Nevada Reports 1980 (96 Nev.) PDF

96 Nev.
1, 1 (1980)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
___________
Volume 96
____________
96 Nev. 1, 1 (1980) Williams v. New York Meat & Provisions
CLAY W. WILLIAMS, Appellant, v. NEW YORK MEAT & PROVISIONS, INC., a Nevada
Corporation, and INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL 14,
Respondents.
No. 10293
January 3, 1980 604 P.2d 357
Appeal from judgments of dismissal, Eighth Judicial District Court, Clark County; Keith
C. Hayes, Judge.
Discharged employee filed complaint seeking to recover damages from his former
employer and union. The district court dismissed and the plaintiff appealed. The Supreme
Court held that plaintiff did not demonstrate that lower court erred in dismissing complaint
based on alleged partiality in arbitration of grievance.
Affirmed.
Neil R. Slocum, Las Vegas, for Appellant.
Morton R. Galane, Las Vegas, for Respondent New York Meat.
Leonard I. Gang, Las Vegas, for Respondent Teamsters 14.
1. Appeal and Error.
On appeal, it is presumed that no error was committed by lower court in dismissing complaint.
Appellant did not demonstrate that lower court erred in dismissing complaint seeking to recover money
damages from appellant's former employer and his union for alleged partiality in arbitration of grievance
based on discharge. NRS 38.015 et seq., 38.035, 38.145, 38.145, subds. 1, 2.
OPINION
Per Curiam:
Appellant filed a complaint in the court below seeking to recover money damages from
respondent New York Meat & Provisions, Inc., and respondent International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 14.
Appellant was employed by New York Meat & Provisions, Inc., until October 15, 1976,
when he was discharged. It is alleged that appellant sought arbitration under the contract
between the employer and the union.
1
Christ N. Karamanos was selected as the third and
disinterested member of the arbitration committee. Karamanos upheld the discharge on
January 31, 1977. Appellant did not move to vacate the award. He filed the instant action on
May 2, 1977, seeking to recover money damages from his former employer, the union, and
the arbitrator.
Appellant alleged in his complaint that the employer wrongfully discharged him; that the
union representative failed to select an impartial arbitrator as contemplated by the contract;
and, that the arbitrator had business interests in firms which purchased provisions from the
employer and thus was not an impartial arbitrator.
2

On July 26, 1977, the lower court dismissed appellant's complaint as to the respondent
employer and respondent union, finding that appellant had failed to comply with NRS
3S.145.3 Chapter 3S, Nev. Rev. Stats., known as the Uniform Arbitration Act, applies to
matters submitted to arbitration by written agreement or contract between employers
and employees or between their respective representatives unless otherwise provided in
the agreement.
____________________

1
The contract between employer and union providing for arbitration of grievances has not been provided to
this court.

2
The lower court dismissed the arbitrator from the action. The appeal was dismissed May 16, 1979.
finding that appellant had failed to comply with NRS 38.145.
3
Chapter 38, Nev. Rev. Stats.,
known as the Uniform Arbitration Act, applies to matters submitted to arbitration by written
agreement or contract between employers and employees or between their respective
representatives unless otherwise provided in the agreement. NRS 38.035.
Appellant has never suggested that Ch. 38, Nev. Rev. Stats., does not apply to this case.
Appellant's arguments on appeal centered on the alleged partiality of the arbitration.
Cases cited by appellant are cases in which the aggrieved party sought to disqualify the
arbitrator or to vacate the award. None can be read to support plaintiff's claims for money
damages against the union or employer.
[Headnotes 1, 2]
The presumption is that no error was committed by the lower court in dismissing the
complaint. A Minor v. State, 85 Nev. 323, 454 P.2d 895 (1969). Inasmuch as appellant has
not demonstrated that the lower court erred in ruling as it did, the judgment of dismissal is
affirmed.
____________________

3
NRS 38.145(1) and (2) reads:
1. Upon application of a party, the court shall vacate an award where:
(a) The award was procured by corruption, fraud or other undue means;
(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the
arbitrators or misconduct substantially prejudicing the rights of any party;
(c) The arbitrators exceeded their powers;
(d) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or
refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to
the provisions of NRS 38.075, as to prejudice substantially the rights of a party; or
(e) There was no arbitration agreement and the issue was not adversely determined in proceedings
under NRS 38.045 and the party did not participate in the arbitration hearing without raising the
objection.
But the fact that the relief was such that it could not or would not be granted by a court of law or
equity is not ground for vacating or refusing to confirm the award.
2. An application under this section shall be made within 90 days after delivery of a copy of the
award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be
made within 90 days after such grounds are known or should have been known.
____________
96 Nev. 4, 4 (1980) Foster v. District Court
DANNY FOSTER, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA, IN AND FOR THE COUNTY OF CLARK, DEPARTMENT IX, and THE
HONORABLE KEITH C. HAYES, Judge, Respondent.
No. 12299
January 3, 1980 604 P.2d 359
Original petition for writ of prohibition was filed based on contention that the district court
was exceeding its jurisdiction in setting a trial date for petitioner because the crime with
which petitioner was charged was a misdemeanor. The Supreme Court held that: (1) the
district court's failure to file an answer against issuance of the writ would be treated as a
confession of error, and (2) petitioner was entitled to a writ of prohibition directing the
district court to dismiss the misdemeanor charge.
Writ granted.
Skupa and Mainor, Las Vegas, for Petitioner.
Robert J. Miller, District Attorney, Clark County, for Respondents.
1. Prohibition.
Petitioner, who was charged with a misdemeanor, was entitled to a writ of prohibition requiring the
district court to dismiss the pending charge as not within the district court's jurisdiction. NRS 4.370,
202.290; NRAP 21(b).
2. Prohibition.
Where district court did not file any answer against issuance of writ prohibiting it from proceeding further
in misdemeanor prosecution, the Supreme Court would treat the court's failure to file the answer as a
confession of error. NRAP 21(b).
OPINION
Per Curiam:
[Headnote 1]
Danny Foster has filed an original petition for a writ of prohibition contending that the
respondent district court is exceeding its jurisdiction in setting a trial date for him on a charge
of illegally discharging a firearm because the crime with which he is charged in the
information is a misdemeanor1, and only the justice's court has jurisdiction over
misdemeanors.2
96 Nev. 4, 5 (1980) Foster v. District Court
is charged in the information is a misdemeanor
1
, and only the justice's court has jurisdiction
over misdemeanors.
2

[Headnote 2]
Pursuant to NRAP 21(b), this court ordered respondent district court to file an answer
against issuance of the writ on or before December 19, 1979. The order was served on the
chief judge of the Eighth Judicial District Court and the Clark County District Attorney on
December 11, 1979. However, no answer has yet been filed. We therefore elect to treat
respondents' failure to file the answer as a confession of error. See Summa Corp. v. Brooks
Rent-A-Car, 95 Nev. 779, 602 P.2d 192 (1979); State ex rel. Isbell v. Kelso, 442 S.W.2d 163
(Mo.App. 1969).
Accordingly, a writ of prohibition shall issue requiring respondents to dismiss all charges
pending against Foster in the district court in case No. C46635.
____________________

1
NRS 202.290 provides:
Every person who shall aim any gun, pistol, revolver or other firearm, whether loaded or not, at or
toward any human being, or who shall willfully discharge any firearm, air gun or another weapon, or
throw any deadly missile in a public place, or in any place where any person might be endangered
thereby, although no injury result, shall be guilty of a misdemeanor.

2
NRS 4.370 provides in part:
3. Justices' courts shall have jurisdiction of the following public offenses, committed within the
respective counties in which courts are established:
. . . .
(c) . . . [A]ll misdemeanors punishable by fine not exceeding $500, or imprisonment not exceeding 6
months, or by both such fine and imprisonment.
______________
96 Nev. 5, 5 (1980) Sheriff v. Vasile
SHERIFF, WASHOE COUNTY, NEVADA, Appellant,
v. THOMAS GENE VASILE, Respondent.
No. 12195
January 3, 1980 604 P.2d 809
Appeal from order granting pretrial petition for writ of habeas corpus, Second Judicial
District Court, Washoe County; Peter I. Breen, Judge.
Defendant was charged with sale of a controlled substance. The district court granted a
pretrial writ of habeas corpus and dismissed all charges, and State appealed. The Supreme
Court held that defendant was entitled to habeas corpus relief where magistrate refused
at preliminary examination to require disclosure of informant who set up and witnessed
transaction which led to criminal charges.
held that defendant was entitled to habeas corpus relief where magistrate refused at
preliminary examination to require disclosure of informant who set up and witnessed
transaction which led to criminal charges.
Affirmed.
Richard H. Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney,
and R. Craig Lusiani, Deputy District Attorney, Washoe County, for Appellant.
C. Frederick Pinkerton, Reno, for Respondent.
1. Criminal Law.
State's privilege to refuse disclosure of identity of informant is not unlimited; where there is reasonable
probability that informant can give testimony necessary to fair determination of issue of guilt or innocence,
state's claim of privilege may result in a dismissal. NRS 49.365.
2. Criminal Law; Habeas Corpus.
Accused at preliminary examination has right to cross-examine witnesses against him and to introduce
evidence in his own behalf; writ of habeas corpus is appropriate remedy for denial of such right. NRS
171.196, subd. 4.
3. Criminal Law.
Identity of an informant need not be disclosed where he is not a material witness, because he can neither
supply information constituting a defense nor rebut a necessary element of an offense, NRS 49.365.
4. Habeas Corpus.
Defendant was entitled to habeas corpus relief where magistrate refused at preliminary examination to
require disclosure of informant who set up and witnessed transaction which led to criminal charges of sale
of controlled substance. NRS 49.365, 171.196, subd. 4, 453.321.
OPINION
Per Curiam:
Thomas Gene Vasile was charged with a violation of NRS 453.321, sale of a controlled
substance. A preliminary examination was held in the justice's court, and Vasile was bound
over to the district court. A timely petition for a pretrial writ of habeas corpus was granted by
the district court. The state appeals from the subsequent dismissal of all charges. We affirm.
At the preliminary examination, Reno police officer, John Douglas testified that he was
introduced to Vasile at a Reno hotel. Introduction was made by a person referred to by Officer
Douglas as a confidential informant.
After the informant introduced Officer Douglas to Vasile, all three individuals walked
together to the hotel parking lot.
three individuals walked together to the hotel parking lot. They got into an undercover police
car, and a marijuana sale purportedly took place between Vasile and Officer Douglas. As
Vasile got out of the car, Officer Douglas gave a prearranged signal to other officers in the
area, and Vasile was apprehended.
During cross examination of Officer Douglas at the preliminary examination, defense
counsel asked for the name of the person who introduced Officer Douglas to Vasile and who
was seated in the car during the purported marijuana sale. The prosecutor's objection, based
on the confidential informant privilege, NRS 49.335,
1
was sustained.
At the conclusion of the preliminary examination, defense counsel requested a dismissal of
the charges due to the impairment of Vasile's right to confront and cross examine witnesses,
especially with reference to the identity of the so-called confidential informant. The
magistrate did not expressly rule on the request for a dismissal. Instead, the magistrate
ordered Vasile to answer charges in the district court.
[Headnote 1]
The state's privilege to refuse disclosure of the identity of an informant is not unlimited.
Where there is a reasonable probability that the informant can give testimony necessary to a
fair determination of the issue of guilt or innocence, the state's claim of the privilege may
result in a dismissal. NRS 49.365.
2

[Headnote 2]
In addition, the accused at a preliminary examination has the right to cross examine
witnesses against him and to introduce evidence in his own behalf. NRS 171.196(4). Denial
of this right by the magistrate is error. See Routhier v. Sheriff, 93 Nev. 149, 560 P.2d 1371
(1977). Under such circumstances, a writ of habeas corpus is an appropriate remedy. See
Routhier v. Sheriff, supra.
In Routhier v. Sheriff, supra, the magistrate required a prosecution witness to divulge the
name of an informant who had set up and witnessed the transaction which led to criminal
charges.
____________________

1
The state or a political subdivision thereof has a privilege to refuse to disclose the identity of a
person who has furnished to a law enforcement officer information purporting to reveal the commission
of a crime.

2
If the state or a political subdivision elects not to disclose the identity of an informer and the
circumstances indicate a reasonable probability that the informer can give testimony necessary to a fair
determination of the issue of guilt or innocence, the judge shall on motion of the accused dismiss the
proceedings, and he may do so on his own motion.
charges. The magistrate, however, refused to grant a continuance to permit Routhier to call
and interrogate the witness. The refusal denied the accused his right to call and cross examine
witnesses under NRS 171.196(4), and the district court's denial of Routhier's petition for a
writ of habeas corpus was reversed.
[Headnote 3]
In the present case the magistrate refused to require disclosure of any information as to the
identity of the witness. The state contends, however, that the identity of the informant need
not have been disclosed because he was not a percipient witness.
3
The identity of an
informant need not be disclosed where he is not a material witness, because he can neither
supply information constituting a defense nor rebut a necessary element of an offense. Twigg
v. Sheriff, 95 Nev. 112, 590 P.2d 630 (1979); State v. Stiglitz, 94 Nev. 158, 576 P.2d 746
(1978).
[Headnote 4]
In Routhier v. Sheriff, supra, the informant set up and witnessed the transaction which led
to criminal charges. That was precisely the situation involved in the present case. The
informant here was seated in the undercover police car with Officer Douglas and Vasile. He
was apparently the only independent witness who could hear and see the transaction in
question. He was a material witness whose identity should have been disclosed. The
magistrate's refusal to require disclosure or dismiss the charges was error. Thus, the district
court correctly granted Vasile's habeas petition. NRS 171.196(4). See Routhier v. Sheriff,
supra.
In light of our ruling, it is not necessary to decide other grounds for dismissal raised in the
habeas petition.
Affirmed.
____________________

3
At the preliminary examination the prosecutor argued that the informer was not a percipient witness. Rather,
he was merely someone who was there at the time things went down. In opposition to the petition for a writ of
habeas corpus the state argued in District Court that the informant merely observed the transaction.
____________
96 Nev. 9, 9 (1980) Redd v. Brooke
ALAN E. REDD, Appellant, v. JAMES R. BROOKE, Administrator of the Estate of MARY
FRENCH CARON, aka MARY FRENCH REDD, Deceased, Respondent.
No. 10262
January 3, 1980 604 P.2d 360
Appeal from amended judgment confirming payment of insurance proceeds, Second
Judicial District Court, Washoe County; John W. Barrett, Judge.
Brother of former husband brought action against administrator of former wife's estate to
recover proceeds of life insurance policy under which the former wife was beneficiary and the
brother was contingent beneficiary. The district court entered judgment in favor of the
administrator, and appeal was taken. The Supreme Court held that there was no waiver or
relinquishment in decree of divorce of former wife's right to take as beneficiary under former
husband's policy of insurance where beneficiary designation under the policy remained
unchanged after the divorce, and the divorce decree did not include exclusive waiver or
relinquishment of right of wife to take as beneficiary.
Affirmed.
Cunningham & Williams, Chartered, Reno, for Appellant.
Frankie Sue Del Papa, Reno, for Respondent.
1. Insurance.
Beneficiary of ordinary life insurance policy is not affected by subsequent divorce where no attempt is
made to change beneficiary designation after the divorce and insured continues payments on policy.
2. Divorce.
Wife may contract away her right in insurance on husband's life where decree of divorce is obtained.
3. Abandoned and Lost Property; Assignments.
General expressions or clauses in an agreement are not to be construed as including assignment or
renunciation of expectancies.
4. Insurance.
A beneficiary retains status under policy if it does not clearly appear from divorce decree that, in addition
to segregation of their property, spouses intended to deprive either spouse from right to take under
insurance policies.
5. Insurance.
There was no waiver or relinquishment in decree of divorce of former wife's right to take as beneficiary
under former husband's policy of life insurance where beneficiary designation under the policy remained
unchanged after the divorce, and the divorce decree did not include exclusive waiver
or relinquishment of right to wife to take as beneficiary.
unchanged after the divorce, and the divorce decree did not include exclusive waiver or relinquishment of
right to wife to take as beneficiary.
6. Insurance.
Explicit language in divorce decree is required to divest former spouse of his or her rights as designated
beneficiary under life insurance policy of the other spouse.
OPINION
Per Curiam:
Wendell E. Redd died on May 21, 1976. His ex-wife, Mary French, survived him by only a
few minutes. Wendell Redd's brother, the contingent beneficiary of an insurance policy on his
life, sued the administrator of Mary's estate, to recover proceeds received pursuant to the
policy.
Alan Redd, the contingent beneficiary, asks this court to reverse a judgment in favor of
Mary's administrator, and to instruct a judgment in his favor. Appellant Redd contends that a
provision of a divorce decree terminated Mary's interest as named beneficiary, even though
Wendell had taken no steps to remove her as the policy's named beneficiary. The divorce
decree provided:
NOW, THEREFORE, by virtue of the law and the facts, IT IS HEREBY
ORDERED, ADJUDGED AND DECREED as follows:
1. That plaintiff, MARY FRENCH REDD, be, and she hereby is, given and granted
a final and absolute divorce from the defendant, WENDELL EDWARD REDD, upon
the ground that plaintiff and defendant are incompatible; said divorce to be in full force
and effect immediately, there being no provision in the laws of the State of Nevada for
interlocutory divorce, or restrictions on remarriage of either party.
2. That the oral agreement settling and determining the property rights of the parties
hereto is hereby confirmed, ratified and approved and made a part of this Decree of
Divorce, and the parties hereto are hereby ordered and directed to comply with its terms
which are as follows: . . .
That each party be awarded life insurance on his or her life.
[Headnote 1]
The general rule is that the rights of the beneficiary in an ordinary life insurance policy are
not affected by subsequent divorce, particularly where no attempt is made to change the
beneficiary after the divorce and the insured keeps up payments on the policy.
beneficiary after the divorce and the insured keeps up payments on the policy. 4 Couch on
Insurance 2d 27:111 (2 ed. 1960).
[Headnotes 2-4]
It is also the rule that a wife may contract away her rights in the insurance on the husband's
life when a decree of divorce is obtained. General expressions or clauses in an agreement are
not to be construed as including an assignment or renunciation of expectancies. The
beneficiary retains status under the policy if it does not clearly appear from the agreement
that, in addition to segregation of their property, the spouses intended to deprive either spouse
from the right to take under the insurance policy. 4 Couch Ins. 2d 27:114. Nevertheless, if
the language in the decree of divorce in this case could be construed as a waiver or
renunciation of Mary's right to take as Wendell's beneficiary, then arguably the trial court
erred in confirming the payment of the proceeds of the policy to Mary's estate. See Romero v.
Melendez, 498 P.2d 305 (N.M. 1972); Thorp v. Randazzo, 264 P.2d 38 (Cal. 1953).
The trial court concluded as follows:
. . . Mary and Wendell, by their oral property settlement agreement, did not intend to
waive any future rights, beneficial interests in insurance policies, or expectancies.
Further, Wendell Redd did not intend to remove Mary French Caron as beneficiary of
the Fidelity Union Life Insurance policy (No. 867663) and that defendant is entitled to
retain the proceeds of such policy and that plaintiff shall take nothing by his complaint.
The trial court relied upon a California case, Grimm v. Grimm, 157 P.2d 841 (Cal. 1945).
The trial court's findings are supported by the evidence and we fail to perceive any abuse of
the trial court's discretion. It is a simple matter to change a beneficiary on a policy after
divorce, just as it is a simple matter to include an explicit waiver or relinquishment of the
right of the beneficiary to take under the policy when the decree is drawn. Absent
unequivocal language or actions to support a finding of relinquishment or waiver by Mary,
we decline to speculate as to what the parties may have intended. The divorce decree settled
the community property interests of the parties awarding to each the ownership of the policy
on his or her life including any cash surrender value which may have accrued and the right to
name a new beneficiary.
[Headnotes 5-6]
We hold that there was no waiver or relinquishment in the decree of divorce of Mary's
right to take as beneficiary under Wendell's policy of insurance.
Wendell's policy of insurance. See Lincoln National Life Insurance Company v. Blight, 399
F.Supp. 513, 515 (E.D.Pa. 1975), aff'd, 538 F.2d 319 (3rd. Cir. 1976). Although a contrary
rule is urged by appellant, cf. Dudley v. Franklin Life Insurance Company, 440 P.2d 363 (Or.
1968) (applying California law), we are persuaded that this court should require explicit
language in a divorce decree to divest a former spouse of his or her rights as designated
beneficiary. We further note that in the Dudley agreement, the wife agreed to waive her rights
of succession and inheritance.
For reasons stated, we affirm.
____________
96 Nev. 12, 12 (1980) Love v. Wells
JON W. LOVE, Appellant, v. RICHARD WELLS and
REGINA DEAN, Respondent.
No. 11056
January 3, 1980 604 P.2d 362
Appeal from an order entered upon a third party claim; Eighth Judicial District Court,
Clark County; Howard W. Babcock, Judge.
Appeal was taken from judgment entered by the district court in proceedings concerning
priority among competing claims to automobile. The Supreme Court held that where
financing statement, purportedly showing perfected security interest in the automobile, did
not contain language creating a security interest, alleged secured creditor did not have
enforceable security interest, and thus judgment lien creditor had priority on his claim to the
automobile.
Affirmed.
[Rehearing denied February 25, 1980]
L. Earl Hawley, of Las Vegas, for Appellant.
Daniel Marks, Clark County Legal Services Program, for Respondents.
Secured Transactions.
Where financing statement, purportedly showing perfected security interest in automobile, did not contain
language creating a security interest, alleged secured creditor did not have enforceable security interest,
and thus judgment lien creditor had priority on his claim to the automobile.
96 Nev. 12, 13 (1980) Love v. Wells
thus judgment lien creditor had priority on his claim to the automobile. NRS 104.9203.
OPINION
Per Curiam:
The issue in the district court was priority in competing claims to a 1974 Cadillac
automobile. The third party claimant, Love, claimed priority due to a perfected security
interest. The plaintiff, Wells, claimed priority as a judgment lien creditor. The district court
ruled that Love did not have an enforceable security interest since NRS 104.9203 was not
complied with in that the financing statement offered to show a security interest did not
contain language creating a security interest. McCorquodale v. Holiday, Inc., 90 Nev. 67, 518
P.2d 1097 (1974); American Card Co. v. H.M.H. Co., 196 A.2d 150 (R.I. 1963).
The record fully supports that determination.
Affirmed.
____________
96 Nev. 13, 13 (1980) Frisaura v. State
LUCIA JOHANNA FRISAURA, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 10725
January 3, 1980 604 P.2d 350
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Defendant was convicted before the district court of grand larceny, and she appealed. The
Supreme Court held that: (1) trial court did not err in admitting evidence of two other similar
offenses allegedly committed by defendant, since the crimes were similar to crime charged,
and each victim individually identified defendant as the perpetrator of the crime; (2) where
victim of grand larceny notified police of theft in his hotel room, was shown photographs of
approximately 500 women, and picked out one woman as being similar in appearance to
woman he had taken to his room, victim subsequently returned to his home and within a
couple of weeks, received from the police a package of five or six photographs, which
package did not include a photograph of the woman he had previously identified, the
photographic identification procedure was not so impermissibly suggestive as to give rise to
substantial likelihood of irreparable misidentification; furthermore, victim, who had spent
a number of hours with defendant, made independent identification in court sufficient to
render any possible error in photographic lineup harmless; and {3) trial court did not err
in substituting two copies of photographs for those viewed in original photographic
lineup, in absence of showing of prejudice to defendant.
impermissibly suggestive as to give rise to substantial likelihood of irreparable
misidentification; furthermore, victim, who had spent a number of hours with defendant,
made independent identification in court sufficient to render any possible error in
photographic lineup harmless; and (3) trial court did not err in substituting two copies of
photographs for those viewed in original photographic lineup, in absence of showing of
prejudice to defendant.
Affirmed.
Morgan D. Harris, Public Defender, and Peter J. Christiansen, Deputy Public Defender,
Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
H. Leon Simon, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
While evidence of other bad acts is generally inadmissible in a criminal prosecution, a recognized
exception to such rule exists where evidence is relevant to identity of perpetrator.
2. Criminal Law.
In prosecution for grand larceny, trial court did not err in admitting evidence of two other similar offenses
allegedly committed by defendant, since the crimes were similar to crime charged, and each victim
individually identified defendant as the perpetrator of the crime.
3. Criminal Law.
Where victim of grand larceny notified police of theft in his hotel room, was shown photographs of
approximately 500 women, and picked out one woman as being similar in appearance to woman he had
taken to his room, victim subsequently returned to his home and within a couple of weeks, received from
police a package of five or six photographs, which package did not include a photograph of the woman he
had previously identified, the photographic identification procedure was not so impermissibly suggestive as
to give rise to substantial likelihood of irreparable misidentification; furthermore, victim, who had spent a
number of hours with defendant, made independent identification of defendant in court sufficient to render
any possible error in photographic lineup harmless.
4. Criminal Law.
In prosecution for grand larceny, trial court did not err in substituting two copies of photographs for those
viewed in original photographic lineup, in absence of showing of prejudice to defendant.
OPINION
Per Curiam:
Lucia Johanna Frisaura appeals from her conviction of grand larceny. On June 30, 1976,
Salvador Alfonso struck up a conversation with a woman in a bar at the Las Vegas Hilton.
conversation with a woman in a bar at the Las Vegas Hilton. The woman, who had a foreign
accent, told Alfonso that she was from Holland and showed him her passport. Alfonso invited
her to his room and the two of them ate breakfast and watched television for a while. They
then retired to separate beds. The following morning both Alfonso's money, amounting to
$1,500 in cash and casino chips, and the woman were missing. He notified the security guard
of the theft and was taken to the Las Vegas Metropolitan Police Department where he was
shown about five hundred photographs of women. From this group he picked out one woman,
a known prostitute, as being similar in appearance to the woman he had taken to his room.
Alfonso subsequently returned to his home in Louisiana and, within a couple of weeks,
received from the police a package of five or six photographs in the mail. This package did
not include a photograph of the woman he had previously identified. Nonetheless, from that
group he positively identified the appellant as the perpetrator of the crime.
At trial, Alfonso again identified her. Also testifying at the trial were two men who had
been victims of very similar crimes, both of whom identified appellant as the perpetrator of
the offenses against them. On appeal appellant alleges error in the admission into evidence of:
(1) the two other similar offenses; (2) testimony about the photographic line-up; and, (3) two
copies of photographs substituted for those used in the original line-up.
[Headnotes 1, 2]
(1) Appellant's defense at trial was mistaken identity. While evidence of other bad acts is
generally inadmissible in a criminal prosecution, a recognized exception to this rule exists
where the evidence is relevant to the identity of the perpetrator. Reed v. State, 95 Nev. 190,
591 P.2d 274 (1979); Junior v. State, 89 Nev. 121, 507 P.2d 1037 (1973); Nester v. State of
Nevada, 75 Nev. 41, 334 P.2d 524 (1959). Each of the witnesses reported being picked up in
a hotel bar on the Las Vegas strip, during the same week, by a woman with a foreign accent;
each was shown a passport; each took the woman to his hotel room to eat and watch
television, and each was robbed of money and chips. Since the crimes reported by each of
these victims were similar, and each victim individually identified appellant as the perpetrator
of the crime, the evidence of those crimes was properly admitted into evidence at trial to
show identity. NRS 48.045(2). Cf. Mayes v. State, 95 Nev. 140, 591 P.2d 250 (1979).
[Headnote 3]
(2) Appellant contends that the photographic line-up was improper since it did not include
a picture of the woman who had first been identified by Alfonso as being similar in
appearance to the woman who robbed him. However, appellant neither moved to suppress the
line-up, nor did she object to the admission of this evidence at trial. See Bishop v. State, 91
Nev. 465, 537 P.2d 1202 (1975); Sparks v. State, 89 Nev. 84, 506 P.2d 1260 (1973). Even
were we to consider this issue, raised for the first time on appeal, we do not find the pretrial
identification by photographic line-up to have been so impermissibly suggestive as to give
rise to a substantial likelihood of irreparable misidentification. See Simmons v. United
States, 390 U.S. 377, 384 (1968); Thompson v. State, 85 Nev. 134, 451 P.2d 704 (1969), cert.
denied, 396 U.S. 893 (1969). Furthermore, Alfonso who had spent a number of hours with
appellant, made an independent identification of appellant in court sufficient to render any
possible error in the photographic line-up harmless. See Thompson v. State, supra. Cf. Baker
v. State, 88 Nev. 369, 498 P.2d 1310 (1972); Hampton v. State, 85 Nev. 720, 462 P.2d 760
(1969).
[Headnote 4]
(3) When the pictures from the photographic line-up were presented in court, two of the
photographs could not be located. In place of one of the photographs a substitution was made
of a photograph of one of the women taken at the same time and place as the original, and in
the place of the other a photostatic copy was used. Appellant, citing no case authority,
contends that this was error.
We held in Thompson v. State, supra, that the photographs used in a photographic line-up
should be available at trial for cross-examination. From the duplicates presented here, counsel
was able to conduct an adequate cross-examination, and appellant made no showing of how
she was prejudiced by their admission. See French v. State, 95 Nev. 586, 600 P.2d 218
(1979). Accordingly, we find no error in the admission of these photographs in place of the
originals. Cf. NRS 52.245(1).
____________
96 Nev. 17, 17 (1980) Forbes v. State
CHARLES ANDREW FORBES, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 11787
January 3, 1980 604 P.2d 799
Appeal from imposition of sentence, Eighth Judicial District Court, Clark County; J.
Charles Thompson, Judge.
Defendant was convicted in the district court of escape and a sentence was imposed to be
served consecutively to a sentence previously imposed. Defendant appealed. The Supreme
Court held that where defendant had escaped while in custody pending the resolution of a
sexual assault charge against him, the imposition of a consecutive sentence was not
mandatory.
Reversed and remanded.
Morgan D. Harris, Public Defender, and Peter J. Christiansen, Deputy Public Defender,
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Where defendant escaped while in custody pending resolution of sexual assault charge against him,
imposition of consecutive sentence for escape was not mandatory. NRS 176.035.
OPINION
Per Curiam:
Appellant, while in custody pending the resolution of a sexual assault charge, escaped
from the Southern Nevada Memorial Hospital. Later that same night he was re-arrested and
charged with escape (NRS 212.090). Thereafter, appellant pled guilty to the sexual assault
charge and was sentenced to 20 years in the Nevada State Prison. Subsequent to the guilty
plea, appellant was convicted of escape and, under the impression that NRS 176.035(2)
1
was
controlling, the district judge proceeded to sentence appellant to two years in the Nevada
State Prison, to be served consecutively to the sentence previously imposed.
____________________

1
NRS 176.035(2) requires that:
Whenever a person under sentence of imprisonment commits another crime constituting a felony and
is sentenced to another term of imprisonment for such felony, such latter term shall not begin until the
expiration of all prior terms.
96 Nev. 17, 18 (1980) Forbes v. State
imposed. On appeal, appellant contends, and respondent concedes, see LaFon v. State, 95
Nev. 762, 601 P.2d 1201 (1979), that all parties present at the second sentencing proceeded
under a mistake of law regarding the requirements of sentencing pursuant to NRS 176.035.
We agree.
Appellant was not under a sentence of imprisonment at the time of his escape.
Nevertheless, at the time of sentencing for the escape conviction, the trial court acted under
the misconception that the aforementioned statute required the imposition of a sentence
consecutive to that previously imposed in the companion case. Accordingly, this case shall be
remanded to the district court so that the trial judge may resentence appellant in accordance
with its discretionary power pursuant to NRS 176.035(1).
2

____________
96 Nev. 18, 18 (1980) Clark County v. Empire Electric, Inc.
CLARK COUNTY, a Political Subdivision of the State of Nevada, Appellant, v. EMPIRE
ELECTRIC, INC., and BLANCHARD CONSTRUCTION COMPANY, Respondents.
No. 12219
January 3, 1980 604 P.2d 352
Appeal from order compelling arbitration, Eighth Judicial District Court, Clark County;
Howard W. Babcock, Judge.
County appealed from an order of district court compelling arbitration of a dispute
concerning a contract for construction of a fire station, and the contractor filed a motion to
dismiss appeal. The Supreme Court held that an order compelling arbitration is not
appealable.
Appeal dismissed.
Victor W. Priebe, Deputy District Attorney, Clark County, for Appellant.
Rose, Edwards, Hunt & Pearson, and Floyd A. Hale, Las Vegas, for Respondent Empire
Electric Inc.
____________________

2
NRS 176.035(1) provides in relevant part:
Except as provided in subsection 2, whenever a person is convicted of two or more offenses, and
sentence has been pronounced for one offense, the court in imposing any subsequent sentence may, in its
discretion, provide that the sentences subsequently pronounced shall run either concurrently or
consecutively with the sentence first imposed.
Bell, Leavitt & Green, and Michael J. Grace, Las Vegas, for Respondent Blanchard
Construction Company.
1. Arbitration.
An order compelling arbitration is not appealable. NRS 38.015 et seq., 38.205.
2. Arbitration.
A party may preserve for review the issue of waiver of the right to arbitrate by objecting to trial court's
confirmation of the arbitration award and thereafter raise the issue on appeal. NRS 38.205.
OPINION
Per Curiam:
Clark County has appealed from an order of the district court compelling arbitration of a
dispute concerning a contract for the construction of a fire station. It is the contention of
Clark County that respondent Blanchard Construction Company, the party who moved to
compel arbitration with the county, waived its right to arbitrate the controversy.
Respondents have filed a motion to dismiss the appeal, arguing that the district court's
order compelling arbitration is not appealable. We agree and grant the motion to dismiss.
[Headnote 1]
The Uniform Arbitration Act, NRS 38.015 et seq., establishes procedures which govern
arbitration agreements and delineates specific orders regarding arbitration from which an
appeal may be taken.
1
An order compelling arbitration is not listed therein as being subject
to appeal, and is therefore not appealable. As the court noted in In re Laufman's Petition, 29
Cal.Rptr. 829, 831 (Cal.App. 1963), quoting Jardine-Matheson Co., Ltd. v. Pacific Orient
Co., 280 P. 697 (Cal.App. 1929),
. . . . the fact that the Legislature saw fit to specify in one code section the
different orders and judgment from which appeals may be taken clearly indicates, in
our opinion, an intention to restrict the appeals in such proceeding to orders and
judgment therein specified, and the obvious reason for not including among such
appealable orders the one which directs the parties to proceed with the arbitration
was that if at the very threshold of the proceeding the defaulting party could appeal
and thereby indefinitely delay the matter of arbitration, the object of the law and
the purpose of the written agreement of the parties would be entirely defeated."
____________________

1
1. An appeal may be taken from:
(a) An order denying an application to compel arbitration made under NRS 38.045;
(b) An order granting an application to stay arbitration made under subsection 2 of NRS 38.045;
(c) An order confirming or denying confirmation of an award;
(d) An order modifying or correcting an award;
(e) An order vacating an award without directing a rehearing; or
(f) A judgment or decree entered pursuant to the provisions of NRS 38.015 to 38.205, inclusive.
2. The appeal shall be taken in the manner and to the same extent as from orders or judgments in a
civil action.
code section the different orders and judgment from which appeals may be taken clearly
indicates, in our opinion, an intention to restrict the appeals in such proceeding to
orders and judgment therein specified, and the obvious reason for not including among
such appealable orders the one which directs the parties to proceed with the arbitration
was that if at the very threshold of the proceeding the defaulting party could appeal and
thereby indefinitely delay the matter of arbitration, the object of the law and the purpose
of the written agreement of the parties would be entirely defeated.
[Headnote 2]
A party may preserve for review the issue of waiver of the right to arbitrate by objecting to
the trial court's confirmation of the arbitration award and thereafter raise the issue on appeal
pursuant to NRS 38.205. See Roeder v. Huish, 467 P.2d 902 (Ariz. 1970).
Appeal dismissed.
____________
96 Nev. 20, 20 (1980) Kern v. Kern
WILLARD L. KERN, Appellant, v. ROSALIE M. KERN,
on Behalf of Linda K. Kern, a Minor, Respondent.
No. 11474
January 3, 1980 604 P.2d 354
Appeal from an order granting a writ of habeas corpus; First Judicial District Court,
Carson City; Michael R. Griffin, Judge.
Mother instituted habeas corpus proceeding to have daughter returned to her custody, and
father sought to have full custody hearing conducted to modify custody provision in original
decree. The district court entered judgment granting the writ and denying father's motion, and
he appealed. The Supreme Court held that full faith and credit clause of United States
Constitution did not foreclose custody order based upon alleged change of circumstances,
especially where 14-year-old daughter stated by affidavit her desire to remain with her father
and her fear of returning to her mother, and thus Nevada court could conduct full custody
hearing in the proceedings instituted by the mother, who was awarded custody under original
Wisconsin divorce decree and who had also obtained temporary custody award in North
Carolina.
Reversed.
96 Nev. 20, 21 (1980) Kern v. Kern
Jacquette & Kilpatrick, Carson City, for Appellant.
Sheerin, O'Reilly & Walsh, Carson City, for Respondent.
Divorce.
Full faith and credit clause of United States Constitution did not foreclose custody order based upon
alleged change of circumstances, especially where 14-year-old daughter stated by affidavit her desire to
remain with her father and her fear of returning to her mother, and thus Nevada court could conduct full
custody hearing in proceedings instituted by the mother, who had been awarded custody under original
Wisconsin divorce decree and who also obtained temporary custody award in North Carolina.
U.S.C.A.Const. art. 4, 1.
OPINION
Per Curiam:
Willard and Rosalie Kern were divorced in Wisconsin on March 26, 1966. The decree
awarded custody of their child, Linda, now age 14, to respondent Rosalie. Shortly after the
divorce, Rosalie and Linda moved to North Carolina. Subsequently, in December of 1978,
appellant Willard removed Linda, at her request, from respondent's residence to his home in
Carson City, Nevada.
After obtaining a temporary custody award in North Carolina, respondent instituted a
habeas proceeding in the First Judicial District Court of the State of Nevada to have her
daughter returned. In defense thereto, appellant requested the court to conduct a full custody
hearing to modify the Wisconsin decree, alleging by affidavit a change of circumstances. This
motion was denied and the writ was granted.
At issue is whether the district court erred in refusing to hold an evidentiary custody
hearing before granting or denying the writ.
Although a foreign judgment has already determined the issue of custody, the full faith and
credit clause of the United States Constitution does not foreclose another custody order based
upon a subsequent change of circumstances. Cole v. Dawson, 89 Nev. 14, 504 P.2d 1314
(1973); Lyerla v. Ramsay, 82 Nev. 250, 415 P.2d 623 (1966). Thus, a Nevada court may
subsequently conduct a full custody hearing in a habeas proceeding involving the child.
The district court's reliance upon Lyerla v. Ramsay, 82 Nev. 250, 415 P.2d 623 (1966), as
mandating a hearing in North Carolina is misplaced. In Lyerla we held that the most
appropriate forum for determining the welfare of the child was the court having maximum
access to the relevant evidence. In this case, there is substantial evidence available to this
state concerning the child's present and future care, protection and personal
relationships.
96 Nev. 20, 22 (1980) Kern v. Kern
case, there is substantial evidence available to this state concerning the child's present and
future care, protection and personal relationships. Moreover, the parties' daughter, 14 years of
age, has stated by affidavit her desire to remain with her father and her fear of returning to her
mother.
The district court's order granting the writ of habeas corpus without a full evidentiary
hearing is reversed and this case is remanded with direction that such a hearing be held. See,
Cole v. Dawson, 89 Nev. 14, 504 P.2d 1314 (1973).
Reversed.
____________
96 Nev. 22, 22 (1980) Sheriff v. Williams
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
ROBERT LOUIS WILLIAMS, Respondent.
No. 12260
January 3, 1980 604 P.2d 800
Appeal from order granting pre-trial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; Thomas J. O'Donnell, Judge.
Defendant who was charged with purporting to sell controlled substance sought pretrial
relief by writ of habeas corpus. The district court granted the writ, and county sheriff
appealed. The Supreme Court held that statute which provides that any person who agreed to
sell any Schedule 1 or Schedule 2 controlled substances and then sells any other substance in
place of such controlled substance shall be punished by imprisonment in county jail for not
more than one year or in state prison for not less than one year nor more than ten years, and
which further provides that any person who agrees to sell any Schedule 3, 4 or 5 controlled
substances and then sells any other substance shall be punished by imprisonment in county
jail for no more than one year or in state prison for not less than one year nor more than six
years was not violative of equal protection, since distinction between such crimes was
rationally based on the variety of evil proscribed.
Gregory C. Diamond, Deputy District Attorney, Clark County, for Appellant.
Morgan D. Harris, Public Defender, and Robert L. Miller, Deputy Public Defender, Clark
County, for Respondent.
1. Criminal Law.
The Legislature, within constitutional limits, is empowered to define crimes and determine punishments,
and courts are not to encroach upon that domain lightly.
2. Constitutional Law.
Harsher penalties for crimes committed under different circumstances from those which accompany the
commission of other crimes do not violate equal protection guarantees so long as the classification is
rationally based upon variety of evil proscribed.
3. Constitutional Law; Drugs and Narcotics.
Statute which provides that any person who agrees to sell any Schedule 1 or Schedule 2 controlled
substances and then sells any other substance in place of such controlled substance shall be punished by
imprisonment in county jail for not more than one year or in state prison for not less than one year nor more
than ten years, and which further provides that any person who agrees to sell any Schedule 3, 4 or 5
controlled substances and then sells any other substance shall be punished by imprisonment in county jail
for no more than one year or in state prison for not less than one year nor more than six years is not
violative of equal protection; distinction between such crimes was rationally based on variety of evil
proscribed. NRS 453.323, 453.323, subd. 1.
OPINION
Per Curiam:
Respondent herein, Robert Louis Williams, sought pretrial release by a writ of habeas
corpus contending that the statute under which he is indicted is unconstitutional. The writ was
granted. This appeal by the Clark County Sheriff followed.
Williams is charged with violation of NRS 453.323(1). NRS 453.323 reads, in pertinent
part, as follows:
1. Any person who . . . agrees . . . to sell . . . any controlled substance classified in
NRS 453.161 or 453.171 and then sells . . . any other substance in place of such
controlled substance shall be punished by imprisonment in the county jail for not more
than 1 year or in the state prison for not less than 1 year nor than 10 years and may be
further punished by a fine of not more than $10,000 for each offense.
. . . .
3. Any person who . . . agrees . . . to sell . . . any controlled substance classified in
NRS 453.181, 453.191 or 453.201 and then sells . . . any other substance in place of
such controlled substance shall be punished by imprisonment in the county jail for not
more than 1 year or 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 for each offense.
Williams argues that the essence of the offense described by this statute is the commission
of a fraud or misrepresentation. He submits that there is no rational basis for providing
different penalties solely on the basis of the particular controlled substance another substance
is purported to be and maintains that NRS 453.323 is, therefore, violative of equal protection.
[Headnote 1]
Initially, we note that the Legislature, within constitutional limits, is empowered to define
crimes and determine punishments, and the courts are not to encroach upon that domain
lightly. Schmidt v. State, 94 Nev. 665, 584 P.2d 695 (1978); Egan v. Sheriff, 88 Nev. 611,
503 P.2d 16 (1972).
Furthermore, we have stated:
The equality guaranteed by the equal protection clause is equality under the same
conditions and among persons similarly situated. The Legislature may make reasonable
classifications with respect to persons, businesses, property and other activities but
those classifications must not be arbitrary and must be based upon some difference in
the classes having a substantial relationship to the legitimate object to be accomplished.
Boyne v. State ex rel. Dickerson, 80 Nev. 160, 164, 390 P.2d 225, 227 (1964); see State ex
rel. Tidvall v. District Court, 91 Nev. 520, 539 P.2d 456 (1975).
[Headnote 2]
The Legislature, therefore, is entitled to establish more severe penalties for acts which it
believes have greater social impact and graver consequences. Harsher penalties for crimes
committed under different circumstances from those which accompany the commission of
other crimes do not violate equal protection guarantees so long as the classification is
rationally based upon the variety of evil proscribed. People v. Montoya, 582 P.2d 673 (Colo.
1978).
[Headnote 3]
In construing a statute which punished the purported sale of narcotics, the California
District Court of Appeal, Second District, stated: [I]t is apparent that the legislature had the
intention of discouraging anyone from engaging or appearing to engage in the narcotics
traffic. Anything which gives sustenance, solace, comfort or encouragement in the selling of
narcotics or in the agreeing to sell narcotics, can be condemned, and properly so, by the
legislature. People v. Shephard, 337 P.2d 214, 216-217 (Cal.App. 1959). It is quite clear that
the purpose of NRS 453.323, like the California statute construed above, is to condemn
any activity which encourages the sale or appearance of sale of a controlled substance.
purpose of NRS 453.323, like the California statute construed above, is to condemn any
activity which encourages the sale or appearance of sale of a controlled substance. We find no
merit to appellant's contention that the purpose of NRS 453.323 is merely to prevent fraud or
misrepresentation.
The statute at issue herein, NRS 453.323(1), punishes the purported sale of schedule 1 and
schedule 2 controlled substances. Pursuant to NRS 453.166 and NRS 453.176 a substance is
placed on schedule 1 or schedule 2 if it is determined that the substance has a high potential
for abuse, either no medically accepted medical use or a severely restricted medical use, and
which, if abused, may lead to severe psychic or physical dependence. NRS 453.323(3)
punishes the purported sale of schedule 3, 4, and 5 controlled substances. Pursuant to NRS
453.186, 453.196 and 453.206 a substance is placed on schedule 3, 4 or 5 if it is determined
that it has either a lesser or a low potential for abuse, a currently accepted medical use, and a
more limited potential of physical or psychological dependence if abused.
It is readily apparent that our Legislature has based its controlled substance schedules on
grounds within its authority and has provided penalties for violation of its controlled
substance laws pursuant to the potential social impact and gravity of consequences of abuse.
Distinguishing, therefore, between the crime of purporting to sell a schedule 1 or 2 controlled
substance and the crime of purporting to sell a schedule 3, 4 or 5 controlled substance is a
classification rationally based on the variety of evil proscribed. Crimes which are readily
distinguishable on the basis of their elements do not violate equal protection rights if they
impose disparate penalties. People v. Montoya, supra.
Accordingly, the order of the district court granting appellant's petition for writ of habeas
corpus is reversed and this case is remanded to the district court for appropriate action in
accordance with this decision.
____________
96 Nev. 26, 26 (1980) Sparks v. State
MICHAEL LEE SPARKS, Also Known as EDDIE LEE BROWN,
Appellant, v. THE STATE OF NEVADA, Respondent.
No. 10173
January 3, 1980 604 P.2d 802
Appeal from judgment upon jury verdict, Eighth Judicial District Court, Clark County; J.
Defendant was convicted before the district court on two counts of robbery with a deadly
weapon, two counts of first-degree kidnapping with a deadly weapon, and one count of
possessing stolen property, and he appealed. The Supreme Court, Gunderson, J., held that: (1)
continuation of hearing on defendant's motion to suppress certain statements was not abuse of
discretion; (2) defendant's statements were voluntary; (3) refusal to interrogate jurors was not
error, and (4) detention of victims in automobile trunk did not merely facilitate crime of
robbery.
Affirmed.
Morgan D. Harris, Public Defender, and Kirk Lenhard, Deputy Public Defender, Clark
County, for Appellant.
Richard Bryan, Attorney General, Carson City; and Robert Miller, District Attorney, and
L. J. O'Neale, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Continuance by court, sua sponte, of defendant's motion to suppress certain statements made to FBI agent
to time of trial, so that agent might testify, was not unfair on theory that court had refused to grant
defendant's motion to continue trial two days earlier where defendant made no claim of prejudice but
merely argued that, because trial court denied his motion, it should have heard his subsequent motion to
suppress even though State's witness was absent. DCR 21.
2. Criminal Law.
Once found voluntary, an accused's statements are not deemed involuntary merely because interrogating
officers did not inform accused of all possible charges which could be brought against him; it is sufficient if
accused knows general nature of pending charges at time of his interrogation.
3. Criminal Law.
Trial court's decision on voluntariness of inculpatory statement is final unless decision is plainly
untenable.
4. Criminal Law.
Defendant's statements to FBI agent were voluntary and thus did not have to be suppressed; moreover,
court instructed jurors to disregard statements if jurors believed them involuntary.
5. Criminal Law.
Supreme Court will not consider matters outside record, and thus it assumed that trial court correctly
ruled in denying motion requesting a pretrial lineup, which was not included in record on appeal.
6. Criminal Law.
Facts stated in counsel's brief will not supply deficiency in the record.
7. Criminal Law.
In prosecution for robbery with deadly weapon, first-degree kidnapping with a deadly weapon, and
possessing stolen property, defendant's proposed instructions on identity were covered adequately by other
instructions.
8. Criminal Law.
Where trial court interrogated victims, who had not talked with jurors nor discussed case with each other,
refusal to interrogate jurors, to determine effect on them of behavior of victims in alledgedly holding hands
and talking in court corridor, was not error.
9. Criminal Law.
Prosecutor's remark that he had no objection, in view of conference at bench and court's prior ruling on
certain subject matter, was innocuous and did not entitle defendant to mistrial on basis of prosecutor's
comment on withdrawn exhibit.
10. Criminal Law.
Denial of motion for mistrial is within trial court's sound discretion and its determination will not be
disturbed on appeal in absence of clear showing of abuse.
11. Kidnapping.
Detention of victims in automobile trunk did not merely facilitate crime of robbery but, rather, movement
of victims and their detention were sufficient to support defendant's kidnapping conviction. NRS
193.165, 200.310, subd. 1.
OPINION
By the Court, Gunderson, J.:
A jury convicted Michael Lee Sparks, also known as Eddie Lee Brown, on two counts of
robbery with a deadly weapon (NRS 200.380; NRS 193.165), two counts of first-degree
kidnapping with a deadly weapon (NRS 200.310(1); NRS 193.165), and one count of
possessing stolen property (NRS 205.275).
On February 27, 1976, the two victims were asleep in a van parked in Lake Mead
Recreational Area. Appellant and his brother Jerard Sparks, also known as Bobbie Lee
Woods, awakened the victims at approximately 8:30 a.m. and asked for directions. Appellant
and his brother then entered the van. The brother had a sawed-off shotgun. Pointing a gun
toward the victims, appellant told them it was a "holdup."
the victims, appellant told them it was a holdup. The victims were then forced to enter the
trunk of the Chevrolet automobile in which appellant and his brother had arrived. Later, the
male victim was removed from the trunk, forced to start the van's engine, and then forced
back into the trunk. The perpetrators drove away, taking the victims' personal property and
money. After a two-hour struggle, the victims forced their way out of the trunk, and notified
the authorities. Although appellant claimed the victims had mistakenly identified him, he and
his brother were driving to Illinois with the van and the victims' other property, when
apprehended. Appellant testified he first saw the van in Las Vegas, Nevada, after it had been
stolen.
[Headnote 1]
1. Appellant first contends that continuing a hearing on his motion to suppress certain
statements was unfair, because two days earlier, the court had refused to grant appellant's
motion to continue the trial. Appellant makes no claim of prejudice. He merely argues that,
because the trial court denied his motion, the court should have heard his subsequent motion
to suppress, even though the State's witness was absent. Appellant's motion to suppress
statements made to an F.B.I. agent, living in another state, had been filed May 12, and set for
hearing May 13. The agent's handwritten report made no mention of any promise of leniency,
the issue to be decided. Although the State filed no motion for continuance under D.C.R.
Rule 21, the trial court continued appellant's motion, sua sponte, to the time of trial so the
agent might testify.
Continuances are granted or denied at the discretion of the trial court. Johnson v. State, 90
Nev. 352, 526 P.2d 696 (1974). Failure to file a motion and supporting affidavits has often
been a basis for affirming a denial of a motion to continue; however, it will rarely be the basis
for finding an abuse of discretion where the trial court has determined good cause exists for
granting a continuance. The contention of error is without merit.
[Headnotes 2-4]
2. Appellant's related contention, that his statement should have been suppressed, also
lacks merit. After an evidentiary hearing, the trial court concluded that no promises had been
made, and that appellant's statement was voluntary. Once found voluntary, an accused's
statements are not deemed involuntary merely because interrogating officers do not inform
him of all possible charges which could be brought against him.
against him. See People v. Lara, 432 P.2d 202, 210 (Cal. 1967). We think it is sufficient if the
accused knows the general nature of pending charges at the time of his interrogation. People
v. Weaver, 500 P.2d 980 (Colo. 1972). A trial court's decision on the voluntariness of an
inculpatory statement is final unless such finding is plainly untenable. McRoy v. State, 92
Nev. 758, 557 P.2d 1151 (1976). Moreover, the court instructed the jurors to disregard
appellant's statements if they believed them involuntary.
[Headnotes 5, 6]
3. Appellant contends the district court erred in denying a motion requesting a pretrial
lineup, which is not included in the record on appeal. We will not consider matters outside
the record, and here assume the trial court correctly ruled. Facts stated in counsel's brief will
not supply a deficiency in the record. A Minor v. State, 85 Nev. 323, 454 P.2d 895 (1969).
[Headnote 7]
4. Appellant contends the trial court erred in refusing proposed instructions on identity.
We believe, however, that proposed instructions A, B and C were covered adequately by
other instructions. Geary v. State, 91 Nev. 784, 793, 544 P.2d 417, 423 (1975).
1

[Headnotes 8, 9]
5. Appellant contends the trial court erred in denying two mistrial motions. The first
concerned the victims holding hands and talking in the court corridor. Appellant complains
because the trial court would not allow interrogation of all jurors to determine what effect the
victims' behavior had on them. The court interrogated the victims, who had not talked with
jurors, nor discussed the case with each other. Under these circumstances, we do not consider
refusal to interrogate the jurors to be error. See Reese v. State, 95 Nev. 419, 596 P.2d 212
(1979). Appellant also moved for a mistrial after the prosecutor commented on a withdrawn
exhibit; however, we think the prosecutor's remark was innocuous.
2
[Headnote 10]
[Headnote 10]
____________________

1
We note that some jurisdictions require specific instructions on eye-witness identification. See United States
v. Telfaire, 469 F.2d 552, 558 (D.C.Cir. 1972); United States v. Holley, 502 F.2d 273, 277 (4th Cir. 1974);
United States v. Hodges, 515 F.2d 650 (7 Cir. 1975). Others do not. See United States v. Sambrano, 505 F.2d
284 (9 Cir. 1974); State v. Oldham, 438 P.2d 275, 285 (Ida. 1968). Cf. United States v. Roundtree, 527 F.2d 16
(8 Cir. 1975).

2
The prosecutor remarked: Your honor, in view of the conference we had at the bench and the court's prior
ruling on certain subject matter, I have no objection. The jury was instructed not to act upon statements and
opinions of counsel and informed the court would decide questions of law.
[Headnote 10]
Denial of a motion for mistrial is within the trial court's sound discretion. Its determination
will not be disturbed on appeal, in the absence of a clear showing of abuse. Abram v. State,
95 Nev. 352, 594 P.2d 1143 (1979).
[Headnote 11]
6. The final contention of error involves application to this case of principles set forth in
Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978). Appellant contends that movement of the
victims was slight, and that detention of the victims in the trunk merely facilitated the crime
of robbery. We disagree. We said in Woods v. State, 95 Nev. 29, 31, 588 P.2d 1030, 1032
(1979):
In Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978), we concluded that the
Legislature intended a conviction of both kidnapping and robbery only when the
movement of the victim substantially increases the risk of harm beyond that necessarily
present in the crime of robbery itself. Locking the victims in the trunk of a car in a
remote area substantially increased their risk of harm. Such movement was not merely
incidental to the robbery because it was not necessary in its consumation [sic].
Appellant's conviction for both first degree kidnapping and robbery is affirmed.
Cases decided since Woods suggest no different result in this case.
The convictions are in all respects affirmed.
Mowbray, C. J., and Thompson, Manoukian, and Batjer, JJ., concur.
____________
96 Nev. 30, 30 (1980) Silverman v. Fireman's Fund Amer. Ins.
DAVID SILVERMAN, d.b.a. DAVID'S PLACE, Appellant, v. FIREMAN'S FUND
AMERICAN INSURANCE COMPANIES, Respondent.
No. 11929
January 3, 1980 604 P.2d 805
Appeal from order dismissing complaint; Eighth Judicial District Court, Clark County;
Action for declaratory relief was commenced by insured who was dissatisfied with
appraisal award for business interruption loss and who sought interpretation of the business
interruption clause.
clause. The district court dismissed and plaintiff appealed. The Supreme Court, Thompson, J.,
held that appraisals are subject to Uniform Arbitration Act; thus the action was barred by
failure of insured to seek to vacate appraisal award within 90 days as provided by the Act.
Affirmed.
Bell, Leavitt & Green, Chartered, and Michael J. Grace, of Las Vegas, for Appellant.
Keefer, Clark & O'Reilly, and Donald H. Haight, of Las Vegas, for Respondent.
Insurance.
Appraisals are subject to Uniform Arbitration Act; thus action for declaratory relief seeking interpretation
of business interruption clause of policy was barred by failure of insured to seek to vacate appraisal award
within 90 days as provided by the Uniform Arbitration Act. NRS 38.025, subd. 1, 38.145, subd. 2.
OPINION
By the Court, Thompson, J.:
We must decide whether the Uniform Arbitration Act, NRS 38.015 through 38.205,
includes an agreement providing for valuations and appraisals.
A fire, explosion and catastrophe insurance policy was issued by Fireman's Fund to David
Silverman for his restaurant in Las Vegas. That restaurant was bombed and totally destroyed.
As provided by the policy, Silverman and Fireman's Fund agreed to an appraisal proceeding
to determine the amount of business interruption loss sustained. Each party designated an
appraiser who then nominated an umpire. An appraisal award was made on July 12, 1978.
Dissatisfied with that award, Silverman commenced this action for declaratory relief on
December 7, 1978. He sought court interpretation of the business interruption loss clause of
the policy.
Fireman's Fund moved to dismiss on the ground that Silverman had not sought to vacate
the appraisal award within 90 days as provided by the Uniform Arbitration Act.
1
That
motion was granted and this appeal followed.
1. The Uniform Arbitration Act was adopted by Nevada in 1969.
____________________

1
NRS 38.145(2): An application [to vacate an award] . . . shall be made within 90 days after delivery of a
copy of the award to the applicant . . . .
1969. NRS 38.025(1) thereof provides that the word Agreement as used in the Act includes
but is not limited to agreements providing for valuations, appraisals and similar proceedings.
. . . Whether the legislature intended to subject all appraisals to the Uniform Arbitration Act
or only arbitration agreements which contemplate an appraisal or valuation of property is
dispositive of this appeal. Case authority is split.
Despite such statutory language in its arbitration act, the New York Court of Appeals has
preserved the historical distinctions between an appraisement under a standard fire policy and
a statutory arbitration. In Re Delmar Box Co., 127 N.E.2d 808 (N. Y. 1955). Accordingly, the
court ruled that the determination of a fire loss by appraisal does not fall within the arbitration
act. It particularly noted that arbitration is conducted as a quasi judicial proceeding, with
hearings, notice of hearings, oaths of witnesses, and is a final settlement of the dispute
between the parties. An agreement to arbitrate is specifically enforceable. In contrast, an
appraisal is informal. The appraisers are not under oath, are not obliged to hear evidence, and
may proceed by ex parte investigation. The knowledge of the appraiser is substituted for the
taking of evidence. The New York court did not believe that the legislature intended to erase
the distinctions between appraisement and arbitration when it amended the arbitration act to
include questions arising out of valuations, appraisals or other controversies.
California has ruled otherwise. Its Code of Civil Procedure 1280 was amended in 1961
and contains a provision identical to NRS 38.025(1). Before the amendment, the California
Supreme Court had ruled that appraisals were excluded from the arbitration statute. Bewick v.
Mecham, 156 P.2d 757 (Cal. 1945). That court now applies the enforcement procedures
respecting arbitration to appraisals. Jefferson Insurance Co. of N. Y. v. Superior Court, 475
P.2d 880 (Cal. 1970). And, in line with Jefferson, a California appellate court has ruled that
appraisers empowered by the terms of a policy of life insurance to determine the cash value
and loss utilized to determine the amount payable on the policy are arbitrators within CCP
1280. Klubnikin v. Cal. Fair Plan Ass'n, 148 Cal.Rptr. 563 (Cal.App. 1978).
The amendment to CCP 1280 was prompted by a study of the California Law Revision
Commission recommending that the arbitration act be broadened to apply to agreements for
appraisals and valuations.
We prefer the California view. The language of NRS 38.025 specifically includes
appraisals within the arbitration law.
specifically includes appraisals within the arbitration law. The legislative intent is clearly
expressed and there is no room for construction. Blaisdell v. Conklin, 62 Nev. 370, 151 P.2d
626 (1944). Since Silverman did not timely pursue the remedy provided by the Arbitration
Act, this action is barred.
Affirmed.
Mowbray, C. J., and Gunderson, Manoukian, and Batjer, JJ., concur.
____________
96 Nev. 33, 33 (1980) Hennessey v. Price
LEROY HENNESSEY, Jr. and JUANITA HENNESSEY, Appellants,
v. CARL PRICE and LA VONNE PRICE, Respondents.
No. 10854
January 3, 1980 604 P.2d 355
Appeal from judgment ordering specific performance. Eighth Judicial District Court, Clark
County; Keith C. Hayes, Judge.
Lessees sought specific performance of lessors' written lease-option agreement to sell real
property. The district court ordered specific performance by lessors, and they appealed. The
Supreme Court, Mowbray, C. J., held that: (1) the contract had not expired by its own terms
or by act of the parties, and (2) trial court did not err in ordering specific performance.
Affirmed.
Ashleman, Sabbath & Rohay, Las Vegas, for Appellants.
Jolley, Urga & Wirth, Las Vegas, for Respondents.
1. Landlord and Tenant.
Lease-option agreement was of definite duration where such agreement was to stay in effect only so long
as lessees continued their month-to-month tenancy and was to be exercisable only when lessors offered
home for sale.
Written lease-option agreement which was supported by consideration was irrevocable and could not be
terminated by lessors' statement to lessees that lessors would not abide by agreement.
Rent increases imposed after making of lease-option agreement were minor modifications which related
back to original agreement and served to reaffirm it, and did not operate to rescind agreement.
4. Specific Performance.
In action by lessees for specific performance of lessors' lease-option agreement to sell real property,
contentions of lessors that request for specific performance was barred by laches and that disputed
agreement violated rule against perpetuities, which were neither specially pleaded nor raised in court
below, were not properly before Supreme Court on appeal. NRCP 8(c).
OPINION
By the Court, Mowbray, C.J.:
Leroy and Juanita Hennessey appeal from the judgment of the district court ordering the
Hennesseys to sell their North Las Vegas home to Carl and La Vonne Price according to the
terms of a 1972 option contract entered into by the parties. The Hennesseys contend that the
lower court's order of specific performance was error because the option contract had, either
by its own terms or because of the acts of the parties, previously expired. Finding no error, we
affirm.
In June, 1972, the Hennesseys, preparing to move from Nevada, offered their North Las
Vegas home for sale through the agency of Harry Wells, a licensed real estate broker. The
Prices contacted Wells and offered to lease the home while reserving the right to purchase it
when the Hennesseys completed their relocation efforts. A written contract, embodying the
terms agreed upon by the parties, was drafted by Wells. The written instrument integrated a
month to month rental agreement with an option-type agreement possessing elements of both
an option to purchase and a right of first refusal. The disputed portions of the document are
set out in the margin.
1

Because of familial problems, however, the Hennesseys were unable it sell their home as
expeditiously as originally anticipated.
____________________

1
The disputed portion of the 1972 agreement provided:
The Seller reserves the right to sell the above mentioned property upon giving the above mentioned
Tenant the Right of First Refusal. In the event of an offer to purchase the tenant will have 7 days in
which to make a decision and advise said owner or his agent as to his intent.
Seller further agrees to give said tenant normal tenant rights of thirty days notice to vacate, in the event
said tenants do not wish to purchase said home.
In the event, the tenant wishes to exercise his right the terms and conditions shall be as follows:
Purchase price of $26,500.00; assume the existing VA Loan in the approximate amount of
$22,600.00 as the above date.
Buyer and Seller to pay normal closing costs. Escrow to close within 30 days of the acceptance of
the above terms.
unable it sell their home as expeditiously as originally anticipated. The Prices, in the
meantime, honored their contractual obligations and continued to pay rent; the Prices' rent
was increased several times due to rising taxes and insurance charges. In January, 1977, Mrs.
Hennessey informed the Prices that the home was for sale. The Prices promptly attempted to
exercise their option, but the Hennesseys refused to sell at the price specified in the option.
The Prices commenced the instant suit, in April, 1977, to compel specific performance of the
written contract; the Hennesseys counterclaimed for a writ of restitution and damages.
After a court trial, including testimony by Messrs. Hennessey, Price, and Wells, the court
construed the 1972 instrument as an integrated rental agreement and option to purchase, at the
specified price of $26,500.00, exercisable at such time as Defendants [the Hennesseys]
offered such property for sale on the open market and notified Plaintiffs [the Prices] of such
offer for sale. The court further found that the option was supported by consideration, that
the Prices had not violated the terms of the agreement, that the right to purchase had matured,
and that the Prices were ready, willing, and able to perform. The court thereafter entered the
order of specific performance requested by the Prices, and denied the Hennesseys'
counterclaim; this appeal ensued.
Appellants argue, relying on Mohr Park Manor, Inc. v. Mohr, 83 Nev. 107, 424 P.2d 101
(1967), that the disputed option is, by its own terms, of indefinite duration and therefore
exercisable only within a reasonable time; that a reasonable time, according to appellants, had
expired prior to respondents' attempts to enforce the terms of the 1972 agreement. Mohr,
however, is not apposite.
[Headnote 1]
In Mohr, we found that an option to purchase which was exercisable solely at the buyer's
request as soon as financing had been obtained lacked an objectively ascertainable time
referent and was, therefore, of indefinite duration. The vitality of the instant option, by
contrast, is temporally limited: the option, resting upon the common and indivisible
consideration of the rental agreement, see Gershenhorn v. Stutz, 72 Nev. 293, 303, 304 P.2d
395, 400 (1956), was to stay in effect only so long as the Prices continued their month to
month tenancy and was to be exercisable only when the Hennesseys offered the home for
sale, see Schroeder v. Gemeinder, 10 Nev. 355 (1875). In Schroeder, we held an option to
purchase, integrated with a renewable two year lease agreement, to be of definite duration,
exercisable at anytime within the original or renewed period of tenancy.
duration, exercisable at anytime within the original or renewed period of tenancy. We do not
find appellants' attempt to distinguish the instant option, based upon a periodic tenancy, from
the Schroeder option, rooted in a renewable tenancy for years, to be persuasive. See Balsham
v. Koffler, 73 A.2d 272 (N.J. 1950); Chosewood v. Byars, 41 S.E.2d 530 (Ga. 1947); Abbott
v. Seventy-Six Land & Water Co., 25 P. 693 (Cal. 1891). The trial court correctly relied on
Schroeder in concluding that the disputed option was of definite duration.
[Headnotes 2, 3]
Appellants further argue that, because of the acts of the parties, the option had been
terminated prior to its attempted exercise by respondents. We do not agree. The Hennesseys'
statement, made to the Prices in 1974, that they would not abide by that silly little
agreement did not and could not terminate the option, since the option was supported by
consideration and was, therefore, irrevocable. Mohr Park, 83 Nev. at 112-13, 424 P.2d at
105. Nor can we agree with appellants that the post-1972 rent increases operated to rescind
the lease-option agreement. These minor modifications, relating back to the original
agreement, served to reaffirm the 1972 agreement. The district court did not err in finding
that the option was still in effect as of January, 1977.
[Headnote 4]
Appellants' other assignments of error, being devoid of merit, require little discussion.
Appellants contend, for the first time on appeal, that respondents' request for specific
performance is barred by laches and that the disputed contract violates the Rule Against
Perpetuities; those matters were neither specially pleaded under NRCP 8(c), see Tobler &
Oliver Constr. v. Nevada St. Bank, 89 Nev. 269, 271, 510 P.2d 1364, 1365 (1973), nor raised
in the court below in any fashion, see Phillips v. Mercer, 94 Nev. 279, 282, 579 P.2d 174, 176
(1978), and are, therefore, not properly before this Court on appeal, see Young Electric Sign
Co. v. Erwin Electric Co., 86 Nev. 822, 828, 477 P.2d 864, 868 (1970). Similarly, appellants'
contention that the district court's findings are not supported by substantial evidence simply
because the record contains conflicting evidence is not well taken. See Tavel v. Olsson, 91
Nev. 359, 361, 535 P.2d 1287, 1288 (1975).
The judgment of the district court is, therefore, affirmed.
Thompson, Gunderson, Manoukian, and Batjer, JJ., concur.
____________
96 Nev. 37, 37 (1980) In re Maley
In Re: MICHAEL F. MALEY, Attorney at Law.
No. 12055
January 7, 1980
ORDER
Pursuant to the stated form of discipline, SCR 113(1), approved by this court in our Order
Granting Petition, September 14, 1979, we hereby authorize the publication, in accordance
with SCR 121, of the following letter of reprimand, submitted by the State Bar of Nevada
Disciplinary Board, Southern District, Paul R. Hejmanowski, Vice Chairman:
Michael F. Maley, Attorney at Law, 1111 Las Vegas Blvd. So., Suite 330, Las Vegas,
Nevada 89104
Eleven separate grievances were filed against you by former clients and one former
employee. These grievances were the subject of a formal disciplinary proceeding against you
under SCR 105(2). You have admitted the substance of each of the charges made.
In several instances, you accepted, or even solicited, fees from clients and then failed to
perform the services promised. In one case, you solicited $2,500.00 for the avowed purpose
of hiring lawyers who were specialists in a particular field to conduct certain research for a
client. You took the money, failed to hire any specialists, failed to render any services, and
refused to refund the money.
In another case, you prevailed upon a relatively unsophisticated client to invest in a real
estate transaction in which you and a relative were involved, promising her unusually high
returns. She actually made no profit but, rather, spent months pursuing you for the return of
her investment. Ultimately, you returned only three-fourths of her investment, after deducting
some alleged attorneys fees and costs. As in other cases, you had no records to substantiate
that you had rendered legal services to the client.
In another instance, you paid an employee from your trust account. One such check was
returned for insufficient funds.
In other matters, you failed in your duty to adequately represent your clients in litigation.
You failed to file lawsuits, failed to appear at a client's deposition, failed to appear at a
hearing on a motion for summary judgment and generally failed to pursue your clients' cases
with any diligence whatsoever.
96 Nev. 37, 38 (1980) In re Maley
Your conduct constituted a serious and persistent pattern of violation of the ethical
standards of an attorney. Based upon your conditional plea of guilty in return for a stated
discipline, it was determined that you should be given this public letter of reprimand together
with other substantial sanctions, including a fine, suspension and restrictions on your practice
for three years, as well as a requirement to make restitution of several thousand dollars.
It is so ORDERED.
Mowbray, C. J., and Thompson, Gunderson, Manoukian, and Batjer, JJ.
____________
96 Nev. 38, 38 (1980) Hill v. Warden
JAMES DOUGLAS HILL, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 12061
January 3, 1980 604 P.2d 807
Motion to dismiss an appeal from denial of a petition for habeas corpus, First Judicial
District Court, Carson City, Michael E. Fondi, Judge.
Prisoner filed a petition for writ of habeas corpus. The district court denied the petition and
prisoner appealed. On the custodian's motion to dismiss, the Supreme Court, Manoukian, J.,
held that a notice of appeal filed after the district court orally denied the petition, but before
the written order was filed, would be treated as filed after entry of the order and on the day
thereof and the notice of appeal was not premature.
Motion denied.
Norman Y. Herring, State Public Defender, and J. Gregory Damm, Deputy Public
Defender, Carson City, for Appellant.
Richard H. Bryan, Attorney General, and Richard E. Thornley, Deputy Attorney General,
Carson City, for Respondent.
Premature notice of appeal in civil case is ineffective and appeal will be dismissed.
2. Habeas Corpus.
Habeas corpus is proceeding which should be characterized as neither civil nor criminal for all purposes,
but a special statutory remedy which is essentially unique.
96 Nev. 38, 39 (1980) Hill v. Warden
3. Habeas Corpus.
On prisoner's petition for writ of habeas corpus, notice of appeal filed after district court orally denied
petition, but before written order was filed, would be treated as filed after entry of order and on day thereof
and was not subject to dismissal as premature. NRAP 4(b).
OPINION
By the Court, Manoukian, J.:
Appellant, a prisoner at the Nevada State Prison in Carson City, filed a petition for a writ
of habeas corpus in the First Judicial District Court. On June 19, 1979, a hearing was held at
which the trial court orally denied the petition. Three days later, on June 22, 1979, appellant
filed a notice of appeal. On June 26, 1979, a written order denying the petition was filed in
the district court. Respondent moves to dismiss the appeal, arguing that the notice of appeal
was premature, and therefore a nullity.
This habeas corpus case is governed by former NRS 34.380(6), which provided that
appeals be taken within 15 days from the day of entry of the order or judgment.
1
The issue
here is whether the notice of appeal should be treated as filed after entry of the order and on
the day thereof, as in a criminal action. NRAP 4(b).
2

[Headnote 1]
This court has said that a habeas corpus proceeding is in the nature of a civil action. Dean
v. Kimbrough, 88 Nev. 102, 492 P.2d 988 (1972); In re Smith, 35 Nev. 30, 126 P. 679
(1912). In a civil case, the notice of appeal must be filed after written notice of entry of the
judgment. NRAP 4(a). A premature notice of appeal in a civil case is ineffective, and the
appeal will be dismissed. Elko-Tuscarora Co. v. Wines, 24 Nev. 305, 53 P. 177 (1898).
The United States Supreme Court has said that the civil label for habeas corpus is gross
and inexact. Harris v. Nelson, 394 U.S. 286, 293-94 (1969). The Supreme Court has also
held that although habeas corpus is technically civil in nature, it is not automatically subject
to all the rules governing ordinary civil actions. Schlanger v. Seamans, 401 U.S. 487, 490
n.4 (1970).
____________________

1
NRS 34.380 was amended effective July 1, 1979. See 1979 Nev. Stats., ch. 216, at 312.

2
NRAP 4(b), dealing with appeals in criminal cases, provides, in part: A notice of appeal filed after the
announcement of a decision, sentence or order but before entry of the judgment or order shall be treated as filed
after such entry and on the day thereof.

96 Nev. 38, 40 (1980) Hill v. Warden
Our opinions have also recognized that the civil characterization of habeas corpus cases
is not always accurate. In re Smith, supra, was a habeas corpus case in the criminal context.
Although it was said that habeas corpus proceedings are often classed as being in the nature
of civil actions instead of criminal actions, the rules of civil practice were not literally
applied. Dean v. Kimbrough, supra, was a child custody habeas corpus case which was
distinguished from criminal cases on the basis that a child custody habeas corpus case
partakes in its nature that of a private lawsuit in which the state is not a party as in a criminal
action. 88 Nev. at 104, 492 P.2d at 989.
[Headnote 2]
It is apparent that habeas corpus is a proceeding which should be characterized as neither
civil nor criminal for all purposes. It is a special statutory remedy which is essentially unique.
This conclusion is supported by Nevada statutes dealing with writs. While our legislature has
specifically provided for the application of the Nevada Rules of Civil Procedure in cases
involving writs of certiorari and mandamus,
3
there is no similar provision for writs of habeas
corpus.
4
In addition, NRS 34.380 provides that any procedure for a change of judge in a civil
case applies in a habeas proceeding.
5
This provision would not be necessary if habeas corpus
is strictly civil in nature.
In this case it is necessary for us to decide the narrow issue of the effect of a premature
notice of appeal in a post-conviction habeas corpus case.
Karstetter v. Cardwell, 399 F. Supp. 1298 (D.Ariz. 1975), involved an untimely notice of
appeal. In deciding whether to apply a criminal or a civil rule regarding excusable neglect for
the late filing of a notice of appeal, the court noted that in the ordinary civil case, the stakes
are generally property, while in a habeas case a prisoner's liberty is at stake. The court granted
relief to the petitioner, holding that the rule of criminal cases should apply in spite of the
technically civil' nature of this case. Id. at 1300. See also, Stokes v. Peyton's Inc., 508 F.2d
1287 (5th Cir. 1975).
[Headnote 3]
Appellant is serving a ten year sentence in the Nevada State Prison. He has challenged the
legality of his imprisonment. His notice of appeal was filed after the district court orally
denied his petition, but before the written order was filed. The state had notice of appellant's
intent to appeal, and we perceive no prejudice to the state caused by the early notice of
appeal.
____________________

3
NRS 34.130, 34.140, 34.300, and 34.310.

4
See NRS 34.360-34.680.

5
See NRS 34.380(8), as amended 1979 Nev. Stats., ch. 216, at 314.
96 Nev. 38, 41 (1980) Hill v. Warden
had notice of appellant's intent to appeal, and we perceive no prejudice to the state caused by
the early notice of appeal. Under these circumstances, the rule in criminal cases under NRAP
4(b) should be applied, and the notice of appeal will be treated as filed after entry of the
order and on the day thereof.
Respondent's motion to dismiss is denied.
Mowbray, C. J., and Thompson and Batjer, JJ., concur.
Gunderson, J., concurring:
Although I concur in the result, I respectfully submit the majority opinion omits to take
into account that the procedure followed by appellant has heretofore been recognized as valid.
In the past, this court has consistently deemed oral orders denying habeas petitions to be
final and appealable. No written order has been required for finality. No written notice of
entry of judgment has been required, in order to start appeal time running. This court has
dismissed numerous habeas appeals, for not filing notice of appeal within fifteen days after
oral denial.
It therefore seems incorrect to say, as set forth above: In this case it is necessary for us to
decide the narrow issue of the effect of a premature notice of appeal in a post-conviction
habeas corpus case. Under our practice, notice of appeal was not premature. If indeed such
notice was premature, we will now have our work cut out for us, going back to find and to
reinstate all the appeals heretofore dismissed for failure to appeal from oral orders of denial.
____________
96 Nev. 41, 41 (1980) Muscelli v. Muscelli
JOAN BARBARA MUSCELLI, Appellant, v. EMILIO
MUSCELLI, Respondent.
No. 10384
January 10, 1980 604 P.2d 1237
Appeal from order granting summary judgment, Eighth Judicial District Court, Clark
County; Joseph S. Pavlikowski, Judge.
Ex-wife brought suit to set aside divorce decree and property settlement agreement on the
grounds of extrinsic fraud. The district court rendered summary judgment for ex-husband,
and plaintiff appealed. The Supreme Court held that appellant's allegations, supported by
sworn complaint and affidavit, were sufficient to maintain an action based on extrinsic
fraud.
allegations, supported by sworn complaint and affidavit, were sufficient to maintain an action
based on extrinsic fraud.
Jolley, Urga & Wirth, Las Vegas, for Appellant.
Wiener, Goldwater & Waldman, Ltd., Las Vegas, for Respondent.
1. Judgment.
Extrinsic fraud consists of fraud which prevents the opposing party from knowing its rights or defenses,
or from having a fair opportunity to present them at trial.
2. Judgment.
A judgment obtained by extrinsic fraud may later be set aside.
In reviewing a summary judgment, the record must be construed most favorably to the party against
whom the judgment has been rendered.
4. Divorce; Husband and Wife.
Ex-wife's allegations, supported by sworn complaint and affidavit, that ex-husband threatened to inflict
physical violence upon her, to spread malicious rumors against her, and to send adopted child back to its
natural parents, and that she, in succumbing to such coercion, acquiesced in the property settlement terms
and choice of counsel dictated by the husband, were sufficient to maintain an action to set aside the divorce
decree and property settlement agreement on the ground of extrinsic fraud.
OPINION
Per Curiam:
Appellant argues that the district court erred in granting respondent's motion for summary
judgment because questions of material fact remain. We agree.
[Headnotes 1, 2]
In this action appellant seeks to set aside a divorce decree and property settlement
agreement on the grounds of extrinsic fraud. Extrinsic fraud consists of fraud which prevents
the opposing party from knowing its rights or defenses, or from having a fair opportunity to
present them at trial. A judgment obtained by extrinsic fraud may later be set aside. Murphy
v. Murphy, 65 Nev. 264, 193 P.2d 850 (1948); Lauer Et Al. v. District Court, 62 Nev. 78, 140
P.2d 953 (1943).
[Headnote 3]
In reviewing a summary judgment, the record must be construed most favorably to the
party against whom the judgment has been rendered.
has been rendered. Berge v. Fredericks, 95 Nev. 183, 591 P.2d 246 (1979). Thus construed,
the record in this case discloses that respondent threatened to inflict physical violence upon
appellant, to spread malicious rumors against her, and to send an adopted child back to its
natural parents, and that appellant, in succumbing to this coercion, acquiesced in the property
settlement terms and choice of counsel dictated by respondent.
It is contended that our decisions in Applebaum v. Applebaum, 93 Nev. 382, 566 P.2d 85
(1977), and Calvert v. Calvert, 61 Nev. 168, 122 P.2d 426 (1942), require us to affirm the
summary judgment. However, both decisions rest on the premise that the complaining party
had free access to an attorney of her own choosing and are, therefore, readily distinguishable.
[Headnote 4]
We conclude that appellant's allegations, which are supported by sworn complaint and
affidavit, are sufficient to maintain an action based on extrinsic fraud. See, e.g., Parke v.
Parke, 242 P.2d 860 (Idaho 1952); Dennis v. Harris, 153 N.W. 343 (Iowa 1915); Burton v.
Burton, 56 P.2d 385 (Okla. 1936); Chaney v. Chaney, 156 P.2d 559 (Or. 1945).
Accordingly, we reverse and remand for trial.
____________
96 Nev. 43, 43 (1980) LaPena v. State
FRANK LaPENA, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 10938
January 10, 1980 604 P.2d 811
Appeal from judgment of conviction. Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Defendant was convicted before the district court of second-degree kidnapping and battery
with the use of a deadly weapon, and he appealed. The Supreme Court, Mowbray, C.J., held
that: (1) trial court did not err in admitting witnesses' extrajudicial statements under
coconspirator exception to hearsay rule, and (2) evidence independent of testimony or
extrajudicial statements of accomplices was insufficient.
Bell, Leavitt & Green, Ctd., Las Vegas, for Appellant.
Ira H. Hecht, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Under coconspirator exception to hearsay rule, independent evidence necessary to show existence of
conspiracy need only be slight, although it must be independent of extrajudicial statements sought to be
admitted. NRS 51.035, subd. 3(e).
2. Criminal Law.
In prosecution for second-degree kidnapping and battery with the use of a deadly weapon, trial court did
not err in admitting witnesses' statements to third parties under coconspirator exception to hearsay rule,
where evidence of conspiracy was supplied by direct testimony at trial of one of the conspirators; such
testimony was evidence independent of conspirators' extrajudicial statements so as to permit their
introduction under coconspirator exception. NRS 51.035, subd. 3(e).
3. Criminal Law.
Statute which provides that accused may not be convicted on testimony of accomplice unless accomplice
is corroborated by other evidence which in itself tends to connect defendant with commission of offense
demands more than evidence which casts grave suspicion on defendant. NRS 175.291, 175.291, subd.
1.
4. Criminal Law.
In prosecution for second-degree kidnapping and battery with use of a deadly weapon, no evidence was
present independent of testimony or extrajudicial statements of accomplices which tended to connect
defendant with commission of offense, and thus evidence was insufficient to comply with statute providing
that the defendant may not be convicted on testimony of accomplice unless accomplice is corroborated by
other evidence which in itself tends to connect defendant with commission of offense. NRS 175.291,
175.291, subd. 1.
5. Criminal Law.
Admissibility of preliminary hearing testimony in later proceedings is governed by statute providing that
such testimony may be used as substantive evidence in criminal trial only when witness is sick, out of the
state, dead, or when his personal attendance cannot be had in court; such statute, which deals specifically
with issue of admissibility of preliminary hearing testimony of witness who persistently refuses to testify,
prevailed over general evidence code provision governing admissibility of former testimony of unavailable
witness. NRS 51.055, subd. 1(b), 51.325, 171.198, subd. 7.
OPINION
By the Court, Mowbray, C.J.:
Frank LaPena appeals from his conviction, after a court trial, of second degree kidnaping
and battery with the use of a deadly weapon. We consider several of appellant's assignments
of error as meritorious, and we therefore reverse the judgment of conviction and remand for a
new trial.
THE FACTS
Around midnight on November 23, 1973, Willis Obenauer was abducted by two men as he
returned to his apartment in Las Vegas. He was forced into his car at gunpoint, driven out into
the desert, beaten, and shot once in each leg. The two men, Webb, the driver, and Weakland,
the actual assailant, left Obenauer in the desert. They later abandoned his car, and made their
way back to Las Vegas. Weakland and Webb were ultimately arrested in March, 1974, and
incriminated appellant in their statements to police. LaPena was arrested and charged with the
assault on Obenauer. At LaPena's preliminary hearing Webb and Weakland testified that
LaPena had instigated and paid for the attack. We held, on appeal from denial of LaPena's
petition for a writ of habeas corpus, that probable cause sufficient to hold him to answer had
been shown. LaPena v. Sheriff, 91 Nev. 692, 541 P.2d 907 (1975).
At trial, testimony directly inculpating LaPena was given by Webb; but when Weakland
was called, he testified that he had no recollection of the assault on Obenauer, of giving
statements to the police, or of testifying at LaPena's preliminary hearing. The trial court
thereupon ruled Weakland an unavailable witness, under NRS 51.055(1)(b), and admitted
into evidence the transcript of Weakland's testimony at the preliminary examination and a
videotape of a statement Weakland had given the police after plea negotiations over his own
participation in the murder of Hilda Krause. See LaPena v. State, 92 Nev. 1, 544 P.2d 1187
(1976). Appellant presented an alibi defense: several of his former neighbors testified that on
the night of the assault on Obenauer, when Webb and Weakland testified that LaPena had
pointed out the victim at the hotel where both men worked, LaPena had been at home. The
trial court found appellant guilty; this appeal ensued.
THE SUFFICIENCY OF THE EVIDENCE
[Headnotes 1, 2]
Appellant contends that insufficient evidence of his participation in the conspiracy to
assault Obenauer was presented to permit the introduction of Webb's and Weakland's
extrajudicial statements under the coconspirator exception to the hearsay rule. NRS
51.035(3)(e). We do not agree. The independent evidence necessary to show the existence of
a conspiracy need only be slight, Goldsmith v. Sheriff, 85 Nev. 295, 454 P.2d 86 (1969),
although it must be independent of the extrajudicial statements sought to be admitted, Fish v.
State, 92 Nev. 272, 549 P.2d 338 (1976); Goldsmith v. Sheriff, 85 Nev. at 305, 454 P.2d at
92.
305, 454 P.2d at 92. In this case, evidence of the conspiracy was supplied by the direct
testimony at trial of Webb, one of the conspirators; this is clearly evidence independent of the
conspirators' extrajudicial statements. United States v. Hedge, 462 F.2d 220 (5th Cir. 1972);
Laughlin v. United States, 385 F.2d 287 (D.C.Cir.), cert. denied, 390 U.S. 1003 (1967). We
therefore perceive no error in the admission of Webb's and Weakland's statements to third
parties under the coconspirator exception.
[Headnotes 3, 4]
Appellant also asserts that insufficient evidence to corroborate the testimony of the
accomplices as to his involvement in the offense was adduced at trial to comply with the
requirements of NRS 175.291.
1
With this contention, we must agree. The State asserts that
the issue of corroboration is concluded by this Court's decision in LaPena v. Sheriff, 91 Nev.
692, 541 P.2d 907 (1975), in which we found that probable cause existed to hold LaPena for
trial. The corroborated evidence at the preliminary hearing established that LaPena disliked
Obenauer, that he was associated with Weakland, and that neither Weakland nor Webb had
any personal motive for the assault. In the context of showing probable cause, that was
sufficient.
At trial, however, explanatory evidence was adduced. It was shown that Obenauer was
disliked by his subordinates at work generally, not only by LaPena. Bordeaux, Webb's
girlfriend, testified that she had originally understood from Webb that the assault on
Obenauer was being made at the request of Weakland's brother; and that she had heard the
name Frank only in February, 1974, when Webb cautioned her to forget the name Frank.
Hodges, Weakland's ex-wife, testified that she had seen Weakland and LaPena together; that
she had received money from LaPena for delivery to Weakland in February, 1974; and that
she had returned a pair of lead-weighted gloves to LaPena, at Weakland's request, near the
end of January, 1974. This is part of the same evidence which we found sufficient to hold
LaPena for trial for the murder of Hilda Krause, which occurred on January 14, 1974, and in
which Weakland was again the actual perpetrator. LaPena v. State, 92 Nev. at 5, 11, 544 P.2d
at 1189, 1193. As far as the corroborated testimony of Webb and Weakland casts any
suspicion on appellant, it seems to be in regard to the Krause murder rather than the
Obenauer assault.
____________________

1
NRS 175.291(1) provides: A conviction shall not be had on the testimony of an accomplice unless he is
corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to
connect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it
merely shows the commission of the offense or the circumstances thereof.
to be in regard to the Krause murder rather than the Obenauer assault. It is unclear even from
the testimony of Webb whether the lead-weighted gloves were actually used in the attack on
Obenauer, while they do seem to have been used in the Krause murder. Id. at 4, 544 P.2d at
1189. We have held that the corroboration requirement demands more than evidence which
casts a grave suspicion on the defendant, Eckert v. State, 91 Nev. 183, 186, 533 P.2d 468,
471 (1975) (citations omitted). In the circumstances of this case, we find that no evidence,
independent of the testimony or extrajudicial statements of the accomplices, is present which
tends to connect appellant with the commission of the instant offense.
WEAKLAND'S TESTIMONY
[Headnote 5]
The trial court ruled Weakland unavailable as a witness because he was [p]ersistent in
refusing to testify, NRS 51.055(1)(b), and admitted his preliminary hearing testimony under
the former testimony exception to the hearsay rule, NRS 51.325. We note that the
admissibility of preliminary hearing testimony in later proceedings is governed by NRS
171.198(7), which provides, in pertinent part, that such testimony may be used as substantive
evidence in a criminal trial only when the witness is sick, out of the state, dead, or when his
personal attendance cannot be had in court. This statute, dealing specifically with the subject
at issue, prevails over the general evidence code provision, see W.R. Co. v. City of Reno, 63
Nev. 330, 172 P.2d 158 (1946). On remand, therefore, the trial court should test the
admissibility of Weakland's preliminary hearing testimony as a substitute for his live
testimony under NRS 171.198(7).
It was drawn to our attention at oral argument that the accomplice Weakland has been tried
and convicted of perjury (in the Eighth Judicial District Court, Case No. C37651) in
connection with testimony he gave in the Krause murder trial, a matter closely related to the
instant case. We prefer to have the district court deal in the first instance with any questions
raised by the conviction of Weakland in light of Mesarosh v. United States, 352 U.S. 1 (1956)
and United States v. Basurto, 497 F.2d 781 (9th Cir. 1974).
The judgment of the district court is reversed and the cause is remanded for a new trial.
____________
96 Nev. 48, 48 (1980) Gibson v. State
DWAYNE GIBSON Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 11506
January 10, 1980 604 P.2d 814
Appeal from judgment of conviction, Sixth Judicial District Court, Humboldt County;
Llewellyn A. Young, Judge.
Defendant was convicted of grand larceny and possession of stolen property, and from the
judgment of the district court, the defendant appealed. The Supreme Court held that: (1)
defendant waived any defects in grand jury proceedings by failing to file a proper pretrial
motion; (2) fact that a prosecution was initiated by indictment rather than by information does
not violate an accused's right to due process and equal protection; (3) circumstantial evidence
sustained the conviction; and (4) the trial court did not abuse its discretion by granting the
State's motion to join the two indictments.
Affirmed.
Norman Y. Herring, State Public Defender, Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City; and William Macdonald, District
Attorney, Humboldt County, for Respondent.
1. Criminal Law.
Appellant could not object to alleged errors in grand jury proceedings where defendant did not seek to
remedy such alleged defects by proper pretrial motion. NRS 174.105, subds. 1, 2.
The fact that the prosecution was initiated by indictment rather than by information does not violate an
accused's right to due process and equal protection. U.S.C.A.Const. Amend. 14.
3. Larceny.
Circumstantial evidence sustained conviction of grand larceny. NRS 205.220.
4. Criminal Law.
Where there is conflicting testimony presented, it is for the jury to determine the weight and credibility to
give to the testimony.
5. Criminal Law.
Since there is substantial evidence to support jury's verdict of guilt, it will not be disturbed on appeal.
6. Criminal Law.
Trial court did not abuse its discretion in granting State's motion to join indictment charging grand
larceny with indictment charging possession of stolen property where offenses charged were based on a
common scheme or plan.
scheme or plan. NRS 173.115, subd. 2, 205.220, 205.275; Fed.Rules Cr. Proc. Rule 8(a), 18 U.S.C.A.
OPINION
Per Curiam:
After a jury trial, appellant was found guilty of grand larceny (NRS 205.220) and
possession of stolen property (NRS 205.275). Appellant was sentenced to two 5-year
sentences to be served consecutively. For reasons explained below we affirm the conviction.
Appellant was an inmate at the Susanville, California Correctional Center. He and another
inmate were reported missing from the institution on the morning of August 17, 1978. A blue
Toyota truck was also reported missing from the Susanville airport on August 17, 1978. Two
male persons in a blue Toyota truck were seen driving into a driveway near a Winnemucca,
Nevada used car lot early in the morning of August 18, 1978. A Ford truck was reported
missing from the used car lot and the blue Toyota truck was found behind the lot on August
18, 1978. Appellant's fingerprints were also found on the blue Toyota truck.
The missing Ford truck was observed traveling on the highway outside of Wells, Nevada
by a Nevada Highway Patrol officer. The Ford truck had two male occupants. The patrol
officer attempted to obtain the driver's attention but the truck took a sudden sharp right turn
off the highway. The officer next observed what appeared to be a ball of fire coming from the
area in which the Ford truck disappeared. Appellant was found in the area of the burning
truck.
At trial appellant testified that he and a friend were hitchhiking from Susanville. He
testified that they accepted a ride in a blue Toyota truck. The Toyota later had mechanical
problems and the driver rented a truck in Winnemucca. The appellant testified that there was
a fire in the truck. As a result the driver jumped from the truck and the truck swerved off the
highway. According to the appellant, the fire later engulfed the whole truck.
Appellant asserts the following as error: that certain irregularities in the grand jury
proceedings deprived him of his constitutional right to due process; that the prosecution of
appellant by grand jury indictment denied him of his constitutional right to equal protection;
that there was not sufficient evidence adduced at trial to convict appellant of grand larceny;
and that the trial court abused its discretion when it joined the grand larceny indictment
and the possession of stolen property indictment.
and that the trial court abused its discretion when it joined the grand larceny indictment and
the possession of stolen property indictment.
[Headnote 1]
Appellant contends that the grand jury proceedings did not proceed as the Nevada statute
requires. He asserts that the indictment was returned without the presence of the district court
judge or the clerk of the court as required by NRS 172.255(1); that the record fails to show
that the grand juror were sworn; that the prosecutor failed to solicit questions from the grand
jurors; and that an unknown stranger entered the grand jury proceedings. The record does not
reveal whether appellant sought to remedy these alleged defects by a proper pre-trial motion.
NRS 174.105(1) requires that such objections may be raised only by motion before trial. In
addition, the statute specifically provides that: Failure to present any such defense or
objection as herein provided constitutes a waiver. . . . NRS 174.105(2). Thus appellant has
failed to raise his objections in a timely manner and to show cause for relief from the
statutory waiver. See Vincze v. State, 86 Nev. 546, 472 P.2d 936 (1970); Lujan v. State, 85
Nev. 16, 449 P.2d 244 (1969).
[Headnote 2]
Since we have recently held that the fact that a prosecution was initiated by indictment
rather than by information does not violate an accused's right to due process and equal
protection, Seim v. State, 95 Nev. 89, 590 P.2d 1152 (1979), appellant's second argument is
without merit.
[Headnote 3]
Appellant's next assignment of error is that the evidence adduced at trial was not sufficient
to convict appellant of grand larceny. A review of the record shows that although there is no
direct evidence that appellant took the vehicle, there is a circumstantial chain of facts by
which the ownership and possession of the Ford truck, the disappearance of the truck, and the
absence of the owner's consent or sale of the truck were established. Furthermore, the Toyota
truck was found close to the used car lot, and the appellant was later found near the burning
Ford truck. In Staab v. State, 90 Nev. 347, 350, 526 P.2d 338, 340 (1974), we held that:
Recent, exclusive and unexplained possession of stolen property by an accused person gives
rise to an inference of guilt which may be sufficient to convict in the absence of other facts
and circumstances which leave a reasonable doubt in the minds of the jury.
[Headnotes 4, 5]
Although appellant did testify and did offer his version of the situation, the jury
apparently did not choose to accept appellant's explanation.
the situation, the jury apparently did not choose to accept appellant's explanation. We have
held that where there is conflicting testimony presented, it is for the jury to determine the
weight and credibility to give to the testimony. Henderson v. State, 95 Nev. 324, 594 P.2d
712 (1979); Stewart v. State, 94 Nev. 378, 580 P.2d 473 (1978); Hankins v. State, 91 Nev.
477, 538 P.2d 167 (1975). Since there is substantial evidence to support the jury's verdict, it
will not be disturbed on appeal. See, McKinney v. State, 95 Nev. 494, 596 P.2d 503 (1979);
Henderson v. State, supra; Stewart v. State, supra; Cunningham v. State, 94 Nev. 128, 575
P.2d 936 (1978); Sanders v. State, 90 Nev. 433, 529 P.2d 206 (1974).
[Headnote 6]
Lastly, appellant contends that the trial court abused its discretion by granting the state's
motion to join the two indictments. The trial court reasoned that the joinder was proper since
the offenses charged were based on a common scheme or plan as provided in NRS
173.115(2). Since the possession of the Toyota truck and the subsequent larceny of the Ford
truck could have been part of appellant's scheme or plan to escape from the California
Correctional Institution, these indictments were properly joined. Cf. Federal Rule of Criminal
Procedure 8(a); United States v. Leonard, 445 F.2d 234 (D.C. Cir. 1971); Moeller v. United
States, 378 F.2d 14 (5th Cir. 1967). The trial court acted within its discretion. See, Lovell v.
State, 92 Nev. 128, 546 P.2d 1301 (1976).
Accordingly, we affirm.
____________
96 Nev. 51, 51 (1980) Patel v. Patel
MANGUBEN A. PATEL, Appellant, v. ATMARAM K.
PATEL, Respondent.
No. 10414
January 14, 1980 604 P.2d 816
Appeal from judgment, Second Judicial District Court, Washoe County; John E. Gabrielli,
Judge.
The district court entered judgment dissolving parties' marriage and providing for other
relief, and appeal was taken. The Supreme Court held that: (1) substantial evidence supported
trial court's finding that plaintiff satisfied residency requirements; (2) trial court did not abuse
its discretion in determining support of minor children; and {3) evidence was sufficient to
support a finding of incompatibility.
96 Nev. 51, 52 (1980) Patel v. Patel
support of minor children; and (3) evidence was sufficient to support a finding of
incompatibility.
Affirmed.
Fry and Fry, Reno, for Appellant.
Joseph J. Kay, Reno, for Respondent.
1. Divorce.
Question of plaintiff's residence in a divorce action is one of fact to be determined by trial court. NRS
125.020.
2. Divorce.
Substantial evidence supported trial court's finding that plaintiff in divorce action satisfied residency
requirements. NRS 125.020.
3. Divorce.
Trial court's exercise of discretion in awarding support for a minor child will not be disturbed on appeal
unless there is a clear case of abuse. NRS 125.140.
4. Divorce.
Trial court did not abuse its discretion in determining support of minor children in divorce proceeding.
NRS 125.140.
5. Divorce.
Evidence adduced in divorce action was sufficient to support a finding of incompatibility.
OPINION
Per Curiam:
The trial court entered judgment dissolving the parties' marriage and providing for other
relief. Appellant Manguben A. Patel has appealed, contending that the district court lacked
jurisdiction and made improper rulings regarding child support payments. Appellant further
contends that the grounds for divorce were not proved.
[Headnotes 1, 2]
Appellant first submits that the trial court lacked jurisdiction to grant the divorce, alleging
that respondent failed to satisfy the residency requirement of NRS 125.020.
1
The question of
plaintiff's residence in a divorce action is one of fact to be determined by the trial court.
Woodruff v. Woodruff, 94 Nev. 1, 573 P.2d 206 (1978). See Boisen v. Boisen, 85 Nev. 122,
451 P.2d 363 (1969). Here, there is substantial evidence to support the district court's finding
of respondent's bona fide residence.
____________________

1
NRS 125.020(1)(e) provides:
Divorce from the bonds of matrimony may be obtained . . . [i]f plaintiff shall have resided 6 weeks in
the state before suit be brought.
96 Nev. 51, 53 (1980) Patel v. Patel
Woodruff v. Woodruff, supra; Boisen v. Boisen, supra; Baker v. Baker, 76 Nev. 127, 350
P.2d 140 (1960).
[Headnotes 3, 4]
Appellant next contends that the trial court abused its discretion in ordering respondent to
pay $75 per child per month for the two children of the marriage. Appellant submits that
these support payments are insufficient considering the respondent's income and the
children's poor health. NRS 125.140 confers broad discretionary powers upon the district
court in determining support of minor children in divorce proceedings. The exercise of such
discretion by the trial court in awarding support for a minor child will not be disturbed on
appeal unless there is a clear case of abuse. Gilbert v. Warren, 95 Nev. 296, 594 P.2d 696;
Nichols v. Nichols, 91 Nev. 479, 537 P.2d 1196 (1975); Culbertson v. Culbertson, 91 Nev.
230, 533 P.2d 768 (1975); Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1 (1974). A review
of the record herein discloses no such abuse of discretion. Rather, it appears that the trial
court reviewed extensive documentation regarding respondent's financial ability to support
the children and carefully considered the fact that the children were covered by respondent's
medical and hospitalization insurance policy.
[Headnote 5]
Finally, appellant contends that incompatibility as the ground for divorce was not proved.
This contention is without merit. The record herein is replete with instances evidencing
incompatibility.
The judgment of the lower court is affirmed. Respondent's motion for attorney's fees and
costs is denied.
____________
96 Nev. 53, 53 (1980) Gartland v. Giesler
MADELINE GARTLAND, Appellant, v. HARRY J.
GIESLER, Respondent.
No. 10336
January 15, 1980 604 P.2d 1238
Appeal from judgment for defendant. Eight Judicial District Court, Clark County; James
A. Brennan, Judge.
Plaintiff sought to recover money allegedly due on a promissory note. The complaint was
dismissed with prejudice by the district court and plaintiff appealed. The Supreme Court held
that: {1) where it was found that parties had agreed upon a rate of interest but that the
rate agreed upon was unascertainable, the statute fixing the rate when there is no
express contract in writing fixing date was not applicable, and {2) where the rate of
interest claimed in plaintiff's complaint was in excess of the statutory maximum rate, the
rate was usurious at the time the contract was entered into and was completely
unenforceable.
that: (1) where it was found that parties had agreed upon a rate of interest but that the rate
agreed upon was unascertainable, the statute fixing the rate when there is no express contract
in writing fixing date was not applicable, and (2) where the rate of interest claimed in
plaintiff's complaint was in excess of the statutory maximum rate, the rate was usurious at the
time the contract was entered into and was completely unenforceable.
Affirmed.
Jerry J. Kaufman and Lillian J. Sondgeroth, Las Vegas, for Appellant.
Cromer, Barker & Michaelson and Gerald I. Gillock, Las Vegas, for Respondent.
1. Judgment.
Affidavit of counsel asserting that, because of other trial commitments, he had not realized that date for
answering complaint had passed was not as matter of law insufficient to permit finding of excusable
neglect. NRCP 60(b).
2. Interest.
Where it was found that parties had agreed upon rate of interest but that rate agreed upon was
unascertainable, statute fixing rate when there is no express contract in writing fixing date was not
applicable. NRS 99.040.
3. Usury.
Where rate of interest claimed in plaintiff's complaint was in excess of statutory maximum rate, rate was
usurious at time contract was entered into and was completely unenforceable. NRS 99.050.
OPINION
Per Curiam:
Appellant seeks review of the trial court's dismissal, with prejudice, of her complaint to
recover money allegedly due on a promissory note. We perceive no error in the record and
accordingly affirm.
Appellant's complaint alleged the existence of a promissory note, executed in 1967
between her and respondent Giesler, for the sum of $4,661.55, payable in $50 monthly
installments, with interest at the rate of one (1%) percent on the declining balance.
Although payments were made by respondent between May, 1967, and July, 1975, appellant
alleged that $4,556.61 was still due and owing on the note. Respondent failed to file a timely
answer to the complaint, and on February 2, 1976, appellant was granted a default judgment.
On February 17, 1976, respondent's attorney moved to set aside the default, his affidavit
asserting that because of other trial commitments he had not realized that the answering
date had passed, and that the respondent had a meritorious defense; a proposed answer
was also tendered.
default, his affidavit asserting that because of other trial commitments he had not realized that
the answering date had passed, and that the respondent had a meritorious defense; a proposed
answer was also tendered. The district judge granted the motion to set aside the default and
the case proceeded to trial. After a trial to the court, judgment was entered for respondent,
dismissing appellant's claim with prejudice. The district court found that respondent had been
indebted for the principal sum specified in the note, that the principal had been paid, and that
the amount of interest was uncertain and unknown. This appeal ensued.
[Headnote 1]
We find no merit to appellant's contention that the district court abused its discretion in
granting the motion to set aside the default judgment. Such a decision will not be disturbed
on appeal absent a clear abuse of discretion. Hotel Last Frontier v. Frontier Prop., 79 Nev.
150, 380 P.2d 293 (1963). The record before us reveals that respondent complied with the
requirements of NRCP 60(b); and we decline to hold that, as a matter of law, failure to
answer because of trial commitments cannot be excusable neglect.
[Headnote 2]
Appellant contends that the district court erred in not granting her interest on the principal
sum of the promissory note at the legal rate of interest under NRS 99.040. We do not agree.
NRS 99.040 provides, in relevant part, that [w]hen there is no express contract in writing
fixing a different rate of interest, interest shall be allowed at the rate of 7 percent per annum.
In this case, the note in question did specify a rate of interest, but the district court found that
it was too vague to be enforceable.
1
It is axiomatic that a court will not rewrite a contract for
the parties, especially when it would have to interject terms that would change the value of
the instrument. Jones v. P.W., L.& F. Co., 13 Nev. 359, 375 (1878). Since the district court
found that the parties had agreed upon a rate of interest, but that the rate they had agreed upon
was unascertainable, NRS 99.040 does not apply.
[Headnote 3]
Appellant's argument that she should be entitled to the legal rate of interest because she
has waived the rate specified in the note is equally meritless.
____________________

1
Cases cited by appellant which deal with pre-printed promissory notes in which the interest provision is
inadvertently left blank are not on point, since in those cases there is no express written contract fixing a
specified rate of interest. See, e.g., Chelsea Exch. Bank v. Warner, 195 N.Y.S. 419 (1922).
note is equally meritless. Appellant's complaint sought to recover interest at the rate of one
percent per month, compounded monthly, a rate in excess of the statutory maximum rate then
set by NRS 99.050. As this rate was usurious at the time the contract was entered into, it is
completely unenforceable. Pease v. Taylor, 88 Nev. 287, 496 P.2d 757 (1972). Thus, even if
the interest rate were ascertainable at the rate initially claimed by appellant, recovery would
be barred.
The judgment of the district court is affirmed.
Mowbray, C. J., Thompson, Manoukian, and Batjer, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

2
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case. Nev. Const.
art. 6, 19; SCR 10 and 11.
____________
96 Nev. 56, 56 (1980) Jacobson v. Stern
NATHAN JACOBSON, Appellant, v. MARTIN
STERN, Jr., Respondent.
No. 9898
January 16, 1980 605 P.2d 198
Appeal from judgment, Second Judicial District Court, Washoe County; Grant L. Bowen,
Judge.
Architect brought action against promoter of corporation to recover for architectural
services rendered in the development of a hotel/casino. The district court allowed architect
cost of delay when promoter requested a continuance and subsequently rendered judgment for
architect, and promoter appealed. The Supreme Court held that: (1) district court properly
found the promoter, rather than his corporation, liable on the contract; (2) trial court properly
found that there was no novation and that architect never agreed to relieve promoter from his
obligation; and (3) action of district court in allowing architect his cost of delay was
permitted by local District Court Rules.
Affirmed.
[Rehearing denied March 4, 1980]
David Hamilton, Reno, Simon & Sheridan, Los Angeles, California, for Appellant.
Cromer, Barker & Michaelson and Victor Alan Perry, Reno, for Respondent.
1. Corporations.
A contract with a corporation's promoter is not one with the corporation absent some subsequent
corporate act or agreement.
2. Corporations.
In action brought to recover architectural services rendered to promoter of corporation which was
subsequently formed to own and operate a hotel and casino being developed by promoter, evidence was
sufficient to support trial court's judgment of promoter's personal liability on the contract with the architect.
3. Corporations.
If a preincorporation contract made by a promoter is within corporate powers, corporation may, when
organized, expressly or impliedly ratify the contract and thereby make it a valid obligation of the
corporation.
4. Corporations.
If a corporation accepts benefits of a preincorporation contract made by a promoter, it will be required to
perform the contractual obligations; however, liability of the corporation by adoption does not, absent a
novation, end liability of the promoter to the third party.
5. Novation.
Where there is a valid express or implied novation by a corporation of a preincorporation contract made
by a promoter, the corporation is substituted for the promoter as a party to the contract in all respects and
the promoter is divested of his right and released of his liabilities.
6. Novation.
In order to constitute a valid novation, the creditor must assent to the substitution of a new obligor, but
this assent may be inferred from his acceptance of part performance by the new obligor if the performance
is made with understanding that a complete novation is proposed.
7. Novation.
Intent of parties to cause a novation must be clear.
8. Novation.
In action brought to recover architectural services rendered to promoter of corporation which was
subsequently formed to own and operate a hotel and casino being developed by promoter, there was no
evidence showing that the architect agreed to substitution of the corporation for the promoter in the
contract or that he performed with knowledge or understanding that a novation was proposed, and thus trial
court did not err in finding no novation and that the architect never agreed to release the promoter from his
obligations.
9. Costs.
District court's allowance of $2,000 to plaintiff for his cost of delay when cocounsel of defendant's
attorney requested a continuance due to fact that defendant's attorney was unable to be in court was
permitted by local District Court Rules. DCR 4D, 9.
OPINION
Per Curiam:
This action was brought by Martin Stern for architectural services rendered to Nathan
Jacobson in Jacobson's development of a hotel and casino, known as the Kings Castle, on
the north shore of Lake Tahoe, Nevada.
services rendered to Nathan Jacobson in Jacobson's development of a hotel and casino,
known as the Kings Castle, on the north shore of Lake Tahoe, Nevada. These parties were
involved in two projects during the time involved in this action: the Bonanza in Las Vegas
and the Kings Castle in Incline Village. The case at bar concerns only the Kings Castle
project.
1

In January, 1969, Jacobson contacted Stern and asked him to draw plans for Jacobson's
new hotel/casino at Lake Tahoe. Stern immediately began preliminary work on the project
and contacted soil engineers and surveyors in this regard. At this time Stern dealt directly
with Jacobson, who referred to the project as my hotel, and with Taylor of Nevada which
was to be the general contractor.
On February 18, 1969, Stern wrote to Jacobson detailing, among other things, the
architect's services and the fee. Stern's plans were subsequently discussed by the two men and
Stern's fee was agreed to be $250,000. Stern was told by Jacobson to proceed, and he
completed the preliminary plans by March, 1969. The highrise foundation plans were finished
on May 1, 1969, and the scope of the work plans were initiated on May 6, 1969. Stern
testified at trial that by May 6, 1969, at least 60 percent of the architectural services were
complete, and the architectural plans and drawings were completed by July 31, 1969. At trial,
Jacobson disagreed with these figures, since the theatre and dining room had to be redrawn,
but he did not give his own estimate. A letter from Jacobson to Stern, written March 10,
1970, acknowledges that the parties entered into a contract in April, 1969, but no written
contract was ever admitted into evidence despite Jacobson's testimony that such a document
was executed.
At the same time as the plans for the building were being developed by Stern, Jacobson
was negotiating financing and setting up business structures to own and manage the property.
On May 1, 1969, Jacobson acquired all of the stock of A.L.W., Inc., a corporation which had
previously operated a casino on the site, and which was to operate the Kings Castle.
Levin-Townsend Computer Corporation subsequently purchased 20 percent of the A.L.W.,
Inc. stock for $300,000. On May 9, 1969, a business structure for ownership of Kings Castle
was set up and a number of documents were executed. The business structure included the
formation of Lake Enterprises, a corporation of which Jacobson was the sole stockholder and
president. Kings Castle, Limited Partnership was formed with Lake Enterprises Inc. as the
general partner and Jacobson and others as limited partners.
____________________

1
See also Bonanza Hotel v. Bonanza No. 2, 95 Nev. 463, 596 P.2d 227 (1979).
Enterprises Inc. as the general partner and Jacobson and others as limited partners. Jacobson
was the most substantial investor in Kings Castle, Limited Partnership, with investments in
excess of $3 million.
After May 9, 1969, A.L.W., Inc. operated the hotel and casino and Kings Castle, Limited
Partnership, leased the land. All monies were subsequently paid and received through these
two entities. Stern billed Jacobson beginning in June of 1969. Some of the billings were
disputed, but Stern was in fact paid $30,000 on June 13, 1969; $30,000 on August 11, 1969;
$58,000 on September 12, 1969, and $32,000 on October 17, 1969. All of the checks were
drawn on the account of A.L.W., Inc.; only one of the checks was signed by Jacobson.
The Kings Castle opened in July 1970. On February 3, 1972, A.L.W., Inc., as owner of
Kings Castle and Casino, filed its petition for arrangements under Chapter XI of the
Bankruptcy Act. Stern did not file a claim in that proceeding.
This case was set for trial November 17, 1975. On the first day of trial Jacobson's attorney
was unable to be in court and co-counsel requested a continuance. The judge granted the
continuance but, as a condition, allowed a fee of $2,000 to be given to Stern for his costs of
delay. Later, after a three week trial, judgment was rendered for Stern in the amount of
$132,590.37, plus interest.
In this appeal Jacobson contends: (1) that there was insufficient evidence presented at trial
to support the judgment of his personal liability; (2) that the obligations of Jacobson were
adopted by A.L.W., Inc., and that such adoption constituted a novation; and, (3) that it was
improper for the court to assess costs against Jacobson for a continuance of the trial.
1. Appellant contends there is no evidence to support the district court's findings that
Stern was not dealing with any of the existing corporate entities; Levin-Townsend Computer
Corporation; Bonanza No. 2; J.J. Enterprises;
2
Jacobson as agent for any of these; or with
Jacobson as agent for Kings Castle or any other principal.
The evidence shows that Jacobson was, in the early months of 1969, President of J.J.
Enterprises, which wholly owned Bonanza No. 2, and Chairman of the Board of Caesar's
Palace. There is no evidence, however, that at that time Jacobson was acting on behalf of any
of these entities in contracting for the building of Kings Castle Casino, and this is borne out
by the fact that none of these entities subsequently became involved with the Kings Castle
Casino. Although Stern may have known of Jacobson's affiliations, and known that many
of the same people who owned and managed the Bonanza were involved in the Kings
Castle project, there is little evidence, if any, that he contracted with Jacobson in any
capacity connected with those existing corporations.
____________________

2
These corporations were involved in the Bonanza project in Las Vegas.
of Jacobson's affiliations, and known that many of the same people who owned and managed
the Bonanza were involved in the Kings Castle project, there is little evidence, if any, that he
contracted with Jacobson in any capacity connected with those existing corporations. There is
no evidence the Levin-Townsend Computer Corporation had anything more than a 20 percent
ownership interest in A.L.W., Inc. The record is also devoid of evidence that they were
involved with Stern directly, or that Jacobson ever represented them in negotiations with
Stern.
Kings Castle, Limited Partnership, and Lake Enterprises, Inc., did not exist until May 9,
1969. A.L.W., Inc. existed from 1965, but Jacobson had no connection with it at all until he
purchased the stock on May 1, 1969. The contract for architectural services, which was
certainly for the benefit of A.L.W., Inc. and Kings Castle, Limited Partnership, was made
before May 1, 1969. Stern maintains that he had a contract with Jacobson from February 18,
1969, and Jacobson admits a contract as of April 1969, but in any event the contract was in
existence before Kings Castle, Limited Partnership, and Lake Enterprises, Inc., and before
Jacobson's involvement with A.L.W., Inc. Thus, none of these corporations could contract, or
have Jacobson contract for them because they were not yet organized. Peters Grazing
Association v. Legerski, 544 P.2d 449 (Wyo. 1975).
Appellant, citing Gillig & Co. v. Lake Bigler Road Co., 2 Nev. 214 (1866), further argues
that a course of conduct between the parties created a presumption that Jacobson was acting
as agent of J.J. Enterprises, as owner of the Bonanza. The record supports the determination
that there was no course of dealing or custom and practice between these parties which would
tend to establish Jacobson's agency for J.J. Enterprises in his relationship with Stern in the
Kings Castle.
[Headnotes 1, 2]
In the absence of any evidence to the contrary, and in the presence of testimony by Stern
that he thought he was dealing with Jacobson as an individual, the district court concluded
that the contract was made between Jacobson, as promoter of the Kings Castle project, and
Stern. A contract with the promoter is not one with the corporation absent some subsequent
corporate act or agreement. Paxton v. Bacon Mill & Mining Co., 2 Nev. 257 (1866); Peters
Grazing Association v. Legerski, supra. Thus, the district court properly found Jacobson, as
promoter, liable on the contract.
[Headnotes 3, 4]
2. Under Nevada law, if a pre-incorporation contract made by a promoter is within the
corporate powers, the corporation may, when organized, expressly or impliedly ratify the
contract and, thus, make it a valid obligation of the corporation.
by a promoter is within the corporate powers, the corporation may, when organized, expressly
or impliedly ratify the contract and, thus, make it a valid obligation of the corporation.
Chartrand v. Barney's Club, Inc., 380 F.2d 97 (9th Cir. 1967). If the corporation accepts the
benefits of the contract, it will be required to perform the contractual obligations. Id. The
evidence supports a finding that the A.L.W. corporation accepted the benefits of the contract
for architectural services, and in fact adopted the contractual obligations and made partial
payments on the obligation. However, liability of the corporation by adoption does not,
absent a novation, end the liability of the promoter to the third party. Allen Steel Supply Co.
v. Bradley, 402 P.2d 394 (Idaho 1965).
[Headnotes 5, 6]
Appellant argues that there was, in fact, a novation by A.L.W., Inc., in its adoption of all
agreements as its corporate liabilities. Where there is a valid express or implied novation, the
corporation is substituted for the promoter as a party to the contract in all respects, and the
promoter is divested of his rights and released of his liabilities. Decker v. Juzwik, 121
N.W.2d 652 (Iowa 1963); see Williams v. Crusader Disc. Corp., 75 Nev. 67, 334 P.2d 843
(1959). In order to constitute a valid novation, however, the creditor must assent to the
substitution of a new obligor, but this assent may be inferred from his acceptance of part
performance by the new obligor, if the performance is made with the understanding that a
complete novation is proposed. Nev. Bank Comm. v. Esquire R.E., Inc., 86 Nev. 238, 468
P.2d 22 (1970).
[Headnotes 7, 8]
Appellant contends that, because the evidence shows that after May 1, 1969, Stern
probably knew, or should have known, that he was performing for the benefit of A.L.W., Inc.,
and was paid by A.L.W., Inc., he impliedly consented to a novation. There is no evidence,
however, showing that Stern agreed to the substitution of A.L.W., Inc. for Jacobson in the
contract, or that he performed with the knowledge or understanding that a novation was
proposed. See Nev. Bank Comm. v. Esquire R.E., Inc. supra. In fact he maintained
throughout that he had contracted with Jacobson and felt that Jacobson was personally liable
on the contract. The intent of the parties to cause a novation must be clear. Zuni Constr. Co.
v. Great Am. Ins. Co., 86 Nev. 364, 468 P.2d 980 (1970). See Bank of Fairbanks v. Kaye, 227
F.2d 566 (9th Cir. 1955); Allen Steel Supply Co. v. Bradley, supra. The trial court found
there was no novation and that Stern never agreed to release Jacobson from his obligations.
We agree with this finding.
[Headnote 9]
3. Appellant, citing Sun Realty v. District Court, 91 Nev. 774, 542 P.2d 1072 (1975),
argues that the district court erred in imposing sanctions on Jacobson ordering him to pay
respondent's cost of delay. Sun Realty, however, involves an act of the court taken without
authority by rule or statute. The act taken by the court in the case at bar was clearly permitted
by the local District Court Rules, approved by this court. The Rules of Practice for the Second
Judicial District Court of the State of Nevada provided that [a]t the time of trial all parties
shall have completed all discovery procedures and be ready for trial. D.C.R. 4D. Rule 9 of
those rules further provided, in pertinent part:
If a party or an attorney fails or refuses to comply with these rules, the court may make
such orders and impose such sanctions as are just, including, but not limited to, the
following:
. . . .
(b) Continue any hearing until the disobedient party or attorney has complied with the
requirements imposed, to pay the other party his expenses, including a reasonable
attorney's fee, incurred in preparing for and attending such hearing.
Thus, Sun Realty does not apply in this instance and the district court acted within its
authority.
Accordingly, the judgment of the district court is affirmed.
3
concur.
____________________

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case. Nev. Const.
art. 6, 19; SCR 10 and 11.
____________
96 Nev. 62, 62 (1980) Mann v. State
WILLIAM PATRICK MANN, Appellant, v. THE
No. 10675
January 16, 1980 605 P.2d 209
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Defendant was convicted in the district court after a plea bargain had been aborted.
Defendant appealed. The Supreme Court, Mowbray, C.J., held that: (1) the statute which, on
its face, prohibits prosecutor's use of evidence of plea of guilty later withdrawn or of offer to
plead guilty is not limited to actual pleas of guilty or offers to plead but extend to a
statement made by accused while negotiating or entering plea and precludes use of such
statements even for impeachment purposes at subsequent trial, and {2) where the district
court's ruling that such statements by accused would be admissible for impeachment of
defendant prevented defendant from testifying in his own behalf, the degree of resulting
prejudice was unascertainable, and normal rules of harmless reversible error did not
apply, but, rather, a new trial was required.
96 Nev. 62, 63 (1980) Mann v. State
later withdrawn or of offer to plead guilty is not limited to actual pleas of guilty or offers to
plead but extend to a statement made by accused while negotiating or entering plea and
precludes use of such statements even for impeachment purposes at subsequent trial, and (2)
where the district court's ruling that such statements by accused would be admissible for
impeachment of defendant prevented defendant from testifying in his own behalf, the degree
of resulting prejudice was unascertainable, and normal rules of harmless reversible error did
not apply, but, rather, a new trial was required.
Thompson, J., dissented.
Morgan D. Harris, Public Defender, Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; and Richard J. Miller, District
Attorney, Clark County, for Respondent.
1. Criminal Law.
For the validity of plea bargain, accused must be free to discuss his guilt, prosecutor must be open to
discuss any type of punishment or rehabilitative strategy appropriate to offender and offense, and accused
or prosecutor must be able to discuss relevant matters openly and honestly. NRS 48.125.
2. Witnesses.
Statute which, on its face, prohibits prosecutor's use of evidence of plea of guilty later withdrawn or of
offer to plead guilty is not limited to actual pleas of guilty or offers to plead but extend to statement made
by accused while negotiating or entering plea and precludes use of such statements even for impeachment
purposes at subsequent trial. NRS 48.125, 199.120; U.S.C.A.Const. Amend. 5.
3. Criminal Law.
In entering plea bargain, accused waives his right to be free from testimonial compulsions, but basis for
waiver is vitiated when plea agreement, for whatever reason, fails to be consummated. NRS 48.125,
199.120; U.S.C.A.Const. Amend. 5.
4. Criminal Law.
Where district court's ruling that statements made by accused while entering plea of guilty pursuant to
aborted plea bargain would be admissible for impeachment of defendant prevented defendant from
testifying in his own behalf, degree of resulting prejudice was unascertainable, and normal rules of
harmless reversible error did not apply, but, rather, new trial was required. NRS 48.125, 199.120;
U.S.C.A.Const. Amend. 5.
OPINION
By the Court, Mowbray, C. J.:
In this appeal, we are called upon to decide whether an accused's statements made
pursuant to a plea agreement with the prosecutor and in the course of entering a plea of
guilty, subsequently withdrawn, are admissible to impeach the testimony of the accused
at a later trial on the same charges.
96 Nev. 62, 64 (1980) Mann v. State
accused's statements made pursuant to a plea agreement with the prosecutor and in the course
of entering a plea of guilty, subsequently withdrawn, are admissible to impeach the testimony
of the accused at a later trial on the same charges. We conclude that they are not.
In June, 1977, William Patrick Mann was charged, by way of information, with one count
of burglary, alleging his unlawful entry into a Red Wing shoe store with a larcenous intent.
As a result of negotiations with the prosecutor, a plea bargain was struck: Mann, who then
believed he was on probation for a previous conviction, agreed to plead guilty in exchange for
a two year sentence in the Nevada State Prison to run consecutively with the sentence to be
imposed as a result of his pending probation revocation. Mann subsequently entered a plea of
guilty. A proper canvass was conducted by the district judge: the court was informed of the
plea bargain and Mann, who was not under oath, admitted each of the elements of the charged
offense, including his larcenous intent.
Shortly thereafter, however, it became apparent that Mann, having previously received an
honorable discharge, was no longer on probation. The court, over defense counsel's objection,
then ordered the plea of guilty withdrawn and directed Mann to enter a plea of not guilty.
After Mann's petition for a writ of mandate to enforce the terms of the plea agreement was
denied by this Court, the case went to trial before a jury in December, 1977.
After the prosecution had rested, the district judge ruled, outside the presence of the jury
and over the objection of defense counsel, that any statements made by Mann while entering
his earlier plea of guilty pursuant to the aborted plea bargain would be available to the
prosecution for impeachment purposes. Defense counsel then expressly informed the trial
judge that, as a result of the ruling, the defendant would not testify in his own behalf. Without
presenting any other evidence or testimony, the defense rested.
The jury returned a verdict of guilty, and Mann was sentenced to an eight year term in the
Nevada State Prison. This appeal, focusing on the admissibility of Mann's statements made
pursuant to the aborted plea agreement, followed.
[Headnote 1]
The bedrock upon which a plea bargain must be based is the candor, honesty, and
openness of both the accused and the prosecutor: an accused must be free to discuss his guilt;
a prosecutor must be open to discuss any type of punishment or rehabilitative strategy
appropriate to the offender and the offense.
96 Nev. 62, 65 (1980) Mann v. State
offense. See People v. Tanner, 119 Cal.Rptr. 407, 411 (Cal.App. 1975). As with any
contractual negotiation, however, a plea bargain may not result in a final accord; the
bargaining process, as in the instant case, may break down or reach a stalemate. We would
blind ourselves to reality to believe that the accused or the prosecutor would discuss relevant
matters openly and honestly if the possibility existed that any such statements could and
would be used against them in future proceedings.
[Headnote 2]
In this regard, the legislature has expressed the public policy favoring the candid and
honest negotiations necessary for the successful operation of our plea bargaining system:
[e]vidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime
charged or any other crime is not admissible in a criminal proceeding involving the person
who made the plea or offer. NRS 48.125. The statute, on its face, prohibits the prosecutor's
use of the statements in question in the instant case. The State, however, asks us to limit the
scope of the phrase, [e]vidence of a plea of guilty . . . or of an offer to plead guilty, to
include only actual pleas of guilty or offers to plead and not the statements made while
entering those pleas. So limited, NRS 48.125 would instill an element of deceit into the plea
bargaining process: an accused's guilt would become a forbidden topic of conversation,
because of the fear that any admission could be used at a subsequent trial, as would the
prosecution's recommendation of an appropriate scheme of punishment or rehabilitation. See
People v. Tanner, 119 Cal.Rptr. at 411. We decline to extend this invitation to abuse by so
construing the statute. Cf. Goodman v. Goodman, 68 Nev. 484, 488, 236 P.2d 305, 307
(1951) (when the legislature has spoken with imperfect clarity, it is the function of this Court
to discern the law).
The State further argues, relying on Harris v. New York, 401 U.S. 222 (1971), that even if
an accused's statements are not admissible as part of the prosecution's case in chief, those
statements should be available for impeachment purposes so as not to grant an accused a
license to commit perjury. The State's reliance on Harris is misplaced.
In Harris, the Supreme Court balanced the minimal deterrent effect that exclusion of a
defendant's reliable and trustworthy statements would have on police illegality with the strong
policy against countenancing perjury. New Jersey v. Portash, 440 U.S. 450, 458 (1979). By
contrast, in the plea bargaining context, an accused's statements are not excluded to deter
illegal police practices, but to promote and to encourage candid plea negotiations.
96 Nev. 62, 66 (1980) Mann v. State
deter illegal police practices, but to promote and to encourage candid plea negotiations. In
addition, while the statements under scrutiny in Harris were found to be reliable and
trustworthy, the instant statements, induced by the hope of leniency and the offer of a plea
bargain, are not cloaked with that same aura of veracity. See Mobley ex rel. Ross v. Meek,
531 F.2d 924 (8th Cir. 1976); State v. Hoopes, 534 S.W.2d 26 (Mo. 1976); State v. Boone,
327 A.2d 661 (N.J. 1974). And significantly, the prosecution, in the instant case, is not
without remedy to deter an accused's perjury: a prosecution under NRS 199.120 is available.
[Headnote 3]
Moreover, if we were to construe NRS 48.125 to permit an accused's plea-related
statements to be used for impeachment purposes, we would create serious constitutional
questions concerning the privilege against compulsory self-incrimination. In entering a plea
bargain, an accused waives his right to be free from testimonial compulsion. The basis for
that waiver, however, is vitiated when the plea agreement, for whatever reason, fails to be
consummated. See Kercheval v. United States, 274 U.S. 220, 224 (1927); Sturrock v. State,
95 Nev. 938, 941, 604 P.2d 341, 342 (1980) (opinion of Manoukian and Thompson, JJ.);
United States v. Albano, 414 F.Supp. 67, 69 (S.D.N.Y 1976). In New Jersey v. Portash,
supra, the Supreme Court held that the prosecutor's use of an individual's grand jury
testimony (legislatively protected through use and derivative use immunity) to impeach his
credibility as a testifying defendant in a criminal trial would violate the privilege against
incrimination. 440 U.S. at 459-60. In the present case, the State, by participating in the plea
negotiations and by offering the hope of lenient treatment to the accused, has, in effect,
coerced the accused to discuss and to admit his guilt. Under such circumstances, the Harris
type of balancing is constitutionally impermissible. Id.
[Headnote 4]
In conclusion, we hold that NRS 48.125 prohibits the prosecution from making any use of
statements made by an accused, either during plea negotiations or while entering a plea of
guilty, at a later trial on the same charges.
1
Since the district court's ruling prevented
appellant from testifying in his own behalf, the degree of prejudice arising from the error
is unascertainable and the normal rules of harmless and reversible error do not apply.
____________________

1
We note that the legislature, in enacting the self-enforcing provisions of NRS 48.125, has divested the trial
courts of all discretion on the question of the admissibility of an accused's plea-related statements. Nothing we
say today, of course, is meant to interfere with the trial courts' sound exercise of discretion concerning other
evidentiary problems which may arise during the course of a trial.
96 Nev. 62, 67 (1980) Mann v. State
court's ruling prevented appellant from testifying in his own behalf, the degree of prejudice
arising from the error is unascertainable and the normal rules of harmless and reversible error
do not apply. People v. Rist, 545 P.2d 833, 841 (Cal. 1976). Since the jury may reasonably
have reached a different verdict after hearing appellant's version of the facts, we reverse the
judgment below and remand the cause for a new trial.
Manoukian, J., concurs.
Batjer, J., concurring, with whom Gunderson, J., agrees:
I agree that the judgment should be reversed and the cause remanded for a new trial, but
only because NRS 48.125
1
is unambiguous and needs no interpretation by this court. It
clearly prohibits the prosecution from making use of any statements by appellant during plea
negotiations or while entering a plea of guilty.
The State's contention that the scope of the phrase [e]vidence of a plea of guilty . . . or an
offer to plead guilty should be limited to only actual pleas of guilty or offers to plead and not
to the statements made while entering those pleas is completely unreasonable, illogical and
without merit.
Likewise, the State's attempt to have this court extend Harris v. New York, 401 U.S. 222
(1971), to control this case is meritless and warrants no consideration or discussion.
Thompson, J., dissenting:
Although I agree with the majority and concurring opinions that an accused's statements
made pursuant to a plea agreement in the course of entering a guilty plea are not admissible to
impeach his testimony at trial, I would not reverse the conviction for that error. Indeed, in my
view, the issue should not be addressed by this court. It is Mann's assertion that the erroneous
ruling of the trial judge caused him not to testify at trial, and that had he testified the verdict
may have been different. I am not willing to accept that bald assertion as true and accord it
the validity which my brethren apparently are willing to give it. He was an ex-felon. Perhaps
that is why he did not testify.
____________________

1
NRS 48.125:
1. Evidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime charged or
any other crime is not admissible in a criminal proceeding involving the person who made the plea or
offer.
2. Evidence of a plea of nolo contendere or of an offer to plead nolo contendere to the crime charged
or any other crime is not admissible in a civil or criminal proceeding involving the person who made the
plea or offer.
96 Nev. 62, 68 (1980) Mann v. State
Or, it may be that he had nothing of value to state in explanation of his presence inside the
shoe store. I would prefer to decide the evidence issue in a case where the defendant elects to
testify, is impeached by statements made in the course of entering a guilty plea later set aside,
and a conviction returned. In such a case I would vote to reverse for the reasons mentioned in
today's opinion. Here, however, the impeaching statements were not before the jury, and the
accused, for some reason not truly within our knowledge, decided to utilize his privilege not
to testify. In this context, I am not willing to set aside the conviction.
____________
96 Nev. 68, 68 (1980) Cuellar v. State
MARK ADAMO CUELLAR, Appellant, v. THE STATE
No. 10686
January 16, 1980 605 P.2d 207
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Defendant was convicted in the district court of first-degree murder and he appealed. The
Supreme Court held that: (1) consent given to search of defendant's bedroom by defendant's
stepfather was valid, and (2) witness was properly precluded from testifying as an expert on
the effect which phencyclidine would have had on defendant's state of mind at the time of the
offense.
Affirmed.
Morgan D. Harris, Public Defender, and Herbert F. Ahlswede, Deputy Public Defender,
1. Searches and Seizures.
Search executed with consent falls outside the ambit of the Fourth Amendment warrant requirements;
consent must be voluntarily given and must not be the product of coercion, either express or implied.
Evidence sustained determination that stepfather's consent to search of defendant's room was valid,
notwithstanding that it came after police officer stated that he could get a warrant within ten minutes.
3. Criminal Law.
Even as a layman, witness could testify as to the use and influence of phencyclidine.
4. Criminal Law.
In view of testimony by witness that he was not competent to testify as to defendant's state of mind at any
particular time, it was not an abuse of discretion in precluding the witness from testimony as an expert as to
the effect of phencyclidine on defendant's state of mind at the time of the offense.
OPINION
Per Curiam:
After a trial by jury Cuellar was convicted of first degree murder and sentenced to life
imprisonment without possibility of parole.
At about 4:00 a.m. on July 10, 1977, a Stop and Go convenience market was robbed and
the attendant killed. Gary DeWitt stopped at the market to pick up a newspaper and noticed a
maroon automobile parked by the market with its motor running. He entered the store,
noticed that the cash register was open and, seeing no attendant in the market, left the
building. He memorized the license number of the car outside the store and, as he started to
pull away in his own car, he observed a slender white male wearing a tee-shirt with a decal on
the front coming out of a back room. DeWitt parked his car further down the block and
walked back to the store. As he approached the store, the aforementioned maroon automobile
pulled out of the parking lot. DeWitt went into the store and found the body of the attendant
behind the counter on the floor. He immediately notified the police of these events. The
investigating officer found that all the paper currency was missing from the cash register.
The police traced the vehicle ownership to a Michael Garcia, who was contacted at his
place of work. Garcia informed them that Mark Cuellar, who fit DeWitt's description of the
perpetrator, may have borrowed the vehicle during the early morning hours. Cuellar was
found in his bedroom sleeping. Above his head, on the wall was a rifle or shotgun, and on the
floor below the bed was a tee-shirt with a zig-zag emblem on it, along with other clothes.
After Cuellar's arrest, a police officer requested consent to search the bedroom from Cuellar's
stepfather. The stepfather signed the consent form because [the officer] said you should sign
it or else I'll have a search warrant within ten minutes anyway so I went ahead and signed it.
During the subsequent search the police found money in excess of one thousand dollars
behind the bed, and a recently fired sawed-off shotgun in a closet.
of one thousand dollars behind the bed, and a recently fired sawed-off shotgun in a closet.
There was undisputed testimony at trial that Cuellar had smoked phencyclidine (PCP, a
controlled substance, NRS 453.181) on the night of July 9, 1977. The defense, in an effort to
establish Cuellar's state of mind, called Steven Lerner as an expert in the effects of
phencyclidine. The district court allowed Lerner to testify generally on the subject of
phencyclidine but did not allow him to testify as to Cuellar's state of mind on the date of the
murder.
1. In this appeal Cuellar contends that the police officer's purported statement that he
could get a warrant to search the premises within ten minutes coerced his stepfather into
signing the consent form. The stepfather, however, testified that he knew he could demand
that the police get a warrant and that he intentionally gave up this right.
[Headnotes 1, 2]
It is well settled that a search executed with consent falls outside the ambit of Fourth
Amendment warrant requirements. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). To be
valid, however, the consent must be voluntarily given and not the product of coercion, either
express or implied. Sparkman v. State, 95 Nev. 76, 590 P.2d 151 (1979). Whether the consent
was voluntarily given is a question of fact to be decided from the totality of the surrounding
circumstances. Surianello v. State, 92 Nev. 492, 553 P.2d 942 (1976). The district court
considered the facts and circumstances surrounding this consent in its decision to deny the
motion to suppress. That he was told a warrant would be sought if his consent was not
obtained does not negate the evidence that supports the district court's finding of consent. See
People v. Hancock, 525 P.2d 435 (Colo. 1974); State v. Douglas, 488 P.2d 1366 (Or. 1971),
cert. denied, 406 U.S. 974 (1971); State v. Roy, 562 P.2d 213 (Or.App. 1977).
[Headnotes 3, 4]
2. Cuellar next contends that the district court's refusal to allow Steven Lerner to testify as
an expert violated his constitutional right to present a defense. Lerner was questioned at
length about his qualifications as an expert on phencyclidine and was allowed to testify
generally as to its effects. He was, however, never qualified as an expert. Although the trial
judge should have made a determination as to whether this witness was qualified to testify as
an expert on the subject of phencyclidine, see Hardison v. State, 84 Nev. 125, 437 P.2d 868
(1968), it is clear that, even as a lay witness, Lerner could testify as to the use and
influence of phencyclidine as he was, in fact, permitted to do.
it is clear that, even as a lay witness, Lerner could testify as to the use and influence of
phencyclidine as he was, in fact, permitted to do. Crowe v. State, 84 Nev. 358, 441 P.2d 90
(1968). Lerner himself stated that he was not competent to testify as to Cuellar's state of mind
at any particular time, and furthermore counsel stipulated to having no jury instruction
relating to whether Lerner was determined to be an expert. Under these circumstances, we
cannot find that the district court abused its discretion. See Singleton v. State, 90 Nev. 216,
522 P.2d 1221 (1974).
Accordingly, we affirm appellant's conviction.
____________
96 Nev. 71, 71 (1980) State v. Jones
THE STATE OF NEVADA, Appellant, v. JOSEPH
JONES, Jr., Respondent.
No. 11045
January 16, 1980 605 P.2d 202
Appeal from order setting aside jury verdict of guilty, Eighth Judicial District Court, Clark
County; James Brennan, Judge.
The State appealed from order of the district court granting defendant's motion to set aside
a jury verdict of guilty in his prosecution for selling a controlled substance. The Supreme
Court, Manoukian, J., held that: (1) evidence presented by the State at trial was not so at
variance with allegations in indictment as to warrant granting of defendant's motion to vacate
the verdict, and (2) the State was afforded a basis of appeal by statute.
Vacated and remanded with instructions.
Batjer and Gunderson, JJ., dissented.
Richard Bryan, Attorney General, Carson City; Robert Miller, District Attorney, and
Donald Campbell, Deputy District Attorney, Clark County, for Appellant.
Harry M. Reid, Las Vegas, for Respondent.
1. Criminal Law.
Reversible error exists only where variance between charge and proof was such as to affect substantial
rights of the accused because the accused must be definitely informed as to charges against him so that he
can prepare for trial and will not be surprised by evidence produced, the accused must be protected
against double jeopardy, and the indictment should be sufficiently definite to prevent
prosecutor from changing theory of the case.
96 Nev. 71, 72 (1980) State v. Jones
must be protected against double jeopardy, and the indictment should be sufficiently definite to prevent
prosecutor from changing theory of the case. U.S.C.A.Const. Amend. 5.
2. Drugs and Narcotics.
In prosecution for selling heroin, evidence presented by the State at trial that defendant made the sale to
an informant assisting a narcotics officer was not so at variance with allegations in the indictment that the
sale was made to the officer as to warrant granting of defendant's motion to set aside jury verdict of guilty
in light of fact that defendant initially challenged the variance after close of all evidence and, in considering
the indictment coupled with grand jury transcript, it was apparent that defendant was sufficiently informed
of nature of the offense so as to adequately prepare his defense. NRS 173.075, 173.075, subds. 1, 3,
178.598, 453.161, 453.321.
3. Criminal Law.
The State was afforded a basis for appeal of trial court's action in vacating jury verdict of guilty in
response to defendant's motion due to alleged variance between the indictment and evidence presented at
trial where, although trial court failed to enter guilty verdict or formally set aside the verdict and enter a
subsequent order, its action was equivalent to granting of a motion for acquittal. NRS 177.015, subd.
1(b).
OPINION
In this appeal from an order granting respondent-defendant's motion to set aside a jury
verdict of guilty, we are required to determine whether the trial court erred in concluding that
the evidence presented by appellant-state at trial was so at variance with the allegations in the
indictment as to warrant the granting of the motion. Remaining issues are whether our trial
courts have the authority to set aside a jury verdict of guilty and whether the state can appeal
from such an order. We answer the first question in the negative and the other issues in the
affirmative.
The content of an indictment is regulated by NRS 173.075. That statute provides that the
indictment . . . shall be a plain, concise and definite written statement of the essential facts
constituting the offense charged. NRS 173.075(1). This statute also states that an error in the
citation or omission of the violated statute is not ground for dismissal of the indictment if the
error did not mislead the defendant to his prejudice. NRS 173.075(3).
In this case, respondent Jones was indicted for selling heroin, a controlled substance, to a
person over the age of 21 years, to-wit: G. Jolley on or about February 20, 1976. NRS
453.161, 453.321. The case was tried to a jury ending with a verdict on May 24, 197S.
96 Nev. 71, 73 (1980) State v. Jones
verdict on May 24, 1978. The evidence adduced at trial shows that on February 20, 1976,
Officer Jolley was a narcotics officer with the Las Vegas Metropolitan Police Department and
involved with the investigation of the instant narcotics transaction. Robert Scheri, who had
assisted Jolley on previous narcotic investigations, assisted Jolley on this occasion by buying
heroin from respondent. Prior to the sale, Jolley had loaned his car to Scheri and also given
him $200 for the purchase. Scheri took this money and made a purchase of heroin from
respondent. Scheri then turned over the balloons of heroin, which were given to him by
respondent, and also gave Jolley $40 in change a few minutes after the sale. There is no
evidence which shows that respondent believed he was dealing with a third partythat is,
Officer Jolley.
Below, respondent contended in closing argument that the jury could not find him guilty
because the indictment specifically stated that the sale was to G. Jolley. Respondent argued
that the evidence presented demonstrated that he did not sell to Jolley. The state argued that
the variation between the proof at trial and the indictment was immaterial as respondent did
make a sale of a controlled substance at the alleged time and place. The state also contended
that the variance was immaterial due to the fact that jury instruction number 3 stated that
respondent was charged with the sale of a controlled substance.
The state argued that Scheri was acting as an agent or conduit for Jolley in purchasing the
heroin. The state unsuccessfully proffered a jury instruction to this effect. Respondent
requested an advisory instruction of acquittal, NRS 175.381, due to the contended variance.
This request was denied. Judgment was not entered following the guilty verdict and, on July
26, 1978, the trial court granted respondent's motion to set aside the verdict.
1. The verdict's propriety.
Appellant argues that the indictment was sufficiently plain and concise thereby meeting
the commands of NRS 173.075(1), but that, even assuming a material variance occurred,
respondent was not misled to his prejudice. NRS 173.075(3). The error here, however, is
that the indictment charged respondent with a sale of narcotics to Officer Jolley when in fact
the sale was made to the informant, Scheri. That a variance occurred is without dispute. But,
we must go beyond that fact and decide what standard to adopt in determining whether, on
facts such as those now before us, the trial is to be aborted.
[Headnote 1]
The United States Supreme Court has held that reversible error exists only where the
variance between the charge and proof was such as to affect the substantial rights of the
accused.
96 Nev. 71, 74 (1980) State v. Jones
error exists only where the variance between the charge and proof was such as to affect the
substantial rights of the accused. Berger v. United States, 295 U.S. 78, 82 (1935). The reason
for this is that (1) the accused must be definitely informed as to the charges against him so
that he can prepare for trial and will not be surprised by evidence produced, and (2) the
accused must be protected against double jeopardyanother charge for the same offense. See
also Russell v. United States, 369 U.S. 749, 763 (1962).
This court is in agreement with this standard and has added that the indictment should be
sufficiently definite to prevent the prosecutor from changing the theory of the case. Adler v.
Sheriff, 92 Nev. 436, 440, 552 P.2d 334, 336 (1976); Simpson v. District Court, 88 Nev. 654,
660-61, 503 P.2d 1225, 1230 (1972). Also, we have looked to determine whether the
challenge to the indictment was brought before trial or after trial and have said that reduced
standards apply to the sufficiency of indictments challenged after trial in contrast to pre-trial
challenges. Compare Brimmage v. State, 93 Nev. 434, 567 P.2d 54 (1977); Warden v. Shuff,
91 Nev. 719, 541 P.2d 1105 (1975); Vincze v. State, 86 Nev. 546, 472 P.2d 936 (1970); and
Logan v. Warden, 86 Nev. 511, 471 P.2d 249 (1970) with State v. Johnston, 93 Nev. 279, 563
P.2d 1147 (1977) and Simpson v. District Court, 88 Nev. 654, 503 P.2d 1225 (1972). In the
instant case then, it necessarily follows that we must determine whether respondent was
substantially prejudiced by not having the proper opportunity to prepare and whether
respondent's objection was timely.
[Headnote 2]
First, regarding the timeliness issue, respondent initially challenged the variance after all
the evidence had been adduced. It is true that NRS 174.105(1) requires that pre-trial
objections to defects in the institution of the prosecution only include those defenses and
objections then available to the defendant and that respondent under other circumstances
may have been justified in believing that the state would prove a sale to Officer Jolley.
Nevertheless, this eleventh hour challenge, after the close of all evidence, belies any claim of
prejudice and we glean from the record no evidence of any prejudice. Indeed, the record here
shows that respondent, well in advance of trial, was made aware that the sale in question was
consummated with the third party informant and not Jolley. The grand jury transcript, a copy
of which was made available to respondent shortly after the return of the indictment,
contained the testimony of the officers involved and does not indicate that Officer Jolley was
actually participating in the transaction.
96 Nev. 71, 75 (1980) State v. Jones
indicate that Officer Jolley was actually participating in the transaction. During the grand jury
proceeding, the transcript shows that Jolley testified that the informant told him of respondent
selling heroin to [the informant] and that the officers would observe the sale. Respondent
also acknowledged that the officers had testified not from personal knowledge but rather
from what someone had told them.
1
This court has held that it will review the original
indictment and the grand jury transcript in determining whether adequate notice was
provided, Logan v. Warden, 86 Nev. at 513, 471 P.2d at 251, particularly where the challenge
is belated or untimely.
2
Simpson v. District Court, 88 Nev. 654, 503 P.2d 1225 (1972);
Logan v. Warden, 86 Nev. 511, 471 P.2d 249 (1970). Moreover, although entertaining some
doubt, the court below initially believed that there had been sufficient notice when it said that
it would have allowed an amendment to conform to the proof had this been a civil case.
Second, we must determine whether the instant variance precluded respondent from
preparing his defense. See Brimmage v. State, 93 Nev. at 440-41, 567 P.2d at 58. With
federal courts the crucial question is whether the defendant was substantially prejudiced by
the variance. For example, one court held that no prejudice was shown where the wrong date
as to the illegal possession of a check was alleged. United States v. Reece, 547 F.2d 432,
434-35 (8th Cir. 1977). Significantly, although the lower court seemed to believe that a
murder charge naming the wrong victim would also be a fatal defect, one federal court
decided otherwise when a John Doe, Jr. was named instead of John Doe, Sr. United States v.
Good Shield, 515 F.2d 1, 2 (8th Cir. 1975). Additionally, the proof of multiple conspiracies
has been deemed not to be a fatal variance from the charge of a single offense. United States
v. Wayman, 510 F.2d 1020, 1024-25 (5th Cir. 1975).
3

____________________

1
This knowledge on the part of respondent is demonstrated by his points and authorities in support of the
pre-trial petition for a writ of habeas corpus.

