison, Judges.
Defendant was convicted before the district court of one count of burglary, two counts of
attempted robbery, and one count of first degree murder, all with use of deadly weapon, and
was sentenced by three judge panel to death, and he appealed. The Supreme Court held that:
(1) three judge panel sentencing procedure did not deprive defendant of his right to jury trial,
did not violate double jeopardy clause of Fifth Amendment, or result in arbitrary and
capricious imposition of death penalty; (2) fact that jury's general verdict did not clearly
indicate whether jury found defendant to have been actual perpetrator of murder or merely to
have aided and abetted actual perpetrator did not render death penalty a violation of the
Eighth Amendment; and (3) death sentence was proper.
Affirmed.
Morgan D. Harris, Public Defender, David S. Gibson, Deputy, Clark County, for
Appellant.
102 Nev. 377, 378 (1986) Hill v. State
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney, James N.
Tufteland, Deputy, David Schwartz, Deputy, Clark County, for Respondent.
1. Jury.
Three judge panel sentencing procedure for first degree murder cases did not deprive defendant of his
Sixth Amendment right to jury trial. NRS 175.556; U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Three judge panel sentencing procedure for first degree murder cases did not violate double jeopardy
clause of Fifth Amendment, in that panel could impose death sentence only if jury was unable to reach
unanimous verdict upon sentence to be imposed. NRS 175.556; U.S.C.A.Const. Amend. 5.
3. Criminal Law.
Three judge panel sentencing procedure for first degree murder cases did not result in arbitrary and
capricious imposition of death penalty. NRS 175.556; U.S.C.A.Const. Amend. 8.
4. Criminal Law.
Fact that jury's general verdict did not clearly indicate whether defendant was found to have been actual
perpetrator of murder or to have merely aided and abetted actual perpetrator did not render imposition of
death penalty a violation of the Eighth Amendment, in that three judge panel found that defendant was
actual perpetrator of the murder. NRS 175.556; U.S.C.A.Const. Amend. 8.
5. Homicide.
Evidence supported findings that murder involved torture and was committed while defendant was
engaged in commission of burglary, attempted robbery, and sexual assault and, thus, supported imposition
of death penalty; death sentence was not imposed under influence of passion, prejudice, or any arbitrary
factor, and was not excessive or disproportionate to penalty imposed in similar cases within Nevada. NRS
177.055(2)(b), (d), 200.033 (4), (8).
Prohibition against ex post facto laws requires application of law as law existed when crime was
committed. U.S.C.A.Const. Art. 1, 10, cl. 1.
OPINION
Per Curiam:
A jury convicted appellant James Earl Hill of one count of burglary, two counts of
attempted robbery, and one count of first degree murder, all with the use of a deadly weapon.
At the penalty hearing for Hill's first degree murder conviction, the jury was unable to reach a
unanimous verdict upon the sentence to be imposed. Pursuant to NRS 175.556
1
, this court
appointed two district court judges who, together with the district court judge who
presided at Hill's trial, conducted a second penalty hearing.
____________________

1
If a jury is unable to reach a unanimous verdict upon the sentence to be imposed, the supreme court
shall appoint two district judges from judicial districts other than the district in which the plea is made,
who
102 Nev. 377, 379 (1986) Hill v. State
district court judges who, together with the district court judge who presided at Hill's trial,
conducted a second penalty hearing. The three judge panel found, as aggravating
circumstances, that the murder involved torture, NRS 200.033(8), and that the murder was
committed while Hill was engaged in the commission of a burglary, attempted robbery, and
sexual assault, NRS 200.033(4). The three judge panel found no mitigating circumstances and
sentenced Hill to death. On appeal, Hill raises several assignments of error which are directed
to the propriety of his sentence of death. We reject them as meritless.
1. Hill argues that the three judge panel sentencing procedure specified by NRS 175.556 is
unconstitutional. We disagree.
[Headnote 1]
The three judge panel sentencing procedure does not deprive a criminal defendant of his
Sixth Amendment
2
right to a jury trial. In Cabana v. Bullock, 54 U.S.L.W. 4105, 4108 (U.S.
January 22, 1986), the United States Supreme Court stated that neither the Sixth
Amendment [n]or any other constitutional provision provides a defendant with the right to
have a jury consider the appropriateness of a capital sentence.
[Headnote 2]
Nor does the three judge panel sentencing procedure violate the double jeopardy clause of
the Fifth Amendment.
3
At the penalty phase of a capital trial, the rights guaranteed by the
double jeopardy clause are implicated when the jury has . . . acquitted the defendant of
whatever was necessary to impose the death sentence. Bullington v. Missouri, 451 U.S. 430,
445 (1981) (quoting State ex rel. Westfall v. Mason, 594 S.W.2d 908 (Mo. 1980) (Bardgett,
C. J., dissenting) (emphasis added). See also Arizona v. Rumsey, 81 L.Ed.2d 164 (1984). The
three judge panel sentencing procedure, in contrast, permits the three judge panel to sentence
the defendant to death only [i]f a jury is unable to reach a unanimous verdict upon the
sentence to be imposed. NRS 175.556 (emphasis added).
____________________
shall with the district judge who conducted the trial, or his successor in office, conduct the required
penalty hearing to determine the presence of aggravating and mitigating circumstances, and give sentence
accordingly. A sentence of death may be given only by unanimous vote of the three judges, but any other
sentence may be given by the vote of a majority.

2
In all criminal prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial jury. U.S.
Const. amend. VI.

3
[N]or shall any person be subject for the same offense to be twice put in jeopardy of life and limb. U.S.
Const. amend. V. See also Nev. Const. art. 1, sect. 8.
102 Nev. 377, 380 (1986) Hill v. State
[Headnote 3]
Finally, the three judge panel sentencing procedure does not result in the arbitrary and
capricious imposition of the death penalty. Godfrey v. Georgia, 446, U.S. 420 (1980).
[Headnote 4]
2. Hill argues that, because it is impossible to determine from the jury's general verdict
whether it found him to have been the actual perpetrator of the murder or merely to have
aided and abetted the actual perpetrator, the imposition of the death penalty would violate the
Eighth and Fourteenth Amendments. Hill relies upon Enmund v. Florida, 458 U.S. 782
(1982), in which the United States Supreme Court held that the Eighth and Fourteenth
Amendments are violated by the imposition of the death penalty on a defendant who aided
and abetted a felony in the course of which a murder was committed by others but who did
not himself kill, attempt to kill, intend to kill, or contemplate that life would be taken. The
three judge panel found that Hill was the actual perpetrator of the murder. That finding is
sufficient to satisfy Enmund. Cabana, supra. [T]he Eighth Amendment does not require that
a jury make the findings required by Enmund. Id. at 4109.
[Headnotes 5, 6]
3. The evidence supports the three judge panel's finding of four aggravating circumstances.
NRS 177.055(2)(b). Nothing contained in the record indicates that the sentence of death was
imposed under the influence of passion, prejudice, or any arbitrary factor. NRS 177.055(2)(c).
Because of the horrifying brutality of the killing in this case,
4
the sentence of death is not
excessive or disproportionate to the penalty imposed in similar cases within the state,
considering both the crime and the defendant. NRS 177.055(2)(d).
5

Hill's remaining assignments of error are meritless. Accordingly, we affirm judgment of
conviction and sentence of death.
____________________

4
Hill killed an elderly, paralyzed woman by repeatedly thrusting a long wooden stick into her rectum and
vagina, perforating her vulva, perineal septum, sigmoid colon, and kidney.

5
The United States Supreme Court recently held that state courts are not constitutionally required to conduct
proportionality reviews of sentences of death. Pulley v. Harris, 465 U.S. 37 (1984). NRS 177.055(2)(d) was
recently amended to abolish the proportionality review requirement. This amendment became effective June 6,
1985. 1985 Stats. ch. 527, Sect. 1, at 1597-1598. The prohibition against ex post facto laws requires that we
apply the law as it existed when the crime was committed. See Goldworthy v. Hannifin, 86 Nev. 252, 468 P.2d
350 (1970). Therefore, we must conduct a proportionality review of Hill's sentence of death.
____________
102 Nev. 381, 381 (1986) Power v. State
GUNNAR MANUEL POWER and FRANK EDWARD POWER, Appellants, v. THE
No. 16466
September 4, 1986 724 P.2d 211
Appeals from judgments of conviction. Eighth Judicial District Court, Clark County;
Donald M. Mosley, Judge.
First defendant was convicted before the district court of attempted murder and second
degree kidnapping, both with use of a deadly weapon, and second defendant, before the same
court, was convicted of battery and second degree kidnapping, both with use of a deadly
weapon, and they appealed. The Supreme Court held that admission into evidence of
transcript of preliminary hearing testimony of complaining witness, who was essential
witness to state's case, whose testimony was not cumulative, and whose testimony was only
evidence which contradicted defendants' version of events in question, was reversible error,
where state made absolutely no effort to contact witness' relatives, neighbors, or
co-employees and made only nominal efforts to contact witness' friends and employers.
Goodman, Terry, Stein & Quintana, and William Smith, Las Vegas, for Appellants.
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney, Ronald C.
Bloxham, Deputy, Clark County, for Respondent.
1. Criminal Law.
Transcript of witness' preliminary hearing testimony may be admitted into evidence at criminal trial
without violating defendant's right to be confronted with witnesses testifying against him if defendant was
represented by counsel at preliminary hearing, counsel was provided with adequate opportunity to
cross-examine witness at preliminary hearing, and witness is actually unavailable at time of trial.
2. Criminal Law.
Admission into evidence of transcript of preliminary hearing testimony of complaining witness, who was
essential witness to state's case, whose testimony was not cumulative, and whose testimony was only
evidence which contradicted defendants' version of events in question, was reversible error, where state
made absolutely no effort to contact witness' relatives, neighbors, or co-employees and made only nominal
efforts to contact witness' friends and employers. U.S.C.A.Const. Amend 6.
102 Nev. 381, 382 (1986) Power v. State
OPINION
Per Curiam:
Appellant Gunnar Manuel Power appeals from a judgment of conviction of attempted
murder and second degree kidnapping, both with use of a deadly weapon. Appellant Frank
Edward Power appeals from a judgment of conviction of battery and second degree
kidnapping, both with use of a deadly weapon.
Appellants seek reversal claiming that the district court erred in admitting into evidence
the transcript of the complaining witness' preliminary hearing testimony. We agree,
Accordingly, we reverse Gunnar and Frank Power's judgments of conviction and remand the
case to the district court for a new trial.
THE FACTS
At Gunnar and Frank Power's preliminary hearing, Randy Wheeler, the complaining
witness, testified that Gunnar and Frank Power lured him to their home, bound his arms and
legs, injected him with methamphetamine, drove him to an isolated location, inflicted various
lacerations on his right thigh, neck, and head, and threw him into a ditch. Gunnar and Frank
Power were represented by counsel, who cross-examined Randy Wheeler, at the preliminary
hearing.
On the second day of Gunnar and Frank Power's trial, the state informed the court that it
was unable to obtain Randy Wheeler's presence at trial as a witness and that the state wished
to offer into evidence the transcript of Randy Wheeler's preliminary hearing testimony.
The district court held an evidentiary hearing. At the evidentiary hearing, the state
established that it had made the following unsuccessful attempts to obtain Randy Wheeler's
presence at trial as a witness. During the week before trial, a police detective and the
prosecutor visited and telephoned the house at which Randy Wheeler lived and spoke with
the owner of the house. Four days before trial, the police detective spoke to Randy Wheeler,
who said that he would pick up his subpoena, but Wheeler did not do so. On the day before
trial, the prosecutor spoke with Randy Wheeler's employer and one of Randy Wheeler's
friends. And on the day of the evidentiary hearing, the police detective spoke with another of
Randy Wheeler's friends and telephoned local hospitals, jails, and law enforcement agencies.
At the evidentiary hearing, the state asserted that Randy Wheeler was an essential witness to
its case.
The district court found that the state had been sufficiently diligent in attempting to obtain
Randy Wheeler's presence at trial as a witness and admitted into evidence the transcript of
Randy Wheeler's preliminary hearing testimony.
102 Nev. 381, 383 (1986) Power v. State
THE LAW
Gunnar and Frank Power argue that the district court erred in admitting into evidence the
transcript of Randy Wheeler's preliminary hearing testimony. We agree.
[Headnote 1]
The transcript of a witness' preliminary hearing testimony may be admitted into evidence
at a criminal trial without violating the defendant's right to be confronted with the witnesses
testifying against him, a right secured by the confrontation clause of the Sixth Amendment
1
and made obligatory on the States by the Fourteenth Amendment, Pointer v. Texas, 380 U.S.
400 (1965); Summers v. State, 102 Nev. 195, 718 P.2d 676 (1986), if three preconditions are
met. First, the defendant must have been represented by counsel at the preliminary hearing.
Second, the defendant's counsel must have been provided an adequate opportunity to
cross-examine the witness at the preliminary hearing. Third, the witness must actually be
unavailable at the time of trial. Ohio v. Roberts, 448 U.S. 56 (1980); Mancusi v. Stubbs, 408
U.S. 204 (1972); Pointer, supra; Aesoph v. State, 102 Nev. 316, 721 P.2d 379 (1986). See
also NRS 171.198. The United States Supreme Court has stated:
The basic litmus of Sixth Amendment unavailability is established: [A] witness is not
unavailable' for purposes of . . . the exception to the confrontation requirement unless
the prosecutorial authorities have made a good-faith effort to obtain his presence at
trial. [Citation omitted.] . . . [I]f there is a possibility, albeit remote, that affirmative
measures might produce the declarant, the obligation of good faith may demand their
effectuation. The lengths to which the prosecution must go to produce a witness . . . is
a question of reasonableness. [Citation omitted.] The ultimate question is whether the
witness is unavailable despite good-faith efforts undertaken prior to trial to locate and
present that witness. As with other evidentiary proponents, the prosecution bears the
burden of establishing this predicate.
Ohio, supra, at 74-75.
The state demonstrated that the first two preconditions to the constitutional admission of
the transcript of Randy Wheeler's preliminary hearing testimony had been met. Ohio, supra;
Aesoph, supra. Gunnar and Frank Power were represented by counsel, who cross-examined
Randy Wheeler, at the preliminary hearing. Id.
____________________

1
In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him. U.S. Const. amend. VI.
102 Nev. 381, 384 (1986) Power v. State
[Headnote 2]
The state did not, however, demonstrate that the third precondition had been met. Ohio,
supra; Aesoph, supra. The state's efforts to obtain Randy Wheeler's presence at trial as a
witness, outlined above, were minimal. See Annot., 3 A.L.R. 4th 87 (1981). The state made
absolutely no effort to contact Randy Wheeler's relatives, neighbors, or co-employees. And
the state made only nominal efforts to contact Randy Wheeler's friends and employers. The
fact that the state's efforts to obtain Randy Wheeler's presence at trial as a witness were so
minimal, conjoined with the importance of Randy Wheeler's testimony, compel us to
conclude that the state's efforts were not sufficiently reasonable. The state did not sustain its
burden of demonstrating that Randy Wheeler was actually unavailable at the time of trial. Id.
The district court erred, violating the rights guaranteed to Gunnar and Frank Power by the
confrontation clause of the Sixth Amendment, in admitting into evidence the transcript of
Randy Wheeler's preliminary hearing testimony. Id.
Confrontation clause errors are subject to Chapman v. California, 386 U.S. 18 (1967),
harmless error analysis. Delaware v. Van Arsdall, 89 L.Ed.2d 674 (1986). In Van Arsdall, the
Court stated:
Whether [a confrontation clause error] is harmless in a particular case depends upon a
host of factors, all readily accessible to reviewing courts. These factors include the
importance of the witness' testimony in the prosecution's case, whether the testimony
was cumulative, the presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, . . . and, of course, the overall strength of
the prosecution's case.
Id. at 686-687.
The district court's error in admitting into evidence the transcript of Randy Wheeler's
preliminary hearing testimony was not harmless. Randy Wheeler was an essential witness to
the state's case. His testimony was not cumulative. No evidence, other than his testimony,
contradicted Gunnar and Frank Power's version of the events in question. Van Arsdall, supra.
Accordingly, we reverse Gunnar and Frank Power's judgments of conviction and remand
the case to the district court for a new trial. Our disposition of this issue renders it
unnecessary to address Gunnar and Frank Power's remaining assignments of error.
____________
102 Nev. 385, 385 (1986) Wagoner v. Tillinghast
DONALD DEAN WAGONER, Appellant, v. DORIS S. TILLINGHAST, aka DORIS S.
WAGONER, Respondent.
No. 16225
September 4, 1986 724 P.2d 197
Appeal from judgment confirming master's award of support and arrearages. Eighth
Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
Mother brought action for child support arrearages under Uniform Reciprocal Enforcement
of Support Act. The district court approved master's report without notice or hearing. Father
appealed. The Supreme Court held that judgment which approved master's child support
arrearages report without giving notice and opportunity to be heard to father was void.
Beckley, Singleton, DeLanoy & Jemison and Daniel F. Polsenberg, Las Vegas, for
Appellant.
Robert Miller, District Attorney, Michael Douglas, Deputy District Attorney, and John
Squires, Deputy District Attorney, Las Vegas, for Respondent.
1. Parent and Child.
District court judgment, which approved master's child support arrearages report without giving notice
and opportunity to be heard to father, who had properly objected to report, was void. NRS 130.010 et
seq.; U.S.C.A.Const. Amends. 5, 14; EDCR 1.40; NRCP 53.
2. Reference.
Rule which allows trial court, after hearing, to adopt master's report provides for court hearing on all
master's reports to which objections are filed. EDCR 1.40; NRCP 53.
OPINION
Per Curiam:
This appeal contests the validity of a judgment entered by the district court without notice
or hearing after the ex parte approval of a master's final report in an action for child support
arrearages under the Uniform Reciprocal Enforcement of Support Act (URESA).
1
For
reasons set forth below, we reverse and remand to the district court.
____________________

1
NRS 130.010 et seq. Appellant actually styled his appeal from an order of the district court striking
appellant's motion for summary judgment and denying his alternative application for review of a URESA
hearing master's conclusions of law. Since the judgment confirming the master's award of support and arrearages
is the net source of appellant's alleged injury, we choose to characterize the appeal as stemming from that
judgment.
Respondent, a resident of Ohio, filed suit in Ohio for thirteen years of arrearages under
URESA. In accordance with the act, the Clark County District Attorney's office pursued the
case on behalf of respondent and the case was turned over to a master for the preparation and
submission of his report to the district court.
Respondent's counsel moved to reduce the claim from thirteen years to six years to accord
with the statute of limitations. The master granted the motion. At the same time, appellant
moved to apply the equitable principles of estoppel, laches and acquiescence to set aside the
arrearages. That motion was denied with leave to reopen the issue via briefs from the parties.
The master held that such defenses are not applicable in cases involving child support.
Appellant filed objections with the district court and the master reheard the matter. After that
hearing and the filing of a master's report containing findings of fact and conclusion of law,
appellant filed objections to the master's report. Subsequent proceedings were held before the
master wherein the findings of fact were modified, but the conclusions of law were not
changed.
After the final report from the master was filed, with notice, respondent contacted the
district court ex parte, claiming that no objections to the recommended report had been filed.
Respondent received an ex parte approval of the master's report, which was then reduced to
judgment. Thereafter, appellant filed a motion, with notice, for summary judgment, or in the
alternative, for district court review. Respondent moved the district court to strike appellant's
motion for district court review, contending that no objections were filed. Respondent also
opposed appellant's motion based on the merits. The district court ruled in favor of
respondent on both motions and this appeal followed.
It is not contested that appellant filed timely objections to the master's report on May 15,
1984. It is contested whether a subsequent hearing by the master adequately considered
appellant's objections. We conclude that it did not.
[Headnotes 1, 2]
This court has previously addressed the importance of procedural due process involving
special motions in Maheu v. District Court, 88 Nev. 26, 493 P.2d 709 (1972), when we
stated:
For a century, our settled law has been that any special motion involving judicial
discretion that affects the rights of another, as contrasted to motions of course, must
be made on notice even where no rule expressly requires notice to obtain the particular
order sought, except only when this requirement is altered to meet extraordinary
situations such as those concerned in NRCP 65(b). Pratt v. Rice, 7 Nev. 123 (1871);
NRCP 6(d). It is also fundamental that although an order's subject matter would lie
within the court's jurisdiction if properly applied for, it is void if entered without
required notice.
order's subject matter would lie within the court's jurisdiction if properly applied for, it
is void if entered without required notice.
Id. at 34. The approval of a master's report is a product of a special motion that involves
judicial discretion. Appellant Wagoner did not receive notice of the motion for the ex parte
approval of the master's final report, nor did he have an opportunity to be heard, in spite of
the prior objections which had been filed. Although the district court has jurisdiction to
approve a master's report, when notice and opportunity to be heard are denied to a party who
has properly objected to the master's report, then any action taken is void. Cf. Ray v. Stecher,
79 Nev. 304, 383 P.2d 372 (1963).
EDCR 1.40 provides, in part:
(b) Except as otherwise provided, the proceedings of the Uniform Reciprocal
Support Act masters shall be in accordance with the provisions of NRCP 53.
. . . .
(e) Within 10 days after the conclusion of the proceedings and receipt of the report,
either party may serve written objections thereto upon the other party. If no objection is
filed, the report will be referred to the chief judge and without further notice, judgment
entered thereon.
(f) If a written objection is filed pursuant to this rule, application to the court for
action upon the report over the objection thereto shall be by motion and upon notice as
prescribed in Rule 2.20 (Emphasis added.)
The Nevada Rules of Civil Procedure have a similar rule in NRCP 53. That rule, in part,
provides:
(e) Report.
(2) In Non-Jury Actions. In an action to be tried without a jury the court shall
accept the master's findings of fact unless clearly erroneous. Within 10 days after being
served with notice of the filing of the report any party may serve written objections
thereto upon the other parties. Application to the court for action upon the report and
upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d).
The court after hearing may adopt the report or may modify it or may reject it in whole
or in part or may receive further evidence or may recommit it with instructions.
We construe NRCP 53 to provide for a court hearing on all master's reports when
objections have been filed. We therefore reverse the confirmation of the master's report and
vacate the judgment entered thereon by the district court and remand this case to the
district court for a hearing on the master's report, all findings of fact and conclusions of
law, and the May 15, 19S4 objections raised by appellant.
judgment entered thereon by the district court and remand this case to the district court for a
hearing on the master's report, all findings of fact and conclusions of law, and the May 15,
1984 objections raised by appellant.
____________
102 Nev. 388, 388 (1986) Deutscher v. Warden
HENRY DEUTSCHER, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 16901
September 4, 1986 724 P.2d 213
Appeal from denial of post-conviction relief. Eighth Judicial District Court, Clark County;
Carl J. Christensen, Judge.
Petitioner, convicted of first degree murder and robbery and sentenced to death and 15
consecutive years in prison, filed second petition for post-conviction relief. The district court
denied the petition, and petitioner appealed. The Supreme Court held that second petition for
post-conviction relief, alleging, inter alia, that petitioner had been denied effective trial and
appellate counsel, was properly denied, where petitioner was not denied effective trial or
appellate counsel, and failed to show good cause for district court to address his remaining 11
assignments of error.
Affirmed.
Perkins Coie and David Burman, Seattle, Washington; Dean Breeze, Las Vegas;
Lambrose, FitzSimmons & Perkins, Carson City, for Appellant.
Brian McKay, Attorney General, Robert Miller, District Attorney, and James Tufteland,
Deputy, Clark County, for Respondent.
Criminal Law.
Second petition for post-conviction relief, alleging, inter alia, that petitioner had been denied effective
trial and appellate counsel, was properly denied, where petitioner was not denied effective trial or appellate
counsel, and failed to show good cause for district court to address his remaining 11 assignments of error.
NRS 177.315, subd. 3, 177.375, subd. 2; U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
Appellant Henry Deutscher appeals from the denial of his second petition for
post-conviction relief.
Henry Deutscher was convicted of first degree murder and robbery and sentenced to death
and fifteen consecutive years in prison. On October 18, 1979, this court affirmed Deutscher's
conviction and sentence. See Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979).
Deutscher then petitioned the U.S. district court for a writ of habeas corpus. The U.S. district
court ordered Deutscher to petition the Nevada district court for post-conviction relief. He did
so. The Nevada district court denied Deutscher post-conviction relief. This court dismissed
Deutscher's appeal from the Nevada district court's denial of post-conviction relief. The U.S.
district court thereafter denied Deutscher habeas corpus relief.
Deutscher was represented in foregoing proceedings by the public defender's office. After
the U.S. district court denied Deutscher habeas corpus relief, Deutscher's present counsel
replaced the public defender as Deutscher's counsel.
Deutscher then unsuccessfully appealed the U.S. district court's denial of habeas corpus
relief. Ahlswede v. Wolff, 720 F.2d 1108 (9th Cir. 1983), cert. denied, 106 S.Ct. 225 (1984).
On May 18, 1983, Deutscher again petitioned the Nevada district court for post-conviction
relief for a second time. The district court held an evidentiary hearing. The district court
found that Deutscher had not been denied effective trial or appellate counsel. The district
court also found that Deutscher had not shown good cause for his failure to file his petition
within one year of this court's resolution of his direct appeal, NRS 177.315(3),
1
or to raise on
direct appeal or in his first petition for post-conviction relief, NRS 177.375(2),
2
his
remaining eleven assignments of error. Finally, the district court found that Deutscher's
remaining eleven assignments of error were meritless. The district court denied Deutscher's
second petition for post-conviction relief.
Deutscher argues on appeal that the district court erred in denying his second petition for
post-conviction relief. We disagree. The district court correctly found that Deutscher had not
been denied effective trial or appellate counsel.
____________________

1
NRS 177.315(3) (emphasis added) provides:
Unless there is good cause shown for delay, a proceeding under NRS 177.315 to 177.385, inclusive, shall
be filed within 1 year following entry of judgment of conviction or, if an appeal has been taken from such
judgment, within 1 year from the final decision upon or pursuant to the appeal.

2
NRS 177.375(2) (emphasis added) provides, in pertinent part:
If the petitioner's conviction was the result of a trial, all claims for post-conviction relief are waived
which were or could have been:
. . .
(b) Raised in a prior petition for post-conviction relief; or raised in any other proceeding that the
petitioner has taken to secure relief from his conviction or sentence, unless the court finds good cause
shown for the failure to present such claims.
been denied effective trial or appellate counsel. Strickland v. Washington, 466 U.S. 668
(1984). The district court also correctly found that Deutscher had not shown good cause for it
to address his remaining eleven assignments of error. NRS 177.315(3); NRS 177.375(2). We,
therefore, affirm the district court's denial of Deutscher's second petition for post-conviction
relief.
____________
102 Nev. 390, 390 (1986) Engel v. Ernst
PHILIP ENGEL, J. CHRIS ASCHENBECK, SABINO OLIVAS III, KEITH P. BELL, CARL
ROSENTHAL, BURTON H. ARMSTRONG, GLENN C. COLE, DONALD E.
RUGGENBERG, ROSS E. WRIGHT, ALLEN E. SUDERMAN, CARL R. SWENSON,
VICTOR COHEN, LEWIS P. GACK, GERALD I. GLUNTS, CHARLES M.
GOODMAN, BERTRUM KELLEM, ROBERT M. LEAVY, FRANK LEVENSON,
BERNARD E. PORTER, JEREMIAH SUNDELL, E. J. PASSEY, GERALD T.
STACK, MARVIN I. BESKIN, DAVID L. FARKAS, ERWIN J. KOHN, JERALD L.
ROTHCHILD, HENRY L. WILSON, ALFRED B. YABLON, NORBERT S. BICK, M.
DAVID FREDMAN, GEORGE D. SCHATEL, LAWRENCE E. SCHNEIDER, DEAN
W. ARNOLD, JOHN A. BAILEY, WILLIAM E. BOCKMAN, CLINTON L.
BULKLEY, DONALD L. FARMER, ROBERT L. KUTCHERA, DONALD F.
McKENZIE, RALPH E. NANNINGA, EDWIN L. OLSEN, JAMES H. PALSMEIER,
HERBERT J. STELZER, LARRY L. AXLINE, EDMUND W. BAILEY, JOHN W.
BROPHY, PATRICK D. FLAHARTY, LYNN HILL, RICHARD MULBERRY, DAVID
E. VINK, L. BEN WEAVER, ROBERT F. ABRESCH, JOSEPH A. BABICH, ROBERT
E. BERGIN, JACK E. BLUMENTHAL, DAVID S. BRESSLER, CHARLES A.
CLARE, ROBERT M. COFFMAN, WILLIAM DENT, LYNDA S. DREILING,
STEPHEN A. DUREE, JAMES H. FELDHAKE, WILLIAM H. HEASTON,
CLARENCE J. JONAS, LYNN LAWRENCE, BYRON A. LAX, ELDON LEWIS, REX
MARTIN, RICHARD MOORE, BERT SCHIRESON, RICHARD SKINNER, MIKE F.
TAYLOR, HARVEY FRANK, STANLEY N. FREEDMAN, GERALD E. JACKSON,
SIDNEY M. LEVINE, VICTOR E. MATHURIN, LAWRENCE W. BLAKE JR.,
RICHARD O. BUTTON, ANDREW A. LAUE, JOSEPH G. TRINDLE, DENNIS W.
HANSON, WILLIAM D.
102 Nev. 390, 391 (1986) Engel v. Ernst
WILLIAM D. KIRKPATRICK, MAURICE MORTON, PHILIP R. AUGUSTYN, DONALD
C. FREUND, ROBERT SPELLMEYER, CHARLES FRUITHANDLER, JOSEPH A.
McKEEVER, LOWELL G. NUSSBAUM, C. HERBERT COX, EDWIN B. GOFF,
STUART H. HARDEN, GEORGE A. SILVA, ALLEN ROSS, KENNETH R. BRAUN,
ROBERT A. PFEIFER, R. MIKE HILL, E. C. MOORE, STEVEN W. RITZWOLLER,
LEON E. BERGMAN, NORMAN E. KLEIN, LeROI MILLS, ROBERT R. MYERS,
WAYNE J. WEBER, IRVING J. STEINBERG, CHARLES B. WILCOXEN, STANLEY
C. HENSLEE, EARLE V. KING, HAROLD L. KING, EVAN J. McDOWELL,
VERLON L. McKAY, GLYNN SHAW, SHELDON A. BERNSTEIN, DANA J.
BRENNER, WILLIAM DUBEY, MELVIN H. FONNESBECK, JACK J. GLUSKIN,
FREDERICK A. HANCOCK, PAUL D. MAHAN, FREDERICK MOSCARITO,
ARNOLD TWERSKY, CHARLES I. CORP, RICHARD L. DOUGHERTY, WILLIAM
R. STEELE, WILBERT McCAULLEY, HAROLD A. SEDACCA, ALAN L. SHERR,
MELVIN C. MYERS, J. WILLIAM ROBERT, JOHN E. HARRINGTON, MARK D.
JOYCE, ROBERT J. LOBERG, JOHN A. McCARTHY, JEROME J. TUCKNER,
ROBERT C. WISEN, KLAREN ALEXANDER, IRVING BAUMWALD, MORTON
BERGER, ARNOLD I. BINSTOCK, THOMAS J. BOTTIGLIERI, JOHN J.
BROSNAN, HAROLD CHAFITZ, ALBERT M. DeBICCARI, MELVIN FEIT, BRUCE
D. GAREN, JAY H. HABER, MARTIN HELLER, STEPHEN S. KUTZ, FRANK
MASTROIANNI, JAMES P. McCAFFERY, MORTON NATKIN, BERT E. PHILLIPS,
RALPH J. POSES, ARTHUR ROGOVIN, SEYMOUR L. SCHARF, RONALD W.
SCHEIL, EARL D. SUSSMAN, KEVIN J. TIERNAN, HOWARD E. EHLER, ROGER
L. HAYNIE, DAVID J. McCARROLL, CURTIS E. REBHAN, GEORGE V.
ALEXANDER, H. DeVERE McKAY, ALVIN ABRAMSON, ALDEN B.
AWERKAMP, DAVID E. DATESMAN, JOHN A. EILERS, ROBERT C. FRAZER,
ALBERT FRIEDMAN, JAMES D. GOODNIGHT, ALLEN J. MARSH, MICHAEL P.
CERISANO, JOHN M. DELANEY, JAMES P. HANNON, MICHAEL A. PINTO,
ROBERT A. WILEY, GREGORY R. ANDERSON, DENNIS R. BROWN, DON L.
GREUBEL, DON A. JOHANSEN, DWIGHT E. McFADDIN, FRANK H. GARDNER,
LOWELL J.
102 Nev. 390, 392 (1986) Engel v. Ernst
LOWELL J. ROBISON, J. NEWELL JACKSON, ROBERT L. SIMS, HOWARD C.
KASTLER, ARMIN E. RUUD, L. WAYNE STANLEY, JACK E. NICHOLS, FRANK
BRADHORST, WAYNE J. GRACE, ROBERT M. KOLB, ARTHUR L.
McWILLIAMS, MARK E. MERSMANN, SAM SALNIKER, DON M. SCHUESSLER,
ROGER D. BROWN, J. WILL LEWIS, FRANK C. NIELSON, PHILLIP E. OSBORNE,
DENNIS A. PARKER, RAY O. WESTERGARD, LARRY R. NUTT, ELMER C.
SELIM, R. BARNES WHITLOCK, MICHAEL J. BURNS, BRYAN D. BURR, RUDY
G. CROCE, HOWARD C. LEWIS, BARRY W. McCANDLESS, HARVEY E.
MULLEN, WILBUR H. STEVENS, DARRELL BLEDSOE, DONALD L. FERRELL,
LEONARD D. HILT, CLAYTON C. McMURRAY, DONALD L. NELSON, JERE K.
NOE, JOHN F. SANDERS, JOHN E. WENDLING, HENRY G. AMADO, STEVEN E.
CLARK, HARRY G. KARCHMER, DON RADAKOVICH, CHRIS V. KEMENDO,
JR., ED TOMLINS, JR., ROBERT B. AIREY, JR., EARL L. BECRAFT, JR., HARVEY
J. BERGER, MARGARET DeBOE, HAROLD R. EVANS, IRVING HOFFMAN,
FRANCIS R. ISBELL, MARC NEEDLEMAN, JULIUS SANDLER, HERSHEL D.
SOSNOFF, JOSEPH R. WARZECHA, GERHARD S. WOLFF, WILLIAM T.
CARNAHAN, DAVID R. KENT, BILL L. ALLEN, ROBERT D. BAKER, ROY F.
BRUNGARDT, ROBERT W. BURDGE, LEE I. CROPP, GARY W. DEAN, MARK
DICK, TERRY O. EVERSON, BOBBY J. JOHNSON, DONALD L. JOHNSON,
CHARLES F. KING, HERMAN J. KOCOUR, STANLEY J. KRAUS, WILLIAM L.
LUCAS, NOLAN O. LUKE, HARRY O. LYTLE, JR., JOHN MARSTALL, KENNETH
MEREDITH, HOMER L. MOORE, BRUCE MOORMAN, ROBERT M. QUINN,
LARRY E. SOICE, BEN A. SPENCER, DONALD VANNOY, dba ELMER FOX,
WESTHEIMER & CO., a Partnership, Appellants and Cross-Respondents, v. WILLIAM
ROBERT ERNST, Respondent and Cross-Appellant.
No. 16497
September 4, 1986 724 P.2d 215
Appeal and cross-appeal from judgment entered after a bench trial. Eighth Judicial District
Court, Clark County; Paul S. Goldman, Judge.
102 Nev. 390, 393 (1986) Engel v. Ernst
Action was brought concerning partner's withdrawal from certified public accounting
partnership. The district court determined that provision of partnership agreement as to
withdrawing partner's serving partnership clients violated Nevada public policy and, thus,
was unenforceable. Withdrawing partner appealed, and partnership and its partners
cross-appealed. The Supreme Court held that: (1) choice of law provision of partnership
agreement, providing that partnership agreement was to be interpreted under Colorado law,
was enforceable, and (2) provision of partnership agreement was not a penalty but was a valid
liquidated damages provision under Colorado law.
Jimmerson & Combs, Las Vegas, for Appellants and Cross-Respondents.
Hawkins & Sharp, Reno, for Respondent and Cross-Appellant.
1. Contracts.
Parties, in selecting which state's law will govern validity and effect of their contract, must act in good
faith and not for purpose to evade law of real situs of the contract.
2. Contracts.
State, whose law is selected by the parties to govern validity and effect of their contract, must have
substantial relationship to transaction, and agreement must not be contrary to public policy of the forum.
3. Partnership; Contracts.
Choice of law provision of certified public accounting partnership agreement, providing that all questions
relating to interpretation of the agreement were to be determined by application of Colorado law, was
enforceable and, thus, governed interpretation of clause in that agreement, providing that withdrawing
partner was to pay amount equivalent to fees which would have been earned by partnership during average
one year period from partnership clients withdrawing partner chose to service in two-year period following
his voluntary withdrawal, where partnership was a national accounting firm, partnership's headquarters,
were located in Colorado, and clause protected legitimate business interests of partnership.
4. Damages.
Under Colorado law, provision of certified public accounting partnership agreement, providing that
withdrawing partner was to pay amount equivalent to fees which would have been earned by partnership
during average one year period from clients of partnership withdrawing partner chose to service in
two-year period following his voluntary withdrawal, was not a penalty but was a valid liquidated damages
provision, where losses incurred by partnership upon withdrawal by partner and appropriation of
partnership's clients were difficult to determine, withdrawing partner and partnership intended to liquidate
any damages which might occur, and damages calculated under the provision were reasonable.
102 Nev. 390, 394 (1986) Engel v. Ernst
OPINION
Per Curiam:
This is an appeal from a judgment whereby the district court determined that a restrictive
covenant existed which was violative of Nevada's public policy. As a result, the covenant was
deemed unenforceable as a penalty provision. Because we agree with Fox that the clause
existed as a valid liquidated damage provision, we reverse and remand for further
proceedings consistent with this opinion.
The Facts
Elmer Fox, Westheimer & Co. (Fox) was a nationally certified accounting firm with
offices around the country. Fox's principal place of business was Denver, Colorado. William
Ernst (a certified public accountant) joined Fox in 1970 and was an auditor in the Las Vegas
office. Ernst was promoted to office manager in 1972. At that time, Ernst signed an
agreement stating that he would refrain from serving any Fox clients for a two-year period
should he choose to leave Fox's employ. In June, 1974, Ernst became a partner of Fox and
signed a partnership agreement. Article 17 of the agreement was similar to the provision that
Ernst had agreed to in 1972. Over the years, Ernst signed similar amended agreements. In
November, 1977, Ernst voiced concerns over the enforceability of article 17. By the following
month, Ernst was actively seeking new employment. In January, 1978, Ernst left Fox without
providing the requisite sixty (60) days notice. Before leaving Fox's employ, Ernst flew to the
Denver headquarters and implored the managing partner to waive article 17. Fox declined to
do so.
Ernst joined the accounting firm of Harris, Kerr, Forster & Co. (Harris) and immediately
appropriated a number of Fox's clients. Evidence revealed that several of these clients had
been solicited by Ernst before he left Fox's employ. Additionally, Ernst had removed client
files from Fox without its permission.
Pursuant to article 17 of the partnership agreement, Fox calculated the damages caused by
Ernst's conduct. Because the damages suffered in such a situation are difficult to ascertain,
article 17 provided that the withdrawing partner pay an amount equivalent to the fees which
would have been earned by the firm (from the client) during an average one-year period. This
amount was calculated by averaging the annual fees collected over a prior three-year period.
As tallied, these damages totaled $72,152.00. Against this sum, Fox offered to offset Ernst's
capital account which totaled $8,554.85. Thus, Fox demanded a net total amount of
$63,597.15. Ernst refused to pay and initially asserted that he did not understand the
manner of calculations.
102 Nev. 390, 395 (1986) Engel v. Ernst
did not understand the manner of calculations. Ernst later asserted that article 17 was
unenforceable as a violation of Nevada's public policy. A lawsuit was initiated and, after a
bench trial, the district court determined that article 17 was a restrictive covenant violative of
Nevada's public policy and was unenforceable as a penalty provision.
Both parties filed post-trial motions. Fox sought an amended judgment or a new trial.
Ernst sought an award of treble damages, attorney's fees and prejudgment interest. Other than
amending the judgment to deem article 17 unreasonable, all other requests were denied. Fox
appealed and Ernst cross-appealed. The central issue before us is whether article 17 was an
enforceable contractual provision. In order to address this issue, we must first determine
whether the district court's application of Nevada law was appropriate.
Choice of Law
[Headnotes 1, 2]
Article 32 of Fox's partnership agreement directed that [a]ll questions relating to the
interpretation of this agreement shall be determined by application of Colorado law. It is
well settled that parties are permitted to select the law that will govern the validity and effect
of their contract. E.g., Sievers v. Diversified Mtg. Investors, 95 Nev. 811, 815, 603 P.2d 270,
273 (1979). The parties are required, however, to act in good faith and not for the purpose of
evading the law of the real situs of the contract. Additionally, the situs must have a
substantial relationship to the transaction and the agreement must not be contrary to the
public policy of the forum. Id.
[Headnote 3]
Here, there was no evidence to show that Fox acted in bad faith by attempting to evade the
laws of Nevada. Fox was a national accounting firm with its partners located in different
offices around the country. It is understandable that Fox would attempt to choose a set of
laws to govern the partnership relationship; otherwise, if Fox were required to satisfy the
nuances of various state's laws, there would be non-uniform enforcement of its partnership
agreements.
Next, we note that the law of Colorado has a substantial relationship to this dispute. For
example, Fox's headquarters in Colorado controlled and directed the financial and personnel
aspects of the branch offices. Additionally, Ernst traveled to the Colorado office in his
attempt to get Fox to waive article 17. Such conduct, we feel, is illustrative of the fact that
Ernst recognized Colorado as the corporate headquarters. Thus, only violation of a strong
public policy of Nevada may bar the enforcement of Fox's article 32 governing choice of
law.
102 Nev. 390, 396 (1986) Engel v. Ernst
article 32 governing choice of law. It is here that the district court erred.
We do not agree that article 17 is a restrictive covenant. After careful examination, we
conclude that Ernst was free to compete with Fox after termination of his employment
contract. Article 17 did not eliminate or stifle competition in a geographic area for a set
period of time. By Ernst's own acts and admissions, he pursued new employment without
restraint. Ernst joined an accounting firm in the same city immediately upon his termination
with Fox. In fact, Ernst signed a provision similar to article 17 when he joined the new firm.
Article 17 only required that Ernst pay for any Fox clients he chose to service in the two-year
period following his voluntary withdrawal. Ernst was free to serve these clients if he
determined that it was economically advantageous for him to do so.
Article 17 protects a legitimate business interest of Fox. A professional practice such as
Fox must be allowed to protect the fruits of their labor. Article 17 was a protective
mechanism. It permitted Fox to preserve the anticipated ongoing revenue of its clients. Thus,
if Ernst chose to appropriate clients, he would be required to pay the reasonable value of any
fee of which Fox was deprived. Additionally, we note that the damages incurred by Fox when
a withdrawing partner appropriates clients is not easily ascertainable. Thus, article 17 is a
liquidated damages provision.
For these reasons, we deem Fox's article 32 of the partnership agreement (governing the
choice of law) to be enforceable. We now examine Fox's liquidated damages provision under
the law of Colorado.
Colorado Law
A provision for liquidated damages is valid in Colorado provided three conditions are
present. First, the anticipated damages must be an uncertain amount or difficult to prove.
Second, the parties must have intended to liquidate the damages in advance. Lastly, the
damages stated must be reasonable. The damages cannot be disproportionate to the
presumable loss or injury. Perino v. Jarvis, 312 P.2d 108, 109 (Colo. 1957).
[Headnote 4]
Here, we note that the losses incurred by Fox when a partner withdraws and appropriates
the firm's clients are difficult to determine. At the time of contracting, neither Fox nor Ernst
knew the number or the types of clients that Ernst would eventually serve. Fox lost the
goodwill created by these client accounts. At the time of contracting, the worth of a potential
client account would have been impossible to determine.
Next, it is apparent from the record that Fox and Ernst intended to liquidate any damages
that might occur. Ernst was aware of article 17 and signed several amended agreements
containing the provision.
102 Nev. 390, 397 (1986) Engel v. Ernst
aware of article 17 and signed several amended agreements containing the provision.
Interestingly enough, Ernst also signed a similar provision when he joined the Harris firm.
We also note that the damages stated appear to be reasonable. The damages amount to an
average fee accrued by the partnership during a one-year period. We note that trial testimony
revealed that client accounts are generally valued at 100 percent or 125 percent of the client's
annual fee. Thus, Fox is attempting to collect damages no greater than the price it might
charge a third party who wished to acquire a Fox account. For these reasons, article 17 is a
valid liquidated damage provision pursuant to Colorado law.
We are concerned, however, with Ernst's assertion that the liquidated damages were levied
against too many clients. For example, he points out that Fox claims damages for Judy
Tompkins but notes that he never worked for her while at Fox. Upon remand, the district
court shall determine the number of clients falling within the scope of article 17.
Conclusion
We reverse the district court's judgment because it failed to apply the parties' choice of law
provision. Additionally, we hold that Fox's liquidated damage provision did not act as a
penalty and was enforceable under Colorado law. We have reviewed the other contentions
raised on appeal and have determined that they lack merit. Our resolution of the appeal
renders Ernst's cross-appeal moot. We, therefore, remand the appeal for further proceedings
____________
102 Nev. 397, 397 (1986) SIIS v. Durable Developers
STATE INDUSTRIAL INSURANCE SYSTEM, an Agency of the State of Nevada,
Appellant, v. DURABLE DEVELOPERS, Respondent.
No. 15452
September 4, 1986 724 P.2d 199
Appeal from an order reversing administrative decision. Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
Construction contractor sought review of decision of Industrial Commission assessing
portion of subcontractor's insurance premium deficiency. The district court reversed and
Commission appealed. The Supreme Court held that substantial evidence supported agency's
determination.
Reversed.
Robert G. Guinta, Associate General Counsel, State Industrial Insurance System, Las
Nitz, Schofield & Walton, Las Vegas, for Respondent.
Substantial evidence supported decision of Industrial Commission that construction contractor should be
liable for share of subcontractor's insurance premium delinquency in finding that contractor was aware that
audit was in progress, and therefore, Commission was not estopped or barred by laches from asserting
deficiency due to alleged delay in completing audit where contractor had retained funds in anticipation of
deficiency, leading to conclusion that contractor had not been prejudiced by any delay. NRS 233B.140,
subd. 4.
OPINION
Per Curiam:
This is an appeal from an order of the district court reversing an administrative decision of
the Nevada Industrial Commission (NIC).
1
For the reasons expressed below, we reverse the
district court's order and reinstate the administrative decision.
Respondent Durable Developers is a general construction contractor. Marchini
Construction worked as a subcontractor on several of Durable's construction projects between
January, 1979, and December, 1980. While Marchini Construction was employed by Durable,
it failed to pay $106,259.52 in insurance premiums owed to the NIC. On September 18, 1981,
the NIC billed Durable in the amount of $39,573.28 to cover its share of Marchini
Construction's delinquency.
2
Durable objected to the assessment, and the matter was heard
by an NIC administrative panel on December 17, 1981.
At the administrative hearing, Durable did not contest the NIC's authority to hold Durable
liable for the indebtedness of Marchini Construction. Instead, Durable argued that any
recovery should be barred by the doctrines of laches and estoppel. With respect to the claim
of laches, Durable contended that NIC had taken an inordinate length of time to complete its
audit of Marchini Construction. By reason of the delay, Durable argued, it had been unable to
retain funds it had set aside to pay the deficiency. Durable also produced evidence that one of
its employees had been assured by the NIC, while the audit was ongoing, that Marchini
was not delinquent in its premium payments.
____________________

1
Since the time of the events in question the NIC has been reorganized and is now known as the State
Industrial Insurance System.

2
Marchini Construction also worked for another general contractor, Pardee Construction, during the same
time period. The NIC billed Pardee Construction for the remaining deficiencies.
employees had been assured by the NIC, while the audit was ongoing, that Marchini was not
delinquent in its premium payments. Accordingly, Durable argued that the agency should be
held to be estopped from asserting the deficiency.
To rebut Durable's contentions, the NIC argued that Durable had not been prejudiced by
the lengthy audit because the NIC notified Durable several times that there was a very good
likelihood of significant audit adjustments. In addition, the NIC argued that the audit had
been completed as quickly as possible.
Durable's vice president, Brian Wright, testified on his company's behalf at the
administrative hearing. The NIC employee who had conducted the audit, Ken Thomas, also
testified before the administrative panel. After hearing all the evidence, the administrative
panel rendered a decision in favor of the NIC.
Durable then filed a petition for judicial review in the district court. The district court's
order characterized the administrative decision as arbitrary, clearly erroneous, and
unsupported by substantial evidence in the record. The court concluded that this was clearly
a case in which the doctrines of laches and estoppel should have been applied. . . .
On appeal, the NIC argues that the district court exceeded the proper scope of review in
analyzing the administrative decision. We agree.
Our review of the record before the administrative panel reveals that the parties presented
conflicting evidence on the elements required to prove laches and estoppel. Under these
circumstances, the existence of laches and estoppel were questions of fact. See Miller v.
Eisenhower Medical Center, 614 P.2d 258 (Cal. 1980); Mehl v. People ex rel. Department of
Public Works, 532 P.2d 489 (Cal. 1975).
NRS 233B.140(5) provides, in pertinent part, that a reviewing court shall not substitute
its judgment for that of the agency as to the weight of the evidence on questions of fact The
court is limited to the record before the agency. NRS 233B.140(4). The court must determine
if the administrative decision was based on substantial evidence; neither this court nor the
district court may substitute its judgment for that of the administrative agency. See State of
Nev., Nev. Emp. Sec. Dep't v. Weber, 100 Nev. 121, 676 P.2d 1318 (1984); Nevada Indus.
Comm'n v. Hildebrand, 100 Nev. 47, 675 P.2d 401 (1984).
In the present case, there is substantial evidence in the record to support the agency's
determination. Ken Thomas, the NIC auditor, testified that Durable had been notified of a
potential deficiency as early as October, 1979. On several occasions thereafter, Durable was
made aware that an audit was in progress and that there was a substantial likelihood of
significant audit adjustments."
ments. Durable itself apparently appreciated the potential magnitude of the adjustments,
because it retained $80,000 in anticipation of the deficiency. On this basis, the administrative
panel concluded that Durable had not been prejudiced by the delay in completing the audit.
We cannot say that this determination was clearly erroneous.
Nor can we say that the NIC was guilty of unreasonable delay in conducting its audit.
Thomas testified that, in order to determine the amount of the deficiency, it was necessary to
locate and interview many of Marchini's former employees. The NIC was required to
subpoena certain records and obtain others from outside the state. In concluding that the
NIC's delay was unreasonable and that a claim of laches had been made out, the district court
effectively substituted its judgment for that of the administrative panel.
The same can be said of Durable's estoppel argument. The record reflects that, at the time
Durable's employee spoke with the NIC about Marchini's payment of premiums, Marchini
was indeed paying premiums. The deficiency was not then apparent, however, because
Marchini failed to report the actual wages it was paying its employees. If Durable had wished
to verify that there was no deficiency, it could have requested, pursuant to NAC 616.4805(3),
that the NIC provide it with a statement to this effect. According to Thomas, such a request
would have been denied because of the pendency of the audit. On this record, the NIC could
properly conclude that Durable had not relied on the statement allegedly made to its
employees.
We conclude that the district court improperly substituted its judgment for that of the NIC
panel. Accordingly, we reverse the judgment of the district court and reinstate the decision of
the panel.
____________
102 Nev. 401, 401 (1986) Board of Trustees v. Durable Developers
BOARD OF TRUSTEES OF THE VACATION TRUST CARPENTERS LOCAL NO. 1780,
BOARD OF TRUSTEES OF THE CARPENTERS HEALTH AND WELFARE
TRUST OF SOUTHERN NEVADA, BOARD OF TRUSTEES OF THE
CARPENTERS REVISION TRUST FOR SOUTHERN NEVADA, BOARD OF
TRUSTEES OF THE CARPENTERS APPRENTICESHIP TRUST (JOINT TRUST
FUNDS), Appellants and Cross-Respondents, v. DURABLE DEVELOPERS, INC.;
GOODMAN, OSHINS, BROWN & SINGER, Respondents and Cross-Appellants.
No. 13852
September 5, 1986 724 P.2d 736
Appeal and cross-appeals from amended judgment in a garnishment proceeding; Eighth
Judicial District Court, Clark County, Michael J. Wendell, Judge.
Union board of trustees attempted to satisfy judgment against subcontractor by instituting
statutory garnishment proceedings against contractor. Law firm to which subcontractor had
assigned its proceeds intervened. The district court determined priority of conflicting claims.
On appeal and cross-appeal, the Supreme Court held that: (1) contractor was not entitled to
release and discharge on basis of board's failure to reply to its answer; (2) contractor would
have opportunity to present oral testimony and to cross-examine witnesses on remand; (3)
materialmen had valid lien claim and contractor had statutory and contractual right to set off
monies due to them; (4) contractor was not liable to board for amounts paid to materialmen
which had in turn been paid to subcontractor, allegedly as kickbacks; (5) assignment to law
firm was not voidable fraudulent conveyance and was outside of scope of Article 9; (6)
common law gave assignment priority over writ of garnishment, but only to extent
consideration represented present advance or antecedent debts; and (7) contractor was entitled
to offset against money still in its possession.
Lionel Sawyer & Collins, Las Vegas, for Appellants and Cross-Respondents.
Nitz, Schofield & Walton, Las Vegas, for Respondents and Cross-Appellants Durable
Developers, Inc.
Oshins, Brown, Singer & Wells, Las Vegas, for Respondents and Cross-Appellants
Goodman, Oshins, Brown & Singer.
1. Garnishment.
Garnishee was not entitled to judgment releasing and discharging it from liability, notwithstanding
garnishor's failure to file traverse to answer to garnishment interrogatories, where garnishee had not denied
existence of debt in that answer but had merely expressed uncertainty as to amount that was owed. NRS
31.330.
2. Garnishment.
Garnishee would have opportunity to present oral testimony and to cross-examine witnesses at priority
hearing in garnishment proceeding, in view of complexity of factual issues involved.
3. Mechanics' Liens.
Mechanic's lien had been created in favor of materialmen, where they had substantially complied with
technical requirements of lien statute and owner of property had actual notice of potential lien claims.
NRS 108.245.
4. Garnishment.
Garnishment invests plaintiff garnishor with right to satisfy claim against defendant with debts due
from third-person, garnishee, to defendant; as against garnishee, garnishor occupies same position as
defendant and is subject to any defenses available to garnishee against that defendant.
5. Garnishment.
Garnishee had statutory and contractual right to set off monies due to materialmen that had valid liens
against its property, where garnishee's subcontracts with judgment debtor expressly provided that debtor
would be entitled to payment only after materialmen had furnished lien waivers to garnishee. NRS
31.360.
6. Garnishment.
Garnishee was not liable to garnishor for amounts which were paid to materialmen in excess of actual
amounts owed and which materialmen allegedly paid to judgment debtor as kickback, in absence of
evidence that garnishee had any knowledge or reason to know that amounts billed by materialmen were not
actually owed.
7. Fraudulent Conveyances.
Conclusions that garnishor had failed to present sufficient evidence that debtor was insolvent at time of
assignment, that assignment rendered debtor insolvent, or that debtor made assignment with intent to
hinder, delay or defraud creditors, and that debtor's antecedent debt was legitimate, enforceable, and fair
consideration for that assignment, were supported by evidence, and assignment was not voidable as
fraudulent conveyance. NRS 112.050, 112.060.
Assignment was excluded from filing provisions of Article 9 of uniform commercial code, as conclusion
that assignment was of single count in satisfaction of preexisting indebtedness was supported by evidence
that assignor treated all of contracts with debtor as single account, notwithstanding that written assignment
explicitly recognized existence of different contracts. NRS 104.9104, subd. 6.
9. Attachment; Garnishment.
Priority between attachment or garnishment and assignment of chose in action generally depends upon
priority in time.
10. Garnishment.
Assignment which predated service of writ of garnishment had priority over that writ, but only to extent
that consideration given for that assignment represented present advance or antecedent
debt, and Supreme Court would remand to district court for determination of that
amount.
assignment represented present advance or antecedent debt, and Supreme Court would remand to district
court for determination of that amount. NRS 112.040.
11. Garnishment.
Garnishee was entitled to offset against money still in its possession, where judgment debtor would have
been entitled to that offset. NRS 31.360.
OPINION
Per Curiam:
This is an appeal and cross-appeal from an amended judgment of the district court in a
statutory garnishment proceeding. The judgment of the district court determined the priority
of conflicting claims to funds owed by Durable Developers, Inc. to Marchini Construction,
Inc., the judgment debtor.
FACTS AND PROCEDURAL BACKGROUND
On July 21, 1980, the Board of Trustees of the Vacation Trust Carpenters Local No. 1780
and other unions (Trustees) obtained a judgment against Marchini Construction, Inc.
(Marchini) in the sum of $409,479.69. This judgment arose out of Marchini's failure to pay
employee fringe benefits to the Trustees which became due while Marchini was performing
as a subcontractor to Pardee Construction Company and Durable Developers, Inc. (Durable).
During 1980, Durable was the general contractor and owner of two residential housing
development projects known as Pecos Estates and Villa Bonita Oeste in Las Vegas, Nevada.
Durable employed Marchini as its framing subcontractor on the two projects. Marchini also
agreed to provide the rough lumber and roof trusses for both projects. The subcontracts
between Durable and Marchini contained a number of provisions intended to insure that
Durable receive all work, labor and materials free of any potential obligations, liens or claims
of any kind.
1
The subcontracts expressly provided that Durable had the right to retain out
of any progress payment otherwise due an amount sufficient to indemnify the contractor
against any liens or claims, and required Marchini to furnish Durable with applicable labor
and material lien releases.
____________________

1
For example, paragraph 4 of the subcontracts provides as follows:
In the event Subcontractor fails to pay obligations of any kind incurred by him in the course of his
performance of this Subcontract or if a claim of lien shall have been filed upon all or any part of the
property as a result of Subcontractor's failure to pay obligations incurred by him in the course of his
performance of this Subcontract, then Contractor shall have the right to retain out of any progress
payment otherwise due an amount sufficient to indemnify Contractor and Owner against any such lien or
claim. Subcontractor, if requested, before becoming entitled to receive any monies under this
Subcontract, shall furnish to Contractor receipted material bills and written waivers of lien rights for all
material furnished for the job from the commence-
tracts expressly provided that Durable had the right to retain out of any progress payment
otherwise due an amount sufficient to indemnify the contractor against any liens or claims,
and required Marchini to furnish Durable with applicable labor and material lien releases.
During the course of performance of the subcontracts, Marchini ordered materials from Las
Vegas Plywood, Inc. (Las Vegas Plywood), and Van's Builders Supply, Inc. (Van's). Las
Vegas Plywood and Van's commenced material deliveries to the job sites in August and
September, 1980.
On August 6, 1980, Marchini assigned the first $250,000 payable to it under the framing
subcontracts to the law firm of Goodman, Oshins, Brown & Singer (the law firm). At the time
of the assignment, Marchini was indebted to the law firm as a result of Marchini's oral
guarantees of loans and legal fees owed the law firm by third parties.
____________________
ment of work by Subcontractor to the date of proposed payment and, in addition, if requested,
Subcontractor shall furnish a written statement from each of Subcontractor's employees who have
performed work upon the job reflecting payment to each said person of all wages or money due him.
(Emphasis added.)
Paragraph 9 thereof states:
Subcontractor agrees to pay when due all claims for labor and materials or either thereof furnished
in the performance of this contract and Subcontractor agrees to prevent the filing of any claim of lien by
laborers, materialmen, or other classes of individuals entitled to file claims of lien. In the event any such
lien is filed, Subcontractor agrees that not later than ten days after written demand is addressed to him,
Subcontractor will cause the removal of the said lien constituting a cloud upon the title of the property
upon which the said improvements are erected. . . . (Emphasis added.)
In addition, Exhibit AAddendum to Contract Paragraph No. 22 provides:
1. Subcontractor shall furnish Contractor with the following:
. . .
4. A Surety bond and/or audited proof for payment of Employer contributions to the State of Nevada,
Employment Security Dept.
. . .
d. The required labor and/or material lien releases (must be attached to invoices).
e. A list of your suppliers, with addresses, telephone numbers and authorized signatures of person(s)
signing lien releases.
f. Copies of NIC Reports with cancelled checks.
. . .
i. Copies of Union Reports with cancelled checks.
3. NOTES:
. . .
b. Prior to payments, all invoices must be approved by a General Superintendent and must be
supported by the proper lien releases, etc., as indicated in Section 1.
c. Final contract payments to Subcontractors will be made when full completion of said contract is of
record with Contractor, Owner and Inspector. (Emphasis added.)
firm by third parties. Although the amount of indebtedness is disputed, the district court
found the amount to be $129,000. According to the findings of the district court, the
remaining $121,000 of the $250,000 assignment was given to secure contemplated future
advances by the law firm to Marchini. Durable consented to this assignment on August 15,
1980, and in September of 1980, Durable paid the law firm $48,233.11 from the proceeds of
the framing subcontracts.
On October 17, 1980, the Trustees served a writ of garnishment on Durable in an effort to
satisfy their previous judgment against Marchini.
2
In response to service of this writ,
Durable attempted to determine the amount of funds it actually owed Marchini under the
subcontracts. To that end, Durable contacted Las Vegas Plywood and Van's, requesting
invoices detailing the amounts each materialman was then owed for materials supplied to
Marchini. Pursuant to Durable's request, Van's submitted an invoice to Durable in the amount
of $67,099 for roof trusses supplied to Marchini; on October 27, 1980, Durable paid Van's
this amount. Las Vegas Plywood also submitted an invoice to Durable in the amount of
$181,041 for materials supplied to Marchini, and on October 28, 1980, Durable issued a
check in this amount to Las Vegas Plywood. Durable then made additional payments to the
law firm pursuant to the assignment agreement on October 28, 1980, and November 12,
1980, totaling $136,775.96.
3

After deducting and paying over the amounts due to Van's, Las Vegas Plywood, and the
law firm, Durable retained $80,000 as monies due and owing under its subcontracts with
Marchini. Because of a pending dispute with the State Industrial Insurance System (SIIS),
concerning the monies owed the SIIS by Marchini, Durable allegedly was unable to
determine the exact remaining amounts due Marchini.
4
Accordingly, Durable answered the
Trustees' garnishment interrogatories concerning amounts due to Marchini in the following
manner: Sums may become due to Defendant Marchini Construction, Inc., but the amount, if
any, after deducting assignments and offsets is unknown at this time. The Trustees never
filed a traverse to this answer.
____________________

2
The Trustees had previously served a writ of garnishment on Durable in September of 1980, but they
concede this initial service was improper.

3
In total, Durable paid the law firm $185,283.99 pursuant to the firm's assignment agreement with Marchini.
However, as indicated above, only $136,775.96 was paid after service of the writ of garnishment.

4
At the time of this litigation the SIIS was known as the Nevada Industrial Commission.
The Trustees subsequently filed a motion for judgment on the pleadings, requesting that a
judgment be entered against Durable for any amounts due or which might become due
Marchini from Durable. Durable in turn moved for a judgment releasing and discharging it
from any obligation to the Trustees pursuant to service of the writ of garnishment. Before
these motions were heard, the district court, pursuant to the stipulation of the parties,
permitted the law firm to intervene in the garnishment proceedings to protect its interests in
the subject funds. In essence, the law firm claimed a priority over the Trustees to any funds
held by Durable for Marchini's benefit. On February 27, 1981, the district court granted the
Trustees' motion for judgment on the pleadings and scheduled a hearing to determine the
priorities of the claims to the money due and owing as a result of Durable's subcontracts with
Marchini.
In the meantime, in December of 1980, the Trustees initiated a separate action in the
district court against Durable (Case No. A201547), alleging that Durable owed the Trustees
$23,000 pursuant to NRS 608.150 as a result of Marchini's failure to pay certain employee
fringe benefits to the Trustees. Additionally, discovery indicated that both Las Vegas
Plywood and Van's had paid a portion of the payments received from Durable to Marchini. In
order to avoid the possibility of multiple and inconsistent determinations on the Trustees'
claims, Durable filed a motion to consolidate Case No. A201547 with the garnishment
proceedings. Durable also moved to join the materialmen and Pardee Construction Co., the
other general contractor, as parties, alleging that Pardee was also liable for a large portion of
the fringe benefits which Marchini had failed to pay to the Trustees. The district court denied
these motions.
At the post-judgment hearing to determine the priority of distribution of the garnished
funds, the district court heard oral argument, declared that it was trying the matter on
affidavit, refused to allow the parties to present witnesses or oral testimony, and accepted the
affidavit of the Trustees' accountant over Durable's objection without affording Durable an
opportunity to cross-examine the accountant.
After the hearing, the district court concluded, inter alia, that Las Vegas Plywood and
Van's had substantially complied with the notice provisions of the applicable materialman's
lien statutes. The court also concluded that Durable was entitled to set off the amounts
Marchini actually owed Las Vegas Plywood and Van's, but that $44,170 of the monies paid to
the materialmen after service of the writ of garnishment was actually paid to Marchini as a
kickback. Determining that Durable acted at its own risk regarding any payment or portion
thereof which was improper," the court awarded the Trustees the amount of the
"kickbacks."
improper, the court awarded the Trustees the amount of the kickbacks.
As to the payments Durable made to the law firm pursuant to the $250,000 assignment, the
district court rejected the Trustee's contention that the assignment was voidable as a
fraudulent conveyance. See NRS 112.050 and 112.060. The court also found that $121,000 of
this assignment was given to secure future advances by the firm to Marchini, and thus was
subject to the provisions of Article Nine of the Uniform Commercial Code, NRS
104.9101-104.9507. Because the firm had failed to file the financing statement required to
perfect a security interest under Article Nine, see NRS 104.9302(1), the district court
concluded that the law firm's interest in the $121,000 was subordinate to that of the Trustees,
the lien creditor. See NRS 104.9301. The lower court further determined that $129,000 of the
$250,000 assignment, which was given to satisfy the previous indebtedness of Marchini, was
exempt from coverage under Article Nine of the UCC because it was not intended to have an
effect as security, because it was not made within the typical commercial financial setting,
and because it constituted a single account within the meaning of the Article. See NRS
104.9104(6). Accordingly, the district court concluded that Durable had unjustifiably paid
$56,009.07 to the law firm after service of the writ of garnishment ($185,009.07 total
payments under the assignment less $129,000, the amount outside the scope of Article Nine).
The district court awarded this sum to the Trustees.
Finally, the district court awarded the Trustees the remaining $80,000 due Marchini,
although Durable sought to retain these monies as setoffs against additional potential claims
which Durable alleged might be filed against it as a result of Marchini's failure to pay certain
employee insurance benefits to the SIIS and fringe benefits to the Trustees while a
subcontractor on Durable's projects.
Thus, the district court entered an amended judgment in favor of the Trustees for
$180,179.07, together with interest and attorney's fees in the amount of $22,000. As indicated
above, the court's amended findings of fact and conclusions of law indicate that the judgment
was comprised of $56,009.07 paid to the law firm under the assignment after service of the
writ of garnishment, $44,170 improperly paid to Las Vegas Plywood and Van's as offsets, and
$80,000 retained by Durable as proceeds due Marchini.
The Trustees, Durable and the law firm have all appealed from the court's amended
judgment. Further facts will be presented below where relevant to discussion of the parties'
contentions.
PRELIMINARY CONTENTIONS
On appeal, Durable raises two contentions which we dispose of prior to discussing the
parties' claims to the disbursements made and funds held by Durable.
Durable first contends that the district court erred in failing to grant Durable's motion for a
judgment releasing and discharging it as the garnishee. Because the Trustees failed to file a
traverse to Durable's answer to the garnishment interrogatories, Durable contends that its
answer should have been deemed true and that, consequently, the lower court should have
found that Durable did not owe Marchini anything at the time Durable's answer was filed.
[Headnote 1]
Durable's argument is without merit. It is true that a garnishor may file a reply by affidavit
to a garnishee's answer, and that if the plaintiff garnishor fails to reply within the statutory
period, he shall be deemed to have accepted the answer of the garnishee as true and judgment
may be entered accordingly. See NRS 31.330. If Durable had answered that no funds
whatever were due Marchini, and the Trustees had failed to reply, the Trustees would be
bound by Durable's answer.
Durable's answer, however, did not deny the existence of any debt to Marchini. As
previously noted, Durable answered the interrogatory concerning possible indebtedness by
stating, Sums may become due to [Marchini], but the amount, if any, after deducting
assignments and offsets is unknown at this time. This answer clearly does not deny that any
monies were owing to Marchini; the answer simply states that Durable was unable to
determine the amount of sums owing at the time the answer was filed.
In Grouse Cr. Ranches v. Budget Financial Corp., 87 Nev. 419, 488 P.2d 917 (1971), the
garnishee admitted holding property which might have belonged to the debtor but stated it did
not know the debtor's interest in the property. We rejected a claim that the garnishor's failure
to traverse such an answer amounted to an acceptance. We distinguished between a complete
denial of the existence of an obligation and an assertion that the extent of the obligation due
was unknown. See 87 Nev. at 430-31, 488 P.2d at 925. Our holding in Grouse Cr. Ranches is
dispositive of the issue Durable raises on appeal. Accordingly, we reject this assignment of
error.
[Headnote 2]
Next, Durable contends that the district court erred in denying it the opportunity to present
oral testimony or cross-examine witnesses at the priority hearing. Durable's argument appears
to be based on the assumption that the hearing was a trial.
be based on the assumption that the hearing was a trial. At the time the priority hearing was
held, the time for trial was past. The district court had already granted the Trustee's motion
for judgment on the pleadings subject to the court's determination of the priorities of the
parties. The hearing in question was actually the result of a post-trial motion. Under the local
rules of the Eighth Judicial District, factual contentions involved in the resolution of post-trial
motions may be presented and heard upon affidavits, depositions, answers to interrogatories,
and admissions on file. See EDCR 2.21(a). Whether oral testimony will be received at such a
hearing, therefore, lies within the discretion of the district court. We conclude, however,
based on the record presently before us and on the complexity of the factual issues that will
be remanded to the district court, as discussed infra, that oral testimony is warranted in this
case. Accordingly, on remand the district court shall allow the parties to present oral
testimony and to cross-examine the witnesses if they so desire.
DURABLE'S PAYMENTS TO MARCHINI'S MATERIALMEN
As previously noted, shortly after service of the writ of garnishment, Durable requested
and received invoices from Van's and Las Vegas Plywood which detailed sums Marchini
Construction owed the materialmen. When these invoices were delivered, Durable paid the
materialmen the amounts requested (approximately $248,140) before answering the
garnishment interrogatories. The materialmen, who had billed more than they were owed,
then paid the excess over to Marchini. The district court held that Durable was entitled to set
off the amounts actually owed to the materialmen by Marchini. However, the district court
held Durable liable to the Trustees for the excess amounts that were kicked back to
Marchini.
The Trustees now contend that the district court erred by failing to hold that the payments
to the materialmen were improper in their entirety. According to the Trustees, Durable should
not have been allowed to set off any amount paid to the materialmen after the Trustees served
Durable with the writ of garnishment. In particular, the Trustees contend that because the
materialmen failed to comply with NRS 108.2394, the materialmen did not have existing or
valid lienable claims against Durable's property.
5
Therefore, the Trustees argue, the
payments made by Durable to the materialmen over the writ of garnishment were improper.
Durable counters that it had a statutory and a contractual right to offset the funds paid to the
materialmen, and that the materialmen had priority under the mechanic's lien statutes.
____________________

5
NRS 108.2394 has since been renumbered NRS 108.245.
statutes. In its cross-appeal, Durable also contends that the district court erred in finding that
Durable could not set off the amounts kicked back to Marchini. Finally, both Durable and
the Trustees contend that the district court erred in determining the amounts of the
kickbacks made to Marchini by the materialmen.
[Headnote 3]
We note initially that the district court concluded that Van's and Las Vegas Plywood
substantially complied with the statutory requirements for the creation of mechanics liens on
the construction projects. Although the Trustees argue that the district court erred in finding
the materialmen had complied with the mechanics lien statutes, our review of the record
indicates that the district court correctly determined that Van's and Las Vegas Plywood had
substantially complied with the statutory requirements governing the creation of mechanics
liens. See NRS 108.245 (formerly NRS 108.2394). Further, it is undisputed that Durable had
actual notice of the potential lien claims. Such actual notice is dispositive of the issue now
raised by the Trustees. As we noted in Las Vegas Plywood v. D & D Enterprises, 98 Nev.
378, 649 P.2d 1367 (1982), substantial compliance with the technical requirements of the lien
statutes is sufficient to create a lien on the property where, as here, the owner of the property
receives actual notice of the potential lien claim and is not prejudiced.
[Headnotes 4, 5]
Of greater significance is the fact that Durable had both a statutory and a contractual right
to set off the monies due the materialmen. Garnishment invests a plaintiff-garnishor with the
right to satisfy his claim against a defendant with the debts due from a third-person, the
garnishee, to the defendant. Valley Bank of Nev. v. Dobson, 97 Nev. 276, 629 P.2d 229
(1981). As against the garnishee, the garnishor occupies the same position as the defendant,
and is subject to any defenses available to the garnishee against the defendant. Id. at 278, 629
P.2d at 229.
NRS 31.360 (emphasis added) provides a garnishee with a right of setoff as follows:
Every garnishee shall be allowed to retain or deduct out of the property, effects or
credits of the defendant in his hands all demands against the plaintiff and all demands
against the defendant of which he could have availed himself if he had not been
summoned as garnishee, whether the same are at the time due or not, and he shall be
liable for the balance, only after all mutual demands between himself and plaintiff and
defendant are adjusted, not including unliquidated damages for wrongs and injuries; but
the verdict or finding as well as the record of the judgment shall show in all cases
against which party, and the amount thereof, any counterclaim shall be allowed, if
any shall be allowed.
well as the record of the judgment shall show in all cases against which party, and the
amount thereof, any counterclaim shall be allowed, if any shall be allowed.
Pursuant to this statute, Durable had an absolute right to retain any monies which Durable
was not required to pay to Marchini. Durable's subcontracts with Marchini expressly provided
that Marchini was entitled to payment only after Durable had been furnished lien waivers
from all materialmen. This contractual provision was intended to provide Durable the type of
lien-free project demanded by modern commercial practice. Durable thus had the right to
retain payment until lien waivers were provided, and Marchini was not entitled to payment
until lien waivers were provided. Obviously, lien waivers could not be obtained until the
materialmen were paid. It follows, therefore, that the Trustees had no right to any monies
from Durable because no monies were due Marchini until after the materialmen were paid.
Accordingly, the district court did not err in finding that Durable had a contractual right to
pay the invoices submitted by the materialmen and to deduct the amounts paid the
materialmen from the monies owed Marchini. See Eger Block & Redi-Mix Co. v. Wheeler,
207 So.2d 698 (Fla.Dist.Ct.App. 1968).
[Headnote 6]
The district court did err, however, in determining that Durable was liable to the Trustees
for the amounts paid to the materialmen in excess of the actual amounts owed by Marchini
Construction. The materialmen provided invoices to Durable which Durable paid. There is no
evidence in the record, nor did the district court find, that Durable had any knowledge or
reason to know that the amounts billed by the materialmen were not actually owed to the
materialmen.
6
Because Durable had an absolute right to pay the invoices of the
materialmen, Durable cannot now be held liable for sums misappropriated by the
materialmen.
____________________