2
It is noteworthy that on July 5, 1977, respondent filed a pre-trial petition for a writ of habeas corpus with the
district court. Respondent there contended that there was a lack of probable cause and a failure to cite the proper
statute. The petition was denied on August 19 and respondent appealed to this court. An order dismissing the
appeal was entered by this court on September 17, 1977. Instead of including the subject claim in the habeas
petition, Jones elected to proceed to trial. Thus he is relegated to the reduced standard relative to his challenge to
the sufficiency of the indictment. See Simpson v. District Court, 88 Nev. 654, 503 P.2d 1225 (1972).

3
In contrast with federal decisions, and the import of several earlier opinions of this court, are decisions from
jurisdictions not following the rule of substantial prejudice. In this respect, a few state courts have held that the
96 Nev. 71, 76 (1980) State v. Jones
It is clear from the grand jury and trial transcripts that respondent sold to the informer and
not indirectly to Officer Jolley. Here, the indictment properly identifies the defendant, crime
alleged, and date and place of the alleged sale. Considering the indictment coupled with the
grand jury transcript, it is apparent that respondent was sufficiently informed of the nature of
the offense so as adequately to prepare his defense. Logan v. Warden, 86 Nev. at 514, 471
P.2d at 251. Cf. United States v. Knuckles, 581 F.2d 305, 311 (2d Cir. 1978) (difference
between heroin and cocaine in indictment was not fatal under federal statute).
The sufficiency of the indictment was challenged only after all the evidence was presented
at trial. Additionally, a state statute provides: Any error, defect, irregularity or variance
which does not affect substantial rights shall be disregarded. NRS 178.598. These factors
indicate the application of a reduced standard toward the sufficiency of the indictment and, as
such, we find that the variance between the crime charged and the proof adduced was
immaterial. It did not affect the substantial rights of the respondent because it did not impair
his ability to prepare his case and defend himself against the charge. See United States v.
Eaton, 501 F.2d 77, 79 (5th Cir. 1974), citing United States v. Schrenzel, 462 F.2d 765 (8th
Cir.), cert. denied, 409 U.S. 984 (1972); United States v. Lewis, 426 F.2d 266 (9th Cir.
1970). Moreover, at this point the prosecutor cannot change the theory of his case from what
was shown at the grand jury proceedings. See Simpson v. District Court, 88 Nev. at 660-61,
503 P.2d at 1230.
4

Finally, we do not perceive double jeopardy as an issue because respondent cannot be
prosecuted again for the single transaction. We believe that [t]he indictment and the trial
record provide ample protection to [respondent] from the danger of double jeopardy.
McDowell v. United States, 330 F.2d 920, 920 (10th Cir.), cert. denied, 377 U.S. 1006
(1964). Accord, Mora v. People, 472 P.2d 142, 144 (Colo. 1970).
2. Appealable determination.
[Headnote 3]
Our second concern is with regard to the action of the trial court vacating the verdict in
response to Jones' motion to have it set aside.
____________________
question is whether the state has proved the charged offense. People v. Bueno, 221 N.E.2d 270, 271 (Ill. 1966);
State v. Bell, 153 S.E.2d 741, 744-45 (N.C. 1967).

4
We note that the trial court, after the presentation of all the evidence, correctly refused to instruct the jury on
the state's proffered theory of agency. There was no evidence warranting such an instruction.
96 Nev. 71, 77 (1980) State v. Jones
Here, although the trial court failed to enter the guilty verdict or formally set aside the
verdict and enter a subsequent order its action was, in our view, equivalent to the granting of
a motion for acquittal. NRS 177.015(1)(b).
5
This statute plainly affords appellant a basis for
appeal.
We vacate the trial court's order setting aside the guilty verdict with instructions that the
verdict be reinstated and the trial judge proceed to imposition of judgment and sentencing
pursuant to law. NRS 177.085(2).
Mowbray, C. J., and Thompson, J., concur.
Batjer, J., with whom Gunderson, J., agrees, dissenting:
I respectfully dissent from the opinion of the majority. At the outset, I cannot agree that the
trial court's failure to enter the guilty verdict or formally set aside the verdict is equivalent to
the granting of a motion for acquittal. As a matter of fact, no final determination has been
made in this case by the trial court; therefore, there is nothing from which the State can
appeal. For this reason, I would dismiss this appeal.
On the merits, if it can be assumed that an appeal lies, I would affirm the district court.
The failure of the State, within the facts and posture of this case, to allege the proper name of
the buyer of the controlled substance adversely affected the substantial rights of respondent to
his prejudice.
Preparing a defense to a charge that he had sold heroin, to a person over the age of 21
years, to-wit: G. Jolley, when he knew he had not done so is much less complex than
preparing a defense to a charge that he had sold heroin to a Robert Scheri, who may or may
not be over the age of 21 years and to whom respondent may or may not have sold heroin.
Furthermore, because of the diverse and complex penalties that may be assessed by a trial
court pursuant to NRS 453.321 as well as certain prohibition to probation therein (NRS
453.321(3)), it is very important that a defendant be fully and correctly apprised of the exact
person to whom he is accused of selling a controlled substance, as well as the correct age of
the buyer. Anything less is fatally prejudicial.
____________________

5
NRS 177.015(1)(b) provides:
1. The party aggrieved in a criminal action, whether that party be the state or the defendant, may
appeal only as follows:
. . . .
(b) To the supreme court from an order of the district court granting a motion to dismiss, a motion for
acquittal or a motion in arrest of judgment, or granting or refusing a new trial. (Emphasis added.)
____________
96 Nev. 78, 78 (1980) Gary v. Sheriff
THELMA GARY, Appellant, v. SHERIFF, CLARK
COUNTY, NEVADA, Respondent.
No. 12068
January 22, 1980 605 P.2d 212
Appeal from order denying pretrial writ of habeas corpus, Eighth Judicial District Court,
Clark County; Thomas J. O'Donnell, Judge.
Appeal was taken from an order of the district court denying pretrial petition for writ of
habeas corpus in which probable cause to hold was challenged. The Supreme Court,
Thompson, J., held that statute precluding appellate review of denial of pretrial habeas
petition challenging probable cause was not an unconstitutional encroachment upon the
powers of the judiciary and did not violate equal protection and therefore appeal would be
dismissed for want of jurisdiction.
Appeal dismissed.
Douglas J. Shoemaker, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Robert J. Miller, District Attorney, and Gregory C.
Diamond, Deputy District Attorney, Clark County, for Respondent.
Jeffrey D. Sobel and Annette Quintana, Las Vegas, amici curiae, filed a brief on behalf of
the Clark County Criminal Defense Attorneys Association urging reversal.
United States Constitution does not require a state to provide appellate review.
2. Constitutional Law; Habeas Corpus.
Statute removing jurisdiction of Supreme Court to entertain an appeal from district court order denying a
pretrial petition for a writ of habeas corpus based on an alleged want of probable cause was not an
unconstitutional encroachment upon powers of judiciary. NRS 34.380.
3. Habeas Corpus.
Preclusion of appellate review of denial of habeas petition challenging probable cause was a reasonable
legislative regulation of the writ and did not infringe upon antisuspension clause. NRS 34.380; Const.
art. 1, 5; U.S.C.A.Const. art. 1, 9, cl. 2.
Statute, precluding appellate review of denial of pretrial habeas petitions challenging probable cause but
not precluding appellate review of grant of such relief, did not violate equal protection, inasmuch as there
was a reasonable basis for precluding review in the one instance and allowing it in the other. NRS
Once a judicial officer has determined that probable cause does not exist, it would be the most naked
deprivation of due process and an intolerable interference with the privilege of the writ of habeas corpus to
retain defendant in custody pending appeal by state. NRS 34.380, 171.206; U.S.C.A.Const. Amend. 5,
14.
6. Criminal Law.
Right to appeal is a matter of legislative grant.
7. Habeas Corpus.
Part of rule, contemplating remedy of appeal from district court order denying pretrial writ of habeas
corpus, became inoperative when statute giving right to appeal was nullified. NRS 34.380; NRAP 22.
OPINION
The respondent has moved to dismiss the appeal of Thelma Gary from an order of the
district court denying her pretrial petition for a writ of habeas corpus in which she challenged
probable cause to hold her to answer. The predicate for the motion to dismiss is Stats. Nev.
1979, ch. 216, NRS 34.380 which removes the jurisdiction of this court to entertain an appeal
from an order denying a pretrial petition for a writ of habeas corpus based on an alleged want
of probable cause. At issue is the constitutionality of that enactment precluding review by this
court. For reasons hereafter expressed, we perceive no constitutional infirmity, and dismiss
this appeal for want of jurisdiction to hear it.
[Headnotes 1, 2]
1. The federal constitution does not require a state to provide appellate review. Griffin v.
Illinois, 351 U.S. 12 (1956); McKane v. Durston, 153 U.S. 684 (1894). Appellate review in
Nevada exists by reason of legislative grant and, more particularly, we heretofore have ruled
that appellate review of habeas corpus proceedings is not required in the absence of a statute
providing for it. Ex parte Sullivan, 65 Nev. 128, 189 P.2d 338 (1948). Consequently, the
contention that NRS 34.380 as amended in 1979 is an unconstitutional encroachment upon
the powers of the judiciary is without substance. Cf. Galloway v. Truesdell, 83 Nev. 13, 422
P.2d 237 (1967).
[Headnote 3]
2. Although it is asserted that the preclusion of appellate review somehow amounts to a
suspension of the writ of habeas corpus in violation of U.S.Const. art, I, 9, and Nev. Const.
art. I, 5, we do not agree. The antisuspension clause is not violated if the traditional efficacy
of the writ is not impaired. Grego v. Sheriff, 94 Nev. 48, 574 P.2d 275 (1978). The scope of
the writ is not altered by the challenged statute. Here, as in Grego, the legislative reform was
designed to deal with practical administrative problems. Legislative history discloses a
purpose to eliminate frivolous pretrial habeas appeals, and to prevent the concomitant delay
in bringing those cases on for trial. The preclusion of appellate review of the denial of a
habeas petition challenging probable cause is a reasonable legislative regulation of the writ,
and does not infringe upon the antisuspension clause.
[Headnotes 4, 5]
3. The amendment to NRS 34.380 does not preclude appellate review of an order granting
habeas relief. Consequently, it is contended that the legislative treatment accorded a
defendant on the one hand, and the state on the other is unequal and necessarily a denial of
equal protection. This contention is not sound. We already have noted that it was within the
legislative province to determine that a rational relationship exists between the preclusion of
appellate review of the denial of pretrial habeas petitions challenging probable cause, and the
object sought to be accomplished, namely to eliminate the delay in bringing those cases on
for trial. Thus, this concern of the equal protection clause is satisfied. Oueilhe v. Lovell, 93
Nev. 111, 560 P.2d 1348 (1977); Gaessler v. Sheriff, 95 Nev. 267, 592 P.2d 955 (1979).
A defendant charged with having committed a public offense may challenge probable
cause to hold him to answer through a petition for a writ of habeas corpus. If unsuccessful, he
thereafter may challenge the state's case at trial, and on appeal from conviction if conviction
occurs. An order denying pretrial habeas relief is not a final adjudication of his guilt. On the
other hand, an order granting such a petition for relief before trial possesses the quality of a
final judgment. Once a judicial officer has determined that probable cause does not exist, it
would be the most naked deprivation of due process, Gerstein v. Pugh, 420 U.S. 103 (1975),
and an intolerable interference with the privilege of the writ, People v. Jennings, 158 N.E.
613 (N. Y. 1927), to retain him in custody pending appeal by the state. NRS 171.206.
The difference in finality between the denial and granting of habeas relief supplies a
reasonable basis precluding review in the one instance and allowing it in the other. We
perceive no equal protection problem.
[Headnotes 6, 7]
4. NRAP 22 appears to be in conflict with NRS 34.380 since it contemplates the remedy
of appeal to the Supreme Court from an order of the district court denying the writ. The rule
was adopted at a time when statute authorized an appeal from an order denying pretrial
habeas relief. Statute no longer authorizes such an appeal. Since the right to appeal is a matter
of legislative grant, Ex parte Sullivan, that part of the rule became inoperative when the
statute giving the right to appeal was nullified.
We, therefore, conclude that the statute is valid as applied to pretrial writs of habeas
corpus to test probable cause. We express no opinion as to its validity in other contexts.
Appeal dismissed.
Mowbray, C. J., and Manoukian and Batjer, JJ., concur.
I will not pause to question the majority opinion, although I believe a contrary result might
be supported.
I must say, however, that unless this court repudiates its constitutional obligation to
entertain original habeas petitions, it seems to me the Legislature will have accomplished
nothing by repealing our right to hear pretrial habeas appeals.
1
In fact, it seems to me the
Legislature will simply have increased the complexity, and therefore the cost, of pretrial
habeas proceedings. It is true that, when an original habeas petition is filed in this court, we
may refer the petition to a district judge for a hearing in the first instance. I question,
however, that our Constitution contemplates this court routinely delegating to the district
courts our duty to make final determinations on habeas petitions filed with us, with no
provision for review on our part.
____________________

1
See Nev. Const. art. 6, 4:
. . . The [supreme] court shall also have power to issue writs of mandamus, certiorari, prohibition,
quo warranto, and habeas corpus and also all writs necessary or proper to the complete exercise of its
appellate jurisdiction. Each of the justices shall have power to issue writs of habeas corpus to any part of
the state, upon petition by, or on behalf of, any person held in actual custody, and may make such writs
returnable, before himself or the supreme court, or before any district court in the state or before any
judge of said courts.
. . . . (Emphasis in original.)
____________
96 Nev. 82, 82 (1980) Hicks v. State
ERNEST B. HICKS, Appellant, v. THE STATE
No. 10819
January 24, 1980 605 P.2d 219
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; J.
Defendant was convicted in the district court of robbery with the use of a deadly weapon
and he appealed. The Supreme Court held that: (1) defendant was without standing to
challenge legality of warrantless search which led to discovery of damaging evidence used to
convict him; (2) pretrial photographic identification of defendant was not impermissibly
suggestive; and (3) evidence was sufficient to support conviction.
Affirmed.
Howard N. Ecker, Las Vegas, for Appellant.
H. Leon Simon, Chief Appellate Deputy, Clark County, for Respondent.
Defendant who neither alleged nor proved a proprietary or other interest in apartment or items seized was
without standing to challenge legality of warrantless search which led to discovery of damaging evidence
used to convict him.
Where defendant made no showing that he had any legitimate expectation of privacy in area searched, he
could not successfully assert that his mere presence in apartment conferred standing upon him to challenge
unlawfulness of search.
3. Criminal Law.
Convictions based on eyewitness identification at trial following a pretrial identification by photograph
will be set aside if photographic identification procedure was so impermissibly suggestive as to give rise to
a very substantial likelihood of irreparable misidentification.
4. Criminal Law.
Identification procedure in which witness identified defendant as perpetrator from approximately 400
photographs and shortly thereafter identified defendant from a group of six photographs was not
impermissibly suggestive; furthermore, any possible error was rendered harmless by witness' independent,
positive and unequivocal in-court identifications of defendant at preliminary examination and at trial.
96 Nev. 82, 83 (1980) Hicks v. State
5. Robbery.
Evidence was sufficient to support conviction of robbery with use of a deadly weapon. NRS 193.165,
200.380.
OPINION
Per Curiam:
Convicted by jury verdict of robbery with the use of a deadly weapon (NRS 200.380;
193.165), Ernest B. Hicks, contends on appeal that he is entitled to a reversal because the
district court erred in denying his motions to suppress certain evidence seized in a warrantless
search of an apartment and testimony regarding a photographic identification of him as the
perpetrator of the crime. He also argues that the district court erroneously denied his motion
in limine to exclude evidence of a prior felony conviction, and, finally, that the evidence
presented at the trial was insufficient to support the verdict.
One of the victims of the robbery, a manager of a motel in Las Vegas, testified at the trial
that Hicks and another person entered the motel carrying handguns, ordered him, his wife and
another couple to lie on the floor, and then took money from the cash register and an eight
track tape deck before they fled the scene. Police officers subsequently seized the tape deck
during a warrantless search of an apartment where Hicks was found hiding. The tenant to
whom the premises were let, a friend of Hicks', allegedly consented to the search of the
apartment.
[Headnotes 1, 2]
1. Hicks contends the consent to search given by the tenant of the apartment was not free
and voluntary, and the search was therefore invalid. However, because Hicks has neither
alleged nor proved a proprietary or other interest in the . . . apartment or [the item seized], he
is without standing to challenge the legality of the warrantless [search] which led to the
discovery of the damaging evidence used to convict him. Hicks v. State, 95 Nev. 503, 504,
596 P.2d 505, 506 (1979) (footnote omitted). Hicks may not successfully assert that his mere
presence in the apartment confers standing upon him to challenge the lawfulness of the
search, since he has made no showing that [he] had any legitimate expectation of privacy in
the area searched. Rakas v. Illinois, 439 U.S. 128, 148 (1978).
2. Hicks also argues that the district court should have granted his motion to suppress
evidence of a photographic identification of him as the perpetrator of the crime by the
manager of the motel because the identification procedure was impermissibly suggestive
and tainted the motel manager's subsequent in-court identification of Hicks at the
preliminary examination and trial.
96 Nev. 82, 84 (1980) Hicks v. State
identification of him as the perpetrator of the crime by the manager of the motel because the
identification procedure was impermissibly suggestive and tainted the motel manager's
subsequent in-court identification of Hicks at the preliminary examination and trial.
[Headnotes 3, 4]
[C]onvictions based on eyewitness identification at trial following a pretrial identification
by photograph will be set aside . . . if the photographic identification procedure was so
impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification. Simmons v. United States, 390 U.S. 377, 384 (1968). See also Frisaura v.
State, 96 Nev. 13, 604 P.2d 350 (1980). Here, the manager of the motel originally identified
Hicks as the perpetrator of the robbery from approximately 400 photographs shown to him at
the police department. Shortly thereafter, he again identified Hicks from a group of six
photographs. Of this group of six, Hicks was the only person wearing a jail uniform. Under
these circumstances, this procedure was not impermissibly suggestive. Simmons v. United
States, supra. Moreover, the motel manager made independent, positive and unequivocal
in-court identifications of Hicks at the preliminary examination and trial which were
sufficient to render any possible error in the photographic identification procedure harmless.
Frisaura v. State, supra; Ridley v. State, 86 Nev. 102, 464 P.2d 500 (1970).
3. Hicks' contention that the district court should have granted his motion in limine to
exclude evidence of his prior conviction for robbery in the event he chose to testify was
previously considered and rejected by this court in Hicks v. State, supra.
[Headnote 5]
4. Finally, we reject the argument that the evidence presented at the trial was insufficient
to support the verdict. The record establishes that ample evidence was produced at the trial,
and that the verdict was therefore proper. See Wicker v. State, 95 Nev. 804, 603 P.2d 265
(1979).
Affirmed.
____________
96 Nev. 85, 85 (1980) In re Nort
In the Matter of the Application of
CHARLES ROBERT NORT
No. 12143
January 24, 1980 605 P.2d 627
Petition for waiver of SCR 51(3).
In original proceeding, petitioner sought waiver of rule requiring that applicant for license
to practice as attorney must have received a degree of bachelor of laws or equivalent law
degree from an approved law school. The Supreme Court held that: (1) denial of petition to
waive accreditation requirement of the rule did not deprive petitioner of any constitutional
rights in case in which granting the petition would have involved an abandonment of
requirement of a threshold showing that unaccredited status of the law school attended was
due solely to a factor unrelated to quality of education offered; (2) rule did not operate
unfairly to petitioner who chose to attend proprietary law school without accreditation; and
(3) Supreme Court has and will continue to exercise its inherent and exclusive power to
control admissions to professional bar so as to provide relief from operation of rules of
admission whenever it can be demonstrated that they operate in such manner as to deny
admission to a petitioner arbitrarily and for a reason unrelated to essential purpose of the
rules.
Petition denied.
Jeffrey D. Sobel, Las Vegas, for Petitioner.
Samuel S. Lionel, Las Vegas, for Nevada Board of Bar Examiners.
1. Attorney and Client.
Purpose of educational requirement embodied in rule, which requires that applicant for license to practice
as attorney has to have received a degree of bachelor of laws or equivalent law degree from an approved
law school, is to promote high standards of competence among those admitted to bar within state. SCR
51(3).
Ultimate responsibility for regulating admission to the bar, and commensurate obligation to assure public
of competency of its members, rests with Supreme Court.
Denial of petition to waive accreditation requirements of rule, which required that applicant for license to
practice as attorney had to have received a degree of bachelor of laws or equivalent law degree from an
approved law school, did not deprive petitioner of any constitutional rights in case in which the granting of
the petition would have involved an abandonment of requirement of a threshold showing
that unaccredited status of the law school attended was due solely to a factor
unrelated to quality of education offered.
96 Nev. 85, 86 (1980) In re Nort
abandonment of requirement of a threshold showing that unaccredited status of the law school attended was
due solely to a factor unrelated to quality of education offered. SCR 51(3), 64(2).
There is no constitutional right to admission to practice of law within a state without compliance with its
admissions requirements.
Right to admission to practice of law is not created merely because a wholly and expressly discretionary
state privilege has been granted generously in the past.
Rule, which required that applicant for license to practice as attorney had to have received a degree of
bachelor of laws or equivalent law degree from an approved law school, did not operate unfairly as to
petitioner who chose to attend proprietary law school without accreditation despite long standing
provisions of such rule. SCR 51(3).
Supreme Court has and will continue to exercise its inherent and exclusive power to control admissions to
professional bar of state so as to provide relief from operation of rules of admission whenever it can be
demonstrated that they operate in such manner as to deny admission to a petitioner arbitrarily and for a
reason unrelated to essential purpose of the rules; absent such a showing, Court will not entertain petitions
for relief from operation of the rules.
OPINION
Per Curiam:
Petitioner seeks waiver of SCR 51(3), which requires that an applicant for examination for
a license to practice as an attorney in this state [h]ave received a degree of bachelor of laws,
or an equivalent law degree, from a law school approved by the committee on legal education
and admissions to the bar of the American Bar Association, and shall present evidence of the
same. The Board of Bar Examiners has opposed the petition.
1

Petitioner concedes that he has not met the requirements of this rule, but urges the court to
grant him a waiver, particularly referring us to Brown v. Supreme Court of Nevada, 476
F.Supp. 86 (D. Nev. 1979), in which the district judge concluded that this court exercises its
discretion arbitrarily and capriciously in deciding petitions for waiver of SCR Rule 51(3). Id.
at 89. Since we cannot agree with this characterization of our decisions in this regard, we
have determined to set forth at some length the history and rationale of our rulings in the
matter of waiver of the accreditation rule.
____________________

1
The Board of Bar Examiners of the State Bar of Nevada has been delegated, through the Supreme Court
Rules, the power to interview and examine applicants, conduct hearings and receive evidence, in order to
determine the applicants' qualifications, and to recommend to this court the admission or rejection of applicants
for admission to the practice of law in this state. SCR 49(1) and (3); SCR 57.
96 Nev. 85, 87 (1980) In re Nort
decisions in this regard, we have determined to set forth at some length the history and
rationale of our rulings in the matter of waiver of the accreditation rule.
The predecessor of Rule 51(3) was adopted in 1946, effective January 1, 1950. In 1959,
this court first addressed the issue of waiver of the rule. In re Lorring, 75 Nev. 330, 340 P.2d
589 (1959). Petitioner Lorring had graduated in 1925 from a law school which was not
accredited until 1941. The court referred to the purposes behind the adoption of the rule:
The State of Nevada in thus acting joined a nationwide movement evidenced by
recommendations and resolutions of Sections of the American Bar Association and by
the activities of the National Conference of Bar Examiners to raise the standards of the
bar, and one of the methods adopted by the State Bar of Nevada and the supreme court
of this state to achieve this end was the requirement of proof of educational background
before an applicant would be permitted to take the state bar examinations. To this was
finally added the requirement for a law degree from a law school duly accredited by the
Legal Education Section of the American Bar Association, whose first accredited list of
law schools was certified in 1923.
Id. at 332, 340 P.2d at 590. The court concluded that:
In view of the careful and continuous consideration given by this court and by its Board
of Bar Examiners, acting as an arm of this court, in line with an understandable and
admirable national trend, to the matter of educational requirements determining the
eligibility of persons to take the state bar examinations, and of the very precise fixing of
the dates upon which the several amendments were made to take effect, so as to prevent
a hardship on those applicants who had geared their educational programs to then
existing provisions, we are compelled to conclude that the present petition does not
warrant an order of this court waiving the rules in question. Petition denied.
Id. at 333, 340 P.2d at 591. The decision in Lorring regarding petitioners who had attended
schools prior to adoption of the rule was reaffirmed in 1967. In re Batten, 83 Nev. 265, 428
P.2d 195 (1967). At that time the court also expressed its reluctance to grant a waiver, on any
ground, to the provisions of the accreditation rule.
In 1972, however, the court considered the petition of Peter Hawke Burleigh, an applicant
with highly impressive academic credentials, who had attended law school in England, and
therefore could not meet the technical requirement of ABA accreditation. Mr. Burleigh's
petition was accompanied by a detailed description of the English education system and
the legal curriculum which he followed, and an affidavit from his former headmaster.
96 Nev. 85, 88 (1980) In re Nort
therefore could not meet the technical requirement of ABA accreditation. Mr. Burleigh's
petition was accompanied by a detailed description of the English education system and the
legal curriculum which he followed, and an affidavit from his former headmaster. The court
granted Mr. Burleigh permission to take the bar examination, deferring its ruling on the
merits of his petition to waive the accreditation requirements. After the petitioner had passed
the examination, the Board of Bar Examiners informed the court that it had completed its
investigation into petitioner's character and qualifications and had no objection to
petitioner's admission. In re Burleigh, No. 6874 (Order of Oct. 13, 1972). The court
accordingly ordered Mr. Burleigh's admission to the bar.
In 1976, this court received another petition for waiver of the rule. In re Kadans, 93 Nev.
216, 562 P.2d 490, appeal dismissed, 434 U.S. 805 (1977). At that time, the court directed
the State Board of Bar Examiners to undertake a full inquiry and report concerning the
petitioner's personal and academic background. The report of the State Bar concluded, and
the court agreed, that the petitioner had only mariginal academic credentials for the practice
of law, and had made misleading claims which manifested his moral unsuitability for the
practice of law in this state. The court concluded that the accreditation requirement did not
operate unfairly as to petitioner, and Mr. Kadans' petition for waiver was therefore denied.
Id. at 220, 562 P.2d at 493.
In 1977, this court received three applications for waiver of the accreditation rule. In two
of those cases, the Board of Bar Examiners did not oppose the petitions to sit for the 1977 bar
examination. In re Freudenheim, No. 9649; In re McCarthy, No. 9910. In the third, the Board
did object, but did not controvert the allegation that the law school from which the petitioner
graduated fully complied with all the criteria for ABA accreditation, except that it was
operated for profit. In re Herring, No. 9738 (1977). See Approval of Law Schools, American
Bar Association Standards and Rules of Procedure, 202 (1977) (hereafter Rule 202). Mr.
Herring's application was accompanied by considerable data regarding the operation and
rationale for Rule 202, including the Report of the American Bar Foundation Liaison
Research Project No. 3 (Dec. 29, 1976), recommending a two-year suspension of Rule 202, to
allow proprietary schools to seek accreditation. All three 1977 applicants were allowed to sit
for the examination, after which the Board recommended admission of the successful
candidates.
96 Nev. 85, 89 (1980) In re Nort
[Headnotes 1, 2]
As the court suggested in Lorring, the purpose of the educational requirement now
embodied in SCR 51(3) was to promote high standards of competence among those admitted
to the members of the professional bar within this state. The United States Supreme Court has
noted, It is undisputed that a State has constitutionally permissible and substantial interest in
determining whether an applicant [for admission to membership in its professional bar]
possesses the character and general fitness requisite for an attorney and counselor-at-law.'
Law Students Research Council v. Wadmond, 401 U.S. 154, 159 (1971). In re Griffiths, 413
U.S. 717, 722-23 (1973). Cf. Dent v. West Virginia, 129 U.S. 114 (1889). That Court has also
noted that [t]he interest of the States in regulating lawyers is especially great since lawyers
are essential to the primary governmental function of administering justice, and have
historically been officers of the courts.' Goldfarb v. Virginia State Bar, 421 U.S. 773, 792
(1975). In this state the ultimate responsibility for regulating the admission to the bar, and the
commensurate obligation to assure the public of the competency of its members, rests with
this court. See In re Schaengold, 83 Nev. 65, 422 P.2d 686 (1967); Ex Parte Kellar, 79 Nev.
28, 377 P.2d 927 (1963).
In common with many other jurisdictions, we have elected to make use of the accreditation
resources of the American Bar Association, in order to provide for an effective evaluation of
an applicant's legal education without imposing an impossible burden on the resources of this
court or the Board of Bar Examiners. See In re Stephenson, 511 P.2d 136, 139 (Alaska 1973),
modified on other grounds, Avery v. Board of Governors, 576 P.2d 488 (Alaska 1978),
LaBossiere v. Florida Board of Bar Examiners, 279 So.2d 288, 289 (Fla. 1973); Appeal of
Murphy, 393 A.2d 369, 371 (Pa. 1978), appeal dismissed, 440 U.S. 901, 99 S.Ct. 1204
(1979). On the other hand, we have been mindful that the ultimate responsibility is also ours
to ensure that applicants are treated fairly, and that the rules do not operate in a manner
inconsistent with the constitutional protections afforded those who seek to practice their
chosen profession within this state. We have been well aware that [a] State can require high
standards of qualification, such as good moral character or proficiency in its law, before it
admits an applicant to the bar, but any qualification must have a rational connection with the
applicant's fitness or capacity to practice law. Schware v. Board of Bar Examiners, 353 U.S.
232, 239 (1957).
96 Nev. 85, 90 (1980) In re Nort
To deny an applicant such as Mr. Burleigh admission to the bar solely on the ground that
his legal education was acquired at an institution which was not accredited by the ABA when
the Board of Bar Examiners had, after examination, satisfied itself as to his character and
qualification, and when that institution's lack of accreditation was not related to the quality of
legal education provided, but rather to the circumstance of its location outside the
geographical area encompassed by the accreditation activities of the ABA, would have been
to ignore our obligation to ensure that the operation of Rule 51(3) does not exclude qualified
applicants on a basis which has no rational connection with his fitness to practice law in this
state. Cf. In re Griffiths, supra. See Appeal of Murphy, supra. It was a similar concern which
prompted us to defer consideration of the application of Mr. Herring until the Board of Bar
Examiners should have had an opportunity to examine his qualifications.
The substance of Mr. Herring's claim was that but for Rule 202, which precluded ABA
accreditation of schools operated for profit, the law school which he attended, Western State
University College of Law (Western State), met all the educational standards for ABA
accreditation. This allegation was not disputed by the Board of Bar Examiners. Insofar as it
appeared to this court, therefore, the question presented was whether Mr. Herring would be
denied admission by the strict operation of Rule 51(3) on a ground unrelated to the quality of
legal education which he received.
The relationship of Rule 202 to the quality of education offered by a law school has been
the subject of considerable debate within the ABA itself. The status of this debate in 1977 has
been described by the Supreme Court of Minnesota, Application of Hansen, 275 N.W.2d 790,
795 (Minn. 1978), appeal dismissed, 441 U.S. 938, 99 S.Ct. 2154 (1979).
Prior to 1977 the ABA, as a matter of policy, refused even to consider accrediting
proprietary law schools. Its opposition stemmed from its belief that the establishment of
an educational institution for profit would have to affect negatively the caliber of the
education provided to the students. When the goal of a law school is to make money,
the reasoning went, the administration will skimp on services, and the students will
necessarily suffer. More recently, however, persons within the ABA have challenged
this assumption. In response to this pressure the ABA established a committee to study
whether the organization should accredit proprietary law schools. The Committee to
Study the Accreditation of Proprietary Law Schools recommended, however, that
before the Association decided to modify the accreditation process, it should be sure
of the incorrectness of its assumption that a school's proprietary status is a
shorthand measure of other education deficiencies.
96 Nev. 85, 91 (1980) In re Nort
Schools recommended, however, that before the Association decided to modify the
accreditation process, it should be sure of the incorrectness of its assumption that a
school's proprietary status is a shorthand measure of other education deficiencies. Thus,
the Committee recommended that it should permit proprietary law schools to apply for
provisional accreditation. If they are able to meet the other ABA requirements, the
Association will permanently repeal the standard relating to nonproprietary status.
See also D. Fossum, Law School Accreditation Standards and the Structure of American
Legal Education, 1978 ABF Research Journal 515.
In light of (1) the uncontroverted allegation that but for Rule 202, Western State would be
entitled to ABA accreditation; (2) the serious questions raised regarding the connection
between Rule 202 and the quality of education offered by a law school; and (3) the eventual
recommendation by the Board of Bar Examiners that Mr. Herring be admitted, the waiver
was granted.
In 1978, three applicants for admission to the bar petitioned this court for waiver of the
accreditation rule. In re Hope, No. 10677; In re Bernard, No. 10721; In re Wassner, No.
10781. Hope and Wassner based their petitions on the fact that they had attended the same
school as Mr. Herring, and therefore were equally entitled to waiver of the rule. Mr. Bernard
alleged that he had attended a school which also was not accredited solely because it was
operated for profit. Each was allowed to sit for the 1978 bar examination, with decision on
the merits deferred until after the examination. Only after the petitioners had taken the
examination did the Board of Bar Examiners seek to challenge the substantive allegations of
the petitionersi.e., that the schools attended were not accredited solely because they were
operated for profit.
2
Under these circumstances, when petitioners had expended the
considerable time and effort required to prepare for the bar examination, without any
indication from the Board of Bar Examiners that opposition would consist of any more
than an urging that the court strictly enforce the rule {despite the Board's withdrawal of
opposition to Mr.
____________________

2
In October, 1978, the Board of Bar Examiners filed with the court the brief of the American Bar Association
in Application of Hansen, supra. The brief set forth the resolution adopted by the Council of the Section of
Legal Education and Admissions to the Bar, June 18, 1977, providing that until the date of June 30, 1979, it
will accept application for provisional approval from any proprietary law school which can show that it
substantially complies with all of the Standards for Approval of Law Schools by the American Bar Association
except Standard 202 and the last clause of Standard 203 and gives assurance that it will be in full compliance
with all of the Standards for Approval of Law Schools by the American Bar Association except Standard 202
and the last clause of Standard 203 within three years after receiving provisional approval. . . . App. p. 1A.
96 Nev. 85, 92 (1980) In re Nort
and effort required to prepare for the bar examination, without any indication from the Board
of Bar Examiners that opposition would consist of any more than an urging that the court
strictly enforce the rule (despite the Board's withdrawal of opposition to Mr. Herring's
application the previous year), the court determined to proceed with granting waivers of the
rule.
Mr. Nort, petitioner herein, along with eight other applicants, petitioned to waive the
requirements of SCR 51(3) in 1979. Mr. Nort had attended Western State. His contention was
that he had attended the same school as Mr. Herring, and therefore should be allowed to sit
for the examination.
Of the other 1979 petitioners, five based their applications primarily on the admission of
Herring, Hope and Bernard.
3
Two were graduates of Western State, who made substantially
the same argument as that advanced by Nort. In re Kossick, No. 11742; In re Johnson, No.
11773. Two others were graduates of the law school attended by Bernard, and also contended
that on the basis of his admission, and that of others from non-accredited schools, they should
be admitted. In re Abrahams, No. 11718; In re Homick, No. 11789. Another petitioner was a
graduate of LaSalle Correspondence School of Law, and member of the California Bar, who
also relied on the admission of other graduates of non-accredited schools in previous years. In
re Brown, No. 11864.
4

Of these petitions, that of petitioner Brown was of course disposed of on the grounds that
she had neither made a showing that the law school attended lacked accreditation solely on
the ground that it was operated for profit, see e.g., Approval of Law Schools, American Bar
Association Standards and Rules of Procedure, 305 (1977), nor that it offered an education
which was substantially similar to that offered by ABA accredited schools.
____________________

3
Of the other applicants, one advanced an argument substantially similar to that disposed of by this court, In
re Lorring, supra. In re Louis, No. 11772. Another applicant petitioned for waiver on the ground that he had
graduated from a law school which was provisionally accredited in the following year. In re Klinn, No. 11839.
The petitioner's documentation did not, however, establish that significant changes had not been made in the
quality of education offered between petitioner's graduation and the provisional accreditation. Cf. Florida Board
of Bar Examiners (In re Eisenson), 272 So.2d 486 (Fla. 1973). These petitions for waiver were therefore denied.
A final petitioner was able to make substantially the same showing as that made by petitioner Burleighi.e., that
his school was denied accreditation solely on the basis that it was outside the geographical scope of the ABA
accreditation process, and offered an education substantially similar, or superior, to that offered by ABA
accredited schools. No opposition to the petition was submitted by the Board of Bar Examiners. This petition
was granted. In re Standish, No. 11838.

4
Petitioner Brown was subsequently administered the examination, pursuant to federal court order, Brown v.
Supreme Court of Nevada, supra.
96 Nev. 85, 93 (1980) In re Nort
accredited schools. Essentially, Brown argued that we should abandon our educational
requirements altogether, and rely solely on the results of the bar examination. This we
declined to do. As a federal district court noted of the educational requirements imposed by
the Supreme Court of a sister state, Moore v. Supreme Court of South Carolina, 447 F.Supp.
527, 529 (D.S.C. 1977), cert. denied, 439 U.S. 984 (1979);
This test [the bar examination] has a great deal of value; however, the fact that one
passes the bar exam does not necessarily mean that he is qualified to practice law. A
person may read law' or take correspondence courses which may prepare him for the
bar exam but which may not prepare him for the practice of law.
The other means of ensuring the qualifications of candidates for admission to the bar
is the requirement that they graduate from an ABA approved law school. By imposing
this requirement the Supreme Court was clearly seeking assurance that the applicants
received some kind of formal legal education with a broader scope than mere
preparation for the bar exam. The Supreme Court obviously saw the value of lectures
by legal scholars, classroom discussions, the teaching of research skills, and student
oral argumentsall facets of a legal education which are not tested by the bar exam.
Nor did the admission of petitioner to the bar of another state entitle the petitioner to
admission to the practice of law in this state, in derogation of our own independent
requirements. See Leis v. Flynt, 439 U.S. 438 (1979). Brown's petition was therefore denied.
As to Nort, and the other similarly situated petitioners, the court had, in 1979, information
upon which to reevaluate, in a timely manner, the claims of the petitioners that their schools
lacked ABA accreditation solely because of the operation of Rule 202. As noted by the court
in Application of Hansen, supra, 275 N.W.2d at 795, the ABA Council of the Section of
Legal Education and Admissions to the Bar had resolved, on June 18, 1977, to accept
applications for provisional accreditation from proprietary law schools until June 30, 1979.
Despite this waiver, Western State had not applied. Indeed, according to materials submitted
in connection with the 1979 petitions, no proprietary school had submitted such an
application as of April, 1979, though the deadline was extended to July, 1981. The
significance of this change of circumstance was noted by the Supreme Court of Minnesota,
id. at 795-96 (footnote omitted): Petitioner argues that if Western State were not a
proprietary school it would certainly have been accredited, or, alternatively, that it is an
excellent school whose excellence goes unrecognized by the ABA because of its
proprietary nature.
96 Nev. 85, 94 (1980) In re Nort
Petitioner argues that if Western State were not a proprietary school it would certainly
have been accredited, or, alternatively, that it is an excellent school whose excellence
goes unrecognized by the ABA because of its proprietary nature. Western State
contends that the fact of its accreditation by the California Committee of Bar Examiners
and by the Western Association of Schools and Colleges either entitles it automatically
to accreditation by the ABA or should cause this court to waive the requirement of
ABA accreditation for graduates of Western State. But, as the ABA responds, we have
nothing but the bare assertions of petitioner and his law school that Western State offers
a quality education and is in substantial compliance with all relevant factors that go into
the quality education formula. Because Western State has refused to apply for
provisional accreditation despite ABA requests that it do so, no ABA personnel have
visited its campuses to evaluate its programs. Thus, we have no way of knowing
whether Western State could have substantially complied with the other ABA
requirements for accreditation.
The rules regarding application for admission to the bar in this state explicitly provide that
in any proceeding before the Board of Bar Examiners, or this court, the burden of proof lies
with the applicant. SCR 64(2). Because of this information, first available to this court only
after the 1978 bar examination had been administered, and explicitly relied upon by the Board
of Bar Examiners in their opposition to the 1979 petitions, we were not longer in a position to
accept the assertion by petitioners that the law schools which they had attended were
unaccredited solely by the operation of Rule 202.
To grant the petitions of Nort and the other similarly situated applicants in 1979 would
have been to abandon the requirement of a threshold showing that the unaccredited status of
the law school attended was due solely to a factor unrelated to the quality of education
offered. This would have represented a substantial and unwarranted extension of this court's
previous rulings granting waiver of Rule 51(3). It would, in fact, have represented an
abandonment of the accreditation rule itself, by requiring a factual determination by this
court, or the Board of Bar Examiners, as to the quality of the educational program offered by
the law school attended by each petitioner. As suggested above, neither this court nor the
Board of Bar Examiners has the resources to undertake this task in a meaningful manner,
particularly given the large number of petitions which would be expected to follow such a
decision.5 See Appeal of Murphy, supra.
96 Nev. 85, 95 (1980) In re Nort
task in a meaningful manner, particularly given the large number of petitions which would be
expected to follow such a decision.
5
See Appeal of Murphy, supra. Accordingly, the
petitions of Nort, as well as the others who had based their petitions for waiver on similar
grounds, were denied.
[Headnotes 3-5]
In the instant petition, Nort asks, in effect, that we reconsider that decision. We are not
pursuaded [persuaded] that we were in error, or that petitioner has been deprived of any
constitutional right by our denial of his application. As the United States Supreme Court has
recently held, there is no constitutional right to admission to the practice of law within a state
without compliance with its admissions requirements. Leis v. Flynt, supra. Nor, as the court
suggested, is such a right created merely because a wholly and expressly discretionary state
privilege has been granted generously in the past. Id., 439 U.S. at 444, n. 5. See also Hickey
v. District of Columbia Court of Appeals, 457 F.Supp. 584, 588 (D.D.C. 1978). The
educational requirements represented by the ABA Standards have been consistently upheld
against constitutional attack. See, e.g., Lombardi v. Tauro, 470 F.2d 798 (1st Cir.), cert.
denied, 412 U.S. 919 (1972); Hackin v. Lockwood, 361 F.2d 499 (9th Cir.), cert. denied, 385
U.S. 960 (1966); Murphy v. State Bd. of Law Examiners, 429 F.Supp. 16 (E.D.Pa. 1977);
Moore v. Supreme Court of South Carolina, supra; Huffman v. Montana Supreme Court, 372
F.Supp. 1175 (D. Mont.), aff'd, 419 U.S. 955 (1974); In re Stephenson, supra; Ralston v.
Turner, 4 N.W.2d 302 (Neb. 1942); Henington v. State Board of Bar Examiners, 291 P.2d
1108 (N.M. 1956); Application of Schatz, 497 P.2d 153 (Wash. 1972).
[Headnote 6]
Nor are we convinced that the rule otherwise operates unfairly as to petitioner. See In re
Kadans, supra. Nort, like the other similarly situated petitioners, chose to attend a law
school which did not have ABA accreditation, in the face of the long-standing provisions
of SCR 51{3).
____________________

5
We note that in view of our proximity to California, where graduates of schools which are not ABA
accredited are permitted to take that state's bar examination, it is not unreasonable to expect that very substantial
numbers of such petitions would be submitted, were we to adopt such a course. For example, statistics reported
in 54 California State Bar Journal, at 122-23 (March/April 1979), reveal that of those taking the fall, 1977, bar
examination in that state, 921 had attended California law schools accredited in California but not accredited by
the ABA, and 487 had attended California law schools accredited neither by California nor by the ABA. Of
those taking the spring, 1978, examination, 1239 applicants had attended California law schools accredited only
by that state, and 651 had attended California law schools approved neither by California nor by the ABA.
96 Nev. 85, 96 (1980) In re Nort
the other similarly situated petitioners, chose to attend a law school which did not have ABA
accreditation, in the face of the long-standing provisions of SCR 51(3). Many years ago the
United States Supreme Court established that it is only when educational requirements
established as a prerequisite for practicing a profession within a state have no relation to
such calling or profession, or are unattainable by . . . reasonable study and application, that
they can operate to deprive one of his right to pursue a lawful vocation. Dent v. West
Virginia, supra, 129 U.S. at 122.
[Headnote 7]
This court will continue to exercise its inherent and exclusive power to control admissions
to the professional bar of this state, see Feldman v. State Board of Law Examiners, 438 F.2d
699 (8th Cir. 1971), so as to provide relief from the operation of the rules of admission
whenever it can be demonstrated that the rules operate in such a manner as to deny admission
to a petitioner arbitrarily and for a reason unrelated to the essential purpose of the rule.
Absent such a showing, we will not entertain such petitions. Cf. LaBossiere v. Florida Board
of Bar Examiners, supra.
Accordingly, the petition is denied.
____________
96 Nev. 96, 96 (1980) Eckert v. State
EDWARD DONALD ECKERT, Appellant, v. THE
No. 10583
January 24, 1980 605 P.2d 617
Appeal from felony convictions of first degree kidnaping, robbery and extortion, with use
of deadly weapon, Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge.
The Supreme Court, Manoukian, J., held that: (1) trial court did not err in disallowing
proposed alibi testimony of defendant's witness where defendant failed to afford State with
timely notice of the testimony and failed to demonstrate good cause for noncompliance with
the notice statute; (2) trial court did not err in sustaining the State's objection which had effect
of precluding a State's witness, an initial codefendant of defendant, from testifying as to
sentences he had faced incidental to pre-plea-bargaining charges where every fact of the
witness' plea bargain was disclosed to the jury and where defendant was given full
opportunity to test the witness' motives and interests together with accuracy of evidence
presented through him; {3) trial court did not err in refusing to require an alleged suspect
to invoke Fifth Amendment before the jury; and {4) defendant's kidnapping charges did
not merge with his charges of robbery and extortion.
defendant was given full opportunity to test the witness' motives and interests together with
accuracy of evidence presented through him; (3) trial court did not err in refusing to require
an alleged suspect to invoke Fifth Amendment before the jury; and (4) defendant's kidnapping
charges did not merge with his charges of robbery and extortion.
Affirmed.
Gunderson and Batjer, JJ., dissented.
Michael A. Cherry, Las Vegas, for Appellant.
Richard Bryan, Attorney General, Carson City, and Roy A. Woofter, Special Prosecutor,
Las Vegas, for Respondent.
1. Criminal Law.
Trial court did not err in disallowing proposed alibi testimony of defendant's witness where defendant
failed to afford the State with timely notice of the proposed testimony and failed to demonstrate good cause
for noncompliance with the notice statute. NRS 174.087.
2. Witnesses.
Generally, permissible extent of cross-examination is reserved to sound discretion of trial court.
3. Witnesses.
Where purpose of cross-examination is to expose bias, trial court's discretion is narrow and an examiner
must be permitted to elicit any facts which might color a witness' testimony.
4. Witnesses.
Great latitude is given an accused, particularly in his cross-examination of an accomplice relative to his
motives for testifying.
5. Witnesses.
Trial court did not err in sustaining the State's objection which had effect of precluding a State's witness,
an initial codefendant of defendant, from testifying as to sentences he had faced incidental to
pre-plea-bargaining charges where every fact of the witness' plea bargain, including reference to his felony
guilty plea, and his five-year prison term was disclosed to the jury and where defendant was given full
opportunity to test the witness' motives and interests together with accuracy of evidence presented through
him.
6. Witnesses.
Trial court did not err in denying defendant's request to require an alleged suspect to invoke his Fifth
Amendment right in presence of the jury. U.S.C.A.Const. Amend. 5.
7. Criminal Law.
Defendant's kidnapping charges did not merge with his robbery and extortion charges.
OPINION
Edward Donald Eckert appeals from four felony convictions for first-degree kidnaping, a
robbery and an extortion, each perpetrated with the use of a deadly weapon.
for first-degree kidnaping, a robbery and an extortion, each perpetrated with the use of a
deadly weapon. There are several assignments of error; however, only the following claims
warrant our consideration. They are: (1) the trial court abused its discretion in disallowing
proffered alibi testimony; (2) the trial court erred in limiting the cross-examination of a state's
witness; (3) error occurred when the trial court refused to require an alleged suspect to invoke
the fifth amendment before the jury; and (4) the kidnaping and deadly weapon enhancement
charges merged with the crimes of robbery and extortion. We turn to consider these
contentions, summarily rejecting the remaining assignments of error.
On June 7, 1976, at approximately 8:00 p.m., Victor Trapani, a former employee of
Michael Gaughan, a principal owner of the Royal Inn Casino in Las Vegas, arrived at the
Gaughan residence in Las Vegas, ostensibly for a visit. Paula Gaughan and her sister, Patsy
Rampolla, were at the residence when Trapani arrived. At about 8:30 Trapani stepped out of
the home for a few minutes to check his dogs and upon his return he was accompanied by a
gunman, later identified as the appellant. Trapani, an accomplice and feigned victim, was
instructed by Eckert to tie up each of the occupants with duct tape, during which time Eckert
informed them to remain quiet and to comply with his orders. Eckert then demanded a valise
and requested Trapani to obtain one from the living room. After learning that Mr. Gaughan
was out of the country and unavailable to disclose the combination for the casino's main
vault, and as he held the occupants at gunpoint, appellant directed Mrs. Gaughan to
telephonically summon Tony Hegler, the casino's general manager, and in doing so, to
fabricate a reason for Hegler to come to the residence quickly. She did so and, shortly
thereafter, Hegler arrived accompanied by Gene Cozzolino, another casino employee.
Thereafter, Cozzolino was placed in a chair and bound as the others had been. Eckert then
held a gun to Hegler's head in an effort to obtain the vault's combination. When Eckert
learned that Hegler was unaware of the combination, he instructed Hegler and Trapani to go
to the casino and to return with $125,000 from the cashier's cage. Appellant threatened to kill
the remaining occupants if his instructions were not carried out. The two men, pursuant to the
instructions, went to the casino and near 10:00 p.m., returned with approximately $53,000 in
the valise, after which Eckert quickly exited.
1. The Proffered Alibi Witness.
[Headnote 1]
The trial court disallowed a witness' testimony because of appellant's failure to afford the
state with timely notice of proposed alibi testimony.1 Appellant contends that such
disallowance constitutes reversible error.
appellant's failure to afford the state with timely notice of proposed alibi testimony.
1
Appellant contends that such disallowance constitutes reversible error. We disagree. As we
have stated:
Statutes such as NRS 174.087(1) which require notice to the prosecution when an
alibi defense is contemplated are usually strictly applied. Annot. 30 A.L.R.2d 480
(1953). Strict compliance is compelled with the purpose of preventing the popping up
of alibi witnesses at the eleventh hour when the prosecution will be unable to
investigate the veracity of the alibi testimony. Williams v. Florida, 399 U.S. 78 (1970);
State v. Dodd, 418 P.2d 571 (Ariz. 1966); People v. Schadd, 292 N.Y.S. 616, 617
(Queen's County Ct.N. Y. 1936); State ex rel. Simos v. Burke, 163 N.W.2d 177 (Wis.
1968).
Founts v. State, 87 Nev. 165, 169, 483 P.2d 654, 656 (1971).
Eckert sought to have one Janice Zureck testify that they were together at the time of the
alleged robbery. Appellant failed to provide the state with the notice-of-alibiwritten or
oraluntil the conclusion of the state's case-in-chief and following the first defense witness
after the fourth day of trial. Founts expressly places the decision as to admission of alibi
evidence within the discretion of the trial court when good cause is shown irrespective of
non-compliance with the statute. Id. at 169-70, 483 P.2d at 657. In jurisdictions where the
trial courts have exercised their discretion and disallowed alibi testimony because of
non-compliance with a notice-of-alibi statute, the appellate courts have rarely found abuse.
Cox v. State, 219 So.2d 762, 765 (Fla.Dist. Ct. App. 1969); State v. Selbach, 68 N.W.2d 37,
38 (Wis. 1955). For a well-reasoned analysis in a similar situation, see Founts v. State, S7
Nev. at 174, 4S3 P.2d at 657-659 {Batjer, J.,
____________________

1
1. A defendant in a criminal case who intends to offer evidence of an alibi in his defense shall, not
less than 10 days before trial or at such other time as the court may direct, file and serve upon the district
attorney a written notice of his intention to claim such alibi, which notice shall contain specific
information as to the place at which the defendant claims to have been at the time of the alleged offense
and, as particularly as are known to defendant or his attorney, the names and addresses of the witnesses
by whom he proposes to establish such alibi.
. . . .
4. If a defendant fails to file and serve a copy of such notice as herein required, the court may
exclude evidence offered by such defendant for the purpose of proving an alibi, except the testimony of
the defendant himself. If such notice is given by a defendant, the court may exclude the testimony of any
witness offered by the defendant for the purpose of proving an alibi if the name and address of such
witness, as particularly is known to the defendant or his attorney, is not stated in such notice. (Emphasis
added.)
similar situation, see Founts v. State, 87 Nev. at 174, 483 P.2d at 657-659 (Batjer, J.,
concurring in part and dissenting in part).
In Founts, this court enumerated several factors demonstrating good cause. Included in
these factors were considerations as to whether an excuse was shown for the omission and
whether the alibi had such substance as to have probative value to the defense . . . . Id. at
169, 483 P.2d at 656. We find nothing which demonstrated good cause. Appellant informed
his counsel at the time he was first represented that a young lady could testify for him.
Appellant attempted to locate her himself more than three weeks prior to trial and no notice
of such possible witness was conveyed to the state.
2
Additionally, unlike in Founts, the
testimony would not have contradicted a sole witness against appellant.
3
Although the
discretion vested in the trial judge is not unfettered, we should uphold the court's
exercise of that discretion absent manifest abuse.
____________________

2
It is noteworthy that appellant was previously charged and convicted of murder. Midway into that prior
unrelated criminal trial, with the notice-of-alibi statute in force, appellant apparently unsuccessfully made a
similar and belated offer of proof as to an alibi witness. See Eckert v. State, 91 Nev. 183, 533 P.2d 468 (1975)
(reversed on other grounds with alibi error not raised on appeal). The record shows that the prosecutor, during
the offer of proof hearing in the instant case, commented as to the previous similar unsuccessful attempt to
produce an alibi witness.

3
We note that, unlike in Founts, several witnesses testified to the events and there was overwhelming
evidence of appellant's participation. Several state's witnesses testified as to the type of clothing and shoes worn
by appellant during the robbery, as well as to the guns and false beard, mustache and dark glasses used.
Moreover, not only is there substantial evidence of appellant's guilt presented by witnesses who were present at
the crime scene, but there was additional testimony presented by acquaintances of appellant which directly
contradicted the offered alibi testimony. Witnesses identified the guns used to commit the offenses, the clothing
and disguise worn by Eckert, and the type of duct tape used to bind the victims during the commission of the
crimes, which was admitted into evidence. Eckert had used Laura Fiorentino's automobile from June 4 through
the 8th. Fiorentino stated that prior to the robbery, appellant removed from her vehicle a roll of duct tape of the
type used by the gunman. Appellant admitted the truthfulness of the latter testimony. Indeed, appellant's own
testimony as to periods of time cannot be reconciled with that given by Laura Barker and Laura Fiorentino, both
of whom placed Eckert at Fiorentino's apartment at times Eckert claims in his offer of alibi to have been with
Janice Zureck. It is undisputed that the offenses were committed during a continuous period between the hours
of 8:45 and 10:00 p.m. Appellant's own alibi testimony is that after he dropped Janice Zureck off at her
residence at about 8:30 p.m. or so, he returned to Ms. Fiorentino's home as early as 9:00 p.m. but no later than
10:00 p.m. He later testified that after returning to the Fiorentino residence, he left again at about 10:00 p.m.
returning that same evening. Appellant's testimony is internally inconsistent and it was within the jury's province
to either accept or reject it. Porter v. State, 94 Nev. at 146, 576 P.2d at 278. The proffered alibi witness allegedly
would have testified to essentially the same facts. As such, it would have been merely cumulative. We do not
believe such constitutes good cause for a late alibi notice.
Although the discretion vested in the trial judge is not unfettered, we should uphold the
court's exercise of that discretion absent manifest abuse. See Brown v. State, 81 Nev. 397,
400, 404 P.2d 428, 430 (1965). No good cause was demonstrated to permit the alibi
testimony, in view of this statutory non-compliance. Reese v. State, 95 Nev. 419, 423-24, 596
P.2d 212, 215-16 (1979); cf. State v. Adair, 469 P.2d 823, 826 (Ariz. 1970) (defendant gave
proper notice of alibi, but failed to include names of all witnesses and gave no explanation of
failure); Founts v. State, 87 Nev. at 169-70, 483 P.2d at 656-57 (state provided with pretrial
notice of alibi and proffered testimony contradicted that of sole witness against accused).
Given the ease with which an alibi can be fabricated, Williams v. Florida, 399 U.S. at
81, the government's interest in protecting against a belated defense and the suspect nature of
the tendered alibi testimony, we are unable to conclude that the trial court erred in excluding
Ms. Zureck's testimony.
2. Restriction on Cross-Examination.
The trial court sustained respondent's objection which had the effect of precluding Victor
Trapani, a state's witness and initial co-defendant with appellant, from testifying as to the
sentences he had faced incidental to the pre-plea bargaining charges. Appellant argues that
such preclusion constituted reversible error. We do not agree.
[Headnotes 2-5]
Generally, the permissible extent of cross-examination is reserved to the sound discretion
of the trial court. Where its purpose is to expose bias, the trial court's discretion is narrow and
an examiner must be permitted to elicit any facts which might color a witness' testimony.
Bushnell v. State, 95 Nev. 570, 599 P.2d 1038 (1979); Azbill v. State, 88 Nev. 240, 246, 495
P.2d 1064, 1068 (1972). Great latitude is given an accused, particularly in his
cross-examination of an accomplice relative to his motives for testifying. Bushnell v. State,
95 Nev. at 572, 599 P.2d at 1038-39. In State v. Coleman, 579 P.2d 732, 747 (Mont. 1978), a
case of aggravated kidnaping, error did not occur when cross-examination of an alleged
accomplice was limited because the question was otherwise answered. During direct and
cross-examination of Trapani, it was shown that Trapani and Tony Barker were all originally
charged with the same offenses and that in consideration of Trapani's cooperation in an
unrelated criminal proceeding, the state would dismiss all but one of the several felony
counts. Here, every fact of the Trapani plea bargain, including reference to his felony guilty
plea, and his five-year prison term was disclosed to the jury.
jury. Additionally, it was emphasized on cross-examination and argued as an issue of
accomplice credibility. The jury was made fully aware of the legal benefits derived by
Trapani as a result of his agreeing to be a prosecution witness. Bushnell v. State, 95 Nev. at
573-74, 599 P.2d at 1040. Under these circumstances, it is clear that his testimony was not
motivated by the hope or expectation of immunity or leniency on the part of prosecuting
authorities. Appellant was given full opportunity to test Trapani's motives and interests
together with the accuracy of the evidence presented through him. This assignment of error is
without merit. Cf. Bushnell v. State, 95 Nev. 570, 599 P.2d 1038 (1979) (restriction on
defendant's cross-examination of an accomplice was held harmless error).
3. Barker's Fifth Amendment Right.
[Headnote 6]
Appellant contends that the trial court committed reversible error when it denied
appellant's request that Tony Barker, who Eckert alleged to be Trapani's accomplice, and the
gunman, be required to invoke his fifth amendment right in the presence of the jury. For the
reasons we expressed in Foss v. State, 92 Nev. 163, 165-66, 547 P.2d 688, 690 (1976), we
perceive no error.
4. Merger of Crimes.
[Headnote 7]
The contention that the four crimes of first degree kidnaping were incidental to the robbery
and extortion and were merged therein was decided by this court adversely to the appellant in
this very case. See Eckert v. Sheriff, 92 Nev. 719, 721, 557 P.2d 1150, 1151 (1976).
Accordingly, we affirm the robbery, extortion and first degree kidnaping judgments and
sentences.
Gunderson, J., with whom Batjer, J., concurs, dissenting:
A jury convicted Edward Donald Eckert of various crimes arising from an occurrence on
June 7, 1976, at the residence of Michael and Paula Gaughan, in Las Vegas, where Gaughan
was an owner of the Royal Inn Casino. Patsy Gaughan testified that at 8:30 p.m. on June 7,
she and her baby, Patsy Rampolla and her son, and Victor Trapani were in the residence.
Trapani left the house and, in a few minutes, returned with an armed intruder who wore sun
glasses, a false beard and moustache, and who sometimes spoke with a lisp. After learning
that Michael Gaughan was not present to divulge the combination for the Royal Inn's inner
safe, the intruder demanded that Mrs.
Gaughan summon Tony Hegler, the casino's general manager. When Mr. Hegler arrived, the
intruder put a gun to Hegler's head, and asked for the safe combination, which Hegler did not
know. Throwing the attache case to Hegler, the intruder told him and Trapani to go to the
casino, and to obtain all money in the safe. Hegler and Trapani did so. The intruder left the
residence, carrying the attache case containing the money. Appellant was later identified as
the intruder.
At trial, appellant testified he had been with Janice Zureck at Lake Mead on June 7, 1976.
He assertedly took Zureck home about 8:30 p.m. or 8:45 p.m. Although he testified he was
not the intruder, he admitted that, after the crimes, he had accepted $2,500 from Anthony
Barker to dispose of two guns and a false beard. The appellant's theory was that Barker and
Trapani committed the crimes, and that another owner of the Royal Inn was involved also.
(Trapani was Eckert's co-defendant, and the State originally charged Barker with the same
crimes.)
The trial judge excluded Janice Zureck's testimony, for failure to give a timely notice of
alibi testimony. Appellant contends exclusion of the alibi testimony is reversible error. We
agree.
NRS 174.087(4),
1
as amended in 1971, is permissive. It allows introduction of alibi
testimony despite noncompliance with the provisions for notice. Whether good cause has
been shown for allowing the testimony can be determined only by a review of the particular
facts and circumstances of each case. Founts v. State, 87 Nev. 165, 483 P.2d 654 (1971).
In Founts, id., at 169, 483 P.2d at 656, we set forth factors considered by other states in
determining whether good cause existed for exercising a trial court's discretion to allow the
alibi testimony.
____________________

1
NRS 174.087 states in material part:
1. A defendant in a criminal case who intends to offer evidence of an alibi in his defense shall, not
less than 10 days before trial or at such other time as the court may direct, file and serve upon the district
attorney a written notice of his intention to claim such alibi, which notice shall contain specific
information as to the place at which the defendant claims to have been at the time of the alleged offense
and, as particularly as are known to defendant or his attorney, the names and addresses of the witnesses
by whom he proposes to establish such alibi.
. . . .
4. If a defendant fails to file and serve a copy of such notice as herein required, the court may
exclude evidence offered by such defendant for the purpose of proving an alibi, except the testimony of
the defendant himself. If such notice is given by a defendant, the court may exclude the testimony of any
witness offered by the defendant for the purpose of proving an alibi if the name and address of such
witness, as particularly as is known to the defendant or his attorney, is not stated in such notice.
(Emphasis added.)
testimony. The factors applicable to this case are whether the testimony was sought to be
introduced at such a late time that even an adjournment for investigation would not cure the
prejudice to the State; whether an excuse was shown for omitting to give the State notice;
and, whether the alibi had such substance as to have probative value.
Appellant's attorney advised the special prosecutor there was an alibi witness on Thursday,
October 6, 1977, the fourth day of trial. The trial judge directed appellant's attorney to
provide to the special prosecutor all of the information appellant had. The issue was set for
argument on October 7, 1977, prior to continuation of appellant's case. Appellant had called
only Michael Gaughan to testify on October 6, 1977.
At the hearing, appellant's attorney informed the court that appellant advised him at the
outset of his representation that a Jan could testify she had been with appellant at the time
the crime was alleged to have occurred. Appellant doubted an investigator could locate Jan,
and stated he would try to find her himself. He was also concerned that, if Jan learned
investigators were searching for her, she would not come forward. Appellant's attorney
informed him that a notice of alibi would be required. Two weeks before trial, appellant gave
his attorney the names Janice Zureck or Janice Jureck. During the week prior to trial,
appellant informed counsel that someone at the prison could possibly locate the witness. The
attorney's staff thereafter learned the correct name was Janice Zureck. On either the Friday
preceding trial, or on the day trial was to commence, the witness Janice Zureck contacted
appellant's attorney. After interviewing her on Tuesday or Wednesday, the attorney then
notified the state, as described above. An offer of proof was made that Zureck would testify
she had been with appellant during the day, and at the time of the crime, on June 7, 1976.
The need for Zureck's testimony is evident. The intruder wore a false beard, false
moustache, and sunglasses, and apparently attempted to disguise his voice by speaking with a
lisp. Credible testimony from Janice Zureck that she was with appellant at 8:30 p.m., the time
the witnesses testified the intruder entered the Gaughan house, could have exonerated the
appellant.
The State did not show prejudice to its case beyond that engendered by any continuance,
but requested no continuance.
2
Appellant, who had been in custody since his indictment,
agreed to continue the trial for any time necessary.
____________________

2
The special prosecutor represented to this court at oral argument that he interviewed Janice Zureck and
determined further investigation would be needed in order to cross-examine her.
In deciding that the appellant presented good cause to allow the introduction of alibi
testimony, we note the language used by the Supreme Court in Williams v. Florida, 399 U.S.
78 (1970), in which the high court determined that a notice of alibi statute similar to ours was
constitutional. The Court said, at 83, n.14:
We emphasize that this case does not involve the question of the validity of the
threatened sanction, had petitioner chosen not to comply with the notice-of-alibi rule.
Whether and to what extent a State can enforce discovery rules against a defendant who
fails to comply, by excluding relevant, probative evidence is a question raising Sixth
Amendment issues which we have no occasion to explore. . . .
We think the trial court erroneously excluded relevant, probative evidence as a means of
enforcing a discovery rule, despite a showing of good cause for non-compliance with the rule.
Cf. Barker v. State, 95 Nev. 309, 315, 594 P.2d 719, 722-723 (1979).
Other contentions of error need not be addressed inasmuch as it does not appear they
would necessarily reoccur.
We would reverse and remand for new trial.
____________
96 Nev. 105, 105 (1980) Kuban v. McGimsey
JUDY KUBAN, dba JUDY'S RANCH, and LORRAINE HELMS, dba SHERI'S RANCH,
Appellants, v. JOHN McGIMSEY, in His Capacity as District Attorney for Lincoln County;
EDWARD M. ARNOLD, RALPH L. SMEATH and KENNETH D. LEE, in Their Capacity
as Commissioners of Lincoln County; HAROLD J. WOODWORTH, in His Capacity as
Sheriff of Lincoln County, Respondent.
No. 11663
January 24, 1980 605 P.2d 623
Appeal from order denying complaint for declaratory and injunctive relief, Seventh
Judicial District Court, Lincoln County; Merlyn H. Hoyt, Judge.
Owners of brothels brought action challenging county ordinance prohibiting prostitution.
The district court denied relief and the plaintiffs appealed. The Supreme Court, Manoukian,
J., held that: (1) nature of brothels and county's burden of policing and regulating them are
sufficient reasons for limiting number of such businesses or completely proscribing them;
thus, the ordinance proscribing them did not deny due process, and {2) the fact that the
ordinance would have significantly adverse economic impact upon brothel operators who
had expended large amounts of money on improving their previously legal establishments
did not deprive operators of all reasonable uses of their property and the ordinance was
not so arbitrary or capricious as to violate operators' right to due process or amount to
taking or invasion for which compensation was due.
policing and regulating them are sufficient reasons for limiting number of such businesses or
completely proscribing them; thus, the ordinance proscribing them did not deny due process,
and (2) the fact that the ordinance would have significantly adverse economic impact upon
brothel operators who had expended large amounts of money on improving their previously
legal establishments did not deprive operators of all reasonable uses of their property and the
ordinance was not so arbitrary or capricious as to violate operators' right to due process or
amount to taking or invasion for which compensation was due.
Affirmed.
Fleishman, Brown, Weston & Rohde, A Professional Corporation, Beverly Hills,
California, and Alan B. Andrews, Las Vegas, for Appellants.
John S. McGimsey, District Attorney, Lincoln County, for Respondents.
1. Counties.
Voters in less populated county, or county board, may enact ordinance totally banning houses of
prostitution. NRS 244.345, subds. 1(b), 8, 269.175.
2. Counties.
County governing body, or local electorate, may adopt, repeal or amend ordinances to meet prevailing or
then contemporary community standards and mores. NRS 244.345, subds. 1-8, 269.175.
3. Counties.
Statute allowing county licensing boards exclusive control over unincorporated towns with respect to
prostitution does not preclude power to prohibit brothels elsewhere. NRS 244.345, subd. 1, 269.175;
Const. art. 4, 21.
To satisfy due process, statute must be reasonably related to legitimate governmental interest. Const.
art. 1, 8; U.S.C.A.Const. Amend. 14.
Nature of houses of prostitution and county's burden of policing and regulating them are alone sufficient
reasons for limiting number of such businesses or completely proscribing them; thus, county ordinance
proscribing them did not deny due process. NRS 244.345, subds. 1(b), 8, 269.175; Const. art. 1, 8;
6. Eminent Domain.
Regulation actually prohibiting business does not constitute a taking when it promotes health, safety,
welfare or morals of community and thus is valid exercise of police powers. Const. art. 1, 8;
As long as police power is validly exercised, even previously lawful businesses may be
prohibited.
businesses may be prohibited. Const. art. 1, 8, U.S.C.A.Const. Amend. 5.
8. Constitutional Law; Eminent Domain.
That ordinance prohibiting prostitution in county would have significantly adverse economic impact upon
brothel operators who had expended large amounts of money on improving their previously legal
establishments did not deprive operators of all reasonable uses of their property and the ordinance was not
so arbitrary or capricious as to violate operators' right to due process or amount to taking or invasion for
which compensation was due. NRS 244.345, subds. 1(b), 8, 269.175; Const. art. 1, 8;
U.S.C.A.Const. Amends. 5, 14.
9. Counties.
Operators of brothels were not entitled to be allowed period to amortize their investments following
enactment of ordinance prohibiting prostitution in the county. NRS 244.345, subds. 1(b), 8, 269.175;
Const. art. 1, 8; U.S.C.A.Const. Amend. 5.
OPINION
In this appeal from an order denying plaintiff-appellants' complaint for declaratory,
injunctive and compensatory relief, two main issues confront us. They are: (1) Whether
Nevada's statutory enactments preclude certain counties from completely prohibiting
prostitution; and (2) Whether, assuming such proscription is valid, it constitutes a taking of
property without due process. We turn now to address them.
Between 1971 and 1977 the Lincoln County Board of Commissioners, through the
enactment of various ordinances, defined and imposed restrictions on prostitution and
regulated the number of brothels in the county. In November of 1976, a majority of Lincoln
County voters expressed their approval of legalized prostitution. As a consequence of the
number of applications for houses of prostitution and the difficulties of policing and of
otherwise regulating brothels, the Lincoln County electorate, by initiative referendum on May
16, 1978, approved by nearly a 64 percent majority an ordinance which prohibited
prostitution in the county.
1
Appellants had operated their brothels from 1970 and, until 1978,
had expended large amounts of money on improving their establishments.
____________________

1
Ordinance No. 1978-1 provides:
Section 1. Prostitution Defined; Prostitution Prohibited; Soliciting Prohibited: It shall be unlawful, as
an act of prostitution, for any person, within the county of Lincoln, State of Nevada, to engage in sexual
intercourse, for any money or thing of value, with a person to whom he or she is not married, or to solicit
a person, to whom he or she is not married to have sexual intercourse, for any money or thing of value,
with the person so soliciting.
amounts of money on improving their establishments. Appellants had ceased operation as
brothels as a result of the new ordinance. Under threat of arrest, the businesses are closed to
all persons except for the business of selling alcoholic beverages.
Subsequent to the closure, this action against the enforcement of the new ordinance was
commenced. In the trial court, as on appeal, appellants argued that the challenged ordinance
was preempted by NRS 244.345(1), (8);
2
NRS 269.175, and that, even assuming the validity
of the ordinance, it was unconstitutionally applied to them because of its failure to include a
time period for the amortization of appellants' investment.
1. Legality of the Ordinance.
Appellants contend that the State of Nevada has a comprehensive statutory scheme
regarding prostitution which preempts an allegedly conflicting ordinance of Lincoln County
proscribing prostitution. In the instant factual context, we cannot agree.
[Headnote 1]
A county licensing board may not grant a license for a house of prostitution in counties
with a population greater than 200,000. NRS 244.345(8). Lincoln County has a population
substantially less than 200,000. Additionally, [t]his provision, when read in conjunction with
NRS 244.345(1), manifests a statutory licensing scheme for houses of prostitution outside of
incorporated cities and towns."
____________________

2
NRS 244.345(1) and (8) provides in part:
1. Every person . . . wishing to engage in the business of conducting a billiard or pool hall, dancing
hall, bowling alley, theater, soft-drink establishment, gambling game or device permitted by law, or other
place of amusement, entertainment or recreation, outside of an incorporated city or incorporated town,
shall:
(a) Make application by petition to the license board . . . for a county license of the kind desired. . . .
(b) File the application with the required license fee with the county license collector, who shall
present the same to the license board at its next regular meeting. The board may refer the petition to the
sheriff, who shall report upon the same at the following regular meeting of the board. The board shall
then and there grant or refuse the license prayed for or enter such other order as is consistent with its
regulations. . . . In unincorporated towns and cities governed under the provisions of chapter 269 of NRS,
the license board shall have the exclusive power to license and regulate the businesses herein set forth.
. . . .
8. In any county having a population of 200,000 or more, . . . the license board shall not grant any
license to a petitioner for the purpose of operating a house of ill fame or repute or any other business
employing any female for the purpose of prostitution.
incorporated cities and towns. Nye County v. Plankinton, 94 Nev. 739, 741, 587 P.2d 421,
423 (1978). The legislature has specifically provided that the board of county commissioners
has the power to license, regulate or suppress brothels in unincorporated cities or towns. NRS
244.345(1)(b), NRS 269.175. Clearly, there is no legislative declaration that voters in a small
county, or a county board, may not enact an ordinance totally banning houses of prostitution.
Appellants assert that this court's holding in Plankinton was that state law now permits the
licensing of houses of prostitution and that the less populated counties are divested of the
power to prohibit them. But that holding merely confirmed the fact that houses of prostitution
were no longer nuisances per se in light of NRS 244.345(8) as the court had otherwise held in
Cunningham v. Washoe County, 66 Nev. 60, 203 P.2d 611 (1949).
This is not an action by a political subdivision to abate a nuisance. Cf. Nye County v.
Plankinton, 94 Nev. at 740, 587 P.2d at 422 (county board of commissioners unsuccessfully
sought to eliminate one brothel under a nuisance per se theory). Indeed, here the electorate of
the county, through the exercise of their prerogative to initiate county ordinances by initiative
and referendum, have voted to ban all brothels. That the electorate has this power is without
dispute.
3
With but one exception, the legislature appears to have reserved the total ban
question to the counties but demands licensing in counties where brothels are allowed.
____________________

3
Although not argued, we deem it appropriate to discuss briefly the initiative referendum procedure of this
state. The framers of the Nevada Constitution expressly reserved the power of the initiative and referendum to
the people of each county or municipality in the state.
The initiative and referendum powers provided for in this article are further reserved to the registered
voters of each county and each municipality as to all local, special and municipal legislation of every kind
in or for such county or municipality. In counties and municipalities initiative petitions may be instituted
by a number of registered voters equal to 15 percent or more of the voters who voted at the last preceding
general county or municipal election. Referendum petitions may be instituted by 10 percent or more of
such voters.
Nev. Const. art. 19, 4. Therefore, irrespective of the legislature, the people have reserved to themselves power
to deal directly with matters which might otherwise be left to the legislature. Hunter v. Erickson, 393 U.S. 385,
392 (1969). Of course, a property owner can challenge a zoning restriction if the measure is clearly arbitrary
and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. Euclid
v. Ambler Realty Co., 272 U.S. 365, 395 (1926). If the substantive result of a referendum is arbitrary and
capricious, bearing no relation to the police power, then the fact that the voters wish it so would not save the
restriction. Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 676 (1976). The situation presently before us
is not one of a zoning action denigrating the use or depreciating the value of land but, rather, is an initiative and
referendum which had as its objective the
question to the counties but demands licensing in counties where brothels are allowed.
Appellants contend that the suppression of brothels is the exclusive concern of state
government, except where the state expressly yields its power of suppression to local
government. But in the case cited for this proposition, Kelley v. Clark County, 61 Nev. 293,
127 P.2d 221 (1942), this court only stated that the suppression of nuisances was one of the
most important duties of government and cities cannot divest the state of all power to regulate
them. The court added that a city could enact ordinances not inconsistent with state laws. Id.
at 299, 127 P.2d at 223-24. The county in that case was responsible for enforcing state laws
concerning abatement of nuisances and had jurisdiction throughout the county.
[Headnote 2]
The legislative history of NRS 244.345(8) indicates that the regulation of brothels had
historically been a matter of local concern. We recognize that community standards and
mores may differ from one community to another and even from time to time in the same
community and that the county governing body, or the local electorate, as here, may see fit to
adopt, repeal or amend ordinances to meet prevailing or then contemporary conditions. Cf.
Miller v. California, 413 U.S. 15, 24, 30-37 (1973) (applying contemporary community
standards in area of obscenity). It is proper that the community most affected, either
beneficially or adversely, have control over the area sought to be regulated. It is not clear
from a reading of NRS 244.345 and 269.175 that the legislature intended to preempt the field
of brothel regulation. Because NRS 244.345(1)-(7) only refers to licensing procedures and
does not mandate that brothels be allowed in any county, and because we believe the
regulation of brothels is a matter of local concern, we find that our legislature did not intend
to deprive counties of the power to ban brothels completely.
[Headnote 3]
Appellants argue that the reference in the last paragraph of NRS 244.345(1) to NRS
269.175 (allowing county licensing boards exclusive control over unincorporated towns)
implicitly means that there is no power to prohibit brothels elsewhere. Certainly, we must
look to the whole purpose and scope of the legislative scheme" to determine whether the
legislature intended to occupy the entire field.
____________________
abolition of prostitution with the incidental consequences of dramatically reducing the profit-making power of
the brothel operations. We believe that the measure in question has substantial relation to the public health,
safety, morals and general welfare of Lincoln County and should be upheld. This substantially resolves the due
process issue, as well. See discussion of due process infra.
the legislative scheme to determine whether the legislature intended to occupy the entire
field. Lamb v. Mirin, 90 Nev. 329, 332-33, 526 P.2d 80, 82 (1974). See Ronnow v. City of
Las Vegas, 57 Nev. 332, 65 P.2d 133 (1937). Although the legislature may elect to preempt
the entire field, here there only appears to be a legislative intent to provide for the licensing of
businesses and to prohibit brothels in counties with a population exceeding 200,000. In the
instant case, there is no clear and unquestionable indication from legislative acts,
Cunningham v. Washoe County, 66 Nev. at 64-65, 203 P.2d at 613, that the legislation was
intended to occupy the entire field. See DeCanas v. Bica, 424 U.S. 351 (1976). Nor is there
any clear implication that by the outlawing of brothels in larger counties, the legislature
intended that they be necessarily lawful in other areas. Neither is the new ordinance in
conflict with general laws. Nev. Const. art. 4, 21. Here, even had the Lincoln County Board
of Commissioners by ordinance and without voter approval completely banned prostitution,
such ordinance would not have been inconsistent with the laws in the area. Kelley v. Clark
County, 61 Nev. at 299, 127 P.2d at 223-24.
2. Due Process.
Appellants next contend that the prohibition of their established businesses constitutes a
deprivation of property without due process of law. We disagree. The fifth amendment to the
United States Constitution provides that no person shall be deprived of property without due
process, nor shall private property be taken for public use, without just compensation. U.S.
Const. amend. V. Accord, Nev. Const. art. 1, 8. Thus, it must be determined whether due
process was afforded here and whether the ordinance constituted a taking for which
compensation must be rendered.
[Headnotes 4, 5]
Appellants do not explicate what process they believe is due except for a brief reference to
concepts of fairness and principles of equity and that there must at least be a reasonable
time allowed for the amortization of their investment. In order to satisfy due process, a statute
must be reasonably related to a legitimate governmental interest. Ottenheimer v. Real Estate
Division, 91 Nev. 338, 341-42, 535 P.2d 1284, 1285 (1975). In this instance, the ordinance is
directed to the protection of the public morals, safety and welfare of the county. The nature of
the businesses, coupled with the burden of policing and regulation upon the county, are alone
sufficient reasons for limiting the number of such businesses or, as here, the complete
proscription of the businesses. See Oueilhe v. Lovell, 93 Nev. 111, 560 P.2d 1348 (1977).
[Headnotes 6-8]
The next consideration is whether this ordinance constitutes a taking of property. A
regulation of business which actually prohibits such business does not constitute a taking
when, as here, such regulation promotes the health, safety, welfare or morals of the
community and thus is a valid exercise of police powers.
4
Penn Central Transportation Co.
v. New York City, 438 U.S. 104, 123-25 (1978); Goldblatt v. Hempstead, 369 U.S. 590,
592-93 (1962); Mugler v. Kansas, 123 U.S. 623, 668-69 (1887). As long as the police power
is validly exercised, even previously lawful businesses may be prohibited. Penn Central
Transportation Co. v. New York City, 438 U.S. at 126-27; Hadacheck v. Sebastian, 239 U.S.
394, 408-10 (1915); Stephens v. Bonding Association of Kentucky, 538 S.W.2d 580, 583
(Ky. 1976). See Oueilhe v. Lovell, 93 Nev. 111, 560 P.2d 1348 (1977). Here, the ordinance,
although having a significantly adverse economic impact upon appellants' ventures, does not
deprive appellants of all reasonable uses of their property.
There has never been a time in the history of [prostitution] in this state when the operator
or investor in such enterprises has been free from such occupational risks. Primm v. City of
Reno, 70 Nev. 7, 14, 252 P.2d 835, 838 (1953). In the instant case, appellants' expectation to
be free of governmental interference in their business operations was not reasonable in light
of the history and nature of the prostitution industry in Nevada. The ordinance enacted here
was not so arbitrary or capricious as to violate appellants' right to due process, see City of
Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976); Southern Alameda Spanish
Speaking Organization v. City of Union City, California, 424 F.2d 291 (9th Cir. 1970), and
does not amount to a taking or invasion for which compensation is due.
[Headnote 9]
Finally, appellants contend that if the ordinance is valid, there must at least be a period
allowed for them to amortize their investment. Appellants fail to cite any relevant authority
for this proposition and we have found none.
We affirm the order of the lower court.
I concur in the result.
____________________

4
For additional due process discussion, see note 3 supra.
____________
96 Nev. 113, 113 (1980) Globensky v. State
ROBERT J. GLOBENSKY, Appellant, v. THE STATE
No. 10751
January 24, 1980 605 P.2d 215
Appeal from conviction of second degree murder, Second Judicial District Court, Washoe
County; Peter I. Breen, Judge.
The Supreme Court, Manoukian, J., held that: (1) statute requiring corroboration of
accomplice testimony did not apply where evidence showed without serious contradiction
that defendant's wife, who was initially held on the same charge but who testified against
defendant, was not liable to prosecution for the identical offense charged; (2) in any event,
there was sufficient corroborative evidence to prove defendant's guilt; and (3) defendant was
not denied a fair trial because of use of a prosecution witness granted immunity.
Affirmed.
Donald E. Gladstone, Reno, and Paul Elcano, Reno, for Appellant.
Richard Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney,
and Maureen F. Sheppard, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Statute requiring that accomplice testimony be corroborated to support conviction in a criminal
proceeding did not apply where evidence showed without serious contradiction that defendant's wife, who
was initially held on the same charge but who testified against defendant, was not liable to prosecution for
the identical offense charged. NRS 175.291, subds. 1, 2.
2. District and Prosecuting Attorneys.
There was no abuse of discretion in performance of prosecutors' duties in criminal proceeding when they
decided not to charge defendant's wife, who claimed that she discovered the victim after the murder of
child occurred, and who testified against defendant after being granted immunity.
3. Criminal Law.
Even assuming that evidence in the record showing that defendant's wife was a corrupt participant in the
murder of small boy was sufficiently conflicting, it was for the jury to decide, under proper instructions,
whether wife was an accomplice, so as to require corroboration of her testimony against defendant.
4. Criminal Law.
Defendant in a criminal proceeding must request a jury instruction to determine whether a witness was an
accomplice, and appellate consideration of lack of such jury instruction is precluded unless instruction was
so necessary that failure to give it was patently prejudicial.
5. Criminal Law.
Requirement of corroboration of accomplice testimony in a criminal proceeding is a creature of statute
and is not of constitutional dimension. NRS 175.291, subds. 1, 2.
6. Criminal Law.
There was sufficient corroborative evidence to show defendant in criminal action was guilty of murder
even if defendant's wife, who testified against him at trial, was an accomplice. NRS 175.291, subds. 1, 2.
7. Criminal Law.
Defendant was not denied a fair trial when wife, who was initially charged with the same offense, testified
at defendant's criminal trial under grant of immunity, where wife made statements consistent with her
testimony before any promise of immunity was made and where wife was not placed under a compulsion to
testify, despite fact that she was held on a material witness bond. U.S.C.A.Const. Amend. 14.
8. Homicide.
The prosecution is given latitude in proving the method or methods used in committing a murder. NRS
173.075, subd. 2.
9. Criminal Law.
Challenge to the sufficiency of an indictment in a criminal case where defendant was accused of
second-degree murder was made too late for the Supreme Court to review whether the cause of death was
sufficiently pled or proven.
OPINION
Robert J. Globensky appeals from a conviction by jury for second degree murder. NRS
200.010, 200.030. He alleges the commission of several errors below, and we consider three
of the claims. They are: (1) it was error to admit uncorroborated accomplice testimony; (2)
his due process rights were violated as a result of the use of a prosecution witness granted
immunity; and (3) the cause of death was neither sufficiently pled nor proven. We affirm.
On April 13, 1977, the body of a young male, alleged to be that of Earl Raymond Sledge
II, was uncovered in the basement of a Reno home. The house had been previously occupied
by Robert and Margaret Globensky and their children. Earl Sledge was the natural son of
Mrs. Globensky and the step-son of Mr. Globensky. The death of the person whose body was
found apparently occurred during the time the couple occupied the house.
On July 27, 1977, the Washoe County Grand Jury indicted appellant for the murder of Earl
Raymond Sledge II. The indictment stated that appellant, on or between July 1 and July 11,
1976, killed Earl Sledge, a five and one-half year old boy, "by inflicting upon said child
physical beatings and mortal blows to the head and by further wilfully neglecting said
child after such injuries had been inflicted, from all of which the said child died within the
same period of time."
by inflicting upon said child physical beatings and mortal blows to the head and by further
wilfully neglecting said child after such injuries had been inflicted, from all of which the said
child died within the same period of time.
At trial, the Chief Deputy Coroner, Ralph Bailey, testified as to his examination of the
discovered body which was found in a shallow grave beneath the home. Bailey said that no
skull was found initially. The skull was discovered a short time later, a few feet away from
the rest of the body. Bailey further testified as to his identification of the body, made by
matching partially attached skin on the feet to birth certificate records.
Dr. Anton P. Sohn, a pathologist, testified that the cause of death was a fracture at the
basilar area of the skull. The fracture was apparently caused by a significant blow to the head,
causing a separation of the skull sutures. The pathologist testified that the fracture occurred
by hitting the head with a blunt object or by the head striking a stationary object. The doctor
further testified that in his opinion the injuries to the child were forceful and traumatic. Mrs.
Globensky also testified that Earl was in good health before she left the home the evening of
his death.
Mrs. Globensky testified at trial against her husband. She had been in custody as a material
witness from June 17, the date of her arrest, until the time of trial. Shortly after her arrest, she
had given a statement to the district attorney's office as to what had happened. She was
subsequently granted immunity previous to her testimony before the grand jury. Prior to being
granted immunity, Mrs. Globensky had written to her mother relaying the relevant facts to
which she ultimately testified before the grand jury and at trial. At trial, Mrs. Globensky
stated that she had gone to work one night in July of 1976. She stated that she was concerned
with appellant's drinking and described him as being in a bad mood on her departure. She
had fed and bathed the twin girls and Earl and had put them to bed. Mrs. Globensky left the
house around nine o'clock p.m. and returned the following morning at about six o'clock.
When she arrived home, she checked on the children, finding the girls were fine. She found
Earl lying in his bed. He appeared pale and blood was coming out of his nose and covered the
pillow. Mrs. Globensky stated that he was cold when she touched him. Immediately
thereafter, she woke appellant up by yanking him off the sofa. Appellant was told that Earl
was dead and appellant replied, Couldn't be. Appellant then went into the other room and
got a cigarette and a drink. Sometime later he went into the room where the boy was and
then told Mrs.
went into the room where the boy was and then told Mrs. Globensky to get the girls out of the
house. Appellant subsequently informed her that he had buried Earl in the basement. Shortly
before the couple moved to Seattle, which was a month after the incident, appellant told Mrs.
Globensky that he had gone down to the basement to see that everything was covered, and
that he put a rock on the head of the body.
Appellant admitted that he was at home with the children when his wife was working on
the night before she discovered the body. He said that he immediately went into the room and
did not have a drink nor a cigarette. Appellant stated he asked Mrs. Globensky what had
happened and said she responded, I couldn't have hit him that hard. Appellant also said that
they then decided that they would bury the boy in the basement.
1
This was done by appellant
that night after he came home from work. Appellant testified that shortly before they moved,
the couple had gone down to the basement and tried to remove the body to take it with them.
At that time, the skull had rolled off. The body was too decayed and was left buried. The skull
was buried in another location. Appellant admitted that he gave a false destination to the
trailer rental company and fabricated a story to explain the absence of Earl.
2

Others testified that appellant had recently told the boy that he would punch his lights
out, and that appellant was seen hitting the boy so hard it threw him back on the bed. Mrs.
Globensky also stated that appellant would punish the boy by forcing him to lay in a wet bed.
A psychiatrist, Dr. L. B. Gerow, testified that he found Mrs. Globensky to be a very
passive person, with an easily dominated personality. Dr. Gerow further testified as to her
concern for the health and welfare of her children and that in his opinion he would be
surprised if she would physically abuse her children. Other witnesses corroborated this expert
testimony.
1. Accomplice Testimony.
While Mrs. Globensky was being held on murder charges, she gave a statement of her
version of the facts to the district attorney. An agreement had been made with her attorney
that the statement would not be used against her. After the statement was given, with the
district attorney being satisfied respecting Mrs. Globensky's apparent lack of culpability
regarding the homicide, the charges against Mrs. Globensky were dismissed.
____________________

1
Appellant testified that the decision was made to bury the boy in the basement because appellant did not
want to snitch my own wife off to the police.

2
Appellant claimed that both he and Mrs. Globensky agreed to tell people that the boy had leukemia and
went to live with his grandmother.
were dismissed. Mrs. Globensky was then told she would be granted immunity if she would
testify before the grand jury and at trial. At trial, the prosecution introduced a letter Mrs.
Globensky had written to her mother as evidence of a prior consistent statement before the
immunity was granted.
Our statutes provide that a conviction may not be had on the testimony of an accomplice
unless it is corroborated by other evidence which, by itself, tends to connect the defendant
with the commission of the offense. NRS 175.291(1). An accomplice is defined as one who
is liable to prosecution, for the identical offense charged against the defendant on trial in the
cause in which the testimony of the accomplice is given. NRS 175.291(2).
[Headnotes 1, 2]
In the instant case, the prosecution decided not to charge Mrs. Globensky after she had
given her statement. Here, not only did Mrs. Globensky's statements initially given the
authorities precede any offer of concessions, but, indeed, the evidence shows without serious
contradiction that she was in fact not . . . one who is liable to prosecution, for the identical
offense charged. . . . It necessarily follows that NRS 175.291(1) has no application.
Prosecutors have wide discretion in the performance of their duties, see Cairns v. Sheriff, 89
Nev. 113, 508 P.2d 1015 (1973); Hollander v. Warden, 86 Nev. 369, 468 P.2d 990 (1970),
and we find no abuse of that discretion in this instance.
[Headnotes 3-5]
Even assuming the evidence in the record showing that Mrs. Globensky was a corrupt
participant, was sufficiently conflicting, it is for the jury to decide, under proper instructions,
whether a witness was an accomplice. Pineda v. Sheriff, 89 Nev. 426, 426-27, 514 P.2d 651,
651 (1973); Austin v. State, 87 Nev. 578, 587, 491 P.2d 724, 730 (1971); Tellis v. State, 84
Nev. 587, 589 n.1, 445 P.2d 938, 940 n.1 (1968); State v. Verganadis, 50 Nev. 1, 7, 248
P.900, 902 (1926). Even if an instruction had been appropriate, State v. Verganadis, 50 Nev.
at 7, 248 P.2d at 902, none was requested or given. It is incumbent upon the defendant to
request such an instruction. Gebert v. State, 85 Nev. 331, 333-34, 454 P.2d 897, 898-99
(1969). Appellate consideration is precluded unless the instruction was so necessary that the
failure to give it was patently prejudicial. Id. Moreover, the requirement of corroboration of
accomplice testimony is a creature of statute and is not of constitutional dimension. Id.
[Headnote 6]
Additionally, even without Mrs. Globensky's testimony there was sufficient inculpatory
evidence. Thus, had there been a proper issue as to whether Mrs. Globensky was an
accomplice, there was sufficient corroborative evidence showing appellant's responsibility.
Witnesses testified that appellant had recently unreasonably struck and threatened the victim.
Appellant himself testified that he was at home alone with the children on the night before the
body was discovered. He said Mrs. Globensky had just come home from work and when
appellant touched the boy, he was cold and stiff. Appellant also admitted to burying the
body. It was further shown that appellant may have resented the boy, particularly as a
financial liability. The facts which the jury could infer from the evidence were sufficient to
connect appellant with the crime. See LaPena v. State, 92 Nev. 1, 544 P.2d 1187 (1976);
Eckert v. State, 91 Nev. 183, 533 P.2d 468 (1975); Austin v. State, 87 Nev. 578, 491 P.2d
724 (1971).
2. Due Process.
[Headnote 7]
Appellant relies on Franklin v. State, 94 Nev. 220, 577 P.2d 860 (1978), in support of his
claim that he was denied a fair trial. That reliance is misplaced. In Franklin, the fruits of the
plea bargain were withheld from accomplice Swift until his testimony was received. Here,
Mrs. Globensky made a statement before any promise of immunity was made. After the
statement, the district attorney dropped the pending charges and then granted Mrs. Globensky
immunity for her testimony. Mrs. Globensky, unlike the accomplice in Franklin, was not
placed under a compulsion to testify in a particular manner. The state also introduced the
letter written by Mrs. Globensky prior to the grant of immunity which stated in essence the
facts to which she later testified.
Appellant next contends that the benefits of the bargain were withheld since Mrs.
Globensky was held on a material witness bond until trial. In effect, appellant argues, this
placed Mrs. Globensky under such pressure that, with her submissive personality, she was
forced to testify against her husband.
Appellant does not show that the immunity itself was withheld until after trial. Cf.
Franklin v. State, 94 Nev. at 224-25, 577 P.2d at 862-63 (benefits of bargain withheld until
after the witness had testified). Additionally, our statutes authorized courts to set bail for
material witnesses and allow for these witnesses to be taken into custody if bail is not posted.
NRS 178.494.
3. Cause of Death.
[Headnotes 8, 9]
The indictment alleged that appellant wilfully and unlawfully killed Earl Sledge by
inflicting upon said child physical beatings and mortal blows to the head. . . . There is no
allegation that the death was specifically caused by a blunt instrument although Dr. Sohn
testified this was what likely occurred. The prosecution is given latitude in proving the
method or methods used in committing a murder. See NRS 173.075(2). Cf. Simpson v.
District Court, 88 Nev. 654, 503 P.2d 1225 (1972) (indictment insufficient to afford
defendant notice of charges as no means of murder specified). Even assuming there is merit
to this claim, the challenge to the indictment is too late. Simpson v. District Court, 88 Nev. at
661, 503 P.2d at 1230.
The remaining assignments of error are without merit. We affirm the judgment of
conviction.
____________
96 Nev. 119, 119 (1980) Anaya v. State
BENITO LAWRENCE ANAYA, Appellant, v. THE
No. 10674
January 24, 1980 606 P.2d 156
Appeal from order revoking probation. Eighth Judicial District Court, Clark County;
The Supreme Court, Mowbray, C. J., held that: (1) district court erred in concluding that
probationer had waived his confrontation rights by waiving his preliminary hearing, and (2)
district court erred in admitting at his later revocation hearing multiple hearsay testimony of
his probation officer for purpose of establishing a substantive violation of terms of his
probation.
Manoukian and Thompson, JJ., dissented in part.
Morgan D. Harris, Public Defender, and George E. Franzen, Deputy Public Defender,
Richard Bryan, Attorney General, Carson City; Robert Miller, District Attorney, and Gary
D. Weinberger, Deputy District Attorney, Clark County, for Respondent.
96 Nev. 119, 120 (1980) Anaya v. State
1. Criminal Law; Pardon and Parole.
Parole and probation revocations are not criminal prosecutions, and full panoply of constitutional
protections afforded a criminal defendant does not apply.
Parole and probation revocation proceedings, which may result in a loss of liberty, triggers fundamental
protections of due process clause of Fourteenth Amendment which requires, at a minimum, that a
revocation be based upon verified facts so that exercise of discretion will be informed by an accurate
knowledge of the probationer's behavior. U.S.C.A.Const. Amend. 14.
A probationer has a due process right to confront and question witnesses giving adverse information at a
formal revocation hearing which is not foreclosed by negative inference of statute granting such right at the
preliminary inquiry. NRS 176.217, subd. 2(d); U.S.C.A.Const. Amend. 14.
Probationer, who waived preliminary probable cause hearing in revocation proceedings, did not thereby
waive his due process rights at later revocation hearing. NRS 176.216, 176.217, subd. 2(d), 176.221;
5. Criminal Law.
Process due a probationer in proceedings to revoke his probation is determined by balancing strength of
probationer's interest in confronting and cross-examining primary sources of the information being used
against him against difficulty of securing live testimony of actual witnesses to his alleged violation or to his
character while on probation; in reaching an appropriate determination, trial court must exercise its sound
discretion after carefully considering respective interests of probationer and the state, purpose for which the
evidence is offered, and nature and quality of that evidence. NRS 176.216, 176.217, subd. 2(d),
176.221.
6. Criminal Law.
In probation revocation proceedings, procedure due to a probationer must be flexible enough to allow
probationer to show mitigating circumstances and a prosecutor to show aggravating circumstances with
respect to a violation which has been previously established in order to aid the court in determining an
appropriate rehabilitative or punitive response to a proven violation, and thus a probationer is permitted to
introduce evidence that would not be admissible in an adversary criminal trial. NRS 176.216, 176.217,
subd. 2(d), 176.221.
Probationer's due process right to confront and question his accusers in probation revocation proceedings
was violated by district court in admitting multiple hearsay testimony of his probation officer for purpose
of establishing a substantive violation of terms of his probation. NRS 176.216, 176.217, subd. 2(d),
OPINION
Appellant Benito Anaya seeks review of the district court's order revoking his probation.
96 Nev. 119, 121 (1980) Anaya v. State
order revoking his probation. Anaya contends that the district court erred both in finding that
his waiver of his preliminary hearing constituted a waiver of his due process rights at the later
revocation hearing and in admitting the multiple hearsay testimony of his probation officer
for the purpose of establishing a substantive violation of the terms of his probation. We agree
and therefore reverse and remand to the district court for a new revocation hearing.
In July, 1977, Anaya was placed on probation for a term not to exceed five years. In
addition to other conditions of probation, he was ordered to enter and complete a drug
treatment program approved by the Department of Parole and Probation, to maintain a blood
alcohol level of below .10 and to submit to search by any probation officer on request.
Appellant was then placed by the Treatment Alternative to Street Crime (TASC) program in
an approved Veterans Administration drug rehabilitation center in Brentwood, California.
Appellant later requested permission of his counselor to return to Las Vegas to seek another
program. He returned to Las Vegas and reported to TASC, which placed him in a
rehabilitation program at Fitzsimmons House in Las Vegas. He reported to the probation
department, registered as an ex-felon, and reported to probation officials that he had obtained
a job. On November 7, 1977, appellant was arrested by North Las Vegas police for driving
under the influence, a violation of NRS 484.379. The State moved to revoke Anaya's
probation, alleging violations of his probation with respect to intoxicants, failure to cooperate
with probation authorities, failure to conform his conduct to the law, and failure to complete a
drug rehabilitation program.
A probation revocation hearing was held on January 24, 1978. The State's principal
witness was appellant's probation officer, David Hill, who testified that appellant had waived
his right to a preliminary inquiry, under NRS 176.216. He further testified that, according to
an arrest report, appellant's blood alcohol level at the time of his arrest on November 7 was
.220. The arrest report referred to by Hill was not entered into evidence; nor were the
arresting officers called to testify by the State, although they had been present on previous
occasions when the revocation hearing had been continued. In response to Anaya's
constitutional and statutory objections to Hill's testimony, the district court ruled that the
confrontation rights granted by NRS 176.217(2)(d) and by the United States Constitution had
been waived by appellant when the preliminary inquiry was waived. At the close of the
hearing, appellant's probation was revoked, and this appeal was taken.
96 Nev. 119, 122 (1980) Anaya v. State
[Headnotes 1, 2]
Parole and probation revocations are not criminal prosecutions; the full panoply of
constitutional protections afforded a criminal defendant does not apply. See Gagnon v.
Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972). Revocation
proceedings, however, may very well result in a loss of liberty, thereby triggering the flexible
but fundamental protections of the due process clause of the Fourteenth Amendment. Id. Due
process requires, at a minimum, that a revocation be based upon verified facts so that the
exercise of discretion will be informed by an accurate knowledge of the [probationer's]
behavior. Morrissey, 408 U.S. at 484.
In order to insure that this constitutional standard is achieved and to offer guidance to the
states in structuring their respective revocation procedures, the United States Supreme Court,
in Morrissey and Gagnon, outlined the minimal procedures necessary to revoke probation or
parole. A preliminary inquiry, to determine whether there is probable cause to believe that the
probationer violated the conditions of his or her probation, is required, at which the
probationer must be given notice of the alleged probation violations, an opportunity to appear
and speak on his own behalf and to bring in relevant information, an opportunity to question
persons giving adverse information, and written findings by the hearing officer, who must be
someone not directly involved in the case. Morrissey, 408 U.S. at 485-87. If probable cause
is found, the probationer is entitled to a formal revocation hearing, less summary than the
preliminary inquiry, at which the same rights attach, Gagnon, 411 U.S. at 786, before a
neutral and detached hearing body, Morrissey, 408 U.S. at 489. The function of the final
hearing is to determine not only whether the alleged violations actually occurred, but whether
the facts as determined warrant revocation. Id. at 480, 488; see Gagnon, 411 U.S. at 790.
[Headnotes 3, 4]
These constitutional standards have been codified, in part, in Nevada. See NRS
176.216-.218. NRS 176.217(2)(d) provides that at the preliminary inquiry a probationer shall
be allowed to [c]onfront and question any person who has given adverse information on
which a revocation of his probation may be based, unless in the opinion of the inquiring
officer the person would be subjected to a risk of harm by disclosure of his identity. The
statute is silent, however, as to the standards applicable to the final revocation hearing, which
is held before a district judge. NRS 176.221. As noted above, Morrissey and Gagnon
mandate that the due process protections available at the preliminary hearing apply to
the less summary final revocation hearing with equal, if not greater, force.
96 Nev. 119, 123 (1980) Anaya v. State
Gagnon mandate that the due process protections available at the preliminary hearing apply to
the less summary final revocation hearing with equal, if not greater, force. We therefore hold
that a probationer has a due process right to confront and question witnesses giving adverse
information at the formal revocation hearing which is not foreclosed by negative inference
from NRS 176.217 which grants this right at the preliminary inquiry. Cf. Milchem, Inc. v.
District Court, 84 Nev. 541, 549, 445 P.2d 148, 153 (1968) (this Court will construe statutes
to avoid unconstitutionality whenever possible). In the instant case, the district court
determined that, by waiving his right to a preliminary inquiry, appellant had also waived his
due process confrontation rights at the final hearing. Since the record does not demonstrate
that appellant knowingly and intelligently waived a known right, the district court erred in
concluding otherwise. See Johnson v. Zerbst, 304 U.S. 458 (1938).
[Headnote 5]
Having found that appellant had a due process right to confront and question witnesses
giving information against him, we must determine whether the use of the probation officer's
multiple hearsay testimony for the purpose of establishing a substantive violation of probation
conditions violated that right. The process due a probationer is determined by balancing the
strength of the probationer's interest in confronting and cross-examining the primary sources
of the information being used against him against the very practical difficulty of securing the
live testimony of actual witnesses to his alleged violation or to his character while on
probation. An important factor in this balancing is the purpose for which the information is
offered. If evidence is presented, as in the instant case, to establish a substantive violation of a
probation condition, the probationer's interest in questioning the actual source of the
information and thus testing its reliability, is far stronger than if the information relates
merely to his general character while on probation. Similarly, the form of the information is
important in striking the due process balance: not every use, of course, of hearsay evidence
which is reliable runs afoul of the due process clause. See, e.g., United States v. Pattman, 535
F.2d 1062 (8th Cir. 1976); United States v. Miller, 514 F.2d 41 (9th Cir. 1975).
[Headnote 6]
Thus, if an arrest report were introduced, we see no difficulty in considering it as prima
facie evidence of the facts it contains. When the accuracy of the facts alleged is challenged by
the probationer, however, the presumptive reliability of the report when used to establish
facts constituting a probation violation becomes more questionable.1 On the other hand,
in the more discretionary phase of a revocation proceeding, determining whether
revocation is appropriate, a probationer is permitted to introduce evidence, such as
"letters, affidavits, and other material that would not be admissible in an adversary
criminal trial."
96 Nev. 119, 124 (1980) Anaya v. State
by the probationer, however, the presumptive reliability of the report when used to establish
facts constituting a probation violation becomes more questionable.
1
On the other hand, in
the more discretionary phase of a revocation proceeding, determining whether revocation is
appropriate, a probationer is permitted to introduce evidence, such as letters, affidavits, and
other material that would not be admissible in an adversary criminal trial. Morrissey, 408
U.S. at 489. We consider this to mean that the procedure due must be flexible enough to
allow the probationer to show mitigating circumstances and the prosecutor to show
aggravating circumstances with respect to a violation which has been previously established
in order to aid the court in determining an appropriate rehabilitative or punitive response to a
proven violation. If the probationer wishes to introduce hearsay evidence of his good
character while on probation, for example, no purpose would be served by declining to admit
it.
[Headnote 7]
In applying these standards to the instant case, we note that the challenged testimony was
offered into evidence to establish appellant's substantive violation of the conditions of his
probation, thus directly implicating appellant's constitutionally protected liberty interest. The
probation officer testified extensively as to the circumstances of appellant's arrest for drunk
driving: the probation officer was allowed to testify that appellant's blood alcohol level was
.220 at the time of the arrest and as to other details of the arrest. The probation officer's
testimony, summarizing the contents of an arrest report, was multiple hearsay: predicated
purely upon a recital of what the report said that the arresting officers had observed. Despite
the problems of reliability raised by this testimony, the arrest report was not introduced into
evidence; the arresting officers did not testify at the hearing; nor does the record contain
any explanation for their absence.
____________________

1
In Miller, cited above, unauthenticated photostatic copies of court records of a probationer's subsequent
convictions were admitted at a revocation hearing. The court noted that the accuracy and reliability of the copies
were not challenged, but, while holding that no due process violation had occurred, the court disapproved the
prosecution's reliance upon such secondary evidence when more reliable evidence, the testimony of the arresting
officers, was readily available. 514 F.2d at 43. We observe that on the issue of whether a probation violation has
occurred, a court record of a conviction is presumptively far more reliable than an arrest report, which does not
involve an adjudication of guilt beyond a reasonable doubt. Similarly, in Pattman, cited above, a probation
officer read from an arrest report which named and described the probationer. The probation violation for which
revocation was sought, however, was failure to report an arrest, not for the substantive offense charged in the
report; and the court considered it for the purpose of showing an arrest. With respect to the issue of whether an
arrest had occurred, the report was a highly reliable piece of evidence; thus no due process violation was found.
96 Nev. 119, 125 (1980) Anaya v. State
not introduced into evidence; the arresting officers did not testify at the hearing; nor does the
record contain any explanation for their absence. Moreover, there is no indication in the
record that either the probation officer or the probationer even had a copy of the report.
Neither the district court, the probationer, nor this Court on review could have any means of
testing the accuracy or reliability of the facts recited in the report itself or of the probation
officer's recollection of them. Under these circumstances, where the probationer's liberty
interest is substantial and the State's interest in admitting such multiple hearsay testimony
rather than more reliable evidence is slight,
2
we must conclude that the probationer's due
process right to confront and question his accusers was violated.
In conclusion, we hold that the admissibility of evidence at a probation revocation hearing
is to be governed by a due process balancing standard. In reaching an appropriate
determination, the trial court must exercise its sound discretion after carefully considering the
respective interests of the probationer and the State, the purpose for which the evidence is
offered, and the nature and quality of that evidence. Under the standard announced today,
following Morrissey, Gagnon, and NRS 176.217(2), we conclude that appellant was denied
his due process right to a fair revocation hearing. Accordingly, we reverse the order of the
district court revoking appellant's probation and remand the cause for a new revocation
hearing.
Gunderson and Batjer, JJ., concur.
Manoukian, J., with whom Thompson, J., joins, concurring in part and dissenting in part:
In the instant case, Benito Anaya appeals from revocation of his probation contending that
the admission of hearsay evidence violated his right to confrontation and that the trial court
abused its discretion in revoking his probation. Although I concur in that part of the majority
opinion which holds that the trial court erred when it ruled that Anaya waived his sixth
amendment confrontation right, I disagree that the error is reversible within the context
of this case.
____________________

2
Problems posed by the necessity of securing direct testimony from distant areas may be alleviated by the
holding of the preliminary inquiry as closely as possible in time and place to the alleged violation. Morrissey,
408 U.S. at 485. When the probationer's right to cross-examine those providing adverse information is
scrupulously observed at this inquiry and an appropriate record is made, we perceive little difficulty in using that
record at the formal revocation hearing, when securing the live testimony of witnesses to the violation would be
burdensome. In any case, the practicality of obtaining this most reliable primary evidence is one of the factors to
be taken into account by the district court when it strikes the due process balance on the propriety of admitting
offered evidence of a secondary character.
96 Nev. 119, 126 (1980) Anaya v. State
amendment confrontation right, I disagree that the error is reversible within the context of this
case.
The effect of the majority opinion is two-fold. First, irrespective of the existence of good
cause, as here, for a probation revocation, the State of Nevada will be compelled in any
number of cases to expend great cost and energy to produce witnesses from foreign
jurisdictions for confrontation by the probationer. Second, the long-standing practice of our
trial courts in effectively conducting probation revocation proceedings within the parameters
of justice and fair play will be hampered by heretofore unsupportable defense objections,
petitions to this court for pre-revocation hearing review, motions to preclude testimony or
introduction of physical or documentary evidence, and the like. The limits the majority places
on the prosecution and trial bench today constitute an undue interference with probationary
processes. By doing so, this court perverts our previous constitutional guarantees and
frustrates the vital interests of society in preserving the legitimate and proper function of fair
and purposeful probationary procedures.
There are several significant facts to this case which my brethren fail to point out. After
appellant was placed in the California drug rehabilitation center as a condition of his
probation, he left the center and returned to Las Vegas to seek another program. He said he
was dissatisfied with the rigorous conditions existent at the first facility. Appellant was then
placed by TASC at Fitzsimmons House. Mr. David Hill was appellant's original supervising
probation officer. Appellant was to report to Hill and was so advised by TASC and
Fitzsimmons House. Appellant failed to report to Hill until after November 7, 1977. On that
day he was arrested by North Las Vegas police for driving under the influence. Hill testified
that appellant's blood alcohol content was .220 at the time of arrest. Hill had obtained this
information from the arrest report.
At the revocation hearing, Hill testified as to the circumstances surrounding appellant's
departure from the California drug program and the circumstances surrounding his arrest for
driving under the influence. Appellant unsuccessfully objected to this testimony on the basis
of hearsay and a violation of his right to confront witnesses.
1
The second witness, a
representative from the TASC agency, was called by appellant. He testified that appellant did
not complete any drug program.
____________________

1
At this point, the trial judge made his ruling that appellant's waiver of his preliminary hearing constituted a
waiver of his due process rights at the subsequent revocation hearing. I agree with the majority's holding that this
constituted error, although I do not agree that it necessitates reversal. The right to
96 Nev. 119, 127 (1980) Anaya v. State
Appellant testified that he had left the program in California, hoping to enroll in a different
program in Las Vegas. He also stated that he did not contact Hill because he thought someone
else was his probation officer. At the conclusion of the hearing, appellant's probation was
revoked.
As the majority recognizes, there is no express statutory provision for the revocation
hearing. Not unlike the majority, I do not believe that the legislature would confer this
unqualified right upon a probationer at the preliminary inquiry and deny it at the more formal
and plenary revocation hearing. Statutes will be construed as to avoid unreasonable results.
Western Pacific R.R. v. State, 69 Nev. 66, 69, 241 P.2d 846, 847 (1952); Penrose v.
Whitacre, 61 Nev. 440, 455, 132 P.2d 609, 616 (1942).
From a constitutional standpoint, and in a right to counsel context, the United States
Supreme Court has held that probationers and parolees are entitled to a preliminary and a
final revocation hearing to satisfy due process. Gagnon v. Scarpelli, 411 U.S. 778, 782
(1973), citing Morrissey v. Brewer, 408 U.S. 471 (1972). Although these cases hold that the
right to confront and cross-examine adverse witnesses is applicable to such hearings, the
Supreme Court did state that these hearings are not part of a criminal prosecution and the
full panoply of rights in such instances does not apply. Morrissey v. Brewer, 408 U.S. at
480; United States v. Strada, 503 F.2d 1081, 1085 (8th Cir. 1974). In Gagnon and Morrissey,
the Supreme Court emphasized that such proceedings may be conducted under less stringent
evidentiary rules, stating in Morrissey, [t]he process should be flexible enough to consider
evidence including letters, affidavits, and other material that would not be admissible in an
adversary criminal trial. Morrissey v. Brewer, 408 U.S. at 489; accord, Gagnon v. Scarpelli,
411 U.S. at 782-83 n.5. The question here is whether the curtailment of the right to
confrontation in the instant case transcended reasonable limits in view of a probationer's
conditional right to confront and cross-examine adverse witnesses.
____________________
confront witnesses does apply at the less summary judicial hearing and not just at the preliminary inquiry. United
Sates v. Pattman, 535 F.2d 1062, 1063-64 (8th Cir. 1976), citing Gagnon v. Scarpelli, 411 U.S. 778 (1973). This
is because the inquiry is conducted by a non-judicial officer while, at the hearing, the court must make rulings on
admissibility and weigh the evidence to determine whether the revocation is warranted. Additionally, because of
the time lapse between the arrest and the eventual probable cause determination by the non-judicial officer,
arrestees may be induced to waive the preliminary inquiry from the standpoint of personal expediency. To hold
that a waiver of a preliminary inquiry operates as a total deprivation of a right to confrontation would greatly
impair the main objective of the adversary processspecifically, society's interest in having probation revoked
based only upon reliable information and upon proper evaluation of the need to revoke probation in light of
probation conditions. Morrissey v. Brewer, 408 U.S. 471, 488 (1972).
96 Nev. 119, 128 (1980) Anaya v. State
view of a probationer's conditional right to confront and cross-examine adverse witnesses.
See Gagnon v. Scarpelli, 411 U.S. at 786. In the context of this case, I disagree with the
majority's holding that it did.
I believe that in a probation revocation proceeding our courts, as has historically been the
case, can generally hear and consider hearsay evidence if it appears to be reasonably reliable;
the probationer is permitted as here, to cross-examine thoroughly the witness presenting the
hearsay evidence; and, the probationer, as here, is allowed to present evidence to refute the
hearsay evidence. Generally, courts have allowed the use of hearsay evidence and have found
no violation of the confrontation right when there is an indication that the hearsay is reliable.
United States v. Pattman, 535 F.2d 1062, 1064 (8th Cir. 1976) (probation officer read from a
police report which was accurate on its face as to probationer's name and description); United
States v. Miller, 514 F.2d 41, 42-43 (9th Cir. 1975) (probation officer's testimony appeared
reliable and was not refuted). In Arizona, probation can be revoked exclusively on hearsay
testimony, as long as that hearsay is reliable. State v. Valenzuela, 567 P.2d 1190, 1192 (Ariz.
1977); Ariz. Rev. Stats., Rules of Crim. Pro. 27.7(b)(3) (West Supp. 1978-79). See State v.
Brown, 532 P.2d 167, 172-73 (Ariz.App. 1975) (probation officer's testimony from hospital
report as to probationer's urine content was found reliable). A Washington court has found no
violation of due process when alleged hearsay testimony and exhibits were not exclusively
relied upon to establish the central issue. State v. Smith, 539 P.2d 101, 103 (Wash.App.
1975).
Moreover, NRS 51.075(1) provides, A statement is not excluded by the hearsay rule if its
nature and the special circumstances under which it was made offer assurances of accuracy
not likely to be enhanced by calling the declarant as a witness, even though he is available.
Finally, our evidence code exempts revocation proceedings from its general application. NRS
47.020(3)(c). I find that the testimony in question carried with it the indicia of reliability
contemplated by statute.
The clear trend is that hearsay should be reliable or accompanied by other evidence. This
standard was met in the present case. Here, the probation officer testified that appellant had
been arrested for driving under the influence and that appellant had, without the required
permission, absented himself from the Brentwood program. From the record, I observe that
appellant was not unduly limited in the exercise of his rights. Appellant did cross-examine the
officer as to his knowledge of the arrest and breathalizer test as well as his indirect
knowledge of the circumstances under which appellant left Brentwood.
96 Nev. 119, 129 (1980) Anaya v. State
the arrest and breathalizer test as well as his indirect knowledge of the circumstances under
which appellant left Brentwood. Appellant did not, however, actually refute the fact that he
was arrested or what the results of the breathalizer were. Cf. McNallen v. State, 91 Nev. 592,
540 P.2d 121 (1975) (appellant did not contest fact that he was arrested for possession of
controlled substance); State v. Smith, 539 P.2d 101 (Wash.App. 1975) (appellant did not
materially deny hearsay allegations). Appellant was also allowed to call his own witnesses. I
would hold that the court did not err in admitting the hearsay evidence.
Appellant has also contended that the only evidence the lower court heard and considered
in revoking appellant's probation was hearsay and that this was erroneous. I believe this
contention is also without merit. We have held that in order to revoke probation the judge
must be reasonably satisfied by the evidence and facts that the conduct of the probationer
has not been as good as required by the conditions of probation. Lewis v. State, 90 Nev. 436,
438, 529 P.2d 796, 797 (1974). See also United States v. D'Amato, 429 F.2d 1284 (3d Cir.
1970).
I note that appellant was also accused of failing to cooperate with his probation officer. In
this connection, nonhearsay evidence presented below was by itself sufficient to justify
revocation. Hill testified that he was the original probation officer assigned to appellant and
that appellant failed to report to him. Additionally, a witness for the defense testified on
cross-examination that appellant failed to complete the program at Brentwood. Appellant
himself testified that he left Brentwood against the recommendation of its administrators.
And, he did not challenge the accuracy of the information that he had been intoxicated at the
time of his arrest and he offered no evidence to refute the material allegations of the motion
for revocation. I believe that the unrefuted testimony elicited at the hearing was sufficiently
reliable and adequate to satisfy the trial court that appellant had violated the terms of his
probation. Appellant suggested no reasonable excuse for the violations or a convincing reason
as to why revocation was inappropriate.
2
It is settled that in revocation proceedings, the
trial court's exercise of its broad discretionary power will not be disturbed absent a clear
showing of abuse.
____________________

2
As acknowledged by the majority, I feel constrained to mention that although a parolee or probationer is not
clothed with a full range of constitutional rights, as indicated by Gagnon and Morrissey, more process may be
due in certain revocation proceedings. Although I believe the evidence proffered here was admissible, it is more
consonent with responsible procedural and evidentiary practice for the state to present live witnesses and
authenticated records or reports when practicable to do so. In the instant case, the record shows that arresting
officers could have been produced at the hearing. Had the state more readily accepted its evidentiary
responsibilities, judicial economy
96 Nev. 119, 130 (1980) Anaya v. State
settled that in revocation proceedings, the trial court's exercise of its broad discretionary
power will not be disturbed absent a clear showing of abuse. Lewis v. State, 90 Nev. at 438,
529 P.2d at 797.
Here, Anaya was afforded the minimal due process required by Gagnon v. Scarpelli, 411
U.S. 778 (1973). I would hold that the lower court did not abuse its discretion in revoking
appellant's probation.
____________________
would doubtlessly have been served by the avoidance of this appeal. United States v. Miller, 514 F.2d 41, 43
(9th Cir. 1975). I caution, as has the majority generally, that when the main substantive charge is proffered
through hearsay and is otherwise unsupported and materially denied, due process may well support the claimed
right of confrontation. State v. Riddell, 449 P.2d 97, 99 (Wash. 1968).
____________
96 Nev. 130, 130 (1980) Paul v. Pool
JOE PAUL, Appellant, v. VALTA POOL, Respondent.
No. 9364
January 28, 1980 605 P.2d 635
Appeal from order denying relief from default, Eighth Judicial District Court, Clark
County; Michael J. Wendell, Judge.
Defendant in automobile collision case appealed from order of the district court which
denied his motion to set aside a default judgment rendered against him. The Supreme Court,
Batjer, J., held that: (1) answer of co-defendant inured to benefit of defaulting defendant
where there existed a common defense as to both of them; thus, trial court erred in entering
default judgment against nonappearing defendant, and (2) trial court improperly certified the
judgment as final.
Remanded with instruction.
Beckley, Singleton, DeLanoy & Jemison, Chartered, Las Vegas; and Dickerson, Miles &
Pico, Las Vegas, for Appellant.
Lionel Sawyer & Collins, Las Vegas; and Jerrold J. Courtney, Las Vegas, for Respondent.
1. Judgment; Pleading.
Answer of co-defendant in automobile case inured to benefit of nonappearing defendant where there
existed a common defense as to both of them; thus, trial court erred in entering default judgment against
nonappearing defendant.
96 Nev. 130, 131 (1980) Paul v. Pool
When a court improperly certifies an otherwise interlocutory order as final, certificate of finality is
without operative effect. NRS 483.300.
3. Judgment.
A judgment does not become final until litigation is fully terminated.
OPINION
By the Court, Batjer, J.:
On August 26, 1975, respondent, Valta Pool, was injured when a car that she was driving
collided with a car driven by one Joel Bledsoe. On February 12, 1976, respondent initiated an
action for damages against Bledsoe and against Bledsoe's ex-stepfather, the appellant, Joe
Paul. Respondent's claim against Bledsoe was predicated on his negligent operation of his
automobile. Respondent alleged that appellant was liable for her damages because Bledsoe
was a minor at the time of the accident and appellant had signed Bledsoe's license
application, causing Bledsoe's negligence to be imputed to appellant. NRS 483.300.
1

Bledsoe filed an answer on March 8, 1976, and an amended answer on March 19, 1976. In
the amended answer Bledsoe denied his negligence and set forth certain affirmative defenses.
Appellant filed no answer. A default was entered against him by the clerk on July 2, 1976.
In a hearing before the district court on July 30, 1976, respondent introduced evidence to
establish her claim. In its findings of fact and conclusions of law, the court determined that
Bledsoe had negligently caused the accident and that Bledsoe's negligence was imputed to
appellant through NRS 483.300(2). A default judgment was entered against appellant in the
sum of $5,000,000.
____________________

1
NRS 483.300:
1. The application of any person under the age of 18 years for an instruction permit or driver's
license shall be signed and verified, before a person authorized to administer oaths, by either or both the
father or mother of the applicant, if either or both are living and have custody of him, or in the event
neither parent is living, then by the person or guardian having such custody, or by an employer of such
minor, or in the event there is no guardian or employer, then by any responsible person who is willing to
assume the obligation imposed under NRS 483.010 to 483.630, inclusive, upon a person signing the
application of a minor.
2. Any negligence or wilful misconduct of a minor under the age of 18 years when driving a motor
vehicle upon a highway shall be imputed to the person who has signed the application of such minor for a
permit or license, which person shall be jointly and severally liable with such minor for any damages
caused by such negligence or wilful misconduct.
96 Nev. 130, 132 (1980) Paul v. Pool
entered against appellant in the sum of $5,000,000. Furthermore, the district court
determined, pursuant to NRCP 54(b), that there was no just reason for delay in the entry of
the judgment.
2

On October 21, 1976, appellant filed a motion seeking to set aside the default and to be
permitted to answer the complaint. On November 9, 1976, before it had ruled on that motion,
the district court, pursuant to a stipulation between Bledsoe and respondent, dismissed
Bledsoe without prejudice from the action.
3
The district court then denied the appellant's
motion on November 19, 1976.
This appeal is taken from the order denying appellant's motion to set aside the default
judgment. Respondent contends that if appellant wants relief from the default he is limited
only to remedies provided in NRCP 60 because the default became a final judgment when the
court certified it pursuant to NRCP 54(b). Appellant counters this argument by asserting that
the default judgment was not final because the certification pursuant to NRCP 54(b) was
erroneously granted.
[Headnote 1]
The answer of a co-defendant inures to the benefit of a defaulting defendant where there
exists, as here, a common defense as to both of them. Rogers v. Watkins, 525 S.W.2d 665
(Ark. 1975);
4
Beddow's Administrator v. Barbourville Water, Ice & Light Co., 66 S.W.2d
821 (Ky. 1934); Bronn v. Soules, 13 P.2d 623 (Ore. 1932); School Board v. Kemmerer, 44
A.2d 854 (Pa.Super.Ct. 1945); Cf. State ex rel. Everett v. Sanders, 544 P.2d 1043 {Ore.
____________________

2
NRCP 54(b):
When more than one claim for relief is presented in an action, whether as a claim, counterclaim,
cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of
a final judgment as to one or more but fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon an express direction for the entry of
judgment. In the absence of such determination and direction, any order or other form of decision,
however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than
all the parties shall not terminate the action as to any of the claims or parties, and the order or other form
of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and
the rights and liabilities of all the parties.