6
For example, the lien waiver given to Durable by Las Vegas Plywood states:
I/We the undersigned have performed labor and/or furnished materials in connection with the work of
improvements erected or being erected upon the property known as VILLA BONITA OESTEUNIT
#9-A. . . . and in order to induce full payment to be made to the undersigned for such labor and/or
materials: I/we do hereby represent to DURABLE DEVELOPERS, INC. . . . that I/We have fully paid
for all labor performed and/or materials furnished by the undersigned . . . for which I/we . . . now claim
payment; and in consideration of the payment to the undersigned of all or a portion of the amount set
forth on the invoice(s) of the undersigned number(s)* 4071 dated* OCTOBER 3, 1980 receipt of which is
hereby acknowledged, I/we hereby waive and relinquish all rights to claim a lien. . . . (Emphasis added.)
Invoice #4701, which was incorporated by reference in the conditional lien waiver, stated the sum due to be
$181,041.00. The lien waiver given to Durable by Van's is essentially similar.
absolute right to pay the invoices of the materialmen, Durable cannot now be held liable for
sums misappropriated by the materialmen. Accordingly, we reverse that portion of the district
Court's judgment finding Durable liable to the Trustees in the amount of the kickbacks
($44,170) made by the materialmen to Marchini. This disposition makes it unnecessary to
decide the question of whether the district court erred in determining the amounts of the
kickbacks.
DURABLE'S PAYMENTS TO THE LAW FIRM
As indicated above, the $250,000 assignment between Marchini and the law firm was
made in August of 1980. In September of 1980, Durable paid the law firm $48,233.11
pursuant to the assignment. On October 17, 1980, the Trustees served the writ of garnishment
on Durable. After receiving service of the writ, Durable paid the law firm $136,775.96
pursuant to the assignment. Thus, the total paid to the law firm by Durable was $185,283.99.
At the post-judgment hearing, the district court found that $129,000 of the $250,000
assignment was given to satisfy the preexisting indebtedness of Marchini. The district court
concluded that this portion was exempt from coverage under Article Nine of the Uniform
Commercial Code because it was not intended to have an effect as security, because it was
not made within the typical commercial financial setting, and because it constituted a single
account within the meaning of NRS 104.9104(6). The court then found that $121,000 of the
assignment was given to secure future advances by the law firm and that, therefore, this
portion was governed by Article Nine of the UCC. Because the law firm did not file a
financing statement prior to service of the writ of garnishment, the court concluded that the
Trustees, as lien creditors, had priority over the firm's security interest. The district court
entered a judgment against Durable in the amount of $56,009.07 ($185,009.07 minus
$129,000), as the amount improperly paid the law firm after service of the writ.
The Trustees contend that they have priority over the entire $136,775.96 paid by Durable
to the law firm after service of the writ of garnishment. First, the Trustees contend that the
district court erred by failing to find Marchini's assignment to the law firm voidable as a
fraudulent conveyance pursuant to NRS 112.050 and NRS 112.060. Specifically, the Trustees
argue that the assignment was made while Marchini was insolvent and that it was not
supported by fair consideration, because the amount of the assignment exceeded the
preexisting indebtedness.
[Headnote 7]
The district court found as a fact that the Trustees failed to show the assignment to the law
firm rendered, or would render, Marchini insolvent. The district court then concluded as a
matter of law that the Trustees had failed to present sufficient evidence that Marchini was
insolvent at the time of the assignment, that the assignment rendered Marchini insolvent, or
that Marchini made the assignment with an intent to hinder, delay or defraud its creditors. See
NRS 112.080. The district court also concluded that Marchini's antecedent debt to the law
firm, which the district court found to be a legitimate and enforceable debt, was fair
consideration for the assignment. Our review of the record reveals substantial evidence to
support these findings and conclusions of the district court. Therefore, they will not be set
aside on appeal. See Folsom v. Woodburn, 100 Nev. 331, 683 P.2d 9 (1984) (where a district
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).
Second, the Trustees contend that the entire assignment to the law firm is subject to the
filing provisions of Article Nine, and that the district court erred in ruling that a portion
($129,000) of the assignment was exempt. Because the law firm did not perfect its interest in
the funds held by Durable by filing a financing statement, the Trustees contend that, as lien
creditors, they had priority over the law firm's unperfected interest. See NRS 104.9301(1)(b).
The Trustees conclude, therefore, that they are entitled to judgment for the entire $136,778.96
paid by Durable to the law firm after service of the writ of garnishment.
The law firm maintains, however, that the entire assignment is excluded from the filing
provisions of Article Nine as an absolute assignment of a single account in satisfaction of a
preexisting indebtedness. Therefore, the law firm argues, it had priority over the funds
received under the assignment because the assignment occurred prior to service of the writ of
garnishment.
NRS 104.9102 sets forth the transactions covered by Article Nine. This statute provides
that, unless otherwise excluded, Article Nine applies [t]o any sale of accounts or chattel
paper.
7
According to the drafter's comments to this section, every assignment of an
account receivable, whether intended for security or not, is included within the scope of
Article Nine unless expressly excluded by some other provision.
____________________

7
Specifically, NRS 104.9102(1) (emphasis added) provides:
1. Except as otherwise provided in NRS 104.9104 on excluding transactions, this article applies:
(a) To any transaction (regardless of its form) which is intended to create a security interest in
personal property or fixtures including goods, documents, instruments, general intangible, chattel papers
or accounts; and also
(b) To any sale of accounts or chattel paper.
According to the drafter's comments to this section, every assignment of an account
receivable, whether intended for security or not, is included within the scope of Article Nine
unless expressly excluded by some other provision. Only one relevant statutory exclusion
exists. NRS 104.8104(6) provides that the transfer of a single account receivable is excluded
from the scope of Article Nine. This statute provides in pertinent part:
This article does not apply:
. . .
6. To a sale of accounts or chattel paper as part of a sale of the business out of which
they arose, or an assignment of accounts or chattel paper which is for the purpose of
collection only, or a transfer of a right to payment under a contract to an assignee who
is also to do the performance under the contract or a transfer of a single account to an
assignee in whole or partial satisfaction of a preexisting indebtedness. . . .
(Emphasis added.) Therefore, if the assignment constitutes a transfer of a single account
within the meaning of the above exception, the assignment is excluded in its entirety from the
provisions of the UCC. If, on the other hand, more than one account is transferred, the entire
assignment is governed by the provisions of Article Nine. There is no statutory authority for
splitting the assignment and finding a portion of the transfer exempt from Article Nine and a
portion of the same assignment subject to the provisions of Article Nine. Therefore, at the
very least, the district court erred by dividing the assignment and treating it as partially
covered and partially excluded by Article Nine.
[Headnote 8]
The question of whether a single account was transferred by Marchini to the law firm
was vigorously disputed by the parties. The Trustees argued that Marchini assigned his rights
to payment under two distinct framing contracts.
8
The Trustees noted that the written
assignment between Marchini and the law firm explicitly recognized the existence of two
distinct framing contracts. Although the subcontracts between Durable and Marchini involved
two residential housing projects, Marchini averred that he treated all his contracts with
Durable as a single account. The district court resolved this dispute in Marchini's favor,
concluding that the assignment was of a single account. The district court viewed the
subcontracts as Durable's framing account with Marchini."
____________________

8
Under Article Nine, see NRS 104.9106, account is defined as any right to payment for goods sold or
leased or for services rendered. . . . (Emphasis added.)
account with Marchini. This conclusion is supported by substantial evidence in the record
and, therefore, we will not disturb it on appeal. See Folsom v. Woodburn, supra.
Accordingly, the entire transfer was outside the scope of Article Nine. Because the entire
transfer was outside the scope of Article Nine, the validity of the transfer, and the priorities of
the amounts due Marchini from Durable under the assignment, must be determined according
to common law principles.
[Headnotes 9, 10]
The general rule is that priority between an attachment or garnishment and an assignment
of a chose in action depends on priority in time. See Saunders v. Adcock, 462 S.W.2d 219,
221 (Ark. 1971); Martinez v. Dixon, 710 P.2d 498, 500 (Colo.Ct.App. 1985); Higgs v.
Amarillo Postal Employees Credit Union, 358 S.W.2d 761, 763 (Tex.Civ.App. 1962);
Monegan v. Pacific Nat'l Bank of Washington, 556 P.2d 226, 231 (Wash.Ct.App. 1976).
Therefore, the assignment in this case, which predated service of the writ of garnishment, has
priority. Nevertheless, we conclude that the assignment has priority over the writ of
garnishment only to the extent that the consideration given for the assignment represented a
present advance or antecedent debt. See NRS 112.040;
9
cf. Edward L. Eyre & Co. v.
Hirsch, 218 P.2d 888, 897 (Wash. 1950) (where bank sold warehouse receipts after service of
writ of garnishment for an amount less than their value, bank was liable to garnishor for
difference between the amount for which the receipts were sold and the value of the receipts).
In this case, it is uncontroverted that a portion of the assignment was given to secure
possible advances that the law firm might make on behalf of Marchini in the future. The
district court found that at the time the assignment was executed, $129,000 represented an
antecedent debt owed by Marchini to the law firm. The district court also found that the
remaining $121,000 represented security for future advances. The law firm alleges, however,
that prior to the service of the writ of garnishment, it advanced funds to, and performed
services for, Marchini in the amount of $203,000.10 Although this figure is disputed by the
Trustees, the law firm is entitled to priority over that portion of the assignment that
represents funds actually advanced to, or on behalf of, Marchini prior to the service of the
writ of garnishment.
____________________

9
NRS 112.040 (emphasis added) provides:
Fair consideration is given for property, or obligation,
1. When in exchange for such property, or obligation, as a fair equivalent therefor, and in good faith,
property is conveyed or an antecedent debt is satisfied, or
2. When such property or obligation is received in good faith to secure a present advance or
antecedent debt in amount not disproportionately small as compared with the value of the property or
obligation obtained.
amount of $203,000.
10
Although this figure is disputed by the Trustees, the law firm is
entitled to priority over that portion of the assignment that represents funds actually advanced
to, or on behalf of, Marchini prior to the service of the writ of garnishment.
The district court did not determine the amount of the antecedent debt Marchini owed to
the law firm at the operative or relevant time, i.e., the date of service of the writ of
garnishment. See Walker v. Carolina Mills Lumber Co., Inc., 429 So.2d 1065, 1068
(Ala.Civ.App. 1983) (date of service of writ of garnishment becomes date on which priority
among various claimants is determined); cf. Gambino v. Culp, 444 So.2d 730, 732 (La.Ct.
App. 1984) (seizure in garnishment procedure is effective the moment of service of
garnishment interrogatories). Therefore, we must remand this matter to the district court with
instructions that it conduct an evidentiary hearing to determine the amount of the assignment
that represented either present advances or antecedent debts owed to the law firm as of
October 17, 1980, the date the Trustees served Durable with the writ of garnishment.
THE REMAINING $80,000 RETAINED BY DURABLE
AS PROCEEDS DUE MARCHINI
As previously discussed, after the payments to the law firm, Van's, and Las Vegas
Plywood, Durable still retained $80,000 in proceeds due Marchini under the subcontracts.
The district court awarded this $80,000 to the Trustees pursuant to the writ of garnishment.
On appeal, Durable contends the district court erred in refusing to allow it to retain this sum
to indemnify it against possible liabilities arising out of related claims filed by the Trustees
and threatened by the SIIS.
At the time the writ of garnishment was served, Durable was potentially liable to the
Trustees and to the SIIS for payments which Marchini had failed to make. As noted above,
the first potential claim was the result of a second independent action against Durable filed by
the Trustees based on Marchini's failure to pay employee fringe benefits in conjunction with
work done by Marchini for Durable from 1976 through 197S {District Court Case No.
____________________

10
According to the law firm, it advanced funds to, or on behalf of, Marchini in the amount of $203,000 as
follows: $109,000 was advanced as a loan to the Mondo Corporation and the loan was guaranteed by Marchini;
$20,000 in legal services were performed at Marchini's request for Sam Calabrese; $50,000 was advanced to the
Sterling Heights Partnership to cover its losses and Marchini guaranteed these amounts; $24,000 was advanced
directly to Marchini as a loan. Of the above amount, all were advanced prior to the date of the assignment of the
$250,000 account, except the $24,000 direct loan to Marchini which was advanced after the date of the
assignment but prior to the service of the writ of garnishment. The trustees dispute that any funds were actually
advanced by the law firm, arguing that the amounts cited above represent bogus debts.
Marchini for Durable from 1976 through 1978 (District Court Case No. A201547). The
Trustees alleged that Durable was liable for Marchini's failure to pay fringe benefits to the
Trustees in the amount of $23,000. The second potential claim was a threatened lawsuit
against Durable by the SIIS. The SIIS had notified Durable that Marchini had failed to pay
insurance premiums required by the industrial insurance statutes. As the general contractor,
Durable was potentially liable for these unpaid insurance premiums. See NRS 608.150. The
SIIS eventually did file suit against Durable. The district court refused to allow Durable to
retain the $80,000 to indemnify it against these potential claims because the amounts owed
were then unliquidated. See NRS 31.360 (garnishee may not retain amounts that represent
unliquidated damages for wrongs and injuries).
Durable moved the district court to consolidate the present action with the other action
filed by the Trustees (Case No. A201547). The district court refused to do so. Pursuant to
NRS 31.294, the district court should then have stayed this action pending the final judgment
in the other action. NRS 31.294 (emphasis added) provides:
Money, property, demands, debts, claims, choses in action and any other property
which is subject to garnishment may be reached and subjected even though another
action is pending thereon. If the other action is not pending in the court from which the
garnishment issues, the court, on proof by the garnishee of the pendency of the other
action, must stay such proceedings against such garnishee until notified that a final
judgment has been rendered. Upon such notification the court shall make an
appropriate order, according to the judgment, in favor of the defendant for the use of
the plaintiff or in favor of the garnishee defendant. The judgment, if rendered against
the garnishee, acquits him from all demands by the defendant for all money, property,
goods, effects and credits paid, delivered and accounted for by the garnishee by force of
such judgment.
Although none of the parties brought this statute to the attention of the district court, if the
district court had stayed the garnishment proceedings below, the problem now raised by
Durable would have been avoided.
[Headnote 11]
Durable is entitled to assert any defense against the Trustees that Durable would have had
against Marchini. See NRS 31.360. Had Marchini sued Durable on the subcontracts involved
in the present case, Durable would undoubtedly have been able to offset the debts Marchini
owed Durable from any recovery awarded to Marchini. Although the amounts for which
Durable would become liable as a result of Marchini's failure to pay insurance premiums
and fringe benefits were uncertain at the time of the trial of this matter, those amounts
have, at least partially if not totally, become liquidated during the pendency of this
appeal.
become liable as a result of Marchini's failure to pay insurance premiums and fringe benefits
were uncertain at the time of the trial of this matter, those amounts have, at least partially if
not totally, become liquidated during the pendency of this appeal. For example, the SIIS
action has been resolved and Durable was required to pay insurance premiums on behalf of
Marchini in the amount of $39,573.28. See SIIS v. Durable Developers, 102 Nev. 398, 724
P.2d 199 (1986). Because Durable has been required to expend monies on behalf of Marchini,
under NRS 31.360, Durable is entitled to an offset against the $80,000 still in its possession.
The record does not disclose the disposition of the second independent action filed by the
Trustees. If Durable is required to pay any amount as a result of that action, Durable is also
entitled to an offset for that amount.
Accordingly, we reverse that portion of the district court's judgment awarding the Trustees
the $80,000 still in Durable's possession. We remand this portion of the case to the district
court with instructions that it: (1) allow Durable an offset in the amount of $39,573.38, as
discussed above; (2) determine the amount of any offset owed Durable as a result of the
Trustees' second independent action; and (3) determine whether Durable is entitled to an
offset against the remaining funds retained by Durable as a result of our remand discussed
previously concerning the assignment of the single account to the law firm.
THE AWARD OF ATTORNEY'S FEES TO THE TRUSTEES
Finally, Durable contends the district court erred by awarding $22,000 in attorney's fees to
the Trustees and by refusing to award attorney's fees to Durable. Although the district court
did not specify the statutory basis for its award of fees, NRS 31.340 provides in pertinent
part:
[I]f the verdict or finding is as favorable to the garnishee as his answer, he shall recover
costs of the proceedings against the plaintiff, together with a reasonable attorney's fee,
otherwise the plaintiff shall recover costs against the garnishee, together with a
reasonable attorney's fee.
Durable's answer to the garnishment interrogatories states that [s]ums may become due [to
Marchini] but the amount, if any, after deducting assignments and offsets is unknown at this
time. Durable contends that because the district court allowed certain offsets in Durable's
favor, the verdict was as favorable to Durable as its answer. Therefore, Durable argues, the
district court should have awarded attorney's fees to it rather than to the Trustees.
Because this case must be remanded as indicated above, we are unable to determine at
this time whether any party is entitled to an award of attorney's fees.
unable to determine at this time whether any party is entitled to an award of attorney's fees.
Therefore, we reverse the award of attorney's fees in favor of the Trustees, and we remand
this issue to the district court for consideration after all other issues of liability have been
resolved. See NRS 31.340.
CONCLUSION
We reverse those portions of the district court's amended judgment awarding the Trustees
$180,179.07, we reverse the lower court's award of attorney's fees to the Trustees, and we
affirm the district court's judgment in all other respects. We remand this case to the district
court for further proceedings consistent with this opinion.
____________
102 Nev. 419, 419 (1986), Hairston v. Union Plaza
LEONARD HAIRSTON, Appellant, v.
UNION PLAZA, Respondent.
No. 16567
September 5, 1986 724 P.2d 218
Appeal from an order of the district court reversing the decision of a State Industrial
Insurance System appeals officer and denying the claimant's request to reopen his SIIS claim.
Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Appeals officer reopened SIIS claim, and self-insured employer sought review. The district
court reversed and claimant appealed. The Supreme Court held that appeals officer properly
ordered reopening of claim where claimant's indigency prevented submission of detailed
medical documentation supporting request.
Reversed.
Dennis Kist, Las Vegas, for Appellant.
Jerry Collier Lane, Las Vegas, for Respondent.
Appeals officer properly ordered reopening of State Industrial Insurance System claim, which was closed
by self-insured employer for employee's failure to keep appointments, on claimant's testimony that he was
unable to obtain full medical documentation due to indigency, orthopedic surgeon's reports indicating that
claimant was suffering from nerve root compression and was in need of further evaluation, and notes from
doctor which did not specifically certify that treatment was indicated by change in circumstances. NRS
616.545, subd. 2, 616.5426, subd. 2.
OPINION
Per Curiam:
The issue presented is whether the appeals officer erred in ordering the reopening of
appellant's SIIS claim, where appellant's indigency prevented the submission of detailed
medical documentation supporting his request. We hold that the appeals officer properly
ordered the reopening of the claim, and therefore that the district court erred in reversing the
determination of the appeals officer.
Appellant, Leonard Hairston, sustained an industrial injury on February 5, 1982, when he
fell through a ceiling in the course of his employment with the respondent, Union Plaza.
Appellant was treated and released to return to work, but was to continue to undergo physical
therapy. He failed to arrive for therapy appointments, allegedly due to illness and lack of
transportation. Because of Hairston's failure to keep appointments, his claim was
administratively closed. On January 12, 1983, Hairston requested reopening of his claim,
submitting two reports from Dr. P.E. Getscher, M.D., indicating that Hairston was unable to
work due to the February 5, 1982, injury. Hairston's request to reopen his claim was denied
by the self-insured employer.
After a claim has been closed, the insurer, upon receiving an application and for
good cause shown, may authorize the reopening of the claim for medical investigation
only. The application must be accompanied by a written request for treatment from the
physician or chiropractor treating the claimant, certifying that the treatment is indicated
by a change in circumstances and is related to the industrial injury sustained by the
claimant.
While the notes from Dr. Getscher did not specifically certify that treatment was indicated by
a change in circumstances, the fact that a change in circumstances had occurred is indicated
from Dr. Getscher's statement that Hairston was unable to work, where he had previously
been released for work by his treating physicians. Hairston testified that he was unable to
obtain full medical documentation due to his indigency. Under these circumstances, the
appeals officer did not err in holding that the documents presented met the requirements of
NRS 616.545(2). The district court therefore erred in holding that Hairston's request to reopen
his claim was barred by failure to comply with that statute.
We further note that the evidence presented to the appeals officer clearly supports the
decision to reopen the claim. Hairston submitted a report from Dr. Gordon, an orthopedic
surgeon, which indicated that he was suffering from nerve root compression and as in
need of further evaluation.
which indicated that he was suffering from nerve root compression and as in need of further
evaluation. Other medical reports also supported Hairston's claim that he was in need of
further treatment and evaluation. The appeals officer properly considered the various medical
reports, as well as the testimony of the claimant, in ordering the reopening of the claim. See
NRS 616.5426(2).
Based on the foregoing, we hereby reverse the order of the district court, and reinstate the
decision of the appeals officer ordering that appellant's claim be reopened.
____________
102 Nev. 421, 421 (1986) Paullin v. Sutton
ROBERT PAULLIN and S & D MANAGEMENT INC.,
Appellants, v. BARBARA SUTTON, Respondent.
No. 16598
September 10, 1986 724 P.2d 749
Appeal from judgment awarding compensatory and punitive damages for retaliatory
eviction. Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
Tenant brought action against landlord, alleging retaliatory eviction. The district court
entered judgment in favor of tenant, and landlord appealed. The Supreme Court held that: (1)
evidence supported finding of retaliatory eviction; (2) tenant failed to establish entitlement to
compensatory damages; and (3) punitive damages were not recoverable in retaliatory eviction
case.
Reversed.
J. Bruce Alverson and Bryce A. Dixon, Las Vegas; Hyman, Gurwin, Nachman, Friedman
& Winkelman and Richard D. Bisio, Southfield, Michigan, for Appellants.
Vannah, Roark & Madson, Las Vegas, for Respondent.
Robert E. Gaston, Las Vegas, for Amicus Curiae.
In considering claim that evidence does not support jury verdict, appellate court must assume that jury
believed all evidence favorable to prevailing party and drew all reasonable inferences in her favor; verdict
will be overturned only if there is no substantial evidence to support it.
Evidence supported finding that landlord's eviction of tenant was retaliatory for her complaints
concerning persistent plumbing problems and condition of common areas. NRS 118A.510.
As matter of law, damages for retaliatory eviction do not include all or part of purchase price of new
home by former tenant. NRS 118A.510.
Tenant, who established retaliatory eviction on part of landlord, failed to establish entitlement to
compensatory damages; tenant could not recover for any part of purchase price of new home she
purchased, and failed to offer any evidence concerning alleged moving expenses. NRS 118A.510.
Punitive damages are not recoverable in tenant's action for retaliatory eviction. NRS 118A.510.
OPINION
Per Curiam:
This action involves allegations of retaliatory eviction by a residential landlord, in
violation of NRS 118A.510. The tenant, Barbara Sutton, contended that her eviction from her
apartment home of nineteen years was motivated by her complaints concerning persistent
plumbing problems and the filthy condition of the common areas.
The eviction apparently resulted from a series of disputes between Sutton and the manager
of the Las Vegas Manor Apartments, Robert Paullin. In March of 1983, Paullin received a
memo from his supervisor directing him to inspect all storage areas and make sure they were
cleaned out. Paullin testified that he went to the storage shed near Sutton's apartment,
discovered that none of his keys fit the lock, and instructed a handyman to break the lock. At
that time, Sutton came out and informed Paullin that the items in the storage shed belonged to
her. Sutton claimed that use of the shed had been part of her lease when she first moved into
the building in 1964. Paullin had a new lock put on the shed and gave the key to Sutton
pending resolution of the question of Sutton's use of the shed. On April 22, 1983, Paullin
delivered a letter to Sutton instructing her to (1) bring her apartment into a clean and sanitary
condition within ten days
1
; (2) vacate and clean the storage unit within thirty days; (3)
immediately remove from her window a sign which read, Please inquire at the office about
names and addresses. Thank you.
2
; and {4) put current license plates on her car, inflate
the tires, and bring it into operable condition within ten days, or it would be towed away
at her expense.3 Paullin testified that, upon receiving this letter, Sutton stated that she
was "not going to do a damn thing."
____________________

1
According to Paullin, a plumber had reported the unclean condition of Sutton's apartment.

2
Paullin testified that the sign, which had been in Sutton's window for over seven years, was a dirty eyesore.
Paullin had ordered a large sign directing visitors to the manager's office, which was to be placed in the grass
near the front of Sutton's apartment. The evidence is conflicting as to whether the new sign had been erected at
this time, and as to whether Paullin had informed Sutton that a new sign was being provided by the apartment
owners.
and (4) put current license plates on her car, inflate the tires, and bring it into operable
condition within ten days, or it would be towed away at her expense.
3
Paullin testified that,
upon receiving this letter, Sutton stated that she was not going to do a damn thing. Paullin
spoke to his supervisor later that day concerning the problems with Mrs. Sutton, following up
the call with a letter detailing the problems he was having with her. His supervisor instructed
Paullin to serve a notice to quit upon Sutton. This decision was made within four days of the
April 22 demand served upon Sutton. The notice was served May 2. At that time, Sutton had
not removed the sign or the items in the storage shed, and had not repaired or removed the
automobile. She vacated the premises on June 2, 1983, and brought this action against S & D
Management, Inc. (S & D), the owners of the apartments, and against Robert Paullin. S & D
appeals from a jury verdict awarding Sutton $12,000 in compensatory and $88,000 in
punitive damages.
4

[Headnotes 1, 2]
S & D first contends that the evidence does not support a finding of retaliatory eviction. In
considering such a claim, this court must assume that the jury believed all the evidence
favorable to the prevailing party and drew all reasonable inferences in her favor. The verdict
of the jury will be overturned only if there is no substantial evidence to support it. E.g.,
General Motors v. Reagle, 102 Nev. 8, 714 P.2d 176 (1986). We find that sufficient evidence
was presented to support the jury's finding that the eviction was retaliatory. While there was
also evidence that the eviction was motivated by the tenant's failure to comply with the
obligations of her lease, rather than for any retaliatory purpose, it was for the trier of fact to
determine the credibility of the testimony presented. See, e.g., Jacobson v. Best Brands, Inc.,
97 Nev. 390, 632 P.2d 1150 (1981). However, for the reasons stated below, we are unable to
sustain the award of $12,000 in compensatory and $88,000 in punitive damages.
[Headnotes 3, 4]
It is the burden of the plaintiff to prove damages. E.g., Kelly Broadcasting Co. v.
Sovereign Broadcast, 96 Nev. 188, 606 P.2d 1089 (1980). In this case, the only evidence of
Sutton's damages was her testimony that, following her eviction, she purchased a
condominium for $25,000 down and $1,552 mortgage payment (plus $135 association fee)
per month. We hold as a matter of law that damages for retaliatory eviction do not include
all or part of the purchase price of a new home by the former tenant.
____________________

3
Mrs. Sutton had not driven the car since her husband's death in July of 1975. The car had been operated
only once since that time, when Sutton allowed a workman to move it in order to repave the parking lot.

4
.The jury also entered a verdict against Paullin, awarding only punitive damages in the amount of $300.
Sutton did not attempt to enter judgment against Paullin.
that damages for retaliatory eviction do not include all or part of the purchase price of a new
home by the former tenant. Although Sutton's answers to interrogatories indicated that she did
incur expenses in moving, she did not introduce one scintilla of evidence at trial concerning
the amount of these expenses. Because Sutton has failed to carry the burden of proving her
damages, we must vacate the compensatory damage award of $12,000. Further, she is not
entitled to a new trial to introduce evidence which she failed to present at the first trial.
Bradley v. Romeo, 102 Nev. 103, 716 P.2d 227 (1986).
[Headnote 5]
This court has previously held that an award of punitive damages cannot stand in the
absence of a valid award of compensatory damages. See, e.g., Novack v. Hoppin, 77 Nev. 33,
43-44, 359 P.2d 390, 395 (1961). Further, we hold that punitive damages were not properly
recoverable in this case. While NRS 118A.510 clearly prohibits the non-renewal of a
month-to-month tenancy for a retaliatory purpose, that statute, as it existed in 1983, was silent
as to the issue of whether punitive damages were recoverable for a retaliatory eviction.
5
It
is notable, however, that an amendment to the bill creating NRS 118A.510 altered the
language providing for recovery of damages to allow the recovery of only actual
damages. Considering all these factors, we are unable to say that Nevada landlords had
notice that such conduct would subject them to liability for punitive damages. Under these
circumstances, we believe it would be unfair to subject the landlord to limitless liability for
punitive damages for such conduct. Cf. Hansen v. Harrah's, 100 Nev. 60, 65, 675 P.2d 394,
397 (1984) (unfairness of imposing liability for punitive damages where conduct had not
previously been declared actionable). The award of $88,000 in punitive damages must
therefore be vacated.
6

For the reasons stated above, the judgment of the district court must be reversed.
Mowbray, C. J., and Springer, Gunderson, and Young, JJ., and Zenoff, Sr. J.,
7
concur.
____________________

5
In 1985 the statute was amended to provide that a tenant demonstrating retaliatory eviction may recover
actual damages, $1,000, or both.

6
In addition, it is difficult to see how, on the record presented, the district court determined that there was
sufficient evidence of malice in fact to allow the jury to consider the issue of punitive damages. See, e.g.,
Warmbrodt v. Blanchard, 100 Nev. 703, 692 P.2d 1282 (1984); Bader v. Cerri, 96 Nev. 352, 609 P.2d 314
(1980).

7
The Honorable David Zenoff, Senior Justice, was designated by the Governor to sit in place of Justice
Thomas L. Steffen, who voluntarily disqualified himself. Nev. Const., art. 6, 4.
____________
102 Nev. 425, 425 (1986) Hoopes v. Hammergren
ROBERTA HOOPES aka ROBERTA JONES, Appellant, v.
LONNIE LEE HAMMARGREN, M.D., Respondent.
No. 15394
September 19, 1986 725 P.2d 238
Appeal from order granting summary judgment in favor of respondent. Eighth Judicial
Patient brought malpractice action against physician for misdiagnosis, mistreatment, and
sexual advantage. The district court entered summary judgment in favor of physician, and
patient appealed. The Supreme Court, Gunderson, J., held that: (1) patient's action was not
barred by controlling statute of limitations; (2) physician was not liable to patient for
negligent misdiagnosis; but (3) patient had right to seek redress in courts against physician for
having allegedly taken sexual advantage of patient; and (4) evidence presented genuine issues
of material fact as to whether physician abused physician-patient relationship by taking sexual
advantage of patient and whether physician mistreated patient by prescribing various drugs
for her, precluding summary judgment in favor of physician.
Affirmed in part, reversed in part.
Gang & Berkley, Las Vegas, for Appellant.
Galatz, Earl & Catalano and Daniel F. Polsenberg, Las Vegas, for Respondent.
1. Judgment.
Summary judgment is appropriate only where moving party has shown no genuine issue of material
fact. NRCP 56(c).
In reviewing order granting summary jmudgment, Supreme Court will consider all evidence in light
most favorable to party against whom motion is granted. NRCP 56(c).
3. Limitation of Actions.
Patient's medical malpractice action against physician was not barred by controlling statute of
limitations, where patient filed petition with medical-legal screening panel within 22 months after
discovery of her injuries, and filed her complaint within six-month period after Legislature abolished
requirement that petition be filed with screening panel as prerequisite to filing of civil complaint. NRS
41A.070 (Repealed); St. 1981, c. 327, 16.
Physician was not liable to patient for having allegedly misdiagnosed patient as suffering from multiple
sclerosis, where patient's expert witness, who found no evidence to show patient was suffering from
multiple sclerosis, nevertheless acknowledged that it was not unreasonable for physician to have reached
that diagnosis.
5. Judgment.
Evidence presented genuine issue of material fact as to whether physician was negligent in his
treatment
physician was negligent in his treatment modalities by prescribing various drugs for patient, who was
allegedly suffering from multiple sclerosis, precluding summary judgment in favor of physician, in patient's
medical malpractice action for mistreatment.
Fiduciary relationship and position of trust occupied by all physicians vis-a-vis their patients demands
that all physicians, and not merely those practicing psychiatry, exercise utmost good faith in their
relationships with their patients.
Physician, who takes advantage of patient's vulnerabilities, violates patient's trust and abuses his power;
such conduct falls below the acceptable standard for a fiduciary.
Even though physician might have also been subject to professional sanctions, patient could maintain
medical malpractice action against physician for having allegedly taken sexual advantage of her.
To prevail in her medical malpractice action charging that physician had taken sexual advantage of her,
patient had to prove, by preponderance of evidence, that physician held superior authoritative position in
professional physician-patient relationship, that patient was vulnerable as result of her illness, that
physician exploited that vulnerability, with the nature and extent of circumstances surrounding that alleged
exploitation being subject to careful examination, and that exploitation was proximate cause of any claimed
harm.
10. Judgment.
Evidence presented genuine issue of material fact as to whether physician allegedly abused
physician-patient relationship by taking sexual advantage of patient, precluding summary judgment in favor
of physician, in patient's medical malpractice action against physician.
OPINION
This is an appeal from a summary judgment granted in favor of respondent, Dr. Lonnie
Hammargren. While Dr. Hammargren asserts that his alleged conduct did not constitute
actionable malpractice, Ms. Hoopes contends that there are genuine issues of fact to be
decided at trial relating to her claim of malpractice (which include misdiagnosis,
mistreatment and sexual advantage of the physician-patient relationship). Further, while
Hammargren urges that Ms. Hoopes' action was untimely filed, she argues on appeal that her
action in not barred by the controlling statute of limitations. We agree with Ms. Hoopes.
Our review of the record indicated that Ms. Hoopes' cause of action was timely filed.
Additionally, we have determined Dr. Hammargren was not entitled to judgment as a matter
of law on the claims of mistreatment and sexual advantage of the physician-patient
relationship. Accordingly, we reverse in part and affirm in part.
FACTS AND PROCEDURAL HISTORY
In March, 1972, Ms. Hoopes was referred to Dr. Hammargren (a neurosurgeon) for
evaluation of numbness in the back and legs. Dr. Hammargren hospitalized Ms. Hoopes for a
diagnostic evaluation and, pursuant to this, informed her that she suffered from multiple
sclerosis.
1
The record indicates Dr. Hammargren told Ms. Hoopes that the disease was
serious and involved deterioration of the nervous system, and that Ms. Hoopes responded she
would do anything you ask me tojust keep me walking.
Dr. Hammargren continued to treat Ms. Hoopes on an out-patient basis. According to the
record now before us, he recognized the emotional liability frequently associated with
multiple sclerosis and told Ms. Hoopes it was important that she never be upset because the
disease will attack your nervous system. Accepting the evidence of Ms. Hoopes, Dr.
Hammargren explained this was why the medications he prescribed were so important. To
this end, evidently, Mr. Hoopes received numerous prescriptions for quaaludes, valium,
elavil, triavil, meprobamate, chloral hydrate, phenobarbitol, seconal, and talwin, while under
the care of Dr. Hammargren.
2

Two to three months after Ms. Hoopes' initial visit to Dr. Hammargren, the record
indicates he phoned her at home and invited her to have dinner, saying his wife was out of
town and he was lonely. After dinner he invited her into his office to see his iguanas, and
they had sexual intercourse. Ms. Hoopes claims this sexual relationship continued until 1977
(with the exception of a six-month period when Ms. Hoopes was married and was residing
out-of-state). There were never any other social engagements. Dr. Hammargren always came
to Ms. Hoopes' home. She claims the relationship was based solely on sex and Dr.
Hammargren visited on an average of once monthly. Although Ms. Hoopes admitted Dr.
Hammargren never told her that the sexual intercourse constituted a part of any treatment
plan, she claims she feared to object. She asserts she felt that Dr. Hammargren might become
angry and terminate their physician-patient relationship and that he was the reason I was
alive and I didn't want to upset this man or make him feel like I didn't like him or
anything."
____________________

1
A slowly progressive disease of the central nervous system characterized pathologically by disseminated
patches of demyelinization [destruction of the sheath surrounding nerve tissue] in the brain and spinal cord, and
clinically by multiple symptoms and signs with remissions and exacerbations. Common symptons include visual
disturbances, weakness, interference with walking, difficulties with bladder control, and mild emotional
disturbances. The Merck Manual at 1339-40 (12th ed. 1972).

2
Most of these drugs are potent central nervous system depressants with recognized potential for physical
and psychological dependence. Many produce withdrawal symptoms when taken for a period of time and then
abruptly stopped. Physician's Desk Reference (39th ed. 1985).
to upset this man or make him feel like I didn't like him or anything.
Dr. Hammargren admits having had a sexual relationship with Ms. Hoopes, but contends it
began in 1976 and involved only three or four encounters. Although Ms. Hoopes testified that
Dr. Hammargren would usually bring quaaludes or chloral hydrate when he came to her home
for sexual gratification, Dr. Hammargren was unable to recall whether he provided drugs
during these encounters.
Dr. Hammargren claims he considered Ms. Hoopes a girl friend rather than a patient. Their
sexual encounters were social and he did not intend therapeutic benefit. Dr. Hammargren says
he did not feel this sexual relationship would affect Ms. Hoopes emotionally although he
conceded that emotional liability is generally increased in patients suffering from multiple
sclerosis.
Dr. Hammargren claims that after his initial evaluations of Ms. Hoopes, he concluded that
she probably abused drugs. In spite of this, his office records reflect that Ms. Hoopes was
provided numerous prescriptions for various tranquilizers and sedatives (many with the
potential for abuse and acquired dependence). Dr. Hammargren claims that many refills were
provided by his office staff without his approval. He monitored the drugs provided to his
patients to a degree only. He also admits having a select few group of patients that were
sort of the people that get special favors because they were there in 1971 or '72 right when I
got started.
Ms. Hoopes acknowledges that she did not try to avoid taking the drugs prescribed for her.
She claims she believed that was the reason I was not laying out in a wheelchair, the way
other people with multiple sclerosis were. In the fall of 1977, Ms. Hoopes, moved to
Louisville, Kentucky, in order to be married. After requesting these medications from a
doctor there, she was told that he didn't write prescriptions like that. According to Ms.
Hoopes, this caused her to suspect that perhaps Dr. Hammargren's treatment was not an
acceptable treatment for multiple sclerosis. In 1979, as she continued to experience some
numbness, she chose to be evaluated by experts at the Sansum Clinic in Santa Barbara,
California. There, Dr. James B. Connors told her she exhibited no signs or symptoms
consistent with a diagnosis of multiple sclerosis. Follow-up examinations confirmed this
finding.
At the hearing on his motion for summary judgment, Dr. Hammargren presented no expert
testimony in support of his position, Rather, he relied on his own testimony given through a
deposition. Ms. Hoopes relied on the deposition of Dr. Connors to oppose Dr. Hammargren's
motion for summary judgment. As to the alleged misdiagnosis, Dr. Connors testified that he
thought it was reasonable for Dr.
it was reasonable for Dr. Hammargren to have considered a diagnosis of multiple sclerosis
(among other diagnoses), but that repeated evaluations at Sansum Clinic never revealed any
evidence of the disease. Dr. Connors had obtained very little history concerning drug usage
by Ms. Hoopes; thus, he rendered no opinion on the alleged mistreatment.
The district court issued an order granting summary judgment but failed to explain its
reasoning. At the hearing on the motion, however, the court had indicated a belief that the
diagnosis rendered by Dr. Hammargren was not unreasonable, that there was no evidence of
improper prescription, and that Dr. Hammargren did not maintain a standard of care below
that expected of him as a physician. The court appeared to recognize there were ethical
considerations which might warrant attention, but deemed the district court to be an improper
forum to address such issues. The court did not address the statute of limitations bar raised by
Dr. Hammargren.
STANDARD OF REVIEW
[Headnotes 1,2]
In a medical malpractice action (as in any court action), summary judgment is appropriate
only where the moving party has shown no genuine issue of material fact. The moving party
claims that he is entitled to judgment as a matter of law. NRCP 56(c). In reviewing an order
granting summary judgment, this court will consider all evidence in a light most favorable to
the party against whom the motion is granted. Mullis v. Nevada National Bank, 98 Nev. 510,
512, 654 P.2d 533, 535 (1982); Orcutt v. Miller, 95 Nev. 408, 411, 595 P.2d 1191, 1193
(1979).
[Headnote 3]
The issue before us is whether the district court erred in granting the summary judgment
motion. In light of the facts of this case, we must decide if the district court properly
concluded that, as a matter of law, Dr. Hammargren'' conduct did not fall below the
acceptable standard of care.
3
CLAIM OF MISDIAGNOSIS
____________________

3
Utilizing the criteria established in Massey v. Litton, 99 Nev. 723, 726, 728, 669 P.2d 284, 251, 252
(1983), we have determined this cause of action to be timely filed. The date of discovery of the injuries (for the
purposes of calculating the statute of limitations) is July 23, 1979. This was the date Ms. Hoopes was told she
was not suffering from multiple sclerosis. As required by NRS 41A.070 (repealed July 1, 1981), Ms. Hoopes
filed a petition with Nevada's medical-legal screening panel on May 21, 1981 (twenty-two months after
discovery of the injuries). Subsequent to the filing of the petition, the screening panel requirement was
abolished. In abolishing this prerequisite to the filing of a civil complaint, however, the legislature provided a
six-month tolling period effective July 1, 1981. 1981 Nev. Stats. ch. 327 16 at 599. Thus, Ms. Hoopes had six
months from the date of repeal to file her claim. A complaint was filed on September 14, 1981, and was sell
within the tolled period of time.
[Headnote 4]
Ms. Hoopes claims that Dr. Hammargren negligently misdiagnosed her illness. At the
hearing on the motion for summary judgment, Dr. Hammargren relied on his own deposition.
He did not produce other expert evidence to support compliance with the applicable standard
of care. Ms. Hoopes' expert, however, acknowledged via his deposition that although he
found no evidence to show Ms. Hoopes suffered from multiple sclerosis, it was not
unreasonable for Dr. Hammargren to have reached this diagnosis.
Therefore, based on the testimony of Ms. Hoopes' own expert, there is no genuine issue of
material fact related to the claim of negligent misdiagnosis. Hence, on this claim for relief,
the district court correctly ruled that Dr. Hammargren was entitled to judgment as a matter of
law.
CLAIM OF MISTREATMENT
Ms. Hoopes next claims that Dr. Hammargren was negligent in his treatment modalities.
She asserts that the prescriptions for various drugs on a frequent basis was improper.
[Headnote 5]
The fact that Dr. Hammargren prescribed various drugs to Ms. Hoopes is not in dispute.
Dr. Hammargren admitted that he monitored drugs prescribed from his office to a degree
only. Ms. Hoopes claimed that when Dr. Hammargren would come to her home for a sexual
encounter, he would bring a number of drugs. Most often, she says, he brought quaaludes. Dr.
Hammargren admitted that he was unable to recall whether or not he provided any drugs
during these encounters.
On appeal, Dr. Hammargren asserts that Ms. Hoopes' expert testified that his methods [of
treatment] were appropriate. Our review of the record, however, reveals that Dr. Connors
(Hoopes' expert) addressed only the issue of negligent misdiagnosis. Additionally, Dr.
Hammargren failed to introduce evidence to show that the prescriptions for various drugs
were consistent with the applicable standard of care. Therefore, the record is devoid of
evidence to support the district court's ruling that Dr. Hammargren's treatment modality was
appropriate.
Accordingly, we cannot say that the district court's ruling was correct. We feel there are
genuine issues of material fact related to the claim of mistreatment.
CLAIM OF SEXUAL ADVANTAGE
Ms. Hoopes next claims that Dr. Hammargren used the physician-patient relationship to
induce her into a sexual relationship and that such conduct constitutes malpractice.
ship and that such conduct constitutes malpractice. While Dr. Hammargren does not dispute
the existence of the sexual relationship, he asserts it cannot constitute a basis for a cause of
action grounded upon professional malpractice. We disagree.
A fiduciary relationship is deemed to exist when one party is bound to act for the benefit
of the other party. Such a relationship imposes a duty of utmost good faith. Barbara A. v.
John G., 193 Cal.Rptr. 422, 431 (Ct.App. 1983). The essence of a fiduciary or confidential
relationship is that the parties do not deal on equal terms, since the person in whom trust and
confidence is reposed and who accepts that trust and confidence is in a superior position to
exert unique influence over the dependent party. Id. at 432.
[Headnote 6]
This court has recognized that the physician-patient relationship is fiduciary in nature.
Massey v. Litton, 99 Nev. 723, 728, 669 P.2d 248, 252 (1983) (citation omitted). The
physician-patient relationship is based on trust and confidence. Society has placed physicians
in an elevated position of trust, and, therefore, the physician is obligated to exercise utmost
good faith. While Dr. Hammargren urges this court to limit this type of claim to physicians
practicing psychiatry, we believe the fiduciary relationship and the position of trust occupied
by all physicians demands that the standard apply to all physicians. See also Lochett v.
Goodill, 430 P.2d 589, 591 (Wash. 1967).
[Headnote 7]
A patient generally seeks the assistance of a physician in order to resolve a medical
problem. The patient expects that the physician can achieve such resolution. Occasionally
(due to illness), the patient is emotionally unstable and often vulnerable. There is the hope
that the physician possesses unlimited powers. It is at this point in the professional
relationship that there is the potential and opportunity for the physician to take advantage of
the patient's vulnerabilities. To do so, however, would violate a trust and constitute an abuse
of power. This court would condemn any such type of exploitation. Such conduct would fall
below the acceptable standard for a fiduciary.
Historically, the physician's primary obligation has been, above all, to do no harm. It is
Ms. Hoopes' contention that Dr. Hammargren abused the physician-patient relationship by
instigating a sexual relationship.
[Headnote 8]
First, we note that the district court deemed the judiciary an improper forum to address
such issues. We disagree. While Dr. Hammargren may also be subject to professional
sanctioning, Ms. Hoopes has the right to seek redress in the courts. Cotton v. Kambly, 300
N.W.2d 627, 629 (Mich.App. 1980); Roy v. Hartogs, 366 N.Y.S.2d 297, 301 {Civ.Ct.
togs, 366 N.Y.S.2d 297, 301 (Civ.Ct. 1975). Sexual advantage of the physician-patient
relationship can constitute malpractice.
[Headnote 9]
Next, having concluded that Ms. Hoopes is entitled to include exploitation of the
physician-patient relationship in her malpractice action, we shall examine the criterion upon
which such an allegation may be based. It is incumbent upon Ms. Hoopes to prove, by a
preponderance of the evidence, that Dr. Hammargren violated his fiduciary responsibilities. In
order to do so, Ms. Hoopes must show that Dr. Hammargren held a superior authoritative
position in the professional relationship and that, as a result of her illness, she as vulnerable.
Additionally, Ms. Hoopes must show that Dr. Hammargren exploited the vulnerability. The
nature and extent of the circumstances surrounding the alleged exploitation must be carefully
examined. For example, we will not presume that Ms. Hoopes was incapable of giving
consent. The sexual relationship which admittedly existed could have been personal and
unrelated to the parameters of treatment. Additionally, a jury might determine that the
physician-patient relationship had terminated prior to certain of the alleged sexual encounters.
We also caution that Ms. Hoopes not only is required to prove exploitation, but also that it
was the proximate cause of any claimed harm.
4

[Headnote 10]
Here, in support of his motion for summary judgment, Dr. Hammargren offered no
evidence (other than his deposition) to show that he did not exploit the physician-patient
relationship. In fact, we note that Dr. Hammargren conceded that sexual encounters during
the course of such a professional relationship is not good medical practice. Accordingly, it
was error for the district court to grant summary judgment in favor of Dr. Hammargren on
this claim.
The order of the district court granting summary judgment in favor of Dr. Hammargren is
reversed as to Ms. Hoopes' claims of mistreatment and sexual advantaged of the
physician-patient relationship. As to Ms. Hoopes' claim of misdiagnosis, the order of the
district court is affirmed. Additionally, we find the filing of the civil action to be timely.
Springer, C. J., and Mowbray and Young, JJ.,
5
concur.
____________________

4
Within the foregoing parameters, it will be incumbent on the trial judge to develop an appropriate set of
jury instructions compatible with established legal principles that govern the physician-patient relationship.

5
The Honorable Justice Thomas Steffen voluntarily disqualified himself from participation in this case.
____________
102 Nev. 433, 433 (1986) Travis v. Nelson
In the Matter of the Estate of VIOLET MAE TRAVIS, deceased, VELMA FURY, Appellant,
v. SPECIAL ADMINISTRATORS, Florence Geneva Nelson, Donald R. Travis and
Richard Maples, C.P.A., Respondents.
No. 16603
September 24, 1986 725 P.2d 570
Appeal from order settling a claim held by the estate. Third Judicial District Court,
Churchill County; Norman C. Robison, Judge.
In will contest, special administrators of decedent's estate and decedent's daughter
appeared to outline settlement agreement of federal litigation brought against daughter by
decedent prior to decedent's death, which agreement was expressly conditioned upon
approval by the state court. The district court compelled daughter to sign a claim
compromise, and daughter appealed. The Supreme Court held that: (1) district court could not
force compromise between administrators and daughter by ordering parties to execute
document which included terms to which parties had not agreed; (2) order of district court
would be reversed outright, with no remand; and (3) daughter could not be compelled by
Supreme Court to act in best interests of estate.
Reversed.
Woodburn, Wedge, Blakey, and Jeppson, and W. Chris Wicker, Reno, for Appellant.
Hale, Lane, Peek, Dennison & Howard, and Victoria S. Mendoza, and Donald A. Lattin,
Reno; Diehl, Evans & Associates, Fallon, for Respondents.
1. Compromise and Settlement; Courts
State district court was without authority to alter terms of agreement between decedent's daughter and
special administrators of decedent's estate settling federal litigation commenced by decedent against her
daughter prior to decedent's death, even though agreement was expressly conditioned upon approval by
state district court.
2. Compromise and Settlement; Courts.
State district court, which could approve settlement which was in best interests of decedent's estate, could
not force compromise between decedent's estate and decedent's daughter, in federal litigation commenced
by decedent against daughter prior to decedent's death, by ordering parties to execute document which
included terms to which parties had not agreed, even though settlement agreement between the parties was
expressly conditioned upon approval by state district court.
3. Contracts.
When important terms remain unresolved, binding agreement cannot exist.
4. Executors and Administrators.
Order of state district court, mandating settlement between special administrators of decedent's
estate and decedent's daughter, in federal litigation commenced by decedent against
her daughter prior to her death, was reversed outright, with no remand, in that no
agreement existed to which district court could give effect, due to several unresolved
important items.
administrators of decedent's estate and decedent's daughter, in federal litigation commenced by decedent
against her daughter prior to her death, was reversed outright, with no remand, in that no agreement existed
to which district court could give effect, due to several unresolved important items.
5. Courts.
Decedent's daughter, whose interests were contrary to those of decedent's estate, could not be compelled
by Nevada Supreme Court to act in best interests of decedent's estate but was entitled to pursue her
interests through negotiation or litigation.
OPINION
Per Curiam:
Appellant, Velma Ruth Fury, appeals from an order of the district court compelling her to
sign a claim compromise. Fury asserts that the compromise included terms to which the
parties had not agreed. Because we agree that the district court was without authority to
compel or force a compromise, we reverse.
Before her death in 1983, Violet Mae Travis sued her daughter (Fury) in federal court to
recover interests in property previously conveyed. After Travis' death, the special
administrators of her estate were substituted as plaintiffs in Travis' action. Additionally, Fury
filed a will contest in state district court.
The parties to the federal action appeared in court and orally outlined a settlement
agreement which was expressly conditioned upon approval by the state district court. Before
the district court, however, there was disagreement as to the terms of the agreement. The
district court heard arguments and reviewed the transcript from the federal court. The court
then mandated settlement after adding certain provisions to the agreement. Fury was ordered
(over her objection) to execute a compromise of claim document. It is from this order that
Fury appeals. The special administrators concede that the district court order included
provisions not agreed upon by the parties. We agree with the parties that reversal is
appropriate.
[Headnotes 1, 2]
The district court was without authority to alter the terms of the agreement. Canfield v.
Gill, 101 Nev. 170, 697 P.2d 476 (1985). Additionally, we note that while the district court
may approve a settlement that is in the best interests of the estate, the court cannot force a
compromise by ordering the parties to execute a document that includes terms to which they
have not agreed. Dolge v. Masek, 70 Nev. 314, 268 P.2d 919 (1954) (order for specific
performance of a settlement agreement is improper where there was, in fact, no agreement).
While all agree that reversal is appropriate, the controversy is over the proper disposition
of the case. The special administrators urge this court to remand in order to allow the district
court to ascertain the settlement agreement. Fury urges outright reversal with no remand.
[Headnotes 3, 4]
The proper disposition of the case turns on the question of whether or not there was an
agreement to which the district court could give effect. Without an agreement, remand would
be futile. The record before us indicates that one of the properties involved was a ranch. Fury
believed that she was to receive immediate possession of the ranch without restriction. The
special administrators, however, believed that the ranch was to be restricted in its use for ten
years. When important terms remain unresolved, a binding agreement cannot exist. Tropicana
Hotel Corp. v. Speer, 101 Nev. 40, 692 P.2d 499 (1985). There were a number of unresolved
important terms in this instance. For this reason, we determine that there was no agreement to
which the district court could give effect. Remand would be futile.
[Headnote 5]
The special administrators urge this court to determine a settlement which would be in the
best interests of the estate. We decline to do so. Fury cannot be compelled to act in the best
interests of the estate. Her interests are contrary to those of the estate and she is entitled to
pursue those interests through negotiation or litigation. Additionally, the best interest of the
estate is a question reserved for the district court. See Canfield, 101 Nev. at 172, 697, P.2d at
477.
Lastly, Fury asks for an award of attorney's fees pursuant to NRAP 38(b). However, we are
not satisfied that this case presents the type of imposition on the trial court envisioned by
NRAP (38(b).
Reversed.
Mowbray, C.J., and Springer, Gunderson, and Steffen, JJ., and Griffin, D. J.,
1
concur.
____________________

1
The Honorable Cliff Young, Justice, voluntarily disqualified himself from consideration of this appeal, and
the Governor designated the Honorable Michael R. Griffin, District Judge, to take his place. Nev. Const. art. VI,
4.
____________
102 Nev. 436, 436 (1986) Sloan v. State Bar
JAMES F. SLOAN, Appellant, v. STATE BAR
No. 16786
October 8, 1986 726 P.2d 330
Appeal from the disciplinary recommendations of the State Bar of Nevada, Northern
Nevada Disciplinary Board.
State bar association recommended that attorney be suspended from practice of law and
attorney appealed. The Supreme Court held that: (1) attorney did not engage in criminal
conduct whatsoever, and therefore could not be suspended on basis of commission of
serious crime; (2) attorney was justified under rule then in effect, in believing that he was
prohibited from divulging information he received from client indicating that client had
already committed crime; (3) requirement that attorney maintain confidence of client applied
both to client who informed attorney of criminal conduct as well as client who was implicated
by informant; and (4) newly enacted ethical rule cannot be applied to attorney's case since
rule was enacted long after communication between attorney and client took place.
Recommendations disapproved.
Paul A. Richards, Reno, for Appellant.
Clark J. Guild, Jr., Chairman, Northern Nevada Disciplinary Board, and Michael Barr,
Bar Counsel, Reno, for Respondent.
1. Attorney and Client.
In attorney disciplinary proceeding, it is duty of court to look beyond label given to conviction in order to
determine whether underlying circumstances of conviction warrant discipline.
Attorney was not convicted of serious crime within meaning of rule regarding attorney suspension
where attorney did not engage in any criminal conduct whatsoever, did not engage in a conspiracy, and
actually entered plea of nolo contendere to nonexistent offense. SCR 111, subd. 2.
3. Witnesses.
Normally, all confidential communications between client and his attorney are considered privileged,
and client, or attorney acting on behalf of client, may refuse to divulge nature of communication. NRS
49.095.
Under rule in effect at time of communication between attorney and client, attorney had affirmative duty
to preserve client's confidences except where client advised attorney that he intended to commit crime in
future; therefore, attorney was justified in believing that he was prohibited from divulging information he
received from his client indicating that the client had already committed a crime. SCR 179 (1985).
Attorney was justified in believing that communication he received regarding past commission of crime
from client, which implicated different client, was intended as confidential client communication, and thus
could not be disclosed under rule then in effect. SCR 179 (1985).
Rule which prevented client from being able to assert attorney-client privilege for communications made
to his attorney for purposes of using attorney to commit fraud upon third person did not place affirmative
duty on attorney to disclose information received in course of such communication, particularly in view of
ethical rule which placed affirmative duty on attorney to preserve virtually all client confidences. SCR 179
(1985); NRS 49.115, subd. 1.
Newly enacted ethical rule which now provides that attorney shall not reveal information received from
client except that attorney shall reveal all information reasonably necessary to prevent client from
committing violent crime and attorney may reveal information attorney believes necessary to prevent or
rectify consequences of client's criminal or fraudulent act in commission of which lawyer's services have
been used, did not apply to communication between attorney and client regarding client's commission of
fraudulent act where communication occurred prior to enactment of new rule, and even under rule, attorney
did not commit violation in exercising independent judgment when he determined not to disclose
information he received from client. SCR 156.
OPINION
Per Curiam:
The State Bar of Nevada has recommended that attorney James F. Sloan be suspended
from the practice of law for a period of nine months and that he be assessed the costs of the
disciplinary proceedings. Sloan appeals from this recommendation, asserting that the Board's
recommendation was in error. For the reasons set forth below, we agree.
FACTS
Attorney James Sloan has practiced law in Nevada since 1966. Between 1971 and 1980,
Sloan rendered legal advice and acted as counsel in various capacities and on various
occasions for Sheldon Lamb and Ivan Brinkerhoff. Lamb and Brinkerhoff were both involved
in the ranching business in Dixie Valley, near Sloan's family ranch.
On August 8, 1980, Lamb and Brinkerhoff went to Sloan's office together, and Brinkerhoff
requested Sloan to prepare a bill of sale for a tractor his company, Brinkerhoff Seed Farms,
Inc., wished to purchase from William Larson. Brinkerhoff advised Sloan at this time that he
was going to purchase the tractor from Larson for $42,000 in cash, and that Sloan could take
$2,000 for himself as his fee for representing Brinkerhoff in this matter.
Sloan testified at the disciplinary hearing below that he was concerned about whether a
problem existed with the transaction because of Brinkerhoff's desire to deal with cash only,
but Brinkerhoff and Lamb both assured Sloan there was no problem. Sloan also testified that
although he believed the $2,000 fee was some what excessive for his services in this
particular matter, he nevertheless believed the fee was justified in light of previous work he
had done for Brinkerhoff for which he had received no compensation. Finally, Sloan testified
that he did not know William Larson, the seller of the tractor, at the time he drafted the bill of
sale.
On August 15, 1980, Brinkerhoff and a man posing as William Larson executed the bill of
sale with Sloan's assistance in Sloan's office. According to Sloan, Lamb introduced Sloan to
the man who was posing as Larson, and Sloan believed the man was in fact William Larson.
Approximately two months later, however, in October of 1980, Lamb informed Sloan that
the man who had executed the bill of sale as William Larson was, in fact Michael Anderson,
Lamb's former son-in-law. Lamb further advised Sloan at this time that the tractor which had
been the subject of the sale had previously been stolen. According to Sloan, Lamb led him to
believe at this time that both Lamb and Brinkerhoff had been involved in a fraudulent scheme
concerning the sale of stolen farm equipment.
Sloan did not contact the authorities about the information he received from Lamb. Sloan,
however, was later approached by the Washoe County District Attorney's Office about the
sale of the stolen tractor, and Sloan then explained to the District Attorney that he had not
known the tractor was stolen at the time he prepared the bill of sale. Sloan further explained
that he had not gone to the authorities with the information he received from Lamb in
October, because he believed the information was confidential. Nevertheless, on August 8,
1980, the District Attorney's Office obtained a grand jury indictment against Sloan, charging
him with one count of forgery of conveyance, a felony in violation of NRS 205.115. The
indictment charged Sloan with having intentionally and knowingly assisted in procuring Mike
Anderson's fraudulent signature as William Larson on the bill of sale for the tractor. The
indictment also charged Mike Anderson and Sheldon Lamb with forgery of conveyance for
their participation in the execution of the bill of sale.
Sloan later moved to have the charge against him severed from the charges against Lamb
and Anderson, but the district court denied the motion. Sloan then became concerned about
the adverse publicity he was receiving as a result of the charge against him, and he feared that
the public would improperly associate him with Lamb and Anderson as a result of the trial
court's failure to sever the charges.
associate him with Lamb and Anderson as a result of the trial court's failure to sever the
charges. Consequently, Sloan engaged in plea negotiations with the District Attorney's Office.
Ultimately, Sloan agreed to plead nolo contendere to one count of conspiracy to commit the
crime of being an accessory to a forged conveyance, a gross misdemeanor. The plea was
entered pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), with Sloan refusing to
admit his guilt.
1
Additionally, the plea was specifically based on Sloan's failure to disclose
the fraudulent nature of the transaction when he learned of it in October, and was not based
on any wrongdoing on Sloan's part with regard to the transaction itself. Following his plea,
the district court fined Sloan $500.
On November 21, 1984, the State Bar of Nevada petitioned this court pursuant to SCR 111
to suspend attorney Sloan temporarily from the practice of law pending the final disposition
of bar disciplinary proceedings against Sloan.
2
The State Bar argued that the temporary
suspension was warranted, on the ground that Sloan had been convicted of a serious crime,
as defined in SCR 111(2). This court, however, concluded that a substantial question existed
as to whether Sloan's conviction did in fact constitute a conviction for a serious crime within
the meaning of SCR 111(2). Accordingly, we refused to suspend Sloan's license temporarily,
and we directed the Disciplinary Board to determine whether Sloan was in fact convicted of a
serious crime warranting suspension or other discipline.
Following a hearing on the matter, the Disciplinary Board found that Sloan had indeed
been convicted of a serious crime, and recommended that Sloan be suspended from the
practice of law for a period of nine months, and that he be assessed the costs of the
disciplinary proceedings.
____________________

1
In Alford, the Supreme Court held that a defendant is constitutionally entitled to enter a plea of guilty or
nolo contendere while at the same time asserting his innocence. The Court noted that a defendant may have a
legitimate reason other than guilt for entering such a plea, such as where the defendant, though believing in . . .
his innocence, might reasonably conclude a jury would be convinced of his guilt and that he would fare better in
the sentence by pleading guilty. . . . Alford, 400 U.S. at 33 (citation omitted).

2
SCR 111 provides in part:
(1) Upon the filing with the supreme court of a certificate of conviction demonstrating that an
attorney has been convicted of a serious crime, as defined in this rule . . . the court shall enter an order
suspending the attorney . . . pending final disposition of a disciplinary proceeding, which shall be
commenced by the appropriate disciplinary board upon notice of conviction. . . .
(2) The term serious crime means (1) a felony and (2) any crime less than a felony a necessary
element of which is . . . improper conduct of an attorney, interference with the administration of justice . .
. misrepresentation, fraud . . . deceit . . . or an attempt or a conspiracy or solicitation of another to commit
a serious crime.
and recommended that Sloan be suspended from the practice of law for a period of nine
months, and that he be assessed the costs of the disciplinary proceedings. This appeal
followed.
DISCUSSION
On appeal Sloan contends, among other things, that the Board erred by concluding that the
offense of which he was convicted constituted a serious crime. For the reasons set forth
below, we agree.
SCR 111(2) defines a serious crime as being any felony, or any crime less than a felony
a necessary element of which is improper conduct as an attorney, interference with the
administration of justice . . . misrepresentation, fraud . . . deceit . . . or an attempt or a
conspiracy or solicitation of another to commit a serious crime.' In the proceedings below,
counsel for the State Bar argued that Sloan's conviction was based on fraudulent conduct
committed by Sloan. Specifically, counsel argued that Sloan was aware at the time he
prepared the bill of sale for Brinkerhoff that a fraud was being committed, and that Sloan was
therefore a knowing participant in the fraudulent act. The evidence in the record, however,
clearly indicates that Sloan did not have knowledge of the fraudulent act until at least two
months later when he was contacted by Lamb and advised of the stolen nature of the farm
equipment and of the fact that Michael Anderson had posed as William Larson. Further,
Sloan's Alford plea was specifically based on his failure to report the fraud rather than on his
active participation in the fraud. Finally, we note that during the oral argument of this appeal,
State Bar counsel conceded that Sloan, an unknowing participant in the fraud, was
unwittingly used by Anderson and Lamb to commit the fraud. Accordingly, we conclude
that Sloan was not guilty of any fraudulent behavior.
The State Bar, however, contends that appellant's conviction should be viewed as a
serious crime warranting suspension simply because the crime to which Sloan pleaded
guilty was denominated a conspiracy. The Bar apparently believes that the mere labeling of
the crime as a conspiracy warrants suspension regardless of the underlying facts of the
offense. We disagree.
[Headnotes 1, 2]
In a disciplinary proceeding, it is the duty of this court to look beyond the label given to a
conviction in order to determine whether the underlying circumstances of the conviction
warrant discipline. See generally In re Cochrane, 92 Nev. 253, 549 P.2d 328 (1976). Looking
to the true nature of the facts as conceded by the State Bar, it is apparent that Sloan did not
engage in a conspiracy, nor did he ever admit to a conspiracy when he entered his plea.
conspiracy, nor did he ever admit to a conspiracy when he entered his plea. In fact, it appears
that Sloan did not engage in any criminal conduct whatsoever, and that Sloan actually entered
a plea to a non-existent offense. Specifically, we know of no statute, and Bar counsel has
pointed to none, which would make it an offense to fail to disclose to the authorities that a
crime has taken place. Accordingly, under the circumstances of this case, we must conclude
that the Board erred by concluding that Sloan was convicted of a serious crime within the
meaning of SCR 111(2).
The State Bar alternatively contends that, regardless of whether the crime to which Sloan
pleaded guilty was a serious crime, Sloan's license to practice law should be suspended
because Sloan violated an ethical rule when he failed to disclose the existence of the
fraudulent transaction after he learned of it from Lamb. Sloan, on the other hand, contends
that he had, or in good faith believed that he had, an ethical obligation to Lamb and
Brinkerhoff not to reveal the fraud. We believe this issue is at the heart of the question of
whether Sloan deserves to be disciplined.
[Headnotes 3, 4]
Normally, all confidential communications between a client and his attorney are
considered privileged, and the client, or the attorney acting on behalf of the client, may
refuse to divulge the nature of the communication. See generally NRS 49.095. Moreover,
under former SCR 179, which was in effect at the time of the alleged offense, an attorney had
an affirmative duty to preserve his client's confidences, except where the client advised the
attorney that he intended to commit a crime. See former SCR 179.
3
Under this rule, Sloan
was justified in believing that he was prohibited from divulging information he received from
his client indicating that the client had already committed a crime. See, e.g., United Services
Automobile Association v. Werley, 526 P.2d 28 (Alaska 1974); A. v. District Court of
Second Judicial District, 550 P.2d 315 {Colo.
____________________

3
Former SCR 179 provided as follows:
1. It is the duty of a member of the state bar to preserve his client's confidences and this duty outlasts
the lawyer's employment. The obligation to represent the client with undivided fidelity and not to divulge
his secrets or confidences forbids also the subsequent acceptance of employment from others in matters
adversely affecting any interests of the former client and concerning which he has acquired confidential
information, unless he obtains the consent of all concerned.
2. A member of the state bar accused by his client can disclose the truth in respect to the accusation.
The announced intent of the client to commit a crime is not included within the confidences which he is
bound to respect. He may properly make such disclosures as may be necessary to prevent the act or
protect those against whom it is threatened. (Emphasis added.)
Second Judicial District, 550 P.2d 315 (Colo. 1976); State v. Phelps, 545 P.2d 901
(Or.Ct.App. 1976).
[Headnote 5]
The State Bar, however, argues that the above rule was not applicable to the information
Sloan received from Lamb because Sloan was not representing Lamb in connection with the
fraudulent sales transaction and because Lamb was therefore not Sloan's client for purposes
of SCR 179. The State Bar asserts, therefore, that the communication between Lamb and
Sloan was not privileged. While it is true that Brinkerhoff rather than Lamb was Sloan's client
for the specific purpose of drafting the bill of sale, Sloan nevertheless could have reasonably
believed that Lamb was his client for purposes of asserting a privilege at the time Lamb
communicated the nature of the fraud to Sloan. First, Sloan had acted as Lamb's counsel and
had given Lamb legal advice on various occasions for a period of almost ten years prior to the
communication. Further, when Lamb called Sloan, Sloan could reasonably have believed that
Lamb intended to call upon Sloan for legal advice if Lamb were ever criminally charged in
the matter. In fact, we note that Lamb did request Sloan to represent him in a related criminal
matter shortly after Lamb revealed the fraud to Sloan.
Moreover, we note that in his conversation with Sloan, Lamb implicated Brinkerhoff as
being a direct and knowing participant in the fraudulent transaction. Sloan therefore could
have reasonably concluded that he was protecting Brinkerhoff, as his client in this particular
transaction, by not divulging the information he received from Lamb regarding the
transaction. Accordingly, we conclude that Sloan was justified in believing that the
communication he received from Lamb was intended as a confidential client communication.
[Headnote 6]
The State Bar contends, however, that regardless of whether Lamb's phone call to Sloan
can be viewed as a client communication, Sloan nevertheless had an independent duty to
disclose the fraud, because Sloan had been used as an instrument in the fraudulent
transaction. In this regard, the State Bar relies on NRS 49.115(1), which provides that an
attorney-client communication is not privileged when the client sought or obtained the
services of a lawyer to enable or aid anyone to commit or plan to commit what the client
knew or reasonably should have known to be a crime or fraud. The import of this rule,
however, is to prevent a client from being able to assert an attorney-client privilege for
communications made to his attorney for purposes of using the attorney to commit a fraud on
a third person. The rule does not place an affirmative duty of an attorney to disclose
information received in the course of such a communication.
place an affirmative duty of an attorney to disclose information received in the course of such
a communication. Moreover, in view of the broad dictates of former SCR 179, which did
place an affirmative duty on an attorney to preserve virtually all client confidences, an
attorney faced with deciding whether he was obligated to reveal a fraud of this nature could
have justifiably concluded that former SCR 179 prohibited him from revealing the
communication.
Finally, at the oral argument in this matter, the State Bar directed our attention to the fact
that former SCR 179 was repealed in 1986 and that SCR 156 was enacted in its place. SCR
156 now provides that an attorney shall not reveal information received from a client with
two exceptions. First, the attorney shall reveal all information reasonably necessary to
prevent the client from committing a violent crime. Second, the rule states that the attorney
may reveal information the attorney reasonably believes necessary . . . [t]o prevent or
rectify the consequences of a client's criminal or fraudulent act in the commission of which
the lawyer's services have been used, but the lawyer shall, where practicable, first make
reasonable effort to persuade the client to take corrective action. . . .
[Headnote 7]
Initially, we note that the ethical rule set forth in SCR 156 cannot be applied to Sloan's
case because SCR 156 was enacted long after the communication in this case took place.
Nevertheless, even assuming we were to apply this rule to Sloan's case, we note that the rule
leaves to the discretion of the attorney the decision of whether to disclose a fraud of this
nature. This rule does not place an affirmative duty on an attorney to disclose such a fraud,
and therefore, even under this rule, Sloan at most could have been accused of exercising poor
judgment in determining not to disclose the information he received from Lamb. This court
has repeatedly held that when a professional commits an isolated instance of negligent
behavior, with no intent to violate a rule or proscription, suspension of his or her professional
license is inappropriate. See In re Francovich, 94 Nev. 104, 575 P.2d 931 (1978); In re Kellar,
88 Nev. 63, 493 P.2d 1039 (1972); Flanders v. State, Dep't of Commerce, 87 Nev. 303, 486
P.2d 499 (1971); In re Reno, 57 Nev. 314, 61 P.2d 1036 (1937); In re Miller, 55 Nev. 444, 38
P.2d 972 (1934). If Sloan is deserving of any punishment whatsoever, and we are not
convinced that he is so deserving, we believe the demands of justice have already been served
by the punishment Sloan received through the criminal justice system. See In re Ross, 99
Nev. 657, 668 P.2d 1089 (1983); Flanders v. State, Dep't of Commerce, supra; In re Reno,
supra.
Accordingly, we decline to impose on Sloan the discipline recommended by the
Disciplinary Board.
It is so ORDERED.
____________
102 Nev. 444, 444 (1986) Sobol v. Capital Management
SAUL O. SOBOL, dba PHYSICIANS MEDICAL CENTER, Appellant, v. CAPITAL
MANAGEMENT CONSULTANTS, INC., a Nevada Corporation; FRED E. DE
FLORENTIS, Individually and as an Officer of Said Corporation; AUDRY LINDE
DE FLORENTIS, Individually and as an Officer of Said Corporation, Respondents.
No. 16876
October 8, 1986 726 P.2d 335
Appeal from an order of the district court partially denying appellant's motion for a
preliminary injunction. Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Medical center sought preliminary injunction prohibiting competitor from use of medical
center's name pending decision of merits of complaint alleging infringement of trade name,
deceptive trade practice and interference with contractual relations and business advantage.
The district court refused to grant preliminary injunction to prevent competitor's use of name,
and appeal was taken. The Supreme Court held that competitor's usurpation of name clearly
interfering with operation of legitimate business by creating public confusion, infringing on
goodwill, and damaging reputation in eyes of creditors, entitled medical center to preliminary
injunction.
Lionel, Sawyer & Collins and Anthony Cabot, Las Vegas, for Appellant.
Charles M. Damus, Las Vegas, for Respondents.
1. Injunction.
Acts committed without just cause which unreasonably interfere with business or destroy its credit or
profits may do irreparable injury and thus authorize issuance of injunction.
2. Trade Regulation.
Medical center was entitled to preliminary injunction prohibiting competitor from use of center's name,
where competitor's usurpation of name clearly interfered with operation of legitimate business by creating
public confusion, infringing on goodwill, and damaging reputation in eyes of creditors, and
prohibition until final determination of merits would not damage either party.
eyes of creditors, and prohibition until final determination of merits would not damage either party.
3. Costs.
Imposition of $5,000 sanction, payable to county law library contribution fund, upon respondents in
appeal from denial of preliminary injunction was warranted, where respondents, in answering brief,
misrepresented stipulated fact and quoted language from case cited as though it were holding of case, when
in fact language came from dissent.
OPINION
Per Curiam:
FACTS
Appellant Saul Sobol (Sobol) is a physician licensed to practice medicine in Nevada. In
1983, Sobol created a multi-specialty medical clinic named Physicians Medical Center.
Since the clinic's inception, Sobol has spent approximate $30,000 per month advertising the
clinic and its services. Sobol's clinic has been successful; it has gone from one physician and
no patients in September 1983 to twenty physicians and approximately 30,000 patients in
1985.
Respondent Capital Management Consultants, Inc. (CMC) owns General Practice
Associates (GPA), a medical clinic in direct competition with Physicians Medical Center. In
December 1984, CMC learned that Sobol had never filed a certificate of business under the
fictitious name Physicians Medical Center.
1
Shortly thereafter, in March 1985, CMC filed
a fictitious name certificate claiming to be doing business under the name Physician's
Medical Center. But for the addition of an apostrophe, the new name of CMC's medical
clinic is identical to that used by Sobol for his clinic.
2

In August 1985, CMC sent a letter to Sobol's landlord stating that CMC possessed the sole
legal right to do business as Physicians Medical Center, and requesting that the landlord
remove any signs belonging to Sobol that used that name. CMC also sent letters to Sobol's
advertisers asserting its right to use the name Physicians Medical Center, and requesting
that the advertisers cease using the name in conjunction with Sobol's clinic. CMC also
advertised using the name Physicians Medical Center. Sobol filed a complaint in district
court alleging that CMC had infringed upon Sobol's trade name, engaged in deceptive
trade practices, and interfered with Sobol's contractual relations and prospective business
advantage.
____________________

1
This fact came to light at the taking of Sobol's deposition by CMC's counsel in connection with an antitrust
action brought by CMC against Sobol and others. The antitrust action is unrelated to this appeal.