3
Although the Hon. Michael J. Wendell had presided over the proceedings in this case, it was the Hon. James
A. Brennan who ordered the dismissal.

4
Arkansas has a statute which is very similar to NRS 483.300; Ark. Stat. Ann. 75-315 (Repl. 1957). In
Rogers, supra, the Supreme Court of Arkansas held that the district court erred in granting the appellee's motion
to strike the appellant's late answer because the common defenses interposed by the daughter in her timely
answer inured to the benefit of the appellant parent alleged to be liable by imputation for the daughter's
negligence.
96 Nev. 130, 133 (1980) Paul v. Pool
P.2d 1043 (Ore. 1976); In re Forsyth's Estate, 45 Nev. 385, 204 P. 887 (1922).
5

Here, respondent chose to join appellant and Bledsoe in the same action. Bledsoe's
amended answer denied negligence and pleaded the affirmative defenses of contributory
negligence and assumption of the risk. Since appellant is liable to respondent only if
Bledsoe's negligence can be proved, the defenses interposed by Bledsoe's answer inure to the
benefit of appellant to the same degree as if appellant had personally filed an answer. It was
therefore error for the district court to enter a default against appellant, hear ex parte evidence
and enter judgment.
[Headnotes 2, 3]
When a court improperly certifies an otherwise interlocutory order as final, pursuant to
Rule 54(b), the certificate of finality is without operative effect. Acha v. Beame, 570 F.2d 57
(2nd Cir. 1978); Page v. Preisser, 585 F.2d 336 (8th Cir. 1978). A judgment does not become
a final one until the litigation is fully terminated. Acha v. Beame, supra; Page v. Preisser,
supra.
The entry of the default judgment and everything that followed affecting appellant was
erroneous. Therefore, the matter is remanded to the district court with instruction to enter an
order setting aside the default judgment and the NRCP 54(b) certification and to pursue
whatever proceedings may be necessary to conclude the matter.
Mowbray, C. J., and Gunderson and Manoukian, JJ., concur.
Thompson, J., concurring:
Although I agree with the result reached by the majority, as to the Rule 54(b) certification,
I cannot agree that error occurred when the clerk entered Paul's default for failure to appear,
nor do I believe that the court thereafter was powerless to hear evidence and enter default
judgment.
Paul, a defendant subject to derivative liability for the negligence of his codefendant,
Bledsoe, must respond when served with process or face default procedures if the plaintiff
elects to pursue them. Consequently, I would deem the default and default judgment to have
been properly entered.
The crucial question is whether the default judgment was a final judgment for the purposes
of certification under NRCP 54(b). Since the answer of the codefendant, Bledsoe, inures to
the benefit of the defaulting defendant, Paul, the court retained the power to revise the
default judgment should the pending defense of Bledsoe ultimately prove to be
successful. Cf. Rogers v. Watkins, 525 S.W.2d 665 {Ark.
____________________

5
Also see Utley v. Arioso, 86 Nev. 116, 464 P.2d 778 (1970), and Peterson v. City of Reno, 84 Nev. 60, 436
P.2d 417 (1968).
96 Nev. 130, 134 (1980) Paul v. Pool
retained the power to revise the default judgment should the pending defense of Bledsoe
ultimately prove to be successful. Cf. Rogers v. Watkins, 525 S.W.2d 665 (Ark. 1975).
Hence, the court lacked power to certify the default judgment as final. When a court
improperly certifies an interlocutory order as final, such certification is without operative
effect. Mid-Century Ins. Co. v. Cherubini, 95 Nev. 293, 593 P.2d 1068 (1979); Acha v.
Beame, 570 F.2d 57 (2nd Cir. 1978).
____________
96 Nev. 134, 134 (1980) City of Sparks v. Best
THE CITY OF SPARKS, NEVADA, Petitioner, v. RALPH BEST, Director
of Finance of the CITY OF SPARKS, NEVADA, Respondent.
No. 12193
January 31, 1980 605 P.2d 638
Original petition for a writ of mandamus.
City brought original proceeding in mandamus after director of finance for city refused to
conform with provision of city ordinance requiring him to create two separate funds
necessary to implement financing of redevelopment plan on ground that tax-incurred
provisions of Community Redevelopment Law were unconstitutional. The Supreme Court,
Thompson, J., held that Community Redevelopment Law was constitutional exercise of state
power by legislature.
Writ granted.
Gunderson, J., dissented.
Raggio, Walker, Wooster, Clontz, and Lindell, and Russell W. McDonald, Reno, for
Petitioner.
Steven P. Elliott, City Attorney, Sparks, for Respondent.
1. Constitutional Law; Municipal Corporations.
Neither the Community Redevelopment Law nor proposed redevelopment plan violated Fourteenth
Amendment to United States Constitution or applicable Article of Nevada Constitution. NRS 279.410;
U.S.C.A.Const. Amend. 14; Const. art. 1, 8.
2. Municipal Corporations.
Legislature has power under the Constitution to delegate taxing authority to incorporated cities. Const.
art. 8, 8.
3. Constitutional Law; Municipal Corporations.
Community Redevelopment Law does not constitute unlawful delegation of legislative power. NRS
279.382-279.680, 279.674-279.680; Const. art. 8, 8.
Fact that community redevelopment agency was created by Community Redevelopment Law did not
amount to unconstitutional delegation of legislative powers, since uncontrolled discretionary power was not
invested in administrative agency. NRS 279.382-279.680, 279.674-279.680; Const. art. 8, 8.
OPINION
This original proceeding in mandamus involves the constitutionality of the tax increment
provisions (NRS 279.674-279.680) of the Community Redevelopment Law (NRS
279.382-279.680) under the United States and Nevada Constitutions. The City of Sparks
(petitioner), after establishing a redevelopment area in the City of Sparks pursuant to the
above statutes, adopted an ordinance providing for the permissible method of financing the
plan as specifically authorized by NRS 279.676.
1

Respondent, who as Director of Finance for the City of Sparks is responsible for
implementing the tax-increment accounts, refuses to conform with said provision of the
ordinance requiring him to create the two separate funds necessary to implement the
financing of the redevelopment plan on the ground that the foregoing statutes are
unconstitutional.
____________________

1
279.676 Allocation, division and disposition of tax moneys. Any redevelopment plan may contain a
provision that taxes, if any, levied upon taxable property in the redevelopment project each year by or for the
benefit of the state, any city, county, district or other public corporation, after the effective date of the ordinance
approving the redevelopment plan, shall be divided as follows:
1. That portion of the taxes which would be produced by the rate upon which the tax is levied each
year by or for each of such taxing agencies upon the total sum of the assessed value of the taxable
property in the redevelopment project as shown upon the assessment roll used in connection with the
taxation of such property by such taxing agency, last equalized prior to the effective date of such
ordinance, shall be allocated to and when collected shall be paid into the funds of the respective taxing
agencies as taxes by or for such taxing agencies on all other property are paid. . . .
2. That portion of such levied taxes each year in excess of such amount shall be allocated to and
when collected shall be paid into a special fund of the redevelopment agency to pay the principal of and
interest on loans, moneys advanced to, or indebtedness, whether funded, refunded, assumed, or
otherwise, incurred by such redevelopment agency to finance or refinance, in whole or in part, such
redevelopment project. Unless and until the total assessed valuation of the taxable property in a
redevelopment project exceeds the total assessed value of the taxable property in such project as shown
by the last equalized assessment roll referred to in subsection 1, all of the taxes levied and collected upon
the taxable property in such redevelopment project shall be paid into the funds of the respective taxing
agencies. When such loans, advances and indebtedness, if any, and interest thereon, have been paid, all
moneys thereafter received from taxes upon the taxable property in such redevelopment project shall be
paid into the funds of the respective taxing agencies as taxes on all other property are paid.
accounts, refuses to conform with said provision of the ordinance requiring him to create the
two separate funds necessary to implement the financing of the redevelopment plan on the
ground that the foregoing statutes are unconstitutional. Specifically, respondent contends that
(1) NRS 279.410 contravenes the fourteenth amendment to the United States Constitution
and Article 1, Section 8, of the Nevada Constitution by permitting a redevelopment area to
include property which is not blighted; (2) the Community Redevelopment Law constitutes
an unlawful delegation of legislative power violating Article 8, Section 8, of the Nevada
Constitution; and (3) NRS 279.676 contravenes (a) Article 10, Section 1, of the Nevada
Constitution requiring a uniform and equal rate of assessment and taxation; (b) Article 9,
Section 4, of the Nevada Constitution forbidding the assumption by the State of Nevada of a
debt of a city; (c) Article 8, Sections 9 and 10, of the Nevada Constitution forbidding certain
loans of money by the State of Nevada or a city; and (d) Article 1, Section 10, of the United
States Constitution and Article 1, Section 15, of the Nevada Constitution forbidding any state
from passing a law impairing its obligation of contracts. We disagree.
1. Respondent contends that the Community Redevelopment Law violates the rule of
substantive due process by permitting a redevelopment area to include economically and
aesthetically viable property.
2
However, this, of itself, does not create a substantive due
process violation. In Urban Renewal Agcy. v. Iacometti, 79 Nev. 113, 122, 379 P.2d 466, 470
(1963), this court stated in discussing a similar contention concerning Nevada's Urban
Renewal Law:
Once it has been determined that the designation of a particular project area is valid, the
court should not consider the taking or leaving of sound buildings within its periphery.
As stated in Berman v. Parker, 348 U.S. 26, 35, 75 S.Ct. 98, 104, 99 L.Ed. 27, 39,
Property may of course be taken for this redevelopment which, standing by itself, is
innocuous and unoffending.
[Headnote 1]
The legitimate purpose of the Community Redevelopment Law is the elimination of
blighted areas. Moreover, the inclusion of other non-blighted properties found necessary
for its effective implementation, by statutory mandate, has a rational relationship to this
legitimate objective of the police power.
____________________

2
A redevelopment area may include lands, buildings or improvements which are not detrimental to the
public health, safety or welfare, but whose inclusion is found necessary for the effective redevelopment of
the area of which they are a part.
relationship to this legitimate objective of the police power. See Berman v. Parker, 348 U.S.
26 (1954); In re Bunker Hill Urban Renewal Project 1B, 389 P.2d 538 (Cal. 1964), appeal
dismissed, 379 U.S. 28 (1964), cert. denied, 379 U.S. 899 (1964). Moreover, the record of
information presented to the city council contains substantial evidence upon which that body
properly could find the project area in question to qualify under the Community
Redevelopment Law and that its approval of the proposed plan was not arbitrary and
capricious and did not constitute an abuse of discretion. See Urban Renewal Agcy. v.
Iacometti, supra. Accordingly, neither NRS 279.410 nor the proposed redevelopment plan
before this court violate the fourteenth amendment to the United States Constitution or
Article 1, Section 8, of the Nevada Constitution.
[Headnotes 2, 3]
2. Respondent further contends that the Community Redevelopment Law constitutes an
unlawful delegation of legislative power in violation of Article 8, Section 8, of the Nevada
Constitution.
3
Clearly the legislature has the power under the Constitution to delegate taxing
authority to incorporated cities. However, the question posed here is not whether the
legislature may grant the authority to tax, but whether the words shall restrict places a
constitutional limit on the actions of the legislature concerning whether it may grant cities the
authority to usurp the taxing authorities of other bodies. The respondent argues that a
reasonable construction of said restriction is that a city's power of taxation and assessment
(granted by the legislature) is limited insofar as the exercise of this power will affect other
taxing entities. Therefore, since the Community Redevelopment Law authorizes a city to take
a greater share of tax revenues than is otherwise permissible, thereby depriving revenue
which other taxing authorities would normally be entitled to, such a grant of authority by the
legislature amounts to a violation of said constitutional restriction.
[Headnote 4]
However, the constitutional debates on this subject reveal that the aforementioned
interpretation espoused by the respondent of the word restrict in Article 8, Section 8 is
untenable. See A. Marsh, Nevada Constitutional Debates and Proceedings 165 (1864).
Furthermore, the fact that a community redevelopment agency is created does not amount to
an unconstitutional delegation of legislative powers, since an uncontrolled discretionary
power is not invested in this administrative agency.
____________________

3
Article 8, Section 8, of the Nevada Constitution provides in part: The legislature shall provide for the
organization of cities and towns by general laws and shall restrict their power of taxation, assessment, borrowing
money, contracting debts and loaning their credit. . .
unconstitutional delegation of legislative powers, since an uncontrolled discretionary power is
not invested in this administrative agency. See Richards v. City of Muscatine, 237 N.W.2d 48
(Iowa 1975); Cf. In re Bunker Hill Urban Renewal Project 1B, supra.
3. Respondent's other contentions lack relevant authority, and therefore need not be
considered. Plankinton v. Nye County, 95 Nev. 12, 588 P.2d 1025 (1979); Holland Livestock
v. B & C Enterprises, 92 Nev. 473, 553 P.2d 950 (1976). Moreover, we find the contentions
without merit. See Richards v. City of Muscatine, supra; see also Tribe v. Salt Lake City
Corporation, 540 P.2d 499 (Utah 1975).
Accordingly, we hold that the Community Redevelopment Law is a constitutional exercise
of state power by the legislature, and a writ of mandamus shall immediately issue
commanding the respondent to create the accounts required by Section 9 of Ordinance
Number 1148 of the City of Sparks, Nevada.
Gunderson, J., dissenting:
It is apparent that the friendly litigation now before us has been concocted to obviate the
danger that, at some later date, some interested party with interested counsel might persuade
us that his constitutional rights were violated. See State ex rel. Brennan v. Bowman, 89 Nev.
330, 336-337, 512 P.2d 1321, 1324 (1973) (concurring opinion, Gunderson, J.). As the
United States Supreme Court said in Muskrat v. United States, 219 U.S. 346 (1911):
. . . The whole purpose . . . is to determine the constitutional validity of this class of
legislation, in a suit not arising between parties concerning a property right necessarily
involved in the decision in question, but in a proceeding against the Government in its
sovereign capacity, and concerning which the only judgment required is to settle the
doubtful character of the legislation in question. Such judgment will not conclude
private parties, when actual litigation brings to the court the question of the
constitutionality of such legislation.
Id., at 361-362.
Accordingly, I adhere to the view that this court should discuss issues only when a bona
fide case requires it, and not because attorneys may desire it.
____________
96 Nev. 139, 139 (1980) Merna v. Christensen
ROBERT S. MERNA, Petitioner, v. THE HONORABLE CARL CHRISTENSEN, Eighth
Judicial District Court Judge, and LORETTA BOWMAN, Clerk of the Court Eighth
Judicial District Court, Respondent.
No. 12300
February 6, 1980 605 P.2d 1143
In original mandamus proceeding, the Supreme Court held that petitioner, whose probation
was revoked and eight-year sentence reinstated following his release from county jail, who
had obtained reversal of order denying him credit for time served as condition of probation,
but who had not yet been given credit for time served, was entitled to writ of mandamus
giving him credit for time served in jail as condition of probation.
Writ granted.
Robert S. Merna, Carson City, in proper person.
Robert J. Miller, District Attorney, and James Tufteland, Deputy District Attorney, Clark
Mandamus.
Petitioner, whose probation was revoked and eight-year sentence reinstated following his release from
county jail, who had obtained reversal of order denying him credit for time served as condition of
probation, but who had not yet been given credit for time served, was entitled to writ of mandamus giving
him credit for time he served in jail as condition of probation.
OPINION
Per Curiam:
Petitioner was sentenced to eight years in the state prison following his plea of guilty to
three counts of forgery, NRS 205.090. The sentence was suspended and petitioner was placed
on probation for a period not to exceed five years. Petitioner violated the conditions of his
probation. At a revocation hearing petitioner was again placed on probation for a period of
five years. As a condition of probation, however, petitioner served one year in the Clark
County Jail.
Following his release from the Clark County Jail petitioner again violated the terms of his
probation. The probation was revoked, and the eight year sentence was reinstated. Petitioner's
motion for allowance of credit for time spent in jail as a condition of his probation was
denied.
96 Nev. 139, 140 (1980) Merna v. Christensen
In Merna v. State, 95 Nev. 144, 591 P.2d 252 (1979), we reversed the district court's order
denying credit for time served as a condition of probation. The case was remanded with
instructions to credit [petitioner] with the time he served as a condition of his probation. Id.
at 145, 591 P.2d at 253.
In this original proceeding for a writ of mandamus, petitioner contends that the district
court has failed to comply with our instructions, and that he has not been given credit for the
time served as a condition of probation. The district attorney, answering for respondents,
concedes that petitioner has not been given the credit. The district attorney does not oppose
issuance of a writ of mandamus as requested by petitioner.
Accordingly, a writ of mandamus shall issue commanding respondents to comply with our
instructions in Merna v. State, supra. Respondents shall forthwith amend the judgment of
conviction to give petitioner credit for time served in jail as a condition of probation.
____________
96 Nev. 140, 140 (1980) Boyle v. Bowman
DARLENE R. BOYLE, Appellant, v. LORETTA BOWMAN, County Clerk of the County of
Clark, and the STATE OF NEVADA as the Surety on Official Bond of Loretta Bowman,
Respondents.
No. 10440
February 6, 1980 605 P.2d 1144
Appeal from order dismissing complaint for failure to state a claim, Eighth Judicial
District Court, Clark County; Thomas J. O'Donnell, Judge.
Private person, who unsuccessfully opposed motion to dismiss for want of prosecution, by
claiming that she was not served with notice of trial and was thus unable to take any action in
her behalf, brought action against county clerk under public official bond, which provided
that State shall be liable only for loss resulting from failure of such official faithfully to
perform duties of his office. The district court entered order dismissing complaint for failure
to state claim, and private person appealed. The Supreme Court, held that private person
failed to state claim against county clerk under public official bond, where it was apparent
from applicable statutes that bond language referred to monetary losses to counties or cities,
there was no indication under present law that private individuals may recover on bond
and no procedures were set forth for such recovery, and had legislature intended
inclusion, it would have specifically so provided.
was no indication under present law that private individuals may recover on bond and no
procedures were set forth for such recovery, and had legislature intended inclusion, it would
have specifically so provided.
Affirmed.
John W. Bonner, Las Vegas, for Appellant.
Burleigh & Benson, Chtd., Las Vegas, for Respondent Bowman.
Richard H. Bryan, Attorney General, and Robert H. Ulrich, Deputy Attorney General,
Carson City, for Respondent State of Nevada.
Clerks of Court.
Private person, who unsuccessfully opposed motion to dismiss for want of prosecution, by claiming that
she was not served with notice of trial and was thus unable to take any action in her behalf, failed to state
claim against county clerk under public official bond, which provided that State shall be liable only for loss
resulting from failure of such official faithfully to perform duties of his office, where it was apparent from
applicable statutes that bond language referred to monetary losses to counties or cities, there was no
indication under present law that private individuals may recover on bond and no procedures were set for
such recovery, and had legislature intended inclusion it would have specifically so provided. NRCP
41(e); NRS 282.330; 282.240, 282.280, 282.320 (Repealed.)
OPINION
Per Curiam:
In July of 1970, appellant filed a personal injury action against Gail Cox. After an answer
was filed and the parties exchanged interrogatories, trial was set for May 8, 1972, but was
vacated at the behest of appellant in order to obtain additional discovery. On October 23,
1973, a note for trial docket was sent to appellant informing her that a trial date would be set
on October 26. On that date a trial date was set for June 6, 1975. No notice of the trial date
was sent to appellant. On the date set for trial, appellant failed to appear. The trial date was
vacated. Thereafter, on August 13, 1975, the defendant moved to dismiss for want of
prosecution within five years. NRCP 41(e).
Appellant retained counsel and opposed the motion to dismiss claiming that she was not
served with notice of the trial and was thus unable to take any action in her behalf.
and was thus unable to take any action in her behalf. The court granted the motion to dismiss
with prejudice. No appeal from that order was taken. Subsequently, on April 22, 1977,
appellant filed the present action against the County Clerk and the Board of Examiners for the
State as surety on the Public Official Bond of the County Clerk. The trial court dismissed the
action for failure to state a claim. Upon appeal, we need only decide whether any action may
be brought by a private person against the county clerk under a public official bond. We have
determined that appellant has not stated a claim and affirm the decision of the lower court.
The bond here stated in part that the state shall be liable only . . . [for] the loss of any
public funds occurring through or resulting from defalcation, misappropriation or negligent
loss of such public funds, and/or any loss resulting from failure of such official faithfully to
perform the duties of his office. . . . The language of this bond closely parallels the language
of the statutes to which the bond specifically states it is subject. See 1963 Nev. Stats., ch. 301,
at 544-47 (amending NRS 282.240, 282.280, 282.320, 282.330). In 1963, the legislature
deleted the words tortious misconduct or other wrongful acts from the list of actions for
which an official could be liable on a bond. Looking at all sections of this statute, it is
apparent that the language from failure of such officials faithfully to perform the duties of
their offices refers to monetary losses to counties or cities. As under the present law, there is
no indication that private individuals may recover on the bond and no procedures are set forth
for such recovery. Had the legislature intended inclusion, it would have specifically so
provided.
We affirm the decision of the lower court dismissing the action for failure to state a claim.
____________
96 Nev. 142, 142 (1980) Grooms v. State
ANTONIO FRANCISCO GROOMS, Appellant, v. THE
No. 11580
February 6, 1980 605 P.2d 1145
Appeal from judgment of conviction, Fourth Judicial District Court, Elko County; Joseph
O. McDaniel, Judge.
The district court convicted defendant of burglary, and defendant appealed. The Supreme
Court held that fact that jury panel had seen defendant in handcuffs and without shoes was
harmless error.
jury panel had seen defendant in handcuffs and without shoes was harmless error.
Affirmed.
Richard H. Bryan, Attorney General, Carson City; and Thomas L. Stringfield, District
Attorney, Elko County, for Respondent.
1. Criminal Law.
A criminal defendant has the right, barring exceptional circumstances, to appear before his jurors clad in
the apparel of an innocent person, for the presumption of innocence is incompatible with the garb of guilt.
2. Criminal Law.
Where there is a violation of a defendant's right to appear before his jurors clad in the apparel of an
innocent person, it is the duty of the Supreme Court to reverse a conviction unless it is clear that the
defendant was not prejudiced thereby.
3. Criminal Law.
Where, while defendant was being transported to courtroom, jury panel viewed him in handcuffs and
without shoes, the district judge ordered handcuffs removed shortly thereafter, voir dire disclosed that only
three of the juror panelists had witnessed the incident and none of those panelists who served on the jury
formed any opinion as to the defendant's guilt or innocence or dangerous character, the jurors stated that
they would be able to put the incident out of their minds, and where none of the jurors was challenged for
cause nor did the defendant exhaust his peremptory challenges and trial judge specifically instructed jury
that incident was not to be considered, any prejudice that resulted from the viewing was cured by the
scrupulous conduct of the district judge in ensuring that jurors were not influenced by the error.
OPINION
Per Curiam:
Antonio Francisco Grooms appeals from his conviction for burglary
1
on the ground that
his constitutional rights were violated when the jury panel viewed him in handcuffs and
without shoes. See Chandler v. State, 92 Nev. 299, 550 P.2d 159 (1976); Sefton v. State, 72
Nev. 106, 295 P.2d 385 (1956); State v. McKay, 63 Nev. 118, 165 P.2d 389 (1946). The state
concedes that error occurred but contends that, on the facts of this case, the error was
harmless.
____________________

1
1. Every person who, either by day or night, enters any house, room,
[Headnotes 1-3]
A criminal defendant clearly has the right, barring exceptional circumstances not here
relevant, see Illinois v. Allen, 397 U.S. 337 (1970), Sefton v. State, supra, State v. McKay,
supra, to appear before his jurors clad in the apparel of an innocent person. See Estelle v.
Williams, 425 U.S. 501 (1976); Chandler v. State, supra. The presumption of innocence is
incompatible with the garb of guilt. When such error has occurred, it is our duty to reverse a
conviction unless it is clear that the defendant was not prejudiced thereby. See Chandler v.
State, supra; People v. Reingold, 353 N.Y.S. 2d 978 (Sup. Ct. App. Div. 1974). Having
conducted our own independent examination of the record, we have concluded that, on the
facts of this case, no prejudice resulted.
We note that the viewing of appellant occurred while he was being transported to the
courtroom; the district judge ordered the handcuffs removed shortly thereafter. While the
procedures that permitted this incident to occur are to be condemned, clearly we are not faced
with the far more egregious situation where a criminal defendant has been forced to attend his
trial in restraints. Compare State v. George, 403 P.2d 932 (Ariz. 1965), Starr v. State, 71
S.E.2d 654 (Ga. 1952), Scott v. State, 88 Nev. 682, 504 P.2d 10 (1972), and Commonwealth
v. Carter, 281 A.2d 75 (Pa. Super. 1971) with State v. Roberts, 206 A.2d 200 (N.J.App.
1965). Voir dire disclosed that only three of the jury panelists had witnessed the incident; and
none of those panelists who served on the jury formed any opinion as to appellant's guilt or
innocence or dangerous character. All the jurors testified that they would be able to put the
incident out of their minds and judge appellant solely on the evidence adduced at trial. See
State v. Purcell, 572 P.2d 439 (Ariz. 1977). They also stated that if, during the course of the
trial, they found themselves unable to ignore the incident, they would inform the judge of that
inability. None of the jurors was challenged for cause; nor did appellant exhaust his
peremptory challenges. In addition, the district judge specifically instructed the jury that the
incident was not to be considered in their deliberations. See State v. Purcell, supra, State v.
Sawyer, 371 P.2d 932 (Wash. 1962), cert. denied, 372 U.S. 919 (1963).
Thus, on the record before us, we believe that any prejudice that resulted from the viewing
was cured by the scrupulous conduct of the district judge in ensuring that jurors were not
influenced by the error.
____________________
apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel,
vehicle, vehicle trailer, semitrailer or housetrailer, or railroad car, with intent to commit grand or petit
larceny, or any felony, is guilty of burglary.
conduct of the district judge in ensuring that jurors were not influenced by the error.
Accordingly, we affirm the judgment of conviction.
____________
96 Nev. 145, 145 (1980) Pyborn v. Quathamer
WILLARD B. PYBORN, Appellant, v. SHERYL
PYBORN QUATHAMER, Respondent.
No. 11737
February 6, 1980 605 P.2d 1147
Appeal from order granting petition to terminate parental rights, Eighth Judicial District
Court, Clark County; Keith C. Hayes, Judge.
The district court terminated a father's parental rights. The father appealed. The Supreme
Court held that substantial evidence in the record on appeal sustained the trial court's findings
that the mother was awarded custody of the child, that the father while exercising visitation
rights had absconded to Tennessee with the child and kept him there until the mother finally
regained custody, that the father failed to provide the child with proper care and guidance
while in Tennessee and failed to communicate with or pay support for the child for a period
exceeding six months after the child was returned to the mother and that the father had
abandoned and neglected the child and was an unfit parent, and sustained the order for
termination of the father's paternal rights.
Affirmed.
Mills, Galliher, Lukens, Gibson, Schwartzer and Shinehouse, Las Vegas, for Appellant.
Nitz, Schofield and Nitz, Las Vegas, for Respondent.
1. Infants.
Judicial finding that parent has abandoned his child is sufficient ground, alone, for termination of parental
rights. NRS 128.012, 128.105, subd. 1.
2. Infants.
Whether parent has abandoned child is determined by facts of case, and finding of abandonment will be
upheld on appeal where there is substantial evidence in record to support such finding. NRS 128.012,
128.105 subd. 1.
3. Infants.
Substantial evidence in record on appeal sustained trial court's findings that mother was awarded custody
of child, that father while exercising visitation rights had absconded to Tennessee with child and kept him
there until mother finally regained custody, that father failed to provide child with proper care and
guidance while in Tennessee and failed to communicate with or pay support for child for period exceeding
six months after child was returned to mother and that the father had abandoned and neglected child and
was unfit parent, and sustained order for termination of father's paternal rights. NRS 128.012, 128.105,
subd. 1.
OPINION
Per Curiam:
In this appeal, Willard B. Pyborn contends the district court abused its discretion in
granting respondent Sheryl Quathamer's petition to terminate Pyborn's parental rights to the
parties' minor child, Adam Jason Pyborn. We disagree.
A hearing on the petition was held in February 1979. In its findings of fact, the district
court stated, among other things, that Pyborn and Quathamer were divorced in 1975 and
Quathamer was awarded custody of their child; that in May 1977, while exercising his
visitation rights, Pyborn absconded to Tennessee with the child and kept him there until
March 1978, when Quathamer finally regained custody; that Pyborn failed to provide the
child with proper care and guidance while in Tennessee; and that Pyborn failed to
communicate with or pay support for the child for a period exceeding six months after the
child was returned to Quathamer. The court then concluded that Pyborn had abandoned and
neglected the child and was an unfit parent, and ordered that his parental rights to the child be
terminated.
[Headnotes 1, 2]
A finding by the court that a parent has abandoned his child is sufficient ground, in and of
itself, for termination of parental rights. NRS 128.105(1). Whether a parent has abandoned
his child is determined by the facts of each case, and a finding of abandonment will be upheld
on appeal where there is substantial evidence in the record to support that finding.
1
Sernaker
v. Ehrlich, S6 Nev. 277
____________________

1
Abandonment of child' imports any conduct of one or both parents of a child which evinces a
settled purpose on the part of one or both parents to forego all parental custody and relinquish all claims
to the child, and a parent or parents of a child who leave the child in the care and custody of another
without provision for his support and without communication for a period of 6 months are presumed to
have intended to abandon the child.
Ehrlich, 86 Nev. 277, 468 P.2d 5 (1970); Carson v. Lowe, 76 Nev. 446, 357 P.2d 591 (1960).
[Headnote 3]
In the instant case, sufficient evidence was presented at the hearing on the petition to
support the findings that Pyborn made no real attempts to communicate with the child for a
period of approximately ten months after the child was reunited with his mother, and that for
almost the same period he failed, or made only token efforts, to pay support for the child. It
is true that [Pyborn] sought to prove that his attempts to communicate with his infant son
were frustrated by respondent . . . , and we are urged to accept this proof. This, of course, we
cannot do in view of the court's findings. Carson v. Lowe, 76 Nev. at 449-450, 357 P.2d at
593. Furthermore, Pyborn did not initiate any legal proceedings to impose his rights of
visitation and nowhere do we find any attempt to send the child or his mother money with any
regularity. Sernaker v. Ehrlich, 86 Nev. at 281, 468 P.2d at 7.
The court's finding of abandonment therefore must be upheld and, on this ground alone,
the judgment affirmed. In view of our disposition of this case, other assignments of error
concerning Pyborn's neglect or unfitness need not be considered. Carson v. Lowe, supra.
____________
96 Nev. 147, 147 (1980) Mitchell v. Bailey & Selover, Inc.
EVERLENA MITCHELL, Appellant, v. BAILEY AND SELOVER, INC., d.b.a. All
American Van & Storage, Respondent.
No. 11802
February 6, 1980 605 P.2d 1138
Appeal from summary judgment; Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Action was instituted on complaint alleging that moving company breached its duty of
good faith when it refused to delay sale of customer's property held under a warehouseman's
lien. The district court entered summary judgment for company, and customer appealed. The
Supreme Court, Thompson, J., held that: (1) good-faith obligation of Uniform Commercial
Code applies to enforcement of a warehouseman's lien, and (2) whether company, obligated
under written contract to transport and store the household goods and furnishings held under
warehouseman's lien, acted in good faith when it sold property pursuant to its opinion
that such action was necessary to protect its accrued charges was question of fact
precluding summary judgment.
warehouseman's lien, acted in good faith when it sold property pursuant to its opinion that
such action was necessary to protect its accrued charges was question of fact precluding
summary judgment.
Reversed.
R. Steven Young, of Las Vegas, for Appellant.
Wiener, Goldwater & Waldman, Ltd., and Gerald M. Gordon, of Las Vegas, for
Respondent.
1. Warehousemen.
The good-faith obligation of the Uniform Commercial Code applies to the enforcement of
warehouseman's lien. NRS 104.1102, subd. 3, 104.1203, 104.7101 et seq., 104.7102, subd. 4, 104.7202,
subd. 3.
2. Warehousemen.
Obligation of good faith attached to every provision of written contract requiring moving company to
transport and store customer's household goods and furnishings held under a warehouseman's lien and
giving company right to sell the property if, in its opinion, such action was necessary to protect its accrued
charges. NRS 104.1203, 104.7209, 104.7210.
3. Judgment.
Whether moving company, obligated under written contract to transport and store customer's household
goods and furnishings held under warehouseman's lien, acted in good faith when it sold property pursuant
to its opinion that such action was necessary to protect its accrued charges was question of fact precluding
summary judgment. NRS 104.1203, 104.7209, 104.7210.
OPINION
The single issue presented by this appeal is whether the good faith obligation of the
Uniform Commercial Code, NRS 104.1203, applies to the enforcement of a warehouseman's
lien pursuant to NRS 104.7209, 104.7210. The facts giving rise to this litigation are not in
dispute.
Everlena Mitchell entered into a written contract with All American Van & Storage to
transport and store her household goods and furnishings. Everlena was to pay all charges
incurred on a monthly basis. As security therefor she granted All American a warehouseman's
lien. All American had the right to sell the property if the charges remained unpaid for three
months and if, in the opinion of the company, such action would be necessary to protect
accrued charges.
Over the next eight months Everlena failed to pay any of the charges incurred and by
October 14, 1975, there was due and owing the sum of $S04.30.
owing the sum of $804.30. On October 20 she received notice that the amount owed was to
be paid by October 31, 1975. The notice also stated that if payment was not made her goods
and furnishings would be sold on November 7, 1975.
Everlena had a pending claim with the Social Security Administration, and advised All
American that she would be receiving a substantial sum of money soon from the Social
Security Administration. An attorney for the Economic Opportunity Board and a staff
member for Clark County Legal Services also notified All American of that fact. However,
All American would not postpone the sale. Everlena's property was sold on November 7,
1975, for $925.50. After further expenses incurred by All American were applied to the
proceeds a balance of $28.80 was left due and owing, which sum was written off as a bad
debt. Near the end of November 1975 Everlena received approximately $5,500 from the
United States as a disability payment under the Social Security Act.
It is Everlena's contention that All American breached its duty of good faith when it
refused to delay the sale. All American counters by stating that it did only that which it had
the right to do under lien law. The district court entered summary judgment for All American.
[Headnote 1]
1. Every contract or duty within this chapter imposes an obligation of good faith in its
performance or enforcement. Such is the command of NRS 104.1203. Moreover, NRS
104.1102(3) provides that while [t]he effect of provisions of this chapter may be varied by
agreement, . . . the obligations of good faith, . . . prescribed by this chapter may not. . . . The
mentioned sections apply to the entire Uniform Commercial Code and are expressly
incorporated into Article Seven thereof dealing with the lien of a warehouseman and its
enforcement.
1
Thus, it is clear that the obligation of good faith applies to enforcement of a
warehouseman's lien.
[Headnote 2]
The written contract gave All American the right to sell Everlena's property if, in the
company's opinion, such action was necessary to protect its accrued charges. The obligation
of good faith attaches to every provision of the contract.
2
It is in the exercise of the
company's opinion that Everlena asserts a breach of the obligation of good faith.
____________________

1
NRS 104.7102(4): In addition article one contains general definitions and principles of construction and
interpretation applicable throughout this article.

2
NRS 104.7202(3): A warehouseman may insert in his receipt any other terms which are not contrary to the
provisions of this chapter and do not impair his obligation of delivery (NRS 104.7403) or his duty of care (NRS
104.7204). Any contrary provision shall be ineffective.
the exercise of the company's opinion that Everlena asserts a breach of the obligation of good
faith. A determination by All American that it was insecure with regard to Everlena's debt is a
determination that must be made in good faith. Since All American knew that Everlena's
inability to pay her debt might soon be remedied, and in fact was remedied, it is at least
arguable that there was no basis for its determination that a sale on November 7, 1975, was
necessary to protect its accrued charges.
[Headnote 3]
2. The question of good faith is a question of fact. Ginn v. Citizens & Southern Nat. Bank,
243 S.E.2d 528 (Ga.App. 1978); Pedi Bares v. First Nat. Bank of Neodesha, 575 P.2d 507
(Kan. 1978); McKay v. Farmers & Stockmens Bank of Clayton, 585 P.2d 325 (N.M.Ct.App.
1978). Since it is apparent that an issue of material fact exists, summary judgment should not
have been entered. NRCP 56(c); Zuni Constr. Co. v. Great Am. Ins. Co., 86 Nev. 364, 468
P.2d 980 (1970).
Reversed and remanded for trial.
____________
96 Nev. 150, 150 (1980) International Indus. v. United Mtg. Co.
INTERNATIONAL INDUSTRIES, INC., a California Corporation, Appellant, v. UNITED
MORTGAGE CO., a Nevada Corporation, Respondent.
No. 9653
February 6, 1980 606 P.2d 163
Appeal from judgment, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Lessee appealed from judgment of the district court declaring its lease with lessor
terminated and awarding to lessor attorney's fees. The Supreme Court, Batjer, J., held that: (1)
lessor's letter to sublessee was sufficient to effectuate a termination of lease because it
declared lease terminated and implicitly gave notice of lessor's intent to reenter if sublessee
decided to vacate rather than enter into lease arrangement with lessor, and (2) where lessor
did not recover compensatory damages nor attorney's fees as damages, award of attorney's
fees was improper.
nor attorney's fees as damages, award of attorney's fees was improper.
Affirmed in part, reversed in part.
Albright & McGimsey, Las Vegas; and Lionel Sawyer & Collins, Las Vegas, for Appellant.
Deaner, Deaner & Reynolds, Las Vegas, for Respondent.
Statute providing that if a tenant fails to cure a default in rent payments within five days after notice
requiring payment or surrender, then lessor may retake possession of premises in peaceable manner does
not require a written notice of lessor's decision to terminate the lease.
When a forfeiture is not automatic upon failure to cure a default, but lessor may elect to terminate the
lease, then it is necessary that lessor make a declaration of forfeiture or formal reentry, or do some
unequivocal act that signifies an election to terminate.
Although notice of default was not technically perfect and therefore it could not satisfy prerequisite to
unlawful detainer action, where it did notify lessee of lessor's intent to declare the lease terminated if
defaults were not cured in 30 days, it was properly considered in action seeking declaration that lease be
terminated.
Lessor's letter to sublessee was sufficient to effectuate a termination of lease because it declared the lease
terminated and implicitly gave notice of lessor's intent to reenter if sublessee decided to vacate rather than
enter into lease arrangement with lessor.
5. Torts.
Lessor's notice to sublessee which declared lease terminated and implicitly gave notice of lessor's intent
to reenter if sublessee decided to vacate rather than enter into lease arrangement with lessor was not an
improper interference with contractual relationship between sublessee and lessee.
A lessor is free to lease to a former sublessee or to anyone else after a lease is terminated because
sublease falls with the main lease.
Absent legal excuse or justification, only a tender of full amount due made before a declaration of
termination can preclude lessor from electing to terminate the lease.
8. Tender.
A tender requires that debtor produce money and place it in control of creditor.
Lessee's persistent failure to pay rent and taxes pursuant to terms of lease, without any legal justification
or excuse, indicates an absence of good faith.
10. Costs.
In action wherein judgment declared lessee's lease with lessor terminated, in absence of award of
compensatory damages or attorney's fees as damages, award of attorney's fees to lessor was improper.
NRS 18.010, subd. 2(b).
OPINION
Appellant, International Industries, Inc., appeals from a judgment declaring its lease with
respondent, United Mortgage, terminated as of May 8, 1975, and awarding to United
attorney's fees in the amount of $750. We affirm the declaratory judgment but reverse the
award of attorney's fees.
International argues that it cured all defaults before United could effectively terminate the
lease and that the district judge erred in reaching the opposite conclusion. Furthermore,
International challenges the award of attorney's fees.
On February 18, 1972, United leased to International real property located in Las Vegas.
The lease was for a period of 20 years with an annual rent of $41,377.20, payable in equal
monthly installments on the first day of each calendar month. Pursuant to the lease,
International was to pay, before delinquency, all taxes and assessments. Paragraph 12 of the
lease set forth the procedure to be followed if International defaulted in payment of the rent or
taxes, stating that
If Tenant defaults in any of the covenants or agreements on its part to be performed
hereunder, and if Tenant fails to cure such default within thirty (30) days, after receipt
of written notice from Landlord, or after the expiration of a reasonable time from
receipt of such notice if such default could not be cured within thirty (30) days by
Tenant's diligent efforts, then Landlord may at its option, at any time thereafter during
the continuance of such default, declare this lease terminated, reenter and take
possession of the Premises pursuant to applicable provisions of law.
International subleased the premises to Frank H. Slaven, who made timely rent payments
to it until International's lease was terminated. International, however, was late in making 11
of its rent payments in 1974 and 1975. On each of the eleven occasions, United's treasurer
sent delinquency notices and requested that International pay on time in the future.
On March 26, 1975, United received a notice of delinquent taxes for 1973-1974. At that
point, United's attorney became involved.
involved. He sent a Notice of Default to International on April 2, 1975, advising it that the
March 1, 1975, rent, the April 1, 1975, rent, and the real property taxes plus interest thereon
were unpaid. The notice stated that
This default is declared pursuant to Paragraph #12 of the Lease, and unless the
defaults are cured within thirty (30) days from receipt of this Notice, I have been
authorized to declare the lease terminated, and to take whatever steps are necessary to
recover the premises.
By the time the 30-day grace period expired on May 7, 1975, United had received and
cashed a check for the rent due March 1. On May 8, 1975, United sent a letter to Frank
Slaven, the sublessee, instructing him to pay all future rent to United or to vacate, because the
lease with International had been terminated on that date.
International's April rent check was also sent on May 8, 1975, but did not reach United
until May 13, 1975. United returned the check to International along with a letter stating that
the lease had been terminated effective May 8, 1975. International received the termination
letter and check on May 16, 1975.
International had paid the taxes due, except for the interest charge, by the end of March,
1975. The Assistant County Treasurer called International and was told that the remaining
amount was forthcoming. Approximately two weeks later, he called again and was told the
same thing. After another two weeks passed without payment, International's previous checks
were returned because they were insufficient to cover the amount due. Some time after May
8, 1975, and before May 15, 1975, International's check of final tax payment was received,
dated May 8, 1975. The Assistant County Treasurer held the final check until the checks he
had sent back were returned to him. On May 15, 1975, tax redemption receipts were written.
The trial court found that the defaults were not timely cured and that United had
effectively terminated the lease on May 8, 1975.
For the first time on appeal, International asserts that Paragraph 13 of the lease permits the
withholding of rent in the event of a transfer of title without written notice to International.
1
United Mortgage Co. transferred title to the lease to United Mortgage Trust soon after the
lease was executed.
____________________

1
Paragraph 13. NON-DEFAULT OF TENANT: It is understood and agreed that in the event of any change
in or transfer of title of Landlord in or to the demised Premises, or any part thereof, whether voluntary or
involuntary, or by the act of Landlord or by operation of law, Tenant shall be under no obligation to pay rents
thereafter accruing until notified in writing by Landlord
United Mortgage Trust soon after the lease was executed. Consequently, according to
International, it could withhold rent without suffering a default.
We need not consider this issue because it was not raised at the trial. Central Bank v.
Baldwin, 94 Nev. 581, 583 P.2d 1087 (1978), Penrose v. O'Hara, 92 Nev. 685, 557 P.2d 276
(1976). Nevertheless, the argument is without merit. International was not aware of the
transfer at the time of the default. It cannot now claim that it relied upon the assignment as an
excuse for its late payment of rent and taxes. See Wecht v. Anderson, 84 Nev. 500, 444 P.2d
501 (1968).
International's primary contention is that all defaults were cured before the lease was
effectively terminated. International argues that the termination was not effective until it
received notice of the termination on May 16, 1975. Because it had tendered all amounts due
by May 15, 1975, International asserts that the lease was not terminated during the
continuance of the default as required by Paragraph 12 of the lease.
[Headnote 1]
We turn first to the issue of the validity of United's termination of the lease on May 8,
1975. By its terms, the lease requires only that the lessor give the lessee written notice of
default and thirty days to cure such default. There is no requirement of a written notice of
termination.
2
However, International argues that some affirmative act by United, after the
grace period, was required to terminate the lease.
[Headnote 2]
When a forfeiture is not automatic upon failure to cure a default, but the lessor may elect
to terminate the lease, then it is necessary that the lessor make a declaration of forfeiture or
formal reentry, or do some unequivocal act that signifies an election to terminate. Padilla v.
Sais, 414 P.2d 223 (N.M. 1966); Maretz v. Apuzzo, 378 A.2d 1082 (Conn.App. 1977).
[Headnotes 3, 4]
In this case, United warned International that it would declare the lease terminated if the
defaults were not cured by May 7, 1975.3 We agree with the trial court that United's
letter to the sublessee Slaven on May S, 1975, was sufficient to effectuate a termination
of the lease because it declared the lease terminated and implicitly gave notice of United's
intent to reenter if Slaven decided to vacate rather than enter into a lease arrangement
with United.
____________________
of such change in title and being given satisfactory proof thereof, and that the withholding of such rents in the
meantime shall not be in any sense a default upon the part of Tenant.

2
NRS 40.253 does not require a written notice of the lessor's decision to terminate the lease either. That
section provides that if the tenant fails to cure the default in rent payments within five days after a notice
requiring payment or surrender, then the lessor may retake possession of the premises in a peaceable manner.
The lease in question extends the grace period.
declare the lease terminated if the defaults were not cured by May 7, 1975.
3
We agree with
the trial court that United's letter to the sublessee Slaven on May 8, 1975, was sufficient to
effectuate a termination of the lease because it declared the lease terminated and implicitly
gave notice of United's intent to reenter if Slaven decided to vacate rather than enter into a
lease arrangement with United. Furthermore, as soon as United received the April rent check
on May 13, 1975, it returned the check to International with actual notice of the termination.
[Headnotes 5, 6]
We reject International's complaint that United's notice to Slaven was an improper
interference with the contractual relationship between Slaven and International.
International's attempt to remain as middleman in order to profit from the difference
between the rent payable under the main lease and the higher rent payable under the sublease
cannot succeed. A lessor is free to lease to a former sublessee or to anyone else after a lease is
terminated, because the sublease falls with the main lease. See Russell v. Park City Utah
Corporation, 548 P.2d 889, cert. denied 429 U.S. 860 (Utah 1976); Gibbs v. Stanfill, 146
So.2d 418 (La.App. 1962).
Having concluded that the lease was validly terminated, we now consider whether or not
the defaults were cured in time to foreclose termination of the lease. International appears to
argue that, even if the May 8, 1975, notice to the sublessee Slaven was a sufficient declaration
of termination, all defaults were cured on May 8 by posting the April rent check and the
check for delinquent taxes plus interest on that date. There being no continuing default,
according to International, United was precluded from terminating the lease.
International cites Fant v. Miller, 218 S.W.2d 901 (Tex.Civ.App. 1949), for the
proposition that payment is made when the remittance is deposited in the mail. In Fant, the
court refused to allow the lessor to terminate the lease for late payment of rent when the
payment was made by a check posted on the day the rent was due and was received by the
lessor the following day. We also have refused to permit a forfeiture based upon a technical
breach of the lease.
____________________

3
Although the April 2, 1975, notice of default was not technically perfect and therefore could not satisfy the
prerequisite to an unlawful detainer action, it was properly considered here because it did notify International of
United's intent to declare the lease terminated if the defaults were not cured in 30 days. Cf. American Fence, Inc.
v. Wham, 95 Nev, 788, 603 P.2d 274 (1979) (Notice of Termination could be asserted as defense in action for
specific performance of option despite noncompliance with statutory requirements for unlawful detainer action.).
based upon a technical breach of the lease. See e.g. Summa Corp. v. Richardson, 93 Nev.
228, 564 P.2d 181 (1977). In this case, however, International did not attempt to make a
timely payment. The overdue rent and the interest on the delinquent taxes were not even
mailed until after the thirty-day grace period had expired.
[Headnotes 7, 8]
Absent legal excuse or justification, only a tender of the full amount due made before a
declaration of termination can preclude the lessor from electing to terminate the lease. A
tender requires that the debtor produce the money and place it in the control of the creditor.
Mayron's Bake Shops, Inc. v. Arrow Stores, Inc., 176 A.2d 574 (Conn. 1961), Thrifty Supply
Co. of Seattle v. Deverian Bldrs., Inc., 475 P.2d 905 (Wash.App. 1970) (payment established
only with receipt of funds by creditors). There was no tender of the overdue rent in this case
until May 13, 1975, when United received the April rent check. By that time, it was too late
to avoid a forfeiture. Cf. Fry v. D. H. Overmyer Co., Inc., 525 P.2d 140 (Or. 1974) (purported
telephone tender of overdue rent made 4 days before expiration of grace period did not
prevent forfeiture of lease).
[Headnote 9]
The maxim that equity abhors a forfeiture will not aid International. We concur with the
trial court's conclusion that International's persistent failure to pay rent and taxes pursuant to
the terms of the lease, without any legal justification or excuse, indicates an absence of good
faith. Accord, Groendycke v. Ellis, 470 P.2d 832 (Kan. 1970); Cambridge v. Webb, 244 P.2d
505 (Cal.App. 1952). Under the circumstances of this case, it is not inequitable to enforce a
forfeiture of the lease.
International also challenges the award of attorney's fees. United counterclaimed for a
declaration that the lease was terminated and for costs and attorney's fees. It simply alleged
that legal counsel was necessary to defend against the declaratory relief action and to
prosecute the counterclaim, and that it was entitled to attorney's fees.
[Headnote 10]
NRS 18.010(2)(b) states that The court may make an allowance of attorney's fees to: . . .
[t]he counterclaimant as prevailing party when he has not recovered more than $10,000. We
held in City of Las Vegas v. Cragin Industries, 86 Nev. 933, 478 P.2d 585 (1970), that where
neither damages nor attorney's fees as damages were awarded, the award of attorney's fees
was not authorized by NRS 1S.010{3){a).4 The section discussed in Cragin and NRS
1S.010{2){b) each require that the prevailing party not recover more than $10,000.
was not authorized by NRS 18.010(3)(a).
4
The section discussed in Cragin and NRS
18.010(2)(b) each require that the prevailing party not recover more than $10,000. We
construed that language to mean that an award of a money judgment is a prerequisite to an
award of attorney's fees. Compare, Wiley v. Cook, 94 Nev. 558, 583 P.2d 1076 (1978)
(successful counterclaim defendant could recover attorney's fees under NRS 18.010(2)(c)
which requires only that plaintiff has not sought recovery in excess of $10,000).
5

In this case, United did not recover compensatory damages nor attorney's fees as damages.
Therefore, the award of attorney's fees was improper.
The judgment declaring the lease to be validly terminated is affirmed. The award of
attorney's fees is reversed.
Mowbray, C. J., and Thompson, Gunderson, and Manoukian, JJ., concur.
____________________

4
NRS 18.010(3)(a) is now NRS 18.010(2)(a).
NRS 18.010 Award of attorney's fees.
. . . .
2. The court may make an allowance of attorney's fees to:
(a) The plaintiff as prevailing party when the plaintiff has not recovered more than $10,000.

5
NRS 18.010(2)(c) does not apply in this case because International sought more than $10,000 damages.
____________
96 Nev. 157, 157 (1980) U C Leasing, Inc. v. Laughlin
U C LEASING, INC., a Corporation, Appellant, v.
DONALD J. LAUGHLIN, Respondent.
No. 9542
February 6, 1980 606 P.2d 167
Appeal from a judgment denying a deficiency judgment, Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
Following default in monthly payments required by purported lease contract for airplane
and repossession and sale of airplane, lessor brought suit seeking difference between money
due under contract and proceeds received from sale. The district court denied relief and lessor
appealed. The Supreme Court, Batjer, J., held that: (1) lease contract was intended as an
instrument for security; {2) evidence supported finding of an offer of redemption by
lessee; and {3) where lessor produced no evidence indicating fair market value of airplane
at time lessee's offer of redemption was refused, lessor was not entitled to recover
deficiency.
intended as an instrument for security; (2) evidence supported finding of an offer of
redemption by lessee; and (3) where lessor produced no evidence indicating fair market value
of airplane at time lessee's offer of redemption was refused, lessor was not entitled to recover
deficiency.
Affirmed.
Donald W. Haley, Las Vegas, for Appellant.
Morris & Wood, Las Vegas, for Respondent.
1. Secured Transactions.
Features which indicate that lease contract was intended for security include: lessee bears entire risk of
loss, theft, damage or destruction and no such loss relieves lessee of his obligation to pay rent; lessee must
provide insurance against loss, theft, or damage of leased equipment; lessee is required to indemnify lessor
against and hold harmless from all claims and liabilities arising in connection with the equipment; lessee
must pay all charges, taxes and fees imposed on lease equipment; and lessor disclaims all warranties,
express and implied. NRS 104.1201, subd. 37.
If a lease requires lessee to complete the lease; provides that total rentals plus option, if any, equals
purchase price of the goods; and provides that lessee must become owner at expiration of lease, or has
option to become owner, then it is presumed, unless there is convincing evidence otherwise, that parties
intended lease as a security. NRS 104.1201, subd. 37.
Contract for lease of airplane was intended as a security agreement where lessee was required to perform
the contract, rental payment plus option price equalled purchase price plus approximately 11 percent
interest and lessee for all practical purposes had an option to become owner of aircraft. NRS 104.1101
et seq., 104.1201, subds. 37, 37(b).
Where lessor produced no evidence indicating fair market value of leased airplane at time of lessee's
offer of redemption under lease contract was refused and, thus, that market value of airplane was less than
debt outstanding on airplane, lessor was not entitled to recover deficiency judgment. NRS 104.1201,
subd. 37.
OPINION
Appellant and respondent entered into a contract in which appellant purported to lease
respondent an airplane. When respondent defaulted in the monthly payments required by the
contract, appellant repossessed the plane, which was later sold. Appellant brought suit
seeking the difference between the money due under the contract and the proceeds
received from the sale.
money due under the contract and the proceeds received from the sale. In denying relief, the
district court held the contract to be a lease intended for security subject to the Uniform
Commercial CodeSecured Transactions (NRS 104.901-104.9507, inclusive), and, since
appellant refused respondent's offer to fulfill the terms of the contract by redeeming the
airplane, appellant was precluded from recovering a deficiency.
Appellant claims on appeal that the district court erred because (1) the contract was a true
lease rather than a lease intended as a security agreement; (2) there was no offer to redeem
the plane; and (3) even if there had been an offer to redeem, such offer does not preclude
recovery of a deficiency. We disagree.
1. A consideration of the facts is necessary to determine if the document involved in this
case is a true lease or one intended as a security agreement.
1
The lease, hereinafter referred
to as the contract, was to run for five years with a monthly rental of $1,144. At the end of that
period, lessor (appellant) was to regain possession of the aircraft. However, at any time
during the life of the contract, if, in the reasonable and good faith judgment of lessee
(respondent), the plane became unsuitable for use by him, he could then, in good faith and at
arms length, sell the aircraft to a third person. Upon such sale lessee would be entitled to the
proceeds of the sale if he paid lessor the amount then owing under the contract plus $5,500.
The amount then owing under the contract was to be determined by reference to a percentage
chart attached to it. The more rent paid, the smaller the percentage of the original purchase
price ($55,000) lessee must pay lessor. If the proceeds of the sale did not return to lessor the
amount then owing plus $5,500, lessee would be required to compensate lessor for the
difference.
If the contract was prematurely terminated, lessee would be liable to lessor in the dollar
amount equal to the percentage of lessor's original purchase price as revealed by the
percentage chart.
2
Pursuant to the contract, lessee was to bear all risk of loss, pay all taxes
and fees, and pay insurance premiums to an insurer specified by lessor.
____________________

1
The contract recites that it shall be construed and interpreted under the laws of the State of Tennessee.
Although Tennessee has adopted the identical provisions of the Uniform Commercial Code as has Nevada (at
least so far as the provisions which are relevant to this case), neither our research nor the research of the parties
has revealed any Tennessee cases which are dispositive of the issues involved in this case.

2
The lease could be terminated, at the option of the lessor, if the lessee failed to pay rent, became
insolvent, ceased to do business, committed an act of bankruptcy, or if lessor reasonably deemed itself insecure.
insurer specified by lessor. Appellant disclaimed all implied or expressed warranties.
Although respondent was designated the lessee under the contract, the true beneficiary of
the arrangement was FDR Corporation, a corporation in which lessee was the president and a
member of the board of directors at the time the contract was executed.
3
The printed lease
form prohibited subleasing, but the parties agreed to a provision allowing for the subletting of
the craft to FDR. The evidence presented at trial revealed that appellant leased the plane for
FDR's benefit yet required respondent to sign the contract because of the latter's superior
financial position. The plane was delivered directly to FDR and, of the nine monthly
payments made before default occurred, all were paid by FDR directly to appellant.
4
Until
appellant's repossession, FDR had sole possession of the aircraft.
While a true lease is not subject to the provisions of Nevada's Uniform Commercial Code,
a lease intended as a security instrument is. See NRS Chapter 104.
Guidance in determining if a purported lease is one intended for security is found in NRS
104.1201(37):
Whether a lease is intended as security is to be determined by the facts of each case;
however,
(a) The inclusion of an option to purchase does not of itself make the lease one
intended for security; and
(b) An agreement that upon compliance with the terms of the lease the lessee shall
become or has the option to become the owner of the property for no additional
consideration or for a nominal consideration does make the lease one intended for
security.
Although the above section indicates a measuring device by which a lease is or is not
deemed a security instrument, the final determination should be gleaned from the intent of the
parties as revealed by the facts of each case. Lease Finance, Inc. v. Burger, 575 P.2d 857, 859
(Colo.App. 1977). If there exists a purchase option for nominal consideration, then the
lease is one intended for security within the exception found in the language of NRS
104.1201{37){b).
____________________

3
Respondent, who had at one time been the sole shareholder, had sold FDR a few months prior to this
transaction. However, since payment was in the form of a promissory note, respondent remained as president in
order to assure future payments.

4
FDR and appellant negotiated approximately ten other airplane transactions. Respondent was not a party to
those transactions. FDR sold some of those planes. When FDR became bankrupt, appellant treated all the
remaining planes in the same manner, including the one leased by respondent.
one intended for security within the exception found in the language of NRS
104.1201(37)(b).
One test used by the courts in determining whether a lease is one intended for security is to
compare the purchase option price to the total rentals. In re Crown Cartridge Corp., 220
F.Supp. 914 (S.D.N. Y. 1962), a purchase option of 7.7 percent was held to make the lease
one intended for security. In In re Herold Radio & Electronic Corp., 218 F.Supp. 284 (S.D.N.
Y. 1963), aff'd, 327 F.2d 564 (2nd Cir. 1964), the same result was reached with a 10 percent
purchase.
Neither party proffered evidence of the fair market value of the plane at the end of the
lease period or at the time of trial. It was impossible for the trial court to use the fair market
value criteria to determine if the plane could have been purchased for nominal consideration.
Cf. Granite Equip. Leasing Corp. v. Acme Pump Co., Inc., 335 A.2d 294 (Conn. 1973); Davis
Bros. v. Misco Leasing, Inc., 508 S.W.2d 908 (Tex.Civ.App. 1974). Here, at the end of the
contract the airplane could have been purchased for $5,500, which was 10 percent of the
purchase price. Appellant argues that such amount is not nominal consideration; therefore,
the lease is not one intended as security. This argument is not supported by the evidence or by
the authorities.
[Headnote 1]
A review of the contract reveals that it contains many other features which indicate that it
was intended for security. For example, when a lessee bears the entire risk of loss, theft,
damage or destruction and no such loss relieves the lessee of his obligation to pay rent; or
when a lessee must provide insurance against loss, theft or damage of the leased equipment;
or when a lessee is required to indemnify the lessor against and hold harmless from all claims
and liabilities arising in connection with the equipment; or when a lessee must pay all
charges, taxes and fees imposed on the leased equipment, then these facts point towards a
lease intended as security rather than a true lease. Leasing Service Corp. v. Am. Nat'l Bank &
Trust Co., 19 U.C.C. Rptr. 252, 260 (D.N.J. 1976). Cf. Nevada National Bank v. Huff, 94
Nev. 506, 582 P.2d 364 (1978). Furthermore, the fact that the respondent disclaimed all
warranties, expressed and implied, weighs in favor of a lease intended as security. Woco v.
Benjamin Franklin Corp., 20 U.C.C. Rptr. 1015, 1023 (D.N.H. 1976).
The district court considered all of the above factors. In the final analysis, it held that this
lease was one intended as security because the total rentals to be paid plus the option
price {$5,500) equaled the original purchase price of the plane plus interest andJor
carrying charges.
security because the total rentals to be paid plus the option price ($5,500) equaled the original
purchase price of the plane plus interest and/or carrying charges. 1973 Duke L.J. 909. Also
see Equipment Leasing 1976 (PLI. 1976) 7-105.
[Headnote 2]
A simple solution may be found by referring to the Uniform Conditional Sales Act, a
predecessor of the UCC.
5
1973 Duke L.J. 909, supra. According to UCSA 1(2), a lease is
in reality a conditional sale, and therefore subject to the rules of the UCSA, when it is a
. . . contract for the bailments or leasing of goods by which the bailee or lessee contracts
to pay as compensation a sum substantially equivalent to the value of the goods, and by
which it is agreed that the bailee or lessee is bound to become, or has the option of
becoming the owner of such goods upon full compliance with the terms of the contract.
Using this test as an aid to interpret NRS 104.1201(37) it is clear that if a lease (1) requires
the lessee to complete the lease; (2) provides that the total rentals plus option, if any, equals
the purchase price of the goods; and (3) provides that the lessee must become the owner at the
expiration of the lease, or has an option to become the owner, then it is presumed, unless
there is convincing evidence otherwise, that the parties intended the lease as security. 1973
Duke L.J. 909, supra; Dekoven, 12 U.S.F.L. Rev. 257 (1978).
The Internal Revenue Service uses this test as one of its means to ascertain if the
transaction is a lease or a sale. See Rev. Rul. 55-540. Courts in other jurisdictions have used a
similar formula when deciding this issue. See O.P.M. Leasing Services, Inc. v. Homestead
Fabrics, Inc., 18 U.C.C. Rptr. 1342 (N.Y.Sup.Ct. 1976); In re Transcontinental Indus. Inc., 3
U.C.C. Rptr. 235 (N.D.Ga. 1965); Leasing Services Corp. v. Am. Nat'l Bank & Trust Co.,
supra at 259-60; In re Vaillancourt, 7 U.C.C. Rptr. 748 (D.Maine 1970).
[Headnote 3]
The district court did not err in finding the contract to be intended as an instrument for
security. Respondent was required to perform the contract. The rental payment plus the
option price equaled the purchase price plus approximately eleven percent interest, and
the respondent for all practical purposes had an option to become owner of the aircraft.
____________________

5
In the article found in the Duke Law Journal, Peter F. Coogan contends that the key to interpreting the UCC
is to refer to prior uniform laws, especially the UCSA. The Tennessee Supreme Court has cited the Coogan
article, with apparent approval, in U.S. Fid. & Guar. Co. v. Thompson & Green Mach. Co. Inc., 568 S.W.2d
821, 825 (Tenn. 1978).
option price equaled the purchase price plus approximately eleven percent interest, and the
respondent for all practical purposes had an option to become owner of the aircraft.
Consequently, the district court correctly found that the lease is subject to Nevada's Uniform
Commercial Code (NRS Ch. 104).
2. As an alternative, appellant argues that the respondent never offered to redeem the
aircraft. However, in the record there is evidence to support the finding by the district court of
an offer of redemption. We will not interfere with such a finding. Tamagni v. Tamagni, 93
Nev. 194, 562 P.2d 481 (1977); Landex, Inc. v. State ex rel. List, 94 Nev. 469, 582 P.2d 786
(1978).
3. Finally, appellant asserts that even if an offer to redeem was rejected, recovery of a
deficiency is not precluded. The courts in both Tennessee and Nevada recognize that creditor
misconduct should not always be an absolute bar to a deficiency judgment. Levers v. Rio
King Land & Inv. Co., 93 Nev. 95, 560 P.2d 917 (1977); Investors Acceptance Co. of
Livingston, Inc. v. Talcott, Inc., 454 S.W.2d 130 (Tenn.App. 1969). However, appellant's
reliance on Levers in support of its contention is misplaced. Although in Levers we allowed a
creditor to recover a deficiency if the fair market value of the equipment at the time of the
misconduct was less than the debt outstanding on the equipment, we nevertheless held that
the creditor must produce evidence to establish the reasonable value of the equipment;
otherwise, it will be presumed that the collateral had a fair market value equal to the amount
of the debt and no deficiency will be permitted.
[Headnote 4]
In this case, appellant produced no evidence indicating the fair market value of the
airplane at the time the respondent's offer of redemption was refused, thus a deficiency should
not be permitted and appellant is not entitled to recover.
____________
96 Nev. 164, 164 (1980) Turner v. State
ROBERT TURNER, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 11601
February 6, 1980 605 P.2d 1140
Appeal from conviction of first degree murder; Eighth Judicial District Court, Clark
County; Paul S. Goldman, Judge.
The Supreme Court, Thompson, J., held that failure of trial court to, sua sponte, instruct
jury that a specific intent to permanently deprive owner of his property was an element of the
crime of robbery was error, and such error required reversal, in light of fact that it was at least
arguable that the verdict was based on felony-murder doctrine.
Reversed.
Smith and Maurer, of Las Vegas, for Appellant.
Robert J. Miller, District Attorney, H. Douglas Clark and David Schwartz, Deputy District
Attorneys, Clark County, for Respondent.
1. Homicide.
It is permissible to instruct regarding felony-murder even though it is not pleaded.
2. Homicide.
It is not necessary to allege that murder was committed in perpetration of another crime in order to
introduce evidence of such other crime.
3. Robbery.
In defining robbery, it is preferable to state that the taking must be with the specific intent permanently to
deprive owner of his property, rather than to state that robbery is a felonious taking of personal property.
NRS 200.380.
4. Criminal Law.
Trial court has duty to see that jury is adequately informed on all elements of offenses concerning which
instructions are given.
5. Homicide.
In proceeding in which jury found defendant guilty of first-degree murder after it was instructed on
elements of first-degree murder but was also instructed on felony-murder because one of State's theories
was that the killing occurred in perpetration of robbery, failure of trial court to, sua sponte, instruct jury
that a specific intent to permanently deprive owner of his property was an element of the crime of robbery
was error, and such error required reversal, in light of fact that it was at least arguable that the
verdict was based on felony-murder doctrine.
arguable that the verdict was based on felony-murder doctrine. NRS 200.380.
OPINION
[Headnotes 1-3]
Robert Turner was charged with first degree murder and, by a jury, convicted of that
offense. The jury was instructed regarding the elements of first degree murder, and also
regarding felony murder since one of the State's theories of guilt was that the killing occurred
during the perpetration of a robbery.
1
It is asserted that prejudicial error occurred when the
trial court failed, sua sponte, to instruct the jury that a specific intent to permanently deprive
the owner of his property is an element of the crime of robbery. The court did, by instruction,
give the jury the statutory definition of robbery which is silent regarding intent. NRS 200.380.
2

Although the statute is silent regarding intent, this court has held that the taking in the
crime of robbery must be with the specific intent permanently to deprive the owner of his
property. State v. Sala, 63 Nev. 270, 169 P.2d 524 (1946). And, we note that instructions
regarding the specific intent required for robbery were given in Brimmage v. State, 93 Nev.
434, 567 P.2d 54 {1977), and Rogers v. State, S3 Nev. 376
____________________

1
It is permissible to instruct regarding felony murder even though felony murder is not pleaded. Theriault v.
State, 92 Nev. 185, 547 P.2d 668 (1976); Rogers v. State, 83 Nev. 376, 432 P.2d 331 (1967). It is not necessary
to allege that murder was committed in the perpetration of another crime in order to introduce evidence of such
other crime. State v. Mangana, 33 Nev. 511, 112 P. 693 (1910).

2
NRS 200.380:
1. Robbery is the unlawful taking of personal property from the person of another, or in his presence,
against his will, by means of force or violence or fear of injury, immediate or future, to his person or
property, or the person or property of a member of his family, or of anyone in his company at the time of
the robbery. Such force or fear must be used to obtain or retain possession of the property, or to prevent
or overcome resistance to the taking in either of which cases the degree of force is immaterial. If used
merely as a means of escape, it does not constitute robbery. Such taking constitutes robbery whenever it
appears that, although the taking was fully completed without the knowledge of the person from whom
taken, such knowledge was prevented by the use of force or fear.
2. Every person who shall commit robbery shall be punished by imprisonment in the state prison for
not less than 1 year nor more than 15 years.
P.2d 54 (1977), and Rogers v. State, 83 Nev. 376, 432 P.2d 331 (1967).
3

In State v. Switzer, 38 Nev. 108, 145 P. 925 (1914), this court ruled that an instruction
defining robbery in the language of the statute is sufficient absent a request for a more
specific instruction by defense counsel. It would appear to follow from that decision that the
trial court is not obliged, on its own, to instruct regarding the specific intent element of
robbery.
[Headnote 4]
We have since ruled that an accurate instruction upon the basic elements of the offense
charged is essential, and the failure to so instruct constitutes reversible error. Dougherty v.
State, 86 Nev. 507, 471 P.2d 212 (1970); Harvey v. State, 78 Nev. 417, 375 P.2d 225 (1962).
In the light of our more recent pronouncements, the ruling in Switzer is no longer viable. It is
the duty of the trial court to see that the jury is adequately informed on all elements of the
offenses concerning which instructions are given. People v. Ford, 388 P.2d 892 (Cal. 1964);
People v. Sanchez, 219 P.2d 9 (Cal. 1950).
[Headnote 5]
The need for proper instruction on all essential elements is shown by the case at hand.
Turner was charged with having committed first degree murder, a willful, deliberate and
premeditated killing. The jury was instructed as to the elements of that offense. Additionally,
the jury was instructed that Turner could be found guilty of first degree murder if the
homicide occurred during the perpetration of a robbery. The verdict returned by the jury was
guilty of murder in the first degree. At that moment one could not know whether the jury had
found him guilty of a willful, deliberate and premeditated killing, or whether he was found
guilty of first degree murder because the homicide happened during the perpetration of a
robbery.
Subsequently at the penalty hearing, the jury noted, as an aggravating circumstance, that
the homicide occurred while perpetrating a robbery. In the light of this finding, it is at least
arguable that the verdict of first degree murder was based upon the felony murder doctrine,
rather than upon a belief that the killing was willful, deliberate and premeditated. The
importance of having the jury properly instructed on all elements of the crime of robbery
becomes apparent. The defendant had testified that he pulled his gun to protect himself
rather than permanently to deprive the victim of his property, thus placing the specific
intent element of robbery directly in issue.
____________________

3
In Boone v. State, 85 Nev. 450, 456 P.2d 418 (1969), we approved an instruction defining robbery as the
felonious taking of personal property, since the word felonious means that the act was done with the intent to
commit the crime. State v. Hughes, 31 Nev. 270, 102 P. 563 (1908). It is preferable to state that the taking must
be with the specific intent permanently to deprive the owner of his property.
testified that he pulled his gun to protect himself rather than permanently to deprive the
victim of his property, thus placing the specific intent element of robbery directly in issue.
The jury, however, was not required to resolve this issue in conjunction with its consideration
of felony murder. Within this context the error may not be labeled harmless.
Other assigned errors need not be considered. Reversed and remanded for a new trial.
____________
96 Nev. 167, 167 (1980) Clark Co. Sports v. City of Las Vegas
CLARK COUNTY SPORTS ENTERPRISES, INC., Appellant, v. CITY OF LAS VEGAS,
NEVADA, a Municipal Corporation, Respondent.
No. 10385
February 6, 1980 606 P.2d 171
Appeal from judgment granting Writ of Restitution to Respondent, Eighth Judicial District
Court, Clark County; Howard W. Babcock, Judge.
Corporation, which operated racetrack on property it leased from city, appealed from
judgment entered by the district court which granted city permanent writ of restitution of
premises, together with money damages, as result of corporation's alleged failure to comply
with several material lease provisions. The Supreme Court, Manoukian, J., held that: (1) there
was substantial evidence to support finding that gravel pit located on racetrack did not
unreasonably interfere with operation of racing facility; (2) evidence was sufficient to support
finding that parties, by their conduct and written memorandum, agreed to be governed by one
provision of original lease rather than modified lease; and (3) corporation was subject to ad
valorem taxes.
Affirmed.
Jolley, Urga & Wirth, Las Vegas, for Appellant.
George F. Ogilvie, Las Vegas City Attorney, and Janson F. Stewart, Deputy City
Attorney, Las Vegas, for Respondent.
There was substantial evidence to support finding that operation and location of gravel pit on racetrack
premises, which corporation operated on land it leased from city, did not constitute such
unreasonable danger or unreasonable interference of use of premises by corporation
to justify corporation's failure to stockpile gravel for city as required by lease.
on land it leased from city, did not constitute such unreasonable danger or unreasonable interference of use
of premises by corporation to justify corporation's failure to stockpile gravel for city as required by lease.
Supreme Court will not disturb determination by lower court when it is supported by substantial
evidence.
Evidence was sufficient to support finding that notwithstanding change in lease between city and
corporation, which provided that corporation would send its tax returns each year to city, and city could
audit its books to determine amount of ticket sales at racetrack operated on leased land rather than having
counters at gate to insure accurate count of sales, each of parties, by their conduct and written
memorandum, agreed to be governed by provisions of original lease which provided for counters at gates.
4. Contracts.
Parties may mutually consent to enter into valid agreement to modify former contract.
5. Evidence.
Parol evidence may be used to show an agreement to modify a former contract.
6. Contracts.
Mutual consent to modification of a contract may be implied from conduct consistent with asserted
modification.
7. Contracts.
In order to justify modification of contract, evidence must be clear and convincing.
8. Taxation.
Corporation which operated racetrack on land leased from city was subject to ad valorem taxes pursuant
to statute which taxed private corporations, who, as lessee, used property to conduct business for profit.
NRS 361.157, 361.l57, subd. 1.
9. Taxation.
Corporation may be taxed only when property it leases from government entity is used in connection with
business for profit. NRS 361.157.
10. Taxation.
Presumptions are against intent by state to provide tax exemption, and one claiming tax exemption must
demonstrate clearly an intent to exempt.
OPINION
This is an appeal from a judgment granting plaintiff-lessor-respondent City of Las Vegas a
permanent Writ of Restitution of premises, together with money damages, as a result of Clark
County Sports Enterprises, Inc.'s alleged failure to comply with several material lease
provisions. Defendant-lessee-appellant is a private corporation. The judgment provided for
restitution of the premises to respondent, $4,000 in rent arrears, and $9,500 for the
replenishment of the gravel stockpile.
and $9,500 for the replenishment of the gravel stockpile. The judgment also noted further
defalcations by virtue of appellant's failure to pay $8,640 in back taxes and failure to maintain
approximately 300 feet of fence on the leased premises.
Of the five issues presented, we determine that only three warrant our consideration. They
are: (1) Whether there is substantial evidence supporting the trial court's finding that the
presence of the gravel pit did not unreasonably interfere with appellant's leasehold interest;
(2) Whether the trial court committed error in refusing to allow appellant a set-off incidental
to a contractual dispute regarding an amended lease agreement; and (3) Whether, because
municipal property is the subject of the lease, the lessee is entitled to lessor's governmental
exemption. We find no error in the judgment of the trial court.
On October 21, 1970, respondent City and appellant entered into a fifteen-year lease of
city property located north of metropolitan Las Vegas. Appellant was to develop the property
primarily as a racing facility and was to keep a stockpile of gravel for respondent's use.
Respondent was to receive as rent a certain annually graduated percentage of the gross ticket
sales, or in any event $250 per month for the first year and $500 per month for each
succeeding year. In April of 1971, the parties agreed to an amendment of the lease. Appellant
and respondent apparently believed that the only significant modification of the 1970 lease
was the property description. There were, however, a few other changes from the first lease.
Paragraph 4 of the lease was also materially amended. The new paragraph deleted the
requirement that attendance counters be present at all events and that appellant reimburse
respondent for these counters. The new provision stated that the City had the right to audit
appellant's federal income tax return during the duration of the lease. Mr. Carl Price,
president of the appellant corporation, attempted to revise the amended lease by restoring the
former provision. No revision was made but respondent continued to collect from appellant
for the counters.
Paragraph 5 of the lease provided that the lessor reserved all sand and gravel rights.
Appellant was to maintain a continual stockpile of gravel in a mutually convenient area of at
least 35,000 yards, at the expense of appellant. This additional consideration was extremely
important to respondent as this pit had for many years been a resource for city road and
related repairs, especially following flash flooding. The parties agreed that respondent would
have an access easement to the gravel and that the easement was not to interfere unreasonably
with appellant's construction and use of the premises. In August of 1976, appellant notified
the City that further stockpiling and removal of gravel would unreasonably interfere with
appellant's construction and use of the premises.
removal of gravel would unreasonably interfere with appellant's construction and use of the
premises. Appellant then stated that no further gravel would be stockpiled upon exhaustion of
the present inventory.
The lease also required appellant to pay any taxes levied against the property. On October
21, 1976, respondent gave notice of default to appellant, thereby informing appellant of its
failure to stockpile gravel in accordance with the lease, of the rental and tax delinquency, and
of the fact that the fence surrounding the property was in a state of disrepair in contravention
to the lease agreement.
1
No steps to cure default were taken by appellant and a notice to quit
possession was served upon the corporation on November 25, 1976. Approximately one
month later the instant complaint was filed.
On January 31, 1977, appellant filed an answer and counterclaim. With but two
inconsequential exceptions, appellant's claims and affirmative defenses made below form the
basis for its contentions on appeal.
1. The Gravel Pit.
[Headnotes 1, 2]
The trial court sua sponte amended finding of fact number 11, which finding now reads:
That the location of the gravel pit was established by mutual agreement between the
parties; that the design and construction of the various race tracks on the premises was
done by defendant with full knowledge of the requirements for stockpiling gravel; that
the removal of gravel by the plaintiff has not been greater than the amount that could
have reasonably contemplated [sic] by the parties; that the use of the gravel pit does
not constitute such an unreasonable danger or unreasonable interference of the use
of the premises by the defendant to justify the defendant's failure to stockpile
gravel as required by the lease.
____________________

1
The notice of default provided in part:
1. Paragraph 5 of the agreement requires that you maintain a continual stockpile of at least 35,000
yards of gravel. We have been advised that the present stockpile only contains approximately 17,800
cubic yards of gravel.
2. By paragraph 3 of the subject agreement, you are required to pay to the City of Las Vegas a
minimum monthly lease payment of $500.00. This office has been advised that you are now three (3)
months in arrears in payment of your rent.
3. By paragraph 8 of the lease agreement, you were required to pay and discharge, in addition to the
rent, all taxes and penalties applied to the leased premises by any Federal, State or Local Government.
This office has been advised that you are presently delinquent in payment of your taxes for the years:
1973-1974; 1974-1975 and 1975-1978 [sic] in the approximate amount of $8,321.10.
4. Paragraph 8 of said lease agreement requires the Lessee to maintain the improvements on the
property in good and substantial order. This office has been advised that the fence, in particular the fence
surrounding the gravel stockpile, is down in several places and needs immediate repair.
that the use of the gravel pit does not constitute such an unreasonable danger or
unreasonable interference of the use of the premises by the defendant to justify the
defendant's failure to stockpile gravel as required by the lease.
On appeal, appellant challenges the sufficiency of the evidence to support this factual finding.
The evidence shows that the general gravel pit site was established by mutual agreement and
the racing facilities were designed and located by appellant with the understanding that the
City's interest must be accommodatednamely, that a perpetual stockpile of 35,000 yards of
gravel be maintained. Appellant contends that the use of the gravel pit interferes with its
operation of the racing facility and, therefore, that it is entitled to suspend its obligation under
the lease that it maintain the stockpile. Appellant, however, attempts to demonstrate a present
unreasonable interference based on future projections of attendance.
On direct examination, appellant's counsel asked one of appellant's expert witnesses, Mr.
Vella, if it was reasonable to anticipate attendance now or in the next fifteen years of
twenty-four thousand spectators at a road race track event. Vella responded that crowds of
20,000 to 30,000 people could reasonably be expected to attend road race events at the
facility. Following objection, Vella testified, There is a lack of bleacher area to seat the
people. At present, I would say somewhere around twenty to thirty, a well promoted
professional series brought in. Vella's testimony was given in relation to prospective area
requirements to accommodate road racing audiences.
The record show that attendance figures from 1972 to 1975 never exceeded 4,200.
Moreover, respondent demonstrated through Vella, that the pit posed no audience or race
track threat where it was located in 1977 and did not otherwise interfere with the lessee's
present use. This witness did state that another gravel pit realistically could not be located
elsewhere on the property due to roadway safety reasons. Nevertheless, the court did view the
property and could properly find, as it did, from the evidence presented, that the present
stockpile requirements did not interfere unreasonably with the use of the property. In
addition, with appellant's status in a state district court receivership and its lack of financial
liquidity, it is doubtful, even given the inflated audience potential, that the necessary
improvements would have been obtained to accommodate these spectators. The court's
determination shows that it did not believe that the rate of gravel removal was too high or that
there was a danger to the lessee's facilities. It is well established that we will not disturb a
determination by the lower court when it is supported, as here, by substantial evidence.
when it is supported, as here, by substantial evidence. Sievers v. Diversified Mtg. Investors,
95 Nev. 811, 817, 603 P.2d 270, 274 (1979); Harris v. Shell Development Corp., 95 Nev.
348, 351, 594 P.2d 731, 733 (1979); Bird v. Mason, 77 Nev. 460, 461, 366 P.2d 338, 338-39
(1961).
2. Attendance Counters.
[Headnote 3]
Paragraph 4 of the October 21, 1970 lease provided that persons selected by Lessor
known as counters' shall be placed at the gate to insure an accurate count of . . . ticket sales .
. . and that such counters' are to be supplied at the expense of Lessee. The amended lease of
April 1, 1971 provided that the lessee would instead send lessor its tax return each year and
that lessor could audit lessee's books. The trial court found [t]hat notwithstanding the change
in paragraph 4, each of the parties by conduct and written memorandum agreed to be
governed by the provisions of paragraph 4 contained in the lease of October 21, 1970.
Appellant contends this finding of modification was clearly erroneous. We disagree.
[Headnotes 4-6]
Parties may mutually consent to enter into a valid agreement to modify a former contract.
Holland v. Crummer Corp., 78 Nev. 1, 7, 368 P.2d 63, 66 (1962). And parol evidence may be
used to show an agreement to modify. Silver Dollar Club v. Cosgriff Neon Co., 80 Nev. 108,
110, 389 P.2d 923, 924 (1964). Similarly, consent to a modification may be implied from
conduct consistent with an asserted modification. Resource Engineering, Inc. v. Siler, 500
P.2d 836, 838-39 (Idaho 1972).
The testimony given by witnesses for both parties was remarkably consistent respecting
the facts that: (1) Paragraph 4 of the 1970 lease controlled; (2) Post-1971 letters and wage
forms evidenced that counters were to be provided by the City and appellant continued to pay
for and the City continued to receive money for such provision; (3) Appellant was persistently
opposed to an audit provision; (4) The parties stipulated that $3,360.55 was paid for the
counters during appellant's state district court receivership and the period of March 4, 1974
and August 21, 1975; and, both parties thought that the change of description was the only
modification.
[Headnote 7]
In order to justify modification, the evidence must be clear and convincing. Ore-Ida Potato
Products, Inc. v. Larsen, 362 P.2d 384, 385 (Idaho 1961). It is clear from appellant's letters
and respondent's responses and other evidence, both oral and written, that the parties did
agree "to be governed by the provisions . . . in the lease of October 21, 1970."
written, that the parties did agree to be governed by the provisions . . . in the lease of
October 21, 1970. The evidence is sufficient to support the trial court's finding of a
modification.
3. The Tax Exemption.
[Headnote 8]
The trial court found that appellant, since 1972, had failed to pay ad valorem taxes as
required by paragraph 6 of the lease and that the amount owed was $8,640.01. The court
found appellant subject to the taxes under NRS 361.157(1) as appellant was a private
corporation using the property to conduct a business for profit.
2
We agree with that court's
determination.
Appellant contends that it is not subject to taxation due to NRS 361.060 which provides
that all lands owned by any municipal corporation are exempt from taxation.
3
Respondent
argues that NRS 361.157 provides the controlling exception that when any exempt real estate
is leased to a business conducted for profit, it is subject to taxation as though the lessee
owned the property. Appellant answers first that subsection 3 of NRS 361.157 states that the
exception in subsection 1 providing for taxation does not apply to property such as an
airport, park, market, fairground or similar property available to the use of the general
public.
4
Secondly, appellant asserts that NRS 361.157(1) does not apply at all to 361.060
since the former is a general exception and cannot control the latter which has one specific
exception of its own. Finally, appellant argues that even if 361.157(1) applied, the property
would not be subject to taxation as the property has been used to provide the City with gravel
and is for a public purpose and intended to be exempt.
[Headnote 9]
This court has held that NRS 361.157 is constitutional as applied to a lessee of the
federal government.
____________________

2
NRS 361.157(1) provides:
When any real estate which for any reason is exempt from taxation is leased, loaned or otherwise
made available to and used by a natural person, association, partnership or corporation in connection with
a business conducted for profit, it is subject to taxation in the same amount and to the same extent as
though the lessee or user were the owner of the real estate.

3
All lands and other property owned by any county, domestic municipal corporation, irrigation,
drainage or reclamation district or town in this state shall be exempt from taxation, except as provided in
NRS 539.213 with respect to certain community pastures.

4
NRS 361.157(3) provides in part: Subsection 1 does not apply to: (a) Property located upon or within the
limits of a public airport, park, market, fairground or upon similar property which is available to the use of the
general public . . . .
applied to a lessee of the federal government. Standard Oil Co. of California v. Pastorino, 94
Nev. 291, 293, 580 P.2d 118, 119 (1978). And a corporation may only be taxed when
property it leases from a government entity is used in connection with a business for profit.
See Clark County v. City of Los Angeles, 91 Nev. 309, 535 P.2d 158 (1975) (municipal water
company); State ex rel. Brennan v. Bowman, 89 Nev. 330, 512 P.2d 1321 (1973) (private
corporation running pollution control facilities).
[Headnote 10]
Although this property may be open to the public under NRS 361.157(3), such factor does
not mean the property is similar to a market, park or fairground. It is not reasonable to infer
that the legislature intended to benefit a privately-owned race track simply because it is open
to the public. Certainly the legislature did not intend to provide an exemption for a
supermarket simply because it is open to the public for business. Cf. Sunset Memorial
Gardens v. Idaho State Tax Commission, 327 P.2d 766 (Idaho 1958) (cemetery open to
public not exempt as a public cemetery); Supervisor of Assessments v. Washington
National Arena Ltd., 402 A.2d 148 (Md.App. 1979) (property with dominating sports arena
not a park). It is clear from the language of NRS 361.157 that it was the intent of the
legislature to limit the facilities described to those operated by a public entity. Had the
legislature intended inclusion, it would have specifically so provided by language to that
effect. This the legislature failed to do. Tax exemptions are based on the accomplishment of
public purpose and not the benefitting of private interests at the expense of taxpayers
generally. Abex Corp. v. Commissioner of Taxation, 207 N.W.2d 37, 41-42 (Minn. 1973);
State v. Ritschel, 20 N.W.2d 673, 676 (Minn. 1945). Moreover, presumptions are against an
intent by the state to provide an exemption and the one claiming exemption must demonstrate
clearly an intent to exempt. See J.C. Penney Insurance Co. v. State Board of Equalization, 157
Cal.Rptr. 1 (Cal.App. 1979); Pacific Northwest Conference of Free Methodist Church v.
Barlow, 463 P.2d 626 (Wash. 1969).
We have considered the remaining issues and summarily reject them.
Mowbray, C. J. and Thompson and Batjer, JJ., concur.
____________
96 Nev. 175, 175 (1980) Armstrong v. State
CHARLES R. ARMSTRONG, Appellant, v. THE STATE
No. 10943
February 6, 1980 605 P.2d 1142
Appeal from denial of motion for a new trial, First Judicial District Court, Carson City;
Frank B. Gregory, Judge.
Defendant was convicted in the district court of the infamous crime against nature for
commission of an act of sodomy upon a 17-year-old, and he appealed. The Supreme Court
held that trial judge, in considering defendant's motion for new trial based on evidence State
had not made available, properly concluded that evidence would not have affected outcome.
Affirmed.
Richard H. Bryan, Attorney General, Carson City; David B. Small, District Attorney, and
Frann Moore, Deputy District Attorney, Carson City, for Respondent.
Criminal Law.
In prosecution for infamous crime against nature for commission of an act of sodomy against a
17-year-old, trial court, in considering defendant's motion for new trial, properly concluded that laboratory
report which defendant intended to use to impeach victim but which State had not made available would
not have affected the outcome especially where another report confirmed that an act of sodomy had
occurred. NRS 201.190.
OPINION
Per Curiam:
Charles R. Armstrong appeals from the denial of his motion for a new trial. Appellant was
convicted of the infamous crime against nature for the commission of an act of sodomy upon
a seventeen year old.
1

Appellant asserts that a new trial is required because the State had not made available for
his defense a laboratory report on a pair of underpants worn by the victim showing that no
vaseline-type substance was discovered on the underpants.
____________________

1
Appellant was convicted in 1976 under NRS 201.190, which was later amended, 1977 Nev. Stats. ch. 430,
84 at 866, and 1977 Nev. Stats. ch. 598, 17 at 1632.
96 Nev. 175, 176 (1980) Armstrong v. State
At trial, the victim had testified that appellant had smeared a vaseline-type substance all over
my back. It is appellant's contention that the new evidence would have been instrumental in
impeaching the victim, whose testimony had been instrumental in the identification of
appellant. A report verifying the presence of sperm in the victim's rectum confirmed that an
act of sodomy had occurred.
The trial court, in denying the relief sought, found, inter alia, that the evidence would in
no way have affected the outcome of the trial.
In United States v. Agurs, 427 U.S. 97 (1976), the United States Supreme Court
considered the effect of nondisclosure of evidence by a prosecutor. In that case the defendant
had been adjudged guilty of second degree murder. The defense interposed at trial had been
self-defense; the prosecutor had withheld the criminal record of the victim which evidenced a
violent nature. In refusing to grant a new trial, the federal district court, after finding that the
withheld record was merely cumulative of evidence adduced at trial that the victim possessed
two knives on his person on the day of his death, held that the new evidence would not raise a
reasonable doubt as to guilt.
The Court of Appeals reversed. United States v. Agurs, 510 F.2d 1249 (D.C.Cir. 1975).
The Supreme Court reinstated the district court decision stating that evidence withheld by a
prosecutor, in order to constitute grounds for a new trial, must be material to the guilt or
innocence of the defendant.
2
As the district court had found such materiality wanting, a new
trial had been properly denied.
We find Agurs dispositive of this appeal. The district judge, who presided over the trial
and, in considering the instant motion, reviewed the trial transcript, was in the best position to
assess the possible impact of the new evidence. The record discloses that the evidence against
appellant adduced at trial was quite strong, see United States v. Agurs, supra, and supports
the district judge's conclusion that the new evidence would not have affected the outcome.
Accordingly, the judgment is affirmed.
____________________

2
This standard was distinguished from the harsher standard that the new evidence would have made acquittal
likely. That standard is usually applied to evidence discovered from a neutral source. See, e.g., United States v.
Thompson, 493 F.2d 305 (9th Cir. 1974), cert. denied, 419 U.S. 834 (1974); State v. Crockett, 84 Nev. 516, 444
P.2d 896 (1968).
____________
96 Nev. 177, 177 (1980) In re Crow
In the Matter of RALPH CROW, Attorney at Law
No. 12377
February 6, 1980
ORDER
The State Bar of Nevada, Northern Disciplinary Board, having submitted the findings and
recommendations of its hearing panel in the above-entitled matter, and no appeal therefrom
having been filed by respondent Ralph Crow, we hereby authorize, pursuant to SCR 102(6),
SCR 105(3)(a), and SCR 121, the publication of the following letter of reprimand:
Ralph Crow, Attorney at Law, 311 W. King Street, Carson City, Nevada 89701
It is the distasteful duty of this Board to reprimand you for your breach of the duties and
responsibilities you undertook when you solemnly took an oath before being admitted to the
practice of law.
A Panel of the Northern Disciplinary Board has found you guilty, after a hearing, of a
serious dereliction of your duties to a client. Your transgressions were:
First, undertaking to represent a client in a case and accepting a retainer therefore, and not
diligently pursuing the matter;
Second, failing to communicate an offer of settlement to your client;
Third, failing to advise your client of the discovery procedures which had been instituted
by the opposing party and failing to respond in a timely manner to such discovery;
Fourth, neither responding to nor opposing a Motion for Sanctions, which resulted in the
action instituted by you being dismissed with prejudice against your client; and
Fifth, failing to accept service of the Complaint by the State Bar or responding thereto.
Lawyers presumably are a chosen few who, by virtue of education, integrity and
responsibility, are vested with the privileges and concomitant responsibilities of aiding and
assisting the general public in their daily social and economic problems. In the discharge of
that trust, the highest standards of fidelity are required and your violation of those standards
require your censure. You have disgraced yourself and have blemished this honorable
profession.
You are therefore publicly reprimanded.
Dated this 19th day of December, 1979.
96 Nev. 177, 178 (1980) In re Crow
s/Jack I. McAuliffe, Chairman, Hearing Panel, State Bar of Nevada, Northern Disciplinary
Board.
We further authorize the assessment of costs as recommended, pursuant to SCR 105(3)(a)
and SCR 120.
It is so ORDERED.
____________
96 Nev. 178, 178 (1980) Estate of Hughes v. First Nat'l Bank
IN THE MATTER OF THE ESTATE OF HOWARD ROBARD HUGHES, Jr., Deceased,
MINORS AND ABSENT HEIRS, Appellants, v. FIRST NATIONAL BANK OF NEVADA
AND WILLIAM R. LUMMIS, CO-SPECIAL ADMINISTRATORS, and TEXAS
COMMERCE BANK NATIONAL ASSOCIATION, Respondents.
No. 10292
February 7, 1980 605 P.2d 1149
Appeal from an order approving creditor's claims, Eighth Judicial District Court, Clark
Representatives of minor and absent heirs appealed from an order of the district court
approving a creditor's claims. The Supreme Court, Gregory, Sr. D. J., held that, because no
such unrepresented heirs existed, they had no standing to appeal.
Appealed dismissed.
George M. Dickerson and Charles William Johnson, Las Vegas, for Appellants.
Morse-Foley, Las Vegas; Andrews, Kurth, Campbell & Jones, Houston, Texas, and
Derelle L. Norwood, Las Vegas, for Respondents Co-Special Administrators.
Deaner, Deaner & Reynolds, Las Vegas, for Respondent Texas Commerce Bank National
Association.
Only aggrieved party has standing to appeal to Supreme Court. NRAP 3A(a).
2. Courts.
Party is aggrieved by action of probate court and may appeal when either personal right or right of
property is adversely and substantially affected. NRAP 3A(a).
3. Executors and Administrators.
Where minor and absent heirs of decedent were nonexistent, they had no standing to appeal from order
approving creditor's claims. NRAP 3A(a).
OPINION
By the Court, Gregory, Sr. D.J.:
1

This appeal arises from an order approving Texas Commerce Bank's creditor's claim.
During his lifetime Howard Robard Hughes, Jr., executed a promissory note in the sum
and amount of $3,000,000 due and payable on December 31, 1976, to the order of Texas
Commerce Bank. On April 5, 1976, Howard Robard Hughes, Jr., died in the State of Texas.
Probate proceedings were commenced in Texas as well as Nevada. The Texas Commerce
Bank caused a claim for the promissory note to be filed against the Hughes' estate in the
Texas probate court on September 20, 1976, and obtained an order of that court approving the
claim on January 17, 1977. The First National Bank of Nevada and William Lummis were
appointed Co-Special Administrators of decedent's estate in the Nevada proceeding, and
Notice to Creditors was first published on July 3, 1976, pursuant to NRS 147.010.
2

On April 7, 1977, Texas Commerce Bank moved the Nevada probate court for leave to file
a late creditor's claim. Following a hearing the Nevada court granted leave to file a late claim
pursuant to NRS 147.040(2) on May 12, 1977.
3
Subsequently, the representatives of the
minor and absent heirs were granted a rehearing, and thereafter on June 10, 1977, the
Nevada court set aside its earlier decision allowing the filing of the late claim.
____________________

1
Acting Chief Justice Gordon Thompson designated Honorable Frank B. Gregory, Senior District Judge of
Nevada Court System, to sit in this case in place of The Honorable John Mowbray, Chief Justice, who
voluntarily disqualified himself. Nev. Const. art 6, 19; SCR 10.

2
The 90 day period, provided under NRS 147.040(1), during which creditors could file claims expired on
October 1, 1976.

3
Nevada's nonclaim statute, NRS 147.040(2), provides:
If a claim is not filed with the clerk within 90 days after the first publication of the notice, the claim
shall be forever barred; but when it is made to appear, by the affidavit of the claimant or by other proof to
the satisfaction of the court or judge, that the claimant had no notice as provided in this chapter, the claim
may be filed at any time before the filing of the final account.
a rehearing, and thereafter on June 10, 1977, the Nevada court set aside its earlier decision
allowing the filing of the late claim. Finally, after a second rehearing and having received the
affidavit of Stephen D. Bunten of the Texas Commerce Bank, the Nevada court reversed
itself for a second time and on July 6, 1977, allowed Texas Commerce Bank to file its late
claim for the $3,000,000 promissory note. See Gardner Hotel Sup. v. Estate of Clark, 83 Nev.
388, 432 P.2d 495 (1967).
The instant claim was approved by the Co-Special Administrators on July 8, 1977, and by
the Nevada court on July 11, 1977. The representatives for the minor and absent heirs
received notice of these approvals on September 21, 1977, and timely filed Notice of Appeal
on October 4, 1977. Respondents moved this court to dismiss the instant appeal on the
ground that appellants are not aggrieved parties, and thus lack standing. The motion to
dismiss was denied, without opinion on July 11, 1979.
We have determined to reconsider whether appellants are aggrieved parties within the
meaning of NRAP 3A(a).
[Headnotes 1, 2]
Only an aggrieved party has standing to appeal to this court. NRAP 3A(a); In re Ray's
Estate, 68 Nev. 355, 233 P.2d 393 (1951); Kenney v. Hickey, 60 Nev. 187, 105 P.2d 192
(1940); Kondas v. Washoe County Bank, 50 Nev. 181, 254 P. 1080 (1927). We have held
that a party is aggrieved by the action of a probate court when either a personal right or right
of property is adversely and substantially affected. In re Ray's Estate, supra; see also Bates v.
Nevada Savings and Loan Assn., 85 Nev. 441, 456 P.2d 450 (1969); Nevada Land &
Mortgage Co. v. Lamb, 90 Nev. 247, 524 P.2d 326 (1974).
[Headnote 3]
The appellantsthe minor and absent heirsmust be parties aggrieved by the probate
court's approval of the claim of Texas Commerce Bank against Hughes' estate, to have
standing to justify the appeal. They must be actual, existing parties, not mere figments of an
overly zealous imagination. See NRCP 17(a). In this matter, the probate court after due
consideration, on November 13, 1978, found that no such unrepresented heirs exist, and
accordingly entered an order vacating the appointment of attorneys to represent the minor and
absent heirs. There has been no showing that the court abused its discretion in reaching this
conclusion, nor has this order been successfully attacked. In fact, no appeal was taken from
this order. See NRS 155.190(11). It follows, that appellants, who are only non-existent
heirs, are not parties pursuant to NRCP 17(a) and therefore cannot be aggrieved by the
approval of the claim of Texas Commerce Bank. Cf. Miller v. Clark, 356 P.2d 965 {Colo.
and therefore cannot be aggrieved by the approval of the claim of Texas Commerce Bank. Cf.
Miller v. Clark, 356 P.2d 965 (Colo. 1960). The appellants are not aggrieved parties, and the
instant appeal must therefore be dismissed.
Since we are compelled to dismiss this appeal because of appellants' lack of standing we
do not reach the question of whether the Nevada probate court abused its discretion in either
permitting the late filing of the claim or in the subsequent approval of such claim, nor do we
consider the question whether the approval of the claim is an appealable order.
Accordingly, we vacate our prior order and dismiss the appeal.
____________
96 Nev. 181, 181 (1980) Round Hill Gen. Improvement v. B-Neva
ROUND HILL GENERAL IMPROVEMENT DISTRICT, a Quasi-Municipal Corporation,
Appellant, v. B-NEVA, INC., a Nevada Corporation, and STEPHEN H. BOURNE and
NORMA BOURNE, Individually, Respondents.
No. 10295
February 8, 1980 606 P.2d 176
Appeal from summary judgment, Ninth Judicial District Court, Douglas County;
Llewellyn A. Young, Judge.
Action was brought for foreclosure on certain properties. The district court granted a
motion for summary judgment upon doctrine of res judicata, and appeal was taken. The
Supreme Court, Batjer, J., held that there remained genuine issues of fact, both as to identity
of subject property in present and former suit, and as to identity of causes of actions, thus
precluding summary judgment.
Rahbeck, McMorris, Susich & Kolvet, Minden, for Appellant.
Stephens & Kosach, Reno, for Respondents.
Upon question of propriety of a summary judgment and whether genuine issues of fact have been created
by the pleadings or proof offered, the Supreme Court must accept as true the allegations
and reasonable inferences favorable to the position of appellant.
the Supreme Court must accept as true the allegations and reasonable inferences favorable to the position
of appellant.
2. Judgment.
Party pleading a former judgment as a bar to present action must assume burden of proving, if the fact
does not appear from the record, that the subject matter or cause of action in the former suit was identical
with that now in suit.
3. Judgment.
In action for foreclosure on certain properties, there remained genuine issues of fact, both as to identity of
subject property in present and former suits, and as to identity of causes of actions, thus precluding
summary judgment upon doctrine of res judicata.
4. Judgment.
True test of identity of causes of action, as that term is used in connection with plea of former
adjudication, is the identity of the facts essential to their maintenance; when same evidence supports both
the present and the former cause of action, the two causes of action are identical.
5. Judgment.
Where claims arise at different times out of same transaction, a judgment as to one or more of such
claims is no bar to a subsequent action on the claims arising thereafter.
OPINION
Appellant filed suit for foreclosure on certain properties. The district court granted a
motion for summary judgment upon the doctrine of res judicata, after it had found the claims
asserted in the instant action were identical to those raised in Round Hill General
Improvement District, plaintiff, vs. B-Neva, Inc., et al., defendants, and B-Neva, Inc., et al.,
cross-claimants, vs. Northwestern Mutual Life Insurance Company, et al., cross-defendants,
In the First Judicial District Court of the State of Nevada, in and for the County of Douglas,
Case No. 5101, hereinafter referred to as No. 5101; and B-Neva, Inc., et al., vs. Round Hill
General Improvement District, In the First Judicial District Court of the State of Nevada, in
and for the County of Douglas, Case No. 6207, hereinafter referred to as No. 6207, wherein
the parties filed a stipulation for judgment which among other things provided for dismissal
with prejudice.
For the reason recited below, we reverse the judgment of the district court.
Appellant contends that res judicata is incorrectly applied here because certain matters
were not litigated nor decided in Case No. 5101 and Case No. 6207, and that it did not intend
to preclude its present action by its stipulation in those cases.
preclude its present action by its stipulation in those cases. Appellant further maintains that its
claim in the instant action accrued subsequent to settlement of those cases.
[Headnote 1]
Initially, we note that upon the question of the propriety of a summary judgment and
whether genuine issues of fact have been created by the pleadings or proof offered, we must
accept as true the allegations and reasonable inferences favorable to the position of appellant.
Berge v. Fredericks, 95 Nev. 183, 591 P.2d 246 (1979).
[Headnotes 2, 3]
We have held that the party pleading a former judgment as a bar to the present action
must assume the burden of proving, if the fact does not appear from the record, that the
subject matter or cause of action in the former suit was identical with that now in suit. Sweet
v. Sweet, 49 Nev. 254, 259, 243 P. 817, 818 (1926). Here we find that there remain genuine
issues of fact, both as to the identity of the subject property in the instant and former suits,
and as to the identity of the causes of action.
In its decision, the trial court found that the parcels of property affected in Case No. 5101
and the instant case were the same. In the stipulation of judgment filed in Cases 5101 and
6207, however, appellant agreed to release all liens for assessments on property held in the
name of B-Neva, Inc. and Nevada Allied Industries, Inc. which was designated as general
forest and general commercial. Appellant has disputed the contention that all of the property
which is the subject of the instant action is included in the designation of general forest and
general commercial. Taking the allegations of appellant as true precludes a finding that the
entire subject matter of the suits is identical. Therefore, a genuine issue of material fact exists
regarding the identity of the subject matter in the former and present suits.
[Headnotes 4, 5]
In response to appellant's claims, respondents contend that because appellant requested an
acceleration of all assessments in Case No. 5101, that the doctrine of res judicata precludes
appellant from claiming delinquent assessments in this action when the stipulation provided
that all such claims were to be dismissed with prejudice. Appellant, on the other hand,
contends that its present claims are based upon new delinquencies, arising after the entry of
judgment in Case Nos. 5101 and 6207. The true test of identity of causes of action,' as that
term is used in connection with the plea of former adjudication, is the identity of the facts
essential to their maintenance. . . .
used in connection with the plea of former adjudication, is the identity of the facts essential to
their maintenance. . . . The authorities agree that when the same evidence supports both the
present and the former cause of action, the two causes of action are identical. . . . Silverman
v. Silverman, 52 Nev. 152, 169-70, 283 P.593, 598 (1930) (Coleman, J., concurring). Thus, if
appellant's claim is based upon evidence of new and independent delinquencies, there can be
no such identity. Where claims arise at different times out of the same transaction, a judgment
as to one or more of such claims is no bar to a subsequent action on the claims arising
thereafter. Albuquerque Broadcasting Co. v. Bureau of Revenue, 216 P.2d 698 (N.M. 1950).
Reversed and remanded for further proceedings not inconsistent with this opinion.
Mowbray, C. J., and Thompson and Gunderson, JJ., and Fondi, D. J.,
1
concur.
____________________

1
Mr. Justice Noel Manoukian voluntarily disqualified himself and took no part in this decision. The
Governor, pursuant to Art. VI, 4, of the Constitution, designated Judge Michael E. Fondi of the First Judicial
District to sit in his stead.
____________
96 Nev. 184, 184 (1980) Sheriff v. Hodes
SHERIFF, WASHOE COUNTY, NEVADA, Appellant, v. WALTER
RUSSELL HODES and ERIC ALAN DICUS, Respondents.
No. 11779
February 15, 1980 606 P.2d 178
Appeal from order granting pretrial petition for writ of habeas corpus, Second Judicial
District Court, Washoe County; John E. Gabrielli, Judge.
Defendants charged with attempted murder sought writ of habeas corpus. The district court
granted the relief and sheriff appealed. The Supreme Court held that the evidence presented
to the grand jury was sufficient to permit an inference that defendants acted with specific
intent to kill.
Reversed.
and Donald K. Coppa, Deputy District Attorney, Washoe County, for Appellant.
William N. Dunseath, Public Defender, and Lew Carnahan, Deputy Public Defender,
Washoe County, for Respondent Eric Dicus.
Lawrence J. Semenza, Reno, for Respondent Walter Hodes.
1. Indictment and Information.
Sole function of court in reviewing challenge to sufficiency of evidence presented to the grand jury is to
determine whether all the evidence received at the grand jury proceeding established probable cause to
believe that offense had been committed and that defendant had committed it; finding of probable cause
may be based on slight, even marginal, evidence as it does not involve a determination of the guilt or
innocence of an accused.
In order to bind defendants over for trial on charge of attempted murder, state was not required to negate
all inferences which might explain their conduct but only to present enough evidence to support reasonable
inference that the defendant had the specific intent to kill the victim.
3. Criminal Law; Habeas Corpus.
Question of sufficiency of the evidence on the issue of malice is not a question to be determined by the
trial judge at a hearing on petition for writ of habeas corpus challenging such sufficiency of evidence
before the grand jury proceeding, nor by the Supreme Court on appeal, but rather by the trier of fact at the
trial.
Evidence that automobile in which defendants were riding was observed swerving from lane to lane, that
it eventually became adjacent to another automobile, that the two automobiles proceeded side by side, and
that, shortly thereafter, driver of the other automobile was found leaning against the window of his
automobile bleeding profusely from a wound in the neck and testimony that one defendant admitted
pointing a loaded revolver out the passenger window with both hands and firing one shot was sufficient to
permit grand jury to make reasonable inference of specific intent to kill; and thus to bind defendants over
for trial on charge of attempted murder.
OPINION
Per Curiam:
By way of indictment, respondents were charged with the attempted murder of Steven
Malvey, and aiding and abetting one another in the commission of said offense.
1
Thereafter,
respondents petitioned the district court for a pretrial writ of habeas corpus alleging that their
restraint was unlawful in that there was not sufficient evidence presented at the Grand Jury
Proceeding in this matter to constitute probable cause for remanding [them] to District
Court upon the charges stated in the Indictment."
____________________

1
The indictment reads:
ATTEMPTED MURDER, a violation of NRS 208.070 and NRS 195.020, being an attempt to
violate NRS 200.010, a felony, . . .
Jury Proceeding in this matter to constitute probable cause for remanding [them] to District
Court upon the charges stated in the Indictment. This is an appeal from an order granting
respondents' petition. The lower court found that the evidence presented to the grand jury was
marginal to support the charge of attempted murder; and specifically, that such evidence
was insufficient to establish, by permissible inference, the element of specific intent to kill.
We disagree.
The grand jury was presented with evidence that on January 22, 1979, Walter Hodes and
Eric Dicus, as driver and passenger respectively, were proceeding westbound in an erratic
manner on Moana Lane in Reno, Nevada. Swerving from lane to lane, respondents eventually
came adjacent to another car driven by Steven Malvey. The two cars proceeded side by side,
swerving intermittently, up Moana Lane. Shortly thereafter, a witness discovered Malvey
leaning against the window of his car, bleeding profusely from a wound in the neck. A police
detective testified that respondent Dicus admitted pointing a loaded .357 caliber revolver out
his passenger window with both hands and firing one shot.
[Headnote 1]
The sole function of this court is to determine whether all of the evidence received at the
grand jury proceeding establishes probable cause to believe that an offense has been
committed and that the defendants committed it. State v. von Brincken, 86 Nev. 769, 476
P.2d 733 (1970). The finding of probable cause may be based on slight, even marginal
evidence, Sheriff v. Badillo, 95 Nev. 593, 600 P.2d 221 (1979); Perkins v. Sheriff, 92 Nev.
180, 547 P.2d 312 (1976), because it does not involve a determination of the guilt or
innocence of an accused. See Kinsey v. Sheriff, 87 Nev. 361, 487 P.2d 340 (1971). We are
not now concerned with the prospect that the evidence presently in the record may, by itself,
be insufficient to sustain a conviction. Miller v. Sheriff, 95 Nev. 255, 592 P.2d 952 (1979);
McDonald v. Sheriff, 89 Nev. 326, 512 P.2d 774 (1973). Accordingly, the state need not
produce the quantum of proof required to establish the guilt of the accused beyond a
reasonable doubt. Kinsey v. Sheriff, supra.
[Headnote 2]
Specifically, in the case at bar, to bind over the respondents for trial, the state is not
required to negate all inferences which might explain their conduct, but only to present
enough evidence to support a reasonable inference that respondent Dicus discharged the
revolver with the specific intent to kill the victim. Cf. Abbott v. Sheriff, 87 Nev. 397, 487
P.2d 1067 (1971); Kinsey v. Sheriff, supra; Johnson v.
Kinsey v. Sheriff, supra; Johnson v. State, 82 Nev. 338, 418 P.2d 495 (1966).
[Headnote 3]
The determination of intent, i.e., a person's state of mind at a particular moment, as an
element of crime, is a subjective matter, and, therefore, is seldom susceptible of proof by
direct evidence. Accordingly, the trier of fact is allowed and invariably must resort to
inferences from the attendant circumstances in establishing this element of the offense.
Jensen v. Sheriff, 89 Nev. 123, 508 P.2d 4 (1973); Wilson v. State, 85 Nev. 88, 450 P.2d 360
(1969). Particularly, when the inference of malice has been at issue, this court has held that
the matter is not a question to be determined by the trial judge at a hearing upon a petition for
a writ of habeas corpus, nor by this court on appeal, but by the trier of fact at the trial of the
case. Thedford v. Sheriff, 86 Nev. 741, 476 P.2d 25 (1970).
[Headnote 4]
With due regard to these long-established principles, we must conclude that the grand jury
could reasonably infer from the evidence presented, that when respondent Dicus discharged
the weapon, he did so with the intent to kill the victim. On numerous occasions, this court has
held that a jury may find a reasonable inference of a specific intent to kill from the facts
proved, including those establishing the overt act itself. E.g., Cooper v. State, 94 Nev. 744,
587 P.2d 1318 (1978). Cf. Culpepper v. Sheriff, 92 Nev. 618, 555 P.2d 1231 (1976); Hearne
v. Sheriff, 92 Nev. 174, 547 P.2d 322 (1976); Perkins v. Sheriff, supra; Maupin v. Sheriff, 90
Nev. 99, 520 P.2d 237 (1974).
Consequently, we find that such evidence and the inferences which reasonably may be
drawn therefrom, constitutes probable cause to believe that the aforementioned charges in the
indictment were committed and that the defendants committed them. Accordingly, the district
court's order granting respondents' petition for a writ of habeas corpus is reversed.
____________
96 Nev. 188, 188 (1980) Kelly Broadcasting v. Sovereign Broadcast
KELLY BROADCASTING CO., INC., a Nevada Corporation, Appellant and
Cross-Respondent, v. SOVEREIGN BROADCAST, INC., Respondent and Cross-Appellant.
No. 10150
February 21, 1980 606 P.2d 1089
Appeal from default judgment entered against respondent; cross-appeal from order
amending default judgment and from judgment of dismissal entered against appellant, First
Judicial District Court, Carson City; Frank B. Gregory, Judge.
Dissolved corporation appealed from entry of default judgment against it by the district
court in an action in both tort and contract. The Supreme Court, Gunderson, J., held that: (1)
statute governing pending actions against dissolved corporations applied to require
substitution of dissolution trustees or receivers; (2) trial court did not abuse its discretion in
entering default judgment against dissolved corporation; (3) trial court did not err in refusing
award of attorney fees; (4) trial court did not err in allowing recovery for some items not
included in amended complaint while deleting other items; and (5) claimant was not entitled
to actual or punitive damages beyond amount of liquidated damages.
Affirmed.
Manoukian and Thompson, JJ., dissented in part.
Daniel R. Walsh, Carson City, for Appellant.
James S. Beasley, Reno, for Respondent.
1. Corporations.
At common law, legally dissolved corporation is dead, and dissolution terminates corporation's existence
for all purposes.
2. Corporations.
Pursuant to statute governing pending actions against dissolved corporations, upon dissolution of
corporation, directors become trustees of the corporation with full power to wind up the business, and such
directors, as trustees, are suable for corporate debts. NRS 78.590, 78.595.
3. Corporations.
In action against corporation wherein notices of appeal were filed prior to corporation's dissolution, no
final judgment had been rendered for purposes of statute governing pending actions against dissolved
corporations, which statute required substitution of dissolution trustees or receivers in such pending
actions. NRS 78.615.
4. Corporations.
Statute which requires that dissolution trustees or receivers be substituted in pending actions against
dissolved corporations contemplate notice to trustees or receivers or, if not practicable, to attorney of
record, and does not permit party bringing suit to forego giving notice, to have its own
claims decided, and to have claims of its adversary ignored or dismissed.
does not permit party bringing suit to forego giving notice, to have its own claims decided, and to have
claims of its adversary ignored or dismissed. NRS 78.615.
5. Corporations.
Tort and contract claimant's motion to dismiss dissolved corporation's cross-appeal served as notice to
corporation's attorney of record so that action would not abate under statute governing pending actions
against dissolved corporations. NRS 78.615.
6. Pretrial Procedure.
Under rule sanctioning entry of default judgment for failure to answer interrogatories, incomplete or
evasive answer is treated as failure to answer. NRCP 37(a)(3), (d).
Question on appeal is not whether Supreme Court would as original matter have entered default judgment
as sanction for violating discovery rule, but rather whether trial court abused its discretion in so doing.
NRCP 37(a)(3), (d).
Trial court did not abuse its discretion in entering default judgment on basis of dissolved corporation's
failure to complete discovery as ordered, where answers to interrogatories, which were filed two years late,
were unsatisfactory. NRCP 37(b)(2)(E).
9. Costs.
Absent statute or contract authorizing such award, attorney fees may not be recovered by party to
litigation.
10. Costs.
Attorney fees may be awarded where plaintiff has not recovered more than $10,000. NRS 18.010,
subd. 2(a).
11. Costs.
Attorney fees could not be recovered by tort and contract claimant who had been awarded more than
$10,000 in his suit against dissolved corporation, where no contract existed which would allow payment of
attorney fees. NRS 18.010, subd. 2(a).
12. Corporations.
Where trial court entered default judgment against dissolved corporation because corporation willfully
failed to comply with order of the court regarding interrogatories, corporation had filed counterclaim in the
action and was represented by counsel, and evidence existed to support items in prayer for damages, trial
court did not err in allowing recovery for items which had been omitted from prayer of amended complaint,
nor did it err in deleting other items which had also been so omitted. NRCP 54(c).
13. Judgment.
Tort and contract claimant who failed to include certain items in prayer for damages of his amended
complaint ordinarily would not be entitled to amend his prayer once default judgment had been entered.
NRCP 54(c).
14. Damages; Judgment.
Where default judgment is neither for a sum certain, nor for a sum as can be made certain from
computation, plaintiff must prove his damages. NRCP 55(b).
15. Damages.
Where record in tort and contract action against dissolved corporation in which default judgment was
entered did not mandate any finding of actual or punitive damages in excess of amount of
liquidated damages, fact that claimant pleaded damages "in excess of $10,000," did
not entitle him to minimum of $10,000 lost profits, $10,000 punitive damages, and
$10,000 reimbursement for monies expended as result of breach of contract.
of actual or punitive damages in excess of amount of liquidated damages, fact that claimant pleaded
damages in excess of $10,000, did not entitle him to minimum of $10,000 lost profits, $10,000 punitive
damages, and $10,000 reimbursement for monies expended as result of breach of contract. NRCP 55(b).
16. Damages.
To justify money judgment, amount as well as fact of damage must be proved by substantial evidence;
law does not permit arriving at such amount by pure conjecture.
17. Damages.
In order to award punitive damages, trial court must find substantial evidence of malice in fact.
18. Damages.
Plaintiff is never entitled to punitive damages as matter of right; their allowance or denial rests entirely
within discretion of trier of fact.
OPINION
The dispute in this case arose when respondent Sovereign Broadcast Inc. ceased to operate
and manage an AM radio station in Carson City, Nevada, in October, 1971. The appeals are
taken from the district court's entry of default judgment against Sovereign for failure to
comply with discovery orders; from a subsequent reduction of the amount of liquidated
damages; and from entry of a judgment of dismissal on appellant Kelly Broadcasting Co.
Inc.'s claims for unliquidated damages and punitive damages.
Before addressing the merits of the appeal and cross-appeal, we must consider Kelly's
motion to dismiss the cross-appeal and to enter judgment in its favor, tendered on the ground
that Sovereign is a dissolved corporation. Sovereign's counsel acknowledged Sovereign's
dissolution as of October, 1977.
[Headnotes 1, 2]
At common law, a legally dissolved corporation is dead. Dissolution terminates the
corporation's existence for all purposes. W. Fletcher, Cyclopedia of the Law of Private
Corporations 8113 (rev.perm.ed. 1979). Nevada has changed the rule by statute. Upon
dissolution, directors become trustees of the corporation with full power to wind up the
business.
1
NRS 78.590. The directors as trustees are suable for corporate debts. NRS 78.595.
____________________

1
But see NRS 78.600 and NRS 78.605 which allow a creditor or stockholder to petition the district court to
either continue the dissolution trustees or appoint receivers to settle unfinished business. Cf. Robt. Pierce Co. v.
Sherman Gardens, 82 Nev. 395, 419 P.2d 781 (1966) where the dissolved corporation was plaintiff.
[Headnote 3]
Here, claims based in tort and contract were filed against the dissolved corporation. NRS
78.615 states:
78.615 Abatement of pending actions; substitution of dissolution trustees or
receivers. If any corporation organized under this chapter becomes dissolved by the
expiration of its charter or otherwise, before final judgment obtained in any action
pending or commenced in any court of record of this state against the corporation, the
action shall not abate by reason thereof, but the dissolution of the corporation being
suggested upon the record, and the names of the trustees or receivers of the corporation
being entered upon the record, and notice thereof served upon the trustees or receivers,
or if such service be impracticable upon the counsel of record in such case, the action
shall proceed to final judgment against the trustees or receivers by the name of the
corporation.
Inasmuch as the notices of appeal were filed prior to dissolution, we believe there has been no
final judgment for purposes of Ch. 78, Nev. Rev. Stats. Therefore, NRS 78.615 applies.
[Headnotes 4, 5]
Kelly argues it was Sovereign's responsibility to suggest dissolution on the record, name
the directors as dissolution trustees, and give notice. We do not agree. NRS 78.615
contemplates notice to the trustees (or receivers) or, if not practicable, to the attorney of
record. This seems to require action by the party suing the corporation. In any event, it
certainly does not permit the party bringing suit to forego giving notice, to have its own
claims decided, and to have the claims of its adversary ignored or dismissed. We will deem
appellant's motion as a notice to the corporation's attorney of record, and turn to the merits of
the case.
Appellant Kelly filed this action to recover damages for fraud, malice, negligence,
intentional failure to perform a management contract, and conspiracy. It sought cancellation
of a contract and of a stock certificate issued to Sovereign. It prayed for actual and punitive
damages in excess of one million dollars. Kelly claimed Sovereign breached an agreement to
manage the AM radio station; that Sovereign's officers and employees committed fraud in
their dealings with William Cody Kelly; that Sovereign's officers and agents converted
certain equipment belonging to appellant; and that Sovereign's officers guaranteed to William
Cody Kelly that the AM station would make a profit within one year.
[Headnotes 6-8]
1. Sovereign appealed from the entry of a default judgment pursuant to NRCP
37(b)(2)(E). The amended answer was stricken and the court set a hearing to determine the
amount of unliquidated damages. The basis for the imposition of sanctions was Sovereign's
failure to complete discovery as ordered. The answers to interrogatories, which Sovereign
filed two years late, were unsatisfactory. The trial court noted that Sovereign had intentionally
and in bad faith sought to avoid and delay trial, thereby prejudicing appellant's case.
Sovereign argues on appeal that by striking the amended answer, the lower court denied
respondent due process. Because the interrogatories related only to the second and fourth
defenses, Sovereign argued that, at most, the court could have denied any right to prove up on
those defenses. We do not agree. See Skeen v. Valley Bank of Nevada, 89 Nev. 301, 511 P.2d
1053 (1973). NRCP 37(d) sanctions entry of a default judgment for failure to answer
interrogatories. An incomplete or evasive answer is treated as a failure to answer. NRCP
37(a)(3). The question is not whether this court would as an original matter have entered a
default judgment as a sanction for violating a discovery rule; it is whether the trial court
abused its discretion in so doing. Affanato v. Merrill Bros., 547 F.2d 138, 140-141 (First Cir.
1977); cf. National Hockey League v. Met. Hockey Club, 427 U.S. 639, 642 (1976) (per
curiam). See Kerley v. Aetna Cas. & Sur. Co., 94 Nev. 710, 585 P.2d 1339 (1978). We do not
find an abuse of discretion in this case.
[Headnotes 9-11]
2. The district court entered an oral award for liquidated damages on August 2, 1976. The
court's written order was not filed with the clerk until October 14, 1976. Thereafter, pursuant
to motion by Sovereign, the district court deleted an award of $10,000 as attorneys' fees and
reduced the award of liquidated damages to $18,126.59.
Absent a statute or contract authorizing such an award, attorney's fees may not be
recovered by a party to litigation. Guild v. First Nat'l Bank of Nev., 95 Nev. 621, 600 P.2d
238 (1979). Attorney's fees may be awarded where the plaintiff has not recovered more than
$10,000. NRS 18.010(2)(a). Here, the court awarded plaintiff over $10,000. As no contract
allowed payment of attorneys' fees, the court did not err in refusing such an award.
3. On respondent's motion, the trial court deleted from the default judgment items which
had been omitted from the prayer of the amended complaint; however, the court allowed
recovery for other items set forth in Para.
prayer of the amended complaint; however, the court allowed recovery for other items set
forth in Para. VIII, (a) and (f), even though they also had been omitted from the prayer.
2