2
Although the fictitious name certificate shows an apostrophe in the name, CMC no longer uses the
apostrophe; therefore, CMC uses the same name as Sobol does.
infringed upon Sobol's trade name, engaged in deceptive trade practices, and interfered with
Sobol's contractual relations and prospective business advantage. The complaint also sought a
preliminary and permanent injunction to restrain CMC from doing business as Physicians
Medical Center and from communicating with any of Sobol's suppliers.
The district court granted Sobol's motion for a preliminary injunction to enjoin CMC from
contacting Sobol's suppliers or interfering with Sobol's business. However, the district court
refused to grant a preliminary injunction to prevent CMC's use of the name Physicians
Medical Center. Sobol appealed and this court entered an order enjoining CMC from using
the name Physicians Medical Center pending outcome of this appeal.
DISCUSSION
Sobol contends that the district court abused its discretion in refusing to grant in full his
request for a preliminary injunction. A preliminary injunction is available upon a showing
that the party seeking it enjoys a reasonable probability of success on the merits and that the
defendant's conduct, if allowed to continue, will result in irreparable harm for which
compensatory damages is an inadequate remedy. Number One Rent-A-Car v. Ramada Inns,
94 Nev. 779, 780, 587 P.2d 1329, 1330 (1978).
[Headnotes 1, 2]
Without expressing an opinion on the merits of Sobol's complaint below, we conclude that
Sobol has established a reasonable likelihood of prevailing on the merits. Furthermore, acts
committed without just cause which unreasonably interfere with a business or destroy its
credit or profits, may do an irreparable injury and thus authorize issuance of an injunction.
Guion v. Terra Marketing of Nev., Inc., 90 Nev. 237, 240, 523 P.2d 847, 848 (1974). CMC's
alleged usurpation of the name Physicians Medical Center clearly interferes with the
operation of a legitimate business by creating public confusion, infringing on goodwill, and
damaging reputation in the eyes of creditors. To allow CMC to continue this conduct pending
a determination on the merits of Sobol's complaint may result in irreparable damage to Sobol.
To prohibit CMC's use of the name until a final determination of the merits, however, will
damage neither party. We conclude, therefore, that denial of Sobol's motion for a preliminary
injunction exceeded the permissible bounds of judicial discretion.
[Headnote 3]
Additionally, some discussion of the brief submitted by respondents is in order. This court
recently warned the bar that "[w]e expect and require that all appeals brought in this court
. . . will be pursed in a manner meeting high standards of diligence, professionalism, and
competence."
[w]e expect and require that all appeals brought in this court . . . will be pursed in a manner
meeting high standards of diligence, professionalism, and competence. State, Emp. Sec.
Dep't v. Weber, 100 Nev. 121, 123, 676 P.2d 1318, 1319 (1984) (emphasis in original). In the
answering brief, CMC strenuously argues that Sobol affirmatively admitted and
acknowledged in a statement of stipulated facts issued prior to the preliminary hearing that
the term Physicians Medical Center was not capable of tradename [sic] or copyright
registration and is in the public domain. This is a blatant misrepresentation of the stipulated
facts. The supposed admission provides in pertinent part:
18. The sole and only basis upon which Defendants claim a legal right to the name
Physician's Medical Center is by virtue of the filing of the fictitious name certificate
in March of 1985, the issuance of a county business license in May of 1985 and that
said name is not capable of trade name or copyright registration and is in the public
domain.
CMC also quotes language from Frederick Gash, Inc., v. Mayo Clinic, 461 F.2d 1395
(C.C.P.A. 1972), as though it were the holding of the case, when in fact the language comes
from the dissent. While vigorous advocacy of a client's cause is expected and encouraged,
these representations transcend the outer limits of zeal and become statements of guile and
delusion. In light of CMC's disregard of the rules and professional standards established by
this court, we have determined that the imposition of sanctions on respondents is warranted.
See NRAP 38(b). Accordingly, CMC shall pay the sum of $5,000.00 to the Clark County Law
Library Contribution Fund within thirty (30) days from the date of issuance of this opinion,
and shall promptly provide the clerk of this court with proof of such payment.
For the foregoing reasons, we reverse the order of the district court and remand for further
proceedings consistent with this opinion.
____________
102 Nev. 448, 448 (1986) Larson v. State
SONNY JAMES LARSON, Appellant, v. THE
No. 16908
October 8, 1986 725 P.2d 1214
Appeal from judgment of conviction for two counts of sexual assault with the use of a
deadly weapon and two counts of kidnapping with the use of a deadly weapon. Second
Judicial District Court, Washoe County; Robin Anne Wright, Judge.
Defendant was convicted in the district court of two counts of sexual assault with use of
deadly weapon and two counts of kidnapping with use of deadly weapon, and defendant
appealed. The Supreme Court held that: (1) only one kidnapping occurred, and (2) although
photograph showing victim smiling one hour after alleged sexual assault and kidnapping was
arguably relevant to defense of consent, trial court's refusal to admit photograph was not
abuse of discretion.
Reversed in part; affirmed in part.
David G. Parraguirre, Public Defender, and Jane G. McKenna, Deputy Public Defender,
Washoe County, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Timothy
G. Randolph, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Only one kidnapping occurred, where act involved single victim, detention accompanying asportation
was continuous, and act of returning victim to place of abduction did not in any way increase risk to victim.
2. Kidnapping; Rape.
Although photograph showing victim smiling one hour after alleged sexual assault and kidnapping was
arguably relevant to defense of consent, trial court's refusal to admit photograph, on ground that probative
value of photograph was marginal and danger of misleading jury or confusing issues justified exclusion,
was not abuse of discretion.
OPINION
Per Curiam:
Two issues are raised by this appeal: (1) Whether appellant was improperly convicted of
two counts of kidnapping, where the facts of the case demonstrate, at best, only one act of
kidnapping and only one victim; and (2) whether the trial court's refusal to admit a
photograph of the victim mandates reversal.
admit a photograph of the victim mandates reversal. We are persuaded that the first
contention is meritorious, and therefore vacate the judgment as to the second count of
kidnapping; however, we find that the exclusion of the photograph does not require reversal,
and therefore affirm the remaining convictions.
The victim testified that appellant approached her at night while she was standing alone at
a bus stop. He pointed a gun at her and demanded that she accompany him to a nearby
railroad car. She testified that he then sexually assaulted her several times, involving both
fellatio and intercourse. Following the assault, appellant offered to drive the victim home, and
she replied that she would rather take the bus. He accompanied her back to the bus stop.
When she discovered that she had forgotten her wig, he returned to the scene of the assault to
recover the wig at her request. He again joined the victim at the bus stop, and allowed her to
board her bus. Appellant testified, admitting the sexual acts occurred, but claimed they were
consensual.
[Headnote 1]
We hold that, as a matter of law, only one kidnapping occurred. The facts demonstrate that
the act involved a single victim. The detention accompanying the asportation was continuous,
and the act of returning the victim to the place of abduction did not in any way increase the
risk to the victim. See, e.g., People v. Klinkhanner, 434 N.E.2d 835, 837 (Ill.App. 1982); 21
Am.Jur.2d, Criminal Law, 268 (1981). As the United States Supreme Court has stated:
The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its
limitations by the simple expedient of dividing a single crime into a series of temporal or
spatial units. Brown v. Ohio, 432 U.S. 161, 169 (1977).
[Headnote 2]
Appellant also contends that the trial court erred in refusing to admit a photograph of the
victim taken an hour after the incident. The photograph shows the victim smiling. Although
the photograph was arguable relevant to appellant's defense of consent, it does not appear that
its exclusion necessarily limited appellant's ability to present his defense, as he contends. See
Davis v. Alaska, 415 U.S. 308, 317-318 (1974).
A trial court may exclude relevant evidence if it finds that the probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues or
misleading the jury. NRS 48.035(1). Such a determination rests within the sound discretion of
the trial court. E.g., Daly v. State, 99 Nev. 564, 567, 665 P.2d 798, 801 (1983). The trial court
stated on the record that the probative value of the photograph was marginal, and that the
danger of misleading the jury or confusing the issues justified exclusion.
and that the danger of misleading the jury or confusing the issues justified exclusion. We are
unwilling to say the ruling was an abuse of discretion. See, e,g., Land Resources Dev. v.
Kaiser Aetna. 100 Nev. 29, 34-35, 676 P.2d 235, 238 (1984).
The judgment is vacated as to the second count of kidnapping with the use of a deadly
weapon, and the judgment is affirmed in all other respects.
____________
102 Nev. 450, 450 (1986) State v. Webster
THE STATE OF NEVADA, Appellant, v. JOSEPH
GARVIN WEBSTER, Respondent
No. 16941
October 8, 1986 726 P.2d 831
Appeal from an order granting respondent's motion to suppress all evidence relating to a
blood test. Ninth Judicial District Court, Douglas County; Lester H. Berkson, Judge.
Defendant, charged with two felony counts of driving under the influence of intoxicating
liquor with resulting substantial bodily harm and two felony counts of reckless driving
causing substantial bodily harm, filed motion to suppress all evidence relating to blood
alcohol analysis, contending that blood sample had been drawn by statutorily unauthorized
person. The district court granted the motion and State appealed. The Supreme Court,
Gunderson, J., held that statute did not define laboratory assistants as being unqualified to
draw blood sample; therefore, qualifications of laboratory assistant who drew defendant's
blood sample should be examined to determine if she was competent to withdraw such
sample.
Young and Springer, JJ., dissented.
Brian McKay, Attorney General, Carson City; Brent Kolvet, District Attorney, and Harold
Kuehn, Deputy District Attorney, Douglas County, for Appellant.
John W. Aebi, Carson City, for Respondent.
1. Statutes.
Meaning of words in statute may be determined after examination of context in which they are used and
by considering spirit of law.
2. Statutes.
Statutory construction should always avoid an absurd result.
3. Statutes.
In construing statutory language, word which is ambiguous should receive meaning which is generally
ascribed to it within community, in absence of reason to the contrary.
4. Statutes.
Penal law is one which imposes a penalty for an offense of public nature and is generally strictly
construed to insure that individuals have notice of conduct which is deemed criminal by State; however,
penal statute should not be so narrowly construed as to interfere with State's ability to administer its
criminal laws in an efficient manner.
5. Searches and Seizures.
Statute which protects defendant from bodily intrusion by unqualified medical personnel in performing
testing required by law is not a penal statute that must be strictly construed in that it fails to define an
offense or prescribe a penalty. NRS 484.393.
6. Criminal Law.
Evidence relating to blood alcohol analysis should not have automatically been suppressed merely
because blood sample was drawn by laboratory assistant, as under liberal construction of statute which
permits blood samples to be drawn by technician in medical laboratory, there was ample evidence to
indicate that laboratory assistant was authorized to withdraw blood samples for analysis of alcohol content.
NRS 484.393.
OPINION
This is an appeal from an order whereby the district court determined that a laboratory
assistant was not a person legally authorized to withdraw a blood sample for analysis of blood
alcohol content. We disagree with the district court's determination, and therefore, reverse
and remand for further proceedings consistent with this opinion.
The Facts
On June 8, 1985, a car driven by Joseph Webster collided with a motorcycle. The two
people riding on the motorcycle sustained severe injuries. The responding Nevada Highway
Patrol officer noticed an odor of alcohol emanating from Webster. Pursuant to the officer's
request, Webster agreed to submit to a legal blood alcohol analysis. A laboratory assistant
from Carson-Tahoe Hospital withdrew the blood sample and analysis revealed a blood
alcohol content of 0.101 percent.
On October 2, 1985, Webster was charged with two felony counts of driving under the
influence of intoxicating liquor with resulting substantial bodily harm, and two felony counts
of reckless driving causing substantial bodily harm. Shortly thereafter, Webster filed a motion
to suppress all evidence relating to the blood test {including the results), contending the
blood sample had been drawn by a person not authorized to do so pursuant to statute.
blood test (including the results), contending the blood sample had been drawn by a person
not authorized to do so pursuant to statute. The motion was opposed by the State, and on
December 19, 1985, the district court granted the motion to suppress. The court determined
that a laboratory assistant was not one authorized by statute to withdraw such a sample. We
have determined that the district court erred.
Issue Presented
1. The results of any blood test administered under the provisions NRS 484.383 or
484.391 are not admissible in any hearing or criminal action arising out of the acts
alleged to have been committed while a person was under the influence of intoxicating
liquor or a controlled substance unless:
(a) The blood tested was withdrawn by a physician, registered nurse, licensed
practical nurse, advanced emergency medical technician-ambulance or a technician
employed in a medical laboratory.
The State argues that a laboratory assistant falls within the language technician employed in
the medical laboratory. The district court relied on two sections of the Nevada
Administrative Code (NAC) presented by Webster which defines medical technician and
laboratory assistant.
1
A review of these provisions reveals that the entities have
different levels of training and responsibility.
____________________

1
Medical technician: Duties; qualifications.
1. A medical technician shall:
(a) Serve to assist supervisory personnel in the preliminary preparation of specimens and similar
items;
(b) Perform only those laboratory manipulations which require limited technical skill and
responsibility as assistant to supervisory personnel; and
(c) Perform tests only under the supervision of higher level personnel.
2. A medical technician must be a high school graduate who, subsequent to graduation, has:
(a) Completed at least 1 year in a formal training program for technicians approved by the board;
(b) Successfully completed an official 52-week training program in an armed services school of
medical technology and has, at the journeyman's level, held the occupational specialty in the military as
an enlisted person of medical laboratory specialist or laboratory technician; or
(c) Served 2 years as a technician trainee, rotated through the various disciplines, in a clinical
laboratory with a director at the doctorate level who is licensed by this state.
Laboratory assistant, laboratory trainee: Duties, qualifications.
1. A laboratory assistant shall provide manual aid only, following
reveals that the entities have different levels of training and responsibility.
This court is charged with the responsibility of determining whether the district court erred
in determining that the statute should be construed to exclude laboratory assistant as defined
by the Board of Health in NAC 652.450. We are thus required to consider the intent of the
legislature in construing the language of NRS 484.393(1)(a).
Discussion
We first note that the statute was enacted in 1969 and contained the language technician
employed in a medical laboratory. See 1969 Nev. Stats. ch. 341 7. The rules and
regulations governing medical laboratories were approved by the Board of Health on May 15,
1974, and became effective as of August 5, 1974. Our research has failed to reveal that these
job descriptions existed prior to 1974. This being the case, the legislature could not have
intended technician to encompass medical technician as defined in NAC 652.440. It
would be impossible for the legislature in 1969 to consider code provisions which did not
exist until 1974.
[Headnotes 1, 2]
Regardless of the above, further analysis leads us to conclude that the legislature did not
intend for technician to be so narrowly construed. The meaning of certain words in a statute
may be determined after examination of the context in which they are used and by
considering the spirit of the law. Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635,
637-38, 503 P.2d 457, 459 (1972). Additionally, statutory construction should always avoid
an absurd result. Id. see also Escalle v. Mark, 43 Nev. 172, 175-76, 183 P. 387, 388 (1919).
[Headnote 3]
We note that technician is generally used in a generic sense. A technician is [o]ne
versed or skilled in the technical details of a subject or art. Webster's New International
Dictionary 2590 (2nd ed. 1959). In the absence of any reason to the contrary, a word which is
ambiguous should receive that meaning which is generally ascribed to it within the
community. Comstock M. & M. Co. v. Allen, 21 Nev. 325, 331
____________________
specific instructions, in areas requiring limited technical skills, as assigned by higher level personnel, and
only under their direct supervision. He may not independently perform laboratory procedures, but may
assist manually under direct supervision.
2. A laboratory assistant must be a high school graduate who, subsequent to graduation, has
demonstrated a distinct ability in laboratory procedures, such as assisting at an autopsy, in the preparation
of specimens or other such procedures, during 6 months of training under a laboratory director who is
licensed in this state.
M. Co. v. Allen, 21 Nev. 325, 331, 31 P. 436 (1892). It is obvious to us that creation of a
more narrow definition of this term would be contrary to the rule of statutory construction
which requires that ordinary meanings be ascribed to ambiguous words or phrases.
Next, our review of the spirit of the law reveals that the obvious purpose of NRS
484.393(1)(a) is to assure that a medically trained and competent individual will withdraw the
blood sample in an acceptable manner. An examination of the amendments to NRS 484.393
reveals that the legislature has broadened the categories of persons qualified to withdraw legal
blood samples. Licensed practical nurses and paramedics have been so included. The
legislature has been cognizant of various problems which arise as a result of the statute being
too restrictive. Specifically, the legislature has been concerned with the actual manpower
available and a desire for cost-effectiveness. Assembly Committee on Transportation, May 6,
1981 and March 5, 1969. We are particularly concerned with the burdens which would be
imposed on small, rural health care facilities if technician is construed as Webster urges. In
Smith v. Southern Pacific Co., 50 Nev. 377, 382, 262 P. 935, 936 (1928), this court directed
that statutory construction should produce an effect which is not likely to produce mischief.
Construing the term technician in its general meaning will avoid mischief. This will be
accomplished without sacrificing the standards which are necessary in order to assure the
public that a qualified individual withdraws the necessary blood sample.
[Headnotes 4, 5]
Lastly, we disagree with Webster's contention that this is a penal statute and, thus, must be
construed in order that any doubt as to its meaning be resolved in his favor. A penal law is
one which imposes a penalty for an offense of a public nature. Tulsa Ready-Mix Con. Co. v.
McMichael Concrete Co., 495 P.2d 1279, 1281-82 (Okla. 1972); Black's Law Dictionary
1290 (4th ed. 1951). NRS 484.393 fails to define an offense or prescribe a penalty. We also
decline to determine that every section of the act must be strictly construed merely because
sections of an act provide for criminal penalties. Cf. Mourning v. Family Publications
Service, Inc., 93 S.Ct. 1652, 1663 (1973).
The purpose of the rule requiring strict construction of a penal statute is to ensure that
individuals have notice of conduct which is deemed criminal by the state. Id. United States v.
Otherson, 637 F.2d 1276, 1285 (9th Cir. 1976); Adler v. Sheriff, 92 Nev. 436, 441, 552 P.2d
334, 337 (1976). Conduct must be plainly and unmistakenly within the statute before
punishment may be imposed.
imposed. Adler at 441. A statute cannot encompass conduct which is not clearly described.
We also desire that the legislature, rather than the courts, define criminal behavior and
prescribe the penalties. Here, there are no such concerns. NRS 484.393 is designed to protect
a defendant from bodily intrusion by unqualified personnel. We are not confronted with the
potential for arbitrary law enforcement and, thus, are unable to determine that strict
construction of this statute is required.
We also note that even if the statute was deemed one of a penal nature, a different result
would not follow. [T]he rule of lenity has little independent force; it cannot substitute for
common sense, legislative history, and the policy underlying a statute. Otherson at 1285.
Here, these factors have been evaluated. Technician must be given its ordinary meaning. To
do otherwise would ignore obvious legislative intent and distort the meaning of the term
beyond that of common sense. See also State v. Nevada Northern Railway Co., 48 Nev. 436,
440, 233 P.531, 532 (1925). We also note that the rule of lenity does not require the
narrowest possible interpretation. Words or phrases in criminal statutes have been interpreted
broadly. Otherson at 1285. A penal statute should not be so narrowly construed as to interfere
with the state's ability to administer its criminal laws in an efficient manner. United States v.
Mussry, 726 F.2d 1448, 1455 (9th Cir. 1984).
[Headnote 6]
Therefore, for the above reasons, we reverse the decision of the district court which
suppressed all evidence related to the blood alcohol analysis. In view of the plain meaning
and the purpose of the statute, the term technician in a medical laboratory is to be construed
liberally. There is ample evidence to indicate that a laboratory assistant is one authorized
pursuant to NRS 484.393 to withdraw blood samples for analysis of alcohol content. We
remand this case to the district court in order that the qualifications of the technician in
question be examined. If the district court judge is satisfied that she was competent to
withdraw such a blood sample, then the case shall proceed on its merits.
Mowbray, C.J., and Steffen, J., concur.
Young, J., with whom Springer, J., concurs, dissenting:
Although I have no quarrel with the authority cited by the majority, I disagree with the
reasoning. Accordingly, I must respectfully dissent.
I see no reason not to adopt NAC 652.440 for use as a guideline in interpreting NRS
4S4.393{1){a).1 A laboratory assistant simply does not rise to the level of a technician.
guideline in interpreting NRS 484.393(1)(a).
1
A laboratory assistant simply does not rise to
the level of a technician. Even were I to agree with the majority that the purpose behind NRS
484.393(1)(a) is to insure that only competent, medically trained individuals withdraw blood
samples, that purpose is not furthered by the majority's interpretation.
2
Rather, the use of
NAC 652.440 in interpreting NRS 484.393(1)(a) would insure that only those persons
possessing certain qualifications necessary to receive a state license could withdraw blood
samples. Under the majority view, anyone versed or skilled in the technical details of a
subject or art employed by a medical laboratory could withdraw a blood sample. Thus, an
X-ray or computer technician employed at a medical laboratory would fall within the
majority's interpretation of those persons qualified to withdraw blood samples pursuant to
NRS 484.393(1)(a). Therefore, it is obvious that the majority opinion will not insure that only
competent persons withdraw blood samples.
The majority opinion reasons that because NAC 652.440 was not enacted until some five
years after NRS 484.393(1)(a), the legislature could not have intended NAC 652.440 to act as
a guideline. However, I note that NRS 484.393(1)(a) was amended both in 1981 and
1983after NAC 652.440 was promulgated. Yet, no attempt was made by the legislature to
distinguish technician employed by a medical laboratory, NRS 484.393(1)(a), from
"medical technician," NAC 652.440.
____________________

1
652.440 Medical technician: Duties; qualifications.
1. A medical technician shall:
(a) Serve to assist supervisory personnel in the preliminary preparation of specimens and similar
items;
(b) Perform only those laboratory manipulations which require limited technical skill and
responsibility as assistant to supervisory personnel; and
(c) Perform tests only under the supervision of higher level personnel.
2. A medical technician must be a high school graduate who, subsequent to graduation, has:
(a) Completed at least 1 year in a formal training program for technicians approved by the board;
(b) Successfully completed an official 52-week training program in an armed services school of
medical technology and has, at the journeyman's level, held the occupational specialty in the military as
an enlisted person of medical laboratory specialist or laboratory technician; or
(c) Served 2 years as a technician trainee, rotated through the various disciplines, in a clinical
laboratory with a director at the doctorate level who is licensed by this state.

2
An equally plausible theory is that NRS 484.393(1)(a) was designed to insure the production and
preservation of reliable blood sample information for use in later civil or criminal proceedings. If this were true,
the use of licensed technicians would further that purpose.
from medical technician, NAC 652.440. If the legislature intended these two similarly
defined categories to be different, it is not absurd to assume that the legislature would have
made any differences clear. Thus, there is no reason to reject NAC 652.440 as a guide to
interpreting NRS 484.393(1)(a).
Additionally, the net effect of the majority opinion is to further complicate already
burgeoning drunken driving trials. As a result of the amorphous definition invented today,
each time that a blood sample withdrawn by a technician is introduced into evidence, a
mini-trial on that person's qualifications must be conducted. The state must prove that the
technician was qualified to draw blood; the defense would then have the opportunity to rebut
that evidence. Whereas, if the technician was licensed by the state to withdraw blood
samples, it would be presumed that the individual possesses the minimum qualifications
contained in NAC 652.440. NRS 47.250(9). The need for the state to prove those
qualifications would be obviated.
Finally, the most compelling reason for my dissent in this case is the fact that, in spite of
well established rules to the contrary, the majority has reversed a factual finding of the district
court. In criminal matters, it is clear that only questions of law are to be debated on appeal;
questions of fact simply are not before us. NRS 177.025. Because the district court requested
additional evidence on the qualifications of the laboratory assistant before finding that she
was not qualified to withdraw blood samples pursuant to NRS 484.393(1)(a), I infer that the
district court treated this question as a factual one.
3
Hence because there was conflicting
evidence as to the laboratory assistant's qualifications, the factual finding that she was not
qualified should be upheld on appeal. Cf. Udevco, Inc. v. Wagner, 100 Nev. 185, 678 P.2d
679 (1984) (this court will not disturb factual findings based upon substantial evidence).
Thus, for the above stated reasons, I must dissent.
____________________

3
I also note that when asked by Judge Berkson to submit additional evidence, the district attorney's office
apparently ignored this seemingly reasonable request. Yet, as a result of the majority opinion, the district
attorney now gets another bite at the apple, so to speak. The majority decision, in effect, allows the state a
second opportunity to prove a fact that it did not prove at the suppression hearing.
____________
102 Nev. 458, 458 (1986) McGee v. State
VANCE EVANS McGEE, Appellant, v. THE
No. 17078
October 8, 1986 725 P.2d 1215
Appeal from a judgment of conviction. Second Judicial District Court, Washoe County;
James J. Guinan, Judge.
Defendant was convicted after jury trial in the district court of one count of burglary and
two counts of grand larceny, and defendant appealed. The Supreme Court held that
prosecutor's deliberate and repeated attempt to discredit defendant's trial testimony with
improper references to defendant's post-arrest silence, together with district court's invitation
to jury to consider defendant's silence as evidence in case, so burdened exercise of right to
remain silent as to entitle defendant to reversal and new trial.
Reverse and remanded.
David G. Parraguirre, Public Defender, Daniel L. McCormick, Deputy Public Defender,
Washoe County, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Timothy
G. Randolph, Deputy District Attorney, Washoe County, for Respondent.
Criminal Law.
Prosecutor's deliberate and repeated attempt to discredit defendant's trial testimony with improper
references to defendant's post-arrest silence, together with district court's invitation to jury to consider
defendant's silence as evidence in case, so burdened exercise of right to remain silent as to entitle defendant
to reversal and new trial.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction upon jury verdict for one count of
burglary and two counts of grand larceny. NRS 205.060; NRS 205.220. Appellant, Vance
Evans McGee, contends on appeal that his constitutional right to due process of law was
violated at his trial below. Specifically, McGee contends that the prosecutor improperly
impeached his trial testimony with questions and comments concerning his exercise of his
Fifth Amendment right to remain silent following arrest. See Doyle v. Ohio, 426 U.S. 610
(1976). Further, McGee asserts that this violation of his rights was compounded because the
district judge not only allowed the questioning to continue, but also invited the jury to
consider McGee's post-arrest silence as evidence in the case.
102 Nev. 458, 459 (1986) McGee v. State
not only allowed the questioning to continue, but also invited the jury to consider McGee's
post-arrest silence as evidence in the case. We agree, and in our view, the combined effect of
these errors compels us to reverse appellant's conviction and conviction and remand for a new
trial.
At the trial below, McGee testified on his own behalf. He related an exculpatory version of
the events leading to his arrest which implicated an individual named Pedro as the actual
perpetrator of the crimes charged. During cross-examination, the prosecutor asked appellant
if he had ever brought the name of Pedro or this relationship of Pedro to the attention of any
law enforcement personnel since [appellant was] arrested? The trial transcript then reflects
the following exchange between the prosecutor and appellant McGee:
McGEE:
No, because I know better.
PROSECUTOR:
Well, explain to me know better. Explain that.
McGEE:
Well, we have a right to remain silent
MR: PETTY [Appellant McGee's attorney]:
Excuse me, your Honor. I'd like to interpose an objection, Counsel. Mr. McGee, as a
defendant, is not required to give any statements to any police officers under any
circumstances. So I'd make an objection to that line of questioning.
THE COURT:
I think you're right. He is not required to make any statement. But the fact he didn't
make any is part of the evidence in this case.
MR. PETTY:
Well, okay. That is fine. Thank you.
The prosecutor then pursued this line of questioning as follows:
PROSECUTOR:
Now, you say you didn't bring it up because you know better. Explain that.
McGEE:
Because of the right to remain silent. As you know, by my past offenses, each one of
them I plead guilty on and I did time on.
PROSECUTOR:
I don't deny
McGEE:
Wait, wait, wait.
102 Nev. 458, 460 (1986) McGee v. State
PROSECUTOR:
Excuse me, your Honor, would the witness just answer my questions, please?
McGEE:
The wisdom of it
THE COURT:
Just a minute, sir.
MR. PETTY:
Excuse me, your Honor.
THE COURT:
I want you to answer the question first and then if you want to explain your answer,
you may do so. All right?
PROSECUTOR:
You realize from your past involvement that the whole intention behind a criminal
investigation is to arrive at the truth; is that true?
McGEE:
Yes.
PROSECUTOR:
And didn't you feel it was important to arrive at the truth to say another person had
been the one who committed those crimes?
McGEE:
Not at that time, not until I talked to a lawyer.
PROSECUTOR:
Wasn't it a fact that you were put in jail right after your arrest?
McGEE:
Immediately, yeah.
PROSECUTOR:
And you stayed in jail for awhile; correct?
McGEE:
No. How long?
PROSECUTOR:
You were there for at least three days?
MCGEE:
Oh, yes.
PROSECUTOR:
And you didn't feel it was important enough to bring up this other person's name at
that time?
McGEE:
No, I did not.
Moreover, during closing argument to the jury the prosecutor once again attempted to
impeach McGee's credibility by reference to his post-arrest silence. Specifically, the
prosecutor stated to the jury: He [McGee] has been through this system on some pretty
heavy crimes and yet he'll walk into this courtroom and tell you that he did not tell
anybody about Pedro until today.
102 Nev. 458, 461 (1986) McGee v. State
He [McGee] has been through this system on some pretty heavy crimes and yet he'll
walk into this courtroom and tell you that he did not tell anybody about Pedro until
today. He didn't tell anybody in the system, law enforcement. He didn't tell anybody in
our offices.
It is well settled that the prosecution is forbidden at trial to comment upon an accused's
election to remain silent following his arrest and after he has been advised of his rights as
required by Miranda v. Arizona, 384 U.S. 436 (1966). See Doyle v. Ohio, 426 U.S. 610
(1976); Bernier v. State, 96 Nev. 670, 614 P.2d 1079 (1980); Vipperman v. State, 92 Nev.
213, 547 P.2d 682 (1976). Nonetheless, the prosecutor in this trial deliberately and repeatedly
sought to discredit appellant's testimony with improper references to McGee's post-arrest
silence. Such prosecutorial impeachment burdens the exercise of the right to remain silent to
an intolerable degree. See Vipperman v. State, 92 Nev. at 216, 547 P.2d at 684. We cannot
condone such blatant disregard for a well-established and frequently stated principle of
fundamental fairness. See e.g., McGuire v. State, 100 Nev. 153, 157, 677 P.2d 1060, 1063
(1984).
The state asserts, however, that we should consider the prosecutor's improper
impeachment as harmless error. In the past, we have held that mere passing reference at
trial to an accused's post-arrest silence, without more, does not mandate an automatic
reversal. See Shepp v. State, 87 Nev. 179, 181, 484 P.2d 563, 564 (1971); see also Edwards
v. State, 90 Nev. 255, 263, 524 P.2d 328, 334 (1974). As previously noted, however, the
questions and comments in issue here were deliberate and repeated. Moreover, here the
district court invited the jury to consider McGee's silence as evidence in the case. We have
previously concluded that due process prohibits any inference to be drawn from the exercise
of one's constitutional right to remain silent after arrest. See Vipperman v. State, 92 Nev. at
216, 547 P.2d at 684. Under these circumstances, we believe that application of the harmless
error doctrine in this case would amount to a complete abdication of our supervisory function.
We have considered the state's remaining arguments, and we conclude they are without
merit. Accordingly, we reverse appellant's judgment of conviction and remand the case for a
new trial.
____________
102 Nev. 462, 462 (1986) Mahaffey v. Investor's Nat'l Security
WARREN STUART MAHAFFEY and KRISTINA MAHAFFEY, Appellants and
Cross-Respondents, v. INVESTOR'S NATIONAL SECURITY CO., and
MORTGAGE FINANCE CORPORATION, Respondents and Cross-Appellants.
No. 17143
October 8, 1986 725 P.2d 1218
Motion to dismiss cross-appeal. Eighth Judicial District Court, Clark County; Myron E.
Leavitt, Judge.
After final judgment of district court in favor of respondents, appellants filed notice of
appeal, respondent filed notice of cross-appeal, and subsequently appellants moved to dismiss
respondents' cross-appeal on the ground that respondents' notice of cross-appeal was
untimely. The Supreme Court held that timely notice of cross-appeal was jurisdictional with
respect to cross-appeal.
Motion granted.
Peter L. Flangas, Las Vegas, for Appellants and Cross-Respondents.
Jolley, Urga, Wirth and Woodbury, Las Vegas, for Respondents and Cross-Appellants.
Appeal and Error.
Timely notice of cross-appeal is jurisdictional with respect to the cross-appeal; declining to follow Bryant
v. Technical Research Co., 654 F.2d 1337 (9th Cir.); Scott v. University of Delaware, 601 F.2d 76 (3rd
Cir.); Grunin v. International House of Pancakes, 513 F.2d 114 (8th Cir.). NRAP 3(a), 4(a), 26(b), 28(h).
OPINION
Per Curiam:
This is an appeal from a final judgment of the district court entered on November 19,
1985. Respondents served appellants by mail with written notice of entry of the judgment on
November 21, 1985. On December 20, 1985, appellants filed a timely notice of appeal.
Respondents filed a notice of cross-appeal on January 6, 1986. It is apparent that respondents'
notice of cross-appeal was not timely.
1
Appellants have moved to dismiss respondents'
cross-appeal on the grounds that respondents' notice of cross-appeal was untimely.
____________________

1
By alternative methods of counting, respondents conclude that their notice of cross-appeal was timely.
These methods of counting ignore the express terms of NRAP 26(a). Respondents' attorney was personally
served
Appellants have moved to dismiss respondents' cross-appeal on the grounds that
respondents' notice of cross-appeal was untimely. Appellants contend that a timely notice of
cross-appeal is mandatory and jurisdictional. We agree.
Although this court has not directly addressed the issue of whether a timely notice of
cross-appeal is jurisdictional, we have clearly held that a timely notice of appeal is
jurisdictional. See Zugel v. Miller, 99 Nev. 100, 659 P.2d 296 (1983).
Respondents contend, however, that federal courts have determined that a timely notice of
cross-appeal is merely a proper procedure, rather than a mandatory jurisdictional rule.
2
See
Bryant v. Technical Research Co., 654 F.2d 1337, 1341 (9th Cir. 1981); Scott v. University of
Delaware, 601 F.2d 76, 83 (3rd Cir.), cert. denied, 444 U.S. 931 (1979); Grunin v.
International House of Pancakes, 513 F.2d 114, 126 n.12 (8th Cir.), cert. denied, 423 U.S.
864 (1975). We note, however, that equally persuasive federal authority supports our
conclusion that a timely notice of cross-appeal is jurisdictional. See Savage v. Cache Valley
Dairy Ass'n, 737 F.2d 887, 889 (10th Cir. 1984); Martin v. Hamil, 608 F.2d 725, 731 (7th
Cir. 1979); Richland Knox Mutual Insurance Company v. Kallen, 376 F.2d 360, 364 (6th Cir.
1967).
NRAP 3(a) provides that an appeal shall be taken by filing a [timely] notice of appeal . .
. and that [f]ailure of an appellant to take any step other than the timely filing of a notice of
appeal does not affect the validity of the appeal. . . . (Emphasis added.) NRAP 4(a) provides
that [i]f a timely notice of appeal is filed by a party, any other party may file and serve a
notice of appeal within fourteen (14) days. . . .(Emphasis added.) Finally, NRAP 26(b)
provides that the court may not enlarge the time for filing a notice of appeal. These rules
establish that every appeal, including a cross-appeal, must be commenced by the filing of a
timely notice of appeal.
____________________
with a copy of appellants' notice of appeal on December 20, 1985. Therefore, respondents' notice of cross-appeal
was due on January 3, 1986. See NRAP 4(a); NRAP 26(a).

2
Appellants argue that the federal cases are not probative because the federal rules of appellate procedure
differ significantly from the Nevada rules. Specifically, appellants note that the time for filing a notice of appeal
to a federal circuit court of appeals may be extended for good cause shown. See Fed.R.App. P. 4(a)(5). While it
is true the time period may be extended for a period of ten (10) days, the period may be extended only pursuant
to a timely motion filed not later than thirty (30) days after the expiration of the time prescribed for commencing
an appeal. Further, a timely notice of appeal is jurisdictional in the federal courts, see Browder v. Director, Ill.
Dept. of Corrections, 434 U.S. 257, 264 (1978), and the time for filing a notice of appeal cannot be enlarged by
a federal court except as specifically authorized by law. See Fed.R.App. P. 26(b). Therefore, the federal rules do
not differ significantly from the Nevada rules.
appeal, including a cross-appeal, must be commenced by the filing of a timely notice of
appeal. In addition, we note that, pursuant to NRAP 28(h), in the case of multiple appeals, the
plaintiff below is designated appellant, whether or not he filed the first notice of appeal
(unless otherwise agreed by the parties or directed by the court). It therefore makes little sense
to determine that a first notice of appeal is jurisdictional, but that subsequent notices of
appeal need not be timely. We conclude that a timely notice of cross-appeal is jurisdictional
with respect to the cross-appeal. See 9 J. Moore, B. Ward & J. Lucas, Moore's Federal
Practice 204.11[5] at 4-62 & n.18 (2d ed. 1985).
We have considered respondents' remaining contentions and we conclude that they lack
merit. Accordingly, because respondents failed to file a timely notice of cross-appeal, we
grant appellants' motion and we dismiss respondents' cross-appeal.
3

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

3
The Honorable John C. Mowbray, Chief Justice, voluntarily recused himself from consideration of this case
and did not participate in the disposition of this motion.
____________
102 Nev. 464, 464 (1986) Washoe Broadcasting Co. v. Neuhoff
WASHOE BROADCASTING COMPANY, Appellant, v. EDWARD D. NEUHOFF and
CHARLES E. CORD, Co-Executors of the Estate of E. L. CORD, aka ERRETT
LOBBAN CORD, Deceased, Respondents.
No. 16818
October 13, 1986 726 P.2d 338
Appeal from an order of the district court dismissing appellant's petition to compel the sale
of an estate asset; Second Judicial District Court, Washoe County, Michael R. Griffin, Judge.
Company filed petition to compel sale of estate asset. The district court denied the petition.
The company appealed. The Supreme Court held that: (1) company, which had no direct legal
interest in estate, lacked standing to file petition to compel sale of estate asset, and (2)
although suit was frivolous, sanctions would not be imposed.
Affirmed.
Belding & Harris, and Gloria M. Petroni, Reno, for Appellant.
Bradley & Drendel, Reno, for Respondents.
Company, which had no direct legal interest in estate, lacked standing to file petition to compel sale of
estate asset. NRS 148.090.
Although suit filed by company, which had no direct legal interest in estate, to compel sale of estate asset
was frivolous, sanctions would not be imposed where suit was filed before Supreme Court warned counsel
by written notice that it would in the future sanction counsel for participation in processing of frivolous
suits, and executors of estate failed to request sanctions either in writing or in oral argument of appeal
despite the opportunity to do so.
OPINION
Per Curiam:
[Headnote 1]
After making an unsuccessful offer to purchase the KCRL-TV station from respondents,
the executors of the estate of E. L. Cord, appellant Washoe Broadcasting Company petitioned
the district court pursuant to NRS 148.090, for an order requiring the sale of the estate's
interest in the station to it. The district court denied the petition, concluding that appellant
lacked standing to file a petition under NRS 148.090. This appeal followed.
1
For the reasons
set forth below, we conclude that the district court correctly found that appellant lacked
standing to file the petition, and that this appeal is frivolous.
NRS 148.090 provides in part:
If the executor or administrator neglects or refuses to sell any property of the estate
when it is necessary or when it is for the advantage, benefit and best interests of the
estate and those interested therein . . . any person interested may petition the court for
an order requiring the executor or administrator to sell. (Emphasis added.)
The district court concluded that only a person with an actual interest in the estate has
standing to petition for a sale under NRS 148.090, and that appellant lacked standing because
it was not an heir, devisee, legatee, creditor or in any other manner an interested party in the
[e]state. The district court concluded that appellant was instead a stranger to the estate,
and in fact was an adverse party who was trying to force a sale of an estate asset on its own
terms.
Appellant contends that this decision was incorrect, because the district court defined the
term person interested, as used in NRS 14S.090, too narrowly.
____________________

1
We note that appellant's current counsel did not represent it in the proceedings below, but were instead
substituted in as counsel on appeal.
NRS 148.090, too narrowly. Appellant argues that because the legislature did not specify in
NRS 148.090 that a person interested had to have an actual interest in the estate, it was not
required to demonstrate such an interest, and was instead only required to demonstrate that
the sale was in the best interests of the estate.
2
In this regard, appellant asks us to compare
the language used in NRS 148.070, which specifically limits those who may file an objection
to the confirmation of the sale of an estate asset to those person[s] interested in the estate.
(Emphasis added.) Appellant surmises that the clear intent of the legislature in omitting the
term in the estate from NRS 148.090, was to permit an entity such as itself, which has no
direct legal interest in the estate, to file a petition to compel a sale of the asset, if it would be
in the best interest of the estate to sell the asset.
Appellant's proposed interpretation of NRS 148.090 is not only unreasonable and clearly
inconsistent with the purpose behind the statute, but it also conflicts with the clear language
of the statute when read as a whole, as well as with existing legal authority on the subject.
First, when the statute is read as a whole, it becomes clear that NRS 148.090 contemplates
that only those persons with an actual interest in the estate have standing to petition the court
for an order requiring a sale. As set forth above, the statute initially states that when a sale is
for the advantage, benefit and best interests of the estate and those interested therein . . . any
person interested may petition the court for such sale. Read as a whole, it is apparent that the
term any person interested relates back to the preceding portion of the sentence referring to
the best interests of the estate and those interested therein. (Emphasis added.)
Further, we note that it would be unreasonable to construe the statute to permit persons
with no legal interest in the estate to petition for a sale. As the district court in this matter
correctly noted, to conclude otherwise would remove the processing of estates under Nevada
law from the executor [who acts] for the benefit of the legatees and beneficiaries, and place it
in the hands of the court on the motion of any stranger to the proceedings seeking its own
advantage. This court will not construe a statute in such a manner as to produce a clearly
unreasonable and unwarranted result.
____________________

2
Appellant contends that it would be in the best interest of the estate to sell the television station to appellant
primarily because the co-executors of the estate allegedly are not managing the estate in an economically sound
manner, and because one of the co-executors allegedly has a conflict of interest with regard to the station.
Because we conclude that appellant lacks standing to petition for a sale in any event, we need not address this
issue.
unwarranted result. See generally Alper v. State ex rel. Dep't Hwys, 96 Nev. 925, 621 P.2d
492 (1980).
We also note that precedent in this court clearly establishes that when the legislature uses
the term person interested in connection with an estate proceeding, it refers to a person with
a legal interest in the estate, such as a legatee, beneficiary, creditor, or a person who has
performed services for the estate, or a person with a contractual interest in an estate asset. For
example, in Balaban v. Bank of Nevada, 86 Nev. 862, 477 P.2d 860 (1970), this court
concluded that a person who had merely been an unsuccessful bidder in the sale of an estate
asset was not a person interested in the estate for purposes of having standing to file an
objection to the confirmation of the sale of an estate asset pursuant to NRS 148.070.
Furthermore, other courts, interpreting statutes similar to NRS 148.090, which permit a
person interested to file a petition for the sale of an estate asset, have concluded that their
statutes only permit persons with a legal interest in the estate to file a petition to compel the
sale of an estate asset. See, e.g., In re Scholes' Estate, 301 P.2d 172 (Wash. 1956); see also 3
Bancroft's Probate Practice, 542 (2d ed. 1950); 24 Cal.Jur. Decedents' Estates, 525 (3d ed.
1975) (discussing an identical provision in the California Probate Code, 758).
Finally, we note that appellant has failed to cite any authority whatsoever for the
proposition that a person who has no legal interest in an estate may file a petition for the sale
of an estate asset. In fact, all of the cases cited by appellant involve situations in which a
petition for sale was filed by a party with an actual legal interest in the estate. See, e.g.,
Helgesson v. Estate of Frank, 521 P.2d 16 (Or.Ct.App. 1974) (person seeking to compel sale
of estate asset had a pre-existing contractual right to purchase the property, having already
entered into an earnest money agreement for its purchase); see also Bartsas Realty, Inc. v.
Leverton, 82 Nev. 6, 409 P.2d 627 (1966) (broker who claimed entitlement to commission for
sale of an estate asset had standing to object to confirmation of sale of the asset).
[Headnote 2]
Accordingly, even the precedent cited by appellant establishes that appellant had
absolutely no interest in the estate and no standing to file a petition under NRS 148.090 to
compel the sale of an estate asset. In essence, appellant presented no authority in support of
its position that it had standing to file such a petition, either in the district court or in this
court. We therefore conclude that both the proceedings below and the proceedings on appeal
are frivolous in nature. Further, we believe that the filing of such a frivolous suit in an estate
case such as this is particularly egregious and worth of our comment, because such a suit
improperly and unjustifiably ties up an estate indefinitely, and prevents the timely
distribution of the estate to those who clearly are interested in the estate.
a frivolous suit in an estate case such as this is particularly egregious and worth of our
comment, because such a suit improperly and unjustifiably ties up an estate indefinitely, and
prevents the timely distribution of the estate to those who clearly are interested in the estate.
Further, we note that frivolous suits such as this are a waste of judicial resources, both at the
trial court and the appellate court level, and are therefore a waste of our tax dollars.
This court has previously warned counsel in this state by written notice that we are
concerned with frivolous appeals which are often taken with dilatory purposes in mind, and
that we will in the future sanction counsel for their participation in the processing of such
frivolous suits. Here, however, appellant filed its suit before we issued our warning, and we
also note that the respondents in this matter failed to request sanctions either in writing or at
the oral argument of this appeal despite the opportunity to do so. Therefore, we have
determined not to impose sanctions in this matter despite the obviously frivolous nature of
this suit, but we do take this opportunity to reaffirm our position regarding the processing of
frivolous court actions and appeals. We again warn counsel that this court shall in the future
impose sanctions against litigants or their counsel for the filing of frivolous appeals, and we
encourage the district courts of this state to similarly seek to prevent the filing of frivolous
actions at the trial court level by imposing sanctions against litigants and/or their counsel for
the filing of such actions.
3

Affirmed.
Gunderson, A. C. J., Steffen, J., Robison and McGee, D. J., concur.
____________________

3
Chief Justice Mowbray, Vice-Chief Justice Springer, and Justice Young all voluntarily disqualified
themselves from participation in this case. The Governor designated the Honorable Norman C. Robison, Judge
of the Ninth Judicial District Court, to sit in place of Chief Justice Mowbray, and the Honorable Charles M.
McGee, Judge of the Second Judicial District Court, to sit in place of Justice Young. See Nev. Const., art. 6, 4.
____________
102 Nev. 469, 469 (1986) Hardin v. Jones
GEORGE HARDIN, Appellant, v. STANLEY JONES, Executive Director of the NEVADA
EMPLOYMENT SECURITY DEPARTMENT, and WESTGATE BUILDERS,
Respondents.
No. 16955
November 4, 1986 727 P.2d 551
Appeal from order dismissing petition for judicial review of administrative decision.
Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge.
Claimant who had been denied unemployment compensation benefits petitioned for
judicial review. The district court dismissed petition and claimant appealed. The Supreme
Court held that claimant had three extra days to appeal denial of benefits where notice of
denial was mailed to claimant.
George Hardin, in Proper Person, for Appellant.
Crowell, Crowell, Crowell & Susich, Carson City, and Jolley, Urga, Wirth & Woodbury,
and Donald Brookhyser, Las Vegas, for Respondents.
Social Security and Public Welfare.
The ten-day time period provided by statute for appeal from unemployment benefit determination is
extended by application of rule allowing three extra days where the notice of determination was sent by
mail. NRS 612.495(1); NRCP 6(e).
OPINION
Per Curiam:
This is an appeal from an order of the district court dismissing appellant's petition for
judicial review of a decision of the board of review of the department of employment
security. The sole issue presented in this appeal is whether the time limit specified in NRS
612.495(1) may be extended by application of NRCP 6(e). We hold that it may be so
extended.
Claiming to have been terminated from his employment, appellant filed a claim with the
department of employment security for unemployment compensation benefits. The executive
director of the department of employment security denied the claim on February 8, 1985, on
the grounds that appellant had voluntarily quit his employment and had made
misrepresentations in his claim. See NRS 612.380; NRS 612.445. The notice of the initial
determination, which was mailed to appellant on February S, 19S5, informed appellant
that the decision of the executive director would become final on February 19, 19S5,
eleven days after mailing, unless appellant appealed to an appeals referee before that
date.1 Appellant filed an appeal twelve days later on February 20, 19S5.
determination, which was mailed to appellant on February 8, 1985, informed appellant that
the decision of the executive director would become final on February 19, 1985, eleven days
after mailing, unless appellant appealed to an appeals referee before that date.
1
Appellant
filed an appeal twelve days later on February 20, 1985. The appeals referee dismissed the
appeal on the grounds that the appeal was untimely and appellant had not shown good cause
for his failure to file a timely appeal. The board of review and the district court each affirmed
the decision of the appeals referee.
Respondents contend that, by the express terms of NRS 612.495(1), appellant's notice of
appeal to the appeals referee was two days late.
2
Appellant contends, however, that NRCP
6(e) allows appellant an additional three days to appeal because the notice of the agency's
determination was mailed to appellant.
3

We note initially that the proper construction of the ten day appeal period prescribed by
NRS 612.495(1) is a legal, rather than a factual, question. Accordingly, independent appellate
review is appropriate. See Nyberg v. Nev. Indus. Comm'n, 100 Nev. 322, 683 P.2d 3 (1984).
In Nyberg, this court considered whether the three day grace period of NRCP 6(e) applied
to the time limit specified in NRS 616.5422(1) concerning appeals from adverse agency
determinations in worker's compensation cases.
4
We concluded that the statutory period for
filing appeals in worker's compensation matters should be liberally construed.
____________________

1
We note that February 18, 1985, a Monday, was the last day of the ten day appeal period prescribed by NRS
612.495(1). The notice of determination indicated that the decision would be final on February 19, 1985, the day
after the appeal period expired.

2
NRS 612.495(1) (emphasis added) provides in relevant part:
Any person entitled to a notice of determination or redetermination may file an appeal from the
determination with an appeal tribunal, and the executive director shall be a party respondent thereto. The
appeal must be filed within 10 days of the date of mailing or personal service of the notice of
determination or redetermination. The 10-day period may be extended for good cause shown.

3
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.

4
NRS 616.5422(1) (emphasis added), at the time construed, provided:
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.
statutory period for filing appeals in worker's compensation matters should be liberally
construed. Accordingly, we held squarely that the provisions of NRCP 6(e) apply to claims
before the industrial commission. We perceive no basis for distinguishing between claims
pending before the industrial commission and claims pending before the department of
employment security. In either case, the benevolent purposes of the statutes are best served if
the statutes are liberally construed.
Respondents attempt to distinguish Nyberg on the grounds that NRS 612.495(1) is more
specific than the statute construed in Nyberg because NRS 612.495(1), unlike NRS
616.5422(1), uses the word mailed. According to respondents, the statute has already taken
mailing time into account, rendering it improper to extend the time limit to compensate for
mailing.
The statute construed in Nyberg, however, was no less specific in requiring a notice of
appeal to be filed within 30 days after the date of the decision. NRS 616.5422(1) (as it
appeared prior to amendment in 1985). Further, the use of the word mailed in NRS
612.495(1) does not necessarily indicate a legislative intent not to allow an additional three
days for mailing pursuant to NRCP 6(e). Instead, it may indicate nothing more than a
recognition by the legislature of alternate methods of informing a claimant of the
determination of the executive director. Moreover, the legislature expressly provided in NRS
612.495(1) that the time period for a notice of appeal may be extended for good cause. This
supports our conclusion that the legislature did not consider the time period for a notice of
appeal to be jurisdictional or essential to the effective administration of the department of
employment security. Thus, our holding in Nyberg compels the conclusion in this case that
the provisions of NRCP 6(e) apply to the time limit specified in NRS 612.495(1).
We have considered respondents' remaining contentions, and we conclude that they lack
merit. Accordingly, we reverse the order of the district court, and we remand this case for
____________
102 Nev. 472, 472 (1986) Prieur v. D.C.I. Plasma Center
OLIVER PRIEUR, Appellant, v. D.C.I. PLASMA
CENTER OF NEVADA, INC., Respondent.
No. 17448
JOSEPH A. WALSH, Appellant, v. D.C.I. PLASMA
CENTER OF NEVADA, INC., Respondent.
No. 17501
November 4, 1986 726 P.2d 1372
Consolidated appeals from orders dismissing appellants' complaints. Eighth Judicial
District Court, Clark County; Thomas A. Foley, Judge (No. 17448); Addeliar D. Guy, Judge
(No. 17501).
Two inmates who performed services for private corporation at its blood plasma facility,
pursuant to private industry work program, brought separate suits alleging that the wages they
earned were below minimum wages specified in Nevada Wage and Hour Law and Fair Labor
Standards Act. Inmates asserted they were entitled to back wages. The district court dismissed
the complaints for failure to state a cause of action, and inmates appealed. After consolidation
of the appeals, the Supreme Court held that no employment relationship existed between
inmates and private corporation, and thus minimum wage laws did not apply to inmates.
Affirmed.
Oliver Prieur and Joseph A. Walsh, In Proper Person.
Rawlings, Olson & Cannon, Las Vegas, for Respondent.
1. Labor Relations.
Both Fair Labor Standards Act and Nevada Wage and Hour Law require an employer to pay minimum
wage to an employee under specific circumstances, and thus entitlement to minimum wage must be
predicated on existence of an employment relationship; to determine whether such a relationship exists, the
economic reality of the relationship must be considered. NRS 608.005 et seq.; Fair Labor Standards
Act of 1938, 1 et seq., 6(a)(1), 29 U.S.C.A. 201 et seq., 206(a)(1).
2. Convicts.
There was no employment relationship between inmates who performed services for private corporation
at its blood plasma facility, pursuant to private industry work program, and the corporation, considering
that Department of Prisons was sole party to contract with corporation, and that Department, not
corporation, actually determined rate and method of inmates' compensation; thus, neither federal nor state
minimum wage laws applied to inmates. NRS 608.005 et seq.; Fair Labor Standards Act of 1938, 1 et
seq., 6(a)(1), 29 U.S.C.A. 201 et seq., 206(a)(1).
OPINION
Per Curiam:
These are proper person appeals from orders of the district court dismissing appellants'
complaints for failure to state a cause of action upon which relief could be granted. See
NRCP 12(b)(5). Because these appeals present identical issues and similar facts, we hereby
consolidate them for disposition. See NRAP 3(b).
Appellants are both incarcerated by the Nevada Department of Prisons. Pursuant to a
private industry work program, they performed services for respondent at its blood plasma
facility. On March 6, 1986, appellants filed lawsuits against respondent alleging that during
the period they worked for respondent they were paid between twelve and one-half cents
($.12 1/2) and fifty cents ($.50) per hour. Appellants asserted that this rate of pay was below
the minimum wage specified in the Nevada Wage and Hour Law and the Fair Labor
Standards Act. See NRS 608.250; 29 U.S.C. 206(a)(1) (1982). Appellant Prieur therefore
asserted that he was entitled to $6,792.00 in back wages, and appellant Walsh asserted that he
was entitled to $1,555.45 in back wages.
Respondent subsequently filed motions to dismiss appellants' complaints. Respondent
asserted that the minimum wage laws did not apply to prisoners, and that appellants'
complaints failed to state claims upon which relief could be granted. See NRCP 12(b)(5). The
motions to dismiss were fully briefed and, on June 7, 1986, the district court found that no
employment relationship existed between appellant Prieur and respondent. Accordingly,
Judge Foley entered an order dismissing appellant Prieur's complaint. Thereafter, on June 26,
1986, Judge Guy entered an order dismissing appellant Walsh's complaint. These appeals
followed.
[Headnote 1]
Both the Fair Labor Standards Act and the Nevada Wage and Hour Law require an
employer to pay minimum wage to an employee under specific circumstances; therefore,
an entitlement to minimum wage must be predicated on the existence of an employment
relationship. See NRS 608.250; 29 U.S.C. 206(a)(1) (1982). See also Urban v. Continental
Convention & Show Management, 68 N.W.2d 633 (Minn. 1955). To determine whether an
employment relationship exists, the economic reality of the relationship must be
considered. Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28 (1961); Carter v. Dutchess
Community College, 735 F.2d 8, 12 (2nd Cir. 1984).
[Headnote 2]
In the present case, NRS 209.461 authorizes the Director of the Department of Prisons to
enter into contracts with private employers for the use of inmates' services.
the Department of Prisons to enter into contracts with private employers for the use of
inmates' services. Further, the inmates must apply to the Department of Prisons to be
considered for employment in a private industry program. See Department of Prisons
Administrative Regulation No. 854(V)(D). Finally, inmates who are selected to participate in
a private industry program must fill out a form which acknowledges that the inmate requests
to be employed in one of the private industry programs of the Nevada Department of
Prisons. Thus, the Department selected appellants for their work assignments with
respondent.
In light of the above, we conclude that the Department of Prisons is the sole party to the
contract with respondent, and that the Department of Prisons, not respondent, actually
determines the rate and method of appellants' compensation. Therefore, under the
circumstances of this case, we conclude that no employment relationship existed between
appellants and respondent. See Alexander v. Sara, Inc., 721 F.2d 149 (5th Cir. 1983).
Accordingly, the district court did not err in dismissing appellants' complaints.
Having reviewed the records on appeal, we conclude that appellants cannot demonstrate
error in these appeals, and that further briefing and argument are not warranted. See Luckett
v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975), cert denied, 423 U.S. 1077 (1976).
Accordingly, we hereby ORDER these appeals dismissed.
1

____________________

1
In light of this disposition, we deny as moot appellant Prieur's request that he be allowed to file an opening
brief in proper person.
____________
102 Nev. 474, 474 (1986) Bowman v. District Court
LORETTA BOWMAN, COUNTY CLERK, of the Eighth Judicial District Court, Appellant,
v. THE EIGHTH JUDICIAL DISTRICT COURT, in and for Clark County, THE
HONORABLE PAUL S. GOLDMAN, District Judge, Respondent.
No. 16806
November 26, 1986 728 P.2d 433
Appeal from order holding appellant in contempt of court. Eighth Judicial District Court,
Clark County, Paul S. Goldman, Judge.
Appeal was taken from order of the district court finding court clerk in contempt of court,
imposing sanctions against her in amount of $500 and sentencing her to 20 days in county
jail. The Supreme Court held that deputy county clerk's action in accepting and filing a
defendant's motion to dismiss action after default had been entered against that
defendant on previous day did not constitute "contemptuous act" on part of court clerk.
Supreme Court held that deputy county clerk's action in accepting and filing a defendant's
motion to dismiss action after default had been entered against that defendant on previous day
did not constitute contemptuous act on part of court clerk.
Reversed.
Robert J. Miller, District Attorney, Bill Curran, County Counsel, and Zev Kaplan, Deputy
District Attorney, Clark County, for Appellant.
The Honorable Paul S. Goldman, District Judge of the Eighth Judicial District Court,
Clark County, for Respondent.
1. Contempt.
Deputy county clerk's action in accepting and filing a defendant's motion to dismiss action after default
had been entered against that defendant on previous day did not constitute contemptuous act on part of
court clerk.
2. Clerks of Courts.
Clerk of court has ministerial duty to accept and file documents, she has no authority to pass upon
validity of instruments presented for filing.
Power to make decision concerning propriety of any paper submitted, or right of person to file paper, is
vested in court, not clerk.
It is duty of clerk of court to accept for filing any paper presented to her which is in acceptable form
under court rules and is accompanied by requisite fee unless she has specific instructions from court to
contrary.
OPINION
Per Curiam:
This is an appeal from an order of the district court holding appellant, Loretta Bowman,
Clerk of the Eighth Judicial District Court, in contempt of court, imposing sanctions against
her in the amount of $500, and sentencing her to twenty (20) days in the county jail. For the
reasons set forth below, we reverse.
1

The district judge's finding of contempt arose out of an underlying action filed by
Cambridge Raquet Club, Inc., against Buddy R. Turley, individually, and Quality Air
Conditioning, Inc. The complaint was filed and served on the defendants on May 21, 1985.
On June 11, 1985, the twenty-first day following service of
____________________

1
Appellant's opening brief in this appeal was filed on December 6, 1985. No answering brief has been filed
on behalf of respondent, however, and the time for filing the brief has long since expired. NRAP 31(a). Cause
appearing, this appeal shall stand submitted on the opening brief and the record on appeal, the complaint,
plaintiff Cambridge Raquet without oral argument. NRAP 34(f)(1).
the complaint, plaintiff Cambridge Raquet Club presented the clerk's office with a praecipe of
default because the defendants had not answered or otherwise responded. The deputy court
clerk duly filed the default.
The following day, June 12, 1985, defendant Turley submitted a motion to dismiss to the
clerk's office for filing. Accordingly, the deputy clerk filed this motion. The motion to
dismiss, originally set for hearing on July 23, 1985, was later taken off the calendar.
Defendant Turley subsequently moved to set aside the default, and the district court granted
the motion on September 13, 1985. That same day, the plaintiff filed a motion for an order
directing the district court clerk to appear and show cause why she had improperly allowed
defendant to file his motion to dismiss after a default had been entered. Considering the
motion meritorious, Judge Goldman then ordered Loretta Bowman, the clerk of the court, to
appear on September 17, 1985, to show cause why she should not be held in contempt for
failure to comply with the Nevada Rules of Civil Procedure.
At the show cause hearing, Judge Goldman read to Ms. Bowman Nevada Rules of Civil
Procedure 55 and 8(d).
2
Judge Goldman concluded that if we are to have responses filed
subsequent to the entry of default, Rule 55 becomes meaningless, and likewise 8(d) becomes
meaningless. The court then entered sanctions for contempt against Ms. Bowman in the
amount of $500 and sentenced her to serve twenty days in the county jail. This appeal
followed.
[Headnote 1]
In an order issued on September 17, 1985, Judge Goldman held the court clerk in
contempt because the deputy court clerk accepted and filed defendant's motion to dismiss
after a default had been entered the previous day. Appellant contends that the conduct of the
court clerk did not constitute a contemptuous act.
____________________

2
The exact statements of the district judge were:
THE COURT: I am going to read in haec verba Rule 55 of the Nevada Rules of Civil Procedure. When a
party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as
provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his
default.
It goes on.
Rule 8(d) provides in haec verba, Averments in a pleading to which a responsive pleading is required, other
than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a
pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.
The Court's position is rather elementary. Counsel and I spoke about this in chambers. I believe if we are to
have responses filed subsequent to the entry of default, Rule 55 becomes meaningless, and likewise 8(d)
becomes meaningless.
Counsel, anything else?
conduct of the court clerk did not constitute a contemptuous act. We agree.
NRS 22.010 and NRS 199.340 list the acts or omissions which constitute contempt.
3
The
actions of the court clerk did not fall within any of the acts or omissions enumerated in NRS
22.010 or NRS 199.340. The court clerk was not disorderly, contemptuous or insolent. No
breach of the peace, boisterous conduct or violent disturbance took place. The court clerk did
not disobey or resist any lawful writ, order, rule or process issued by the court. She did not
abuse the process or proceedings of the court.
____________________

3
The following acts or omissions shall be deemed contempts:
1. Disorderly, contemptuous or insolent behavior toward the judge while he is holding court, or
engaged in his judicial duties at chambers, or toward masters or arbitrators while sitting on a reference or
arbitration, or other judicial proceeding.
2. A breach of the peace, boisterous conduct or violent disturbance in the presence of the court, or in
its immediate vicinity, tending to interrupt the due course of the trial or other judicial proceeding.
3. Disobedience or resistance to any lawful writ, order, rule or process issued by the court or judge at
chambers.
4. Disobedience of a subpoena duly served, or refusing to be sworn or answer as a witness.
5. Rescuing any person or property in the custody of an officer by virtue of an order or process of
such court or judge at chambers.
6. Disobedience of the order or direction of the court made pending the trial of an action, in speaking
to or in the presence of a juror concerning an action in which the juror has been impaneled to determine,
or in any manner approaching or interfering with such juror with the intent to influence his verdict.
7. Abusing the process or proceedings of the court or falsely pretending to act under the authority of
an order or process of the court.
Every person who shall commit a contempt of court of any one of the following kinds shall be guilty
of a misdemeanor:
1. Disorderly, contemptuous or insolent behavior committed during the sitting of the court, in its
immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect
due to its authority;
2. Behavior of like character in the presence of a referee, while actually engaged in a trial or hearing
pursuant to an order of court, or in the presence of a jury while actually sitting in the trial of a cause or
upon an inquest or other proceeding authorized by law;
3. Breach of the peace, noise or other disturbance directly tending to interrupt the proceedings of a
court, jury or referee;
4. Willful disobedience to the lawful process or mandate of a court;
5. Resistance, willfully offered, to its lawful process or mandate;
6. Contumacious and unlawful refusal to be sworn as a witness or, after being sworn, to answer any
legal and proper interrogatory;
7. Publication of a false or grossly inaccurate report of its proceedings; or
8. Assuming to be an attorney or officer of a court or acting as such without authority.
did not abuse the process or proceedings of the court. There was no showing that the clerk or
deputy clerk deliberately or recklessly disregarded their duties with respect to the court.
[Headnotes 2-4]
The clerk has a ministerial duty to accept the file documents. She has no authority to pass
upon the validity of instruments presented for filing. The power to make any decision
concerning the propriety of any paper submitted, or the right of a person to file a paper, is
vested in the court, not the clerk. See State ex rel. Kaufman v. Sutton, 231 So.2d 874
(Fla.Dist.Ct.App. 1970); Malinou v. McElroy, 207 A.2d 44 (R.I. 1965). The clerk does have
the right to exercise discretion regarding matters of form, but she does not have judicial
discretion. See State v. Glass, 44 Nev. 235, 192 P. 472 (1920); Ferlita v. State, 380 So.2d
1118 (Fla.Dist.Ct.App. 1980). Therefore, it is the duty of the court clerk to accept for filing
any paper presented to her which is in acceptable form under court rules and is accompanied
by the requisite fee unless she has specific instructions from the court to the contrary.
Under these circumstances, had the clerk (or the deputy clerk) refused to accept and file
the motion to dismiss, she would have been guilty of a gross dereliction of duty as a
ministerial officer. Thus, Judge Goldman held Ms. Bowman in contempt for conscientiously
fulfilling her responsibilities as court clerk. Obviously, we cannot permit that order to stand.
Accordingly, we reverse the order of the district court holding the clerk in contempt of
court.
____________
102 Nev. 478, 478 (1986) Cavanaugh v. State
PATRICK JAMES CAVANAUGH, Appellant, v.
No. 16367
December 4, 1986 729 P.2d 481
Appeal from conviction for first-degree murder with use of a deadly weapon and from
sentence of death. Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
Defendant was convicted in the district court of first-degree murder with use of deadly
weapon, and sentenced to death. He appealed. The Supreme Court held that: (1) whether
purported marriage between defendant and witness was valid or not, relationship between
defendant and witness did not merit protection of spousal privilege or immunity, so that
testimony by witness was admissible, and {2) imposition of death penalty for offense
committed to avoid incrimination in fraudulent scheme was not disproportionate.
was admissible, and (2) imposition of death penalty for offense committed to avoid
incrimination in fraudulent scheme was not disproportionate.
Affirmed.
Lovell, Bilbray, Potter & Gewerter, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City, Robert Miller, District Attorney, and James
Tufteland, Deputy District Attorney, Las Vegas, for Respondent.
1. Criminal Law.
There is no requirement that evidence corroborating accomplice testimony link crime to state in order for
state court to have jurisdiction; statute requires only that accomplice testimony be corroborated by other
evidence linking defendant to crime. NRS 175.291.
2. Criminal Law.
Testimony of defendant's former putative spouse that defendant showed her victim's severed hand and
told her that he had cut out victim's vocal cords before killing him satisfied requirement that accomplice
testimony be corroborated by other evidence linking accused to crime. NRS 175.291.
3. Witnesses.
Ordinarily, availability of spousal privilege is determined by ruling on validity of marriage.
4. Witnesses.
Rationale for spousal privilege or immunity is that relationship between defendant and prospective
witness so merits protection that society is willing to preserve its sanctity even at expense of ascertaining
truth.
5. Witnesses.
Whether purported marriage between defendant and witness was valid or not, relationship between
defendant and witness did not merit protection of spousal privilege or immunity, so that testimony by
witness was admissible, where defendant and witness both believed, when they married, that marriage to
prior putative spouse might still be valid, defendant and witness used fictitious names to avoid possibility
that prior marriage would be noticed, defendant, at time of marriage, was still married to another woman,
and defendant apparently was also married to fourth woman at time he was married to one or more of other
women. NRS 49.295.
6. Criminal Law.
Officer's informing prospective defense witness that, if witness lies under oath, he can be punished for
perjury, does not infringe defendant's rights, even if, as a result, prospective witness declines to testify.
7. Criminal Law.
Trial court's instructing jury, without contacting counsel, to refer to instruction on executive clemency, in
response to question as to whether one sentenced to life imprisonment without possibility of parole might
somehow be paroled was improper, but error was harmless, because instruction was correct. NRS
175.451.
8. Criminal Law.
Trial court did not abuse its discretion in allowing trial to go forward after defendant, in response to
question from bench, stated that he had no doubt that decomposed body found in California was that of
alleged murder victim, where there was strong evidence of identification, defense strategy had not included
affirmative denial that body was that of victim, and defendant raised no specific contemporaneous
objection to question.
9. Criminal Law.
Despite defendant's claim that prosecutor wished to induce belief that defendant killed putative spouse's
brother by eliciting testimony that brother was dead, such testimony did not warrant mistrial, where trial
court directed full disclosure that brother died in unrelated traffic accident.
10. Criminal Law.
Evidence of defendant's convictions on more that 30 counts for participation in fraudulent scheme known
to murder victim was admissible to prove motive for murder, where evidence was presented that victim was
permanently silenced on basis of knowledge of fraudulent scheme.
11. Criminal Law.
Any error in trial court's exclusion of transcript of testimony of unavailable witness, who would have
testified that defendant charged with murder cooperated with police when questioned about fraudulent
scheme, was harmless, where another detective testified extensively as to defendant's cooperation at time of
arrest.
12. Criminal Law.
Assuming that seizure of box of bullets in course of investigation of defendant's participation in fraud was
unlawful as beyond scope of warrant, exclusionary rule did not apply, so that the box of bullets could be
admitted, where officers involved in the search had no idea that knowledge gained would become useful in
murder prosecution and violation of rights was unintentional.
13. Indictment and Information.
Doctrine that state may not present additional evidence of guilt to court in attempt to justify indictment
when accused alleges that evidence presented to grand jury was inadequate to show probable cause does
not preclude admission of evidence concerning applicability of privilege when issue is whether grand jury
improperly heard evidence on which its indictment was based.
14. Criminal Law.
Defendant was not entitled to proffered jury instruction concerning weight to be given perjurer's
testimony, where other instructions covered such issue.
15. Homicide.
Statutory aggravating circumstance for purposes of death penalty that murder was committed to avoid
lawful arrest does not require that arrest be imminent or that victim in some way be involved in effectuating
arrest. NRS 200.030, subd. 4(a), 200.033, subd. 5.
16. Homicide.
Murder of victim committed to prevent victim's disclosure of defendant's involvement in fraudulent
scheme satisfied statutory aggravating circumstances, for purpose of death sentence, that murder was
committed to avoid lawful arrest, even though arrest was not imminent and victim was not involved in
arrest. NRS 200.030, subd. 4(a), 200.033, subd. 5.
17. Homicide.
Amputations of murder victim's body parts after death showed depravity of mind, as aggravating factor
for death sentence purposes. NRS 200.033, subd. 8.
18. Homicide.
Defendant's removal of victim's vocal cords before killing victim constituted mutilation, as aggravating
factor for death sentence purposes. NRS 200.033, subd. 8.
Ex post facto clause required that statute imposing proportionality review requirement for imposition of
death penalty be applied to murder committed prior to effective date of amendment removing such
requirement. NRS 177.055, subd. 2(d); U.S.C.A.Const. Art. 1, 9, cl. 3, 10, cl. 1.
20. Homicide.
Imposition of death penalty on defendant convicted of carefully plotted, coldblooded murder, committed
over a period of hours, involving mutilation of victim's body before death and dismemberment thereafter,
was not disproportionate, where offense was committed merely to avoid incrimination in fraudulent
scheme. NRS 177.055, subd. 2(d).
OPINION
Per Curiam:
Appellant Patrick Cavanaugh was the mastermind of a fraudulent scheme to purchase
furniture with stolen, forged checks. A secret witness article in a Las Vegas newspaper
pictured Cavanaugh's putative wife, Diana, as a suspect in the scheme and offered a reward
for information concerning the woman and her participation in the fraud. The State's theory,
presented through testimony at trial, was that Cavanaugh believed that an acquaintance,
Nathaniel Buster Wilson, had seen the article displaying the photograph of Diana and
intended to inform the police. In order to prevent Wilson from contacting law enforcement
authorities, Cavanaugh brutally murdered him. Cavanaugh first shot Wilson in the face, then,
after discovering the victim was still alive several hours later, cut out his vocal cords and shot
him two more times in the head. Cavanaugh then cut off the victim's hands and feet with an
electric saw, and attempted to cut off his head. He used acid in an attempt to remove the
prints from the victim's fingers, then disposed of the remains in several locations. Cavanaugh
was convicted of first-degree murder with use of a deadly weapon and sentenced to death. His
appeal raises numerous issues, but none merits reversal. The conviction and sentence are,
therefore, affirmed.
I. Jurisdiction
[Headnotes 1, 2]
Cavanaugh argues that the trial court lacked jurisdiction because the sole evidence that
the crime occurred in Nevada was the testimony of an accomplice, Diana Cavanaugh.
because the sole evidence that the crime occurred in Nevada was the testimony of an
accomplice, Diana Cavanaugh. However, Nevada law requires only that accomplice
testimony be corroborated by other evidence linking the accused to the crime. NRS 175.291.
There is no additional requirement of corroborative evidence linking the crime to the state.
Pamela Cavanaugh, one of appellant's former putative spouses, testified that appellant
showed her the victim's severed hand and told her he had cut out the victim's vocal cords
before killing him. That satisfies the statute.
1

II. Spousal Privilege
Cavanaugh contends that the trial court erred in allowing Diana Cavanaugh, his putative
wife, to testify. We disagree. Although Nevada allows both a privilege as to confidential
marital communications and an immunity from adverse spousal testimony, NRS 49.295, it
appears that neither protection is available on the facts of this case.
Diana Cavanaugh participated in a marriage ceremony with appellant on November 26,
1979. At that time, Cavanaugh was married to one Toni Cavanaugh. Toni, however, obtained
an annulment in New Jersey on June 13, 1980. The annulment declared their union void from
its inception, but expressly was based solely on the assertion that, when Cavanaugh married
Toni, he was lawfully married to Pamela Cavanaugh. Such was not the case; the marriage to
Pamela was ineffective because Pamela was, at the time of her marriage to Cavanaugh,
married to one Lorenzo Preciado. Since the New Jersey court apparently had jurisdiction to
render its decree of annulment, we are bound to give that decree the effect it would have in
New Jersey. See 28 U.S.C. 1738 (1982). However, New Jersey has not indicated whether,
on facts such as those of this case, its annulment would serve to entitle a subsequent putative
spouse to the protection of immunity, in a criminal trial, from the testimony of a party to the
allegedly annulled union.
2

[Headnote 3]
Ordinarily, one determines the availability of a spousal privilege by ruling on the validity
of the marriage. An obviously void marriage creates no legal relationship to be protected,
and a demonstrably valid marriage could hardly fall without the protection of the statute.
____________________

1
Appellant argues that Pamela Cavanaugh was also an accomplice, and that one Maria Russell was an
accomplice as well. The record does not support that contention.