[Headnotes 12, 13]
Appellant, having failed to include the amounts set forth in Paragraph VIII, ordinarily
would not be entitled to amend his prayer once default judgment had been entered. NRCP
54(c).
3
In this case, the trial court entered respondent's default because respondent willfully
failed to comply with an order of the court. Respondent had filed a counterclaim in the action
and was represented by counsel. Evidence to support the items set forth in Para. VIII, (a)
and (f) had been presented at trial. Under these circumstances, the trial court did not err in
allowing recovery for items (a) and (f); nor did it err in deleting other items. Cf. Sarlie v. E. L.
Bruce Co., 265 F.Supp. 371, 377 (S.C.N. Y. 1967).
[Headnotes 14, 15]
4. Where a default judgment is neither for a sum certain, nor for a sum which can by
computation be made certain, the plaintiff must prove up his damages. NRCP 55(b); 6
Moore's Federal Practice 55.03[2] (2d ed. 1976); 10 Wright & Miller, Federal Practice and
Procedure: Civil 2688, 284 (1973). The record certainly did not mandate any finding of
further damages, actual or punitive. Appellant contends, however, that because he pleaded
damages in excess of $10,000, he is entitled to a minimum of $10,000 lost profits, $10,000
punitive damages, and $10,000 reimbursement for monies expended in managing the station
after Sovereign breached its contract. We do not agree.
[Headnote 16]
To justify a money judgment, the amount as well as the fact of damage must be proved
by substantial evidence.
____________________

2
Para. VIII of the amended complaint reads:
(a) Test equipment plaintiff purchased in 1970 that
was overvalued by defendant's officers and subsequently
converted by them.................................................. $1,787.00
. . .
(f) Balance due plaintiff corporation from the sale of
an AM Transmitter.................................................. 2,600.00

3
NRCP 54(c) provides:
Demand for Judgment. A judgment by default shall not be different in kind from or exceed in
amount that prayed for in the demand for judgment, except that where the prayer is for damages in excess
of $10,000 the judgment shall be in such amount as the court shall determine. Except as to a party against
whom a judgment is entered by default, every final judgment shall grant the relief to which the party in
whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.
of damage must be proved by substantial evidence. The law does not permit arriving at the
amount by pure conjecture. Alper v. Stillings, 80 Nev. 84, 389 P.2d 239 (1964). Cf. Knier v.
Azores Constr. Co., 78 Nev. 20, 368 P.2d 673 (1962).
[Headnotes 17, 18]
In order to award punitive damages, the trial court must find substantial evidence of malice
in fact. Village Development Co. v. Filice, 90 Nev. 305, 526 P.2d 83 (1974). A plaintiff is
never entitled to punitive damages as a matter of right; their allowance or denial rests entirely
within the discretion of the trier of fact. Nevada Cement Co. v. Lemler, 89 Nev. 447, 451,
514 P.2d 1180, 1182 (1973).
Other contentions of error are without merit and need not be addressed.
Affirmed.
Mowbray, C. J., and Batjer, J., concur.
Manoukian, J., with whom Thompson, J., joins, dissenting in part:
I respectfully dissent from that part of the majority opinion wherein my brethren
surprisingly and summarily uphold the trial court's striking of Sovereign's amended answer,
entry of default and eventual award of money damages and other relief all under the authority
of NRCP 37(b)(2)(C). If this dissent were to become the majority opinion, it would have the
effect of reversing the drastic order on sanctions, the default entry and judgment and would
necessarily vacate all other orders entered by the court below.
On October 27, 1972, appellant filed its amended complaint against Sovereign and several
fictitiously named defendants. The complaint contained several averments of damages. On
November 9, 1972, Sovereign filed its answer to the amended complaint together with a
counterclaim against appellant.
On January 15, 1973, appellant served a set of interrogatories upon Sovereign. Sovereign
answered some of these questions and, in proper procedural fashion, objected to the others.
Consequently, on April 2, 1973, appellant moved the trial court pursuant to NRCP 37(a)(2)
for its order compelling Sovereign to answer. At the hearing on June 4, 1973, the trial court
ordered Sovereign to answer several of the objected to interrogatories, but also found several
answers to be sufficient. Sovereign agreed to answer several others, but not all, and to provide
supplemental answers to two previously answered interrogatories.
On June 25, 1973, the action was stayed due to a pending federal action instituted by
Sovereign. That proceeding was ultimately dismissed by the federal district court, which
dismissal was upheld September 19, 1975, by the Ninth Circuit Court of Appeals.
By February 9, 1976, Sovereign had not provided any further discovery. On that day,
appellant moved the trial court to strike Sovereign's amended answer and to enter a default
judgment as a result of Sovereign's claimed willful failure to comply with the trial court's
discovery order. At the conclusion of the hearing on appellant's motion for sanctions, held
months later, the trial court awarded appellant its requested relief. Subsequently, appellant
was awarded judgment in the sum of $25,260.73, together with an attorney's fee in the sum of
$10,000. The trial court additionally rescinded the management contract, which had the effect
of cancelling the twenty-five percent share of appellant's stock previously issued to
Sovereign. Sovereign's subsequent NRCP 59 motion to amend the judgment was granted in
part.
At the conclusion of the hearing on sanctions, the trial court found that two and one-half
years had passed since the order to answer, the failure to answer was willful and without just
cause and appellant's case was wrongfully prejudiced. The court also found that respondent
intentionally and in bad faith sought to delay trial by filing a frivolous ancillary lawsuit. The
trial court apparently acted pursuant to the authority given it by virtue of Rule 37(b)(2)(C) of
the Nevada Rules of Civil Procedure. That provision permits a court to strike pleadings or
parts thereof, to stay further proceedings, and to dismiss the action or render judgment by
default against a party who fails to obey a discovery order. The discretion reposed in our
district courts through Rule 37, however, is not unfettered.
In Finkelman v. Clover Jewelers Blvd., Inc., 91 Nev. 146, 532 P.2d 608 (1975), we stated
that the general rule in the imposing of sanctions is that they be applied only in extreme
circumstances where willful noncompliance of a court's order is shown by the record. Id. at
147, 532 P.2d at 609 (citations omitted). Additionally, [a]lthough Rule 37 is very broad, and
the courts have considerable discretion in imposing sanctions as authorized by the rule, there
are constitutional limits, stemming from the Due Process Clause of the Fifth and Fourteenth
Amendments, upon the imposition of sanctions. C. Wright & A. Miller, Federal Practice
and Procedure, 2283, at 759 (1970). I am of the opinion that such limitations were
applicable to the instant case and precluded the trial court from invoking the harsh sanction
of directing the entry of a default judgment on all issues raised by appellant's complaint.
from invoking the harsh sanction of directing the entry of a default judgment on all issues
raised by appellant's complaint. By its complaint, appellant asserted several distinct causes of
action against Sovereign. On a comparison of the permissible inferences which flow from
Sovereign's failure to answer the relevant interrogatories with the material allegations in
appellant's complaint, it is clear that the district court's order striking Sovereign's answer in its
entirety was inconsistent with the demands of due process.
In this case, the information sought by the interrogatories did not embrace the totality of
issues raised by the pleadings on file. Indeed, here the interrogatories relate to only a minor
portion of the case. Only where the testimony or records sought through discovery relate to
all issues raised by the pleadings may a court take such an action. See Hammond Packing Co.
v. Arkansas, 212 U.S. 322 (1908); Bova v. Roanoke Oil Co., 23 S.E.2d 347 (Va. 1942).
Where, as here, no presumption can reasonably arise that the material facts alleged or
pleaded [by the plaintiff] were admitted to be true, Hammond Packing Co. v. Arkansas, 212
U.S. 351, the trial court's striking of a defendant's answer is not compatible with due process
of law as is required by the Federal Constitution. See Stern v. Hassen, 109 Cal.Rptr. 321, 327
(Ct.App. 1973); Mitchell v. Watson, 361 P.2d 744, 747 (Wash. 1961). Cf. Kerley v. Aetna
Cas. & Sur. Co., 94 Nev. 710, 711, 585 P.2d 1339, 1340 (1978) (no abuse of discretion with
dismissal of complaint where defendant willfully failed to respond to order compelling
production). Subject to reasonable legislation and judicial limitations, a litigant is entitled to
his day in court. See Affanato v. Merrill Brothers, 547 F.2d 138, 140 (1st Cir. 1977).
I believe that the penalty imposed here was disproportionate to any misconduct on the part
of respondent as the propounded interrogatories did not relate to all of the issues involved in
the litigation. Furthermore, Sovereign had substantially complied with the court's order and,
through new counsel, had filed and served the remaining answers prior to the hearing on
sanctions, although some answers were found to be inadequate. Moreover, the authorities
differentiate between a trial court's power to impose sanctions against a plaintiff and its
power to impose sanctions on a contumacious defendant. Mitchell v. Watson, 361 P.2d at
747. Cf. National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639 (1976) (court
established actual deadlines for compliance and disobedient party was the plaintiff). Here,
Sovereign, the defendant, suffered the drastic sanctions.
Finally, not only does the record fail to show that appellant was prejudiced in any way, I
note that on February 27, 1975, the trial judge expressed his displeasure and frustration at the
failure of both parties to exercise diligence in getting to trial. Additionally, although
Sovereign did not seek any protective orders, NRCP 26(c), it is significant that appellant
sought no trial date. Here, I believe that the sanction of dismissal was too harsh. See E.E.O.C.
v. Carter Carburetor, Division of ACE Industries, Inc., 577 F.2d 43 (8th Cir. 1978), cert.
denied, 439 U.S. 1081 (1979); A & M Records, Inc. v. Heilman, 142 Cal.Rptr. 390 (Ct. App.
1977); Henshaw v. Traveler's Insurance Co., 386 N.E.2d 1029 (Mass. 1979). On review of
the record, there is sufficient evidence to support a finding that Sovereign's failure timely to
file answers regarding its second and fourth affirmative defenses was in bad faith. I perceive
an abuse of discretion, however, and would reverse and remand for a full trial as to all issues
except issues tendered by the second and forth affirmative defenses, since the failure of
Sovereign to answer interrogatories related only to the second and fourth affirmative
defenses.
____________
96 Nev. 197, 197 (1980) Smith v. Timm
GARY ALLEN SMITH, Appellant, v. GARY DEAN TIMM, Individually,
and MERCY, INC., a Nevada Corporation, Respondents.
No. 10428
February 21, 1980 606 P.2d 530
Appeal from jury verdict and from order denying motion for judgment n.o.v., Eighth
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
The district court entered judgment upon a verdict holding ambulance owner free from
liability for injuries sustained by driver of automobile into which ambulance collided and
holding automobile driver liable for property damage to ambulance, denied automobile
driver's motion for judgment n.o.v., and automobile driver appealed. The Supreme Court,
Gunderson, J., held that: (1) case was brought to trial within statutory five-year period; (2)
trial court did not abuse its discretion in ordering a continuance; and (3) evidence was
sufficient to support the verdict.
Affirmed.
96 Nev. 197, 198 (1980) Smith v. Timm
L. Earl Hawley, Las Vegas, for Appellant.
Cromer, Barker & Michaelson, Las Vegas, for Respondents.
Litigant, who obtained a trial date within statutory period, appeared for trial in good faith and argued
motions and examined jurors, brought the case to trial within meaning of rule requiring cases to be brought
to trial within five years, notwithstanding fact that actual trial commenced after expiration of statutory
period. NRCP 41(e).
Notwithstanding fact that ambulance owner, who was named as defendant in suit for personal injuries
along with ambulance driver whose whereabouts was unknown and whose deposition had apparently been
misplaced by court personnel, failed to support its pretrial motion for continuance by proper affidavit, trial
court did not abuse its discretion in ordering a continuance.
Where record indicated that plaintiff's counsel realized he might be required to testify, trial court did not
err in excluding plaintiff's counsel's testimony in suit to recover damages for personal injuries sustained
when plaintiff's automobile collided with an ambulance. SCR 185.
Reference to sections in legal encyclopedia and cases cited therein did not constitute adequate discharge
of appellant's obligation to cite legal authority in his brief. NRCP 51; NRAP 28.
Where exhibit containing copies of ordinances and statutes was not designated a part of record, Supreme
Court could not review failure to give proposed instruction which incorporated such statutes and
ordinances.
Where there is conflicting evidence, Supreme Court is not free to weigh the evidence, and all inferences
must be drawn in favor of prevailing party.
7. Automobiles.
Evidence was sufficient to support verdict holding ambulance owner free from liability for injuries
sustained by driver of automobile into which ambulance collided and holding automobile driver liable for
property damage to ambulance.
OPINION
On March 21, 1970, in Las Vegas, an ambulance owned by respondent Mercy, Inc., and
driven by respondent Gary Dean Timm, collided with an automobile driven by appellant. On
March 6, 1972, appellant sued respondents for personal injuries and damages.
96 Nev. 197, 199 (1980) Smith v. Timm
injuries and damages. Respondents answered, with Mercy, Inc. counter-claiming for damages
to its ambulance. The parties commenced discovery. Timm had left his employment and
departed the state; hence, appellant took his deposition in Washington, D.C. On January 25,
1977, the court set a trial date of February 28, noting that the five years allowed for bringing
cases to trial in Nevada, as provided in NRCP 41(e), would expire on March 6, 1977.
1

After learning the trial date, respondents' counsel unsuccessfully attempted to locate
Timm, and thereafter telephoned the clerk to confirm that the Timm deposition had been
filed. Assured it was on file, respondents' counsel appeared for trial and announced himself
ready to proceed. The trial court ruled upon certain preliminary motions. Respondents'
counsel then asked again about the Timm deposition. Thereupon the deputy court clerk, upon
opening the envelope believed to contain it, found only a transcript indicating that, on the
date the Timm deposition was noticed to be taken, it had been continued to another time.
After an unsuccessful effort to locate the deposition, respondents' counsel requested a
continuance in order to locate Gary Timm, so he might testify in person. The court denied this
motion, and commenced with jury selection; however, on March 1, respondents' attorney
informed the court that a receipt showed the clerk's office had, in fact, received Timm's
deposition from the deposition reporter. In other words, it then appeared that a significant
court record had been misplaced.
After the appellant's attorney objected to any use of an unsworn copy of Timm's
deposition, respondents' attorney again moved to continue the trial. Over appellant's
objections, the court continued the trial to July 18, 1977, ordering respondents to pay
attorneys' fees to appellant's counsel, as well as to pay reasonable fees to doctors whom
appellant had scheduled to testify. Respondents' counsel asked that the court order the parties
to sign a written stipulation to avoid the effects of NRCP 41(e). The court so ordered, and the
jurors were excused. On March 3, counsel for appellant and respondents signed the
stipulation. On March 7, the trial judge approved the stipulation, which was thereupon filed.
____________________

1
NRCP 41(e) provides in material part:
. . . Any action heretofore or hereafter commenced shall be dismissed by the court . . . 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. . . .
96 Nev. 197, 200 (1980) Smith v. Timm
At the trial in July, the jury found in favor of the respondents and against appellant, giving
respondent Mercy, Inc. judgment for $465.08. The court later denied appellant's motion for
judgment n.o.v. and appeal was taken.
[Headnote 1]
1. The appellant's first assignment of error is that the district court erred by continuing the
trial from March 1, to July 18. Appellant argues that the court lacked power to order him to
sign a stipulation extending the period provided in NRCP 41(e). We need not reach the merits
of appellant's argument because we deem this case brought to trial within the meaning of
our rule.
2
We do not determine the minimum point which will be said to commence a trial
for purposes of NRCP 41(e). Cf. Ad-Art, Inc. v. Denison, 94 Nev. 73, 574 P.2d 1016 (1978)
(one way is to call a witness who testifies). We hold, however, that a litigant who obtains a
trial date within the statutory period, appears for trial in good faith, argues motions, and
examines jurors, thereby brings the case to trial. Cf. Kaoru Kadota v. City and County of
San Francisco, 333 P.2d 75 (Cal.App. 1958). See also Vecki v. Sorenson, 340 P.2d 1020,
21-22 (Cal.App. 1959).
[Headnote 2]
2. The appellant also contends that the district court abused its discretion by ordering a
continuance, because respondents' counsel had not supported their motion by a proper
affidavit. See DCR 21 and NRS 16.010. We disagree.
Respondents' counsel fully explained to the court why he had relied upon the Timm
deposition. Timm, who suffered health problems, had been moving around the country. The
respondents' investigator had been unable to locate Timm in time for trial. Timm's parents did
not know his whereabouts. All these facts were made known to the court, and we think
appellant waived any formal defects in respondents' application by failing to pursue them
with the trial court, and by instead opposing the motion on other grounds. Cf. State v.
McFadden, 43 Nev. 140, 182 Pac. 745 (1919). As to the motion's merits, we consider the trial
court best able to judge whether respondents' motion was made in good faith or whether
deception or fraud were being perpetrated to delay the proceedings. Neven v. Neven, 38 Nev.
541, 148 Pac. 354 (1915).
____________________

2
Furthermore, were one to assume the court lacked authority to order appellant's attorney to sign a written
stipulation, the fact remains that the stipulation was signed. See NRCP 11, NRCP 7(b)(2) and DCR 24. Cf.
Grenz v. Grenz, 78 Nev. 394, 374 P.2d 891 (1962).
96 Nev. 197, 201 (1980) Smith v. Timm
3. Appellants next argue that the district court should have entered a default because the
respondents failed to pay the doctors' reasonable expenses as ordered. This contention lacks
merit. As the record reflects, the court and both attorneys later agreed that the bills submitted
by the doctors were unreasonable. The court made no further order respecting payment of
doctors' fees.
[Headnote 3]
4. Appellant next contends that the court erred in refusing testimony from the attorney
who presented his case. The rule regarding an attorney as a witness is set forth in SCR 185:
Rule 185. Lawyer as witness. When a lawyer knows, prior to trial, that he will be a
necessary witness, other than as to merely formal matters such as identification or
custody of a document or the like, he should not conduct the trial. If, during the trial, he
discovers that the ends of justice require his testimony, he should, from that point on, if
feasible and not prejudicial to his client's case, leave further conduct of the trial to other
counsel. If circumstances do not permit withdrawal from the conduct of the trial, a
lawyer should not argue the credibility of his own testimony.
It may be inferred from the record that counsel realized he might be required to testify. Thus,
we think the trial court ruled properly in later excluding counsel's testimony.
5. Finally, appellant contends on appeal that the court failed to instruct the jury adequately
on appellant's theory of the case. Cf. American Cas. Co. v. Propane Sales & Serv., 89 Nev.
398, 401, 513 P.2d 1226, 1228 (1973).
[Headnotes 4, 5]
Although appellant has complained about refusal to give some thirty instructions, the only
authority provided us is by reference to sections of a legal encyclopedia and the cases cited
therein. We do not consider this to be an adequate discharge of the appellant's obligation to
cite legal authority. NRCP 51, NRAP 28; cf. Holland Livestock v. B & C Enterprises, 92
Nev. 473, 553 P.2d 950 (1976). We are unable to evaluate the instructions offered on the
authority of this court's decision in Johnson v. Brown, 75 Nev. 437, 345 P.2d 754 (1959)
because an exhibit containing copies of ordinances and statutes was not designated as part of
the record. Without reviewing the statutes and ordinances which were admitted and which
were incorporated in instruction No. 28, given by the court, we are unable to say that the
court erred in refusing appellant's proposed instructions.
96 Nev. 197, 202 (1980) Smith v. Timm
say that the court erred in refusing appellant's proposed instructions.
Beyond this, upon review of the record, we see no error of a prejudicial character. NRCP
61; cf. Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 448 P.2d 46 (1968). Had the court
given appellant's requested instructions, we are not persuaded a different result would have
been obtained.
[Headnotes 6, 7]
6. Nor was it error to refuse to enter judgment n.o.v. in favor of appellant. Where there is
conflicting evidence, this court is not free to weigh the evidence, and all inferences must be
drawn in favor of the prevailing party. Cf. Dudley v. Prima, 84 Nev. 549, 445 P.2d 31 (1968).
There was evidence to support the verdict.
The judgment for respondents is affirmed.
____________
96 Nev. 202, 202 (1980) Sheriff v. Medberry
WILLIAM J. MEDBERRY, Respondent.
No. 12353
February 21, 1980 606 P.2d 181
Appeal from order granting in part an application for writ of habeas corpus, Eighth
Judicial District Court, Clark County; J. Charles Thompson, Judge.
Defendant was being prosecuted on criminal charges as result of alleged and aborted
jailbreak. The district court dismissed three kidnaping counts against defendant, and appeal
was taken. The Supreme Court held that evidence that hostages were moved from point of
initial capture to other areas within jail during aborted jailbreak and that such movement
placed them within area where gunfire was being exchanged between inmates and police
officers attempting to contain escape attempt was sufficient to hold defendant to answer on
kidnaping charges.
Reversed.
Robert J. Miller, District Attorney, and Raymond D. Jeffers, Deputy District Attorney,
John P. Fadgen, Las Vegas, for Respondent.
1. Criminal Law.
Quantum of proof necessary to hold accused to answer in district court is only that it appear, from
substantial and competent evidence, that an offense has been committed and that defendant committed it.
2. Kidnaping.
Where accused is charged with both first-degree kidnaping and one of associated offenses enumerated in
first-degree kidnaping statute, kidnaping charge will not lie if movement of victims was incidental to
associated offense and did not increase risk of harm to victims; however, whether movement of victims was
incidental to associated offense and whether movement increased risk of harm to victims are questions of
fact to be determined by trier of fact in all but clearest cases. NRS 200.310, subd. 1.
3. Kidnaping.
Evidence that hostages were moved from point of initial capture to other areas within jail during aborted
jailbreak and that such movement placed them with area where gunfire was being exchanged between
inmates and police officers attempting to contain escape attempt was sufficient to hold defendant to answer
on kidnaping charges. NRS 200.310, subd. 1.
OPINION
Per Curiam:
This appeal from an order granting in part a pre-trial petition for a writ of habeas corpus
challenges the dismissal of three of the eleven counts with which the respondent herein is
charged.
Respondent is one of four inmates being prosecuted on criminal charges as a result of an
alleged and aborted jail break at the Clark County Jail between August 25 and 27, 1979, in
which three corrections officers were captured and held hostage for 44 hours. Respondent
was charged with one count of attempted escape with the use of a deadly weapon, three
counts of extortion with the use of a deadly weapon, four counts of furnishing a weapon to a
prisoner, and three counts of first degree kidnaping with the use of a deadly weapon.
Respondent made application to the district court for a writ of habeas corpus, arguing that the
taking of hostages was an integral part of the alleged escape attempt, that any movement of
the hostages was insignificant and did not substantially increase their risk of harm, and,
therefore, that the first degree kidnaping counts should be stricken from the indictment. The
district court granted respondent's petition for habeas corpus as to the three kidnaping counts.
For the reasons discussed below we reverse.
[Headnote 1]
We note initially that the quantum of proof necessary to hold an accused to answer in the
district court is only that it appear, from substantial and competent evidence, that an
offense has been committed and that the defendant committed it.
hold an accused to answer in the district court is only that it appear, from substantial and
competent evidence, that an offense has been committed and that the defendant committed it.
Ricci v. Sheriff, 88 Nev. 662, 503 P.2d 1222 (1972).
[Headnote 2]
It is true that where an accused is charged with both first degree kidnaping and one of the
associated offenses enumerated in the first degree kidnaping statute,
1
the kidnaping charge
will not lie if the movement of the victims was incidental to the associated offense and did
not increase the risk of harm to the victims. Langford v. State, 95 Nev. 631, 600 P.2d 231
(1979). See also Sparks v. State, 96 Nev. 26, 604 P.2d 802 (1980); Wright v. State, 94 Nev.
415, 581 P.2d 442 (1978). However, whether the movement of the victims was incidental to
the associated offense and whether the movement increased the risk of harm to the victims
are questions of fact to be determined by the trier of fact in all but the clearest cases. Langford
v. State, supra.
[Headnote 3]
In the instant action the evidence suggests that the inmate's victims were moved from the
point of their initial capture to other areas within the jail, and that this movement placed them
within an area where gunfire was being exchanged between the inmates. This movement
arguably increased the risk of danger to the officers, which issue must be ultimately
determined by the trier of fact at trial.
Accordingly, we reverse.
____________________

1
NRS 200.310(1) reads as follows:
Every person who shall willfully seize, confine, inveigle, entice, decoy, abduct, conceal, kidnap or
carry away any individual human being by any means whatsoever with the intent to hold or detain, or
who holds or detains, such individual for ransom, or reward, or for the purpose of committing extortion
or robbery upon or from such individual, or to exact from relatives, friends, or other person any money or
valuable thing for the return or disposition of such kidnaped person . . . shall be deemed guilty of
kidnaping in the first degree.
____________
96 Nev. 205, 205 (1980) Sheriff v. Gordon
TERRY GORDON, Respondent.
No. 12398
February 21, 1980 606 P.2d 533
Appeal from order granting pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; Paul S. Goldman, Judge.
The district court granted pretrial petition for writ of habeas corpus, finding that
indictment for pandering was not supported by sufficient evidence, and appeal was taken. The
Supreme Court held that where statute precluded trial for pandering on uncorroborated
testimony of person on whom the offense was allegedly committed, her testimony could not
be regarded as providing the required corroboration for testimony of an accomplice.
Affirmed.
Alan B. Andrews, Las Vegas, for Respondent.
Where, under applicable statute, defendant could not be tried on pandering charge if indictment was
supported only by uncorroborated testimony of the person on whom the offense was allegedly committed,
or on the uncorroborated accomplice testimony of third person, indictment could not be sustained by the
combined testimony of such two persons. NRS 175.291, 175.301, 201.300.
2. Criminal Law.
Witnesses whose testimony requires corroboration may not corroborate each other.
OPINION
Per Curiam:
The Clark County Grand Jury returned an indictment charging respondent Terry Gordon
with pandering, a felony. See NRS 201.300.
1
Gordon subsequently petitioned the district
court for a writ of habeas corpus contending, among other things, that the indictment
was not supported by sufficient evidence because the incriminating testimony lacked
required corroboration.
____________________

1
1. Any person who:
(a) Induces, persuades, encourages, inveigles, entices or compels a person to become a prostitute or
to continue to engage in prostitution . . . is guilty of pandering. . . .
court for a writ of habeas corpus contending, among other things, that the indictment was not
supported by sufficient evidence because the incriminating testimony lacked required
corroboration. The district court agreed and granted the petition. This appeal followed.
Testimony upon which the indictment was based was provided by Sara Blair, a prostitute,
and her husband Carl. Sara and Carl testified that they initiated a meeting with Gordon in
order to seek advice on improving our business.
2
Gordon allegedly agreed to [set her] up
in the escort business in exchange for a percentage of the fees Sara would receive for the
services she provided as a prostitute.
The indictment charged Gordon with inveigling or enticing Sara to become, or continue to
be, a prostitute. In his petition, Gordon argued that the indictment must be dismissed because
Sara's testimony was not corroborated as required by NRS 175.301,
3
and Carl's testimony
was not corroborated as required by NRS 175.291.
4
The state conceded that the testimony of
Carl, who would be an accomplice of Gordon under the facts of this case, required
corroboration under NRS 175.291, but argued that his testimony was in fact corroborated by
Sara's. We do not agree.
[Headnotes 1, 2]
Gordon may not be tried on the pandering charge if the indictment is supported only by the
uncorroborated testimony of Sara, the person upon whom the offense was allegedly
committed, State v. Wyatt, 84 Nev. 731, 448 P.2d 827 (1968), or the uncorroborated
accomplice testimony of Carl. Ex Parte Hutchinson, 76 Nev. 478, 357 P.2d 589 (1960). Nor
may the indictment be sustained by the combined testimony of Sara and Carl. Witnesses
whose testimony requires corroboration may not corroborate each other.
____________________

2
Carl regularly assisted Sara in her prostitution activities by driving her to and from her appointments.

3
Upon a trial for . . . inveigling, enticing or taking away any person for the purpose of prostitution, or
aiding or assisting therein, the defendant shall not be convicted upon the testimony of the person upon or
with whom the offense has allegedly been committed, unless the testimony of that person is corroborated
by other evidence.

4
1. A conviction shall not be had on the testimony of an accomplice unless he is corroborated by
other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect
the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely
shows the commission of the offense or the circumstances thereof.
2. An accomplice is hereby defined as one who is liable to prosecution, for the identical offense
charged against the defendant on trial in the cause in which the testimony of the accomplice is given.
corroborate each other. See : LaPena v. State, 92 Nev. 1, 13, 544 P.2d 1187, 1195 (1976)
(Gunderson, C. J., dissenting). See also People v. Tewksbury, 544 P.2d 1335 (Cal. 1976),
appeal dismissed, 429 U.S. 805 (1976); Howard v. Commonwealth, 487 S.W.2d 689 (Ky.
1972); People v. Chamberlain, 329 N.Y.S.2d 61 (Sup.Ct.App.Div. 1972); Commonwealth v.
Jones, 247 A.2d 624 (Pa.Super. 1968). But see People v. Martinez, 531 P.2d 964 (Colo.
1975); Jones v. State, 218 S.E.2d 899 (Ga. 1975).
Accordingly, since the incriminating testimony supporting the indictment lacked the
necessary corroboration, the district court properly granted Gordon's habeas petition. Cf.
LaPena v. State, 96 Nev. 43, 604 P.2d 811 (1980); LaPena v. Sheriff, 91 Nev. 692, 541 P.2d
907 (1975).
Affirmed.
____________
96 Nev. 207, 207 (1980) Hollis v. State
VERNON LEROY HOLLIS, Appellant, v. THE STATE
No. 10719
February 21, 1980 606 P.2d 534
Appeal from judgment of conviction for burglary; Second Judicial District Court, Washoe
County; Roy L. Torvinen, Judge.
The Supreme Court affirmed, 95 Nev. 664, 601 P.2d 62 (1979). On rehearing, the
Supreme Court held that giving of instruction that anyone who unlawfully enters specified
premises shall be deemed to have entered with intent to commit larceny unless such entry is
explained by testimony satisfactory to the jury to have been without criminal intent was error
and such error was reversible where it concerned essential of intent, which was the only
disputed fact at trial.
William N. Dunseath, Public Defender, and Michael B. McDonald, Deputy Public
Defender, Washoe County, for Appellant.
Calvin R. X. Dunlap, District Attorney, and Edwin T. Basl, Deputy District Attorney,
Washoe County, for Respondent.
1. Criminal Law.
Instructions phrased as permissible inferences may satisfy statutory prohibition on a judge's
directing the jury to find the presumed fact against the accused but instructions
phrased in mandatory language violate such ban.
prohibition on a judge's directing the jury to find the presumed fact against the accused but instructions
phrased in mandatory language violate such ban. NRS 47.230, subd. 2.
2. Criminal Law.
Giving of instruction that anyone who enters specified premises shall be deemed to have entered with
intent to commit larceny unless his entry is explained as having been made without criminal intent was
error and such error required reversal as it concerned the essential element of intent, which was the only
disputed fact at trial. NRS 47.230, 47.230, subds. 2, 3, 205.065.
3. Criminal Law.
Supreme Court will not consider constitutional issues which are not necessary to the determination of an
appeal; hence, contention that intent instruction, as phrased in mandatory language, violated due process
would not be considered in light of determination that the statutory violation itself required reversal. NRS
OPINION ON REHEARING
Per Curiam:
Appellant was convicted of burglary following a jury trial at which he represented himself.
The conviction was affirmed in Hollis v. State, 95 Nev. 664, 601 P.2d 62 (1979). Rehearing
was granted for the limited purpose of entertaining argument regarding jury instructions on
the presumption of intent for burglary, NRS 205.065, and the effect of Sandstrom v.
Montana, 442 U.S. 510, 99 S.Ct. 2450 (1979), and NRS 47.230 regarding presumed intent,
on the instructions.
Over appellant's objection,
1
the court gave the following instruction:
Every person who shall unlawfully enter any warehouse, store, or other building
shall be deemed to have entered the same with the intent to commit grand or petit
larceny or a felony therein, unless such unlawful entry shall be explained by testimony
satisfactory to the jury to have been made without criminal intent.
This instruction was substantially the language contained in NRS 205.065.
2
Appellant
contends that the instruction violated NRS 47.230, which sets forth general guidelines as to
the presumptions against the accused in criminal cases.3
____________________

1
The state concedes that Hollis made a proper objection at trial.

2
NRS 205.065 provides as follows:
Every person who shall unlawfully break and enter or unlawfully enter any house, room, apartment,
tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle,
vehicle trailer, semitrailer or housetrailer, or railroad car shall be deemed to have broken and entered or
entered the same with intent to commit grand or petit larceny or a felony therein, unless such unlawful
breaking and entering or unlawful entry shall be explained by testimony satisfactory to the jury to have
been made without criminal intent.
NRS 47.230, which sets forth general guidelines as to the presumptions against the accused in
criminal cases.
3

NRS 47.230(2) commands that a judge shall not direct the jury to find a presumed fact
against an accused. Marshall v. State, 95 Nev. 802, 603 P.2d 283 (1979). NRS 47.230(3)
expressly provides that instructions dealing with presumptions against the accused must be in
permissive terms. The judge must instruct that the jury may regard the basic facts as sufficient
evidence of the presumed fact. The statute also requires the jury to be instructed that the law
does not require the jury to find the presumed fact, and that [the existence of the presumed
fact] must, on all the evidence, be proved beyond a reasonable doubt.
[Headnotes 1, 2]
Instructions phrased in the form of permissible inferences may satisfy NRS 47.230. Ricci
v. State, 91 Nev. 373, 536 P.2d 79 (1975). Instructions phrased in mandatory language do not
satisfy NRS 47.230. Marshall v. State, supra. In this case neither the challenged instruction
nor other general instructions dealing with the burden of proof satisfied the requirements of
NRS 47.230.
The state contends that the error, if any, was harmless. However, violations of NRS 47.230
will not be deemed harmless where the erroneous instruction concerns an essential element of
the offense charged. Marshall v. State, supra. In the present case the instruction concerns the
essential element of intent, which was the only disputed fact at trial.
4
Therefore, we cannot
find that the error was harmless. Turner v. State, 96 Nev. 164, 605 P.2d 1140 (1980).
[Headnote 3]
Finally, appellant contends that the challenged instruction violated constitutional due
process as pronounced in Sandstrom v. Montana, supra.
____________________

3
NRS 47.230 provides as follows:
1. In criminal actions, presumptions against an accused recognized at common law or created by
statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt,
are governed by this section.
2. The judge shall not direct the jury to find a presumed fact against the accused. . . .
3. Whenever the existence of a presumed fact against the accused is submitted to the jury, the judge
shall give an instruction that the law declares that the jury may regard the basic facts as sufficient
evidence of the presumed fact but does not require it to do so. In addition, if the presumed fact
establishes guilt or is an element of the offense or negatives a defense, the judge shall instruct the jury
that its existence must, on all the evidence, be proved beyond a reasonable doubt.

4
The state admits that intent was the only element disputed by Appellant at trial. The record supports this
conclusion.
violated constitutional due process as pronounced in Sandstrom v. Montana, supra. This
court will not consider constitutional issues which are not necessary to the determination of
an appeal. Spears v. Spears, 95 Nev. 416, 596 P.2d 210 (1979); State of Nevada v. Plunkett,
62 Nev. 258, 149 P.2d 101 (1944). In light of our determination that the instruction violated
NRS 47.230, it is not necessary to decide the constitutional issue.
The judgment of conviction is reversed, and the cause is remanded for a new trial.
____________
96 Nev. 210, 210 (1980) Halbower v. State
RODNEY L. HALBOWER, Appellant, v. THE STATE
No. 10587
February 21, 1980 606 P.2d 536
Appeal from judgment of conviction, First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
Defendant was convicted before the district court of escape from prison and was adjudged
to be an habitual criminal with five prior felony convictions, and he appealed. The Supreme
Court held that: (1) where three of the prior convictions arose from same transaction and were
prosecuted in same indictment or information, such convictions constituted only one prior
conviction for purpose of habitual criminal statute, and (2) where records of two of
defendant's prior felony convictions demonstrated on their face that there was an absence of
counsel, burden was on State to show that defendant's right to attorney had been validly
waived.
Remanded for further hearing.
Norman Y. Herring, State Public Defender, Carson City, and J. Gregory Damm, Deputy
Public Defender, for Appellant.
Richard H. Bryan, Attorney General, and Robert A. Bork, Deputy Attorney General,
1. Criminal Law.
Where three of defendant's prior convictions arose from same transaction and were prosecuted in same
indictment or information, such convictions constituted only one prior conviction for purpose of habitual
criminal statute. NRS 207.010.
2. Criminal Law.
Where records of two of defendant's prior felony convictions demonstrated on their face that there was an
absence of counsel, burden was on State, in proceeding in which it sought an adjudication that defendant
was an habitual criminal, to show that defendant's right to attorney had been validly waived; defendant's
failure to object to sufficiency of such records did not alter State's obligation. NRS 207.010.
OPINION
Per Curiam:
In 1977 Rodney Halbower was convicted of escape from prison, a felony under NRS
212.090. He was also adjudged to be an habitual criminal with five prior felony convictions
and, pursuant to NRS 207.010, was sentenced to life imprisonment without the possibility of
parole.
1

The district court based its determination that Halbower was an habitual criminal upon
exemplified copies of (1) three prior felony convictions in Nevada for forcible rape, infamous
crime against nature, and infamous crime against nature with force and (2) two prior felony
convictions in Michigan for breaking and entering with intent to commit larceny, and larceny
in a building.
In this appeal, Halbower contends his three prior felony convictions in Nevada should be
considered as only one conviction under NRS 207.010 because they arose from a single
transaction. He also argues that the district court erred in considering his two prior felony
convictions in Michigan in determining his status as an habitual criminal because the
prosecution did not establish that he was represented by counsel or validly waived his right to
counsel in those proceedings. Halbower therefore argues that he was improperly sentenced as
an habitual criminal because the prosecution established the existence of only one prior
felony conviction.
[Headnote 1]
1. This court recently held that where two or more convictions result from the same act,
transaction or occurrence, and are prosecuted in the same indictment or information, those
several convictions may be utilized only as a single prior conviction for purposes of the
habitual criminal statute.
____________________

1
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, . . . 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.
several convictions may be utilized only as a single prior conviction for purposes of the
habitual criminal statute. Rezin v. State, 95 Nev. 461, 596 P.2d 226 (1979).
Halbower's three prior Nevada convictions fit squarely within the criteria set forth in
Rezin.
2
Those convictions, therefore, may be counted toward enhancement under NRS
207.010 as only one prior conviction.
[Headnote 2]
2. Exemplified copies of Halbower's two prior felony convictions in Michigan were
introduced in the district court after Halbower's trial for the purpose of establishing his status
as an habitual criminal. As mentioned above, Halbower contends these documents should not
have been considered because they did not establish that he was represented by counsel at
those proceedings or that he validly waived that right. See Rezin v. State, supra; Hamlet v.
State, 85 Nev. 385, 455 P.2d 915 (1969).
The state argues that Halbower did not object to the sufficiency of the records when they
were introduced below and, presumably, he should not be allowed to raise the objection for
the first time on appeal.
The sentencing transcripts of the Michigan convictions indicate that Halbower was
represented by counsel at only one of those proceedings. It is clear from the transcript of the
other proceeding that Halbower appeared at his sentencing in proper person. Under these
circumstances, where the records upon their face demonstrate absence of counsel, the burden
is upon the state to show that the right to an attorney was validly waived, see Hamlet v. State,
supra, and the failure to object to the sufficiency of those records when they were introduced
does not alter the state's obligation.
3
Compare Baymon v. State, 94 Nev. 370, 580 P.2d 943
(1978) (where it was unclear on that record whether accused was represented by counsel at
prior proceedings, failure to object to sufficiency of records of prior convictions in lower
court precluded accused from raising objection for first time on appeal).
Accordingly, since the state did not establish that Halbower waived his right to counsel at
the 1966 Michigan proceeding, where he appeared in proper person, we remand this case
to the district court for a hearing to determine whether such waiver occurred and for such
other proceeding as may be necessary not inconsistent with this opinion.
____________________

2
See Halbower v. State, 93 Nev. 212, 562 P.2d 485 (1977), for a factual account of the incident which
resulted in the convictions.

3
In Thomas v. State, 93 Nev. 565, 571 P.2d 113 (1977), where there was no objection lodged in the district
court, we declined to consider alleged infirmities in prior convictions raised for the first time on appeal.
However, Thomas is distinguishable from the case at bar because there Thomas stipulated that the exemplified
copies of prior convictions be taken as evidence in support of the habitual criminal charge, relieving the state of
further inquiry.
where he appeared in proper person, we remand this case to the district court for a hearing to
determine whether such waiver occurred and for such other proceeding as may be necessary
not inconsistent with this opinion. Rezin v. State, supra.
____________
96 Nev. 213, 213 (1980) In re Gripentrog
In the Matter of EARL P. GRIPENTROG,
Attorney at Law
No. 12297
February 22, 1980
ORDER
The State Bar of Nevada, Southern Disciplinary Board, having submitted the findings and
recommendations of its hearing panel in the above-entitled matter, and no appeal therefrom
having been filed by respondent Earl Gripentrog, we hereby authorize, pursuant to SCR
102(6), SCR 105(3)(a), and SCR 121, the publication of the following letter of reprimand:
Earl P. Gripentrog, Attorney at Law, 300 E. Fremont Street, Suite No. 109, Las Vegas,
Nevada 89101
You were charged by the State Bar with unethical conduct in your dealings with a
prosecution witness. Formal hearings were held on these charges by a panel of the Southern
District Disciplinary Board.
The hearing panel found that you engaged in unethical conduct in connection with the
following circumstances. On June 19, 1979, you were in a courthouse corridor with your
clients awaiting their preliminary hearing. One of your clients brought you into conversation
with the alleged victim of the offenses charged against your clients. You were made aware
that the victim had been brought to Nevada from California at State expense by the
prosecution to testify at the preliminary hearing. You knew that the alleged victim had been
escorted to the courthouse by the prosecutor. You inquired of the alleged victim whether he
had been subpoenaed and, if so, how. When he advised you that a subpoena had been mailed
to him in California, you advised him that the subpoena was invalid and that he was under no
compulsion to remain for the hearing and could leave without getting in trouble. At the time
you gave him this advice, you knew that if you informed him to that effect, he would not
appear at the preliminary hearing but would leave the courthouse and the jurisdiction,
which he did.
96 Nev. 213, 214 (1980) In re Gripentrog
would not appear at the preliminary hearing but would leave the courthouse and the
jurisdiction, which he did. At no time did you advise the alleged victim to consult with
anyone else nor did you inform the prosecutor of what had transpired. When the preliminary
hearing was called, the prosecutor moved for a continuance on the grounds that an essential
witness, namely the alleged victim, had disappeared from the courthouse corridor. You
responded with a motion to dismiss the case for the absence of that same essential witness.
The hearing panel concluded that your conduct violated Supreme Court Rule 189 and
Disciplinary Rules 1-102A5 and 7-109B. Your advice to the alleged victim was intended to,
and did, cause that person to depart without notice, making his testimony unavailable. Your
actions in this instance constituted conduct prejudicial to the administration of justice for
which you should be reprimanded.
It was the recommendation of the hearing panel that you be given this public letter of
reprimand and further be assessed all direct costs of the hearings. You are directed to make
arrangements with the executive director of the State Bar of Nevada to pay the direct costs
within 60 days from the date of publication of this public letter of reprimand.
Your conduct has brought discredit and dishonor on the legal profession. Every lawyer
must shoulder the obligation of upholding the honor and integrity of his profession. Your
conduct is inexcusable. Your conduct cannot and will not be condoned. You have been a
member of our profession for a number of years and this makes your conduct all the more
reprehensible. You obviously knew better, yet still you chose to pursue this unacceptable
course of conduct. The legal profession and the State Bar of Nevada must at all times
zealously guard the standards of professional conduct so that those in need of legal services
may approach this profession with confidence that all will be competently and ethically
represented.
Dated this 23rd day of November, 1979.
Pat Fitzgibbons, Chairman, Southern Nevada Disciplinary Board.
We further authorize the assessment of costs as recommended, pursuant to SCR 105(3)(a)
and SCR 120.
It is so ORDERED.
____________
96 Nev. 215, 215 (1980) Harvey's Wagon Wheel v. MacSween
HARVEY'S WAGON WHEEL, INC., a Corporation, Appellant, v. IAN MacSWEEN, dba
MacSWEEN CONSTRUCTION CO., et al., Respondents.
No. 11486
February 28, 1980 606 P.2d 1095
Appeal from partial summary judgment, First Judicial District Court, Douglas County;
Howard D. McKibben, Judge.
In an action for damages arising when fire destroyed a structure under construction,
insured appealed from a partial summary judgment entered in the district court which
dismissed that portion of insured's claim against contractors that was insurer's subrogation
claim. The Supreme Court, Batjer, J., held that under fire policy, phrase as their interest may
appear as applied to contractors, who were added as insureds during course of construction,
could reasonably be read to limit recovery of the added insureds in case of loss, but for
subrogation purposes did not shift risk of loss from insurer to added insureds.
Affirmed.
Wait, Shamberger, Georgeson, McQuaid & Thompson, Reno; Cooley, Godward, Castro,
Huddleston & Tatum, and James A. Richman, San Francisco, for Appellant.
Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane, Reno, for Respondent Ian MacSween
Construction Co.
Walther, Key, Maupin & Oats, Reno; and Matheny & Poidmore, Sacramento, for
Respondent Tom Johnson, Inc.
1. Judgment.
Trial court did not abuse its discretion by rehearing motions for partial summary judgment, where first
motions were denied without prejudice and at time second motions were heard court was more familiar
with the case, although the facts and the law were unchanged. DCR 20(4), 27 (Repealed).
2. Judgment.
Summary judgment is proper where moving party is entitled to judgment as a matter of law.
3. Insurance.
Generally, no right of subrogation can arise in favor of an insurer against its own insured; subrogation
arises only with respect to rights of an insured against a third party to whom insurer owes no duty.
4. Insurance.
An ambiguous clause in an insurance policy should be construed liberally in favor of the insured and
against the insurer.
5. Insurance.
If an insurer intends to restrict coverage of policy, it should clearly and precisely state such intent.
6. Insurance.
Coinsureds are immune from subrogation claim by their insurer absent an explicit proviso to the contrary.
7. Insurance.
Under fire policy, phrase as their interest may appear as applied to contractors, who were added as
insureds during course of construction project, could be reasonably read to limit recovery of the added
insureds in case of loss, but for subrogation purposes did not shift risk of loss from insurer to added
insureds.
OPINION
Harvey's Wagon Wheel, Inc. appeals from the district court's order granting partial
summary judgment in favor of Ian MacSween, dba MacSween Construction Co., and Tom
Johnson, Inc., and dismissing the portion of Harvey's claim that is a subrogation claim of
Fireman's Fund Insurance Company. Harvey's contends that the trial judge erred by granting
motions for reconsideration and leave to renew motion for partial summary judgment
proposed by MacSween and Johnson. Harvey's also argues that the trial judge erred by
concluding that, as a matter of law, there can be no subrogation by Fireman's against
MacSween and Johnson. We affirm.
In 1972, Harvey's decided to expand and remodel parts of its Stateline motel and casino.
MacSween was hired as general contractor for the project. Johnson contracted with Harvey's
to furnish labor, materials and equipment to paint the interior. On October 24, 1972, Harvey's
amended its insurance policy with Fireman's to include as insureds, during the course of the
construction,
Harvey's Wagon Wheel, Inc. and their subcontractors and materialmen as their interest
may appear; Ian MacSween, dba: MacSween Masonry, MacSween Concrete and Ian
MacSween Construction, a Nevada corporation, its subcontractors and materialmen as
their interests may appear. (Emphasis added.)
On May 15, 1973, Harvey's suffered over $1,000,000 in property loss and damage caused
by a fire which swept through the structure under construction, as well as existing structures.
Fireman's paid Harvey's approximately $1,160,000 pursuant to Policy No. MXP 160-27-64.
Harvey's filed suit against MacSween, Johnson and others on May 9, 1975, alleging that
they negligently caused the fire on May 15, 1973. A portion of Harvey's claim for damages
was Fireman's subrogation claim for approximately $1,160,000. The remainder of the
damages sought were those not covered by insurance, such as business losses.
Motions for partial summary judgment brought by MacSween and Johnson on the
subrogation claim were denied without prejudice on October 17, 1977. The district judge
ruled that there was a material issue of fact concerning the extent of coverage in view of the
different possible interpretations of the endorsement language as their interests may appear.
On July 5, 1978, MacSween and Johnson moved for reconsideration of their motions for
partial summary judgment, arguing that the sole issue was one of law. The district judge
reconsidered the motions in light of persuasive authority cited by MacSween and Johnson. As
a result, the district judge granted partial summary judgment and dismissed the portion of
Harvey's cause of action that was Fireman's subrogation claim.
Harvey's argues that the district judge abused his discretion when he reconsidered
MacSween's and Johnson's motions for partial summary judgment. Reconsideration of
motions is proper if the district judge to whom the first motion was made consents to a
rehearing. DCR 20(4), presently DCR 13(4); DCR 27, presently DCR 19.
1

[Headnote 1]
In this case, the district judge expressly denied the first motion for partial summary
judgment without prejudice. He concluded that the qualifying language was not so clear and
unambiguous that summary judgment was warranted at that stage in the proceedings. The
judge implicitly granted the respondents leave to renew their motions at a later date. Although
the facts and the law were unchanged, the judge was more familiar with the case by the time
the second motion was heard, and he was persuaded by the rationale of the newly cited
authority.
____________________

1
DCR 20(4):
No motion once heard and disposed of shall be renewed in the same cause, nor shall the same matters
therein embraced be reheard, unless by leave of the court granted upon motion therefor, after notice of
such motion to the adverse parties.
DCR 27:
When an application or petition for any writ or order shall have been made to a district judge and is
pending or has been denied by such judge, the same application or motion shall not again be made to the
same or another district judge, except upon the consent in writing of the judge to whom the application or
motion was first made.
authority. Under these circumstances, the district judge did not abuse his discretion by
rehearing the motions for partial summary judgment.
2

[Headnote 2]
Harvey's main contention is that the district judge erred by granting partial summary
judgment on the ground that Fireman's subrogation claim is barred as a matter of law.
Summary judgment is proper where the moving party is entitled to judgment as a matter of
law. Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963); NRCP 56(c). In this case,
the controversy centers on the phrase as their interest may appear. There is no issue
concerning the status of MacSween and Johnson as coinsureds.
3

[Headnote 3]
As a general rule, no right of subrogation can arise in favor of an insurer against its own
insured. Subrogation arises only with respect to the rights of an insured against a third party
to whom the insurer owes no duty. Turner Const. Co. v. John B. Kelley Co., 442 F.Supp. 551
(E.D. Penn. 1976).
Harvey's asserts, however, that the phrase as their interest may appear, which is included
in the general purpose endorsement, limits the protection offered by the policy to MacSween
and Johnson. It argues that MacSween and Johnson are limited insureds only to the extent
that their property interests are damaged or destroyed. Therefore, according to Harvey's,
Fireman's is precluded from subrogation only with respect to damages to property belonging
to MacSween and Johnson. Courts are split on the question of the effect of the phrase as
their interest may appear on the status of coinsureds for the purpose of subrogation.
In Turner Const. Co., the federal district court denied summary judgment for the
subcontractors in an action brought by the fire insurance company, as subrogee of the general
contractor, against the subcontractor whose negligence allegedly caused the fire. The policy
provided coverage for subcontractors as their interests may appear. The district judge
reasoned that the purpose of the provision was to give the subcontractor an interest in the
building, based upon the subcontractor's labor and material used.
____________________

2
Appellant cites Moore v. City of Las Vegas, 92 Nev. 402, 551 P.2d 244 (1976) to support its contention. In
Moore, we held that the district judge abused his discretion by granting a second motion for rehearing after
previous motions for summary judgment and rehearing had been denied by another judge. In this case, the judge
to whom the motion was first made consented to reargument.

3
The General Purpose Endorsement to policy No. MXP 160-27-64 names MacSween as an additional
insured. Johnson, as subcontractor or materialman for Harvey's, is also covered by the endorsement.
subcontractor an interest in the building, based upon the subcontractor's labor and material
used. The provision, according to that court, did not make the subcontractor a coinsured for
all purposes and did not relieve the subcontractor of liability to the general contractor, and its
insurer as subrogee, for damage caused by the subcontractor's negligence. Id. at 554. Accord,
Employers' Fire Insurance Co. v. Behunin, 275 F.Supp. 399 (D. Colo. 1967); Public Service
Co. of Okla. v. Black & Veatch, Consul. Eng., 328 F.Supp. 14 (N.D. Okl. 1971).
On the other hand, some courts have denied the insurer a right to subrogate coinsureds in
similar circumstances. In their motion for reconsideration, respondents cited Baugh-Belarde
Const. Co. v. College Utilities, 561 P.2d 1211 (Alaska 1977). In that case, the general
contractor could not recover damages from the subcontractor for losses caused by a fire
allegedly started by the subcontractor's negligence. The Alaska Supreme Court held that the
subcontractor's immunity from liability to the insurer was not limited to the amount of
damages to the subcontractor's own property simply because the subcontractor's recovery was
so limited. Rather, the coverage of an all-risks policy includes losses caused by the negligence
of any insured, and the insurer may not shift those losses to an insured.
The Alaska court cited several public policy considerations to support its conclusion that a
builder's risk policy protects each insured against its own negligence. If an insurer is
permitted to recover from an insured, a severe conflict of interest arises because the insurer
could use its investigation of the loss to build a liability case against its own insured.
Secondly, the costs of subrogation litigation, otherwise passed on to the public, may be
avoided if the insurer is barred from subrogation regardless of the extent of the insured's
property interest. Finally, if each subcontractor is forced to protect against liability for loss to
the entire project by paying huge premiums for its own liability insurance, the public will
suffer from the increased costs of construction. Id. at 1214-1215. Accord, Transamerica Ins.
Co. v. Gage Plumbing and Heating Co., 433 F.2d 1051 (10th Cir. 1970); Home Insurance Co.
v. Pinski Brothers, Inc., 500 P.2d 945 (Mont. 1972); St. Paul Fire & Marine v. Murray
Plumbing, 135 Cal.Rptr. 120 (Cal.App. 1976); Stafford Metal Works, Inc. v. Cook Paint &
Var. Co., 418 F.Supp. 56 (N.D. Tex. 1976); Truck Ins. Exch. v. Transport Indem. Co., 591
P.2d 188 (Mont. 1979).
[Headnotes 4-7]
The partial summary judgment is further supported by the rule of construction that an
ambiguous clause in an insurance policy should be construed liberally in favor of the
insured and against the insurer.
policy should be construed liberally in favor of the insured and against the insurer.
Baugh-Belarde, 561 P.2d at 1215. In the case at bar, the phrase, as their interest may
appear, may reasonably be read to limit the recovery by the added insureds in case of loss,
but not to shift the risk of loss from Fireman's to MacSween and Johnson. If an insurer
intends to restrict the coverage of the policy, it should clearly and precisely state that intent.
Id.; Transamerica Ins. Co., 433 F.2d at 1054; C. H. Leavell & Co. v. Fireman's Fund
Insurance Co., 372 F.2d 784 (9th Cir. 1967). There is no explicit proviso in the insurance
policy at issue that makes a subcontractor liable for losses sustained by others that were
caused by the subcontractor's negligence.
As a matter of law, coinsured are immune from a subrogation claim by their insurer absent
an explicit proviso to the contrary. Fireman's assumed the entire risk of loss and cannot now
shift liability for insured losses to MacSween and Johnson. The order granting partial
summary judgment and dismissing Fireman's subrogation claim is affirmed.
Mowbray, C. J., and Gunderson and Manoukian, JJ., and Zenoff, Sr. J.,
4
concur.
____________________

4
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable Gordon Thompson, who voluntarily disqualified himself in this case. Nev. Const. art. 6, 19; SCR
10.
____________
96 Nev. 220, 220 (1980) Moore v. State
MICHAEL D. MOORE, Appellant, v. THE STATE
No. 10716
February 28, 1980 607 P.2d 105
Appeal from judgment of conviction for robbery and burglary, Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
Defendant appealed, and the Supreme Court, Gunderson, J., held that: (1) testimony which
recounted out-of-court statements made in a conversation between the witness and the
declarant was not inadmissible heresay; (2) even assuming the prosecutor violated the court's
pretrial order precluding evidence that defendant had marijuana in his residence, there was no
reversible error; (3) testimony that defendant had filled out a check bearing a false signature
and that defendant kept blank checks in his residence was not properly admitted under
any exception to the rule precluding "other crimes" evidence; {4) evidence that defendant
had expressed an intent to purchase marijuana was within the scope of the statute which
provides that evidence of other crimes or wrongs is not admissible; and {5) under the
circumstances, the erroneous admission of other crimes evidence was not harmless
beyond a reasonable doubt.
96 Nev. 220, 221 (1980) Moore v. State
a check bearing a false signature and that defendant kept blank checks in his residence was
not properly admitted under any exception to the rule precluding other crimes evidence; (4)
evidence that defendant had expressed an intent to purchase marijuana was within the scope
of the statute which provides that evidence of other crimes or wrongs is not admissible; and
(5) under the circumstances, the erroneous admission of other crimes evidence was not
harmless beyond a reasonable doubt.
Reversed and remanded for new trial.
Morgan D. Harris, Public Defender, and Bruce Judd, Deputy Public Defender, Clark
Richard Bryan, Attorney General, Carson City; Robert Miller, District Attorney, and Gary
Weinberger, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Testimony as to out-of-court conversation between the witness and declarant, allegedly one of the
participants in the crime for which defendant was on trial, wherein the declarant essentially admitted that
defendant and two others had robbed a bar owner and ransacked the bar was not inadmissible hearsay
where the testimony, which occurred while the witness was relating a conversation with defendant, made
the conversation with defendant more meaningful and where neither the declarant's veracity nor the
accuracy of his perception or recollection of the facts was involved. NRS 51.035, 51.065.
2. Criminal Law.
Contention that a ruling on a motion in limine is advisory in nature and leaves the prosecution free to
present its theory of the case in spite of such ruling was rejected.
3. Criminal Law.
Even assuming prosecutor violated court's pretrial ruling which precluded evidence that defendant had
marijuana in his residence, where defense objection was sustained and the trial court found that no
prejudice resulted from the alleged violation and denied a motion for mistrial, there was no reversible error.
4. Criminal Law.
It is improper to show by proof of previous bad conduct that the accused had a propensity for committing
crime and that, because he committed other crimes on another occasion, he probably committed the crime
for which he is on trial. NRS 48.045, subd. 2, 50.085, subd. 3.
5. Criminal Law.
Where defendant had testified that he was familiar with bar that had been burglarized and that he knew
that the owner had a liberal check-cashing policy, the fact that defendant had filled out a check bearing a
false signature or had cashed the check was not relevant to show preparation, plans or knowledge with
respect to burglary and robbery for which defendant was on trial and, therefore, it was error for the trial
court to admit, over defendant's objection, for the purpose of showing that defendant was familiar with the
bar, testimony of two witnesses that they had seen defendant fill out a check which was signed by another
person and that defendant kept blank checks in his residence. NRS 48.045, subd. 2.
96 Nev. 220, 222 (1980) Moore v. State
6. Criminal Law.
Possession of marijuana is a crime and, therefore, a stated intent to purchase marijuana would come
within the ambit of other crimes, wrongs or acts for purposes of the section which provides that 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. NRS 48.045, subd. 2.
7. Criminal Law.
Error which occurred when other crimes evidence was admitted over objection could not be deemed
harmless beyond a reasonable doubt and required reversal of robbery and burglary convictions where the
evidence against defendant could not be characterized as overwhelming, no witness could identify
defendant as one of perpetrators of the crimes and the defense raised a substantial question as to the
credibility of a prosecution witness who was testifying under a grant of immunity from prosecution for
unrelated crimes. NRS 48.045, subd. 2.
OPINION
A jury convicted Michael D. Moore of robbery and burglary. The court imposed
concurrent sentences of ten years for the robbery, and five years for the burglary. This appeal
follows.
On July 4, 1977, shortly after midnight, three men entered a trailer house in North Las
Vegas, and took money and keys from its occupant. The victim, who owned Gabe's Bar, went
to his business following the robbery, and found the doors open and money missing from the
cash register.
Based on a tip from Rae Hampton, police arrested John Knight, James Buono and the
appellant. Neither the victim nor another witness to certain events preceding the robbery
could identify appellant. They only could identify Buono. Pursuant to a grant of immunity
from prosecution for unrelated charges, however, Hampton testified against appellant.
Prior to trial, the court ruled on defense motions in limine. Although the court precluded
evidence that appellant had marijuana in his residence, it denied a defense request to exclude
all references to marijuana and to exclude statements by Buono to Hampton which had been
made following the crimes.
[Headnote 1]
1. The prosecution elicited from Hampton the content of a conversation with appellant
after the crimes. In telling of that conversation, Hampton mentioned an earlier conversation in
which Buono essentially admitted that the three men had robbed the bar owner and
ransacked the bar.
96 Nev. 220, 223 (1980) Moore v. State
robbed the bar owner and ransacked the bar. The court instructed the witness to confine her
testimony to what she said to the appellant and to what he said in response.
Appellant contends any statements by Buono constituted inadmissible hearsay. See NRS
51.035
1
; NRS 51.065. Appellant raises no issue on appeal that the conversation between
Hampton and appellant was inadmissible. Cf. Beasley v. State, 81 Nev. 431, 404 P.2d 911
(1965).
We agree with the prosecution that the testimony in question did not constitute hearsay.
Mention of Buono's statements made the conversation between Hampton and appellant
meaningful. Cf. U.S. v. Abrahamson, 568 F.2d 604 (8 Cir. 1978); People v. Richards, 552
P.2d 97 (Cal. 1976). Neither Buono's veracity nor the accuracy of Buono's perception or
recollection of the facts was involved. Here, the focus was upon appellant's responses, not
upon the recitation which evoked those responses. The defense made extensive use of
Hampton's preliminary hearing testimony in an effort to impeach her. See B. Jefferson,
California Evidence Benchbook 1.3, 1.7 (1972).
[Headnotes 2, 3]
2. The appellant next contends that the prosecutor violated the court's previous ruling
concerning marijuana, and, as a result, the conviction should be reversed. At oral argument
before this court, the prosecutor argued that a ruling on a motion in limine is advisory in
nature and the prosecution is free to present its theory of the case in spite of the ruling. We
reject this contention. Nevertheless, appellant's contention is without merit. Assuming the
prosecutor violated the court's order in asking the question, the defense objection was
sustained. The trial court found no prejudice had resulted and denied a motion for mistrial.
We find no reversible error. Stewart v. State, 94 Nev. 378, 580 P.2d 473 (1978). Cf. Owens v.
State, 94 Nev. 171, 576 P.2d 743 (1978).
3. On cross-examination, the prosecutor showed appellant certain checks and asked
whether appellant had ever filled out a check which Knight signed. The appellant answered
that he had not.
____________________

1
51.035 Hearsay' defined. Hearsay' means a statement offered in evidence to prove the truth of the
matter asserted unless:
1. The statement is one made by a witness while testifying at the trial or hearing;
. . . .
3. The statement is offered against a party and is:
(a) His own statement, in either his individual or a representative capacity;
(b) A statement of which he has manifested his adoption or belief in its truth; . . .
96 Nev. 220, 224 (1980) Moore v. State
not. On rebuttal, over objections by appellant, Hampton and her daughter testified that they
had seen appellant do so, and that appellant kept blank checks in his residence. The inference
was that appellant cashed forged checks at Gabe's Bar. On rebuttal, the prosecutor also
elicited from Hampton that, after the crimes occurred, appellant told her he intended to buy a
brick of marijuana.
[Headnote 4]
The appellant contends the court erred in admitting this testimony, in that it evidenced
other crimes, wrongs and acts.
2
It is improper to show by proof of previous bad conduct that
the accused had a propensity for committing crime; and, that because he committed other
crimes on another occasion, he probably committed the crime for which he is being tried.
Such evidence is apt to be given too much weight by a jury. Jones on Evidence 4.18 (6 ed.
1972).
The prosecutor contends that the testimony regarding the checks could be supported on
any of several grounds: to show preparation, plan or knowledge; to show a common scheme
or plan; to impeach appellant's testimony; or, under Dutton v. State, 94 Nev. 461, 581 P.2d
856 (1978). We disagree.
[Headnote 5]
The fact that appellant filled out a check bearing a false signature or cashed it was not
relevant to show preparation, plans or knowledge of a burglary and robbery. The trial court
admitted the evidence to show appellant was familiar with Gabe's Bar. The appellant testified
he was familiar with Gabe's Bar and knew the owner had a liberal check cashing policy.
Hence, the testimony was not properly admitted as an exception to NRS 48.045(2) because
the prejudice outweighed whatever probative value it had. Nor was the evidence proper
impeachment. NRS 50.085(3) provides:
Specific instances of the conduct of a witness, for the purpose of attacking or
supporting his credibility, other than conviction of crime, may not be proved by
extrinsic evidence. They may, however, if relevant to truthfulness, be inquired into on
cross-examination of the witness himself . . . subject to the general limitations upon
relevant evidence and the limitations upon interrogation and subject to the provisions of
NRS 50.090.
____________________

2
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order
to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.
96 Nev. 220, 225 (1980) Moore v. State
Professor McCormick writes that facts showing misconduct of the witness (for which no
conviction has been had) are collateral, and if denied on cross-examination, cannot be
contradicted. McCormick, Evidence 47 at 99 (2 ed. 1972). Having received a negative
answer to his question, the prosecutor was foreclosed from proving otherwise. But cf. Harris
v. New York, 401 U.S. 222 (1971) (use of accused's voluntary statements taken in violation
of Miranda to impeach accused's testimony permissible to prevent perjury.)
[Headnote 6]
The State argues that no error occurred because evidence of an intent to purchase
marijuana was not evidence of another crime. Possession of marijuana, however, is a crime
and, thus, a stated intent to purchase marijuana would come within the ambit of other
wrongs or acts, set forth in NRS 48.045(2).
[Headnote 7]
4. The remaining question is whether reversal is required. The evidence in this case
cannot be characterized as overwhelming. Cf. Coffman v. State, 93 Nev. 32, 559 P.2d 828
(1977). No witness could identify appellant as one of the perpetrators. The defense raised a
substantial question as to the credibility of Rae Hampton. The appellant consistently denied
conversation occurred as Hampton testified. Hampton testified differently at trial than at
preliminary hearing, about where appellant was during their conversation and his
participation in it. A jury might view her testimony differently if unaware of the appellant's
other activities, which only indicated bad character. We are unable to state that the error was
harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967).
____________
96 Nev. 226, 226 (1980) McDermond v. Siemens
ROBERT C. McDERMOND and ARTHUR J. FRITZ,
Appellants, v. JOHN SIEMENS, Respondent.
No. 11617
February 28, 1980 607 P.2d 108
Appeal from summary judgment, Eighth Judicial District Court, Clark County; James A.
Brennan, Judge.
Judgment creditor brought suit seeking to enforce Arizona default judgment. The district
court found that the Arizona court was without personal jurisdiction and granted summary
judgment, and judgment creditor appealed. The Supreme Court, Manoukian, J., held that
allegations did not constitute sufficient bases for assertion of in personam jurisdiction by
Arizona.
Affirmed.
Mills, Galliher, Lukens, Gibson & Schwartzer, Las Vegas, for Appellants.
Eugenia Pintos Ohrenschall, Las Vegas, for Respondent.
In reviewing propriety of summary judgment, Supreme Court will review evidence in light most
favorable to nonmoving party and give that party benefit of every favorable inference. NRCP 56(c).
2. Judgment.
A litigant has right to a trial where there is slightest doubt as to the facts. NRCP 56(c).
3. Courts.
A state may only acquire in personam jurisdiction over nonresident defendant if he has minimum contacts
with state so that maintenance of suit will not offend traditional notions of fair play and substantial justice.
4. Courts.
Allegations which were insufficient to show that nonresident individual was involved with execution of
note by company or that company was in fact alter ego of nonresident were insufficient bases for assertion
of in personam jurisdiction by Arizona over nonresident. 16 A.R.S. Rules of Civil Procedure, Rule 4(d)(1),
(e)(2)(b).
OPINION
In this appeal by plaintiffs-appellants we are asked to determine whether the district court
abused its discretion in granting summary judgment for respondent. The complaint filed
below was to enforce an Arizona judgment against respondent.
was to enforce an Arizona judgment against respondent. The district court found that the
Arizona court was without jurisdiction over respondent. We affirm.
In December of 1976, appellants filed an action on a promissory note against respondent
and other named defendants in an Arizona Superior Court. Appellant McDermond alleged
that on November 19, 1974, he had loaned $30,000 to Nezona Corporation of Arizona.
Respondent, a non-domicilliary of Arizona, was personally served in Nevada. This service
was pursuant to Arizona law. Ariz.R.Civ.P., Rules 4(d)(1), 4(e)(2)(b) (1973). None of the
defendants entered an appearance and their defaults were entered on February 8, 1977 by the
Arizona court, which found that all the defendants had caused an event to occur in the state
out of which the claim arose and thus were subject to the jurisdiction of that court. The
Arizona court also determined that the corporation was in fact the alter ego of not only the
defendant, Siemans, but of two other named defendants. This conclusion was unsupported by
any factual finding.
This action was instituted by appellants on November 14, 1977, seeking to enforce the
Arizona default judgment against respondent. Respondent answered denying the allegations
in the complaint. Respondent also interposed the affirmative defense of lack of jurisdiction by
the Arizona court. Appellants moved for summary judgment asserting proper jurisdiction.
This motion was opposed by respondent.
Respondent subsequently filed a cross-motion for summary judgment. The district court
granted the motion. Appellants filed a motion for rehearing and attached an affidavit which
apparently was not in the court's record although purportedly filed previously with the first
motion for summary judgment.
On December 19, 1978, the district court entered summary judgment for respondent for
the reason that the State of Arizona lacked in personam jurisdiction over [respondent]. . . .
This appeal followed.
[Headnotes 1, 2]
Appellants argue that there were remaining issues of fact and that a summary judgment
and dismissal was improper. Of course, summary judgment may be granted only if the
pleadings and affidavits 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. NRCP 56(c). We have stated
that we will review the evidence in a light most favorable to the nonmoving party and give
that party the benefit of any favorable inferences. Golden Nugget, Inc. v. Ham, 95 Nev. 45,
46-47, 5S9 P.2d 173, 174 {1979); Lipsihie v. Tracy Investment Co.,
589 P.2d 173, 174 (1979); Lipsihie v. Tracy Investment Co., 93 Nev. 370, 375, 566 P.2d 819,
822 (1977). Additionally, a litigant has a right to a trial where there is the slightest doubt as
to the facts. Golden Nugget, Inc. v. Ham, 95 Nev. at 46-47, 589 P.2d at 174, quoting McColl
v. Scherer, 73 Nev. 226, 231-32, 315 P.2d 807, 810 (1975).
[Headnote 3]
We recognize that Arizona law is controlling as to the question of jurisdiction over
respondent by that state. See Ariz.R.Civ.P., Rules 4(d)(1), 4(e)(2)(b) (1973). And jurisdiction
may be extended to the extent allowed by the United States Constitution. Manufacturers'
Lease Plans, Inc. v. Alverson Draughon College, 565 P.2d 864, 865 (Ariz. 1977). But a state
may only acquire in personam jurisdiction over a non-resident defendant if he has minimum
contacts with the state so that maintenance of the suit will not offend traditional notions of
fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316
(1945). Accord, Hanson v. Denckla, 357 U.S. 235 (1958); Mizner v. Mizner, 84 Nev. 268,
439 P.2d 679 (1968). See World-Wide Volkswagen Corp. v. Woodson, 100 S.Ct. 559 (1980).
And, in certain situations, personal jurisdiction may be asserted over a non-resident
individual when a resident corporation is in fact the alter ego of that individual. Croyle v.
Texas Eastern Corp., 464 F.Supp. 377, 379 (D.Pa. 1979); Graber v. Prelin Industries, Inc.,
368 F.Supp. 1358, 1364-66 (D.S.D. 1974); Lodge v. Western New York Dance Studios, Inc.,
279 N.Y.S.2d 756, 759 (Sup.Ct. 1967). Nevertheless, under NRCP 56(e), the affidavit filed
by appellants here was insufficient as a matter of law to support any finding of jurisdiction.
[Headnote 4]
With respect to the 1974 execution of the subject note, the affidavit filed by appellants
only alleges that, at the time, they were not informed that [respondent] had severed his
relationship with Nezona, Inc., but were at all times informed that [respondent] was active in
the operation and management of Nezona, Inc. This allegation, even if true, is certainly
insufficient to show that respondent was involved with the execution of the subject note or
that he was generally subject to the jurisdiction of Arizona courts at that time. Indeed, we are
unable to ascertain just who informed appellants of respondent's alleged activity. Moreover,
this does not even suggest such control of a corporation, or underlying fraud or injustice
which would justify the setting aside of the corporate entity. See North Arlington Medical
Bldg. Inc. v. Sanchez Constr.,
Constr., 86 Nev. 515, 471 P.2d 240 (1970). Additional allegations are that appellant
McDermond met with respondent and the president of Nezona, Inc. in 1975 to discuss
company mining operations. Respondent was purportedly introduced as a part-owner and
active participant of the company. Finally, appellant McDermond stated that, in February of
1976, he met again with the company president who informed McDermond that respondent
was still a stockholder of Nezona, Inc., and had made a large investment. Respondent's
affidavit showed, inter alia, that he had resigned as a director effective August 29, 1974.
McDermond said he was never informed that respondent resigned as chairman of the board
of directors of Nezona, Inc.
We fail to see how these alleged facts constitute sufficient bases for the assertion of
jurisdiction by Arizona over respondent. Although the Arizona court stated that respondent,
as one of the many defendants, had caused an event to occur within the state and that the
company was in fact the alter ego of respondent, no facts were stated to support these
conclusions. Appellant's affidavit does not establish a sufficient nexus between respondent
and the executed note, or between respondent and the corporation to show alter ego. The
affidavit merely states that in 1974 respondent was active in managing the corporation. The
most that can be said for subsequent years was that respondent was a stockholder. We
observe that the affidavit did not state that respondent was in fact the chairman of the board.
On the contrary, respondent stated he was never the chairman of the board nor was he a
stockholder.
Appellants cannot rely on an extraterritorial judgment based on unsubstantiated factual
conclusions or an affidavit which fails to connect a defendant to the forum or a particular
transaction. Cf. Davidson & Co. v. Allen, 89 Nev. 126, 130, 508 P.2d 6, 8 (1973) (insufficient
minimum contacts for Canadian court's exercise of in personam jurisdiction over American
domicilliary in contract action where defendants were never present in Canada, did not
commit any acts there, had no contact with the plaintiff either in Canada or in Nevada, and
made no appearance in that action). Appellants failed to meet their burden of establishing
jurisdiction. See Basic Food Indus., Inc. v. District Court, 94 Nev. 111, 575 P.2d 934 (1978).
We affirm the summary judgment in favor of respondent.
____________
96 Nev. 230, 230 (1980) Prostack v. Lowden
RICHARD C. PROSTACK, Individually, and RICHARD C. PROSTACK, dba R. C.
PROSTACK & ASSOCIATES, Appellants, v. PAUL LOWDEN, an Individual, and
HACIENDA HOTEL & CASINO, Respondents.
No. 11946
February 28, 1980 606 P.2d 1099
Appeal from judgment of dismissal under NRCP 41(e). Eighth Judicial District Court,
Clark County; Howard W. Babcock, Judge.
Appeal was taken from dismissal by the district court of plaintiff's breach of contract
complaint. The Supreme Court held that stipulation for continuance of trial date to beyond
five-year limitation period did not avoid the five-year requirement where the stipulation was
silent as to expiration of the five-year limit and judge who heard the motion was not made
aware of the problem.
Affirmed.
L. Earl Hawley, Las Vegas, for Appellants.
Wiener, Goldwater & Waldman, Las Vegas, for Respondents.
Mandatory dismissal for failure to bring an action to trial within five years from filing of the complaint
can be avoided only by a written stipulation between the parties extending the time. NRCP 41(e).
2. Stipulations.
Stipulation for continuance of trial date to beyond five-year limitation period did not avoid the five-year
requirement where the stipulation was silent as to expiration of the five-year limit and judge who heard the
motion was not made aware of the problem. NRCP 41(e).
OPINION
Per Curiam:
Appellants' complaint was dismissed by the district court under NRCP 41(e) for failure to
bring the action to trial within five years. We affirm.
Appellants' complaint, seeking damages for breach of an oral contract, was filed on
February 21, 1974. On August 29, 1978, appellants moved for an early trial date, on the
ground that the five year limitation of NRCP 41(e) would run on February 20, 1979. The trial
was set for January 15, 1979, and discovery proceeded. On January 5, 1979, appellants
indicated to respondents that a hitherto unknown witness would testify at trial.
96 Nev. 230, 231 (1980) Prostack v. Lowden
to respondents that a hitherto unknown witness would testify at trial. On January 10, 1979,
respondents moved to vacate the trial date and continue the matter in order to depose the new
witness; appellants did not oppose the motion and the court reset the trial for April 9, 1979.
The motion and the order entered granting it made no mention of the five year limitation, and
neither party brought it to the attention of the court. On March 13, 1979, respondents moved
for mandatory dismissal under NRCP 41(e) on the ground that the five years had expired;
appellants opposed the motion, contending that respondents had stipulated to the extension of
the five year period in stipulating to the additional time for discovery. The district court ruled
that after the five years had elapsed from the filing of the complaint, in the absence of a
written stipulation, dismissal was mandatory, and ordered the complaint dismissed. This
appeal ensued.
[Headnotes 1, 2]
Our previous decisions construing NRCP 41(e) clearly indicate that mandatory dismissal
for failure to bring an action to trial within five years from the filing of the complaint can be
avoided only by a written stipulation between the parties extending the time. Johnson v.
Harber, 94 Nev. 524, 582 P.2d 800 (1978). We do not quarrel with appellants' contention that
an oral stipulation, entered into in open court, approved by the judge, and spread upon the
minutes, is the equivalent of a written stipulation for the purposes of this rule. Indeed, in
Thran v. District Court, 79 Nev. 176, 181, 380 P.2d 297, 300 (1963), we held only that
words and conduct . . . short of a written stipulation cannot estop a defendant from
asserting the mandatory dismissal rule. In the instant case, however, the stipulation for a
continuance was silent as to the expiration of the five year limit, and the judge who heard the
motion was not made aware of the problem. If the issue of the five year rule had been raised
at the hearing on the motion for a continuance, the district judge would have been able to
schedule the trial at a date within the five year period, to condition the granting of the
continuance on a written stipulation to waive the five year rule, or to deny the continuance
altogether. It is upon the plaintiffs, the appellants here, that the duty rests to bring the case to
trial within the period specified by the rule.
It is not contended that the conduct of respondents here amounted to fraud upon appellants
or upon the court. See Evans v. Cook, 11 Nev. 69 (1876). Absent a showing of extrinsic
fraud, we decline to formulate exceptions to the plain language of the rule.
Affirmed.
____________
96 Nev. 232, 232 (1980) Sullivan v. Terra Marketing of Nev.
LU ANN SULLIVAN and JAMES P. MATTES, Appellants, v. TERRA
MARKETING OF NEVADA, a Nevada Corporation, Respondent.
No. 11281
February 28, 1980 607 P.2d 111
Appeal from dismissal under NRCP 12 as to one defendant, certified as a final judgment
under NRCP 54(b), Eighth Judicial District Court, Clark County; Keith C. Hayes, Judge.
Plaintiffs appealed from a judgment of the district court dismissing their personal injury
complaint against corporate defendant on grounds that relevant limitations statute had run.
The Supreme Court held that where plaintiffs adequately described in their complaint
fictitiously named defendant as corporate entity whose agents or employees proximately
caused their injuries and where plaintiffs' persistent efforts to discover such corporation's true
name before running of limitations period were thwarted only by defendants' inaccurate and
misleading statements, such corporation, when its true name was substituted for the fictitious
name, was required to be considered as having been a party to the action from its
commencement and therefore relevant limitations statute had not run as against such
corporation.
Reversed.
Embry & Shaner, Ltd., Las Vegas, for Appellants.
Reid and Alverson, Las Vegas, for Respondent.
1. Parties.
Rule providing that a party whose name is unknown may be designated by any name permits a plaintiff to
bring suit before limitations statute has run against a defendant whose identity or description is known, but
whose true name cannot be discovered through the exercise of reasonable diligence. NRCP 10(a).
2. Limitation of Actions.
When true name of a defendant is substituted for fictitious name, then defendant is to be considered a
party to the action from its commencement. NRCP 10(a).
Where plaintiffs adequately described in their complaint fictitiously named defendant as corporate entity
whose agents or employees proximately caused their injuries and their persistent efforts to discover such
corporation's true name before running of limitations period were thwarted only by defendants' inaccurate
and misleading statements, such corporation, when its true name was substituted for the fictitious name,
was required to be considered as having been a party to action from its
commencement and therefore relevant limitations statute had not run as against
such corporation.
was required to be considered as having been a party to action from its commencement and therefore
relevant limitations statute had not run as against such corporation. NRCP 10(a), 54(b).
OPINION
Per Curiam:
Lu Ann Sullivan and James P. Mattes appeal from the district court's dismissal of their
complaint under NRCP 12, on the grounds that the relevant limitations statute had run, as
against one defendant, Terra Marketing of Nevada, a Nevada corporation. We reverse.
On July 27, 1976, appellants Sullivan and Mattes filed a personal injury complaint, arising
out of a May, 1975 accident, against E. Kevin Stahl, Carol Christensen, Does I - X, and Roe
Corporations I - X. The complaint alleged that Roe Corporations I - X were the fictitious
names of the corporations whose acts or omissions taken by [their] officers, employees or
agents proximately resulted in the injuries complained of herein. . . .
Throughout discovery, appellants sought, by employing interrogatories, to discover any
and all employment relationships which might have any bearing on their claims. The answers
submitted by the defendants were always the same: Christensen was self-employed as the
owner of the Las Vegas Welcome Center and Stahl was her employee.
On June 1, 1977, appellants discovered while deposing Christensen that, despite her earlier
answers to the propounded interrogatories, she now recalled that at the time of the alleged
accident the Welcome Center was owned by Terra Marketing and she was its managerial
employee. Appellants promptly filed an amended complaint naming Terra Marketing as a
party defendant.
More than one year later, Terra Marketing moved to dismiss the complaint against it on
the grounds that the relevant two year limitations statute, see NRS 11.190(4)(e), had run.
Appellants opposed the motion, arguing that the limitations statute had no applicability to
their situation, since Terra Marketing had merely been substituted for a previously, albeit
fictitiously, named defendant, Roe Corporation I. The district court dismissed the complaint
against Terra Marketing, and certified the dismissal as a final judgment under NRCP 54(b);
this appeal followed.
[Headnotes 1, 2]
NRCP 10(a) provides, in pertinent part, that [a] party whose name is not known may be
designated by any name, and when his true name is discovered, the pleading may be amended
accordingly. Rule 10(a) permits a plaintiff to bring suit, before the limitations statute has
run, against a defendant whose identity or description is known, but whose true name cannot
be discovered through the exercise of reasonable diligence. State ex rel. Dep't Hwys. v.
District Ct., 95 Nev. 715, 717, 601 P.2d 710, 711 (1979); Hill v. Summa Corporation, 90
Nev. 79, 82-3 n.1, 518 P.2d 1094, 1096 (1974) (Thompson, J., concurring). When the case is
one truly within Rule 10(a) and the true name of a defendant is substituted for the fictitious
name, then the defendant is to be considered a party to the action from its commencement. Id.
Such is the case here.
[Headnote 3]
In the instant case, appellants adequately described, in their complaint, the fictitiously
named defendant, Roe Corporation, as the corporate identity whose agents or employees
proximately caused appellants' injuries. See Gilmore v. Lick Fish & Poultry, Inc., 71
Cal.Rptr. 212 (Ct.App. 1968). Moreover, appellants' persistent efforts to discover this Roe
Corporation's true name before the running of the limitations period were thwarted only by
the defendants' inaccurate and misleading statements. See Schroeter v. Lowers, 67 Cal.Rptr.
270 (Ct.App. 1968). Under circumstances such as these, Terra Marketing must be considered
to have been a party to this action from its commencement; the district court erred in
concluding otherwise.
The judgment of the district court, entered upon the order dismissing appellants' complaint
against Terra Marketing, is therefore reversed.
____________
96 Nev. 235, 235 (1980) Moberg v. First National Bank
PEARL E. MOBERG, Appellant, v. FIRST NATIONAL BANK OF NEVADA, Executor of
the Estate of AUGUST B. MOBERG, Deceased; RAYMOND L. MOBERG; MRS. ANNIE
RICHARDSON; DELLA MOBERG BRIELAND; LEONA MOBERG PAULSON; MRS.
ELRAY D. REUTZ; ELEANORE MOBERG; EDWIN R. MOBERG; DONALD
BELANGER; NORMAN MOBERG and CHESTER MOBERG, Respondents.
No. 11093
February 28, 1980 607 P.2d 112
Appeal from declaratory judgment, Second Judicial District Court, Washoe County; James
J. Guinan, Judge.
From judgment of the district court declaring that party possessed no community property
interest in certain property, she appealed. The Supreme Court held that: (1) where certain
properties extant at time of death were traced to decedent's separate property, they were
separate property, and (2) property acquired during marriage with funds, the status of which
was uncertain, was presumed to be community property, absent clear and certain proof to the
contrary.
Murphy & Nelson-Kortland, Chartered, Reno, for Appellant.
A. D. Jensen, Reno, for Respondent First National Bank of Nevada.
Harold O. Taber, Reno, for Respondent heirs.
1. Husband and Wife.
Where certain properties extant at time of death were traced to decedent's separate property, they were
separate property.
Trial court did not err in determining that house, which had been purchased with decedent's separate
property funds, was his separate property where, though there was evidence that house had been
well-maintained, there was no evidence as to the amounts expended, the status of the funds or the effect
such maintenance had on house's value.
Property acquired during marriage with funds, the status of which was uncertain, was presumed to be
community property, absent clear and certain proof to the contrary.
Where United States bonds, which were not traceable to property possessed by decedent at time of
marriage and which, under state Supreme Court decision, were presumed to have been community assets,
were distributable under compulsion of federal law as though they were separate property, an offset to
be paid out of remaining community assets was required so as to permit party to
receive her full half share of total community assets.
property, an offset to be paid out of remaining community assets was required so as to permit party to
receive her full half share of total community assets.
OPINION
Per Curiam:
[Headnotes 1, 2]
Pearl E. Moberg appeals from the judgment of the district court, rendered on a stipulated
set of facts, declaring that she possesses no community property interest in certain properties.
It was stipulated that at the time of marriage, decedent possessed property valued at $79,956.
This amount was clearly decedent's separate property. Certain properties extant at the time of
death were traced to this separate property
1
and are, therefore, separate property.
2
The main
subject of this appeal is the balance of the property remaining at the time of decedent's death
which was not traceable to the property possessed by him at the time of marriage. There was
no evidence properly before the trial court as to any efforts expended or expenses incurred by
the community. Thus, there is no specific information available as to the source, or status, of
the funds used to acquire these non-traceable assets.
[Headnote 3]
The district court concluded that $233,693, which represented the total value of both the
traceable and non-traceable assets, represented a reasonable return on the original $79,956
and, therefore, the total amount should be considered the decedent's separate property. In
doing so, it appears the district court was attempting to apply the method of apportionment
adopted in Pereira v. Pereira, 103 P.
____________________

1
The following items appear to have been traced to the separate property of the decedent (numbers supplied
are the preliminary inventory item numbers):
16. 1,384 shares of American Business Shares Inc., common stock.
18. 198 shares of American Telephone and Telegraph Company, common stock (an additional 198
shares of the stock could not be traced).
19. 23 shares of Sierra Pacific Power Company, preferred stock.
75. Series E bond.
83. House and lot.

2
Appellant also contends that the increase in value of a house, admittedly purchased with separate property
funds, should be apportioned because there was some evidence that the house had been well maintained;
however, there was no evidence as to the amounts expended, the status of those funds, or the effect such
maintenance had on the house's value. Under these circumstances, the district court's determination that the
house was decedent's separate property was not erroneous. As to the balance of the traceable properties, no
assertion as to any community efforts expended has been made; therefore, the question of allocation of a portion
of the value of these assets to the community does not arise, see Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170
(1978); Johnson v. Johnson, 89 Nev. 244, 510 P.2d 625 (1973).
court was attempting to apply the method of apportionment adopted in Pereira v. Pereira, 103
P. 488 (Cal. 1909) and approved by this court in Johnson v. Johnson, 89 Nev. 244, 510 P.2d
625 (1973). The Pereira method of apportionment provides in essence that, where the value
of originally separate property has been increased due to community efforts, the original
value of the separate property plus a reasonable rate of return shall be allocated to the separate
property of the spouse and any excess shall be allocated to the community. Johnson v.
Johnson, supra.
However, before there can be any apportionment under Pereira, it first must be established
that an identifiable separate-property asset has been enhanced in value due to community
efforts. See Johnson v. Johnson, supra. Here, we are not presented with such a situation.
Instead, we are called upon to determine the status of property acquired during marriage with
funds the status of which is uncertain. The correct rule of law to be applied is that such assets
are presumed to be community property unless the presumption is rebutted by clear and
certain proof to the contrary. Todkill v. Todkill, 88 Nev. 231, 495 P.2d 629 (1972); Kelly v.
Kelly, 86 Nev. 301, 468 P.2d 359 (1970); Carlson v. McCall, 70 Nev. 437, 271 P.2d 1002
(1954).
While, apart from tracing, it may be possible to establish the separate character of an asset
as, for example, where it is shown that no community assets existed on the date of
acquisition, see Estate of Murphy, 544 P.2d 956 (Cal. 1976), the record in this case allows no
basis to establish by clear and certain proof that the contested property was anything but
community in nature.
[Headnote 4]
Accordingly, we hold those properties that cannot be traced to be community property, and
reverse and remand this case for proceedings consistent with the views expressed herein.
3

____________________

3
Remand is necessary because, in determining that all the assets were separate property, the district court did
not address certain issues that now must be decided. For instance, it appears that certain gifts made by the
decedent may be valid even though made from community funds. See Christensen v. Christensen, 91 Nev. 4, 530
P.2d 754 (1975); Nixon v. Brown, 46 Nev. 439, 214 P. 524 (1923). We express no opinion on this or other
questions that may arise, but leave them for the district court to determine.
We also note that certain U.S. bonds (Nos. 40-74, 76-82), although not traceable, are distributable under
compulsion of federal law as though they were separate property. See Yiatchos v. Yiatchos, 376 U.S. 306
(1964). However, since these bonds, under our decision, are presumed to have been community assets, appellant
is entitled to an offset to be paid out of the remaining community assets. In this way, appellant will receive her
full half share of the total community assets. See Yiatchos v. Yiatchos, supra.
____________
96 Nev. 238, 238 (1980) Carr v. State
OTTO CARR, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 10797
February 28, 1980 607 P.2d 114
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Defendant was convicted in the district court of sale of controlled substance and he
appealed. The Supreme Court held that: (1) in the absence of evidence of conspiracy between
defendant and the declarant, it was error to admit testimony concerning statements made by
the declarant, and (2) because that testimony undermined defendant's theory of the defense,
the error was not harmless.
Morgan D. Harris, Public Defender, and Gary H. Lieberman,
Deputy Public Defender, Clark County, for Appellant.
H. Leon Simon, Chief Appellate Deputy, Clark County, for Respondent.
1. Criminal Law.
Admissibility of testimony under the coconspirator exception is not predicated upon a conspiracy charge
against the defendant.
2. Criminal Law.
Before testimony of hearsay statements made by coconspirator may be admitted, the existence of a
conspiracy must be established by independent evidence.
3. Criminal Law.
In the absence of evidence supporting the existence of conspiracy between defendant and another or any
showing that statements made by the other were in the course and furtherance of a conspiracy, it was error
to admit testimony concerning statements made by that other person.
4. Criminal Law.
Because hearsay testimony of police officer directly undermined defendant's theory of the case,
admission of the hearsay testimony was not harmless.
OPINION
Per Curiam:
A jury convicted Otto Carr of sale of a controlled substance (heroin), a felony under NRS
453.321 and 453.161, and the district court sentenced him to serve a 5-year term of
imprisonment. Carr contends the judgment of conviction should be reversed because,
among other things, testimony concerning statements of an alleged coconspirator was
hearsay and should not have been admitted.
96 Nev. 238, 239 (1980) Carr v. State
reversed because, among other things, testimony concerning statements of an alleged
coconspirator was hearsay and should not have been admitted.
At the trial, a police officer testified that while he was working in an undercover capacity
he went to an apartment in Las Vegas for the purpose of purchasing narcotics. Carr allegedly
let him in the apartment, informed him that he was doing business, and then sold the officer
two balloons containing heroin for $30.
Carr raised the defense of duress, and testified that he was induced to make the sale by
threats of violence made by Richard Loucious. On rebuttal, the police officer testified that he
had purchased heroin from Carr on two subsequent occasions and that the price had increased
from $15 to $20 per balloon. The officer was allowed to explain the increase in cost, over
defense objections, by recounting statements allegedly made to him by one Freddy Adams to
the effect that the increase in price was pocketed by the person who sold the heroin, instead of
being turned over to Richard Loucious. Other than the officer's testimony that Adams was
supplied with heroin by Loucious, there is no evidence in the record which indicates that a
conspiracy existed between Carr and Adams.
[Headnotes 1-3]
Appellant argues that the testimony concerning the alleged statements of Adams was
improperly admitted under the coconspirator exception to the hearsay rule
1
because Carr was
not charged with conspiracy and there was no evidence that the statements were made in the
furtherance of a conspiracy. The admissibility of testimony under the coconspirator exception
is not predicated upon a conspiracy charge against the defendant. Cranford v. State, 95 Nev.
471, 596 P.2d 489 (1979). However, before testimony of hearsay statements made by a
coconspirator may be admitted, the existence of the conspiracy must be established by
independent evidence, Fish v. State, 92 Nev. 272, 274, 549 P.2d 338, 340 (1976), and the
statements must have been made during the course and in furtherance of the conspiracy,
NRS 51.035(3) NRS 51.035(3)(e). In the instant case, there was no evidence supporting the
existence of a conspiracy between Carr and Adams, nor was there any showing that the
statements made by Adams were in the course and furtherance of a conspiracy.
____________________

1
NRS 51.035 provides, in pertinent part:
Hearsay' means a statement offered in evidence to prove the truth of the matter asserted unless:
. . . .
3. The statement is offered against a party and is:
. . . .
(e) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
96 Nev. 238, 240 (1980) Carr v. State
conspiracy. The testimony of the officer as to statements made by Adams was therefore
inadmissible hearsay.
[Headnote 4]
Because the hearsay testimony of the police officer directly undermined the defense's
theory of the case, we cannot say that it is apparent that the same result would have been
reached, Elsbury v. State, 90 Nev. 50, 54, 518 P.2d 599, 602 (1974), without the improperly
admitted evidence. We conclude that the judgment of conviction must therefore be reversed
and a new trial granted. In light of this disposition, we need not consider the remainder of
appellant's contentions.
____________
96 Nev. 240, 240 (1980) Jones v. State
ROBERT NEAL JONES, Appellant, v. THE STATE
No. 11687
February 28, 1980 607 P.2d 116
Appeal from denial of motion for post-conviction relief. Eighth Judicial District Court,
Clark County; Michael J. Wendell, Judge.
Defendant appealed from an order of the district court denying his motion for
post-conviction relief; more specifically, denying his motion for credit for the time he spent in
custody pursuant to a judgment of conviction for another crime. The Supreme Court held that
where defendant pleaded guilty to Clark County robbery charge and where there was nothing
in the record suggesting that the State deliberately delayed filing charges in order to gain a
tactical advantage, the loss of the possibility of an additional two years of concurrent sentence
time was not sufficient prejudice to establish a denial of due process.
Affirmed.
Morgan D. Harris, Public Defender, Gary H. Lieberman, Deputy Public Defender, Clark
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Relevant statute of limitations provides a safeguard against possible prejudice resulting from
preindictment delay.
96 Nev. 240, 241 (1980) Jones v. State
Due process clause may provide a basis for dismissing charges in the event of unreasonable
preindictment delay; however, the accused must show that the delay prejudiced his right to a fair trial and
that the government delayed to gain a tactical advantage. U.S.C.A.Const. Amends. 5, 14.
Where defendant pleaded guilty to Clark County robbery charge and where there was nothing in the
record suggesting that the State deliberately delayed filing charges in order to gain a tactical advantage, the
loss of the possibility of an additional two years of concurrent sentence time was not sufficient prejudice to
establish a denial of due process. U.S.C.A.Const. Amends. 5, 14.
OPINION
Per Curiam:
Robert Neal Jones appeals from the district court's order denying his motion for credit for
the time he spent in custody pursuant to a judgment of conviction for another crime. He
contends that preindictment delay violated his due process rights because he was deprived of
the possibility of serving two years of his sentence concurrently with his sentence in a prior
conviction. We affirm.
On June 19, 1975, appellant committed an armed robbery in Clark County. A few days
later, he committed a robbery in Washoe County, for which he was arrested, convicted, and
sentenced to eight years in prison. During his confinement in Washoe County, appellant
confessed to the Clark County crime.
Appellant was transferred to Colorado in September, 1975, to face charges pending there.
He did not return to Nevada until mid-1977. An indictment for the Clark County robbery had
been returned on March 18, 1977. Appellant entered a guilty plea on August 11, 1977. On
October 14, 1977, he was adjudged to be guilty and sentenced to 12 years in prison for
robbery and to a consecutive 12-year term for use of a deadly weapon, the sentence to be
served concurrently with the Washoe County sentence. No credit was given for the time spent
in custody pursuant to the Washoe County conviction.
[Headnote 1]
Appellant argues that he should be given credit for time served after his transfer to
Colorado in order to remedy the prejudice caused by undue preindictment delay. The relevant
statute of limitations provides a safeguard against possible prejudice resulting from
preindictment delay. See United States v. Marion, 404 U.S. 307 (1971); DuFrane v. Sheriff,
88 Nev. 52, 495 P.2d 611 (1972). In this case, an indictment was returned within the
four-year statute of limitations for robbery.
96 Nev. 240, 242 (1980) Jones v. State
returned within the four-year statute of limitations for robbery. NRS 171.085.
1

[Headnote 2]
The due process clause may also provide a basis for dismissing charges in the event of
unreasonable preindictment delay. 404 U.S. at 325. However, the accused must show that the
delay prejudiced his right to a fair trial and that the government delayed to gain a tactical
advantage. Id.; United States v. Lovasco, 431 U.S. 783 (1977); United States v. Elsbery, 602
F.2d 1054 (2nd Cir. 1979).
[Headnote 3]
In this case, appellant pleaded guilty to the charge and there is nothing in the record which
suggests that the state deliberately delayed filing charges in order to gain a tactical advantage.
The loss of the possibility of an additional two years of concurrent time is not sufficient
prejudice to establish a denial of due process. Cf. State v. Sterling, 596 P.2d 1082
(Wash.App. 1979) (lost possibility of concurrent sentence because of two-year delay
between arrest and sentencing not sufficient prejudice to establish denial of right to speedy
trial).
Appellant has failed to make any showing of actual and substantial prejudice, and of
improper motive on the part of the state, to establish a denial of due process. Therefore, the
order denying post-conviction relief is affirmed.
2

____________________

1
NRS 171.085. Limitations for other felonies: 3 years, 4 years.
1. An indictment for . . . robbery . . . must be found, or an information or complaint filed, within 4
years after the commission of the offense.

2
In light of our holding, we need not address the propriety of the remedy sought. We note that NRS 176.055
does not allow credit for time spent in custody when such confinement was pursuant to a judgment of
conviction for another offense. McMichael v. State, 94 Nev. 184, 194, 577 P.2d 398, 404 (1978); Dearing v.
State, 90 Nev. 297, 525 P.2d 601 (1974). Furthermore, dismissal of the indictment, not credit for time served,
may be the only remedy for a denial of due process. Cf. Strunk v. United States, 412 U.S. 434 (1973) (dismissal
is only remedy for violation of right to speedy trial).
____________
96 Nev. 243, 243 (1980) Gibbs v. Giles
GEORGE GIBBS, Appellant, v. CYNTHIA GILES,
Respondent.
No. 11491
February 28, 1980 607 P.2d 118
Appeal from judgment awarding arrearages in child support, Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
Daughter moved to compel father to comply with divorce decree requiring him to pay $25
per month in trust for benefit, welfare and education of daughter. The district court granted
motion, and father appealed. The Supreme Court held that: (1) motion filed after district
judge had initially denied daughter's motion to compel compliance was a motion for
reargument rather than motion for new trial and, thus, daughter was not bound by procedural
constraints in rule relating to motions for new trial; (2) judge did not err in allowing
reargument; (3) daughter had standing, as third-party beneficiary, to compel father to comply
with the decree; and (4) six-year statute of limitations was tolled during daughter's infancy.
Affirmed.
John E. Stone, Las Vegas, for Appellant.
Cochrane, Lehman, Nelson & Rose, and Harold Hecht, Las Vegas, for Respondent.
1. Divorce.
Where daughter, who filed motion after district judge denied daughter's motion to compel father to
comply with support provisions of divorce decree, merely requested an opportunity to reargue the law and
did not seek a new trial on the facts, the motion was a motion for reargument rather than motion for new
trial, and, thus, daughter was not bound by procedural constraints in rule relating to motions for new trial.
NRCP 59, 59(b).
2. Motions.
Unless and until an order is appealed, district court retains jurisdiction to reconsider the matter. DCR
20(4), 27; EDCR 2.6.
3. Divorce.
In proceeding in which trial judge had denied daughter's motion to compel father to comply with support
provisions of divorce decree apparently because daughter's breach of trust theory was erroneous, judge did
not err in subsequently allowing reargument of the motion on basis of daughter's theory that she was a
third-party beneficiary of an executory agreement to establish a trust for her benefit. DCR 20(4), 27; EDCR
2.6.
4. Contracts.
Where contract contains promise for benefit of a stranger to the contract, third-party beneficiary has a
direct right of action against promisor.
96 Nev. 243, 244 (1980) Gibbs v. Giles
5. Divorce.
Daughter had standing, as third-party beneficiary of divorce decree requiring father to pay $25 per month
in trust for benefit, welfare and education of daughter, to compel father to comply with such decree.
6. Divorce.
Six-year statute of limitations for actions on a judgment to recover arrearages in support payment begins
to run against each installment as it becomes due. NRS 11.190, subd. 1(a).
Generally, third-party beneficiary takes subject to any defense which arises from the contract and which
is assertible against the promisee, including the statute of limitations, but if party primarily interested in
enforcing agreement to establish a trust is the intended beneficiary of that trust, the statutory period is
tolled during beneficiary's infancy. NRS 11.190, 11.190, subd. 1(a), 11.250, 11.250, subd. 1, 125.180.
Six-year statute of limitations applicable in regard to proceeding, in which daughter sought to compel
father to comply with divorce decree requiring him to pay $25 per month in trust for benefit, welfare and
education of daughter, was tolled during daughter's infancy. NRS 11.190, 11.190, subd 1(a), 11.250,
11.250, subd. 1, 125.180.
OPINION
Per Curiam:
George Gibbs appeals from the district court's order granting respondent Cynthia Giles'
motion to compel compliance with provisions of a divorce decree and from the court's
judgment awarding Giles $6,249 for arrearages in child support and $250 for attorney's fees.
Appellant argues that the judgment should be reversed because (1) the trial court erroneously
allowed reargument of respondent's motion, (2) the respondent is not a real party in interest,
and (3) the statute of limitations bars recovery of child support payments that accrued over six
years before respondent filed her motion. We affirm.
George and Carolyn Gibbs (now Carolyn Spellman) were divorced in 1962 when their
daughter Cynthia Gibbs (now Cynthia Giles) was 16 months old. The judgment of divorce
directed George
to pay the sum of $25.00 per month to a bank to be mutually agreed upon between the
parties hereto, in trust, for the benefit, welfare and education of said Cynthia Gibbs, one
of the minor children of the parties hereto, as provided in [a written agreement dated
May 25, 1962], said payments to commence forthwith and to continue until said minor
child shall have attained the age of majority, married or become self-supporting. . .
96 Nev. 243, 245 (1980) Gibbs v. Giles
Following the divorce, the parties had little contact with one another. George and Carolyn
never discussed the trust account, nor did they agree upon a bank. On March 29, 1978, when
Cynthia was 17 years old, Carolyn, as guardian ad litem and on Cynthia's behalf, filed a
motion to compel compliance with the provisions of the judgment. Since her marriage,
Cynthia has pursued this action in her own capacity.
Initially, the district judge denied Giles' motion to compel, apparently because her breach
of trust theory was erroneous. Notice of entry of order was served on June 2, 1978. On June
16, 1978, the district judge granted Giles' motion for reargument based upon her theory that
she is a third-party beneficiary of an executory agreement to establish a trust for her benefit.
[Headnote 1]
Gibbs' contention that the motion for reargument must be viewed as a motion for a new
trial within the provisions of NRCP 59 is without merit. NRCP 59 does not apply to the facts
of this case. There was no trial, merely a motion supported and opposed by points and
authorities. Giles did not seek a new trial of the facts. She simply requested an opportunity to
reargue the law. Therefore, she was not bound by the procedural constraints of NRCP 59.
1

[Headnotes 2, 3]
Furthermore, District Court Rule 20(4)
2
(presently DCR 13(4)) allows a district judge to
grant a motion for rehearing if he or she concludes that reargument is warranted. See also
DCR 27 (presently DCR 19) and Eighth Judicial DCR 2.6. Unless and until an order is
appealed, the district court retains jurisdiction to reconsider the matter. Cf. Osborn v. Riley,
331 So.2d 268 (1976) (after appeal taken, lower court can do nothing with respect to any
matter involved in appeal); Bongiovi v. Bongiovi, 94 Nev. 321, 579 P.2d 1246 (1978) (court
has jurisdiction to consider matters collateral to and independent from part of case on appeal).
The district judge did not err in allowing reargument of Giles' motion.
[Headnotes 4, 5]
Gibbs also contends that the custodial parent, not the minor child, is the real party in
interest for purposes of recovering arrearages in support payments ordered by a divorce
decree.
____________________

1
NRCP 59(b):
A motion for a new trial shall be served not later than 10 days after service of written notice of the
entry of the judgment.

2
DCR 20(4):
No motion once heard and disposed of shall be renewed in the same cause, nor shall the same
matters therein embraced be reheard, unless by leave of the court granted upon motion therefor, after
notice of such motion to the adverse parties.
96 Nev. 243, 246 (1980) Gibbs v. Giles
child, is the real party in interest for purposes of recovering arrearages in support payments
ordered by a divorce decree. Where a contract contains a promise for the benefit of a stranger
to the contract, the third-party beneficiary has a direct right of action against the promisor.
Quijada v. So. Pipe & Casing, 78 Nev. 271, 317 P.2d 661 (1962); Hemphill v. Hanson, 77
Nev. 432, 366 P.2d 92 (1961); Acoustics, Inc. v. Amer. Surety, 74 Nev. 6, 320 P.2d 626
(1958); 2 Williston on Contracts 368 at 901 (3d ed. 1959). We conclude that Giles has
standing, as a third-party beneficiary, to compel Gibbs to perform his promise. See Bethune v.
Bethune, 413 N.Y.S.2d 800 (N.Y.App. 1976); Forman v. Forman, 217 N.E.2d 645 (N. Y.
1966); Halldin v. Usher, 315 P.2d 418 (Cal.App. 1957).
3

[Headnote 6]
Finally, Gibbs contends that recovery of child support payments due prior to March 29,
1972, is barred by NRS 11.190(1)(a).
4
The six year statute of limitations for actions upon a
judgment to recover arrearages in support payment begins to run against each installment as it
becomes due. Bongiovi, 94 Nev. at 322; Brown v. Vonsild, 91 Nev. 646, 541 P.2d 528
(1975).
Giles argues, however, that she is entitled to full recovery because NRS 11.250(1)
5
applies to toll the statute during her infancy. Giles was a minor when each installment became
due, and she did not reach majority until after the motion was filed.
[Headnotes 7, 8]
As a general rule, a third-party beneficiary takes subject to any defense arising from the
contract that is assertible against the promisee, including the statute of limitations. See
e.g., Skylawn v. Superior Court, 151 Cal.Rptr.
____________________

3
We note that NRS 125.180 does not place restrictions on the class of people who have standing to sue for
support arrearages. It provides that when either party . . . makes default in paying any sum of money as required
by the judgment . . . the district court may make an order directing entry of judgment for the amount of such
arrears, together with costs and a reasonable attorney's fee. . . [This] relief . . . is in addition to any other remedy
provided by law.

4
NRS 11.190:
Actions other than those for the recovery of real property, . . . can only be commenced as follows:
1. Within 6 years:
(a) An action upon a judgment or decree of any court of the United States, or of any state or territory
within the United States.
(b) An action upon a contract, obligation or liability founded upon an instrument in writing, except
those mentioned in the preceding sections of this chapter.

5
NRS 11.250:
If a person entitled to bring an action other than for the recovery of real property be, at the time the
cause of action accrued,
1. Within the age of 18 years;
. . . .
the time of such disability shall not be a part of the time limited for the commencement of the action.
96 Nev. 243, 247 (1980) Gibbs v. Giles
any defense arising from the contract that is assertible against the promisee, including the
statute of limitations. See e.g., Skylawn v. Superior Court, 151 Cal.Rptr. 793 (Cal.App.
1979); Bogart v. George K. Porter Co., 223 P. 959 (Cal. 1924); 4 Corbin on Contracts 820
(1951); 2 Williston on Contracts 394 (3d ed. 1959). However, where, as here, the party
primarily interested in enforcing the agreement to establish a trust is the intended beneficiary
of that trust, the statutory period must be tolled during the beneficiary's infancy.
6
Cf. Parker
v. Chrysler Motors Corp., 88 Nev. 560, 502 P.2d 111 (1972) (widow barred but statute tolled
as to minor heirs in wrongful death action); Perez v. Singh, 97 Cal.Rptr. 920 (Cal.App. 1971)
(statute tolled during child's minority in action to establish paternity); Jose v. Lyman, 55
N.E.2d 433 (Mass. 1944) (laches not imputed to minor under guardianship). Were we to
reach the opposite conclusion, the rights of the minor child would be sacrificed by the
inaction of the promisee parent. Therefore, Giles is not barred by NRS 11.190(1)(a) from
recovering payments due before 1972. The judgment is affirmed.
Thompson, Gunderson, Manoukian, and Batjer, JJ., and Gregory, Sr. D. J.,
7
concur.
____________________

6
The agreement in this case is distinguishable from the agreement in Bruce v. Froeb, 488 P.2d 662
(Ariz.App. 1971), which is cited by appellant. In Bruce, the support payments were made to the custodial parent,
not to a trust fund for the children. The statute of limitations was not tolled during the minority of the children in
the parent's action to collect arrearages.

7
The Chief Justice, having voluntarily disqualified himself, designated the Honorable Frank B. Gregory,
Senior District Judge, to sit in his stead in this case. Nev.Const. art. 6, 19; SCR 10.
____________
96 Nev. 247, 247 (1980) Summa Corp. v. Greenspun
SUMMA CORPORATION, a Delaware Corporation,
Appellant, v. HERMAN M. GREENSPUN and BARBARA
J. GREENSPUN, Respondents.
No. 10412
February 28, 1980 607 P.2d 569
Appeal from judgment; Eighth Judicial District Court, Clark County; Joseph O. McDaniel,
Judge.
In an action to recover damages for slander of title and to cancel a deed of trust
encumbering same, there was an appeal by the defendant from the judgment of district court.
The Supreme Court, Thompson, J., held that: {1) where vendability of property was not
affected by recordation of deed of trust, and no special pecuniary damage was otherwise
shown by alleged slander of title, claim was not established; but {2) the claim was a tort
claim, and although it was not established, trial court could find on sufficient evidence
that deed was recorded in breach of oral rescission agreement and that cause of action
for breach of such contract was established by proof; {3) rule requiring specific pleading
of special damages applies to disparagement of title case, but failure to comply did not
deprive court of power to award, as damages, attorney fees incurred in removing cloud
upon title; and {4) punitive damage claims do not survive tort-feasor and cannot be
sought either from his estate or from one vicariously liable.
Supreme Court, Thompson, J., held that: (1) where vendability of property was not affected
by recordation of deed of trust, and no special pecuniary damage was otherwise shown by
alleged slander of title, claim was not established; but (2) the claim was a tort claim, and
although it was not established, trial court could find on sufficient evidence that deed was
recorded in breach of oral rescission agreement and that cause of action for breach of such
contract was established by proof; (3) rule requiring specific pleading of special damages
applies to disparagement of title case, but failure to comply did not deprive court of power to
award, as damages, attorney fees incurred in removing cloud upon title; and (4) punitive
damage claims do not survive tort-feasor and cannot be sought either from his estate or from
one vicariously liable.
Affirmed in part and reversed in part.
[Rehearing denied August 18, 1980]
Gunderson, J., and Mowbray, C. J., dissented.
Lionel Sawyer & Collins, of Las Vegas, and Cromer, Barker & Michaelson, of Las Vegas,
and Vaughan, Hull, Marfisi & Miller, of Elko, for Appellant.
Ralph Denton, of Las Vegas, and Jules Yablok, of Las Vegas, and Brian L. Greenspun, of
Las Vegas, and Bradley & Drendel, Ltd., of Reno, for Respondents.
1. Frauds, Statute of.
Statute providing that no interest in lands shall be surrendered unless by conveyance in writing
subscribed by party surrendering same or by his lawful agent thereunto authorized in writing has direct
application to surrender of deed of trust. NRS 111.205, subd. 1.
Assertion of statute of frauds by party to oral agreement which law requires to be in writing is not fraud,
and statute of frauds does not become inapplicable to oral agreement merely because parties did not
contemplate writing in order to perform. NRS 111.205, subd. 1.
Party invoking doctrine of part performance to allow enforcement of oral rescission agreement
notwithstanding failure to comply with statute of frauds was required to definitely establish terms of oral
agreement, and show that acts of party were done with view to agreement being performed, and that party
seeking enforcement performed or was ready and willing to perform all essentials of agreement on his part,
and all such requirements were to be established by extraordinary measure or quantum of evidence. NRS
111.205, subd. 1.
Supreme Court was required to review record in light of highest standards of proof required to establish
part performance of oral agreement which under statute of frauds should have been in writing, but
notwithstanding inconsistencies, which court deemed not destructive of credibility, testimony clearly
and definitely established terms of oral agreement, in view of usual deference to be
given trial judge.
credibility, testimony clearly and definitely established terms of oral agreement, in view of usual deference
to be given trial judge. NRS 111.205, subd. 1.
Under evidence, by reason of part performance, oral agreement for rescission was enforceable
notwithstanding failure to comply with statute of frauds. NRS 111.205, subd. 1.
6. Libel and Slander.
To maintain action for slander of title, one must establish that words spoken were false, that they were
maliciously spoken and that plaintiff sustained some special pecuniary damage as direct and natural result.
For purposes of action for slander of title, recording of false document is publication, and deed of trust
which should have been cancelled is false document.
Where vendability of property was not affected by recordation of deed of trust, and no special pecuniary
damage was otherwise shown by alleged slander of title, claim was not established.
Claim for relief for slander of title was tort claim, and although claim was not established by reason of
failure to establish that vendability of property was affected by recording deed of trust, trial court could
find on sufficient evidence that deed was recorded in breach of oral rescission agreement and that cause of
action for breach of such contract was established by proof.
10. Quieting Title.
It is permissible to assess as damages attorney fees incurred incident to action to remove cloud upon title
to real property.
Rule requiring specific pleading of special damages applies to disparagement of title case, but failure to
comply did not deprive court of power to award such fees as damages. NRCP 9(g), 54(c).
12. Appeal and Error; Evidence.
Where proof of attorney fees incurred was through use of summary prepared by accountant from books
and records prepared by another accountant and original papers were not made available for examination
or copying or both as provided by statute, it was error not to sustain objection, but, where services had been
performed under observation of the court, so that testimonial or other evidentiary support was quite
unnecessary, error was to be deemed harmless. NRS 52.275.
In disparagement of title case, allowance of one half of total amount incurred by plaintiff for litigation
and for other legal work was not shown to be arbitrary. NRCP 54(c).
14. Corporations; Libel and Slander.
Where recovery in disparagement of title case was allowed on theory of breach of obligation arising from
contract, i.e., breach of oral agreement for rescission and of obligation under such an agreement to cancel
and return deed of trust, award of punitive damages could not stand, and in any event award could not
stand where defendant corporation did not know of wrongful conduct, and did not authorize it or ratify it.
NRS 42.010.
15. Damages; Executors and Administrators.
Punitive damages claims do not survive tort-feasor and cannot be sought either from his estate or from
one vicariously liable. NRS 42.010.
OPINION
Herman and Barbara Greenspun, hereinafter Greenspun, commenced this action against
Summa Corporation to recover damages for slander of title to real property and to cancel a
deed of trust encumbering the same. The cause was tried to the court and judgment later
entered for Greenspun, together with damages totalling $1,053,204.61. Summa has appealed.
Summa Corporation, formerly Hughes Tool Company, is a Delaware corporation with
extensive holdings in Nevada. The sole stockholder of Summa was Howard R. Hughes, now
deceased. Greenspun owns the Las Vegas Sun, a newspaper of general circulation, and other
properties in Clark County, Nevada. Transactions between Summa and Greenspun
commenced in 1967 at which time Summa loaned Greenspun $4,000,000 at three percent
interest. That loan was evidenced by a promissory note providing for principal payments in
annual installments from September 20, 1970, through 1975. This note was secured by a deed
of trust covering approximately 2000 acres of land surrounding the Paradise Valley Country
Club (PVCC) and a collateral pledge agreement for all the shares of PVCC and 80 percent of
the Las Vegas Sun. At about the same time Summa deposited with Greenspun $500,000 as
advance advertising in the Las Vegas Sun. The deed of trust was not recorded at that time.
In 1969 Summa and Greenspun reached another agreement. Summa was to purchase from
Greenspun the Paradise Valley Country Club for $2,250,000, property described in the Ross
option for $784,000, land owned by a trust for the Greenspun children for $216,533, and the
2000 acres surrounding PVCC for $4,429,467. The 1967 note was to be liberalized so that
payments on the $4,000,000 principal amount would not commence until (1980) and would
not have to be paid in full until the year 2005.
Documents to carry out this agreement were prepared. A full warranty deed and bill of sale
for PVCC were signed and delivered, and Greenspun received a check for $2,250,000. The
deed warranted title to two parcels not owned by PVCC. A contract for the 2000 acres
surrounding the golf course, providing for a closing date of not later than June 15, 1969,
was executed, as was the contract for the Ross option property which provided for a
closing not later than September 15, 1969.
closing date of not later than June 15, 1969, was executed, as was the contract for the Ross
option property which provided for a closing not later than September 15, 1969. The contract
covering the children's trust land was not signed. These closings never occurred. The new
promissory note and collateral pledge agreement were backdated to September 27, 1968, at
the suggestion of the accountant. The new note stated that it was secured only by a collateral
pledge agreement on stock on the Las Vegas Sun and was a renewal, rearrangement and
extension of the September 27, 1967, note. Since the land surrounding the golf course was
being purchased by Summa, there no longer was need for the deed of trust.
For some reason not fully disclosed, Howard Hughes decided to rescind the whole
transaction. He requested trusted agents to work out such a rescission with Greenspun. After
negotiation, Greenspun agreed to rescind the three executory contracts providing the executed
agreement for the sale of PVCC stand along with the new promissory note and collateral
pledge agreement. He also requested the return of the first promissory note and deed of trust.
These terms were approved by Howard Hughes and Greenspun was so advised. Thereafter,
Summa did not demand payment of principal pursuant to the first promissory note, and
payments by Greenspun (of interest) were made and accepted on the second note.
On September 21, 1971, the Board of Directors of Summa approved recordation of the
deed of trust covering the 2000 acres surrounding PVCC.
The agreement to rescind was oral. Its terms were never reflected in written form. The
agreement contemplated that in return for the forbearance of Greenspun as to the executory
land sale contracts, Hughes and his corporation, Summa, would confirm the PVCC sale and
the second promissory note and collateral pledge agreement and return the first promissory
note and deed of trust. Greenspun did forbear. Summa did not return the first promissory note
and deed of trust.
The central issue litigated below and again contested before this court is whether the
statute of frauds precludes enforcement of the oral agreement to rescind. Subordinate issues
regarding slander of title and damages also were tendered to the trial court for decision and
are once more presented to this court. Relevant information regarding such issues and not yet
stated will be set forth as those issues are discussed in this opinion.
1. Statute of Frauds.
No interest in lands shall be surrendered unless by conveyance in writing subscribed by the
party surrendering the same or by his lawful agent thereunto authorized in writing.
same or by his lawful agent thereunto authorized in writing. Such is the command in NRS
111.205(1).
1
With regard to this statute the trial court expressed alternative conclusions.
First, that since a deed of trust creates a security lien rather than an interest in land, an oral
agreement to surrender that lien is not within the statute. Second, the parties did not
contemplate a writing in order to perform the agreement. Rather, performance was to be by
physical delivery of the deed of trust and first note to Greenspun. Third, there was part
performance of the oral agreement permitting its proof by parol evidence.
[Headnote 1]
(a) We believe that NRS 111.205(1) has direct application to the surrender of a deed of
trust. Unlike the mortgage in National Bank v. Kreig, 21 Nev. 404, 32 P. 641 (1893), relied
upon by the district court, a trust deed conveys the trustor's title or interest in land to the
trustee. Indeed, we heretofore have ruled that a document, whether viewed as a deed or deed
of trust, is a conveyance of an interest in land within the statute of frauds. Ray v. Hawkins, 76
Nev. 164, 350 P.2d 998 (1960). The rationale of Kreig has no application to a deed of trust. In
that case the court expressly distinguished the equitable lien created by a mortgage of real
property from a transfer of title by trust deed. Id. 407, 408. We therefore rule that the lower
court erred in concluding that the oral agreement to rescind did not fall within NRS
111.205(1).
2
We turn to consider the alternative conclusions of the district court.
[Headnote 2]
(b) Although the trial court found that the parties did not contemplate a writing in order to
perform the oral rescission agreement, it does not follow from such finding that the statute of
frauds somehow becomes inapplicable to the oral agreement. Arguably, all agreements not in
writing contemplate performance without a writing. This reasoning annihilates the statutory
requirement.
____________________

1
1. No estate or interest in lands, other than for leases for a term not exceeding 1 year, nor any trust or
power over or concerning lands, or in any manner relating thereto, shall be created, granted, assigned,
surrendered or declared after December 2, 1861, unless by act or operation of law, or by deed or
conveyance, in writing, subscribed by the party creating, granting, assigning, surrendering or declaring
the same, or by his lawful agent thereunto authorized in writing.