2
The only case even remotely relevant, Shammas v. Shammas, 88 A.2d 204 (N.J. 1952), involved the
distinguishable issue whether, in a civil action, such an annulment would be set aside absolutely and for all
purposes. Thus, the court in Shammas faced a host of collateral consequences not here at issue, and did not focus
on the application of privilege laws.
marriage creates no legal relationship to be protected, and a demonstrably valid marriage
could hardly fall without the protection of the statute. However, while this approach normally
affords certainty, it may also generate needless repercussions. Where, as here, we could
resolve the question of validity only by speculation, we prefer not to disturb a host of
implicated interests on the basis of such tenuity. We prefer, instead, to employ an approach
more finely tuned to the one issue at hand: whether the Legislature intended the privilege to
be applicable on the facts of this case.
[Headnotes 4, 5]
The rationale for spousal privilege or immunity is that the relationship between the
accused and the prospective witness so merits protection that society is willing to preserve its
sanctity even at the expense of ascertaining truth. The relationship here at issue does not merit
such protection; it is a clear example of casual indifference to the law. Evidence revealed that
appellant and Diana Cavanaugh both believed, when they married, that the marriage to
Pamela Cavanaugh might still be valid. They therefore used fictitious names to avoid the
possibility that the marriage to Pamela would be noticed. Further, at that time Cavanaugh was
still married to Toni, for the mistaken annulment (which, in turn, may have been obtained
through deception) had not yet occurred. Cavanaugh apparently was also married to one
Tommi Cavanaugh while married to one or more of the other women. Worse yet, Diana
testified that she did not care; it was of no consequence to her whether, at the time she
married Cavanaugh, he had terminated his other marriages. A relationship so fraught with
deception and disregard for our marital laws is not entitled to the protection of our evidentiary
privilege or immunity, where the validity of the marriage is gravely in doubt and may not be
determined with certainty under existing law.
3
Admission of Diana Cavanaugh's testimony
was not erroneous.
III. Mistrial Motions
Cavanaugh unsuccessfully moved for declaration of a mistrial on four occasions. We
conclude that the trial court did not err in denying those motions.
[Headnote 6]
The first motion was based on law enforcement officers' having informed a prospective
defense witness that if he lied under oath, he could be punished for perjury. A mere warning
of this nature does not infringe a criminal defendant's rights even if, as a result, his
prospective witness declines to testify.
____________________

3
We note that this approach will be applicable only in the rarest of cases; courts are not excused from their
duty to attempt to determine whether a marriage is valid, in ruling on a claim of privilege.
does not infringe a criminal defendant's rights even if, as a result, his prospective witness
declines to testify. See United States v. Harlin, 539 F.2d 679 (9th Cir.), cert. denied, 429 U.S.
942 (1976); cf. Webb v. Texas, 409 U.S. 95 (1972).
[Headnote 7]
Another motion involved an unauthorized communication between the trial court and the
jury. The jurors, during their penalty deliberations, asked the court whether one sentenced to
life imprisonment without the possibility of parole might somehow be paroled. The trial
court, without contacting counsel, instructed the jury to refer to an instruction on executive
clemency. While the court erred in answering without notice to counsel, NRS 175.451;
Varner v. State, 97 Nev. 486, 634 P.2d 1205 (1981), the error was harmless, for the
instruction was correct.
4
See id.
[Headnote 8]
Questions from the bench prompted still another mistrial motion. While Cavanaugh was
on the stand, the court asked whether he had any doubt that the decomposed body found in
California was that of Buster Wilson. The sole issue is whether, after Cavanaugh answered
that he had no doubt the body was Wilson's, the trial court abused its discretion in allowing
the trial to go forward. See Reese v. State, 95 Nev. 419, 596 P.2d 212 (1979). We hold that it
did not, for three reasons: there was strong evidence of identification; Cavanaugh's defense
strategy had not included affirmative denial that the body was that of Mr. Wilson; and
Cavanaugh raised no specific contemporaneous objection to the question.
[Headnote 9]
Finally, the trial court did not err in refusing to declare a mistrial after the prosecutor
elicited testimony that a Mr. Cioffe, Diana Cavanaugh's brother, was dead. Cavanaugh argues
that the prosecutor wished to induce a belief that he had killed Cioffe. However, the trial
court directed full disclosure that Mr. Cioffe died in an unrelated traffic accident. There was
no prejudice; the court did not abuse its discretion in allowing the trial to continue.
IV. Evidentiary Rulings
Cavanaugh challenges several of the trial court's rulings on admissibility of evidence.
____________________

4
Essentially, the instruction said appellant could be pardoned or have his sentence commuted. Appellant's
trial preceded our ruling in Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), wherein we prescribed,
prospectively, a format for such instructions. Appellant alleges only that life without parole means life without
parole, and that any instruction to the contrary is inaccurate. He is incorrect.
admissibility of evidence. However, there was no reversible error.
[Headnote 10]
First, the trial court did not err in admitting evidence of Cavanaugh's conviction on more
than thirty counts of fraud. The convictions were for participation in the fraudulent scheme
known to Mr. Wilson, for which knowledge he was permanently silenced. Evidence of other
instances of conduct is admissible to prove the motive for a crime. NRS 48.045(2). Thus,
there was no error.
5

[Headnote 11]
Second, assuming arguendo that the trial court may have erred in excluding as irrelevant a
transcript of testimony of an unavailable witness, no prejudice resulted. Cavanaugh wished to
introduce the testimony of an Officer Holcomb to show that Cavanaugh cooperated with the
police when questioned about the fraudulent scheme discussed above. However, a Detective
Allen testified extensively as to Cavanaugh's cooperativeness at the time of his arrest.
6
Further, Officer Holcomb's testimony was to the effect that Cavanaugh's excessive
cooperation aroused suspicion. Detective Allen's testimony was more favorable to
Cavanaugh. Thus, reversal is unnecessary. NRS 47.040(1); 178.598.
[Headnote 12]
Third, the trial court did not err in admitting into evidence a box of bullets allegedly
unlawfully seized during a search in the course of an investigation of Cavanaugh's
participation in the fraud.
7
The exclusionary rule exists to deter misconduct; we have already
held that where (1) the allegedly improper search involved a completely different crime, (2)
the officers involved had no idea that the knowledge they gained would become useful in the
prosecution of another offense, and (3) the violation of rights was unintentional, there is
nothing to deter and the exclusionary rule does not apply. Taylor v. State, 92 Nev. 158, 547
P.2d 674 (1976). Taylor is fully applicable here; assuming arguendo that the seizure was
improper, the evidence still was admissible.
____________________

5
It is of no consequence that the convictions followed, rather than preceded Wilson's death; the underlying
acts of fraud were not shown to have been subsequent to the murder, and they would have had probative value in
any event.

6
We perceive no significance in the fact that Officer Holcomb's questioning and the arrest occurred at
different times.

7
The bullets were in a filing cabinet containing evidence of fraud. The police impounded the cabinet as a
whole, although the warrant's list of items to be seized included neither the cabinet nor the bullets. However,
there was no evidence that the officers involved intended any impropriety or realized their actions were
questionable.
arguendo that the seizure was improper, the evidence still was admissible.
V. Other Alleged Guilt-Phase Errors
[Headnote 13]
Prior to his trial, Cavanaugh sought a writ of habeas corpus. The issue of spousal privilege
arose; Cavanaugh claimed that certain testimony before the grand jury was privileged. To
resolve that issue, the court heard evidence regarding Cavanaugh's marital status. Cavanaugh
claims this was improper, since the grand jury did not hear that evidence. Cavanaugh's
argument confuses two doctrines. When an accused alleges that the evidence presented to the
grand jury is inadequate to show probable cause, the state may not present additional
evidence of guilt in an attempt to justify the indictment.
8
However, this does not preclude
admission of evidence concerning the applicability of a privilege when the issue is whether
the grand jury improperly heard the evidence on which its indictment was based.
[Headnote 14]
Nor did the court err in refusing a proffered jury instruction concerning the weight to be
given a perjurer's testimony. Other instructions covered that issue; repetition is not required,
Roland v. State, 96 Nev. 300, 608 P.2d 500 (1980).
VI. Aggravating Circumstances
The death penalty is appropriate only if, inter alia, at least one statutory aggravating
circumstance is present. NRS 200.030(4)(a). The jury found two such factors present: that the
murder was committed to avoid a lawful arrest, NRS 200.033(5), and that it involved torture,
depravity of mind, or mutilation of the victim, NRS 200.033(8). Cavanaugh's challenges to
these findings are meritless.
[Headnotes 15, 16]
First, Cavanaugh argues that a murder is not committed to avoid a lawful arrest, for
purposes of the statute, unless arrest is imminent and the victim was in some way involved in
effectuating the arrest. That, however, is not what the statute says. Wilson's murder clearly
was perpetrated to avoid arrest, and no more is required. Accord White v. State, 403 So.2d
331 (Fla. 1981), cert. denied, 463 U.S. 1229 (1983); Riley v. State, 366 So.2d 19 (Fla. 1978),
cert. denied, 459 U.S. 981 (1982). This also disposes of Cavanaugh's claim that the statute is
vague; we conclude that it is unambiguous.
____________________

8
See, e.g., Peterson v. Sheriff, 92 Nev. 287, 549 P.2d 752 (1976).
[Headnotes 17, 18]
Cavanaugh also asserts that dismemberment of the victim's body after death is not
mutilation within the meaning of NRS 200.033(8). We need not reach that issue; the
amputations show depravity of mind, particularly in combination with Cavanaugh's other
conduct. Further, Cavanaugh's removal of the victim's vocal cords preceded the slaying, and
clearly constituted mutilation. Therefore, there was no error.
[Headnotes 19, 20]
We have considered other cases in which the death penalty was imposed, and we conclude
that Cavanaugh's sentence is neither excessive nor disproportionate,
9
considering both the
crime and the defendant. This case involves a carefully-plotted, cold-blooded crime of a
brutal and depraved nature, committed over a period of hours, with mutilation of the body
before death and dismemberment thereafter, all merely to avoid incrimination in an unrelated
lesser offense. The death penalty has been imposed many times in Nevada for less shocking
murders. See, e.g., Wilson v. State, 101 Nev. 452, 705 P.2d 151 (1985); Farmer v. State, 101
Nev. 419, 705 P.2d 149 (1985); Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985);
Petrocelli v. State, supra. There is also no evidence that passion, prejudice or any other
arbitrary factor influenced the choice of penalty. Accordingly, Cavanaugh's conviction and
sentence are affirmed.
____________________

9
NRS 177.055(2)(d) was recently amended to abolish the proportionality review requirement. This
amendment became effective June 6, 1985. 1985 Stats. ch. 527 1, at 1597-1598. The prohibition against ex
post facto laws requires that we apply the law as it existed when the crime was committed. See Goldsworthy v.
Hannifin, 86 Nev. 252, 468 P.2d 350 (1970) (an act amending parole eligibility could not be applied to the
detriment of a defendant whose crime was committed before the amendment took effect). Because Wilson was
murdered well before June 6, 1985, we must conduct a proportionality review of Cavanaugh's sentence.
____________
102 Nev. 488, 488 (1986) Mahar v. State
TIMOTHY DAVID MAHAR, Appellant, v. THE STATE
No. 16429
December 4, 1986 728 P.2d 439
Appeal from a judgment of conviction for unlawful possession of a controlled substance;
Third Judicial District Court, Lyon County; Mario G. Recanzone, Judge.
Defendant was convicted of unlawful possession of controlled substance by the district
court and defendant appealed. The Supreme Court held that cross-examination of defendant
by prosecutor regarding why defendant did not mention at time of arrest that he had picked up
hitchhiker who allegedly left marijuana in truck, which implied that defendant was guilty
based upon his silence at time of arrest, violated defendant's due process right to fair trial.
John S. Hill, Fallon, for Appellant.
Brian McKay, Attorney General, Carson City; William J. Rogers, District Attorney, Archie
E. Blake, Deputy District Attorney, Lyon County, for Respondent.
Use, for impeachment purposes, of defendant's silence at time of arrest and after he had received Miranda
warning is constitutionally prohibited in that it violates defendant's due process right to fair trial.
U.S.C.A.Const. Amends 5, 14.
2. Criminal Law.
Questioning by prosecution of defendant charged with possession of controlled substance which served
only to imply that defendant was guilty based upon his silence at time of arrest in not telling officer that
hitchhiker allegedly left marijuana in truck constituted reversible error as violation of defendant's due
process right to fair trial. U.S.C.A.Const. Amends 5, 14.
OPINION
Per Curiam:
On December 16, 1984, appellant Mahar was observed in his vehicle weaving across the
centerline of U.S. Highway 95A between Yerington and Fernley by Officer Roberson of the
Lyon County Sheriff's Department. Officer Roberson signaled Mahar to pull off the road
where Roberson then administered a field sobriety test after smelling the odor of alcohol on
Mahar. Mahar admitted that he had been drinking alcoholic beverages immediately prior
to being stopped by Roberson.
102 Nev. 488, 489 (1986) Mahar v. State
admitted that he had been drinking alcoholic beverages immediately prior to being stopped by
Roberson. Deciding that Mahar was intoxicated, Officer Roberson recited the implied consent
law along with advising Mahar of his Miranda rights. Mahar was then placed under arrest.
After departing the scene to transport Mahar to the Fernley substation, the officer in charge
of impounding Mahar's vehicle found marijuana along with paraphernalia associated with
smoking the substance in the small pick-up truck. Mahar was subsequently charged with
unlawful possession of a controlled substance.
At trial Mahar testified that prior to reaching Yerington he had picked up a man and his
adolescent son and had given them a ride into Yerington. It was this man, Mahar contended,
who had left the marijuana in his vehicle. Mahar first disclosed this story to the jailer during a
casual conversation but did not officially disclose the theory until trial.
Mahar testified in his own defense. The state, during cross-examination, made a vigorous
attempt to discredit Mahar's hitchhiker story. Part of the state's attack on Mahar's hitchhiker
theory was that he fabricated the story while in jail awaiting trial. Consistent with this idea,
the state, in order to impeach the hitchhiker story, questioned Mahar as to why he had not
discussed the hitchhiker with the police at the time of his arrest.
1

[Headnote 1]
This court has recently reiterated the rule set forth by the United States Supreme Court
which governs this type of questioning: use for impeachment purposes of a defendant's
silence at the time of arrest and after he has received a Miranda warning is constitutionally
prohibited as it violates the defendant's due process right to a fair trial. Doyle v. Ohio, 426
U.S. 610 (1976); Aesoph v. State, 102 Nev. 316, 721 P.2d 379 (1986)
In Doyle, the two defendants were arrested after attempting to sell marijuana to a narcotics
bureau informant. 426 U.S. at 611.
____________________

1
The record displays the following colloquy which took place between Mahar and the prosecutor during
cross-examination:
Q Why didn't you tell someone that you had a hitchhiker when you were being arrested for drugs?
Why didn't you tell someone?
A They didn't ask me. What could I say, a hitchhiker got in my truck and then the cops say
Q There were all kinds of cops you said?
A Well, they would say we will let you go? Nobody asked me that if I had a hitchhiker or not.
Although Mahar did not object to this questioning, the error is of constitutional dimension and therefore does
not prevent review by this court. McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984).
102 Nev. 488, 490 (1986) Mahar v. State
At trial, both defendants offered a frameup story as a defense which neither defendant had
previously disclosed to the prosecution or law enforcement officers. The prosecutor, in an
effort to undercut the explanation, asked each defendant why he had not told the frameup
story to the narcotics agent at the time they were arrested. 426 U.S. at 613. The United States
Supreme Court declared that this form of impeachment is impermissible as violative of the
due process right to a fair trial. Id. at 617-18. Implicit in the Miranda warnings is the
assurance that the defendant's silence will carry no penalty. Doyle, 426 U.S. at 618; Aesoph,
102 Nev. at 316, 721 P.2d at 383.
[Headnote 2]
Consistent with Doyle, the state's questioning of Mahar concerning his failure to discuss
the hitchhiker at the time of his arrest is error.
It is important to note that the questioning by the prosecutor did not involve a conflict
between a story told at trial vis a vis a story told at the time of Mahar's arrest; rather, the
prosecutor's questioning served only to imply guilt from silence in not telling to the arresting
officer his hitchhiker story. Further, the prosecutor's attack on Mahar's silence was not merely
delivered as an innocuous, passing comment during closing argument. Cf. Fernandez v. State,
81 Nev. 276, 402 P.2d 38 (1965). Instead, this attack was delivered directly through the
dialogue of cross-examination and went to the heart of Mahar's only defense. Because of this,
it is difficult to imagine that the members of the jury could have been able to ignore the
prosecutor's inference. We are, therefore, unable to declare that the error would be harmless
beyond a reasonable doubt. See Aesoph, above; Chapman v. California, 386 U.S. 18, 24
(1967).
In light of this analysis, we need not discuss Mahar's remaining assignments of error. We
conclude that Mahar's constitutional right to a fair trial, as defined by the United States
Supreme Court, was violated. Accordingly, we reverse and remand for a new trial.
____________
102 Nev. 491, 491 (1986) Puglisi v. State
STEVEN JOSEPH PUGLISI, Appellant, v. THE STATE
No. 17001
December 4, 1986 728 P.2d 435
Appeal from a judgment of conviction pursuant to jury verdict of one count of burglary
and one count of possession of burglary tools; Eighth Judicial District Court, Clark County;
Myron Leavitt, Judge.
Defendant was convicted of burglary and possession of burglary tool by the district court
and defendant appealed. The Supreme Court held that: (1) instruction on petit larceny was not
required in burglary trial, and (2) plastic shopping bag in which defendant placed stolen
goods was not burglary tool.
Morgan D. Harris, Public Defender, Craig B. Davis, Deputy Public Defender, Clark
Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Jury instruction regarding elements of petit larceny was not required in trial of defendant for burglary in
that petit larceny is not lesser included offense of burglary.
2. Burglary.
Plastic shopping bag in which defendant placed perfume which he removed from department store
without paying for it was not a burglary tool as contemplated by statute defining crime of possession of
instrument with burglarious intent. NRS 205.080.
OPINION
Per Curiam:
Appellant Puglisi was convicted of burglary and possession of a burglary tool, namely, a
shopping bag. He challenges the burglary conviction on the ground that the district court
erred in refusing to give an instruction on petit larceny. He challenges the burglary tool
conviction on the ground that a shopping bag is not a burglary tool. We agree with Puglisi on
the burglary tool claim and reverse. The burglary conviction is affirmed.
The facts of this case are as follows: On June 6, 1985, Carol Parker was employed as a
security guard for Sears. Parker sat in a "camera room" where she could observe television
monitors which displayed the entire store.
a camera room where she could observe television monitors which displayed the entire
store. Through control of the monitors and a number of cameras located throughout the store
Parker could follow any particular person anywhere in the store.
At approximately 1:00 p.m. Parker observed the appellant, Puglisi, standing around the
cosmetics department. Parker testified that her attention was drawn to Puglisi because he had
been in the store the day before, dressed in the same clothes and acting suspiciously. With the
aid of the closed circuit camera, Parker saw Puglisi place three individually boxed bottles of
Sears' most expensive perfume in the plastic shopping bag he was carrying. Parker then
notified another Sears security agent, David Halter, as to what she had observed. Halter was
on the floor of the store and, using directions provided by Parker, caught Puglisi just after he
had exited Sears. Puglisi had not stopped to pay for the perfume.
Puglisi was escorted to the Sears security office where, according to Halter, he admitted
entering the store with the intent to steal perfume. Puglisi's testimony on this point differs
from Halter's and is critical to the issue involved in this appeal. Puglisi freely admitted that he
stole the perfume; however, he denied that he had entered the Sears store with the intent to do
so. Puglisi stated that the day before the incident he had gone to the Sears store to find an
acquaintance named Linda Mehler. Mehler was employed as a Sears security guard, and
Puglisi thought he might be able to borrow some money from her. Mehler was not at work
that day. Puglisi returned the next day and was again unable to find Mehler. According to
Puglisi's version of the events, it was then that he formed the intent to steal the perfume.
Refusal to Give Larceny Instruction
[Headnote 1]
Puglisi maintains it was error not to have instructed the jury on the elements of petit
larceny. There is no reason for the district court to have given this instruction. Puglisi was not
charged with larceny, grand or petit. Petit larceny is not a lesser included offense in a burglary
charge. See Jones v. State, 95 Nev. 613, 600 P.2d 247 (1979); Jackson v. State, 93 Nev. 677,
512 P.2d 927 (1977). The jury was instructed on the definition of larceny as it relates to
burglary. There is no error here. State v. Sugimoto, 614 P.2d 386 (Haw. 1980) (court may
instruct on offense not specifically charged in indictment only when it is a lesser included
offense of the original charge); see State v. Bishop, 491 P.2d 1359 (Wash.App. 1971).
Possession of Burglary Tools
Puglisi's charge of possession of burglary tools was based on his having had in his
possession a plastic, (Las Vegas) souvenir-type shopping bag.
NRS 205.080 defines the crime of possession of an instrument with burglarious intent.
1
It
is unlawful for a person to have in his possession any tool or implement adapted, designed
or commonly used for the commission of burglary, larceny or other crime. NRS 205.080.
In the broadest sense it can be argued that a bag is commonly used for the commission of
burglary, larceny, or other crime, but so are trouser pockets, pocket books, coat sleeves,
girdles
2
and Adidas.
[Headnote 2]
The state refers to a case involving a box that had been remodeled with a hinged bottom.
We might not quarrel with a holding that such an implement would come within the meaning
of the statute. Still, bags, purses, trousers and girdles are not burglar tools.
Other assignments of error are without merit. The burglary conviction is affirmed; the
possession of burglary tools conviction is reversed.
____________________

1
205.080 Possession of instrument with burglarious intent; making, alteration or repair of instrument for
committing offense.
1. Every person who shall make or mend or cause to be made or mended, or have in his possession in
the day or nighttime, any engine, machine, tool, false key, picklock, bit, nippers or implement adapted,
designed or commonly used for the commission of burglary, larceny or other crime, under circumstances
evincing an intent to use or employ, or allow the same to be used or employed in the commission of a
crime, or knowing that the same is intended to be so used, shall be guilty of a gross misdemeanor.
2. The possession thereof except by a mechanic, artificer or tradesman at and in his established shop
or place of business, open to public view, shall be prima facie evidence that such possession was had with
intent to use or employ or allow the same to be used or employed in the commission of a crime.

2
Respondent calls our attention to In the Matter of Charlotte K., 427 N.Y.S.2d 370 (Fam.Ct. 1980), in which
the court held that it would be stretching the plain meaning of the penal code to call a girdle a burglar tool.
The court observed that the tools and instruments covered by the statute are the hand gadgets used to break in
and pick up, and not bags to carry out. In another New York case, People v. Lyons, 41 N.Y.S. 646 (Ct.Gen.Ses.
1896), the court held that under the New York statute, one very similar to ours, a bag used for shoplifting was
not a burglar's tool: In the ordinary acceptation of the words of the English language, I think no one would
naturally, and in ordinary conversation, describe a muslin bag as an implement or a tool or an engine or an
instrument. 41 N.Y.S. at 646.
____________
102 Nev. 494, 494 (1986) United Pacific Ins. Co. v. Chism Homes
UNITED PACIFIC INSURANCE COMPANY, Appellant,
v. CHISM HOMES, INC., Respondent.
No. 16741
December 4, 1986 728 P.2d 809
Appeal from an order and judgment directing appellant surety to pay the amount of the
judgment rendered against its principal pursuant to its release of attachments bond; Eighth
Surety on bond issued to obtain release of writ of attachment appealed from order of the
district court ordering to pay the amount of judgment rendered against the principal. The
Supreme Court held that: (1) trial court was under no duty to determine which type of bond
would be in best interest of surety; (2) where proffered bond fully protected the plaintiff, trial
court properly accepted it without inquiring as to whether the surety had properly protected
his contractual interest; and (3) provisions for bond when the value of the property sought to
be released is less than the demand of writ would not be read into statutory provisions for
bond when the amount sought to be released equals or exceeds the demand of the writ, so as
to limit liability of surety to the value of the property actually released.
Affirmed.
Weiner, Waldman, Gordon & Silver, and Bradley J. Richardson, Las Vegas; Gerald R.
Knecht, San Francisco, California, for Appellant.
William E. Crockett, Morton Galane, Las Vegas, for Respondent.
1. Attachment.
Statute directing court to require undertaking on behalf of defendant for the amount to be released from
writ of attachment creates no duty on part of court to determine which type of bond would be in best
interest of surety. NRS 31.190, subd. 1.
2. Attachment.
Trial court correctly accepted bond offered to release writ of attachment without inquiring as to whether
the surety had properly protected its contractual interest where the bond fully protected the plaintiff. NRS
31.190, subd. 1.
3. Attachment.
Even if court had been aware of true net value of parcel subject to writ of attachment at time that it
approved bond offered to release the writ, it would have been under no obligation to order a bond in an
amount less than that tendered simply because the tendered amount was greater than the true net value of
the parcel. NRS 31.190, subd. 1(b).
4. Attachment.
Statute providing that court should appoint appraiser if value of property sought to be released
from writ of attachment is disputed did not apply where the value of the property was
not in dispute for purposes of the bond, even though it was later asserted that the
bond was in an amount greater than the true net value of the property released.
property sought to be released from writ of attachment is disputed did not apply where the value of the
property was not in dispute for purposes of the bond, even though it was later asserted that the bond was in
an amount greater than the true net value of the property released. NRS 31.190, subd. 2.
5. Attachment.
Statutory provision for an undertaking, in order to obtain release of writ of attachment, that the defendant
will pay the amount of money sought to be released if that is less than the demand of the writ would not be
read into provision for undertaking for the amount recovered by the plaintiff or the amount of the writ,
which ever is less, so as to limit surety's liability to the net value of the real property designated in the writ
when it was later determined that the true net value of that property was less than the amount sought in the
writ. NRS 31.190, subd. 1(a), (b)
OPINION
Per Curiam:
In March of 1982, Chism Homes, Inc. (Chism), brought an action against its vice-president
and secretary, Correna C. Phillips, for wrongful diversion of corporate funds. Also named as
defendants in the action were Phillips' husband, Benjamin, along with Ben's Carpet and
Interiors, Inc., a business operated by both Benjamin and Correna Phillips (hereinafter
collectively as the Phillips).
After initiating the action, Chism served writs of attachment and garnishment against the
Phillips' property securing the amount of damages claimed in the complaint, $190,077.25.
Chism then amended the complaint changing the amount of alleged damages from
$190,077.25 to $301,570.50. On filing the amended complaint, Chism served an amended
writ of attachment for the same amount claimed in the amended complaint.
In the interim, pursuant to motions challenging the validity of the writs of attachment, the
district court appointed a special master to determine the fair market values of two separate
parcels of improved real property which had been designated, along with other items, in the
writ of attachment. The special master reported the combined market value of the two
properties to be a total of $460,000.00. The district court refused to discharge the writ of
attachment, finding that it was valid.
Desiring to free their property from these writs, the Phillips sought an order discharging
the attachments by filing a release of attachment bond pursuant to NRS 31.190(1).
1
The
bond was executed by appellant United Pacific Insurance Company and contained the
following indemnity provision:
____________________

1
31.190 Undertaking of defendant; determination of disputed value of property; justification by
sureties.
1. On granting an order for discharge of attachment pursuant to NRS 31.180, the court or the judge
shall require an undertaking on
executed by appellant United Pacific Insurance Company and contained the following
indemnity provision:
UNITED PACIFIC INSURANCE COMPANY. . .in consideration of the release
from attachment of all of the property attached as above mentioned and the discharge of
said attachment, hereby undertake in the sum of SIX HUNDRED THOUSAND AND
00/100 ($600,000.00) Dollars, in lawful money of the United States of America, and
promises to the effect that the Defendants will pay to the Plaintiff the amount of the
judgment which may be recovered in favor of the Plaintiff in the action, or the demand
of the amended Writ of Attachment heretofore filed, whichever is less.
Noting that the bond sufficiently covered the full amount of Chism's claimed damages, the
district court then ordered the Phillips' property released.
After trial, judgment was rendered in favor of Chism for $301,503.50, plus $227,700.11 in
interest and $35,966.51 in costs, for a total of $565,170.12. Chism then brought a motion to
enforce United Pacific's bond. United Pacific opposed the motion asserting that the real estate
parcels, which were valued at $460,000.00 by the special master, were, in fact, subject to
encumbrances which placed their net value at approximately $75,000.00. Because of the
lower net value, United Pacific argued that its liability must be limited to the net value of the
property attached by the writ rather than the full amount of the demand. The district court
ordered United Pacific to pay the full amount of the judgment in accordance with the terms of
the bonds.
It is true that an error was made in determining the amount of the bond. United Pacific
urges us to place the blame for overvaluation of the property on the district court and
contends that since NRS 31.190(1) requires the court to order the proper bond, the court has
the responsibility of determining the proper conditions of the bond. United Pacific argues that
since the court master failed to determine properly the net worth of the real property, the
court erred in accepting the proffered bond for the full amount of the judgment rather
than a bond limited to the net value of the property.
____________________
behalf of the defendant, with at least two sureties, residents and freeholders, or householders, in the
county which shall be filed:
(a) To the effect, in case the value of the property or the amount of money, debts, or credits sought to
be released equals or exceeds the demand of the writ, that the defendant will pay to the plaintiff the
amount of the judgment which may be recovered in favor of the plaintiff in the action or the demand of
the writ, whichever is less; or
(b) To the effect, in case the value of the property or the amount of money, debts, or credits sought to
be released is less than the demand of the writ, that the defendant will pay the amount of money, debts or
credits, or value of the property sought to be released, in lawful money of the United States.
master failed to determine properly the net worth of the real property, the court erred in
accepting the proffered bond for the full amount of the judgment rather than a bond limited to
the net value of the property.
The district court did not order a release of the attachment bond in this case; rather, the
bond was offered by the Phillips and United Pacific as an inducement for Chism to agree to a
discharge of the writs. The bond was issued out of a private contract between the Phillips and
United Pacific rather than in response to a court order.
Through subsection (1) of the statute the legislature merely prescribes the limitations on
what type of bond the court may accept in the event that the court sees fit to order a discharge
of the writs of attachment. These limitations are: (1) in the event that the value of the attached
property is greater than the demand of the writ, the court may then accept a bond which
covers the amount of the judgment or the demand on the face of the writ, whichever is
greater, NRS 31.190(1)(a); or (2) in the event that the value of the attached property is less
than the demand of the writ, the court may accept a bond for the value of the property sought
to be released. NRS 31.190(1)(b).
[Headnote 1]
We see no language in subsection (1) of this statute which creates a duty on the part of the
court to determine which type of bond would be in the best interests of the surety. Indeed, this
subsection of the statute appears to exist solely for the protection of the plaintiff. Subsection
(1) only requires the court to ensure that a proffered bond is sufficient in amount to protect
plaintiff's claim.
[Headnotes 2, 3]
Phillips and United Pacific offered the bond under subsection (a) of NRS 31.190(1); the
bond signified a promise to pay the amount of the judgment or the demand of the amended
writ of attachment, whichever was less. Since the proffered bond fully protected Chism and
therefore was within the limitations set by NRS 31.190(1), the trial court was entirely correct
in accepting the bond without inquiring as to whether United Pacific had properly protected
its contractual interests. Thus, even if the court would have been aware of the true net value
of the parcels, it would have been under no obligation to order a bond of a lesser amount
under subsection (1) (b). It was properly within the province of the district court to assume
that Phillips and United Pacific were cognizant of the purpose and consequences of offering a
bond under subsection (1) (a).
[Headnote 4]
Although subsection (2) of NRS 31.1902 does appear to place a duty upon the court to
determine the value of property, United Pacific correctly abstained from arguing this
subsection. The duty under subsection (2) arises only if the value of the subject property is in
dispute. The record reflects that for the purposes of this bond, the value of the property was
not in dispute, and therefore subsection (2) of NRS 31.190 does not apply in this case.
United Pacific also claims that this bond is a so-called statutory bond and that under the
applicable rules of construction for such bonds, the language of the instrument should have
been construed by the court to conform to subsection (1) (b) of NRS 31.190. This would,
United Pacific argues, limit its liability to the net value of the property attached by the writ.
United Pacific relies principally on Capriotti, Lemon & Assoc., Inc. v. Johnson Service Co.,
84 Nev. 318, 440 P.2d 386 (1968).
[Headnote 5]
The Capriotti case holds that when a bond required by a statute contains language
inconsistent with the purpose of the statute, the language of the statute will be read into the
bond so as to accomplish the purpose of the statute. Capriotti, above, 84 Nev. at 321, 440
P.2d at 387. United Pacific argues that even though the language in its bond recites the
requirements of subsection (1) (a) of NRS 31.190, the court still should have read the
language of subsection (1) (b) into the bond so as to limit liability to the net value of the real
property designated in the writ. We do not agree.
Assuming, arguendo, that this kind of bond can be considered a statutory bond (we do
not decide that issue), United Pacific's argument must still fail. The pertinent language in the
bond is almost a verbatim recital of the language of subsection (1) (a) of NRS 31.1903 There
is, as United Pacific stated, no discrepancy between the language of the bond and the
language of the statute which, under the rule cited above, would have prompted the
lower court to "read" the provisions of subsection {1) {b) into the bond.
____________________

2
Subsection (2) of NRS 31.190 provides:
2. The value of the property sought to be released, if disputed, shall be determined by the court or
judge thereof, upon proof or by a sworn appraiser or sworn appraisers, not exceeding three, to be
appointed by the court or judge for that purpose.

3
The pertinent language in the bond states:
[A]nd promises to the effect that the Defendants will pay to the Plaintiff the amount of the judgment
which may be recovered in favor of the Plaintiff in the action, or the demand of the amended Writ of
Attachment heretofore filed, whichever is less.
The pertinent language of subsection (1) (a) of NRS 31.190 reads as follows:
[T]hat the defendant will pay to the plaintiff the amount of the judgment which may be recovered in favor
of the plaintiff in the action or the demand of the writ, whichever is less. . . .
between the language of the bond and the language of the statute which, under the rule cited
above, would have prompted the lower court to read the provisions of subsection (1) (b)
into the bond.
Further, as stated above, the purpose of subsection (1) of NRS 31.190 is to protect the
plaintiff's claim in lieu of the writ of attachment. The purpose of subsection (1) does not
appear to be for the protection of the surety. The language of the bond exhibits a clear intent
to pay to Chism the full amount of the demand of the writ under subsection (1) (a). This
language, therefore, needs no further construction to be consistent with the purpose of the
statute. Since no discrepancy appears between the language of the statute and the bond, and
since the purpose of NRS 31.190(1) has been fulfilled by that language, we conclude that the
rule of construction cited above does not apply to the facts of this case. See Capriotti, Lemon
& Assoc. Inc., above.
Finally, United Pacific contends that affirming the district court's order would create a
windfall in favor of Chism and that, therefore, on principles of equity, this court should
reverse that order. We disagree.
Chism ultimately proved its losses at trial. Chism also relied solely on the bond as an
inducement to agree to a discharge of the writ of attachment. The record reveals that an
identical suit in South Carolina was dismissed after the court learned that the Phillips had
posted a comprehensive bond in Nevada. We have no way of knowing the true amount of
shortfall, if any, that Chism might have incurred without the benefit of United Pacific's bond
because the value of any attachable property in South Carolina cannot be found in the record.
However, if either Chism or United Pacific must accept a loss in this case, in light of Chism's
reliance on the bond, it would seem to be more equitable for United Pacific to bear the loss,
for it is the nature of its business to allocate such risks.
After careful consideration we have determined that appellant's remaining contentions
contain no merit. We therefore affirm the order and judgment of the district court.
____________
102 Nev. 500, 500 (1986) Renaud v. 200 Convention Center Ltd.
SHERRI RENAUD, Appellant, v, 200 CONVENTION
CENTER LTD. dba FLYAWAY, Respondent.
No. 16700
December 4, 1986 728 P.2d 445
Appeal from a summary judgment. Eighth Judicial District Court, Clark County; Earle W.
White, Jr., Judge.
Patron brought personal injury action against owner of free fall simulator. The district
court granted owner's motion for summary judgment based on release signed by patron and
patron appealed. The Supreme Court held that patron's denial of appreciation of risks
associated with free fall simulator precluded determination that release barred recovery under
doctrine of assumption of risk as a matter of law.
Albert D. Massi and Allen A. Cap, Las Vegas, for Appellant.
Dickerson, Miles, Pico & Mitchell and Shirley D. Lindsey, Las Vegas, for Respondent.
Jonathan C. Reed, Las Vegas, Nevada Trial Lawyers Association, Amicus Curiae.
1. Judgment.
Party moving for summary judgment bears burden of demonstrating that judgment as a matter of law is
appropriate and all evidence must be considered in light most favorable to non-moving party.
2. Negligence.
Assumption of risk is based on theory of consent.
3. Negligence.
Essential element of defense of assumption of risk is actual knowledge of danger assumed.
4. Judgment.
Patron's denial of appreciation of risks associated with free fall simulator created genuine issue of
material fact as to whether liability release form which purported to exculpate owner from any liability for
negligence while patron was on the premises precluded her recovery under the doctrine of assumption of
risk.
5. Negligence.
Considerations in ruling on whether release signed by patron precludes recovery for subsequent injuries
under the doctrine of assumption of risk are the nature and extent of the injuries, haste or lack thereof with
which release is obtained, and understandings and expectations of parties at time of signing.
OPINION
Per Curiam:
Sherri Renaud filed a negligence claim against Flyaway for injuries she sustained while
utilizing its free-fall simulator.
injuries she sustained while utilizing its free-fall simulator. Flyaway had required that Ms.
Renaud sign a liability release form. The release purported to exculpate Flyaway of any
liability for negligence that might occur while Ms. Renaud was on its premises. A motion for
summary judgment was brought by Flyaway for the sole purpose of determining the validity
of the signed release. The district court granted the motion, thereby barring further
prosecution of the lawsuit. Because we agree with Ms. Renaud that genuine issues of fact
exist, the order of the district court granting summary judgment in favor of Flyaway is
reversed.
Discussion
[Headnote 1]
It is well established that summary judgment is appropriate only where it is quite clear
what the truth is, and where no genuine issue remains for trial. In re Hilton Hotel, 101 Nev.
489, 492, 706 P.2d 137, 138 (1985). The moving party bears the burden of demonstrating that
judgment as a matter of law is appropriate. Id. Additionally, upon review, all evidence is
considered in a light most favorable to the non-moving party. Id.
Here, Flyaway (in its motion for summary judgment) successfully urged the trial court to
accept the signed release as conclusive evidence that Ms. Renaud relieved Flyaway of
liability for any injuries that she might sustain while utilizing the free-fall simulator. The
determination that the release was valid indicated that Ms. Renaud assumed the risk of the
injuries that she sustained. We do not agree that the release itself was sufficient to establish
such a fact as a matter of law.
[Headnotes 2, 3]
Assumption of the risk is based on a theory of consent. In Sierra Pacific v. Anderson, 77
Nev. 68, 358 P.2d 892 (1961), this court asserted that in order for a litigant to have assumed
the risk, two requirements must be met. First, there must have been voluntary exposure to the
danger. Second, there must have been actual knowledge of the risk assumed. Id. at 73, 358
P.2d at 894. A risk can be said to have been voluntarily assumed by a person only if it was
known to him and he fully appreciated the danger. Id. at 71-72, 358 P.2d at 894, quoting
Papagni v. Purdue, 74 Nev. 32, 35, 321 P.2d 252, 253 (1958). As elucidated in Sierra, the
essential element of the defense is the actual knowledge of the danger assumed. 77 Nev. at
71, 358 P.2d at 894.
[Headnotes 4, 5]
Ms. Renaud denied appreciation of the risks associated with the free-fall simulator.
Because actual knowledge of the risks assumed is an essential element of this defense, such a
matter must be reserved for the fact finder.
must be reserved for the fact finder. It is necessary to evaluate all the circumstances as they
existed at the time the release was obtained. Considerations should include (but are not
limited to) the following: the nature and extent of the injuries, the haste or lack thereof with
which the release was obtained, and the understandings and expectations of the parties at the
time of signing.
Thus, because there was a dispute as to whether Ms. Renaud knowingly and voluntarily
assumed the risks associated with the simulator, the matter was not appropriate for a
determination as a matter of law. E.g., Pacific Pools Constr. v. McClain's Concrete, 101 Nev.
557, 706 P.2d at 849 (1985). See also O'Connell v. Walt Disney World Co., 413 So.2d 444
(Fla.Dist.Ct.App. 1982) (a signed liability waiver was deemed not sufficient as a matter of
law to show that appellant subjectively understood the risks inherent in horseback riding and
actually intended to assume those risks). Here, it is necessary for the fact finder to hear
testimony and assess credibility. Accordingly, we reverse the ruling of the district court and
remand the case for further proceedings consistent with this opinion. In light of our
disposition, we decline to reach the other contentions raised on appeal.
____________
102 Nev. 502, 502 (1986) Maxwell v. Allstate Ins. Co.
ROGER MAXWELL and FARMERS INSURANCE EXCHANGE, Appellants v.
ALLSTATE INSURANCE COMPANIES, Respondent.
No. 16765
December 4, 1986 728 P. 812
Appeal from an order of the district court granting respondent's cross-motion for summary
judgment. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Appeal was taken from order of the district court which upheld subrogation rights of
injured motorist insurer for medical payments made under policy. The Supreme Court held
that subrogation clause for medical payments paid under insured's automobile policy is void
as violative of public policy.
Reversed.
J. Bruce Alverson and Eric Taylor, Las Vegas, for Appellants.
Rawlings, Olson & Cannon and Patrick J. Murphy, Las Vegas, for Respondent.
J. R. Crockett, Las Vegas, for Amicus Curiae.
Insurance.
Subrogation clause under which automobile insurer obtains subrogation rights from its insured for
medical payments violates public policy.
OPINION
Per Curiam:
The sole issue on appeal is whether an insurer's subrogation clause for medical payments
paid under an insured's automobile insurance policy is void as violative of public policy. We
hold that a subrogation clause under which the insurer obtains subrogation rights from its
insured for medical payments violates public policy. Accordingly, we reverse.
THE FACTS
Jimmie Brown and appellant Roger L. Maxwell were in an automobile accident. Brown
was injured. Maxwell was liable for Brown's injuries. Respondent Allstate Insurance
Companies was Brown's insurer. Appellant Farmers Insurance Exchange was Maxwell's
insurer.
Brown's automobile insurance policy included coverage for Brown's medical expenses for
injuries sustained in an automobile accident. Allstate paid Brown's medical claims. Brown's
policy included a medical payments subrogation clause which provided that upon Allstate's
payment under the policy Allstate shall be subrogated to the extent of such payment to all of
the insured's rights of recovery.
Allstate notified Farmers of its subrogation interest on Brown's medical payments.
Subsequent to this notification, Farmers entered into a settlement with Brown and obtained a
release stating that it was released of any and all claims resulting from property damage and
personal injury to Brown. Allstate was not paid any monies under its alleged subrogation
right. Allstate brought the instant action asserting that it was entitled to subrogation to the
extend of the medical payments it had made under Brown's policy provision. Both parties
filed motions for summary judgments. The district court granted Allstate's cross-motion for
summary judgment.
THE LAW
On appeal, Farmers contends that the medical payments subrogation clause in automobile
insurance policies contravenes public policy and is therefore void. We have previously
considered this type of subrogation clause in Davenport v. State Farm Mutual Automobile
Company, 81 Nev. 361, 404 P.2d 10 (1965). Our decision in that case rested upon the
statutory interpretation of NRS 41.100 which was subsequently amended.
NRS 41.100 which was subsequently amended. We did not reach the issue of whether such a
clause violated public policy. Therefore, Davenport is not controlling.
In 1967 in response to this court's decision in Davenport the legislature amended NRS
41.100 to prohibit the subrogation of medical payments by insurance companies.
1
In 1969
the legislature further amended NRS 41.100 to preclude an insurance company from requiring
the insured to execute a trust or loan receipt in favor of the insurer prior to receiving medical
payments under his insurance policy.
2

In 1979 the legislature consolidated and amended the statutory provisions relating to civil
actions for wrongful death. These statutory amendments included the amendment of NRS
41.100.
____________________

1
In 1965 when the court rendered the Davenport decision NRS 41.100 provided:
1. Causes of action, whether suit has been brought upon the same or not, in favor of the injured party
for personal injuries other than those resulting in death, whether such injuries be to the health or to the
reputation or to the person of the injured party, shall not abate by reason of his death nor by reason of the
death of the person against whom such cause of action shall have accrued; but in the case of the death of
either or both, such cause of action shall survive to and in favor of the heirs and legal representatives of
such injured party and against the person, receiver or corporation liable for such injuries; and his or its
legal representatives; and so surviving such cause of action may be hereafter prosecuted in like manner
and with like legal effect as would a cause of action for injuries to or destruction of personal property.
2. The court or jury in every such action may give such damages, pecuniary and exemplary, as it shall
deem fair and just. Every person entitled to maintain such action, and every person for whose benefit
such action is brought, may prove his respective damages, and the court or jury may award such person
that amount of damages to which it considers such person entitled, including damages for losses of
probable future companionship, society and comfort.
In 1967 the legislature amended NRS 41.100 to add NRS 41.100(3) which provided:
3. Nothing in this section shall be construed to make such causes of action assignable.

2
In 1969 the legislature amended NRS 41.100(3) and added NRS 41.100(4) which provided:
(3) Nothing in this section shall be construed to make such causes of action assignable, nor may an
insurer obtain a trust or loan receipt from an insured prior to making medical payments to the insured
under an insurance policy.
(4) The provisions of this section shall not prevent subrogation suits under the terms and conditions of
an uninsured motorists' provision of an insurance policy.
Specifically the legislature deleted former NRS 41.100(3).
3
The legislative history pertaining
to this particular amendment is silent as to any legislative policy concerns which may or may
not have served as the basis for the amendment. Assuming, without deciding, that a medical
payments subrogation clause would now be statutorily permissible, we consider whether the
subrogation clause violates public policy.
When insurance companies began to incorporate a medical payments subrogation clause in
automobile insurance policies, opposition to the inclusion was primarily based upon the
contention that the subrogation clause was an attempt to assign a personal injury claim which
the common law prohibited. See Higgins v. Allied American Mutual Fire Ins. Co., 237 A.2d
471 (D.C.App. 1968). Courts' reasoning and response to this argument are varied and diverse.
Id.; see also Allstate Insurance Company v. Reitler, 628 P.2d 667 (Mont. 1981); Rinehart v.
Farm Bureau Mut. Ins. Co. of Idaho, Inc., 524 P.2d 1343 (Idaho 1974). We need not consider
the characterization of this type of an assignment. Whether the subrogation clause is viewed
as an assignment of a cause of action or as an equitable lien on the proceeds of any
settlement, the effect is to assign a part of the insured's right to recover against a third-party
tortfeasor. Reitler, 628 P.2d at 670. We hold such an assignment is invalid. We are cognizant
that in so doing we join a minority of jurisdictions so holding. See Reitler, 628 P.2d at
668-670.
____________________

3
NRS 41.100 now provides:
1. Except as provided in this section, no cause of action is lost by reason of the death of any person,
but may be maintained by or against his executor or administrator.
2. In an action against an executor or administrator, any damages may be awarded which would have
been recovered against the decendent if he lived, except damages awardable under NRS 42.010 or other
damages imposed primarily for the sake of example or to punish the defendant.
3. Except as provided in this subsection, when a person who has a cause of action dies before
judgment, the damages recoverable by his executor or administrator include all losses or damages which
the decedent incurred or sustained before his death, including any penalties or punitive and exemplary
damages which the decedent would have recovered if he had lived, and damages for pain, suffering or
disfigurement and loss of probable support, companionship, society, comfort and consortium. This
subsection does not apply to the cause of action of a decedent brought by his personal representatives for
his wrongful death.
4. This section does not prevent subrogation suits under the terms and conditions of an uninsured
motorists' provision of an insurance policy.
In the context of automobile insurance, we have consistently upheld the fundamental
principle that an insured is entitled to receive the insurance benefits for which he has paid a
premium. See Mid-Century Ins. Co. v. Daniel, 101 Nev. 433, 705 P.2d 156 (1985); Neumann
v. Standard Fire Ins., 101 Nev. 206, 699 P.2d 101 (1985); Sullivan v. Dairyland Insurance
Co., 98 Nev. 364, 649 P.2d 1357 (1982); Allstate Insurance Co. v. Maglish, 94 Nev. 699, 586
P.2d 313 (1978).
4
Therefore, we conclude that it violates public policy to allow an insurer to
collect a premium for certain coverage and then allow the insurer to subrogate its interest and
deny the insured his benefits. Precluding the subrogation of the insurer does not result in a
double recovery for the insured because the insured is merely receiving the benefits for which
he has already paid. Reitler, 628 P.2d at 670. Allowing subrogation deprives the insured of
the coverage for which he had paid and results in a windfall recovery for the insurer. As the
court in Allstate Ins. Co. v. Druke, 576 P.2d 489, 492 (Ariz. 1978) stated, the only
justification for allowing subrogation for medical payments would be the lowering of
premium rates as a result of such recoupment which is generally not the case:
Subrogation is a windfall to the insurer. It plays no part in the rate schedules (or only a
minor one), and no reduction is made in insuring interests . . . where the subrogation
right will obviously be worth something. Patterson, Essentials of Insurance Law
151-152 (2d ed. 1957). See also 2 Richards, Law of Insurance, 183 (5th Ed. 1952)
and DeCespedes v. Prudence Mut. Cas. Co. of Chicago, Ill., 193 So.2d 224, 227-28 (3d
D.C.A.Fla. 1966), aff'd 202 So.2d 561 (Fla. 1967).
Other public policy rationales preclude an insurer's subrogation of medical payments. The
injured person must bear the total costs of the suit including attorney fees. Yet under a
subrogation clause the insurer collects 100 percent of the payments made with no
corresponding obligation for expenses. Reitler, 628 P.2d at 670.
Further, the injured person may be unable to fully recover his actual damages. The injured
person often must compromise his claim, either because of liability problems or because of
limited coverage carried by the tortfeasor. Reitler, 628 P.2d at 670. The injured person's
medical expense insurance coverage may not provide full indemnity. Druke, 576 P.2d at 491.
The injured person suffers out-of-pocket losses, such as loss of income or earning power
and the costs of asserting the claim and noneconomic losses such as physical pain and
mental anguish which are often not monetarily indemnifiable. Id. Yet under a subrogation
clause the plaintiff's insurer is assured full reimbursement for its medical expense
payments regardless of whether the injured person's tort recovery fully covers his actual
damages. Id.; Reitler, 62S P.2d at 670.
____________________

4
We note that Maglish, supra, has been superseded by statute as stated in Newmann, supra. Nonetheless, the
fundamental policy principle expressed in that opinion remains valid.
earning power and the costs of asserting the claim and noneconomic losses such as physical
pain and mental anguish which are often not monetarily indemnifiable. Id. Yet under a
subrogation clause the plaintiff's insurer is assured full reimbursement for its medical expense
payments regardless of whether the injured person's tort recovery fully covers his actual
damages. Id.; Reitler, 628 P.2d at 670. Thus, if an insurer were permitted to assert a
subrogation right the injured person may recover neither his actual damages nor the benefit of
the premiums he has paid.
Finally, the tortfeasor's carrier may consider that as the injured person has already been
paid medical expenses his offer can be reduced proprotionate to the payment that has already
been made. Reitler, 628 P.2d at 670. If subrogation were permitted, the injured person may
recover nothing for medical expenses. Id.
Accordingly, we hold that an insurer's medical payments subrogation clause in an
automobile insurance policy contravenes public policy and is void. We therefore reverse the
decision of the district court and direct that summary judgment be entered in favor of
appellants.
____________
102 Nev. 507, 507 (1986) Humana, Inc. v. Nguyen
HUMANA, INC., a Foreign Corporation, dba SUNRISE HOSPITAL, Appellant, v. VAN
NGUYEN, an Individual, and POMERANZ, CROCKETT & MYERS, a Partnership,
Respondents.
No. 16992
December 4, 1986 728 P.2d 816
Appeal from denial, by summary judgment, of interest and attorney's fees. Eighth Judicial
District Court, Clark County; Miriam Shearing, Judge.
The district court entered summary judgment allowing hospital to foreclose its statutory
lien on patient's insurance settlement, but denied attorney's fees and prejudgment and
post-judgment interest. Hospital appealed. The Supreme Court held that: (1) hospital was
entitled to award of attorney's fees, even though its lien was asserted as compulsory
counterclaim; (2) hospital was entitled to prejudgment and post-judgment interest, as patient's
indebtedness to hospital was contractual in nature, and there was no agreement with respect
to interest; and (3) hospital was not entitled to attorney's fees incurred on appeal.
Reversed and remanded with directions.
Lionel, Sawyer & Collins and Anthony N. Cabot, Las Vegas, for Appellant.
Lorraine J. Mansfield, Crockett & Myers, Las Vegas, for Respondents.
1. Hospitals.
Award of reasonable attorney's fees is mandatory in any action brought to foreclose on hospital lien, upon
entry of decree in hospital's favor. NRS 108.660, subd. 2.
2. Hospitals.
Hospital which prevailed on compulsory counterclaim to enforce lien on insurance settlement was
entitled to attorney's fees pursuant to hospital lien statute. NRS 108.660, subd. 2.
3. Hospitals.
Fact that hospital was tardy in notifying patient's insurer of its claim did not affect hospital's entitlement
to attorney's fees, as such tardiness only left hospital's lien unperfected, not void, and existence of lien on
insurance settlement did not depend on notice to insurer. NRS 108.590.
4. Stipulations.
Alleged agreement by hospital to waive interest and fees in action to enforce lien on insurance settlement
could not be considered by trial court, as agreement was not reduced to signed writing or entered by
consent as order as required by procedural rule. DCR 16; EDCR 7.50.
5. Interest.
Hospital was entitled to prejudgment and post-judgment interest for debts owed by patient, as the
patient's indebtedness to hospital was contractual in nature, and there was no agreement with respect to
interest. NRS 17.130, subd. 2, 99.040.
6. Hospitals.
Hospital was not entitled to award of attorney's fees incurred in appeal of judgment enforcing hospital
lien on insurance settlement. NRS 108.660, subd. 2.
OPINION
Per Curiam:
Respondent Van Nguyen received treatment at Sunrise Hospital for injuries sustained in a
traffic accident. Several years have passed; Nguyen obtained an insurance settlement long
ago. Yet he has carried on protracted litigation, including an earlier appeal which this court
dismissed, while delaying payment of more than forty thousand dollars in hospital bills. In
September, 1985, the trial court entered summary judgment allowing Sunrise to foreclose its
statutory lien on the insurance settlement. The court also awarded costs, but denied attorney's
fees and both prejudgment and post-judgment interest. Sunrise appeals from the adverse
portions of the summary judgment. Because Sunrise has a clear statutory entitlement to the
relief denied, we reverse and remand with directions to award reasonable attorney's fees and
interest as provided by law.
I. ATTORNEY'S FEES
[Headnote 1]
An award of reasonable attorney's fees is mandatory in any action brought to foreclose a
hospital lien, upon entry of a decree in the hospital's favor.
action brought to foreclose a hospital lien, upon entry of a decree in the hospital's favor. NRS
108.660(2). This statute is dispositive, despite respondents' arguments to the contrary.
[Headnote 2]
First, there is no merit to respondents' contention that since Nguyen was the first to sue
(for a declaratory judgment reducing the amount of the hospital's lien), no action was brought
pursuant to the hospital lien statute. This court declines to transform the enforcement of
hospital liens into a race to court; we join neighboring states in holding that, for the purpose
of awarding attorney's fees, a compulsory counterclaim qualifies as an action under the
statute. See McKinney v. Kirkness, 692 P.2d 384 (IdahoCt.App. 1984); Petty Inv. Co. v.
Miller, 576 P.2d 883 (Utah 1978).
1

[Headnote 3]
Second, Sunrise's admitted tardiness in notifying the patient's insurer of its claim left the
lien at most unperfected, see NRS 108.610(2), (3), not void. The existence, per se, of the lien
does not depend on notice to others, see NRS 108.590; the doctrine of perfection relates to
the enforceability of the lien against third parties, see NRS 108.650.
[Headnote 4]
Third, respondents obtain no advantage from their allegation that Sunrise expressly agreed
to waive interest and fees; assuming arguendo that there was an actual agreement, it was
neither reduced to a signed writing nor entered by consent as an order, so the trial court could
not properly have considered it. DCR 16; Eighth Jud. Dist., DCR 7.50. Respondents' disputed
allegations of reliance and partial performance do not cure this defect; we deal not with a
question of estoppel or the Statute of Frauds, but with a procedural rule applicable even to
legally enforceable agreements. See Resnick v. Valente, 97 Nev. 615, 637 P.d 1205 (1981);
Casentini v. Hines, 97 Nev. 186, 625 P.2d 1174 (1981).
2

Since the entitlement to fees is clear, a remand is necessary.
3
II.
____________________

1
Respondents argue that our decision in Campbell v. Nocilla, 101 Nev. 9, 692 P.2d 491 (1985), holds to the
contrary. We see no similarity between Campbell and the present appeal.

2
Respondents also attempt to charge appellant with alleging a known falsehood in the pleadings below.
However, such allegations are beyond the scope of this appeal. Further, appellants' defense to respondents'
accusation is of record; the trial court imposed no sanctions, and we perceive no abuse of discretion.

3
Respondents' claim that the hospital has not proven the necessity or reasonableness of its attorney's fees is
misdirected; the hearing on that issue has yet to be held.
II. INTEREST
[Headnote 5]
Nguyen's indebtedness to the hospital is contractual in nature, and the record discloses no
cognizable agreement with respect to interest. Therefore, Sunrise was entitled to both
prejudgment and post-judgment interest. NRS 99.040; NRS 17.130(2). Respondents'
arguments to the contrary are the same which we have just dismissed; the denial of interest
was unjustified.
[Headnote 6]
Summary judgment is reversed to the extent that it denied the hospital's requests for
interest and attorney's fees; the cause is remanded with directions to award prejudgment and
post-judgment interest and all reasonable attorney's fees incurred in obtaining the summary
judgment granting foreclosure.
4

____________________

4
Sunrise also desires an award for its additional attorney's fees incurred in this appeal. However, Sunrise
cites no authority allowing such an award. The hospital lien statute requires only an award of those fees incurred
up to the time of judgment; post-judgment attorney's fees are not within its scope. See NRS 108.660(2).
____________
102 Nev. 510, 510 (1986) Houston Exploration v. Meredith
HOUSTON EXPLORATION INCORPORATED, Appellant, v. T. K. MEREDITH,
Individually; T. K. MEREDITH, dba MEREDITH STEEL CONSTRUCTION,
Respondents.
No. 17091
December 4, 1986 728 P.2d 437
Appeal from order denying plaintiff a new trial or additur on the issue of damages. Second
Judicial District Court, Washoe County; William N. Forman, Judge.
Purchaser of equipment appealed from order of the district court which denied its motion
for new trial or additur on issue of damages in action arising out of purchase of allegedly
defective equipment. The Supreme Court held that expert should have been permitted to
testify as to lost profits for plaintiff's new business venture.
Reversed and remanded for new trial on damages.
Henderson & Nelson and James M. Walsh, Reno, for Appellant.
Woodburn, Wedge, Blakey & Jeppson, and W. Chris Wicker, Reno, for Respondents.
1. Damages.
Existence and extent of lost profits to new venture is a matter of evidentiary weight, not admissibility.
2. Evidence.
Testimony of expert concerning profits lost by new venture as result of allegedly defective product
should not have been excluded as too speculative.
OPINION
Per Curiam:
This action arose from a contract to sell equipment to a mining venture commenced by
Houston in Spring Valley near Lovelock, Nevada. Houston purchased a trommel
1
from
Meredith to process ores from its mining claim. The trommel allegedly did not perform up to
Houston's expectation.
Houston brought this action seeking damages for breach of warranty and conversion.
Houston also alleged that Meredith defectively manufactured the trommel it sold to Houston.
Meredith subsequently repossessed some of the equipment when Houston refused to pay the
sales price specified in the contract.
The trial culminated in a jury verdict in Houston's favor for $65,000.00 in compensatory
damages and $40,000.00 in punitive damages. Thereafter, motion was made for judgment
notwithstanding the verdict or new trial. The district court granted a new trial on the issue of
damages only.
The case was retried by a new jury on the issue of damages. During the trial, expert
testimony was offered on behalf of Houston regarding lost profits on Houston's new mining
venture due to the failure of equipment provided by Meredith. This testimony was excluded
by the trial court as speculative. The jury verdict awarded no damages to Houston.
Houston moved alternatively for a new trial on the issue of damages or additur, based
upon the exclusion of evidence of lost profits. He also challenged the ruling of the district
court in allowing Meredith's mining expert, Ingle, to testify when his identity had not been
disclosed through the discovery process. Houston's motion was denied and the instant appeal
followed.
The history of Nevada's law concerning the recovery of lost profits for a new business
venture reflects an evolution consistent with an increasing sophistication in economic
forecasting.
____________________

1
A trommel is a cylindrical device. Unprocessed ore is introduced into a solid end, called the scrubber, where
the ore is rotated and washed to remove heavy minerals (including gold and gold-bearing particles) from other
material. The device is sloped downward so the water and ore travel toward the opposite end as the trommel
rotates. The washed materials go through a section of the cylinder, called a screening section, which is
perforated. The holes allow small, heavy gold-bearing particles to be collected for further separation and
processing. The remainder of the material exits the trommel onto a conveyor belt for delivery to the waste or
tailings pile.
profits for a new business venture reflects an evolution consistent with an increasing
sophistication in economic forecasting. In Knier v. Azores Constr. Co., 78 Nev. 20, 368 P.2d
673 (1962), a case involving lost profits in a new hotel venture, this court held that when a
loss of anticipated profits is claimed as an element of damage, the business claimed to have
been interrupted must be an established one and it must be shown that it has been
successfully conducted for such a length of time and has such a trade established that the
profits therefrom are reasonably ascertainable. Id. at 24, 368 P.2d at 675.
In Hughes v. Hobson, 92 Nev. 683, 558 P.2d 543 (1976), this court stated that damages
based on the prospective profits of a new business venture are too uncertain and speculative
to form a basis for recovery. Id. at 684, 558 P.2d at 544.
The reasonable certainty standard mentioned in Knier has been utilized to allow recovery
of lost profits in new business ventures in jurisdictions surrounding Nevada. See, e. g., Guard
v. P & R Enterprises, Inc., 631 P.2d 1068 (Alaska 1981); International Technical Instruments,
Inc. v. Engineering Measurements Co., 678 P.2d 558 (Colo.Ct.App. 1983); Cope v. Vermeer
Sales and Service of Colorado, 650 P.2d 1307 (Colo.Ct.App. 1982); Young v. Scott, 700 P.2d
128 (IdahoCt.App. 1985); Galindo v. Hibbard, 678 P.2d 94 (IdahoCt.App. 1984); Western
Energy, Inc. v. Georgia Pacific Corp., 637 P.2d 223 (Or.Ct.App. 1981); Welch v. U.S.
Bancorp. Realty & Mortgage, 596 P.2d 947 (Or. 1979); Acculog, Inc. v. Peterson, 692 P.2d
728 (Utah 1984); Cook Ass'n, Inc. v. Warnick, 664 P.2d 1161 (Utah 1983); Wyoming
Bancorporation v. Bonham, 563 P.2d 1382 (Wyo. 1982).
We had occasion to clarify our holding in Knier, supra, in the later case of Bader v. Cerri,
96 Nev. 352, 609 P.2d 314 (1980), in which this court commented as follows:
[W]e held the Stage Coach Motel, a new business enterprise, could not claim as
damages, the loss of prospective profits since such a claim would necessarily rest upon
speculation and uncertainty. Bader argues that the Knier opinion precludes the award of
$18,270 resulting from the conversion of the cattle. The pronouncement of Knier does
not apply if evidence is received from which a jury reasonably could ascertain lost
profits.
Id. at 358, 609 P.2d at 318.
[Headnote 1]
While Bader was not a case dealing with lost profits on a new venture, it clearly portrayed,
as evidenced by the above quotation, this court's view concerning the recovery of lost profits
by an aggrieved new business where evidence is adduced enabling a trier of fact to ascertain
the extent of the loss with reasonable certainty.
trier of fact to ascertain the extent of the loss with reasonable certainty. The existence and
extent of lost profits thus become issues of evidentiary weight instead of admissibility. El
Ranco, Inc. v. First Nat'l Bank, 406 F.2d 1205 (9th Cir. 1968).
[Headnote 2]
The trial court disallowed the testimony of Houston's expert witness on categorical
grounds that lost profits for a new business venture were too speculative. This was error.
Assuming, as we must from the record, that the witness was properly qualified as an expert,
the proffered testimony should have been admitted. It was for the jury to determine the weight
to be assigned such testimony. As it was, the jury was given no evidentiary basis for
considering Houston's claim for lost profits resulting for Meredith's failure to provide a
trommel free of defect.
We have considered Houston's other specification of error concerning the admissibility of
the limited testimony of Meredith's witness, Ingle, and conclude that it is without merit. See
NRCP 61.
The order of the district court denying Houston's motion for a new trial is reversed and the
case is remanded for a new trial on the issue of damages.
____________
102 Nev. 513, 513 (1986) MGM Grand Hotel v. Insley
MGM GRAND HOTEL-RENO, INC., Appellant, v.
IVAN INSLEY, Respondent.
No. 16807
December 4, 1986 728 P.2d 821
Appeal from the denial of a motion to compel arbitration. Second Judicial District Court,
Washoe County; Charles M. McGee, Judge.
Worker, whose industrial accident claim had been denied, brought action alleging conduct
of employer and corporation employer had contracted with for administration of injury claims
arising under worker's compensation statutes breached implied covenant of good faith and
fair dealing of contract of employment, retaliatory discharge, intentional infliction of
emotional distress, and conspiracy to deprive him of his industrial insurance benefits.
Employer moved to compel arbitration. The district court denied motion to compel
arbitration. Employer appealed. The Supreme Court held that: (1) allegation that collective
bargaining agreement contained implied covenant of good faith and fair dealing entitling
worker to be dealt with in good faith by employer and corporation contracted to handle
injury claims was preempted by federal Labor Management Relations Act; {2) issue of
whether worker was entitled to be dealt with in good faith by employer and claims
administrator for payment of claim benefits was not preempted by LMRA, nor were claims
that worker was fired in retaliation for appealing denial of his industrial accident claim,
that emotional distress was intentionally inflicted upon worker, or that conspiracy existed
between employer and claims administrator to deprive worker of industrial insurance
benefits; and {3) worker was not required to resolve claims which were not preempted by
LMRA through arbitration under collective bargaining agreement.
employer and corporation contracted to handle injury claims was preempted by federal Labor
Management Relations Act; (2) issue of whether worker was entitled to be dealt with in good
faith by employer and claims administrator for payment of claim benefits was not preempted
by LMRA, nor were claims that worker was fired in retaliation for appealing denial of his
industrial accident claim, that emotional distress was intentionally inflicted upon worker, or
that conspiracy existed between employer and claims administrator to deprive worker of
industrial insurance benefits; and (3) worker was not required to resolve claims which were
not preempted by LMRA through arbitration under collective bargaining agreement.
McDonald, Carano, Wilson, Bergin, Frankovich & Hicks, Reno, for Appellant.
Riley M. Beckett and George McNally, Carson City, for Respondent.
1. States.
Suit in state court alleging violation of provision of labor contract would be preempted by Labor
Management Relations Act and resolved by federal labor law. Labor Management Relations Act, 1947,
301, 29 U.S.C.A. 185.
2. States.
Tort action brought in state court which would require court to interpret meaning or scope of term in
employment contract would be preempted by Labor Management Relations Act and resolved by federal
labor law. Labor Management Relations Act, 1947, 301, 29 U.S.C.A. 185.
3. States.
Labor Management Relations Act does not necessarily preempt every state law claim asserting right that
relates in some way to provision in collective bargaining agreement, or that relates more generally to
parties to such agreement. Labor Management Relations Act, 1947, 301, 29 U.S.C.A. 185.
4. States.
Congress did not intend by Labor Management Relations Act to disturb state laws in existence that set
minimum labor standards, but were unrelated in any way to processes of bargaining or self-organization.
Labor Management Relations Act, 1947, 301, 29 U.S.C.A. 185.
Obligation to pay worker's compensation benefits and right to receive them exists as matter of statute
independent of any right established by contract. NRS 616.010 et seq., 617.010 et seq.
6. Torts.
Tortious conduct arising out of relationship of employer, which was self-insurer, and corporation
employer had contracted with for administration of injury claims arising under worker's compensation
statutes pursuant to agreement that was independent of collective bargaining agreement was matter
of state rather than federal law. Labor Management Relations Act, 1947, 301, 29
U.S.C.A. 1S5; NRS 616.010 et seq., 617.010 et seq.
agreement was matter of state rather than federal law. Labor Management Relations Act, 1947, 301, 29
U.S.C.A. 185; NRS 616.010 et seq., 617.010 et seq.
7. States.
Worker's allegation that collective bargaining agreement contained implied covenant of good faith and
fair dealing which entitled him to be dealt with in good faith by employer, which was self-insurer, and
corporation employer had contracted with for administration of all injury claims arising under worker's
compensation statutes would require court to interpret terms of labor contract, and that claim was therefore
preempted by federal Labor Management Relations Act, with state courts being deprived of jurisdiction to
decide that claim. Labor Management Relations Act, 1947, 301, 29 U.S.C.A. 185.
8. States.
Issue of whether worker was entitled to be dealt with in good faith by employer, which was self-insurer,
and corporation employer had contracted with for administration of injury claims arising under worker's
compensation statutes, with respect to payment of worker's compensation benefits, was question which
could be heard by state court without looking to employment contract or federal law, and was therefore not
preempted by Labor Management Relations Act, even though worker was subject to collective bargaining
agreement. Labor Management Relations Act, 1947, 301, 29 U.S.C.A. 185.
9. States.
Worker's claim that he was fired in retaliation for appealing denial of his industrial accident claim arose
from nonnegotiable benefits provided by state law independent of any right or remedy established by
employment contract, and state tort action for retaliatory discharge was thus not preempted by Labor
Management Relations Act; declining to follow Vantine v. Elkhart Brass Mfg. Co., Inc., 762 F.2d 511 (7th
Cir.); Johnson v. Hussman Corp., 610 F.Supp. 757 (E.D.Mo.); Lingle v. Norge Div. of Magic Chef, Inc.,
618 F.Supp. 1448 (S.D.Ill.). Labor Management Relations Act, 1947, 301, 29 U.S.C.A. 185.
10. States.
Worker's cause of action for intentional infliction of emotional distress, based on occurrences related to
his industrial accident claim, was not preempted by Labor Management Relations Act, Labor Management
Relations Act, 1947, 301, 29 U.S.C.A. 185.
11. States.
Alleged conspiracy between employer, which was self-insurer, and corporation employer had contracted
with for administration of injury claims arising under worker's compensation statutes to deprive worker of
industrial insurance benefits was not preempted by Labor Management Relations Act, where relationship
between employer and corporation existed independently of and was not affected by any collective
bargaining agreement. Labor Management Relations Act, 1947, 301, 29 U.S.C.A. 185.
OPINION
Per Curiam:
Respondent Ivan Insley (Insley), a stage technician employed by appellant MGM Grand
Hotel-Reno, Inc. (MGM), was injured while at work on March 16, 1984. He notified his
supervisor and was taken to Washoe Medical emergency room.
was taken to Washoe Medical emergency room. He was released with instructions to remain
off work for three days and to schedule an appointment with a private physician. On March
20, 1984, the injury was diagnosed as an umbilical hernia requiring surgical repair. On March
27, 1984, Insley sought a second opinion and was referred by MGM to Dr. Ramos who
confirmed the need for surgery within the next few weeks. SIS Services, Inc., the claims
administrator for MGM, determined that an umbilical hernia was not a compensable
industrial injury and denied coverage. Insley filed an appeal with the Nevada Department of
Administration. After a hearing on July 3, 1984, MGM was ordered by the hearing officer to
accept Insley's claim for benefits.
1

Insley underwent surgery on April 10, 1984. That same day MGM sent Insley a letter
notifying him that he had been discharged under a provision in the collective bargaining
agreement for failing to report for work without a satisfactory excuse for his absence. MGM
also denied medical coverage under the company's group health insurance. Insley claimed that
he had kept MGM advised of his medical status.
As a member of the International Alliance of Theatrical Stage Employees and Moving
Pictures Machine Operators of the United States and Canada, Local Union No. 363, Insley
was subject to the collective bargaining agreement between the union and MGM. The
collective bargaining agreement provided a three-step arbitration procedure as the exclusive
procedure for resolving grievances arising between MGM and its employees or the union.
Insley, however, alleged that he had been discharged from his employment by MGM in
retaliation for appealing the denial of his claim for industrial insurance benefits. Instead of
submitting to arbitration, Insley filed a complaint with the district court alleging four causes
of action: (1) that the conduct of MGM and SIS Services breached an implied covenant of
good faith and fair dealing of the contract of employment; (2) retaliatory discharge; (3)
intentional infliction of emotional distress; and (4) conspiracy to deprive him of his industrial
insurance benefits.
In response, MGM filed a motion to compel arbitration as mandated by federal law and the
collective bargaining agreement. The district court held that the bargaining agreement did not
reach the claims brought by the plaintiff and denied the motion to compel arbitration. MGM
appeals.
2
DISCUSSION
DISCUSSION
____________________

1
According to MGM, Insley has been paid all the benefits due him pursuant to the order of the hearing
officer. Insley does not deny this allegation.

2
1. An appeal may be taken from:
(a) An order denying an application to compel arbitration made under NRS 38.045. . . .
DISCUSSION
MGM contends that Insley's state law tort claims are preempted as a matter of federal law
and must be resolved by arbitration because they fall within the ambit of the collective
bargaining agreement.
3
Insley counters that his state law action falls within a recognized
exception to the preemption doctrine and that he is not required to arbitrate his claims under
the collective bargaining agreement. It is necessary for us to determine whether Insley's tort
claims merely allege a violation of the labor contract and are preempted by federal law or
whether his claims exist independently of the labor agreement and are properly within the
jurisdiction of the state court.
[Headnotes 1, 2]
A suit in state court alleging a violation of a provision of a labor contract would be
preempted by Section 301 of the Labor Management Relations Act (LMRA) and resolved by
federal labor law.
4
A tort action brought in state court which would require the court to
interpret the meaning or scope of a term in the employment contract would also be
preempted. Allis Chalmers v. Lueck, 471 U.S. 202 (1985).
. . . state-law rights and obligations that do not exist independently of private agreements,
and that as a result can be waived or altered by agreement of private parties, are preempted by
those agreements. Id. at 213. We must focus on whether Insley's tort actions confer
nonnegotiable state-law rights on employers or employees independent of any right
established by contract, or, instead, whether evaluation of the tort claim is inextricably
intertwined with consideration of the terms of the labor contract. Id.
5
[Headnotes 3, 4]
____________________

3
MGM also contends that Nevada's Uniform Arbitration Act (NRS Chapter 38) compels dismissal or a stay
of Insley's complaint pending arbitration. Resolution of this issue would be identical whether we apply our own
state law or the federal Labor Management Relations Act. Since we must examine the federal labor law in
resolving MGM's contentions, we need not reach MGM's contentions regarding our state arbitration act.

4
Section 301 of the Labor Management Relations Act (LMRA) provides: Suits for violation of contracts
between an employer and a labor organization representing employees in an industry affecting commerce . . .
may be brought in any district court of the United States having jurisdiction of the parties. . . . Labor
Management Relations Act of 1947 301(a), 29 U.S.C. 185(a) (1982). In enacting Section 301, Congress
intended the doctrines of federal labor law uniformly to prevail over inconsistent local rules. Teamsters v. Lucas
Flour Co., 369 U.S. 95, 104 (1962).

5
In Allis-Chalmers, the Supreme Court held that the state tort at issue, bad faith handling of a disability claim
included in a collective bargaining agreement, derived from the rights and obligations established by the contract
and was defined by the contractual obligation of good faith. Since any attempt to assess tort liability under those
circumstances would inevitably
[Headnotes 3, 4]
Section 301 does not necessarily preempt every state law claim asserting a right that
relates in some way to a provision in a collective bargaining agreement, or that relates more
generally to the parties to such an agreement. Id. at 220. Congress did not intend to disturb
state laws in existence that set minimum labor standards, but are unrelated in any way to the
processes of bargaining or self-organization. Metropolitan Life Insurance Co. v.
Massachusetts, 471 U.S. 724, ......, 105 S.Ct. 2380, 2398, (1985). States possess broad
authority under their police powers to regulate the employment relationship to protect
workers within the State. Child labor laws, minimum and other wage laws, laws affecting
occupational health and safety . . . are only a few examples. Id. at 2398, quoting De Canas v.
Bica, 424 U.S. 351, 356 (1976).
The State Industrial Insurance System (SIIS) is an independent public agency which
administers and is supported by the state insurance fund. NRS 616.1701. Employers and
employees are governed by the terms, conditions and provisions set out in NRS Chapter 616
and 617.
[Headnote 5]
The obligation to pay compensation benefits and the right to receive them exists as a
matter of statute independent of any right established by contract. They are minimum
standards independent of the collective-bargaining process [that] devolve on [employees] as
individual workers, not as members of a collective organization. Metropolitan Life Insurance
Co. v. Massachusetts, 471 U.S. 724, ......, 105 S.Ct. 2380, 2397 (1985). Indeed, a contract of
employment which would waive or modify the terms or liability created by NRS 616 would
be void. NRS 616.265.
[Headnote 6]
MGM is a self-insurer under NRS 616.291. It has contracted with SIS Services, Inc. to
administer all injury claims arising under worker's compensation statutes. MGM's contract
with SIS Services is a separate agreement independent of the collective bargaining agreement.
Tortious conduct arising out of that relationship, therefore, is a matter of state, not federal,
law. We turn now to consider each of Insley's claims.
1. IMPLIED COVENANT OF GOOD FAITH.
[Headnote 7]
Insley alleges that the collective bargaining agreement contains an implied covenant of
good faith and fair dealing which entitles him to be dealt with in good faith by SIS
Services and MGM.
____________________
involve interpretation of the terms of the labor agreement, plaintiff's claims were to be dismissed or preempted
by Section 301 of the Labor Management Relations Act of 1947.
an implied covenant of good faith and fair dealing which entitles him to be dealt with in good
faith by SIS Services and MGM. This question is preempted by federal labor law since it
would require a court to interpret the terms of the labor contract. Under federal law, state
courts are without jurisdiction to decide that issue. See Allis-Chalmers Corp. v. Lueck, supra.
[Headnote 8]
The question whether Insley is entitled to be dealt with in good faith by MGM and SIS
Services for the payment of claim benefits, however, is a question which properly comes
within the jurisdiction of a state court and can be heard without looking to the employment
contract or federal law. The mere fact that Insley is subject to a collective bargaining
agreement does not affect the parties' duties and obligations under state law. Consequently,
the district court correctly refused to compel arbitration as to this aspect of Insley's claim.
2. RETALIATORY DISCHARGE.
[Headnote 9]
Insley claims that he was fired in retaliation for appealing the denial of his industrial
accident claim. The Ninth Circuit has held that a claim for wrongful termination based on
state public policy is not preempted by Section 301 of the LMRA. Garibaldi v. Lucky Food
Stores, Inc., 726 F.2d 1367 (9th Cir. 1984), cert. denied, 105 S.Ct. 2319 (1985). In so doing,
the Ninth Circuit Court stated:
A claim grounded in state law for wrongful termination for public policy reasons
poses no significant threat to the collective bargaining process; it does not alter the
economic relationship between the employer and employee. The remedy is in tort,
distinct from any contractual remedy an employee might have under the collective
bargaining contract. It furthers the state's interest in protecting the general publican
interest which transcends the employment relationship.
Id. at 1375. As a matter of strong public policy, this state recognizes that retaliatory
discharge by an employer stemming from the filing of a workmen's compensation claim by an
injured employee is actionable in tort. Hensen v. Harrah's, 100 Nev. 60, 64, 675 P.2d 394,
397 (1984). Such an action arises from non-negotiable benefits provided by state law
independent of any right or remedy established by contract. Following Garibaldi and Hansen,
we hold that Insley's state tort action for retaliatory discharge is not preempted.6
Accordingly, the district court correctly refused to compel arbitration as to this claim.
discharge is not preempted.
6
Accordingly, the district court correctly refused to compel
arbitration as to this claim.
3. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND CONSPIRACY.
[Headnote 10]
Plaintiff's cause of action for intentional infliction of emotional distress is also within the
jurisdiction of the state court. In Farmer v. United Brotherhood of Carpenters & Joiners of
America, Local 25, 430 U.S. 290 (1977), the Supreme Court held that the National Labor
Relations Act did not preempt a state tort action for intentional infliction of emotional
distress where the state tort action can be adjudicated without regard to the merits of the
underlying labor dispute.
[Headnote 11]
The alleged conspiracy between MGM and SIS Services to deprive Insley of industrial
insurance benefits is also a matter properly within the jurisdiction of state court. SIS Services
administers SIIS claims for MGM, a self-insurer under Nevada law. As we have explained
above, the relationship between SIS Services and MGM exists independently of and is not
affected by any bargaining agreement. Thus, the district court did not err by refusing to
compel arbitration as to these claims.
Based upon the preceding discussion, we hold, with one exception, that Insley's causes of
action are not preempted under Section 301 of the LMRA and are therefore properly within
the jurisdiction of the state court. Insley, therefore, is not required to resolve his claim
through arbitration under the collective bargaining agreement. We therefore affirm the order
of the district court denying MGM's motion to compel arbitration. We reverse only that part
of the district court's order refusing to compel arbitration on Insley's claim that the collective
bargaining agreement contains an implied covenant of good faith and fair dealing.
____________________

6
We recognize that there is authority to the contrary. See, e.g., Vantine v. Elkhart Brass Mfg. Co. Inc., 762
F.2d 511 (7th Cir. 1985); Johnson v. Hussman Corp., 610 F.Supp. 757 (E.D.Mo. 1985); Lingle v. Norge Div. of
Magic Chef, Inc., 618 F.Supp, 1448 (S.D.Ill. 1985).
Also, our holding is consistent with Allis-Chalmers v. Lueck, supra. If Insley had sued for bad faith and
retaliatory discharge for seeking benefits under MGM's group health and benefit program, then we would have
to agree that any state tort action is preempted under LMRA Section 301.
____________
102 Nev. 521, 521 (1986) In re Five Minors
IN THE MATTER OF FIVE MINORS, JEFFREY C., a Minor, Appellant, v. THE
JUVENILE DEPARTMENT OF THE SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, COUNTY OF WASHOE, Respondent.
No. 17237
STEVEN D., a Minor, Appellant, v. THE JUVENILE DEPARTMENT OF THE SECOND
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, COUNTY OF
WASHOE, Respondent.
No. 17238
ANGELITO A., a Minor, Appellant, v. THE JUVENILE DEPARTMENT OF THE
SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA,
COUNTY OF WASHOE, Respondent.
No. 17239
BRET R., a Minor, Appellant, v. THE JUVENILE DEPARTMENT OF THE SECOND
WASHOE, Respondent.
No. 17240
CAREY L., a Minor, Appellant, v. THE JUVENILE DEPARTMENT OF THE SECOND
WASHOE, Respondent.
No. 17286
December 4, 1986 728 P.2d 1357
Consolidated appeals from findings of fact, conclusions of law and order of the district
court pursuant to an appeal from the juvenile master's court; Second Judicial District Court,
Washoe County; Charles M. McGee, Judge.
The district court held order of juvenile court requiring juveniles to pay restitution to
victims of their delinquent conduct, and juveniles appealed. The Supreme Court, held that
inherent power was vested in juvenile court to order reasonable consequences designed to
leave an impression on juveniles who were adjudicated delinquent, and was therefore vested
with power to order juveniles to pay restitution to their victims rather than to participate in a
program.
Affirmed.
David G. Parraguirre, Public Defender, John A. Lefcourte, Deputy Public Defender,
Reno, for Appellants.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Gary H.
1. Infants.
Statute authorizing a juvenile court to require a child to participate in a program designed to provide
restitution does not imply that restitution is forbidden unless a program is devised and, hence, does not
preclude a juvenile court from ordering a child to pay restitution to the victim rather than to participate in
a program. NRS 62.211, subd. 1(g).
2. Infants.
Inherent power was vested in juvenile court to order reasonable consequences designed to leave an
impression on juveniles who were adjudicated delinquent, and was therefore vested with power to order
juveniles to pay restitution to their victims rather than to participate in a program. NRS 62.211, subd.
1(g).
OPINION
Per Curiam:
Presented for review are five juvenile court cases in which the juveniles maintain that the
court did not have jurisdiction to require the juveniles to pay restitution to the victims of their
delinquent conduct.
It is hard to follow appellants' argument in light of express legislative authority that
juvenile courts may . . . require the child to participate in a program designed to provide
restitution
. . . . NRS 62.211(1)(g). The juveniles here were simply ordered to pay restitution to their
victims rather than to participate in a program.
[Headnote 1]
The quoted statute says that the court may require a juvenile to participate in a restitution
program. Such a provision does not say or imply that restitution is forbidden except in cases
where something called a program is devised.
It is clear that compensation of victims of criminal conduct is an important part of the
public policy of the state. There is no reason to distinguish juvenile criminality from adult
criminality in this respect. The victim is equally harmed by either predation.
In ordering the juveniles to compensate their victims the juvenile court ruled as follows:
[T]his court has inherent power to order reasonable consequences designed to leave an
impression on minors who are adjudicated under the Juvenile Court Act, so long as
those consequences are reasonable and do not mean or work an unreasonable
restraint on liberty or some cruel and unusual punishment, that they need not be
specifically enumerated in the Juvenile Court Act for the court to give them force
and effect.
consequences are reasonable and do not mean or work an unreasonable restraint on
liberty or some cruel and unusual punishment, that they need not be specifically
enumerated in the Juvenile Court Act for the court to give them force and effect.
Therefore on that issue, the court is going to rule there is inherent power to order
restitution.
[Headnote 2]
We approve and applaud this ruling. There is no question but that the juvenile court has
the power to order a juvenile delinquent to pay restitution. The district court properly
recognized that there are limitations to restitution requirements in juvenile court cases, where,
for example, unreasonable or excessive payments are required or where the juvenile is
threatened with incarceration. These issues are not, however, presented in this appeal.
No error being apparent in any of the five consolidated appeals, the judgment in each will
be affirmed.
____________
102 Nev. 523, 523 (1986) Doe v. Bryan
JOHN DOE, RICHARD ROE, JANE JOE and MARY POE, Appellants, v. RICHARD
BRYAN, GOVERNOR OF THE STATE OF NEVADA, Respondent.
No. 16978
December 4, 1986 728 P.2d 443
Appeal from judgment dismissing action for declaratory relief. First Judicial District
Court, Carson City; Michael E. Fondi, Judge.
Appeal was taken from order of the district court which dismissed declaratory judgment
action. The Supreme Court held that homosexuals who had never been arrested or prosecuted
for violating sodomy statute did not have standing to seek declaratory relief as to the
constitutionality of the statute.
Affirmed.
Rodney E. Sumpter, Reno, McCutchen, Doyle, Brown & Enersen and Sherri J. Conrad,
San Francisco, California, for Appellant.
Brian McKay, Attorney General, and Bryan Nelson, Deputy Attorney General, Carson
City, for Respondent.
1. Action.
Litigated matters must present an existing controversy, not merely the prospect of a future problem.
102 Nev. 523, 524 (1986) Doe v. Bryan
Homosexuals who had never been arrested or prosecuted for violating sodomy statute did not have
standing to seek declaratory relief as to unconstitutionality of the statute. NRS 201.190.
OPINION
Per Curiam:
This is an action brought under Nevada's Declaratory Judgment Act, NRS 30.040,
1
seeking to have NRS 201.190 declared unconstitutional under the Nevada and United States
Constitutions.
2
Appellants are four adult homosexuals, two male and two female, none of
whom has been arrested or prosecuted for violating NRS 201.190.
Appellants allege that engaging in conduct prohibited by NRS 201.190 is a fundamental
element of development and expression, necessary for fulfillment as a human being.
Appellants claim that they desire to engage in such conduct.
Appellants allege that state and local law enforcement officials would prosecute private
consensual conduct proscribed by NRS 201.190 if those officials possessed evidence of such
a violation. Respondent maintains that appellants' appeal should be dismissed on the grounds
that appellants lack standing to complain because appellants have not been arrested or
prosecuted for a violation of NRS 201.190. Respondent also contends that the Governor was
not the proper defendant in this action because the Governor is powerless to prosecute
appellants under the statute.
The district court granted the motion to dismiss because appellants had never been
arrested, prosecuted or threatened with prosecution for violation of NRS 201.190. The district
court also held that the Governor was an improper defendant because his duties do not
encompass the initiation of criminal prosecution.
____________________

1
NRS 30.040 provides as follows:
Any person interested under a deed, will, written contract or other writings constituting a contract, or
whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or
franchise, may have determined any question of construction or validity arising under the instrument,
statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations
thereunder.

2
NRS 201.190 (1986) deals with infamous sexual offenses:
1. Except as provided in NRS 200.366 and 201.230, every person of full age who commits the
infamous crime against nature shall be punished by imprisonment in the state prison for not less than 1
year nor more than 6 years.
2. The infamous crime against nature means anal intercourse, cunnilingus or fellatio between
consenting adults of the same sex.
102 Nev. 523, 525 (1986) Doe v. Bryan
The issue of standing is dispositive of this appeal and obviates the need to address other
specified issues. Resolving the single issue against appellants, we affirm the district court's
dismissal of the action for declaratory relief.
In Steffel v. Thompson, 415 U.S. 452, 458-59 (1973), the United States Supreme Court
declared that an actual controversy is essential to judicial relief under the Federal Declaratory
Judgment Act and that the validity of criminal statutes may be assailed only if the threat of
criminal prosecution is not imaginary or speculative. Id. at 459. This same test has been
embraced by state courts. Wills v. O'Grady, 409 N.E.2d 17 (Ill.App.Ct. 1980); Berg v. City of
Chicago, 240 N.E.2d 344 (Ill.App.Ct. 1968).
[Headnote 1]
Nevada has a long history of requiring an actual justiciable controversy as a predicate to
judicial relief. Moreover, litigated matters must present an existing controversy, not merely
the prospect of a future problem.
In Southern Pacific Co. v. Dickerson, 80 Nev. 572, 397 P.2d 187 (1964), this court stated
that a justiciable controversy was a preliminary hurdle to an award of declaratory relief. Id. at
576, 397 P.2d at 190. The definition of a justiciable controversy was expressed by this court
in Kress v. Corey, 65 Nev. 1, 189 P.2d 352 (1948):
(1) there must exist a justiciable controversy; that is to say, a controversy in which a
claim of right is asserted against one who has an interest in contesting it; (2) the
controversy must be between persons whose interests are adverse; (3) the party seeking
declaratory relief must have a legal interest in the controversy, that is to say, a legally
protectible interest; and (4) the issue involved in the controversy must be ripe for
judicial determination.
Id. at 26, 189 P.2d at 364.
Kress also indicates that a declaration is unavailable when the damage is merely
apprehended or feared. Id. at 28-29, 189 P.2d at 365. This policy has been adopted by many
courts. In Wills v. O'Grady, 409 N.E.2d 17 (Ill.App.Ct. 1980), an Illinois court held that the
requirement of an actual controversy has been construed as requiring a concrete dispute
admitting of an immediate and definitive determination of the parties' rights. Id. at 19. In
Wills, because here was no allegation either that the plaintiff was immediately arrested for the
activity for which he sought protection or that he would necessarily face the threat of
prosecution if he repeated that behavior, no actual controversy was found.
102 Nev. 523, 526 (1986) Doe v. Bryan
found. There was not immediate danger of injury as a result of enforcement.
This same rationale was used to dismiss the Doe plaintiffs in Hardwick v. Bowers, 760
F.2d 1202 (11th Cir. 1985), the predecessor to the United States Supreme Court's recent
decision on Georgia's sodomy laws.
3
In Hardwick, the Eleventh Circuit found that the Doe
plaintiffs lacked standing to challenge Georgia's sodomy laws because they did not allege in
their complaint that they faced a serious risk of prosecution. Id. at 1206. They gave the court
no indication of an imminent and realistic threat of prosecution.
Appellants here allege that they have never been arrested for violating NRS 201.190 and
the record does not reflect any enforcement efforts by the State against appellants or others.
[Headnote 2]
There is no indication that appellants are facing an immediate threat of arrest for violation
of NRS 201.190 or that the risk of prosecution is, to any degree, more than imaginary or
speculative. Therefore, this court affirms the dismissal of appellants' complaint by the district
court because appellants lacked standing to seek declaratory relief.
____________________

3
In Bowers v. Hardwick, 106 S.Ct. 2841, 54 U.S.L.W. 4919 (1986), the Supreme Court did not address the
issue of the Doe plaintiffs who had been dismissed out of the case for lack of standing by the district court. The
dismissal for lack of standing was acknowledged by the Eleventh Circuit.
____________
102 Nev. 526, 526 (1986) Hallicrafters Co. v. Moore
HALLICRAFTERS COMPANY, a Utah Corporation, RADTECH, INC., a New Mexico
Corporation, HALRAD COMMUNICATIONS, INC., a Nevada Corporation, and
CLARENCE LONG, Appellants, v. WILLIAM MOORE, Respondent.
No. 17387
December 4, 1986 728 P.2d 441
Motion to dismiss. Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Partial summary judgment was certified as final by the district court and defendant moved
to dismiss. The Supreme Court held that: (1) plaintiff's causes of action presented several
separate claims for relief, each requiring proof of facts and elements not necessary to proof of
other claims, and (2) grant of partial summary judgment was improvidently certified.
Motion granted; appeal dismissed.
Beckley, Singleton, DeLanoy, Jemison & List and Carol R. Davis and Franny Forsman,
Las Vegas, for Appellants.
Robert M. Apple, Las Vegas, and Ramsey, Moore, Morrison & Keddy, Sacramento,
California, for Respondent.
1. Action.
Separate causes of actions may frequently state only single claim for relief when they arise out of
single transaction, or series of related transactions; however, multiple claims for relief can arise from
single transaction, or series of related transactions.
Partial summary judgment was amenable to certification pursuant to rule as complaint presented at
least three separate claims for relief, each requiring proof of facts and elements not necessary to proof of
other claims. NRCP 54(b).
If claims asserted in an action, albeit separate, are so closely related that court must necessarily decide
important issues pending below in order to decide issues appealed, there can be no finding that there is no
just reason for delay, and certification of order deciding some but not all of those claims as final is abuse
of district court's discretion. NRCP 54(b).
Partial summary judgment was inappropriately certified as final though contract claims and tort
claims were separate and required proof of separate elements as factual underpinnings and issues relating
to damages were same in cause on appeal as in cause to be determined at trial; thus, in deciding appeal,
court would necessarily decide law of case on claims still pending. NRCP 54(b).
OPINION
Per Curiam:
This is an appeal from a partial summary judgment certified as final pursuant to NRCP
54(b) by the district court. Appellant Hallicrafters Company has requested that we determine
whether this court has jurisdiction to entertain this appeal. In essence, Hallicrafters moves this
court to dismiss.
Hallicrafters contend that, because all of respondent's causes of action arise out of a related
series of transactions, respondent's complaint alleges only one claim for relief. 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). Hallicrafters argues, therefore, that
the partial summary judgment was not amendable to certification pursuant to NRCP 54(b).
[Headnotes 1, 2]
Separate causes of action may frequently state only a single claim for relief for purposes
of NRCP 54{b) when they arise out of a single transaction, or a series of related
transactions.
claim for relief for purposes of NRCP 54(b) when they arise out of a single transaction, or a
series of related transactions. Multiple claims for relief can arise, however, from a single
transaction, or a series of related transactions, in some circumstances. In this case, all of
respondents' causes of action appear to have arisen out of the same transaction or series of
related transactions. Respondent's complaint, however, states more than one claim for relief
for purposes of NRCP 54(b). Four of respondent's causes of action are based on the alleged
breach of a stock purchase agreement. An additional two causes of action allege the breach of
a separate, but related, consulting agreement. The remaining causes of action sound in tort,
alleging fraud and misrepresentation in inducing respondent to enter into the contracts
referred to in the prior causes of action. Thus, respondent's various causes of action present at
least three separate claims for relief, each requiring proof of facts and elements not necessary
to the proof of the other claims. Therefore, Hallicrafters' contention that respondent's
complaint states only one claim for relief for purposes of NRCP 54(b) lacks merit.
Respondent's complaint alleges more than one claim for relief. Further, the district court's
partial summary judgment arguably finally adjudicates one of respondent's claims for relief.
Nonetheless, we conclude that the district court improvidently certified its partial summary
judgment as final. NRCP 54(b) provides that a judgment or order of the district court which
completely removes a party or a claim from a pending action may be certified as final only
upon an express determination that there is no just reason for delay. . . . (Emphasis added.)
[Headnotes 3, 4]
If the claims asserted in an action, albeit separate, are so closely related that this court must
necessarily decide important issues pending below in order to decide the issues appealed,
there can be no finding that there is no just reason for delay, and certification of an order
deciding some but not all of those claims as final is an abuse of the district court's discretion.
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). In this case, the claims
alleged in respondent's complaint are so closely related that this court would necessarily
decide the law of the case on the claims still pending in the district court in the course of
deciding the appeal. Although the contract claims and the tort claims are separate, and require
proof of separate elements, the factual underpinnings and many of the issues related to the
measure of damages to be awarded are the same. Therefore, consideration of this appeal
would result in piecemeal litigation, and would defeat the purpose of NRCP 54{b).
piecemeal litigation, and would defeat the purpose of NRCP 54(b).
Accordingly, we grant Hallicrafters' motion, and we dismiss this appeal without prejudice
to the rights of the parties to pursue an appeal following a final judgment in the district court.
____________
102 Nev. 529, 529 (1986) Ruland v. State
SCOTT VINCENT RULAND, Appellant, v. THE
No. 15962
December 4, 1986 728 P.2d 818
Appeal from convictions for attempted murder and resisting a public officer with use of
dangerous weapon; Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
Defendant was convicted in the district court of attempted murder and resisting a public
officer with use of dangerous weapon and he appealed. The Supreme Court held that: (1)
defendant who denied making any assault on officers was not entitled to instruction on lesser
assaults as lesser included offenses; (2) failure to give instruction on attempted second degree
murder was not error; and (3) defendant was not entitled to instruction on resisting public
officer without use of a dangerous weapon.
Affirmed.
Morgan D. Harris, Public Defender, Robert L. Miller, Deputy, Clark County, for
Appellant.
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney, Brad
Jerbic, Deputy, Clark County, for Respondent.
1. Criminal Law.
Defendant is entitled upon request to jury instruction on his or her theory of the case so long as there is
some evidence, no matter how weak or incredible, to support it.
2. Criminal Law.
If defense theory of case is supported by some evidence which, if believed, would support corresponding
jury verdict, failure to instruct on that theory totally removes it from the jury's consideration and constitutes
reversible error.
3. Assault and Battery; Homicide.
Defendant who insisted that he had committed no assault of any kind and claimed that weapon discharged
inadvertently was not entitled to instruction on assault with a deadly weapon, assault with
intent to kill, or attempted second degree murder as lesser included offenses of
attempted murder.
instruction on assault with a deadly weapon, assault with intent to kill, or attempted second degree murder
as lesser included offenses of attempted murder.
4. Criminal Law.
Defendant was not entitled to instruction on attempted second degree murder as lesser included offense of
charge of attempted murder where jury was instructed on definition of murder with no distinction being
made between first and second degree so that the refused instruction was covered by the instructions given.
NRS 193.330.
5. Obstructing Justice.
Defendant was guilty of resisting a public officer with use of a dangerous weapon even if jury believed
his story that he abandoned any intention to use the weapon when he put it down on a table where
defendant admittedly cocked the weapon while it was in his hand.
6. Homicide.
Instruction that malice shall be implied when no considerable provocation appears or when all the
circumstances of the killing show an abandoned and malignant heart was a definition of implied malice
rather than an instruction to find any presumed fact.
OPINION
Per Curiam:
Appellant Ruland was convicted of two crimes, attempted murder and resisting a public
officer with the use of a dangerous weapon. The crimes were committed during the execution
of a warrant for Ruland's arrest on a charge of murder committed in California.
Police officers entered Ruland's apartment knowing that he was armed. The arresting
officers broke into Ruland's apartment. When Ruland saw the officers, he ran into an
adjoining room with what the officers thought was a weapon. Ruland shot through the wall
into the kitchen where one of the officers was stationed. The bullet lodged in the kitchen
refrigerator narrowly missing the officer. After a gun battle Ruland was hit by a police bullet
and apprehended.
Ruland's story is that he peered around the wall and saw one of the officers, his weapon
was cocked and in hand. Ruland claims that he did not fire his weapon but that it accidently
discharged when he placed it down on a table.
INSTRUCTION ON LESSER INCLUDED OFFENSES
Ruland claims that the trial court erred in refusing to instruct on a number of lesser
included offenses which he believes should have been presented to the jury. These lesser
included offenses are: (1) assault with a deadly weapon, (2) assault with intent to kill, (3)
attempted second degree murder, and (4) resisting a public officer without the use of a
dangerous weapon.
1. The Lesser Assaults, Assault with a Dangerous Weapon and Assault with Intent to
Kill. The first lesser-included offense instructions which Ruland requested can be
characterized as lesser assaults. An assault with a dangerous weapon or an assault with
intent to kill are assaults of a degree and severity less than that of attempted murder.
[Headnotes 1, 2]
A defendant in a criminal case is entitled, upon request, to a jury instruction on his or her
theory of the case, so long as there is some evidence, no matter how weak or incredible, to
support it. Williams v. State, 99 Nev. 530, 531, 665 P.2d 260, 261 (1983); Riddle v. State, 96
Nev. 589, 613 P.2d 1031 (1980); Barger v. State, 81 Nev. 548, 407 P.2d 584 (1965). If a
defense theory of the case is supported by some evidence which, if believed, would support a
corresponding jury verdict, failure to instruct on that theory totally removes it from the jury's
consideration and constitutes reversible error. Barger v. State, above. In Williams, Riddle and
Barger, the defendants asked for a jury instruction which was consistent with their defense
theory or their version of the facts.
Where the evidence would not support a finding of guilty of the lesser offense or
degree, e.g., where the defendant denies any complicity in the crime charged and thus
lays no foundation for any intermediate verdict . . . , the lesser offense is either not
proved or shown not to exist. The [requested] instruction is not only unnecessary but is
erroneous because it is not pertinent.
Klepar v. State, 92 Nev. 103, 104, 546 P.2d 231, 232 (1976); Lisby v. State, 82 Nev. 183,
187, 414 P.2d 592, 595 (1966); see People v. Brown, 281 P.2d 319 (Cal.App. 1955). In
Klepar, the defendant maintained at trial that he had been invited into a hotel room, yet
contended on appeal that the trial court erred by refusing to give his instruction for trespass as
a lesser included offense of burglary. This court found no error. 92 Nev. at 104, 546 P.2d at
232.
[Headnote 3]
Other courts have followed the principle that it is not error to refuse to instruct the jury on
an issue which was contrary to the defendant's testimony. Brown, above. In Brown, the
defendant consistently denied all activities in aid of another person's escape from arrest. The
Brown court found that the trial court properly refused Brown's request for jury instructions
on accessory after the fact. Similar to Brown, the evidence in the present case might support
the giving of an instruction on assault with a dangerous weapon but for the fact that Ruland
insists that he committed no assault of any kind.
committed no assault of any kind. He claims that the weapon discharged inadvertently and
that he was not, by his own word, guilty of any attempt or offer to do bodily harm.
1
Ruland's
categorical denial of any criminal assault preludes his claiming any error resulting from the
jury's not being instructed as to an assault theory. Klepar, above; Lisby, above; Brown, above.
Assault with intent to kill is a specific intent crime. Ruland denies an assault of any kind
and specifically denies that he had any intent to kill the arresting officers. Under these
circumstances he cannot complain of the jury's not being instructed in this vein, because the
trial court was not required to give instructions concerning a lesser offense where the defense
testimony would prove innocence in all of the charges including the assault theories. State v.
McNair, 687 P.2d 1230 (Ariz. 1984).
[Headnote 4]
2. Attempted Second Degree Murder. The indictment charges Ruland with attempted
murder. NRS 193.330 makes it a crime to commit an act done with intent to commit a crime,
and tending but failing to accomplish it. The jury here was instructed on the definition of
murder, with no distinction being made between first and second degree. The refused
instruction is already covered by the instruction given; therefore, no error was committed. See
State of Nevada v. Loveless, 62 Nev. 312, 228 [328]; 150 P.2d 1015 (1944). Also, the statute
under which Ruland was charged makes no distinction between first and second degree
murder. NRS 193.330.
[Headnote 5]
3. Resisting a Public Officer Without Use of a Dangerous Weapon. There is no question
that Ruland resisted arrest. By Ruland's own admission, he had a dangerous weapon in his
possession at the time the officers entered the premises. NRS 193.1652 provides for an
enhancement of penalty when a dangerous weapon is used. Even if the jury believed Ruland's
story that he abandoned any intention to use the weapon when he put it down on the table,
the jury would still not be precluded from finding that the cocked weapon admittedly in
Ruland's hand when the police entered his apartment constituted "use" under the statute.
____________________

1
NRS 200.400(1)(a) defines all assault crimes generally:
1. As used in this section, except in the term sexual assault:
a. Assault means an unlawful attempt, coupled with a present ability, to commit a violent injury on
the person of another.

2
1. Any person who uses a firearm or other deadly weapon or a weapon containing or capable of
emitting tear gas, whether or not its possession is permitted by NRS 205.375, in the commission of a
crime shall be punished by imprisonment in the state prison for a term equal to and in addition to the term
of imprisonment prescribed by statute for such crime. The sentence prescribed by this section shall run
consecutively with the sentence prescribed by statute for such crime.
down on the table, the jury would still not be precluded from finding that the cocked weapon
admittedly in Ruland's hand when the police entered his apartment constituted use under
the statute. See State v. Duckhurst, 99 Nev. 696, 669 P.2d 243 (1983); See also Culverson v.
State, 95 Nev. 433, 596 P.2d 220 (1979). Thus, under facts most favorable to Ruland, he is
still guilty of using a dangerous weapon and not entitled to an instruction deleting the
enhancement provision.
IMPERMISSIBLE PRESUMPTION
Ruland claims that it was error to give the statutory definition of murder because it says
that malice shall be implied when no considerable provocation appears, or when all the
circumstances of the killing show an abandoned and malignant heart.
In Ford v. State, 99 Nev. 209, 214, 660 P.2d 992, 995 (1983), a similar objection was
made to the following instruction on felony-murder. There are certain kinds of murder which
carry with them conclusive evidence of malice aforethought. One of these classes of murder
is murder committed in the perpetration or attempted perpetration of robbery. . . . This court
held, The instruction in question merely states the law of the felony murder doctrine rather
than instructs the jury to find a presumed fact against the accused. 99 Nev. at 215, 660 P.2d
at 995.
[Headnote 6]
Similarly, the instruction in the instant case defines implied malice rather than directs the
jury to find any presumed fact. Thus, cases cited by appellant are inapposite. Connecticut v.
Johnson, 460 U.S. 73 (1983), for example, involved an instruction stating that one is
presumed to intend the natural and necessary consequences of his act.
For the above reasons, the convictions of Scott Vincent Ruland are affirmed.
____________
102 Nev. 534, 534 (1986) Galloway v. McDonalds Restaurants
TIMOTHY STAHR GALLOWAY, as Guardian ad Litem for TIMOTHY CURTIS
GALLOWAY, Appellant, v. McDONALDS RESTAURANTS OF NEVADA, INC., a
No. 15607
December 5, 1986 728 P.2d 826
Appeal from judgment entered upon a jury verdict, Eighth Judicial District, Clark County;
John F. Mendoza, Judge.
Father of child with serious burns on his leg brought action against fast food restaurant
alleging burns occurred when child climbed onto merry-go-round in restaurant playground.
The district court entered judgment on jury verdict for restaurant, and father appealed. The
Supreme Court, Gunderson, J., held that: (1) testimony of absence of prior accidents at
restaurant playground was admissible, and (2) issue of child's contributory negligence was
one of fact.
Affirmed.
Gang and Berkley, Las Vegas, for Appellant.
Barker, Gillock & Perry, Las Vegas, and Michael A. Koning, Las Vegas, for Respondent.
1. Negligence.
Testimony regarding absence of prior accidents of kind suffered by child allegedly injured on
merry-go-round at fast food restaurant was admissible as relevant to show restaurant had no notice or
knowledge that merry-go-round would be dangerous condition.
2. Negligence.
Court properly gave instruction embodying law as to duty of landowners to invitees in action for child's
alleged injuries at fast food restaurant playground.
3. Negligence.
Issue of child's contributory negligence was one of fact.
OPINION
On September 14, 1981, Timothy Stahr Galloway entered Southern Nevada Memorial
Hospital in Las Vegas with his three-and-a-half-year-old son, Timothy Curtis, who had
somehow received serious burns on his right buttocks, calf and thigh. In attempting to explain
how the boy had been so badly burned, Galloway told the admitting physician that, two days
previously, he had placed the child on a hot metal merry-go-round. Subsequent to his son's
hospital care, the senior Galloway, as the child's guardian ad litem, sued McDonalds
Restaurants of Nevada for damages, alleging that the burns occurred when his son
climbed onto a Mayor McCheese Whirl, a type of merry-go-round in a playground at a
McDonalds "fast-food" restaurant.
child's guardian ad litem, sued McDonalds Restaurants of Nevada for damages, alleging that
the burns occurred when his son climbed onto a Mayor McCheese Whirl, a type of
merry-go-round in a playground at a McDonalds fast-food restaurant.
At trial, Galloway repudiated the explanation he originally had given to the admitting
physician at Southern Nevada Memorial Hospital, testifying instead that he was absolutely
positive he had not placed the child on the Whirl, because I wouldn't put my son on a hot
merry-go-round at all. Nonetheless, Galloway acknowledged that the boy had sustained no
burns on his hands or knees. Thus, nothing indicated that the child had touched the allegedly
hot metal with any part of his body while climbing onto the Whirl. According to
Galloway's trial court testimony, after the boy seated himself on the Whirl, Galloway
pushed the Whirl two or three revolutions. Then, he claimed, his son screamed real loud
and he picked up the child. I grabbed the handle real fast, he said, and I was irritated
cause I thought he was scared of the ride. . . . I stopped the ride real fast. I said, Timmy,
what's wrong with you,' cause I was irritated cause I thought he was scared.
According to Galloway, after the boy was burned, he first sought treatment for him at the
Desert Springs Hospital, and then returned to McDonalds to report the accident, which he
claimed had occurred on their playground equipment earlier that same day. After considering
Galloway's current story and other evidence, including his original report to Southern Nevada
Memorial Hospital, the jury returned a verdict in favor of McDonalds, and a judgment was
entered accordingly.
In this appeal, Galloway contends the trial court erred (1) by admitting testimony of the
absence of prior accidents at the McDonalds playground, and (2) by refusing to give the jury
an instruction on contributory negligence designed by his counsel. As hereinafter discussed,
we perceive no error either in admitting the challenged evidence or in refusing to give the
submitted jury instruction. We therefore affirm the judgment.
THE ABSENCE OF PRIOR ACCIDENTS
[Headnote 1]
At trial, McDonalds introduced testimony regarding the absence of prior accidents of the
kind alleged by Galloway. Appellant objected to the admission of such evidence but the trial
court overruled the objection. The operations manager then testified that, to her knowledge,
based on five years of employment with McDonalds, no other burns had been reported to
have occurred on the Whirl. I've never had any cases like that before, in my entire career
with McDonalds, she stated. She explained no signs had been posted warning of any
potential problem with the heated metal in the Las Vegas sun, as she did not believe an
accidental burn could have happened as the father now claimedi.e., by climbing upon
the merry-go-round without assistance from the father.1
problem with the heated metal in the Las Vegas sun, as she did not believe an accidental burn
could have happened as the father now claimedi.e., by climbing upon the merry-go-round
without assistance from the father.
1

Appellant argues the court erred in admitting evidence that no reports of similar accidents
had been received, because of its tendency to confuse and prejudice the jury. McDonalds
contends the testimony of its operations manager was relevant to show that it had no notice or
knowledge that the metal Whirl would be in dangerous condition. We agree with
McDonalds.
The general rule is that evidence of the lack of previous accidents under similar
circumstances is admissible to prove that no dangerous conditions existed and that the injury
was not reasonably foreseeable. Baker v. Lane Cty., 586 P.2d 114, 118 (Or.App. 1978).
Professor McCormick's treatise on evidence states: A large number of cases recognize that
lack of other accidents may be admissible to show . . . want of knowledge (or of grounds to
realize) the danger. C. McCormick, McCormick on Evidence, 591-92 (E. Cleary 3rd ed.
1984). Indeed, McCormick concludes that
if proof of similar accidents is admissible in the judge's discretion to show . . . the
defendant knew or should have known of the danger, then evidence of the absence of
accidents during a period of similar exposure and experience likewise would be
receivable to show that these facts do not exist in the case at bar.
Id. at 590.
We have previously determined that evidence of prior accidents is admissible to show
notice of a dangerous condition. Southern Pacific Co. v. Watkins, 83 Nev. 471, 435 P.2d 498
(1967). Thus, we agree with Professor McCormick and McDonalds that, because prior similar
accidents may be admitted to show notice, evidence showing the absence of similar accidents
should be deemed admissible to negate such notice.
We are unpersuaded by appellants' argument that such evidence will confuse the jury. The
testimony of McDonalds' manager merely showed that, no matter how hot the days have been
in Las Vegas, and no matter how many children have played on the merry-go-round, there
have never been any other reported cases of burns on the Whirl. Our review of the record
indicates that this evidence was presented in a straight-forward manner and could not have
confused or prejudiced the jury.
____________________

1
Although there were no signs warning parents of the potential effects of the hot Las Vegas sun on a metal
seat, photos were admitted showing a sign warning that children must be accompanied by an adult while
playing in the McDonalds park.
could not have confused or prejudiced the jury. Further, we believe that, problems of
prejudice and distraction over collateral issues' seem much more acute when it comes to
proof of other accidents than when evidence of an accident-free history is proffered.
McCormick on Evidence, at 591.
Accordingly, the district court did not abuse its discretion in admitting evidence showing
the absence of prior similar accidents.
JURY INSTRUCTION
[Headnote 2]
Appellants contend the district court erred by giving Jury Instruction 9-C. There is no
dispute that Jury Instruction 9-C embodies the law in Nevada as to the duty of landowners.
That instruction states:
An owner or occupant of land must exercise ordinary care and prudence to render
the premises reasonably safe for the visit of a person invited on his premises for
business purposes. An owner or occupant of land who knows, or in the exercise of
reasonable care should know, of their dangerous and unsafe condition, and who invites
others to enter upon the property, owes to such invitees a duty to warn them of the
danger, where the peril is hidden, latent, or concealed, or the invitees are without
knowledge thereof.
On the other had, if the dangerous and unsafe condition is obvious, ordinary care
does not require warning from an owner or occupant of land.
Because the instruction states the duty of a landowner in this type of action, we perceive no
error by the trial court in giving this instruction. We have previously determined that an
erroneous instruction as to the duty or standard of care owing by one party to the other is
substantial error requiring another trial. Otterbeck v. Lamb, 85 Nev. 456, 463, 456 P.2d 855,
860 (1969) (citation omitted). Thus, if the trial court had refused to instruct the jury as to the
standard of care owed by McDonalds to this litigant, we would have been constrained to hold
that refusal to be error.
[Headnote 3]
Appellant next argues that the trial court erred by not giving his proposed Jury Instruction
A, which stated:
You are instructed that since Timothy Curtis Galloway was a minor under the age of
five years at the time of the incident, he was incapable of contributory negligence as a
matter of law.
In Quillian v. Mathews, 86 Nev. 200, 467 P.2d 111 (1979), however, we specifically
refused to adopt a rigid rule of this nature. In Quillian, we determined that the issue of a
child's contributory negligence is one of fact for the jury upon proper instructions unless
reasonable minds could come to but one conclusion from the evidence. 86 Nev. at 203, 467
P.2d at 113. In so doing, we stated:
In our opinion it is not advisable to establish a fixed and arbitrary rule, and we reject
the view espoused by the Ohio court in Holborck v. Hamilton Distributing, Inc., supra.
We prefer to treat the issue of contributory negligence of a child as a fact issue for the
jury upon proper instructions unless reasonable minds could come to but one
conclusion from the evidence. This allows for a degree of flexibility in the handling of
each case as it comes before the trial court. That court may decide initially whether
reasonable minds could believe that the particular child has the capacity to exercise that
degree of care expected of children of the same age, experience and intelligence in
similar circumstances. Should the court determine that the child has such capacity, the
jury then is to decide whether such care was exercised in the particular case. Should the
court rule otherwise, then, of course, the issue of contributory fault would not be
submitted for jury resolution. . . .
Id.
In sum, we have expressly repudiated any Procrustean rule that, merely because a child has
not reached some specified age, he or she is incapable of contributory negligence no matter
what the situation, and no matter what the experience or capabilities of the child. Hence, the
trial court could not give an instruction announcing to the jury that such is the state of the law
in Nevada. [T]he requested instruction must be consistent with existing law. Beattie v.
Thomas, 99 Nev. 579, 583, 668 P.2d 268, 271 (1983) (citation omitted). Thus, the court
properly refused to give the instruction.
2

The judgment of the district court is affirmed.
Young, J., concurs.
Springer, J., concurring:
I write in concurrence because I wish to stress the complete freedom from any prejudicial
error to be found in the record of this case.
____________________

2
Plaintiff's counsel evidently did not employ any other means to raise the claim that, as to this specific child
on these specific facts, the issue of contributory negligence should be foreclosed as a matter of law.
this case. I disagree heartily with the dissent's conjecture that the verdict was the product of
jury confusion. It is clear to me that the jury simply did not believe the father's revised
version of the event told at trial, namely that the child climbed up on the hot metal and
remained there until he was severely burned. More likely and more believable is the father's
first story, told at the hospital, that he, the father, placed the child on the device.
From my point of view, the jury could even have believed a more dire version of how the
little boy was burned, but this is not the point. The point is that the plaintiff failed to carry the
burden of proving to the jury fault on the part of McDonalds, and little more has to be said.
The dissent mentions something about a higher standard of care being required by
McDonalds in this case, but the trial judge was not asked to instruct the jury on this point,
even if it had some validity. Mention is also made of the amusement device's being an
enticement, but again I see that no instructions were requested by the plaintiff on this point.
These questions were not raised, as far as I can determine, in this appeal.
The instruction found objectionable by the dissent is a standard one on occupier's liability,
and the instruction could not in any way that I can perceive invite the jury to speculate.
The dissent finds error in the court's not instructing the jury that the child was incapable of
contributory negligence as a matter of law. As pointed out in the majority, there was no
attempt under Quillian to obtain an adjudication establishing the supposed incapacity of the
child. Appellant was certainly not, under our case, entitled to an instruction that all children
were conclusively or even presumptively free from contributory negligence.
There are certainly various disparate ways of looking at the facts in this case. One way is
that the child innocently climbed aboard the merry-go-round and remained there until he was
seriously burned. Another, contrary view is that the child was placed on the device by his
father (as the father told medical attendants at the hospital) and was held there until he was
seriously burned. The jury could have believed either version and even could have believed
that the father burned the child in some other fashion that had no connection at all with
McDonalds; for the father, rather clearly, was not believed by the jury.
The real point here is that it really does not matter what the jury believed; they were
entitled not to believe anything presented to them. The child and his representatives had the
burden of proving to the jury's satisfaction that negligence on the part of McDonald's caused
the child's injuries, rather than other means.
I cannot see any possibility that a portion of a general instruction relating to obvious
conditions of danger could have invited an erroneous analysis of duty to the prejudice of
the injured child," or could, even if error, have had any prejudicial effect of any kind.
an erroneous analysis of duty to the prejudice of the injured child, or could, even if error,
have had any prejudicial effect of any kind.
I have put down these views, as said, to point to the exceptionally error-free nature of the
trial of this case. Whether the jury found that there was no evidence to support negligent
conduct on the part of McDonalds or that the case was dishonestly contrived by the father, it
was certainly justified in concluding that the plaintiff had not sustained the burden of proof.
Steffen, J. with whom Mowbray, C. J., agrees, dissenting:
I respectfully dissent.
My review of the record convinces me that the defense verdict in this case was in large
measure the product of jury confusion over the tort concept of duty. The evidence strongly
suggests that the injured child was not burned as a result of climbing up onto the carousel, as
represented by the child's father at trial. To the contrary, it appears from a combination of the
father's statement to the admitting physician, as reflected in the hospital records, and the
application of logical inferences derived from the circumstances of the accident that the child
was placed on the hot surface of the carousel by his father. The stage was thus set for the jury
to transfer its focus from the breach of duty by McDonalds to a breach of duty by the father.
Jury perspective was obscured by an instruction that invited an erroneous analysis of duty to
the prejudice of the injured child.
The setting of the incident must be understood to appreciate why the father's conduct did
not insulate McDonalds from its duty to its 3 1/2 year old invitee, Timothy. The playground
equipment was prominently displayed at the site of the fast food operation on Maryland
Parkway to entice young children and their parents into the facility. The playground was
colorfully adorned and presented as an inducement to partake of McDonalds' victuals in an
environment conducive to contented children. It is thus clear that McDonalds had an elevated
duty of care to its minor invitees who were most vulnerable to the enticements of the
playground. Crosswhite v. Shelby Operating Corp., 30 S.E.2d 673 (Va. 1944); Grace v.
Kumalaa, 386 P.2d 872 (Hawaii 1963); Styer v. City of Reading, 61 A.2d 382 (Pa. 1948);
Augusta Amusements v. Powell, 92 S.E.2d 720 (Ga.App. 1956); Bronson v. Kansas City, 323
S.W.2d 526 (Mo.App. 1959); Schwartz v. Helms Bakery Limited, 430 P.2d 68 (Cal. 1967).
Assuming the jury concluded that a less than candid father placed Timothy on the
carousel, it is necessary to consider the legal significance of such conduct by the father as it
relates to McDonalds' duty to the injured child-invitee.
McDonalds' duty to the injured child-invitee. Given the fact that the carousel, unshaded from
the sun and bereft of warning, stood beckoning its amusements to tender-aged children, it was
arguable foreseeable that a parent might thoughtlessly conclude that McDonalds would not
create, maintain or invite the use of a dangerous object of recreational enticement for
children. Its alluring and unrestricted presence spoke silently but convincingly of its fitness
for use. In any event, McDonalds' duty of extraordinary care to its minor invitees was
undiminished by a lack of parental care unless such dereliction was unforeseeable. Landeros
v. Flood, 551 P.2d 389 (Cal. 1976). Failure to adequately safeguard invited children from
foreseeable acts of parental or third-party negligence in the use of McDonalds' commercial
recreational facilities should, as a matter of law, subject McDonalds to liability for injuries to
such invitees. Id. at 395.
The foregoing predicate leads me to the offending instruction. The jury was instructed on a
landowner's duty to invitees in Nevada by Instruction 9-C.
1
That instruction included the
following provision:
On the other hand, if the dangerous and unsafe condition is obvious, ordinary care
does not require warning from an owner or occupant of land.
The inclusion of the quoted provision was inappropriate and prejudicial in this case for
several reasons. First, I seriously question the provision as a correct statement of the law
where the unsafe condition is created and maintained by the landowner as an enticement for
use by invitees for the landowner's commercial purposes. Berrum v. Powalisz, 73 Nev. 291,
317 P.2d 1090 (1957). Indeed, at trial McDonalds sought to avoid the consequences of its
own inattention by the unbecoming argument that the carousel's superheated condition should
have been obvious to the 3 1/2 year old seriously burned infant.
2
Second, as noted
previously, I do not believe McDonalds' duty was limited to that of ordinary care when
applied to the young children it particularly sought to entice and influence by its
recreational facilities.
____________________

1
The instruction, in its entirety, reads as follows:
An owner or occupant of land must exercise ordinary care and prudence to render the premises
reasonably safe for the visit of a person invited on his premises for business purposes. An owner or
occupant of land who knows, or in the exercise of reasonable care should know, of their dangerous and
unsafe condition, and who invites others to enter upon the property, owes to such invitees a duty to warn
them of the danger, where the peril is hidden, latent, or concealed, or the invitees are without knowledge
thereof.
On the other hand, if the dangerous and unsafe condition is obvious, ordinary care does not require
warning from an owner or occupant of land.

2
This argument was obviously designed to cover the unlikely prospect of the jury believing that the child
climbed onto the carousel without his father's assistance.
previously, I do not believe McDonalds' duty was limited to that of ordinary care when
applied to the young children it particularly sought to entice and influence by its recreational
facilities. Third, the instruction may have convinced the jury that if the condition were
obvious, or should have been obvious to Timothy's father, no liability would attach to
McDonalds for the child's injuries. Fourth, I consider it violative of sound public policy to
permit a commercial enterprise to attract patrons through means of a dangerous
instrumentality of its own making and then disclaim liability for injury on grounds that the
hazard was open and obvious. Fifth, the instruction may have invited the jury to speculate
regarding an aspect of blame attributable to 3 1/2 year old Timothy for not recognizing and
attempting to avoid the danger. In respect of the latter point, I am persuaded that the trial
court also erred in refusing to instruct the jury that because of his age, Timothy was incapable
of contributory negligence as a matter of law.
As previously observed, McDonalds argued that its own liability to Timothy should have
been eliminated by the child's failure to recognize and avoid the hot surface of the carousel.
This was improper. As a matter of law, Timothy was incapable of appreciating the hazard
presented by the Whirl. Clark v. Circus-Circus, Inc., 525 F.2d 1328 (9th Cir. 1975). As
stated in Comment (b) to 283A of the Second Restatement:
A child of tender years is not required to conform to the standards of behavior which it
is reasonable to expect of an adult. His conduct is to be judged by the standard of
behavior to be expected of a child of like age, intelligence, and experience. A child may
be so young as to be manifestly and utterly incapable of exercising any of those
qualities of attention, perception, knowledge, experience, intelligence, and judgment
which are necessary to enable him to perceive a risk and to realize its unreasonable
character . . . The prevailing view is that in tort cases no [age] limits can be fixed.
Undoubtedly there is a minimum age, probably somewhere in the vicinity of four years,
below which negligence can never be found. (Emphasis added.)
I hardly view as Procrustean a realistic acknowledgment in the law that a child under the
age of four years is incapable of negligence. A jury should not be permitted to speculate on an
issue that reason and experience place outside the realm of speculation.
Instruction 9-C misstated the law and created a strong potential for jury confusion on the
issue of McDonalds' duty of care to little Timothy. My brethren in the majority have
recognized that an erroneous instruction as to the duty or standard of care owing by one
party to the other is substantial error requiring another trial."
by one party to the other is substantial error requiring another trial. Otterbeck v. Lamb, 85
Nev. 456, 463, 456 P.2d 855, 860 (1969). I agree, and since the standard of care specified in
the last paragraph of Instruction 9-C is clearly not the law under the circumstances of this
case, a new trial is mandated. I therefore respectfully dissent from the opinion and decision of
the majority.
____________
102 Nev. 543, 543 (1986) Leonard v. Stoebling
JOSEPH LEONARD and BETTY LEONARD, JOHN MORROW and PATRICIA
MORROW, Appellants, v. E. DAVID STOEBLING, Respondent.
No. 16289
December 5, 1986 728 P.2d 1358
Appeal from an order denying mandatory injunctive relief for violation of restrictive
covenants. Eighth Judicial District Court, Clark County; Richard L. Legarza, Judge.
Property owners brought action seeking mandatory injunction for violation of restrictive
covenants protecting view from their property and for breach of personal agreement not to
build on portion of building lot. The district court denied mandatory injunctive relief.
Property owners appealed. The Supreme Court held that: (1) trial court's finding of fact, that
the architectural control committee considered property owners' view before granting
variance from restrictive covenants for construction of home addition, was clearly erroneous;
(2) committee's conclusion of law in granting variance for home addition was arbitrary; and
(3) mandatory injunctive relief was appropriate.
Reversed and remanded with instructions.
[Rehearing denied January 21, 1987]
Kenneth G. Freitas, Las Vegas, for Appellants.
John M. Sacco, Las Vegas, for Respondent.
Trial court's finding of fact, that the architectural control committee had taken property owners' view into
consideration before granting variance from restrictive covenant for house addition, was clearly erroneous
and had to be set aside, where trial court made pronouncement at trial that was contrary to such finding and
where there was no support in the record for such finding.
2. Convenants, Injunction.
Failure of architectural control committee to visit site of proposed addition to home and to ascertain
addition's impact on view of other property owners in subdivision, prior to granting variance
from restrictive covenant provisions for construction of such addition, was
unreasonable per se, and thus committee's decision, based on such inaction and
disregard for property owners' rights under restrictive covenant, was arbitrary
warranting injunctive relief.
property owners in subdivision, prior to granting variance from restrictive covenant provisions for
construction of such addition, was unreasonable per se, and thus committee's decision, based on such
inaction and disregard for property owners' rights under restrictive covenant, was arbitrary warranting
injunctive relief.
3. Covenants.
Fact that homeowner complied with all policies and procedures required for obtaining variance from
restrictive covenant for construction of home addition, did not preclude finding that homeowner violated
restrictive covenant by building addition, where addition was in violation of restrictive covenant
provisions.
4. Injunction.
Fact that one-story homes could be built up to 25 feet high in the city and that homeowner's two-story
home with addition was only 18 feet high did not preclude imposition of mandatory injunction requiring
restoration of property owners' view destroyed by the addition, where all construction had to be approved
by the architectural control committee by virtue of restrictive convenants attached to homeowner's property
and where 25 foot single-story home could not have been approved by the committee in harmony with
requirements of those restrictive convenants.
5. Injunction.
Degree of injuries suffered by property owners, whose view was blocked by home addition constructed in
violation of restrictive covenant, was sufficient to warrant mandatory injunction requiring restoration of
property owners' view, even if such injunction ultimately required removal of the entire addition.
OPINION
Per Curiam:
This action was originally brought by the Leonards and Morrows seeking a mandatory
injunction for violation of the restrictive covenants protecting the Marina Highland Estates
subdivision and for the breach of a personal agreement not to build on a portion of a building
lot. Appellants allege that Stoebling's structure was wrongfully approved by the Marina
Highland Estates' Architectural Control Committee and that this approval was unreasonable,
arbitrary and in bad faith.
Leonard and Morrow filed a complaint for declaratory and injunctive relief seeking to
define their rights under the Declaration of Protective Convenants encumbering the
subdivision. They also sought to have Stoebling's ongoing construction curtailed by an
injunction.
The structure in question, an addition to Stoebling's home, was approved by the
Architectural Control Committee for the Marina Highlands Estates' subdivision on May 9,
1983. The history behind the approval is considerable.
Sometime in 1979, Stoebling purchased his building lot. It is located in Boulder City and
is a view lot overlooking Lake Mead.
Leonard purchased a home in the subdivision in 1977 and Morrow purchased a home in
1980. All of the building lots in this subdivision were bound by the following restrictive
covenant:
C-1 Land Use and Building Type:
All lots in said Tract No. 120 shall be used, improved and occupied in accordance
with the uses prescribed by the City of Boulder Zoning Ordinance under (R-1-8) and
Ordinance Classification #176. No structure on said premise shall exceed one (1) story
in height, above ground level, except that the Architectural Control Committee may
grant a special variance regarding two (2) story structures, if in their opinion, such will
not restrict the view and the esthetics for others within the area (emphasis added).
In early 1980, Stoebling approached the Architectural Control Committee
1
for approval of
the original construction of his home.
2
Pursuant to the instructions of the Architectural
Control Committee, Stoebling also sought approval from Leonard.
Stoebling asked Leonard to sign a document giving him permission to build on his lot.
Stoebling explained to Leonard that he wanted to build a two-story structure on the northeast
portion of the lot, but only construct one story on the northwest corner of his lot bordering on
the back part of Leonards' lot.
The document signed by Joe Leonard giving approval states the following:
I, Joe D. Leonard, who resides at 725 Kendall Lane, Boulder City, Nevada, do not
object to David Stoebling building at 729 Kendall Lane, Boulder City, Nevada, a
residence with one and one-half stories on the north east corner only, provided that
said building does not exceed the normal height of a singly family residence (emphasis
added).
Stoebling accepted this from Leonard and also stated to him at the same time, I did say to
him, yes. I told him I would never block his view in the setback as long as I was his
neighbor.
____________________

1
This is a committee of three lay individuals who approve all developments in the Marina Highland
subdivision. The duties and calling of this committee are outlined in the Restrictive Covenants.

2
Pursuant to Restrictive Covenant C-2, Mr. Stoebling was required to have his plans approved by the
Architectural Control Committee:
C-2 Architectural Control:
No building shall be erected, placed or altered on any lot until the construction plans and
specifications and a plan showing the location of the structure have been approved by the Architectural
Control Committee as to quality of workmanship and materials, harmony of external design with existing
structures, and as to location with respect to topography and finish grade elevation. No fence or wall shall
be erected, placed or altered on any lot nearer to any street than the minimum building setback line unless
similarly approved.
his view in the setback as long as I was his neighbor.
3
Mr. Stoebling then proceeded with
the construction of the original portion of his house.
In early 1983, Stoebling decided to put an addition on his home. This addition was placed
in the rear of Stoebling's property. Stoebling received permission from the Architectural
Control Committee to build this addition on May 9, 1983. He was issued a building permit by
the City of Boulder on June 7, 1983.
The deliberations of the Architectural Control Committee regarding Stoebling's addition
are set forth in a deposition that was admitted into evidence by stipulation. The deposition
reflects serious deficiencies in the deliberative process of the Architectural Control
Committee.
The restrictive covenants for the subdivision instructed the Architectural Control
Committee to only allow second story variances if the construction would not impact the
view and aesthetics for other members of the community.
4
The following segment of the
deposition illustrates the lack of adherence to these standards in the committee's fact finding
process:
Q Okay. Did you or other members of your committee that you are aware of
consider the impact that structure would have on the Leonard's or Morrow's view before
you gave your approval?
A Frankly, the question didn't come up because it didn't appear to us that it would
have an impact on the Leonard's property.
5

No member of the Architectural Control Committee visited Leonards' property in considering
whether to grant approval for the addition. The Architectural Control Committee's rationale
for approval was prior approval, by Leonard and the earlier Architectural Control
Committee, of the original structure which had a second level on the northeast portion of
the property.
____________________

3
The setback area is a 20' strip in the back of all lots in the Marina Highland Estate Subdivision. No building
is allowed in the setback. The record, briefs and exhibits indicated that Mr. Leonard's view of Lake Mead
included looking through the setback area. This view was disturbed by Mr. Stoebling's construction, as
acknowledged by the trial court.

4
See supra Restrictive Covenant C-1, Land Use and Building Type.

5
Apparently the trial court determined at trial that the Architectural Control Committee did not take the view
into consideration in granting the variance:
The record should also reflect that the Court has read the deposition [of John N. Harman, Jr.], the Court
has reviewed the photographs and the other exhibits in evidence . . . and it's obvious that thethat the
view isis obstructed. It's obvious that the Architectural Control Committee may grant the variance that
they did grant if, in their opinion, it would not restrict the view and aesthetics for others within the area. It
is also obvious from the deposition that the consideration was not looked at when the variance was given
. . . (emphasis added).
approval was prior approval, by Leonard and the earlier Architectural Control Committee, of
the original structure which had a second level on the northeast portion of the property.
Ultimately, the trial court found, contrary to its pronouncement at trial and without any
support in the record, that the Architectural Control Committee had taken the Leonards' and
Morrows' view into consideration before granting the variance for Stoebling's addition.
6
This
was error.
Erroneous Findings of Fact
[Headnote 1]
Appellants contend that reversal is mandated because the lower court's findings of fact are
not supported by substantial evidence and are clearly erroneous. The record indicates that the
trial court did, indeed, find facts which directly controvert the evidence admitted at trial.
The trial court found that the Architectural Control Committee had considered the impact
of Stoebling's addition on the view of the lake from the properties belonging to the Leonards
and Morrows. The only evidence presented to the trial court regarding the Architectural
Control Committee's deliberations was the deposition of committee member John Harman.
The trial court concluded at trial that there was nothing in Harman's deposition to indicate
that the architectural Control Committee had taken Leonards' and Morrows' views into
consideration, despite the court's subsequent findings of fact.
7

The principal rationale of the Architectural Control Committee for approving Stoebling's
addition, based upon Harman's deposition, was the fact that Leonard had approved the
original plan for Stoebling's home by signing an agreement which indicated he would not
object to Stoebling's construction on only the northeast corner of his property. The facts
indicate that the Architectural Control Committee did not take the appellants' views into
consideration, nor did the committee even view the site when making its deliberations on
Stoebling's addition to the original structure.
____________________

6
The lower court makes the following finding of fact in its decision:
That in considering Defendant's request for a variance the Architectural Control Committee of Marina
Highland Estates did not go on to the actual property of Plaintiffs', but were aware of its condition and
the prior approval of a two (2) story structure given by plaintiff, LEONARD, to Defendant in 1980. That
the Architectural Control Committee of Marina Highland Estates, in granting the variance to Defendant,
considered the impact of Defendant's addition on the view of the Plaintiffs in that they had knowledge of
the actual condition on Plaintiffs' property, all in compliance with the guidelines of the Declaration of
Protective Covenants for Marina Highland Estates.
For the trial court's conflicting pronouncement at trial see supra note 5.

7
See supra note 5.
eration, nor did the committee even view the site when making its deliberations on
Stoebling's addition to the original structure.
The standard for setting aside an erroneous finding of fact is found in NRCP 52(a):
(a) Effect. In all actions tried upon the facts without a jury or with an advisory jury,
the court shall find the facts specially and state separately its conclusions of law thereon
and direct the entry of the appropriate judgment; and in granting or refusing
interlocutory injunctions the court shall similarly set forth the findings of fact and
conclusions of law which constitute the grounds of its action. Requests for findings are
not necessary for purposes of review. 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 of the credibility of the witness.
This court has stated that findings of fact will not be disturbed on appeal if they are
supported by substantial evidence. Burroughs Corp. v. Century Steel, Inc., 99 Nev. 464, 470,
664 P.2d 354, 357 (1983). In Burroughs, this court went on to cite NRCP 52(a) and stated
that findings of fact shall not be set aside unless clearly erroneous. Id. at 470, 664 P.2d at
358. This standard of review is supported in many Nevada decisions.
The evidence is clear that the Architectural Control Committee did not take the view and
aesthetics of the Leonards and Morrows into consideration prior to granting permission for
the Stoebling addition. The lower court, sometime during trial, misunderstood the evidence as
it was presented and drafted a clearly erroneous finding of fact. The finding of fact which
indicates that the Architectural Control Committee took appellants' view into consideration
must therefore be set aside.
Deficient Conclusions of Law
[Headnote 2]
Appellants also challenge the trial court's conclusion of law that the Architectural Control
Committee followed the guidelines specified in the restrictive covenants and that its decision
was not arbitrary. Appellants' contend that the term arbitrary should be given a broad
definition to include bad faith and unreasonable.
8
The parties agree that the decisions of
the Architectural Control Committee were not arbitrary if they were reasonable and were
in good faith.
____________________

8
Black's Law Dictionary (Rev. 4th ed. 1968) defines arbitrary in the following manner:
Means in an arbitrary manner, as fixed or done capriciously or at pleasure; without adequate
determining principle; not founded in the nature of things; nonrational; not done or acting according to
reason or judgment; depending on the will alone; absolutely in power; capriciously; tyrannical; despotic.
. . .
Control Committee were not arbitrary if they were reasonable and were in good faith. See
Cohen v. Kite Hill Association, 191 Cal.Rptr. 209, 213-14 (1983).
Appellants maintain that the actions of the Architectural Control Committee do not show
good faith or reasonableness based upon their approval of the variance without an on site
inspection, without a conversation with the appellants and without consideration of the views
of the Leonards or Morrows.
Stoebling suggests that although the reasonable and good faith standard is correct, that
contrary to Cohen, the Architectural Control Committee had no specific guidelines to follow
and therefore the lack of written guidance should be a factor in determining whether the
Architectural Control Committee's conduct was arbitrary, unreasonable or in bad faith. The
restrictive covenants, however, indicate that the Architectural Control Committee had one
important guideline. This was to ensure that no new construction or additions blocked the
view or damaged the aesthetics of other residents in the subdivision. The committee failed to
adhere to this paramount guideline.
Our review of the record conclusively reveals that the Architectural Control Committee
gave no heed to the impact of the Stoebling addition on appellants' view of the lake. The
committee's perfunctory deference to its prior approval of the original structure presented no
basis for a meaningful exercise of its function to assure a perpetual lake view advantage to
appellants and the other residents who had constructed homes within the unique setting of the
subdivision. At minimum, the committee members should have visited the proposed
construction site and ascertained its impact on appellants' properties. The committee's failure
to undertake such a minimum effort is unreasonable per se. The product of the committee's
inaction and disregard for appellants' rights was an arbitrary decision that warranted
injunctive relief by the trial court.
The Injunctive Remedy
[Headnote 3]
Stoebling makes several arguments why an injunction would be an inappropriate remedy.
First, he suggest that because he complied with all of the policies and procedures required for
a variance, that he did not violate the restrictive covenant by receiving approval for his
structure. This argument has some surface appeal, but is specious when analyzed in light of
the facts and the competing equities.
Stoebling promised not to obstruct the Leonards' view. He nevertheless proceeded with
new construction that he realized would block the Leonards' view in violation of his
commitment. The Architectural Control Committee could not have made a good faith
determination based upon the guidelines regarding views and aesthetics if it had been
privy to Stoebling's promise.
good faith determination based upon the guidelines regarding views and aesthetics if it had
been privy to Stoebling's promise. In any event, the committee did not comply with the
overriding concern the covenants when it failed to take appellants' view into consideration.
Either the committee purposely allowed Stoebling to violate the covenants, or the committee
was so inept in reaching its decision that it unknowingly approved Stoebling's intentional
violation of the covenants.
[Headnote 4]
Next, Stoebling cites Drulard v. LeToiurneau, 593, P.2d 1118 (Ore. 1979), for the
proposition that a court should not impose a mandatory injunction in a case such as the
instant one because if Stoebling had chosen to build a one-story house up to the maximum
height limit, 25 feet in Boulder City, that he would not have had to acquire a variance (they
are only required for two-story houses) and that this would have had a much greater impact
on Leonards' view. Therefore, he concludes, since appellants were potentially subject to a
25-foot-high one-story structure, equity should not enjoin the construction of a two-story 18
foot high home, even if the required approval process was flawed.
This reasoning lacks merit. All construction, original or additions, had to be approved by
the Architectural Control Committee. Variances are only required for second story additions.
The committee could not have approved a 25 foot single story home next to the Leonards and
been in harmony with the requirements of the restrictive covenants.
9

[Headnote 5]
Lastly, Stoebling contends that the degree of injury to appellants is insufficient to warrant
a mandatory injunction. He asserts that the Leonards and Morrows should have sought money
damages, but that none were alleged and therefore none can be awarded. An Oregon court
made a cogent observation regarding the value of a view in Glover v. Santangelo, 690 P.2d
1083, 1086 (Or.Ct.App. 1984):
A view is a unique asset for which a monetary value is very difficult to determine.
Plaintiff testified that the view was a crucial factor in their decision to buy the home. . .
. Defendant's position is made weaker by the fact that he purchased with full knowledge
of the covenant. He was therefore, [sic] obligated to comply with it. . . . Accordingly we
hold that plaintiffs are entitled to have the illegally obstructed portion of their view
restored.
The situation is virtually the same in the instant case.
Mandatory injunctions are used to restore the status quo, to undo wrongful conditions.
____________________

9
See supra note 2.
undo wrongful conditions. A court should exercise restraint and caution in providing this type
of equitable relief. However, mandatory injunctions have been sanctioned in the recent past to
accomplish the restoration of the status quo in such matters as water rights, Memory Gardens
of Las Vegas v. Pet Ponderosa M.G., 88 Nev. 1, 492 P.2d 123 (1972), and the reconstruction
of roadway, City of Reno v. Matley, 79 Nev. 49, 378 P.2d 256 (1963).
In balancing the equities and considering the circumstances noted above, we have
concluded that the judgment below must be reversed and a mandatory injunction issued.
A mandatory injunction is a stern remedy. It is therefore incumbent upon the trial court
upon remand, to structure the injunction so as to accomplish the restoration of appellants'
view with the least degree of detriment to respondent. However, if a modification of
respondent's addition will not achieve the status quo, then he offending structure must be
removed in its entirety.
____________
102 Nev. 551, 551 (1986) Cunningham v. District Court
COMMANDER JERRY CUNNINGHAM, Chief of Detectives of the Las Vegas
Metropolitan Police Department, Petitioner, v. EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and for Clark County and The Honorable
PAUL GOLDMAN, District Court Judge, Department X, Respondent.
No. 17627
December 10, 1986 729 P.2d 1328
Original petition for a writ of prohibition or, alternatively, habeas corpus.
Police commander who had been held in direct contempt of court petitioned for writ of
prohibition, or alternatively, for a writ of habeas corpus. The Supreme Court held that: (1)
judge's phone conversation with police commander's secretary, directing police commander to
appear at courthouse, was not clear and unambiguous order such as would support judgment
of contempt, and (2) district judge had no authority to order police commander to appear
before him, except in connection with pending criminal or civil action.
Petition granted.
Robert J. Miller, District Attorney, and Charles K. Hauser, Deputy District Attorney,
Clark County, for Petitioner.
The Honorable Paul S. Goldman, Judge of the Eighth Judicial District Court, in propria
persona.
Morse & Mowbray and Christopher H. Byrd, Las Vegas, for KLAS-TV, Inc.
1. Contempt.
Order on which judgment of contempt is based must be clear and unambiguous, and must spell out details
of compliance in clear, specific and unambiguous terms, so that person will readily know exactly what
duties are imposed on him.
2. Contempt.
Judge's phone conversation with police commander's secretary, directing police commander to appear at
courthouse, was not clear and unambiguous order such as would support judgment of contempt, where
secretary testified that judge did not properly identify himself, did not otherwise identify purpose of call,
and did not leave number at which commander could return call.
3. Judges.
District judge has no authority, inherent or otherwise, to order person to appear before him except as
expressly provided by law.
4. Judges.
A district judge had no authority to order police commander to appear before him to discuss release of
videotape to news media, where, at time of judge's order, there was no criminal or civil action involving
right to possess videotape pending before judge.
5. Prohibition.
Writ of prohibition will lie to prevent district court from exceeding its jurisdiction. NRS 34.320.
OPINION
Per Curiam:
This petition for a writ of prohibition or, alternatively, a writ of habeas corpus, challenges
a purported order of the respondent District Court Judge Paul S. Goldman. The order held
petitioner, Commander Jerry Cunningham, Chief of Detectives of the Las Vegas Metropolitan
Police Department, in direct contempt of court, and sentenced him to jail for 48 hours or
until further order of the court, whichever occurs last. Because the record reflects that Judge
Goldman acted without any jurisdiction whatever, misusing and abusing his judicial
authority, we vacate his purported order and grant petitioner Cunningham's request for a writ
of prohibition.
On October 6, 1986, at approximately 11:00 p.m., a man named Hajo Harms jumped from
an airplane to his death. Harms had previously paid several individuals, including two
photographers, to videotape and witness his fall from the airplane, apparently without the
benefit of a parachute. The group flew to a location over the desert where, during the flight,
Harms opened the door and fell from the airplane at an altitude of 9500 feet.
the door and fell from the airplane at an altitude of 9500 feet. All of the people remaining on
board the aircraft believed that Harms had fallen to his death, as it did not appear to them that
Harms was wearing a parachute. Upon returning to the airport, the group immediately
reported the incident to the Las Vegas Metropolitan Police Department, which seized the
video tapes as evidence. As reflected by police investigative reports, Harms had previously
purchased the video tapes from the photographers and, prior to take-off, had marked each
tape with the words, This is the personal property of Joe H. Harms, viewing or copying is
prohibited.
By the afternoon of October 8, 1986, Harms' body was found in the desert area.
Thereupon, it was learned that he in fact had been wearing a small, concealed parachute
which malfunctioned, and that he had been killed as a result of the fall. Not far distant from
where the body was found, a vehicle was parked. The doors of the vehicle were locked and
two flashlights with dead batteries were found on the dashboard pointed skyward through the
front windshield. The vehicle was later determined to be registered to Hajo Harms. Harms
had apparently determined the location at which to jump from the airplane by following
major roadways and spotting the flashlight shining through the windshield at night. Had
Harms' ploy worked as planned, he presumably would have gotten into his vehicle, driven
away, and given the impression that he had fallen to his death.
It appeared to the police that Harms had perpetrated a deception upon those who
accompanied him in the aircraft, and upon the public by documenting the incident on video
tapes. Consequently, Commander Cunningham believed that an investigation should be
conducted to discover what motivated his act. Cunningham reasoned that Harms had
conceivably acted (1) to gain publicity; (2) to escape the judicial process by establishing, for
example, that he was undoubtedly dead as a result of the fall; or (3) to facilitate an insurance
fraud scheme. Commander Cunningham believed that a complete investigation was essential
and that the video tapes were evidence.
On October 8, 1986, at approximately 3:30 p.m., Commander Cunningham learned of the
discovery of Harms' body from Undersheriff Cooper, who phoned Cunningham to inquire
about releasing the video tapes to the news media. Cunningham reportedly told Cooper that
he did not think it was appropriate to release the video tapes since there had not been any
notification of the next of kin, and public identification of the victim through the airing of the
video tapes would therefore be prohibited. Additionally, Cunningham stated that he
considered the tapes evidence in a death investigation. Shortly thereafter, at 4:20 p.m.,
Commander Cunningham received a call from Mark Fierro, a reporter with KLAS-TV, Inc.,
inquiring about the possibility of obtaining a copy of the tapes.
with KLAS-TV, Inc., inquiring about the possibility of obtaining a copy of the tapes. (By this
time, Cunningham's detectives had formulated a hypothesis, based on finding slits in Harms'
unopened parachute, to the effect that perhaps the chute had been sabotaged.) Commander
Cunningham told Fierro that he considered the tapes evidence in a death investigation and
that, therefore, he would not release them. Cunningham thereafter left his office for the day.
Fierro then verbally contacted Judge Goldman to discuss the release of the tapes, and
provided Judge Goldman with Cunningham's telephone number. At approximately 4:25 p.m.,
Judge Goldman telephoned the Las Vegas Metropolitan Police Department and demanded to
speak to Commander Cunningham. Upon being informed that Commander Cunningham had
left the office for the day, Judge Goldman told Cunningham's secretary that if Cunningham
did not appear at the courthouse in ten minutes, he would have Cunningham arrested.
According to Cunningham's secretary, Judge Goldman did not properly identify himself, was
rude and belligerent on the telephone, and had hung up abruptly without allowing the
secretary to verify his name (the secretary thought the irate caller said he was George
Goldman) and without leaving a number at which Cunningham could return the call. Judge
Goldman did not identify the purpose of his call, nor did the caller state that it was in relation
to any specific case pending before the district court. Commander Cunningham, who had not
yet left the police station, checked with his secretary shortly before 5:00 p.m. and received the
message that George Goldman, or possibly Judge Goldman, had called. The secretary's
written message recited as follows:
TO: Cmdr.
DATE: 10/8/86 TIME: 4:25 P.M.
MESSAGE FOR YOU
MR. George (?) Goldman
OF: (Possibly Judge Goldman)
PHONE: Left none EXT........
MESSAGE:
Said that if you weren't enroute to the Court in 10 minutes that he would have you
arrested.
This person was very rude. He said what he had to say and then hung up before I
could verify his name, get a phone #, find out if he was crazy, or what. He gave his
name twice and both times it sounded like George Goldman, although Judge would
make more sense, probably.
CLF
Cunningham did not attempt to respond at that time.
Subsequent investigation revealed that Judge Goldman's secretary recalls overhearing the
judge yelling at someone over the telephone at approximately 4:28 p.m. that day. She too
heard him tell the other party on the telephone that he (Judge Goldman) was going to have
Commander Cunningham arrested if he did not return his call. Additionally, Judge Goldman's
bailiff related that, shortly after this telephone call,
I walked in, came out of court and walked into his [the judge's] chambers, he told me
that he was trying to get a hold of Commander Cunningham and that Commander
Cunningham was ducking his call and wouldn't return his call and that, by God, he gave
him ten minutes to be in his chambers and that five minutes had already gone by and
that if he didn't show up he was going to have me arrest him, and I said, God, judge,
not another one.
1
. . . [H]e said, You bet your a...., I'm gonna have his a..... . . . He
said, Commander Cunningham better not f... with him. First of all he said that he
knows he's on duty 24 hours a damn day and they know how and where to get a hold of
him so that he could talk to him and he said, The Commander ain't gonna f...... with
me . . . He said, . . . because . . . he knew where all the g....d.... skeletons were and
they better not f..... with him.
While we have felt impelled to delete portions of Judge Goldman's reported remarks, we feel
constrained to observe that they reflected unrestrained anger and apparent purpose to injure
the Commander.
Judge Goldman then telephoned attorney Christopher Byrd, who was in another judge's
chamber at the time and whose law firm was representing KLAS-TV, Inc., telling Byrd to
prepare an order for Goldman's signature requiring the release of the video tapes.
____________________