2
The Nevada federal court and the Supreme Courts of Michigan and Washington agree. Dasco, Inc. v. Am.
City Bank & Trust Co., 429 F.Supp. 767 (D.Nev. 1977); Marshall v. Kenk, 218 N.W. 779 (Mich. 1928);
Anderson v. Anderson, 223 P. 323 (Wash. 1924).
statutory requirement. The assertion of the statute by a party to an oral agreement which the
law requires to be in writing is not a fraud. Zunino v. Paramore, 83 Nev. 506, 435 P.2d 196
(1967). The finding of the court below in this regard does not determine the applicability of
the statute of frauds.
[Headnote 3]
(c) As noted, the trial court ruled that the doctrine of part performance allowed
enforcement of the oral rescission agreement notwithstanding the failure to comply with the
statute of frauds. In order for that doctrine to defeat the statute, the terms of the oral
agreement must be definitely established, the acts of the party, Greenspun, must be done with
a view to the agreement being performed, and the party seeking enforcement must have
performed or be ready and willing to perform all essentials of the agreement on his part.
Evans v. Lee, 12 Nev. 393 (1877). These requirements must be established by an
extraordinary measure or quantum of evidence. Jones v. Barnhart, 89 Nev. 74, 506 P.2d 430
(1973). Summa contends that the evidence is insufficient in regard to each requirement of the
doctrine.
[Headnote 4]
The terms of the oral rescission agreement were expressed through the trial testimony of
three witnesses, Greenspun, Maheu, and Morgan. It is the assertion of Summa that such
testimony is unworthy of credit since each witness gave inconsistent pretrial testimony.
Although we must review the record in the light of the higher standard of proof, Lubbe v.
Barba, 91 Nev. 596, 540 P.2d 115 (1975); Clark Sanitation v. Sun Valley Disposal, 87 Nev.
338, 487 P.2d 337 (1971), we do not deem the inconsistencies destructive of credibility and,
therefore, pay the usual deference to the trial judge whose task it is to determine credibility
and weight. Ewing v. Sargent, 87 Nev. 74, 482 P.2d 819 (1971); Carlson v. McCall, 70 Nev.
437, 271 P.2d 1002 (1954). The trial testimony of the mentioned witnesses clearly and
definitely established the terms of the oral agreement.
[Headnote 5]
It also was permissible for the trial court to find that Greenspun did not seek to enforce the
land sale contracts until after the running of the statute of limitation in reliance on the oral
agreement rescinding those contracts and that such forbearance, therefore, was referable to
the oral agreement.
Still, another requirement of the doctrine of part performance is that Greenspun, the party
seeking enforcement, be ready and willing to perform all essentials of the agreement on their
part to be performed.
their part to be performed. The deed to the PVCC golf course contained two parcels of
property not owned by Greenspun. When the oral rescission agreement was made, the parties
were not aware of this defect in title. In any event, it appears from the record that Greenspun
is willing and able to convey such parcels to Summa, and the judgment entered requires such
conveyance as a precondition to the enforcement of the oral agreement to rescind. We,
therefore, deem this requirement to have been met. Consequently, we agree with the court
below that the oral rescission agreement is enforceable notwithstanding failure to comply
with the statute of frauds.
2. Slander of Title.
[Headnote 6]
In order to maintain an action for slander of title one must establish that the words spoken
were false, that they were maliciously spoken, and that the plaintiff sustained some special
pecuniary damage as a direct and natural result of their having been spoken. Potosi Zinc Co.
v. Mahoney, 36 Nev. 390, 135 P. 1078 (1913).
[Headnotes 7, 8]
The recording of a false document is a publication, Misco Leasing, Inc. v. Keller, 490 F.2d
545 (10th Cir. 1974), and a deed of trust which should have been cancelled is such a false
document. Gudger v. Manton, 134 P.2d 217 (Cal. 1943),
3
rev'd in part on other grounds,
Albertson v. Raboff, 295 P.2d 405 (Cal. 1956). The special pecuniary damage is that which
directly and immediately results from the impairment of the vendability of the land caused by
the publication of the disparaging matter. Shenefield v. Axtell, 545 P.2d 876 (Ore. 1976);
Kidd v. Hoggett, 331 S.W.2d 515 (Civ.App.Tex. 1960); Gudger v. Manton, supra;
McGuinness v. Hargiss, 105 P. 233 (Wash. 1909).
The court found that the recordation was with malice. However, it also concluded that the
vendability of the property was not affected by the recordation of the deed of trust.
Consequently, the claim for relief for slander of title was not established.
[Headnote 9]
A slander of title is a tort. In addition to that claim for relief, the complaint also sought to
remove the cloud upon Greenspun's title caused by the recordation of the deed of trust. The
theory of this claim for relief was that Summa recorded the trust deed in breach of the
oral rescission agreement heretofore discussed.
____________________

3
Cases collected in Annot. 39 A.L.R.2d 840 (1955), entitled Recording of instrument purporting to affect
title as slander of title.
theory of this claim for relief was that Summa recorded the trust deed in breach of the oral
rescission agreement heretofore discussed. This cause of action is to recover damages for
breach of contract and is the claim for relief which the district court found to have been
established by the proof. Since the record supports that determination we may not disturb it.
3. Damages.
[Headnote 10]
In an action to remove a cloud upon the title to real property it is permissible to assess as
damages the attorneys' fees incurred incident to that action. Wright v. Rogers, 342 P.2d 447
(Cal.App. 1959); Dowse v. Doris Trust Co., 208 P.2d 956 (Utah 1949); Restatement (Second)
of Torts 633(1)(b) (1977). The court found that attorneys' fees in the amount of $53,204.61
were incurred by Greenspun for legal representation in this case and awarded them judgment
for that sum. This award is contested since Greenspun did not seek to recover such fees by
appropriate pleading, did not prove their liability therefor by admissible evidence and, finally,
that the court's determination as to the amount of fees attributable to this case was arbitrary
and in violation of our decision in Petersen v. Wiesner, 62 Nev. 184, 146 P.2d 789 (1944).
[Headnote 11]
Although NRCP 9(g) requires the specific pleading of special damages, and applies to a
disparagement of title case, Garver v. Public Service Company of New Mexico, 421 P.2d 788
(N.M. 1966), it does not follow that a failure to do so deprives the court of power to award
such fees as damages. Indeed, NRCP 54(c) commands the court to grant the relief to which
the party in whose favor it is rendered is entitled, even if the party has not demanded such
relief in his pleadings. Grouse Cr. Ranches v. Budget Financial Corp., 87 Nev. 419, 488
P.2d 917 (1971); Checker, Inc. v. Zeman, 86 Nev. 216, 467 P.2d 100 (1970).
[Headnote 12]
Proof of the fees incurred was through the use of a summary prepared by one accountant
from books and records prepared by another accountant for Greenspun. The original papers
were not made available for examination or copying, or both, as provided by NRS 52.275,
and objection was interposed on that ground. It was error not to sustain that objection.
However, in the context of this case, such error must be deemed harmless. The judge noted
that he had presided over all proceedings in the case and was fully aware of the scope and
complexity of the legal services rendered by counsel for Greenspun.
The inadmissible summary may have had little or no impact upon the court's determination of
value. It was not as though counsel's services were performed beyond the observation of the
court and needed testimonial or other evidentiary support for that reason. Rather, this case
falls within the intendment of Artistic Hairdressers, Inc. v. Levy, 87 Nev. 313, 486 P.2d 482
(1971), where the court, in approving fees, noted that the trial judge was well acquainted
with, and able to determine the reasonableness of the fee from all the pleadings and records
presented to him.
[Headnote 13]
The sum of $53,204.61 was one half of the total amount incurred by Greenspun for this
litigation, and for other legal work. It is asserted that the allocation was arbitrary and in
violation of our decision in Petersen v. Wiesner, supra. In Petersen, the trial court made no
finding regarding fees, and its award thereof admittedly included services which were not in
connection with the case. The case at hand is different in each respect. The court made its
finding, and the award was only for services rendered in the present litigation. Moreover,
Petersen was decided before our adoption of the Nevada Rules of Civil Procedure, Rule 54(c)
of which directs that the judgment shall grant the relief to which the party in whose favor it is
rendered is entitled.
[Headnote 14]
The court also awarded Greenspun the sum of $1,000,000 as punitive damages. NRS
42.010 designates the cases in which punitive damages may be awarded. It provides that In
an action for the breach of an obligation not arising from contract, where the defendant has
been guilty of oppression, fraud or malice, express or implied, the plaintiff, in addition to the
actual damages, may recover damages for the sake of example and by way of punishing the
defendant.
We heretofore have noted that an action to recover damages for slander of title sounds in
tort, in contrast to an action to remove a cloud on title to property caused by a breach of an
oral rescission agreement, which action arises from contract. The judgment in this case is
based squarely upon findings that there was an oral rescission agreement and that Summa
breached its obligation under that agreement to cancel and return the deed of trust. The court
then specifically enforced the agreement by ordering expungement and return of the deed of
trust. We are compelled to conclude that this action was for the breach of an obligation
arising from contract and, therefore, not amenable to an award of punitive damages.
Contractor's Safety Ass'n. v. California Comp. Ins. Co., 307 P.2d 626 (Cal. 1957).
Even if we erroneously were to treat this action as one in tort rather than arising from
contract, the punitive damage award could not stand as a matter of law. The court found that
Howard Hughes, not Summa, acted with malice and ill will toward Greenspun, and
deliberately withheld information regarding the oral rescission agreement from Summa.
Moreover, it found that Summa recorded the deed of trust without knowledge of the oral
rescission agreement. Yet, it imposed liability for punitive damages upon Summa when it did
not know of Hughes' wrongful conduct, did not authorize it, nor ratify it. This was grievous
error. Skeels v. Universal C.I.T. Credit Corporation, 335 F.2d 846 (3d Cir. 1964); Lightner
Mining Co. v. Lane, 120 P. 771 (Cal. 1911).
[Headnote 15]
Finally, we note that the justification for punitive damages ceased upon the death of
Howard Hughes. If the justification is to punish the offender and deter others, Hughes, found
by the court to have been the offender, cannot be punished for he is dead. Punitive damage
claims do not survive the tortfeasor, and cannot be sought either from his estate or from one
vicariously liable. Allen v. Anderson, 93 Nev. 204, 562 P.2d 487 (1977).
4. Other assigned errors have been considered and found to be without merit.
The judgment below is affirmed in all respects, except as to the award of punitive damages
which award is annulled.
Manoukian and Batjer, JJ., concur.
Gunderson, J., with whom Mowbray, C. J., concurs, dissenting:
I cannot endorse the rationale through which my brethren here absolve Summa
Corporation from paying punitive damages for its misconduct, as ascertained by the respected
trial judge.
I note that the majority opinion explicitly recognizes two salient facts. First, my brethen
say: The trial testimony . . . clearly and definitely established the terms of the oral agreement
[between Summa and the Greenspuns]. From this, it follows that the doctrine of part
performance could be applied, and that the Statute of Frauds therefore constituted no absolute
bar to the judgment on appeal. It also appears Summa ignored its clear and definite
obligations to the Greenspuns.
Second, my colleagues acknowledge the Greenspuns were both willing and able to
perform their part of the bargain breached by Summa. In other words, no default by the
Greenspuns excused Summa.
My colleagues say, however, that Summa Corporation is no longer liable for punitive
damages, because its agent, who acted maliciously on its behalf, has died. The only authority
my respected colleagues have cited to support this result, i.e. Allen v. Anderson, 93 Nev. 204,
562 P.2d 487 (1977), does not in fact do so. True, in Allen v. Anderson, we held that an
action for punitive damages does not survive the tortfeasor. Thus, we said, punitive damages
may neither be recovered from the tortfeasor's estate, nor from one who, as a family member
owning the car driven by the decedent, is made vicariously liable by NRS 41.440 for the
tortfeasor's misconduct. In the instant case, Summa Corporation remains very much alive, and
here has been called to account for tortious conduct committed for Summa's benefit, in regard
to Summa's own obligations.
Neither can I endorse any suggestion that Summa is immune from punitive damages
because, by its invasions of the Greenspun's property interests, Summa repudiated contractual
obligations to the Greenspuns. The fact remains that Summa's misconduct constituted a direct
infringement of the Greenspuns' vested rights in real property. Summa had a legal duty not to
act in regard to the Greenspuns' property, except in strict accord with its own contractual
rights. The Greenspuns' action based on Summa's misconduct therefore clearly was for the
breach of an obligation not arising from contract. NRS 42.010.
Because the trial court could properly find Summa's misconduct to have been maliciously
motivated, Summa's actions therefore fall within the ambit of Nevada's punitive damage
statute. I would, thus, affirm the trial court in all respects.
____________
96 Nev. 258, 258 (1980) Ogden v. State
KENNETH OGDEN, Appellant, v. THE STATE
No. 10706
March 11, 1980 607 P.2d 576
Appeal from conviction of first degree murder, Eighth Judicial District Court, Clark
County; Michael J. Wendell, Judge.
The Supreme Court, Manoukian, J., held that: (1) instruction that person with mind
capable of knowing right from wrong must be regarded as capable of entertaining intent and
of deliberating and premeditating did not shift burden of proof to defense as to deliberation
and premeditation, where jury was fully informed by court admonitions, instructions, and
argument of counsel that State had burden of proving every element of crime beyond
reasonable doubt, and the instruction comported with due process as well as state law;
{2) evidence supported finding that defendant's confession was given voluntarily; and {3)
notwithstanding reading of statutory instructions on reasonable doubt, presumption of
innocence, intent and distinctions between first and second degree murder, it was error
not to give instruction comporting with statute providing that when offense has been
proved and there exists reasonable doubt as to which of two or more degrees defendant
is guilty, he should be convicted only of the lowest, but, under circumstances, failure to so
instruct did not require reversal.
96 Nev. 258, 259 (1980) Ogden v. State
to defense as to deliberation and premeditation, where jury was fully informed by court
admonitions, instructions, and argument of counsel that State had burden of proving every
element of crime beyond reasonable doubt, and the instruction comported with due process as
well as state law; (2) evidence supported finding that defendant's confession was given
voluntarily; and (3) notwithstanding reading of statutory instructions on reasonable doubt,
presumption of innocence, intent and distinctions between first and second degree murder, it
was error not to give instruction comporting with statute providing that when offense has
been proved and there exists reasonable doubt as to which of two or more degrees defendant
is guilty, he should be convicted only of the lowest, but, under circumstances, failure to so
instruct did not require reversal.
Affirmed.
Morgan D. Harris, Clark County Public Defender, and Terrence M. Jackson, Deputy
Public Defender, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert Miller, District Attorney, and
Valerie Stewart, Deputy District Attorney, Clark County, for Respondent.
1. Homicide.
In murder case, although instruction that person with mind capable of knowing right from wrong must be
regarded as capable of entertaining intent and deliberating and premeditating was not essential to case and
was undesirable in context of the case, reading of the instruction did not constitute error.
2. Constitutional Law; Criminal Law.
In homicide case, instruction that person with mind capable of knowing right from wrong must be
regarded as capable of entertaining intent and of deliberating and premeditating did not shift burden of
proof to defense as to deliberation and premeditation, where jury was fully informed by court admonitions,
instructions, and argument of counsel that State had burden of proving every element of crime beyond
reasonable doubt, and the instruction comported with due process as well as state law.
3. Homicide.
Defendant was not entitled to reversal of murder conviction on ground that instruction that it was only
necessary that act of killing be preceded by and be result of concurrence of will, deliberation and
premeditation on part of slayer was incomprehensible to jurors for failure to define premeditation and
deliberation, where law was substantially encompassed in the instructions given and State showed bases for
finding premeditation and deliberation.
4. Criminal Law.
State has burden of showing waiver of Fifth Amendment rights by preponderance of evidence.
96 Nev. 258, 260 (1980) Ogden v. State
5. Criminal Law.
In murder case, evidence supported finding that defendant's confession was given voluntarily.
6. Criminal Law.
In case involving question of whether confession was voluntary, the term voluntary carries clear
meaning with no need for further explanation. U.S.C.A.Const. Amend. 5.
7. Homicide.
Notwithstanding reading of statutory instructions on reasonable doubt, presumption of innocence, intent
and distinctions between first and second degree murder, it was error not to give instruction comporting
with statute providing that, when there exists reasonable doubt as to which of two or more degrees
defendant is guilty, he should be convicted only of the lowest, but failure to so instruct did not require
reversal, where evidence proving each element of first degree murder was overwhelming. NRS 47.040,
subd. 1(b), 175.201, 177.255, 178.598.
OPINION
This is an appeal from a judgment convicting Ogden of first degree murder resulting in
appellant's being sentenced to a term of life with the possibility of parole. Appellant contends
the trial court erred (1) in instructing the jury that a person capable of knowing right from
wrong must be regarded as capable of entertaining intent and of deliberating and
premeditating; (2) by failing adequately to instruct the jury regarding premeditation and
deliberation; (3) in admitting appellant's statements made during police interrogation; (4) in
refusing to instruct concerning certain factors to be considered in determining voluntariness;
and (5) in refusing defense instructions on reasonable doubt as to degrees of murder. We now
turn to consider these questions.
On February 29, 1976, at approximately 6:30 p.m., Joseph Poplaski was found dead in a
cottage he was remodeling. The autopsy subsequently performed revealed that the death was
caused by two gunshot wounds through the back of the head with a .25 caliber weapon fired
at point blank range and less than a second apart.
Appellant, who was nineteen at the time of the incident, had worked with the victim for
about a week prior to the occurrence. Appellant's usual duties consisted of pumping gas at
Poplaski's gas station; however, appellant and Poplaski were working on the cottage on the
day of the incident. The Poplaskis lived in a trailer next to the cottage and gas station. The
victim, his wife and the appellant had returned from buying remodeling supplies at
approximately 1:00 p.m. that afternoon, after which Mrs.
96 Nev. 258, 261 (1980) Ogden v. State
remodeling supplies at approximately 1:00 p.m. that afternoon, after which Mrs. Poplaski
went into the trailer to sleep while the appellant and her husband began work in the cottage.
Mrs. Poplaski testified that she fell asleep and was awakened by appellant who made several
requests. Mrs. Poplaski finally woke up at approximately 4:00 p.m. and began looking for her
husband. When she was unable to find him, she called a friend who subsequently discovered
the body in the locked cottage. Appellant's whereabouts were unknown.
There was no evidence of a struggle at the scene. The victim's .25 caliber pistol, which was
subsequently identified as the murder weapon, was found at the scene. Of the two safes in the
victim's gas station, one was found open and empty. The fingerprints taken from the cash tray
located in a refrigerator in the station, were later matched to fingerprints of the appellant. The
victim's wallet was found behind the gas station under a tarpaulin several days after the
incident.
On March 4, 1976, Detective Lee Barlow of the Las Vegas Metropolitan Police
Department, interviewed appellant in Canada where the detectives had located him. On the
first day of the interview, at approximately 3:00 p.m., appellant initially denied involvement
in the killing, but later stated that it could have been self-defense. The interview that day
ended at approximately 6:00 p.m. On the following day, appellant again returned to talk to the
detectives and made a taped statement in which he admitted shooting the victim and taking
money to pay for his trip back to Canada. Appellant also told the detectives where the
previously undiscovered wallet could be found. Barlow testified that prior to each of the two
interviews, appellant was advised of his Miranda rights.
1. The Instruction on Criminal Capacity.
Jury Instruction Number 12 stated, You are instructed that a person with a mind capable
of knowing right from wrong must be regarded as capable of entertaining intent and of
deliberating and premeditating. (Emphasis added.) Appellant argues that this instruction
created a presumption which had the effect of improperly shifting the burden of proof to the
defense as to deliberation and premeditation, thereby being violative of the due process clause
of the fourteenth amendment as well as of NRS 47.230(2). We disagree.
In Pinana v. State, 76 Nev. 274, 287, 352 P.2d 824, 831 (1960), we held that such
language embodied in a jury instruction was a correct statement of the law. See also Criswell
v. State, 84 Nev. 459, 443 P.2d 552 (1968). Here, appellant did not interpose the defense of
insanity, but instead presented evidence of his asserted condition of depression
immediately preceding the homicide.
96 Nev. 258, 262 (1980) Ogden v. State
not interpose the defense of insanity, but instead presented evidence of his asserted condition
of depression immediately preceding the homicide. This court has rejected the doctrine of
partial responsibility or diminished capacity. See Fox v. State, 73 Nev. 241, 244, 316 P.2d
924, 926 (1957). We are unpersuaded by appellant's argument and decline to depart from the
right-and-wrong test which we have applied since State v. Lewis, 20 Nev. 333, 351, 22 P.
241, 247-48 (1889).
[Headnote 1]
The instruction in the instant case did not advise the jurors that if they found the defendant
knew right from wrong, they must find he did entertain intent or did deliberate and
premeditate. The instruction merely stated that the defendant was capable of such. See Geary
v. State, 91 Nev. 784, 792-93, 544 P.2d 417, 423 (1975). Although we believe this instruction
was not essential to the case, and, indeed, is undesirable in the context of this case, we
disagree that the reading of this instruction constituted error.
[Headnote 2]
Finally, this instruction did not shift the burden to appellant as the jury was fully informed
by court admonitions, instructions, and argument of counsel, that the state had the burden of
proving every element of the crime beyond a reasonable doubt. See Pinana v. State, 76 Nev.
at 287, 352 P.2d at 831; see also In re Winship, 397 U.S. 358, 364 (1970). The instruction
reserved to the jury full discretion to determine whether appellant entertained the necessary
intent, deliberation and premeditation. The challenged instruction does not improperly shift
the burden of persuasion from the state to the defendant and did comport with due process, as
well as state law. Cf. Mullaney v. Wilbur, 421 U.S. 684, 703 (1975) (Maine murder statute
unconstitutionally required defendant to rebut statutory presumption that he committed
murder with malice aforethought by proving that he acted in the heat of passion on sudden
provocation).
2. Premeditation and Deliberation Defined.
[Headnote 3]
Jury Instruction Number 11 generally described the time lapse necessary to form malice
aforethought prior to a killing. The instruction stated that it was only necessary that the act
of killing be preceded by and be the result of a concurrence of will, deliberation and
premeditation on the part of the slayer, . . . . Appellant contends that the instruction is
incomprehensible to jurors as it fails to define premeditation and deliberation. He then argues
that this deficiency, coupled with the rejection of his proffered instructions, mandates
reversal.
96 Nev. 258, 263 (1980) Ogden v. State
rejection of his proffered instructions, mandates reversal. There is no merit to this claim.
This instruction is identical to one previously upheld by this court. Scott v. State, 92 Nev.
552, 554 n.2, 554 P.2d 735, 737 n.2 (1976); see also State v. Fisko, 58 Nev. 65, 80, 70 P.2d
1113, 1118 (1937); In Scott, however, the appellant did not contend that the instruction was
an inadequate definition of premeditation and deliberation. The unsuccessful challenge was
that the instruction failed to distinguish between first and second degree murder.
In People v. Anderson, 447 P.2d 942 (Cal. 1968), the court recognized that the California
Legislature did not intend to give the words deliberate' and premeditated' other than their
ordinary dictionary meanings. Id. at 948. In the instant case, other instructions given
carefully differentiated first from second degree murder and counsel for both sides argued the
lack of or presence of these distinguishing factors of premeditation and deliberation in their
closing arguments. There is nothing to indicate that such words are used in law other than in
their ordinary sense. Although appellant's instructions would have expanded on the meaning
of those terms, the law is substantially encompassed in the instructions given. Kelso v. State,
95 Nev. 37, 44, 588 P.2d 1035, 1040 (1979); Geary v. State, 91 Nev. at 793, 544 P.2d at 423.
Finally, the state did show the bases for finding premeditation and deliberation from the fact
that appellant removed the victim's gun from the service station, carried it in his sock for an
appreciable period of time during which he worked along side of the victim, was short of
money, and had a motive for robbery, had an immediate desire to return to Canada and shot
the victim twice while the victim was facing a wall installing paneling.
3. The Confession.
During the second day of interviewing appellant in Canada, Las Vegas police conducted a
polygraph examination on appellant which lasted about one and one-half hours. Following
this, appellant was again advised of his Miranda rights and stated during a ten minute
interview that he shot the victim in the back of the head for purposes of robbery. Appellant
contends that the state failed to meet its burden that these statements were voluntary in that
appellant had a low I.Q., was easily intimidated, and was psychologically coerced. We cannot
agree.
[Headnotes 4, 5]
The state has the burden of showing the waiver of fifth amendment rights by a
preponderance of the evidence. Brimmage v. State, 93 Nev. 434, 438, 567 P.2d 54, 57 (1977).
The trial court first heard evidence on the voluntariness issue before finding that the
confession was given voluntarily.
96 Nev. 258, 264 (1980) Ogden v. State
trial court first heard evidence on the voluntariness issue before finding that the confession
was given voluntarily. The evidence was then submitted to the jury which was instructed to
make a specific finding on the issue. This was in accordance with Nevada law. Carlson v.
State, 84 Nev. 534, 536, 445 P.2d 157, 159 (1968). The record shows that Ogden was
permitted to go home after the first day's interview; that appellant returned the following day;
that the interviews were of reasonable duration and conducted in a reasonable and
non-coercive atmosphere; and that appellant waived his relevant rights, indicating that he
understood the import of the waiver. The record shows that appellant was told he was not
under arrest and he understood that he would not be taken back to the United States at that
time by the Las Vegas detectives. Defendant was not compelled to talk to the officers and
returned on his own the second day. There was substantial evidence in the record to support
the determination of the trial judge and the finding by the jury. See Deutscher v. State, 95
Nev. 669, 601 P.2d 407 (1979); Paulette v. State, 92 Nev. 71, 545 P.2d 205 (1976).
4. Voluntariness.
[Headnote 6]
Appellant asks this court to reconsider its holding in Carlson v. State, 84 Nev. at 536, 445
P.2d at 159. There we approved the same instruction as was given in this case and said that
the term voluntary carries a clear meaning with no need for further explanation. We find
the instruction legally sufficient.
5. Appellant's Proposed Instruction E.
Appellant next contends that his instruction, which comports with NRS 175.201, should
have been given and that the trial court's failure to do so constitutes reversible error.
1
NRS
175.201 provides in part: . . . and when an offense has been proved against him, and there
exists a reasonable doubt as to which of two or more degrees he is guilty, he shall be
convicted only of the lowest.
The reasonable doubt instruction given in this case was taken verbatim from NRS
175.211(1).
2
This court and the legislature have said that no other definition of reasonable
doubt shall be given.
____________________

1
Proposed Instruction E provided:
If you are convinced beyond a reasonable doubt that the crime of murder has been committed by a
defendant, but you have a reasonable doubt whether such murder was of the first or of the second degree,
you must give to such defendant the benefit of that doubt and return a verdict fixing the murder as of the
second degree.

2
1. A reasonable doubt is one based on reason. It is not mere possible doubt, but is such a doubt as
would govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the
entire comparison and consideration of all the evidence, are in such a condition that they
96 Nev. 258, 265 (1980) Ogden v. State
have said that no other definition of reasonable doubt shall be given. Cutler v. State, 93 Nev.
329, 336, 566 P.2d 809, 813 (1977); NRS 175.211(2). But appellant's instruction assumed
that the jury found proof of murder beyond a reasonable doubt. The proffered instruction,
informed the jury to find a second degree murder if it entertained a reasonable doubt as to
which degree had been proven.
In California, an instruction based on a statute similar to our NRS 175.201 is required if
other instructions do not adequately cover the law. People v. Morse, 388 P.2d 33, 49 (Cal.
1964). See Geary v. State, 91 Nev. at 793, 544 P.2d at 423 (1975); see also Carey v. State,
429 P.2d 836, 841 (Idaho 1967); State v. Stationak, 440 P.2d 457, 460 n.4, 461 (Wash. 1968).
The principle embodied in the rejected instruction represents the weight of authority in this
country, as well as our statutory law. See Annot. 20 A.L.R. 1258-59 (1922).
[Headnote 7]
The distinguishing feature between first and second degree murder is the presence or
absence of premeditation and deliberation. The defense argued that proof of these elements
was lacking and that had his instructions been given, he would probably have been convicted
only of second degree murder. Here, however, statutory instructions on reasonable doubt
were given, as were instructions on the presumption of innocence, intent, and the distinctions
between first and second degree murder. Notwithstanding the reading of these instructions,
we find that it is error not to give the instruction. In the context of this case, however, the
failure does not require reversal since consideration of the entire record indicates neither a
miscarriage of justice, nor prejudice to appellant's substantial rights. See State v. Fitch, 65
Nev. 668, 691-93, 200 P.2d 991, 1003-04 (1948); NRS 177.255; 178.598; 47.040(1)(b).
Moreover, the evidence can easily be read to exclude a theory of guilt on the lesser offense of
second degree murder. State v. Trujillo, 590 P.2d 1027, 1030-31 (Kan. 1979). The evidence
proving each element of first degree murder is truly overwhelming, Abram v. State, 95 Nev.
352, 594 P.2d 1143 (1979); Coffman v. State, 93 Nev. 32, 559 P.2d 828 (1977), and we
conclude that the error in failure to give the statutory instruction was harmless beyond a
reasonable doubt. See Chapman v. California, 3S6 U.S. 1S, 20 {1967).
____________________
can say they feel an abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt
to be reasonable must be actual and substantial, not mere possibility or speculation.
2. No other definition of reasonable doubt shall be given by the court to juries in criminal actions in
this state.
96 Nev. 258, 266 (1980) Ogden v. State
California, 386 U.S. 18, 20 (1967). There is substantial evidence from which the jury could
have found premeditated homicide. This includes, for example, appellant's careful planning
of the robbery and homicide, his carrying of the victim's pistol for a time preceding the
killing, the locking of the cottage doors and the execution style of the slaying and
deliberateness of the plan.
We summarily reject appellant's remaining assignments of error and we affirm the
judgment of the lower court.
Batjer, J., concurring:
I agree that the judgment of the district court must be affirmed; however, in reaching that
conclusion, I do not agree that the district court committed error in refusing to give appellant's
proposed instruction E to the effect that if there exists a reasonable doubt as to which of
two or more degrees an accused is guilty, he shall be convicted of the lowest. NRS 175.201.
1

The district court has an affirmative duty to give such an instruction, but only when it is
required by the evidence and when there exists a reasonable doubt as to the degree of the
crime. State v. Masqua, 502 P.2d 728 (Kan. 1972).
Here there is overwhelming evidence to support a conviction of murder in the first degree.
To have given instruction E, requested by appellant on the lesser offense in view of the
facts of this case, would have permitted the jury to speculate on a degree of homicide.
On the record and all of the instructions given by the district court taken and read together
as a whole, I believe the jury was properly instructed.
____________________

1
NRS 175.201:
Every person charged with the commission of a crime shall be presumed innocent until the contrary is
proved by competent evidence beyond a reasonable doubt; and when an offense has been proved against
him, and there exists a reasonable doubt as to which of two or more degrees he is guilty, he shall be
convicted only of the lowest.
____________
96 Nev. 267, 267 (1980) Barton v. State
ALFRED ROBERT BARTON, Appellant, v. THE STATE
No. 11726
March 13, 1980 607 P.2d 586
Howard W. Babock, Judge.
Defendant was convicted before the district court of five counts of robbery with use of a
deadly weapon and he appealed. The Supreme Court, held that: (1) hearing, which was
conducted when defendant was brought before district court for purpose of arraignment but in
which he was not required to take any action affecting his substantial rights in any way, was
not a critical stage of the proceedings in which right to counsel would attach, and (2)
continuing hearing for purpose of allowing defendant time in which to engage counsel was
proper.
Affirmed.
Mills, Galliher, Lukens, Gibson, Schwartzer & Shinehouse, Las Vegas, for Appellant.
H. Douglas Clark, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Right to counsel arises only at a critical stage of the proceedings. U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Hearing, which was conducted when defendant was brought before court for purpose of being arraigned,
at which he was supplied with copy of indictment but in which he was not required to take any action
affecting his substantial rights in any way, was not a critical stage of the proceedings at which right to
counsel would attach. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Continuing hearing, which was conducted when defendant was brought before court for purpose of
arraignment, so as to allow defendant time in which to engage counsel was proper, in light of fact that
proceeding to entry of a plea would have violated defendant's right to counsel. NRS 174.015, 174.035;
OPINION
Per Curiam:
Appellant contends that his convictions on five counts of robbery with use of a deadly
weapon must be reversed because of alleged errors occurring in the arraignment process.
An indictment was returned against appellant on June 7, 1978. On June 12, 1978,
appellant was brought before the district court to be arraigned. At that time appellant was
supplied a copy of the indictment but waived its reading. However, since appellant had not
yet obtained counsel, he was not called upon to enter a plea. Several continuances were
thereafter granted appellant for the purpose of allowing him time in which to engage counsel.
His attempts to procure private counsel failed and counsel was thereafter appointed for him.
On December 13, 1978, appellant appeared in court; his appointed counsel objected that the
June 12th hearing could not be considered an arraignment because no plea had been entered
and because appellant had not been represented by counsel. The court overruled the objection
on the grounds that appellant had been adequately apprised of the charges against him and
that no affirmative action had been required of appellant at the June 12th hearing. Thereupon,
appellant was called upon to plead and he entered pleas of not guilty to all counts.
Appellant contends that the above-described proceedings were violative of NRS 174.015,
NRS 174.035, and the Sixth Amendment of the United States Constitution. The statutes cited
above require in pertinent part that the arraignment shall be conducted in open court and shall
consist of reading the indictment or information to the defendant or stating to him the
substance of the charge and calling on him to enter a plea. In addition, a copy of the
indictment or information must be supplied to the accused.
The Sixth Amendment requires that an accused be afforded the assistance of counsel at a
critical stage of the prosecution. See Coleman v. Alabama, 399 U.S. 1 (1970); Hamilton v.
Alabama, 368 U.S. 52 (1961); Garnick v. Miller, 81 Nev. 372, 403 P.2d 850 (1965). We have
reviewed the record and conclude that the proceedings below fully comported with statutory
and constitutional requirements.
[Headnotes 1, 2]
Appellant's contention that the right to counsel attached at the June 12th hearing is clearly
without merit. Such a right arises only at a critical stage of the proceedings. But apart from
supplying appellant with a copy of the indictment, as required by NRS 174.015, it is apparent
that nothing of any significance occurred at the hearing. Appellant simply was not required to
take any action that would affect his substantial rights in any way; therefore, the hearing
could not be a critical stage and no Sixth Amendment deprivation could have occurred.
[Headnote 3]
The action of the district court in continuing the June 12th hearing was entirely proper.
hearing was entirely proper. To have proceeded to entry of the plea would have clearly
violated appellant's right to counsel as entry of a plea is a critical stage in the proceedings. See
Smith v. Warden, 85 Nev. 83, 450 P.2d 356 (1969), cert. denied, 396 U.S. 860 (1969);
Garnick v. Miller, supra; Ex Parte Hoff, 80 Nev. 360, 393 P.2d 619 (1964). Subsequently,
when appellant pled not guilty to the charges, after counsel had been appointed, the statutory
requirement that the plea be taken was met. The actions of the district court were, therefore,
in all respects proper.
Affirmed.
____________
96 Nev. 269, 269 (1980) Dromiack v. Warden
MICHAEL DROMIACK, Appellant, v. WARDEN,
No. 11698
March 13, 1980 607 P.2d 1145
Appeal from order denying petition for writ of habeas corpus, First Judicial District Court,
Carson City; Michael E. Fondi, Judge.
The Supreme Court held that: (1) petitioner's failure to appeal from the dismissal of a
petition for post-conviction relief, which was untimely filed, did not preclude him from filing
a subsequent habeas corpus petition containing the same grounds for relief which were raised
in the prior petition, but which had never been considered or resolved on their merits, and (2)
where prisoner mailed his notice of appeal from conviction to the Supreme Court from the
state prison within the required time, but because of an apparent error by supervisory
personnel at the prison insufficient postage was attached to the notice of appeal, which
resulted in the notice being filed late, sufficient grounds existed which excused prisoner's
failure to raise the issues on direct appeal and they could be considered on habeas corpus.
Reversed and remanded, with instructions.
Michael Dromiack, in proper person.
Richard H. Bryan, Attorney General, and John DeGraff, Deputy Attorney General, Carson
City, for Respondent.
1. Habeas Corpus.
Petitioner's failure to appeal from dismissal of petition for post-conviction relief, which was untimely
filed, did not preclude him from filing subsequent habeas corpus petition containing same
grounds for relief which were raised in prior petition, but which had never been
considered or resolved on their merits.
filing subsequent habeas corpus petition containing same grounds for relief which were raised in prior
petition, but which had never been considered or resolved on their merits. NRS 177.315, subd. 3,
177.325.
2. Habeas Corpus.
Validity of guilty plea is matter which may be determined by petition for writ of habeas corpus.
3. Habeas Corpus.
Courts will not consider petitions for writs of habeas corpus which contain grounds for relief which could
have been, but were not, raised on direct appeal from conviction unless reasons for such failure are shown.
4. Habeas Corpus.
Where prisoner mailed his notice of appeal from conviction to Supreme Court from state prison within
required time, but because of apparent error by supervisory personnel at prison insufficient postage was
attached to notice of appeal, which resulted in notice being filed late, sufficient grounds existed which
excused prisoner's failure to raise issues on direct appeal and they could be considered on habeas corpus.
OPINION
Per Curiam:
Michael Dromiack pled guilty to robbery with the use of a deadly weapon (NRS 200.380;
193.165) and second degree kidnapping (NRS 200.310) in the Second Judicial District Court,
and judgment of conviction was thereafter entered against him on October 13, 1976. His
direct appeal from the conviction was dismissed because notice of appeal was not timely
filed. On July 31, 1978, Dromiack filed a petition for writ of habeas corpus for
post-conviction relief in the First Judicial District Court challenging the voluntariness of his
guilty plea. The district court denied the petition on August 1, 1978. The court treated the
matter as a petition for post-conviction relief under NRS 177.315 et seq., and found that the
petition was not timely filed. No appeal was taken from the order denying the petition.
Dromiack filed a second petition for writ of habeas corpus for post-conviction relief in
the First Judicial District Court on November 8, 1978. On March 1, 1979, the court again
denied the petition, concluding that Dromiack was asserting the same grounds for relief that
were raised in his first petition, and had waived his claims for relief by failing to raise the
issues on direct appeal from conviction. See Johnson v. Warden, 89 Nev. 476, 515 P.2d 63
(1973). This appeal followed.
Although it is true that successive petitions for post-conviction relief generally will not be
considered, see Rogers v. Warden, 86 Nev. 359, 468 P.2d 993 (1970), we believe that, in the
context of this case, Dromiack's second petition should not have been denied without a
consideration of the merits.
[Headnote 1]
1. First, we note that the petition is one for habeas corpus, not post-conviction relief, and
therefore is not subject to the time requirement for filing set forth in NRS 177.315(3).
1
The
petition contains grounds for relief which were raised in a prior petition which the court
treated as a matter within the post-conviction relief statutes. That prior petition was never
resolved on the merits, but was dismissed for not being filed within the time prescribed by
NRS 177.315(3). Dromiack's failure to appeal from the order denying the first petition should
not be deemed a waiver of the claims for relief he raised therein, but only a concession that,
as a petition for post-conviction relief, the petition was untimely. Thus, the failure to appeal
does not preclude Dromiack from filing a subsequent habeas petition containing the same
grounds for relief which were raised in the prior petition, but which have never been
considered or resolved. See Vargo v. Warden, 94 Nev. 466, 581 P.2d 855 (1978).
[Headnote 2]
The validity of a guilty plea is a matter which may be determined upon a petition for a writ
of habeas corpus. See Krause v. Fogliani, 82 Nev. 459, 421 P.2d 949 (1966); Bundrant v.
Fogliani, 82 Nev. 388, 419 P.2d 293 (1966). Such a petition is filed in the district court of the
district having custody of the petitioner. NRS 34.380(3). See Marshall v. Warden, 83 Nev.
442, 434 P.2d 437 (1967). Thus, the First Judicial District Court, being the district court of
the district where Dromiack is being detained, may consider this petition which is attacking
the validity of a conviction entered in another court. See Nev. Const. art. 6, 6.
Unquestionably, if the trial court had exceeded its jurisdiction, a prisoner held under its
judgment might be discharged from custody upon a writ of habeas corpus by another court
having the authority to entertain the writ. . . .' Eureka Bank Cases, 35 Nev. 80, 147, 126 P.
655, 678 (1912), quoting Kaizo v. Henry, 211 U.S. 146, 148 (1908). Compare Warden v.
Owens, 93 Nev. 255, 563 P.2d 81 (1977) (in habeas corpus proceeding where petitioner did
not challenge any infirmities, constitutional or otherwise, in the trial or sentence, district court
had no jurisdiction to vacate other court's valid judgment of conviction and sentence, and
direct that court how to proceed).
____________________

1
The title of the petition is ambiguous. However, it contains a provision which states: This form is not
intended to, and does not, preclude your right to file a petition for post-conviction relief in any other appropriate
Court . . . under the provisions of NRS 177.325. Moreover, the petition was not filed in the same district court
where the conviction was entered, as is required of petitions for post-conviction relief. See NRS 177.325.
court's valid judgment of conviction and sentence, and direct that court how to proceed).
[Headnotes 3, 4]
2. Courts will not consider petitions for writs of habeas corpus which contain grounds for
relief which could have been, but were not, raised on direct appeal from conviction unless
reasons for such failure are shown. Junior v. Warden, 91 Nev. 111, 532 P.2d 1037 (1975).
Here, Dromiack stated in his petition that he filed a direct appeal, but it was dismissed as
untimely. Dromiack mailed his notice of appeal to this court from the state prison within the
required time. However, because of an apparent error by supervisory personnel at the prison,
insufficient postage was attached to the notice of appeal. The notice was returned, correct
postage was attached, and the notice then filed late. Under these circumstances, sufficient
grounds exist which excuse Dromiack's failure to raise the issues on direct appeal. Cf. Gunter
v. State, 95 Nev. 319, 594 P.2d 708 (1979).
Accordingly, the district court's order of March 1, 1979 which denied Dromiack's petition
is reversed and this case is remanded for further proceedings, including the appointment of
counsel to represent Dromiack.
____________
96 Nev. 272, 272 (1980) Taylor v. Warden
ALLEN LYN TAYLOR, Appellant, v. WARDEN,
No. 12110
March 13, 1980 607 P.2d 587
The Supreme Court held that: (1) petitioner, who was sentenced to life imprisonment, was
properly denied permission to withdraw his plea of guilty, despite the fact that he pled guilty
after having been informed by district judge that maximum term of incarceration that could
be imposed as a result of his plea would be sixty-six years, since there was little practical
difference between the consequences of a sixty-six-year sentence and a life sentence, and (2)
life sentence could not validly be imposed on petitioner under such circumstances, and,
therefore, judgment of conviction would be modified so as to reduce the life sentence to a
sixty-six-year term.
be imposed on petitioner under such circumstances, and, therefore, judgment of conviction
would be modified so as to reduce the life sentence to a sixty-six-year term.
Affirmed, as modified.
Virgil A. Bucchianeri, Carson City, for Appellant.
Richard H. Bryan, Attorney General, and Michael D. Ross, Deputy Attorney General,
1. Criminal Law.
In reviewing an attack on a guilty plea a court must consider whether the plea was voluntarily entered as
well as whether, considered as a whole, the process by which the plea was obtained was fundamentally fair.
2. Criminal Law.
In pleading guilty, criminal defendant waives his right to trial by jury, his right to confront witnesses, and
his right against compulsory self-incrimination; such a waiver is effective only if made intelligently and
voluntarily.
3. Criminal Law.
An element to be considered in deciding whether a guilty plea is voluntarily made is whether defendant
had an adequate appreciation of the possible sentence that could be imposed.
4. Criminal Law.
If misinformation as to sentence renders guilty plea involuntarily made, it must be vacated even if the
actual sentence imposed is within the perimeters of the erroneous advice.
5. Criminal Law.
Question as to whether a guilty plea is voluntarily entered will turn on the facts and circumstances of each
particular case.
6. Criminal Law.
As regards incorrect or insufficient information as to sentencing, proper test to be applied is whether
defendant would have pleaded differently had he been correctly informed, upon which issue the state must
bear the burden of proof.
7. Criminal Law.
Although ordinarily events subsequent to defendant's decision to plead guilty are irrelevant to a
determination of voluntariness, such events are properly considered in determining whether the process by
which the plea was taken was fundamentally fair.
8. Criminal Law.
Where it is determined that a guilty plea is voluntary, if the sentence subsequently imposed is less
onerous than the maximum sentence that has been represented as possible, the fundamental fairness
requirement has been satisfied; however, if the sentence is of greater duration, then defendant is entitled to
relief.
9. Criminal Law.
Where guilty plea is voluntary but sentence subsequently imposed is of greater duration than the
maximum sentence that has been represented as possible, the remedy ordinarily will be reduction of the
sentence to the maximum sentence represented, although in appropriate cases vacation of the guilty plea
may be granted.
10. Criminal Law.
While, ordinarily, misinformation as to the range of sentences is prima facie proof of involuntariness of
guilty plea, state may overcome this presumption by clear and convincing evidence to the contrary.
11. Criminal Law.
Defendant, who pled guilty after having been informed by district judge that maximum term of
incarceration that could be imposed as a result of his plea would be sixty-six years, was properly denied
permission to withdraw his guilty plea despite the fact that he was sentenced to life imprisonment, since
there was little practical difference between the consequences of a sixty-six-year sentence and a life
sentence.
12. Criminal Law.
Life sentence could not validly be imposed on defendant, who pled guilty after having been informed by
district judge that the maximum term of incarceration that could be imposed as result of his plea would be
sixty-six-years, and, therefore, judgment of conviction would be modified to reduce the life sentence to a
sixty-six year term.
OPINION
Per Curiam:
Allen Lyn Taylor, under sentence of life imprisonment, appeals from the district court's
denial of his petition for a writ of habeas corpus.
Appellant contends that he must be permitted to withdraw his plea of guilty because, in the
original proceedings, he had been informed by the district judge that the maximum term of
incarceration that could be imposed as a result of his plea would be sixty-six years. The
record reflects that at the hearing there was a great deal of confusion as to whether sixty-six
years or life was the maximum possible penalty. Although the prosecutor and defense
attorney both stated that a life sentence was possible, the judge did not. Instead, the judge
informed appellant that he could be sentenced to the State Penitentiary for sixty-six years.
[Headnote 1]
In reviewing an attack on a guilty plea a court must consider whether the plea was
voluntarily entered as well as whether, considered as a whole, the process by which the plea
was obtained was fundamentally fair. Bachner v. United States, 517 F.2d 589 (7th Cir. 1975,
Stevens, J. concurring opinion.)
[Headnotes 2-4]
In pleading guilty, a criminal defendant waives his right to trial by jury, his right to
confront witnesses, and his right against compulsory self-incrimination; such a waiver is
effective only if made intelligently and voluntarily. Boykin v. Alabama, 395 U.S 238 (1969).
Consequently, the focus of the voluntariness inquiry is upon the frame of mind of the
defendant at the time he decides to plead.
voluntariness inquiry is upon the frame of mind of the defendant at the time he decides to
plead. An element to be considered in deciding this issue is whether the defendant had an
adequate appreciation of the possible sentence that can be imposed. See Dunlap v. United
States, 462 F.2d 163 (5th Cir. 1972); Meyer v. State, 95 Nev. 885, 603 P.2d 1066 (1979);
Stocks v. Warden, 86 Nev. 758, 476 P.2d 469 (1970). Thus, if misinformation as to sentence
renders the plea involuntarily made, it must be vacated even if the actual sentence imposed is
within the perimeters of the erroneous advice. Paige v. United States, 443 F.2d 781 (4th Cir.
1971).
[Headnotes 5, 6]
The question as to whether a plea is voluntarily entered will turn on the facts and
circumstances of each particular case. See Caputo v. Henderson, 541 F.2d 979 (2d Cir. 1976).
As regards incorrect or insufficient information as to sentencing, the proper test to be applied
is whether the defendant would have pleaded differently had he been correctly informed,
upon which issue the state must bear the burden of proof. In some situations the error may be
so egregious that involuntariness may be conclusively presumed. See Meyer v. State, supra.
[Headnotes 7, 8]
The inquiry as to whether the process by which the plea was taken is fundamentally fair,
on the other hand, involves different considerations. Rather than focusing on the state of mind
of the defendant, the focus of this inquiry is upon the process in which the plea has been
obtained. Thus, although ordinarily events subsequent to the defendant's decision to plead
guilty are irrelevant to a determination of voluntariness, such events are properly considered
on the fairness issue. Bachner v. United States, supra. As a result, where it is determined that
the plea is voluntary, if the sentence subsequently imposed is less onerous than the maximum
sentence that has been represented as possible, the fundamental fairness requirement has been
satisfied. Id. On the other hand, if the sentence is of greater duration, then the defendant is
entitled to relief. See United States ex rel. Baker v. Finkbeiner, 551 F.2d 180 (7th Cir. 1977).
[Headnote 9]
However, the appropriate relief is not necessarily vacation of the guilty plea. As long as
the guilty plea was voluntary, the defendant has no right to insist upon this remedy. While in
appropriate cases such relief may be granted, ordinarily the remedy will be reduction of the
sentence to the maximum sentence represented as possible. People v. Wenger, 356 N.E.2d
432 {Ill.App.
432 (Ill.App. 1976); People v. Jackson, 300 N.E.2d 557 (Ill.App. 1973). See United States ex
rel. Baker v. Finkbeiner, supra.
[Headnotes 10-12]
With these principles in mind, we turn to the case before us. While, ordinarily,
misinformation as to the range of sentences is prima facie proof of involuntariness, see Nealy
v. Cupp, 467 P.2d 649 (Or.App. 1970), the state may overcome this presumption by clear and
convincing evidence to the contrary. In this case we note that there is little practical difference
between the consequences of a sixty-six-year sentence and a life sentence; parole eligibility
remains the same in any event. In addition, the record discloses that appellant was adamant in
his determination to plead guilty. Therefore, we cannot say the lower court erred in its
determination.
However, the life sentence cannot stand. Having been informed by the judge that sixty-six
years was the maximum sentence, a greater sentence cannot be validly imposed. Therefore,
we modify the judgment so as to reduce the life sentence to a sixty-six-year term.
1

Appellant's other contentions are without merit.
Accordingly, the judgment is, as modified, affirmed.
____________________

1
We express no opinion as to those situations in which vacation of the plea is proper.
____________
96 Nev. 276, 276 (1980) Nevada Pub. Emp. Ret. Bd. v. Byrne
NEVADA PUBLIC EMPLOYEES RETIREMENT BOARD,
Appellant, v. WILLIAM BYRNE, Respondent.
No. 12001
March 13, 1980 607 P.2d 1351
Appeal from declaratory judgment and judgment ordering payment of retirement benefits.
Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Retired state employee brought action against Public Employees Retirement Board seeking
to estop the Board from denying its earlier representations as to amount and mode of
calculation of his retirement benefits. The district court entered judgment in favor of the
former state employee, and the Board appealed. The Supreme Court, Mowbray, C. J., held
that: (1) substantial evidence supported finding by trial court that representations by the
Board concerning the employee's retirement benefits were not estimates nor opinions but
were factual in nature, as required to estop the Board from denying them, and {2) power
of the Board to correct "an error or inequity" did not prohibit retired state employee from
relying on factual statements made by the Board as to amount and mode of calculation of
his retirement benefits, and thus the Board was estopped from denying such earlier
representations and was obligated to pay retirement benefits to the former state
employee in accordance with such representations.
but were factual in nature, as required to estop the Board from denying them, and (2) power
of the Board to correct an error or inequity did not prohibit retired state employee from
relying on factual statements made by the Board as to amount and mode of calculation of his
retirement benefits, and thus the Board was estopped from denying such earlier
representations and was obligated to pay retirement benefits to the former state employee in
accordance with such representations.
Affirmed.
Richard H. Bryan, Attorney General, and William E. Isaeff, Deputy Attorney General,
Carson City, for Appellant.
Thomas F. Pitaro, Las Vegas, for Respondent.
1. Officers and Public Employees.
Governmental body, charged with as important a function as administration of public employees
retirement system, bears most stringent duty to abstain from giving inaccurate or misleading advice.
2. Estoppel.
In retired state employee's action against Public Employees Retirement Board seeking to estop the Board
from denying its earlier representations as to amount and mode of calculation of his retirement benefits,
substantial evidence supported finding by trial court that representations by the Board concerning the
employee's retirement benefits were not estimates nor opinions but were factual in nature, as required to
estop the Board from denying them.
3. Estoppel.
Power of Public Employees Retirement Board to correct an error or inequity did not prohibit retired
state employee from relying on factual statements made by the Board as to amount and mode of calculation
of his retirement benefits, and thus the Board was estopped from denying such earlier representations and
was obligated to pay retirement benefits to the former state employee in accordance with such
representations. NRS 286.190, subd. 3.
OPINION
The Nevada Public Employees' Retirement Board appeals from the judgment of the district
court, entered after trial to the court on an agreed statement of facts, ordering the Board to pay
retirement benefits to William Byrne in accordance with the Board's earlier representations as
to the amounts of those benefits. Since the trial court properly found the Board to be equitably
estopped from denying its earlier representations, we affirm.
1
Between January, 1955 and
October, 1975, Byrne dutifully served the state and the public, as an elected official for
approximately 12.5 years and as a regular civil servant for approximately 7.55 years.

____________________

1
Because of our disposition here, we need not discuss nor determine the propriety of the alternative reasons
given by the district court for its ruling.
Between January, 1955 and October, 1975, Byrne dutifully served the state and the public,
as an elected official for approximately 12.5 years and as a regular civil servant for
approximately 7.55 years. In order to prepare for his retirement, Byrne inquired of the Board,
at some time prior to December, 1971, as to the amount of his prospective retirement
benefits. The Board responded that Byrne's benefits would be calculated at the rate of 2.5
percent of his average monthly compensation for each year of service up to 20 years of
service, and that his average monthly compensation would be the average of his 36 highest
salaried, consecutive months within his last 10 years of service. Byrne was further informed
that as of October 8, 1971, he had 15 years, 11 months, and 24 days of accrued, covered
service.
The parties continued their correspondence concerning Byrne's retirement over the next
four years. In March, 1972, the Board informed Byrne that he had accrued 16.25 years of
covered service and would qualify for an unmodified monthly retirement allowance of
$504.49. In October, 1973, the Board explained to Byrne that these figures were being
provided to enable you to plan your future retirement. In December, 1974, the Board
advised Byrne that his unmodified monthly allowance, as of January 1, 1975, would be
$725.35. The Board later informed Byrne that he would complete 20 years of covered service
on October 24, 1975.
In reliance on the Board's representations concerning his retirement benefits, Byrne
notified the Board that he would retire on October 24, 1975; and, on September 1, 1975,
Byrne submitted his formal, written resignation, effective October 24, 1975, from his
$23,000.00 per annum position as Assistant Clark County Assessor. Byrne further relied on
the Board's calculations by selling his Las Vegas home for $28,000.00 and by purchasing a
retirement home in Irvine, California, for $54,806.00, thereby obligating himself to make
monthly payments of $315.00 plus taxes.
Subsequent to these transactions, however, the Board informed Byrne that his monthly
retirement benefits would amount to a mere $86.78.
2
Byrne protested this calculation. On
January 2S, 1976, after referring the matter to the Attorney General for his opinion, the
Board reevaluated its position and computed Byrne's unmodified, monthly benefits as
$46S.06.3 Byrne's subsequent protests went unheeded.
____________________

2
In reaching this figure, the Board apparently relied on the 1975 versions of NRS 286.470 and 286.475; but,
for some unexplained reason, it disregarded any salaries earned by Byrne as a county civil servant. Those
statutes, in their 1975 form, provided in pertinent part:
286.470 Credit for service as county commissioner, city councilman, mayor: Procedure.
1. Service as a commissioner of a county participating in the system, or as a councilman or mayor of
an incorporated city participating in the system, shall be service to be credited for retirement under this
chapter and service credit shall be granted for the entire tenure of office upon the following conditions:
January 28, 1976, after referring the matter to the Attorney General for his opinion, the Board
reevaluated its position and computed Byrne's unmodified, monthly benefits as $468.06.
3
Byrne's subsequent protests went unheeded.
Byrne then filed this suit in the district court, seeking to estop the Board from denying its
earlier representations as to the amount and mode of calculation of his retirement benefits.
After a trial to the court on an agreed statement of facts, the district court found that the
Board's statements as to Byrne's prospective pension benefits were factual in nature, rather
than estimates or opinions, and that Byrne's reliance on those representations was both
detrimental and reasonable; accordingly, the court raised an estoppel against the Board and
ordered it to pay retirement benefits to Byrne in accordance with its earlier statements. This
appeal followed.
The Board contends that Byrne could not, as a matter of law, reasonably rely on the
Board's representations because (1) those representations were mere estimates and opinions,
and (2) the Board's inherent power to correct its mistakes
4
bars any reliance on its
representations. We cannot agree.
____________________
(a) The average monthly salary of a member applying for retirement, including, as any part of his total
service, service in the foregoing capacities, shall be calculated upon the monthly average of all sums
earned in covered employment throughout the total service of the individual. When service in any of the
foregoing capacities shall be in excess of 3 consecutive years, the monthly average salary for the entire
service in such capacity shall be deemed to be the average salary received in the 3 highest salaried
consecutive years.
. . . .
3. Members of the system who have served in the foregoing capacities and who have reached
retirement age may waive service in such capacities, at their election, at the time of retirement and elect
to have their allowances computed in the same manner as those of other members of the system and under
the same provisions as are applicable to other members of the system.
4. The provisions of this chapter and the rules and regulations of the board, when not contradictory
to the provisions of this section, shall apply equally to persons in the foregoing capacities.
286.475 Credit for service as legislator prior to July 1, 1967: Calculation of average monthly salary.
The method of calculating the average monthly salary of a county commissioner or a councilman of an
incorporated city prescribed in paragraph (a) of subsection 1 of NRS 286.470 shall be used in calculating
the average monthly salary of persons serving as legislators prior to July 1, 1967, where such service has
remained accredited under the provisions of this chapter.

3
This compromise figure is apparently based on a pro rata application of NRS 286.551 and the 1975
version of NRS 286.470 to Byrne's elected service and regular civil service. In adopting this formula, the Board
and the Attorney General used NRS 286.367 as their model, in which the legislature specifically provided for a
pro rata retirement scheme for those individuals with combined service as volunteer and regular firefighters.

4
In 1975, NRS 286.190(3) provided, in pertinent part, that the Board [m]ay:
(a) Adjust service and make any correction of member, retiree or beneficiary records and benefits
after an error or inequity has been determined.
[Headnote 1]
The doctrine of equitable estoppel, as applied to governmental agencies, is rooted in
concepts of justice and right, and is premised on the idea that the sovereign is responsible: a
citizen has a legitimate expectation that the government should deal fairly with him or her. 2
K. Davis, Administrative Law Treatise 17.01 (West 1958); see also Mesaba Aviation Div.
v. County of Itasca, 258 N.W.2d 877 (Minn. 1977); National Advertising Co. v. State, Etc.,
571 P.2d 1194 (N.M. 1977); Yamada v. Natural Disaster Claims Comm'n, 513 P.2d 1001
(Haw. 1973); City of Long Beach v. Mansell, 476 P.2d 423 (Cal. 1970). Moreover, a
governmental body, charged with as important a function as the administration of a public
employees retirement system, bears a most stringent duty to abstain from giving inaccurate or
misleading advice. Crumpler v. Board of Administration Emp. Retire. Sys., 108 Cal. Rptr.
293, 304 (Ct.App. 1973).
[Headnote 2]
Viewed from this perspective, we cannot say that the district court's finding that the
Board's representations concerning Byrne's retirement benefits were not estimates nor
opinions is not supported by substantial evidence. On the contrary, the record demonstrates
that the retirement figures communicated by the Board to Byrne were calculated to the penny
and to the day, and were expressly given to Byrne to enable [him] to plan [his] future
retirement.
[Headnote 3]
In addition, we fail to see how the Board's power to correct an error or inequity prohibits
a public employee, such as respondent, from relying on these types of factual statements, or
prevents the courts of this state from raising an estoppel against it. We would turn the
doctrine of equitable estoppel upon its head if we were to hold that the power to correct an
inequity, as unjust as the one here, would, without more, defeat our courts' inherent power to
seek and to do equity. See generally Crumpler v. Board of Administration Emp. Retire. Sys.,
supra.
Perceiving no error, we affirm the judgment of the district court.
____________
96 Nev. 281, 281 (1980) Gandy v. State ex rel. Div. Investigation
LARRY M. GANDY, Appellant, v. THE STATE OF NEVADA, ex rel.
DIVISION OF INVESTIGATION AND NARCOTICS, Respondent.
No. 10614
March 13, 1980 607 P.2d 581
Appeal from final order; First Judicial District Court, Carson City; Michael E. Fondi,
Judge.
Supervising narcotics agent appealed from judgment of the district court overruling
decision of the Personnel Advisory Commission sustaining hearing officer's order reinstating
agent. The Supreme Court, Thompson, J., held that evidence that agent was not informed that
if he took polygraph test questions asked him would relate specifically and narrowly to
performance of his official duty, that he was not advised that his answers could not be used
against him in any subsequent criminal prosecution and that he was not informed that penalty
for refusing to take polygraph exam would be dismissal supported conclusion of Personnel
Advisory Commission that agent's termination for willful insubordination in failing to take a
polygraph test was improper.
Reversed.
Fahrenkopf, Mortimer, Sourwine, Mousel & Pinkerton, of Reno, for Appellant.
Richard H. Bryan, Attorney General, and Patrick J. Mullen and Ernest Adler, Deputy
Attorneys General, for Respondent.
1. Administrative Law and Procedure.
When decision of administrative body is challenged, function of district court and Supreme Court is to
review evidence presented to administrative body and ascertain whether body acted arbitrarily or
capriciously, thus abusing its discretion. NRS 233B.010 et seq.
One may not be discharged from service simply because he invokes privilege against self-incrimination.
Public employee may subject himself to dismissal if he refuses to account for his performance of public
trust, after proper proceedings, which do not involve an attempt to coerce him to relinquish his
constitutional rights.
4. Witnesses.
Answers may be compelled regardless of privilege against self-incrimination if there is immunity from
federal and state use of such compelled testimony or its fruits in connection with a criminal prosecution
against person testifying. U.S.C.A.Const. Amend. 5.
Employee who is ordered to take polygraph examination must be informed that questions will relate
specifically and narrowly to performance of his official duty, that answers cannot be used against him in
subsequent criminal prosecution, and that penalty for refusing to answer is dismissal.
Evidence that supervising narcotics agent was not informed that if he took polygraph test questions asked
him would relate specifically and narrowly to performance of his official duty, that he was not advised that
his answers could not be used against him in any subsequent criminal prosecution and that he was not
informed that penalties for refusing to take polygraph exam would be dismissal supported conclusion of
Personnel Advisory Commission that agent's termination for willful insubordination in failing to take a
polygraph test was improper. U.S.C.A.Const. Amend. 5.
OPINION
The Chief of the State Division of Investigation and Narcotics dismissed Larry Gandy
from his position as a supervising narcotics agent. Gandy contested his termination from state
service. A hearings officer ordered his reinstatement. The State appealed that ruling to the
Personnel Advisory Commission. That Commission sustained the hearings officer. The State
then sought court review. The district court overruled the Commission, ordering the dismissal
of Gandy from state service. This appeal followed.
[Headnote 1]
When a decision of an administrative body is challenged, the function of this court is
identical to that of the district court. It is to review the evidence presented to the
administrative body and ascertain whether that body acted arbitrarily or capriciously, thus
abusing its discretion.
1
This limitation upon court review is written into the Administrative
Procedure Act, NRS ch. 233B, pursuant to which the instant dispute was processed. It is there
provided that court review is confined to the record before the agency, NRS 233B.140(4);
that the court may not substitute its judgment for that of the agency as to the weight of the
evidence on questions of fact, NRS 233B.140(5); and
____________________

1
See: Nevada Industrial Comm'n v. Reese, 93 Nev. 115, 560 P.2d 1352 (1977); Miller v. West, 88 Nev. 105,
493 P.2d 1332 (1972); City of Reno v. Folsom, 86 Nev. 39, 464 P.2d 454 (1970); Bd. of Chiropractic that the
agency decision may be Exam'rs v. Babtkis, 83 Nev. 385, 432 P.2d 498 (1967); Urban Renewal Agcy. v.
Iacometti, 79 Nev. 113, 379 P.2d 466 (1963).
that the agency decision may be reversed, inter alia, if clearly erroneous, or arbitrary and
capricious. NRS 233B.140(5)(e)(f); Nevada Industrial Comm'n v. Reese, 93 Nev. 115, 560
P.2d 1352 (1977).
Our review of the record before the Personnel Advisory Commission leads us to conclude
that it acted well within its discretionary authority. Consequently, we reverse the district court
and reinstate the decision of the Commission. We turn to relate relevant facts and controlling
case authority.
Larry Gandy, while acting as a supervising narcotics agent, was involved in the arrest of
David Formby. Force was used to subdue Formby. Subsequently, Formby commenced suit
against the State seeking damages for an alleged wrongful assault upon him by Gandy. That
case was settled out of court. Thereafter, an investigation of the arrest incident was conducted
by the Chief of the Division of Investigation and Narcotics. Gandy was questioned by the
Chief and denied striking Formby while handcuffed, and denied the use of excessive force.
Upon conclusion of Formby's civil action, the Chief was allowed to interview a witness to
the incident. His version differed from Gandy's. Consequently, the Chief ordered Gandy to
take a polygraph exam. Gandy was notified of the order by his superior in the Las Vegas
office and was informed that criminal prosecution was anticipated unless he resigned. Gandy
refused to answer the order or resign until he could contact his attorney. Acting upon the
advice of counsel, Gandy refused to take the polygraph, and the Chief of the Division was so
notified. Ten days later he was given a notice of termination for willful insubordination in
failing to take a polygraph test. Gandy was not informed that if he took the polygraph test
the questions asked him would relate specifically and narrowly to the performance of his
official duty. Neither was he advised that his answers could not be used against him in any
subsequent criminal prosecution. Nor was he informed that the penalty for refusing to take
the polygraph exam would be dismissal.
[Headnotes 2-4]
1. The fifth amendment privilege against self-incrimination is applicable to state as well
as federal proceedings. Malloy v. Hogan, 378 U.S. 1 (1964); Murphy v. Waterfront Comm'n,
378 U.S. 52 (1964). One may not be discharged from service simply because he invokes that
privilege. Gardner v. Broderick, 392 U.S. 273 (1968); Spevack v. Klein, 385 U.S. 511 (1967).
A public employee may, however, subject himself to dismissal if he refuses to account for
his performance of the public trust, after proper proceedings, which do not involve an
attempt to coerce him to relinquish his constitutional rights.
he refuses to account for his performance of the public trust, after proper proceedings, which
do not involve an attempt to coerce him to relinquish his constitutional rights. Sanitation Men
v. Sanitation Comm'r, 392 U.S. 280 (1968); Gardner v. Broderick, supra. This protection
against coerced statements prohibits use in a subsequent criminal prosecution of statements
obtained under threat of removal from office, and this protection extends to all, whether
policemen or other members of our body politic. Garrity v. New Jersey, 385 U.S. 493 (1967).
On the other hand, answers may be compelled regardless of the privilege if there is immunity
from federal and state use of such compelled testimony or its fruits in connection with a
criminal prosecution against the person testifying. Murphy v. Waterfront Comm'n, supra.
Although the words proper proceedings as used in Sanitation Men v. Sanitation Comm'r,
supra, have not specifically been defined by the United States Supreme Court, a recent federal
court decision has interpreted them to mean a proceeding in which the employee is asked
pertinent questions about the performance of his duties and is duly advised of his options and
the consequences of his choice. Uniformed S.M. Ass'n, Inc. v. Commissioner of S. of N.Y.,
426 F.2d 619 (2d Cir. 1970). And, in Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973),
the court deemed being advised of the consequences of his choice to include advice that he is
subject to discharge for not answering and that his replies and their fruits cannot be used
against him in a criminal case.
[Headnote 5]
By reason of the mentioned United States Supreme Court cases it is now recognized that
an employee who is ordered to take a polygraph examination must be informed that the
questions will relate specifically and narrowly to the performance of his official duty; that the
answers cannot be used against him in any subsequent criminal prosecution, and that the
penalty for refusing to answer is dismissal. Seattle Police Officers' Guild v. City of Seattle,
494 P.2d 485 (Wash. 1972); Eshelman v. Blubaum, 560 P.2d 1283 (Ariz.App. 1977); Roux v.
New Orleans Police Department, 223 S.2d 905 (La.App. 1969).
[Headnote 6]
The Personnel Advisory Commission found that such procedural safeguards were not
accorded Larry Gandy. It also found that Gandy would have submitted to a polygraph
examination had he known that the penalty for failing to do so would be dismissal. The
record of evidence before the Commission supports those findings. Upon review, the district
court was bound to sustain the Commission.2 When it failed to do so, it substituted its
judgment for that of the Commission on questions of fact in violation of NRS 233B.140{5).
to sustain the Commission.
2
When it failed to do so, it substituted its judgment for that of the
Commission on questions of fact in violation of NRS 233B.140(5).
2. We need not decide whether it is permissible to require a polygraph examination as a
condition of continued employment, and defer that issue to some other time and case.
Reversed, with direction to enter judgment for Gandy for lost pay and benefits from
August 1, 1975 to March 12, 1976, the date upon which he resigned from state service,
together with interest, and costs below on appeal.
____________________

2
The district court found that Gandy had waived his fifth amendment privilege. There is no evidence of such
waiver. The district court found that Gandy's unequivocal refusal to take the polygraph test rendered it
unnecessary to advise him of the consequences of his refusal. The cases cited emphasize an affirmative duty on
the part of the employer to advise the employee of the consequences.
____________
96 Nev. 285, 285 (1980) Konstantinidis v. Sheriff
TEMISTOKLIS KONSTANTINIDIS, Appellant, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent.
No. 12100
March 13, 1980 607 P.2d 584
Appeal from order denying pretrial writ of habeas corpus, Eighth Judicial District Court,
Clark County; James A. Brennan, Judge.
Petitioner, who was charged with gross lewdness and second degree kidnapping, filed
pretrial petition for writ of habeas corpus. The district court denied petition, and petitioner
appealed. Sheriff moved for dismissal of the appeal. The Supreme Court, Thompson, J., held
that statutory preclusion of appellate review of order denying pretrial petition for writ of
habeas corpus grounded on claim that indictment for felony gross lewdness did not charge a
public offense was constitutionally permissible.
Appeal dismissed.
James L. Buchanan, II, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General; Robert J. Miller, District Attorney, Nikolas L.
Mastrangelo, and Joel M. Cooper, Deputy District Attorneys, Clark County, for Respondent.
1. Habeas Corpus.
Statutory preclusion of appellate review of orders denying pretrial petitions for writs of habeas corpus is
constitutional as applied to writs to test probable cause. NRS 34.380.
2. Habeas Corpus; Prohibition.
Statutory preclusion of appellate review of order denying pretrial petition for writ of habeas corpus
grounded on claim that indictment for felony gross lewdness did not charge a public offense was
constitutionally permissible; prohibition was the appropriate remedy to resolve that issue. NRS 34.380,
201.210.
OPINION
The respondent has moved to dismiss the appeal of Konstantinidis from an order of the
district court denying his pretrial petition for a writ of habeas corpus. The ground of the
motion to dismiss is that NRS 34.380 as amended by Nev. Stat. ch. 216, 1 at 312-3 (1979),
removed the jurisdiction of this court to entertain the appeal.
The grand jury had charged Konstantinidis with having committed open and gross
lewdness, a felony, NRS 201.210, and also second degree kidnapping, NRS 200.310. The
indictment for felony gross lewdness was challenged for the reason that it did not allege a
prior offense.
1
That challenge presented an issue of law as to whether the public offense of
felony gross lewdness had properly been charged. The indictment for second degree
kidnapping was attacked on the ground that the movement of the victim was incidental to the
open and gross lewdness charge and therefore, precluded. Jefferson v. State, 95 Nev. 577, 599
P.2d 1043 (1979). That contention presented an issue of fact which the district court resolved
against Konstantinidis.
[Headnotes 1, 2]
In Gary v. Sheriff, 96 Nev. 78, 605 P.2d 212 (1980), we ruled that the 1979 amendment to
NRS 34.380 was constitutional as applied to pretrial writs of habeas corpus to test probable
cause. We expressed no opinion as to its validity in other contexts. The Gary opinion
precludes this appeal with regard to the second degree kidnapping charge since probable
cause to hold Konstantinidis for trial was, on a factual basis, resolved in favor of the State,
and no appeal is possible. Gary, however, did not address the constitutionality of the 1979
amendment to NRS 34.3S0 precluding appellate review of an order denying a pretrial
petition for a writ of habeas corpus where the issue is whether the indictment charges a
public offense.
____________________

1
NRS 201.210 provides that open and gross lewdness is a felony only if the accused has committed a prior
open and gross lewdness offense. Otherwise, it is a gross misdemeanor.
did not address the constitutionality of the 1979 amendment to NRS 34.380 precluding
appellate review of an order denying a pretrial petition for a writ of habeas corpus where the
issue is whether the indictment charges a public offense. That question is presented in this
case with regard to the indictment of Konstantinidis for felony gross lewdness. We now hold
that the statutory preclusion of appellate review of an order denying a pretrial petition for a
writ of habeas corpus grounded upon the claim that the indictment does not charge a public
offense is constitutionally permissible. Prohibition is the appropriate remedy to resolve that
issue. Husney v. O'Donnell, 95 Nev. 467, 596 P.2d 230 (1979); Sardis v. District Court, 85
Nev. 585, 460 P.2d 163 (1969); Garnick v. District Court, 81 Nev. 531, 407 P.2d 163 (1965);
Houser v. Dist. Ct., 75 Nev. 465, 345 P.2d 766 (1959).
Appeal dismissed.
____________
96 Nev. 287, 287 (1980) Goicoechea v. District Court
JESS GOICOECHEA and JOE JUARISTI, Petitioners, v. FOURTH JUDICIAL DISTRICT
COURT IN AND FOR THE COUNTY OF ELKO, and the JUSTICE'S COURT FOR
ELKO TOWNSHIP, THE NEVADA DEPARTMENT OF FISH and GAME, THE
NEVADA HIGHWAY PATROL, Respondents.
No. 10981
March 13, 1980 607 P.2d 1140
Original proceedings in certiorari or, in the alternative, prohibition.
Defendants were charged with driving while under the influence of intoxicating liquor.
The justice's court granted their motion to suppress the results of a sobriety test and
breathalyzer test. On appeal, the Fourth Judicial District Court reversed, and defendants filed
an original application for a writ of certiorari or, in the alternative, a writ of prohibition. The
Supreme Court held that, because the district court had the power to review the order of the
justice's court granting the motion to suppress, the correctness of its action was not
reviewable on a petition for writ of certiorari or prohibition.
Application denied.
Evans & Bilyeu, and Zane S. Miles, Elko, for Petitioners.
Richard H. Bryan, Attorney General, Harry W. Swainston, Deputy Attorney General,
Carson City, and Thomas L. Stringfield, District Attorney, Elko County, for Respondents.
1. Certiorari.
Inquiry upon petitioner for writ of certiorari is limited to whether inferior tribunal acted in excess of its
jurisdiction and, if it is determined that the acts complained of were within jurisdiction of tribunal,
Supreme Court inquiry stops even if decision or order was incorrect.
2. Criminal Law.
District court had power to review order of justice's court granting motion to suppress and Supreme Court
could not inquire into correctness of its action upon petition for writ of certiorari. NRS 189.120.
3. Prohibition.
Writ of prohibition will not issue if court sought to be restrained had jurisdiction to hear and determine
matter under consideration.
4. Prohibition.
Purpose of writ of prohibition is not to correct errors, but to prevent courts from transcending limitation
of their jurisdiction in exercise of judicial power.
5. Criminal Law; Prohibition.
District court had power to review order of justice's court granting motion to suppress and Supreme Court
could not inquire into correctness of its action upon petition for writ of prohibition. NRS 189.120.
OPINION
Per Curiam:
Petitioners have filed an original application for a writ of certiorari or, in the alternative, a
writ of prohibition contending that respondent Fourth Judicial District Court erred when it
reversed an order of the justice's court of Elko Township granting a motion to suppress
certain evidence in a criminal proceeding wherein petitioners are charged with committing a
misdemeanor.
Petitioners were charged with driving while under the influence of intoxicating liquor, a
misdemeanor under NRS 484.379. The cases were set for trial in the justice's court of Elko
Township. Prior to trial, petitioners filed a motion to suppress the results of a sobriety test and
breathalyzer test on the grounds that such results were the fruits of an illegal search and were
obtained in violation of petitioners' fourth amendment rights. The justice of the peace granted
the motion and the state appealed to the district court. See NRS 189.120. The district court
ruled that the motion to suppress should have been denied and remanded the matter to the
justice's court for further proceedings.
denied and remanded the matter to the justice's court for further proceedings. The matter was
then stayed pending resolution of the instant proceedings.
[Headnotes 1, 2]
1. This court has often stated that the inquiry upon a petition for a writ of certiorari is
limited to whether the inferior tribunal acted in excess of its jurisdiction.
1
See Iveson v.
District Court, 66 Nev. 145, 206 P.2d 755 (1949); State ex rel. Hinckley v. Court, 53 Nev.
343, 1 P.2d 105 (1931); Phillips v. Welch, 12 Nev. 158 (1877). If it is determined that the act
complained of was within the jurisdiction of the tribunal, our inquiry stops even if the
decision or order was incorrect. Iveson v. District Court, supra. As this court appropriately
stated in Martin v. District Court, 13 Nev. 85, 90 (1878):
But the important question in this case is not whether the district court erred in
reversing and setting aside the judgment of the justice's court, but whether it exceeded
its jurisdiction. The proceeding is by certiorari, and if the district court had the power
on appeal to hear and determine the question . . . then its order, no matter how
erroneous, must stand.
Here, the district court clearly had the power, under NRS 189.120, to review the order of
the justice's court granting the motion to suppress.
2
Thus, we may not inquire into the
correctness of its action upon a petition for a writ of certiorari. See Luc v. Oceanic Steamship
Co., 84 Nev. 576, 445 P.2d 870 (1968); Iveson v. District Court, supra.
Moreover, we have held that certiorari is not available to decide a question of the
admissibility of evidence allegedly obtained in violation of constitutional requirements. Glass
v. District Court, 87 Nev. 321, 486 P.2d 1180 (1971).
[Headnotes 3-5]
2. A writ of prohibition, like a writ of certiorari, will not issue if the court sought to be
restrained had jurisdiction to hear and determine the matter under consideration. Arascada v.
District Court, 44 Nev. 37, 189 P. 621 (1920). The purpose of the writ of prohibition is not
to correct errors, but to prevent courts from transcending the limitation of their
jurisdiction in the exercise of judicial power.
____________________

1
2. The writ [of certiorari] shall be granted in all cases when an inferior tribunal, board or officer,
exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer and there is
no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy. . . .

2
1. The state may appeal to the district court from an order of a justice's court granting the motion of
a defendant to suppress evidence. . . .
of the writ of prohibition is not to correct errors, but to prevent courts from transcending the
limitation of their jurisdiction in the exercise of judicial power. Walser v. Moran, 42 Nev.
111, 173 P. 1149 (1918), modified on rehearing, 42 Nev. 156, 180 P. 492 (1918).
Thus, since we have concluded that the district court did not exceed the limits of its
jurisdiction in this case, prohibition will not lie to review its action. See Houston Gen. Ins.
Co. v. District Court, 94 Nev. 247, 578 P.2d 750 (1978).
Application denied.
____________
96 Nev. 290, 290 (1980) Chapman v. Chapman
SHEREE SMITH CHAPMAN, Appellant, v. FRANCIS P. CHAPMAN,
Jr., and JOANN CHAPMAN, Respondents.
No. 11217
March 13, 1980 607 P.2d 1141
Appeal from judgment terminating parental rights. Eighth Judicial District Court, Clark
County; J. Charles Thompson, Judge.
The district court ordered termination of parental rights, and mother appealed. The
Supreme Court, Mowbray, C. J., held that evidence was insufficient to sustain termination of
mother's parental rights.
Reversed and remanded with directions.
Bilbray, Carelli & Miller, Las Vegas, for Appellant.
David M. Schreiber, Las Vegas, for Respondents.
1. Infants.
Termination of parental rights is drastic measure which should be applied with caution. NRS 128.030
et seq.
2. Infants.
Petitioner requesting termination of parental rights is required to establish the facts and court must give
due regard to rights and claims of parent and to any and all ties of blood or affection, but with a dominant
purpose of serving best interests of child. NRS 128.090.
3. Evidence.
Judge who had heard proceedings for appointment of guardian of child could not take judicial notice of
untranscribed testimony in guardianship proceeding when considering petition for termination of parental
rights. NRS 47.130, 128.030 et seq., 128.105.
4. Infants.
Substantial evidence failed to support finding that mother had abandoned child so as to warrant
termination of parental rights. NRS 128.012, 128.105, subd. 2.
5. Infants.
A finding of child neglect must be based upon treatment of child while parent has custody and neglect is
not established when child is left by parent in an environment where child is known to be receiving proper
care. NRS 128.014.
6. Infants.
Evidence that mother and her husband had taken child to rock concert on child's birthday, and that, on
single occasion five years before hearing, child had been seen riding her tricycle on sidewalk near busy
street without adult supervision that one could see was insufficient to establish child neglect. NRS
128.014.
7. Infants.
Evidence that mother had been convicted of transporting marijuana approximately four years before
hearing, that mother changed her place of residence frequently, that she socialized with man who was on
probation, that her employment history was sporadic, and that she admitted having had a drink while taking
prescribed sedative medicine was insufficient to establish that mother was unfit so as to sustain termination
of parental rights. NRS 128.018.
8. Infants.
Evidence in proceeding to terminate parental rights was insufficient to support termination of such rights.
OPINION
Sheree Smith Chapman appeals from the judgment of the district court terminating her
parental rights in her daughter. Because we consider the record before us insufficient to
support the findings made below, we reverse.
Michelle Chapman was born to appellant and her now deceased husband, Phillip
Chapman, in 1971. The parents separated in June, 1976, and Sheree kept the child for about a
month. The father then took Michelle (according to appellant's testimony, on the pretext of a
visit), and refused to permit Sheree to resume custody of the child. Around October, 1976,
Phillip left Michelle with his brother and his wife, respondents here, who cared for the child
for about seven months. Sheree visited her daughter on weekends and took her for a week in
December, 1976. Around May, 1977, Phillip took Michelle back to live with him, but in
December, 1977, he returned her to his brother's family. Phillip died in January, 1978, and
respondents were appointed guardians of Michelle. No transcript of the guardianship
proceeding was made, and no record of the district court's findings was introduced in
evidence at the instant hearing, although it appears that the district court specifically
found, in the former proceeding, that appellant was an unfit parent. Respondents
immediately petitioned the district court to terminate appellant's parental rights in
Michelle, NRS 12S.030 et seq., in order to adopt the child themselves. After a hearing, the
court found that Sheree is an unfit parent and that Michelle has been neglected and
abandoned by appellant within the meaning of our statute, NRS 12S.005 et seq., and
terminated appellant's parental rights.
of the district court's findings was introduced in evidence at the instant hearing, although it
appears that the district court specifically found, in the former proceeding, that appellant was
an unfit parent. Respondents immediately petitioned the district court to terminate appellant's
parental rights in Michelle, NRS 128.030 et seq., in order to adopt the child themselves. After
a hearing, the court found that Sheree is an unfit parent and that Michelle has been neglected
and abandoned by appellant within the meaning of our statute, NRS 128.005 et seq., and
terminated appellant's parental rights. This appeal ensued.
[Headnotes 1, 2]
Termination of parental rights is a drastic measure, which should be applied with
caution. Carson v. Lowe, 76 Nev. 446, 451, 357 P.2d 591, 594 (1960). The petitioner
requesting the termination is required by our statute to establish the facts, and the court
must give due regard to the rights and claims of the parent . . . and to any and all ties of
blood and affection, but with a dominant purpose of serving the best interest of the child.
NRS 128.090. We have held that, on review, we will sustain a finding of abandonment if
there is substantial evidence in the record to support it, Sernaker v. Ehrlich, 86 Nev. 277,
279-80, 468 P.2d 5, 7 (1970); but we have also indicated that we will question closely
termination of parental rights. Casper v. Huber, 85 Nev. 474, 477, 456 P.2d 436, 438 (1969).
In the instant case, the district court found that all three statutory grounds for termination,
unfitness, neglect, and abandonment, NRS 128.105,
1
were present. We turn now to the
evidence adduced in support of these findings.
[Headnote 3]
We are confronted at the outset by a defect in the record which makes meaningful review
of this case difficult. The district judge who held the hearing on the petition for termination in
the instant case was the same judge who had presided at the previous guardianship
proceeding.
____________________

1
1. A finding by the court of any one of the following:
(a) Abandonment of a child;
(b) Neglect of a child; or
(c) Unfitness of a parent,
is sufficient ground for termination of parental rights.
2. Upon a finding by the court that a parent or parents have made only token efforts:
(a) To support or communicate with the child;
(b) To prevent neglect of the child; or
(c) To avoid being an unfit parent,
the court may declare the child abandoned or neglected or the parent unfit.
previous guardianship proceeding. Although no transcript of that proceeding was available,
and no record of the court's findings was offered in evidence, the district court purported to
take judicial notice of the evidence which had been before him in the guardianship
proceeding. In the findings of fact in the instant case, the district court specifically relied upon
evidence which was not in the present record. Our statute does not permit taking judicial
notice in these circumstances. NRS 47.130. We must therefore determine whether there is
sufficient evidence in the record before us in this proceeding to support the findings in the
instant case, without reference to evidence offered in prior proceedings.
[Headnote 4]
The district court found that appellant had abandoned her daughter,
2
both by conduct
which evinced a settled purpose to forego custody and to relinquish all claims to the child,
and by leaving the child in the custody of respondents without more than token efforts to
communicate with her for a period in excess of six months. The court below considered the
period between the date of the hearing, June 8, 1978, and the date respondents were appointed
guardians of the child, February 27, 1978, as part of the six month period. It appears,
however, that during this period appellant was under a temporary restraining order, issued as
part of the guardianship proceeding, prohibiting any contact with the child. The statute cannot
mean that token efforts to communicate with a child, NRS 128.105(2), while the parent is
legally prohibited from such contact, will support a finding of abandonment. Cf. Pyborn v.
Quathamer, 96 Nev. 145, 605 P.2d 1147 (1980) (finding of no real attempts to communicate
with the child supports finding of abandonment). The evidence presented at this hearing
further established that, during at least part of this period, appellant was seriously ill. Finally,
the evidence adduced at the present hearing indicated that the appellant had visited the child
often during the period that her husband had taken custody of Michelle. If other evidence was
presented at the guardianship hearing as to appellant's efforts to contact Michelle before the
temporary restraining order was issued, we have no way of reviewing its adequacy as it is not
in the record before us.
____________________

2
Abandonment of child imports any conduct of one or both parents of a child which evinces a settled
purpose on the part of one or both parents to forego all parental custody and relinquish all claims to the
child, and a parent or parents of a child who leave the child in the care and custody of another without
provision for his support and without communication for a period of 6 months are presumed to have
intended to abandon the child.
us. On the basis of this record, we cannot say that substantial evidence supports the finding of
abandonment.
[Headnotes 5, 6]
NRS 128.014 defines a neglected child.
3
As we read the statute, a finding of neglect must
be based upon the treatment of the child while the parent has custody: neglect is not
established when the child is left by the parent in an environment where the child is known to
be receiving proper care. In re Adoption of R.R.R., 96 Cal.Rptr. 308 (Ct.App. 1971). The
evidence presented at the hearing established that appellant and her husband had taken
Michelle to a rock concert on the child's birthday, and that, on a single occasion five years
before the hearing, the petitioners had seen Michelle riding her tricycle on the sidewalk near a
busy street without adult supervision that you could see. We hold that the evidence
presented at the hearing was insufficient, as a matter of law, to support a finding of neglect
within the meaning of our statute.
[Headnote 7]
An unfit parent is also statutorily defined.
4
The evidence adduced in support of the
district court's finding of appellant's unfitness established that she had been convicted of
transporting marijuana in 1974 (although she was no longer on probation at the time of the
hearing); that she changed her place of residence frequently; that she socialized with a man
who was on probation; that her employment history was sporadic; and that she admitted
having had a drink while taking prescribed sedative medication. While these facts indicate
that appellant's mode of life is clearly more bohemian than respondents', see Painter v.
Bannister, 140 N.W.2d 152, 154 {Iowa 1966), we cannot say that this evidence justifies
the permanent and irrevocable termination of the relationship between parent and child.
____________________

3
Neglected child is a child:
1. Who lacks the proper parental care by reason of the fault or habits of his parent, guardian nor
custodian;
2. Whose parent, guardian or custodian neglects or refuses to provide proper or necessary
subsistence, education, medical or surgical care, or other care necessary for his health, morals or
well-being;
3. Whose parent, guardian or custodian neglects or refuses to provide the special care made
necessary by his physical or mental condition;
4. Who is found in a disreputable place, or who is permitted to associate with vagrants or vicious or
immoral persons; or
5. Who engages or is in a situation dangerous to life or limb, or injurious to health or morals of
himself or others, and the parent's neglect need not be willful.

4
Unfit parent is any parent of a child who, by reason of his fault or habit or conduct toward the child
or other persons, fails to provide such child with proper care, guidance and support, or who knowingly
permits such child to associate with vagrants, vicious or immoral persons, or to live in a disreputable
place.
mode of life is clearly more bohemian than respondents', see Painter v. Bannister, 140
N.W.2d 152, 154 (Iowa 1966), we cannot say that this evidence justifies the permanent and
irrevocable termination of the relationship between parent and child. See In re T.M.R., 116
Cal.Rptr. 292, 297 (Ct.App. 1974).
In addition, we note that the record does not contain any evidence, beyond the respondents'
testimony, as to the child's relationship with her mother. No psychological testimony was
offered, nor was a report from any child custody agency of the state entered into evidence.
While there may be cases which are so clear that such evidence is not necessary, because the
best interests of the child require the severance of all ties with the natural parent despite a
due regard . . . to any and all ties of blood and affection, NRS 128.090, this case is not one
of them.
[Headnote 8]
Since we find that the evidence in the present record before us is insufficient to support the
findings made below, we are constrained to reverse the judgment of the district court. We
note, however, that our decision here is not intended to alter the present position of
respondents as the guardians of the minor child, nor to foreclose the opportunity of
respondents at a later date to seek the termination of appellant's parental rights. We therefore
reverse the judgment of the district court and remand the cause with directions to dismiss the
petition without prejudice to respondents' right to refile it.
____________
96 Nev. 295, 295 (1980) Sierra Pac. Power v. Department Taxation
SIERRA PACIFIC POWER COMPANY, a Nevada Corporation, Appellant, v. THE
DEPARTMENT OF TAXATION, an Administrative Agency of the State of Nevada;
JEROME MACK, Chairman, ROBBINS CAHILL, RUBY DALTON, EVELYN
GEROW, IRA KENT, SEBASTIAN MIKULICH and HOWARD WINN, as Members of
the Nevada Tax Commission, Respondents.
No. 10481
March 14, 1980 607 P.2d 1147
Appeal from declaratory judgment, Second Judicial District Court, Washoe County; James
J. Guinan, Judge.
Power company sought a declaratory judgment that its purchases of fuel oil used to
produce electricity sold to residential users was exempt from the sales and use tax. The
district court entered judgment against the power company, and the power company appealed.
The Supreme Court held that the statute exempting from use and sales taxes purchases of any
matter used to produce domestic heat by burning did not exempt purchases of fuel by the
power company to produce electricity sold to residential users, since the burning of fuel while
in the power company's electric generation facilities is for a commercial or industrial, and not
a domestic, purpose.
Affirmed.
Lionel Sawyer & Collins, and Richard G. Campbell, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Tudor Chirila and Brooke Nielsen, Deputy Attorneys
General, Carson City, for Respondents.
1. Taxation.
Statute exempting from sales and use taxes purchases of any matter used to produce domestic heat by
burning did not exempt purchases of fuel oil by power company to produce electricity sold to residential
users, since burning of fuel while in power company's electric generation facilities is for commercial or
industrial, and not domestic, purpose. NRS 372.300.
2. Taxation.
Tax exemptions are strictly construed, and there is presumption that state does not intend to exempt
goods or transactions from taxation; thus one claiming exemption must demonstrate clearly an intent to
exempt and any reasonable doubt about applicability of exemption must be construed against taxpayer.
3. Statutes.
Great deference should be afforded to administrative body's interpretation of statute when it is within
language of statute.
4. Statutes.
Legislative acquiescence to agency's reasonable interpretation of statute indicates that the interpretation is
consistent with legislative intent.
OPINION
Per Curiam:
[Headnote 1]
Sierra Pacific Power Company purchases fuel oil which it uses to produce electricity sold
to residential users. It seeks a declaratory judgment that those purchases are exempt from the
Sales and Use Tax of Nevada Revised Statutes 372.300, under the designation "Domestic
Fuels".1 The domestic fuels exemption provides:
the designation Domestic Fuels.
1
The domestic fuels exemption provides:
There are exempted from the taxes imposed by this chapter the gross receipts from
the sale, furnishing of, service of, and the storage, use or other consumption in this state
of any matter used to produce domestic heat by burning, including, without limitation,
wood, coal, petroleum and gas.
The sole issue in this case concerns the interpretation of the statutory language any matter
used to produce domestic heat by burning. The trial court upheld the contention of the
Department of Taxation that the word domestic limits the exemption to fuel burned to
produce heat for homes, households or hotels, or other similar purposes directly related to
residential quarters, and does not include fuel burned to produce heat for commercial,
industrial or governmental purposes. The trial court concluded that the burning of fuel while
in the power company's electric generation facilities is for a commercial or industrial purpose.
We agree.
The power company argues that its purchase of fuel oil starts a continuous process that
ends in domestic use: from purchase, to conversion into electricity, to transmission through
power lines, to domestic use. The power company asserts that its purchases, therefore, fall
within the domestic fuel exemption.
[Headnote 2]
As a general rule, tax exemptions are strictly construed. Bingler v. Johnson, 394 U.S. 741,
752 (1969); Kunes v. Samaritan Health Service, 590 P.2d 1359 (Ariz. 1979). There is a
presumption that the state does not intend to exempt goods or transactions from taxation.
Thus, the one claiming exemption must demonstrate clearly an intent to exempt. Clark
County Sports Enterprises, Inc. v. City of Las Vegas, 96 Nev. 167, 606 P.2d 171 (1980). Any
reasonable doubt about the applicability of an exemption must be construed against the
taxpayer. Matter of 711 Motors, Inc., 547 P.2d 1343 (Hawaii 1976).
[Headnote 3]
In this case, the power company has failed to prove that the legislature intended to exempt
its purchases of fuel oil. Great deference should be afforded to an administrative body's
interpretation when it is within the language of the statute. Clark County School District v.
Local Government, 90 Nev. 442, 530 P.2d 114 {1974); Keller v. Thompson, 532 P.2d 664
{Hawaii 1975).
____________________

1
An identical exemption is found in the Local School Support Tax Law, NRS 374.305, and is incorporated
by reference into the City-County Relief Tax, NRS 377.040(2).
P.2d 114 (1974); Keller v. Thompson, 532 P.2d 664 (Hawaii 1975). A distinction between
the manufacture and the use has been recognized by the Department for 18 years as two
stepsthe creation of the energy, then the transmission and use. The Department has never
extended the exemption to a public utility. Instead, the exemption has been restricted to fuels
burned at residential locations to produce domestic heat. We agree with the interpretation
adopted by the Department.
[Headnote 4]
Moreover, legislative acquiescence to the agency's reasonable interpretation indicates that
the interpretation is consistent with legislative intent. Oliver v. Spitz, 76 Nev. 5, 348 P.2d 158
(1960); Salt Lake City v. Salt Lake County, 568 P.2d 738 (Utah 1977). The legislature has
had ample opportunity to amend the Sales and Use Tax if it disagreed with the interpretation
given by the Department. It has not done so, and it would be improper for this court to
legislate the change.
Accordingly, the judgment of the district court is affirmed.
Mowbray, C. J., Thompson, Gunderson, and Manoukian, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

2
Honorable Cameron M. Batjer, who voluntarily disqualified himself in this case. Nev. Const. Art. 6, 19; SCR
10.
____________
96 Nev. 298, 298 (1980) Sheriff v. Lyons
HAROLD TRAVIS LYONS, Jr., Respondent.
No. 12357
March 14, 1980 607 P.2d 590
District Court, Clark County; Paul S. Goldman, Judge.
Petitioner, who was charged with possession of a cheating device, sought pretrial writ of
habeas corpus. The district court granted petition, and state appealed. The Supreme Court
held that evidence sufficiently established probable cause so as to warrant binding petitioner
over for trial.
Reversed.
Manos & Cherry, Las Vegas, for Respondent.
96 Nev. 298, 299 (1980) Sheriff v. Lyons
1. Criminal Law.
Accused may be bound over for trial if evidence adduced is sufficient to establish probable cause that
crime has been committed and that defendant has committed it.
2. Criminal Law.
Evidence, including evidence that defendant was seen inserting device used for cheating into slot
machine, sufficiently established probable cause so as to warrant binding defendant over for trial on charge
of possession of a cheating device. NRS 465.080, 465.080, subd. 3.
OPINION
Per Curiam:
By way of information, respondent was charged with possession of a cheating device, a
violation of NRS 465.080.
1
Thereafter, respondent petitioned the district court for a pre-trial
writ of habeas corpus on the ground that there was insufficient evidence to establish probable
cause to bind respondent over for trial. The district court granted the petition and the State
appeals therefrom.
At the preliminary examination a casino security agent testified that he observed
respondent inserting what was later identified as a spoon, a device used for cheating, into a
slot machine.
[Headnotes 1, 2]
A criminal defendant may be bound over for trial if the evidence adduced is sufficient to
establish probable cause that a crime has been committed and the defendant has committed it.
State v. von Brincken, 86 Nev. 769, 476 P.2d 733 (1970). The finding of probable cause
may be based on slight, even marginal' evidence. . . . Sheriff v. Hodes, 96 Nev. 184, 186,
606 P.2d 178, 180 (1980). The spoon possessed by respondent was clearly identified as a
device used for cheating slot machines. Thus, we believe the State produced evidence
sufficient to establish probable cause. See Graham v. State, 86 Nev. 290, 467 P.2d 1016
(1970).
Reversed.
____________________

1
It is unlawful for any person, not a duly authorized employee of a licensed gaming establishment
acting in furtherance of his employment within such establishment, to have on his person or in his
possession while on the premises of such establishment any cheating or thieving device, including, but
not limited to, tools, wires, drills, coins attached to strings or wires, electronic or magnetic devices to
facilitate removing from any slot machine any money or other contents thereof.
____________
96 Nev. 300, 300 (1980) Roland v. State
KENNETH M. ROLAND, Appellant, v. THE STATE
No. 11608
March 25, 1980 608 P.2d 500
Appeal from judgment of conviction for possession of short-barreled shotgun, Eighth
Judicial District Court, Clark County; James A. Brennan, Judge.
The Supreme Court held that trial court did not err in refusing to give instruction defining
possession and in instructing jury concerning principals in crime.
Affirmed.
Morgan D. Harris, Public Defender, and Gary H. Lieberman, Deputy Public Defender,
Las Vegas, for Appellant.
Howard Douglas Clark and Booker T. Evans, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Even though offered instruction correctly states the law, it is not error to refuse to give instruction when
law encompassed therein is substantially covered by another given to jury.
2. Criminal Law.
In prosecution for unlawfully possessing a short-barreled shotgun, trial court did not err in refusing to
give instructions defining possession. NRS 202.275.
3. Criminal Law.
Instructions on every aspect of the case must be given clearly, simply and concisely, in order to avoid
misleading jury or in any way over-emphasizing either party's case.
4. Criminal Law.
An individual can aid and abet a possessory crime.
5. Criminal Law.
In prosecution for possession of a short-barreled shotgun in which jury could reasonably conclude that
defendant, by his presence in negotiations, aided and assisted another in retaining possession of prohibited
weapon, trial court properly instructed jury concerning principals in crime.
OPINION
Per Curiam:
A jury convicted Kenneth M. Roland for unlawfully possessing a short-barreled shotgun.
1
The facts are not in dispute.
____________________

1
Unlawful possession of such a weapon is prohibited by NRS 202.275, which reads in part:
Police videotaped appellant and Ricky Dwayne Williams on April 25, 1978, as they
negotiated the sale of a short-barreled shotgun to an undercover officer. The appellant, using
a false name, bargained with the officer as to price. During the discussions, Ricky Williams
left the building, returning with the shotgun. While negotiations continued, the shotgun
remained in the physical possession of Ricky Williams. Appellant directed the officer to pay
Williams the price agreed upon.
On appeal, appellant cites as error the trial court's refusal to give an instruction defining
possession, and the court's instructing the jury concerning principals in crime.
1. Instruction as to possession.
The trial court gave the following instruction without objection:
Instruction No. 6: It is a crime for any person to have in his personal or constructive
possession a shotgun having a barrel of less than 18 inches in length. Such possession
constitutes the crime of possession of a short-barreled shotgun.
The appellant requested that the court give the following instruction:
Defendant's Proposed Instruction A: Possession means that one must have dominion
and control over the property. Being merely present at the location, or being merely a
spokesman for the true possessor, is not necessarily enough. One must oneself have
dominion and control over the property in order to possess it, under the law.
The trial court refused the proposed instruction.
2

[Headnotes 1-3]
It is not error to refuse to give an instruction when the law encompassed therein is
substantially covered by another given to the jury. Beets v. State, 94 Nev. 89, 575 P.2d 591
(1978); Geary v. State, 91 Nev. 784, 793, 544 P.2d 417, 423 (1975). This is so even though
the offered instruction correctly states the law. Azbill v. State, 88 Nev. 240, 251-252, 495
P.2d 1064, 1071 (1972). It does not appear that the proposed instruction added anything with
any degree of precision on a question of importance in the case. Instead, the proposed
instruction tended to eliminate elements which were circumstantial and helpful to the State.
____________________
202.275 Unlawful possession, manufacture, disposition of short-barreled rifle, short-barreled
shotgun: Penalty; exceptions.
1. Any person who unlawfully possesses, manufactures or disposes of any short-barreled rifle or
short-barreled shotgun shall be punished by imprisonment in the state prison for not less than 1 year nor
more than 6 years. . . .

2
The trial court refused the proposed instruction on the basis that the instruction was improper, amounted to
an exoneration of the defendant and contained matters better argued to a jury.
helpful to the State. Instructions on every aspect of the case must be given clearly, simply and
concisely, in order to avoid misleading the jury or in any way overemphasizing either party's
case. See Guerra v. Handlery Hotels, Inc., 347 P.2d 674 (Cal. 1959); People v. Rice, 131
Cal.Rptr. 330, 333 (Cal.App. 1976).
2. Instructions as to principals.
The following instructions were given to the jury:
Instruction No. 8: To be considered a principal, a person must have (1) committed the act
constituting the offense and/or (2) aided or abetted in the commission of the act constituting
the offense, and/or (3) directly or indirectly counseled, encouraged, hired, commanded,
induced, or procured another to commit the offense.
Instruction No. 9: To aid under the law is knowingly to aid, support, help or assist in the
commission of a crime; it is the intentional doing of some act to render aid to the actual
perpetrator of the crime.
Instruction No. 10: The presence of one at the commission of a felony by another is
evidence to be considered in determining whether or not he was guilty of aiding and abetting;
and it has also been held that presence, companionship, and conduct before and after the
offense are circumstances from which one's participation in the criminal intent may be
inferred.
[Headnote 4]
The appellant contends that the court erred in giving instructions 8, 9, and 10 because the
appellant could not aid and abet another in the crime of possession of a short-barreled
shotgun. In our view, however, it is clear that an individual can aid and abet a possessory
crime. See, e.g., People v. Storr, 527 P.2d 878, 881-82 (Colo. 1974); People v. Francis, 450
P.2d 591, 595 (Cal. 1969); see, generally, Annotation, 47 A.L.R.2d 1239 (and cases cited
therein). Appellant has not suggested that any of the three challenged instructions was per se
improper.
[Headnote 5]
Under NRS 195.020, it was necessary to show that a crime had been committed, and that
appellant, if present, aided and assisted it. State v. Cushing, 61 Nev. 132, 145, 120 P.2d 208,
215 (1941). Here, Williams had actual possession of a short-barreled shotgun in violation of
the law. A jury could reasonably conclude that appellant, by his presence and negotiations,
aided and assisted Williams in retaining possession of the prohibited weapon until such time
as a price satisfactory to both was obtained from the officer. Cf. Dutton v. State, 94 Nev.
461, 581 P.2d 856 (1978). See also Edwards v. State, 90 Nev. 255, 258, 524 P.2d 328, 331
(1974); State v. O'Keefe, 23 Nev. 127, 131, 43 P. 918, 919 (1896).
The court did not err in giving instructions 8, 9 and 10 to the jury.
The judgment of conviction is affirmed.
____________
96 Nev. 303, 303 (1980) Gatlin v. State
WILLIE LESTER GATLIN, Appellant, v. THE STATE
No. 10999
March 28, 1980 608 P.2d 1100
Thomas J. O'Donnell, Judge.
Defendant was convicted in the district court of robbery with use of a deadly weapon, and
he appealed. The Supreme Court held that the evidence was legally sufficient to support the
conviction.
Affirmed.
Redmon & McGimsey, Ltd., Las Vegas, for Appellant.
Robbery.
Evidence, including victim's testimony, was sufficient to support conviction for robbery with use of a
deadly weapon.
OPINION
Per Curiam:
Appellant contends that the evidence adduced at trial was legally insufficient to support his
conviction of robbery with use of a deadly weapon.
At trial, the victim testified that while walking down a street in Las Vegas he was
approached by a man who identified himself as Mr. Chapple and who offered to sell him a
ring or a watch. The man explained he needed money to buy gasoline.
96 Nev. 303, 304 (1980) Gatlin v. State
The victim responded that he did not wish to buy either item but would be willing to help
him with one dollar or two to buy some gas. The two could not find an open gasoline station
so the victim gave Mr. Chapple two dollars, advised him where he might find an open station,
and went his separate way. About fifteen or twenty minutes later the same Mr. Chapple
approached the victim in a car driven by the appellant and offered the victim a ride home. The
offer was accepted. Subsequently, the car was driven on to a narrow street where the
appellant robbed the victim at knife-point. After being ordered from the car, the victim
telephoned the police and gave a description of the automobile including a license number.
Shortly thereafter, the suspect vehicle was stopped and Mr. Chapple and the appellant were
apprehended. The victim was brought to the scene and identified appellant at that time. The
victim also identified appellant in court.
We do not believe it is necessary to recount the testimony of the other prosecution
witnesses. Neither is a summary of appellant's testimony, which differed from that of the
victim's in several material respects, required. The victim's testimony constituted substantial
evidence sufficient to support the conviction. Where there is conflicting evidence it is the role
of the trier of fact, not a court of errors, to resolve that conflict. Stewart v. State, 94 Nev. 378,
580 P.2d 473 (1978). In this case, the trier of fact construed the evidence adversely to
plaintiff, and we have no hesitancy in deciding that the jury acted reasonably in concluding
that the State sustained its burden of proof. See McKinney v. State, 95 Nev. 494, 596 P.2d
503 (1979); Stewart v. State, supra.
Accordingly, the judgment is affirmed.
____________
96 Nev. 304, 304 (1980) Sheriff v. Marshall
LUSBY MARSHALL, Jr., Respondent.
No. 12471
March 28, 1980 608 P.2d 1101
District Court, Clark County; Joseph S. Pavlikowski, Judge.
The Supreme Court held that habeas corpus petition, which challenged probable cause
but which did not contain waiver and consents as statutorily required, could not be
considered.
96 Nev. 304, 305 (1980) Sheriff v. Marshall
challenged probable cause but which did not contain waiver and consents as statutorily
required, could not be considered.
Reversed and remanded with instructions.
George Foley, Las Vegas, for Respondent.
Habeas Corpus.
Habeas corpus petition, which challenged probable cause but which did not contain waiver and consents
as statutorily required, could not be considered. NRS 34.375, subds. 1, 1(b), 34.380, subd. 4(a).
OPINION
Per Curiam:
On December 26, 1979, respondent filed a pretrial petition for a writ of habeas corpus. The
petition challenged probable cause. The petition did not contain the waiver and consents
required by NRS 34.375 (1)(b). Such a petition may not be considered. Sheriff v. Chumphol,
95 Nev. 818, 603 P.2d 690 (1979); NRS 34.375(1); 34.380 (4)(a). Nevertheless, the district
court granted the petition and the state has appealed.
We do not reach the merits of the appeal because the habeas petition was not cognizable in
the district court. Accordingly, we reverse. This proceeding is remanded to the district court
with instructions to dismiss the petition. See Sheriff v. Chumphol, supra.
____________
96 Nev. 305, 305 (1980) Washington v. State
LARRY WASHINGTON, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 11653
March 28, 1980 608 P.2d 1101
Appeal from judgment of conviction. Eighth Judicial District Court, Clark County;
Defendant was convicted in the district court of sexual assault, and he appealed. The
Supreme Court held that: (1) under the circumstances, the trial judge did not abuse
discretion by refusing to order a psychiatric examination of the victim, and {2) the
evidence was sufficient to support the conviction.
under the circumstances, the trial judge did not abuse discretion by refusing to order a
psychiatric examination of the victim, and (2) the evidence was sufficient to support the
conviction.
Affirmed.
Jeffrey D. Sobel, Las Vegas, for Appellant.
Howard Douglas Clark, Deputy District Attorney, Clark County, for Respondent.
1. Witnesses.
Whether to order a psychiatric examination of a victim of sexual assault is left to the sound discretion of
the trial court.
2. Witnesses.
If the defendant presents a compelling reason for such an examination, the trial judge should order a
psychiatric examination of a sexual assault victim.
3. Witnesses.
Generally, there is no compelling reason to order psychiatric examination of a sexual assault victim
unless there is little or no corroboration of the victim's allegations and the defense has questioned the effect
of the victim's emotional or mental condition on her veracity.
4. Witnesses.
In sexual assault prosecution, trial court did not abuse discretion by refusing to order a psychiatric
examination of the complainant where the complainant's testimony was corroborated by her cousin's
eyewitness testimony and where, though complainant lied to police about nonmaterial matters, she never
wavered from her allegation that she was forced to have sexual intercourse and where there was ample
evidence to support trial judge's conclusion that the complainant was under duress when she signed a
confession of perjury that was prepared and delivered to her by defendant's cousin.
5. Criminal Law.
The Supreme Court must affirm a conviction if there is sufficient evidence in the record to establish guilt
beyond a reasonable doubt, as determined by a rational trier of fact.
6. Criminal Law.
The weight and credibility of a witness' testimony is within the sole province of the trier of fact.
7. Rape.
Evidence including testimony of victim and of eyewitness adequately supported conviction of sexual
assault.
OPINION
Per Curiam:
Larry Washington appeals from his conviction for sexual assault.
assault. He contends that the district judge erred by denying his motion for a psychiatric
examination of the victim and that there is insufficient evidence to support the judgment. We
disagree with his contentions and affirm.
Washington picked up two teenage female hitchhikers and stayed with them for
approximately four hours, visiting friends, drinking, and smoking marijuana. Ultimately,
Washington drove the two girls to the desert where Washington stopped the car and allegedly
raped one of the girls. After a trial to the judge sitting without a jury, Washington was
convicted and sentenced to 12 years in prison.
Both young women admitted at trial that they lied at the time they reported the rape, when
they told police they had been kidnapped. They did not mention using any drugs or alcohol,
nor did they mention going to Washington's apartment. However, they gave police an
accurate report within a week after their initial statements, and they have maintained that they
told the truth at trial.
After the trial, the victim signed a confession of perjury which had been prepared and
delivered to her by Washington's cousin. Based upon the confession, Washington moved
for a new trial and for a psychiatric examination of the victim to determine if she is a
pathological liar. The district judge denied both motions because the victim was subjected to
extensive cross-examination, the confession of perjury was coerced, and there was nothing
to suggest that the victim was faulty in mind or memory.
[Headnotes 1-3]
Washington argues that, in light of the victim's admitted lies to police and the confession
of perjury, the district judge abused his discretion by refusing to order a psychiatric
examination. Whether a psychiatric examination of a victim of a sexual assault is appropriate
is a matter left to the sound discretion of the trial court. State v. Jerousek, 590 P.2d 1366
(Ariz. 1979); Ballard v. Superior Court, 410 P.2d 838 (Cal. 1966). The trial judge should
order an examination if the defendant presents a compelling reason for such an examination.
Generally, there is no compelling reason for a psychiatric examination unless there is little or
no corroboration of the victim's allegations and the defense has questioned the effect of the
victim's emotional or mental condition upon her veracity. Id. at 849; State v. Braxton, 580
P.2d 1116 (Wash.App. 1978).
[Headnote 4]
In this case, the victim's testimony was corroborated by her cousin's eyewitness
testimony.
cousin's eyewitness testimony. Although the victim lied to police about non-material matters,
she never wavered from her allegation that she was forced to have sexual intercourse. There
is ample evidence to support the district judge's conclusion that the victim signed the
confession of perjury under duress. Furthermore, the victim was extensively
cross-examination. It was reasonable for the district judge to determine that a psychiatric
examination was not necessary to aid his assessment of the victim's credibility. He did not
abuse his discretion by refusing to order such an examination.
[Headnotes 5-7]
Washington also contends that there is insufficient evidence in the record to support his
conviction. We must affirm a conviction if there is sufficient evidence in the record to
establish proof of guilt beyond a reasonable doubt, as determined by a rational trier of fact.
Block v. State, 95 Nev. 933, 604 P.2d 338 (1979). Moreover, the weight and credibility of a
witness' testimony is within the sole province of the trier of fact. See e.g. White v. State, 95
Nev. 881, 603 P.2d 1063 (1979). In this case, the testimony of the victim and the eyewitness
constitutes substantial evidence supporting the conviction. See Ballard, 410 P.2d at 846
(uncorroborated testimony of prosecutrix sufficient to sustain conviction).
Finding no error, we affirm the judgment of conviction.
____________
96 Nev. 308, 308 (1980) Ortolano v. Las Vegas Convention Serv.
NICHOLAS ORTOLANO, Appellant, v. LAS VEGAS CONVENTION SERVICE, a Nevada
Corporation; M. & R. INVESTMENT CO., INC., a Nevada Corporation dba DUNES
HOTEL, Respondents.
No. 10231
March 28, 1980 608 P.2d 1103
Brennan, Judge.
Injured employee who had collected workers' compensation benefits brought third-party
action against convention service and hotel. The district court granted summary judgment to
defendants, and plaintiff appealed. The Supreme Court held that: (1) where hotel, at request
of convention service, employed employee's immediate employer to remove exhibits and
equipment from hotel, convention service arranged with employee's immediate employer to
provide a truck, truck driver, and supervisor to remove the dismantled equipment, convention
service and employees's immediate employer were apparently paid by the exhibitor, and
employee's immediate employer sent employee to the hotel as the supervisor, convention
service was entitled to immunity from employee's claim for injuries sustained while
working at the hotel, whether it was viewed as the direct employer of employee's
immediate employer, or as an independent contractor, or as a subcontractor, or as a
person in the same employ, and {2) substantial fact issue existed as to whether hotel was
entitled to assert a defense of immunity under the Industrial Insurance Act, precluding
summary judgment.
convention service and employees's immediate employer were apparently paid by the
exhibitor, and employee's immediate employer sent employee to the hotel as the supervisor,
convention service was entitled to immunity from employee's claim for injuries sustained
while working at the hotel, whether it was viewed as the direct employer of employee's
immediate employer, or as an independent contractor, or as a subcontractor, or as a person in
the same employ, and (2) substantial fact issue existed as to whether hotel was entitled to
assert a defense of immunity under the Industrial Insurance Act, precluding summary
judgment.
Affirmed in part; reversed in part and remanded.
Galatz, Earl & Biggar, Las Vegas, for Appellant.
Cromer, Barker & Michaelson, and Gerald I. Gillock, Las Vegas, for Respondent Las
Vegas Convention Service.
Rose, Edwards, Hunt & Pearson, Ltd., Las Vegas, for Respondent M. & R. Investment
Co., Inc. dba Dunes Hotel.
1. Workers' Compensation.
Where hotel, at request of convention service, employed employee's immediate employer to remove
exhibits and equipment from hotel, convention service arranged with employee's immediate employer to
provide truck, truck driver, and supervisor to remove the dismantled equipment, convention service and
employee's immediate employer were apparently paid by the exhibitor, and employee's immediate
employer sent employee to the hotel as the supervisor, convention service was entitled to immunity from
employee's claim for injuries sustained while working at the hotel, whether it was viewed as the direct
employer of employee's immediate employer, or as an independent contractor, or as a subcontractor, or as a
person in the same employ. NRS 616.010 et seq., 616.055, 616.085, 616.115, 616.270, 616.375,
616.560, 616.560 subd. 1.
2. Workers' Compensation.
Mere status as an owner lessor is not sufficient to establish a defense of immunity under the Industrial
Insurance Act to common-law liability; the immunity attaches to an employer of labor, not simply to
owners of property as such. NRS 616.560.
3. Judgment.
In action brought by injured employee against convention service and hotel to recover for injuries
sustained while working for his immediate employer removing equipment from hotel, substantial fact issue
existed as to whether hotel was entitled to assert a defense of immunity under the Industrial Insurance Act,
precluding summary judgment. NRS 616.560.
OPINION
Per Curiam:
Appellant collected workman's compensation benefits from his immediate employer,
Consolidated Freightways, under applicable provisions of our statutes.
his immediate employer, Consolidated Freightways, under applicable provisions of our
statutes. Appellant also sued respondents to recover damages for personal injuries. The court
below granted summary judgment to respondents, concluding that each was immunized from
tort liability by provisions of NRS Chapter 616.
1
This appeal follows.
Appellant's complaint alleged that respondent M. & R. Investment Co., Inc., dba Dunes
Hotel (hotel), at the request of respondent Las Vegas Convention Service (LVCS), employed
Consolidated Freightways to remove exhibits and equipment, dismantled by LVCS, from the
hotel. Viewing the record favorably to the appellant, and according appellant the benefit of all
favorable inferences, Lipshie v. Tracy Investment Co., 93 Nev. 370, 566 P.2d 819 (1977), Dr.
Pepper held a trade show at the Dunes Hotel. The exhibitor arranged with LVCS to dismantle
and remove exhibits and equipment from the hotel. An employee of LVCS arranged with
Consolidated Freightways to provide a truck, truck driver, and supervisor to remove the
dismantled equipment. LVCS and Consolidated Freightways were apparently paid by the
exhibitor. Consolidated Freightways sent the appellant to the hotel as the supervisor. While
appellant was working, employees of LVCS lost control of a piece of equipment they were
loading onto a freight elevator, knocking the appellant through the railing to the floor below.
Appellant alleged that the railing was unsafe.
[Headnote 1]
1. Las Vegas Convention Service argues it is entitled to the immunity provided in NRS
Chapter 616 whether it is viewed as the direct employer of Consolidated Freightways, or as
an independent contractor, or as a subcontractor, or as a person in the same employ. We
agree. See NRS 616.055; NRS 616.085; NRS 616.115; NRS 616.375; NRS 616.560(1).
Nothing in the record indicates that the trade exhibitor retained the exclusive right to control
the manner in which the work was done. It simply paid to have the work completed.
____________________

1
NRS 616.270 reads:
616.270 Employers to provide compensation; relief from liability.
1. Every employer within the provisions of this chapter, and those employers who shall accept the
terms of this chapter and be governed by its provisions, as in this chapter provided, shall provide and
secure compensation according to the terms, conditions and provisions of this chapter for any and all
personal injuries by accident sustained by an employee arising out of and in the course of the
employment.
. . .
3. In such cases the employer shall be relieved from other liability for recovery of damages or other
compensation for such personal injury, unless by the terms of this chapter otherwise provided.
simply paid to have the work completed. In Antonini v. Hanna Industries, 94 Nev. 12, 573
P.2d 1184 (1978), we stated:
Antonini argues that the degree of control exercised by LVCS compels the
conclusion that it, and not Hanna Industries, was his employer. However, the concept of
joint employment is accepted in Nevada, as it is in other jurisdictions. See Jackson v.
Southern Pacific Company, supra, at 391, citing Famous Players Lasky Corp. v.
Industrial Accident Commission, 228 P. 5 (Cal. 1924). In Beaver v. Jacuzzi Bros. (8th
Cir. 1972), 454 F.2d 284, 285, the court stated: As a matter of common experience and
of present business practices in our economy, it is clear that an employee may be
employed by more than one employer even while doing the same work. See also 1A
Larson, supra, 48.40, at 8-254. Antonini's continued employment relationship with
LVCS in no way precludes another employment relationship, based upon identical
activities, with Hanna Industries.
Id. at 17, 573 P.2d at 1187.
Nor is our decision in McDowell Constr. Supply v. Williams, 90 Nev. 75, 518 P.2d 604
(1974) helpful to the appellant. Las Vegas Convention Services contracted with Consolidated
Freightways for the services of a driver, a supervisor, and a truck. This is substantially
different from delivery of material to a jobsite which primarily furthers the seller's business,
where the buyer fails to show control over operational details of the work.
It appears that, as a matter of law, the appellant was jointly employed by Las Vegas
Convention Service and Consolidated Freightways to remove convention exhibits from the
Dunes Hotel convention facilities. Antonini v. Hanna Industries, cited above.
[Headnote 2]
2. Mere status as an owner-lessor is not sufficient to establish a defense of immunity
under NRS 616.560. The immunity attaches to an employer of labornot simply to owners
of property, as such. See Alsup v. E. T. Legg & Co., 94 Nev. 297, 579 P.2d 769 (1978). The
burden is upon respondent hotel to establish the defense. Alsup v. E. T. Legg & Co., cited
above; Weaver v. Shell Oil Co., 91 Nev. 324, 535 P.2d 787 (1975).
[Headnote 3]
Respondent M. & R. Investment Co., Inc. argues on appeal that although it did not
exercise control over the operational details of appellant's work, it was entitled to assert a
defense under NRS Chapter 616, because the hotel had the right to control the place, time
and manner of appellant's activities at the hotel.
details of appellant's work, it was entitled to assert a defense under NRS Chapter 616,
because the hotel had the right to control the place, time and manner of appellant's activities
at the hotel. The record before us, however, does not clearly establish the existence of an
employer-employee relationship between the hotel and this appellant. In the absence of a
clearly established NIIA defense, we cannot justify summary judgment on the assumption that
trial will show nothing to create a jury question on a legal theory consistent with the
pleadings. Weaver v. Shell Oil Co., cited above. The trial court erred in concluding that the
hotel had established that it was entitled to the statutory immunity as a matter of law.
The summary judgment in favor of Las Vegas Convention Service is affirmed. The
summary judgment in favor of M. & R. Investment Co., Inc. is reversed.
____________
96 Nev. 312, 312 (1980) Sheriff v. Horner
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v. HEIDI
HORNER, aka HEIDI HORNER SANTANA, Respondent.
No. 12363
March 28, 1980 608 P.2d 1106
District Court, Clark County; Michael J. Wendell, Judge.
Sheriff appealed from order entered by district court granting defendant's petition for writ
of habeas corpus on grounds that indictment charging defendant with pandering and living
from earnings of prostitute was not supported by sufficient evidence. The Supreme Court held
that testimony of prostitute, who could not be tried under statute proscribing living from
earnings of prostitute, was not that of accomplice requiring corroboration under statute
requiring corroboration of accomplice's testimony, and thus the prostitute's incriminating
testimony was sufficient evidence to support indictment brought against defendant for living
from earnings of prostitute.
[Rehearing denied May 22, 1980]
Embry & Shaner, Las Vegas, for Respondent.
1. Criminal Law.
Witnesses whose testimony requires corroboration may not corroborate each other. NRS 175.291,
175.301.
2. Prostitution.
Statute requiring that testimony of person upon or with whom offense of inveigling, enticing, or taking
away person for purpose of prostitution has been committed be corroborated by other evidence in order to
support conviction is inapplicable to statute proscribing living from earnings of prostitute. NRS 175.301,
201.320.
3. Criminal Law.
Testimony of prostitute, who could not be tried under statute proscribing living from earnings of
prostitute, was not that of accomplice requiring corroboration under statute requiring corroboration of
accomplice's testimony, and thus the prostitute's incriminating testimony was sufficient evidence to support
indictment brought against defendant for living from earnings of prostitute. NRS 175.291, 201.320.
OPINION
Per Curiam:
The Clark County Grand Jury returned an indictment charging Heidi Horner with
pandering and living from earnings of a prostitute. NRS 201.300
1
and NRS 201.320.
2
Horner subsequently petitioned the district court for a writ of habeas corpus contending that
the indictment was not supported by sufficient evidence because, among other things, the
incriminating testimony lacked required corroboration. The district court agreed and granted
the petition. This appeal followed.
Testimony upon which the indictment was based was provided by Sara Blair, a prostitute,
and her husband Carl. Sara and Carl testified that they entered into an arrangement with Heidi
Horner whereby respondent would direct Sara to men willing to pay for sexual services. Sara
would perform sexual acts with these men for a fee and then split the fee received with Heidi
Horner.
[Headnote 1]
Heidi Horner may not be tried on the pandering charge if the indictment is supported only
by the testimony of Sara and Carl, because witnesses whose testimony requires
corroboration may not corroborate each other.
____________________

1
1. Any person who:
to continue to engage in prostitution . . . is guilty of pandering.

2
1. Any person who shall knowingly accept, receive, levy or appropriate any money or other valuable
thing, without consideration, from the proceeds of any women engaged in prostitution, shall be punished
by imprisonment. . . .
indictment is supported only by the testimony of Sara and Carl, because witnesses whose
testimony requires corroboration may not corroborate each other. Sheriff v. Gordon, 96 Nev.
205, 606 P.2d 533 (1980). See NRS 175.301
3
and NRS 175.291.
4

[Headnotes 2, 3]
Sara's testimony as to the charge of living from the earnings of a prostitute, however,
requires no corroboration because NRS 175.301 is inapplicable to NRS 201.320. See Johnson
v. State, 501 P.2d 762 (Alaska 1972); State v. McCowan, 280 P.2d 976 (Or. 1955).
Furthermore, Sara cannot be tried under NRS 201.320; her testimony, therefore, is not that of
an accomplice requiring corroboration under NRS 175.291. See State v. McCowan, supra,
State v. Hargon, 470 P.2d 383 (Or.App. 1970).
The order of the district court granting Heidi Horner a pre-trial writ of habeas corpus is
affirmed as to the pandering charge. That portion of the writ granting habeas corpus on the
charge of living from the earnings of a prostitute is reversed.
____________________

3
Upon a trial for . . . inveigling, enticing or taking away any person for the propose of prostitution, or
by other evidence.

4
1. A conviction shall not be had on the testimony of an accomplice unless he is corroborated by
other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect
the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely
____________
96 Nev. 314, 314 (1980) Carson City Sch. Dist. v. Burnsen
CARSON CITY SCHOOL DISTRICT, BOARD OF TRUSTEES OF CARSON CITY
SCHOOL DISTRICT, LEROY RUPERT, BOB THOMAS, RUDOLFO MORENO,
WILLIAM FURLONG, DEL LANDING, FRANK MATTHEWS, and WILLIAM VAN
PATTEN, Appellants, v. VIVIAN BURNSEN, Respondent.
No. 11278
March 28, 1980 608 P.2d 507
Appeal from order granting petition for writ of mandamus; First Judicial District Court,
Carson City; Frank B.
First Judicial District Court, Carson City; Frank B. Gregory, Judge.
Teacher petitioned for writ of mandamus requiring reinstatement. The district court
entered order requiring that the teacher be reinstated, and appeal was taken. The Supreme
Court, Thompson, J., held that where teacher, after being notified that she would not be
recommended for contract, voluntarily submitted her resignation, and her resignation was
acknowledged, failure to fully comply with statute, which requires that when admonition of
teacher is made for reason that may lead to dismissal or cause teacher not to be reemployed
the matter shall be brought to attention of the teacher, in writing, and reasonable time for
improvement given, had to be considered meaningless, and such failure did not require that
the teacher be reinstated.
Reversed.
Eck, Harkins & Beckett, Ltd., of Carson City, for Appellants.
Arthur J. Bayer, Jr., of Carson City, for Respondent.
Schools.
Where teacher, after being notified that she would not be recommended for contract, voluntarily
submitted her resignation, and her resignation was acknowledged, failure to fully comply with statute,
which requires that when admonition of teacher is made for reason that may lead to dismissal or cause
teacher not to be reemployed the matter shall be brought to attention of the teacher, in writing, and
reasonable time for improvements given, had to be considered meaningless, and such failure did not
require that the teacher be reinstated. NRS 391.313.
OPINION
For twelve years Vivian Burnsen was employed by the Carson City School Board as a
teacher. During that time her performance had been continuously evaluated. Her personnel
file containing such evaluations shows her inability to discipline the students, poor lesson
planning, and the ineffective use of materials. She was notified of her deficiencies on many
occasions. She was offered assistance to improve her performance as a teacher, but rejected
such offers. The file also contains many requests from parents that their children be removed
from her classroom and taught by someone else. Finally, on February 3, 197S, the principal
of Fremont School gave Burnsen a letter informing her that she would not be
recommended for a teaching contract for the year 197S-79.
1978, the principal of Fremont School gave Burnsen a letter informing her that she would not
be recommended for a teaching contract for the year 1978-79. On February 7, 1978, the
Superintendent of the Carson City School District mailed a notice of intent to recommend
non-reemployment for inefficiency, inadequate performance and the failure to show normal
improvement and evidence of professional training and growth. Those reasons for
non-reemployment are among those specified by NRS 391.312. The notice included a
statement that Burnsen had ten days to request a hearing before a commission pursuant to
NRS 391.317. She did not timely request a hearing. Instead, she submitted a letter of
resignation which was acknowledged on February 17, 1978. Subsequently, on March 10,
1978, she rescinded her resignation.
Burnsen petitioned the district court for a writ of mandamus and at the conclusion of the
hearing the court ordered that she be reinstated as a teacher. Statute requires that when an
admonition is made for a reason that may lead to dismissal or cause the employee not to be
reemployed, the matter shall be brought to the attention of the employee, in writing, and a
reasonable time for improvement given.
1
Board of Sch. Trustees v. Rathbun, 92 Nev. 651,
556 P.2d 548 (1976). The February 3 letter from the principal of Fremont School did not
advise her of the particular deficiencies in her performance as a teacher, nor did it notify her
that she would have a reasonable time within which to improve. It was mainly for this reason
that the district court directed reinstatement. This appeal by the school board followed. We
reverse.
Although admonishment and a reasonable time for improvement should precede a
recommendation that a teacher not be reemployed, the failure to do so is unimportant when
the teacher, after being notified that she would not be recommended for a contract, does
not timely request a hearing, and voluntarily submits her resignation.
____________________

1
NRS 391.313(1): Whenever an administrator charged with supervision of a certificated employee believes it
is necessary to admonish a certificated employee for a reason that he believes may lead to demotion, dismissal or
cause the employee not to be reemployed under the provisions of NRS 391.312, he shall:
(a) Bring the matter to the attention of the employee involved, in writing, and make a reasonable effort to
assist the employee to correct whatever appears to be the cause for potential dismissal or failure to reemploy;
and
(b) Except as provided in NRS 391.314, allow reasonable time for improvement, which shall not exceed 3
months for the first admonition. An admonition issued to a certificated employee who, within the time granted
for improvement, has met the standards set for him by the administrator who issued the admonition shall be
removed from the records of the employee together with all notations and indications of its having been issued.
The admonition shall be removed from the records of the employee not later than 3 years after it is issued.
teacher, after being notified that she would not be recommended for a contract, does not
timely request a hearing, and voluntarily submits her resignation. Vivian Burnsen resigned
her position as a teacher. Her resignation was acknowledged. In these circumstances the
failure fully to comply with NRS 391.313 must be considered meaningless. To hold
otherwise exalts form over substance. This we decline to do.
Reversed.
The district court determined that the requirements of NRS 391.313 had not been met in
admonitions made to Burnsen before her discharge. NRS 391.313(1) provides that when an
admonition is made for a reason which may lead to dismissal, or cause the employee not to be
reemployed, the matter shall be brought to the employee's attention, in writing, and a
reasonable time for improvement given. Although recommendations for improvement had
been given to Burnsen, it had not been suggested to her that such admonitions could lead to
non-reemployment. The letter of February 3, 1978, was the first such indication Burnsen
received. On February 7, she was informed that she would not be recommended for
reemployment.
We have previously held that the statutory admonitions must be given the teacher to
enable him to remedy the cause for potential dismissal. Board of Sch. Trustees v. Rathbun,
92 Nev. 651, 652, 556 P.2d 548 (1976). It follows that the admonitions should be given in
such a fashion that the teacher knows that dismissal or non-reemployment may result.
As a result of appellant's lack of compliance with the statutory requirements, all
proceedings subsequent to the invalid letter of non-reemployment were prematurely taken,
see Fresno City High School Dist. v. DeCaristo, 92 P.2d 668 (Cal.App. 1939), and the
statutory ten-day limitation period for requesting a hearing was never invoked, see Thayer v.
Anacortes School District, 504 P.2d 1130 (Wash. 1972). Because Burnsen's resignation
clearly resulted from the invalid letter of non-reemployment, it should not stand. Cf. Fresno
City High School Dist. v. DeCaristo, supra.
The district court's granting of the petition for a writ of mandamus should be affirmed.
____________
96 Nev. 318, 318 (1980) Anderson v. Richards
WILLIAM A. ANDERSON, PONDEROSA RANCH, and PONDEROSA
RANCH, INC., Appellants, v. PAUL A. RICHARDS, Respondent.
No. 10025
March 28, 1980 608 P.2d 1096
Appeal from a judgment, Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Appeal was taken from a judgment by the district court entered in favor of landowner who
sought removal of obstructions placed by second landowner across roadway which had been
customary access to first landowner's property. The Supreme Court, Batjer, J., held that: (1)
evidence supported trial court's finding that roadway was public road, and (2) no evidence
existed to support second landowner's allegation that roadway, which had been continuously
used by members of the public for more than a century, had been abandoned.
Affirmed.
Laxalt & Berry, Carson City, for Appellants.
Paul A. Richards, Reno, for Respondent.
1. Highways.
In action wherein landowner sought removal of obstructions across roadway which had been customary
access to his land, evidence supported trial court's finding that roadway was a public road. NRS
403.410; 43 U.S.C. (1970 Ed.) 932.
2. Highways.
In action wherein landowner sought removal of obstructions placed by second landowner across roadway
which had been customary access to first landowner's property, no evidence existed to support second
landowner's allegation that roadway, which had been continuously used by members of the public for more
than a century, had been abandoned.
3. Highways.
Party asserting abandonment of public road must carry the burden by clear and cogent proof.
4. Highways.
Fact that travel on roadway, which had been customary access to landowner's land, may have decreased
over the years did not work abandonment or affect roadway's status as a public road.
5. Highways.
Whether a road is public or private is determined by extent of the right to use it, and not by extent to
which that right is exercised or by quantity of travel over it.
6. Highways.
Unlawful encroachment placed upon public roadway will not constitute abandonment of the public
easement and cannot divest public of its right to traverse. NRS 405.230, subd. 1.
7. Highways.
In action wherein landowner sought removal of obstructions across roadway which had been customary
access to his land, trial court's delay during time it took the matter under advisement without entering
judgment, although inordinate and to be discouraged, did not detrimentally prejudice landowners who
placed the obstructions across the road.
OPINION
Immediately prior to April 9, 1970, appellants placed gates and obstructions across Tunnel
Creek Road, the roadway which had been the customary access to the respondent's property.
On April 9, 1970, respondent Paul A. Richards filed suit seeking the removal of the
obstructions and alleging that he should have a right-of-way across appellants' property using
that roadway.
On May 20, 1970, the district court denied Richards' request for a preliminary injunction
and the case was tried, without a jury, on May 10, 1971. Additional evidence was taken on
March 31, 1972. Judgment for respondent was entered on September 27, 1976, and
appellants' motion for a new trial was denied on July 19, 1977. This appeal followed.
Tunnel Creek Road is a dirt road which begins at Nevada State Highway 28 near Incline
Village, Nevada, runs south paralleling that state highway for approximately one mile, then
turns due east. Richards claims that the other terminus of the road exits in Washoe Valley,
Nevada, near the Cliff Ranch. Appellants own the land adjacent to, and directly north of, the
Richards' property. Richards uses the Tunnel Creek Road across appellants' land for ingress to
and egress from his property.
The district judge found that the road, which has been in existence since at least 1880,
1
was originally constructed over public domain
2
and is a public road from Richards' south
property line to Nevada State Highway 2S.
____________________

1
The district court found that Tunnel Creek Road had been in existence since at least 1880 and had been . . .
used consistently, continuously, under a claim of right to use the land as a highway to the exclusion of any
individual right of the owner inconsistent therewith, by the public without permission for at least the statutory
period and that the road had been used for personal, governmental, recreational and business purposes;
including access to the Rocky Point Subdivision.

2
Richards' exhibit R, Patent No. 24 from the United States to the C. P. Railroad Co., executed the 5th day
of December, 1876, by the President, U. S. Grant, by D. D. Cone, Secretary, S. W. Clark, Recorder of the
General Land Office, recorded in Volume 6, pages 225 to 261, inclusive, recorded at the request of D. H.
Haskell, filed February 8, A. D. 1878, John B. Williams,
property line to Nevada State Highway 28. He based his decision upon the ground that
Richards and his predecessors in interest had adversely and continuously used the road,
without the permission of appellants or their predecessors in interest, for more than the
prescriptive period. He concluded that any obstructions prior to the time appellants blocked
the road were for fire protection in accordance with NRS 475.210.
3
The trial court made no
finding on the status of that portion of Tunnel Creek Road beyond Richards' property to the
south and east, because that issue was not directly before it.
During the course of the trial, numerous witnesses testified. Although there was conflict in
their testimony regarding the extent of the use made of the roadway in controversy, nearly
every map introduced by the parties showed a roadway from Nevada State Highway 28 to the
south boundary of Richards' property and beyond.
The record leaves no doubt that there existed a road or trail from early pioneer days, first
known as the trail to Carson
4
or the 49er route, and later as Tunnel Creek Road, which
followed the general course here in dispute and had its western terminus at what is now
Nevada State Highway 28.
The contention of Richards and the finding of the district court is that at least the part of
the road leading to the south boundary of respondent's property has always remained open
and has been used continuously by Richards and his predecessors in interest, as well as by the
public. Appellants contend that the Tunnel Creek Road was never in fact a public highway
and the use of the part of it here in issue, whatever the extent of that use, was permissive only.
____________________
Court Recorder, and certified on the 15th day of May, 1970, Ardis Brown, County Recorder, Washoe County,
Nevada, by Allan C. Johnson, Deputy, indicates the beginning of private ownership of some of the lands
traversed by the Tunnel Creek Road.

3
NRS 475.210:
1. Whenever the governor finds that conditions of extreme fire hazard exist, either in or out of the
fire hazard season, he may by proclamation close or partially close such land or areas as he may find to
be in such condition of extreme hazard to the general public and prohibit or limit burning and other acts
thereon to such degree and in such ways as he deems necessary to reduce the danger of forest and other
wildland fires.
2. The governor shall declare the end of any such emergency only upon a finding that the conditions
of extreme fire hazard no longer exist.

4
The early maps in evidence referred to the entire roadway along the northern shore of Lake Tahoe (Lake
Bigler) as a trail and to that portion of the roadway from what is now Nevada State Highway 28 to the
southern edge of Richards' property and beyond as the trail to Carson. It was not unusual in that era to refer to
roadways as trails. As an example, Oregon Trail, an emigrant route to the Oregon Country . . . Webster's New
International Dictionary, 1718 (2nd ed. unabridged 1961).
[Headnote 1]
The contention that Tunnel Creek Road is a public road is confirmed in the record by
evidentiary material
5
and is supported by statutory provisions.
43 U.S.C. 932 reads as follows: The right of way for the construction of highways over
public lands, not reserved for public uses, is hereby granted. This statute was section 8 of the
Act of July 26, 1866, 14 Stat. 251, R.S. 2477 (Repealed. Pub.L.No. 94-579, Title VII,
706(a), Oct. 21, 1976, 90 Stat. 2793).
6
The historical conditions leading to its enactment and
the circumstances of its operation are set out and explained in Central Pacific Railway v.
Alameda Co., 284 U.S. 463 (1932). The statute was apparently passed to protect persons who
had already encroached upon the public domain without authorization, but who had been
allowed to remain there with the knowledge and acquiescence of the government and, thus,
should not be deemed to be trespassers. It was intended to give legitimacy to an existing
status which might otherwise be indefensible. Justice Sutherland, speaking for the Court in
the Central Pacific case, pointed out that the statute is controlled by the same general
principles as those embraced in companion section 9 of the same Act, which relates to
ditches and canals on the public domain. In declaring those principles, he quoted the
following from Broder v. Water Company, 101 U.S. 274, (1879):
It is the established doctrine of this court that rights of . . . persons who had
constructed canals and ditches . . . are rights which the government had, by its conduct,
recognized and encouraged and was bound to protect before the passage of the Act of
1866. We are of the opinion that the section of the Act which we have quoted was
rather a voluntary recognition of a preexisting right of possession, constituting a
valid claim to its continued use, than the establishment of a new one."
____________________

5
(a) Plaintiff's (respondent) exhibit N, DeGroot's Map of Nevada Territory, published by Warren Holt, 305
Montgomery Street, San Francisco, California, and entered according to an Act of Congress in the year 1862 by
Warren Holt in the Clerk's Office of the District Court of the United States for the Northern District of
California; (b) Plaintiff's (respondent) exhibit H, a map dated April 19, 1866, approved and examined by the
U.S. Surveyor General's Office, San Francisco, California, with indication that the surveys were made from 1861
through August 29, 1865; and (c) Defendants' (appellants) exhibit 13, a Map of Township No. 16 North;
Range No. 18 East of Mount Diablo Meridian, filed June 14, 1867, certified to be a correct copy on Sept. 21,
1867, with indications thereon that the survey was made in the year 1865, all support the finding that Tunnel
Creek Road was in existence by at least 1880 and that it was in fact in existence before March 9, 1866, and
July 26, 1866.