1
The bailiff apparently was referring here to a series of incidents occurring that same week during which
Judge Goldman had held other individuals in contempt of court, and ordered them jailed. These incidents
included an 87-year-old woman who refused to testify against her son in a criminal matter, and a courthouse
maintenance supervisor who had scheduled repairs on the roof of Judge Goldman's chamber at a time when
Judge Goldman subsequently decided to hold court. The bailiff may also have been referring to numerous other
incidents that have occurred over the years, in which Judge Goldman has inappropriately jailed or threatened to
jail various county employees without cause. See, e.g., Bowman v. District Court, 102 Nev. 474, 728 P.2d 433
(1986); Clark Cty. Dist. Atty. v. District Court, 101 Nev. 843, 710 P.2d 1384 (1985). The records of the County
Clerk's office, of which we may take judicial notice, see Cannon v. Taylor, 88 Nev. 89, 493 P.2d 1313 (1972),
indicate that at least twenty times in the last nine years, Judge Goldman has undertaken to hold in contempt of
court personnel in the Clerk's office who he believed had transgressed his authority.
tapes. Apparently, attorney Byrd had consulted the other judge late in the afternoon on
October 8, 1986, upon finding that Judge Goldman was presiding over a trial and was not
immediately available. Byrd advised the other judge that his firm was representing KLAS-TV
and one of the photographers who had video taped Harms' fall, that he wanted a court order
requiring the release of the tapes, and that Judge Goldman was also involved in the matter.
The other judge spoke with Judge Goldman, who informed him that he had attempted to
contact Commander Cunningham, but that Commander Cunningham was ducking him. In
the presence of attorney Byrd, the other judge then agreed with Judge Goldman that either he
or Goldman would sign an order requiring the release of the tapes, whoever was available
when it was ready.
At 4:45 p.m., Judge Goldman was called back into a jury trial. Consequently, at
approximately 6:15 p.m. that evening, the other judge signed an order requiring the release of
the video tapes to KLAS-TV, Inc., for purposes of copying. At approximately 7:30 p.m. that
evening, representatives of KLAS-TV, Inc., presented the order to the desk officer at the
police station. No formal action of any kind was pending either before Judge Goldman or
before the other judge at the time this order was signed, or when the copy was presented to
the desk officer. Moreover, the copy of the order left at the police department was not file
stamped, nor did it have any case number, department number or docket number appearing on
it. Therefore, this order, not having been properly entered, was ineffective for any purpose.
See NRCP 58(c). Nevertheless, the police department complied with the order as
expeditiously as possible. Because the evidence vault containing the video tapes had been
locked for the night, the police department allowed the copies of the video tapes to be made
the following morning.
On October 9, 1986, attorney Byrd purported to file, on behalf of KLAS-TV, Inc. and the
photographer, a document in the district court entitled Application for Access to
Video-tape. The Application was designated case Number A251505, Docket Number H,
and was rotationally assigned to Department V, over which the Honorable John F. Mendoza
presides. Byrd thereupon caused the order signed the previous evening, which required the
release of the video tapes, to be filed and designated with the new case number, even though
Judge Mendoza had done nothing in regard to its formulation. Thus, the incorrect appearance
was created that the fugitive order actually signed on October 8 was responsive to, and
executed after, the application filed on October 9.
In passing, it should be noted that we know of no legal authority which would permit a
person asserting an interest in personal property to obtain recovery of that property
through such a motion or "application."
authority which would permit a person asserting an interest in personal property to obtain
recovery of that property through such a motion or application. NRCP 2 and 3 provide that
there is but one form of civil action which is commenced by the filing of a complaint with the
court. See also NRCP 7 (pleadings allowed in a civil action); NRS 31.840, et. seq. (setting
forth procedures for claims and delivery in actions to recover possession of personal
property). In any case, although no civil action whatever involving the video tapes was
presently pending before his department, Judge Goldman then proceeded to issue an order on
October 9, 1986, to Commander Cunningham, requiring him to appear in Department X
(Goldman's court) the following day at 9:00 a.m., and show cause why he should not be
adjudged guilty of civil contempt for failure to obey this court's [Judge Goldman's] order of
October 8, 1986, to appear in chambers. Judge Goldman's order stated that he had ordered
[Commander] Cunningham to appear in the Chambers of Department X of the District Court
. . . on Wednesday, October 8, 1986, to respond to inquiries concerning a videotape in the
possession of the Las Vegas Metropolitan Police Department, and that the Commander had
failed to appear as ordered. Judge Goldman designated his order as in case Number
A251505, Department V, which is Judge Mendoza's court, and caused it to be so filed.
2

The next morning, on October 10, 1986, Commander Cunningham appeared at the show
cause hearing before Judge Goldman, represented by Deputy District Attorney Charles
Hauser. The following exchange occurred:
THE COURT: For purposes of the record, this Court ordered Mr. Byrd to prepare an
Order to Show Cause to be served on Commander Cunningham for his failure to appear
to this Court's order of the other day, and, Mr. Cunningham, is there anything you wish
to say, sir?
COMMANDER CUNNINGHAM: My position is I did not recognize your phone
call which was relayed to me as one who was irrational, rude and would not wait for
feedback as to phone numbers and as to really who you were. That is not something that
I recognize as a lawful order of any Court.
THE COURT: All right sir . . . I find you in direct contempt and put you in jail right
now for 48 hours or until further order of the Court, whichever occurs last.
COMMANDER CUNNINGHAM: Do I have a
MR. HAUSER: For the record, could we ask that this be transferred to a neutral
judge to have a hearing on the matter?
____________________

2
Commander Cunningham was not served with Judge Goldman's order until 2:00 p.m. on October 9, 1986.
be transferred to a neutral judge to have a hearing on the matter?
THE COURT: That objection is not timely, Counsel. He is remanded to custody
forthwith.
MR. HAUSER: For the record also, your Honor, we believe there was no direct
order because there was no case in front of the Court. So, there is no contempt.
Pursuant to Judge Goldman's purported order, the bailiff arrested and handcuffed Commander
Cunningham, confiscated his weapon, and led him to the jury box where he was required to
sit with other prisoners for approximately thirty minutes while Judge Goldman completed his
calendar. Thereafter, Commander Cunningham was transported to the Clark County
Detention Facility where he was photographed, fingerprinted and booked. The booking slip
delivered to the jail with Commander Cunningham conveyed Judge Goldman's directive: No
bail, no writs.
Immediately thereafter, the District Attorney's office petitioned this court for extraordinary
relief, challenging Judge Goldman's order. Unfortunately, Commander Cunningham was held
in custody for about five hours, at which time he was released pursuant to an order of this
court staying Judge Goldman's order of contempt. This court ordered an answer to the
petition from respondent Judge Goldman, and the time for opposing the petition expired on
November 12, 1986. Judge Goldman has not responded to the petition, and no answer has
ever been filed on his behalf. Thus, the matter is ripe for this court's disposition.
Commander Cunningham contends that Judge Goldman acted without jurisdiction in
entering the contempt order; that there was never any civil or criminal action pending before
Judge Goldman upon which to issue a contempt order pursuant to NRS 22.010; that he could
not be held in contempt for an act which was not clearly proscribed; and that, in any case, he
did not act contemptuously. Commander Cunningham argues that, therefore, Judge
Goldman's order punishing him for contempt is void. We agree.
NRS 22.010 and NRS 199.340 list the acts or omissions which constitute contempt.
3
See
Bowman v. District Court, 102 Nev.
____________________

3
The following acts or omissions shall be deemed contempts:
1. Disorderly, contemptuous or insolent behavior toward the judge while he is holding court, or
engaged in his judicial duties at chambers, or toward masters or arbitrators while sitting on a reference or
arbitration, or other judicial proceeding.
2. A breach of the peace, boisterous conduct or violent disturbance in the presence of the court, or in
its immediate vicinity, tending to interrupt the due course of the trial or other judicial proceeding.
3. Disobedience or resistance to any lawful writ, order, rule or process issued by the court or judge at
chambers.
474, 728 P.2d 433 (1986) (reversing Judge Goldman's order holding the clerk of the court in
contempt). See also Clark Cty. Dist. Atty. v. District Court, 101 Nev. 843, 710 P.2d 1384
(1985) (reversing Judge Goldman's order holding the Office of Clark County District
Attorney in direct contempt of court and imposing a fine). Commander Cunningham's actions
did not fall within any of the acts or omissions enumerated in NRS 22.010 or NRS 199.340.
Cunningham was not disorderly, contemptuous or insolent. No breach of the peace,
boisterous conduct or violent disturbance took place. Cunningham did not abuse the
processes or proceedings of the court, nor was there a showing that he deliberately or
recklessly disregarded his duties with respect to the court. Further, Cunningham did not
disobey or resist any lawful writ, order, rule or process issued by the court. As Cunningham
noted in his comments at the show cause hearing, the district court did not issue any lawful
order to Cunningham to appear at the courthouse on October 8, 1986.
[Headnotes 1, 2]
An order on which a judgment of contempt is based must be clear and unambiguous, and
must spell out the details of compliance in clear, specific and unambiguous terms so that
the person will readily know exactly what duties or obligations are imposed on him.
____________________
4. Disobedience of a subpena duly served, or refusing to be sworn or answer as a witness.
5. Rescuing any person or property in the custody of an officer by virtue of an order or process of
such court or judge at chambers.
6. Disobedience of the order or direction of the court made pending the trial of an action, in speaking
to or in the presence of a juror concerning an action in which the juror has been impaneled to determine,
or in any manner approaching or interfering with such juror with the intent to influence his verdict.
7. Abusing the process or proceedings of the court or falsely pretending to act under the authority of
an order or process of the court.
Every person who shall commit a contempt of court of any one of the following kinds shall be guilty
of a misdemeanor:
1. Disorderly, contemptuous or insolent behavior committed during the sitting of the court, in its
immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect
due to its authority;
2. Behavior of like character in the presence of a referee, while actually engaged in a trial or hearing
pursuant to an order of the court, or in the presence of a jury while actually sitting in the trial of a cause
or upon an inquest or other proceeding authorized by law;
3. Breach of the peace, noise or other disturbance directly tending to interrupt the proceedings of a
court, jury or referee;
4. Willful disobedience to the lawful process or mandate of a court;
5. Resistance, willfully offered, to its lawful process or mandate.
6. Contumacious and unlawful refusal to be sworn as a witness or, after being sworn, to answer any
legal and proper interrogatory;
7. Publication of a false or grossly inaccurate report of its proceedings; or
8. Assuming to be an attorney or officer of a court or acting as such without authority.
clear and unambiguous, and must spell out the details of compliance in clear, specific and
unambiguous terms so that the person will readily know exactly what duties or obligations are
imposed on him. See Southwest Gas Corp. v. Flintkote Co., 99 Nev. 127, 659 P.2d 861
(1983). Judge Goldman's reported tirade to Commander Cunningham's secretary, described
by her as being very rude, cannot be deemed an unambiguous order to Commander
Cunningham, the terms of which should have been clear to and binding upon the
Commander. Thus, even if some proceeding concerning the video tapes had then been
pending, it is apparent that by not coming to Judge Goldman's chamber on October 8,
Commander Cunningham would in no way have committed a contemptuous act, and Judge
Goldman's subsequent order of commitment would have been arbitrary, capricious, and an
abuse of process and judicial authority.
[Headnotes 3, 4]
More importantly, it is apparent that Judge Goldman acted in excess of his jurisdiction not
only when he ordered Commander Cunningham to appear in his chamber within ten
minutes, but later when he issued the show cause order, and when he held Commander
Cunningham in contempt of court. No civil or criminal action was pending before Judge
Goldman during this time upon which such orders might lawfully issue. A district judge has
no authority, inherent or otherwise, to issue an order to anyone to appear before him except as
expressly provided by law. Because no criminal or civil action involving the right to possess
the video tapes was pending before Judge Goldman, he lacked subject matter jurisdiction
over the underlying dispute. Furthermore, because nothing remotely resembling a proper
order had been issued and served upon Cunningham, in regard to any proper proceeding,
Judge Goldman had no personal jurisdiction whatever over Cunningham. Even if the
necessary action had been properly before Judge Goldman, a district judge lacks jurisdiction
to order anyone to appear without cause and without reasonable notice, or outside the
ordinary process of the court. Such orders, entered without jurisdiction, constitute an abuse of
judicial power.
[Headnote 5]
A writ of prohibition will lie to prevent a district court from exceeding its jurisdiction. See
NRS 34.320; Goicoechea v. District Court, 96 Nev. 287, 607 P.2d 1140 (1980). In this case,
Judge Goldman not only exceeded, but acted without any jurisdiction whatever. Accordingly,
we grant Commander Cunningham's petition for a writ of prohibition. The order of the
district court holding Commander Cunningham in contempt is vacated as void, and the
district court is prohibited from taking any further action based on that order, based on
Judge Goldman's alleged oral order to appear, or based on Judge Goldman's order to
show cause.4
vacated as void, and the district court is prohibited from taking any further action based on
that order, based on Judge Goldman's alleged oral order to appear, or based on Judge
Goldman's order to show cause.
4

Finally, we would be remiss if we did not notice that, following his unlawful incarceration
of Commander Cunningham, Judge Goldman reportedly exacerbated the injury done to the
Commander by proclaiming to news media that his own actions were justified and that he
would therefore never apologize. Of course, public comment by a judge concerning pending
or impending litigation is prohibited. See Nev.Code of Judicial Conduct Canon 3A(6). In
view of Judge Goldman's public comments, we feel constrained to apologize to Commander
Cunningham on his behalf.
____________________

4
Because Christopher Byrd of the firm of Morse and Mowbray represented KLAS-TV below, the Honorable
John Mowbray, Chief Justice, voluntarily disqualified himself from consideration or disposition of this petition.
____________
102 Nev. 561, 561 (1986) Martinez v. District Court
LEONARDO MARTINEZ, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR CLARK COUNTY, and MICHAEL J.
WENDELL, DISTRICT JUDGE, Respondents.
No. 17482
December 15, 1986 729 P.2d 487
Original petition for a writ of mandamus.
Unemployment compensation claimant sought writ of mandamus to challenge district
court order denying his motion for leave to be represented by non-attorney. The Supreme
Court held that claimant had no right to be represented by agent other than counsel in court of
law.
Petition denied.
Leonardo Martinez, Las Vegas, In Proper Person.
Robert J. Miller, District Attorney, Clark County; Crowell, Crowell, Crowell & Susich,
and Daniel L. O'Brien, Carson City; Jeffrey Eskin, Las Vegas, for Respondents.
Attorney and Client.
Unemployment compensation claimant had no right to be represented by agent other than counsel in
court of law. NRS 612.705, subd. 2.
OPINION
Per Curiam:
1

This original petition for a writ of mandamus challenges an order of the district court
denying petitioner's motion for leave to be represented by an agent other than counsel.
Petitioner contends that NRS 612.705(2) gives him an absolute right to be represented by a
non-attorney agent in a proceeding before a court of law. We disagree.
Petitioner's employment was terminated and he sought unemployment benefits through the
usual administrative processes. Having failed to prevail before the Employment Security
Department, petitioner sought judicial review. Petitioner moved the district court for leave to
proceed in proper person and the district court granted the motion. Petitioner then moved the
district court for leave to be represented by an agent other than counsel pursuant to NRS
612.705(2). The district court initially granted this motion. However, on motion of the
Employment Security Department, the district court vacated its order allowing petitioner to be
represented by a non-attorney agent, and issued an order denying petitioner's motion to be
represented by an agent other than counsel. Petitioner now asks this court to order the district
court to allow him to be represented by a non-attorney agent.
NRS 612.705(2) (emphasis added) provides:
Any individual claiming benefits in any proceeding before the executive director or
the board of review, or his or its representatives, or a court, may be represented by
counsel or other duly authorized agent, but no such counsel or agents shall either
charge or receive for such services more than an amount approved by the board of
review.
This statute does not prescribe who may represent a client; it merely provides that an duly
authorized agent may collect a fee only as allowed by the board of review. In a court of law,
only a licensed attorney may be duly authorized to represent a client. See SCR 77; NRS
7.285. Therefore, petitioner has no right to be represented by an agent other than counsel in a
court of law. We have reviewed petitioner's remaining contentions, and we conclude that they
lack merit. Accordingly, we conclude that our intervention at this time by way of
extraordinary writ is not warranted, and we deny the petition.
____________________

1
This petition was originally disposed of in an unpublished order. Upon motion of the respondents, we have
determined that our decision should be issued in a published opinion. Accordingly, we hereby issue this opinion
in place of our Order Denying Petition for a Writ of Mandamus filed September 2, 1986.
intervention at this time by way of extraordinary writ is not warranted, and we deny the
petition. See NRAP 21(b).
2

____________________

2
In light of this disposition, we deny as moot petitioner's motion for leave to proceed in proper person.
____________
102 Nev. 563, 563 (1986) Garman v. State, Employment Security Dep't
LINDA GARMAN, Appellant, v. STATE OF NEVADA, EMPLOYMENT SECURITY
DEPARTMENT; STANLEY JONES, Executive Director; LAS VEGAS AREA
CAMP FIRE COUNCIL, INC., Respondents.
No. 16829
December 15, 1986 729 P.2d 1335
Appeal from order denying judicial review for the denial of unemployment benefits.
Eighth Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Employee appealed decision by Employment Security Department which rejected her
claim for unemployment compensation benefits. The district court affirmed decision by
Department and employee appealed. The Supreme Court held that employee's refusal to work
under rearranged time schedule did not constitute misconduct warranting refusal of
unemployment compensation benefits.
Reversed.
Graves, Leavitt, Cawley & Koch, Las Vegas, for Appellant.
Crowell, Crowell, Crowell & Susich, Carson City for Respondent Employment Security
Department; Steven Marzullo and William Phillips, Las Vegas, for Respondent Camp Fire
Council.
When analyzing concept of misconduct in employment, trier of fact must consider legal definition in
context with factual circumstances surrounding conduct at issue and misconduct becomes mixed question
of law and fact; findings of misconduct must be given deference similar to findings of fact when supported
by substantial evidence in the lower court.
Employee's conduct which prompted termination of employment must have element of wrongfulness in
order to constitute misconduct so as to prevent terminated employee from receiving unemployment
benefits.
Employee's refusal to work under rearranged time schedule which constituted change in condition of her
employment did not constitute misconduct in that her original time schedule was specifically approved
pursuant to employment negotiations, employee was attending university classes which would have
conflicted with new schedule, and employee explained her problem in maintaining new schedule to
supervisor; thus, employee was entitled to unemployment compensation benefits.
OPINION
Per Curiam:
This action was originally brought when Garman filed a request for a hearing before the
Appeals Referee of the Nevada Employment Department (ESD) after receiving notice from
ESD that her claim for unemployment benefits was denied. The referee entered a decision
affirming the action of ESD denying Garman benefits. The Referee's decision was appealed
to the Board of Review. The Board of Review adopted the findings of fact of the Referee and
affirmed his decision.
The Board of Review decision was appealed to the district court by a petition for judicial
review. On July 17, 1985, the trial court entered its order affirming the decision of the Board
of Review and dismissing the petition.
Linda Garman was employed by Las Vegas Area Camp Fire Council, Inc. as a Program
Director on January 23, 1984. Prior to being hired for the position, Garman told the Executive
Director of Camp Fire that she could not work from 8:30 a.m. to 4:30 p.m. and that she could
only work from 6:00 a.m. to 2:00 p.m. The Board of Directors of Camp Fire voiced their
support for Garman and approved the individualized schedule.
Garman was employed 4 1/2 months with the Camp Fire Council. During that time she
experienced four changes in her immediate supervisor. During the tenure of each supervisor,
Garman worked from 6:00 a.m. to 2:00 p.m.
On June 4, 1984, Garman received a memorandum from her new supervisor, Judith
Dobson, stating that her new hours would be from 8:30 a.m. to 4:30 p.m. Garman reported to
work the next day at 8:30 a.m. and had her performance evaluated by Judith Dobson. During
this meeting, Dobson told Garman she would be required to work the newly assigned
schedule. Garman told Dobson that she could not do this because of school and family
commitments. Immediately after this meeting, Dobson suspended Garman without pay
pending termination. The grounds for the suspension were insubordination and
unprofessional conduct.
Subsequently, on June 8, 1984, Dobson officially terminated Garman for a long list of
infractions. The sole justification for denial of employment benefits, as determined by the
Appeals Referee, was that Garman had committed misconduct by refusing to work the
newly assigned schedule.
denial of employment benefits, as determined by the Appeals Referee, was that Garman had
committed misconduct by refusing to work the newly assigned schedule. The Appeals
Referee deemed this to be the proximate cause of her termination. After unsuccessfully
exercising her appellate rights at the Board of Review and at the district court, Garman filed
the instant appeal.
The issue in this appeal is whether Garman's refusal to work reassigned hours constituted
misconduct, as a matter of law, under the facts of the instant case.
The Appeals Referee's decision, which was upheld by the Board of Review, held that
misconduct is defined as a deliberate violation or a disregard of reasonable standards,
carelessness or negligence showing substantial disregard of duties. Barnum v. Williams, 84
Nev. 37, 436 P.2d 219 (1968). In reviewing the decision of an administrative board, 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, 98 Nev. 30, 31,
639 P.2d 552, 553 (1982). If the agency determination is based on substantial evidence, the
inquiry ends, for neither this court nor the district court is at liberty to substitute its judgment
for that of the agency. Id.
[Headnote 1]
When analyzing the concept of misconduct, the trier of fact must consider the legal
definition, Barnum, in context with the factual circumstances surrounding the conduct at
issue. Misconduct then becomes a mixed question of law and fact. Jones v. Rosner, 102 Nev.
215, 719 P.2d 805 (1986). Findings of misconduct must be given deference similar to
findings of fact, when supported by substantial evidence in the lower court. Id. For example,
the violation of a work rule, not accumulating excessive numbers of tardies/early leaves, was
deemed not to be misconduct when viewed in light of the reasons for the early tardies/early
leaves (illness, taking care of a terminally ill mother and appearing in court). Tynes v.
Uniroyal Tire Company, 679 P.2d 1310 (Okla.Ct.App. 1984).
[Headnote 2]
Nevada decisions have stated that the employee's conduct which prompted the termination
must have an element of wrongfulness in order to constitute misconduct so as to prevent the
terminated employee from receiving unemployment benefits. In Lellis v. Archie, 89 Nev. 550,
516 P.2d 469 (1973), this court held that a casino changemaker did not commit an act of
misconduct by refusing to work at a less favorable work station when in the past the casino
had used a rotation system to allow all changemakers to rotate from the worst to best stations.
This court held that "an objection to the change of stations by Lellis lacked any element of
wrongfulness." Id. at 553, 516 P.2d at 471.
held that an objection to the change of stations by Lellis lacked any element of
wrongfulness. Id. at 553, 516 P.2d at 471.
The activities of Garman and the circumstances of her employment must be analyzed to
see if there is an element of wrongfulness, sufficient to support a determination of
misconduct.
When Garman accepted employment with Las Vegas Area Camp Fire Council, Inc., she
conditioned her employment on being able to work from 6:00 a.m. to 2:00 p.m. This was
specifically approved by the Camp Fire Board over the objections of the existing Executive
Director.
Many cases can be cited which indicate that refusing to work new hours other than those
initially agreed upon under an employment relationship by contract or at will, does not
constitute misconduct. See Wade v. Hurley, 515 P.2d 491 (Colo.Ct.App. 1973) (no
misconduct found when an employee refuses to work a newly assigned Sunday shift);
Trunkline Gas Co. v. Administrator, Dep't Employment Security, 364 So.2d 1365
(Va.Ct.App. 1978) (refusal to work a different shift was not misconduct when employer had
allowed employee to work on a specific shift so that she could take care of her small child);
St. Germain v. Adams, 377 A.2d 620 (N.H. 1977) (employee's refusal to work a new Sunday
shift was not misconduct, even absent an employment contract); Hulse v. Levine, 393
N.Y.S.2d 386 (N.Y. 977) (refusal work unexpected overtime is not misconduct); In re
Watson, 161 S.E.2d 1 (N.C. 1968) (refusal to work another shift, absent an agreement to do
so, is not misconduct when an employee has a small child to care for); Neff v. Com.
Unemployment Compensation Bd., 407 A.2d 936 (Pa.Comm.Ct. 1979) (refusal to work a
new shift or on Saturdays was not wilfull misconduct).
While no express contract for employment existed between the parties in the instant case,
nor was an employment contract mentioned in the findings of fact or argued to the court until
Garman's final reply brief, her case is similar to the aforecited cases in which courts have
found that a refusal to work newly assigned hours was not misconduct, even absent an
agreement for specific working hours as a condition of employment. Garman's case is even
stronger because she specifically conditioned her employment upon working an
individualized schedule.
This court has ruled that when an employee receives a shift change and then responds by
eventually not showing up for work, such evidence in the record substantiated the ruling of no
entitlement to benefits. State Employment Sec. Dept. v. Weber, 100 Nev. 121, 676 P.2d 1318
(1984). Weber upheld the Board of Review's determination that the employee voluntarily left
his job without good cause.
[Headnote 3]
Garman's case, however, provides no basis for a determination of misconduct in refusing
to work under a rearranged time schedule. Her original time schedule was specifically
approved by the Camp Fire board of directors pursuant to employment negotiations. Garman
was attending university classes which would have conflicted with the new schedule. She was
contemplating taking more classes in the future. On the day she was directed to begin
working from 8:30 a.m. to 4:30 p.m., she came to work at 8:30 a.m. and thereafter explained
her problem in maintaining the new schedule.
When viewing the facts of this case with other similar decisions, it is certain that Garman's
refusal to work new hours did not constitute misconduct. There was not substantial evidence
of wrongfulness in Garman's actions. Therefore, the judgment of the lower court must be
reversed.
ESD alleges that the refusal to work assigned hours is universally recognized as
misconduct. Garman did not refuse to work assigned hours, she refused to acquiesce to a
change in her condition of employment. Our holding is thus confined to the narrow facts and
circumstances of this case and does not provide condonation for an employee's wrongful
refusal to work according to time schedules fashioned by employers.
Since Garman's refusal to accept and work the revised time schedule invoked by her new
supervisor did not constitute misconduct under the facts of record, we reverse the judgment of
the district court and remand with instructions to order ESD to provide Garman her
appropriate unemployment benefits.
____________
102 Nev. 568, 568 (1986) Baliotis v. Clark County
DONN G. D. BALIOTIS d/b/a CENTRAL BUREAU INVESTIGATION, Appellant, v.
CLARK COUNTY, a Political Sub-Division of THE STATE OF NEVADA; LAS
VEGAS METROPOLITAN POLICE DEPARTMENT; CLARK COUNTY
COMMISSIONERS, MANUEL CORTEZ, THALIA DONDERO, KAREN HAYES,
R. J. RONZONE, WOODROW WILSON, and BRUCE WOODBURY, in Their
Capacity as Commissioners; BRIAN McKAY, Attorney General of the State of
Nevada, Respondents.
No. 16408
December 15, 1986 729 P.2d 1338
Appeal from an order granting summary judgment in favor of respondents. Eighth Judicial
District Court, Clark County; J. Charles Thompson, Judge.
Former felon appealed from order of the district court granting summary judgment in favor
of police department in declaratory action contending that it was improper for police
department to require him to reveal events relating to sealed arrests and convictions. The
Supreme Court held that court-ordered sealing of arrest and conviction records of applicant
for private investigator's license did not require police department to disregard its
independent awareness of applicant's prior felony convictions.
Affirmed.
Keith E. Galliher, Jr., Las Vegas, for Appellant.
Robert Miller, District Attorney, S. Mahlon Edwards, Deputy District Attorney, Clark
County, for Respondents.
1. Statutes.
Limited resort to reports of legislative committee hearings is appropriate to clarify or interpret legislation
that is of doubtful import or effect.
2. Records.
Court-ordered sealing of arrest and conviction records of applicant for private investigator's license did
not require police department to disregard its independent awareness of applicant's prior felony
convictions. NRS 179.245.
OPINION
Per Curiam:
This appeal involves the court-ordered sealing of arrest and conviction records of appellant
and the legal impact of that sealing.
sealing. Appellant, a former felon, received a private investigator's license from the State of
Nevada. Thereafter, appellant applied to Clark County for a private detective's license. The
County referred the matter to Las Vegas Metropolitan Police Department (Metro) for an
investigation of character, reputation and integrity as required by Clark County Code
6.52.060. Metro made an unfavorable recommendation based, in part, on arrests and
convictions which had previously been sealed by court order in accordance with NRS
179.245.
1
Appellant refused to furnish any information on the sealed items, including the
orders themselves.
Prior to the license application hearing, appellant filed a declaratory action in district court.
The members of the Clark County Commission moved to dismiss, and the district court
granted the motion. Appellant appealed that dismissal to this court, case No. 15966, but we
dismissed that appeal as premature. Metro then filed a counterclaim for declaratory relief, and
both appellant and Metro moved for summary judgment. The district court granted summary
judgment in favor of Metro, thereby prompting this appeal by Baliotis. For reasons
hereinafter specified, we affirm.
After appellant applied for a private detective's license and after Metro concluded a
background investigation, Metro submitted an unfavorable recommendation to Clark County.
A copy of the grounds for that recommendation was delivered to appellant. Those grounds
state, in part:
1. Clark County Code 6.52.070 states that a convicted felon cannot be issued a private
detective's license. Mr. Baliotis has been convicted of a felony.
____________________

1
The statute reads, in pertinent part, as follows:
1. A person who has been convicted of:
(a) Any felony may, after 15 years from the date of his conviction or, if he is imprisoned, from the
date of his release from actual custody . . . petition the court in which the conviction was obtained for the
sealing of all records relating to the conviction.
. . . .
3. If after hearing the court finds that, in the period prescribed in subsection 1, the petitioner has not
been arrested, except for minor moving or standing traffic violations, the court may order sealed all
records of the conviction which are in the custody of the court, of another court in the State of Nevada or
of a public or private agency, company or official in the State of Nevada, and may also order all such
criminal identification records of the petitioner returned to the file of the court where the proceeding was
commenced from, but not limited to, the Federal Bureau of Investigation, the California identification and
investigation bureau, sheriff's offices and all other law enforcement agencies reasonably known by either
the petitioner or the court to have possession of such records.
2. The applicant will not furnish a copy of the court order(s) sealing his arrests.
Therefore, we are unable to make a determination as to his character, reputation, and
integrity as required by Clark County Code 6.52.070.
Apparent contends that it was improper for Metro to require him to reveal events relating to
arrests and convictions that were sealed pursuant to NRS 179.245. Appellant's argument
mischaracterizes Metro's position and misperceives the purpose and effect of the sealing
statute.
As far as the record reveals, Metro had an independent awareness of appellant's criminal
background. Indeed, a record of one felony conviction against Baliotis is indelibly etched on
the pages of the Nevada and Pacific reporters as State v. Baliotis, 98 Nev. 176, 643 P.2d 1223
(1982). Metro was under a statutory mandate, Clark County Code 6.52.060, to investigate and
report on the character, reputation and integrity of the applicant. Metro could hardly disregard
its existing knowledge of appellant's criminal background in evaluating appellant's character.
Although appellant's criminal records had been sealed, Metro was under an obligation to
satisfy itself that former criminal associations and activities were, indeed, past history.
However, Baliotis elected to stand on his privilege under the sealing statute not to disclose
details of his criminal record, thereby frustrating Metro's efforts to determine objectively the
current fitness of Mr. Baliotis to be licensed as a private investigator.
[Headnotes 1, 2]
This leads us to the purpose and effect of Nevada's sealing statute. Limited resort to
reports of legislative committee hearings is appropriate to clarify or interpret legislation that
is of doubtful import or effect. Maynard v. Johnson, 2 Nev. 25 (1866). In the instant case, the
legislative history surrounding NRS 179.245-.301 indicates that the sealing statute was
enacted to remove ex-convicts' criminal records from public scrutiny and to allow convicted
persons to lawfully advise prospective employers that they have had no criminal arrests and
convictions with respect to the sealed events. See Hearing on A.B. 491 before the Assembly
Judiciary Comm., 56th Sess. (1971) p. 254; Hearing on A.B. 491 before the Senate Judiciary
Comm., 56th Sess. (1971) vol. 2. p. 221. There is no indication that the statute was intended
to require prospective employers or licensing authorities to disregard information concerning
an applicant that is known independently of the sealed records. As cogently observed in an
opinion involving a similar statute, Bahr v. Statesman Journal Co., 624 P.2d 664, 666
(Or.Ct.App. 1981): The statute was enacted to enhance employment and other
opportunities for such formerly convicted persons.
The statute was enacted to enhance employment and other opportunities for such
formerly convicted persons. It was intended to remove the stigma associated with the
conviction of a crime and to give those individuals another chance, so to speak,
unencumbered by that stigma. The statute does not, however, impose any duty on
members of the public who are aware of the conviction to pretend that it does not exist.
In other words, the statute authorizes certain persons to misrepresent their own past. It
does not make that representation true.
The net effect of Nevada's sealing statute, except as to gaming matters, is a legal
dispensation that regards criminal events itemized in the sealed record as if they had never
occurred. The statute thus confers a substantial benefit on convicted persons who may
appropriately disavow involvement with the criminal justice system. It is clear, however, that
such authorized disavowals cannot erase history. Nor can they force persons who are aware of
an individual's criminal record to disregard independent facts known to them.
We are thus faced with the unalterable fact that Baliotis has been convicted of a felony and
that section 6.52.070 of the Clark County Code prohibits the issuance of a private
investigator's license to persons who have been convicted of felony crimes. We do not doubt,
however, that state or county licensing officials could, at their discretion, lawfully issue a
license (in this instance, a private investigator's license) to former felons whose crimes have
been sealed pursuant to the laws and public policy of the State of Nevada. To concluded
otherwise would attribute an illegal purpose or effect to Nevada's sealing statute. However, it
is one thing to recognize and give effect to the benefits that inhere in the sealing statute; it is
quite another to suppose that the statute can force licensing authorities to simply disregard
independent knowledge of criminal behavior.
The foregoing analysis requires us to affirm the decision below. It is clear, however, that
Baliotis may nevertheless proceed with his licensing hearing before the Clark County
Commission. He may stand on his rights under the sealing statute and risk a summary
rejection by the Commission, or he may elect to provide Metro with detailed information
concerning all aspects of his past and present behavior, thereby providing the Commission a
complete foundation upon which to base a responsible and enlightened decision.
For the foregoing reasons, we affirm the judgment of the district court granting Metro's
motion for summary judgment.
____________
102 Nev. 572, 572 (1986) Howard v. State
SAMUEL HOWARD, Appellant, v. THE STATE
No. 15113
December 15, 1986 729 P.2d 1341
Appeal from a judgment of conviction of two counts of robbery with use of a deadly
weapon and one count of first degree murder and from the imposition of the death sentence;
Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
Defendant was convicted in the district court of two counts of robbery with use of deadly
weapon and one count of first degree murder, and he was sentenced to death. Defendant
appealed. The Supreme Court held that: (1) defendant was not denied effective assistance by
state-provided counsel; (2) district court judge did not abuse his discretion in permitting
joinder of connected charges; (3) defense counsel's reminder that suppression motion was
pending was so untimely as to constitute waiver of motion; (4) refusal of instruction that
accomplice's testimony ought to be viewed with distrust was not reversible error; (5) question
of whether witness was an accomplice was for jury; and (6) sentence of death was not posed
under influence of passion, prejudice or any other arbitrary factor.
Affirmed.
Lizzie R. Hatcher, Las Vegas, for Appellant.
Tufteland, Deputy District Attorney, Daniel Seaton, Deputy District Attorney, Clark County,
for Respondent.
1. Criminal Law.
Defendant was not denied effective assistance by state-provided counsel, despite his contention that one
member of public defender's office had been victim's patient and another member had been acquaintance of
victim.
2. Indictment and Information.
District judge did not abuse his discretion in permitting joinder of charges arising out of armed robbery of
store's security guard and those relating to robbery and murder of dentist the following day, where
defendant gained possession of both security officer's two-way radio and security badge during robbery,
and represented himself as security officer to victim. NRS 173.125.
3. Criminal Law.
Defense counsel's reminder that suppression motion was pending was so untimely as to constitute
waiver of motion.
4. Criminal Law.
Motion for evidentiary hearing on suppression motion, filed ten days prior to trial, was not timely. NRS
174.125, subd. 3(a).
5. Criminal Law.
Defendant's statements to police officers were admissible absent any evidence in record to contradict
ruling that Miranda warnings had been properly given.
6. Criminal Law.
Granting of instruction that testimony of accomplice ought to be viewed with distrust is required only
when accomplice's testimony is uncorroborated.
7. Criminal Law.
Refusal of instruction that accomplice's testimony ought to be viewed with distrust was not reversible
error, where jury was instructed that it had duty of weighing witness' credibility, there was substantial
evidence of guilt and witness' motive and possible bias had been explored through cross-examination.
8. Criminal Law.
Question of whether witness was an accomplice was for jury.
9. Homicide.
There was no abuse of discretion in ruling that there was no evidence support mitigating circumstance
that murder had been committed while defendant was under influence of extreme mental or emotional
disturbance. NRS 200.035.
10. Homicide.
Sentence of death was not imposed under influence of passion, prejudice or any other arbitrary factor,
and was neither excessive nor disproportionate to defendant for crime of first degree murder.
OPINION
Per Curiam:
This is a capital case. Appellant Howard stands convicted of first degree murder and two
robberies with the use of a deadly weapon. Howard has demonstrated no prejudicial error,
and we therefore affirm his convictions and sentences.
On March 26, 1980, Howard was caught in the act of trying to defraud Sears Roebuck by
seeking a refund on goods which had not been purchased. While being detained in the store's
security office, Howard produced a .357 magnum pistol and made his escape, taking a
security officer's badge and portable radio with him.
Later that day Howard contacted the victim's wife, and told her that he was interested in
purchasing a van that she and the victim had advertised for sale in the Sears parking lot.
Howard was referred to the victim, a Las Vegas dentist, who made arrangements to meet him
later in the day at a hotel-casino to discuss the purchase of the vehicle. When the victim, his
wife and his daughter met with Howard at the hotel, Howard represented himself as a security
officer employed by the hotel, openly displaying the stolen portable radio in authentication of
this claim. Arrangements were made during this meeting for the victim to meet with Howard
the next day, March 27, at the victim's dentistry office to test-drive the vehicle.
victim to meet with Howard the next day, March 27, at the victim's dentistry office to
test-drive the vehicle. On March 27, the victim's body was found in the van. The victim had
been robbed and murdered. The jury found Howard guilty of this murder and robbery. At a
sentencing hearing the jury determined that Howard should receive the death penalty.
THE ISSUES
[Headnote 1]
1. Effective Assistance of Counsel. Howard contends that his state-provided counsel was
ineffective. Howard argues that he had no trust in counsel's representation because one
member of the Clark County Public Defender's Office had been the victim's patient, and
another member had been an acquaintance of the victim.
Howard's claims do not objectively justify Howard's distrust of his attorney. Those
attorneys in the public defender's office who had a personal or professional relationship with
the victim were ordered by the trial court not to involve themselves in this case. There is
nothing in this record to indicate that the court's order was violated or that Howard did not
receive reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668
(1984); Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471 U.S. 1004
(1985).
2. Severance of the Murder-Robbery Charge from the Sears Roebuck Charge. Howard
contends that the district court erred by refusing to sever the charges arising out of the armed
robbery of the Sears security guard from those relating to the robbery and murder of the
victim. We disagree.
[Headnote 2]
NRS 173.115 provides that two or more offenses may be charged together when they are
based on the same act or transaction or based on acts which are connected together or are
parts of a common scheme or plan.
1
While it may not be possible to characterize the Sears
robbery and the murder and robbery of the victim as the same transaction, they are clearly
connected together. Howard gained possession of his bogus security officer status, the
two-way radio and the security badge, during the Sears episode.
____________________

1
Two or more offenses may be charged in the same indictment or information in a separate count for each
offense if the offenses charged, whether felonies or misdemeanors or both, are:
1. Based on the same act or transaction, or
2. Based on two or more acts or transactions connected together or constituting parts of a common scheme or
plan.
during the Sears episode. Then, Howard saw the victim's van in the Sears parking lot with a
For Sale sign bearing the victim's phone number. The two crimes occurred within a 24-hour
period, and evidence indicates that Howard was wearing the same clothing during the two
crimes and that one crime flowed into the other. Therefore, we conclude that the district
judge did not abuse his discretion in permitting the joinder of these connected charges.
3. Evidentiary Hearing on Admissibility of Custodial Statements. Howard contends that
the district court erred by refusing to grant him an evidentiary hearing on the issue of the
voluntariness of incriminating statements he made while in custody. Our review of the record
reveals that the district court did not err.
A hearing on this matter was set for April 8, 1983, but, on April 7, 1983, counsel
stipulated that the motion would be continued until the date of trial, April 11, 1983. When the
trial date arrived, the matter was not pursued. No further mention of an evidentiary hearing
was made until the state was presenting the rebuttal testimony of Detective Leavitt.
Howard testified concerning statements which he had made while in custody prior to trial.
The state then called Detective Leavitt as a rebuttal witness in order to impeach the testimony
given by Howard.
Leavitt told the jury that before taking a statement from Howard he first advised him of his
Miranda rights. Leavitt also testified Howard told him that he understood those rights and that
they had been read to him several times before. Leavitt then testified that Howard told him
that he recalled the Sears incident in Las Vegas. Leavitt also related Howard's statements
regarding the fact that he might have killed someone in Las Vegas but could not recall for
sure.
After Detective Leavitt's rebuttal testimony was given, defense counsel made the following
statements to the trial judge outside the presence of the jury:
When Detective Leavitt was testifying we approached the bench and advised the court
that there was a pending motion to suppress raising voluntariness and six [sic]
amendment issues which would be brought out during an out of the jury's presence
hearing. The Court allowed us to make the objection at this time, rather than interrupt
the testimony of the witness. And I would just like that on the record.
[Headnotes 3, 4]
The apparent intention of the defense counsel was to remind the court of the pre-trial
motion for an evidentiary hearing. Our review of the record leads us to conclude that this
reminder was so untimely as to constitute a waiver of the motion.
was so untimely as to constitute a waiver of the motion. To begin with, the motion for an
evidentiary hearing was not timely filed. The motion was filed on April 1, 1983, ten days
prior to trial. By statute, motions to suppress in a criminal prosecution are required to be filed
no less than fifteen days before trial. NRS 174.125(3)(a). Although the trial court may waive
the time requirement, the grounds for making an untimely motion must be established by
affidavit. See NRS 174.125(3)(b) and (4). No such affidavit was supplied in the instant case.
[Headnote 5]
Moreover, there is nothing in the record to contradict or oppose the trial court's ruling that
Miranda warnings had been properly given. Accordingly, we conclude that the trial court
properly denied a hearing and refused to suppress the statements given by Howard to police
officers.
4. Refusal to Give Instruction on Accomplice Testimony. Howard contends that the district
court erred in refusing to give the following instructions to the jury:
The testimony of an accomplice ought to be viewed with distrust. This does not mean
that you may arbitrarily disregard such testimony, but you should give to it the weight
to which you can find it to be entitled after examining it with care and caution and in
light of all the evidence in the case.
Although the trial court refused to give the requested instruction, the court instructed the jury
that an accomplice's testimony must be corroborated by other evidence in order to support a
verdict.
[Headnotes 6, 7]
The only case cited by Howard to support his argument that the instruction should have
been granted is People v. Dowd, 428 N.E.2d 894 (Ill.App. 1981). In that case, however, the
Illinois appellate court held that the failure to grant the instruction was not fatal to the
conviction because the other instructions, when read together, were sufficient to inform the
jury of the pitfalls of accomplice testimony. 428 N.E.2d at 905. The granting of an instruction
such as the one now in question is required only when an accomplice's testimony is
uncorroborated. Buckley v. State, 95 Nev. 602, 600 P.2d 227 (1979). The Buckley case
indicates that a cautionary instruction is favored even when the testimony is corroborated in
critical respects but that the failure to grant it may not constitute reversible error. This is
especially true where the jury was instructed that it had the duty of weighing the witness'
credibility, where there is substantial evidence of guilt and where the witness' motive and
possible bias had been explored through cross-examination. Id. at 604-05, 600 P.2d 22829.
29. Those factors were present in the case before us; the refusal of the instruction was
therefore not reversible error.
5. Failure to Instruct that Dawana Thompson was an Accomplice as a Matter of Law.
Howard contends that it was error for the trial court not to give an instruction directing the
jury to consider Howard's companion, Dawana Thompson, as an accomplice as a matter of
law.
[Headnote 8]
If there could be no question that Dawana Thompson was an accomplice, the court should
have instructed the jury positively that she was an accomplice. Such was the case in Austin v.
State, 87 Nev. 578, 588, 491 P.2d 724, 730 (1971), in which the accomplice's testimony
clearly detailed his involvement. In this case, however, it is far from clear whether Thompson
was an accomplice to the crime committed by Howard. The question of whether a witness
was an accomplice is clearly an issue for the jury to decide. See Globensky v. State, 96 Nev.
113, 605 P.2d 215 (1980) (citing Pineda v. Sheriff, 89 Nev. 426, 514 P.2d 651 (1973));
Austin v. State, 87 Nev. 578, 491 P.2d 724 (1971); Tellis v. State, 84 Nev. 587, 445 P.2d 938
(1968); State v. Verganadis, 50 Nev. 1, 248 P. 900 (1926). We therefore reject as meritless
this assignment of error.
6. Penalty Phase: Failure to Instruct the Jury that it Could Consider Sympathy. Howard
contends that the trial court erred in granting instruction No. 15 which reads:
Although you are to consider only the evidence in the case in reaching a verdict, you
must bring to the consideration of the evidence your everyday common sense and
judgment as reasonable men and women. Thus, you are not limited solely to what you
see and hear as the witnesses testify. You may draw reasonable inferences from the
evidence which you feel are justified in the light of common experience, keeping in
mind that such inferences should not be based on speculation or guess.
A verdict may never be influenced by sympathy, prejudice or public opinion. Your
decision should be the product of sincere judgment and sound discretion in accordance
with these rules of law.
A nearly identical instruction was approved by this court in Nevius v. State, 101 Nev. 238,
699 P.2d 1053 (1985).
2
An important distinction, however, is that in Nevius we rejected
the California authority now relied on by Howard because in Nevius the penalty jury was
fully advised "regarding the range of mitigating circumstances" they could consider.
____________________

2
That instruction read:
Although you are to consider only the evidence from the trial and the penalty hearing in reaching a
verdict, you must bring to the consideration of the evidence your everyday common sense and judgment
as reasonable men and women.Thus, you are not limited solely to what
important distinction, however, is that in Nevius we rejected the California authority now
relied on by Howard because in Nevius the penalty jury was fully advised regarding the
range of mitigating circumstances they could consider. In this case the jury was instructed:
Murder of the first degree may be mitigated by any of the following circumstances,
even though the mitigating circumstance is not sufficient to constitute a defense or
reduce the degree of the crime:
1. Any other mitigating circumstances.
Over Howard's objection, the trial court refused to instruct on any of the following, other
mitigating circumstances listed in NRS 200.035:
1. The defendant has no significant history of prior criminal activity.
2. The murder was committed while the defendant was under the influence of
extreme mental or emotional disturbance.
3. The victim was a participant in the defendant's criminal conduct or consented to
the act.
4. The defendant was an accomplice in a murder committed by another person and
his participation in the murder was relatively minor.
5. The defendant acted under duress or under the domination of another person.
6. The youth of the defendant at the time of the crime.
[Headnote 9]
Howard objected to the failure to list these other mitigating circumstances but has not
raised that failure as an issue on this appeal. Clearly the record would not support numbers 1,
3, 4 or 5. Also, Howard's age at the time of the crime, 31, removes number 6 from
consideration. The defense sought to have number 2 listed as a mitigating factor in the
instruction. The district court ruled that there was no evidence to support a finding that the
murder had been committed while Howard was under the influence of extreme mental or
emotional disturbance. Inspection of the record reveals no abuse of discretion or judicial error
in making this ruling.
____________________
you see and hear as the witnesses testify. You may draw reasonable inferences which you feel are
justified by the evidence, keeping in mind that such inferences should not be based on speculation or
guess.
A verdict may never be influenced by sympathy, prejudice or public opinion. Your decision should be
the product of sincere judgment and sound discretion in accordance with these rules in law.
[Headnote 10]
Our review of the record in this case leads us to conclude that the sentence of death was
not imposed under the influence of passion, prejudice or any other arbitrary factor. We further
conclude that Howard's sentence of death is neither excessive nor disproportionate to the
crime or defendant. See Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979); Bishop v.
State, 95 Nev. 511, 597 P.2d 273 (1979).
We have closely examined Howard's other arguments and have determined that they lack
merit. There being no prejudicial error in this record, we affirm the convictions and sentence.
____________
102 Nev. 579, 579 (1986) Valley Bank v. Neuhoff
VALLEY BANK OF NEVADA, as Trustee of the Trust Estate of SALLY CORD
HUMMEL; FIRST INTERSTATE BANK OF NEVADA, as Trustee of the Trust
Estate of NANCY CORD PHELPS; U.S. NATIONAL BANK OF OREGON,
Successor Trustee of the Trust Estate of SUSAN CORD PERIERA; and CITIBANK,
N.A., Successor Trustee of the Trust Estate of CHRIS CORD, Appellants and
Cross-Respondents, v. EDWARD D. NEUHOFF and CHARLES E. CORD,
Co-executors of the Estate of E. L. CORD, aka ERRETT L. CORD, aka ERRETT
LOBAN CORD, Deceased, Respondents and Cross-Appellants.
No. 15798
December 18, 1986 729 P.2d 1346
Appeal and cross-appeal pursuant to NRS 155.109, from probate order filed in the Estate
of E. L. Cord. Second Judicial District Court, Washoe County; Michael R. Griffin, Judge.
Estate trustees petitioned for application of Revised Uniform Principal and Income Act.
The district court held that Act was applicable, and co-executors appealed. The Supreme
Court held that trustees' petition, which was filed more than three months after decrees of
distribution became final, was untimely.
Vacated.
Guild, Hagen & Clark, Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane, Conner &
Steinheimer, Reno; Jones, Mahoney & Brayton, Newport Beach, California, for Appellants
and Cross-Respondents.
Bradley & Drendel, Reno, for Respondents and Cross-Appellants.
Allison, Brunetti, MacKenzie, Hartman, Soumbeniotis & Russell, Carson City, for Amicus
Curiae.
Executors and Administrators.
Trustees' petition for application of Revised Uniform Principal and Income Act, more than three months
after decrees of distribution became final, was untimely. NRS 164.140 et seq.
OPINION
Per Curiam:
E. L. Cord died testate on January 2, 1974. By his will, he left five million dollars to trust
estates previously established for the benefit of his children, grandchildren and
daughter-in-law. Payment in cash, securities, or a combination of these was permitted, and no
interest was to be paid on the bequest. The will further provided for the continuation of Mr.
Cord's businesses, with their profits and losses charged to his estate. By decrees of
distribution dated September 28, 1976 and November 19, 1976, respectively, the bequest was
distributed to the trust estates. No appeal was taken from those decrees, which became final
well before the end of 1976.
On March 31, 1977, the trustees petitioned for application of the Revised Uniform
Principal and Income Act (the Act). The co-executors of Mr. Cord's estate petitioned in turn
for approval of their accountings. The trustees opposed the co-executors' petitions. The
district court entered findings of fact, conclusions of law and an order on January 12, 1984.
The court concluded, inter alia, that (1) the Act did apply to the beneficiaries of the trust
estates; (2) the beneficiaries were income beneficiaries, for purposes of the Act; (3)
income was not identical to interest under the Act; (4) the co-executors' accountings did
not comply with the Act; (5) the beneficiaries were entitled to distribution of income derived
from sales of underproductive property of the estate; and (6) the trustees' claims were not
barred under the principle of res judicata. In the co-executors' favor, the court concluded that
it was not improper to use the cash basis method of accounting and to treat all the decedent's
corporations as a single entity for accounting purposes. We conclude that the district court
erred in entering its order.
The trustees' attempt to disturb the distribution was untimely; their claims should have
been raised in the proceedings for distribution, and could not be raised after the decrees of
distribution became final.
distribution, and could not be raised after the decrees of distribution became final. See Gartiez
v. Gartiez, 70 Nev. 77, 254 P.2d 804 (1953); Estate of Schmierer, 45 P. 99 (Cal. 1914).
Therefore, the distributions and the calculations on which they were based should not have
been disturbed.
To the extent that any claims may have arisen since entry of the decrees of distribution
(however unlikely that may be, as the entirety of Mr. Cord's bequest to the trust estates was
distributed under those decrees), an analysis of the interaction of Mr. Cord's will and the Act
may be necessary. Therefore, we note that the language of the will supports the two rulings,
supra, in the co-executors' favor. Further, the trial court correctly concluded that there may be
income other than interest, and that these beneficiaries would have been entitled to any
income allowed by the Act, other than the interest which the will specifically denied them.
However, those issues are moot with respect to claims arising before the distribution
hearings; res judicata applies. Thus, the conclusions adverse to accountings on which the
distributions were based, or requiring further distribution of income, were unjustified.
We also note in passing that the trial court's conclusion number eight required corrections
which apparently had already been made, and that the court incorrectly described C, Inc.,
rather that Capital C Incorporated, as an S corporation.
For the reasons set forth above, we vacate the trial court's findings, conclusions and order
of January 12, 1984, without prejudice as to any intervening claims that may have arisen
subsequent to the decrees of distribution.
Gunderson, J., and Steffen and Young, JJ., and Recanzone
1
and Fondi,
2
D. J., concur.
____________________

1
The Honorable Mario G. Recanzone, Judge of the Third Judicial District, was designated by the Governor
to sit in the place of The Honorable John Mowbray, Chief Justice, who voluntarily disqualified himself. Nev.
Const., art. 6, 4.

2
The Honorable Michael E. Fondi, Judge of the First Judicial District, was designated by the Governor to sit
in place of The Honorable Charles E. Springer, Justice, who voluntarily disqualified himself. Nev. Const., art. 6,
4.
____________
102 Nev. 582, 582 (1986) Baughman & Turner v. Jory
BAUGHMAN & TURNER, INC., a Nevada Corporation, Appellant, v. DWIGHT JORY,
Individually and in His Capacity as a General Partner of LA MESA ASSOCIATES,
LTD., a Nevada Limited Partnership, Respondent.
No. 17031
December 18, 1986 729 P.2d 488
Appeal from an order granting respondent's motion for summary judgment; Eighth Judicial
Civil engineering firm sued vice-president of construction company which was general
contractor for condominium projects. The district court granted vice-president's motion for
summary judgment, and engineering firm appealed. The Supreme Court held that genuine
issue of fact existed whether vice-president was partner by estoppel in limited partnerships
which owned condominium projects.
Reversed.
Lionel, Sawyer & Collins and Evan J. Wallach, Las Vegas, for Appellant.
Darrell Lincoln Clark, Las Vegas, for Respondent.
Judgment.
Material issue of fact precluded summary judgment in favor of vice-president of construction company
which was general contractor for condominium projects, in suit for services rendered by civil engineering
firm alleging vice-president was partner by estoppel in limited partnerships owning condominium projects,
after vice-president impliedly consented to trial of issue of partnership by estoppel and engineering firm
submitted affidavit and plat maps which raised issue. NRCP 15(b).
OPINION
Per Curiam:
Baughman & Turner, Inc. (Baughman) appeals from the district court's order granting
Dwight Jory's motion for summary judgment. Baughman provided civil engineering services
for the development of two condominium projects. Jory is vice-president of the construction
company which was the general contractor for those two condominium projects. Each
condominium project was owned by a separate limited partnership. In its complaint,
Baughman alleged that Jory was liable as an actual partner of only one of the limited
partnerships, La Mesa Associates, Ltd.
102 Nev. 582, 583 (1986) Baughman & Turner v. Jory
(La Mesa). Later, in response to Jory's motion for summary judgment, Baughman asserted
that Jory was a partner by estoppel of both limited partnerships, La Mesa and Willowtree
Associates, Ltd.
Jory impliedly consented to trial of the issue of partnership by estoppel pursuant to NRCP
15(b).
1
Baughman expressly raised the theory of Jory's liability as a partner by estoppel of
both limited partnerships in its opposition to Jory's motion for summary judgment. Jory did
not object in a responding brief or at the summary judgment hearing that this theory of
recovery was not alleged in the complaint.
After summary judgment was granted, the parties agreed to a statement of the case as the
record on appeal pursuant to NRAP 10(e).
2
In this statement, Jory agreed that the matter of
[Baughman's] claim against [Jory] based upon the doctrine of partner by estoppel codified
by N.R.S. 87.160 was an issue at the hearing on the motion. Pursuant to this agreed-upon
statement of the case, Jory acknowledges that the partnership by estoppel theory was directly
placed before the district court in a meaningful, understandable way and that he did not object
to such theory as a matter before the district court.
In opposition to Jory's motion for summary judgment, Baughman submitted an affidavit
and plat maps which, when construed most favorably to Baughman, support a finding that a
genuine issue of fact exists as to whether Jory is a partner by estoppel.
Accordingly, the district court's order granting Jory's motion for summary judgment is
reversed.
____________________

1
NRCP 15(b) provides:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they
shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be
made upon motion of any party at any time, even after judgment; but failure so to amend does not affect
the result of the trial of these issues.

2
NRAP 10(e) provides that:
In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may prepare and sign
a statement of the case showing how the issues presented by the appeal arose and were decided in the
district court and setting forth only so many of the facts averred and proved or sought to be proved as are
essential to a decision of the issues presented.
____________
102 Nev. 584, 584 (1986) Still v. Huntley
ARTHUR STILL, Executor and Administrator of the Estate of Jack Still, Appellant and
Cross-Respondent, v. GRANT H. HUNTLEY, Respondent and Cross-Appellant.
No. 17037
December 18, 1986 729 P.2d 489
Appeal from an order of the district court which set aside a default in favor of appellant;
Second Judicial District Court, Washoe County; Robert L. Schouweiler, Judge.
Default judgment was entered in complaint by mining partner alleging fraud and breach of
statutory mining partnership agreement. On defaulting partner's motion, the district court set
aside default, and estate of now-deceased, prevailing partner appealed. The Supreme Court
held that: (1) judgment could not be set aside, but (2) issue of damages could be retried.
Affirmed in part; reversed in part; and remanded with instructions.
Haase & Harris, Reno, for Appellant and Cross-Respondent.
John R. Brydon, Reno, for Respondent and Cross-Appellant.
1. Judgment.
Default judgment, entered in favor of mining partner alleging fraud and breach of mining partnership
agreement, could not be set aside on basis of defaulting partner's lawyer's having experience serious
economic and personal problems which allegedly contributed to neglect of case, in light of death of
prevailing partner whose testimony was necessary for relitigation of merits.
Issue of damages claimed by estate of deceased mining partner in amount of $19,627,825.05, entered
after default judgment against mining partner whose attorney was experiencing serious economic and
personal problems which allegedly contributed to his neglect of defaulting partner's case, was allowed to be
retried after review of basis for damage claims disclosing that claims were susceptible to refutation in event
facts were not as stated by deceased partner in original testimony.
OPINION
Per Curiam:
In January of 1984, J. W. Still (Still) filed a complaint against Grant H. Huntley (Huntley)
alleging fraud and breach of a statutory mining partnership agreement. On behalf of Huntley,
his counsel, Timothy W. Dixon (Dixon), answered with a general denial.
On April 24, Still brought a motion to compel discovery because Huntley failed to appear
for his deposition. The unopposed motion was granted. Huntley again failed to respond to
discovery requests, and, as a result, in an unopposed motion, Still obtained a default judgment
against Huntley on the issue of liability, with a hearing on damages to be held at a later date.
On January 3, 1985, the damages hearing was held with no appearance being made by
Huntley or his counsel. On January 8, judgment was entered in favor of Still for
$19,627,825.05 together with twelve percent interest.
On April 19 of that same year, Huntley brought a motion to set aside the default
judgments. In support of the motion attorney Dixon's affidavit stated that the attorney had
been experiencing serious economic and personal problems which affected his law practice,
that he was under a doctor's care in order to cope with his problems, and that he had requested
the State Bar to permit him to go on inactive status for six months. Dixon attributed his
neglect of Huntley's case to his personal problems. Huntley stated in his affidavit that he was
under the impression that Dixon was properly protecting his interests and that he was
unaware of the discovery requests, discovery order and default judgments until informed of
such by his son in March of 1985. Huntley stated that he was totally surprised to learn of the
manner in which Dixon had handled his case.
During the final months of these proceedings Still became infirm and was unable to appear
in court.
The motion to set aside the default and the final judgment was granted. Still then appealed
that order. During the pendency of the appeal, J. W. Still died. His son, Arthur Still, was
placed in his stead as executor and administrator of the estate.
[Headnote 1]
A motion to grant or vacate a default judgment rests in the sound discretion of the district
court. Passarelli v. J-Mar Development Co., 102 Nev. 283, 720 P.2d 1221 (1986); Staschel v.
Weaver Bros., Ltd., 98 Nev. 559, 655 P.2d 518 (1982). This discretion is not, however,
unfettered; there must be a prompt application to remove the judgment; there must not be an
intent to delay the proceedings; the defendant must have acted in good faith; and there must
exist a meritorious defense to the plaintiff's claim. Passarelli, above; Hotel Last Frontier v.
Frontier Prop., 79 Nev. 150, 380 P.2d 293 (1963).
In order to promote public confidence in the legal system and avoid the erroneous
impression that lawyers protect other lawyers at the client's expense, this court has previously
refused to impute the gross misconduct of counsel to the client. Staschel, 98 Nev. at 560-61,
655 P.2d at 519-20. However, our past refusal to impute counsel's misconduct to the client
presupposes that there is no addition to the requirements stated above, that no prejudice
will result to the opposing party's rights and that an opposing party will suffer no
injustice resulting from the granting of relief. Id. at 561, 655 P.2d at 519-20.
counsel's misconduct to the client presupposes that there is no addition to the requirements
stated above, that no prejudice will result to the opposing party's rights and that an opposing
party will suffer no injustice resulting from the granting of relief. Id. at 561, 655 P.2d at
519-20.
In the case before us, we cannot overlook the prejudice appellant claims he will suffer
because of the death of J. W. Still. The statutory mining partnership claimed to exist by Still
came about solely as the result of oral negotiations between J. W. Still and respondent
Huntley. Any credible opportunity to relitigate the merits of Huntley's liability therefore
vanished upon the death of J. W. Still.
Because of the manifest prejudice which would be suffered by appellant Still by setting
aside the default on liability, we are constrained to reverse the trial court and allow the first
default judgment
1
regarding the merits of Huntley's liability to stand. In doing so we note the
defense listed by Huntley in his answer to Still's complaint.
2

[Headnote 2]
A review of the record on this appeal leads us to the conclusion that the only viable
defenses included in the answer would require the testimony of J. W. Still. Since J. W. Still is
no longer available either to present his claim of Huntley's liability or to refute Huntley's
defenses, we have determined that, in the interests of justice, the first default must stand.
Virtually all of a potentially unjust result in this case would arise from the large amount of
damages claimed by Still. Still has, however, conceded that he could successfully retry the
damages issue. A review of the basis for Still's damage claims discloses that these claims
should be susceptible to refutation by Huntley in the event the facts are not as stated by J. W.
Still in his original testimony. That portion of the district court's order setting aside the
second default
3
entered after the damages hearing is, therefore, affirmed.
Accordingly, we remand the case to the district court for further proceedings consistent
with this opinion.
____________________

1
Dated and filed June 25, 1984.

2
Huntley listed the following five affirmative defenses: (1) failure to state a claim upon which relief can be
granted, (2) accord and satisfaction, (3) laches, (4) statute of frauds, and (5) waiver.

3
Dated and filed January 8, 1985.
____________
102 Nev. 587, 587 (1986) Bd. of Cty. Comm'rs. v. White
BOARD OF COUNTY COMMISSIONERS CLARK COUNTY, NEVADA, THALIA
DONDERO, Chairman, MANUAL CORTEZ, KAREN HAYES, RICHARD
RONZONE, PAUL MAY, DONALD CLARK, Commissioners, Appellants, v.
JUDGE EARLE W. WHITE, Jr., JUSTICE OF THE PEACE, LAS VEGAS
TOWNSHIP, CLARK COUNTY, NEVADA, Respondent.
No. 16407
December 18, 1986 729 P.2d 1347
Appeal from a judgment granting writ of mandamus and declaratory relief. Eighth Judicial
Justice of the peace brought mandamus to compel county to purchase equipment from
funds generated by surcharge on misdemeanor and ordinance fines. The district court granted
mandamus and declaratory relief for use of funds. County appealed. The Supreme Court,
Steffen, J., held that: (1) monies generated by surcharge constituted a source of funds for
court improvement and capital acquisition; (2) fund so generated was in addition to general
funds for operational budget of courts; and (3) such funds earmarked for but unused by courts
were transmuted into general fund monies.
Affirmed.
Robert Miller, District Attorney, James M. Bartley, Chief Civil Deputy District Attorney,
Clark County, for Appellants.
John and Elizabeth Foley, Las Vegas, for Respondent.
1. Action.
Issue of disposition of funds generated by surcharge on misdemeanor and ordinance fines was a
potentially recurring dispute likely to evade judicial review, so that question raised concerning use of such
funds to buy equipment for justice of peace was not rendered moot by procurement of the equipment prior
to disposition of the issue. NRS 176.059.
2. Statutes.
When a statute is of doubtful import and subject to opposite meanings, limited resort may be had to
testimony and committee discussions concerning legislation in question.
3. Fines.
Statutory assessment of surcharge on fines for misdemeanors and ordinance violations constituted a
source of funds for court improvement and capital acquisitions in addition to general fund allotments
necessary to fund the annual operational budgets of the courts, including justice of the peace courts. NRS
176.059.
4. Fines.
Funds generated by statutory surcharge on fines collected for misdemeanors and ordinance violations
which are earmarked for but unused by the court system during each fiscal year are transmuted into general
fund monies available for use by the accountable government agency as it sees fit, and are not to be
accumulated from year to year for the exclusive use of the courts. NRS 176.059.
5. Fines.
A request from a judicial officer for expenditure from fund created by surcharge on fines for
misdemeanors and ordinance violations must be viewed as presumptively reasonable.
6. Fines.
Presumption of reasonableness for judicial requests for expenditure of funds generated by surcharge on
fines for misdemeanor and ordinance violation could be rebutted by regulating and budgeting authority
responsible for expenditure of such funds, thereby justifying withholding of approval for such
disbursement. NRS 176.059.
OPINION
This appeal focuses on the meaning and impact of NRS 176.059. The statute in question
provides for the imposition of an administrative assessment fee (assessment fee) in the
amount of ten dollars as a surcharge on fines for misdemeanor pleas or convictions and the
violation of municipal ordinances. The essential issue before us concerns the character and
disposition of the funds generated by the assessment fee. The dispute giving rise to the
present controversy occurred when the respondent justice of the peace sought approval of a
requisition for necessary pieces of equipment costing approximately $6,173.00. The Clark
County Director of Budget and Financial Planning (the director) denied the request on the
basis that the justices' court budget did not include appropriations for capital items.
Respondent's clerk then asked the director to secure the funds from assessment fee
collections. This suggestion also proved unavailing as the director informed the court clerk
that all assessment fee monies were committed to funding, pro tanto, the 1984-85 justices'
court operational budget. Respondent thereafter petitioned the Board of County
Commissioners of Clark County, where he again unsuccessfully invoked NRS 176.059 as an
appropriate source of funds for the equipment purchase. Finally, respondent received relief in
the form of mandamus from the district court compelling Clark County to purchase the
requisitioned items. This appeal followed.
[Headnote 1]
The mootness doctrine arises as a threshold issue because Clark County has purchased
the equipment involved in the controversy before the district court.
Clark County has purchased the equipment involved in the controversy before the district
court. This Court has long adhered to the general rule that denies review to cases rendered
moot by the happening of events subsequent to the initial controvery. NCAA v. University of
Nevada, 97 Nev. 56, 624 P.2d 10 (1981). However, the nature of the initial controversy in the
instant case extends far beyond the subissue presented by the requisition for specified items
of equipment. The primary thrust of this appeal concerns the meaning of a statute that
continues to generate substantial revenue of uncertain character and constraints. Thus, the
potential for recurring disputes under the statute is great, with equally significant prospects
for evading review for reasons which may be more practical than lawful. Moreover, the
continuing uncertainty burdening the statute presents substantial and vexing problems to
agencies charged with the responsibility of meeting the fiscal needs of government. We
therefore conclude that the mootness doctrine must yield in the public interest to the more
pressing expedient of statutory interpretation. See Ballard v. Anderson, 484 P.2d 1345 (Cal.
1971).
In granting relief to respondent, the district court held that the special account maintained
in the County's general fund constituted an addition to and not a supplement to or reduction
from the funds normally allocated to the Justice Courts from the general fund. The court
then declared, While the County must regulate the special fund, the fund is for the exclusive
benefit of the Justice Courts. On appeal, appellants contend that the district court's ruling
creates an unlawful interference with statutorily established budgetary processes coupled with
an illegal arrogation of power in the justices' courts to control local government budgeting.
Specifically, appellants charge respondent and the district court with erroneously adopting a
position that requires the County to maintain a funded special account upon which a justice of
the peace may compel expenditures on demand.
Appellants urge upon us the proposition that such a position is both unlawful and
unworkable under the overall statutory scheme of local government budgeting. There is,
however, grist for each party's mill in this appeal. If, as appellants would have us believe, the
assessment fee is nothing more that another general revenue measure to fund the needs of
government, the statutory mandate for the establishment of a special account for the use of
the justices' courts would be vacuous. Obviously, with or without the assessment fee and the
special account, the fiscal requirements of the judicial branch of government would have to
be supplied from public money. On the other hand, the appropriation of public funds to
satisfy, in whole or in part, the budgetary needs of government entities is clearly outside
the judicial function.
needs of government entities is clearly outside the judicial function. Moreover, an
unrestrained power in the judiciary to command unbudgeted public funds, available or not,
upon demand, would create an intolerable challenge to any responsible scheme of
governmental budgeting.
[Headnote 2]
When a statute is of doubtful import and subject to opposite meanings, limited resort may
be had to testimony and committee discussions concerning the legislation in question.
Maynard v. Johnson, 2 Nev. 25 (1866). The legislative history surrounding the birth of NRS
176.059-.075 is, however, of limited benefit. Nevertheless, it is apparent from the committee
discussions and testimony preceding the enactment of the legislation that court improvement,
capital equipment acquisition by the courts and budgetary relief for the cities and counties
were among the anticipated benefits of the legislation. We have recognized that a reading of
legislation which would render any part thereof redundant or meaningless, where that part
may be given a separate substantive interpretation, should be avoided. Bd. of County
Comm'rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983). Our task may thus
be described as ascertaining and articulating the statutory intent consonant with both the
language of the statute and the clear expressions of purpose surrounding its advent.
In considering the legislative history of the statute, its express wording and the obvious
need to reconcile conflicting inferences in harmony with fiscally sound budgeting
imperatives, we conclude that the statute is neither fish nor fowl. It is clear from the language
of the statute earmarking its revenues primarily for the use of the judiciary that the measure is
not simply a general revenue measure designed to assist in the funding of government. It
follows, therefore, that such revenues may not be viewed merely as base funding for the
operating budgets of the courts or, in this instance, the justices' courts. Credence for this
proposition may be seen in that segment of the statute that specifically designates an aliquot
part of the revenue deposited with the state controller for the development of a uniform
system for judicial records. NRS 176.061(1)(b). The latter use of the assessment fee revenues
relates strictly to the improvement of the court system as opposed to funds generally budgeted
for the ongoing operational needs of the courts.
Both the peculiar language of the statute and its historical inducements also suggest an
intent on the part of the Legislature to benefit the general funds of the governmental entities
charged with the responsibility of funding the functions of government. Support for this
premise is revealed by the statutory language of NRS 176.061{2), which provides that all
funds received by the state controller that are in excess of the funds authorized for
expenditure must be credited to the state general fund.
NRS 176.061(2), which provides that all funds received by the state controller that are in
excess of the funds authorized for expenditure must be credited to the state general fund.
[Headnotes 3, 4]
The foregoing analysis distills into two basic conclusions: (1) the assessment fee provides
a source of funds for court improvement and capital acquisitions which is in addition to
general fund allotments necessary to fund the annual operational budgets of the courts; and
(2) such monies earmarked for, but unused by, the court system during each fiscal year are
transmuted into general fund monies available for use by the accountable government agency
as it sees fit. Such funds are not to be accumulated from year to year for the exclusive use of
the courts.
We are not unmindful that the foregoing resolution fails to eliminate residual problems in
administration and budgeting. These problems will be minimized, however, if the collecting
and dispensing governmental entities retain unused assessment fee revenues until the end of
each fiscal year before releasing them to non-judicial uses. Additionally, we would view it to
be in the best tradition of cooperative government if, working together, responsible judicial
officials and staff and the governing body were to attempt to accommodate the earliest and
best use of assessment fee revenues by projecting, to the extent possible, likely claims against
the special fund. The latter process may render the governing body vulnerable to unexpected
claims by the judiciary against funds already expended, but this risk would have to be
evaluated and resolved in accordance with the best interests of the governing body.
Finally, it is apparent from our disposition of this matter that we reject the contention that
the use of assessment fee revenues becomes inconsequential under the doctrine of Young v.
Board of County Commissioners, 91 Nev. 52, 530 P.2d 1203 (1975). Under Young, we
determined that a governing body could not withhold available funds from the necessary and
reasonable demands of the judiciary. The Young doctrine addresses itself to situations where
available funds which are necessary to the fulfillment of constitutional responsibilities by the
judiciary are withheld. The issue before us extends beyond the problem of funding for judicial
imperatives to funding for judicial improvement. While either category of funding may be
supplied by court order stemming from the inherent or statutory powers of the courts,
respectively, it would indeed be a most reluctant use of the judicial power to accomplish
funding in either case by such extraordinary means. The people, from whom the branches of
government receive vitality, have a reasonable expectation of cooperative effort among
those branches to implement the functions of government.
cooperative effort among those branches to implement the functions of government. There is
simply no basis for concluding that the cooperative spirit of the past will not continue.
[Headnotes 5, 6]
We have said nothing that would indicate a carte blanche authority in the courts, including
the respondent court, to unrestricted access to assessment fee revenues. Nevertheless, since
the Legislature created the assessment fee primarily to facilitate the improvement of the court
system from which the fees are generated, requests from judicial officers for the expenditure
of funds produced from that source must be viewed as presumptively reasonable. The
regulating, budgetary authority may, however, withhold approval and disbursement of such
requisitions upon a showing sufficient to rebut the presumption of validity.
For the reasons specified above, the judgment of the district court is affirmed.
Mowbray, C. J., and Young, J., concur.
Gunderson, J., and Springer, J., concurring in the result:
We are reluctant to endorse precatory dicta as to how the concerned governmental officials
should perform their administrative responsibilities, or as to the frame of mind with which
those responsibilities should be pursued. Accordingly, with all respect to our colleagues, we
state our views separately. We do, however, fully agree with our brethren that the district
court ruled correctly in this case and should be affirmed.
As noted above by our brethren, from the language of the statute, by earmarking
assessment fee revenues primarily for the use of the judiciary, the legislature clearly did not
intend to created simply a general revenue measure to assist in the funding of government.
Nor did the legislature intend to release the various municipalities from the obligation to fund
their courts adequately, in good faith, out of general revenue funds.
What the legislature quite evidently intended, rather, was to provide the courts with a
source of supplemental funding, derived directly from persons using the courts, to be
employed at the discretion of the judiciary in improving their courts and increasing their
courts' efficiency. To achieve these ends, we think innovation and reasonable experimentation
were contemplated, and only if a municipality can show that a proposed use of assessment-fee
funds is palpably unreasonable is the municipality's reversionary interest to be deemed
invaded.
In this case, the trial judge clearly decided that no such invasion had been established, and
we cannot fault this determination.
____________
102 Nev. 593, 593 (1986) Parker v. Mineral County
FRED J. PARKER, JAMES O. PARKER, ELIZABETH RICHMOND, and SHIRLEY ANN
DRAKE, Appellants, v. MINERAL COUNTY, a Political Subdivision of the STATE
No. 14793
December 18, 1986 729 P.2d 491
Appeal from summary judgment. Fifth Judicial District Court, Mineral County; William P.
Beko, Judge.
Heirs of individual who died of exposure when he was left lying on roadside brought
action against county. County moved for summary judgment on grounds that county was
immune from suit and county owed no special duty to individual. The district court granted
summary judgment, and appeal was taken. The Supreme Court, Young, J., held that: (1)
decision of county officials not to respond to report of individual lying along roadside was
exercise of discretionary function entitling officials to immunity from suit, and (2) county
did not assume special duty toward individual lying along roadside when county officials
represented that they would take care of situation.
Affirmed.
Springer, J. dissented.
Robison, Lyle, Belaustegui & Robb, Reno, for Appellants.
Allison, Brunetti, MacKenzie, Hartman, Soumbeniotis & Russell, Carson City, for
Respondent.
1. Municipal Corporations.
Personal deliberation, decision and judgment are requirements of discretionary act for which public
officials are entitled to immunity.
2. Counties.
Decision of county officials not to respond to report of individual lying along roadside was exercise of
discretionary function entitling officials to immunity from suit; officials exercised their personal
judgment as to how their limited resources should be utilized to best promote public good.
3. Counties.
County did not assume special duty toward individual lying along roadside when county officials
represented that they would take care of situation, where individual never communicated with any county
official, nor did he rely on representation allegedly made by sheriff's deputy, and county's failure to act did
not preclude others from assisting individual or affirmatively increase potential for harm to individual.
OPINION
This is an appeal from a summary judgment in a wrongful death action. The district court
granted summary judgment to respondent Mineral County on the grounds that the county was
immune from suit pursuant to NRS 41.032(2) and that the county owed no special duty to the
decedent. Appellants assign these findings as error.
Between 6:30 a.m. and 8:30 a.m. on March 6, 1981, Charles Miller departed from
Hawthorne to obtain a load of firewood. Approximately 15 miles south of Hawthorne, in
Mineral County, Miller left the paved road and drove a short distance on the I.M.N. Mine
road. There Miller observed a person, later identified as Fred F. Parker, lying beside the road.
Miller asked Parker if he needed assistance and received what he believed was a negative
answer. Miller continued on to his destination. On his return trip, Miller again observed
Parker on the roadside. Miller asked Parker whether he needed a ride to Hawthorne and
received an answer in the affirmative. Miller returned to his automobile and waited for
Parker. When Parker continued to lie on the ground, however, Miller left without him.
While driving back to Hawthorne, Miller decided to report the incident to the Mineral
County Sheriff's Department. Upon arriving in Hawthorne, Miller drove to the sheriff's office
and informed the dispatcher on duty of the incident. Miller also informed a deputy sheriff of
the incident and allegedly received the assurance that it would be taken care of.
1

No one from the sheriff's office responded to Miller's report, and Parker died of exposure
by the roadside. Parker's heirs initiated this action alleging that the failure of the Mineral
County officials to respond to Miller's report led to Parker's death.
Appellants contend that the district court erred in finding Mineral County immune from
suit because the decision not to respond to Miller's report was made at the operational, rather
than the discretionary, level.
____________________

1
In their complaint, appellants allege that Miller received assurances from the deputy sheriff that someone
would respond to his report and take care of the situation. Because this matter was decided on summary
judgment, we must accept this allegation as true for purposes of this review. See Pacific Pools Constr. v.
McClain's Concrete, 101 Nev. 557, 559, 706 P.2d 849, 851 (1985) (appellant's factual allegations must be
presumed correct on summary judgment review). We note, however, that Miller testified in a deposition that no
such assurances were given by either the dispatcher or the deputy sheriff. Indeed, Miller testified that when he
left the sheriff's office, he had the impression that nothing would be done, Miller also testified that the deputy
sheriff informed him that he was alone on the job and could not leave town.
than the discretionary, level. See NRS 41.032(2) (public officials are immune from suit based
on the performance or failure to perform a discretionary function or duty); Crucil v. Carson
City, 95 Nev. 583, 600 P.2d 216 (1979) (statute immunizing public officials from liability for
discretionary acts did not bar a suit based upon the city's operational duty to maintain a stop
sign).
[Headnotes 1, 2]
Personal deliberation, decision and judgment are requirements of a discretionary act. See
Board of Co. Comm'rs v. Cirac, 98 Nev. 57, 59, 639 P.2d 538, 539 (1982). In deciding not to
respond to Miller's report, the county officials exercised their personal judgment as to how
their limited resources should be utilized to best promote the public good. Such a decision
should not be second guessed by a court with the benefit of hindsight. See Bruttomesso v. Las
Vegas Met. Police, 95 Nev. 151, 591 P.2d 254 (1979). Therefore, the district court did not err
in concluding that the county officials performed a discretionary function in deciding not to
respond to Miller's report.
Appellants also contend that the county assumed a special duty toward Parker when its
officials represented to Miller that they would take care of it. See De Long v. County of Erie,
457 N.E.2d 717 (N.Y. 1983) (county had special duty to assist woman who had requested
emergency aid and had relied on representation that police officers would be dispatched). We
disagree.
[Headnote 3]
Parker never communicated with any county official, nor did he rely on the representation
allegedly made by the sheriff's deputy. Further, there is no indication that the county's failure
to act precluded others from assisting Parker or affirmatively increased the potential for harm
to Parker. See Frye v. Clark County, 97 Nev. 632, 637 P.2d 1215 (1981) (fire department
which responded to fire alarm by going to the wrong address owed no special duty to the
individuals whose property was lost in the fire). Therefore, the county owed no special duty
to Parker.
Having concluded that the district court properly granted summary judgment in favor of
Mineral County, we affirm the decision of the district court.
Mowbray, C. J., and Gunderson and Steffens, JJ., concur.
Springer, J., dissenting:
The facts which we must deal with in this appeal are stated in the complaint.
1
Mr.
____________________

1
The majority note[s] however a contradictory version of the facts which it takes from a deposition that I
do not find in this record. I am correct
Mr. Miller reported to the Mineral County Sheriff's Department Mr. Parker's location
and the fact that he was in distress and needed assistance. Mr. Miller was informed that
the matter would be taken care of. In reliance on said representation, Mr. Miller made
no effort to further assist Mr. Parker. Said representations, in fact, were false and the
Mineral County Sheriff's Department made no effort to assist Mr. Parker and further
made no record of Mr. Parker's location or apparent distress in the log of the Mineral
County Sheriff's Department.
What we have before us, then, is a case in which a passerby, Mr. Miller, came across an
ailing Mr. Parker in the desert, down and in obvious need of assistance. Mr. Miller notified a
sheriff's deputy of Mr. Parker's perilous condition. The deputy promised that the matter
would be taken care of, that is, that someone would go to Mr. Parker's aid. This promise
effectively prevented Mr. Miller or anyone else from going to Mr. Parker's rescue. Mr. Parker
died as a result of the officers' failure to carry out the responsibility that was undertaken when
the promise to rescue Mr. Parker was made.
Mr. Parker was an old man, and the cause of his death is uncertain, except that it was
caused by exposure which could have been prevented by a proper response to Miller's reports.
The majority opinion is based on its holding that, as a matter of law, the official decision
not to rescue Parker was discretionary, which is to say volitional and deliberate, with the
deputies' consciously deciding not to respond to Miller's report. The majority view is that
the officers made an election to leave Mr. Parker lying in the desert and exercised their
personal judgment as to how their limited resources should be utilized. Mr. Parker's life vs.
scarce resources: conservation of scarce resources wins. There were not enough resources to
go after Mr. Parker even after the officer said that it would be taken care of; so they left him
on the desert.
In deciding not to rescue Mr. Parker, the majority believes that the county officials
performed a discretionary function in deciding not to respond to Miller's report. I wonder
what the Mineral County Sheriff will think when he reads in the majority opinion that his
office made a deliberate, discretionary, judgment call not to rescue an old man, down in the
desert and in need of help, because of the limited resources available to his office. My
guess is that the sheriff will be shocked. It would seem to me more than probable that a
deliberate, discretionary, penurious judgment was not made by the sheriff's deputy "in
deciding not to respond," but rather, that the failure was an unfortunate operational
oversight for which his office may or may not be liable, depending on how the facts might
be presented at trial.
____________________
in assuming for the purpose of this appeal that Mr. Parker died in the desert of exposure during Mr. Miller's
expectation that the matter would be taken care of.
more than probable that a deliberate, discretionary, penurious judgment was not made by the
sheriff's deputy in deciding not to respond, but rather, that the failure was an unfortunate
operational oversight for which his office may or may not be liable, depending on how the
facts might be presented at trial.
One's sense of justice would dictate that when a public safety officer promises to give
specific aid and fails to do so, the office must answer in law for that failure. Case law so
holds. See, e.g., Chambers-Castenes v. King County, 669 P.2d 451 (Wash. 1983) (decision of
whether to dispatch an officer to the scene of a crime is operational, because it involves the
type of decision made at an everyday operational level.)
I also read in the majority opinion that the county in this case assumed no special duty
toward Parker when its officers represented to Miller that they would take care of it because
Parker never communicated with any county official, nor did he rely on the representation
made by the deputy. To fortify this point the majority opinion goes on to note also that the
sheriff's office did nothing which preclude others from assisting Parker.
As I understand the majority opinion, then, there can be no legal liability in this case, as a
matter of law, for these stated reasons:
1. The official acts were discretionary and therefore not actionable because:
Limited resources justified the public officers in making a conscious,
deliberate, discretionary decision not to go to the rescue of Parker after they
had committed themselves to do so.
2. The officers owed no duty of rescue to Parker because:
a. They did not prevent any one else from helping him.
b. Parker himself never asked for help.
c. Parker was not aware of Miller's attempts to get help from him or of the
officer's commitment to come to his aid.
From this kind of reasoning I dissent. I think there ought at least to be a trial in this case.
____________
102 Nev. 598, 598 (1986) United Services v. Akers
UNITED SERVICES AUTOMOBILE ASSOCIATION, a Texas Corporation,
Appellant, v. SHERYL J. AKERS, Respondent.
No. 16089
December 18, 1986 729 P.2d 495
Appeal from a judgment against United States Automobile Association. Second Judicial
District Court, Washoe County; Robert L. Schouweiler, Judge.
Passenger injured in automobile accident brought action against driver. Uninsured
motorist insurer of passenger's spouse, realizing potential exposure, filed
complaint-in-intervention seeking declaratory relief against any claim by passenger. The
district court entered judgment against insurer, and insurer appealed. The Supreme Court held
that: (1) evidence and testimony insurer sought to have admitted concerning intent of insured
and passenger-spouse to share common residence should have been admitted, and its
exclusion necessitated new trial, given coverage provision that insurance included spouse of
named insured if resident of same household; (2) judgment against insurer could not exceed
policy limits; and (3) action for declaratory relief by insurer was properly transmuted in to
action for damages.
Reversed and remanded for new trial.
Beckley, Singleton, DeLanoy and Jemison, and Frances A. Forsman, Las Vegas, for
Appellant.
Roger E. Newton, Reno, for Respondent.
1. Insurance.
Evidence and testimony insurer proffered concerning intent of insured holding uninsured motorist policy
and his spouse to share common residence should have been admitted, and its exclusion required new trial
on issue of whether uninsured motorist policy provided coverage for spouse's injury in automobile
accident, which occurred after marriage but while insured and spouse had not moved into one household,
where policy provided coverage if spouse of named insured were resident of same household, and insurer
identified witnesses who assertedly would have testified that insured and spouse were homosexuals and that
marriage occurred only to assist insured in avoiding discharge from Air Force and to create basis for extra
allotment money, and insurer identified witnesses who had personally heard admissions by both insured
and spouse that marriage was sham, for convenience only, and that parties never intended to live together.
2. Insurance.
Intent of parties is one relevant factor to be considered in determining whether, for purposes of insurance
coverage, people reside in common household.
3. Insurance.
Judgment against insurer who provided uninsured motorist coverage could not exceed policy limits, if it
were determined that insured's spouse, who was injured in automobile accident, was entitled to coverage
under insured's policy.
4. Action.
Action for declaratory relief by uninsured motorist insurer which intervened in action by passenger
injured in automobile accident against driver seeking declaratory relief against any claim against insurer by
passenger, who was spouse of insured, was properly transmuted into action for damages; in absence of
prejudice to insurer, there was no reason to delay entry of judgment to await another action. NRCP 54(c).
OPINION
Per Curiam:
The threshold issue on appeal is whether the trial court erred in excluding evidence
bearing on the subject of respondent's residence. Appellant contends that the excluded
evidence was critical to a fair determination of the availability of coverage under a policy of
insurance issued to respondent's husband, Richard Bryner. We conclude that appellant was
prejudiced by the trial court's ruling, thus mandating reversal of the judgment and a new trial.
Respondent, Sheryl Akers, was injured in a single car accident. Akers was a passenger in
an automobile operated by Melanie Tholke when the accident occurred. The maximum
liability coverage under the Tholke policy was $15,000.00. Respondent's husband, Richard
Bryner, held an insurance policy with appellant United Services Automobile Association
(USAA) that carried uninsured motorist limits of $100,000.00 per person and $200,000.00
per accident. Akers filed suit against Tholke, and USAA, realizing a potential exposure under
the resident relative provision of its policy with Bryner, filed a complaint-in-intervention
seeking declaratory relief against any claim by Akers.
Although Akers was not a named insured in Bryner's policy, her recent marriage to Bryner
implicated Bryner's USAA policy by reason of the following clause:
1
[N]amed insured'
means the individual or husband and wife named in Item 1 of the declarations, but if only one
individual is named the term named insured' also includes his spouse, if a resident of the
same household. (Emphasis supplied.) [Headnote 1]
[Headnote 1]
____________________

1
Akers and Bryner were married on September 19, 1982, just thirty-seven days prior to the accident.
[Headnote 1]
During trial, USAA sought to controvert the testimony of Akers and Bryner concerning the
controlling issue of residential intent. It was conceded that Bryner and Akers had not
occupied the same residence during the period between their marriage and the date of Aker's
injury. The district court, accepting as true the couple's testimony concerning their future
intention to reside together, found that Akers and Bryner simply did not have time to
establish a single household of their own. . . . Unfortunately, the trial judge refused USAA
its right to rebut Akers' evidence concerning residence either by cross-examination or by
presentation of contradictory evidence. This was error.
USAA, frustrated in its efforts to compel discovery on the issue of Akers' and Bryner's
intent to reside together, vainly sought admission of a detailed offer of proof that, if true,
would be dispositive of the residence issue. USAA identified witnesses who assertedly would
have testified that Akers and Bryner are homosexuals and that their marriage occurred only to
assist Bryner in avoiding a discharge from the United States Air Force and to create a basis
for extra allotment money. Moreover, the offer of proof indicated that the witnesses USAA
identified and sought to have testify had personally heard admissions by both Bryner and
Akers that the marriage was a sham, for convenience only, and that the parties never intended
to live together. Clearly, the proffered testimony was not only of indisputable relevance, but,
if believed by the trier of fact, would eliminate any basis for liability against USAA. Indeed,
USAA asserted in its motion to allow evidence on its behalf that depositional evidence shows
that the parties had never resided together from the date of the marriage in September, 1982,
through the date of the filing of the motion in May, 1984, in spite of the fact that Bryner had
been discharged from the Air Force since January, 1983, and had from that time been residing
in Reno at different addresses than Akers.
[Headnote 2]
Numerous cases support the obvious premise that intent of the parties is one of the
relevant factors to be considered in determining whether, for purposes of insurance coverage,
people reside in a common household. See, e.g., Lumbermen's Mutual Cas. Co. v.
Continental Cas. Co., 387 P.2d 104 (Alaska 1963); United Services Automobile Ass'n v.
Mione, 528 P.2d 420 (Colo.Ct.App. 1974); American Security Ins. Co. v. Van Hoose, 416
So.2d 1273 (Fla.Ct.App. 1982); Firemen's Ins. Co. v. Burch, 426 S.W.2d 306 (Tex.Civ.App.),
rev'd in relevant part on other grounds (absence of case or controversy), 442 S.W.2d 331
(Tex. 1968); Hawaiian Ins. & Guar. Co. v. Federated American Ins. Co., 534 P.2d 48
(Wash.Ct.App. 1975).
The trial court excluded all evidence and testimony USAA sought to have admitted
concerning the intent of Bryner and Akers to share a common residence. The sexual
preferences of Bryner and Akers were relevant in providing context and credibility to their
alleged admissions that they never intended to live together as husband and wife. The district
court erred in excluding evidence proffered on the subject by USAA, thereby necessitating a
new trial.
[Headnotes 3, 4]
The district court also erred in granting judgment against USAA in an amount in excess of
Bryner's $100,000.00 policy limits. If, upon retrial and consideration of all relevant evidence,
it is again determined that Akers is entitled to coverage under Bryner's policy, the judgment
against USAA may not exceed policy limits.
2

For the reasons noted above, the judgment against USAA is reversed and the cause
remanded to the district court for a new trial.
____________________

2
We do not agree that the trial court erred in transmuting an action for declaratory relief by
plaintiff-in-intervention (USAA) into an action for damages. NRCP 54(c). In the absence of prejudice to USAA,
there was no reason to delay entry of judgment to await another action.
____________
102 Nev. 601, 601 (1986) Am. Excess Ins. Co. v. MGM
AMERICAN EXCESS INSURANCE COMPANY, Appellant, v. MGM GRAND HOTELS,
INC., GRAND RESERVATION SERVICES, INC., GRAND PURCHASING
SERVICES, INC., HOTEL LINEN SERVICES, INC., RENO RESORTS, INC.,
MGM GRAND HOTEL-RENO, INC., RENO RESERVATION SERVICES, INC.,
MGM GRAND HOTEL-LAS VEGAS, INC., Respondents.
No. 16425
December 18, 1986 729 P.2d 1352
Appeal from judgment in an action for declaratory judgment and counterclaim for breach
of duty of good faith and fair dealing of an insurance contract. Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
Insurer providing excess umbrella liability coverage brought action for declaratory
judgment that it was not obligated to pay defense costs and legal expenses until all liability
claims arising from fire on insured's premises were resolved. Insured counter-claimed for
damages for breach of good faith and abuse of process. The district court granted insured's
motion for partial summary judgment on declaratory judgment action and entered
judgment for insured on counterclaims.
summary judgment on declaratory judgment action and entered judgment for insured on
counterclaims. Insurer appealed. The Supreme Court held that: (1) policy required insurer's
payment of pro rata share of defense costs and legal fees based on proportionate share of all
sums paid in settlement; (2) insurer had reasonable basis for denial of payment based on
question concerning scope of coverage; and (3) assessment of attorney's fees and punitive
damages against insurer was improper.
Dickerson, Miles, Pico & Mitchell, Eleissa C. Lavelle, Las Vegas, and Boornazian, Jensen
& Garthe, Oakland, California, for Appellant.
Lionell Sawyer & Collins and David N. Frederick, Las Vegas, for Respondent.
1. Insurance.
Policy terms should be viewed in their plain, ordinary and popular connotations.
2. Insurance.
In construing the meaning of an insurance policy, the contract will be read as whole and given a
construction which will accomplish the object of providing indemnity for the losses covered by the policy.
3. Insurance.
Policy provision in excess umbrella liability layered coverage for insurer's payment of defense costs and
legal fees in the ratio that its proportion of the ultimate net loss, as finally adjusted, bears to the whole
amount of such ultimate net loss, required insurer to pay a pro rata share of all defense costs and legal
expenses, based on insurer's proportionate share of all sums paid in settlement on all claims, rather than all
defense costs incurred while insurer was paying its indemnity limit.
4. Process.
Insurer's resistance to insured's discovery efforts was punished by proper sanctions for failure to comply
with discovery, and insurer had a good-faith and reasonable basis for denying benefits of policy, based
upon its interpretation of that policy, so that neither resistance to discovery nor filing declaratory judgment
action to ascertain the coverage of the policy supported finding of abuse of process against insurer.
5. Insurance.
Insurer's declaratory judgment action with regard to liability policy coverage issue of first impression was
not brought without reasonable ground or to harass the insured, with result that attorney's fees in such
action should not have been assessed against insurer. NRS 18.010.
6. Insurance.
Insurer's denial of claim for defense costs and legal expenses under excess umbrella liability policy and
insurer's subsequent institution of declaratory judgment action on coverage issue under policy, in which
insurer prevailed, were not such willful wrongs against insured as to justify assessment of punitive damages
against insurer. NRS 42.010.
OPINION
Per Curiam:
On November 21, 1980, a major fire occurred at the MGM Grand Hotel and Casino in Las
Vegas, resulting in more than 3,000 liability claims for wrongful death, personal injury and
property damage. At the time of the fire, defendants/counterclaimants/respondents MGM
Grand Hotels, Inc. and MGM Grand Hotel-Las Vegas, Inc. (MGM) carried $30,000,000 of
liability insurance coverage written on a layered basis by four different insurance companies.
Plaintiff/counterdefendant/appellant American Excess Insurance Company (AEI) provided
the second layer of excess umbrella coverage, in the amount of $10,000,000. The policy
provisions at issue provided:
[Definition of Loss Payable.] The Company's obligation to pay any ultimate net loss
and costs with respect to any accident or occurrence falling within the terms of this
Certificate shall not attach until the amount of the applicable underlying limit has been
paid by or on behalf of the Insured on account of such accident or occurrence.
****
. . . legal expenses . . . that are incurred by the Insured . . . shall be apportioned as
follows:
****
(3) Should . . . the sum for which the said claim or suit may be settled exceed
the underlying insurance limit or limits, then the Company . . . shall contribute
to the costs incurred by the Insured in the ratio that its proportion of the
ultimate net loss, as finally adjusted, bears to the whole amount of such
ultimate net loss. (Emphasis added.)
Ultimate net loss under the policy is the sums paid in settlement of losses for which the
Insured is liable.
The primary insurance carrier paid MGM the policy liability coverage limit and an amount
for legal fees in settlement of its policy. The first excess insurance carrier reimbursed MGM
for its defense costs and legal expenses until its limit for indemnity and defense costs and
legal expenses was paid. After MGM made demand upon AEI for reimbursement of its
settlement payments and defense costs and legal expenses, AEI reimbursed MGM for
settlement payments totalling the full amount of its indemnity coverage.
AEI then filed this action seeking a declaration that it was not obligated to reimburse
MGM for defense costs and legal expenses incurred in litigating and settling liability claims
falling within its layer of coverage until all of the liability claims arising out of the fire had
been resolved.
incurred in litigating and settling liability claims falling within its layer of coverage until all
of the liability claims arising out of the fire had been resolved. MGM counterclaimed for
breach of the duty of good faith and fair dealing under the insurance contract and abuse of
process. The district court granted MGM's motion for partial summary judgment on the issue
of liability for the defense costs and legal expenses. The district court interpreted the
insurance contract as requiring AEI to pay MGM defense costs as they were incurred.
After trial on the remaining issues, the district court stated that defense costs and legal
expenses would be apportioned only where they were incurred in connection with one single
claim or suit which straddles two layers of coverage, i.e., a claim or suit for which the insured
is reimbursed with monies partly from the underlying insurance and partly from AEI's
coverage layer. The district court ordered AEI to pay all defense costs incurred during the
time AEI was paying its indemnity limit; i.e., the time it was at risk. The district court
found AEI's conduct in refusing timely payment of the defense costs and legal expenses a
breach of its duty of good faith and fair dealing. The court also found that AEI's institution of
the declaratory relief action in the inconvenient forum of Washoe County without having first
conducted an adequate investigation was for the ulterior purpose of delaying and limiting
payment and was an abuse of process. The district court awarded MGM compensatory and
punitive damages. AEI instituted this appeal.
AEI argues that the policy provides for a proration of all defense costs and legal expenses
based on AEI's proportionate share of the total of all sums paid in settlement of losses on all
claims and suits. We agree.
[Headnotes 1, 2]
We have previously held that in ascertaining the meaning of an insurance policy, the
language should be analyzed from the perspective of one untrained in law or in the insurance
business. Policy terms should be viewed in their plain, ordinary and popular connotations.
National Union Fire Ins. v. Reno's Exec. Air, 100 Nev. 360, 682 P.2d 1380 (1984). The
contract will be read as a whole and given a construction which will accomplish the object of
providing indemnity for the losses covered by the policy. Id. In Aetna Cas. & Sur. Co. v.
Certain Underwriters, 129 Cal.Rptr. 47 (Cal.Ct.App. 1976), the court concluded, relying on
similar language of the policies, rules of insurance contract construction and equitable
subrogation, that defense costs should be apportioned between insurers based on a ratio of the
amount paid by each insurer to the total amount of the indemnity payments paid by all
insurers in settlement of claims and satisfaction of judgments.
payments paid by all insurers in settlement of claims and satisfaction of judgments.
[Headnote 3]
We conclude that the policy provisions at issue compel the interpretation that AEI is
responsible for its proportional share of all defense costs attributable to claims or suits arising
out of the fire. Thus, ultimate net loss, as finally adjusted, is the total amount of all losses
for which the insured is liable arising out of the fire. AEI's pro rata share of defense costs may
be described arithmetically as the product of the totality of defense costs and legal expenses
multiplied by the ratio of AEI's full indemnity amount to the ultimate net loss. The language
of the contract is clear. To interpret the policy in any other manner would render meaningless
the language as finally adjusted in the provision concerning payment of the legal costs. The
district court therefore erred in requiring AEI to pay all defense costs during the time AEI was
at risk.
[Headnote 4]
We also conclude, therefore, that the lower court erred in finding bad faith and abuse of
process. Bad faith involves an actual or implied awareness of the absence of a reasonable
basis for denying benefits of the policy. See United States Fidelity v. Peterson, 91 Nev. 617,
540 P.2d 1070 (1975); accord Noble v. National Am. Life Ins. Co., 624 P.2d 866, 868 (Ariz.
1981); Davy v. Public Nat'l Ins. Co., 5 Cal.Rptr. 488 (Cal.Ct.App. 1960). In Neal v. Farmers
Ins. Exch., 148 Cal.Rptr. 389, 395 n. 5 (1978), the court emphasized good faith as
faithfulness to an agreed common purpose and consistency with the justified expectations of
the other party. . . .
Because we conclude that AEI's interpretation of the contract was reasonable, there is no
basis for concluding that AEI acted in bad faith. In finding bad faith, the district court relied,
inter alia, on AEI's resistance to MGM's discovery efforts. However, AEI has already been
punished for failure to comply with discovery by the imposition of sanctions. It follows from
the foregoing conclusion that AEI was justified in filing its complaint for declaratory relief
and hence the district court's judgment on grounds of an abuse of process was error. See Bull
v. McCuskey, 96 Nev. 706, 615 P.2d 957 (1980).
[Headnotes 5, 6]
Moreover, the district court improperly awarded MGM attorney's fees and punitive
damages. Attorney's fees are appropriate when a claim is brought without reasonable ground
or to harass the prevailing party. NRS 18.010. AEI's conduct in filing suit was not
unreasonable.
was not unreasonable. The coverage issue was one of first impression. Additionally, awards
of punitive damages are improper where the evidence fails to show either a willful wrong or
the damage as an intended or necessary consequence. See NRS 42.010; Rowland v. Lepire, 99
Nev. 308, 662 P.2d 1332 (1983); Fuller v. Incopero, 97 Nev. 448, 634 P.2d 452 (1981);
United States Fidelity v. Peterson, supra; Village Development Co. v. Filice, 90 Nev. 305,
526 P.2d 83 (1974).
Accordingly, the judgment is reversed. The case is remanded to the district court for
____________
102 Nev. 606, 606 (1986) State, Emp. Security v. Hilton Hotels
STATE OF NEVADA EMPLOYMENT SECURITY DEPARTMENT and STANLEY
JONES, Executive Director of the Employment Security Department, and JANICE K.
FREY, Appellants, v. HILTON HOTELS CORPORATION, Respondent.
No. 16865
December 18, 1986 729 P.2d 497
Appeal from an order of the district court, reversing the Employment Security Division's
Board of Review determination that appellant was entitled to unemployment benefits. Second
Judicial District Court, Washoe County; James J. Guinan, Judge.
Appeal was taken from order of the district court reversing Employment Security Division
Board of Review's determination that employee was entitled to unemployment benefits. The
Supreme Court held that record provided substantial evidentiary support for decision of
Board of Review.
Reversed.
Crowell, Crowell, Crowell & Susich and Daniel L. O'Brien, Carson City, for Appellants.
Lionel, Sawyer & Collins and Jeffrey D. Menicucci, Reno, for Respondent.
Decision of Employment Security Division Board of Review awarding unemployment compensation to
employee terminated for failure to call in and report that she would not be able to work her shift was
supported by substantial evidence, where record reflected substantial confusion as to whether employee
was originally scheduled to work on day in question and confusion involving her obligation to appear for
jury duty and extent of her responsibility to inform her employer of her jury duty
commitments.
jury duty and extent of her responsibility to inform her employer of her jury duty commitments.
When reviewing administrative board's actions, Supreme Court, like district court, is limited to record
below and to whether board acted arbitrarily or capriciously, and question thus becomes whether board's
decision was based on substantial evidence.
OPINION
Per Curiam:
This action was brought originally after Frey had applied for employment compensation
and was denied benefits. Frey appealed that determination and a hearing was held before an
appeals referee. The referee denied Frey's claim and Frey appealed to the Employment
Security Division Board of Review. The Board of Review, ruling on the record generated by
the appeals referee, reversed the referee and awarded benefits. The Hilton then petitioned for
review in the district court. The district court reversed the Board of Review and remanded for
the reinstatement of the decision of the appeals referee, thus prompting this appeal by the
Department of Employment Security.
[Headnote 1]
Janice Frey was terminated by the Hilton on June 20, 1984. The primary reason for her
termination was that she failed to call in and report that she would not be able to work her
shift on June 19, 1984. The record, however, reflects substantial confusion as to whether she
was originally scheduled to work on the day in question. Interspersed among the facts
concerning the uncertainty of Frey's work schedule are additional sources of confusion
involving Frey's obligation to appear for jury duty and the extent of her responsibility to
inform her employer of her jury duty commitments. Suffice it to say that however one might
ultimately characterize Frey's obligation to communicate with her employer on the June 19th
date of her absence, the record does provide substantial evidentiary support for the Board of
Review's decision. The district court was not free to substitute its judgment for that of the
Board of Review, and reversal is therefore necessary.
[Headnote 2]
When reviewing an administrative board's actions, this court, like the district court, is
limited to the record below and to whether the board acted arbitrarily or capriciously.
McCracken v. Fancy, 98 Nev. 30, 31, 639 P.2d 552 (1982). The question thus becomes
whether the board's decision was based on substantial evidence; if based on substantial
evidence neither this court, nor the district court, may substitute its judgment for the
administrator's determination.
the district court, may substitute its judgment for the administrator's determination. Leeson v.
Basic Refractories, 101 Nev. 384, 705 P.2d 137, 138 (1985).
Substantial evidence has been defined as that which a reasonable mind might accept as
adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389 (1971).
1
In
determining that the Board of Review properly found for Frey, we analyzed its findings in
light of the record. The Board's findings, in pertinent part, are as follows:
In the case under consideration, if the employer's version of events were accepted, it
would appear that claimant's ostensible absence without notice might be justified on the
grounds of excusable error, in the confusion over the changed schedule and the jury
duty. The appeal to the board, however, is to the effect that the referee erred in relying
on the challenged schedule, in the absence of the scheduler, who might have posted a
new schedule for entirely justifiable reasons or because he did not like claimant. Since
the scheduler could not be cross examined, claimant's testimony should have been
given greater weight. By this line of reasoning, which the board accepts, the absence on
Tuesday was because of a scheduled day off, and no authorization or notice was
required for that day.
The Board of Review acknowledged in Frey's action that employees may commit misconduct
if they are absent without notice or justification. See Kraft v. Nev. Emp. Sec. Dept., 102 Nev.
191, 717 P.2d 583, 585 (1986).
The Board also provided a dual rationale for its decision. The Board stated that if the
Hilton's position was accurate, there then appeared to be considerable confusion as to which
day Frey had off, and therefore Frey's lack of communication constituted excusable behavior.
The decision of the Board of Review implies that excusable behavior would not be
considered "wrongful."
____________________

1
Substantial evidence was well defined in Robertson Transp. Co. v. P.S.C., 159 N.W.2d 636, 638 (Wis.
1968):
[S]ubstantial evidence [does] not include the idea of this court weighing the evidence to determine if a
burden of proof was met or whether a view was supported by the preponderance of the evidence. Such
tests are not applicable to administrative findings and decisions. We [equate] substantial evidence with
that quantity and quality of evidence which a reasonable man could accept as adequate to support a
conclusion. And, in this process, sec. 227.20(1)(d) Stats. providing that the decision of an agency may be
reversed if unsupported by substantial evidence in view of the entire record as submitted does not permit
this court to pass on credibility or to reverse an administrative decision because it is against the great
weight and clear preponderance of the evidence, if there is substantial evidence to sustain. [Emphasis
added.]
that excusable behavior would not be considered wrongful. In Lellis v. Archie, 89 Nev.
550, 516 P.2d 469 (1973), this court held that acts which were in and of themselves not
wrongful did not constitute misconduct so as to preclude an individual from receiving
unemployment benefits. Id., at 513, 516 P.2d at 417. An excusable mistake or omission could
not be deemed wrongful and therefore would not warrant a denial of unemployment benefits.
However, the primary basis for the Board's decision was the greater weight it accorded the
live testimony of Frey over the hearsay testimony which was admitted to prove that Frey was
really scheduled to work on Tuesday.
2
The Hilton cites cases which basically argue that
hearsay evidence can be regarded as substantial evidence for the purposes of an
administrative hearing and that therefore hearsay evidence can be the basis of an
administrative decision. See State v. Dept. of Motor Vehicles v. Kiffe, 101 Nev. 729, 709
P.2d 1017 (1985), see also Schaefer v. United States, 633 F.2d 945 (Ct.Cl. 1980). These
cases are inapposite to the instant case. The Board did not exclude hearsay evidence, it simply
gave greater weight to Frey's testimony. It chose to believe her story in a two-sided swearing
contest in part because Frey was there to be cross-examined, while the author of the letter was
not. There is no indication that the hearsay was not duly considered by the Board. The Board
simply assigned it a different probative value.
The record definitely indicates confusion and inconsistencies in the stories of both parties.
The Board of Review, as an independent trier of fact, had the record before it and made a
decision that is supported by substantial evidence on appeal. This court gives deference to the
findings of an administrative tribunal when they are supported by substantial evidence.
Therefore, the order of the district court is reversed and remanded with instructions to order
the Employment Security Division to compensate Frey in accordance with her entitlements
under the law.
____________________

2
The hearsay consisted of a letter submitted by the person who arranged the casino schedule, stating he had
scheduled Frey to work on Tuesday. This letter was properly admitted into evidence at the Administrative
Hearing, but the author was never present to be cross-examined, although he was available to be called as a
witness.
____________
102 Nev. 610, 610 (1986) Director, Dep't of Prisons v. Simmons
VERNON G. HOUSEWRIGHT, Director, Nevada Department of Prisons, and Sergeant Iris
J. Gross, Appellants, v. JAMES W. SIMMONS, Respondent.
No. 15031
December 19, 1986 729 P.2d 499
Appeal from an order of the district court granting a permanent injunction. Eighth Judicial
Inmate law clerk, who alleged that prison employees were harassing, humiliating, and
interfering with inmate law clerks, and alleged that prison employees had been removing law
books and supplies from prison library, moved for permanent injunction. The district court
entered permanent injunction, and prison officials appealed. The Supreme Court held that: (1)
permanent injunction enjoining prison director, sergeant, and their agents and employees
from harassment, humiliation, and intimidation of and interference with inmate paralegals,
and from removing, inveigling, or otherwise displacing materials and supplies from inmate
legal library was void and of no effect, pursuant to NRCP; (2) terms of injunction violated
provisions of NRCP because they were overbroad, vague, ambiguous, and so uncertain and
indefinite as to be impossible of compliance, and injunction was therefore void; and (3)
record, which revealed that no evidentiary hearings were held, contained insufficient evidence
to support permanent injunction.
Reversed.
Brian McKay, Attorney General, Dan R. Reaser, Deputy Attorney General, Carson City,
for Appellants.
James W. Simmons, in proper person, for Respondent.
1. Injunction.
Permanent injunction enjoining prison director, sergeant, and their agents and employees from
harassment, humiliation, and intimidation of and interference with inmate paralegals, and from removing,
inveigling or otherwise displacing materials and supplies from inmate legal library was void and of no
effect, pursuant to NRCP; the order failed to set forth any reason for issuance of injunction, and the order
did not contain sufficiently detailed description of acts to be restrained. NRCP 65(d).
2. Injunction.
Permanent injunction enjoining prison director, sergeant, and their agents and employees from
harassment, humiliation, and intimidation of and interference with inmate paralegals and from revolving,
inveigling, or otherwise displacing materials and supplies from inmate legal library, was violative of NRCP
because terms of injunction were overbroad, vague, ambiguous, and so uncertain and indefinite as to be
impossible of compliance, and injunction was therefore void; prison personnel might violate injunction
by performing their statutorily mandated responsibilities to maintain custody and
control of inmate population and to ensure security of correctional institution, and
prison personnel risked violating injunction restrictions by performing their lawful
responsibilities to manage and maintain prison law library.
violate injunction by performing their statutorily mandated responsibilities to maintain custody and control
of inmate population and to ensure security of correctional institution, and prison personnel risked violating
injunction restrictions by performing their lawful responsibilities to manage and maintain prison law
library. NRS 209.131, subd. 4; NRCP 65(d).
3. Injunction.
Record revealing that no evidentiary hearings were held contained insufficient evidence to support
permanent injunction against prison personnel enjoining them from harassment, humiliation, and
intimidation of and interference with inmate paralegals, and from removing, inveigling, or otherwise
displacing materials and supplies for inmate legal library; allegations of harassment, intimidation, and
interference with inmate paralegals were supported only by affidavits, no testimony or documentary
evidence was ever presented in support of facts asserted in affidavits, and no evidentiary hearing was held
at which prison personnel were afforded opportunity to rebut inmate law clerk's allegations.
OPINION
Per Curiam:
This is an appeal from an order of the district court issuing a permanent injunction against
the appellants. Because we conclude that the injunction is void, and that it was issued upon
insufficient evidence, we reverse the order of the district court, and we dissolve the
permanent injunction against appellants.
Although the procedural history of this matter is complex, the facts relevant to our
consideration of this appeal are simply stated. On July 9, 1982, James Simmons, an inmate
law clerk at the Nevada State Prison, filed the first of a series of purported writs and motions
in the district court. Essentially, Simmons alleged that prison employees were harassing,
humiliating, and interfering with inmate law clerks. Further, he asserted that prison
employees had been removing law books and supplies from the prison library. Simmons
contended that this interference amounted to an unconstitutional infringement of the inmates'
rights to access to the courts.
[Headnote 1]
In the proceedings which ensued, Simmons eventually filed a motion for permanent
injunction, by which he sought to enjoin the alleged unlawful activities of the prison
employees. Thereafter, on June 2, 1983, the district judge entered an Order and Permanent
Injunction which states in pertinent part:
IT IS HEREBY ORDERED that the [appellants], and all officers, agents, employees
or persons acting in concert or their [sic] behest are permanently enjoined, if such be
the case, from harassment, humiliation and intimidation of and interference with inmate
paralegals legitimately engaged in the prosecution or defense of litigations, and from
removing, inveigling or otherwise displacing materials and supplies from the inmate
legal library at the Southern Nevada Correctional Center.
inveigling or otherwise displacing materials and supplies from the inmate legal library
at the Southern Nevada Correctional Center.
This appeal followed.
We have previously held that any restraining order or preliminary injunction issued by a
trial court of this state is void, not merely voidable, unless the court issuing the same sets
forth in the order the reasons for its issuance, is specific in its terms and describes in
reasonable detail, not by reference to the complaint or other documents, the acts sought to be
restrained. See Webster v. Steinberg, 84 Nev. 426, 430, 442 P.2d 894, 896 (1968). Our
holding in Webster was mandated by the express provisions of NRCP 65(d) which requires
that [e]very order granting an injunction . . . shall set forth the reasons for its issuance; shall
be specific in terms; shall describe in reasonable detail . . . the act or acts sought to be
restrained. . . .
In the instant case, the order of the district court failed to set forth any reasons for the
issuance of this injunction. Further, the order does not contain a sufficiently detailed
description of the acts to be restrained. Accordingly, we conclude that pursuant to NRCP
65(d), and our holding in Webster v. Steinberg, supra, the injunction entered by the district
court is void and of no effect.
[Headnote 2]
Additionally, in Maheu v. Hughes Tool Co., 88 Nev. 592, 598, 503 P.2d 4, 8 (1972), we
held that, pursuant to NRCP 65(d), an injunction is void where its terms are vague,
ambiguous, and so uncertain as to be impossible of compliance. Here, the terms of the
injunction prohibiting the humiliation, intimidation or interference with inmate law clerks are
so imprecise that appellants risk violating the injunction by merely performing their
responsibilities imposed by state law. Specifically, prison personnel may violate the
injunction by performing their statutorily mandated responsibilities to maintain the custody
and control of the inmate population, and to insure the security of the correctional institution.
See, e.g., NRS 209.131(4) (the prison director is responsible for the supervision, custody,
treatment, care, security, and discipline of the inmates under his jurisdiction). The terms of
the injunction restraining appellants from removing, inveigling or otherwise displacing
materials and supplies from the prison law library are also overbroad and ambiguous. As
such, prison officials may risk violating these restrictions by performing their lawful
responsibilities to manage and maintain the prison law library.
Under these circumstances, and in light of the fact that prison personnel must be free to
exercise reasonable measures to control the inmate population, we conclude that the terms of
this injunction are violative of the provisions of NRCP 6{d) because they are overbroad,
vague, ambiguous, and "so uncertain and indefinite as to be impossible of compliance. . .
."
tion are violative of the provisions of NRCP 6(d) because they are overbroad, vague,
ambiguous, and so uncertain and indefinite as to be impossible of compliance. . . . See
Maheu v. Hughes Tool Co., 88 Nev. at 598, 503 P.2d at 8.
[Headnote 3]
Finally, our review of the record of this appeal reveals insufficient evidence to support the
order of the district court granting injunctive relief. See Franklin v. Bartsas Realty, Inc., 95
Nev. 559, 562, 598 P.2d 1147, 1149 (1979). We have previously held that absent testimony
or exhibits establishing the material allegations of a complaint, an application for injunctive
relief should be denied. See Coronet Homes, Inc. v. Mylan, 84 Nev. 435, 437, 442 P.2d 901,
902 (1968).
In this case, the record reveals that no evidentiary hearings were held below at which the
parties were afforded an opportunity to present testimony, exhibits, or cross-examine
witnesses. The hearings before the district judge were confined to a discussion of appellants'
motion to quash the proceedings on procedural and jurisdictional grounds. Moreover,
Simmons' allegations of harassment, intimidation, and interference with inmate paralegals
were supported only by affidavits. Specifically, Simmons submitted his own affidavit which
alleged that on one occasion a correctional officer temporarily refused an inmate law clerk
admittance into the prison library, and spoke to the inmate in abusive language. Simmons
indicated, however, that the inmate was subsequently admitted to the library after the incident
was reported to appellant Gross. This affidavit further alleged that Sergeant Gross routinely
searched the inmate legal library . . . leaving confidential inmate legal files in dishevel. and
that books and supplies had been disappearing from the library resulting in a litigation
shut-down. Additionally, Simmons supported his allegations with the affidavit of another
inmate who attested that he had witnessed Sergeant Gross leaving the prison library carrying
a stack of papers.
No testimony or documentary evidence was ever presented to the district court in support
of the facts asserted in these affidavits. Further, no evidentiary hearing was held below at
which appellants were afforded an opportunity to rebut respondent's allegations. We
conclude, therefore, that the district court's issuance of the permanent injunction, without a
full and fair evidentiary hearing, constituted a clear abuse of discretion. See United States v.
Spectro Foods Corp., 544 F.2d 1175, 1182 (3rd. Cir. 1976).
In light of our resolution of these issues, it is unnecesssary to reach appellants' remaining
contentions. Accordingly, we reverse the order of the district court, and we dissolve the
permanent injunction against appellants.
____________
102 Nev. 614, 614 (1986) Haertel v. Sonshine Carpet Co.
JAMES HAERTEL, a Minor, by and Through his Mother, JEAN BORREGARD, as Next
Friend and JEAN BORREGARD, Individually, Appellants, v. THE SONSHINE
CARPET COMPANY, CLARK COUNTY SCHOOL DISTRICT, and DOW
CHEMICAL COMPANY, Respondent.
No. 16299
December 23, 1986 730 P.2d 428
Appeal from dismissal of civil action. Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Injured minor employee brought action against employer and other alleged joint ventures.
The district court dismissed and employee appealed. The Supreme Court held that: (1)
notwithstanding employee's minority, he was bound by exclusive remedy provisions with
respect to claim against employer, but (2) he could bring action against asserted joint
venturers of his employer.
Affirmed in part, reversed in part and remanded.
Frank J. Cremen and Galatz, Earl & Catalano, Las Vegas, for Appellants.
Richard B. Parnell, Las Vegas, for Respondent Sonshine Carpet Company.
Barker, Gillock & Perry and Janice J. Brown, Las Vegas, for Clark County School
District.
Rawlings, Olson & Cannon, Las Vegas, for Respondent Dow Chemical Company.
Minor may not, by virtue of his minority, avoid or disavow workers' compensation coverage and seek tort
remedy. NRS 616.370.
Even if minor may not enter into insurance contract without parental approval, he is bound by exclusive
remedy provisions of workers' compensation law as it is the employer, not the minor employee, who is
insured under the system. NRS 616.370.
Even if minor employee were ignorant of implications of exclusive remedy provisions of workers'
compensation law, that ignorance would not have legal effect of releasing him from coverage and allowing
him to pursue tort remedy. NRS 616.370.
Even if minor employee were unlawfully employed, he would still be covered by workers' compensation
and bound by its exclusive remedy. NRS 616.055.
Employee of one joint venturer could bring tort action against other joint venturers.
6. Joint Ventures.
Principles of law regarding general partnerships apply to joint ventures.
7. Partnership.
Each partner is jointly and severally liable for personal injury caused by any partner's wrongful act or
omission in ordinary course of partnership business or done with authority of other partners. NRS
87.130, 87.150.
OPINION
Per Curiam:
Appellant Jean Borregard instituted this action on her own behalf and that of her son,
James Haertel (James). She alleged that James was employed by respondent Sonshine
Carpet Company (Sonshine) as a laborer; that Sonshine had entered into a joint venture
agreement with respondents Clark County School District (the District) and Dow Chemical
Company (Dow) to remove and replace carpeting at some of the District's facilities; and
that James, through a combination of instances of negligence of respondents, received serious
permanent injuries. The trial court dismissed the action in its entirety. We affirm the
dismissal as to Sonshine, but otherwise reverse and remand for further proceedings.
In ruling on a motion to dismiss for failure to state a claim, NRCP 12(b)(5), we must treat
the allegations of the complaint as true. Hansen-Niederhauser, Inc. v. Nevada Tax Comm'n,
81 Nev. 307, 312, 402 P.2d 480, 482 (1965). James alleged that Sonshine was his employer.
Sonshine demonstrated below that it was properly enrolled in the State Industrial Insurance
System (the SIIS); thus SIIS benefits are the exclusive remedy against Sonshine. See NRS
616.370.
[Headnotes 1, 2]
James has set forth several reasons why he feels the exclusivity provisions of our law
should not apply to him. We are not persuaded. First, a minor may not, by virtue of his
minority, avoid or disavow SIIS coverage. To the extent that coverage could in any way be
called contractual, the state's contract would be with the employer rather than the employee,
see NRS 616.1701.
1
Coverage is automatic, even for minors, see NRS 616.055, unless
certain conditions not here applicable are met.
____________________

1
This also disposes of the argument that a minor may not enter into an insurance contract without parental
approval. It is the employer who is insured, against liability which might otherwise arise.
616.055, unless certain conditions not here applicable are met. NRS 616.305(1), .375.
[Headnotes 3, 4]
Second, even if James was unaware of the implications of Chapter 616, his ignorance has
no legal effect in releasing him from SIIS coverage. Nor is automatic coverage of minors
inconsistent with laws requiring approval of a child's settlement of monetary claims; in either
case the aim is protection of the child's interests, and the state may choose different methods
in different contexts. Finally, assuming arguendo that James was employed unlawfully, he
still would be covered under the SIIS. See NRS 616.005.
[Headnotes 5-7]
However, if we take the assertion of the existence of a joint venture as true, it is clear that
James may bring an action against the District and Dow. Principles of law regarding general
partnerships apply to joint ventures, Sterling Builders, Inc. v. Fuhrman, 80 Nev. 543, 547 n.
2, 396 P.2d 850, 853 n. 2 (1954). Under Nevada partnership law, each partner is jointly and
severally liable for personal injury caused by any partner's wrongful act or omission in the
ordinary course of partnership business, or done with the authority of the other partners. NRS
87.130, .150. James has asserted a claim which appears to fit squarely within these
provisions. Chapter 616 offers nothing to the contrary; the Legislature has provided for
shared liability but not for shared immunity. See NRS 616.270, .560.
The district court's order of dismissal is affirmed as to Sonshine and reversed as to the
other respondents, and the cause is remanded.
____________
102 Nev. 616, 616 (1986) First Interstate Bank v. Shields
FIRST INTERSTATE BANK OF NEVADA, a National Banking Corporation, Appellant, v.
ALLAN D. SHIELDS and FERN SHIELDS, Respondents.
No. 16679
December 23, 1986 730 P.2d 429
Appeal from summary judgment in action to recover deficiency judgment. Third Judicial
District Court, Churchill County; Mario G. Recanzone, Judge.
Creditor brought action for deficiency judgment against guarantors. The district court
granted summary judgment in favor of guarantors. Creditor appealed. The Supreme Court
held that: (1) guarantors of promissory note secured by deed of trust on realty were
entitled to protection of deficiency judgment statutes, and {2) creditor, which failed to
apply for deficiency judgment within three months after purchasing property, was not
entitled to deficiency judgment.
guarantors of promissory note secured by deed of trust on realty were entitled to protection of
deficiency judgment statutes, and (2) creditor, which failed to apply for deficiency judgment
within three months after purchasing property, was not entitled to deficiency judgment.
Affirmed.
[Rehearing pending June 26, 1987]
Hale, Lane, Peek, Dennison & Howard and Donald A. Lattin, and Gregg Zive, Reno, for
Appellant.
Diehl, Evans & Associates, Fallon, for Respondents.
1. Mortgages.
Guarantors of promissory note secured by deed of trust on realty were entitled to protection of deficiency
judgment statutes; overruling Manufacturers & Traders Trust v. Dis. Ct., 94 Nev. 551, 583 P.2d 444;
Thomas v. Valley Bank of Nevada, 97 Nev. 320, 629 P.2d 1205. NRS 40.455, 40.459.
2. Mortgages.
Creditor, which failed to apply for deficiency judgment within three months after purchasing property as
beneficiary of deed of trust, was not entitled to deficiency judgment against guarantors. NRS 40.455,
40.459.
OPINION
Per Curiam:
Respondent Allan D. Shields and Robert Boucher formed a partnership under the name of
Farmhouse Properties. Farmhouse Properties borrowed $88,000 from appellant First
Interstate Bank (FIB). The loan was evidenced by a promissory note secured by a deed of
trust on realty. Allan Shields, respondent Fern Shields and Boucher personally guaranteed the
payment of the note. Allan Shields thereafter sold his interest in the partnership. The
purchaser of his interest and Boucher agreed to indemnify Allan Shields for all partnership
debts, including the obligation at issue. Farmhouse Properties defaulted on the note. FIB
purchased the realty for $70,000 at the ensuing trustee's sale.
FIB thereafter sought by its complaint to recover the deficiency judgment for the amount
by which the total remaining indebtedness exceeded the amount bid on the realty by FIB at
the trustee's sale.
1
The Shields moved for summary judgment on the ground they were
protected by the deficiency judgment statutes {NRS 40.451 through 40.459, inclusive).
____________________

1
It can hardly be gainsaid that the realty was worth substantially more than the $70,000 bid by FIB at the
trustee's sale. During oral argument, and as otherwise supported in the record, counsel for FIB admitted that the
bank was prepared to bid up to $95,000 for the property. According to FIB's complaint, at the time of the
trustee's sale on May 16, 1983, the total debt included $87,712.71 principal, plus interest, costs, and fees and
costs incurred in connection with the trustee's sale.
they were protected by the deficiency judgment statutes (NRS 40.451 through 40.459,
inclusive). The district court granted respondent's summary judgment and this appeal
followed.
2

FIB primarily argues that Fern Shields, as a guarantor and the spouse of a partner, is not
protected by the deficiency judgment legislation. We disagree.
[Headnote 1]
Although we have previously held that the protection of the deficiency judgment
legislation is inapplicable to an action on a guaranty contract (Component Systems Corp. v.
District Court, 101 Nev. 76, 692 P.2d 1296 (1985); Manufacturers & Traders Trust v. Dist.
Ct., 94 Nev. 551, 583 P.2d 444 (1978); Thomas v. Valley Bank of Nevada, 97 Nev. 320, 629
P.2d 1205 (1981)) we are now convinced that it is unsound to deny guarantors the benefits of
such legislation. For reasons hereafter expressed, we hereby disapprove and overrule our
opinions in Manufacturers & Traders Trust and Thomas to the extent they are inconsistent
with our ruling in this case.
Nevada's deficiency legislation is designed to achieve fairness to all parties to a transaction
secured in whole or in part by realty. To the creditor-obligee, fairness is provided by a
recovery methodology that will make the creditor whole if the components for debt
satisfaction exist under the panoply of assets peculiar to a given transaction. Conversely,
fairness is accorded obligors by permitting creditors who have sought to satisfy an
indebtedness through sale of a trustor's or mortgagor's realty, to secure a deficiency judgment
only to the extent any alleged deficiency exceeds the fair market value of the sold realty. In
other words, obligors are assured that creditors in Nevada may not reap a windfall at an
obligor's expense by acquiring the secured realty at a bid price unrelated to the fair market
value of the property and thereafter proceeding against available obligors for the difference
between such a deflated price and the balance of the debt. It is irrefutably clear that the
salutary purposes of the legislative scheme for recovering legitimate deficiencies would
be attenuated, if not entirely circumvented in specific instances, by denying guarantors,
or any other form of obligor, the protection provided by the deficiency statutes.
____________________

2
NRS 40.455 provides that the judgment creditor must apply to the court for a deficiency judgment within
three months after the date of the trustee's sale of the realty. This action was filed approximately six months after
the date of the trustee's sale. Respondents therefore argue that the deficiency action was untimely.
Farmhouse Properties filed for bankruptcy in December 1982. FIB contends that the bankruptcy law stayed
the time in which it could file its deficiency action, although the parties stipulated to lift the stay to permit
appellant to conduct the trustee's sale. 11 U.S.C. 108. FIB therefore concludes that the deficiency legislation
does not bar this action. The district court, in implicitly resolving the issue of the timeliness of the complaint in
respondents' favor, was correct. A deficiency action against respondents was not affected by the bankruptcy
proceedings concerning the partnership, Farmhouse Properties.
irrefutably clear that the salutary purposes of the legislative scheme for recovering legitimate
deficiencies would be attenuated, if not entirely circumvented in specific instances, by
denying guarantors, or any other form of obligor, the protection provided by the deficiency
statutes. A lender in Nevada is not privileged to manipulate sources of recovery in order to
realize debt satisfaction in amounts substantially greater than the balance of the debt due.
Contrary to our earlier pronouncements, our instant ruling does not constitute an
expansion of statutory scope regarding deficiency entitlements. Indeed, NRS 40.457 requires
a hearing and the taking of evidence concerning the fair market value of the property sold and
notice of the hearing to all defendants against whom a deficiency judgment is sought. The
purpose for such a hearing together with its notice requirement is evident. Since a creditor is
entitled to a single satisfaction of an outstanding debt irrespective of the value of its security
and the number and financial strength of primary obligors, sureties or guarantors, the
threshold issue under the legislative scheme is to determine whether, in fact, a deficiency in
debt satisfaction remains after the creditor has sold the real property securing the debt. If the
trial court determines that the fair market value of the property at the time of sale exceeded
the amount due the creditor, no deficiency exists and no party, guarantor included, may be
held liable to the creditor. This, of course, explains why all parties against whom the creditor
may seek a deficiency judgment, must be given notice of the hearing.
If we were to accede to FIB's proposition that a guarantor is denied the protection afforded
by the deficiency legislation, we would thereby detach lenders from the deficiency standard
imposed by the legislature and subject guarantors to the vagaries of a lender's scruples in any
given transaction. The way would thus be paved for an unscrupulous lender to bid an
insignificant price for real property of a true and sufficient value to satisfy the debt it secured,
and then pursue a second essentially full satisfaction from a financially responsible guarantor.
Any less extreme variant from the preceding hypothetical would still unfairly enrich the
lender at the expense of the guarantor. We are convinced that the Legislature never intended
to facilitate such scenarios. To the contrary, it is apparent to us that the Legislature fully
anticipated that its work product would require lenders seeking deficiency judgments against
any potentially liable defendants, NRS 40.459, to prove the actual existence of a deficiency in
accordance with the statutory scheme.
Today's holding is consistent with general principles of guaranty law. As a general rule,
the payment or other satisfaction or extinguishment of the principal debt or obligation by
the principal or by anyone for him discharges the guarantor.
extinguishment of the principal debt or obligation by the principal or by anyone for him
discharges the guarantor. 38 C.J.S. Guaranty 77 (1943). See generally Bledsoe v. Corgill,
Inc., 452 So.2d 1334 (Ala.Ct.App. 1984); Shur-Gain Feed Div. v. Huntsville Production, 372
So.2d 1317 (Ala.Ct. App. 1979); McGill v. Idaho Bank & Trust Co., 632 P.2d 683 (Id. 1981);
Iola State Bank v. Biggs, 662 P.2d 563 (Kan. 1983); First Nat. Bank of Anthony v. King, 583
P.2d 389 (Kan.Ct.App. 1978); Continental Bank & Trust Co. v. Akwa, 206 N.W.2d 174
(Wis. 1973). A Florida court came to a similar decision in a case analogous to the instant
case. In Spencer v. American Adv. Corp., 338 So.2d 62 (Fla.Dist.Ct.App. 1976), the court
ruled that despite a guaranty agreement which unconditionally guaranteed the full
indebtedness of the purchaser, when the fair market value of the property, as determined by
the trier of fact, is greatly in excess of the amount found due by the final decree of
foreclosure, the guarantor is release. Id. at 63.
Moreover, if a guarantor were obligated to pay the judgment for the deficiency, the debtor
arguably could be obligated to reimburse the guarantor for amounts paid on the debtor's
behalf. Thus, unless the guarantor were entitled to the protection of the deficiency judgment
laws, the debtor might be indirectly subject to the payment of the deficiency that the statutes
were designed to prevent. See, e.g., id.; Mutual Finance Co. v. Politzer, 256 N.E.2d 606,
610-611 (Ohio 1970) (if guarantor is not given a defense against recovery of deficiency,
mortgagor will not receive protection statute designed to give); Kocsorak v. Cleveland Trust
Co., 85 N.E. 2d 96, 100 (Ohio 1949) (statute made judgment as to deficiency remaining due
unenforceable after expiration of period of time after date of judicial sale); Exchange
National Bank of Chicago v. Spalitta, 295 So.2d 18, 21-22 (La. 1974); Klinke v. Samuels,
190 N.E. 324, 326 (N.Y. 1934); Apache Lanes, Inc. v. National Educators Life Ins. Co., 529
P.2d 984, 986 (Okla. 1974); North End Bank & Trust Co. v. Mandell, 155 A. 80, 81-82
(Conn. 1931), Annot., 49 A.L.R.3d 549.
Although the maker of the note would likely assert the deficiency statute as a defense
against the guarantor, if successful the result would be to subject the guarantor to a defense
which he never contemplated, and which does not result from his own actions, but from the
creditor's neglect [or imposition]. Manufacturers & Traders Trust v. Dist. Ct., 94 Nev. at
557, 583 P.2d at 448 (Gunderson, J. dissenting).
[Headnote 2]
Summary judgment is appropriate where there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Balboa Ins. Co. v. Southern Distrib.
Corp., 101 Nev. 774
101 Nev. 774, 710 P.2d 725 (1985). As a matter of law, Fern Shields, as a guarantor, is
entitled to the protection of the deficiency legislation irrespective of whether she had an
interest in the realty. Moreover, FIB did not comply with the provisions of NRS 40.455 which
require a creditor to apply for a deficiency judgment within three months of the date of the
sale of the realty. For the foregoing reasons, FIB has no claim against respondents.
Accordingly, the judgment is affirmed.
____________
102 Nev. 621, 621 (1986) Gazin v. Hoy
HAL GAZIN, Appellant, v. DAVID R. HOY, ESQ., HOY & MILLER, CHARTERED, LAW
OFFICES OF GREGORY F. WILSON, Respondents.
No. 16918
December 23, 1986 730 P.2d 436
Appeal from order denying motion to set aside default and default judgment pursuant to
NRCP 60(b). Ninth Judicial District Court, Douglas County; Lester H. Berkson, Judge.
Plaintiffs were granted default judgment and defendant moved to set aside default
judgment. The district court denied motion and defendant appealed. The Supreme Court,
Young, J., held that: (1) trial court did not abuse its discretion when it refused to set aside
order of default, and (2) failure of plaintiffs to serve defendant with required notice of their
intent to obtain default judgment, after defendant had appeared in action by indicating
intention to defend suit, when counsel for defendant requested open extension of time within
which to file answer, resulted in default judgment being void.
Gunderson, J., dissented.
Lionel, Sawyer & Collins and Richard W. Horton, Reno, for Appellant.
Bible, Santini, Hoy, Miller & Trachok and Gregory F. Wilson, Reno, for Respondents.
1. Appeal and Error; Judgment.
Trial court has wide discretion in deciding whether to set aside a default and its determination will not be
disturbed absent a showing of an abuse of discretion. NRCP 60(b)(1).
2. Judgment.
District court did not abuse its discretion when it refused to set aside order of default where plaintiffs'
attorney directly contradicted defendant's argument that although he had spoken with
plaintiffs' counsel he had no understanding that plaintiffs' attorney had imposed
deadline by which answer was due, and where defendant's allegation that his counsel
had no understanding that plaintiffs had imposed deadline within which to answer
could be consistent with plaintiffs' allegation that such a deadline was in fact
imposed.
102 Nev. 621, 622 (1986) Gazin v. Hoy
ant's argument that although he had spoken with plaintiffs' counsel he had no understanding that plaintiffs'
attorney had imposed deadline by which answer was due, and where defendant's allegation that his counsel
had no understanding that plaintiffs had imposed deadline within which to answer could be consistent with
plaintiffs' allegation that such a deadline was in fact imposed. NRCP 60(b)(1).
3. Appearance; Judgment.
An appearance by a defendant, for purpose of requirement that written notice of application for default
judgment be given to any defendant that appeared in action, does not require a presentation or submission
to court, and a course of negotiation between attorneys is sufficient to constitute an appearance for purpose
of written notice requirement where defendant has indicated a clear purpose to defend suit. NRCP
55(b)(2).
4. Judgment.
When defendant has made an appearance in an action, the failure to give written notice of application for
default judgment renders a subsequent default judgment void. NRCP 55(b)(2).
5. Judgment.
Defendant's counsel indicated defendant's intention to defend suit when defendant's counsel requested an
open extension of time within which to file answer, and thus defendant made an appearance in action and
was entitled to written notice of application for default judgment, and plaintiffs' failure to serve defendant
with required notice of their intent to obtain default judgment resulted in default judgment being void.
NRCP 55(b)(2).
OPINION
This is an appeal from an order of the district court denying a motion to set aside a default
judgment. On June 18, 1985, appellant was personally served with a copy of the amended
complaint in this matter. On July 10, 1985, appellant's counsel wrote a letter to respondents'
counsel requesting an open extension of time within which to file an answer to the amended
complaint. Counsel for the parties thereafter engaged in at least two conversations regarding
this matter.
On August 27, 1985, the clerk of the district court entered appellant's default. On August
28, 1985, the district court entered a default judgment in the amount of $43,062.06 against
appellant. Appellant filed his answer to the amended complaint the next day. Shortly
thereafter, appellant filed a timely motion to set aside the default and the default judgment
pursuant to NRCP 60(b)(1). In that motion, appellant's counsel stated that, in telephone
conversations, respondents' counsel told him that an answer to the complaint would be
appreciated, and, in response, appellant's counsel assured respondents' counsel that an answer
would be forthcoming. Appellant's counsel asserted that he had "no understanding" from
those conversations that respondents' counsel had placed a deadline on the time within
which to file an answer.
102 Nev. 621, 623 (1986) Gazin v. Hoy
no understanding from those conversations that respondents' counsel had placed a deadline
on the time within which to file an answer. Appellant therefore contended that his default was
entered in violation of former SCR 187 because respondents' counsel never notified him of
his intent to obtain the default.
1
See Cen Val Leasing v. Brockman, 99 Nev. 612, 668 P.2d
1074 (1983). Appellant further asserted that he had a meritorious defense to the complaint.
Respondents contended, however, that in a telephone conversation on August 20, 1985,
respondents' attorney informed appellant's attorney that he would enter appellant's default if
an answer was not filed by August 23, 1985. Respondents therefore argued that there was no
misunderstanding regarding the time within which an answer was required. Further,
respondents set forth the tortured history of this dispute, and argued that appellant had no
meritorious defense to this action.
Appellant filed no reply points and authorities in support of his motion to set aside the
default and the default judgment, and the matter was submitted to the district court for
decision. Thereafter, on September 30, 1985, the district court entered an order denying
appellant's motion. This appeal followed.
[Headnote 1]
Appellant contends that the district court erred when it refused to set aside the clerk's entry
of default. We disagree. The district court has wide discretion in deciding whether to set aside
a default pursuant to NRCP 60(b)(1), and its determination will not be disturbed absent a
showing of an abuse of discretion. See Union Petrochemical Corp. v. Scott, 96 Nev. 337, 609
P.2d 323 (1980). In the present case, appellant argued that his default was entered due to a
misunderstanding between his attorney and respondents' counsel regarding the time within
which an answer was required. Specifically, appellant's counsel asserted that although he had
spoken with respondents' counsel, he had no understanding from those conversations that
respondents had imposed a deadline by which an answer was due.
[Headnote 2]
Respondents, however, directly contradicted appellant's argument by asserting that they
gave appellant a firm date by which he was to answer the complaint.
____________________