6
Section 701(a) Public Law 94-579 provided that Nothing in this Act, or in any amendment made by this
Act, shall be construed as terminating any valid . . . right-of-way, or other land use right or authorization existing
on the date of approval of this act [Oct. 21, 1976].
rather a voluntary recognition of a preexisting right of possession, constituting a valid
claim to its continued use, than the establishment of a new one. (284 U.S. at 469-470).
In considering that Congressional enactment, the Colorado Supreme Court said:
The sum of our holding is that the statute [43 U.S.C. 932] is an express dedication
of a right of way for roads over unappropriated government lands, acceptance of which
by the public results from use by those for whom it was necessary or convenient. It is
not required that work shall be done on such a road, or that public authorities shall
take action in the premises. User is the requisite element, and it may be by any who
have occasion to travel over public lands, and if the use be by only one, still it suffices.
A road may be a highway though it reaches but one property owner.
Brown v. Jolley, 387 P.2d 278 (Colo. 1963).
In 1866 the Nevada legislature enacted legislation which is now NRS 403.410
7
establishing public roads. The evidence in this record indicates that the emigrant trail which is
now known as Tunnel Creek Road was in existence prior to March 9, 1866, and was
authorized and recognized by the laws of the United States and declared to be a public road
by legislation of the State of Nevada.
[Headnote 2]
There appears to be a spurious inference of abandonment running throughout appellants'
argument, in spite of the evidence that Tunnel Creek Road has been continuously used by
members of the public for more than a century. There is no evidence to support any theory of
abandonment of that portion of the road under consideration in this appeal.
[Headnotes 3-5]
The party asserting abandonment of a public road must carry the burden by clear and
cogent proof. Connell v. Baker, 458 S.W.2d 573 (Mo.App. 1970); McEneny v. Gerlach, 142
S.W.2d 1095 {Mo.App.
____________________

7
NRS 403.410:
1. All public roads and the streets and alleys in incorporated cities and towns in this state, used or
lawfully entitled to be used as such on March 9, 1866, and all such roads, streets and alleys as the board
of county commissioners of the county in which they are situated shall thereafter lawfully cause to be
opened, are declared to be public highways.
2. Nothing in this section shall be deemed or construed to injure or abridge the rights of any toll road;
but all roads shall be entitled to all the protection and benefits arising from this section.
S.W.2d 1095 (Mo.App. 1940). The fact that travel on the now disputed roadway may have
decreased over the years does not work an abandonment or affect its status as a public road.
Whether a road is public or private is determined by the extent of the right to use it, and not
by the extent to which that right is exercised or by the quantity of travel over it. 458 S.W.2d
at 577.
No authority has been cited by appellants that would support a contention that a public
road may be deemed abandoned because of use by only a few members of the public or
because of a substantial reduction in the number of the members of the public who continue
to make use of the rights previously acquired. See Smith v. Bixby, 242 N.W.2d 115 (Neb.
1976).
[Headnote 6]
Obstruction of a public road is unlawful (NRS 405.230(1))
8
and cannot aid appellants'
position. An unlawful encroachment placed upon a public roadway will not constitute an
abandonment of the public easement and cannot divest the public of its right to traverse. King
v. Corsini, 335 N.E.2d 561 (Ill.App. 1975); State v. Smith, 241 S.W.2d 844 (Tenn.App.
1950).
[Headnote 7]
Appellants further contend that the trial court committed reversible error when it took the
matter under advisement for a very long period of time without entering a judgment.
Although the delay was inordinate and is to be discouraged, the pertinent evidence to support
the judgment of the trial court as well as this opinion is a matter of public record and not
dependent upon memories that may be dimmed by the passage of time; therefore, appellants
were not detrimentally prejudiced by the alleged delay.
Judgment of the district court is affirmed.
____________________

8
NRS 405.230:
1. Any person or persons who shall, in any manner, obstruct any road, street or alley, or in any
manner injure the same, or prevent travel thereon, or who shall obstruct, dam or divert any stream or
water so as to throw the same, or cause the flowage thereof, upon, across or along the pathway of any
road, highway, street or alley shall be guilty of a public offense, as prescribed in NRS 193.155,
proportionate to the extent of damage to the section of the road, street, alley or highway damaged and in
no event less than a misdemeanor.
____________
96 Nev. 324, 324 (1980) Martin v. State
KENNETH P. MARTIN, Appellant, v. THE STATE
No. 11356
March 28, 1980 608 P.2d 502
Appeal from judgment of conviction. Second Judicial District Court, Washoe County;
Grant L. Bowen, Judge.
Defendant was convicted in the district court of robbery, and he appealed. The Supreme
Court held that: (1) district judge did not err by denying defendant's request for a full
competency hearing where there was no evidence or indication that defendant was unable to
assist counsel or to understand nature of charges and proceedings against him, and (2)
defendant waived right to trial within statutory 60-day period after report of sanity
commission concluded that defendant was competent to stand trial where his counsel
expressly agreed to the trial date, which was not within such period, and where defendant did
not demand an earlier trial nor show that he was prejudiced by the delay.
Affirmed.
William Dunseath, Public Defender, Washoe County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; and Calvin R. X. Dunlap, District
Attorney, and Edwin T. Basl, Deputy District Attorney, Washoe County, for Respondent.
1. Mental Health.
In absence of reasonable doubt regarding an accused's competence to stand trial, district judge need not
invoke statutory procedure to determine competency. NRS 178.415.
2. Mental Health.
A bare allegation of incompetence to stand trial is not sufficient to raise a reasonable doubt as to an
accused's competence. NRS 178.415.
3. Mental Health.
District judge did not err by denying defendant's request for a full competency hearing where there was
no evidence or indication that defendant was unable to assist counsel or to understand nature of charges
and proceedings against him. NRS 178.415.
4. Criminal Law.
Defendant waived right to trial within statutory 60-day period after report of sanity commission
concluded that defendant was competent to stand trial where his counsel expressly agreed to
the trial date, which was not within such period, and where defendant did not
demand an earlier trial nor show that he was prejudiced by the delay.
stand trial where his counsel expressly agreed to the trial date, which was not within such period, and
where defendant did not demand an earlier trial nor show that he was prejudiced by the delay. NRS
178.460, subd. 1.
OPINION
Per Curiam:
Kenneth P. Martin was charged with robbery. Following an arraignment and a preliminary
examination, he was declared incompetent to stand trial, pursuant to NRS 178.415. The
proceedings were suspended and Martin was placed in the Lake's Crossing Center for the
Mentally Disordered.
A few months later, the administrator of the center notified the district judge that Martin
was no longer incompetent. A sanity commission was impaneled pursuant to NRS 178.455.
The three-member commission concluded that he was competent to stand trial. Martin was
arraigned a second time and a trial date was set, without objection from him or his counsel.
Martin was remanded to the county jail. His motion to return to Lake's Crossing was denied
because no allegations or evidence were proffered that raised any doubt concerning his
competency at that time to stand trial.
On the first day of trial, Martin requested a full hearing on his competency. He contends
that the district judge erred by denying his request. We disagree.
[Headnotes 1, 2]
In the absence of reasonable doubt regarding an accused's competence, the district judge
need not invoke the statutory procedure to determine competency. Bishop v. State, 94 Nev.
410, 581 P.2d 4 (1978); see NRS 178.400-178.425. A bare allegation of incompetence is not
sufficient to raise a reasonable doubt as to competence. Warden v. Graham, 93 Nev. 277, 564
P.2d 186 (1977); Langley v. State, 84 Nev. 295, 439 P.2d 986 (1968).
[Headnote 3]
A survey of the record discloses no evidence or indication that Martin was unable to assist
his counsel or to understand the nature of the charges and proceedings against him. See
Dusky v. United States, 362 U.S. 402 (1960); cf Williams v. Warden, 91 Nev. 16, 530 P.2d
761 (1975) (psychiatric evaluation raised serious doubt as to accused's competency); Pate v.
Robinson, 383 U.S. 375 (1966) (four witnesses testified that accused was insane).
Consequently, the district judge did not err by denying Martin's request for a full hearing.
err by denying Martin's request for a full hearing. Kelly v. State, 93 Nev. 154, 561 P.2d 449
(1977).
[Headnote 4]
Martin's argument that the district judge committed error by not commencing trial within
60 days after the sanity commission report, as required by NRS 178.460(1), also lacks merit.
His counsel expressly agreed to the trial date and Martin did not demand an earlier trial nor
did he show that he was prejudiced by the delay. In these circumstances, the right to trial
within the statutory 60-day period was waived. Cf. Broadhead v. Sheriff, 87 Nev. 219, 484
P.2d 1092 (1971) (discussing waiver under NRS 178.556); Maiorca v. Sheriff, 87 Nev. 63,
482 P.2d 312 (1971) (no objection to delay until after 60-day period); see also Sondergaard v.
Sheriff, 91 Nev. 93, 531 P.2d 474 (1975).
Affirmed.
____________
96 Nev. 326, 326 (1980) Homewood Investment Co. v. Moses
HOMEWOOD INVESTMENT COMPANY, INC., UNITED PACIFIC INSURANCE
COMPANY and TOM GENTRY, Appellants, v. G. DONALD MOSES, Trustees for Home
Lumber & Supply Co., a Dissolved Nevada Corporation, Respondent.
No. 10172
March 28, 1980 608 P.2d 503
Appeal from judgment. Second Judicial District Court, Washoe County; Grant L. Bowen,
Judge.
Construction corporation, its insurer, and its president appealed from judgment entered in
the district court against them and in favor of creditor which furnished construction
corporation with materials for its condominium project. The Supreme Court, Batjer, J., held
that: (1) State Contractors' Board did not act in excess of its statutory authority by requiring
president of construction corporation and its incorporator to personally indemnify
corporation's obligations as conditions precedent to issuing unlimited contractor's license; (2)
creditor was not estopped from asserting its claim to recover cost of materials furnished
construction corporation based upon indemnification agreement because it failed to perfect
materialmen's lien against condominium project; (3) late charges imposed on construction
company for failure to pay for materials furnished for its condominium project were not
usurious; and {4) creditor was entitled to only pro rata share of $5,000 surety bond.
for materials furnished for its condominium project were not usurious; and (4) creditor was
entitled to only pro rata share of $5,000 surety bond.
Affirmed in part and reversed in part and remanded with instruction.
Breen, Young, Whitehead & Hoy, and David R. Belding, Reno, for Appellants.
Vargas, Bartlett & Dixon, and Robert W. Marshall, Reno, for Respondent.
1. Indemnity.
In action to recover cost of materials furnished construction corporation, district judge did not improperly
place upon indemnitor of construction corporation burden of proving that indemnitor's signature on
indemnification agreement, which State Contractors' Board required before issuing unlimited contractor's
license to corporation and which stated that president of corporation and its incorporator personally
indemnified corporation's obligations, was forged.
2. Indemnity.
Evidence was sufficient to support district court's finding that signature of construction corporation's
indemnitor was not forged on indemnification agreement, which State Contractors' Board required before
issuing unlimited contractor's license to corporation and which stated that president of corporation and its
incorporator personally indemnified corporation's obligations.
3. Indemnity.
State Contractors' Board, which issued construction corporation a license only after president of
construction corporation and incorporator of corporation agreed to personally indemnify corporation's
obligations, did not act in excess of its statutory authority by requiring indemnification agreement as
condition precedent to issuing an unlimited contractor's license. NRS 624.220, 624.220, subd. 2.
4. Indemnity.
Creditor was not estopped from asserting its claim, which was against construction company for materials
furnished construction company for its condominium project, which was based upon indemnification
agreement between president of construction corporation and its incorporator and States Contractors' Board
for issuance of unlimited contractor's license, merely because creditor failed to perfect materialmen's lien
against condominium project.
5. Usury.
Late charges of 1 1/2% per month imposed on construction company for past-due balances on cost of
material furnished to it by creditor was not usurious as there was no loan of money between construction
company and creditor but merely contract of sale providing for assessment of reasonable late charges to
induce timely payment of obligation. NRS 99.050, 99.050, subd. 3.
6. Usury.
If purpose of reasonable late charge is to induce timely payment of obligation, and debtor can
avoid charge by prompt payment, then late charge is not "interest" within meaning of
usury statute.
obligation, and debtor can avoid charge by prompt payment, then late charge is not interest within
meaning of usury statute. NRS 99.050.
7. Principal and Surety.
Creditor, which sought to recover costs of materials furnished to construction corporation, was entitled to
only pro rata share of $5,000 surety bond as other claims had been asserted against insurer, and bond was
not sufficient to cover all claims. NRS 624.273, 624.273, subd. 5.
OPINION
Homewood Investment Company (Homewood), United Pacific Insurance Company
(United), and Tom Gentry appeal from the judgment entered against them and in favor of
Home Lumber and Supply Company (Home Lumber). Homewood, and Gentry as
Homewood's indemnitor, were ordered to pay $16,557.85 for materials furnished by Home
Lumber to Homewood, $11,065.57 for accrued late charges through January, 1977, and
$7,613.15 for attorney's fees. Judgment was entered against United for the full amount of its
$5,000 contractor's surety bond.
On appeal, Gentry argues that the trial court erred by enforcing the indemnification
agreement and imposing personal liability on him for Homewood's obligations. Homewood
and Gentry contend that the late charges imposed upon the overdue balance are usurious.
United seeks a modification of the judgment to reduce its liability to an amount equal to
Home Lumber's pro rata share of the bond. We affirm the awards against Homewood and
Gentry. However, we agree with United that Home Lumber is not entitled to the full amount
of the surety bond. Consequently, we remand the case to the district judge for a determination
of Home Lumber's pro rata share.
At one time Homewood was a licensed Nevada contractor owned by Richard Osmundsen.
In 1972, Homewood was incorporated, and the stock was acquired by Kingswood Tahoe
Corporation. Gentry was the sole shareholder of Kingswood. Osmundsen was the president of
Homewood.
Homewood applied for an unlimited contractor's license because it wished to commence a
condominium project. The State Contractors' Board was unwilling to issue an unlimited
license unless Homewood could show greater financial responsibility. However, in order to
accommodate Homewood, the Board offered to grant an unlimited license if Osmundsen and
Gentry agreed to personally indemnify the corporation's obligations. After the
indemnification agreement was submitted, and a $5,000 surety bond was posted by United,
the Board approved an unlimited license on August 29, 1972.
and a $5,000 surety bond was posted by United, the Board approved an unlimited license on
August 29, 1972.
Homewood ordered building materials from Home Lumber for its condominium project.
Homewood's account became delinquent during the summer of 1973. When Home Lumber
learned of the indemnification agreement, it consented to continue extending credit in
reliance on the agreement, rather than perfecting its materialmen's lien against the
construction project. The delinquency continued and, eventually, Home Lumber brought this
action to collect the balance due on Homewood's open account for materials furnished by
Home Lumber.
1

The district judge denied Gentry's motion for summary judgment on April 19, 1976. The
order denying that motion is not appealable. NRAP 3A(b)(5). On January 19, 1977, the
district judge rendered his decision in favor of Home Lumber. This appeal is from that
judgment and from the order denying appellants' motion for a new trial.
Gentry contends that the district judge erred by enforcing the indemnification agreement
because (1) Gentry's signature was forged, (2) the Board acted beyond the scope of its
statutory powers by accepting the agreement, and (3) Home Lumber did not perfect its
materialmen's lien.
[Headnotes 1, 2]
There is no merit to Gentry's claim that the district judge improperly placed upon him the
burden of proving forgery. Both sides presented expert testimony and conflicting stories
about the signature on the agreement. After weighing the evidence and scrutinizing the
signature himself, the district judge, as the trier of fact, was convinced that Gentry's signature
was not forged. We will not disturb that factual determination because it is not clearly
erroneous and it is based upon substantial evidence. Landex, Inc. v. State ex rel. List, 94 Nev.
469, 582 P.2d 786 (1978).
[Headnote 3]
Gentry also seeks to nullify the agreement by asserting that the Board acted in excess of its
statutory authority by requiring the indemnification agreement as a condition precedent to
issuing an unlimited license. The Board may limit the field and scope of a contractor's
operations by setting a monetary limit on the contractor's license if such action is necessary to
protect the health, safety and general welfare of the public. NRS 624.220. In this case, the
Board would have placed a $100,000 limit on Homewood's license in the absence of
assurance that Homewood's creditors would be paid.
____________________

1
A default judgment was entered against Richard Osmundsen on March 12, 1975.
Homewood's creditors would be paid. As an accommodation to Homewood, the Board agreed
to issue an unlimited license if Gentry and Osmundsen agreed to indemnify Homewood's
creditors.
The Board's action tends to promote the statutory policy of protecting the public welfare,
and is consistent with a reasonable interpretation of its statutory powers. There is no statutory
proscription against accepting indemnification agreements from interested third parties. The
Board has accepted indemnification agreements and other forms of security for years, without
objection from the legislature. The legislature's acquiescence is an indication that the Board's
interpretation of its authority is consistent with legislative intent. Sierra Pacific Power Co. v.
Department of Taxation, 96 Nev. 295, 607 P.2d 1147 (1980); Oliver v. Spitz, 76 Nev. 5, 348
P.2d 158 (1960). No error was committed by the district judge in finding that the Board was
empowered, under NRS 624.220(2), to require an indemnification agreement as a condition
precedent to issuance of an unlimited license.
[Headnote 4]
Gentry argues that Home Lumber is estopped from asserting its claim based upon the
indemnification agreement because it failed to perfect its materialmen's lien against the
condominium project. We disagree. This is not an action to foreclose such a lien, nor does the
indemnification agreement require perfection of available liens as a condition precedent to
collection of amounts due.
2
Cf. First National Bank of Nevada v. Barengo, 91 Nev. 396, 536
P.2d 487 (1975) (payee not required to foreclose deed of trust before bringing suit on
guaranty); Manufacturers & Traders Trust v. District Court, 94 Nev. 551, 583 P.2d 444
(1978). The district judge correctly concluded that the indemnification agreement is valid and
enforceable against Gentry.
[Headnote 5]
Homewood and Gentry argue that the late charges imposed are usurious because the rate
of 1 1/2 percent per month on the balance overdue exceeds the statutory maximum interest of
12 percent per year. See NRS 99.050.
3
Any loan agreement which specifies a greater rate
of interest than the statutory maximum is void, and the lender may recover only the
amount of cash actually advanced.
____________________

2
The pertinent language in the indemnification agreement states:
We, Richard Osmundsen, President and Tom Gentry, Director, officers and Stockholders of Homewood
Investment Co., do hereby personally indemnify the creditors of Homewood Investment Co. for any and all
liabilities of the said Homewood Investment Co., wherein such liabilities are incurred in the ordinary course of
the construction business within the State of Nevada.

3
NRS 99.050 was amended in 1979. The statutory maximum is now 18 percent.
specifies a greater rate of interest than the statutory maximum is void, and the lender may
recover only the amount of cash actually advanced. Pease v. Taylor, 88 Nev. 287, 496 P.2d
767 (1972); NRS 99.050(3).
[Headnote 6]
In this case, there was no loan of money. There was a contract of sale which provided that
a late charge of 1 1/2 percent per month (annual percentage rate of 18 percent) will be
assessed to past due balances. If the purpose of a reasonable late charge is to induce timely
payment of an obligation, and the debtor can avoid the charge by prompt payment, then the
late charge is not interest, and thus is not governed by NRS 99.050. See Hayes v. First
National Bank of Memphis, 507 S.W.2d 701 (Ark. 1974); cf. Union Bank v. Kruger, 463
P.2d 273 (Wash.App. 1969) (promise to pay greater rate of interest for delinquent payments
not usurious); United American Life Ins. Co. v. Willey, 444 P.2d 755 (Utah 1968). The award
of accrued late charges is proper.
4

[Headnote 7]
United correctly asserts that Home Lumber is entitled to only a pro rata share of the $5,000
surety bond. NRS 624.273 states that [e]ach bond or deposit required by NRS 624.270 shall
be in favor of the State of Nevada for the benefit of any person who: . . . [a]s a supplier or
materialman furnished materials or equipment for the construction contract. Subdivision 5 of
that provision states that [c]laims, other that labor claims, against a bond or deposit shall
have equal priority, . . . and if the bond or deposit is insufficient to pay all such claims in full,
they shall be paid pro rata. There is evidence in the record that other claims against United
have been asserted. Therefore, the case is remanded to the trial court for a determination of
Home Lumber's pro rata share of the bond. In all other respects, the judgment is affirmed.
____________________

4
Courts will not hesitate to declare usurious an agreement providing for late charges if the agreement is a
mere contrivance to avoid the usuary law and is, in reality, a loan or forbearance of money for more than legal
interest. See, e.g., Hayes, 507 S.W.2d at 703. That is not the case here.
____________
96 Nev. 332, 332 (1980) A Minor v. Juvenile Department
A MINOR, Appellant, v. JUVENILE DEPARTMENT
FOURTH JUDICIAL DISTRICT COURT, Respondent.
No. 11667
March 31, 1980 608 P.2d 509
Appeal from order adjudging appellant a juvenile delinquent. Fourth Judicial District
Court, Juvenile Division, Elko County; Joseph O. McDaniel, Judge.
The Supreme Court, Mowbray, C. J., held that: (1) statutory accomplice corroboration
requirement applied to the proceedings, and (2) substantial testimony supported juvenile
court's finding that alleged accomplice did not unite in commission of crime for which
juvenile was charged and therefore was not an accomplice whose testimony would have
been incompetent to corroborate that of an admitted accomplice.
Affirmed.
[Rehearing granted May 15, 1980. Opinion on Rehearing, 96 Nev. 485, 611 P.2d 624
(1980)]
Thomas L. Stringfield, District Attorney, and Richard F. Jost, Deputy District Attorney,
Elko County, for Respondent.
1. Infants.
Statutory accomplice corroboration requirement applies to proceedings wherein minors are adjudged
juvenile delinquents. NRS 175.291.
2. Criminal Law.
Question of complicity of an accomplice is for trier of fact to determine.
3. Infants.
Substantial testimony supported juvenile court's finding that alleged accomplice did not unite in
commission of crime for which juvenile was charged and therefore was not an accomplice whose
testimony would have been incompetent to corroborate that of an admitted accomplice. NRS 175.291.
OPINION
A minor appeals from the judgment of the juvenile division of the district court finding
him a juvenile delinquent. We affirm.
In July, 1978, appellant, and S. and P.,
1
friends of appellant and also juveniles,
discussed a plan to commit a burglary at the McDonald's fast food restaurant in Elko.
____________________

1
We shall refer to these juveniles by their initials. See NRS 62.275(1).
and also juveniles, discussed a plan to commit a burglary at the McDonald's fast food
restaurant in Elko. Appellant was night manager at the restaurant. He had the key to building
and the combination to the safe. An adult, Rice, was also involved in the plan to commit the
burglary. It was finally agreed that appellant would furnish the key to the building and the
combination to the safe; Rice and S. would actually commit the burglary. The burglary was
then committed. S. and P., using loot taken in the burglary, went to Boise, Idaho, and
purchased drugs from P.'s brother. Upon their return, they were arrested. S., who was on
probation, made a complete confession, implicating appellant. A petition was filed by the
investigating officer under the Juvenile Court act, accusing appellant of aiding and abetting
the burglary. After a hearing at which P., S., and the investigating officer testified, the
juvenile court judge found that S. was an accomplice, and that his testimony was sufficiently
corroborated by that of P., whom the court held not to be an accomplice. The juvenile court
then found that appellant had committed the acts, which would be crimes if committed by an
adult, and adjudged appellant a juvenile delinquent. The minor appeals.
[Headnote 1]
The juvenile court judge held that the accomplice corroboration requirement, NRS
175.291,
2
was applicable to juvenile proceedings. We agree. See A Minor v. Mineral Co.
Juvenile Dep't., 95 Nev. 248, 592 P.2d 172 (1979). Although NRS 175.291 by its terms
forbids only convictions upon uncorroborated accomplice testimony, this Court has not
interpreted this language mechanically; we have held the corroboration requirement
applicable also at preliminary examinations. In re Oxley and Mulvaney, 38 Nev. 379, 149 P.
992 (1915).
Our statute requires a finding on proof beyond a reasonable doubt, based upon competent,
material and relevant evidence, that a child has committed the acts by reason of which he is
alleged to be delinquent, NRS 62.193(4) (emphasis supplied). Respondent's argument that
the corroboration requirement should not be applied in juvenile proceedings is inconsistent
with Breed v. Jones, 421 U.S. 519, 529 (1975); see also In re Two Minor Children, 95 Nev.
225
____________________

2
1. A conviction shall not be had on the testimony of an accomplice unless he is corroborated by other
evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the
defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely
also In re Two Minor Children, 95 Nev. 225, 592 P.2d 166 (1979). We hold, in agreement
with the learned judge below, that the accomplice corroboration requirement, NRS 175.291,
does apply to proceedings wherein minors are adjudged juvenile delinquents. Compare, e.g.,
T.L.T. v. State, 212 S.E.2d 650 (Ga. 1975); In re M., 357 N.Y.S.2d 331 (App.Div. 1974),
with In re Wooten, 284 A.2d 32 (Md.Ct.Spec.App. 1971).
[Headnotes 2, 3]
Appellant also suggests that the juvenile court judge erred in ruling that the witness P. was
not an accomplice, thereby permitting P.'s testimony to corroborate that of S., an admitted
accomplice. The question of complicity is for the trier of fact to determine. State v. Carey, 34
Nev. 309, 122 P. 868 (1912). While there is conflicting testimony in the record, there is
substantial testimony therein to support the juvenile court's finding that P. did not unite . . .
in the commission of the crime, State v. Verganadis, 50 Nev. 1, 10, 248 P. 900, 903 (1926),
within the meaning of the statute defining principals, NRS 195.020. Therefore, we shall not
disturb that finding on review.
The order of the juvenile division of the district court adjudging appellant a juvenile
delinquent is affirmed.
____________
96 Nev. 334, 334 (1980) Allen v. State
DUDLEY CORNELIUS ALLEN, Appellant, v. THE
No. 10806
April 9, 1980 609 P.2d 321
Appeal from judgment on jury verdict, Eighth Judicial District Court, Clark County; Carl
J. Christensen, Judge.
Defendant was convicted in the district court of robbery with use of deadly weapon, and he
appealed. The Supreme Court held that: (1) in prosecution for crime involving use of deadly
weapon, proof of weapon's deadly capabilities is not required; (2) even though pistol was
incapable of being fired, jury could have found that defendant used pistol in commission of
robbery as his use of pistol produced fear of harm or force in victims; (3) any error in
admitting testimony from pistol owner that she saw defendant enter her house, then go to
market which was robbed, was harmless because it was apparent same result would have
been reached had testimony not been admitted; and {4) there was substantial evidence
from which jury could reasonably conclude that defendant's intoxication was not so gross
as to preclude his intention to rob.
96 Nev. 334, 335 (1980) Allen v. State
result would have been reached had testimony not been admitted; and (4) there was
substantial evidence from which jury could reasonably conclude that defendant's intoxication
was not so gross as to preclude his intention to rob.
Affirmed.
Richard Bryan, Attorney General, Carson City, and Robert Miller, District Attorney, Clark
1. Weapons.
In prosecution for crime involving use of deadly weapon, proof of weapon's deadly capabilities is not
required. NRS 193.165.
2. Weapons.
In prosecution for crime involving use of deadly weapon, to constitute use of deadly weapon, there
need not be conduct which actually produces harm but only conduct which produces fear of harm or force
by means or display of deadly weapon in aiding commission of crime. NRS 193.165.
3. Robbery.
In prosecution for robbery with use of deadly weapon, even though pistol was incapable of being fired,
jury could have found that defendant used pistol in commission of robbery as his use of pistol produced
fear of harm or force in victims. NRS 193.165.
4. Criminal Law.
In prosecution for robbery with use of deadly weapon, any error in admitting testimony from pistol owner
that she saw defendant enter her house, then go to market which was robbed, was harmless because it was
apparent same result would have been reached had testimony not been admitted. NRS 48.045, 178.598,
193.165.
5. Criminal Law.
In prosecution for robbery with use of deadly weapon, there was substantial evidence from which jury
could reasonably conclude that defendant's intoxication was not so gross as to preclude his intention to rob.
NRS 193.165, 193.220.
OPINION
Per Curiam:
A jury convicted appellant of robbery with use of a deadly weapon. The evidence
established that appellant entered a market, showed a pistol to two young boys who were
working there, threatened to kill them, and took cigars. When the market owner entered the
room, he found appellant holding a pistol to one boy's head. The appellant thereafter
threatened the market owner, struck him in the side with the pistol, and took money from
him. When a customer entered unexpectedly, appellant attempted to shoot at him, but the
pistol did not fire.
96 Nev. 334, 336 (1980) Allen v. State
appellant attempted to shoot at him, but the pistol did not fire. The evidence established that
the pistol was incapable of being fired.
Appellant submitted instructions which would have required the jury to determine whether
the firearm was, in fact, a deadly weapon. The trial court refused to give the proposed
instructions, and instead gave the instructions set forth below.
1
The trial court also precluded
defense counsel from arguing that appellant's pistol was inoperative, or that the pistol was not
a deadly weapon. The appellant argues this was error. We find no error and affirm.
[Headnotes 1-3]
A firearm is a deadly weapon within contemplation of NRS 193.165.
2
Proof of its deadly
capabilities is not required. Stalley v. State, 91 Nev. 671, 541 P.2d 658 (1975). In order to
use a deadly weapon for purposes of NRS 193.165, there need not be conduct which
actually produces harm but only conduct which produces a fear of harm or force by means or
display of the deadly weapon in aiding the commission of the crime. Culverson v. State, 95
Nev. 433, 596 P.2d 220 (1979). The jury could have found from the evidence presented that
appellant used the pistol in the commission of the robbery, even though inoperative, and
that his use of the pistol produced a fear of harm or force in the victims. A firearm is
dangerous, not only because it can inflict deadly harm, but because its use may provoke a
deadly reaction from the victim or from bystanders. We believe use of any firearm during
commission of a crime should be discouraged.
3
For these reasons, we affirm.
[Headnote 4]
The appellant asserts it was error to admit testimony from the pistol owner that she saw
the appellant enter her house, and then go to the market nearby.
____________________

1
The instructions given provided:
Instruction No. 6: You are instructed that if you find the Defendant guilty of Robbery, you must also
determine whether or not a deadly weapon was used in the commission of this crime.
Instruction No. 7: You are instructed that a firearm is a deadly weapon and proof of its deadly capabilities
is not required.

2
1. Any person who uses a firearm or other deadly weapon in the commission of a crime shall be
punished by imprisonment in the state prison for a term equal to and in addition to the term of
imprisonment prescribed by statute for such crime. The sentence prescribed by this section shall run
consecutively with the sentence prescribed by statute for such crime.

3
But see NRS 193.165(3). NRS 193.165 does not apply where use of the firearm or deadly weapon is a
necessary element of the offense. Cf. Loretta v. Sheriff, 93 Nev. 344, 565 P.2d 1008 (1977).
96 Nev. 334, 337 (1980) Allen v. State
the pistol owner that she saw the appellant enter her house, and then go to the market nearby.
The appellant argues that this was evidence of other crimes, wrongs or acts and should have
been excluded. NRS 48.045. Even assuming admission of the testimony was error, in view of
the evidence in the record, any error was harmless. Had the testimony not been admitted, it is
apparent the same result would have been reached. NRS 178.598.
Appellant also argues that the prosecutor's arguments were improper and require reversal.
This contention is without merit. The jury was properly instructed as to the State's burden of
proof, the intent required for robbery, and the defense of intoxication.
[Headnote 5]
Voluntary intoxication, though not an excuse for crime, may be considered in determining
intent. NRS 193.220. We assume the jury did so. King v. State, 80 Nev. 269, 392 P.2d 310
(1964). There is substantial evidence in the record from which the jury could reasonably
conclude that appellant's intoxication was not so gross as to preclude his intention to rob.
Andrade v. State, 87 Nev. 144, 483 P.2d 208 (1971).
Affirmed.
____________
96 Nev. 337, 337 (1980) Union Petrochemical Corp. v. Scott
UNION PETROCHEMICAL CORPORATION OF NEVADA,
Appellant, v. E. WALTER SCOTT, Respondent.
No. 11833
April 9, 1980 609 P.2d 323
Appeal from order denying motion to set aside default judgment, Eighth Judicial District
The Supreme Court held that the motion to set aside the default judgment, which was filed
almost six months after the judgment was entered, was not diligently prosecuted, and,
therefore, trial court properly denied such motion.
Affirmed.
Deaner, Deaner & Reynolds, Las Vegas, for Appellant.
Albright & McGimsey, and William H. Stoddard, Las Vegas, for Respondent.
Judgment.
Motion to set aside default judgment, which was filed almost six months after the judgment was entered,
was not diligently prosecuted and, therefore, trial court properly denied such motion. NRCP 60(b).
OPINION
Per Curiam:
Union Petrochemical Corporation of Nevada (hereinafter referred to as Union) appeals
from the denial of a motion to set aside a default judgment.
Respondent filed the instant action in the district court to enforce a debt based on a loan
made to Union in 1969. Union was granted numerous extensions for the filing of responsive
pleadings. Upon expiration of the last extension, no further extension having been requested,
a default was sought and obtained. Almost six months after the judgment was entered, Union
moved to have it set aside. From the denial of said motion, this appeal was perfected.
A motion to set aside a judgment is governed by NRCP 60(b).
1
The district court has
wide discretion in such matters and, barring an abuse of discretion, its determination will not
be disturbed. See, e.g., Cicerchia v. Cicerchia, 77 Nev. 158, 360 P.2d 839 (1961). In the
instant case, the district court's determination can be sustained on the basis that Union's
motion to set aside the judgment was not diligently prosecuted.
NRCP 60(b) requires that a motion to set aside a judgment on the grounds of mistake,
inadvertence, surprise, or excusable neglect be made within a reasonable time, and . . . not
more than six months after the judgment . . . was entered or taken. Union first contends that
it has complied with this requirement because its motion was filed within the six-month
period.
2
To accept Union's reasoning would be to ignore the clear import of the rule.
____________________

1
NRCP 60(b) states, in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or his legal representative
from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise,
or excusable neglect. . . . The motion shall be made within a reasonable time, and for reasons (1) and (2)
not more than six months after the judgment, order, or proceeding was entered or taken.

2
Union's reliance on Gutenberger v. Continental Thrift, 94 Nev. 173, 576 P.2d 745 (1978) is misplaced.
Although it is true that in Gutenberger points and authorities presenting a meritorious defense were filed more
than three months after the default judgment was entered, the motion to set aside the judgment, accompanied by
an affidavit suggesting a meritorious defense, had been filed one day after the entry of judgment. The vigilance
there demonstrated thus stands in sharp contrast to Union's dilatory conduct.
of the rule. The Rhode Island Supreme Court, in passing upon that state's Rule 60(b),
3
correctly perceived the rule's intention:
The plaintiffs claim that since their motion was filed just prior to the expiration of
the one-year period referred to in Rule 60(b), the trial justice had jurisdiction to grant
their motion. The plaintiffs had better take a closer look at the rule. Actually, the rule in
pertinent part provides that a motion seeking relief from a final judgment or order on
the grounds of mistake, inadvertence, surprise or excusable neglect shall be made
within a reasonable time, and not more than one year' after the judgment or order was
taken. It is clear then that such a motion must be made within a reasonable time and the
one-year period represents the extreme limit of reasonableness.
Murphy v. Bocchio, 338 A.2d 519, 523 (R.I. 1975).
Union's contention is also rebutted by cases of this court which emphasize that want of
diligence in seeking to set aside a judgment is ground enough for denial of such a motion.
Lentz v. Boles, 84 Nev. 197, 438 P.2d 254 (1968); see Hotel Last Frontier v. Frontier Prop.,
79 Nev. 150, 380 P.2d 293 (1963).
Union next contends that its delay is excusable; Union does not, however, deny that it had
knowledge of the judgment shortly after its entry, but contends instead that its dilatory
conduct should be excused because of the distance from its Texas headquarters to Nevada
4
as well as its ignorance of procedural requirements. We summarily reject the excuse
concerning the distance from the Texas headquarters. As to the alleged ignorance of
procedural requirements, we are not confronted here with some subtle or technical aspect of
procedure, ignorance of which could readily be excused. The requirements of the rule are
simple and direct. To condone the actions of a party who has sat on its rights only to make a
last-minute rush to set aside judgment would be to turn NRCP 60(b) into a device for delay
rather than the means for relief from an oppressive judgment that it was intended to be. See
Franklin v. Bartsas Realty, supra; see also Central Operating Co. v. Utility Workers of
America, 491 F.2d 245 (4th Cir. 1974).
Accordingly, we affirm the district court's denial of the motion to set aside the default
judgment.
____________________

3
R.I.R. Civ. P. 60(b) is, like NRCP 60(b), based on Fed. R. Civ. P. 60(b). The Nevada rule differs in that it
places a six-month rather than a year limitation on filing the motion to set aside the judgment.

4
We note that Union is incorporated in Nevada.
____________
96 Nev. 340, 340 (1980) Wisman v. Wisman
WILLIAM W. WISMAN, Appellant, v. HELEN FAYE
WISMAN, Respondent.
No. 10545
April 9, 1980 608 P.2d 1110
Appeal from orders denying motion for rehearing and motion to modify decree of divorce,
Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Former husband filed motion to modify decree of divorce, seeking to reduce amount of
alimony payments. The district court ruled that it was without power to hear the motion
because it had not expressly retained jurisdiction to modify the divorce decree, and former
husband appealed. The Supreme Court held that the district court retained power to modify
the divorce decree regarding alimony by conditioning payment of alimony until further
order.
John F. O'Reilly, Las Vegas, for Appellant.
Manos & Cherry, Las Vegas, for Respondent.
Divorce.
District court, having conditioned payment of alimony until further order, retained power to modify
divorce decree regarding alimony. NRS 125.170 (Repealed).
OPINION
Per Curiam:
On November 7, 1974, a decree of divorce was entered in the district court terminating the
marriage of appellant William W. Wisman and respondent Helen Faye Wisman. In the decree
the court ordered appellant to pay alimony to respondent in the amount of $1,000 per month
until such time as respondent remarried, died, or until further order of this Court.
On April 8, 1977, appellant, seeking to reduce the amount of the alimony payments, filed a
motion to modify the decree of divorce. The district court ruled that it was without power to
hear the motion because it had not expressly retained jurisdiction to modify the divorce
decree. Appellant thereafter moved the court to rehear its order denying the motion to modify.
The court denied the motion for rehearing and this appeal followed.
96 Nev. 340, 341 (1980) Wisman v. Wisman
In 1974, when the instant divorce decree was entered, unaccrued alimony payments could
not be modified unless the court expressly retained jurisdiction for such modification at the
final hearing. NRS 125.170.
1
Here, appellant contends the language in the divorce decree
which provides that alimony shall be paid until further order of this Court is a sufficient
reservation of jurisdiction by the court to modify the decree. Therefore, he argues, the district
judge erroneously determined that he was without power to hear the motion to modify. We
agree.
In Lewis v. Lewis, 53 Nev. 398, 407-408, 2 P.2d 131, 134 (1931), this court stated that if
the right is reserved by the trial court to make additional or further orders . . . with reference
to . . . alimony payments, and if a proper showing is made, the trial court has ample power
and authority to modify and amend its decree in divorce cases in the foregoing respects.
Thus, the district court having conditioned the payment of alimony in this case until further
order, it clearly retained the power to modify the divorce decree regarding alimony.
Accordingly, the order of the district court denying appellant's motion to modify is reversed
and this case is remanded for further proceedings.
____________________

1
NRS 125.170 was repealed in 1975. 1975 Nev. Stats., ch. 744 3, at 1589.
____________
96 Nev. 341, 341 (1980) Sanders v. State
ELLIS SANDERS, Jr., Appellant, v. THE STATE
No. 11853
April 9, 1980 609 P.2d 324
Defendant was convicted in the district court of robbery with use of a deadly weapon and
possession of a concealable firearm by a convicted felon and he appealed. The Supreme Court
held that: (1) in view of the simultaneous prosecution on a robbery charge, it was error to
admit evidence that the prior offenses of which defendant had been convicted were rape and
attempted robbery, but (2) in view of the evidence against defendant, the error was harmless.
Affirmed.
Morgan D. Harris, Public Defender, and William P. Henry, Deputy Public Defender,
H. Douglas Clark, Deputy District Attorney, Clark County, for Respondent.
1. Weapons.
Prosecution should only be allowed to prove the fact, instead of the nature, of the prior conviction of one
charged with possession of a concealable firearm by convicted felon where the effectiveness of the
prosecutor's case is not impaired and unnecessary and improper prejudice to the accused is avoided. NRS
202.360.
2. Weapons.
Identification of defendant's prior felony convictions as rape and attempted robbery for purposes of
proving possession of a concealable weapon by a convicted felon was erroneous in view of the fact that
defendant was simultaneously being prosecuted on a charge of robbery. NRS 202.360.
3. Criminal Law.
In view of identification of defendant by victim as the perpetrator of the robbery and in view of evidence
that defendant was found driving a vehicle which had been parked on the store's parking lot at the time of
the robbery, error in admitting, in defendant's trial for robbery and possession of a concealable weapon by
a convicted felon, evidence of the nature of the prior convictions was harmless. NRS 202.360.
OPINION
Per Curiam:
Appellant Ellis Sanders, Jr., was convicted of robbery with the use of a deadly weapon
(NRS 200.380; 193.165), and being a person previously convicted of a felony in possession
of a concealable firearm. (NRS 202.360). In this appeal, he argues the judgment of conviction
should be reversed because (1) the district court erred in denying his oral motion in limine to
exclude evidence of the nature of his prior convictions used to prove his status as a person
previously convicted of a felony, and (2) prosecutorial misconduct occurred when the
prosecutor made a statement in his final argument to the jury allegedly regarding a burden
upon appellant to prove his innocence.
On October 13, 1978, appellant, using a concealable gun, robbed a clerk at a 7-Eleven
store in Las Vegas. At the trial the prosecution introduced exemplified copies of appellant's
prior convictions for attempted robbery and rape in order to prove an essential element of the
charge of possession of a concealable firearm by a person previously convicted of a felony.
1
1.

____________________

1
NRS 202.360(2) provides in part:
[N]o person who has been convicted of a felony in the State of Nevada, or
1. Appellant argues the district court abused its discretion in denying his motion in limine
to exclude from the jury evidence of the nature of his two prior convictions because he had
offered to stipulate to the fact of those convictions. Appellant contends identification of his
prior convictions for attempted robbery and rape was unduly prejudicial because he was also
being tried for robbery in the present case. Therefore, he argues, the evidence should not have
been admitted.
Respondent, relying on People v. Morrison, 136 Cal. Rptr. 650 (Cal.App. 1977), argues
that since a prior felony conviction is an element of the offense charged under NRS
202.360(2), supra n. 1, appellant cannot preclude the introduction of proof of the nature of a
prior felony conviction by offering to stipulate to the fact of the conviction. In Morrison,
supra at 652, the court, quoting People v. Robles, 466 P.2d 710, 715 (Cal. 1970), stated that
[a] prosecutor is not required to stipulate to the existence of any elements of the crime he is
attempting to prove where the stipulation will impair the effectiveness of the prosecutor's
case. . . .'
[Headnote 1]
While we do not question the Morrison rule, we note that it is subject to certain
exceptions. For example, the prosecution should only be allowed to prove the fact, instead of
the nature, of a prior conviction where the effectiveness of the prosecutor's case is not
impaired, and unnecessary and improper prejudice to the accused is avoided. See People v.
Piper, 162 Cal.Rptr. 833 (Cal.App., 1st Dist., March 5, 1980); People v. Washington, 157
Cal.Rptr. 58 (Cal.App. 1979); People v. Sherren, 152 Cal.Rptr. 828 (Cal.App. 1979).
[Headnote 2]
In the present case, identification of appellant's prior felony convictions for purposes of
proving the crime charged under NRS 202.360(2) was erroneous in view of appellant's
simultaneous prosecution on the robbery charge. Cf. Nester v. State, 75 Nev. 41, 334 P.2d
524 (1959) (even where relevant, evidence of other criminal acts of accused may not be
admitted if its probative value is outweighed by its prejudicial effect). As the court said in
People v. Piper, supra, at 837, 838:
[T]he identification of [those felonies] . . . created a substantial danger that the jury
would view it as proof of a propensity to commit the violent crime with which
[appellant] was charged.
____________________
in any one of the states of the United States of America, or in any political subdivision thereof, or of a
felony in violation of the laws of the United States of America, shall own or have in his possession or
under his custody or control any pistol, revolver or other firearm capable of being concealed upon the
person.
propensity to commit the violent crime with which [appellant] was charged. The
probative value of identifying the prior [felonies] was substantially outweighed by the
danger that its admission would create prejudice. . . . [T]he court erred when it denied
[appellant's] motion that the jury not be told what the specific prior [felonies were].
Given [appellant's] proposed stipulation, the trial court could have avoided both jury
confusion and undue prejudice . . . by informing the jury that he had by stipulation
admitted that he was a previously convicted felon. Proof of the specific [felonies] could
then have been excluded on grounds of undue prejudice.
Moreover, preclusion of identification of the specific prior felonies would not have impaired
the effectiveness of the prosecutor's case. Id. See also People v. Sherren, supra.
[Headnote 3]
The court's error in admitting evidence of the prior convictions, however, does not require
reversal in this case. At the trial the victim of the robbery identified appellant as the
perpetrator of the crime. Another witness who observed the robbery from the parking lot of
the store recorded the license number of a car which was parked in the vicinity with its motor
running. Shortly thereafter police officers apprehended appellant from this vehicle and seized
a revolver which was found underneath the seat. In view of this evidence of appellant's guilt,
it is apparent that a conviction would have resulted even if the error had not been committed;
reversal is therefore not warranted. Elsbury v. State, 90 Nev. 50, 518 P.2d 599 (1974); State
v. Skaug, 63 Nev. 59, 161 P.2d 708 (1945), cert. denied, 328 U.S. 841 (1946).
2. Appellant's contention that the prosecutor made improper remarks to the jury during
closing argument is without merit. Even assuming the remarks were improper, a review of the
record does not establish that appellant was thereby prejudiced. See Williams v. State, 95
Nev. 830, 603 P.2d 694 (1979); Pickworth v. State, 95 Nev. 547, 598 P.2d 626 (1979).
Affirmed.
____________
96 Nev. 345, 345 (1980) Sheriff v. Hilliard
SHERIFF, CLARK COUNTY, NEVADA, Appellant,
v. LEON HILLIARD, Respondent.
No. 12440
April 9, 1980 608 P.2d 1111
District Court, Clark, County; Joseph S. Pavlikowski, Judge.
Defendant, under indictment for pandering, petitioned for a writ of habeas corpus
contending that the indictment was not supported by sufficient evidence because, among
other things, the incriminating testimony lacked required corroboration. The district court
granted the petition, and the prosecution appealed. The Supreme Court held that: (1) the
testimony of an undercover police officer that defendant approached her at a bar and asked
her if she would work for him as a prostitute required corroboration, and (2) where, when the
testimony of the undercover officer was eliminated, there was no inculpatory evidence which
in itself tended to connect defendant with encouraging the undercover officer to become or to
continue as a prostitute, the undercover agent's testimony was not corroborated as required by
statute.
Affirmed.
Bell, Leavitt & Green, Las Vegas, for Respondent.
1. Prostitution.
Under statute, testimony of female undercover police officer that defendant approached her at a bar and
asked her if she would work for him as a prostitute required corroboration. NRS 175.301.
2. Prostitution.
The proper standard by which to determine whether there was adequate corroboration of undercover
police officer's testimony that defendant approached her and asked her if she would work for him as a
prostitute was the same as the standard used to test corroboration of accomplice testimony. NRS
175.301.
3. Prostitution.
Under the statute which provides in relevant part that upon a trial for enticing any person for the purpose
of prostitution, defendant shall not be convicted upon the uncorroborated testimony of the person upon or
with whom the offense has allegedly been committed, corroborative evidence is sufficient if it tends to
connect the defendant with the offense and is insufficient if it merely casts grave suspicion on the
defendant. NRS 175.301.
4. Prostitution.
Where, when testimony of female undercover officer was eliminated, there was no inculpatory evidence
which in itself tended to connect defendant with encouraging the undercover officer to become or to
continue as a prostitute and since testimony by a second officer that the undercover agent engaged in
conversation with defendant was not, in itself, inculpatory, the undercover officer's testimony that
defendant approached her at a bar and asked her if she would work for him as a prostitute was not
corroborated as required by statute. NRS 175.301, 201.300.
5. Habeas Corpus.
Petitioner, under indictment for pandering, was entitled to a pretrial writ of habeas corpus where the
inculpatory testimony of female undercover officer whom petitioner allegedly approached and asked to
work for him as a prostitute was not corroborated as required by statute. NRS 175.301, 201.300.
OPINION
Per Curiam:
The Clark County Grand Jury returned an indictment charging Leon Hilliard with
pandering, a felony under NRS 201.300.
1
Hilliard subsequently petitioned the district court
for a writ of habeas corpus contending that the indictment was not supported by sufficient
evidence because, among other things, the incriminating testimony lacked required
corroboration. The district court agreed and granted the petition. This appeal followed.
Testimony upon which the indictment was based was provided by Sherry L. Richardson,
an undercover police officer. Richardson testified that Hilliard approached her at the bar of
the El Cortez Hotel and asked if she would work for him as a prostitute. In addition to
Richardson's testimony, a second police officer testified that he knew Hilliard to be a pimp,
observed Richardson's conversation with Hilliard, and arrested Hilliard upon a prearranged
signal from Richardson at the conclusion of that conversation.
[Headnotes 1-3]
Richardson's testimony required corroboration. NRS 175.301.
2
Sheriff v. Horner, 96 Nev.
312, 608 P.2d 1106 (1980); State v. Wyatt, S4 Nev. 731
____________________

1
1. Any person who:
to continue to engage in prostitution . . . is guilty of pandering.

2
Upon a trial for . . . inveigling, enticing or taking away any person for the purpose of prostitution, or
by other evidence.
State v. Wyatt, 84 Nev. 731, 448 P.2d 827 (1968). The proper standard by which to determine
whether there was adequate corroboration under NRS 175.301 is the same as the standard
used to test corroboration of accomplice testimony. Johnson v. State, 501 P.2d 762 (Alaska
1972). We have previously articulated that standard in Austin v. State, 87 Nev. 578, 491 P.2d
724 (1971). We held there that the sufficiency of corroborative evidence should be measured
after eliminating the evidence which requires corroboration. After such elimination,
corroborative evidence is sufficient if it tends to connect the defendant with the offense, and
is insufficient if it merely casts a grave suspicion upon the accused. Id.
[Headnotes 4, 5]
When the testimony of Richardson is eliminated there is no inculpatory evidence which in
itself tends to connect Hilliard with encouraging Richardson to become, or to continue as, a
prostitute. Testimony by the second officer that Richardson was engaged in conversation with
Hilliard is not, in itself, inculpatory and therefore is insufficient corroboration. See Austin v.
State, supra; Ex parte Hutchinson, 76 Nev. 478, 357 P.2d 589 (1960). Richardson's
testimony, therefore, was not corroborated as required.
Accordingly, the order of the district court granting Hilliard's pre-trial petition for writ of
habeas corpus must be affirmed.
____________
96 Nev. 347, 347 (1980) Harrison v. State
MICHAEL HARRISON, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 10579
April 9, 1980 608 P.2d 1107
he appealed. The Supreme Court, Batjer, J., held that: (1) error in admitting testimony
relating to statements made by another suspect and defendant after their arrest was harmless;
(2) no reversible error occurred in instructing jury that it may acquit if there is reasonable
doubt that defendant was one of robbers; (3) jury was properly instructed that deadly weapon
need not be produced at trial; and (4) indirect comment on defendant's failure to testify during
closing argument did not constitute reversible error.
Affirmed.
James O. Porter, Las Vegas, for Appellant.
1. Criminal Law.
If incriminating statement is heard and understood by an accused, and his response justifies an inference
that he agreed or adopted the admission, then evidence of the statement is admissible at trial.
2. Criminal Law.
An accused has a constitutional right to remain silent and avoid self-incrimination and no adverse
inference may be drawn from his silence when he is confronted with an inculpatory statement.
3. Criminal Law.
When an equivocal response is given to an incriminating statement, the statement is not admissible if the
accused does not unambiguously assent to the statement.
4. Criminal Law.
In view of overwhelming evidence of guilt, error in admitting testimony relating to statements made by
another suspect and defendant after their arrest was harmless. U.S.C.A.Const. Amend. 5.
5. Criminal Law.
When jury instructions as a whole correctly state the law, it will be assumed that the jury was not misled
by an isolated portion.
6. Criminal Law.
There was no reversible error in instructing jury that it may acquit if there was reasonable doubt that
defendant was one of robbers since instructions read as a whole properly informed jury that State had
burden of proving each element of offense beyond reasonable doubt.
7. Robbery.
Verdict of robbery with use of deadly weapon is appropriate verdict if jury finds beyond reasonable
doubt that defendant committed robbery with use of deadly weapon even if weapon is not produced at trial.
8. Criminal Law.
Circumstantial evidence is sufficient to establish corpus delicti.
9. Robbery.
Testimony of victim describing gun carried by defendant during robbery was sufficient to support
conviction for robbery with use of deadly weapon.
10. Criminal Law.
Indirect comment upon defendant's failure to testify did not constitute reversible error.
OPINION
Michael Harrison was convicted by jury of robbery with the use of a deadly weapon. On
appeal, he raises four grounds for reversal: {1) the district judge erred by admitting
testimony relating to statements made by another suspect and Harrison after their arrest;
{2) the jury instruction on identification improperly reduced the state's burden of proof;
{3) the jury instruction that the deadly weapon need not be produced at trial reduced the
state's burden of proof; and {4) the prosecutor improperly commented on Harrison's
failure to take the stand.
reversal: (1) the district judge erred by admitting testimony relating to statements made by
another suspect and Harrison after their arrest; (2) the jury instruction on identification
improperly reduced the state's burden of proof; (3) the jury instruction that the deadly weapon
need not be produced at trial reduced the state's burden of proof; and (4) the prosecutor
improperly commented on Harrison's failure to take the stand. None of the alleged errors
mandates reversal; therefore, we affirm the judgment of conviction.
Harrison was arrested on August 25, 1977, following an armed robbery of a gas station
attendant in Las Vegas. At trial, the victim identified Harrison as the man who carried the gun
during the robbery.
Shortly after police stopped the getaway car, arrested three suspects, and informed them of
their Miranda
1
rights, an officer overheard suspect Donald Atkinson say to Harrison, I told
you we shouldn't have hit that last place. Harrison responded, Shut up. Harrison argues
that the district judge erred by allowing the officer to testify about that conversation.
[Headnotes 1, 2]
If an incriminating statement is heard and understood by an accused, and his response
justifies an inference that he agreed or adopted the admission, then evidence of the statement
is admissible at trial. Maginnis v. State, 93 Nev. 173, 561 P.2d 922 (1977); NRS
51.035(3)(b). However, an accused has a constitutional right to remain silent and to avoid
self-incrimination. Therefore, no adverse inference may be drawn from his silence when he is
confronted with an inculpatory statement. The inculpatory statement and the accused's silence
are inadmissible. United States v. Yates, 524 F.2d 1282 (D.C Cir. 1975); see Vipperman v.
State, 92 Nev. 213, 547 P.2d 682 (1976).
[Headnotes 3, 4]
Similarly, when an equivocal response is given, the statement is not admissible if the
accused does not unambiguously assent to the statement, United States v. Coppola, 526 F.2d
764 (10th Cir. 1975), or the response represents a desire not to communicate incriminating
information. See generally McCormick on Evidence 161 (2d ed. 1972); cf United States v.
Johnson, 558 F.2d 1225 (5th Cir. 1977) (ban on evidence of post-arrest silence includes
ambiguous expression of desire to remain silent); State v. McCaughey, 541 P.2d 998
(Wash.App. 1975) (accused nodded head in apparent agreement, statement admissible). In
this case, Harrison's response clearly expressed his desire not to reveal incriminating
information.
____________________

1
Miranda v. Arizona, 384 U.S. 436 (1966).
desire not to reveal incriminating information. Therefore, the officer should not have been
allowed to repeat Atkinson's statement and Harrison's response in court. However, the
overwhelming evidence of guilt renders the error harmless beyond a reasonable doubt.
2
Harrington v. California, 395 U.S. 250 (1969); Chapman v. California, 386 U.S. 18 (1967);
Abram v. State, 95 Nev. 352, 594 P.2d 1143 (1979); Rhodes v. State, 91 Nev. 17, 530 P.2d
1199 (1975).
[Headnote 5]
Harrison also contends that the district judge erred by giving jury instruction 6A because it
states that the jury may acquit if there is a reasonable doubt that Harrison was one of the
robbers.
3
We agree that viewed in isolation, the challenged portion of the instruction is
erroneous because if there is a reasonable doubt concerning the identification of the accused,
then the jury must acquit him. See NRS 175.191. However, when jury instructions, as a
whole, correctly state the law, it will be assumed that the jury was not misled by any isolated
portion. State v. Peterman, 596 P.2d 442 (Idaho 1979); State v. Walker, 578 P.2d 83
(Wash.App. 1978); see also State v. Arellano, 68 Nev. 134, 227 P.2d 963 (1951).
[Headnote 6]
In this case, the jury was instructed that every element of the crime must be established
beyond a reasonable doubt and that if there is reasonable doubt about the accused's guilt, he
must be acquitted. Consequently, there was no reversible error because the instructions, read
as a whole, properly informed the jury that the state had the burden of proving each element
of the offense beyond a reasonable doubt. Kelso v. State, 95 Nev. 37, 588 P.2d 1035 (1979);
Walker, 578 P.2d at 85.
[Headnote 7]
Harrison objected to jury instruction 10A, which stated that the deadly weapon need not be
produced, because it allegedly reduced the state's burden of proof to less than proof beyond a
reasonable doubt.
4
Harrison's argument is meritless. The jurors were instructed that the
verdict of robbery with the use of a deadly weapon was the appropriate verdict if they
found beyond a reasonable doubt that Harrison committed robbery with the use of a
deadly weapon.
____________________

2
Harrison was identified by the victim as the armed robber, the fleeing car carrying the robbers was still in
sight when police began their pursuit, police saw two men run from the car after it was stopped, and police found
Harrison and Atkinson hiding within 50 yards of the car. The incriminating statement was cumulative.

3
The pertinent part of Instruction 6A states:
If, from the circumstances of the identification, you have a reasonable doubt whether defendant was the
person who committed the offense, you may acquit him.

4
Instruction 10A:
You are instructed that the State is not required to have recovered the
jurors were instructed that the verdict of robbery with the use of a deadly weapon was the
appropriate verdict if they found beyond a reasonable doubt that Harrison committed robbery
with the use of a deadly weapon. They were also instructed to return a robbery verdict if a
weapon was not used.
[Headnotes 8, 9]
It is well-settled that circumstantial evidence is sufficient to establish the corpus delicti.
State v. Gambetta, 66 Nev. 317, 208 P.2d 1059 (1949). The testimony of the victim
describing the gun carried by Harrison during the robbery was sufficient to support the
conviction. Boyles v. State, 175 N.W.2d 277 (Wis. 1970). There was no error.
[Headnote 10]
Finally, Harrison argues that, during closing argument, the prosecutor exceeded the bounds
of permissible argument by referring to Harrison's failure to take the stand.
5
There was no
objection to the remarks during closing argument, no motion for mistrial, no motion to strike,
and no request for an admonition to the jury; therefore, we need not consider Harrison's
contention unless a manifest injustice occurred. Hooper v. State, 95 Nev. 924, 604 P.2d 115
(1979). The remarks were, at worst, an indirect comment upon Harrison's failure to testify,
and thus do not constitute reversible error. See Williams v. State, 93 Nev. 405, 566 P.2d 417
(1977); Kirkland v. State, 95 Nev. 83, 590 P.2d 156 (1979).
____________________
Deadly Weapon used in an alleged crime, or to produce the Deadly Weapon in Court at trial, to establish that a
Deadly Weapon was used in the commission of the alleged crime.

5
The objectionable remarks were:
It has been my experience . . . that when the defendant has no evidence, what does he do? He attacks. . . .
But most importantly, he doesn't explain to you, he doesn't tell you the bad things about his client. What is he
doing out there? Why didn't Mr. Crockett [Harrison's attorney] explain that to you? Why is this man hiding in
the desert?
____________
96 Nev. 352, 352 (1980) Bader v. Cerri
RODNEY K. BADER, LINDA BADER, ALBERT E. DIANDA, HARRIET SUE DIANDA,
GARY D. BADER AND LETA BADER, Appellants and Cross-Respondents, v. LOUI
CERRI and ELAINE CERRI, Respondents and Cross-Appellants.
No. 11479
April 9, 1980 609 P.2d 314
Appeal from judgment entered upon special verdict of jury in favor of plaintiffs Cerri
against defendants Bader, et al. Cross-appeal by Cerri on issue of punitive damages; Second
Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Owners of ranch brought action against prospective purchasers of ranch for breach of
contract, damages, and conversion of cattle on the ranch. Prospective purchasers denied
liability and counterclaimed for damages. The district court entered judgment upon special
jury verdict finding that prospective purchasers had repudiated the agreement, that
prospective purchasers had converted ranch owners' cattle to owners' damage in sum of
$18,270, and that ranch owners had been unjustly enriched at expense of prospective
purchasers by $6,977. Prospective purchasers appealed and ranch owners cross-appealed. The
Supreme Court, Thompson, J., held that: (1) it was permissible for jury to find that
conversion occurred when prospective purchasers, who had moved onto ranch and who had
put their brand on ranch owners' cattle, refused to release their brand on cattle after land deal
failed to be consummated; (2) award of $18,270 for conversion of ranch owners' cattle was
proper as representing loss of owners' profits on sale of cattle which would have occurred but
for the conversion of cattle by prospective purchasers; and (3) it was permissible for trial
judge to conclude that evidence of malice on part of prospective purchasers and converters of
cattle was not received and that the jury should not, therefore be allowed to consider question
of punitive damages.
Appeal: Affirmed.
Cross-Appeal: Dismissed.
Hill, Cassas, deLipkau & Erwin, of Reno, for Appellants and Cross-Respondents.
James Shields Beasley, of Reno, for Respondents and Cross-Appellants.
96 Nev. 352, 353 (1980) Bader v. Cerri
1. Trover and Conversion.
Measure of damages is not part of definition of conversion.
Full value of property converted is not the sole measure of damages for conversion.
Full value of property at time of its conversion is appropriate measure of damages for conversion when
converter keeps possession of the property.
Full value of property at time of its conversion is not appropriate measure of damages when property is
returned by converter to injured property.
A conversion occurs whenever there is serious interference to a party's rights in his property.
When conversion occurs, injured party should receive full compensation for his actual losses.
Return of property converted does not nullify conversion.
Return of property converted serves to mitigate damages for such conversion.
In action to recover for conversion of cattle, it was permissible for jury to find that conversion occurred
when prospective purchasers, who had intended to purchase ranch, who had moved onto the ranch and who
had put their brand on ranch owners' cattle, refused to release their brand on cattle after sale failed to be
consummated.
Conversion exists where one exerts wrongful dominion over another's personal property or wrongful
interference with owner's dominion.
Act constituting conversion must be an intentional act, but it does not require wrongful intent and is not
excused by care, good faith, or lack of knowledge.
Conversion does not require a manual taking.
In action to recover for conversion of cattle, award of $18,270 for conversion of ranch owners' cattle was
proper as representing loss of owners' profits on sale of cattle which would have occurred but for
conversion of cattle by prospective purchasers of ranch, who put their brand on cattle and refused to release
brand until ranch owners posted $100,000 bond representing prospective purchasers' deposit on land sale
which was never consummated, even though owners' ranch operation had not been profitable for two years
preceding conversion.
14. Damages.
If there is evidence that damage resulted from defendant's wrongful act and reasonable method for
ascertaining extent of damage is offered through testimony, fact that some uncertainty exists as to actual
amount of damage sustained does not preclude recovery; it is sufficient if evidence
adduced will permit jury to make fair and reasonable approximation.
96 Nev. 352, 354 (1980) Bader v. Cerri
of damage sustained does not preclude recovery; it is sufficient if evidence adduced will permit jury to
make fair and reasonable approximation.
15. Vendor and Purchaser.
In action for breach of real estate contract, evidence supported jury finding that prospective purchasers
repudiated contract to buy ranch.
16. Damages.
A plaintiff is never entitled to punitive damages as matter of right.
17. Damages.
Punitive damages are not to compensate an injured person for loss sustained, but to punish defendant for
his conduct.
18. Damages.
Term malice for purposes of statute allowing punitive damages where defendant has been guilty of
oppression, fraud, or malice, express or implied, in action not arising from contract means malice in fact
and denotes ill will, or desire to do harm for mere satisfaction of doing it, and contemplates willful and
intentional conduct done in reckless disregard of possible results. NRS 42.010.
In action to recover for breach of real estate contract and conversion of cattle, it was permissible for trial
judge to conclude that evidence of malice on part of prospective purchasers and converters of cattle was
not received and that jury should not, therefore be allowed to consider question of punitive damages. NRS
42.010.
OPINION
On February 28, 1975, Loui and Elaine Cerri, hereinafter Cerri, by written document,
agreed to sell, and Rodney K. Bader, Linda Bader, Albert E. Dianda, Harriet Sue Dianda,
Gary D. Bader and Leta Bader, hereinafter Bader, agreed to purchase the Cerri Ranch in
Paradise Valley, Humboldt County, Nevada. The purchase price therefor was $1,125,000
which contemplated the transfer of the real estate, grazing permits, cattle, and ranch
machinery and equipment. The sale was never consummated. This action for breach of
contract and damages was commenced by Cerri. Later, their complaint was amended to add a
claim for damages for conversion of the cattle on the ranch. Bader denied liability and
counterclaimed for damages.
Following the presentation of evidence and argument of counsel, the jury returned a
special verdict upon which judgment subsequently was entered. That special verdict found
that Cerri had tendered performance of their obligations under the agreement, but that
performance by Cerri was excused by Bader's repudiation of the agreement. The special
verdict found that the contract price for the ranch, $1,125,000, exceeded the fair market
value thereof by $13S,425 and that Cerri should recover the latter sum as their "benefit of
the bargain."
96 Nev. 352, 355 (1980) Bader v. Cerri
found that the contract price for the ranch, $1,125,000, exceeded the fair market value thereof
by $138,425 and that Cerri should recover the latter sum as their benefit of the bargain.
Additionally, the jury, by special verdict, found that Bader had converted Cerri's cattle to
Cerri's further damage in the sum of $18,270. Finally, and with regard to the counter-claim,
the jury found that Cerri had been unjustly enriched at the expense of Bader by $6,977. This
appeal by Bader followed. Cerri, by cross-appeal, contends that the district court erred when
it refused to instruct the jury regarding punitive damages.
The agreement for the sale and purchase of the Cerri ranch required Bader to deposit
$100,000 in escrow by March 5, 1975, and an additional $100,000 before the close of escrow
scheduled for May 27, 1975. Thereafter, Bader was to pay $185,000 by January 1, 1976. The
balance of the purchase price ($740,000) was to be paid by Bader assuming liability for an
existing Federal Land Bank loan on the Cerri ranch in the amount of $150,000, by conveying
their equity in a Sparks residence valued at $90,000, and by transferring timber in Idaho to
Cerri, such timber having the estimated value of $500,000.
The initial $100,000 payment was made. Cerri was allowed to withdraw that sum prior to
closing, and Cerri allowed Bader to move onto the ranch and place the Bader brand on the
cattle prior to closing. Escrow did not close on May 27. The parties, however, continued to
treat the agreement as in effect.
Problems arose following Cerri's visit to Idaho to inspect the timber. The agreement
provided that if the timber was not worth its asserted value, $500,000, at the time of harvest,
Bader would pay Cerri the difference in cash. Cerri was told while in Idaho that the timber
was not worth $500,000 and became concerned about this aspect of the agreement. Their
concern was voiced to Bader who, in turn, expressed their doubts as to the cattle carrying
capacity of the Cerri Ranch. Subsequent discussions and negotiations accomplished nothing.
Cerri commenced this action for breach of contract and moved back onto the ranch, and
attempted to move their cattle. Bader, however, refused to abandon their brand until Cerri
returned the $100,000 initially placed in escrow. Since Cerri could not sell or pledge the
cattle without such a brand release, Cerri posted a $100,000 bond in Bader's favor to secure
the release of the cattle, following which Cerri amended their complaint to include a cause of
action for conversion.
1. The first assigned error concerns the damage award of $18,270 for the conversion of
cattle. In the trial court Cerri contended that Bader's refusal to release their brand for the
period July 1975 to about April 1976 was a conversion of the cattle, and that all damage
sustained as a consequence thereof was recoverable.
96 Nev. 352, 356 (1980) Bader v. Cerri
contended that Bader's refusal to release their brand for the period July 1975 to about April
1976 was a conversion of the cattle, and that all damage sustained as a consequence thereof
was recoverable. Bader argued below and now before this court that the refusal to release
their brand for the stated period of time was at most a trespass to chattels and not a
conversion. He therefore asserts that the jury should not gave been instructed regarding
conversion and that the instruction given was incorrect.
Bader's argument is based primarily upon the definition of conversion found in the
Restatement (Second) of Torts 222A. Conversion is there defined as an intentional
exercise of dominion or control over a chattel which so seriously interferes with the right of
another to control it that the actor may justly be required to pay the other the full value of the
chattel.
Using that definition as a premise, Bader argues that since the measure of damages is a
part of the definition of conversion, and since Cerri did not seek to recover the full value of
the cattle, there was no conversion and the jury should not have been instructed on that
theory.
[Headnotes 1-4]
We reject that argument. Nevada case law does not suggest that the measure of damages is
a part of the definition of conversion. Neither does Nevada case law declare the full value of
the property converted to be the sole measure of damages. Of course, the full value of the
property at the time of conversion may be one measure of the damage sustained. Dixon v.
Southern Pacific Co., 42 Nev. 73, 172 P. 368, 177 P. 14 (1918). This measure is appropriate
when the defendant keeps possession of the property he has converted. This measure of
damage, however, is not appropriate when the property is returned by the converter to the
injured party. That is what happened in the case at hand.
[Headnotes 5-8]
A conversion occurs whenever there is a serious interference to a party's rights in his
property. Wantz v. Redfield, 74 Nev. 196, 326 P.2d 413 (1958). When this happens the
injured party should receive full compensation for his actual losses. Boylan v. Huguet, 8 Nev.
345 (1873). The return of the property converted does not nullify the conversion. Such return
does serve to mitigate damages. Winkler v. Hartford Acc. and Indem. Co., 168 A.2d 418 (N.J.
1961).
[Headnotes 9-12]
We conclude that it was permissible for the jury to find that a conversion occurred when
Bader refused to release their brand and that the jury instruction quoted in the footnote
below was correct.1
96 Nev. 352, 357 (1980) Bader v. Cerri
and that the jury instruction quoted in the footnote below was correct.
1

[Headnote 13]
2. Next, it is asserted that the award of $18,270 for conversion of the cattle must be
annulled since it represents a loss of profits on the sale of cattle which have occurred but for
the conversion, and is speculative and uncertain.
At trial, Cerri urged that Bader's refusal to release the brand on the cattle precluded Cerri
from selling or pledging them for almost one year. Thus, they were required to bear additional
expense in feeding cattle they would have otherwise sold, and were precluded from pledging
those cattle as security for a loan to purchase additional cattle to continue their cow-calf
operation. This inability to obtain financing resulted in a loss of profits on the future sale of
those additional cattle.
The testimony of Cerri was that but for the conversion he would have purchased 300 pairs
(300 cows and 300 calves) for $105,000. By September 1976, each calf would have weighed
about 600 pounds. He estimated that ten percent would be lost leaving 270 calves to be sold
at a market price of 32 cents per pound for a total of $50,840. After deducting expenses (feed,
veterinary care, BLM and U.S. Forest Service permits, etc.), a profit of $28,144 would have
been realized.
[Headnote 14]
The rule against the recovery of uncertain damages generally is directed against
uncertainty as to the existence or cause of damage rather than to measure or extent. Fireman's
Fund Ins. Co. v. Shawcross, 84 Nev. 446, 442 P.2d 907 (1968); Knier v. Azores Constr. Co.,
78 Nev. 20, 368 P.2d 673 (1962). However, if there is evidence that damage resulted from the
defendant's wrongful act and a reasonable method for ascertaining the extent of damage is
offered through testimony, the fact that some uncertainty exists as to the actual amount of
damage sustained, does not preclude recovery. Brown v. Lindsay, 68 Nev. 196, 228 P.2d 262
(1951). It is sufficient if the evidence adduced will permit the jury to make a fair and
reasonable approximation. Frank Bond & Son, Inc. v. Reserve Minerals Corp., 335 P.2d 858
(N.M. 1959).
____________________

1
Conversion exists where one exerts wrongful dominion over another's personal property or wrongful
interference with the owner's dominion. The act constituting conversion must be an intentional act, but it does
not require wrongful intent and is not excused by care, good faith, or lack of knowledge. Conversion does not
require a manual taking. Where one makes an unjustified claim of title to personal property or asserts an
unfounded lien to said property which causes actual interference with the owner's rights of possession, a
conversion exists.
96 Nev. 352, 358 (1980) Bader v. Cerri
The Cerri Ranch consists of about 2346 deeded acres with appurtenant BLM permits and
is a typical cow-calf operation. It should carry 1000 head of cattle on a 12-month basis. It
would appear reasonable for its owners, Cerri, to estimate their loss resulting from the
conversion in the manner heretofore related. The jury award was well within their estimate of
damage.
3. For two years preceding the conversion, the Cerri Ranch operation had not been
profitable. In Knier v. Azores Constr. Co., 78 Nev. 20, 368 P.2d 673 (1962), we held that 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. El Ranco, Inc. v. First
National Bank of Nevada, 406 F.2d 1205 (9th Cir. 1968). Such evidence was received in the
case at hand. It was not present in Knier.
[Headnote 15]
4. We reject out-of-hand the claim that the evidence introduced would not allow the jury
to find that Bader repudiated the contract. Our review of the record reveals evidence
supportive of the jury finding. Moreover, we summarily deny the contentions that error
occurred when the court failed to instruct regarding loss of income and defining proximately
caused damage. Such instructions were not requested. Consequently, we shall not now
entertain the complaint that they were not given. City of Reno v. Silver State Flying Serv., 84
Nev. 170, 438 P.2d 257 (1968).
5. The trial court refused to instruct the jury with respect to punitive damages. Cerri, who
won the case and was awarded substantial compensatory damages, asks that we affirm the
judgment in all respects, but also that we remand the cause for the limited purpose of
allowing a jury to determine punitive damages. Of course, the jury has been discharged and
could not perform the assignment.
[Headnotes 16, 17]
In any event, we dismiss the cross-appeal. A plaintiff is never entitled to punitive damages
as a matter of right. Nevada Cement Co. v. Lemler, 89 Nev. 447, 514 P.2d 1180 (1973). The
concept of punitive damages rests upon a presumed public policy to punish the wrongdoer for
his act and to deter others from acting in similar fashion. Midwest Supply, Inc. v. Waters, 89
Nev. 210, 510 P.2d S76 {1973); Miller v.
96 Nev. 352, 359 (1980) Bader v. Cerri
Nev. 210, 510 P.2d 876 (1973); Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962). In
short, punitive damages are not to compensate an injured person for the loss sustained, but to
punish a defendant for his conduct. Allen v. Anderson, 93 Nev. 204, 562 P.2d 487 (1977).
NRS 42.010 allows punitive damages where a defendant has been guilty of oppression,
fraud or malice, express or implied, in an action not arising from contract. Cerri contends that
Bader's refusal to release the brand was malicious.
[Headnotes 18, 19]
The term malice as used in the statute means malice in fact and denotes ill will, or a desire
to do harm for the mere satisfaction of doing it. Nevada Credit Rating Bur. v. Williams, 88
Nev. 601, 503 P.2d 9 (1972). It contemplates willful and intentional conduct done in reckless
disregard of possible results. Nevada Cement Co. v. Lemler, supra. It was permissible for the
trial judge to conclude that evidence of that character was not received and that the jury
should not, therefore, be allowed to consider the question of punitive damages. Village
Development Co. v. Filice, 90 Nev. 305, 526 P.2d 83 (1974).
Affirmed. Cross-appeal dismissed.
____________
96 Nev. 359, 359 (1980) Daly v. Del E. Webb Corp.
RICHARD L. DALY, MAE ELLEN GEORGE and PETER J. WEBBE, Appellants, v. DEL
E. WEBB CORPORATION, an Arizona Corporation, Respondent.
No. 11490
April 9, 1980 609 P.2d 319
Appeal from summary judgment; Eighth Judicial District Court, Clark County, James A.
Brennan, Judge.
An action was brought to recover upon an unconditional written guaranty for the payment
of a promissory note. The district court rendered summary judgment for plaintiff, and
defendants appealed. The Supreme Court, Thompson, J., held that: (1) the deposition
testimony of one defendant, tendered to change the guaranty from an unconditional obligation
to a conditional one, was inadmissible by reason of the parol evidence rule, and (2) the Child
exception to the parol evidence rule was inapplicable.
Affirmed.
Jones, Jones, Bell, Close & Brown, and Roy E. Smith, of Las Vegas, for Appellants.
Lionel Sawyer & Collins, of Las Vegas, for Respondent.
1. Guaranty.
A guaranty is the undertaking to pay the debt at maturity if the principal does not pay.
2. Evidence.
Parol evidence rule forbids reception of evidence which would vary or contradict the contract, since all
prior negotiations and agreements are deemed to have been merged therein.
3. Evidence.
In action to recover upon an unconditional written guaranty for the payment of a promissory note, the
deposition testimony of one defendant, tendered to change the guaranty from an unconditional obligation to
a conditional one, was inadmissible by reason of the parol evidence rule.
4. Evidence.
Child exception to the parol evidence rule, which exception allows the reception of parol evidence which
does not contradict the written instrument but which refers to the very existence of the contract and tends to
show that no valid and effective contract ever existed, was inapplicable to the instant suit brought to
recover upon an unconditional written guaranty for the payment of a promissory note, since the tendered
oral evidence of defendant purported to contradict the written guaranty by changing an unconditional
obligation to a conditional one.
OPINION
This appeal is from summary judgment for Del E. Webb Corporation in an action
commenced by that corporation to recover upon an unconditional written guaranty for the
payment of a promissory note.
On March 4, 1977, Aladdin Hotel Corporation executed a promissory note in favor of Del
E. Webb Corporation in the amount of $1,000,000 to secure an extension of time to remedy a
default on one of two prior notes.
Daly, George and Webbe, who were officers, directors and shareholders of Aladdin,
concurrently gave their personal guaranty of the note. The note and guaranty were given
pursuant to a written agreement between Aladdin and Webb under which two prior notes
given by Aladdin in the sum of $1,250,000 were cancelled and the new $1,000,000 note
issued. The two prior notes had been issued to Webb for the construction of two separate
projects at the Aladdin Hotel. After default on one of the notes had occurred and following
negotiations, the March 4, 1977, agreement was made.
Aladdin failed to make the final payment of $150,000 on the $1,000,000 note, which final
payment was due in December 1977. When Daly, George and Webbe did not honor their
guaranty, this action was commenced.
The guaranty given by Daly, George and Webbe was unconditional. They unconditionally
guaranteed payment in full. Moreover, they agreed to waive any defense that Aladdin might
have to payment. Notwithstanding the unconditional nature of the guaranty, the guarantors
assert that enforcement is barred by reason of an oral condition precedent, namely, that the
guaranty would not take effect until certain roof repairs at the Aladdin Hotel were made. The
oral agreement is asserted to have been established through the deposition testimony of one of
the guarantors, Richard Daly, offered in opposition to the motion for summary judgment.
That illusory testimony is quoted in the footnote below.
1
We do not now decide whether
such testimony, if admissible, inferentially could establish an agreement between Del E.
Webb Corporation and the guarantors to repair the Aladdin roof, and that such repair was a
condition precedent to the effectiveness of the guaranty, thus precluding summary judgment.
For reasons hereafter stated, we believe the deposition testimony of Daly inadmissible by
reason of the parol evidence rule. Consequently, the record does not reveal the existence of a
genuine issue of material fact, and we must, therefore, affirm the summary judgment entered
below.
[Headnotes 1-3]
1. A guaranty is the undertaking to pay the debt at maturity if the principal does not pay.
Randano v. Turk, 86 Nev. 123, 466 P.2d 218 (1970). The guaranty in the case at hand was, by
its very terms, unconditional. The parol evidence rule forbids the reception of evidence which
would vary or contradict the contract, since all prior negotiations and agreements are deemed
to have been merged therein. Schieve v. Warren, 87 Nev. 42, 482 P.2d 303 (1971); Tallman
v. First National Bank, 66 Nev. 248, 208 P.2d 302 (1949). It is apparent that the deposition
testimony of Daly was tendered to change the guaranty from an unconditional obligation to a
conditional one. Many years ago, we stated in Gage v. Phillips, 21 Nev. 150 (1891):
When parties reduce their contract to writing, all oral negotiations and agreements are
merged in the writing, and the instrument must be treated as containing the whole
contract, and parol proof is not admissible to alter its terms, or to show that, instead
of being absolute, as it purports to be, it was in reality conditional. . . . Id. 153.
____________________

1
Daly: The time this was negotiated we were talking about the money we owed them, and we were talking
about the problems and Dick Hynne and Mr. Komer from Del Webb assured us that they would take care of all
these leaks, that would be done, and we by the notes assured Del Webb that we would pay them the money that
we owed them.
and the instrument must be treated as containing the whole contract, and parol proof is
not admissible to alter its terms, or to show that, instead of being absolute, as it purports
to be, it was in reality conditional. . . . Id. 153.
It is thus apparent that the proffered Daly evidence is inadmissible unless it falls within an
exception to the parol evidence rule.
[Headnote 4]
2. Our decision in Child v. Miller, 74 Nev. 223, 327 P.2d 342 (1958), allowed the
reception of evidence which did not contradict the written instrument, but which referred to
the very existence of the contract and tended to show that no valid and effective contract ever
existed. The guarantors here argue that Child controls and that the Daly evidence is
admissible.
In our view, the exception to the parol evidence rule recognized in Child has no
application to the case before us. In Child there was no inconsistency or contradiction
between the parol promise and the written release there in question. The oral promise
concerned the effective date of the release, but did not purport to alter or vary its terms in any
way. In such circumstances, the oral promise may be operative since the writing is not
inconsistent. Restatement of Contracts 241 (1932). In the case at hand, the tendered oral
evidence of Daly purports to contradict the written guaranty by changing an unconditional
obligation to a conditional one. This, the parol evidence rule forbids. The doctrine of Child
clearly is inapposite.
3. Other appellate contentions have been considered and are without merit.
Affirmed.
____________
96 Nev. 363, 363 (1980) Nelson v. State
GARY ALLEN NELSON, Appellant, v. THE STATE
No. 10778
April 9, 1980 609 P.2d 717
James J. Guinan, Judge.
Defendant was convicted in the district court of burglary and grand larceny, and he
appealed. The Supreme Court, Mowbray, C. J., held that where sole reason that child, whom
police believed to be in suspect's apartment, was unattended was that police, without warrant
and without probable cause, had just arrested the suspect herself, the police could not, by such
conduct, created emergency situation allegedly warranting, under their statutory duty to
protect unattended children, their warrantless entry into the suspect's apartment, and thus
search of apartment and seizure of evidence was constitutionally impermissible.
Richard Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney,
and Edwin T. Basl, Deputy District Attorney, Washoe County, for Respondent.
State has burden of demonstrating that warrantless seizure of evidence was constitutionally reasonable.
Searches conducted outside judicial process, without prior approval by magistrate or judge, are per se
unreasonable, subject only to specifically established and well-delineated exceptions. Const. art. 1,
18; U.S.C.A.Const. Amend. 4.
Where police officers' statutory duty to protect unattended children is asserted as exception to citizens'
constitutional right to be secure in their homes and to be free from unreasonable searches and seizures, the
constitutionally guaranteed right to privacy must prevail in absence of showing by state of imminent and
substantial threat to life, health, or property. NRS 200.501; Const. art. 1, 18; U.S.C.A.Const.
Amend. 4.
Where sole reason that child, whom police believed to be in suspect's apartment, was unattended was that
police, without warrant and without probable cause, had just arrested the suspect herself, the police could
not, by such conduct, create emergency situation allegedly warranting, under their
statutory duty to protect unattended children, their warrantless entry into the
suspect's apartment, and thus search of apartment and seizure of evidence was
constitutionally impermissible.
by such conduct, create emergency situation allegedly warranting, under their statutory duty to protect
unattended children, their warrantless entry into the suspect's apartment, and thus search of apartment and
seizure of evidence was constitutionally impermissible. NRS 200.501; Const. art. 1, 18;
OPINION
A jury found Gary Allen Nelson guilty of burglary and grand larceny. He seeks reversal,
contending, among other things, that the State's case was substantially based upon the fruits
of a constitutionally impermissible search and seizure. We agree.
Nelson was charged, by information, with burglary and grand larceny. Nelson's pretrial
motion to suppress evidence, discovered as a result of police officers' warrantless intrusion
into the apartment of Jackie Rebori, aka Laura Goldberger, was denied by the district court
with leave to renew the motion at trial. See NRS 179.085(1) and (3). At trial, the court denied
the renewed motion, concluding that Nelson had standing to suppress the challenging
evidence, that Rebori had not consented to the officers' entry into her apartment, and that the
warrantless intrusion and subsequent search were justified under the emergency doctrine:
the police had reasonably believed that an unattended, three year old child was inside the
apartment in question. The sole issue before this Court is the propriety of this last conclusion.
1
The relevant facts follow.
On July 29, 1977, Reno police officers were summoned to a Weisfield's Jewelers where
they observed a broken display window, two watches lying on the ground, and a trail of blood
leading to the parking lot. The police were informed that a quantity of watches, valued at
$1,250, was missing. Upon receiving a radio report of a man seeking medical attention for a
lacerated hand at the Washoe Medical Center emergency room, the police set out to
investigate.
At the hospital, the police spoke with Nelson, the individual with the lacerated hand, and
with his companion, Jackie Rebori. Nelson told the officers that he had cut his hand on a
broken vase at Rebori's apartment following a heated argument. The police then advised the
pair of their rights, and asked to see the broken vase. After Nelson, Rebori, and the police met
outside Rebori's apartment, Rebori denied the police permission to search her home, stating
that her three year old child would be frightened by the police.
____________________

1
The State does not contest the validity of the court's first two conclusions.
police permission to search her home, stating that her three year old child would be frightened
by the police. Rebori stated that the pieces of the vase had been collected and thrown away.
The officers then asked Rebori to show them the garbage bin containing the vase's remnants.
She responded that she was unable to do so because a friend had done the actual cleaning.
Again, Rebori refused to allow the police to search her home. Because of this refusal to
consent to a warrantless search, Officer Quest arrested Nelson and Rebori for suspicion of
burglary.
[Headnote 1]
Quest then searched through Rebori's purse and coat pockets until he located the keys to
her apartment. Using these keys, Officer Torres and Sergeant Walsh entered the apartment
without knocking or announcing their lawful authority and purpose.
2
Torres walked straight
through the apartment to the bedroom, discovered the three year old child and a sleeping
male subject, and left to inform his fellow officers that the child was not in any danger. At
some time, not apparent from the record before us, Walsh discovered various watches and
boxes in the kitchen.
3
The police, utilizing this information, obtained a search warrant to
seize the watches which they, in effect, had already seized.
At trial, the State made use of the evidence discovered at the Rebori apartment, its
derivative fruits, and the testimony adduced at the suppression hearing. The jury found
Nelson guilty of burglary and grand larceny. This appeal, focusing on the reasonableness of
the warrantless entry into the Rebori apartment, followed.
[Headnote 2]
At the outset, we emphasize the cardinal principle of search and seizure law: searches
conducted outside the judicial process, without prior approval by magistrate or judge, are per
se unreasonableunder both the Nevada and United States constitutionssubject only to
specifically established and well-delineated exceptions. State v. Hardin, 90 Nev. 10, 13,
518 P.2d 151, 153 {1974), quoting Katz v. United States, 3S9 U.S. 347, 357 {1967); see
Nev. Const., art.
____________________

2
Because of our disposition here, we need not decide whether the officers' failure to comply with Nevada's
knock/notice requirements, see NRS 179.055, rendered the ensuing entry and search unlawful.

3
Though Sgt. Walsh did not testify below, we note that the State does have the burden of demonstrating that
Walsh's warrantless seizure of the watches was constitutionally reasonable. Because we find the entry itself to be
unreasonable, we do not decide whether the observations of other officers may be imputed to Walsh. Compare
Schmitt v. State, 88 Nev. 320, 326 n. 5, 497 P.2d 891, 894-95 n.5 (1972) with Mears v. State, 83 Nev. 3, 11-12,
422 P.2d 230, 235 (1967).
P.2d 151, 153 (1974), quoting Katz v. United States, 389 U.S. 347, 357 (1967); see Nev.
Const., art. 1, sec. 18; U.S. Const., amend. IV. The State suggests, and the district court
concluded, that the emergency exception is applicable to the instant case: the warrantless
entry into the Rebori apartment was justified by the police officers' belief that an unattended,
three year old child was in the apartment, see Banks v. State, 94 Nev. 90, 575 P.2d 592
(1978); Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975). We simply cannot agree.
[Headnote 3]
It is true beyond cavil that police officers of this state are charged with a duty to protect
unattended children. NRS 200.501. However, when that duty is asserted as an exception to
our citizens' constitutional right to be secure in their homes, to be free from unreasonable
searches and seizures, then this Court, on review, must be careful not to permit the exception
to swallow the rule: in the absence of a showing, by the State, of a true necessitythat is, an
imminent and substantial threat to life, health, or propertythe constitutionally guaranteed
right to privacy must prevail. People v. Smith, 496 P.2d 1261, 1263 (Cal. 1972).
[Headnote 4]
In the instant case, the State has not demonstrated that a true emergency situation existed.
The sole reason that the child whom the police believed to be in Rebori's apartment was
unattended was that the police, without a warrant and without probable cause, had just
arrested Rebori herself. The police may not, by such conduct, create the emergency situation
which they advance as the predicate for their warrantless entry.
While the police may well have had reason to suspect Rebori, and, thus, reason to continue
their investigation of her, see NRS 171.123, they did not have probable cause to arrest her,
see NRS 171.1231; NRS 171.124; see generally Henry v. United States, 361 U.S. 98, 104
(1959). Indeed, the arresting officer testified that he arrested Rebori for suspicion of
burglary simply because she would not consent to a warrantless search of her home. A
citizen's assertion of her constitutional rights may not be deemed tantamount to a reasonable
belief that she had committed a felony. Nor can we say that probable cause may be based
upon mere suspicion, see People v. Saars, 584 P.2d 622 (Colo. 1978). The arresting officers
were not aware of facts and circumstances which would warrant a reasonably prudent person
to believe that Rebori had committed a felony. NRS 171.124; see Whitley v. State, 79 Nev.
406, 386 P.2d 93 (1963).
In sum, the State has not demonstrated that the warrantless intrusion into the Rebori
apartment falls within one of the well-established exceptions to the warrant requirement.
We conclude, therefore, that the district court erred in denying appellant's motion to suppress
the evidence and derivative fruits resulting from the warrantless search of the Rebori
apartment. Since the State made substantial use of the improperly admitted evidence, we
cannot say that any error was harmless beyond a reasonable doubt. See Chapman v.
California, 386 U.S. 18, 24 (1967).
Accordingly, we reverse the district court's judgment of conviction and remand the cause
for proceedings not inconsistent with this opinion. Because of our holding, we do not reach
appellant's other contentions concerning the permissible scope and use of cross-examination
at a suppression hearing.
____________
96 Nev. 367, 367 (1980) Wilkins v. State
THOMAS MARSHALL WILKINS, Appellant, v. THE
No. 11628
April 9, 1980 609 P.2d 309
Appeal from judgment of conviction. First Judicial District Court, Douglas County;
Stanley A. Smart, Judge.
Defendant was convicted on a jury verdict before the district court of second degree
murder, and he appealed. The Supreme Court, Mowbray, C. J., held that: (1) irregularity in
the selection of jurors was harmless error; (2) defendant waived consideration of admissibility
of his inculpatory statements; (3) Allen charge to the jury was not unduly coercive; and (4)
evidence was sufficient to sustain conviction.
Affirmed.
Sinai, Ohlson, Schroeder, Specchio & Albright,
1
Reno, for Appellant.
Richard Bryan, Attorney General, Carson City; Michael S. Rowe, District Attorney,
Douglas County; William J. Crowell, Jr., Special Prosecutor, Carson City, for Respondent.
____________________

1
Other counsel represented appellant in the proceedings below.
1. Criminal Law.
Absent showing of systematic class-based exclusion of prospective jurors or showing of prejudice,
method of choosing final jury panel, which consisted of four jurors whose last names began with letters A
through H who had been summoned on first day, one juror who had been called on second day from
remainder of venire, and seven jurors plus two alternates, who had been selected from full venire, although
irregular, was harmless error.
2. Criminal Law.
Defendant who did not object to admission of his statements to law enforcement officer, did not move to
suppress them either before trial or during the trial, did not request voluntariness hearing or that jury be
instructed on voluntariness issue, and was provided with copies of all of his alleged admissions prior to
trial, waived his right to challenge admission of such statements on appeal. NRS 174.125, subds. 1, 3(a),
(b); U.S.C.A.Const. Amends. 5, 6.
3. Criminal Law.
Failure to follow statutory procedures for challenging admissibility of evidence, as well as failure to raise
proper objection below, will preclude appellate review of disputed evidence. NRS 174.125, subds. 1,
3(a), (b).
4. Criminal Law.
While Supreme Court may at times review questions of constitutional dimension even in absence of
proper objection, it will not do so unless record is developed sufficiently both to demonstrate that
fundamental rights are in fact implicated and to provide adequate basis for review.
5. Criminal Law.
Trial court is not obligated to conduct Jackson v. Denno hearing on its own motion; rather, onus is on
defendant to challenge voluntariness of his admissions or confessions and to request appropriate hearing.
6. Criminal Law.
Defendant's failure to request voluntariness hearing in connection with statements made to law
enforcement officer precluded appellate consideration of the matter.
7. Criminal Law.
Failure to object to giving of Allen instruction will ordinarily preclude appellate review.
8. Criminal Law.
Where Allen charge informed the jury that each member had duty to adhere conscientiously to his or her
own honest opinion, and avoided creating impression that there was anything improper, questionable, or
contrary to good conscience for juror to create mistrial, and where defendant's counsel adamantly insisted
that the instruction be given, such charge was not unduly coercive to jury, which deliberated additional six
hours following the charge.
9. Criminal Law.
Approved version of Allen instruction specified.
10. Criminal Law.
In reviewing evidence supporting jury's verdict, question is not whether Supreme Court is convinced of
defendant's guilt beyond a reasonable doubt, but whether jury, acting reasonably, could have been
convinced to that certitude by evidence it had right to consider.
11. Criminal Law.
Jury may reasonably rely upon circumstantial evidence; to conclude otherwise would mean that a
criminal could commit a secret murder, destroy the body of the victim, and escape
punishment despite convincing circumstantial evidence against him or her.
otherwise would mean that a criminal could commit a secret murder, destroy the body of the victim, and
escape punishment despite convincing circumstantial evidence against him or her.
12. Homicide.
Evidence, including manner in which victim's body was buried, custody struggle between defendant and
the victim, fights that had previously transpired, and defendant's dislike of his wife and conflicting
statements concerning her whereabouts, supported jury's verdict that defendant had intentionally killed
victim but without premeditation and deliberation, so as to support conviction for second degree murder.
NRS 200.010, 200.020, 200.030, subds. 1(a), 2.
OPINION
Thomas Marshall Wilkins was convicted by a jury of the second degree murder of his
wife, Jo Aline Wilkins. Wilkins appeals, raising twelve claims of error. We find no error, and
affirm. Since many of appellant's objections have either been waived or are devoid of merit,
we choose to discuss only four of those issues: (1) the juror selection process; (2) the
admission of appellant's inculpatory statements; (3) the Allen charge to the jury; and (4) the
sufficiency of the evidence.
THE FACTS
In November, 1976, a bottle hunter discovered the badly decomposed remains of a body,
wrapped in a plastic sack, in a makeshift grave located in a remote area southeast of
Gardnerville. The body was identified, through a comparison of dental records, as that of Jo
Aline Wilkins, appellant's wife. Jo had been missing since April 30, 1975. Because of the
body's advanced state of decomposition, the cause of death could not be ascertained with
certainty. Asphyxiation, however, was stated as the most probable cause. Medical records
indicated that, prior to her disappearance, Jo had been in excellent health. The body was
discovered in an area frequented by appellant during his fishing trips.
One day prior to her disappearance, Jo had told a friend that she was going on a camping
trip with her husband on the following day. Jo had stated as well that, after the trip, she
planned to leave her husband, take her children by car to New Mexico, and start divorce
proceedings. One day earlier, appellant confided to another person that he would foil his
wife's expectations by secretly departing with the children.
After Jo's disappearance, appellant told the police that, following a heated argument, Jo
had decided to hitchhike to her parents' home in New Mexico, leaving the children in his
care. Appellant later stated that Jo might have taken a bus to New Mexico, explaining that her
car was inoperable. Various records indicated that Jo's car had been recently repaired.
The day after Jo's disappearance, appellant moved to Oregon. A search of appellant's
Oregon residence, after the discovery of Jo's body, revealed that appellant was in possession
of most of her jewelry and personal possessions. In addition, appellant had forged his wife's
name on her last paycheck, which he had cashed.
Other evidence at trial indicated that appellant and his wife had been involved in a major
struggle over the custody of their children. There was testimony that Jo would not give up the
children. Testimony indicated that appellant had been beating Jo, and that she was afraid that
her husband might kill her. In addition, appellant had expressed his dislike of his wife to
various people.
At trial, a police officer testified that, upon informing appellant that Jo had been found,
appellant had spontaneously replied that he did not kill her. According to the officer's
testimony, appellant had not yet been informed that Jo was dead.
The case, predicated to a large extent on circumstantial evidence, was tried to a jury. After
fifteen hours of deliberation, over a two day period, the jury informed the trial judge in
writing that it could not reach a unanimous verdict because the evidence is not sufficient to
return a verdict of guilty of murder. The jury was then given an Allen charge. Six hours later,
the jury returned a guilty verdict of second degree murder. This appeal followed.
THE SELECTION OF THE JURY
[Headnote 1]
Anticipating a lengthy juror selection process, the district judge suggested that one half of
the jury venire be called on each of the first two days of juror selection. Over appellant's
objection, the clerk summoned all members of the venire whose last names began with the
letters A through H on the first day, and the remainder of the venire on the second day. The
entire venire was called from the third day on.
The selection process lasted one week. The final jury panel consisted of four jurors who
had been summoned on the first day, one juror who had been called on the second day, and
seven jurors plus two alternates who had been selected from the full venire.
full venire. The parties utilized sixteen peremptory challenges, four on the second day and
twelve thereafter.
Appellant contends that this irregular method of selecting the prospective jurors prevented
the final panel from being drawn from a cross-section of the community, Marquez v. State,
91 Nev. 471, 473, 538 P.2d 156, 157 (1975), and that he was therefore denied due process of
law. We disagree.
Appellant concedes that the instant selection process, though irregular, is tantamount
neither to the systematic exclusion of members of a race or class, id; see also Collins v.
State, 88 Nev. 9, 13, 492 P.2d 991, 993 (1972), nor to the systematic exclusion of all
individuals adhering to a particular philosophical or conscientious belief, see Bean v. State,
86 Nev. 80, 86, 465 P.2d 133, 138 (1970). In addition, appellant has not suggested any theory
under which the instant selection process could have prejudiced him or his trial. See State v.
Stella, 42 Nev. 467, 470, 180 P. 980, 981 (1919). We reiterate our previous holdings that
absent either a showing of systematic, class-based exclusion of prospective jurors or a
showing of prejudice, an irregularity in the selection of jurors, without more, must be deemed
harmless error.
APPELLANT'S INCULPATORY STATEMENTS
At trial, Rodney Englert, an Oregon law enforcement officer, testified that when he
informed appellant that Jo had been found, appellant had responded, Fine, I have nothing to
hide. I didn't kill her. According to this testimony, Englert then replied, Who said she was
dead? This conversation was recounted as well by the prosecutor during his opening
remarks.
Appellant contends, for the first time on appeal, that the admission of these statements into
evidence was error since they were obtained from him in violation of his Fifth Amendment
rights, see Miranda v. Arizona, 384 U.S. 436 (1966), and in violation of his Sixth
Amendment right to counsel, see Escobedo v. Illinois, 378 U.S. 478 (1964). Appellant further
contends that the lower court should have conducted, on its own motion, a voluntariness
hearing regarding those statements in accordance with Jackson v. Denno, 378 U.S. 368
(1964).
Appellant, however, did not object to the admission of these statements. Nor did appellant
move to suppress them either before trial, see NRS 174.125(1) and (3)(a), or during the trial,
see NRS 174.125(3)(b). Appellant did not request a voluntariness hearing, nor did he request
that the jury be instructed on the voluntariness issue. Nor can appellant now claim that he
was surprised by the admission of these statements.
was surprised by the admission of these statements. The prosecutor's opening remarks and
Englert's testimony conformed to the evidence adduced at appellant's preliminary
examination. Moreover, the district judge, prior to trial, made sure that appellant had copies
of all his alleged admissions, and specifically inquired of appellant's counsel whether any
suppression motions would be filed concerning these statements.
[Headnotes 2-4]
As a general proposition, the failure to follow statutory procedures for challenging the
admissibility of evidence, as well as the failure to raise a proper objection below, will
preclude appellate review of the disputed evidence. Smithart v. State, 86 Nev. 925, 928-29,
478 P.2d 576, 579 (1970). While this Court may, at times, review questions of constitutional
dimension even in the absence of a proper objection, it will not do so unless the record is
developed sufficiently both to demonstrate that fundamental rights are, in fact, implicated and
to provide an adequate basis for review. Id. Based on the instant factual record, we cannot
even tell whether the interrogation of appellant by Officer Englert was a part of a
pre-custodial investigation or of a custodial or inherently coercive interrogation. Compare
Schnepp v. State, 84 Nev. 120, 122, 437 P.2d 84, 85 (1969). Thus, appellant's failure to raise
a timely objection to the admission of these statements constitutes, in this case, a waiver of
his Fifth and Sixth Amendment claims.
[Headnotes 5, 6]
In addition, a trial court is not obligated to conduct a Jackson v. Denno hearing on its own
motion; rather, the onus is on the defendant to challenge the voluntariness of his admissions
or confessions and to request the appropriate hearing. Guynes v. State, 92 Nev. 693, 695, 558
P.2d 626, 627 (1976). Appellant's failure to request a voluntariness hearing below precludes
appellant consideration of this matter as well. Id.
THE ALLEN CHARGE TO THE JURY
After approximately fifteen hours of deliberation over a two day period, the jury informed
the trial judge in writing that it could not reach a unanimous verdict because the evidence is
not sufficient to return a verdict of guilty of murder. In the presence of counsel, the court
suggested the possibility of giving an Allen instruction. See Allen v. United States, 164 U.S.
492 (1896). In a reversal of roles, the prosecutor objected to the instruction because of its
potential for prejudice; defense counsel emphatically requested that the instruction be given,
stating that he had no objections to the instruction as written.
The Allen instruction was given to the jury, including the admonition that the jurors
should not surrender [their] honest convictions because of other opinions or for the purpose
of returning a verdict. Following six more hours of deliberation, the jury returned the instant
guilty verdict. Appellant contends that the giving of the Allen instruction was coercive and
mandates reversal of his conviction. We cannot agree.
[Headnotes 7, 8]
In the past, this Court has reluctantly approved the Allen charge if it clearly informs the
jury that each member has a duty to adhere conscientiously to his or her own honest opinion,
and if it avoids creating the impression that there is anything improper, questionable or
contrary to good conscience for a juror to create a mistrial. Ransey v. State, 95 Nev. 364, 366,
594 P.2d 1157, 1158 (1979) (and cases cited therein). The instant jury was so informed.
Moreover, the failure to object to the giving of the instruction will ordinarily preclude
appellate review. See Annot., 100 A.L.R.2d 177, 211 8. Here, appellant's counsel adamantly
insisted that the instruction be given. Finally, the six hours of jury deliberation following the
charge belies the argument that the instruction was unduly coercive in this case. See United
States v. Beattie, No. 78-2381 (9th Cir., filed Feb. 4, 1980).
[Headnote 9]
We note, however, that the language of the instant instruction, as well as its applicability
to this case, approaches the limits of acceptability. In this regard, we adopt the recent
comments of Chief Judge Browning, concurring in U.S. v. Beattie, supra, slip op. at 1878: A
barely acceptable instruction, once sanctioned, tends to become the new norm. By this
process, an instruction of dubious merit continues to deteriorate. To halt this deterioration of
the now normative Allen charge and to limit the charge's potential for coercion, we hereby
expressly approve the American Bar Association's version of the Allen charge; the instruction
is set out in the margin for the future guidance of our district courts.
2
THE SUFFICIENCY OF
THE EVIDENCE

____________________

2
The approved version of the Allen instruction reads as follows:
The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary
that each juror agree thereto. Your verdict must be unanimous.
It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement,
if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do
so only after an impartial consideration of the evidence with your fellow jurors. In the course of your
deliberations, do not hesitate to reexamine your own
THE SUFFICIENCY OF THE EVIDENCE
Finally, appellant contends that the evidence, being circumstantial in nature, was
insufficient to support the jury's verdict. We cannot agree.
[Headnotes 10, 11]
In reviewing the evidence supporting a jury's verdict, the question is not whether this
Court is convinced of the defendant's guilt beyond a reasonable doubt, but whether the jury,
acting reasonably, could have been convinced to that certitude by the evidence it had a right
to consider. Edwards v. State, 90 Nev. 255, 258-59, 524 P.2d 328, 331 (1974); see also
Jackson v. Virginia, 443 U.S. 307, 47 U.S.L.W. 4883 (1979). Moreover, a jury may
reasonably rely upon circumstantial evidence; to conclude otherwise would mean that a
criminal could commit a secret murder, destroy the body of the victim, and escape
punishment despite convincing circumstantial evidence against him or her, see People v.
Scott, 1 Cal.Rptr. 600 (Ct.App. 1959).
[Headnote 12]
Based on the evidence in this case, summarized above, the jury could reasonably have
found appellant guilty of second degree murder. The fact of Jo's death was undisputed. The
manner in which the body was buried amply supports a finding that death was caused by a
criminal agency. The evidence of the custody struggle between appellant and the victim, the
fights that had previously transpired, and appellant's dislike of his wife establish appellant's
motive for the killing. In addition, appellant's conflicting statements concerning Jo's
whereabouts support a finding that appellant had a guilty mind.
____________________
views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to
the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of
returning a verdict.
You are not partisans. You are judgesjudges of the facts. Your sole interest is to ascertain the truth from
the evidence in the case.
ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury, Commentary to
5.4 (1968).
We note that a great number of jurisdictions have recently approved of this instruction. See United States v.
Angiulo, 485 F.2d 37 (1st Cir. 1973); United States v. Silvern, 484 F.2d 879 (7th Cir. 1973) (en banc); United
States v. Thomas, 449 F.2d 1177 (D.C. Cir. 1971) (en banc); United States v. Skillman, 442 F.2d 542 (8th Cir.
1971); United States v. Fioravanti, 412 F.2d 407 (3rd Cir.), cert. denied sub. nom. Panaccione v. United States,
396 U.S. 837 (1969); Webb v. United States, 398 F.2d 727 (5th Cir. 1968); People v. Prim, 289 N.E.2d 601 (Ill.
1972); Kelly v. State, 310 A.2d 538 (Md. 1973); Commonwealth v. Rodriguez, 300 N.E.2d 192 (Mass. 1973);
Kersey v. State, 525 S.W.2d 139 (Tenn. 1975).
Based on this evidence, the jury could reasonably have found that appellant had intentionally
killed Jo, see NRS 200.010 and 200.020, but that the murder was committed without
premeditation or deliberation, see NRS 200.030(1)(a) and (2). Sufficient evidence supports
the jury's verdict.
Affirmed.
____________
96 Nev. 375, 375 (1980) Gordon v. Hurtado
ROYAL G. GORDON, Individually and as Guardian ad Litem of GLEN MICHAEL
GORDON, A Minor, Appellants, v. JERRY HURTADO and FREMONT
HOTEL, INC., Respondents.
No. 10549
April 14, 1980 609 P.2d 327
Appeal from judgment, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Father and son brought action to recover damages for injuries suffered by son in collision
between son's motorcycle and delivery van driven by defendant, employee of defendant
corporation. Upon remand, 91 Nev. 641, 541 P.2d 533 (1975), the district court entered
judgment for defendants and father and son appealed. The Supreme Court, Frank B. Gregory,
Senior District Judge, held that: (1) jury instruction that traffic controls at scene of accident
were not in proper position was proper; (2) jury instruction pertaining to traffic control at
intersection where accident occurred contained correct statement of law and did not constitute
prejudicial error; (3) removal from jury of any consideration of statutory violations regarding
traffic signals at intersection where accident occurred was proper; and (4) evidence was
sufficient to support first sentence of challenged instruction, that traffic controls at crossing
where accident occurred were improperly placed as matter of law.
Affirmed.
Peter L. Flangas, Las Vegas, and Marchiondo & Berry, Albuquerque, New Mexico, for
Appellants.
Cromer, Barker & Michaelson and Corby D. Arnold, Las Vegas, for Respondents.
1. Automobiles.
Jury instruction that traffic controls at scene of accident were not in proper position was proper where
traffic signals at crossing were placed as if there was only one intersection when there were actually two
separate and distinct intersections at the scene of the accident. NRS 484.073, 484.073, subd. 2,
484.283.
2. Appeal and Error; Automobiles.
In action to recover damages for injuries suffered in motorcycle-van collision, jury instruction pertaining
to traffic controls at intersection where accident occurred contained correct statement of the law and did
not constitute prejudicial error. NRS 484.073, 484.278, 484.283.
3. Negligence.
Violation of statute does not constitute negligence when violation is excused.
4. Negligence.
Violation of statute does not constitute negligence when violation might reasonably have been expected
from person of ordinary prudence acting in similar circumstances.
5. Automobiles.
In action to recover damages for injuries suffered in motorcycle-van collision, removal from jury of any
consideration of statutory violations regarding traffic signals in two intersections where accident occurred
was proper where from configuration of intersections and control signals, reasonable person driving
through or turning within the two intersections would have been deceived by circumstances at crossing and
would not necessarily have known which of control signals should be obeyed. NRS 484.073, 484.278,
484.283.
6. Trial.
In action to recover damages for injuries suffered in motorcycle-van collision, even if jury instruction
regarding traffic signals at scene of accident was not technically correct, jury was sufficiently and fairly
instructed on negligence and ordinary care, and thus, reversal of judgment was not required. NRS
484.073, 484.278, 484.283.
7. Automobiles.
In action to recover damages for injuries suffered in motorcycle-van collision, evidence was sufficient to
support first sentence of challenged jury instruction that traffic controls at crossing where accident occurred
were improperly placed as matter of law, even though there was no specific expert opinion on propriety of
placement of signals. NRS 484.073, 484.278, 484.283.
In action to recover damages for injuries suffered in motorcycle-van collision, those seeking to recover
damages for injuries were not prejudiced by trial court's statement that signals at intersections at which
accident occurred were improperly placed. NRS 484.073, 484.278, 484.283.
9. Trial.
If jury instruction is not technically correct, instruction should be examined in context of all instructions
given to jury to determine if instruction requires reversal.
10. Trial.
No reversal for giving of jury instruction which is not technically correct is required where, taking into
consideration all of instructions given, jury was sufficiently and fairly instructed.
OPINION
By the Court, Gregory, Sr. D. J.
1
:
This appeal arises out of an automobile collision in which appellant Glen Gordon received
personal injuries. In Gordon v. Hurtado, 91 Nev. 641, 541 P.2d 533 (1975), this court
reversed a jury verdict and judgment for defendants due to error regarding expert testimony.
The case was tried again, resulting in another verdict and judgment for the defendants.
Plaintiffs appeal.
The facts of the collision are set forth in detail in our previous opinion. Briefly, the
collision occurred at the crossing of Washington Avenue and 25th Street in Las Vegas. A
forty-foot drainage ditch divided the eastbound and westbound lanes of Washington at the
crossing. There were four traffic signals at the crossing, each consisting of a light on a signal
pole and a light extending over the street. The traffic signals were located at the outside
corners of the crossing. The collision occurred at the intersection of the eastbound lanes of
Washington and the southbound lane of 25th after Hurtado completed a left turn from
Washington onto 25th. Traffic signal lights were green for traffic on Washington and red for
traffic on 25th.
[Headnote 1]
The sole contention on this appeal is that the district court committed error by giving the
following jury instruction:
The Court has determined as a matter of law that the traffic controls for northbound and
southbound traffic on Twenty-fifth Street at its intersection with Washington Avenue
were not in proper position in accordance with the provisions of NRS 484.073, defining
the area as a double intersection, and, accordingly, you are instructed that Defendant
JERRY HURTADO is not chargeable with a violation of NRS 4S4.2S3, the
Traffic-Control signal legend.
____________________

1
Acting Chief Justice Gordon Thompson designated Hon. Frank B. Gregory, Senior District Judge of the
Nevada Court System, to sit in this case in place of Hon. John Mowbray, Chief Justice, who voluntarily
disqualified himself. Nev. Const. art. 6, 19; SCR 10.
violation of NRS 484.283, the Traffic-Control signal legend. That is, Defendant
HURTADO cannot be found negligent on the basis on any traffic signal violation at the
intersection.
The crossing of Washington and 25th did not constitute a single intersection as that term
is defined by statute. Rather, the crossing of those roadways actually constituted two separate
intersections: (1) the intersection of 25th with the westbound lanes of Washington; and (2)
the intersection of 25th with the eastbound lanes of Washington. NRS 484.073(2).
2
It is clear
from the record, and from the testimony of a traffic engineer called as a witness by the
defense, that the traffic signal lights at the crossing were placed as if there was only one
intersection rather than two separate and distinct intersections. There was no error in
instructing that the traffic controls were not in proper position.
The jury received several instructions regarding statutory violations. An instruction was
given on the statutory definition of the term intersection, NRS 484.073, and the jury was
told that the crossing in question constituted two intersections as a matter of law.
3
Instructions were also given regarding traffic control signals, NRS 484.283, and the
obedience of traffic control devices, NRS 484.278. Finally, the jury was instructed that the
violation of a statute constitutes negligence as a matter of law. The challenged instruction in
this case was included within instructions dealing with statutory violations.
[Headnote 2]
Pertinent parts of NRS 484.283 were given to the jury as Instruction 22, and NRS 484.278
(Obedience to and required traffic-control devices) was given in full as Instruction 23. The
second paragraph of that section reads, in part:
2. No provision of this chapter for which such devices [traffic control devices] are
required shall be enforced against an alleged violator if at the time and place of the
alleged violation such device is not in proper position and sufficiently legible to be
seen by an ordinarily observant person.
____________________

2
NRS 484.073 provides, in part, as follows:
2. Where a highway includes two roadways 30 feet or more apart, then every crossing of each
roadway of such divided highway by an intersecting highway shall be regarded as a separate intersection.
In the event such intersecting highway also includes two roadways 30 feet or more apart, then every
crossing of two roadways of such highways shall be regarded as a separate intersection.

3
Instruction No. 21 provided, in part, as follows:
The Court has determined as a matter of law that the intersection of the westbound lanes of Washington
Street with 25th Street is a separate and distinct intersection from the intersection of the eastbound lanes of
Washington Street with 25th Street, in accordance with the statutory definition of intersection. . . Appellants do
not contend on this appeal that Instruction 21 was improper.
[traffic control devices] are required shall be enforced against an alleged violator if at
the time and place of the alleged violation such device is not in proper position and
sufficiently legible to be seen by an ordinarily observant person.
It appears that Instruction 24 did contain a correct statement of the law pertinent to traffic
control at this intersection. While the instruction may have been inartistically worded, we
cannot say that the instruction constituted prejudicial error in this case.
[Headnotes 3, 4]
We believe the challenged instruction simply removed from the jury any consideration of
negligence based on statutory violations with respect to the traffic signals at the crossing. In
certain circumstances a violation of statute may constitute negligence per se. See Southern
Pacific Co. v. Watkins, 83 Nev. 471, 435 P.2d 498 (1967); Ryan v. Manhattan M. Co., 38
Nev. 92, 145 P. 907 (1914); cf. Bill Stremmel Mtrs. v. First Nat'l Bank, 94 Nev. 131, 575
P.2d 938 (1978) (effect of violation of statute not clear in Nevada). However, violation of a
statute does not constitute negligence when the violation is excused, see Alarid v. Vanier, 327
P.2d 897 (Cal. 1958); Wood v. Chicago, Milwaukee, St. Paul & Pacific R. Co., 277 P.2d 345
(Wash. 1954), aff'd on rehearing en banc, 283 P.2d 688 (Wash. 1955), as when the violation
might reasonably have been expected from a person of ordinary prudence acting in similar
circumstances. See Nichols v. Sonneman, 418 P.2d 562 (Idaho 1966); Alarid v. Vanier,
supra. See generally Restatement (Second) of Torts 288 A (1965).
[Headnote 5]
It is clear from the record in the present case, and from the configuration of the
intersections and the control signals, that a reasonable person driving through or turning
within the two intersections would be deceived by the circumstances at the crossing and
would not necessarily know which of the control signals should be obeyed.
4
Under these
circumstances we do not believe the district court committed error by removing from the jury
any consideration of statutory violations regarding traffic signals at the intersections.
[Headnote 6]
A review of the record reveals that the jury was adequately instructed on negligence and
ordinary care.
____________________

4
The control signal lights were installed approximately four weeks before the collision which is the subject of
this case.
instructed on negligence and ordinary care. The jury was also told that a driver must keep a
proper lookout so as to avoid an accident, and that a driver must appreciate and realize what
is reasonably indicated by that which is in plain sight. We believe that under the instructions
given by the district court, including the challenged instruction, the jury was free to consider
the fact that Hurtado entered the westbound lanes of Washington while facing a red light in
its determination of whether Hurtado was negligent under ordinary negligence principles. The
challenged instruction merely took from the jury any consideration of negligence based solely
on traffic signal violations.
[Headnotes 7-10]
Appellants also contend that there was no evidence to support the first sentence of the
challenged instruction, namely, that the traffic controls at the crossing were improperly placed
as a matter of law. While it may be true that there was no specific expert opinion on the
propriety of the placement of the signals, it is clear that the placement of the signals created
an ambiguity for even reasonably prudent drivers. As mentioned earlier, the challenged
instruction merely removed traffic signal violations from the consideration of the jury, and we
do not believe appellants were prejudiced by the court's statement that the signals were
improperly placed. In any event, even if an instruction is not technically correct, the
instruction should be examined in the context of all instructions given to the jury. No reversal
is required where, taking into consideration all of the instructions, the jury was sufficiently
and fairly instructed. See Hotels El Rancho v. Pray, 64 Nev. 591, 187 P.2d 568 (1947). In the
present case we believe the jury was sufficiently and fairly instructed.
The judgment is affirmed.
Thompson, Gunderson, and Batjer, JJ., and Barrett, D. J.,
5
concur.
____________________

5
Governor Robert List designated Hon. John W. Barrett, District Judge, to sit in this case in place of Hon.
Noel E. Manoukian, Justice, who voluntarily disqualified himself. Nev. Const. art. 6, 4.
____________
96 Nev. 381, 381 (1980) Sheriff v. Smith
v. MICHAEL SMITH, Respondent.
No. 12571
April 30, 1980 609 P.2d 1236
The Supreme Court held that willful failure to secure attendance of nonresident witness
who was willing and prepared to travel to Nevada did not occur and magistrate properly
granted a continuance where sole reason for failure of witness to appear at appointed time
was inclement weather, not a lack of good-faith effort on part of prosecution.
Joel M. Cooper, Deputy District Attorney, Clark County, for Appellant.
Morgan D. Harris, Public Defender, and Michael L. Miller, Deputy Public Defender,
Criminal Law; Witnesses.
Willful failure on part of state to secure attendance of nonresident witness who was willing and prepared
to travel to Nevada did not occur and magistrate properly granted a continuance in criminal prosecution
where sole reason for failure of witness to appear at appointed time was inclement weather, not a lack of
good-faith effort on part of prosecution. NRS 199.480, 200.400.
OPINION
Per Curiam:
Respondent Michael Smith was charged in a criminal complaint with (1) battery with
intent to commit robbery (NRS 200.400), and (2) conspiracy to commit robbery (NRS
199.480). A preliminary examination was scheduled in the justice's court for February 26,
1980. On that day the prosecution filed a motion for a continuance supported by an affidavit
stating that the victim of the crime, Joseph Wisniewski, who was an essential witness, was
unable to be present. Wisniewski, a resident of Illinois, could not travel to Nevada on the day
the preliminary examination was scheduled because of inclement weather at O'Hare Airport
in Chicago, but could be present shortly thereafter.
96 Nev. 381, 382 (1980) Sheriff v. Smith
weather at O'Hare Airport in Chicago, but could be present shortly thereafter.
The magistrate granted a continuance for one day. Respondent then filed a petition for a
writ of habeas corpus in the district court contending our holding in Ormound v. Sheriff, 95
Nev. 173, 591 P.2d 258 (1979) required that the charges be dismissed. The district judge
agreed and granted the petition. This appeal followed.
In Ormound we held that the procedures of the [Uniform Act To Secure the Attendance
of Witnesses From Without a State in Criminal Proceedings, NRS 174.395 et seq.] must be
utilized to support a finding that the prosecuting attorney has made a good faith effort to
obtain the attendance of a necessary witness who resides in another state where the Act has
been adopted. Id. at 175, 591 P.2d at 259. In Ormound the prosecution's disregard of the
aforementioned act constituted willful failure to comply with important procedural rules, thus
precluding the granting of a continuance under DCR 21 (now DCR 14).
In the instant case, the district judge, following Ormound, granted the habeas petition
because the prosecution had not utilized the act to secure the attendance of Wisniewski.
However, we believe that in the context of this case, the rule set forth in Ormound does not
apply. Here, it was not necessary to use the provisions of the act to secure Wisniewski's
attendance because he was willing and prepared to travel to Nevada. The sole reason for his
failure to appear at the appointed time was inclement weather, not a lack of good faith efforts
on the part of the prosecution.
Under these circumstances, a willful failure to comply with important procedural rules did
not occur, and the magistrate properly granted the continuance. Accordingly, the order of the
district court granting the petition for a writ of habeas corpus is reversed and this case is
remanded for further proceedings.
____________
96 Nev. 383, 383 (1980) State v. Pearce
THE STATE OF NEVADA, Appellant, v. NANCY
ANN PEARCE, Respondent.
No. 12516
April 30, 1980 609 P.2d 1237
Appeal from order granting motion to suppress evidence, Second Judicial District Court,
Washoe County; John E. Gabrielli, Judge.
Defendant was charged with embezzlement. The district court granted defendant's motion
to suppress evidence, and state appealed. The Supreme Court held that the appeal was not
statutorily authorized in light of fact that the suppressed evidence was not an intercepted
communication.
Appeal dismissed.
and Edward B. Horn, Deputy District Attorney, Washoe County, for Appellant.
G. C. Backus, Reno, for Respondent.
Criminal Law.
Appeal by state from order granting motion to suppress evidence was not statutorily authorized, in light
of fact that the evidence was not an intercepted communication. NRS 177.015, 179.505, 179.510.
OPINION
Per Curiam:
Respondent was charged with embezzlement, a felony under NRS 205.300. A motion to
suppress evidence was granted by the district court, and the state has appealed. Respondent
has filed a motion to dismiss the appeal. Respondent contends, among other things, that the
order granting the motion to suppress evidence is not an appealable order. We agree.
NRS 177.015 is the general statute dealing with appeals in criminal cases. In 1971, that
statute was amended to provide for appeals from pre-trial orders granting or denying motions
to suppress evidence. See 1971 Nev. Stats. ch. 627 1, at 1450. However, the statute was
amended again in 1973, deleting the provision dealing with appeals from orders on motions
to suppress. See 1973 Nev. Stats. ch. 730, 1, at 1489. Therefore, at the present time NRS
177.015 does not provide authority for the state's appeal.1
96 Nev. 383, 384 (1980) State v. Pearce
the present time NRS 177.015 does not provide authority for the state's appeal.
1

The state's only argument as to its authority for the appeal is as follows: The Respondent
has overlooked NRS 179.510 which expressly provides for an appeal by the State from an
order granting a motion to suppress.
The state's argument is inaccurate and incomplete. NRS 179.510 is clearly not applicable
to this appeal.
2
The state has failed to note language contained in the statute expressly
limiting its applicability to motions to suppress made under NRS 179.505. NRS 179.505
deals solely with motions to suppress intercepted wire or oral communications. See, e.g.,
Rupley v. State, 93 Nev. 60, 560 P.2d 146 (1977). The motion to suppress in this case had
nothing whatsoever to do with the suppression of intercepted communications under NRS
179.505.
Finding no authority for the state's appeal, we grant respondent's motion to dismiss.
3

Appeal dismissed.
____________________

1
NRS 177.015 presently reads as follows:
1. The party aggrieved in a criminal action, whether that party be the state or the defendant, may
appeal only as follows:
(a) To the district court of the county from a final judgment of the justice's court.
(b) To the supreme court from an order of the district court granting a motion to dismiss, a motion for
acquittal or a motion in arrest of judgment, or granting or refusing a new trial.
2. The defendant only may appeal from a final judgment or verdict in a criminal case.

2
NRS 179.510 provides, in part:
In addition to any other right to appeal the state may appeal from an order granting a motion to
suppress made under NRS 179.505 if the attorney general or district attorney certifies to the judge or
other official granting such motion that the appeal is not taken for purposes of delay. (Emphasis added.)

3
In light of our disposition of this issue we need not decide respondent's contention that the appeal should be
dismissed for failure of the state to comply with NRAP 3(d).
____________
96 Nev. 385, 385 (1980) Taylor v. State
VIVIAN TAYLOR, Appellant, v. THE STATE
No. 12027
April 30, 1980 609 P.2d 1238
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; J.
The district court found defendant guilty of grand larceny, and defendant appealed. The
Supreme Court held that: (1) statements made by defendant about three hours after she had
been advised of her rights were admissible; (2) denial of proposed instruction that defendant
could disprove state's case by a mere preponderance of evidence was not error; and (3)
evidence sustained conviction.
Affirmed.
Morgan D. Harris, Public Defender, and Kirk B. Lenhard, Deputy Public Defender, Clark
1. Criminal Law.
Where accused has been fully and fairly apprised of his rights, there is no requirement that warnings be
repeated each time questioning is commenced.
2. Criminal Law.
Where accused had been fully and fairly apprised of her rights before she made incriminating statements
and there was no claim that she misunderstood her rights or that statements were result of coercion or
deception, incriminating statements which were made three hours after accused had been advised of her
rights were admissible.
3. Criminal Law.
Instruction that state had burden of establishing every element of crime beyond a reasonable doubt and
defining reasonable doubt in language of statute was proper. NRS 175.211, subd. 1, 205.220.
4. Criminal Law.
Refusal to give defendant's proposed instruction that defendant could disprove state's case by mere
preponderance of evidence was not error.
5. Larceny.
Evidence was sufficient to sustain larceny conviction of defendant who told officers she had taken money
from victim's wallet. NRS 205.220.
OPINION
Per Curiam:
Appellant Vivian Taylor was convicted of grand larceny, a felony under NRS 205.220,
and sentenced to an S-year term of imprisonment.
felony under NRS 205.220, and sentenced to an 8-year term of imprisonment. In this appeal,
she contends (1) the district court should have suppressed testimony regarding incriminating
statements she made to a police officer because the statements were made too long after she
was given her Miranda rights, (2) the district court erred in refusing to instruct the jury
regarding her burden of disproving the state's case, and (3) the evidence was insufficient to
support the verdict.
Raymond Sanchez, the victim, met Taylor at the Orbit Inn in Las Vegas. After a brief
conversation Sanchez and Taylor agreed to go to Sanchez's room where Taylor was to
perform certain sexual services for Sanchez for $20. After they entered the room Sanchez
undressed and, in the presence of Taylor, put his wallet underneath the mattress. He then went
into the bathroom to wash up, leaving Taylor alone in the bedroom. Later, while he was
getting dressed, Sanchez discovered that his wallet was no longer under the mattress. Instead,
he found it among some clothes in another location, with approximately $800 missing.
Taylor, who was still in the room, denied taking the money. Sanchez then summoned the
police. Officer Hans Janik soon arrived at Sanchez's room and placed Taylor under arrest. At
this time, he advised Taylor of her rights under Miranda v. Arizona, 384 U.S. 436 (1966).
Taylor was then transported to the county jail, where Detective John Chapman again advised
her of her Miranda rights. Subsequently, in the district attorney's office, Officer Kent Clifford
conversed with Taylor after informing her that she had the right to the presence of an
attorney. During the course of this conversation with Clifford, Taylor stated that she had
taken $195 from the victim, and turned the money over to Clifford. The incriminating
statements were made about 3 hours after Chapman had given Taylor her Miranda rights. At
the trial, Clifford related these statements over Taylor's objection.
1. Taylor contends that the district court erred in denying her motion to suppress the
statements she made to Officer Clifford. She argues the statements should have been
excluded because they were made hours after the Miranda warnings were given to her.
[Headnote 1]
This contention is without merit. Where the accused has been fully and fairly apprised of
his Miranda rights, there is no requirement that the warnings be repeated each time the
questioning is commenced. State v. Allen, 535 P.2d 3 (Ariz. 1975); State v. Boyle, 486 P.2d
849 (Kan. 1971); State v. Gilcrist, 590 P.2d 809 (Wash. 1979). All that is required is that the
accused be initially advised of his rights and that he understands them at the time of the
interrogation.
be initially advised of his rights and that he understands them at the time of the interrogation.
State v. Allen, supra.
[Headnote 2]
Here, the record indicates that Taylor was fully and fairly advised of her Miranda rights
before she made the incriminating statements to Officer Clifford. She makes no allegation
that she misunderstood her rights or that the statements were the result of coercion or
deception. Thus, her statements were properly admitted at the trial. See Allen v. State, 91
Nev. 568, 540 P.2d 101 (1975).
[Headnotes 3, 4]
2. Taylor also contends the district court erred in refusing to instruct the jury that a
defendant can disprove the state's case by a mere preponderance of the evidence. The court
instructed the jury that the state had the burden of establishing every material element of the
crime with which Taylor was charged beyond a reasonable doubt, and then defined
reasonable doubt in the language of NRS 175.211(1).
1
This was the proper instruction
regarding the burden of proof necessary to support a conviction. Cutler v. State, 93 Nev. 329,
566 P.2d 809 (1977). Thus, no error occurred when the court refused to give Taylor's
proposed instruction, which did not add anything with any degree of precision on a question
of importance in the case. See Roland v. State, 96 Nev. 300, 608 P.2d 500 (1980).
[Headnote 5]
3. Finally, we reject Taylor's contention that the evidence was insufficient to support the
conviction. The record reveals substantial evidence to support the verdict in this case. Wicker
v. State, 95 Nev. 804, 603 P.2d 265 (1979).
Affirmed.
____________________

1
NRS 175.211(1) states:
A reasonable doubt is one based on reason. It is not mere possible doubt, but is such a doubt as would
govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the entire
comparison and consideration of all the evidence, are in such a condition that they can say they feel an
abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must
be actual and substantial, not mere possibility or speculation.
____________
96 Nev. 388, 388 (1980) Deveroux v. State
OLIVIA DEVEROUX, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 10783
April 30, 1980 610 P.2d 722
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Defendant was convicted in the district court of grand larceny, and she appealed. The
Supreme Court held that: (1) where trial judge refused to take into consideration an
unsolicited letter sent by two vice officers prior to sentencing, which letter described
defendant as one of the top five trick roll artist in Clark County, Supreme Court would not
interfere with sentence imposed, absent showing of prejudice; (2) trial court did not abuse its
discretion in imposing sentence; and (3) evidence was sufficient to support conviction.
Affirmed.
Michael Kennedy, San Francisco, CA, and Kermitt L. Waters, Las Vegas, for Appellant.
1. Criminal Law.
Where trial judge refused to take into consideration an unsolicited letter sent by two vice officers prior to
sentencing, which letter described defendant as one of the top five trick roll artists in Clark County,
Supreme Court would not interfere with sentence imposed following grand larceny conviction, absent
showing of prejudice.
2. Criminal Law.
Statute requiring court to disclose factual content of presentence investigation report and afford an
opportunity to each party to comment thereon did not require trial judge to disclose an unsolicited letter
sent by two vice officers prior to sentencing, which letter was not taken into consideration in sentencing
procedure. NRS 176.156.
3. Larceny.
Trial court did not abuse its discretion in sentencing defendant, a first offender, who was convicted of
grand larceny, to a term of eight years imprisonment. NRS 205.220.
4. Criminal Law.
Penalty provision of statute proscribing grand larceny was not unconstitutional on its face as
disproportionate to gravity of the offense. NRS 205.220.
5. Criminal Law.
Trial judge has wide discretion in imposing a prison term and, in absence of a showing of abuse of such
discretion, Supreme Court will not disturb the sentence.
6. Criminal Law.
Degree to which a sentencing judge considers age and absence of a prior record of offenses is within his
discretionary authority.
7. Criminal Law.
If a motion in limine is granted court in its ruling should provide and advise counsel such ruling is
without prejudice to right to offer proof during course of the trial, in a jury's absence, of those matters
covered in motion and if it then appears in light of trial record that evidence is relevant, material and
competent it may then be introduced, subject to opposing counsel's objections, as part of the record of
evidence for jury's consideration.
8. Criminal Law.
Trial judge did not commit reversible error in grand larceny prosecution by withholding the ruling on
admissibility on rebuttal of defendant's arrests, which were subject of previously granted motion in limine.
9. Criminal Law.
Where trial judge withheld a ruling on admissibility on rebuttal of defendant's arrests, which were subject
to previously granted motion in limine, defense counsel's failure to press for a definite ruling regarding
such motion was not tantamount to ineffective counsel.
10. Criminal Law.
Circumstantial evidence alone may sustain a conviction.
11. Larceny.
Evidence was sufficient to support grand larceny conviction.
12. Criminal Law.
In grand larceny prosecution, trial court did not err in refusing to give an instruction, sua sponte regarding
circumstantial evidence where jury was properly instructed regarding reasonable doubt.
OPINION
Per Curiam:
Appellant was tried by a jury, convicted of grand larceny, a felony under NRS 205.220,
and sentenced to a term of eight years in the Nevada State Prison. She appeals, contending
that numerous instances of error compel reversal or, in the alternative, vacation of her
sentence. Finding no error, we affirm the conviction and sentence.
[Headnote 1]
1. Appellant first submits that an ex parte communication to the district court prior to
sentencing violated the spirit of NRS 176.156
1
and deprived her of the right to confront
witnesses. This communication was in the form of a an unsolicited letter sent by two vice
officers of the Las Vegas Metropolitan Police, which described appellant as one of the top
five trick roll artists in Clark County."
____________________

1
NRS 176.156, in pertinent part, reads as follows:
1. The court shall disclose . . . the factual content of the report of the presentence investigation . . .
and afford an opportunity to each party to comment thereon. . . .
roll artists in Clark County. Appellant is correct when she submits that the contents of this
letter were inappropriate for review by the district court at the sentencing procedure. Silks v.
State, 92 Nev. 91, 545 P.2d 1159 (1976). Nevertheless, the record herein reveals no error. The
district judge correctly refused to take the letter's contents into consideration. Unless the
record reveals prejudice resulting from the introduction of objectionable material, we will not
interfere with the sentence imposed. Id. at 94, 545 P.2d at 1161. No such prejudice appears
here.
[Headnote 2]
Appellant's contention that the spirit of NRS 176.156 was violated is without merit since
that statute is inapplicable. That statute's requirements of disclosure and opportunity to
comment relate to the factual content of the presentence investigation report, not to a
document denied consideration in the sentencing procedure.
2. Appellant contends that the penalty provision of NRS 205.220
2
is unconstitutional on
its face as disproportionate to the gravity of the offense. She further argues that her sentence
is both cruel and unusual due to her youth and the fact that this was her first offense.
[Headnotes 3-6]
The legislature is empowered to define crimes and determine punishments and we do not
encroach upon that domain lightly. Sheriff v. Williams, 96 Nev. 22, 604 P.2d 800 (1980). We
do not believe the maximum sentence under the statute is so disproportionate to the offense
that it is unconstitutional. See Rummel v. Estelle, 445 U.S. 265, 48 U.S.L.W. 4261 (1980);
Schmidt v. State, 94 Nev. 665, 584 P.2d 695 (1978). Furthermore, the trial judge has wide
discretion in imposing a prison term and, in the absence of a showing of abuse of such
discretion, we will not disturb the sentence. State v. Sala, 63 Nev. 270, 169 P.2d 524 (1946).
The degree to which a judge considers age and the absence of a prior record of offenses is
within his discretionary authority. We see no abuse herein.
[Headnotes 7-9]
3. Appellant made a pretrial motion in limine for an Order instructing the prosecuting
attorney and all witnesses testifying in this action to refrain absolutely from making any
direct or indirect reference whatsoever pertaining to crimes or offenses other than those
currently before the Court."
____________________

2
At all times pertinent to this appeal NRS 205.220 provided that upon conviction of grand larceny the
defendant shall be sentenced to a term of not less than one year nor more than 10 years and may be further
punished by a fine not to exceed $5,000. 1969 Nev. Stats. ch. 305, 1, at 531. This statute was amended in 1979
to increase the allowable fine to $10,000. 1979 Nev. Stats. ch. 655, 79, at 1444.
Order instructing the prosecuting attorney and all witnesses testifying in this action to refrain
absolutely from making any direct or indirect reference whatsoever pertaining to crimes or
offenses other than those currently before the Court. The motion was granted, unless by
circumstances that develop in the trial, it becomes proper and probative for rebuttal. Olivia
now contends that it was reversible error for the trial judge to withhold a ruling on the
admissibility of these arrests on rebuttal and argues that her counsel's failure to press for a
definite ruling regarding the motion was tantamount to ineffective counsel. This contention is
meritless. As correctly stated in appellant's own motion in limine:
If a motion in limine is granted the court in its ruling should provide and advise
counsel such ruling is without prejudice to the right to offer proof during the course of
the trial, in the jury's absence, of those matters covered in the motion and if it then
appears in the light of the trial record that the evidence is relevant, material and
competent it may then be introduced, subject to opposing counsel's objections, as part
of the record of evidence for the jury's consideration.
Twyford v. Weber, 220 N.W.2d 919, 923 (Iowa 1974).
[Headnotes 10, 11]
4. Appellant next contends that there was insufficient evidence to convict her, arguing that
such evidence was largely circumstantial. We have, however, held that circumstantial
evidence alone may sustain a conviction; Crawford v. State, 92 Nev. 456, 552 P.2d 1378
(1976), and we find the record sufficient to support the conviction.
[Headnote 12]
5. Finally, appellant argues that the court erred in refusing to give an instruction, sua
sponte, regarding circumstantial evidence.
3
We have previously considered such an
instruction and have ruled that it is not error to refuse to give the instruction if the jury is
properly instructed regarding reasonable doubt.
____________________

3
It is appellant's contention that the following instructions should have been given the jury:
You are not permitted to find the defendant guilty of the crime charged against [her] based on circumstantial
evidence unless the proved circumstances are not only consistent with the theory that the defendant is guilty of
the crime, but cannot be reconciled with any other rational conclusion. Each fact which is essential to complete a
set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt.
Also, if the circumstantial evidence is susceptible of two reasonable interpretations, one of which points to
the defendant's guilt and the other to [her] innocence, it is your duty to adopt that interpretation which points to
the defendant's innocence, and reject that which points to [her] guilt. If, on the
have ruled that it is not error to refuse to give the instruction if the jury is properly instructed
regarding reasonable doubt. Bails v. State, 92 Nev. 95, 545 P.2d 1155 (1976). The jury was
so instructed here.
The conviction is affirmed.
____________________
other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be
unreasonable, it would be your duty to accept the reasonable interpretation and to reject the unreasonable.
____________
96 Nev. 392, 392 (1980) Dredge Corp. v. Peccole
THE DREDGE CORPORATION, a Nevada Corporation, WILLIAM A. McCALL, Sr.,
ETHEL McCALL, JAMES B. McCALL, GERALDINE McCALL and WILLIAM A.
McCALL, Jr., Appellants, v. WILLIAM PECCOLE, CLARK J. GUILD, Jr., CLARK J.
GUILD, Jr. as Custodian for LAURETTA PECCOLE AMICO, LEANN PECCOLE, and
LISA PECCOLE, UNITED CHURCH OF RELIGIOUS SCIENCE, a California Corporation,
JOE F. McDONALD, Jr., WANDA RUTH PECCOLE, aka WANDA PECCOLE, ROBERT
J. PECCOLE, WILLIAM PECCOLE, as Trustee of the PETER PECCOLE 1970 Trust,
Respondents.
No. 10475
April 30, 1980 609 P.2d 1235
Appeal from judgment and order denying motion to amend findings of fact and
conclusions of law, Eighth Judicial District Court, Clark County; James A. Brennan, Judge.
Owners of patent issued under Taylor Grazing Act brought suit against holders of
unpatented placer mining claims for sand and gravel to quiet title to property. Defendants
counterclaimed seeking adjudication of parties' relative rights. The district court determined
that defendants were without lawful interest in the premises, and defendants appealed. The
Supreme Court, Gunderson, J., held that trial court had jurisdiction to decide whether land
was of mineral character.
Affirmed.
Beckley, Singleton, DeLanoy and Jemison, Chartered, Las Vegas, for Appellants.
Guild, Hagen & Clark, Ltd., Reno, for Respondents.
Public Lands.
In suit by owners of patent issued under Taylor Grazing Act against holders of unpatented placer mining
claims for sand and gravel to quiet title to property, trial court had jurisdiction to address fact question of
whether land was of mineral character, despite contention that all jurisdiction to decide land's character
reposed in Bureau of Land Management. Taylor Grazing Act, 7, 43 U.S.C.A 315f.
OPINION
The subject of this dispute is 1,920 acres of land located in the western part of the Las
Vegas Valley. The trial court entered judgment against appellants, who held unpatented
placer mining claims for sand and gravel, in favor of the respondents, who own a patent
issued under the Taylor Grazing Act, 43 U.S.C. 315(f).
In July of 1952, appellants located their claims for sand and gravel. In October of 1952, the
United States issued respondents a patent to the surface land, reserving all minerals and the
right to prospect for, mine and remove them. In 1973, respondents brought this action to quiet
title to the property. The appellants counterclaimed, seeking an adjudication of the parties'
relative rights. After judgment for respondents, appellants unsuccessfully moved to amend
the findings of fact and conclusions of law. This appeal follows.
In adjudicating the parties' relative rights, as requested by appellants, it was of course
essential for the trial court to determine whether appellants have the legal rights they assert,
to-wit: the right to go upon the land in question, to alter the present condition of its surface,
and to remove sand and gravel. To decide that issue, one factual question the trial court was
perforce constrained to address was whether the land was of mineral character, so that a
mining claim might lawfully have been asserted at the time appellants claim to have done so.
This question the trial court decided adversely to them.
They contend on appeal, however, that the trial court could not address this essential
factual question, all jurisdiction to decide the land's mineral character reposing in the Bureau
of Land Management. In our view, however, the cases and text references appellants cite to
support their contention are totally inapposite.
This is not a case in which one party holds a mineral patent, and the other party asserts
an adverse mining claim.1 Nor is it a case in which a party seeks entry under a
non-mineral act.2
and the other party asserts an adverse mining claim.
1
Nor is it a case in which a party seeks
entry under a non-mineral act.
2

The court's factual determination that appellant is without lawful interest in the premises,
obviates the need to consider other assignments of error. If the decree quieting title in
respondents is overbroad, appellant is not aggrieved.
Affirmed.
____________________

1
Nevada Exploration & Min. Co. v. Spriggs, 124 P. 770 (Utah 1912). See Wright v. Town of Hartville, 81 P.
649 (Wyo. 1905); Le Fevre v. Amonson, 81 P. 71 (Ida. 1905). 2 American Law of Mining 329 9.13 (1979).