1
Former SCR 187 provides in pertinent part:
1. A member of the state bar should adhere strictly to all express promises to and agreements with
opposing counsel, whether oral or in writing, and should adhere in good faith to all agreements implied
by the circumstances or by local custom. When he knows the identity of a lawyer representing an
opposing party, he should not take advantage of the lawyer by causing any default or dismissal to be
entered without first inquiring about the opposing lawyer's intention to proceed.
102 Nev. 621, 624 (1986) Gazin v. Hoy
was to answer the complaint. Despite respondents' assertion, appellant elected not to traverse
respondents' opposition; further, appellant failed to request that an evidentiary hearing be held
on his motion. Moreover, appellant's allegation that his counsel had no understanding that
respondents had imposed a deadline within which to answer may be consistent with
respondents' allegation that such a deadline was in fact imposed. Finally, we note that neither
party provided any documentation for its claim regarding the time within which an answer
was required. We are unable to conclude, on the facts here presented, that the district court
abused its discretion when it refused to set aside the order of default; accordingly, we affirm
that portion of the judgment below.
[Headnotes 3, 4]
We must, however, reverse the order of the district court insofar as it refused to set aside
the default judgment. A plaintiff must give written notice of an application for a default
judgment to any defendant that has appeared in the action. See NRCP 55(b)(2). An
appearance for purposes of NRCP 55(b)(2) does not require a presentation or submission to
the court; indeed, a course of negotiation between attorneys is sufficient to constitute an
appearance for purposes of NRCP 55(b)(2) where the defendant has indicated a clear purpose
to defend the suit. See Franklin V. Bartsas Realty, Inc., 95 Nev. 559, 598 P.2d 1147 (1979);
Christy v. Carlisle, 94 Nev. 651, 584 P.2d 687 (1978). When the defendant has made an
appearance in an action, the failure to give the notice prescribed by NRCP 55(b)(2) renders a
subsequent default judgment void. See Christy, 94 Nev. at 654, 584 P.2d at 689; see also
Reno Raceway, Inc. v. Sierra Paving, 87 Nev. 619, 620, 492 P.2d 127, 127 (1971).
[Headnote 5]
In the present case, appellant's counsel indicated appellant's intention to defend the suit
when counsel requested an open extension of time within which to file an answer. Appellant
therefore made an appearance in this action for purposes of the notice provision of NRCP
55(b)(2). See Franklin, 95 Nev. at 564-565, 598 P.2d at 1150-1151; Christy, 94 Nev. at 654,
584 P.2d at 689. The record reveals, however, that respondents never served appellant with
the required notice of their intent to obtain the default judgment; indeed, the default judgment
was obtained the day after the entry of appellant's default. The default judgment is therefore
void. See Christy, 94 Nev. at 654, 584 P.2d at 689; Reno Raceway, 87 Nev. at 620, 492 P.2d
at 127. Accordingly, we hereby reverse the judgment of the district court insofar as it refused
to set aside the default judgment, and remand this matter to the district court for a new
hearing limited to the issue of damages.
102 Nev. 621, 625 (1986) Gazin v. Hoy
damages. The judgment of the district court is affirmed in all other respects.
Mowbray, C. J., and Springer and Steffen, JJ., concur.
Gunderson, J., dissenting:
I would affirm the trial court in toto. As the trier of fact, the court surely was entitled to
determine that appellant's counsel had not, in good faith, acted in a way equivalent to entering
an appearance, and that appellant therefore was not entitled to the protections of NRCP 55.
____________
102 Nev. 625, 625 (1986) Mishler v. McNally
ALLAN J. MISHLER, M.D., Appellant, v.
GEORGETTE McNALLY, Respondent.
No. 16492
December 23, 1986 730 P.2d 432
Appeal from judgment upon jury verdict and order denying new trial. Second Judicial
District Court, Washoe County; William Forman, Judge.
In medical malpractice action, the district court found for patient, and physician appealed.
The Supreme Court held that: (1) writing containing opinions as to physician's professional
reputation was inadmissible hearsay where declarant was not available for cross-examination;
(2) writing was inadmissible due to lack of foundation as to authenticity and identity; and (3)
erroneous admission of writing was reversible error.
Eugene J. Wait, Jr., Reno, Lionel, Sawyer & Collins and David N. Frederick, Las Vegas,
for Appellant.
Echeverria, Osborne & Jenkins, Reno, for Respondent.
1. Evidence.
Writing containing author's opinion as to physician's professional reputation was inadmissible hearsay in
medical malpractice action where writing was used to prove that physician had unacceptable professional
history and that he acted incompetently in operation in question, and author was not present for
questioning. NRS 51.035, 51.065, 51.067.
2. Evidence.
Unsigned typewritten photocopy of memorandum regarding physician's professional reputation without
indication of date of receipt was inadmissible in medical malpractice action due to lack of foundation as to
its authenticity and identity, as recital of authorship on face of writing was insufficient proof of
authenticity to secure its admission for unlimited purposes.
was insufficient proof of authenticity to secure its admission for unlimited purposes. NRS 52.015,
52.015, subd. 1, 52.025.
Writing containing statements as to author's and another's opinion of physician in general was irrelevant
in medical malpractice action to issue of physician's conduct during specific operation. NRS 48.015.
Erroneous admission of writing stating opinions as to physician's professional reputation was reversible
error in medical malpractice action where writing contained statement that declarant had been told that
another would not let physician treat his dog, as such statement had high potential for prejudicially
arousing jury's hostility against physician. NRS 48.015, 51.065, 51.067, 52.015, 52.015, subd. 1,
52.025.
OPINION
Per Curiam:
In this appeal from a judgment upon jury's verdict for plaintiff-respondent for
$1,149,262.81 in a medical malpractice action, defendant-appellant assigns several of the
district court's rulings as error. We conclude that the trial was irreparably tainted by an
erroneous ruling on the admissibility of certain evidence, thereby depriving appellant of his
right to a fair trial. Accordingly, we reverse and remand this case for a new trial.
The Facts
In 1980, plaintiff-respondent Georgette McNally began experiencing pain in her chest,
neck, right shoulder and head. After performing a myelogram and finding an abnormal
widening in the cervical spine and evidence of pressure on the sixth cervical nerve root,
neurosurgeon John Davis performed a laminectomy and intradural exploration to view the
cervical region. Davis concluded that the spinal cord and roots were normal. Following this
surgery, respondent's headaches and chest discomfort were relieved, but her arm pain
worsened. Because of his concern over a lack of diagnosis, Dr. Davis referred respondent to a
medical center for further evaluation of her pain.
Respondent instead consulted defendant-appellant neurosurgeon Alan Mishler, M.D., who
performed a cervical anterior diskectomy with interbody fusion to remove disk material
protruding into the spinal canal. Following this operation, respondent reported tingling and
numbness in both hands from the wrists down and had no pin prick perception in her right
upper arm.
A psychiatrist examined respondent and concluded that respondent's problems were
psychogenic. Thereafter, respondent consulted neurosurgeon Louis Levy, who attempted to
anesthetize her nerves to alleviate the pain. Levy referred respondent to neurosurgeon Yoshi
Hosobuchi, who proposed implanting electrodes in her brain and using electrical impulses
to suppress the pain.
neurosurgeon Yoshi Hosobuchi, who proposed implanting electrodes in her brain and using
electrical impulses to suppress the pain. Respondent's pain has since continued to increase.
The tingling and numbness has now moved into her hip and leg, she cannot hold or
manipulate objects, and she has difficulty walking without stumbling. In August 1983,
respondent instituted this cause of action for medical malpractice, naming both Dr. Mishler
and the Washoe County Medical Center (hereinafter the hospital), where the diskectomy
was performed.
At trial, respondent's expert Hosobuchi characterized Dr. Mishler's extension of
respondent's neck during surgery over a small sandbag and his failure to use magnification to
assist his vision in removing the disk fragments as below the relevant standard of care.
Hosobuchi concluded that Dr. Mishler's intervention caused probable nerve damage and that
Dr. Mishler did not remove all of the disk material that should have been removed. Levy,
respondent's second expert witness, concurred with Hosobuchi, but admitted that the
suggestion of spinal cord damage from failure to remove all disk material was not consistent
with the increase in respondent's pain between Davis' and Dr. Mishler's treatment. Levy also
admitted that although Dr. Mishler only operated at one level of respondent's spine,
respondent now has symptoms indicating abnormalities at several levels. Both Hosobuchi and
the chief of neurosurgery at the hospital acknowledged that other neurosurgeons did not use
magnification in performing diskectomies.
Neurosurgeon Arthur Lyons, Dr. Mishler's expert witness, concluded that Dr. Mishler's
conduct in surgery conformed to the relevant standard of care. Lyons believed that
respondent's neck was not overly extended during surgery and that the use of a microscope
during the operation was unnecessary to meet the standard of care. Lyons found no spinal
injury trauma and no residual disk material in respondent's body after the surgery. Lyons
reached this conclusion because (1) respondent's postoperative symptoms involve nerves
exiting the spinal column at levels other than where Dr. Mishler's surgery was performed and
(2) a spinal cord injury would have manifested itself immediately, whereas respondent has
exhibited slow, progressively worsening symptoms. Lyons concluded that respondent's
symptoms were consistent with a tumor or cyst growing in her spinal cord. Lyons further
concluded that electrical impulse treatment to suppress pain was not appropriate and
recommended noninvasive nuclear magnetic resonance testing. Respondent stipulated to the
dismissal of the hospital at the conclusion of her case-in-chief. The jury awarded respondent
$1,149,262.81 in damages and this appeal followed. Dr. Mishler assigns several of the district
court's rulings as error.
court's rulings as error. We conclude that an erroneous evidentiary ruling is dispositive of this
appeal and requires reversal and a new trial.
Discussion
Dr. Mishler contends that the district court prejudicially erred in admitting, over several
objections, a memorandum regarding his professional reputation.
1
The court admitted the
memorandum for unlimited purposes.
[Headnote 1]
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. NRS
51.035. Here, the apparent declarant, a supervising physician from the hospital where Dr.
Mishler received his training, was not present to be questioned concerning the basis for his
opinion. The statement I wouldn't let [Dr. Mishler] treat my dog, obviously was intended to
opine that Dr. Mishler was a poor surgeon. It was used to prove both that Dr. Mishler had an
unacceptable professional history and that he acted incompetently in the diskectomy in
question. This is inadmissible hearsay and together with the credential committee's report of
the chief's recommendation and the letter itself, these statements constituted hearsay within
hearsay. There is no apparent hearsay exception for this evidence; thus, it was inadmissible,
NRS 51.065; NRS 51.067.
[Headnotes 2, 3]
The memo was also inadmissible because of a lack of foundation as to its authenticity and
identity. See NRS 52.015. It was an unsigned typewritten photocopy without any indication of
the date of receipt by the hospital. The record custodian testified that the hospital investigated
Dr. Mishler, but the record custodian did not say when in relation to these investigations the
hospital received the memorandum in question. The recital of authorship on the face of this
writing was insufficient proof of authenticity to secure its admission for unlimited purposes.
See Frias v. Valle, 101 Nev. 219, 698 P.2d 875 (1985) (improper to admit thermogram
evidence without testimony as to when taken or how identified); see also NRS 52.015{1);
NRS 52.025.
____________________

1
The memorandum, on the stationery of Porter Memorial Hospital in Denver, Colorado, and dated June,
1970, was unsigned but recited that it was authored by a chairperson of the credentials committee. It provided, in
pertinent part:
This gentleman came to Pueblo and they needed a neurosurgeon badly. This man had had a
misunderstanding with his chief where he was taking his training and left his residence [sic] six months or
a year prior to completing his residency. The Credentials Committee there then contacted his chief to get
a recommendation and his chief said, I wouldn't let him treat my dog. So on the basis of this they
couldn't get satisfactory recommendation so denied him staff privileges at St. Mary-Corwin.
gram evidence without testimony as to when taken or how identified); see also NRS
52.015(1); NRS 52.025. Moreover, the judgmental statements in the memo regarding Dr.
Mishler's capabilities are irrelevant to the issue of Dr. Mishler's conduct during the
diskectomy, see NRS 48.015.
[Headnote 4]
The supervising physician's comment was an emotional statement of opinion as to the
doctor's capabilities and character. It had a high potential for prejudicially arousing the jury's
hostility against Dr. Mishler. The statement distracted the jury from the issue of the
reasonableness of Dr. Mishler's conduct during the diskectomy, and interjected a strong
potential, if not probability, of jury confusion based upon the highly deprecatory
characterization of Dr. Mishler's professional history. Moreover, the prejudice intrinsic to the
statement was exacerbated by respondent's counsel during closing argument, and the resulting
level of prejudice was perpetuated and intensified by the magnified reproduction of the
statement that adorned the jury room during the jurors' deliberations. Even in the absence of
defense counsel's request to strike the evidence upon the dismissal of the hospital, its
admission, without limiting instructions to consider it only for the purpose of showing the
hospital's notice of Dr. Mishler's poor reputation, was error. Blueflame Gas, Inc. v. Van
Hoose, 679 P.2d 579, 586-87 (Colo. 1984) (where critical aspect of a claim is implicated, the
propriety of a court's sua sponte instruction will be addressed to prevent manifest injustice.
Britton v. Groom, 373 P.2d 1012, 1016 (Okla. 1962); Otterbeck v. Lamb, 85 Nev. 456, 456
P.2d 855 (1969).
Disposition
We conclude that the admission of the memorandum discussed above constituted
prejudicial error of a magnitude that demands reversal and a new trial. Having thus
concluded, it is unnecessary to consider other issues raised on appeal. Accordingly, the
judgment upon the jury verdict is reversed and the case remanded for new trial.
____________
102 Nev. 630, 630 (1986) Goldstine v. Jensen Pre-Cast
WILLIAM GOLDSTINE, Appellant, v.
JENSEN PRE-CAST, Respondent.
No. 16870
December 23, 1986 729 P.2d 1355
Appeal from judgment reversing appeals officer's award of SIIS benefits. Eighth Judicial
Award of SIIS benefits was reversed by the district court and employee appealed. The
Supreme Court, Young, J., held that employee who had willfully made false representations
concerning medical history on employment application could not be denied SIIS benefits after
industrial injury exacerbated concealed, preexisting condition.
Reversed.
Steffen, J., dissents.
Robert Owens, Las Vegas, and Barbara Gruenewald, Carson City, for Appellant.
John J. McCune, Michael B. Springer and Timothy E. Rowe, Reno, for Respondent.
Badger and Baker, Carson City, for Amicus Curiae, Nevada Trial Lawyers Association.
Employee who willfully made false representation on employment application that he had never had back
injury, back pain, backache, or back brace could not be denied SIIS benefits after industrial injury
exacerbated concealed, preexisting condition. NRS 616.370, 616.370, subd. 2, 616.427, 616.675,
617.400, subd. 1.
OPINION
The issue raised by this appeal is whether an employee who willfully makes false
representations concerning his medical history on an employment application may be denied
SIIS benefits when an industrial injury exacerbates the concealed, preexisting condition.
While we wholly condemn such conduct on the part of the employee, we are unable to adopt,
in the absence of legislative guidance, the rule of exemption proposed by the respondent.
The facts of the case are as follows: On August 5, 1983, the appellant, William Goldstine,
applied for employment with respondent, Jensen Pre-Cast.
respondent, Jensen Pre-Cast. A form required for the preemployment physical asked: Have
you ever had . . . back injury, back pain, backache or back brace? Goldstine indicated that he
had not. This representation was false. Goldstine had been in an automobile accident the
previous year in which he had sustained a back injury. The employer would not have hired
Goldstine if this fact had been known. Goldstine was hired, and two months later sustained an
industrial injury to his back. The district court ruled that Goldstine was not entitled to SIIS
benefits, due to his deliberate and willful misrepresentation.
The court below applied a test proposed by Professor Larson:
The following factors must be present before a false statement in an employment
application will bar benefits: (1) The employee must have knowingly and willfully
made a false representation as to his physical condition. (2) The employer must have
relied upon the false representation and this reliance must have been a substantial factor
in the hiring. (3) There must have been a causal connection between the false
representation and the injury.
1C Larson, Workmen's Compensation Law, 47.53.
It is true that such a rule would serve the useful purpose of discouraging employee fraud,
and allowing the employer to rely on the integrity of the applicant in making its hiring
decision. Respondent also argues that such a rule would ultimately reduce industrial injuries
to employees, since a person physically unsuited to certain employment due to preexisting
disabilities would not be placed in such employment, reducing the risk of reinjury. This may
well be. However, we are persuaded that such a policy decision is properly considered by the
legislature, rather than by this court, See SIIS v. Conner, 102 Nev. 335, 721 P.2d 384 (1986).
The workmen's compensation scheme fashioned by the Nevada legislature alters the
common-law rights of the employer and the employee. The employee forfeits his
common-law right to sue his employer for negligence, while the employer gives up most
common-law defenses. See NRS 616.370. The purpose of the system is to provide
compensation for industrial injuries. E.g., Breen v. Caesars Palace, 102 Nev. 79, 715 P.2d
1070 (1986). The removal of many employer defenses is designed to simplify and speed the
administrative process. We view this scheme as a delicate balance between the interests of the
parties, a balance which we, as a judicial body, are hesitant to disturb.
Further, an examination of the legislative scheme as a whole convinces us that, where a
policy consideration advocates exclusion of coverage, the legislature is perfectly capable of
implementing such policy. In fact, the legislature has already determined that no
compensation shall be payable for industrial disease where the employee willfully and
falsely represents that he has not previously suffered from such disease.
disease where the employee willfully and falsely represents that he has not previously
suffered from such disease. NRS 617.400(1). The legislature has provided that, where an
employee's permanent disability is the result of a failure to report a preexisting injury, the
employer may seek contribution from the state subsequent injury fund. NRS 616.427. The
legislature has determined that compensation may be denied where the employee makes a
misrepresentation in order to obtain industrial insurance compensation. NRS 616.675.
Finally, the legislature has indicated that the terms of the statutes themselves must control the
award or denial of benefits. NRS 616.370(2) states: The terms, conditions and provisions of
this chapter for the payment of compensation and the amount thereof for injuries sustained or
death resulting from such injuries shall be conclusive, compulsory and obligatory upon both
employers and employees coming within the provisions of this chapter.
Thus, although we are aware that several jurisdictions have adopted the rule proposed by
the respondent,
1
we join those courts which have held that such a rule is not properly
adopted by the courts.
2

For the reasons stated above, the judgment of the district court is reversed.
Mowbray, C. J., and Springer and Gunderson, JJ., concur.
Steffen, J., dissenting:
I respectfully dissent.
My brethren on the majority wholly condemn the appellant's behavior in willfully
falsifying his employment application and then, sub silentio, ascribe to the legislature an
intention to reward such conduct by failing to cover it specifically within the terms of the
Nevada Industrial Insurance Act, NRS Chapter 616.
____________________

1
Shippers Transport of Georgia v. Stepp, 578 S.W.2d 232 (Ark. 1979); Air Mod Corporation v. Newton, 215
A.2d 434 (Del. 1965); Martin Company v. Carpenter, 132 So.2d 400 (Fla. 1961); Hilt Truck Lines, Inc. v.
Jones, 281 N.W.2d 399 (Neb. 1979); Martinez v. Driver Mechanbier, Inc., 562 P.2d 843 (N.M.App. 1980);
Cooper v. McDevitt & Street Company, 196 S.E.2d 833 (S.C. 1973); Federal Copper and Aluminum Company
v. Dickey, 493 S.W.2d 463 (Tenn. 1973).

2
See Still v. Norfolk & Western Ry. Co., 368 U.S. 35 (1961); Newport News Shipbuilding & Dry Dock Co.
v. Hall, 674 F.2d 248 (4th Cir. 1982); Marriott Corp. v. Indus. Comm'n of Arizona, 708 P.2d 1307 (Ariz. 1985);
Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985) (reversing Artcraft Sign Company v. McGrath, 679 P.2d
1103 (Colo.App. 1983), cited by respondent as adopting the rule); General Motors Corporation v. Hargis, 150
S.E.2d 303 (Ga.App. 1966); Teixeira v. Kauikeolani Children's Hospital, 652 P.2d 635 (Hawaii App. 1982);
Fontenot v. Cagle Chevrolet, Inc., 417 So.2d 1338 (La.App. 1982); Dressler v. Grand Rapids Die Casting Corp.,
262 N.W.2d 629 (Mich. 1978); H. J. Jefferies Truck Line v. Grisham, 397 P.2d 637 (Okl. 1964).
Courts have seldom been timid in addressing matters of fraudulent misrepresentation and
have, I believe, rather steadfastly refused to grant relief to those who seek advantage from
their own wrongdoing. In 1894, this court announced the principle of law that he who, by his
language or conduct, leads another to do what he otherwise would not have done, shall not
subject such person to loss or injury by disappointing the expectations upon which he acts.
This rule has its justification in the justness of preventing the accomplishment of fraud.
Gardner v. Pierce, 22 Nev. 146, 153-54, 36 P. 782 (1894). Also, in McCausland v. Ralston,
12 Nev. 195, 207-08 (1877), our court approvingly cited from Lord Mansfield in Holman v.
Johnson (1 Cowp. 341) wherein he said: The principle of public policy is this: ex dolo malo
non oritur actio. No court will lend its aid to a man who founds his cause of action upon an
immoral or an illegal act. Courts over the centuries have advanced and refined common-law
principles governing fraud, and have been vigilant in withholding relief from parties who
seek to profit from their own misdeeds. I do not view a statutory alteration of the
common-law rights of employers and employees under workmen's compensation laws as
cause to either positively or passively reward fraud in the courts. The policy considerations
underlying a scheme of workmen's compensation do not include awarding compensation
attributable to fraud.
In the recent case of Hansen v. Harrah's, 100 Nev. 60, 675 P.2d 395 (1984), this court
rejected the argument it embraces in the instant case. There, we were challenged to await a
legislative remedy for retaliatory discharge since the legislature had provided no basis for
relief under the Nevada Industrial Insurance Act for discharging an employee in retaliation for
filing a workmen's compensation claim. In judicially recognizing the tort of retaliatory
discharge in Hansen, we deferred to a strong public policy in the tradition of the common
law. We should be equally motivated in the instant case, for it is consistent with firmly
established public policy and legal principle that wrongdoers will not receive state-sponsored
aid in seeking advantage from their misbehavior. It is the time-tested strength of the latter
maxim that leads me to conclude that the legislative omission on the subject of the type of
misrepresentation here present was inadvertent or, in any event, unintended. Since, I cannot
envision a legislative intent to reward wrongdoing any more than I could conceive legislative
condonation of retaliatory discharge, I must respectfully dissent from the position of my
brethren.
____________
102 Nev. 634, 634 (1986) Masini v. Fraser
CARROL MASINI, Appellant, v. GEORGE FRASER and
BETTY FRASER, Husband and Wife, Respondents.
No. 17011
December 23, 1986 729 P.2d 1358
Appeal from judgment in civil action. Third Judicial District Court, Lyon County; Mario
G. Recanzone, Judge.
Dispute arose when road which licensee had been granted license to build across portion
of farm to provide access to irrigation control box was blocked by licensor's son. The district
court found that license was executed and therefore irrevocable, and awarded compensatory
and punitive damages and attorney fees, and enjoined further interference with use of road.
Licensor's son appealed. The Supreme Court held that license had not been rendered
irrevocable, on theory that licensee had expended substantial time, money, materials, or labor
in reliance upon license, where licensee made road in dispute merely by lowering blade on his
tractor as he went to and from irrigation control box.
Reversed and remanded with directions.
Julian C. Smith, Jr., Carson City, for Appellant.
Ronald T. Banta, Yerington, for Respondent.
1. Licenses.
Licensee cannot, by purely trivial reliance, terminate licensor's power of revocation.
2. Licenses.
License to build road across licensor's farm to provide access to irrigation control box serving licensee's
property remained revocable, on theory that licensee had not expended substantial time, money, materials,
or labor, where road in dispute was made merely by lowering blade on licensee's tractor as he went to and
from irrigation control box.
OPINION
Per Curiam:
Over twenty years ago, the father of appellant Masini granted respondent George Fraser a
license to build a road across a portion of the Masinis' farm, to provide access to an irrigation
control box serving the Frasers' property. Fraser built such a road, and he and his lessees have
used it ever since. However, after a dispute with Fraser's present lessee over an unrelated
matter, Masini blocked the road. The trial court found that the license was executed, and
therefore irrevocable; it awarded compensatory and punitive damages and attorney's fees and
enjoined further interference with use of the road.
102 Nev. 634, 635 (1986) Masini v. Fraser
further interference with use of the road. Because we conclude that the license was revocable,
we reverse the judgment in its entirety.
1

[Headnote 1]
We have discussed the doctrine of irrevocability of licenses in two earlier opinions: Lee v.
McLeod, 12 Nev. 280 (1877), and Sheehan v. Kasper, 41 Nev. 27, 165 P. 632 (1917). In each
of these cases, the licensee's expenditures in reliance on the license were quite substantial.
Consequently, the question whether insubstantial reliance would render a license irrevocable
did not arise. The language of those opinions, therefore, seems to indicate that reliance, per
se, is all that is required. Such an inference is inaccurate; a licensee cannot, by purely trivial
reliance, terminate the licensor's power of revocation. Accord Cooke v. Ramponi, 239 P.2d
638, 641 (Cal. 1952).
[Headnote 2]
The record shows that Fraser made the road in question by merely lowering the blade on
his tractor as he went to and from the irrigation control box. This is hardly a substantial
expenditure of time, money, materials or labor; Fraser had to go to the take-out box in any
event. Thus, the license remained revocable and Masini's action was not unlawful.
It follows that Fraser should not have obtained relief. Accordingly, the judgment is
reversed and the cause remanded with directions to enter judgment for Masini.
____________________

1
Masini concedes that the Frasers have an independent secondary easement along the bank of the irrigation
ditch (though not on the side of the access road) to the extent necessary for access to the control box,
maintenance of the ditch, etc. That easement is not here at issue.
____________
102 Nev. 635, 635 (1986) Warner v. State
JAMES CALVIN WARNER, Appellant, v. THE
No. 17380
December 23, 1986 729 P.2d 1359
Appeal from an order denying petition for post-conviction relief. Fifth Judicial District
Court, Mineral County; William P. Beko, Judge.
Defendant was convicted of sexual assault and lewdness with child under fourteen years of
age, and the district court denied defendant's petition for post-conviction relief. Defendant
appealed.
appealed. The Supreme Court held that defendant had been denied effective assistance of
counsel.
[Rehearing denied February 6, 1987]
Norman Y. Herring, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City, and Larry G. Bettis, District Attorney,
Mineral County, for Respondent.
1. Criminal Law.
Failure of counsel for defendant charged with sexual assault and lewdness with child under fourteen years
of age to interview complainant or have her undergo physical or psychological examination or to present
witnesses in support of defendant's character denied defendant effective assistance of counsel. NRS
200.366, 201.230; U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Failure of trial counsel for defendant charged with sexual assault and lewdness with child under fourteen
years of age to prepare for presentation of two defense witnesses, one of whose testimony was of little
value, and the other's actually damaging to defense, deprived defendant of effective assistance of counsel.
NRS 200.366, 201.230; U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Failure of counsel for defendant convicted of sexual assault and lewdness with child under fourteen years
of age to present any evidence or witnesses on defendant's behalf in support of more lenient sentence
denied defendant effective assistance of counsel. NRS 200.366, 201.230; U.S.C.A.Const. Amend. 6.

OPINION
Per Curiam:
This is an appeal from an order of the district court denying appellant's petition for
post-conviction relief. Appellant was charged with sexual assault, a violation of NRS
200.366, and lewdness with a child under fourteen years of age, a violation of NRS 201.230.
Following a jury trial, he was convicted and sentenced on the sexual assault charge to life
imprisonment without the possibility of parole until he serves at least ten years, and on the
lewdness charge to ten years in prison, the sentences to run concurrently. In this appeal,
appellant contends that he was denied the effective assistance of counsel before and during
trial, and therefore was denied his right to a fair trial. We agree, and accordingly reverse and
remand this case for a new trial.
At appellant's trial, the state presented the testimony of only two witnesses, the alleged
victim (appellant's eleven-year-old stepdaughter, Dee) and appellant's wife.
stepdaughter, Dee) and appellant's wife. The only witnesses with any personal knowledge of
the events in question were Dee, appellant, and possibly Dee's seven-year-old brother, Arthur.
There was no physical evidence of the alleged incidents; Dee was never given a medical
examination.
[Headnote 1]
Appellant primarily contends that his trial counsel did not conduct an adequate
investigation before trial. At the post-conviction hearing below, trial counsel, a deputy public
defender, admitted that he did not consult with any other attorneys in the public defender's
office about the case, even though the potential sentence was as serious as that for a murder
case. Although he was encouraged to make use of the public defender's full-time investigator,
he declined to do so. Trial counsel admitted that it would have been important to investigate
the background of the complaining witnesses, Dee and her mother, but he failed to do so. He
never attempted to interview Dee. He did not request that Dee be given a physical
examination. Although Dee admitted at trial that she lies on occasion, trial counsel did not
request the district court to order Dee to undergo a psychological examination to determine
whether Dee was being truthful.
Trial counsel did not present any witnesses in support of appellant's character, although
appellant's credibility and the credibility of the alleged victim were central issues in the case.
Appellant provided trial counsel with a list of three possible witnesses, but counsel did not
contact them. Nor did trial counsel interview appellant's employer and co-workers. Under the
facts of this case, we conclude that trial counsel failed to conduct an adequate investigation
before trial.
[Headnote 2]
Appellant next contends that trial counsel failed to prepare for the presentation of two
defense witnesses, appellant's son, Arthur, and deputy sheriff Teri Everett. We agree with this
contention. It is not clear why trial counsel presented these witnesses. Arthur's testimony was
of little value, and the deputy sheriff's testimony was actually damaging to the defense.
[Headnote 3]
Finally, we note that at appellant's sentencing, trial counsel failed to present any evidence
or witnesses on his behalf in support of a more lenient sentence.
In the present case, since there was no physical evidence of the alleged lewdness and
sexual assault, and apparently no witnesses to any of the alleged incidents, the outcome
depended primarily upon whether the jury believed Dee or appellant. Trial counsel neglected
this crucial area of concern. Counsel's failure to investigate and lack of preparation for trial
left appellant without a defense at trial.
tigate and lack of preparation for trial left appellant without a defense at trial. Under the
circumstances of the present case, we conclude that trial counsel's performance was so
deficient as to render the trial result unreliable. Accordingly, we conclude that appellant was
denied his Sixth Amendment right to the effective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668 (1984). Appellant's judgment of conviction is reversed, and this
matter is remanded to the district court for further proceedings.
____________
102 Nev. 638, 638 (1986) SIIS v. Rux
THE STATE INDUSTRIAL INSURANCE SYSTEM, an Agency of the State of Nevada,
Appellant, v. ADOLPH RUX (Deceased) and MRS. RUX, Respondent.
No. 17084
December 23, 1986 729 P.2d 1361
Appeal from an order denying judicial review of an appeals officer's decision; Eighth
Judicial District Court, Clark County; Paul S. Goldman, Judge.
The State Industrial Insurance System sought judicial review of a decision that the widow
of a deceased employee was entitled to permanent total disability benefits. The district court
denied review. Appeal was taken. The Supreme Court held that the widow was not entitled to
permanent total disability benefits in that the governing statute was intended to limit payment
of those benefits to the lifetime of an injured employee.
Reversed.
Robert S. Giunta, Las Vegas, and Pamela Bugge, Carson City, for Appellant.
Robert E. Owens, Las Vegas, for Respondent.
Widow was not entitled to receive deceased spouse's permanent total disability benefits, which were
intended to be limited to lifetime of injured employee. NRS 616.580.
OPINION
Per Curiam:
The State Industrial Insurance System (SIIS) appeals from an order denying judicial
review of the appeals officer's decision that a widow of a deceased claimant is entitled to
permanent total disability benefits.
102 Nev. 638, 639 (1986) SIIS v. Rux
that a widow of a deceased claimant is entitled to permanent total disability benefits.
Adolph Rux sustained an injury in the course and scope of his employment. After a stroke
his condition was found to warrant permanent and total disability. Rux received one payment
for permanent total disability before he died as a result of a heart attack.
SIIS determined that Rux's widow, Dora Rux, was not entitled to receive any benefits.
Dora Rux appealed the SIIS decision to an appeals officer who found that the widow was not
entitled to death benefits pursuant to NRS 616.615 since Adolph's death was not industrial in
nature, but that she was entitled to Adolph's permanent total disability benefits pursuant to
NRS 616.580. SIIS petitioned for judicial review of the appeals officer's decision. The district
court denied the SIIS petition for judicial review.
Dora Rux asserts that the language under NRS 616.580 provides that a widow is entitled
to the deceased spouse's permanent total disability benefits until she dies or remarries. We
disagree.
NRS 616.580 states, in pertinent part:
Every employee in the employ of an employer, within the provisions of this chapter,
who is injured by accident arising out of and in the course of employment, or his
dependents as defined in this chapter, is entitled to receive the following compensation
for permanent total disability:
1. In cases of total disability adjudged to be permanent, compensation per month of
66 2/3 percent of the average monthly wage.
NRS 616.580 was enacted in 1947 and amended several times thereafter. Chapter 169,
section 59 of the Statutes of Nevada in 1947 employed the identical language of [e]very
employee . . . or his dependents to refer specifically to the provision of death benefits. In
1949, section 59 was amended and the phrase [e]very employee. . .or his dependents was
incorporated into the introductory language which referred generally to three subsections
including death benefits, temporary total disability and permanent total disability.
In 1959, subsection (c) of section 59, which referred to permanent total disability, was
amended to comprise NRS 616.580. NRS 616.580 retained the introductory language from
the original 1949 statute which referred specifically to death benefits and from the 1949
statute which referred generally to the three types of compensation: death benefits, temporary
total disability and permanent total disability.
The legislative intent behind NRS 616.580 was to limit payment of permanent total
disability benefits to the lifetime of the injured employee.1 If the death of the employee is
caused by the injury which led to permanent total disability, then specified dependents
may receive death benefits.
102 Nev. 638, 640 (1986) SIIS v. Rux
injured employee.
1
If the death of the employee is caused by the injury which led to
permanent total disability, then specified dependents may receive death benefits. NRS
616.615.
There is no express reference in NRS 616.580 that permanent total disability benefits
should be paid to dependents under circumstances of a non-industrially related death of the
claimant. There are no clear guidelines as to whom the benefits should go, how much money
the dependents are entitled to, and for how long benefits will be paid.
The purpose of worker's compensation acts is to put an end to private tort litigation
between employer and employee and to give a worker the right to compensation for injuries
suffered in employment, regardless of fault on the part of the employer. See Nevada Industrial
Commission v. Peck, 69 Nev. 1, 5, 239 P.2d 244, 246 (1952). While fault by the employer is
not an issue under worker's compensation acts, causation between the injury and the right to
benefits should not be eliminated without express authorization by the legislature.
Accordingly, the district court's order denying judicial review of the appeals officer's
decision is reversed.
____________________

1
At a hearing of the Senate Commerce and Labor Committee and Assembly Labor and Management
Committee regarding amendments to NRS 616.580 in 1973, Senator Drakulich was assured by Mr. Reiser of the
Nevada Industrial Commission that permanent total disability benefits would be discontinued unless the death
was directly caused by the injury.
____________
102 Nev. 640, 640 (1986) Crowell v. Hancock Mutual Life Ins.
A. VERNE CROWELL; BARBARA W. CROWELL; MICHAEL V. CROWELL; JONETTE
D. CROWELL; A. GARY CROWELL and PAIGE CROWELL, Appellants, v. JOHN
HANCOCK MUTUAL LIFE INSURANCE COMPANY, Respondent.
No. 16623
December 29, 1986 731 P.2d 346
Appeal from judgment against personal guarantors. Second Judicial District Court,
Washoe County; Roy L. Torvinen, Judge.
Creditor sued primary obligor and guarantors to recover deficiency damages arising out of
trustee's sale of property. The district court upheld jury's verdict of no deficiency in claim
against primary obligor but entered judgment against guarantors. On appeal, the Supreme
Court held that as indebtedness owed by primary obligor had been fully satisfied by trustee's
sale of property and fair market value exceeded amount of debt, guarantors were not
liable under guarantee contract.
property and fair market value exceeded amount of debt, guarantors were not liable under
guarantee contract.
Reversed.
Robison, Lyle, Belaustegui & Robb, Reno, for Appellants.
Hawkins & Sharp, for Respondent.
1. Mortgages.
Court erred in accepting fair market value of property as asserted by creditor and thereafter entering
deficiency judgment against guarantors based upon that value; recognizing prior overruling of Thomas v.
Valley Bank of Nevada, 97 Nev. 320, 629 P.2d 1205.
2. Mortgages.
Guarantors were not liable to creditor which sought deficiency judgment after acquiring property at
trustee's sale with fair market value that exceeded amount of debt.
OPINION
Per Curiam:
This action originally stemmed from a trustee's sale of farm property under a deed of trust
given as security for a promissory note in favor of respondent, John Hancock Mutual Life.
The Crowell family members each personally guaranteed the promissory note in the face
amount of $1,280,000 which was executed by Bar Vee Dairy, Inc. The note provided for
interest at the rate of 12 percent per annum unless a default occurred, then the percentage
escalated to 18 percent.
Bar Vee Dairy, Inc. experienced difficulty in operating the dairy ranch that constituted the
property encumbered by the deed of trust and on several occasions sought to deed back the
operation to John Hancock and take a $370,000 loss on their investment. Bar Vee apparently
failed to pay the deferred interest due on October 1, 1982 and the regular interest due April 1,
1983. On May 12, 1983, John Hancock executed and recorded a notice of default and election
to sell under the deed of trust.
On October 7, 1983, the trustee's sale was held in Reno. The only bid was submitted by
John Hancock for $1,280,000, the full face amount of the promissory note.
On January 3, 1984, John Hancock timely filed Application for Deficiency Judgment and
Complaint. The Application for Deficiency Judgment alleged two causes of action. The first
was against Bar Vee for the difference between the fair market value of the farm and the
indebtedness owed as of the date of the trustee's sale. John Hancock alleged that the fair
market value of the property was $1,340,000 and that the deficiency should amount to
$247,337.
amount to $247,337. The second cause of action was essentially identical to the first, except it
was against the guarantors.
At trial, both sides presented testimony on the fair market value of the farm. John
Hancock's expert stated that the fair market value was $1,340,000. The expert provided by the
Crowells placed a value on the property of $1,650,000.
In a jury instruction, the trial judge directed a verdict against the guarantors and in favor of
John Hancock with the following language:
Ladies and gentlemen of the jury, it becomes my duty at this time to instruct you that
the defendants, Verne Crowell, Barbara Crowell, Michael Crowell, Jonette Crowell,
Gary Crowell and Paige Crowell have failed to establish or prove any defense to their
liability under the guaranty contract, and I hereby instruct you upon retiring to the jury
room to return a verdict for the plaintiff in a sum equal to the difference between
$1,340,000 and the balance due plaintiff under the Promissory Note and Deed of Trust.
The trial judge then proceeded to allow the jury to determine the amount of debt owed on the
promissory note as of October 7, 1983.
The jury was also instructed by the lower court to determine whether the fair market value
of the farm exceeded the amount owed on the date of the trustee's sale. The jury found that
the amount of indebtedness owed John Hancock was $1,565,608.42 and further found that
the fair market value of the property exceeded the amount of the indebtedness on the date of
the trustee's sale.
The trial judge upheld the jury's verdict of no deficiency in the claim against Bar Vee
Dairy, Inc., but also entered judgment in the amount of $225,608.42 plus $10,000 in
attorney's fees and court costs of $868.45 against the guarantors.
The Crowells filed a post-trial motion entitled Motion For Judgment On Jury Verdict, on
the grounds that the jury had found that the indebtedness was fully satisfied by the trustee's
sale, and that John Hancock had only sued the Crowells for the deficiency owed by Bar Vee.
The court denied the motion. This appeal by the Crowells followed.
The trial court directed a verdict against the Crowells as guarantors, finding that they had
failed to prove any affirmative defenses to the guaranty contract and to the fair market value
of the farm property as alleged by John Hancock in his complaint. The trial judge thus set the
stage for determining the amount of damages against the guarantors by instructing the jurors
to find the amount of the debt owed to John Hancock under the promissory note as of the
date of the trustee's sale.
sory note as of the date of the trustee's sale. When the jury's verdict established the debt at
$1,565,608.42, the trial judge simply subtracted the fair market value of the property as
alleged by John Hancock ($1,340,000) and arrived at the resulting damage figure of
$225,608.42 plus attorney's fees and costs.
We need not determine the propriety of the directed verdict against the guarantors as to
liability under the guaranty contract. The trial court erred in accepting as true the fair market
value of the property as asserted by John Hancock in its complaint and thereafter entering
judgment against the guarantors based upon that value. In proceeding as it did, however, the
trial judge relied on this court's opinion in Thomas v. Valley Bank of Nevada, 97 Nev. 320,
629 P.2d 1205 (1981). Under Thomas, the procedure followed by the trial court in the instant
case would have been acceptable. However, in the recently decided case of First Interstate
Bank of Nevada v. Shields, 102 Nev. 616, 730 P.2d 429 (1986), this court overruled the
Thomas decision and specifically held that guarantors enjoyed the protection of Nevada's
deficiency legislation.
[Headnotes 1, 2]
The instant case serves to highlight the incongruity and injustice that derives from denying
guarantors the benefit of our deficiency judgment policies. The jury, sitting as a trier of fact,
and after hearing expert testimony concerning the value of the property acquired by John
Hancock at the trustee's sale, determined that the indebtedness owed by the primary obligor,
Bar Vee, had been fully satisfied since the fair market value of the property exceeded the
amount of the debt. Justice was thus accorded to both Bar Vee, the debtor, and John Hancock,
the creditor. The former, who had defaulted under the terms of the secured promissory note,
lost property of a value greater than the debt, but the debt was thereby satisfied in full. The
latter, John Hancock, realized the legitimate expectancy of a creditor, i.e., complete
satisfaction of the debt. However, when the trial court entered judgment against the individual
guarantors the result was both incongruous and unjust; incongruous because a fair market
value asserted unilaterally by the creditor was accepted and imposed against appellants in
direct conflict with both the statutory scheme for determining the fair market value of realty
sold at a trustee's sale and the express determination of a much higher fair market value by a
jury that heard and weighed the evidence on the subject, and unjust because the guarantors,
who had contracted to pay the debt upon default only to the extent that it was not satisfied,
nevertheless were ordered to pay substantial sums beyond the amount of the fully satisfied
debt. The creditor, who was lawfully entitled to only one debt satisfaction, enjoyed an
unwarranted double recovery as to a substantial portion of the debt.
an unwarranted double recovery as to a substantial portion of the debt. Moreover, under the
written terms of the guaranty agreement, the individual guarantors agreed, in pertinent part,
that the cessation of liability of the maker, or any other person (for any reason other than
full payment) . . . shall not affect in any way the liability of the undersigned under this
guaranty (emphasis supplied). By clear inference, the guarantors were to be released from
their liability as guarantors upon full payment of the debt. The jury, by its verdict, found that
the debt had been paid in full. It follows, therefore, that the guarantors should not have been
liable under any circumstances.
For these reasons, the judgment is reversed in its entirety and the cause remanded for the
purpose of determining the amount of costs and fees, if any, due appellants.
____________
102 Nev. 644, 644 (1986) McKay v. Bd. of Supervisors
BRIAN McKAY, ATTORNEY GENERAL OF THE STATE OF NEVADA, Appellant, v.
THE BOARD OF SUPERVISORS OF CARSON CITY, NEVADA, Respondent.
No. 17145
December 30, 1986 730 P.2d 438
Appeal from summary judgment. First Judicial District Court, Carson City; Michael R.
Griffin, Judge.
Attorney General filed complaint for declaratory and injunctive relief, alleging that action
of city board of supervisors in terminating city manager in closed meeting violated the Open
Meeting Law. The district court ruled in favor of Board, and Attorney General appealed, The
Supreme Court, Young, J., held that action of board terminating city manager in closed
session violated Open Meeting Law and was not within exception permitting consideration of
person's character, alleged misconduct, professional competence or physical or mental health
in closed session.
Reversed.
Brian McKay, Attorney General, and Scott W. Doyle, Deputy Attorney General, Carson
City, for Appellant.
Noel S. Waters, District Attorney, and Charles P. Cockerill, Deputy District Attorney,
Carson City, for Respondent.
1. Statutes.
Where a statute is clear on its face, court may not go beyond language of statute in determining
legislature's intent.
2. Statutes.
Where statute is capable of being understood in two or more senses by reasonably informed persons,
statute is ambiguous.
3. Statutes.
Since either interpretation offered by parties regarding exception to Open Meeting Law allowing
consideration of a person's character, alleged misconduct, professional competence or physical or mental
health in closed session could reasonably be drawn from language of statute, statute was ambiguous and
plain meaning rule had no application. NRS 241.030, subd. 1.
4. Statutes.
Where statute is amended, provisions of former statute omitted from amended statute are repealed.
5. Statutes.
It is ordinarily presumed that the legislature, by deleting an express portion of a law, intended a
substantial change in the law.
6. Administrative Law and Procedure; Officers and Public Employees.
Legislature intended to require open meetings for decision to terminate a public employee, considering
that legislature deleted former provision of Open Meeting Law which expressly allowed termination in
closed session. NRS 241.030 subds. 1, 3(e).
7. Statutes.
Leading rule of statutory construction is to ascertain intent of legislature in enacting statute, and such
intent will prevail over literal sense of its words.
8. Statutes.
Meaning of words used in statute may be determined by examining context and spirit of the law or causes
which induced the legislature to enact it; entire subject matter and policy may be involved as an
interpretative aid.
9. Municipal Corporation.
Action of City Board of Supervisors terminating city manager in closed session violated Open Meeting
Law and was not within exception allowing consideration of person's character, alleged misconduct,
professional competence or physical or mental health in closed session. NRS 241.010 et seq., 241.030,
subd. 1.
OPINION
This case involves interpretation of Nevada's Open Meeting Law, NRS chapter 241. The
district court ruled that Carson City could properly terminate its former city manager in a
closed meeting. The Attorney General argues this was error because the Nevada Open
Meeting Law mandates any action to terminate the city manager be taken in an open meeting.
We agree.
On August 12, 13, 1985, the Carson City Board of Supervisors (Board) met in closed
session and voted to request the city manager's resignation and to authorize six months
severance pay when the resignation was submitted.
when the resignation was submitted. The meeting was noticed in accordance with NRS
241.020(3)(a)
1
and the Board was advised by counsel during this session.
At an open and properly noticed meeting August 15, 1985, the mayor put on the record the
Board's August 13 action requesting the resignation of the city manager. Sometime after that
date, the Nevada Appeal and the Reno Gazette Journal complained to the Attorney General
that the Board's action violated Nevada's Open Meeting Law, NRS chapter 241. The Attorney
General is authorized by NRS 241.0372 to maintain suit in court to have any action taken by
a public body which is in violation of the Open Meeting Law declared void and to seek an
injunction against the public body to require compliance with the statute.
On October 10, 1985, the Attorney General filed a complaint in district court for
declaratory and injunctive relief, pursuant to NRS 241.037. The complaint alleged the
decision of the Board to terminate the city manager exceeded the statutory authorization for
closed meetings and thus violated NRS 241.030.
3
The Board answered and denied that its
action violated the statute, claiming that the meeting came under the exemption from open
meeting requirements contained in NRS 241.030{1).
____________________

1
See footnote 5, infra.

2
1. The attorney general may sue in any court of competent jurisdiction to have an action taken by a
public body declared void or for an injunction against any public body or person to require compliance
with or prevent violations of the provisions of this chapter. The injunction:
(a) May be issued without proof of actual damage or other irreparable harm sustained by any person.
(b) Does not relieve any person from criminal prosecution for the same violation.
2. Any person denied a right conferred by this chapter may sue in the district court of the district in
which the public body ordinarily holds its meetings or in which the plaintiff resides. A suit may seek to
have an action taken by the public body declared void, to require compliance with or prevent violations
of this chapter or to determine the applicability of this chapter to discussions or decisions of the public
body. The court may order payment of reasonable attorney's fees and court costs to a successful plaintiff
in a suit brought under this subsection.
3. Any suit brought against a public body pursuant to subsection 1 or 2 to require compliance with the
provisions of this chapter must be commenced within 120 days after the action objected to was taken by
that public body in violation of this chapter. Any such suit brought to have an action declared void must
be commenced within 60 days after the action objected to was taken.

3
1. Nothing contained in this chapter prevents a public body from holding a closed meeting to consider
the character, alleged misconduct, professional competence, or physical or mental health of a person.
2. A public body may close a meeting upon a motion which specifies the nature of the business to be
considered.
3. This chapter does not:
that the meeting came under the exemption from open meeting requirements contained in
NRS 241.030(1).
On November 22, 1985, the Board moved for summary judgment. The parties had
stipulated to the facts, and the Board claimed there was only an issue of law to be decided, i.e.
whether the Board's conduct was expressly exempted from the open meeting requirement.
The Attorney General opposed the motion, claiming the Board's action did not come within
any of the express exemptions to the requirement of an open meeting.
The district court held a hearing January 13, 1986, heard argument and ruled in favor of
the Board. The Attorney General then moved to amend the findings of fact, conclusions of
law and judgment, which was denied. The Attorney General now appeals from the order
granting summary judgment and the order denying the motion to amend.
NRS chapter 241 contains the provisions of Nevada's Open Meeting Law. NRS 241.0104
declares the legislative intent. This section states that all public bodies exist to aid in the
conduct of the people's business and that the legislature intends that its actions and
deliberations be conducted openly. NRS 241.0205 requires that all meetings of public bodies
shall be open and public except as otherwise specifically provided by statute, and all persons
shall be permitted to attend any meeting of these bodies.
____________________
(a) Apply to judicial proceedings.
(b) Prevent the removal of any person who willfully disrupts a meeting to the extent that its orderly
conduct is made impractical.
(c) Prevent the exclusion of witnesses from a public or private meeting during the examination of
another witness.
(d) Require that any meeting be closed to the public.
(e) Permit a closed meeting for the discussion of the appointment of any person to public office or as
a member of a public body.
4. The exception provided by this section, and electronic communication, must not be used to
circumvent the spirit or letter of this chapter in order to discuss or act upon a matter over which the
public body has supervision, control, jurisdiction or advisory powers.

4
In enacting this chapter, the legislature finds and declares that all public bodies exist to aid in the
conduct of the people's business. It is the intent of the law that their actions be taken openly and that their
deliberations be conducted openly.

5
1. Except as otherwise specifically provided by statute, all meetings of public bodies shall be open
and public, and all persons shall be permitted to attend any meeting of these bodies. Public officers and
employees responsible for these meetings must make reasonable efforts to assist and accommodate
physically handicapped persons desiring to attend.
2. Except in an emergency, written notice of all meetings shall be
bodies. NRS 241.030
6
states the exceptions to the open meeting requirement.
STATUTORY CONSTRUCTION
1. Plain Meaning.
[Headnote 1]
The Attorney General and Carson City each assert the plain meaning rule of statutory
construction supports their respective arguments. It is well settled in Nevada that words in a
statute should be given their plain meaning unless this violates the spirit of the act.
Application of Filippini, 66 Nev. 17, 24, 202 P.2d 535, 538 (1949). Where a statute is clear
on its face, a court may not go beyond the language of the statute in determining the
legislature's intent. Thompson v. District Court, 100 Nev. 352, 354, 683 P.2d 17, 19 (1984);
Robert E. v. Justice Court, 99 Nev. 443, 664 P.2d 957 (1983).
Both parties focus their arguments on the interpretation of NRS 241.030(1), which states:
Nothing contained in this chapter prevents a public body from holding a closed meeting to
consider the character, alleged misconduct, professional competence, or physical or mental
health of a person. (Emphasis supplied.) The Attorney General claims this section must be
construed literally, so that the four things that may be considered in a closed meeting are
exclusive. Further, the word consider as used in the statute, means just that, to think about,
but not to decide. See Black's Law Dictionary 378 (4th ed. 1968); Webster's Seventh
Collegiate Dictionary 177-178 (1969 ed.). Consequently, the Attorney General claims the
Board was authorized only to consider the city manager's character, alleged misconduct,
professional competence or physical or mental health in a closed session, but not authorized
to make the decision to terminate him. This decision could only properly be made in an open
meeting.
____________________
given at least 3 working days before the meeting. The notice shall include the time, place, location and
agenda of the meeting.
3. Minimum public notice is:
(a) A copy of the notice posted at the principal office of the public body, or if there is no principal
office, at the building in which the meeting is to be held, and at least three other separate, prominent
places within the jurisdiction of the public body; and
(b) Mailing a copy of the notice to any person who has requested notice of the meetings of the body in
the same manner in which notice is required to be mailed to a member of the body. A request for notice
lapses 6 months after it is made. The public body shall inform the requester of this fact by enclosure with
or notation upon the first notice sent.

6
See footnote 3, ante.
Carson City argues that the plain meaning of consider necessarily includes decision
making, citing Webster's New World Dictionary (Second College Edition) and the American
Heritage Dictionary of the English Language. Further, the word consider should be
construed in a common sense fashion. To allow a public body to conduct closed discussions
of a person's character, alleged misconduct, professional competence, or physical or mental
health, and then to require that the decision to terminate that person be made in public session
offends common sense.
Carson City relies heavily on decisions from foreign jurisdictions to support its position
regarding the plain meaning of consider as used in NRS 241.030(1). E.g., Lucas v. Board of
Trustees, 96 Cal.Rptr. 431 (Cal.Ct.App. 1971); Jeske v. Upper Yoder Township, 403 A.2d
1010 (Pa.Commw.Ct. 1979); Roth v. Borough of Verona, 460 A.2d 379 (Pa.Commw.Ct.
1983). The district court also relied on these decisions in its conclusions of law. However, the
courts in these cases were construing their own open meeting laws, which are similar, but not
identical, to the Nevada Open Meeting Law. Each of these jurisdictions requires open
meetings, with certain enumerated exemptions, but each also expressly allows closed session
consideration of termination or dismissal of a public employee. See Cal. Gov. Code 54957
(West 1983); Pa. Stat. Ann. title 65, 263 (Purdon 1986); See also Wis. Stat. Ann. 19.85
(West 1986). Because the open meeting laws of California, Pennsylvania and Wisconsin
expressly allow closed session consideration of termination or dismissal, and the Nevada
Open Meeting Law does not, the district court erred in relying on foreign cases construing the
word consider as used in those statutes.
[Headnotes 2, 3]
From the foregoing, it is apparent that both parties present fairly persuasive arguments for
the construction of the word consider as used in NRS 241.030(1). Where a statute is
capable of being understood in two or more senses by reasonably informed persons, the
statute is ambiguous. Robert E. v. Justice Court, supra, 99 Nev. at 445. Since either of the
interpretations proffered by the parties can reasonably be drawn from the language of the
statute at issue here, it can be said the statute is ambiguous and the plain meaning rule has no
application. Thompson v. District Court, supra, 100 Nev. at 354. An ambiguous statute can
be construed in line with what reason and public policy would indicate the legislature
intended. Robert E., 99 Nev. at 445. The effect of the 1977 amendments to NRS 241.030
provides some guidance as to the legislature's intent.
2. Effect of 1977 Amendments.
NRS 241.030, as originally enacted,
7
expressly allowed a public body to consider
appointment, employment or dismissal of public officers or employees in closed session. In
1977 the legislature amended the statute to its present form, and deleted the express provision
allowing appointment, employment or dismissal in closed session. 1977 Nev. Stat. 1100. The
statute now allows consideration of a person's character, alleged misconduct, professional
competence or physical or mental health. NRS 241.030(1). Subsection (3)(e) of the statute
expressly prohibits the appointment of a person in closed session. Employment and
dismissal are no longer expressly mentioned in the statute.
[Headnotes 4-6]
Where a statute is amended, provisions of the former statute omitted from the amended
statute are repealed. City of Reno v. Stoddard, 40 Nev. 537, 543, 167 P. 317, 318 (1917);
Cawley v. Pershing County, 50 Nev. 237, 255 P. 1073 (1927). It is ordinarily presumed that
the legislature, by deleting an express portion of a law, intended a substantial change in the
law. Crane, Hastings & Co. v. Gloster, 13 Nev. 279, 280-281 (1878); accord, Brousseau v.
Fitzgerald, 675 P.2d 713 (Ariz. 1984); People v. Dillon, 668 P.2d 697 (Cal. 1983). These
rules of statutory construction demonstrate that the legislature intended to require open
meetings for the decision to terminate a public employee, because the legislature deleted the
former provision of the statute which expressly allowed termination in closed session.
3. Legislative Intent.
[Headnotes 7, 8]
The leading rule of statutory construction is to ascertain the intent of the legislature in
enacting the statute. City of Las Vegas v. Macchiaverna, 99 Nev. 256, 257, 661 P.2d 879, 880
(1983). This intent will prevail over the literal sense of the words. Id. at 257-258. The
meaning of the words used may be determined by examining the context and the spirit of the
law or the causes which induced the legislature to enact it. Id. The entire subject matter
and policy may be involved as an interpretive aid. Id.
When these rules of statutory construction are considered along with the language of the
statute and the effect of the 1977 amendments, the intention of the legislature is clear.
____________________

7
NRS 241.030 originally provided:
Nothing contained in this chapter shall be construed to prevent the legislative body of a public
agency, commission, bureau, department, public corporation, municipal corporation, quasi-municipal
corporation or political subdivision from holding executive sessions to consider the appointment,
employment or dismissal of a public officer or employee or to hear complaints or charges brought against
such officer or employee by another public officer, person or employee unless such officer or employee
requests a public hearing. The legislative body also may exclude from any such public or private meeting,
during the examination of a witness, any or all other witnesses in the matter being investigated by the
legislative body.
(Added to NRS by 1960, 25) (emphasis added).
which induced the legislature to enact it. Id. The entire subject matter and policy may be
involved as an interpretive aid. Id.
When these rules of statutory construction are considered along with the language of the
statute and the effect of the 1977 amendments, the intention of the legislature is clear. The
spirit and policy behind NRS chapter 241 favors open meetings. NRS 241.010 states that it is
the intent of the law that the actions and deliberations of public bodies be taken openly. NRS
241.020 mandates open meetings unless otherwise specified by statute, and NRS 241.030
delineates the statutory exceptions. The fact that closed session consideration of dismissal or
termination was expressly deleted by the 1977 amendment to NRS 241.030 is significant
evidence that the legislature did not intend to allow a termination decision to be conducted in
a closed meeting.
We conclude a strict reading of the statute is more in keeping with the policy favoring
open meetings expressed in NRS chapter 241 and the spirit of the Open Meeting Law. Open
meetings are the rule in Nevada so the statute which states the exceptions must be strictly
construed. Requiring a public body to make its decision in open meetings whenever possible
is in keeping with the spirit of open meeting laws, the so-called sunshine laws. See Roth v.
Borough of Verona, supra, 460 A.2d at 381, n. 5. Allowing public bodies to consider a
person's character, alleged misconduct, professional competence or physical or mental health
in closed session protects the person's need for confidentiality in such matters. Requiring the
public body to make the decision whether to terminate or dismiss an employee after
confidential consideration protects the public's need for the public body's actions to be
conducted openly.
[Headnote 9]
The district court erred in ruling that the Board could terminate the city manager in closed
session without violating the Nevada Open Meeting Law. The action of any public body
taken in violation of any provision of this chapter is void. NRS 241.036. We hold that the
action of the Board terminating the city manager in closed session on August 13, 1985,
violated the open meeting requirement of NRS 241.020 and is not within any of the
exceptions to this requirement contained in NRS 241.030, and is therefore void. Accordingly,
we reverse the order of the district court granting summary judgment.
Mowbray, C. J., and Springer, Gunderson and Steffen, JJ., concur.
____________
102 Nev. 652, 652 (1986) Tomlinson v. Tomlinson
ROSEMARY E. TOMLINSON, Appellant, v. ROBERT
C. TOMLINSON, Respondent.
No. 17000
December 30, 1986 729 P.2d 1363
Appeal from dismissal for lack of jurisdiction or in the alternative, res judicata. Eighth
Judicial District Court, Clark County; Michael J. Wendell, Judge.
Ex-wife filed complaint seeking proportion of ex-husband's gross military retirement, and
the district court dismissed for lack of jurisdiction, or in alternative, due to res judicata.
Ex-wife appealed. The Supreme Court, Young, J., held that: (1) Uniformed Services Former
Spouses Protection Act did not allow Nevada court to divide former spouse's military pension
benefits which were not mentioned in previously entered Michigan divorce decree, and (2)
ex-wife was precluded by doctrine of res judicata from asserting such entitlement.
Affirmed.
LePome, Willick, & Associates, Las Vegas, for Appellant.
Dickerson, Dickerson, & Lieberman, Las Vegas, for Respondent.
1. Divorce.
Uniformed Services Former Spouses Protection Act did not allow Nevada court to divide wife's former
spouse's military benefits not mentioned in previously entered Michigan divorce decree. 10 U.S.C.A.
1401-1408, 1408(c)(1).
2. Divorce.
Under Nevada Law, ex-wife's rights to ex-husband's military pension would be determined by laws of
Michigan, which was marital domicile at time of divorce.
3. Divorce.
Ex-wife could not assert right to portion of ex-husband's military pension not mentioned in judgment of
divorce, which made award for alimony and child support, under doctrine of res judicata.
OPINION
Robert Tomlinson entered the military in 1941 and married Rosemary December 30, 1946.
Rosemary was granted a divorce from Robert by a Michigan court on December 22, 1971.
The judgment of divorce made an award for alimony and child support, and provided for a
distribution of property.
port, and provided for a distribution of property. However, the decree did not mention
Robert's military pension.
In October 1985, Rosemary filed a complaint seeking 41 percent of Robert's gross military
retirement. The district court dismissed Rosemary's complaint pursuant to Robert's motion to
dismiss. The court held that if Rosemary was basing her claim upon the Uniformed Services
Former Spouses Protection Act, 10 U.S.C. 1401-1408, 1408 (1982) (USFSPA), the court
lacked subject matter jurisdiction. The court further concluded that if Rosemary was claiming
a portion of Robert's military pension, she was barred by res judicata and the statute of
limitations because the judgment of divorce was final and conclusive as to her claim to
Robert's military retirement pay. For the reasons expressed below, we affirm the lower court's
dismissal.
[Headnote 1]
Rosemary's contention that the USFSPA allows a Nevada court to divide her former
spouse's military pension benefits which were not mentioned in their 1971 Michigan divorce
decree is without merit. On June 26, 1981, the U.S. Supreme Court decision McCarty v.
McCarty, 453 U.S. 210 (1981) held that a state court could not order a division of
non-disability retired pay as part of a distribution of community property incident to a divorce
proceeding. Congress reversed the effect of McCarty by enacting 10 U.S.C. 1408 (1982),
which permits state courts to divide military benefits payable after June 25, 1981, as separate
or community property in accordance with the laws of the jurisdiction in which the court sits.
10 U.S.C. 1408(c)(1) (1982). Congress intended the legislation to place the courts in the
same position that they were in on June 26, 1981, the date of the McCarty decision, with
respect to treatment of non-disability military retired or retainer pay. S. Rep. No. 97-502,
97th Cong., 2d Sess., reprinted in 1982 U.S. Code Cong. & Ad. News 1596, 1611. Nothing in
the federal statute or legislative history, however, indicates that Congress intended 10 U.S.C.
1408 (1982) to create new rights in spouses to alter final decrees issued prior to McCarty.
Thus, Rosemary's right to a portion of Robert's military benefits is the same now as it was
before McCarty or the enactment of the USFSPA.
[Headnote 2]
Under Nevada law, Rosemary's rights to Robert's military pension would be determined by
the laws of Michigan, the marital domicile at the time of the divorce. See Wicker v. Wicker,
85 Nev. 141, 143, 451 P.2d 715, 716 (1969). Michigan is an equitable distribution state
which allows a court discretion in dividing the marital assets. Patrick v. Patrick, 297 N.W.2d
635 (Mich.App. 1980). Michigan allows military benefits to be included in the marital
assets, but did not decide the issue until 197S, six years after the divorce.
included in the marital assets, but did not decide the issue until 1978, six years after the
divorce. Chisnell v. Chisnell, 267 N.W.2d 155 (Mich.App. 1978). Current Michigan law
provides that military pensions should be considered as marital assets and may be
divided.The fact that a pension is susceptible to division, however, does not mean that it must
be divided. Keen v. Keen, 378 N.W.2d 612, 614 (Mich.App. 1985).
[Headnote 3]
The doctrine of res judicata operates to prevent the relitigation of facts and law between
the same parties or their privies. Socialist Workers Party v. Secretary of State, 317 N.W.2d 1
(Mich. 1982). The doctrine applies to bar not only issues previously litigated and decided, but
also matters which might have been presented in the first action but were not. McGinn v.
McGinn, 337 N.W.2d 632, 634 (Mich.App. 1983). The 1971 divorce decree provided for
alimony and child support, and for the division and distribution of property owned by the
parties. It is unclear whether Robert's military pension was considered or neglected.
Nevertheless, both parties were represented by counsel and were not precluded from
challenging this omission on a direct appeal at that time. The 1971 property settlement was
not contested as being inequitable then, and it seems unlikely it would be so now. We hold
that because Rosemary failed to raise this issue in 1971, she is precluded by the doctrine of
res judicata from subsequently raising it in 1986. York v.York, 99 Nev. 491, 664 P.2d 967
(1983). Accordingly, we affirm the decision of the district court dismissing Rosemary's
complaint.
Mowbray, C.J., and Springer, Gunderson, and Steffen, JJ. concur.
____________
102 Nev. 654, 654 (1986) Clark County Liquor v. Clark
CLARK COUNTY LIQUOR AND GAMING LICENSING BOARD, Appellant, v.
MILDRED P. CLARK dba SKY CLUB, Respondent.
No. 16896
December 31, 1986 730 P.2d 443
Appeal from order remanding case to county board and requiring the board grant
discovery. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Bar owner sought judicial review of county's revocation of her liquor license. The district
court ordered county liquor and gaming licensing board to grant owner discovery, and board
appealed.
appealed. The Supreme Court held that: (1) order remanding case for discovery was not
appealable; (2) Supreme Court would treat appeal as petition for writ of mandamus; (3)
district court had authority to remand matter for purpose of receiving further evidence; and
(4) court would not issue writ of mandamus against district court's order.
Appeal treated as petition for mandamus, and denied.
Robert J. Miller, District Attorney; S. Mahlon Edwards, Deputy District Attorney, Clark
Moran & Weinstock, Las Vegas, for Respondent.
District court order remanding case to administrative body to grant party discovery of certain records was
not appealable.
No appeal lies except when authorized by statute.
3. Mandamus.
Although county administrative body had no right of appeal from district court order remanding case to
body to permit discovery of certain records, Supreme Court would treat attempted appeal as valid petition
for writ of mandamus; Court had previously indicated that body could appeal.
4. Mandamus.
Writ of mandamus may be issued by Supreme Court to compel performance of act which law requires as
duty resulting from office, trust, or station. NRS 34.160.
District court has very broad supervisory powers to ensure that all relevant evidence is examined and
considered by administrative body. NRS 233B.140, subd. 3.
6. Administrative Law and Procedure; Counties.
Administrative Procedure Act does not apply to review of county board actions. NRS 233B.010 et
seq.
Review of local agency action is by extraordinary writ.
8. Intoxicating Liquors.
District court reviewing county board's revocation of liquor license had authority to remand case to
county board for purpose of receiving further evidence.
9. Mandamus.
Mandamus is extraordinary remedy, and whether petition will be entertained lies within discretion of
Supreme Court.
10. Mandamus.
Generally, extraordinary writs are not available to review discovery orders.
11. Mandamus.
Supreme Court would not issue writ of mandamus precluding district court from remanding case to
county board, which had revoked liquor license, to permit licenseholder discovery as to police contacts
with other bars in area; order did not require disclosure of privileged information,
records sought were directly relevant to board's finding that licenseholder's bar was
site of more disturbances than all other bars in area combined, and board was able to
comply with order regardless of whether it had subpoena power.
with other bars in area; order did not require disclosure of privileged information, records sought were
directly relevant to board's finding that licenseholder's bar was site of more disturbances than all other bars
in area combined, and board was able to comply with order regardless of whether it had subpoena power.
OPINION
Per Curiam:
The Clark County Liquor and Gaming Licensing Board revoked the licenses to the Sky
Club, whose owner, Mildred Clark, then petitioned for judicial review. The district court
remanded the case to the board for rehearing, ordering it to grant Clark discovery and to
rehear issues in light thereof. The Board appeals.
The Sky Club, outside of Las Vegas near Nellis Air Force Base, is one of the largest bars
in what police call the George area of Clark County. Its clientele consists mostly of young
airmen. Mildred Clark, its proprietor, is a 78-year-old woman who lives on the premises. Ms.
Clark has held a tavern and package liquor license for 20 years and has never previously been
cited for any violation of county liquor ordinances.
The Board's complaint is partially based on an incident involving Carlos Daniel Montez,
an airman who was 20 years and 5 months old. The night of his arrest, Montez told police he
had visited the Sky Club after consuming a six-pack of beer obtained on the Air Base. He
claimed the Sky Club neglected to check his identification and served him four mixed drinks.
On October 30, 1984, the Board issued a complaint alleging that Ms. Clark had allowed
the Sky Club to become a disorderly house and a public nuisance. In addition to mentioning
the Montez incident, the complaint implied that the Sky Club was the scene of a large number
of problems occupying an inordinate amount of police time. Specifically, the complaint stated
police spent over 90 hours on 141 peace disturbing incidents and an unknown number of bar
checks in 1983.
1

Ms. Clark sought discovery of documents relating to the complaint, and information about
police contacts with other bars in the "George area" during the same period.
____________________

1
The alleged incidents included 42 disturbances, 24 fights, 9 intoxicated persons, 2 rapes, 5 persons with
guns, and 1 person with a knife. For the first seven months of 1984, the complaint alleged police spent over 71
hours at the Sky Club on bar checks and 28 disturbances, 9 fights, 4 intoxicated persons and 3 persons with
guns. We note that a number of these alleged incidents, e.g. fights and rapes, most likely took place outside the
Sky Club itself. As to others, e.g. those involving spontaneous disturbances among the young patrons and
carrying concealed weapons, blame likewise arguably can be but tenuously related to the Sky Club's owner.
the George area during the same period. She served the Board with a request for production
pursuant to NRCP 34. The district attorney objected that NRCP 34 did not apply to Board
proceedings. Ms. Clark then sought issuance of a subpoena duces tecum directed to the
Director of the Department of Business Licenses. She invoked Clark County Code section
8.08.080, now repealed, which provided the board shall issue subpoenas and subpoenas
duces tecum at the request of a party. Despite the ordinance, the Board refused to issue the
subpoena, based on a district attorney's claim that it had no authority. Ms. Clark's attorney
finally signed the subpoena himself and served it, to no avail.
At the evidentiary hearing, a police officer characterized the Sky Club as where all the
trouble was at. Four officers testified there were more calls at the Sky Club than at all the
other clubs in the area combined. Apparently, Ms. Clark had not hesitated to call police at any
hint of a problem, because they had in fact encouraged her to do so. Nonetheless, while
admitting they encouraged bar keepers to call rather than resort to self-help, several officers
nonetheless complained Ms. Clark would call them to eject customers they felt she should
have attempted to eject herself. Some police also complained she sometimes called them, but
then cancelled her request when intervention became unnecessary.(We are not at all sure how
such evidence is thought to support the complaint against her.) Ms. Clark's calls are reflected
in the statistics mentioned in the complaint.
The computer analyst who compiled the report culled his numbers from dispatch
information. He admitted he did not know whether the reported activity had actually
occurred, and he could not determine the origin of the calls. Questioned about the number of
hours police spent at the Sky Club, he explained the figures referred to man hours, time
spent by each officer, and included travel time to the scene, plus an undetermined number of
routine bar checks made by officers on their own initiative. Time spent on actual problems
could not be determined from the data. The analyst, who had never compiled similar data on a
bar, did not know if his report indicated excessive problems.
The Board revoked Ms. Clark's licenses finding that the Sky Club had served Mr. Montez,
that an unnamed minor had been admitted to the club in 1983, and that the Sky Club had
more peace disturbing incidents than all the other 26 bars in the area combined. To support
the latter, critical finding, the record contains no quantitive comparative data whatsoever. Ms.
Clark then petitioned for judicial review. The district court remanded the case, ordering the
Board to grant discovery.
[Headnotes 1-3]
First, we note the order of the district court is not appealable.
No appeal lies except when authorized by statute. Jarstad v. National Farmer's Union, 92
Nev. 380, 383, 552 P.2d 49, 51 (1976); Bates v. Nevada Savings and Loan Association, 85
Nev. 441, 443, 456 P.2d 450, 451 (1969); Johns-Manville, Inc. v. Lander County, 48 Nev.
244, 246, 229 P. 387 (1924). There is no statute authorizing appeal from an order remanding
a case to an administrative body. Neither is the decision appealable as a final order. United
Association Journeymen v. District Court, 82 Nev. 103, 107, 412 P.2d 352, 354-355 (1966).
However, the actions of the district court may be challenged by petition for writ of
mandamus, and we shall treat this appeal as a petition for mandamus since it would be unfair
to do otherwise in light of our previous order indicating the Board could appeal.
2
See Jarstad
v. National Farmer's Union, supra, 92 Nev. at 384, 552 P.2d at 51.
[Headnote 4]
A writ of mandamus may be issued by this court to compel the performance of an act
which the law requires as a duty resulting from an office, trust or station. NRS 34.160. The
Board contends the district court's sole function in reviewing the actions of county boards is
to determine whether administrative action is arbitrary and capricious or supported by
substantial evidence. It argues the court has no discretion to remand the case for the taking of
further evidence. We disagree.
[Headnotes 5-8]
The Administrative Procedure Act expressly authorizes remand to state agencies for the
taking of further evidence. NRS 233B.140(3). The district court has very broad supervisory
powers to insure that all relevant evidence is examined and considered. Nevada Industrial
Commission v. Reese, 93 Nev. 115, 126, 560 P.2d 1352, 1358 (1977). We recognize the
Administrative Procedure Act does not apply to review of county board actions. Washington
v. Clark County, 100 Nev. 425, 428, 683 P.2d 31, 33 (1984). Review of local agency action is
by extraordinary writ. Id. However, absence of specific statutory authority to remand does not
deprive the court of its traditional equitable powers. The federal courts have long recognized
equitable power to remand cases for further administrative proceedings where justice
demands that course in order that some defect in the record be supplied. Ford Motor
Company v. National Labor Relations Board, 305 U.S. 364, 373 (1939). The court's equitable
powers were not displaced by enactment of the Federal Administrative Procedure Act. See
Mobil Oil Corporation v. Federal Power Commission, 417 U.S. 283, 311 (1974); Jicarella
Apache Tribe v. Andrews, 687 F.2d 1324, 1333 (10th Cir. 1982); Sharon Steel Corporation
v. Environmental Protection Agency, 597 F.2d 377, 3S1 {3d Cir.
____________________

2
Incorrectly noting the remedy of appeal was available, we previously denied the Board's petition for writs of
mandamus and prohibition.
Steel Corporation v. Environmental Protection Agency, 597 F.2d 377, 381 (3d Cir. 1979);
Sindicato Puertorriqueno de Trabajadores, 448 F.2d 1161, 1170 (D.C.Cir. 1971). Likewise,
we do not discern that the Nevada Administrative Procedure Act was intended to deny the
district courts traditional equitable power to remand a case to a local board for taking of
further evidence, when information that may be vital to the board's decision was withheld
despite the existence of an ordinance affording discovery. It is clear that the district court had
discretion to remand the matter for the purpose of receiving further evidence.
However, the Board also contends it was improperly ordered to grant discovery because
there is no constitutional or statutory right to discovery in county administrative proceedings
and because the Board has no subpoena power.
3

[Headnote 9]
Preliminarily, we note that mandamus is an extraordinary remedy and whether a petition
will be entertained lies within the discretion of this court. State ex rel. Department of
Transportation v.Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983). In Thompson,
supra, we posed the question whether sound judicial administration justified this court's
exercise of its discretion to entertain mandamus in a certain context. Id. at 360-361, 662 P.2d
at 1340. We concluded judicial economy and sound judicial administration militated against
exercising our discretion to review orders denying motions to dismiss and motions for
summary judgment by writ. The same policy led this court to deny writ review of a pretrial
probable cause determination in Kussman v. District Court, 96 Nev. 544, 612 P.2d 679
(1980). With these considerations in mind, we approach whether intervention by
extraordinary writ is justified under the circumstances of this case.
[Headnote 10]
Generally, extraordinary writs are not available to review discovery orders. Franklin v.
District Court, 85 Nev. 401, 455 P.2d 919 (1969); Mears v. State, 83 Nev. 3, 422 P.2d 230
(1967); Pinana v. District Court, 75 Nev. 74, 334 P.2d 843 (1959). Writs have issued to
prevent improper discovery in two situations where disclosure would cause irreparable injury.
Mandamus has been granted when the trial court issues blanket discovery orders without
regard to relevance. Clark v. District Court, 101 Nev. 58, 692 P.2d 512 (1985); Schlatter v.
District Court, 93 Nev. 189, 561 P.2d 1342 (1977). Relief has also been given when the
discovery order requires disclosure of privileged information.
____________________

3
The Board contends Clark County Code section 8.08.080 was invalid in light of our decision in Andrews v.
Nevada State Board of Cosmetology, 86 Nev. 207, 467 P.2d 96 (1970).
Clark v. District Court, supra; State ex rel. Tidvall v. District Court, 91 Nev. 520, 539 P.2d
456 (1975). However, this court has denied the writ when petitioner only claimed, as in this
case, that there was to right to the discovery ordered by the district court. Franklin v. District
Court, supra, 85 Nev. 401, 455 P.2d 919. In Franklin, the district court ordered discovery of
prosecution witnesses' statements although there was no constitutional or statutory right to
discovery. This court declined to issue the writ because appeal was an adequate remedy.
[Headnote 11]
The Board has failed to show any circumstances that justify departure from our usual
policy of declining to review discovery orders by extraordinary writ. The order does not
require disclosure of privileged or irrelevant information. Ms. Clark seeks specific
non-confidential data directly relevant to the Board's finding that the Sky Club was the site of
more disturbances than all the other 26 bars in the area combined. The Board's concern about
cost is assuaged by her counsel's offer that Ms. Clark will pay the cost. The order is further
consistent with Clark County Code section 8.08.080 which then provided a right to discovery.
We need not determine if the ordinance was valid because the Board is able to comply with
this particular order regardless of whether it has subpoena power. Ms. Clark sought access to
the information through the Director of the Department of Business Licenses. The Board has
the power to direct the Department to provide discovery. See Clark County Code section
2.03.020(k).
For the reasons noted, we decline to issue a writ of mandamus.
____________

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