2
1 American Law of Mining 479 3.4 (1979).
____________
96 Nev. 394, 394 (1980) Northern Nev. Mobile Home v. Penrod
NORTHERN NEVADA MOBILE HOME BROKERS, a Nevada Corporation, and
HAROLD M. SMITH, Appellants, v. DALLAS R. PENROD and PAULA L.
PENROD, Respondents.
No. 11501
April 30, 1980 610 P.2d 724
Appeal from judgment, Second Judicial District Court, Washoe County; James J. Guinan,
Judge.
Mobile home owners brought action against mobile home brokerage corporation and its
manager on fraud theory. The district court found defendants guilty of fraud and awarded
owners $2,000 compensatory damages and $30,000 punitive damages, and defendants
appealed. The Supreme Court held that: (1) where document signed by mobile home owners
granted to mobile home brokerage corporation exclusive and irrevocable right to sell property
and document specifically referred to corporation as agent, such document clearly and
unequivocally created agency relationship between the two parties; and (2) where jury found
corporation and its manager guilty of fraud, finding that they had breached their professional
duties to act in the utmost good faith and to disclose all material facts to the owners before
dealing for their own benefit, and evidence at trial disclosed that corporation had substantial
net worth, award of $30,000 punitive damages was not excessive.
Affirmed.
James F. Sloan, Reno, for Appellants.
Vargas, Bartlett and Dixon, and Phillip W. Bartlett, Reno, for Respondents.
1. Principal and Agent.
Existence or nonexistence of an agency is question of fact for jury.
2. Trial.
Trial court may take from consideration of jury fact which is clearly proved and not materially disputed.
3. Trial.
Legal effect of a document is generally question of law for trial court.
4. Brokers.
Where document signed by mobile home owners granted to mobile home brokerage corporation
exclusive and irrevocable right to sell property and document specifically referred to corporation as agent,
such document clearly and unequivocally created agency relationship between the two parties.
5. Fraud.
Existence of agency relationship is not essential to cause of action for fraud.
6. Fraud.
Where manager of mobile home brokerage corporation which had contract with mobile home owners
discussed question of whether higher price was obtainable for mobile home, he had duty to speak whole
truth and not by concealment make his statements untrue or misleading and his misrepresentations
constituted actual fraud regardless of existence of fiduciary relationship.
7. Damages.
Punitive damages are designed to punish wrongdoer for his act and to deter others from acting in a
similar fashion, but such damages should not be influenced by passion and prejudice on part of jury;
amount of award of punitive damages need have no particular relationship to amount of compensatory
damages.
8. Damages.
Where jury found mobile home brokerage corporation and its manager guilty of fraud, finding that they
had breached their professional duties to act in utmost good faith and to disclose all material facts to
mobile home owners before dealing for their own benefit, and evidence at trial disclosed that corporation
had substantial net worth, award of $30,000 punitive damages was not excessive.
OPINION
Per Curiam:
This is an appeal from a judgment in favor of Dallas Penrod and Paula Penrod, against
appellants Northern Nevada Mobile Home Brokers (hereinafter referred to as Northern
Nevada) and Harold M. Smith. We affirm the judgment.
Mr. and Mrs. Penrod testified that they owned a mobile home and real property near Reno.
In June, 1976, the Penrods decided to sell their property and move to San Francisco so that
Mr. Penrod could begin medical school.
The Penrods hired Northern Nevada to assist in the sale of the home. The Penrods testified
that they had been induced to contact Northern Nevada by television, radio and newspaper
advertisements which stated that there were no commissions, no closing costs, and that
Northern Nevada would obtain top dollar on the sale of a mobile home.
The Penrods signed an Exclusive Authorization to Sell, which provided for a sales price
designed to yield $2,000 net to the sellers. The authorization was to expire on September 8,
1976. After the authorization was signed, Mr. Penrod moved to San Francisco to begin
medical school, while Mrs. Penrod remained in the Reno area pending the sale of the home.
The Penrods testified that in early September, 1976, they met with appellant Smith, who
was a manager for Northern Nevada. Appellant Smith represented to the Penrods that a
potential buyer had been found, but that the buyer was only able to pay a price of $1,000 over
the amount necessary for the Penrods to pay off their existing mortgage on the property.
Appellant Smith also represented to the Penrods that the $1,000 would go towards
commissions and closing costs. Thus, the Penrods would receive no net proceeds from the
sale. Finally, appellant Smith represented that it would be difficult to find a buyer who would
pay more for the house, and that the present deal was the best that Northern Nevada had to
offer.
On September 3, 1976, in reliance upon the representations made by appellant Smith, the
authorization to sell was modified to provide for a sales price yielding payoff only, instead
of $2,000 net to the Penrods. Other documents, including a power of attorney, were also
signed. A sale of the home was eventually consummated, and the Penrods' mortgage was paid
off. The Penrods received no net proceeds from the sale.
In October, 1976, the Penrods went to the mobile home to help the new buyers winterize
the trailer. During a casual conversation with the buyers, the Penrods discovered that the
selling price had actually been approximately $3,400 in excess of the mortgage payoff
amount.
1
The Penrods made a demand upon Northern Nevada in the amount of $2,000,
which the Penrods believed they should receive. This litigation was eventually commenced,
and was based on a fraud theory. A district court jury made an award to the Penrods in the
amount of $2,000 compensatory damages and $30,000 punitive damages.
____________________

1
The buyer testified that he had previously been told by Northern Nevada not to talk to the Penrods about the
money aspect of the sale.
1. Appellants first contend that the district court erred by giving an instruction which
stated that appellants Smith and Northern Nevada were agents of the Penrods.
2
Appellants
further contend that the district court erred by refusing instructions offered by appellants
which would have left the question of agency for the jury to decide.
[Headnotes 1-3]
As a general rule the existence or non-existence of an agency is a question of fact for the
jury. H.-J.-M. Safe Co. v. Balliet, 38 Nev. 164, 145 P. 941 (1914). However, it is not error for
the trial court to take from the consideration of a jury a fact which is clearly proved and not
materially disputed. See Adams v. Smith, 19 Nev. 259 (1886) (authority of agent; ratification
by principal). Furthermore, the legal effect of a document is generally a question of law for
the trial court. See Nev. Industrial Comm. v. Dixon, 77 Nev. 296, 362 P.2d 577 (1961); Weill
v. Lucerne Min. Co., 11 Nev. 200 (1876).
[Headnote 4]
In this case the district court found that there was no real dispute in the testimony as to the
facts regarding agency. We agree. At the time of the actionable misrepresentation the listing
agreement was still in effect. Appellants contend that the listing agreement was a contract of
sale to Northern Nevada rather than a contract of agency. This contention is wholly without
merit. The document granted to Northern Nevada an exclusive and irrevocable right to sell
said property. (Emphasis in original.) In addition to other language in the agreement
establishing an agency relationship, the document specifically referred to Northern Nevada as
said agent. We believe the document clearly and unequivocably created an agency
relationship between the Penrods and Northern Nevada.
The argument of appellants that the transaction on September 3, 1976, was actually a sale by
the Penrods to Northern Nevada, rather than the creation of an agency relationship, is
irrelevant. The actionable fraud consisted of misrepresentations which occurred before
modification of the listing agreement, and which were relied upon by the Penrods in their
agreement to the modification.
____________________

2
The challenged instruction read as follows:
HAROLD M. SMITH and NORTHERN NEVADA MOBILE HOME BROKERS were agents of DALLAS
and PAULA PENROD at all times relevant to this case.
An agent engaged in negotiating the sale of property for his principal must act with the utmost good faith,
loyalty, and honesty toward his principal and must disclose facts within or which may come to his knowledge
which might influence the principal in the transaction.
[Headnotes 5, 6]
Even if there was a material dispute as to the agency relationship, we are not persuaded
that a different result would have been reached had the question been left to the jury. The
existence of an agency relationship is not essential to a cause of action for fraud, and even if
no fiduciary relationship existed, once appellant Smith discussed the question of whether a
higher price was obtainable he had a duty to speak the whole truth and not by concealment
make his statements untruthful and misleading. Holland Rlty. v. Nev. Real Est. Comm'n, 84
Nev. 91, 436 P.2d 422 (1968). Thus, appellant Smith's misrepresentations constituted actual
fraud regardless of his relationship with the Penrods.
We conclude that the district court did not commit prejudicial error by giving the
challenged instruction and by refusing appellants' proposed instructions.
2. Appellants also contend that the award of punitive damages in the amount of $30,000
was excessive. We disagree.
[Headnote 7]
Punitive damages are designed to punish a wrongdoer for his act, and to deter others from
acting in a similar fashion, but such damages should not be influenced by passion and
prejudice on the part of the jury. Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962).
Furthermore, the amount of an award of punitive damages need have no particular
relationship to the amount of compensatory damages. Randono v. Turk, 86 Nev. 123, 466
P.2d 218 (1970).
[Headnote 8]
In this case the jury found that appellants were guilty of fraud. Appellants were apparently
found to have breached their professional duties to act in the utmost good faith and to
disclose all material facts to the Penrods before dealing for their own benefit. See generally
Jory v. Bennight, 91 Nev. 763, 542 P.2d 1400 (1975); Holland Rlty. v. Nev. Real Est.
Comm'n, supra. Furthermore, the evidence at trial disclosed that Northern Nevada has a
substantial net worth. There has been no suggestion made by appellants that the award in this
case would result in financial annihilation. See Tahoe Village Realty v. DeSmet, 95 Nev. 131,
590 P.2d 1158 (1979). In light of appellants' conduct and their financial status, we do not
believe the award of $30,000 punitive damages was excessive.
3. The other contentions raised by appellants have been considered, and we find them to
be without merit.
____________
96 Nev. 399, 399 (1980) Tea v. Protestant Episcopal Church
THE REVEREND CLARK A. TEA, Jr., et al., Appellants, v. THE PROTESTANT
EPISCOPAL CHURCH IN THE DIOCESE OF NEVADA, a Corporation, and THE RIGHT
REVEREND WESLEY FRENSDORFF, Respondents.
No. 11378
April 30, 1980 610 P.2d 182
Appeal from declaratory judgment, Eighth Judicial District Court, Clark County; James A.
Brennan, Judge.
Declaratory judgment action was commenced to determine title to church property. The
district court concluded that defendants had the right to control property held in the name of a
local church and decreed that defendants were entitled to possession of the property. Appeal
was taken, and the Supreme Court, Mowbray, C. J., held that: where the district court
determined that the responsible authority in the church hierarchy had asserted control over the
disputed property and that nothing in the internal regulations of the church or in state statutes
indicated that a local congregation could withdraw from the general church and retain control
of church property, the district court properly deferred to the ecclesiastical authorities'
decision as to the identity of the organization which represented the corporation to which a
municipality had quitclaimed the disputed real property.
Affirmed.
Franklin, Bixler & Damus, Chtd., Las Vegas, for Appellants.
Alvin N. Wartman, Las Vegas, and Samuel B. Francovich, Reno, for Respondents.
1. Religious Societies.
Courts should defer to decisions relating to title to church property made by responsible ecclesiastical
authorities acting under the internal discipline of the organization to which the local congregation has
voluntarily subjected itself.
The rule of deference to the decisions of responsible ecclesiastical authorities, adopted to avoid
entanglement with questions of religious doctrine, is not constitutionally impermissible. U.S.C.A.Const.
Amends. 1, 14.
3. Religious Societies.
In absence of any indication in statute or relevant documents of church government that a majority of a
local congregation could withdraw from the denomination and retain control of property held in the name
of the local church corporation and where the superior authorities of the hierarchical
church had decided, in proceedings which were not claimed to be the product of fraud
or collusion, that parties who seceded from church were outside the corporation to
which municipality had quitclaimed disputed real property and had identified the
"true" local congregation as the faction which remained loyal to the national and
diocesan church, district court properly deferred to the ecclesiastical authorities'
decision as to the identity of the organization that represented the corporation which
owned the property.
name of the local church corporation and where the superior authorities of the hierarchical church had
decided, in proceedings which were not claimed to be the product of fraud or collusion, that parties who
seceded from church were outside the corporation to which municipality had quitclaimed disputed real
property and had identified the true local congregation as the faction which remained loyal to the
national and diocesan church, district court properly deferred to the ecclesiastical authorities' decision as to
the identity of the organization that represented the corporation which owned the property. NRS 82.295,
82.2951, 82.300.
OPINION
This is a declaratory judgment action to determine title to church property. The trial court
concluded that respondents, the Episcopal Diocese of Nevada and the Bishop of Nevada, had
the right to control property held in the name of a local church and therefore decreed that
respondents were entitled to possession of the property. This appeal followed; we affirm.
The real property in question is the church of St. Christopher in Boulder City (together
with insurance proceeds collected as a result of a fire in the church building). The property
was originally leased to the Bishop of Nevada, a corporation sole, by the municipality of
Boulder City of 1961. In 1962, the local congregation of St. Christopher's Church was
incorporated as The Rector, Church Wardens, and Vestrymen of St. Christopher's Episcopal
Church in Boulder City, Nevada, (hereinafter The Rector), pursuant to NRS 82.300, which
specifies that corporate name for any church or religious congregation in communion with
the Protestant Episcopal Church. The Bishop of the Episcopal Diocese then assigned all of
his rights under the lease to the corporation, as a corporation of the Protestant Episcopal
Church. In 1971, NRS 82.295 was enacted, 1971 Nev. Stats. ch. 23, which permitted the
incorporation of the Episcopal Diocese of Nevada. The Diocese was then incorporated, to
include all missions and parishes of the Episcopal Church within the State of Nevada. NRS
82.2951.
On January 20, 1977, the municipality of Boulder City quitclaimed the property to the
corporation, The Rector. On January 23, 1977, a parish meeting was held, at which a
majority of the voting members
1
passed a resolution declaring that St.
____________________

1
Some evidence of irregularities in qualifying parishioners to vote on the question was introduced in the
district court. Since neither party has raised the issue of the regularity of the voting in this court, we need not
address the question.
St. Christopher's Church affirms that it is no longer a part of, or in communion with, the
Protestant Episcopal Church in the United States of America, or the Diocese of Nevada. . . .
On January 24, 1977, the quitclaim deed of the church property was recorded.
Pursuant to the internal procedures of the Episcopal Church, the Bishop of Nevada
deposed appellant Tea as Rector of St. Christopher's, and assumed the position of rector
himself, under the authority conferred upon him by the regulations of the Episcopal Church to
assume vacant rectories. The Bishop and the Diocese of Nevada then brought the instant
action in district court for a declaration that the church property was held by the corporation
The Rector in trust for the benefit of the Diocese and the national church. The appellants,
the former rector of St. Christopher's and certain members of the vestry of the parish who had
supported the resolution to secede from the national church, defended on the ground that the
district court had no jurisdiction to determine controversies involving religious doctrine.
Appellants also objected to the admission in evidence of the Constitution and Canons of the
Protestant Episcopal Church, as involving an inquiry by the court into questions of doctrine.
Following a trial to the court, the district court found that the Episcopal Church structure is
hierarchical, that the corporation The Rector had acceded to the Constitution and Canons of
the national Episcopal Church, and that therefore the local parishes held title to their property
subject to the superior authority of the Diocese of Nevada. The court concluded that both
the Constitution and Canons of the national church and the statutory provisions for the
incorporation of local parishes and the Diocese of Nevada granted the respondent Diocese the
right to control property held by local parishes in the corporate name specified by the statute,
and it therefore declared that the Bishop and the Diocese were entitled to possession of the
church property in question as the legal representatives of the corporation The Rector, the
record owner of the property.
On appeal, the former rector and the secessionist party of St. Christopher's contend that the
First and Fourteenth Amendments to the United States Constitution forbid the civil courts of
this state to inquire into questions of religious doctrine, including any inquiry into the manner
in which church property is held, beyond the scrutiny of the name in which the title is vested.
2
We cannot agree.
____________________

2
Appellants did not challenge the constitutionality of the statute relating to the incorporation of parishes in
the district court, nor do they here.
[Headnotes 1, 2]
The district court held, and we agree, that the courts of this state should defer to the
decision of responsible ecclesiastical authorities, under the internal discipline of the
organization to which the local congregation has voluntarily subjected itself. Jones v. Wolf,
443 U.S. 595, 602, 47 U.S.L.W. 4962, 4963, 4965 (July 2, 1979); Serbian Orthodox Diocese
v. Milivojevich, 426 U.S. 696, 724-25 (1976); Watson v. Jones, 80 U.S. (13 Wall.) 679
(1871). This rule of deference, adopted to avoid entanglement with questions of religious
doctrine, is not constitutionally impermissible. Jones v. Wolf, 47 U.S.L.W. 4962.
[Headnote 3]
The district court, in the instant case, determined from the regulations of the Episcopal
church polity [policy] that the church is hierarchical in structure, and that the state statutes
relating to the incorporation of parishes and the internal regulations of the church polity
provide that local congregations hold property subject to a trust in favor of the general
church. See Carnes v. Smith, 222 S.E.2d 322 (Ga.), cert. denied, 429 U.S. 868 (1976)
(awarding property to denominational church); Presbyterian Ch. In U.S. v. Eastern Heights
Pres. Ch., 167 S.E.2d 658 (Ga. 1969), cert. denied, 396 U.S. 1041 (1970) (awarding property
to local church). There is no indication in our statutes or in the relevant documents of church
government that a majority of a local congregation could withdraw from the denomination
and retain control of property held in the name of the local church corporation. See Church of
God in Christ, Inc. v. Cawthon, 507 F.2d 599 (5th Cir. 1975); cf. Maryland and Virginia
Eldership v. Church of God, 254 A.2d 162 (Md. 1969), appeal dismissed, 396 U.S. 367
(1970) (finding that local congregations held property without control by ecclesiastical
superiors). The superior authorities of the hierarchical church in the instant case, in
proceedings which are not claimed to be the product of fraud or collusion, Serbian Orthodox
Diocese v. Milivojevich, 426 U.S. at 713, have put appellants outside the statutory definition
of the corporation The Rector by severing communion with them, and have thus identified
the true local congregation as the faction which remains loyal to the national and diocesan
church. Having determined that the responsible authority in the church hierarchy had asserted
control over the property in question, and that nothing in the internal regulations of the church
or in the statutes of this state indicated that a local congregation could withdraw from the
general church and retain control of church property, the district court properly deferred to
the ecclesiastical authority's decision as to identity of the organization representing the
corporation "The Rector".
the district court properly deferred to the ecclesiastical authority's decision as to identity of
the organization representing the corporation The Rector. We perceive no error in the
district court's conclusion that respondents are entitled to possession of the church property in
question.
Therefore, the decree of the district court is affirmed.
____________
96 Nev. 403, 403 (1980) Wilmeth v. State
RICHARD WILMETH, aka TONY SILVA, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 11349
April 30, 1980 610 P.2d 735
Appeal from felony judgment, Eighth Judicial District Court, Clark County; Michael J.
Wendell, Judge.
Defendant was convicted in the district court for the felony of challenge to fight, and he
appealed. The Supreme Court, Manoukian, J., held that: (1) challenge to fight statute was not
constitutionally vague nor legally deficient; (2) defendant, who voluntarily entered into
mutual combat, was not entitled to an instruction on self-defense or on no-retreat rule; and (3)
trial court did not err in rejecting defendant's proffered instruction on lesser included offenses.
Affirmed.
[Rehearing denied June 19, 1980]
Embry & Shaner, Ltd. and Robert W. Lueck, Las Vegas, for Appellant.
Gregory C. Diamond, Deputy District Attorney, Clark County, for Respondent.
Due process does not require impossible standards of specificity in penal statutes; test of granting
sufficient warning as to proscribed conduct will be met if there are well settled and ordinarily understood
meanings for words employed when viewed in context of entire statutory provision. U.S.C.A.Const.
Amend. 14.
Statutes are clothed with presumption of validity and burden is on those attacking them to show their
unconstitutionality.
3. Dueling.
Challenge to fight statute was not constitutionally vague nor legally deficient. NRS 200.450.
4. Dueling.
Defendant, who voluntarily entered into mutual combat, was not entitled to an instruction on self-defense
or on no-retreat rule in prosecution under challenge to fight statute. NRS 200.200, 200.450.
5. Criminal Law.
In prosecution of defendant under challenge to fight statute, trial court did not err in rejecting instruction
on lesser included offenses of disturbing the peace and provoking commission of a breach of the peace.
NRS 200.450, 203. 010, 203.030.
OPINION
This is an appeal from a judgment of conviction for the felony of challenge to fight. NRS
200.450. Appellant was sentenced to a term of ten years in prison, which sentence was
suspended, followed by a grant of probation. We recognize three issues as meriting
consideration. They are: (1) Whether the challenge to fight statute is void for vagueness; (2)
Whether the trial court erred in failing to instruct the jury that appellant was not required to
retreat; and (3) Whether the trial court erred in failing to instruct on lesser included offenses.
We find no error and affirm.
The indictment stated that appellant did, upon previous concert and agreement, for the
purpose of accepting and complying with a verbal challenge to fight, did therefore meet with
one Grover Mack Hicks and did engage in that fight, after which the death of the said Grover
Mack Hicks, a human being, did ensue within a year and a day as a result of the use of deadly
weapons, to-wit: firearms, during said fight. We need make only limited reference to the
evidence presented below in our determination of the questions considered in this appeal.
1. The Challenged Statute.
Appellant contends that our challenge to fight statute is void for vagueness because it fails
to define what constitutes a challenge to fight; because it fails to define previous concert and
agreement in a manner such that a person of ordinary intelligence knows whether he has in
fact violated the statute; and, further, because it fails to distinguish between an aggressor
and defender situation.1 Here, we disagree.
further, because it fails to distinguish between an aggressor and defender situation.
1
Here,
we disagree.
[Headnotes 1-3]
The due process clause of the United States Constitution does not require impossible
standards of specificity in penal statutes. The test of granting sufficient warning as to
proscribed conduct will be met if there are well settled and ordinarily understood meanings
for the words employed when viewed in the context of the entire statutory provision.
Woofter v. O'Donnell, 91 Nev. 756, 762, 542 P.2d 1396, 1400 (1975) (citations omitted). See
Dinitz v. Christensen, 94 Nev. 230, 577 P.2d 873 (1978); Fields v. Sheriff, 93 Nev. 640, 572
P.2d 213 (1977). It is settled that statutes are clothed with the presumption of validity and the
burden is on those attacking them to show their unconstitutionality. Damus v. County of
Clark, 93 Nev. 512, 516, 569 P.2d 933, 935 (1977); see State ex rel. Santini v. Swackhamer,
90 Nev. 153, 521 P.2d 568 (1974); Viale v. Foley, 76 Nev. 149, 350 P.2d 721 (1960). In the
context of this case, we believe that the statute provided appellant with sufficient warning of
the proscribed behavior. See Rose v. Locke, 423 U.S. 48 (1975) (per curiam). The statute
proscribes the conveyance or acceptance of a challenge to fight when such a fight or
confrontation results. The degrees of punishment depend upon whether the fight involves the
use of a deadly weapon or
Appellant further argues that it is unclear when a participant may use self-defense when
weapons are used and an agreement to use weapons was not previously reached. Although we
can envision innumerable factual situations on which the warnings in the statute might be
considered ambiguous, on the instant facts, self-defense is no defense to the violation of this
statute.
____________________

1
1. If any person or persons, upon previous concert and agreement, fight one with the other or give or
send, or authorize any other person to give or send, a challenge verbally or in writing, to fight any other
person, the person or persons giving, sending or accepting a challenge to fight any other person, upon
conviction thereof shall be punished:
. . . .
(b) If the fight involves the use of a deadly weapon, by imprisonment in the state prison not less than
1 year nor more than 6 years.
. . . .
3. Should death ensue to any person in such fight, or should any person die from any injuries
received in such fight within a year and a day, the person or persons causing or having any agency in
causing such death, . . . shall be punished by imprisonment in the state prison for not less than 1 year nor
more than 10 years. (Emphasis added.)
Cf. State v. Grimmett, 33 Nev. 531, 112 P. 273 (1910) (defendant acted in self-defense and
was not subject to murder charge where he did not enter situation voluntarily). Criminal
responsibility in the context of this case is predicated upon the issuance or acceptance of a
challenge to fight and upon the fact that some fights occur. We find neither unconstitutional
vagueness nor legal deficiency in the statute.
2. The Rejected Instruction on Retreat.
Appellant contends that a person does not have to retreat when threatened with death or
great bodily harm and cites State v. Grimmett, 33 Nev. 531, 112 P. 273 (1910). That case is
distinguishable, as there, this court stated that it was well established that where a person,
without voluntarily seeking, provoking, inviting, or willingly engaging in a difficulty of his
own free will, is attacked by an assailant, he has the right to stand his ground and need not
retreat. Id. at 534, 112 P. at 273.
Nevertheless, the problematical nature of this issue is heightened by a realization of the
fact that the trial court instructed the jury as to a defendant's responsibility when he
voluntarily enters into a mutual combat.
2
Additionally, the jury was read a general
self-defense instruction which was, in substance, our self-defense statute. NRS 200.200.
3
Appellant argues that the no-retreat rule is consistent with NRS 200.200 and states that he
would not have encountered the decedent had he known he was going to be armed.4
Wilmeth claims that his proposed instruction made the law on retreat clear and that the
evidence did not sufficiently prove a mutual combat.
____________________

2
Instruction No. 7 reads:
When a defendant voluntarily enters into a mutual combat with the deceased, knowing, or having
reason to believe, that it will or probably may result in death or serious bodily injury to himself or to the
deceased, the defendant cannot claim that he acted in self-defense in taking the life of the deceased,
unless before the fatal shot is fired he in good faith withdrew or attempted to withdraw from the combat,
and either by word or act made that fact known to the deceased, and the latter thereafter continued to
press him, and gave the defendant reasonable cause to believe that he was in danger of being killed or of
receiving great bodily injury at the deceased's hands.

3
Instruction No. 6 reads:
If a person kill another in self-defense, it must appear that:
1. The danger was so urgent and pressing that, in order to save his own life, or to prevent his
receiving great bodily harm, the killing of the other was absolutely necessary, and,
2. The person killed was the assailant, or that the slayer had really, and in good faith, endeavored to
decline any further struggle before the mortal blow was given.
If evidence of self-defense is present, the State must prove beyond a reasonable doubt that the
defendant did not act in self-defense. If you find that the State has failed to prove beyond a reasonable
doubt that the defendant did not act in self-defense, you must find the defendant not guilty. In other
words, if you have a reasonable doubt whether or not the defendant acted in self-defense, your verdict
must be not guilty.
was going to be armed.
4
Wilmeth claims that his proposed instruction made the law on
retreat clear and that the evidence did not sufficiently prove a mutual combat.
[Headnote 4]
Appellant's rejected instruction stated that a defendant, in a non-mutual combat situation,
was not required to retreat if he reasonably believed he was in imminent danger of death. The
instruction which was read to the jury said that, for self-defense to be considered, the person
killed must have been the assailant or the slayer must have endeavored to decline any further
struggle. This substantially embodied appellant's proffered instruction for the purposes of this
case. As such, it was not error for the trial court to refuse appellant's proffered instruction.
Geary v. State, 91 Nev. 784, 793, 544 P.2d 417, 423 (1975). Here, neither the defense of
self-defense nor the no-retreat rule was relevant, and the instructions given improperly
benefited appellant. He cannot now claim error. See id.; cf. Dobbert v. Florida, 432 U.S. 282
(1977) (unsuccessful challenge to death penalty on ex post facto theory; new statute
mandating bifurcated trial was procedural and, on the whole, ameliorative).
3. The Rejection of Instruction on Lesser Included Offenses.
[Headnote 5]
Proposed jury instruction D stated that the jury could find appellant guilty of the lesser
included misdemeanor offenses of disturbing the peace, NRS 203.010, and provoking
commission of a breach of the peace, NRS 203.030.
5
Appellant contends that refusal of this
instruction constituted reversible error. We disagree.
We recognize that the statutory offenses to which appellant directs our attention may, in
many situations, qualify as lesser included offenses of NRS 200.450 as the offense charged
cannot be committed without committing the lesser offense.
____________________

4
The record places the credibility of this assertion in serious doubt. For months prior to the killing, the
participants in this unfortunate affray were on hostile terms, and there was evidence that each had uttered threats
to kill the other.

5
NRS 203.010 provides: Every person who shall maliciously and willfully disturb the peace or quiet of any
neighborhood or person or family by loud or unusual noises, or by tumultuous and offensive conduct,
threatening, traducing, quarreling, challenging to fight, or fighting, shall be guilty of a misdemeanor.
NRS 203.030 provides: Every person who shall by word, sign or gesture willfully provoke or attempt to
provoke, another person to commit a breach of the peace shall be guilty of a misdemeanor.
Lisby v. State, 82 Nev. 183, 187, 414 P.2d 592, 594 (1966); see also McMichael v. State, 94
Nev. 184, 577 P.2d 398 (1978). Although we have further stated that when there is evidence
absolving a defendant from guilt of the greater offense or degree but would support a . . .
lesser offense or degree [, t]he instruction is mandatory, without request, Lisby v. State, 82
Nev. at 187, 414 P.2d at 595, this requirement is not without limitation.
First, in Lisby, we relied on State v. Moore, 48 Nev. 405, 233 P. 523 (1925), which relied
upon section 6277 of the Revised Laws of 1912. That statute, and Moore, said that an
instruction on lesser degrees of the crime must be given if there was supporting evidence.
Here, however, the record fails to support the foundation for any verdict on a lesser degree.
6
Second, it is questionable whether some elements essential to a lesser offense were shown.
7
Lisby v. State, 82 Nev. at 187, 414 P.2d at 595. We find that respondent easily met its burden
of proof on the challenge to fight charge and there is insufficient supporting evidence in the
record tending to reduce the greater offense. Id. Here, statutory instructions on reasonable
doubt were given, as were instructions on the presumption of innocence, and we read the
record as unqualifiedly excluding a theory of guilt of either of the proffered lesser offenses.
See Ogden v. State, 96 Nev. 258, 607 P.2d 576 (1980). We conclude that appellant was not
prejudiced in view of the state of the instant record, as all of the instructions made it clear that
appellant should either be convicted or acquitted of the crime charged in the information. The
trial court committed no error in its refusal to give the instruction. Cf. Klepar v. State, 92
Nev. 103, 546 P.2d 231 (1976) (not error to refuse instruction on criminal trespass as a lesser
and included offense of burglary).
The remaining claims of error are rejected as being wholly without merit.
We affirm the judgment of conviction.
In the instant case, evidence strongly indicates: (1) that appellant did not contemplate
engaging in armed combat with the deceased, although appellant admittedly consented to
an unarmed physical confrontation; and {2) that later the deceased unexpectedly
assaulted appellant with a firearm, thereby commencing an altercation of far different
and more dangerous character.
____________________

6
See NRS 175.201. The challenge to fight statute is only divided into degrees according to whether or not a
weapon is used or a death occurs.

7
We note that NRS 203.010 requires that the peace or quiet of any person or neighborhood be disturbed and
NRS 203.030 requires that a person commit a breach of the peace, which also seems to require a showing that a
person or neighborhood be disturbed. The record does not support a finding of such elements nor was there an
attempt to prove them.
the deceased, although appellant admittedly consented to an unarmed physical confrontation;
and (2) that later the deceased unexpectedly assaulted appellant with a firearm, thereby
commencing an altercation of far different and more dangerous character.
I respectfully submit that, in this context, this court should apply the cardinal principle
articulated in Sheriff v. Hanks, 91 Nev. 57, 60, 530 P.2d 1191, 1193 (1975):
As this court long ago said: Penal statutes should be so clear as to leave no room
for doubt as to the intention of the legislature, and where a reasonable doubt does exist
as to whether the person charged with a violation of its provisions is within the statute,
that doubt must be resolved in favor of the individual. [Citations omitted.] . . .
I therefore submit that, in regard to any unexpected assault possibly made on
appellantoutside and beyond the foreseeable scope of the parties' agreement to fightthe
appellant was entitled to have the jury adequately instructed concerning the law of
self-defense.
The trial court did not so instruct the jury, which in my view constituted prejudicial error.
____________
96 Nev. 409, 409 (1980) Merluzzi v. Larson
ARMOND MERLUZZI, Appellant, v. PAMELA LARSON,
Administratrix of the Estate of David Manley, Respondent.
No. 10429
April 30, 1980 610 P.2d 739
Appeal from order dismissing personal injury complaint, Eighth Judicial District Court,
Clark County; James A. Brennan, Judge.
Plaintiff filed complaint seeking damages for injury allegedly caused by defendant driver's
negligent conduct in damaging plaintiff's parked automobile. Driver moved to dismiss
complaint on ground that it failed to state claim for relief. The district court granted driver's
motion with prejudice, and plaintiff appealed. The Supreme Court, Manoukian, J., held that:
(1) complaint did not state claim for relief when it averred that plaintiff, who had not
observed driver's unintentional hitting of plaintiff's parked automobile, had sustained physical
injury as proximate result of pursuing driver as he was leaving scene; {2) although
plaintiff contended that, as direct and proximate result of driver's injury to plaintiff's
parked automobile, driver's leaving of accident scene, and plaintiff's pursuit of driver's
automobile, plaintiff suffered emotional and physical injury, plaintiff's mental distress and
resulting physical injuries were such unusual and unforeseeable consequences of instant
accident that driver could not be held liable, as driver's duty not to hit parked automobiles
did not include protection against such unforeseeable consequences as occurred here,
given fact that driver's acts were unintentional and did not involve unreasonable risk of
causing emotional distress or personal injury to plaintiff, who was not even in parked
automobile; and {3) plaintiff unsuccessfully relied upon accident stop-and-report statutes
as alternative basis to impose liability against driver.
injury as proximate result of pursuing driver as he was leaving scene; (2) although plaintiff
contended that, as direct and proximate result of driver's injury to plaintiff's parked
automobile, driver's leaving of accident scene, and plaintiff's pursuit of driver's automobile,
plaintiff suffered emotional and physical injury, plaintiff's mental distress and resulting
physical injuries were such unusual and unforeseeable consequences of instant accident that
driver could not be held liable, as driver's duty not to hit parked automobiles did not include
protection against such unforeseeable consequences as occurred here, given fact that driver's
acts were unintentional and did not involve unreasonable risk of causing emotional distress or
personal injury to plaintiff, who was not even in parked automobile; and (3) plaintiff
unsuccessfully relied upon accident stop-and-report statutes as alternative basis to impose
liability against driver.
Affirmed.
Cochrane, Lehman, Nelson & Rose, Las Vegas, for Appellant.
Rose, Edwards, Hunt & Pearson, Ltd., Las Vegas, for Respondent.
1. Automobiles.
Complaint did not state claim for relief when it averred that plaintiff, who had not observed driver's
unintentional hitting of plaintiff's parked automobile, had sustained physical injury as proximate result of
pursuing driver as he was leaving scene. NRCP 12(b).
On motion to dismiss for failure to state claim for relief, trial court, and Supreme Court must construe
pleading liberally and draw every fair intendment in favor of plaintiff. NRCP 12(b)
3. Negligence.
A duty is defined as an obligation, to which law will give recognition and effect, to comport to a
particular standard of conduct toward another, and in negligence cases, the duty is invariably the same, one
must conform to legal standard of reasonable conduct in light of apparent risk.
4. Negligence.
It is settled in Nevada that issues of negligence and proximate cause usually are issues of fact and not of
law.
5. Negligence.
Reasonable minds often may differ as to whether a risk of harm reasonably should have been foreseen,
and issue should generally be submitted to trier of fact.
6. Negligence.
The foreseeability of harm is a predicate to establishing element of duty owed by one person to another.
7. Automobiles.
Although plaintiff contended that, as direct and proximate result of defendant driver's injury to plaintiff's
parked automobile, driver's leaving of accident scene, and plaintiff's pursuit of driver's
automobile, plaintiff suffered emotional and physical injury, plaintiff's mental distress
and resulting physical injuries were such unusual and unforeseeable consequences of
instant accident that driver could not be held liable, as driver's duty not to hit parked
automobiles did not include protection against such unforeseeable consequences as
occurred here, given fact that driver's acts were unintentional and did not involve
unreasonable risk of causing emotional distress or personal injury to plaintiff, who
was not even in parked automobile.
of accident scene, and plaintiff's pursuit of driver's automobile, plaintiff suffered emotional and physical
injury, plaintiff's mental distress and resulting physical injuries were such unusual and unforeseeable
consequences of instant accident that driver could not be held liable, as driver's duty not to hit parked
automobiles did not include protection against such unforeseeable consequences as occurred here, given
fact that driver's acts were unintentional and did not involve unreasonable risk of causing emotional distress
or personal injury to plaintiff, who was not even in parked automobile.
8. Damages.
There can be no recovery for mental distress and physical injury where there is damage to a plaintiff's
property which is neither observed nor heard by plaintiff, plaintiff is not a direct participant in occurrence,
damage occasioned is through negligence, and plaintiff experiences no physical impact.
9. Damages.
Plaintiff, who sued defendant driver contending that, as direct and proximate result of driver's injury to
plaintiff's parked automobile, driver's leaving of accident scene, and plaintiff's pursuit of driver's
automobile, plaintiff suffered emotional and physical injury, unsuccessfully relied upon accident
stop-and-report statutes as alternative basis to impose liability against driver, as such statutes were for
purpose of obtaining information as to ownership of accident vehicles and driver identification, not
avoidance of subsequent injuries which were subject of instant lawsuit, and consequences and controversy
here did not fall within remedial purposes of statutes. NRS 484.221, 484.223, 484.225.
OPINION
Plaintiff-appellant's complaint sought damages for personal injury allegedly caused by
respondent's (decedent David Manley's) negligent conduct in damaging appellant's
automobile. Respondent, pursuant to NRCP 12(b), moved to dismiss appellant's complaint on
the ground that it failed to state a claim for relief. The district court granted the motion with
prejudice.
[Headnote 1]
The sole issue presented to us is whether a complaint states a claim for relief when it avers
that the claimant has sustained physical injury as a proximate result of his response to the
unintentional damage to his personal property which he did not observe. In the context of this
case, we hold that such complaint fails to meet a Rule 12(b) challenge and affirm.
[Headnote 2]
On a motion to dismiss for failure to state a claim for relief, the trial court, and this court
must construe the pleading liberally and draw every fair intendment in favor of the plaintiff.
San Diego Prestressed Concrete Co. v. Chicago Title, Ins.
Corp., 92 Nev. 569, 573, 555 P.2d 484, 487 (1976). The complaint alleged that on March 29,
1976, at approximately 3:30 p.m., plaintiff-appellant had parked his car in a parking lot in
front of a cleaners in Las Vegas. Appellant was informed by an apparent witness that, while
appellant was inside the cleaning establishment, a second vehicle driven by Manley, had
struck appellant's parked car and that the second vehicle was then leaving the scene.
Appellant witnessed the vehicle leaving the parking lot and gave chase on foot. Appellant
alleged that respondent's decedent, Manley (who the record shows was then approximately
seventy-five years of age), carelessly and negligently operated and controlled [his] vehicle
and in so doing struck appellant's vehicle. Appellant also alleged that Manley violated
vehicular accident reporting statutes requiring drivers involved in an accident to stop at the
scene and provide complete information.
Appellant further alleged that, as a direct and proximate result of Manley's negligence and
appellant's consequent physical exertion in chasing the vehicle, appellant suffered injury to
his heart. Appellant eventually required hospitalization in August of 1976 with an acute
miocardial infarction and for injury to his neck, back and legs. Respondent moved for, and
was granted, an order dismissing plaintiff-appellant's complaint. This appeal followed.
1. Was Duty Owed?
[Headnote 3]
The trial court ruled as a matter of law that respondent owed no duty to appellant. In
Turney v. Sullivan, 89 Nev. 554, 516 P.2d 738 (1973), we held that one of the preconditions
to liability founded upon negligence, is the existence of a duty owed by the alleged tortfeasor
to the injured person. Id. at 555, 516 P.2d at 738. A duty is defined as an obligation, to which
the law will give recognition and effect, to comport to a particular standard of conduct toward
another. In negligence cases, the duty is invariably the sameone must conform to the legal
standard of reasonable conduct in the light of the apparent risk. W. Prosser, Law of Torts
53, at 324 (4th ed. 1971) [hereinafter cited as Prosser].
But, duty is only an expression of the aggregate of those policy considerations which
cause the law to conclude that protection is owed.
1
Id. at 325-26. Liability may be an
expanding concept in the field of negligence.
____________________

1
Among these considerations are the possibility of fraudulent claims and indefinable liability following
negligent acts. See Note, Hunsley v. Giard: Expanded Recovery for the Negligent Infliction of Mental Distress,
14 Willamette L.J. 71, 72-73 (1977). Many physical as well as emotional injuries are difficult to disprove and
are within the realm of the former consideration. We limit our considerations today, though, to the extent of
liability to which a defendant should be subject.
concept in the field of negligence. See Dillon v. Legg, 441 P.2d 912 (Cal. 1968); Shanahan v.
Orenstein, 383 N.Y.S.2d 327 (App.Div. 1976). Cf. Laakonen v. District Court, 91 Nev. 506,
538 P.2d 574 (1975) (Nevada guest statute held unconstitutional). But liability is not without
limitation. See, e.g., Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1015 (1974) (limiting
abrogation of doctrine of interspousal immunity to motor vehicle accident tort claims);
Palsgraf v. Long Island R.R., 16 N.E. 99 (N. Y. 1928) (defendant's duty to protect against
reasonably foreseeable harm to others did not extend to the injured plaintiff).
In urging this court to reverse the order of dismissal, appellant contends that, as a direct
and proximate result of respondent's injury to appellant's vehicle, respondent's leaving of the
accident scene, and appellant's pursuit of respondent's car, appellant suffered emotional and
physical injury. In support of this position, appellant directs our attention to a number of
authorities wherein plaintiffs alleged emotional and physical injuries due to their physical
response to a negligent act by a defendant. See Esposito v. Christopher, 485 P.2d 510
(Colo.App. 1971); Drummond v. Mid-West Growers, 91 Nev. 698, 542 P.2d 198 (1975);
Curtis v. Shell Pipe Line Corp., 265 P.2d 488 (Okla. 1953). The courts in those cases found
that the plaintiff was owed a duty of care by the defendant and left the determination of
negligence and proximate cause to the trier of fact. In these cases, there was physical impact
and easily demonstrable physical injuries. The physical injuries were immediate and were,
without dispute, directly and proximately caused by the negligence of the defendants without
any intervening acts of negligence. By contrast, a review of the dismissed complaint now
before us reveals that the physical injuries of which appellant complained were remote in
time to the incident.
[Headnotes 4, 5]
It is settled in Nevada that the issues of negligence and proximate cause usually are issues
of fact and not of law. Drummond v. Mid-West Growers, 91 Nev. at 704, 542 P.2d at 203;
State v. Silva, 86 Nev. 911, 915, 478 P.2d 591, 593-94 (1970); Barreth v. Reno Bus Lines,
Inc., 77 Nev. 196, 198, 360 P.2d 1037, 1038 (1961). Cf. Gunlock v. New Frontier Hotel, 78
Nev. 182, 370 P.2d 682 (1962) (evidence was, as a matter of law, insufficient to establish
negligence and proximate cause). Certainly, reasonable minds often may differ as to whether
a risk of harm reasonably should have been foreseen, and the issue should generally be
submitted to the trier of fact.
[Headnotes 6-8]
There are many situations in which a defendant's actions may without question be the
proximate cause of a plaintiff's injuries but where limitations have been placed upon the
duty owed to a plaintiff. See, e.g., Elliott v. Mallory Electric Corp.,
may without question be the proximate cause of a plaintiff's injuries but where limitations
have been placed upon the duty owed to a plaintiff. See, e.g., Elliott v. Mallory Electric Corp.,
93 Nev. 580, 585-86, 571 P.2d 397, 400 (1977). See also Todd v. Aetna Casualty & Surety
Co., 219 So.2d 538 (La.App. 1969). Of course, the foreseeability of harm is a predicate to
establishing the element of duty, see Hergenrether v. East, 393 P.2d 164 (Cal. 1964), and thus
is of prime importance in every case. Here, we believe that appellant's mental distress and
resulting physical injuries were such unusual and unforeseeable consequences of this accident
that respondent cannot be held liable. We now adopt the rule that there can be no recovery for
mental distress or physical injury where there is damage to a plaintiff's property which is
neither observed nor heard by the plaintiff, the plaintiff is not a direct participant in the
occurrence, the damage occasioned is through negligence, and the plaintiff experiences no
physical impact. See Todd v. Aetna Casualty & Surety Co., 219 So.2d at 543-44 (defendant
not liable for mental distress and resulting injury); Stahli v. McGlynn, 366 N.Y.S.2d 209
(Sup.Ct.App.Div. 1975) (no cause of action for emotional distress and ensuing injury). Cf.
Shanahan v. Orenstein, 383 N.Y.S.2d 327 (App.Div. 1976) (plaintiff allowed recovery as she
was in zone of danger and made natural response to rescue son and mother). From the
standpoint of legal policy, we hold that the duty of respondent's decedent not to hit parked
cars did not include protection against such unforeseeable consequences as occurred here.
Respondent's acts were unintentional and did not involve an unreasonable risk of causing
emotional distress or personal injury to appellant, who was not even in the parked vehicle.
See Todd v. Aetna Casualty & Surety Co., 219 So.2d 538.
2. Negligence Per Se.
[Headnote 9]
We find appellant's negligence per se argument meritless. Appellant relies upon NRS
484.221, 484.223 and 484.225 as an alternative basis to impose liability against respondent.
His reliance is misplaced. These accident stop-and-report statutes are for the purpose of
obtaining information as to ownership of accident vehicles and driver identification, not the
avoidance of the subsequent injuries which were the subject of this law suit. The
consequences and controversy here do not fall within the remedial purposes of the statutes.
The fact that respondent's decedent temporarily left the scene of the accident does not
provide an exception to the rule of nonliability we have announced today.2
not provide an exception to the rule of nonliability we have announced today.
2

We affirm the district court's order dismissing appellant's complaint with prejudice.
____________________

2
Cf. Stahli v. McGlynn, 366 N.Y.S.2d 209, 212 (Sup.Ct.App.Div. 1975) (no cause of action for emotional
distress and ensuing injury caused by observation or awareness of unintended damage to one's property). In
Stahli, the car owner, believing the culpable driver had failed to stop, twice ran from a restaurant out into the
street and subsequently collapsed due to a coronary attack which was the apparent cause of his death four days
later.
____________
96 Nev. 415, 415 (1980) Moore v. District Court
ROBERT J. MOORE, Individually, and Robert J. Moore and Robert E. Rhine, d.b.a. JUMBO
HOMES, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA, in and for the County of Clark, and the HONORABLE THOMAS J.
O'DONNELL, District Judge, Respondents.
No. 12308
April 30, 1980 610 P.2d 188
Original petition for mandamus.
Defendants in a personal injury action petitioned for a writ of mandamus to compel the
district court to enter partial summary judgment to preclude plaintiff, an uninsured motorist,
from recovering those damages he could have recovered under no-fault insurance coverage.
The Supreme Court, Thompson, J., denied the writ of mandamus since it would not dispose
of the entire controversy.
Writ denied.
Bell & Young, Ltd., of Las Vegas, for Petitioners.
Jack J. Pursel, of Las Vegas, for Respondents.
1. Mandamus.
Remedy of mandamus is available to compel trial court to rule properly if, as a matter of law, defendant
is not liable for any of the relief sought.
2. Mandamus.
Writ of mandamus would not issue to compel partial summary judgment to exclude a portion of damages
from any recovery in personal injury action where it would not dispose of the entire controversy.
OPINION
The petitioners, Moore and Rhine, are defendants in a personal injury action commenced
by Joseph and Rayma Robinson. In that action they filed a motion for partial summary
judgment to exclude the first $10,000 of special damages from any recovery the Robinsons
will receive, since liability to the Robinsons is admitted. Joseph Robinson has alleged special
damages including medical expenses in excess of $10,000. When the automobile collision
happened the defendant Moore carried liability insurance with Civil Service Employees
Insurance Co. with limits of $100,000 per person and $300,000 per accident. The plaintiff
Joseph Robinson was not insured.
1

The issue tendered to the district court by the motion for partial summary judgment was
whether the Nevada legislature, in enacting NRS ch. 698, the Motor Vehicle Insurance Act,
intended to preclude Joseph Robinson, an uninsured motorist, from recovering from
defendants those damages he could have recovered under no-fault insurance coverage had
Robinson, in fact, maintained such coverage. The district court ruled that Robinson was not
precluded, and denied the defendants' motion. Moore and Rhine, through this proceeding in
mandamus, seek to compel the entry of partial summary judgment. In response, it is asserted
that mandamus is not an available remedy.
[Headnote 1]
The remedy of mandamus is available to compel the district court to rule properly if, as a
matter of law, a defendant is not liable for any of the relief sought. State ex rel. Dep't Hwys v.
District Ct., 95 Nev. 715, 601 P.2d 710 (1979); Smith v. Gabrielli, 80 Nev. 390, 395 P.2d 325
(1964); Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964). The petition before us tenders
only a legal question. An issue of material fact is not present.
In the cited cases, however, the legal issue presented through the proceeding in mandamus
disposed of the entire controversy. That is not the situation here. Summary judgment was
sought by the defendants only with regard to a portion of the damages claimed.
____________________

1
The accident happened in 1974. The Nevada Motor Vehicle Insurance Act, NRS 698.010-698.510, was
then in effect. That Act has since been repealed, effective January 1, 1980. See 1979 Stats. of Nev. ch. 660, 9.
sought by the defendants only with regard to a portion of the damages claimed. The case is
still pending with regard to the balance of the damages sought. That aspect of the case will
not be affected by any action this court takes in the instant proceeding.
[Headnote 2]
Our use of mandamus in Dzack and its progeny is understandable since its purpose was to
avoid the expense of a needless trial in a situation where the defendant could not be found
liable for any of the relief sought. That significant policy consideration does not exist in this
case. The district court damage suit will not be terminated if we were to issue the requested
writ. We are asked to rule on only a part of the case. We choose not to extend the doctrine of
Dzack to this situation.
Writ denied.
____________
96 Nev. 417, 417 (1980) Franklin v. State
CHARLES EDWARD FRANKLIN, Appellant, v. THE
No. 11366
April 30, 1980 610 P.2d 732
Appeal from judgment of conviction. Eighth Judicial District Court, Clark County; J.
Defendant was convicted in the district court of robbery with use of a deadly weapon,
possession of a short-barreled shotgun, and carrying a concealed weapon, and he appealed.
The Supreme Court, Batjer, J., held that: (1) the police had reasonable cause to stop
defendant's car; (2) police officers had probable cause to arrest defendant; (3) promises by a
detective to release defendant on his own recognizance if he cooperated with authorities in
another state and to recommend a lighter sentence did not render defendant's confession
involuntary; and (4) defendant was properly convicted as a principal in possession of a
short-barreled shotgun.
Affirmed.
1. Arrest.
Police officer may stop and question an individual if officer reasonably believes, in light of his or her
experience and based upon specific, articulable facts, that criminal activity is afoot. NRS 171.123.
2. Arrest.
Probable cause to stop motorist exists when officers have reason to believe that felony was committed in
the area, and the vehicle is similar to the broadcast description of the getaway car. NRS 171.123.
3. Arrest.
Where police were aware that robbery had been committed, and defendant's car appeared to match
description of getaway car, police had reasonable cause to stop defendant. NRS 171.123.
4. Arrest.
Where circumstances, short of probable cause for arrest, justify a temporary investigatory stop, any facts
revealed by the investigation may create probable cause for arrest.
5. Arrest.
Probable cause for arrest exists if facts and circumstances known to police officer at time of the arrest
would lead a prudent person to believe that a felony was committed by defendant.
6. Arrest.
Where police officers knew that a robbery had been committed by three men, one of whom had a beard
and was wearing a black leather coat, and by time of defendant's arrest officers had discovered that he
matched such description and that there were two other occupants in defendant's car, officers had probable
cause to arrest defendant.
7. Criminal Law.
In prosecution for robbery with use of a deadly weapon, possession of a short-barreled shotgun, and
carrying a concealed weapon, evidence was sufficient to establish that defendant was sufficiently apprised
of his Miranda rights.
8. Criminal Law.
Confession is admissible as evidence only if it is made freely, voluntarily, and without compulsion or
inducement.
9. Criminal Law.
Promises by detective to release defendant on his own recognizance if he cooperated with authorities in
another state and to recommend a lighter sentence were not promises of leniency and did not render
defendant's confession involuntary. NRS 202.275, subd. 1.
10. Weapons.
In prosecution for possession of a short-barreled shotgun, evidence was sufficient for jury to conclude
that defendant aided or encouraged possession of shotgun by accomplice, and that defendant had dominion
over, and the right to possess, the shotgun, which was found on the front floorboard of defendant's car.
NRS 195.020, 202.275, subd. 1.
OPINION
Charles Edward Franklin appeals his conviction by jury verdict of robbery with use of a
deadly weapon, possession of a short-barreled shotgun, and carrying a concealed weapon.
short-barreled shotgun, and carrying a concealed weapon. He argues that (1) the police did
not have probable cause to stop him or to arrest him; (2) his confession was involuntary; and
(3) the prosecutor erroneously argued that Franklin could be convicted as an aider and abettor
of possession of a short-barreled shotgun. We affirm.
Between 4:30 a.m. and 5:30 a.m. on April 16, 1978, three men robbed the customers and
bartender at a Las Vegas bar. A few minutes later, a police radio broadcast described the
suspects as three Negro male adults, one of whom was bearded and was wearing a black
leather coat and carrying a revolver. Another suspect was armed with a sawed-off shotgun.
The getaway car was described as a black 1967 Ford LTD.
Within minutes, a police officer spotted a dark LTD driven by a Negro male, later
identified to be Franklin, approximately 10 blocks from the bar. No other occupants were
visible. The officer broadcast his observation and began following the suspect car. Franklin
immediately changed direction by making a U-turn. The police stopped the vehicle and
ordered Franklin to lie face-down on the ground. Franklin then told the officers that two other
people were in the car. After the other two alighted, the officers placed all three men under
arrest based upon their similarity to the broadcast description of the suspects and the
description of the car.
A search incident to Franklin's arrest revealed a .22 caliber pistol. A sawed-off shotgun
and money were in plain view inside the car. All evidence was seized and admitted at trial.
I.
[Headnote 1]
Franklin argues that the police were not justified in pulling him over because they acted on
mere suspicion unsupported by articulable facts. An officer may stop and question an
individual if the officer reasonably believes, in light of his or her experience and based upon
specific, articulable facts, that criminal activity is afoot. Stuart v. State, 94 Nev. 721, 587 P.2d
33 (1978); Terry v. Ohio, 392 U.S. 1 (1968); NRS 171.123.
[Headnotes 2, 3]
Probable cause to stop a motorist exists when officers have reason to believe that a felony
was committed in the area, and the vehicle is similar to the broadcast description of the
getaway car. Washington v. State, 94 Nev. 181, 576 P.2d 1126 (1978); Johnson v. State, 86
Nev. 52, 464 P.2d 465 (1970). Because the police were aware that a robbery had been
committed, and because Franklin's car appeared to match the description, police had
reasonable cause to stop Franklin.
[Headnotes 4, 5]
When circumstances, short of probable cause for arrest, justify a temporary investigatory
stop, any facts revealed by the investigation may create probable cause for arrest. Washington,
94 Nev. at 184; Johnson, 86 Nev. at 53; Robertson v. State, 84 Nev. 559, 445 P.2d 352
(1968). Probable cause for arrest exists if the facts and circumstances known to the officer at
the time of the arrest would lead a prudent person to believe that a felony was committed by
the defendant. Block v. State, 95 Nev. 933, 604 P.2d 338 (1979).
[Headnote 6]
In this case, officers knew a felony had been committed by three men, one of whom had a
beard and was wearing a black leather coat. By the time of Franklin's arrest, the officers had
discovered that he matched that description. They also had discovered two other occupants in
the car. Based upon the facts known to them, the officers had probable cause to arrest
Franklin. The fruits of the arrest and of the incidental search were admissible at trial.
II.
[Headnote 7]
Franklin contends that his confession was induced by promises of leniency and, therefore,
was involuntary and inadmissible. Following his arrest, Franklin had a couple of discussions
with a police detective about other robberies in Los Angeles and Las Vegas. Franklin was
told that if he cooperated with California authorities by testifying in Los Angeles, and if
California issued a warrant for him, then Las Vegas police would obtain an own
recognizance release for him until after he testified.
1
The detective promised that he would
recommend leniency, and would try to have Franklin tried separately from his co-defendants
when he returned to Las Vegas to face the robbery charges.
2
About a week after their last
meeting, the detective visited Franklin again, accompanied by two California officers. After
advising Franklin of his Miranda rights,
3
Franklin was taken to the detective bureau where
he confessed to the robbery at the Las Vegas bar.
4
[Headnotes S, 9]

____________________

1
Because no warrant was issued and California authorities never requested that Franklin testify, he was not
released.

2
Franklin was tried separately.

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

4
Franklin denies being advised of his Miranda rights before he signed his statement. However, the rights
were written at the top of his signed statement and the officer testified that he verbally advised Franklin of his
rights before removing him from his cell. The district judge's finding that Franklin was sufficiently apprised of
his rights is supported by the evidence.
[Headnotes 8, 9]
A confession is admissible as evidence only if it is made freely, voluntarily, and without
compulsion or inducement. Schaumberg v. State, 83 Nev. 372, 432 P.2d 500 (1967); Bram v.
United States, 168 U.S. 532 (1897) (it must not be extracted by any . . . direct or implied
promises, however slight); People v. Carr, 502 P.2d 513 (Cal. 1972). The promise to release
Franklin on his own recognizance was not a promise of leniency because after testifying in
California, Franklin was to return to Las Vegas to face the robbery charges for which he was
subsequently convicted. The promise to recommend a lighter sentence did not render the
confession involuntary. Fernandez-Delgado v. United States, 368 F.2d 34 (9th Cir. 1966)
(agent offered to assist defendant in obtaining bail and to bring defendant's cooperation to
prosecutor's attention). Accord, People v. Wischemann, 156 Cal. Rptr. 386 (Cal.App. 1979).
Cf. State v. Wakinekona, 499 P.2d 678 (Hawaii 1972) (prosecutor said he might try to help
codefendant if codefendant testified; testimony admissible). The district judge's conclusion
that Franklin was not improperly induced to confess is supported by substantial evidence and
will not be disturbed on appeal. Brimmage v. State, 93 Nev. 434, 567 P.2d 54 (1977).
5

III.
[Headnote 10]
Finally, Franklin argues that the prosecutor misstated the law in his closing argument when
he said that Franklin could be convicted of possessing a short-barreled shotgun. According to
Franklin, he personally must have possessed the gun in order to be convicted under NRS
202.275(1).
6

NRS 195.020 permits conviction, as a principal, of any person who aids and abets the
commission of a felony or who counsels, encourages, induces or otherwise procures another
to commit a felony. We recently held that an individual can aid and abet a possessory crime.
Roland v. State, 96 Nev. 300, 608 P.2d 500 (1980). Franklin's accomplice clearly had
possession of the shotgun during the robbery. A jury could reasonably conclude that Franklin
aided or encouraged that possession.
In addition, a jury could reasonably conclude that Franklin had dominion over, and the
right to possess, the shotgun found on the front floorboard of the car he was driving. See State
v. Atkinson, 523 P.2d 737 {Kan.
____________________

5
The issue of voluntariness was also submitted to the jury.

6
NRS 202.275(1):
Any person who unlawfully possesses, manufactures or disposes of any . . . short-barreled shotgun
shall be punished by imprisonment in the state prison for not less than 1 year nor more than 6 years.
Atkinson, 523 P.2d 737 (Kan. 1974). The law was neither misrepresented by the prosecutor
nor misapplied by the jury. Franklin was properly convicted as a principal in possession of a
short-barreled shotgun.
____________
96 Nev. 422, 422 (1980) Wilson v. State
GERALD DEWAYNE WILSON, Appellant, v. THE
No. 10918
April 30, 1980 610 P.2d 184
Appeal from judgment of conviction. Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Defendant was convicted in the district court of attempted sexual assault on a minor under
the age of 14, and he appealed. The Supreme Court, Mowbray, C. J., held that the testimony
of an eight-year-old witness was not so inherently improbable, nor so coached or rehearsed,
as to establish incompetency.
Affirmed.
Manoukian, J., dissented.
Richard H. Bryan, Attorney General, Carson City; and Robert J. Miller, District Attorney,
1. Witnesses.
Standard of competence for child witness is that child must have capacity to receive just impressions and
possess the ability to relate them truthfully.
2. Criminal Law.
Trial court's finding of competence of child witness will not be reversed on appeal absent a clear abuse of
discretion.
3. Witnesses.
Inconsistencies in testimony of child witness go to weight to be given to the evidence by jury rather than
to question of competence.
4. Witnesses.
In prosecution for attempted sexual assault on minor under age of 14, inconsistencies in
eight-year-old witness' testimony related to matters peripheral to crime alleged, and
testimony was not so inherently improbable, nor so coached or rehearsed, as to
establish incompetency.
inconsistencies in eight-year-old witness' testimony related to matters peripheral to crime alleged, and
testimony was not so inherently improbable, nor so coached or rehearsed, as to establish incompetency.
NRS 200.366.
OPINION
Gerald Dewayne Wilson appeals from his conviction of attempted sexual assault on a
minor under the age of fourteen years, NRS 200.366. We affirm.
Wilson's sole contention on appeal is that an eight-year-old witness was incompetent and
his testimony, therefore, should not have been admitted into evidence. At trial, the child
testified that Wilson had forced his way into the apartment in which the child was alone with
his twenty-three month old sister, had taken the infant into the bedroom and had committed
the sexual assault. The child further testified that Wilson then left, threatening him with harm
if he told anyone of the crime.
Prior to receiving the testimony, the trial court conducted a voir dire examination of the
child and found him competent to testify. Wilson had been charged with sexual assault. The
jury, however, returned a verdict of guilty of attempted sexual assault, apparently finding that
there was insufficient evidence of penetration to constitute the crime of sexual assault.
1

[Headnotes 1, 2]
The standard of competence for a child witness is that the child must have the capacity to
receive just impressions and possess the ability to relate them truthfully. Fields v. Sheriff, 93
Nev. 640, 572 P.2d 213 (1977). A trial court's finding of competence will not be reversed on
appeal absent a clear abuse of discretion. Terrible v. State, 78 Nev. 159, 370 P.2d 51 (1962).
On appeal, this Court is not confined to a review of the voir dire examination; rather, we look
to the subsequent testimony as well, which may support a finding of competence if clear,
relevant and coherent. Id. at 160, 370 P.2d at 51.
[Headnotes 3, 4]
Appellant refers us to various inconsistencies in the child's testimony and in the voir dire
examination, contending that they establish the child's incompetence. Inconsistencies in
testimony go to the weight to be given the evidence by the jury rather than to the question
of competence.
____________________

1
An expert witness testified that penetration of a twenty-three month old girl would be almost impossible
without obvious damage to the child, and there was no evidence that any such damage had been observed.
rather than to the question of competence. Shuff v. State, 86 Nev. 736, 739, 476 P.2d 22, 24
(1970); State v. Shambo, 322 P.2d 657 (Mont. 1958). Moreover, the inconsistencies referred
to by appellant relate to matters peripheral to the crime alleged: the testimony reveals that at
the time of trial (approximately nine months after the commission of the crime), the child had
difficulty remembering whether he had spoken to police officers at the time of the incident,
could not remember in detail what he was doing in the general time period surrounding the
event, and was easily confused by cross examination relating to his previously given
testimony. The child's account of the crime, however, was the same at trial as his original
relation of the incident, and it did not change under cross examination. See Harris v. State,
261 P.2d 909, 916 (Okla.Crim.App. 1953). We cannot say that the child's testimony was so
inherently improbable, People v. Lamb, 264 P.2d 126, 130 (Cal.App. 1953), as to establish
the witness' incompetency as a matter of law. Nor has appellant shown that the testimony was
coached or rehearsed, Jordan v. People, 419 P.2d 656, 661 (Colo. 1966), cert. denied, 386
U.S. 992 (1967), to a degree sufficient to justify overturning a trial court's finding of
competency. Therefore, the judgment of the district court is affirmed.
Thompson, Gunderson, and Batjer, JJ., concur.
Manoukian, J., dissenting:
I respectfully dissent. In my view, the trial court abused its discretion in finding that a
child witness was competent to testify. As a result, appellant was convicted of attempted
sexual assault of a child under the age of fourteen, NRS 200.366, a felony, and sentenced to
twenty years in prison.
Marc, seven years of age at the time of the alleged crime, was the chief witness for the
state. He testified that on the morning of August 6, 1977, appellant Wilson knocked on the
door of the apartment in which Marc was alone with his twenty-three month old sister, Lolita.
Marc opened the door because the knock sounded like that of his mother who was at work.
Wilson entered the apartment and pushed Marc over. Appellant then was searching through
house and then brought Lolita into the bedroom from the living room where she had been
watching television and sexually assaulted her. According to Marc, Wilson took his
ding-a-ling and stuck it in her, and she started crying. . . . On cross-examination Marc would
say yes when asked if Lolita had yelled and screamed. Marc then got a knife from the kitchen
and told Wilson to get off of his sister.
Marc stated he did not tell his mother of the incident later, though, as Wilson had said he
knew where to get Marc if he told anyone. After a voir dire examination had been held
outside the presence of the jury, the district judge ruled that Marc was competent to testify.
Marc then related his story to the jury.
Other evidence shows that when Marc's mother returned home, she noticed nothing
unusual. She said Lolita appeared irritable but that that was normal. On August 8, two days
after the alleged assault, a neighbor asked Marc's mother if her daughter had been raped.
Apparently, Marc had mentioned the incident to the neighbor's daughter and thirteen-year-old
son who had told their mother. Marc's mother then summoned the police and took Lolita to
the hospital, where the examination revealed a slight redness around Lolita's vaginal area.
The state called a nurse who was present at the examination. The nurse testified that the
conclusion of the examining physician was that there was no tenderness, no swelling and no
sexual penetration. The hymen was not torn or broken. The redness, or an irritation termed
erythema, was located in the area between the outside labia and inside labia. A medical
expert, called by the defense testified that it would be almost anatomically impossible for a
sexual assault to be perpetrated on a two year old in any situation and, if it was accomplished,
it would not be done without significant damage. The record contains other explanations for
the redness which are inconsistent with criminality and, in fact, characteristic of infancy.
A police officer testified that he assisted in the conduct of a photographic lineup
approximately one month after the incident. At that time Marc was shown seven color
photographs of black males in their early twenties. Marc quickly picked out appellant's
photograph. The officer acknowledged that Marc did not say that appellant was the one who
assaulted Marc's sister, although he seemed to be pretty much aware of why he was there.
. . . On cross-examination, the officer also admitted that appellant stood out in the photos as
a man of smaller stature.
Appellant presented an alibi stating that he had been out late the night before and slept late
that morning in a friend's apartment. This was partially corroborated by the friend who said
that they were out until 2 a.m. and that she slept until noon but could not be certain that
appellant had. Although she had no specific recollection as to what time appellant woke up,
she did testify that they commonly slept late.
It is true that a finding of competence by a trial court will not be reversed unless there is
a clear abuse of discretion.
be reversed unless there is a clear abuse of discretion. Terrible v. State, 78 Nev. 159, 370 P.2d
51 (1962). Nevertheless, this court is not confined to a review of the voir dire examination of
the child, but may look at the subsequent testimony by the witness. Id. at 160, 370 P.2d at 51.
Support for a finding of competence may be found in subsequent testimony if clear, relevant
and coherent. Id.
Marc's testimony was inconsistent in several respects. His ability to recall circumstances
surrounding the alleged assault was concededly flawed. At the initial hearing, and in response
to a question by the court, Marc thought that he had been attending school at the time of the
incident. Later, in the presence of the jury, Marc stated that he was living with his mother in
Las Vegas on Saturday, the day of the incident. In fact, Marc attended school from September
to June while living with his father in Illinois.
On direct examination, Marc stated that his sister started crying when appellant
assaulted her. On cross-examination, Marc said yes when asked if Lolita yelled and screamed.
Marc testified on voir dire that he had not spoken to any policeman about the incident. Before
the jury he said that he had talked to a policeman and, on cross-examination, he admitted that
he simply had not remembered talking to a policeman. Marc also said he knew what the word
screw meant although at the preliminary hearing he had stated he did not know what it
meant. More importantly, Marc testified that he had been unable to remember parts of his
testimony before discussing it with the district attorney prior to the trial and that the district
attorney had had to describe what Marc purportedly saw to get him to answer questions.
Marc's testimony demonstrated additional problems. Marc consistently stated that he had
told his mother about the incident on the Monday nine days after the Saturday occurrence. In
fact, Marc had told his mother the Monday two days after the incident. Marc did identify
appellant as having been in the apartment complex. But when asked by the court, Did you
see that person do anything unusual at the Moulin Rouge [apartments]?, Marc answered,
Could you describe that to me? I also note that while Marc selected appellant's picture from
the photographic lineup, it appears that appellant was the only person Marc knew.
All of these factors combine to indicate an inability on Marc's part to distinguish between
what was true and what was not true. Marc was also confused about the distinction between
not knowing or remembering something and telling a lie about it. When Marc first said that
something did not happen (such as that he talked to a policeman) he would later admit he
had simply forgotten.
that he talked to a policeman) he would later admit he had simply forgotten. Under the
standard of competency, Marc's testimony was tantamount to an inability to appreciate the
nature of an oath. See State v. Hastings, 477 S.W.2d 108 (Mo. 1972).
We have held, under the former statutory standard of competency, NRS 48.030, that
inconsistencies in testimony go to weight rather than competence. Shuff v. State, 86 Nev.
736, 739, 476 P.2d 22 (1970); State v. Shambo, 322 P.2d 657 (Mont. 1958). Other courts
have emphasized that incompetence is not shown when inconsistencies go to peripheral
matters, but the child never wavered in his testimony as to the crime itself. Harris v. State,
261 P.2d 909, 916 (Okla.Crim. 1953). Nevertheless, when the child's testimony is inherently
improbable, see State v. Lamb, 264 P.2d 126, 130 (Cal.App. 1953), or coached or
rehearsed, Jordan v. People, 419 P.2d 652, 661 (Colo. 1966), cert. denied, 386 U.S. 992
(1967), competence and, therefore, admissibility, is involved. In this case, Marc's testimony
on voir dire and at trial indicates that he had no recollection of the alleged assault
independent of his discussion with the district attorney before trial. See State v. Robertson,
480 S.W.2d 845, 847 (Mo. 1972).
Other factors contained in the record cast serious doubt, not only upon Marc's credibility,
but on his ability to recollect and relate truthfully what he observed. See Shuff v. State, 86
Nev. at 738, 476 P.2d at 23-24. Marc testified that he brandished a knife at appellant but was
sufficiently threatened that he could not tell his mother; Marc did, however, tell his friends.
The mother noticed nothing at all wrong with her daughter and the subsequent examination
revealed only a slight redness. The medical testimony indicated an anatomical impossibility
that the assault had occurred as Marc portrayed it. And, although his sister cried or screamed
(it is uncertain just what she did), Marc said she went to sleep after the incident. It is unlikely
that no one in the apartment complex would hear the child screaming while she was being
assaulted. Under these circumstances, where there is no evidence other than the testimony of
a seven-year-old child that a crime was committed, and the testimony is not only inconsistent
but inherently improbable as well, I perceive no alternative but to conclude that the trial
court abused its discretion in finding the child witness competent.
Moreover, even without the witness competency question, on this record the evidence
which supports the verdict of the jury was, in my view, so insufficient as to preclude rational
triers of fact from rendering a guilty verdict on any offense. Jackson v. Virginia, 99 S.Ct.
2781 (1979). If juries within our criminal justice system can convict when evidence of guilt
is so marginal, the standard of proof applicable at trials would be rendered meaningless.
criminal justice system can convict when evidence of guilt is so marginal, the standard of
proof applicable at trials would be rendered meaningless. I would reverse the judgment of
conviction.
____________
96 Nev. 428, 428 (1980) Lucas v. State
CHARLES DONALD LUCAS, Appellant, v. THE STATE
No. 11283
No. 11284
No. 11285
April 30, 1980 610 P.2d 727
Appeal from judgment of conviction for sexual assault, open and gross lewdness,
attempting to give away or supply a controlled substance (two counts), and possession of a
controlled substance, Eighth Judicial District Court, Clark County; Thomas J. O'Donnell,
Judge.
Defendant appealed. The Supreme Court, Gunderson, J., held that: (1) where crucial issue
in prosecution for sexual assault was whether act was committed without victim's consent,
photographs and slides which defendant showed victim helped to furnish basis for jury to find
that victim was not willing participant and were properly admitted into evidence in
completion of story of crime by proving immediate context of happenings near in time and
place; (2) the trial court in admitting 85 slides and other photographs did not abuse its
discretion in striking balance between prejudicial impact and probative value; (3) there was
no error in admitting testimony of other acts which were not remote in time and were similar
to acts with victim, even if other girls accepted drugs and were probably willing to perform
the sexual acts; and (4) an error in search warrant in stating apartment address was not fatally
defective.
Affirmed.
Wiener, Goldwater & Waldman, and Laurence A. Speiser, Las Vegas, for Appellant.
96 Nev. 428, 429 (1980) Lucas v. State
Richard Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
Howard Douglas Clark, and William Koot, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Where crucial issue in prosecution for sexual assault was whether act was committed without victim's
consent, photographs and slides which defendant showed victim helped to furnish basis for jury to find that
victim was not willing participant and were properly admitted into evidence in completion of story of crime
by proving immediate context of happenings near in time and place. NRS 200.366, subd. 1.
2. Criminal Law.
In prosecution for sexual assault, inter alia, trial court in admitting into evidence 85 slides and other
photographs, out of more than 3,000 photographs which police had seized in search of defendant's
apartment, of which approximately 450 were similar to those shown jury, did not abuse discretion in
striking balance between prejudicial impact and probative value. NRS 48.035, subd. 1, 200.366, subd. 1.
3. Criminal Law.
In prosecution for sexual assault, inter alia, testimony of girls other than victim, that defendant gave them
drugs, took pictures of them in the nude and induced them to perform sexual acts with himself and others
was properly admitted where acts to which girls testified were not remote in time and were similar to acts
with victim, though they accepted drugs and might have been willing to perform the sexual acts. NRS
48.035, subd. 1, 200.366, subd. 1.
Information provided by victim of crime to police officer is presumptively reliable, for purposes of
determining probable cause for search and seizure. U.S.C.A.Const. Amend. 4.
Record showed probable cause for warrant to search defendant's apartment for photographs, slides and
drugs as described by informant who became complainant in prosecution for sexual assault. NRS
200.366, subd. 1; U.S.C.A.Const. Amend. 4.
Error in search warrant, in stating apartment address, was not fatally defective where warrant enabled
officers executing warrant to locate and identify apartment to be searched and where there was no
reasonable possibility that other premises might be searched. U.S.C.A.Const. Amend. 4.
7. Mental Health.
In statute providing that proceedings must be suspended if doubt arises as to accused's sanity, doubt
referred to is doubt in mind of sentencing judge. NRS 178.405.
8. Criminal Law.
Record including opinion of psychiatrist that defendant was suffering from character disorder but that
diagnosis of psychosis was unwarranted did not require trial court to suspend proceedings for doubt as to
sanity of accused. NRS 178.405.
9. Criminal Law.
Where trial judge's remarks reflected inferences which reasonably could be drawn from evidence
presented at trial and presentencing report and where no prejudice from impalpable or highly suspect
evidence was shown, reviewing court would not interfere with sentence imposed
despite contention that trial judge had improperly considered evidence of crimes not
charges.
96 Nev. 428, 430 (1980) Lucas v. State
shown, reviewing court would not interfere with sentence imposed despite contention that trial judge had
improperly considered evidence of crimes not charges.
OPINION
On November 15, 1977, the appellant admittedly performed sexual acts with a
sixteen-year-old girl. The jury believed the acts were performed without the victim's consent
and convicted the appellant of sexual assault.
1
Also, the jury believed appellant and a young
girl named Bernadette had performed cunnilingus and fellatio in the victim's presence, and
they therefore convicted appellant of open and gross lewdness. Finally, the jury convicted
appellant of possessing drugs found in his apartment during a search, and of attempting to
give quaaludes to the victim on November 10, and November 15, 1977. The court sentenced
appellant to consecutive terms of life imprisonment with possibility of parole for sexual
assault; one year in the county jail for open and gross lewdness; and a total of twenty-six
years on the drug charges.
The victim met appellant at her place of employment in November, 1977. He was
accompanied by two young girls, Sharon and Bernadette, one of whom he introduced as his
daughter. He told the victim he would take photographs of her for use in a fashion portfolio.
Accompanied by her mother, the victim went to the appellant's apartment on November 10.
Beverly kept the mother occupied while appellant photographed the victim. Appellant offered
the victim a quaalude, which she refused. He kissed Bernadette on the breasts while the
victim watched. He claims he told the victim he would pay her for modeling and for
sexuality if she returned.
On November 15, the victim returned to the apartment. The victim again refused
appellant's offer of a quaalude. Appellant persuaded her to look at photographs of young girls,
nude, posed suggestively, and he described the sexual abilities of the girls pictured. The
appellant showed the victim a gun. He then showed the victim more than eighty slides, all of
young girls in sexually suggestive poses, and one slide showing himself with a young girl.
____________________

1
A person who subjects another person to sexual penetration, or who forces another person to make a
sexual penetration on himself or another, or on a beast, against the victim's will or under conditions in
which the perpetrator knows or should know that the victim is mentally or physically incapable of
resisting or understanding the nature of his conduct, is guilty of sexual assault.
96 Nev. 428, 431 (1980) Lucas v. State
sexually suggestive poses, and one slide showing himself with a young girl. He then
demanded that the victim remove her clothes and lie down on the bed. She testified she did so
because she had become scared and confused. Appellant placed his penis in the victim's
mouth, and she began crying and choking. He then summoned Bernadette to the apartment.
Although Bernadette and the appellant testified that the victim willingly joined them in a
sexual scenario, the victim testified she stood by the bed and watched as Bernadette and
appellant performed cunnilingus and fellatio. The encounter ended when appellant asked the
girls to touch each other and the girls refused.
The assignments of error are: (1) that the trial court erred in refusing to exclude the
photographs and slides shown to the victim, and in refusing to exclude certain testimony from
Bernadette, Sharon, and Sharon's sister Beverly; (2) that the trial court erred in denying
appellant's motion to suppress the photographs, slides and drugs; (3) that the court erred in
sentencing the appellant after a doubt had arisen as to his sanity; and (4) that the trial court
erred in sentencing appellant because he considered appellant's misconduct with young girls
other than the victim.
[Headnote 1]
1. The victim testified that prior to viewing the photographs, she intended to resist any
advances made by the appellant. She testified that after she viewed the slides, she became
scared and confused. When appellant demanded that she remove her clothes and submit, she
did. Thus, we think, the State was entitled to complete the story of the crime by proving the
immediate context of happenings near in time and place. Allan v. State, 92 Nev. 318, 320,
549 P.2d 1402, 1403 (1976).
The crucial question in determining if a sexual assault has occurred is whether the act is
committed without the victim's consent. The photographs and slides helped to furnish a basis
for the jury to find that the victim was not a willing participant, but rather that appellant
caused her to perform fellatio against her will, as she testified. See State v. McClain, 245 P.2d
278 (Ariz. 1952); cf. State v. Natzke, 544 P.2d 1121, 1124 (Ariz.App. 1976). Thus, the
photographs and slides had relevance.
[Headnote 2]
2. Appellant argues, however, that even if that be so, the trial court erred in admitting the
slides and photographs because their prejudicial impact upon the jury outweighed their
probative value. NRS 48.035(1). A trial court's evaluation of such an issue will not be
reversed unless it is manifestly erroneous.
96 Nev. 428, 432 (1980) Lucas v. State
such an issue will not be reversed unless it is manifestly erroneous. See Jones v. State, 85
Nev. 4, 448 P.2d 702 (1969). After evidentiary hearings, the trial court admitted those
photographs and slides which appellant could identify. The police seized more than 3,000
photographs in a search of appellant's apartment, of which approximately 450 were similar to
those shown the jury. After consideration of the 85 slides and other photographs, we cannot
declare the balance struck by the trial court to be manifestly erroneous.
[Headnote 3]
3. Appellant also contends that certain testimony from Bernadette, Sharon and Beverly
should have been excluded. The girls testified that appellant gave them drugs, took pictures
of them in the nude, and induced them to perform sexual acts with himself and others. The
acts to which the girls testified were not remote in time, and were similar to acts with the
victim. The fact that they accepted the drugs and may have been willing to perform the sexual
acts does not make the challenged testimony inadmissible. Cf. Simpson v. State, 94 Nev. 760,
587 P.2d 1319 (1978).
[Headnotes 4-6]
4. Appellant moved to suppress photographs, slides and drugs seized at his apartment.
After evidentiary hearings, the court determined that the search had not exceeded permissible
bounds. We agree. Information provided by a victim of crime to a police officer is
presumptively reliable. Cf. State v. Turkal, 599 P.2d 1045 (N.M. 1979); People v. Hill, 528
P.2d 1, 21 (Cal. 1974). In her statement, given November 17, the victim did not refer to the
dates of the crimes, but referred to Thursday and Tuesday. We consider it reasonable for
the court to infer that the victim referred to the past Thursday, November 10, and the past
Tuesday, November 15. We further hold there was probable cause for the court to believe the
photographs and slides of nude minors would be in appellant's apartment on December 1, the
date the search warrant issued. Photographs and slides are items more likely to be retained
than discarded. See State v. Smith, 593 P.2d 281 (Ariz. 1979); State v. Kasold, 521 P.2d 995
(Ariz. 1974). Finally, we believe an error in stating the apartment address was not fatally
defective. The search warrant enabled the officers executing the warrant to locate and identify
the apartment to be searched, and there was no reasonable possibility that another premises
might be searched. See, e.g., United States v. Darensbourg, 520 F.2d 985 (5 Cir. 1975);
United States, v. Melancon, 462 F.2d 82, 94 (5 Cir. 1972); State v. Morgan, 583 P.2d 889
(Ariz. 1978).
96 Nev. 428, 433 (1980) Lucas v. State
[Headnotes 7, 8]
5. Appellant also contends that the trial judge erred when he refused to continue
sentencing. During an examination by a psychiatrist, the psychiatrist concluded that appellant
was suffering from a character disorder; however, the psychiatrist also determined that a
diagnosis of psychosis was unwarranted. NRS 178.405 provides that proceedings must be
suspended if doubt arises as to the accused's sanity.
2
The doubt referred to is doubt in the
mind of the sentencing judge. Williams v. State, 85 Nev. 169, 174, 451 P.2d 848, 851 (1969).
Appellant has not demonstrated that degree of sufficient and reasonable doubt as to his sanity
which we previously have required. See Williams v. State, id. at 173, 451 P.2d at 851;
Warden v. Conner, 93 Nev. 209, 562 P.2d 483 (1977); cf. Doggett v. Warden, 93 Nev. 591,
595, 572 P.2d 207, 209 (1977).
[Headnote 9]
Finally, appellant contends that in sentencing him the trial judge improperly considered
evidence of crimes which had not been charged. Absent a showing of prejudice resulting from
impalpable or highly suspect evidence, this court will refrain from interfering with sentence
imposed. Silks v. State, 92 Nev. 91, 545 P.2d 1159 (1976). The trial judge's remarks reflect
inferences which reasonably could be drawn from evidence presented at trial and the
presentencing report. Also see United States v. Schipani, 435 F.2d 26 (2nd Cir. 1970); State
v. Kasold, cited above. The sentences are within statutory limits and are affirmed.
Affirmed.
Manoukian, J., concurring:
Although I concur in the majority opinion, I have concern with the admissibility of the
testimony of Bernadette and Beverly. Here, the trial court improperly extended our previous
holdings regarding prior acts of misconduct and the use of such evidence against a defendant.
Not only did these witnesses testify as to the acts directly involving Denise, they were
allowed to testify as to how appellant contacted them and how they were involved in sexual
activities with appellant's adult friends.
____________________

2
175.405 Suspension of trial, pronouncement of judgment when doubt arises as to defendant's sanity. When
an indictment or information is called for trial, or upon conviction the defendant is brought up for judgment, if
doubt shall arise as to the sanity of the defendant, the court shall suspend the trial of the indictment or
information or the pronouncing of the judgment, as the case may be, until the question of insanity is
determined.
96 Nev. 428, 434 (1980) Lucas v. State
The trial court reasoned that this testimony demonstrated a scheme indicating an intent of
the [appellant] to seduce [the victim] against her will. In allowing this testimony, the district
court relied upon Findley v. State, 94 Nev. 212, 577 P.2d 867 (1978), and McMichael v.
State, 94 Nev. 184, 577 P.2d 398 (1978). This was error.
This court has held that evidence of prior bad acts may be admitted to prove the crime
charged when it tends to establish intent or a common scheme or plan embracing the
commission of two or more crimes so related to each other that proof of one tends to establish
the others. . . . Nester v. State, 75 Nev. 41, 46, 334 P.2d 524, 527 (1959). Here, there were
many similarities in the circumstances surrounding the manner in which appellant first met
Bernadette and Beverly and the manner in which he became acquainted with Denise. This
included his promise of a monetary remuneration for modeling and the representation that he
would complete a portfolio for each of the girls. Beyond those similarities, however, the
situations differ. Bernadette and Beverly stated that they had sex with appellant and his
friends. There was no real suggestion that these acts were involuntary.
In previous cases we have allowed the testimony of witnesses evidencing the prior sexual
misconduct of a defendant. This has involved similar acts by the defendant either with the
present victim or with persons other than the complaining witness. See Simpson v. State, 94
Nev. 760, 587 P.2d 1319 (1978); Willett v. State, 94 Nev. 620, 584 P.2d 684 (1978); Findley
v. State, 94 Nev. 212, 577 P.2d 867 (1978); McMichael v. State, 94 Nev. 184, 577 P.2d 398
(1978); Allan v. State, 92 Nev. 318, 549 P.2d 1402 (1976). I believe the fact that Beverly and
Bernadette willingly engaged in sexual activities with appellant and other men is irrelevant
toward proving the instant nonconsensual acts involving Denise. See Lovely v. United States,
169 F.2d 386 (4th Cir. 1948) (in rape prosecution, where intercourse was not at issue and
only issue was that of consent, evidence that accused committed rape several weeks prior to
the alleged crime was inadmissible); State v. Irving, 601 P.2d 954 (1979) (detailed evidence
of defendant's attempted rape of another woman on previous occasion was inadmissible as
substantive evidence to corroborate the victim's claims of defendant's use of force and her
lack of consent). Cf. Oliphant v. Koehler, 594 F.2d 547 (6th Cir. 1979) (circumstances
surrounding prior nonconsensual acts were relevant toward issue of consent in instant case).
Nevertheless, I believe that the testimony offered by Beverly and Bernadette simply
verbalized the documentary evidence of which appellant complains and which the majority
has concluded does not constitute error.
96 Nev. 428, 435 (1980) Lucas v. State
which appellant complains and which the majority has concluded does not constitute error.
Such evidence is therefore cumulative. Moreover, even though here, the admission of the
prior acts of sexual conduct under the liberal judicial attitude in admitting the prior acts of
sexual conduct, McMichael v. State, 94 Nev. at 189, 577 P.2d at 401, constituted error, such
error was harmless beyond a reasonable doubt in view of the other overwhelming evidence of
guilt. Bushnell v. State, 95 Nev. 570, 573-74, 599 P.2d 1038, 1040-41 (1979).
____________
96 Nev. 435, 435 (1980) Dail v. State
HECTOR WALTER DAIL, Appellant, v. THE STATE
No. 11858
May 15, 1980 610 P.2d 1193
Appeal from order revoking probation, Eighth Judicial District, Clark County; J. Charles
Thompson, Judge.
The Supreme Court, Manoukian, J., held that: (1) conducting a probation revocation
hearing in advance of trial, based on allegations which also provided the basis for
independent criminal charges, did not deny due process or violate public policy, and (2) the
evidence was sufficient to warrant revocation where it reasonably satisfied the judge that the
conduct of the defendant had not been as good as required by the conditions of probation.
Affirmed.
Morgan D. Harris, Public Defender and Gary H. Lieberman, Deputy Public Defender,
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney and
Conducting probation revocation hearing in advance of trial, based on allegations which also provided
basis for independent criminal charges, did not deny due process or violate public policy. U.S.C.A.Const.
Amend. 14.
2. Criminal Law.
Evidence was sufficient to sustain revocation of probation where it reasonably satisfied judge that
conduct of defendant had not been as good as required by conditions of probation.
96 Nev. 435, 436 (1980) Dail v. State
3. Criminal Law.
Conviction of criminal charges is not precondition to probation revocation.
OPINION
By the Court, Manoukian:
Dail appeals from an order revoking probation which had been granted following the
imposition in February of 1978 of a five year sentence upon a plea of guilty to a charge of
burglary, a felony. NRS 205.060. Upon this appeal we must determine whether conducting a
probation revocation hearing in advance of trial, based on allegations which also provide the
basis for independent criminal charges, denies procedural due process or violates public
policy. We are also asked to ascertain whether there was sufficient evidence presented to
warrant the revocation of probation.
Beyond the general terms of his probation, a special condition provided that appellant not
use, purchase, possess, give, sell or administer any narcotic drugs. In March of 1979 the Clark
County District Attorney commenced proceedings to revoke appellant's probation based upon
facts which also served as the basis for the independent felony charge of possession of a
controlled substance with intent to sell. NRS 453.337. The trial of the criminal charges had
not yet occurred. Appellant made timely objection to the hearing on the ground again raised
in this appeal.
At the hearing on the motion to revoke probation, the state presented several witnesses to
substantiate the violations by appellant. One witness, a hotel security guard, testified that he
observed appellant and another person in the men's room and noticed appellant holding a
small packet of a white powdery substance, and a second person with currency in his hand.
The security officer and his partner attempted to retrieve the package and a brief scuffle
ensued. At that time, the second suspect with appellant was in possession of the packet. After
both suspects were detained, the security officer found a compact case containing fifteen
white packets of powder in a wax container and items of drug paraphernalia. It appears that
the compact was retrieved from the appellant. A subsequent analysis of the packets indicated
that they contained the controlled substances phencyclidine and methaqualone.
Appellant did not testify at the violation hearing alleging that he was deterred from doing
so by the desire to preserve his fifth amendment privilege against self-incrimination at his
subsequent criminal trial.
96 Nev. 435, 437 (1980) Dail v. State
fifth amendment privilege against self-incrimination at his subsequent criminal trial. The trial
court was satisfied that appellant was selling narcotics and revoked the imposed probation.
1. Revocation Preceding Trial.
[Headnote 1]
Appellant's initial contention is one of first impression in this state and one in which there
is a significant split of authority or policy throughout the country. He contends that to permit
the holding of a probation violation hearing prior to the trial of the underlying criminal charge
forces an alleged violator to make a constitutionally unfair election of either foregoing his
right to take the stand and to speak in his own behalf at the revocation hearing, or testifying at
such hearing and facing the prospect that the evidence elicited through him might be used
against him at or in the subsequent criminal trial. We disagree.
We believe it significant that none of the authorities on this subject consider this question
to be of constitutional import. The cases either reject the concept in toto, grant the probationer
use immunity at the violation hearing, or require that the revocation hearing be held
subsequent to the related criminal trial. Recognizably, there is a tension between a
probationer's due process right to he heard and his right against self-incrimination. People v.
Coleman, 533 P.2d 1024, 1030-34 (Cal. 1975). See Ryan v. State of Montana, 580 F.2d 988,
991 (9th Cir. 1978). A probationer or a defendant faces many hard decisions in the conduct of
his defense. As already observed, however, the conflict in this situation is not of
constitutional magnitude. See Baxter v. Palmigiano, 425 U.S. 308 (1976); Ryan v. State of
Montana, 580 F.2d at 991; People v. Coleman, 533 P.2d at 1039; People v. Woodall, 358
N.E.2d 1267 (Ill.App. 1976). We have recognized that [p]robation is an integral part of the
penal system, calculated to provide a period of grace in order to assist in the rehabilitation of
an eligible offender. . . . Seim v. State, 95 Nev. 89, 93, 590 P.2d 1152, 1154 (1979). Both
society and the probationer have a keen interest in his restoration to a normal and useful life
and both are desirous that the probationer be treated with basic fairness. Jennings v. State, 89
Nev. 297, 300, 511 P.2d 1048, 1050 (1973). Nevertheless, upon a balancing of the respective
interests of public safety with the goal and interest of rehabilitation of the probationer, we
perceive no unconstitutional dilemma for the alleged violator who desires to defend himself
or present mitigating evidence at a revocation proceeding. Appellant's predicament does not
run afoul of constitutional due process. Probation revocation proceedings are not part of a
criminal prosecution and "the full panoply of rights" in such instances does not apply.
96 Nev. 435, 438 (1980) Dail v. State
criminal prosecution and the full panoply of rights in such instances does not apply.
Morrissey v. Brewer, 408 U.S. 471, 480 (1972). See also Anaya v. State, 96 Nev. 119, 606
P.2d 156 (1980).
The finding of no constitutional conflict leaves this court with a policy determination.
Some state courts have recognized the tension created in this situation and, with the use of
their supervisory powers, have eased the tension. See People v. Coleman, 533 P.2d 1024 (Cal.
1975); People v. Rocha, 272 N.W.2d 699 (Mich.App. 1978); State v. Hass, 268 N.W.2d 456
(N.D. 1978); State v. DeLomba, 370 A.2d 1273 (R.I. 1977); State v. Evans, 252 N.W.2d 664
(Wis. 1977). See also Shimabuku v. Britton, 503 F.2d 38 (10th Cir. 1974); Avant v. Clifford,
341 A.2d 629 (N.J. 1975). The California Supreme Court in Coleman delineated several
considerations and favored postponed revocation proceedings or use immunity in the event
the violation hearing preceded the related criminal trial. The court referred to the due process
right to be heard at the revocation hearing. See Morrissey v. Brewer, 408 U.S. 471 (1972).
The thrust of that holding was to assure informed, intelligent and just revocation decisions.
People v. Coleman, 533 P.2d at 1031. The court in Coleman also reasoned that the
rehabilitation opportunities are to be enhanced by treating probationers with basic fairness
and that these policies are said to be deterred by the possibility of self-incrimination. Id.
Finally, with regard to the incrimination aspect, it was thought that the government should be
required to shoulder the entire load at the criminal trial and a defendant should be presumed
innocent until the contrary is proven. Id. at 1032-34.
The remedy fashioned in Coleman was to disallow a probationer's testimony during the
revocation hearing from being used during the criminal trial. Nor could the fruits of such
testimony be used, id. at 1042-43, absent a need for impeachment based upon clearly
inconsistent testimony. Id. at 1044.
Other courts which have been confronted with this argument have held that there is no
chilling effect of a defendant's right against self-incrimination by the holding of a violation
proceeding prior to trial on related criminal charges. See People v. Carr, 524 P.2d 301 (Colo.
1974); Borges v. State, 249 So.2d 513 (Fla.App. 1971); State v. Ryan, 533 P.2d 1076 (Mont.
1975); State v. Kartman, 224 N.W.2d 753 (Neb. 1975); State v. Randall, 557 P.2d 1386
(Or.App. 1976); Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973); State v. Cyganowski,
584 P.2d 426 (Wash.App. 1978). See also Flint v. Mullen, 499 F.2d 100 (1st Cir.), cert.
denied, 419 U.S. 1026 (1974); United States v. Markovich, 34S F.2d 23S {2d Cir, 1965);
Ryan v. State of Montana, 5S0 F.2d 9SS {9th Cir.
96 Nev. 435, 439 (1980) Dail v. State
Markovich, 348 F.2d 238 (2d Cir, 1965); Ryan v. State of Montana, 580 F.2d 988 (9th Cir.
1978).
1
These decisions have recognized that a defendant has many difficult decisions of
strategy to make and that the conflict is not of constitutional dimension. Additionally, it was
reasoned that a court's discretion to impose an appropriate sanction against a probationer who
appears not to be amendable to the probationary order should not be fettered; both the state
and the probationer have an interest in resolving the probation question while the evidence is
fresh; and, a defendant may pose a high-risk to society by being at liberty. Commonwealth v.
Kates, 305 A.2d 707-08; State v. Cyganowski, 584 F.2d at 428.
There exists a number of additional cogent reasons why we are unable to subscribe to the
holding in People v. Coleman, 533 P.2d 1024, and cases of similar import. First, we should
exercise judicial restraint and defer to the legislature the determination of whether public
policy considerations, as distinguished from constitutional mandates, dictate a modification
of revocation procedures. Second, our existing revocation procedures do not substantially
undermine the probationer's opportunity to present an adequate defense. See Melson v. Sard,
402 F.2d 653 (D.C. Cir. 1968). A probationer generally has access to counsel and has the
right to call and cross examine witnesses and present evidence in defense and mitigation of
the charge.
2
NRS 176.217; see Anaya v. State, 96 Nev. 119, 606 P.2d 156 (1980). Third, as a
procedural benefit to the probationer, in some cases he may profit by knowing the status of
his sentence on the initial criminal charges so that if he is successfully prosecuted on the
second charge the court, where permissible, can consider imposing a concurrent or reduced
sentence. See Ryan v. State of Montana, 580 F.2d at 994.
Except in a situation in which the state institutes revocation proceedings as a vehicle for an
investigation directed solely toward obtaining information to be used in a subsequent criminal
trial, United States v. Consuelo-Gonzalez, 521 F.2d 259, 267 (9th Cir. 1975), or a situation
where the proceedings were commenced without sufficient evidence to support the
probation violation charge, Ryan v. State of Montana, 5S0 F.2d at 991, we decline to
require that a criminal trial be conducted prior to a probation revocation hearing.
____________________

1
The federal courts have generally recognized the right of states to supervise their own systems when, as
here, there is no constitutional conflict, even when the federal court prefers a certain method. Ryan v. State of
Montana, 580 F.2d at 993-94; see Flint v. Mullen, 499 F.2d 100 (1st Cir.), cert. denied, 419 U.S. 1026 (1974).

2
If the probationer elects to invoke the privilege against self-incrimination at the revocation hearing, no
sanction or punishment results automatically from the exercise of that privilege and impermissible compulsion is
lacking. Ryan v. State of Montana, 580 F.2d at 992.
96 Nev. 435, 440 (1980) Dail v. State
commenced without sufficient evidence to support the probation violation charge, Ryan v.
State of Montana, 580 F.2d at 991, we decline to require that a criminal trial be conducted
prior to a probation revocation hearing. Here, the fact that the probation revocation hearing
preceded the related criminal trial, violated neither appellant's due process rights nor public
policy.
2. Sufficiency of the Evidence.
[Headnote 2]
Appellant argues that the specific quantum of proof necessary for revocation has not
been adequately specified in Nevada and that the proof should be convincing by objective
standards and not in the unfettered discretion of the trial court. He has asked us to reject the
reasonably satisfied standard enunciated in Lewis v. State, 90 Nev. 436, 529 P.2d 796
(1974), in favor of a preponderance of the evidence standard adopted in several other
jurisdictions. See, e.g., United States v. Iannece, 405 F.Supp. 599 (E.D.Pa. 1975); Henderson
v. State, 568 P.2d 297 (Okla.Crim.App. 1977). We are unpersuaded.
[Headnote 3]
The United States Supreme Court made it clear that a revocation hearing is not to be
equated with a criminal prosecution but, rather, is a narrow inquiry in which the process
should be flexible. See Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408
U.S. 471 (1972). Accord, Anaya v. State, 96 Nev. 119, 606 P.2d 156 (1980). Clearly
conviction is not a precondition to probation revocation, United States v. Markovich, 348
F.2d 238, 240 (2d Cir. 1965), and here, because the unrefuted evidence presented at the
hearing was reliable and obviously sufficient to satisfy the trial court that Dail had violated
the terms of his probation, we adhere to the rule announced in Lewis v. State, 90 Nev. 436,
529 P.2d 796 (1974). Our Lewis standard represents the weight of authority in this country
and, as well, is consistent with due process and fairness.
3
A greater standard would often
result in high-risk individuals remaining at liberty, consequently against the public interest.
See Morrissey v. Brewer, 408 U.S. at 483. It would also hamper the effective operations of
our trial courts, by requiring more formal and plenary violation proceedings. This would be
contrary to our evidence code which exempts revocation proceedings from its general
application.
____________________

3
In Lewis v. State, 90 Nev. 436, 529 P.2d 796 (1974), we held that [t]he evidence must reasonably satisfy
the judge that the conduct of the probationer has not been as good as required by the conditions of probation.
Id. at 438, 529 P.2d at 797.
96 Nev. 435, 441 (1980) Dail v. State
would be contrary to our evidence code which exempts revocation proceedings from its
general application. NRS 47.020(3)(c).
Although the Supreme Court has not specifically addressed the applicable standard of
proof in probation revocation hearings, its opinion in Gagnon v. Scarpelli, 411 U.S. at
789-90, n. 12, indicates that the Court believes that probation could be revoked on less than a
beyond a reasonable doubt standard. Here the court thought it was obvious that appellant was
selling or possessing narcotics. We will not disturb the trial court's discretion in the absence
of a clear showing of abuse.
We affirm the order revoking probation.
____________
96 Nev. 441, 441 (1980) Sproul Homes v. State ex rel. Dep't Hwys.
SPROUL HOMES OF NEVADA, a Corporation, Appellant, v. STATE OF NEVADA, on
Relation of its Department of Highways and COUNTY OF CLARK, a Political Subdivision
of the State of Nevada, Respondents.
No. 10513
May 15, 1980 611 P.2d 620
Appeal from order of dismissal of complaint; Eighth Judicial District Court, Clark County,
Howard Babcock, Judge.
Property owner appealed from order entered by the district court dismissing inverse
condemnation complaint. The Supreme Court, Manoukian, J., held that complaint failed to
adequately allege cause of action where there was no allegation of physical invasion of
owner's land beyond claimed entry for purpose of surveying and appraising, there was no
allegation that owner's property would definitely be acquired, owner failed to allege dates of
claimed governmental activities, there was no factual allegation of undue or unreasonable
delay, and there was no sufficient factual averment relating to bad faith or oppressive conduct
on part of government.
Affirmed.
Morris and Wood, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, and Robert Callaway, Deputy Attorney General,
Carson City, for Respondent State of Nevada.
Robert Miller, District Attorney, and Melvin R. Whipple, Deputy District Attorney, Clark
County, for Respondent County of Clark.
1. Eminent Domain.
Mere planning of project is insufficient to constitute taking for which inverse condemnation action will
lie.
2. Eminent Domain.
Not every decrease in market value as result of precondemnation activity is compensable; nevertheless,
when precondemnation activities of government are unreasonable or oppressive, and affected property has
diminished in market value as result of governmental misconduct, owner of the property may be entitled to
compensation. U.S.C.A.Const. Amends. 5, 14; Const. art. 1, 8.
3. Eminent Domain.
In inverse condemnation action, complaint failed to adequately allege cause of action where there was no
allegation of physical invasion of owner's land beyond claimed entry for purpose of surveying and
appraising, there was no allegation that owner's property would definitely be acquired, owner failed to
allege dates of claimed governmental activities, there was no factual allegation of undue or unreasonable
delay, and there was no sufficient factual averment relating to bad faith or oppressive conduct on part of
government. U.S.C.A.Const. Amends. 5, 14; Const. art. 1, 8.
OPINION
In June 1977, plaintiff-appellant Sproul Homes, instituted an action in inverse
condemnation for damages asserted to have been occasioned by alleged precondemnation
activities of the respondents herein, County of Clark and the State of Nevada on relation of its
Department of Highways. Both the state and Clark County filed motions to dismiss
appellant's complaint on the ground that it failed to state a claim for relief. NRCP 12(b)(5).
The trial court granted the motions and entered orders of dismissal. Sproul appeals.
The main issue before us is whether the complaint sufficiently sets forth a cause of action
for relief in inverse condemnation. We hold that it does not, and affirm the order of dismissal.
Sproul is a Nevada corporation which is engaged in the acquisition of large parcels of land
for the purpose of subdividing, improving and selling single-family residences. The
complaint alleges that sometime in the early 1950s the defendants indicated a need for
construction of the East Leg of U.S. 95 Expressway in the Las Vegas Valley;" that the
defendants recently announced the location of the expressway through appellant's
property; that precondemnation public announcements have threatened and clouded
appellant's land; and, that the defendants have refused to institute condemnation
proceedings against the realty.
indicated a need for construction of the East Leg of U.S. 95 Expressway in the Las Vegas
Valley; that the defendants recently announced the location of the expressway through
appellant's property; that precondemnation public announcements have threatened and
clouded appellant's land; and, that the defendants have refused to institute condemnation
proceedings against the realty. Although the complaint contains an allegation of
governmental trespass, and generalizations that the state has disregarded rules of common
decency, the basis of the cause of action seems to be that the pre-condemnation
announcement as to the proposed expressway over its land constituted a taking. The
complaint further alleges that the state has discussed with appellant the intention of the state
to acquire a large parcel of appellant's land and that the state has entered appellant's land for
purposes of survey and appraisal. It is additionally alleged that the defendants' failure and
refusal to commence eminent domain [proceedings] against plaintiff is with the intent to
coerce plaintiff into selling its land to defendants for less than fair market value and that
appellant could not obtain from local governmental authorities the necessary building permits
to construct improvements on the affected property.
1
These are the alleged governmental
activities which purport to constitute a taking, and to which the motions to dismiss were
addressed.
2

Appellant contended below, as it does here, that the limitations on the use of its land
constitutes an unconstitutional taking of property without just compensation for which an
action in inverse condemnation will lie. U.S. Const. amend. V, XIV; Nev. Const. art. I, 8.
On the instant record, we disagree.
[Headnote 1]
It is well-established that the mere planning of a project is insufficient to constitute a
taking for which an inverse condemnation action will lie. Selby Realty Co. v. City of San
Buenaventura, 514 P.2d 111, 116 (Cal. 1973); Bakken v. State, 382 P.2d 550, 551-52 {Mont.
____________________

1
We were informed by counsel that on February 1, 1977, the Clark County Board of Commissioners
approved appellant's application for a change of zoning on appellant's approximate 111 acres of land to
single-family residences, with the exception of 11.467 acres. As to the latter acreage, the Commission imposed
the condition that no development will take place on the triangular portion of property bound by the proposed
freeway (Palm and Hacienda). As a result, appellant has developed all but the 11.467 acres.

2
In granting the motions to dismiss, the trial court held that the allegations in the complaint only tend to show
that plaintiffs' land is being proposed for condemnation, as opposed to the governments' adopting a firm plan to
condemn plaintiffs' property. Merely designating someone's land for study and surveying to determine if the land
is appropriate for public use fails to state a claim in inverse condemnation for which relief can be granted.
P.2d 550, 551-52 (Mont. 1963); City of Buffalo v. J. W. Clement Co., 269 N.E.2d 895, 904
(N. Y. 1971); Thurow v. City of Dallas, 499 S.W.2d 347, 348 (Tex.Civ.App. 1973). In Selby
Realty Co., the City of San Buenaventura and County of Ventura adopted a general plan for
the long-term development of the city and county. A California statute required that the city
and county publish the general location of existing and proposed streets. The publication
revealed a proposed extension of certain streets over the plaintiff's land. The plaintiff filed an
action in inverse condemnation contending that the general plan showed certain proposed
streets extending through its property and that no compensation had been offered for any of
the plaintiff's land upon which the proposed streets would be located. The trial court
sustained a demurrer to the plaintiff's claim. Plaintiff failed to amend and judgment was
entered. Selby Realty Co. v. City of San Buenaventura, 514 P.2d at 114-15. On appeal, the
court stated: In order to state a cause of action for inverse condemnation, there must be an
invasion or an appropriation of some valuable property right which the landowner possesses
and the invasion or appropriation must directly and specially affect the landowner to his
injury. Id. at 117. The court continued:
If a governmental entity and its responsible officials were held subject to a claim for
inverse condemnation merely because a parcel of land was designated for potential
public use on one of these several authorized plans, the process of community planning
would either grind to a halt, or deteriorate to publication of vacuous generalizations
regarding the future use of land. We indulge in no hyperbole to suggest that if every
landowner whose property might be affected at some vague and distant future time by
any of these legislatively permissible plans was entitled to bring an action in declaratory
relief to obtain a judicial declaration as to the validity and potential effect of the plan
upon his land, the courts of this state would be inundated with futile litigation.
Id. at 117-18 (emphasis added). We agree with this reasoning.
[Headnote 2]
Clearly, not every decrease in market value as a result of precondemnation activity is
compensable. Nevertheless, when the precondemnation activities of the government are
unreasonable or oppressive and the affected property has diminished in market value as a
result of the governmental misconduct, the owner of the property may be entitled to
compensation.
owner of the property may be entitled to compensation. Klopping v. City of Whittier, 500
P.2d 1345, 1355 (Cal. 1972).
[Headnote 3]
In the present case, as in Selby, there has been no invasion or appropriation of Sproul's
property. Beyond the claimed entry for the purpose of surveying and appraising, there is no
allegation of a physical invasion of its land. Nor is there any showing of finality regarding the
state's proposed project. Indeed, there is no allegation that appellant's property will definitely
be acquired for highway purposes. As in Selby, the state has placed no legal or physical
obstacles in the path of Sproul in its use of the land. Additionally, appellant has failed to
allege dates of claimed governmental activities, the reference to plans is vague, and there is
no reference to resolutions by the Nevada Department of Highways, the condemning
authority. Moreover, there is no factual allegation of undue or unreasonable delay, nor is there
sufficient factual averment relating to bad faith or oppressive conduct on the part of the
government. Cf. Klopping v. City of Whittier, 500 P.2d 1345 (Cal. 1972) (government
engaged in oppressive conduct in attempting to acquire property).
We also find that the complaint is replete with generalizations and conclusory matter.
Appellant also sets forth a number of potentially relevant factual allegations in its briefs
which cannot reasonably be inferred from the complaint. It is arguable that those additional
allegations could be construed as indicative of oppressive conduct on the part of respondent
state. But, [t]his court can only consider the record as it was made and considered by the
court below. Lindauer v. Allen, 85 Nev. 430, 433, 456 P.2d 851, 852 (1969). It is clear to us,
under all of the circumstances, that appellant has not stated a cause of action against the
respondents for inverse condemnation. Because of the posture of this case, we do not reach
the question of appellant's entitlement to compensation in the event that any zoning or other
action precluded substantially all use of the land in question.
Finally, appellant contends that the Clark County Commission abused its discretion when
it denied the zoning request and building permits. Clark County's refusal to grant the building
permits or change zoning is only peripherally at issue here. If appellant can establish that the
Commission acted arbitrarily or that its action was accompanied by manifest abuse, judicial
interference by mandamus, and not by inverse condemnation, would be warranted. State ex
rel. Johns v. Gragson, 89 Nev.
478, 482, 515 P.2d 65, 68 (1973). See Agins v. City of Tiburon, 598 P.2d 25 (Cal. 1979)
(holding that inverse condemnation is an inappropriate remedy in cases in which
unconstitutional regulation is alleged). Cf. Lake Country Estates, Inc. v. Tahoe Regional
Planning Agency, 440 U.S. 391 (1979) (cause of action sufficiently alleged, showing
Supreme Court's continuing adherence to the mandate of the fifth and fourteenth
amendments).
We affirm the lower court's orders dismissing appellant's complaint.
____________
96 Nev. 446, 446 (1980) Millspaugh v. Millspaugh
JEAN V. MILLSPAUGH, Appellant, v. GREGORY LOWELL MILLSPAUGH
and MICHELLE ANN MILLSPAUGH,
1
a Minor, Respondents.
No. 11931
May 22, 1980 611 P.2d 201
Appeal from judgment dismissing complaint with prejudice, Eighth Judicial District
Court, Clark County; Keith C. Hayes, Judge.
Plaintiff brought action against her son and daughter seeking to cancel a deed executed
upon the alleged false representations of her son. The district court granted son's motion to
dismiss on basis that the action was not commenced within required time of discovering the
fraud, and plaintiff appealed. The Supreme Court held that genuine issues of material fact
existed regarding plaintiff's conversation with her attorney and whether their brief discussion
concerning the deed was sufficient to charge her with knowledge of the fraud of mistake such
as to start running of statute of limitations at that time, thus precluding summary judgment for
defendants.
Morris & Wood, Las Vegas, for Appellant.
____________________

1
Although she is a named respondent in this appeal, Michelle Ann Millspaugh joins with the contentions
raised and relief sought by appellant.
Taylor Professional Corporation, and John A. Taylor, Las Vegas, for Respondent Gregory
Lowell Millspaugh.
Douglas R. Pike, Las Vegas, for Respondent Michelle Ann Millspaugh.
Judgment.
In action to cancel a deed based on alleged fraudulent misrepresentations or mistake which induced
plaintiff to make the conveyance, genuine issues of material fact existed regarding plaintiff's conversation
with her attorney subsequent to executing the deed and whether their brief discussion concerning the deed
was sufficient to charge plaintiff with knowledge of the fraud or mistake such as to start running of statute
of limitations at that time, thus precluding summary judgment for defendant granted on basis that the action
was not commenced within required time. NRS 11.190, subd. 3(d).
OPINION
Per Curiam:
In this appeal, Jean V. Millspaugh contends the district court erroneously granted a motion
to dismiss her complaint to cancel a deed. We agree.
Respondents Gregory Lowell Millspaugh and Michelle Ann Millspaugh are the son and
daughter of appellant, a widow. In 1971, appellant asked Gregory to prepare a document
which would convey her house to her children upon her death. It was her intention that she
would remain the sole owner of the house until then. Gregory, however, presented appellant
with a deed which conveyed present interest in the house to her and respondents as joint
tenants. Relying upon the alleged false representations of Gregory that the deed effectuated
her wishes, appellant signed the deed and had it recorded.
In 1976, when appellant attempted to file a declaration of homestead, she discovered that
she was no longer the sole owner of the house. Two years laterDecember 6, 1978she
filed a complaint seeking to cancel the deed she signed in 1971 on the ground that the deed
was the result of fraud and mistake.
Gregory thereafter filed a motion to dismiss the complaint, alleging that the action was
barred by the statute of limitations and therefore appellant had failed to state a claim upon
which relief could be granted. See NRCP 12(b)(5). Pursuant to NRCP 12(b), the motion was
treated and disposed of as one for summary judgment, and will be so viewed on appeal.
2
The
cause of action in this case was based on alleged fraudulent misrepresentations or
mistake which induced appellant to make the 1971 conveyance.

____________________

2
NRCP 12(b) states in part:
If, on a motion asserting the defense numbered (5) to dismiss for failure of
The cause of action in this case was based on alleged fraudulent misrepresentations or
mistake which induced appellant to make the 1971 conveyance. Thus, the applicable
limitation is the 3-year period for actions for relief on the ground of fraud or mistake set forth
in NRS 11.190(3)(d).
3
This period began to run from the date of the discovery of facts
which, in the exercise of proper diligence, would have enabled appellant to learn of the fraud
or mistake. Howard v. Howard, 69 Nev. 12, 239 P.2d 584 (1952).
In the motion to dismiss, Gregory contended that the statute of limitations began to run in
1972 when appellant consulted an attorney about preparing her will. At this time she
informed the attorney that she had Gregory draw [up the deed] and that it was to protect him
in case I was to die beforehand with the understanding of course that the property would be
rightfully mine until I died. She did not show the deed to the attorney, nor did they have any
further discussions concerning the deed.
The district judge agreed with Gregory that appellant should have discovered the fraud or
mistake when she consulted the attorney in 1972. Therefore, he concluded that the action was
not commenced within the required time, and dismissed the action with prejudice.
Appellant, on the other hand, contends the statute of limitations did not begin to run until
1976, when, while attempting to file the aforementioned declaration of homestead, she
discovered the alleged fraud of respondent. Thus, she argues, the filing of the complaint in
1978 was not untimely.
The pertinent question here is whether appellant should have learned, through the exercise
of proper diligence, of the fraud or mistake when she met with her attorney in 1972, thereby
triggering the statute of limitations. This is a question of fact to be determined by the jury or
trial court after a full hearing where, as here, the facts are susceptible to opposing
inferences.
____________________
the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented
to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed
of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material
made pertinent to such a motion by Rule 56.

3
NRS 11.190 states in part:
Actions other than those for the recovery of real property, unless further limited by NRS 11.205 or
by or pursuant to the Uniform Commercial Code, can only be commenced as follows:
. . . .
3. Within 3 years:
. . . .
(d) An action for relief on the ground of fraud or mistake; the cause of action in such case not to be
deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or
mistake.
where, as here, the facts are susceptible to opposing inferences. See Golden Nugget, Inc. v.
Ham, 95 Nev. 45, 589 P.2d 173 (1979); Dredge Corp. v. Wells Cargo, Inc., 80 Nev. 99, 389
P.2d 394 (1964); Hobart v. Hobart Estate Co., 159 P.2d 958 (Cal. 1945).
In this case, there are genuine issues of material fact to be determined regarding appellant's
conversation with her attorney in 1972, and whether their brief discussion concerning the
deed was sufficient to charge appellant with knowledge of the fraud or mistake, thus starting
the running of the statute of limitations. The district judge therefore erred when he found as a
matter of law that appellant's cause of action was barred by the statute of limitations. Golden
Nugget, Inc. v. Ham, supra.
Accordingly, the judgment is reversed and this case is remanded for trial.
____________
96 Nev. 449, 449 (1980) Burke v. State
ROBERT WILLIAM BURKE, Appellant, v. THE
No. 12127
May 22, 1980 611 P.2d 203
Appeal from order denying petition for post-conviction relief, Eighth Judicial District
Court, Clark County; Michael J. Wendell, Judge.
The Supreme Court held that petitioner was not denied equal protection at probation
revocation proceeding based on his failure to make restitution to bank on which insufficient
fund check was drawn where petitioner was not without the sources to pay restitution, of
possessed funds and chose to disburse them in other ways and, even accepting petitioner's
contention that he was under great financial pressure from his creditors during that period of
time, the State was not denied the power to promote its interest in deterring unlawful conduct
and in enforcing its penal laws through fines as well as jail sentences.
Affirmed.
[Rehearing denied June 30, 1980]
Embry & Shaner, and Robert W. Lueck, Las Vegas, for Appellant.
96 Nev. 449, 450 (1980) Burke v. State
1. Criminal Law.
Record failed to support a claim of post-conviction petitioner that he was denied effective assistance of
counsel in probation revocation proceeding based on a failure to make restitution to bank upon which
insufficient fund check was drawn.
Rule which was promulgated by the United States Supreme Court in Tate and which prohibits the State
from imposing a fine and sentence and then automatically converting it into a jail term solely because the
defendant is indigent and cannot forthwith pay the fine in full applies where restitution rather than fine is
involved and also applies after time of sentencing as long as imprisonment results from defendant's
indigence. U.S.C.A Const. Amend. 14.
3. Fines.
A state may constitutionally imprison a defendant with the means to pay a fine who refuses or neglects to
do so. U.S.C.A.Const. Amend. 14.
4. Fines.
The Constitution does not deny a state the power should it choose to exercise it, to promote its interest in
deterring unlawful conduct and in enforcing its penal laws through fines as well as jail sentences.
Petitioner was not denied equal protection at probation revocation proceeding based on his failure to
make restitution to bank on which insufficient fund check was drawn where petitioner was not without the
sources to pay restitution, of possessed funds and chose to disburse them in other ways and, even accepting
petitioner's contention that he was under great financial pressure from his creditors during that period of
time, the State was not denied the power to promote its interest in deterring unlawful conduct and in
enforcing its penal laws through fines as well as jail sentences. U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
Robert William Burke, pursuant to a plea bargain, pleaded guilty to a charge of drawing
and passing checks with insufficient funds on deposit in drawee bank, a felony pursuant to
NRS 205.130. He was sentenced to three years in the Nevada State Prison, execution of
which was suspended and petitioner was placed on probation. One of the conditions of the
probation was that petitioner, within six months, make restitution in the amount of $393.00.
Subsequently, probation revocation proceedings were commenced. Although several
charges were brought against appellant, the district court found that only the charge that
appellant had failed to make restitution would warrant revocation and his probation was
revoked on that basis.
96 Nev. 449, 451 (1980) Burke v. State
had failed to make restitution would warrant revocation and his probation was revoked on
that basis. Appellant expressed dissatisfaction with his court-appointed counsel and the
district court appointed new counsel who commenced the instant post-conviction
proceedings.
1
On appeal from the district court's denial, he contends that, in the revocation
proceedings, he was denied the effective assistance of counsel and equal protection of the
laws.
[Headnote 1]
We have reviewed the record in this case and have concluded that the effective assistance
of counsel contention is clearly without merit.
However, the equal protection argument presents a more substantial question. Appellant
argues, in effect, that the revocation of his probation was the result of his inability to pay a
fine. In support of this contention, appellant cites Tate v. Short, 401 U.S. 395 (1971). In that
case, the criminal defendant had been convicted of and fined for certain traffic violations.
Because of his indigency, however, he was unable to pay the fines and was therefore
incarcerated under provisions of state law.
2
The U.S. Supreme Court, in finding such
imprisonment to be violative of equal protection, stated that . . . the Constitution prohibits
the State from imposing a fine as a sentence and then automatically converting it into a jail
term solely because the defendant is indigent and cannot forthwith pay the fine in full.' Id. at
398, quoting Morris v. Schoonfield, 399 U.S 508, 509 (1970) (White, J., concurring).
[Headnote 2]
We agree with appellant that the same rule should apply where restitution rather than a
fine is involved. We further agree with appellant that the rule applies not only at the time of
sentencing, as was the concern in Tate, but also at any time thereafter as long as the
imprisonment results from the defendant's indigency. There can be no equal justice where
the kind of trial a man gets depends on the amount of money he has.
____________________

1
Ordinarily, the issues raised in this petition for post-conviction relief are raised on direct appeal from the
order revoking probation. NRS 177.375 requires that any claim to post-conviction relief is deemed waived if it
could have been raised in a prior proceeding unless good cause is shown. In the instant case, petitioner alleged
that prior counsel made an inadequate record to prosecute an appeal, see Stewart v. Warden, 92 Nev. 588, 555
P.2d 218 (1976). Apparently, the district court accepted this explanation; the state does not contend that this
petition was commenced in contravention of NRS 177.375. Under these circumstances, consideration of the
merits is appropriate.

2
The state law provided that unsatisfied fines be worked off at the rate of five dollars per day of
incarceration.
96 Nev. 449, 452 (1980) Burke v. State
Griffin v. Illinois, 351 U.S. 12 (1956). See Marshall v. District Court, 80 Nev. 478, 396 P.2d
680 (1964).
[Headnotes 3-5]
However, it is equally clear that a state may constitutionally imprison a defendant with
the means to pay a fine who refuses or neglects to do so. Tate v. Short, supra at 400.
Appellant conceded that he was not without the resources to pay the restitution; rather he
possessed the funds and chose to disburse them in other ways. Even accepting appellant's
contention that he was under great financial pressure from his creditors during this period of
time, we do not believe that the Constitution denies a state the power, should it choose to
exercise it, to promote its interest in deterring unlawful conduct and in enforcing its penal
laws through fines as well as jail sentences . . . , Morris v. Schoonfield, supra, at 509
(White, J., concurring), by incarcerating a criminal defendant in the circumstances of the
instant case.
3

Affirmed.
____________________

3
Appellant also argues that the district court abused its discretion in revoking probation under these
circumstances. See Lewis v. State, 90 Nev. 436, 529 P.2d 796 (1974). However, such a contention does not raise
an issue of constitutional dimension, and we are, therefore, without jurisdiction to consider it in a petition arising
under the post-conviction relief statute, NRS 177.320.
____________
96 Nev. 452, 452 (1980) Lamb v. State
CHARLES E. LAMB, Appellant, v. THE STATE
No. 10847
May 22, 1980 611 P.2D 206
Appeal from judgment upon jury verdict, Eighth Judicial District Court, Clark County;
Paul S. Goldman, Judge.
Defendant was convicted in the district court of grand larceny and he appealed. The
Supreme Court held that: (1) a photographic display was not suggestive because the
photograph of defendant bore a date soon after the crime, whereas the dates on other
photographs were older; (2) the victim's trial testimony, taken as a whole, reflected an
independent basis for identification of defendant; (3) police could conduct a photographic
display rather than a body lineup even though defendant was a suspect and in custody at the
time; and (4) defendant was not entitled to assistance of counsel at the photographic
display.
96 Nev. 452, 453 (1980) Lamb v. State
was not entitled to assistance of counsel at the photographic display.
Affirmed.
1. Criminal Law.
Photographic display was not suggestive because photograph of defendant bore date soon after crime,
whereas dates on other photographs were older, at least where witness did not notice numbers on
photographs until defense counsel called them to his attention at trial.
2. Criminal Law.
In prosecution for grand larceny, victim's trial testimony, taken as a whole, reflected basis for
identification of defendant independent of photographic display shown victim.
3. Criminal Law.
It was not impermissible for police to conduct photographic display rather than body lineup even though
defendant was suspect and in custody at time photographic display was conducted.
4. Criminal Law.
Defendant was not entitled to assistance of counsel at photographic display.
OPINION
Per Curiam:
Charles E. Lamb, convicted of grand larceny,
1
contends this court should reverse his
conviction because a photographic display was impermissibly suggestive, and because police
conducted the photographic display in the absence of counsel.
[Headnote 1]
Lamb argues that the photographic display was suggestive because the photograph of
appellant bore a date soon after the crime, whereas the dates on the other photographs were
older.
2
He claims the date suggested Lamb was the perpetrator. The trial judge considered
and rejected his claim. The record supports the trial court's ruling. The victim testified he did
not notice the numbers on the photographs until defense counsel called them to his
attention at trial.
____________________

1
Lamb was charged with stealing a vehicle from a used car lot on September 19, 1977.

2
Lamb's photograph bore the date 9-20-77. The other photographs were dated 5-21-77, 8-3-76, 6-2-76,
9-30-73, and 9-27-73 respectively.
96 Nev. 452, 454 (1980) Lamb v. State
notice the numbers on the photographs until defense counsel called them to his attention at
trial. The officer who conducted the lineup chose photographs of five men, which we note are
similar in appearance to the accused. The victim identified Lamb's photograph without
hesitation. We hold the photographic display was not impermissibly suggestive. Mere
disparity in dates on photographs is not sufficient to invalidate a photographic lineup. Cf.
State v. Dotson, 565 P.2d 261 (Kan. 1977); State v. Mitchell, 556 P.2d 874 (Kan. 1976);
People v. Hill, 528 P.2d 1 (Cal. 1974); Reed v. State, 281 A.2d 142 (Del. 1971). But cf.
Brown v. Com., 564 S.W.2d 24 (Ky.App. 1978) (date of robbery plus ROB on photographs
too suggestive).
[Headnote 2]
Lamb's related argument, that the victim's trial identification was based solely upon the
displayed photographs, is without merit. Lamb and the victim discussed a possible purchase
of a vehicle at his car lot on two occasions, in daylight, for ten to fifteen minutes. The victim's
preliminary hearing identification was unequivocal. The victim's trial testimony, taken as a
whole, reflects an independent basis for identification of Lamb as the man who came to
victim's car lot.
[Headnote 3]
Lamb also claims that, inasmuch as he was a suspect and in custody at the time the
photographic display was conducted, it was impermissible for the police to conduct a
photographic display rather than a body lineup. Cf. People v. Anderson, 205 N.W.2d 461
(Mich. 1973). Neither Thompson v. State, 85 Nev. 134, 451 P.2d 704 (1969), nor Bishop v.
State, 92 Nev. 510, 554 P.2d 1266 (1976), cited by appellant, directly supports this contention
and we do not adopt it.
[Headnote 4]
Lamb's remaining claim, that he was entitled to assistance of counsel at the photographic
display, is without merit. See French v. State, 95 Nev. 586, 600 P.2d 218 (1979); cf. Ash v.
United States, 413 U.S. 300 (1973). The police practices employed in this case fully met the
guidelines established by the court in Thompson, cited above at 139, 451 P.2d at 707.
Affirmed.
____________
96 Nev. 455, 455 (1980) McCarroll v. McCarroll
LEAH E. McCARROLL, Appellant, v. EMERY
W. McCARROLL, Respondent.
No. 10924
May 22, 1980 611 P.2d 205
Appeal from summary judgment; Second Judicial District Court, Washoe County; William
N. Forman, Judge.
Former wife brought action against former husband almost three years after final divorce
decree had been entered approving oral agreement for division of community property, to
have former husband's retirement pension declared community asset and portion of it
awarded to former wife, because former husband was allegedly guilty of fraudulent
concealment of pension. The district court entered summary judgment for former husband,
and former wife appealed. The Supreme Court held that fraud, if any, was intrinsic, since
former wife had fair opportunity to present claim she was now making to divorce court, and
thus rule governing relief from judgment barred relief requested.
Affirmed.
[Rehearing denied July 8, 1980]
James W. Hardesty, of Reno, for Appellant.
Roger L. Wright and Robert J. Peyton, of Reno, for Respondent.
Divorce.
Fraud, if any, was intrinsic, since former wife had fair opportunity to present to divorce
court claim that former husband was guilty of fraudulent concealment of his pension, so
that pension should be declared community asset and portion of it awarded to former
wife, and thus rule governing relief from judgment barred relief requested in action
brought by former wife against former husband almost three years after final divorce
decree had been entered approving oral agreement for division of community property
that did not include pension. NRCP 60(b).
OPINION
Per Curiam:
This action was commenced almost three years after a final decree of divorce had been
entered approving an oral agreement for the division of community property. The purpose of
the action is to have the former husband's retirement pension with the U.S. Forest Service
declared a community asset and a portion of it awarded to the former wife.
96 Nev. 455, 456 (1980) McCarroll v. McCarroll
with the U.S. Forest Service declared a community asset and a portion of it awarded to the
former wife. The oral agreement for division of community property did not include the
pension and no mention was made of it during the divorce action. It is the present contention
of the former wife that the former husband was guilty of fraudulent concealment of his
retirement pension.
On the record presented, the district court found that the fraud, if any, was intrinsic since
the former wife had a fair opportunity to present the claim she is now making to the divorce
court. Colby v. Colby, 78 Nev. 150, 369 P.2d 1019 (1962). Consequently, relief is barred by
NRCP 60(b). Accordingly, summary judgment was entered for the former husband. We
perceive no error.
Affirmed.
____________
96 Nev. 456, 456 (1980) Daniel v. Hiegel
RUTH HIEGEL DANIEL, Appellant, v. PHILOMENA HIEGEL,
Executrix of the Estate of John Maurice Hiegel,
Deceased, Respondent.
No. 12003
May 22, 1980 611 P.2d 207
Appeal from judgment; Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Appeal was taken from judgment of the district court based on finding that an oral
agreement was made between appellant and her former husband pursuant to which appellant
was to convey her interest in certain real estate to her former husband. The Supreme Court
held that a promissory note, deed of trust, and divorce complaint, apparently executed
pursuant to the oral agreement, when considered together, constituted a sufficient
memorandum of the agreement to satisfy the statute of frauds.
Affirmed.
Goodman, Oshins, Brown & Singer, of Las Vegas, for Appellant.
Jolley, Urga & Wirth, of Las Vegas, for Respondent.
Frauds, Statute of.
Promissory note, deed of trust, and divorce complaint, apparently executed pursuant to oral
agreement between former spouses to convey a certain interest in real estate, when
considered together, constituted a sufficient memorandum of the agreement to
satisfy statute of frauds.
96 Nev. 456, 457 (1980) Daniel v. Hiegel
executed pursuant to oral agreement between former spouses to convey a certain interest in real estate,
when considered together, constituted a sufficient memorandum of the agreement to satisfy statute of
frauds. NRS 111.210, subd. 1.
OPINION
Per Curiam:
On conflicting evidence the district court found that an oral agreement was made between
Ruth Hiegel Daniel and her former husband, John Maurice Hiegel, now deceased, pursuant to
which Ruth was to convey her interest in Exley House to John for $8600. A promissory note,
deed of trust and divorce complaint, apparently executed pursuant to the oral agreement,
when considered together constitute a sufficient memorandum of the agreement satisfying the
statute of frauds. NRS 111.210(1); Ray Motor Lodge, Inc., v. Shatz, 80 Nev. 114, 390 P.2d
42 (1969); Haspray v. Pasarelli, 79 Nev. 203, 380 P.2d 919 (1963). We do not perceive an
appellate issue of merit.
Affirmed.
____________
96 Nev. 457, 457 (1980) Groomes v. Fox
FRANK GROOMES and WHITTLESEA BLUE CAB COMPANY,
a Nevada, Corporation, Appellants, v. LOUIS
FOX, Respondent.
No. 11587
May 22, 1980 611 P.2d 208
Appeal from order granting a new trial; Eighth Judicial District Court, Clark County;
Taxicab passengers brought action to recover damages for injuries they sustained in
automobile collision. The jury found for the defendant, and the district court granted a new
trial on the ground that there had occurred manifest disregard by jury of instructions of the
court. The Supreme Court held that evidence supported trial court's finding that had jury paid
due regard to instructions of the court, particularly instruction concerning duty of care owed
by common carrier to its passengers, it was not possible to return a defense verdict in action
to recover damages for injuries passengers sustained in automobile accident caused by failure
of taxicab's brakes.
Affirmed.
96 Nev. 457, 458 (1980) Groomes v. Fox
Rose, Edwards, Hunt & Pearson, Ltd., of Las Vegas, for Appellants.
Lehman & Nelson, of Las Vegas, for Respondent.
Carriers.
Evidence supported trial court's finding that had jury paid due regard to instructions of the court,
particularly instruction concerning duty of care owed by common carrier to its passengers, it was not
possible to return defense verdict in action to recover damages for injuries taxicab's passengers sustained in
automobile accident caused by failure of taxicab's brakes.
OPINION
Per Curiam:
In this action to recover damages for injuries sustained in an automobile collision, the jury
found for the defendants, Groomes and Whittlesea Blue Cab. The court granted a new trial
since, in its view, there had occurred a manifest disregard by the jury of the instructions of the
court. NRCP 59(a)(5).
The plaintiff below, Louis Fox, was a passenger for hire in the Whittlesea cab driven by
Groomes. Before picking up Fox, Groomes noticed that his brakes were mushy, radioed
that information to the dispatcher and was told to bring the cab in after his next fare. Mr. Fox
and wife were the next passengers. While proceeding south on Las Vegas Boulevard towards
the Sands Hotel, Groomes entered the left turn lane to enter the Sands when the car in front of
him stopped suddenly. Groomes applied his brakes but could not stop.
Had the jury paid due regard to the instructions of the court, particularly the instruction
concerning the duty of care owed by a common carrier to its passengers, it was not possible,
in the view of the trial court, to return a defense verdict. Here, as in Price v. Sinnott, 85 Nev.
600, 460 P.2d 837 (1969), we believe it was well within the province of the trial court to so
conclude.
Affirmed.
____________
96 Nev. 459, 459 (1980) Robey v. State
ROBERT DWIGHT ROBEY, Appellant, v. THE STATE
No. 10704
May 22, 1980 611 P.2d 209
Appeal from judgment of conviction, Fourth Judicial District Court, Elko County; Joseph
O. McDaniel, Judge.
Defendant was convicted in the district court of misappropriating funds entrusted to him as
public officer, and he appealed. The Supreme Court held that in order to establish
misappropriation of public funds, State was required to prove conscious commission of
wrong.
Richard H. Bryan, Attorney General, Carson City; Thomas L. Stringfield,* District
1. Criminal Law.
Word willful, when used in criminal statutes with respect to proscribed conduct, relates to act or
omission which is done intentionally, deliberately or designedly, as distinguished from act or omission
done accidentally, inadvertently, or innocently.
2. Embezzlement.
In order to establish misappropriation of public funds, State was required to prove conscious commission
of wrong. NRS 204.030, subd. 1(c).
OPINION
Per Curiam:
A jury found appellant guilty of misappropriating funds which were entrusted to him as a
public officer, NRS 204.030(1)(c). The trial court sentenced appellant to one year in the state
prison.
From January, 1975, until July, 1976, appellant served as the justice of the peace in
Mountain City, Nevada. In his capacity as justice of the peace, appellant received fines and
other county revenue. Appellant set up a trust account with himself as trustee for the keeping
of these funds. Appellant testified that it was his understanding that any county official could
withdraw the funds from this account.
____________________
*The incumbent Elko County District Attorney did not occupy that office when the proceedings occurred
below.
96 Nev. 459, 460 (1980) Robey v. State
withdraw the funds from this account. In April, 1975, appellant withdrew these funds and
paid them over to the Elko County Treasurer. At that time the county treasurer did not
mention to appellant that he had a duty to pay these funds to the county treasurer on a
monthly basis. See NRS 176.285. Instead, appellant let the money accumulate in the trust
account.
During his tenure, appellant and the district attorney were not communicating on a regular
basis. In fact, the record reveals that their relationship was antagonistic. Appellant testified
that he was not informed by the district attorney that he had a duty to pay over these funds on
a thirty day basis. The district attorney testified that he informed appellant of his obligation at
an April 24, 1975, meeting. Appellant stated that he was only informed of his wrongdoing
when the Elko County Grand Jury indicted him on November 9, 1976. Thereafter appellant
closed the trust account and delivered the amount to the county treasurer. However, over two
hundred dollars was determined to be missing. Appellant's wife later found the sum in
appellant's new Idaho home in the cash box which appellant used during his tenure as justice
of the peace. This amount as well was paid over to the county treasurer.
Appellant contends that the trial court erred when it instructed the jury as to the use of the
word willfully as contained in NRS 204.030(1)(c).
1
The trial court instructed the jury that:
[T]he word willfully, when applied to the intent with which an act is done or omitted
and as used in my instructions, implies simply a purpose or willingness to commit the
act or to make the omission in question. The word does not require in its meaning any
intent to violate law, or to acquire any advantage.
Appellant argues that this instruction allows the jury to infer that a crime was committed
without requiring a criminal intent. Appellant contends that this was error. We agree.
[Headnote 1]
NRS 204.030(1)(c) requires that the state prove that the accused "willfully" omitted or
refused to pay over the fine money to the proper county official.
____________________

1
NRS 204.030 provides in pertinent part:
Misappropriation and falsification of accounts by public officer.
1. It is unlawful for any public officer. . .:
. . .
(c) Willfully to omit or refuse to pay over to the state, its officer or agent authorized by law to receive
the same, . . ., any money received by him as such officer when it is a duty imposed upon him by law to
pay over and account for the same.
96 Nev. 459, 461 (1980) Robey v. State
accused willfully omitted or refused to pay over the fine money to the proper county
official. The word willful when used in criminal statutes with respect to proscribed conduct
relates to an act or omission which is done intentionally, deliberately or designedly, as
distinguished from an act or omission done accidentally, inadvertently, or innocently. State v.
Russell, 442 P.2d 988 (Wash. 1968). See People v. Washburn, 593 P.2d 962 (Colo. 1979);
State v. Deutscher, 589 P.2d 620 (Kan. 1979); State v. Nelson, 561 P.2d 1093 (Wash.App.
1977).
NRS 204.030 proscribes misappropriation of public funds. Section 2 of this statute
provided at all pertinent times herein that the punishment for violation of NRS 204.030
[w]here the amount involved is $100 or more, [is] by imprisonment in the state prison for
not less than 1 year nor more than 10 years, or by a fine of not more than $5,000, or by both
fine and imprisonment.
2
With the instruction used by the district court, it would be possible
for the jury to find that a public officer willfully omitted to pay over public funds by an
omission without any conscious awareness of a wrongful act. Such inadvertence could
possibly result in a felony conviction, a $5,000 fine, and a ten year prison sentence. This is
contrary to the general conditions of penal liability requiring not only the doing of some act
by the person to be held liable, but also the existence of a guilty mind during the commission
of the act. Speidel v. State, 460 P.2d 77 (Alaska 1969). See NRS 193.190. See also Morissette
v. United States, 342 U.S. 246 (1952). To convict a person of a felony for such an act,
without proving criminal intent, is to deprive such person of due process. Speidel v. State,
supra.
In a similar situation, the Colorado Supreme Court recently construed a Colorado statute
which proscribed theft of rental property. That statute provided that the offense was
committed if the accused knowingly failed to reveal the whereabouts of the rental property
within seventy-two hours after the time he agreed to return it. Section 18-4-402(1)(b), C.R.S.
1973 (1978 Repl. Vol. 8). That court held that that statute required proof of a general criminal
intent, i.e. proof of a culpable mental state. People v. Washburn, supra. Cf. State v. Hall, 413
P.2d 685 (Idaho 1966) (a statute proscribing the willful wasting of water implies the
conscious commission of a wrong).
[Headnote 2]
In the case at bar NRS 204.030 proscribes misappropriation of public funds by a willful
omission to pay them over to the proper officer empowered to demand them. An element of
this offense is a culpable mind.
____________________

2
NRS 204.030(2)(a) was amended by the 1979 legislature to provide for an increased fine of $10,000.
96 Nev. 459, 462 (1980) Robey v. State
offense is a culpable mind. Thus, in order to establish misappropriation of public funds the
state must prove the conscious commission of a wrong. Since this is an element of the offense
the court must adequately instruct the jury, and the failure to do otherwise constitutes
reversible error. See, e.g., Turner v. State, 96 Nev. 164, 605 P.2d 1140 (1980); Dougherty v.
State, 86 Nev. 507, 471 P.2d 212 (1970); Harvey v. State, 78 Nev. 417, 375 P.2d 225 (1962).
The instruction in the case at bar which concerns the requisite intent for misappropriation was
not accurate and therefore constitutes reversible error.
Accordingly, we reverse the judgment of conviction and remand the case for a new trial.
____________
96 Nev. 462, 462 (1980) De Lee v. Hicks
SOL DE LEE, Appellant, v. LINDA HICKS,
Respondent.
No. 10581
May 22, 1980 611 P.2d 211
Appeal from summary judgment; Eighth Judicial District Court, Clark County; James A.
Brennan, Judge.
Borrower appealed summary judgment rendered by the district court in favor of lender in
an action to recover amounts due upon two promissory notes. The Supreme Court,
Thompson, J., held that: (1) material issue of fact existed as to whether underlying loans were
usurious, precluding summary judgment, and (2) trustor, who had created inter vivos trust,
designated trustee, granted to herself life interest in the income, and reserved right to change
beneficiaries and trustees, and who removed trustee and revoked the trust after underlying
loans were made to borrower from the trust funds, was proper party to prosecute action
against borrower to recover amounts due.
Reversed.
Deaner, Deaner & Reynolds, of Las Vegas, for Appellant.
Jones, Jones, Bell, Close & Brown and Gary R. Goodheart, of Las Vegas, for Respondent.
In reviewing summary judgment entered in favor of lender in action to recover amounts due upon two
promissory notes, Supreme Court would construe deposition of borrower in borrower's favor.
96 Nev. 462, 463 (1980) De Lee v. Hicks
2. Usury.
Exaction of broker's fee by lender or his agent will be considered in computing interest to determine if
loan is usurious.
3. Judgment.
In action by lender to recover amounts due upon two promissory notes, material issue of fact existed as to
whether underlying loans were usurious, precluding summary judgment.
4. Bills and Notes; Trusts.
Unrestricted power to modify beneficiaries of inter vivos trust includes power to revoke the trust, since
trustor can substitute herself as beneficiary and terminate the trust under sole beneficiary rule; therefore,
trustor, who had created inter vivos trust, designated a trustee, granted to herself life interest in the income,
and reserved right to change beneficiaries and trustees, and who removed trustee and revoked the trust after
underlying loans were made to borrower from the trust funds, was proper party to prosecute action against
borrower to recover amounts due upon two promissory notes.
OPINION
This action was commenced by Linda Hicks against Sol De Lee to recover the amounts
due upon two promissory notes. The district court entered summary judgment for Hicks.
Error is claimed since, in the view of De Lee, genuine issues of material fact are disclosed by
the record and should be litigated.
Two promissory notes were executed by De Lee in favor of Gale Hicks, Trustee. The first
note dated June 3, 1973, was for $68,000 with interest at 12 percent per year. The second note
dated July 23, 1973, was for $19,000 with interest at 12 percent per year.
In January 1973, Linda Hicks had created an inter vivos trust designating Gale Hicks as
the Trustee, granting to herself a life interest in the income, with the remainder to specified
beneficiaries. She reserved the right to change beneficiaries and trustees. She did not
expressly reserve the right to revoke the trust.
The mentioned loans to De Lee were made by Gale Hicks from trust funds. On January 10,
1975, Linda Hicks removed Gale Hicks as Trustee and revoked the trust. A substitute trustee
was not named. Thereafter, Linda Hicks demanded payment of the notes. When payment was
not forthcoming, this action was commenced.
[Headnotes 1-3]
1. Throughout, it has been the contention of De Lee that the loans were usurious. His
deposition was taken and was before the court for consideration. Construing the deposition in
his favor, as we must upon review of summary judgment, Muscelli v. Muscelli, 96 Nev. 41
96 Nev. 462, 464 (1980) De Lee v. Hicks
in his favor, as we must upon review of summary judgment, Muscelli v. Muscelli, 96 Nev.
41, 604 P.2d 1237 (1980), it appears that he was introduced to Gale Hicks by Attorney
Rogers and that a portion of each note was paid to Hicks as a loan fee.
1
The exaction of a
broker's fee by the lender or his agent will be considered in computing interest to determine if
a loan is usurious. Miller v. York, 92 Nev. 226, 548 P.2d 941 (1976); Carson Meadows, Inc.
v. Pease, 91 Nev. 187, 533 P.2d 458 (1975); Pease v. Taylor, 88 Nev. 287, 496 P.2d 757
(1972); cf. United Mortgage Co. v. Hildreth, 93 Nev. 79, 559 P.2d 1186 (1977). The district
court apparently did not consider Pease, supra, and its progeny. An issue of material fact
regarding the affirmative defense of usury exists and must be litigated.
[Headnote 4]
2. We perceive no validity to the contention of De Lee that Linda Hicks is not a proper
party to prosecute this case. An unrestricted power to modify the beneficiaries of an inter
vivos trust includes the power to revoke the trust since the trustor can substitute herself as the
beneficiary and terminate the trust under the sole beneficiary rule. IV Scott, The Law of
Trusts 331.2 (3d ed. 1967); Restatement of Trusts 331, comment h (1959). This
apparently occurred in the matter at hand.
Reversed.
____________________

1
In reviewing the record, we have given no credence to the following documents to which counsel have
referred in their briefs and oral argument.
A. The answers to interrogatories submitted to De Lee, because not signed by De Lee as required by
NRCP 33(a).
B. The unauthenticated copy of a letter from Attorney James Rogers to Dr. De Lee dated July 14, 1977.
C. The affidavit of Chuck Golleher regarding cash payments on the loans, because the affiant admits that
he has no knowledge of the true amounts paid.
D. The affidavit of Leota Bostaph regarding a $6,000 cash payment by De Lee on a loan, because the
affiant is unable to identify the loan.
____________
96 Nev. 465, 465 (1980) Weiss v. State of Nevada
ROBERT C. WEISS and GWYNNETH F. WEISS, Appellants, v. STATE OF NEVADA;
CLARK COUNTY; STATE OF NEVADA BOARD OF EQUALIZATION; NEVADA TAX
COMMISSION, et al., Respondents.
No. 11970
May 22, 1980 611 P.2d 212
Appeal from judgment affirming State Board of Equalization's determination of real
property value; Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
This Supreme Court, Thompson, J., held that: (1) in evaluating the taxpayers' apartment
buildings, the Board was not required to accept the recent purchase price of identical
apartment buildings as the sole indicator of value, but was required to compute value by using
the costs, market and income approaches to value, and (2) where the taxpayers presented no
evidence to contravene the assessor's evidence of the value of the condominium, they did not
meet their burden to show by clear and convincing evidence that the assessor's evaluation was
unjust and inequitable.
Affirmed.
Lionel Sawyer & Collins, and Stephen L. Morris, of Las Vegas, for Appellants.
Richard Bryan, Attorney General, and Brooke A. Nielson, Deputy Attorney General, for
Respondents State of Nevada, Board of Equalization and Tax Commission.
Robert J. Miller, District Attorney, and Melvin R. Whipple, Deputy District Attorney,
Clark County, for Respondent Clark County.
1. Taxation.
On review of State Board of Equalization's determination of real property value, taxpayer is obliged to
show by clear and convincing evidence that evaluation established by State Board is unjust and inequitable
and this burden is not met unless court can find that Board applied fundamentally wrong principle, or
refused to exercise its best judgment, or that assessment was so excessive as to give rise to implication of
fraud and bad faith. NRS 361.430.
2. Taxation.
In evaluating the taxpayer's apartment buildings, Board of Equalization was not required to accept recent
purchase price of identical apartment buildings as sole indicator of value, but was required to compute
value by using the cost, market and income approaches to value. NRS 361.227, subd. 1.
3. Taxation.
On review of State Board of Equalization's determination of value of condominium, taxpayers did not
meet their burden of showing by clear and convincing evidence that valuation was unjust and inequitable
where they presented no evidence to contravene evidence presented by assessor to support his appraisal.
NRS 361.430.
OPINION
The district court affirmed a determination of value of the appellants' properties made by
the State Board of Equalization. This appeal challenges that ruling.
In June 1977, Robert Weiss owned 596 apartments located in buildings comprised of four
and eight units. The four-unit and eight-unit buildings are identical and contain identical
apartments. On June 22, 1977, Weiss purchased an additional six four-unit buildings which
were contiguous and identical to the ones he already owned. The purchase price for the 24
additional apartments was $300,000. Six days later the Clark County Assessors determined
that the apartments Weiss had just purchased had a value of $373,000. Using that as a basis
he then reassessed the 596 units owned before the purchase to arrive at the value for the
forthcoming tax year of the 620 units now owned by Weiss.
Mr. Weiss and Gwynneth Weiss own a condominium located in the Regency Towers, Las
Vegas, Nevada. Mr. Weiss complains of the value given the apartments, and both of them
complain of the value accorded to their condominium.
With regard to the 620 apartments it is the contention of Mr. Weiss that the fair cash value
was conclusively established by the purchase of the 24 additional units since it was a
purchase of a representative part of the very property in question within days of assessment in
an arm's length transaction. With regard to the condominium, the appellants argue that the
valuation was based on the asking price of similar but unsold condominiums, resulting in an
overvaluation.
District court review of the State Board determination is provided for by NRS 361.420.
That court decided that the State Board had utilized accepted methods for determining value,
and that the Weisses had not proven by clear and satisfactory evidence that the valuations
were unjust and inequitable. This appeal followed.
1. The 620 apartments.
[Headnote 1]
The taxpayer is obliged to show by clear and convincing evidence that the valuation
established by the State Board is unjust and inequitable. NRS 361.430; Kelly v. State of
Nevada, 91 Nev. 150, 532 P.2d 1029 (1975); Nevada Tax Comm'n v. Southwest Gas Corp.,
88 Nev. 309, 497 P.2d 308 (1972). This burden is not met unless the court can find that the
Board applied a fundamentally wrong principle, or refused to exercise its best judgment, or
that the assessment was so excessive as to give rise to an implication of fraud and bad faith.
Kelly, supra.
[Headnote 2]
Robert Weiss does not here suggest that the assessments were so excessive as to give rise
to an implication of fraud and bad faith, or that the Board refused to exercise its best
judgment. He does contend that the Board applied a fundamentally wrong principle when it
did not accept the purchase of the 24 additional identical apartments as the sole indicator of
value.
Our legislature has directed the assessment of real property at thirty-five percent of its full
cash value. NRS 361.225. The person making the assessment is directed to compute value by
using three recognized methods for ascertaining value commonly called the cost, market and
income approaches to value.
1
These methods are to be utilized if information is available to
permit their utilization. The record reveals that the three approaches to value were considered
by the State Board since sufficient information apparently was available. Cf. Nevada Tax
Comm'n v. Southwest Gas Corp., 88 Nev. 309, 497 P.2d 308 (1972), where two of the three
indicators of value were not available and we, therefore, approved the utilization of only the
book cost less depreciation indicator.
Robert Weiss would have us read NRS 361.227(1) to apply only in those instances where
there has not been an arm's length purchase of a representative part of the very property in
question within days of the assessment.
____________________

1
NRS 361.227(1). Any person determining the full cash value of real property shall compute that value by
using each of the following factors for which information is available and shall give such weight to each
applicable factor as, in his judgment, is proper:
(a) The estimate of the value of the vacant land, plus any improvements made and minus any depreciation
computed according to the estimated life of the improvements.
(b) The market value of the property, as evidence by:
(1) comparable sales in the vicinity;
(2) the price at which the property was sold to the present owner; and
(3) the value of the property for the use to which it was actually put for the fiscal year of assessment.
(c) The value of the property estimated by capitalization of the fair economic income expectancy.
question within days of the assessment. The direction of the statute is not so limited. The
second approach to value mentioned in the statute, the market approach, compels the assessor
to consider the arm's length purchase to which Weiss refers. The balance of the statute
requires the assessor also to utilize the other mentioned approaches to value if information
concerning them is available. This was done. In these circumstances we are unable to
conclude that the Board applied a fundamentally wrong principle in ascertaining the value of
the apartments resulting in an inequity.
2. The condominium.
[Headnote 3]
The condominium owned by the Weisses is on the twenty-sixth floor of the Regency
Towers, a twenty-nine-story building. The assessor determined its full cash value to be
$84,980. The Weisses argue that the assessor improperly considered the offered but
unaccepted purchase prices for the condominiums submitted by the developers. Arguably,
this was considered by the assessor only to show that prices of the condominiums increased
on the higher floors. In any event, the assessor also presented a list of allegedly comparable
sales to support his appraisal. The Weisses did not submit contravening evidence and,
therefore, did not meet the taxpayer's burden to show by clear and convincing evidence that
the valuation is unjust and inequitable.
Affirmed.
____________
96 Nev. 468, 468 (1980) Wood v. Froerer Corporation
JOHN C. WOOD, MARVIN P. KLASSEN, and NORMAN ORCUTT, Individually and
d.b.a. PIONEER LAND AND LIVESTOCK, a General Copartnership, Appellants, v.
FROERER CORPORATION, a Utah Corporation, and VALLEY TITLE AND
ESCROW COMPANY, Respondents.
No. 11643
May 22, 1980 611 P.2d 193
Appeal from judgment; Sixth Judicial District Court, Humboldt County; Llewellyn A.
Young, Judge.
Mortgagors sued to enjoin the foreclosure of a trust deed. The district court denied
injunctive relief and mortgagors appealed. The Supreme Court, Thompson, J., held that
where a loan was negotiated through a broker with a moneylender and the moneylender
in good faith lent the money at a legal rate of interest, the transaction was not made
usurious by the fact that the broker charged the borrower a commission for his services
and the fact that the underlying promissory note named the mortgage broker rather than
the lender as the payee was immaterial.
appealed. The Supreme Court, Thompson, J., held that where a loan was negotiated through a
broker with a moneylender and the moneylender in good faith lent the money at a legal rate of
interest, the transaction was not made usurious by the fact that the broker charged the
borrower a commission for his services and the fact that the underlying promissory note
named the mortgage broker rather than the lender as the payee was immaterial.
Affirmed.
Wilson & Henderson, of Reno, for Appellants.
Deaner, Deaner & Reynolds, of Las Vegas, for Respondents.
Usury.
Where loan was negotiated through broker with moneylender and moneylender in good faith lent money
at legal rate of interest, transaction was not made usurious by fact that broker charged borrower a
commission for his services and fact that underlying promissory note named mortgage broker rather than
lender as payee was immaterial.
OPINION
This action was commenced by copartners Wood, Klassen and Orcutt, d.b.a. Pioneer Land
and Livestock, to enjoin the foreclosure of a trust deed. They also sought a declaratory
judgment that the underlying loan was usurious and that only the principal balance of the
obligation was owed. The defendant, Froerer Corporation, is a licensed mortgage broker in
Utah. After receiving evidence, the district court found that Froerer was not the agent of the
lenders of the money, and that it was permissible for Froerer to charge a commission for its
services. Injunctive relief was denied. This appeal followed. For reasons hereafter stated, we
affirm.
Pioneer contacted Froerer for the purpose of obtaining a loan. Froerer obtained funds from
private investors and extended a loan of $85,000 at twelve percent interest to Pioneer. The
loan was secured by a first deed of trust and was to be repaid in one year. As a broker's
commission Froerer was to receive $8,000-$5,000 to be paid at the close of escrow out of the
$85,000 loan, and a $3,000 note secured by a third deed of trust. Valley Title and Escrow
handled the escrow arrangements.
A broker's commission was never discussed with the lenders. They did not require the
borrower to pay a commission to Froerer as a condition of the loan, nor did they share in
the commission received by Froerer.
Froerer as a condition of the loan, nor did they share in the commission received by Froerer.
Pursuant to the Collection Trust Agreement between Froerer and the lenders, Froerer was to
collect the loan, disburse it to the individual lenders and, in the event of default, pursue
foreclosure proceedings.
Pioneer's agreement with Froerer, which included a broker's fee in addition to interest on
the loan, was reached before the identities of the lenders were known to anyone.
The promissory note for $85,000 was made payable to Froerer as a convenience since
there were multiple lenders. Valley Title was trustee and Froerer beneficiary of the trust deed.
The $3,000 note and trust deed were made out in similar fashion.
At the end of the year Pioneer was unable to pay either note. Consequently, Valley Title
commenced foreclosure, causing this suit for injunctive relief and declaratory judgment to be
filed.
In United Mortgage Co. v. Hildreth, 93 Nev. 79, 559 P.2d 1186 (1977), we ruled that
where one negotiates a loan through a broker with a money lender, and the latter in good faith
lends the money at a legal rate of interest, the transaction is not made usurious by the fact that
the broker charges the borrower a commission for his services.
1

The case at hand is strikingly similar to United Mortgage and, we believe, is controlled by
that precedent. Here, as in that case, the borrower authorized the mortgage broker to act on its
behalf to procure the loan and agreed to pay a specific fee for that service. As in United
Mortgage the lenders did not require the borrowers to pay a brokers fee to the lenders or their
agent, nor did they share such fee with the broker. The partner of the borrowers who initially
approached the mortgage broker regarding the loan knew its status as a mortgage broker. In
United Mortgage the borrowers knew that they were dealing with a mortgage broker. The
single distinction between this case and United Mortgage is that the underlying promissory
note for $85,000 named Froerer, the mortgage broker, as the payee rather than the lenders.
However, there is no question but that Froerer was not in fact the lender. It was permissible
for the court to conclude, in line with testimony, that the note was drawn that way as a
convenience since there were multiple lenders, and that it did not alter the actual situation
regarding the true lenders.
____________________

1
Of course, the exaction of a broker's fee by the lender or his agent will be considered in computing interest
to determine if a loan is usurious. Miller v. York, 92 Nev. 226, 548 P.2d 941 (1976); Carson Meadows Inc. v.
Pease, 91 Nev. 187, 533 P.2d 458 (1975); Pease v. Taylor, 88 Nev. 287, 496 P.2d 757 (1972).
lenders, and that it did not alter the actual situation regarding the true lenders.
Affirmed.
____________
96 Nev. 471, 471 (1980) Kabase v. District Court
MARVIN PHILLIP KABASE and JOHN DePASQUALE, Petitioners, v. THE EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, Respondent.
No. 11607
May 22, 1980 611 P.2d 194
Original proceeding in certiorari. Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
Petitioners sought review of an order of the district court which enjoined an attorney from
representing petitioners and directed petitioners to obtain other counsel. The Supreme Court
held that because the trial judge did not give petitioners an opportunity to intelligently waive
any conflict caused by the attorney's representation of the alleged victim, the injunction could
not stand.
Remanded with instructions.
Gang & Berkley, Las Vegas, for Petitioners.
Wiener, Goldwater & Waldman, Las Vegas, for Respondent.
1. Criminal Law.
In criminal cases, the public interest in the efficient and effective administration of justice must be
weighed against a defendant's fundamental right to retain counsel of his own choosing in determining
whether an attorney can be enjoined from representing conflicting interests. U.S.C.A.Const. Amend. 6
2. Criminal Law.
Even though retained counsel faces a conflict of interest, defendant may continue to be represented by
that attorney if defendant makes a voluntary, knowing and understanding waiver of conflict-free
representation.
3. Criminal Law.
When a criminal defendant offers to waive objections to an apparent conflict of interest on the part of his
attorney, the trial judge should fully explain the nature of the conflict, the disabilities which
it may place on counsel in conducting the defense and the nature of the potential
claims which the defendant will be waiving.
explain the nature of the conflict, the disabilities which it may place on counsel in conducting the defense
and the nature of the potential claims which the defendant will be waiving.
4. Criminal Law.
Where the trial court did not give petitioners an opportunity to intelligently waive any conflict caused by
the fact that their retained attorney was also receiving a retainer fee from the corporate parent of the alleged
victim corporation, the trial court's order enjoining the attorney from representing petitioners could not be
sustained.
OPINION
Per Curiam:
Petitioners, Marvin Kabase and John De Pasquale, seek review of an order enjoining
attorney Oscar Goodman from representing them, and directing petitioners to obtain other
counsel. Petitioners claim that the district judge abused his discretion and deprived them of
their right to be represented by counsel of their choice. We reverse and remand for a hearing
to determine if petitioners knowingly and intelligently waived their right to conflict-free,
effective assistance of counsel.
On January 13, 1978, petitioners were indicted by the Clark County Grand Jury for
numerous offenses allegedly committed during petitioners' employment by the Fremont Hotel
and Casino, Inc., dba Fremont Hotel and Casino, Race and Sports Book Pool. Petitioners
retained Goodman to represent them in the pending criminal prosecution.
Before agreeing to represent them, Goodman informed petitioners that he was receiving a
retainer fee from the Argent Corporation, which is the parent corporation of the Fremont
Hotel. Goodman told petitioners that they would be required to waive all rights to raise the
conflict of interest problem on appeal, if they wanted him as counsel. Petitioners presented
sworn affidavits stating that they waived any right to claim error or prejudice from the
potential conflict of interest. The district judge refused to accept the waivers, and enjoined
Goodman from representing petitioners, because of the conflict of interest and the appearance
of impropriety.
[Headnotes 1, 2]
We have held that, in civil cases, the district judge has the inherent power to enjoin an
attorney from representing conflicting interests in order to prevent injustice and to preserve
the integrity of the judicial process. Wait v. District Court, 81 Nev. 612, 407 P.2d 912 (1965);
Boyd v. Second Judicial District Court, 51 Nev. 264, 274 P. 7 (1929). However, in criminal
cases, the public interest in the efficient and effective administration of justice must be
weighed against a defendant's fundamental right to retain counsel of his own choosing.
cases, the public interest in the efficient and effective administration of justice must be
weighed against a defendant's fundamental right to retain counsel of his own choosing.
People v. Spurlark, 384 N.E.2d 767 (Ill.App. 1978). Where, as here, the district judge finds
that retained counsel faces a conflict of interest, the defendant may continue to be represented
by that attorney if he makes a voluntary, knowing, and understanding waiver of conflict-free
representation. See United States v. Armedo-Sarmiento, 524 F.2d 591 (2d Cir. 1975); United
States v. Garcia, 517 F.2d 272 (5th Cir. 1975); People v. Johnson, 387 N.E.2d 688 (Ill. 1979);
cf. Faretta v. California, 422 U.S. 806 (1975); Bishop v. State, 95 Nev. 511, 597 P.2d 273
(1979) (defendant must be permitted to waive assistance of counsel). But see In re
Investigation before Feb. 1977 Lynchburg Grand Jury, 563 F.2d 652 (4th Cir. 1977).
[Headnotes 3, 4]
When a criminal defendant offers to waive objections to the conflict, the district judge
should fully explain . . . the nature of the conflict, the disabilities which it may place on
[counsel] in [his] conduct of [the] defense, and the nature of the potential claims which
appellants will be waiving. Armedo-Sarmiento, 524 F.2d at 593; Garcia, 517 F.2d at 278;
Zuck v. Alabama, 588 F.2d 436, 440 (5th Cir.), cert. denied 100 S.Ct. 63 (1979). In this case,
the district judge did not give petitioners an opportunity to intelligently and validly waive any
conflict caused by Goodman's representation of Argent, the alleged victim. Therefore, the
order enjoining Goodman from representing petitioners is reversed and the case is remanded
for further proceedings in accordance with this opinion.
1

____________________

1
At this time, it would be premature for this court to consider whether Goodman's dual role might be in
violation of the standards of legal ethics enunciated in Supreme Court Rules 167, 169, and 179, and in Canons 4
and 9 of the American Bar Association Code of Professional Responsibility.
We note, however, that Argent remains entitled to full protection in preserving confidential communications
with Goodman, and its representatives may refrain from answering any questions from Goodman that are based
on privileged communications. See Armedo-Sarmiento, 524 F.2d at 593.
____________
96 Nev. 474, 474 (1980) State v. Graff
THE STATE OF NEVADA, Appellant, v.
JOY GRAFF, Respondent.
No. 10823
May 22, 1980 611 P.2d 196
Appeal from order granting new trial, First Judicial District Court, Carson City; Howard
D. McKibben, Judge.
After defendant was convicted on four of six counts of unlawful possession of drugs, the
district court ordered a new trial, and the State appealed. The Supreme Court, Gunderson, J.,
held that a new trial was required where trial judge entered jury room and gave jury an
example of possession in contravention of statute governing jury charges.
Affirmed.
Richard Bryan, Attorney General, and David B. Small, District Attorney, Carson City, for
Appellant.
Carl F. Martillaro, Carson City, for Respondent.
Criminal Law.
New trial was required in prosecution for unlawful possession of drugs where trial judge entered jury
room and gave jury an example of possession in contravention of statute governing jury charges. NRS
175.161.
OPINION
Respondent was tried by a jury on six counts of unlawful possession of drugs. She was
convicted on four counts; acquitted on two counts. Ascertaining that the trial judge had
communicated with jurors during deliberations, Judge McKibben ordered a new trial. The
State appeals, arguing that no prejudice to respondent had been shown.
The communication by the trial judge was not upon an extraneous matter. The jurors
agreed that because they were having difficulty applying an instruction, the trial judge entered
the jury room and gave an example of possession. As the State acknowledges, this action
contravened NRS 175.161.
1
After the judge's communication, two of the jurors changed
their votes on two counts to "not guilty."
____________________

1
NRS 175.161 provides in material part:
1. Upon the close of the argument, the judge shall charge the jury. He may state the testimony and
declare the law, but shall not charge the jury in
96 Nev. 474, 475 (1980) State v. Graff
the judge's communication, two of the jurors changed their votes on two counts to not
guilty.
In our view, if a trial judge enters a jury room and communicates with deliberating jurors
on a subject relevant to the case, reversal is required. We decline to adopt the views
expressed in cases cited by the State. See, e.g., State v. Pokini, 526 P.2d 94 (Haw. 1974) and
Wiseman v. People, 498 P.2d 930 (Colo. 1972). As the Arizona Supreme Court has written:
. . . We find that in practically all of the reported cases appellate courts properly regard
communications between the trial judge and jurors, relative to the trial, as of a more
serious nature and more likely to have a prejudicial effect than communications
between other court officials or attendants and jurors. This for the reason that the jurors
look to the judge as their impartial authority and guide in their deliberations. In a
criminal case there is a tendency to afford the defendant even greater protection than in
civil cases. Under facts such as are shown here, where the communication concerned
the case and not merely extraneous matters, we are of the opinion that the defendant is
not required to show actual prejudice.
State v. Burnetts, 295 P.2d 377 at 379 (Ariz. 1956).
Affirmed.
____________________
respect to matters of fact; such charge shall be reduced to writing before it is given; and in no case shall
any charge or instructions be given to the jury otherwise than in writing, unless by the mutual consent of
the parties. . . .
____________
96 Nev. 475, 475 (1980) Foster v. Marshman
GEORGE FOSTER, Appellant, v. BEVERLY
MARSHMAN, Respondent.
No. 11872
May 22, 1980 611 P.2d 197
Appeal from order enforcing foreign judgment for accrued child support, Second Judicial
District Court, Washoe County; William N. Forman, Judge.
Former wife brought action to recover alleged child support arrearages. The district court
entered judgment, and appeal was taken. The Supreme Court, Manoukian, J., held that: {1)
1967 Nevada order under Uniform Reciprocal Enforcement of Support Act did not modify
former husband's greater obligation under previous California order; {2) stipulated 1967
Uniform Reciprocal Enforcement of Support Act order entered in Nevada and subsequent
obedience by former husband, along with former wife's acceptance of payments made
pursuant to such order, did not amount, under California law, to waiver or modification by
former wife of enforcement of greater amount of support required to be made by former
husband under 1963 California order; but {3) recovery of support arrearages accruing
more than six years prior to initiation of action was barred; {4) former husband's
compliance with 1967 Nevada Uniform Reciprocal Enforcement of Support Act order
demonstrated specific application of payments, and thus payments made in Nevada
pursuant to the 1967 Nevada order had to be credited against amounts accrued for same
period under 1963 California support order; and {5) remand was required for
determination of proper amount owed.
was taken. The Supreme Court, Manoukian, J., held that: (1) 1967 Nevada order under
Uniform Reciprocal Enforcement of Support Act did not modify former husband's greater
obligation under previous California order; (2) stipulated 1967 Uniform Reciprocal
Enforcement of Support Act order entered in Nevada and subsequent obedience by former
husband, along with former wife's acceptance of payments made pursuant to such order, did
not amount, under California law, to waiver or modification by former wife of enforcement of
greater amount of support required to be made by former husband under 1963 California
order; but (3) recovery of support arrearages accruing more than six years prior to initiation of
action was barred; (4) former husband's compliance with 1967 Nevada Uniform Reciprocal
Enforcement of Support Act order demonstrated specific application of payments, and thus
payments made in Nevada pursuant to the 1967 Nevada order had to be credited against
amounts accrued for same period under 1963 California support order; and (5) remand was
required for determination of proper amount owed.
Paul H. Lamboley and Robert M. Sader, of Reno, for Appellant.
Wilson and Henderson and Gary Nelson, of Reno, for Respondent.
1. Parent and Child.
Nevada order, entered in 1967 under Uniform Reciprocal Enforcement of Support Act
did not modify former husband's greater obligation under previous California order. NRS
130.050, 130.280; Cal.Code.Civ.Proc. 681, 1654, 1689.
Stipulated 1967 Uniform Reciprocal Enforcement of Support Act order, entered in
Nevada, and subsequent obedience by former husband, along with former wife's
acceptance of payments made pursuant to such order, did not amount, under California
law, to waiver or modification by former wife of enforcement of greater amount of
support required to be made by former husband under 1963 California order. NRS
130.050, 130.280; Cal.Code.Civ.Proc. 681, 1654, 1689.
3. Divorce.
In absence of specific application of partial payments in satisfaction of support order,
partial payments must be applied to oldest debt first when statute of limitations is
consideration. NRS 11.190, subd. 1(a).
4. Divorce.
Recovery of support arrearages accruing more than six years prior to initiation of action
was barred. NRS 11.190, subd. 1(a).
Former husband's compliance with 1967 Nevada Uniform Reciprocal Enforcement of
Support Act order demonstrated specific application of payments, and thus payments
made in Nevada pursuant to the 1967 Nevada order had to be credited against
amounts accrued for same period under 1963 California support order, which
required former husband to make greater support payments.
payments, and thus payments made in Nevada pursuant to the 1967 Nevada order had to be credited
against amounts accrued for same period under 1963 California support order, which required former
husband to make greater support payments. NRS 130.280, subd. 2.
OPINION
Appellant George Foster contends the trial court should have found that respondent
Beverly Marshman was precluded from recovering child support arrearages due to equitable
defenses he asserted. We disagree and affirm this portion of the order of the lower court.
Appellant further contends that support payments were improperly allocated to the oldest debt
first. We believe this contention has substantial merit, and reverse.
Pursuant to a divorce decree rendered in 1960 in Washoe County, George was ordered to
pay Beverly thirty dollars per month for each of the three children the issue of the marriage.
Beverly and the children then moved to California while George remained in Nevada. In
1963, George instituted an action in a California superior court seeking to change child
custody. The California court refused to modify and increased the child support to sixty
dollars per month per child. Appellant paid this increased support for several months and then
ceased paying any amount.
In 1967, Beverly initiated an action in California under the Uniform Reciprocal
Enforcement of Support Act (URESA). The complaint stated that George had failed to
provide support and that Beverly was obtaining financial assistance from the co-plaintiff
County of Alameda. The complaint requested support at $200 per month, an increase from
the previous order of $180 per month, and additionally complained that George be directed to
reimburse the county for its expenses. The action was forwarded to the Washoe County
District Attorney who, pursuant to Nevada's URESA statute, prosecuted appellant. George
and the district attorney, representing the plaintiffs, stipulated to a judgment requiring
appellant to pay thirty dollars per month per child. Appellant complied with this order.
In March of 1973, Beverly obtained an abstract of judgment in California certifying the
1963 order of support at sixty dollars per child. Subsequently, in May of 1973, the California
court issued a Writ of Execution against George in the amount of $11,018 based upon the
1963 judgment. The present action was filed in August of 1976 to collect support arrearages
accruing under the 1963 California judgment as reflected in the 1973 Writ of Execution.
Writ of Execution. The district court held that the 1967 URESA order did not supersede any
previous order of support and that Beverly did not waive any rights by initiating the URESA
action and requesting the upward modification. The court also found August 1, 1970 to be the
applicable date under the statute of limitations. But the court applied George's payments
subsequent to that date to accrued support prior to that date. The district court ruled that
because the URESA payments were partial as to the 1963 order, they had to be applied to the
oldest debt first. For the reasons hereinafter stated, we affirm the order finding no applicable
equitable defenses and reverse that part of the order which provided for the application of
payments to the oldest debt first.
1. Preclusion of Equitable Defenses.
In Peot v. Peot, 92 Nev. 388, 551 P.2d 242 (1976), this court held that a URESA order
would not supersede any previous order of support. Id. at 390, 551 P.2d at 243-44, citing
1955 Nev. Stats. ch. 44, 28, at 65. In 1969, the legislature provided that such an order,
entered by a Nevada court, could permit a modification if there was a specific provision for
such modification in the order. 1969 Nev. Stats. ch. 346, 23, at 607 (codified in NRS
130.280).
Appellant asserts that respondent, by stipulating to the URESA judgment through the
district attorney and by acting in accordance with it by accepting subsequent payments,
waived her right to accrued support, is estopped from asserting the 1963 California order and
is guilty of laches in prosecuting this enforcement action. Appellant argues that Nevada law
and Peot should not be applied and, even if it is, that Peot should be limited in application.
We cannot agree.
According to NRS 130.090, the duties of support under URESA are those imposed under
the laws of any state where the obligor was present during the period for which support is
sought. This statute, combined with the fact that both parties were before the district court,
makes Nevada law applicable. See Elkind v. Byck, 439 P.2d 316 (Cal. 1968). In any event,
under the law of either state, the lower court did not err.
[Headnote 1]
The laws of California and Nevada under URESA provide that the remedies in the Act
are in addition to and not in substitution for any other remedies and support orders under
the Act do not supersede or nullify support orders of any other state. Cal. Civ. Proc. Code
1654, 1689 (West 1972); NRS 130.050, 130.280. Thus, the Nevada order in 1967 under
URESA did not modify the obligation under the previous California order.
Appellant contends that according to California case law dehors URESA, respondent's
actions here amounted to a waiver or modification.
dehors URESA, respondent's actions here amounted to a waiver or modification. Appellant's
reliance is misplaced. In California, under authority cited by appellant, the courts have
distinguished between their ability to modify support payments retroactively and their ability
to deny enforcement of accrued support under a writ of execution on equitable grounds. In
one case, a spouse acquiesced to a child living with the other spouse. Jackson v. Jackson, 124
Cal.Rptr. 101, 104 (Ct.App. 1975). In another case, the wife left the state with the child and
hid. In re Marriage of Szamocki, 121 Cal.Rptr. 231, 235-36 (Ct.App. 1975). And, in Graham
v. Graham, 345 P.2d 316, 318-19 (Ct.App. 1959), a spouse agreed to a certain amount of
payments. These acts constituted a waiver of the enforcement of accrued support by way of a
writ of execution or on an order to show cause. None of the waivers stemmed from an order
under URESA which was involved in this case. Additionally, enforcement by way of a writ of
execution in California is not subject to laches if it is within ten years of the installments due.
Cal. Civ. Proc. Code 681 (West Supp. 1980).
[Headnote 2]
The stipulated order and subsequent obedience by appellant, along with respondent's
acceptance of payments, does not amount to a waiver or modification by respondent. As
recognized in Peot, the spouse seeking enforcement under URESA relies upon the prosecutor
in the foreign state and is usually not present. The fact that the complaint requested more
support is also not controlling.
2. Allocation of Payments.
[Headnotes 3, 4]
In the absence of any specific application of partial payments in satisfaction of a support
order, partial payments must be applied to the oldest debt first when the statute of limitations
is a consideration. Biel v. Godwin, 69 Nev. 189, 191, 245 P.2d 997, 998 (1952). The record
shows in this case that appellant made payments in accordance with the 1967 URESA order
although the payments were not always timely. These payments were half of what was
required under the 1963 California order. The trial court apparently agreed with counsel for
respondent that the payments were to be applied to the oldest debt first. This satisfied the
arrearages prior to 1970. Appellant argues that this application was erroneous and that
appellant's post-1970 payments should have been applied to post-1970 accrued support. Due
to the six-year statute of limitation, NRS 11.190(1)(a), recovery of support arrearages
accruing prior to August of 1970 was barred. We are persuaded by appellant's argument.
[Headnote 5]
Appellant's compliance with the 1967 URESA order demonstrated a specific application
of payments. Under NRS 130.280(2),
[a]mounts paid for a particular period pursuant to any support order made by the
court of another state shall be credited against the amounts accruing or accrued for the
same period under any support order made by the court of this state pursuant to a
proceeding under this chapter. Arrearages which have accrued prior to an order of a
court of this state in a proceeding under this chapter shall be computed in a like manner.
We believe that this statute, coupled with our holding in Biel, requires that payments made
pursuant to a URESA order in this state be credited against amounts accrued for the same
period under the support order of another state. This was not done in the instant case. All
payments made by appellant subsequent to August of 1970 under the 1967 URESA order
must be applied to the amounts accruing for that period under the 1963 California order.
Because specific calculations were not included in the findings of the district court, or found
in the record before us, we must remand this proceeding for a determination of the proper
amount owed.
We affirm the finding by the lower court that respondent is not precluded from recovery of
accrued support by equitable defenses. We reverse the application of payments as determined
by the district court and remand the case for further proceedings consistent with this opinion.
____________
96 Nev. 480, 480 (1980) Burr v. Burr
CAROLYN L. BURR, Appellant and Cross-Respondent v.
CLARENCE C. BURR, Jr., Respondent and Cross-Appellant.
No. 11086
May 30, 1980 611 P.2d 623
Cross-appeals from decree in divorce proceeding, First Judicial District Court, Carson
City; Michael E. Fondi, Judge.
In divorce proceedings, wife appealed from order of the district court requiring wife to pay
her own attorney fees and from provisions of a second decree which fixed value of parties'
house and her equity and husband appealed provisions requiring him to provide health
insurance for the parties' minor child. The Supreme Court, Gunderson, J., held that: {1)
wife's claim, presented for first time in motion for new trial, that value of parties' house
increased in value in excess of that fixed in decree must be considered belated, since it
might have been discovered and proffered before court's decision, by motion to reopen
case for additional evidence, and {2) trial judge did not abuse his discretion in modifying
divorce decree to require husband to provide the insurance.
96 Nev. 480, 481 (1980) Burr v. Burr
provisions of a second decree which fixed value of parties' house and her equity and husband
appealed provisions requiring him to provide health insurance for the parties' minor child.
The Supreme Court, Gunderson, J., held that: (1) wife's claim, presented for first time in
motion for new trial, that value of parties' house increased in value in excess of that fixed in
decree must be considered belated, since it might have been discovered and proffered before
court's decision, by motion to reopen case for additional evidence, and (2) trial judge did not
abuse his discretion in modifying divorce decree to require husband to provide the insurance.
Affirmed.
Guild, Hagen & Clark, and Thomas J. Hall, Reno, for Appellant and Cross-Respondent.
Smith & Gamble, Carson City, for Respondent and Cross-Appellant.
1. Divorce.
Divorce wife's claim presented for first time in motion for new trial, that value of parties' house increased
in value in excess of that fixed in decree must be considered belated, since it might have been discovered
and proffered, before court's decision, by motion to reopen case for additional evidence. NRCP 59(a)(4).
2. Divorce.
Award or denial of attorneys' fees in divorce proceedings lies within sound discretion of trial judge and,
absent evidence of abuse, trial court's determination will not be disturbed on appeal.
3. Divorce.
Trial judge may make further orders relating to care and support of minor child while divorce action is
pending.
4. Divorce.
Trial judge did not abuse his discretion in modifying divorce decree to require husband to provide health
insurance for child. NRS 125.140, subd. 2.
OPINION
The trial court first entered a decree of divorce in November of 1977, and, in June of
1978, entered a final decree which distributed community property and ordered respondent
to provide health insurance for the parties' minor child. The trial court also ordered the parties
to bear their own attorneys' fees and costs. Carolyn, the wife, appeals form the order that she
pay her own attorneys' fees, and from provisions of the second decree which fixed the value
of the parties' house at $59,000 and Carolyn's equity at $22,000.
96 Nev. 480, 482 (1980) Burr v. Burr
$59,000 and Carolyn's equity at $22,000. Clarence appeals provisions requiring health
insurance for the child.
Carolyn, plaintiff below, alleged there was community property, principally consisting of a
house in Minden, Nevada. Trial commenced October 28, 1977. At the conclusion of the
evidence, Carolyn's attorney sought to amend her complaint to ask attorneys' fees. The trial
judge reserved decision on her motion, but announced himself ready to grant a decree of
divorce to Carolyn, to award custody of the child, and to set child support. He indicated,
however, that he would not decide the issues relating to community property or visitation at
that time. Accordingly, Carolyn's attorney prepared a decree, filed November 2, terminating
the marriage, but reserving the questions indicated. In June of 1978, the judge entered the
decree from which appeal is taken.
[Headnote 1]
1. By motion for new trial, for the first time, Carolyn presented evidence which indicated
the value of the parties' house had increased to approximately $70,000. In our view, this claim
must be considered belated, inasmuch as it might have been discovered and proffered, prior to
the court's decision, by a motion to reopen the case for additional evidence. See NRCP
59(a)(4).
[Headnote 2]
2. Carolyn's second argument is likewise without merit. An award or denial of attorneys'
fees in divorce proceedings lies within the sound discretion of the trial judge and, absent
evidence of abuse, the trial court's determination will not be disturbed on appeal. Sogge v.
Sogge, 94 Nev. 88, 575 P.2d 590 (1978). Cases cited to support Carolyn's related argument,
that the trial court erred by failing to state reasons for the denial of fees, are cases decided
pursuant to NRS 18.010, not NRS 125.150. Cf. Jones v. Jones, 86 Nev. 879, 478 P.2d 148
(1970) and Lyon v. Walker Boudwin Constr. Co., 88 Nev. 646, 503 P.2d 1219 (1972). The
order that each party pay his or her own fees and costs is affirmed.
[Headnotes 3, 4]
3. Clarence's contention that the trial court could not modify the November decree to
include additional provisions for care and maintenance of the minor child is without merit.
The trial judge may make further orders relating to care and support of a minor child while an
action is pending. NRS 125.140(2). We find no abuse of discretion.
96 Nev. 480, 483 (1980) Burr v. Burr
Clarence's motion for fees pursuant to NRAP 38 and NRAP 39 is denied. The appeal is
neither frivolous nor a misuse of the processes of this court.
Affirmed.
Mowbray, C. J., and Thompson and Manoukian, JJ., and Forman, D. J.
1
, concur.
____________________

1
Governor Robert List designed Hon. William N. Forman, District Judge, to sit in this case in place of Hon.
Cameron Batjer, Justice, who voluntarily disqualified himself. Nev. Const. art. 6, 4.
____________
96 Nev. 483, 483 (1980) In re Cain
In re Petition of JAMES M. CAIN, Petitioner.
No. 12296
June 4, 1980 611 P.2d 1092
Petition for review of Board of Bar Examiners' recommendation that James M. Cain not be
admitted to practice law.
In proceeding on petition for review of Board of Bar Examiners' recommendation that
applicant not be admitted to practice, the Supreme Court held that certain method for scoring
bar examinations did not violate rule requiring that essay and multistate portions of the
examination be given equal weight.
Petition denied.
James M. Cain, in proper person.
Samuel S. Lionel, and Thomas E. Lea, Las Vegas, for Respondents, the State Bar of
Nevada and the Board of Bar Examiners.
Attorney and Client.
Method of scoring, under which essay and multistate halves of bar examination were assigned scale
scores and under which an applicant with a high raw multistate score and low raw essay score would be
accorded the same treatment as an applicant with a low raw multistate score and a high raw essay score, did
not violate rule requiring that essay and multistate portions of examination be given equal weight. SCR
65, 65(1).
OPINION
Per Curiam:
James M. Cain did not receive a passing grade on the 1979 Nevada bar examination.
96 Nev. 483, 484 (1980) In re Cain
Nevada bar examination. Therefore, the Board of Bar Examiners recommended that he not be
admitted to practice law in Nevada. Cain has petitioned for review.
The basis of Cain's petition is that the method of scoring the examination was improper.
He argues that the assignment of scale scores to the essay portion of the examination in
determining his final score was arbitrary and capricious, and distorted his essay scores with
respect to his score on the multistate portion of the examination in violation of SCR 65
1
and
our holding in In re Claerhout, 95 Nev. 86, 590 P.2d 620 (1979).
In Claerhout we held that the method of scoring the 1978 examination violated SCR 65
because the examination's two halves [did not receive] equal weight in all cases. Id. at 88,
590 P.2d at 621. The crux of the problem in Claerhout was stated as follows, id. at 87-88,
590 P.2d 620-621:
The multistate scores were not equated or scaled to the essay scores in any even
manner. Rather, different applicants received varying percentage-value scores for each
multistate question correctly answered. Those with the higher raw scores were assigned
a smaller percentage value for each correct question, as compared with those having
lower raw scores. Thus, because percentage grades were unevenly assigned to the raw
multistate scores, certain applicants, whose high raw multistate scores were combined
with relatively low essay scores, failed, while applicants achieving low raw multistate
scores, along with relatively high essay grades, passed.
Such a problem does not exist here. Both the essay and multistate halves of the 1979
examination were assigned scale scores. Thus, an applicant who received a high raw
multistate score and a low raw essay score did not find himself in the same predicament as a
similar applicant in Claerhout. Since the scores of both halves of the 1979 examination were
scaled, an applicant with a high raw multistate score and low raw essay score was accorded
the same treatment as an applicant with a low raw multistate score and a high raw essay
score.
____________________

1
SCR 65(1) provides:
All applicants for examination for licenses to practice as attorneys and counselors at law in this state
shall be examined annually by the board of bar examiners by administering to all applicants a written bar
examination consisting of two parts. One part shall be the Multistate Bar Examination prepared by the
National conference of Bar Examiners and the other part shall be a one-day essay examination. Each part
shall be given on successive days. The same subjects may be covered on both parts. Each part shall be
entitled to equal weight in the grading of the examination.
96 Nev. 483, 485 (1980) In re Cain
low raw multistate score and a high raw essay score. Accordingly, the method of scoring the
examination did not violate the requirement of SCR 65.
Petition denied.
____________
A MINOR, Appellant, v. JUVENILE DEPARTMENT
FOURTH JUDICIAL DISTRICT COURT, Respondent.
No. 11667
June 4, 1980 611 P.2d 624
Appeal from order adjudging appellant a juvenile delinquent. Fourth Judicial District
Court, Juvenile Division, Elko County; Joseph O. McDaniel, Judge.
The Supreme Court, Mowbray, C. J., affirmed, 96 Nev. 332, 608 P.2d 509 (1980). On
rehearing, the Supreme Court held that application of accomplice corroboration rule to
juvenile delinquency proceedings is not foreclosed by statute stating that criminal procedure
statutes are not required to be observed in juvenile proceedings.
Affirmed.
Puccinelli & Puccinelli, Elko, for Appellant.
Thomas L. Stringfield, District Attorney, Elko County, and Richard F. Jost, Deputy, for
Respondent.
Infants.
Applications of accomplice corroboration rule to juvenile delinquency proceedings is
not foreclosed by statute stating that criminal procedure statutes are not required to be
observed in juvenile proceedings. NRS 169.025, 175.291.
Per Curiam:
In A Minor v. Juvenile Department, 96 Nev. 332, 608 P.2d 509 (1980), we held that the
accomplice corroboration rule was applicable to juvenile delinquency proceedings. Rehearing
was granted for the limited purpose of deciding whether that application is foreclosed by NRS
169.025.
1
The Legislature has dictated, by enacting NRS 169.025, that our criminal
procedure statutes, such as NRS 175.291, are not required to be observed in juvenile
proceedings.

____________________

1
This Title [which includes NRS 175.291, a statutory statement of the
The Legislature has dictated, by enacting NRS 169.025, that our criminal procedure
statutes, such as NRS 175.291, are not required to be observed in juvenile proceedings.
Manifestly, the Legislature has not forbidden their application to juvenile matters. The
Legislature has declared, in NRS 62.193(4) and (5), that an adjudication of juvenile
delinquency may only be based upon competent, material, relevant, and probative evidence.
In our previous decision in this case, we held only that the accomplice corroboration rule was
incorporated in the general evidentiary standards imposed by NRS 62.193(4) and (5),
independent of the operation of NRS 175.291. Our decision was not foreclosed by NRS
169.025. Nor have we been presented with any compelling reason to alter our previous
opinion.
2

Accordingly, we adhere to our previous decision in this case, as clarified here, and affirm
the judgment of the district court.
3

____________________
accomplice corroboration rule] governs the procedure in the courts of the State of Nevada and before
magistrates in all criminal proceedings, but does not apply to proceedings against children under Chapter
62 of NRS.

2
We specifically reject the contrary result reached by one of our sister states. See In re Mitchell P., 587 P.2d
1144 (Cal. 1978).

3
Thus we have no occasion to reach the constitutional question of whether declining to require corroboration
of accomplice testimony in juvenile proceedings would be a denial of equal protection. See Breed v. Jones, 421
U.S. 519 (1975).
____________
96 Nev. 486, 486 (1980) Sheriff v. Larsgaard
v. DENNIS L. LARSGAARD, Respondent.
No. 12349
June 4, 1980 611 P.2d 625
Petitioner, who had been indicted for murder, petitioned for writ of habeas corpus. The
district court granted petition, and sheriff appealed. The Supreme Court held that evidence
was sufficient to establish the corpus delicti of murder.
Reversed.
[Rehearing denied September 25, 1980] Richard H.
Joel M. Cooper, Deputy District Attorney, Clark County, for Appellant.
Denton & Denton, Las Vegas, for Respondent.
1. Criminal Law.
In order to hold an accused for trial there must be probable cause to believe that a crime has been
committed and that he has committed it.
2. Homicide.
Elements of corpus delicti of murder are the fact of death, and a criminal agency of another responsible
for that death.
3. Criminal Law.
Once corpus delicti is determined to have been proved by lawful evidence, confessions and admissions
may be considered in establishing whether it was the accused who was the criminal agency causing the
death.
4. Criminal Law.
Proof of corpus delicti may be made totally by direct evidence, partially by direct and partially by
circumstantial evidence or totally by circumstantial evidence.
5. Grand Jury.
In proceeding in which grand jury indicted petitioner for murder, admission of officer's testimony in
regard to petitioner's statements to officer that petitioner and accomplice shot and killed person in desert
was not error on theory that such statements were hearsay. NRS 51.035.
6. Homicide.
In proceeding in which grand jury indicted petitioner for murder, evidence, including fact that bone
fragments found in desert exhibited three bullet holes, that shoe found near the fragments was identified as
a shoe similar to one belonging to alleged victim and that it was extremely unusual for him to have
disappeared, was sufficient to establish the corpus delicti of murder.
OPINION
Per Curiam:
After the grand jury indicted the respondent for murder, respondent petitioned the district
court for a writ of habeas corpus. The petition was granted on the ground that the state failed
to establish the corpus delicti of the crime and thus there existed no probable cause to hold
the accused for trial.
According to the testimony and evidence presented to the grand jury, Allen Simmons
disappeared from Boulder City about November 13, 1975. He was not seen or heard from
again. His mother, brothers, and several acquaintances testified that he usually kept in close
contact with them and that such a disappearance was extremely unusual for Simmons.
A forensic pathologist testified that he examined about thirty bone fragments of a human
skull which were found in the desert near Boulder City and that the bones exhibited three
bullet holes.
desert near Boulder City and that the bones exhibited three bullet holes. However, the
pathologist could not definitely state the cause of death. A police detective testified that a
shoe was found close to the bone fragments. This shoe was identified by Simmons' brothers
and acquaintances as a shoe similar to one which Simmons was known to have worn.
The grand jury was also presented with the testimony of a police officer to whom
respondent made incriminating statements. These statements indicated that respondent and an
accomplice shot and killed Simmons in the desert near Boulder City. The statements of an
accomplice were also presented to the grand jury. The state concedes that the statements of
the accomplice were inadmissible.
[Headnotes 1-4]
In order to hold an accused for trial there must be probable cause to believe that a crime
has been committed and that the accused has committed it. Azbill v. State, 84 Nev. 345, 440
P.2d 1014 (1968). In determining whether a crime has been committed two elements, i.e., the
corpus delicti, must be established. The two elements of the corpus delicti of murder are (1)
the fact of death, and (2) a criminal agency of another responsible for that death. Hicks v.
Sheriff, 86 Nev. 67, 464 P.2d 462 (1970); Azbill v. State, supra. Beasley v. Lamb, 79 Nev.
378 P.2d 524 (1963). See generally W. LaFave and A. Scott, Handbook on Criminal Law 4
(1972). Once the corpus delicti is determined to have been proved by lawful evidence,
confessions and admissions may be considered in establishing whether it was the accused
who was the criminal agency causing the death. Azbill v. State, supra; see In re Kelly, 28
Nev. 491, 83 P. 223 (1905). Proof of the corpus delicti may be made totally by direct
evidence, partially by direct and partially by circumstantial evidence or totally by
circumstantial evidence. See Azbill v. State, supra.
[Headnote 5]
The issue before this court is whether the evidence presented to the grand jury was
sufficient to establish the corpus delicti of murder. Respondent does not challenge the
sufficiency of the evidence as to his agency if the corpus delicti has been sufficiently
established.
[Headnote 6]
The evidence of the corpus delicti, excluding the confessions and admissions, adduced at
the hearing before the grand jury consisted of the following: the bone fragments which
exhibited three bullet holes, a shoe which was found near the bone fragments and which
was identified as a shoe similar to one belonging to Simmons, and the testimony of
Simmons' friends and relatives concerning his strange disappearance.
three bullet holes, a shoe which was found near the bone fragments and which was identified
as a shoe similar to one belonging to Simmons, and the testimony of Simmons' friends and
relatives concerning his strange disappearance. Although the pathologist testified that he
could not definitely state whether the actual cause of death resulted from the bullet wounds or
whether the bullet holes were placed in the body after death, the evidence presented to the
grand jury was more susceptible of belief that the death was caused by a criminal agency. Cf.
Azbill v. State, supra, (insufficient proof of death by criminal means); Hicks v. Sheriff,
supra, (accused's confession that death occurred by beating not corroborated by evidence as
to the condition of victim's body).
We find that the evidence of the corpus delicti and the statements of appellant are
sufficient to support a reasonable inference that a crime was committed and that appellant
committed it. Accordingly, the district court's order granting respondent's petition for a writ
of habeas corpus is reversed.
____________
96 Nev. 489, 489 (1980) Cirillo v. State
MICHAEL JOSEPH CIRILLO, Appellant, v. THE
No. 12155
June 4, 1980 611 P.2d 1093
Defendant was convicted in the district court of murder in the second degree, and
defendant appealed. The Supreme Court, Mowbray, C. J., held that evidence relating to
defendant's dealing in drugs and to his confrontation with a witness prior to murder was
inadmissible.
Richard Bryan, Attorney General, Carson City; and Robert J. Miller, District Attorney,
1. Criminal Law.
Absence of mistake exception to rule that evidence of other crimes or acts of misconduct on part of a
defendant is inadmissible in criminal prosecution is applicable only when evidence tends to
show defendant's knowledge of a fact material to specific crime charged.
prosecution is applicable only when evidence tends to show defendant's knowledge of a fact material to
specific crime charged. NRS 48.045, subd. 2.
2. Criminal Law.
Evidence of previous instances of possession of controlled substance by defendant may be used to show
defendant's knowledge of controlled nature of substance, when such knowledge is an element of offense
charged; admissibility of such evidence is conditioned upon specific finding by district court that its
probative value outweighs its prejudicial impact. NRS 48.035, subd. 1, 48.045, subd. 2.
3. Criminal Law.
Evidence relating to defendant's dealing in drugs and to his confrontation with witness in park prior to
murder was inadmissible in second-degree murder prosecution under absence of mistake exception to
rule that evidence of other crimes or acts of misconduct on part of a defendant is inadmissible in criminal
prosecution since evidence introduced did not tend to show defendant's knowledge with respect to murder
with which he was charged. NRS 48.035, subd. 1, 48.045, subd. 2.
4. Criminal Law.
Evidence admitted under common scheme or plan exception to rule that evidence of other crimes or
acts of misconduct on part of a defendant is inadmissible in criminal prosecution must tend to prove
defendant's commission of charged crime by showing that defendant planned to commit it. NRS 48.045,
subd. 2.
5. Criminal Law.
murder was inadmissible in second-degree murder prosecution under common scheme or plan exception
to rule that evidence of other crimes or acts of misconduct on part of a defendant is inadmissible in
criminal prosecution since evidence did not show any preconceived plan to commit murder. NRS
48.045, subd. 2.
6. Criminal Law.
murder was inadmissible in second-degree murder prosecution under complete story of crime exception
to rule that evidence of other crimes or acts of misconduct on part of a defendant is inadmissible in
criminal prosecution where another witness was capable of describing what she saw of defendant's
encounter with murder victim without any reference to supposed drug dealing. NRS 48.035, subd. 3.
OPINION
Michael Joseph Cirillo appeals from the judgment of conviction entered by the district
court upon a jury verdict finding Cirillo guilty of murder in the second degree. We hold that
the admission into evidence of testimony concerning other crimes was prejudicial error. We
therefore reverse and remand for a new trial.
Cirillo was charged with the murder of Manuel Vega. At trial, Toni Rizzo testified that at
about two in the afternoon on April 7, 1978, she had gone to Paradise Park in Las Vegas to
jog. There she saw appellant Cirillo and John Santini with Manuel Vega. Cirillo asked Rizzo
to follow the three of them. The three men got into a car, with Vega driving. Rizzo followed
them in a car which belonged to Cirillo. Rizzo lost sight of the other car momentarily, when
she had to wait for cross traffic at a stop sign. When she caught up with the car it was parked
by the side of the road in a vacant lot. Santini and Cirillo were standing by the car, but Vega
was nowhere to be seen: Cirillo told her that Vega had to go somewhere. Santini and Cirillo
then got into the car that Rizzo was driving, and she drove them to the house which the two
men shared. On the way, Cirillo asked Rizzo to slow down. He put his hand out the window,
but she did not see him throw anything from the car.
Vega had meanwhile staggered into a store which was about a block from where Rizzo
had picked up Santini and Cirillo. Vega was bleeding from a knife wound in the chest which
had pierced his heart. He would not say, however, who had stabbed him, and he died in the
hospital seven days later.
Later in the day of the assault, Cirillo, Santini and Rizzo were arrested. The police took
Rizzo to the place where she said that she had slowed down the car at Cirillo's request. A
search of the side of the road uncovered two kitchen knives, one with blood on it but no
fingerprints, and one with Cirillo's fingerprints on it but no blood. The shirt Cirillo had been
wearing was found at his house with traces of what may have been blood on it.
Santini and Cirillo were charged with the murder of Vega. After a preliminary hearing,
both were bound over for trial and an information filed. Both defendants sought writs of
habeas corpus in the district court, on the ground that there was insufficient probable cause to
hold them for trial. The writ was granted to Santini but denied to Cirillo.
At Cirillo's trial, Tracy Szafraniek was permitted to testify, over defense objections, that at
about noon on the day of the assault Santini and Cirillo had approached him and a friend in
Paradise Park and asked if they wanted to buy marijuana. When Szafraniek and his friend
declined, Santini and Cirillo pushed them out of the park, threatening them with harm if they
returned. Additionally, David Chisam, a friend of Vega's, was permitted to testify that he and
Vega routinely went to the park in order to purchase marijuana, and that Vega had been on
such an errand on the day he was stabbed. Finally, a small quantity of marijuana, which had
been seized in a search of the house shared by Santini and Cirillo, was also admitted into
evidence.
house shared by Santini and Cirillo, was also admitted into evidence.
The jury returned a verdict of guilty of second degree murder, and the district court entered
judgment upon the verdict. Cirillo appeals, assigning numerous errors in the conduct of the
trial. We need to reach only the question whether it was error to permit the introduction of the
evidence of the other crimes or acts of misconduct.
The district court predicated its ruling to admit the evidence relating to appellant's dealing
in drugs and to his confrontation with the witness Szafraniek on the grounds that the evidence
showed a plan or absence of mistake, and further that the state was entitled to present a
full and accurate account of the circumstances of the commission of the crime. On the facts
of this case, we believe this was error.
[Headnotes 1-3]
Admission of evidence of crimes or acts of misconduct other than the crime with which
the defendant is charged is governed by statute.
1
The absence of mistake exception is
applicable only when the evidence tends to show the defendant's knowledge of a fact material
to the specific crime charged. Thus evidence of previous instances of possession may be used
to show the defendant's knowledge of the controlled nature of a substance, when such
knowledge is an element of the offense charged, Lindsay v. State, 87 Nev. 1, 478 P.2d 1022
(1971); Fairman v. State, 83 Nev. 137, 425 P.2d 342 (1967); Overton v. State, 78 Nev. 198,
370 P.2d 677 (1962); Wallace v. State, 77 Nev. 123, 359 P.2d 749 (1961).
2
The evidence
introduced here, however, does not tend to show Cirillo's knowledge with respect to any fact
relevant to the murder of Vega with which he was charged. The admission of the evidence
cannot therefore be justified upon this ground.
[Headnotes 4, 5]
Evidence admitted under the common scheme or plan exception, NRS 48.045(2), must
tend to prove the defendant's commission of the charged crime by showing that the defendant
planned to commit it. See Nester v. State of Nevada, supra.
____________________

1
accident.

2
The admissibility of any such evidence is further conditioned upon a specific finding by the district court
that its probative value outweighs its prejudicial impact. NRS 48.035(1); Mayes v. State, 95 Nev. 140, 591 P.2d
250 (1979); Nester v. State of Nevada, 75 Nev. 41, 334 P.2d 524 (1959).
The evidence of appellant's confrontation with Szafraniek and of his possible involvement in
drug transactions does not reveal any preconceived plan on his part with respect to the murder
of Vega. Fairman v. State, supra; Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966); 2
Wigmore, Evidence 304 (Chadbourn rev. 1979). Since the evidence does not show any plan
to commit the crime with which the defendant was charged, it was not admissible under this
exception.
[Headnote 6]
The district court also ruled the evidence admissible because the state was entitled to
present a full and accurate account of the circumstances of the commission of the crime. The
complete story of the crime exception
3
to the inadmissibility of evidence of acts other than
the crime with which the defendant is charged is defined by statute. NRS 48.035(3);
4
see
also, Dutton v. State, 94 Nev. 461, 581 P.2d 856 (1978); Allan v. State, 92 Nev. 318, 549
P.2d 1402 (1976); Payne v. State, 81 Nev. 503, 406 P.2d 922 (1965). The statute permits the
admission of evidence of other acts when the act shown is so closely related to an act in
controversy or the crime charged that an ordinary witness cannot describe the act in
controversy or the crime charged without referring to the other act or crime. . . . In the case
at bar, the primary evidence which tended to link appellant with the murder of Vega was the
testimony of Rizzo, which placed Santini and Cirillo with the victim shortly before he was
discovered bleeding from a knife wound in the chest. Not only was Rizzo capable of
describing what she saw of appellant's encounter with Vega without referring to the previous
incident with Szafraniek, and without any reference to supposed drug dealing, but there is no
indication that she even knew of these other events. There is not the slightest indication in the
record before us that appellant's confrontation with Szafraniek was a necessary incident of
the murder of Vega, or an immediate concommitant of it, or formed part of a continuous
transaction of which the murder was a part. Allan v. State, supra; State v. Morris, 340 So.2d
195, 201 (La. 1976). Nor did the evidence relate to a part of the main transaction without
knowledge of which [the crime charged] might not be understood. Dixon v. State, 560 P.2d
204, 206 (Okla.Crim. 1977).
____________________

3
Also known as the res gestae exception. But see Allan v. State, 92 Nev. 318, 322, 549 P.2d 1402, 1404
(1976) (Gunderson, J., concurring).

4
At the time of appellant's trial, NRS 48. 035(3) provided:
Evidence of another act or crime which is so closely related to an act in controversy or a crime charged
that an ordinary witness cannot describe the act in controversy or the crime charged without referring to
the other
In sum, admission of the challenged evidence forced appellant to defend against
accusations of crimes with which he was not charged, see Tucker v. State, 82 Nev. at 130,
412 P.2d at 971; Nester v. State of Nevada, 75 Nev. at 47, 334 P.2d at 527, and permitted the
jury to infer his guilt from evidence tending to show his bad character in general, NRS
48.045(1); Tucker v. State, supra. The prejudice occasioned by its admission mandates that a
new trial be granted. Mayes v. State, 95 Nev. at 143, 591 P.2d at 252; Lindsay v. State, 87
Nev. at 3, 478 P.2d at 1023. Accordingly, the judgment of the district court is reversed and
the cause is remanded for further proceedings not inconsistent with this opinion.
____________________
act or crime shall not be excluded, but a cautionary instruction shall be given explaining the reason for its
admission.
The statute was amended, effective July 1, 1979, to read but at the request of an interested party, a cautionary
instruction shall be given explaining the reason for its admission. 1979 Nev. Stats. ch. 29, 1.
____________
96 Nev. 494, 494 (1980) State, Dep't of Commerce v. Hyt
THE STATE OF NEVADA, DEPARTMENT OF COMMERCE, REAL ESTATE
DIVISION and the REAL ESTATE ADVISORY COMMISSION,
Appellants, v. ALEXANDER S. HYT, Respondent.
No. 11763
June 4, 1980 611 P.2d 1096
Appeal from order granting summary judgment, Eighth Judicial District Court, Clark
Licensee appealed from a decision of the Real Estate Advisory Commission suspending
his license. The district court rendered summary judgment for the licensee and Commission
appealed. The Supreme Court held that an oral pronouncement of the determination by the
Commission was insufficient to constitute a final decision requiring the Commission to
compile a complete transcript within 30 days where specific findings of fact were not
included in the oral pronouncement and there was no pronouncement of an effective date of
suspension and a transcript filed within 30 days of the issuance of written findings of fact and
conclusions of law was timely.
Reversed.
Richard H. Bryan, Attorney General; Robert C. Herman and Franklin C. Hoover, Deputy
Attorneys General, Carson City, for Appellants.
Gordon L. Hawkins, for Respondent.
Findings of administrative agency are to be prepared in sufficient detail to permit judicial review.
Proper notice of administrative decision is generally considered to be notice in writing.
3. Brokers.
Oral pronouncement of determination by Real Estate Advisory Commission was insufficient to constitute
final decision requiring Commission to compile complete transcript within 30 days where specific findings
of fact were not included in oral pronouncement and there was no pronouncement of effective date of
suspension of broker's license and transcript filed within 30 days of issuance of written findings of fact and
conclusions of law was timely. NRS 645.760, subd. 2.
Administrative agency should not be penalized for announcing its conclusion at end of hearing by
requiring agency to compile written transcript within 30 days from that date.
OPINION
Per Curiam:
On January 16, 1979, respondent filed a notice of appeal from a decision by the Real
Estate Advisory Commission suspending respondent's license. Respondent subsequently
moved for summary judgment in the district court claiming that the Commission failed to
certify a transcript of the proceedings within thirty days of the decision. The motion for
summary judgment was granted. We have determined that the entry of summary judgment for
respondent was erroneous and reverse.
In September of 1978, the Real Estate Division filed a complaint against respondent based
upon his alleged improper conduct as a real estate salesman. After a hearing on January 8,
1979, the Real Estate Advisory Commission decided to suspend respondent's license. The
informal decision to suspend was stated orally at the hearing and did not include the effective
date of suspension nor findings of fact and law. Eight days later, respondent appealed and
concurrently demanded a certified transcript pursuant to NRS 645.760.
At the district court level, respondent's Petition stated that he was appealing the decision
of the Commission.
Respondent claimed that the decision was erroneous but also that he had appealed from an
oral decision within ten days and that no findings of fact or conclusions of law had been
entered. Relying on NRS 645.760(2),
1
respondent moved, on February 28, 1979, for
summary judgment believing he was entitled to an automatic reversal due to the fact that
the Division did not certify a transcript within thirty days pursuant to that statute.
Written findings of fact and conclusions of law and the date of effect for the suspension
were rendered on March 1, 1979. This decision was also deposited in the mail on that date.
The effective date was to be April 4, 1979. Respondent filed a notice of appeal on this written
decision as well.
The transcript itself was filed with the district court on March 23, 1979 and bore a
certification by the reporter dated March 12, 1979. On March 29, the district court granted
summary judgment for respondent finding that appellants had failed to comply with the
requirements of NRS 645.760(2). This appeal followed.
We must determine what constitutes a decision by the Commission from which a licensee
has ten days to appeal under NRS 645.760. Respondent argues that the oral pronouncement
was the decision while appellant claims the written findings constituted the decision.
According to NRS 233B.125 a decision shall be in writing or stated in the record. Thus, a
decision may be either oral or written. But, this same statute provides, A final decision shall
include findings of fact and conclusions of law, separately stated. NRS 233B.125. See Public
Service Comm'n v. Continental Telephone Co., 94 Nev. 345, 350, 580 P.2d 467, 470 (1978).
[Headnotes 1, 2]
We have held that the purpose of NRS 233B.125 is to provide minimum procedural
requirements to satisfy due process. Bailey v. State, 95 Nev. 378, 382, 594 P.2d 734, 737
(1979). Findings of an administrative agency are to be prepared in sufficient detail to permit
judicial review. Revert v. Ray, 95 Nev. 782, 787, 603 P.2d 262, 264-65 (1979). Additionally,
proper notice of an administrative decision is generally considered to be notice in writing. See
Bailey v. State, 95 Nev. at 381-82, 594 P.2d at 736-37.
____________________

1
If a ruling or decision is against the licensee, the licensee may within 10 days from the date of the
decision appeal therefrom to the district court . . . by serving upon the administrator a notice of such
appeal, and a demand in writing for a certified transcript. . . . Thereupon, the real estate division shall,
within 30 days, make and certify such transcript, and the appellant shall, within 5 days after receiving the
same, file the same and the notice of appeal with the clerk of the court.
[Headnotes 3, 4]
In this case, the oral pronouncement of the determination by the Commission was
insufficient to constitute a final decision under NRS 233B.125. Specific findings of fact were
not included and there was no announcement of an effective date of suspension which is to be
included in a proper notice of decision under NRS 645.760(2). All of this was included in the
March 1 findings. The Commission is required to render a decision within ninety days of the
final hearing on a complaint. NRS 645.760(1). Thus, the legislature has provided licensees
with protection from undue delay. An administrative agency should not be penalized for
announcing its conclusion at the end of a hearing by requiring the agency to compile a
complete transcript within thirty days of that date. The written findings of fact and
conclusions of law constitute the final decision. Cf. Miller v. Hayes, 95 Nev. 927, 604 P.2d
117 (1979) (judgment in criminal case becomes final only after signed by judge and entered
by clerk).
The transcript was filed within thirty days of the issuance of written findings of fact and
conclusions of law. The district court erred in vacating the decision. We reverse the district
court order and remand this case for a proper judicial review according to NRS 645.760(3).
____________
96 Nev. 497, 497 (1980) County of Clark v. Powers
COUNTY OF CLARK, a Political Subdivision of the State of Nevada, and CLARK
COUNTY FLOOD CONTROL DISTRICT, a Governmental Subdivision of the State
of Nevada, a Body Corporate and Politic and a Quasi-corporation, Appellants,
v. ALBERT O. POWERS, AFTON M. POWERS, RUFUS WALLACE, ETHEL M.
WALLACE, LAWRENCE M. LOWE, BONNIE L. LOWE, GEORGE F.
RODRIGUES, ARLEEN D. RODRIGUES, JOSEPH F. RODRIGUES, and
CAROLINE V. RODRIGUES, Respondents.
No. 10879
June 4, 1980 611 P.2d 1072
Appeal from judgment awarding just compensation and damages. Eighth Judicial District
Landowners filed action against county for damage sustained to their properties as a result
of county's actions with regard to drainage of surface waters. The district court entered
judgment awarding just compensation and damages, and county appealed.
county appealed. The Supreme Court, Mowbray, C. J., held that: (1) district court correctly
adopted reasonable use rule in adjudicating competing rights of landowners and the county;
(2) district court's determination that county acted unreasonably would not be disturbed; (3)
evidence supported finding that injuries to landowners' properties were caused by the county's
unreasonable acts; and (4) county was liable for such injuries.
Affirmed.
Robert J. Miller, District Attorney, and Charles H. Weger, Deputy District Attorney, Clark
County, for Appellants.
Leavitt & Leavitt, Las Vegas, for Respondents.
1. Waters and Water Courses.
Under reasonable use rule, landowner or user, acting in good faith, may drain surface waters and cast
them on neighbor's land if injurious flow of waters is reasonably necessary for drainage; reasonable care is
taken to avoid necessary injuries; benefit to drained land outweighs gravity of harm inflicted upon flooded
land; drainage is accompanied, where practicable, by reasonable improvement and aiding of normal and
natural systems of drainage in accordance with reasonable carrying capacity; and where no natural systems
of drainage are available, drainage is accomplished by use of reasonable, artificial system of drainage.
Law of water rights must be flexible, taking notice of varying needs of various localities.
3. Adjoining Landowners.
Landowner may make reasonable use of his land as long as he does not injure his neighbor.
4. Adjoining Landowners.
Landowner should not be permitted to make his land more valuable at expense of estate of lower
landowner.
Law concerning drainage of surface waters must necessarily take into account a variety of factors,
including nature of land, soil, and terrain; types of surface waters involved; availability of natural
drainways; feasibility of artificial drainage systems; uses to which land has been and will be put; benefit
and harm produced by the drainage; and host of environmental and social concerns.
Reasonable use rule with regard to the drainage of surface waters allows for careful consideration of
both public and private concerns; growth and urbanization are not unduly restricted, but merely tempered
with elements of order, planning, and reasonableness.
Natural flow rule, with regard to drainage of surface waters, restricted by definition to rigid application
of laws of nature and boundaries of natural water-courses, is ill suited to complexities of urban growth and
expansion.
Economic costs incident to expulsion of surface waters in the transformation of rural and semirural areas
into urban and suburban communities should not be borne solely by adjoining landowners, but, rather,
landowners, developers, and local officials must take into account full costs of development to the
community prior to implementation of their plans; absent such prior planning, reasonable use rule with
regard to drainage of surface waters allows for more equitable allocation of the incidental economic costs,
consistent with concepts of social progress and common well-being, than does natural flow rule.
Reasonable use rule with regard to drainage of surface waters is not fatally unpredictable.
District court correctly adopted reasonable use rule in adjudicating competing rights of landowners and
county with regard to the drainage of surface waters.
Substantial evidence supported district court's findings that county had not taken reasonable care to avoid
substantial injuries to landowners' property, that gravity of harm caused by county's drainage of surface
waters outweighed benefits conferred by it, that county could have avoided the harm by improving and
complementing natural system of drainage, and that county could have utilized preexisting, alternative
system of drainage to avoid much of the injury to landowners.
Evidence supported district court's finding that injuries to landowners' properties were caused by county's
unreasonable acts with regard to drainage of surface waters and not merely by intangible and irresistible
forces of urbanization.
13. Counties.
Governmental entity's substantial involvement in development of private lands which unreasonably
injures property of others is actionable. NRS 41.031, subd. 1.
County was liable for injuries to landowners' properties as result of county's actions, found by district
court to be unreasonable, with regard to drainage of surface waters. NRS 41.031, subd. 1.
In tort and inverse condemnation action against county for damage sustained by landowners over whose
properties large amounts of water were cast as a result of county's actions with regard to drainage of
surface waters, county's defense on ground that its actions were discretionary and therefore did not subject
county to liability was neither pleaded nor raised below and was therefore not properly before Supreme
Court. NRS 41.032, subd. 2.
OPINION
In this action, sounding both in inverse condemnation and in tort, the district court found
that the County of Clark and the Clark County Flood Control District {hereinafter
collectively referred to as "the County"), had, by acting in conjunction with various
private parties,1 caused large amounts of water to be cast upon the property of the
Powers, the Wallaces, and the Lowes.2 The County appeals from the judgment awarding
just compensation and damages.
Clark County Flood Control District (hereinafter collectively referred to as the County),
had, by acting in conjunction with various private parties,
1
caused large amounts of water to
be cast upon the property of the Powers, the Wallaces, and the Lowes.
2
The County appeals
from the judgment awarding just compensation and damages. We affirm.
During the 1950's and early 1960's, respondents acquired various properties in Clark
County, and developed those lands for residential use. The land was desert terrain, sandy and
porous, and sloped gently downhill in an easterly direction. An ephemeral stream or wash,
one which flows only in direct response to precipitation in the immediate locality, traversed
the Powers parcel. The land immediately west of the Powers and Lowe parcels was
sufficiently porous to absorb and dissipate most rain waters. Heavy rains, however, would
collect in the low, surrounding areas, and would follow the natural terrain, entering the
Powers and Lowe properties at the approximate border between the two properties. Due to
the gentle slope, these waters would flow, if at all, at a slow current, and would be naturally
dissipated and absorbed. Flooding was rare. This ephemeral stream paralleled a much larger
wash, the Flamingo Wash, which runs south of the instant parcels. Prior to 1967, the flow, if
any, of rain, nuisance, and flood waters did not damage the respondents' parcels, nor did it
restrict the use and development of the land.
Commencing in 1967, the development of the lands west of respondents' parcels resulted
in the alteration, diversion, channeling, and acceleration of rain, nuisance, underground, and
flood waters onto respondents' properties. The County participated actively in the
development of these lands, both by its own planning, design, engineering, and construction
activities and by its adoption of the similar activities of various private developers as part of
the County's master plan for the drainage and flood control of the area.
As part of the County's master plan, the land at the intersection of Desert Inn Road and
Eastern Avenue was filled, leveled, graded, compacted, and paved. The County elevated
Topaz Street, which divided the developed properties from the Lowe and Powers parcels, by
four feet, and raised the land west of Topaz Street to a new level.
____________________

1
The respondents settled their dispute with these private parties, various land developers, prior to trial. The
parties have stipulated that any judgment against the County shall be offset by a pro rata allocation of the
settlement. The propriety of the settlement is not before this Court.

2
Additional party plaintiffs, the Rodrigueses, were awarded damages by the district court, but subsequent to
trial, settled their dispute with the County. That aspect of the judgment is therefore no longer before this Court.
west of Topaz Street to a new level. Leach lines and beds were constructed to collect and
divert waters from a grocery store site, channeling those waters to a drainage pipe maintained
by the County and from there to a sump hole at Desert Inn Road and Topaz Street, where the
waters were collected in various culverts and discharged onto the Lowe and Powers parcels.
Similarly, Desert Inn Road and its curbs and gutters were designed specifically to divert
and channel waters, which would normally have drained into the large Flamingo Wash, onto
the Lowe and Powers parcels. In addition, the County entered, without permission, onto the
Lowe property, and built, without authorization, a concrete and rock berm.
The cumulative effect of these activities was to increase and accelerate the flow of waters
through the ephemeral stream, to divert waters normally draining into the Flamingo Wash
into the ephemeral stream, and to alter and divert the natural course of the ephemeral stream;
the watersas increased, accelerated, and divertedcascaded over the entire length of the
Powers parcel. By 1975, and continuing through the early part of 1976, the Powers parcel was
deluged by a constant flow of water. Subsequent to the installation of a large drainpipe in the
early part of 1976, the property was subjected to temporary, but frequent and inevitable,
flooding. Once the Powers and Lowe parcels would become saturated, the waters entered the
Wallace parcel as well. The collecting waters interfered seriously with respondents' use and
enjoyment of their land, and became a breeding ground for stench, mosquitoes, and disease.
Respondents filed this suit in the district court, based upon theories of inverse
condemnation, nuisance, and trespass, seeking to be made whole for these injuries. After
receiving evidence and testimony throughout an eleven day trial, reviewing a quantity of
topographical maps, and making an on-site inspection of the relevant properties, the trial
court, employing the reasonable use rule as applied to the drainage of surface waters,
concluded that the County had unreasonably injured respondents' lands; the court made an
appropriate award of damages based on the nuisance and trespass claims. In addition, the
court found that the County had taken the Powers parcel in its entirety: the property no longer
had a practical use other than as a flood channel.
3
The court awarded just compensation. The
court found as well that .247 acres of the Lowe parcel, used by the County to construct a
concrete berm, had been taken, and awarded just compensation.
____________________

3
It has long been established that a taking occurs where real estate is actually invaded by superinduced
additions of water . . . so as to effectually destroy or impair its usefulness, Pumpelly v. Green Bay Company, 80
U.S. (13 Wall.) 166, 181 (1871), and the result is no different when property is subjected to intermittent, but
inevitable flooding which causes substantial injury, United States v. Cress, 243 U.S. 316, 328 (1917).
parcel, used by the County to construct a concrete berm, had been taken, and awarded just
compensation. This appeal followed.
On appeal, the County advances two arguments requiring discussion: (1) the district court
erred both in its adoption and application of the reasonable use rule; and (2) the County
should be immune from liability for damages caused by what it terms urbanization. These,
and the County's remaining contentions, are without merit.
[Headnote 1]
1. In adjudicating the competing rights and interests of respondent landowners and the
County with regard to the drainage of surface waters, the district court, in the instant case,
employed the reasonable use rule. See Armstrong v. Francis Corporation, 120 A.2d 4, 8-10
(N.J. 1956). This rule of reason provides that in effecting a reasonable use of land for a
legitimate purpose, a landowner or user, acting in good faith, may drain surface waters and
cast them on a neighbor's land if: (a) the injurious flow of waters is reasonably necessary for
drainage; (b) reasonable care is taken to avoid unnecessary injury; (c) the benefit to the
drained land outweighs the gravity of harm inflicted upon the flooded land; (d) the drainage is
accompanied, where practicable, by the reasonable improvement and aiding of normal and
natural systems of drainage in accordance with their reasonable carrying capacity; and (e)
where no natural systems of drainage are available, the drainage is accomplished by the use of
a reasonable, artificial system of drainage. Enderson v. Kelehan, 32 N.W.2d 286, 289 (Minn.
1948); see Armstrong, 120 A.2d at 8-10; Restatement (Second) of Torts, 827, 828, 850,
and 850A, and Introductory Notes to 850 (1977). The County contends that the adoption of
the reasonable use rule was error, arguing that the rule will unduly restrict the development of
land and that it affords landowners little or no predictability concerning the permissible uses
to which their lands may be put. In lieu of the rule of reason, the County urges this Court to
adopt the natural flow rule which places a natural servitude upon lower lands for the drainage
of surface waters from upper lands, as long as the natural course of the waters is not diverted
and the natural flow is not increased by waters not naturally flowing in that course. See
Young v. Huffman, 90 N.W.2d 401, 402 (S.D. 1958).
[Headnotes 2-4]
The question of which law to apply to the drainage of surface waters in this context, which
entails a judgment concerning the proper allocation of costs incident to the transformation of
rural or semi-rural areas into urban and suburban communities, is one of first impression
in this state.
transformation of rural or semi-rural areas into urban and suburban communities, is one of
first impression in this state. Our prior cases, however, have enunciated three central
principles: one, the law of water rights must be flexible, taking notice of the varying needs of
various localities, Reno S. Works v. Stevenson, 20 Nev. 269, 280, 21 P. 317, 321 (1889);
two, a landowner may make reasonable use of his land as long as he does not injure his
neighbor, Boynton v. Longley, 19 Nev. 69, 74, 6 P. 437, 439 (1885); and three, a landowner
should not be permitted to make his land more valuable at the expense of the estate of a lower
landowner, id.
[Headnotes 5-7]
The law concerning the drainage of surface waters must necessarily take into account a
variety of factors: the nature of the land, soil, and terrain; the types of surface waters
involved; the availability of natural drainways; the feasibility of artificial drainage systems;
the uses to which the land has been and will be put; the benefit and the harm produced by the
drainage; and a host of environmental and social concerns. See generally V Clark, Waters and
Water Rights, 450.2 et seq. (1972 & Supp. 1978). The reasonable use rule allows for the
careful consideration of each of these public and private concerns; growth and urbanization
are not unduly restricted, but merely tempered with elements of order, planning and
reasonableness. Butler v. Bruno, 341 A.2d 735, 740-41 (R.I. 1975); see also Armstrong, 120
A.2d at 10; V Clark, Waters and Water Rights at 457.5. By contrast, the natural flow rule,
restricted, by definition, to a rigid application of the laws of nature and the boundaries of
natural water courses, is ill-suited to the complexities of urban growth and expansion. See
generally Reno S. Works, 20 Nev. at 280, 21 P. at 321; Howard v. City of Buffalo, 105 N.E.
426, 432 (N. Y. 1914) (per Cardozo, J.).
[Headnote 8]
We find as well that the economic costs incident to the expulsion of surface waters in the
transformation of rural and semi-rural areas into urban and suburban communities should not
be borne solely by adjoining landowners. Armstrong, 120 A.2d at 10; Butler, 341 A.2d at
740-41; cf. Boynton v. Longley, 19 Nev. at 74, 6 P. at 439 (a landowner should not enrich his
estate at the expense of his neighbor's). Rather, landowners, developers, and local officials
must take into account the full costs of development to the community prior to the
implementation of their plans, Id. Absent such prior planning, the reasonable use rule allows
for a more equitable allocation of the incidental economic costs, consistent with our
concepts of social progress and the common well-being, than does the natural flow rule.
economic costs, consistent with our concepts of social progress and the common well-being,
than does the natural flow rule. Id.
[Headnote 9]
Finally, we cannot agree with the County that the reasonable use rule is fatally
unpredictable. Our review of the case law and literature reveals that the natural flow rule does
not provide more predictable results than the reasonable use rule. See Butler, 341 A.2d at 741.
In addition, we refuse to elevate an abstraction, such as predictability, into a judicial pardon
for unreasonable conduct. Id.
[Headnote 10]
For the above reasons, we hold that the district court correctly adopted the reasonable use
rule in adjudicating the competing rights of respondent landowners and the County with
regard to the drainage of surface waters.
[Headnote 11]
Applying the reasonable use rule to the instant case, the district court carefully considered
all relevant factors. The court found that the County had not taken reasonable care to avoid
the substantial injuries to respondents' property, that the gravity of the harm caused by the
drainage outweighed the benefits conferred by it, that the County could have avoided the
harm by improving and complementing the natural system of drainage, and that the County
should have utilized a pre-existing, alternate system of drainage, the Flamingo Wash, to avoid
much of the injury. The County's argument that these findings are not supported by
substantial evidence simply because the record contains conflicting evidence is not well
taken. Tavel v. Olsson, 91 Nev. 359, 361, 535 P.2d 1287, 1288 (1975). The district court's
determination of unreasonableness will not be disturbed.
2. The County argues, relying on Baldwin v. City of Overland Park, 468 P.2d 168 (Kan.
1970), that it is not liable for any injuries caused by what it terms urbanization or rapid
economic growth. We cannot agree.
[Headnotes 12-14]
The district court found, and the record supports, that the injuries to respondents'
properties were caused by the County's unreasonable acts, and not merely by the intangible
and irresistible forces of urbanization. The County does not offer any reason why its actions
in the instant case, found to be unreasonable by the district court, should be treated any
differently than other examples of tortious conduct on the part of a governmental entity.
than other examples of tortious conduct on the part of a governmental entity. See NRS
41.031(1); compare Crucil v. Carson City, 95 Nev. 583, 600 P.2d 216 (1979); Harrigan v.
City of Reno, 86 Nev. 678, 475 P.2d 94 (1970). We therefore reject the Baldwin concept of
limited sovereign immunity, and choose to follow the view, adopted in a majority of
jurisdictions, that a governmental entity's substantial involvement in the development of
private lands which unreasonably injures the property of others is actionable. See, e.g.,
Masley v. City of Lorain, 358 N.E.2d 596 (Ohio 1976); see also Archer v. City of Los
Angeles, 119 P.2d 1 (Cal. 1941); Anderson v. United States, 174 F.Supp. 945 (Ct.Claims
1959).
[Headnote 15]
The County further argues, for the first time on appeal, that its actions in the instant case
were discretionary, within the meaning of NRS 41.032(2), and therefore do not subject it to
liability. This defense was neither pleaded nor raised below, and is not therefore properly
before this Court. Hennessey v. Price, 96 Nev. 33, 604 P.2d 355 (1980); see Stewart v. United
States, 199 F.2d 517 (7th Cir. 1952).
Since the district court applied the correct rule of law, and its findings are supported by
substantial evidence, the judgment is affirmed in all respects.
____________
96 Nev. 505, 505 (1980) State ex rel. Dep't Hwys. v. LoBue
THE STATE OF NEVADA ex rel. DEPARTMENT OF HIGHWAYS, Appellant and
Cross-Respondent, v. MARY LoBUE, Respondent and Cross-Appellant.
No. 11321
June 4, 1980 611 P.2d 1077
Appeal and cross-appeal from final judgment entered on jury verdict; Eighth Judicial
District Court, Clark County; Howard W. Babcock, Judge.
State commenced condemnation action to acquire two separate parcels of land for
interstate highway purposes. The Eighth Judicial District Court, Clark County, entered
judgment on a jury award in favor of grantor who had conveyed the property to the county,
and State appealed.
property to the county, and State appealed. The Supreme Court, 83 Nev. 221, 427 P.2d 639
(1967), remanded the case. On remand, the Eighth Judicial District Court, Clark County,
entered summary judgment for the State, and grantor appealed. The Supreme Court, 87 Nev.
372, 487 P.2d 506 (1971), remanded. On remand, the Eighth Judicial District Court, Clark
County, entered judgment on a jury verdict which found no contract between grantor and the
county, and grantor appealed. The Supreme Court, 92 Nev. 529, 554 P.2d 258 (1976),
reversed and remanded, holding that only question to be decided on remand was the amount
of damages owed to grantor by State. The Eighth Judicial District Court, Clark County,
Howard W. Babcock, J., entered judgment on a jury verdict, and both grantor and State
appealed, complaining of the manner in which the trial court permitted the jury to determine
damages. The Supreme Court held that judgment entered upon verdict which assessed
damages sustained by grantor for loss of frontage and access along northerly and westerly
boundaries of her property and for loss of corner at that intersection, which judgment was
paid by State, was conclusive upon the parties and not subject to relitigation, and therefore
grantor was not entitled to damages sought in her amended counterclaim for loss of frontage
and access and loss of the corner.
Reversed with direction to enter judgment for the State.
[Rehearing denied December 30, 1980]
Richard Bryan, Attorney General, and Robert A. Callaway, Deputy Assistant Counsel,
Department of Highways, for Appellant and Cross-Respondent.
Foley Brothers, of Las Vegas, and Ned R. Nelsen, of Los Angeles, California, for
Respondent and Cross-Appellant.
1. Judgment.
Judgment entered upon verdict which assessed damages sustained by property owner for loss of frontage
and access along northerly and westerly boundaries of her property and for loss of corner at that
intersection, which judgment was paid by State, was conclusive upon the parties and not subject to
relitigation.
2. Judgment.
Property owner who did not claim that expected benefit from bargained-for county roads to be
constructed by State would have been greater than benefit she actually received from construction of
freeway and avenue and who already had been compensated for damages she claimed by reason of loss of
frontage and access along northerly and westerly boundaries of her property and loss of corner at that
intersection was not entitled to damages on her counterclaim which also alleged damage
by reason of loss of frontage and access and loss of corner.
not entitled to damages on her counterclaim which also alleged damage by reason of loss of frontage and
access and loss of corner.
OPINION
Per Curiam:
This cause twice has been remanded to determine damages, if any, owed LoBue by the
State. State ex rel. Dep't Hwys. v. LoBue, 83 Nev. 221, 427 P.2d 639 (1967); LoBue v. State
ex rel. Dep't Hwys., 92 Nev. 529, 554 P.2d 258 (1976). On this appeal and cross-appeal each
party complains of the manner in which the trial court permitted the jury to determine
damages.
In 1957 LoBue unconditionally deeded land to Clark County upon representations that the
County would build two roads along the northerly and westerly sides of her remaining
property. No representations were made as to the width or quality of those roads. LoBue
expected that the construction of those roads would enhance the value of her remaining
property. The roads promised by the County in 1957, eventually were constructed by the State
in 1966.
1
The road along the northern part of her property is Tropicana Avenue, and a
freeway was constructed along the westerly side of her property.
In our first opinion, State ex rel. Dep't Hwys. v. LoBue, 83 Nev. 221, 427 P.2d 639 (1967),
we held that LoBue's remedy for the failure to construct the roads was an action at law for
damages. We did not know whether she had sustained damage. We stated: We express no
opinion on the point of damages. Perhaps the highway construction by the State benefited
LoBue as much as the originally planned county roads; perhaps not. Id. at 226. That
expression was reaffirmed in LoBue v. State ex rel. Dep't Hwys., 92 Nev. 529, 554 P.2d 258
(1976).
The benefit for which LoBue had bargained was the increased value of her land by reason
of the promised county roads. Those roads were not constructed. In lieu thereof, the State
subsequently constructed a freeway and Tropicana Avenue. Our prior opinions had advised
the trial court that the measure of damages was the value of the benefit expected by LoBue
less the value of the benefit received. Indeed, we noted that she may not have sustained
damage; that she may have received more than she had bargained for.
____________________

1
In 1971 an issue arose as to whether the State was obliged to defend LoBue's claim for damages originally
asserted against Clark County, the State's predecessor in interest. We ruled that the State was obliged to defend.
LoBue v. State ex rel. Dep't of Hwys., 87 Nev. 372, 487 P.2d 506 (1971).
received more than she had bargained for. See concurring opinion, Zenoff, State ex rel. Dep't
Hwys. v. LoBue, 83 Nev. 221, 427 P.2d 639 (1967).
Her amended counterclaim for damages, however, did not allege that the expected benefit
from the bargained for county roads would have been greater than the benefit actually
received from the construction by the State of the freeway and Tropicana Avenue, resulting in
damage. What she did claim was damage by reason of the loss of frontage and access along
the northerly and westerly boundaries of her property and the loss of a corner at that
intersection.
[Headnote 1]
This particular claim of damage previously had been litigated in the second condemnation
trial. At that trial the jury specifically was instructed to determine the damages sustained by
LoBue for the loss of frontage and access along the northerly and westerly boundaries of her
property and for the loss of the corner. That damage was assessed at $93,777.97. From that
amount was deducted the sum of $38,904 representing the benefits LoBue received from the
State's construction of the freeway and Tropicana. Judgment was entered on that verdict and
has been paid by the State. It is conclusive upon the parties and not subject to relitigation.
Clark v. Clark, 80 Nev. 52, 389 P.2d 69 (1964).
The issues of judicial estoppel and collateral estoppel, and the doctrine of Clark v. Clark,
supra, were presented to this court on the last appeal of this case. Had we resolved those
issues the trial we are now reviewing on the amended counterclaim would not have occurred.
Apparently, our failure to do so caused the trial judge to believe that those doctrines did not
bar the damages sought by the amended counterclaim. We did not intend that interpretation of
our opinion.
[Headnote 2]
Since LoBue does not claim that the expected benefit from the bargained for county roads
would have been greater than the benefit actually received from the construction of the
freeway and Tropicana, and since she already had been compensated for the damage she does
claim, we reverse the judgment entered upon jury verdict, and remand with direction to enter
judgment for the State upon LoBue's counterclaim for damages.
____________
96 Nev. 509, 509 (1980) Keever v. Nicholas Beers Co.
JOHN T. KEEVER and ROBERT H. MOORE, Appellants, v. NICHOLAS BEERS
COMPANY, a California Limited Partnership, Respondent.
No. 11024
June 4, 1980 611 P.2d 1079
Appeal from judgment on a promissory note. Second Judicial District Court, Washoe
County; John W. Barrett, Judge.
Creditor sued debtors for balance due on promissory note which had been secured by
second trust deed on real property. The district court rejected claim that recovery was barred
by one action rule and by antiwaiver provision and rendered judgment for creditor for unpaid
balance of note plus interest, and debtors appealed. The Supreme Court, Mowbray, C. J., held
that when trustor agrees, in a document relating to sale of real property, to an arrangement on
default which ensures that security will be insufficient to satisfy debts which encumber it, and
creditor agrees to release encumbrance instead of allowing its lien to be removed through
foreclosure or trustee's sale, recovery upon underlying obligation is impermissible if debtor
raises one action rule as a defense.
Reversed.
Stewart & Horton, Ltd., and Cooke, Roberts & Reese, Reno, for Appellants.
Guild, Hagen & Clark, Reno, for Respondent.
1. Mortgages.
Where creditor took a second trust deed as security for a debt, while making an arrangement by which, in
case of default, the security could not possibly return any amount of debt, and thus had no intention of
looking to security for repayment, suit upon note evidencing obligation was not permissible. NRS 40.005
et seq., 40.430, 40.430, subd. 1, 40.453, 107.080 et seq.
Right to have secured creditor proceed against security before attacking general assets of debtor is one of
rights secured by laws of state which debtor cannot waive in advance. NRS 40.453.
3. Mortgages.
One action rule requires creditor to proceed first against the security, unless debtor waives benefit of rule
by failing to raise it as bar to suit on the debt; the right to waive security is the debtor's not the creditor's.
NRS 40.453.
4. Mortgages.
Fact that one action rule was waived by trust deed debtors in telephone conversation rather than in a
document relating to sale of real property did not render waiver effective. NRS 40.453.
5. Mortgages.
Trust deed debtors' waiver in advance of right to have any excess from sale of security returned to debtors
or applied to debts owed to junior secured creditors was ineffective. NRS 40.430 et seq., 40.453, subd.
1, 40.457, 107.080 et seq.
6. Mortgages.
While statutory protections apply to sales under senior liens, neither the one action rule nor the fair
market value limitation of applicable statute applies to sold out junior lienors, who are free to sue directly
on their notes. NRS 40.459.
7. Mortgages.
Opportunity to sue directly on obligation afforded to sold out junior lienors arises from loss of their liens
on security by operation of foreclosure or trustee's sale and having thus lost their interest in the security,
through no fault of their own, sold out junior lienors are treated as unsecured creditors; they are under no
duty to redeem the property or buy it at a judicial sale in order to limit the debtor's loss. NRS 40.440,
40.459.
It is fundamentally at odds with policy of statutes to permit a creditor to take a recorded security interest
which encumbers debtor's property with no intention of looking to the security in case of default.
9. Mortgages.
When a trustor agrees in a document relating to sale of real property to an arrangement on default which
ensures that security will be insufficient to satisfy debts which encumber it, and the creditor agrees to
release the encumbrance instead of allowing its lien to be removed through foreclosure or trustee's sale,
recovery upon underlying obligation is impermissible if debtor raises one action rule as a defense. NRS
40.430 et seq., 107.080 et seq.
OPINION
Respondent Nicholas Beers Co. sued appellants Keever and Moore for the balance due on
a promissory note which had been secured by a second trust deed on real property. The note
made by appellants was due, and partially unpaid. The district court rejected
appellants-defendants' contentions below that recovery was barred by the one action rule.
NRS 40.430, and by the antiwaiver provision of NRS 40.453; the court rendered judgment for
respondent for the unpaid balance of the note plus interest. We reverse.
The note upon which Nicholas Beers Co. (hereinafter Beers) seeks to recover was
executed as part of a real estate transaction. Beers held an option to purchase a tract of land
which was later to become the Reno Heights subdivision. On May 14, 1974, Beers and
Security National Bank entered into an agreement for financing the purchase of the land: the
Bank was to lend Beers over $6S0,000; Beers was to give the Bank a promissory note
secured by a first trust deed on the property. Beers and the Bank further agreed that in
the event of default on the loan the subdivided property would be sold to a third party,
Mason-McDuffie Co., for a specified price of $7,500 per lot, an amount just sufficient to
pay back the indebtedness to the Bank.
lend Beers over $680,000; Beers was to give the Bank a promissory note secured by a first
trust deed on the property. Beers and the Bank further agreed that in the event of default on
the loan the subdivided property would be sold to a third party, Mason-McDuffie Co., for a
specified price of $7,500 per lot, an amount just sufficient to pay back the indebtedness to the
Bank. Mason-McDuffie agreed to purchase the lots in a letter dated May 11, 1973; the
obligation to purchase was to expire on June 30, 1974. In order to facilitate the transfer of the
property to Mason-McDuffie in the event of default, Beers appointed the Bank its agent for
the sale and deposited with the Bank an executed request for reconveyance of its interest
under the deed of trust.
At this juncture, appellants Keever and Moore entered the transaction, as prospective
developers of the property. They agreed to purchase Beers' rights under its option to purchase
the property and to step into Beers' position with respect to the note and first deed of trust. In
a series of documents dated between June 15 and June 26, 1973, Keever and Moore gave
Beers a promissory note (the subject of the present action) secured by a second deed of trust
on the property; Beers deeded its interest in the property to Keever and Moore; Keever and
Moore assumed all of Beers' obligations to the Bank and to Mason-McDuffie; and, in order to
facilitate a sale to Mason-McDuffie on default, Keever and Moore adopted Beers'
appointment of the Bank as agent for the sale. At one point in the negotiations, the Bank
expressed concern over whether, in the event of default, it would be able to sell the property
to Mason-McDuffie free of all encumbrances, as specified in its agreement, because of the
second deed of trust in favor of Beers. In a letter to the Bank, executed as part of the sale to
appellants, Beers agreed to release its lien on the property, created by the second deed of trust,
in the event of default, if the Bank would tender to Beers, five days before the contemplated
sale to Mason-McDuffie, the remaining lots at the same specified price of $7,500; this letter
did not specify a date upon which the agreement would expire. The letter was incorporated by
reference into the instrument by which Keever and Moore adopted the appointment of the
Bank as agent for the sale to Mason-McDuffie on default; the letter specified that the
arrangement would not release Keever and Moore from their liability on the promissory note.
Ultimately, Keever and Moore defaulted on their obligation to the Bank. Although their
attempts to keep the project going lasted beyond the June 30, 1974 date upon which the sale
agreement between the Bank and Mason-McDuffie was to expire, those parties agreed to
extend their contract for six months.
those parties agreed to extend their contract for six months. On October 15, 1974, the Bank
tendered the remaining lots in the subdivision to Beers at $7,500 per lot, pursuant to their
agreement. Beers declined to purchase them, and the Bank then sold them, at the specified
price, to one Wilkerson, Mason-McDuffie's nominee. In its letter to the Bank declining the
tender of the lots, Beers acknowledged its release of its lien under the second deed of trust on
the property.
Keever and Moore had meanwhile defaulted on their promissory note to Beers. Beers
brought suit in the district court on the note; Keever and Moore defended on the ground that
the note had been secured and that Beers' remedy was to foreclose its interest in the security
before seeking judgment against the general assets of the debtors. Keever and Moore further
contended that the portions of the agreements which arranged the sale to Mason-McDuffie on
default could not be given effect because they constituted waivers of their rights under the
laws of the state, under NRS 40.453. They argued that by arranging for the disposal of the
security for the note, Beers had lost its right to sue on the note itself. After trial to the court,
the district court found that Keever and Moore's agreement to Beers' release of its lien on the
property was not a waiver of any right under NRS 40.453, and that Keever and Moore's
consent to the release of the lien by Beers had been given in a telephone conversation in
November, 1974. The court further found that the arrangement on default had not been
entered into by Beers for the purpose of evading the one action rule, NRS 40.430.
[Headnote 1]
We are presented here with a situation in which a creditor has taken security for a debt,
while making an arrangement by which, in case of default, the security cannot possibly return
any amount of the debt. The creditor thus has no intention of looking to the security for
repayment. We are called upon to decide whether suit upon the note evidencing the obligation
is permissible under our statutes in these circumstances, and we conclude that it is not.
Chapter 40 of the Nevada Revised Statutes provides a comprehensive scheme of creditor
and debtor protection with respect to the foreclosure and sale of real property subject to
security interests. See also NRS 107.080 et seq. NRS 40.430(1), the one action rule, provides,
in pertinent part:
[t]here shall be but one action for the recovery of any debt, or for the enforcement of
any right secured by mortgage or lien upon real estate, which action shall be in
accordance with the provisions of this section and NRS 40.440 to +0.+S9, inclusive.
40.459, inclusive. In such action, the judgment shall be rendered for the amount found
due the plaintiff, and the court shall power . . . to direct a sale of the encumbered
property . . . and apply the proceeds of the sale . . . to the amount due the plaintiff.
NRS 40.459 limits the amount of a deficiency judgment which may be rendered after a
judicial sale to the difference between the fair market value of the security at the time of the
sale and the amount of the debt. NRS 40.453 provides that it is against the public policy of
Nevada for any document relating to the sale of real property to contain any provision
whereby a mortgagor or trustor waives any right secured to him by the laws of this state, and
that [n]o court shall enforce any such provision. We have expressly held the one action rule
applicable to deeds of trust as well as mortgages. McMillan v. United Mortgage Co., 82 Nev.
117, 120, 412 P.2d 604, 606 (1966).
[Headnotes 2, 3]
Our reading of these statutes indicates that respondent Beers cannot recover on its
promissory note because the loss of the security for the obligation was due to its own action.
Further, consent of appellants Keever and Moore to the arrangement on default was
ineffective to permit suit directly on the promissory note. The right to have a secured creditor
proceed against the security before attacking the general assets of the debtor is one of the
right[s] secured . . . by the laws of this state, which the debtor cannot waive in advance. See
Paramount Ins. v. Rayson & Smitley, 86 Nev. 644, 651, 472 P.2d 530, 535 (1970)
(Thompson J., concurring). The one action rule requires a creditor to proceed first against the
security, unless the debtor waives the benefit of the rule by failing to raise it as a bar to the
suit on the debt.
1
The right to waive the security is the debtor's, not the creditor's.
2

[Headnote 4]
In the instant case,the district court held that the benefit of the one action rule had been
waived by appellants in November, 1974, in a telephone conversation with one of the
partners in respondent, and that the waiver was therefore effective because it was not in
a "document relating to the sale of real property," NRS 40.453.
____________________

1
Our cases have made clear that a debtor may waive the one action rule by failing to assert it as a defense to a
suit upon the underlying obligation. Nevada Wholesale Lumber v. Myers Realty, 92 Nev. 24, 28-30, 544 P.2d
1204, 1208 (1976). Hyman v. Kelly, 1 Nev. 179, 186 (1865), holding that a creditor may waive the security, is
limited to situations where the debtor does not raise the one action rule as a defense, and does not apply when a
waiver of the security is made in a document relating to the sale of real property. NRS 40.453(1).

2
We note that, although the note sued upon was technically unsecured at the time suit was brought, see Ferry
v. Fisk, 202 P. 964 (Cal.App. 1921), when the loss of the security is procured through waivers prohibited by
NRS 40.453, the one action rule may be asserted as a defense by the debtor.
the one action rule had been waived by appellants in November, 1974, in a telephone
conversation with one of the partners in respondent, and that the waiver was therefore
effective because it was not in a document relating to the sale of real property, NRS 40.453.
This was error.
[Headnote 5]
The instruments executed by respondent, appellants, and the Bank, in which the
prearranged disposition of the property on default was agreed upon, clearly bound appellants
to accept the sale of the property to Mason-McDuffie at a specified price, rather than a sale
under the procedures specified in NRS 40.430 et seq. or NRS 107.080 et seq. In so doing,
appellants waived rights secured by the laws of this state in a document relating to the sale
of real property, which is precisely what the statute forbids our courts to enforce. Appellants'
consent to respondent's release of its security interest was therefore ineffective to waive their
right under NRS 40.430 to have the secured creditor pursue the security and procure a
deficiency judgment for any amount by which the amount of the debt exceeded the fair
market value of the security at the time of sale, determined by a judicial hearing, NRS 40.457,
or by competitive bidding at a trustee's sale, see Bank of Italy v. Bentley, 20 P.2d 940, 942
(Cal. 1933). It was similarly ineffective to waive in advance the right to have any excess from
the sale returned to the debtor, NRS 40.440, or applied to the debts owed to junior secured
creditors. Sohn v. California Pacific Title Ins. Co., 269 P.2d 223 (Cal. 1954).
[Headnote 6]
Having found that appellants' consent to respondent's purported waiver of its security
interest in the property was ineffective, we are faced with the problem posed by respondent's
original position as a junior lienor. It is well established that, while the statutory protections
apply to sale under senior liens, neither the one action rule nor the fair market value limitation
of NRS 40.459 applies to sold out junior lienors, who are free to sue directly on their notes.
McMillan v. United Mortgage Co., 84 Nev. 99, 437 P.2d 878 (1968); Roseleaf Corporation v.
Chierighino, 378 P.2d 97 (Cal. 1963). Respondent, however, does not have the status of a
sold out junior lienor.
[Headnote 7]
The opportunity to sue directly on the obligation afforded to sold out juniors arises from
the loss of their liens on the security by operation of the foreclosure or trustee's sale. See Sims
v. Grubb, 75 Nev. 173, 336 P.2d 759 (1959). Having thus lost their interests in the security,
through no fault of their own, sold out junior lienors are treated as unsecured creditors;
they are under no duty to redeem the property or buy it at a judicial sale in order to limit
the debtor's loss.
their interests in the security, through no fault of their own, sold out junior lienors are treated
as unsecured creditors; they are under no duty to redeem the property or buy it at a judicial
sale in order to limit the debtor's loss. The procedure under the statutory scheme, however,
contemplates that, in the event that the property has risen in value to the point at which the
value of the security is greater than the debts secured, the debtor would have the opportunity
to attempt refinancing, in order to buy out the foreclosing lienor, or a junior lienor would
have an incentive to purchase the property at the sale (thus buying out the senior) and step
into the position of the senior lienor, with the opportunity then to foreclose his own lien and
acquire the property free of encumbrances. See generally J. Hetland, Calif. Real Estate
Secured Transactions 6.29-6.33 (CEB ed. 1970).
[Headnote 8]
Under the arrangement in the instant case, because of the agreement with
Mason-McDuffie for the sale at a specified price on default, the value of the security could
never rise to the point at which it would satisfy the debt for which respondent had taken a
security interest. This distinguishes the instant case from one involving sold out junior
lienors: in the latter case, the security has become valueless, as if it had been destroyed,
without fault on the part of the creditor in losing the security. McMillan v. United Mortgage
Co., 82 Nev. at 121, 412 P.2d at 606; see J. Hetland, Secured Real Estate Transactions 9.8
(CEB ed. 1974). In this case, the arrangement on default left the security valueless ab initio
for the purpose of actually securing the debt to respondent. Barbieri v. Ramelli, 23 P. 1086
(Cal. 1890); see Rein v. Callaway, 65 P. 63 (Idaho 1901); cf. American City Bank v. Zetlen,
61 Cal.Rptr. 311 (Ct.App. 1967) (trustor who assigned agreement to purchase at a specified
price to lienor is liable for difference between amount of debt and specified sale price, since
both parties knew that deficiency was certain to result on default). It is fundamentally at odds
with the policy of our statutes to permit a creditor to take a recorded security interest which
encumbers the debtor's property with no intention of looking to the security in case of default.
See McMillan v. United Mortgage Co., 84 Nev. at 101-102, 437 P.2d at 879.
[Headnote 9]
We hold that when a trustor agrees, in a document relating to the sale of real property,
NRS 40.453(1), to an arrangement on default which ensures that the security will be
insufficient to satisfy the debts which encumber it, and the creditor agrees to release the
encumbrance instead of allowing its lien to be removed through foreclosure, NRS 40.430
et seq., or trustee's sale, NRS 107.0S0 et seq.,
insufficient to satisfy the debts which encumber it, and the creditor agrees to release the
encumbrance instead of allowing its lien to be removed through foreclosure, NRS 40.430 et
seq., or trustee's sale, NRS 107.080 et seq., recovery upon the underlying obligation is
impermissible if the debtor raises the one action rule as a defense. We therefore reverse the
judgment of the district court.
____________
96 Nev. 516, 516 (1980) Aladdin Hotel Corp. v. General Drapery
ALADDIN HOTEL CORPORATION, Appellant, v. GENERAL
DRAPERY SERVICES, INC., Respondent.
No. 10731
June 4, 1980 611 P.2d 1084
Appeal from order granting summary judgment. Eighth Judicial District Court, Clark
County; George E. Marshall, Judge.
Suit was brought by subcontractor against owner for balance allegedly due. The district
court granted summary judgment in favor of subcontractor, and owner appealed. The
Supreme Court held that if waiver of lien agreement was intended by parties to be merely a
shield for owner against possible lien liability and as evidence of clear title, and not a
memorialization of entire agreement settling disputed claims, parol evidence would be
admissible to show terms of the separate and independent oral agreement without violating
the parol evidence rule and that there were issues of fact precluding grant of summary
judgment.
Jones, Jones, Bell, Close & Brown, and Bruce K. Collmar, for Appellant.
Bilbray, Gibbons & Pitaro, Las Vegas, for Respondent.
1. Evidence.
If waiver of lien agreement was intended by parties to be merely a shield for owner against possible lien
liability and as evidence of clear title, and not a memorialization of entire agreement settling disputed
claims, parol evidence would be admissible to show terms of the separate and independent oral agreement
without violating the parol evidence rule.
2. Judgment.
Where lien waiver which owner claimed settled disputed claims between subcontractor and owner was
ambiguous as to whether it settled all claims or constituted merely a waiver of
subcontractor's right to file lien as claimed by subcontractor, there were issues of
fact precluding grant of summary judgment in favor of subcontractor which brought
suit against owner for balance allegedly due.
all claims or constituted merely a waiver of subcontractor's right to file lien as claimed by subcontractor,
there were issues of fact precluding grant of summary judgment in favor of subcontractor which brought
suit against owner for balance allegedly due.
OPINION
Per Curiam:
The dispute in this case arose out of the construction of the Aladdin Theatre for the
appellant Aladdin Hotel Corporation. Respondent General Drapery Services, Inc., supplied
materials and performed services in the construction of the theatre. Disagreements arose
between General Drapery and appellant Aladdin over the quality of the performance of
General Drapery which culminated in the parties reaching a compromise settlement. General
Drapery later sued Aladdin, alleging that the compromise settlement had not been performed;
Aladdin interposed the defense of accord and satisfaction. The district court granted summary
judgment for General Drapery; this appeal followed. Because we believe that there are
genuine issues of fact to be resolved, we reverse and remand for trial.
General Drapery worked on the construction of the Aladdin Theatre under purchase orders
issued by Joseph Locricchio, general contractor for the project and Aladdin's agent. There
was some question over the quality of General Drapery's performance of the work.
Locricchio, as general contractor, claimed that Aladdin was entitled to an offset from the face
amount of the purchase orders of over $57,000 because of General Drapery's alleged
incomplete performance. General Drapery, however, submitted bills for the entire face
amount of the purchase orders.
On August 12, 1976, Locricchio met with James Belmont, president of General Drapery.
According to Locricchio's affidavit, they agreed to settle the dispute on the following terms:
Aladdin would not press its claim for a $57,000 offset; Aladdin would make payments to
General Drapery which would bring its total payments to $264,889.96; and General Drapery
would execute a waiver of its lien rights on the Aladdin property
1
in the amount of
$294,889.96, which was the total amount of the purchase orders. The waiver of the lien was
executed the same day. The following day Aladdin issued checks, which were accepted by
General Drapery, which brought the total amount paid to precisely $264,889.96.
According to Belmont, the waiver of the lien agreement was intended by the parties to be
a complete and final written settlement of their dispute.
____________________

1
No liens had ever been filed by General Drapery against the property, according to the record before us.
intended by the parties to be a complete and final written settlement of their dispute. He
claimed that General Drapery intended to waive only its right to file for a lien and did not
intend to accept any amount less than $294,889.96 as a settlement.
Over a year and a half later, General Drapery sued Aladdin, by way of an amended
complaint,
2
for the $30,000 difference between what was it alleged due under the waiver of
lien agreement and what it had received. Aladdin's answer admitted payment of $264,889.96
and the execution of the waiver of lien agreement, but denied the $30,000 indebtedness. The
answer pleaded the affirmative defenses of accord and satisfaction, and release. General
Drapery moved for summary judgment, which the district court granted without findings of
fact or conclusions of law. Aladdin appeals.
[Headnote 1]
Respondent contends that summary judgment was proper because any evidence submitted
by Aladdin at trial would be oral testimony and, thus, inadmissible to vary the terms of the
written agreement of August 12, 1976, the lien release. We disagree. The threshold question
in this instance is whether the written lien release was intended by the parties to be the agreed
integration of the entire bargain between them. See Child v. Miller, 74 Nev. 223, 327 P.2d
342 (1958); United States v. Aetna Casualty & Surety Co., 480 F.2d 1095 (9th Cir. 1973).
Thus if the waiver of lien agreement was intended by the parties to be merely a shield for
Aladdin against possible lien liability and as evidence of clear title to facilitate the making of
loans on the property, and not a memorialization of the entire oral agreement between the
parties, parol evidence may be admissible to show the terms of the separate and independent
oral agreement without violating the rule that such terms may not be inconsistent with those
of the written agreement. Alexander v. Simmons, 90 Nev. 23, 518 P.2d 160 (1974).
____________________

2
General Drapery originally filed suit in this action against Maryland Casualty Co., the surety on Locricchio's
contractor's bond, on April 14, 1977, for $30,000, the sum which General Drapery now alleges to be due from
Aladdin. The district court entered summary judgment for General Drapery for the full amount against
Locricchio and for the full amount of the bond against Maryland Casualty. Only Maryland Casualty appealed
that order. While the disposition was on appeal to this Court, the district court vacated its order granting
summary judgment against Locricchio; and since there was then no finding of liability against Locricchio upon
which Maryland Casualty's liability could rest, we remanded the part of the case on appeal for further
proceedings, Maryland Casualty Co. v. General Drapery Services, Inc. No. 10466, September 22, 1978.
Meanwhile, General Drapery was allowed to file an amended complaint, on January 13, 1978, naming Aladdin
as a defendant.
Scrutiny of the written agreement suggests that it is ambiguous with respect to whether it
was intended by the parties to be a complete integration of the terms of their entire bargain.
The language of the document provides only that General Drapery do [sic] hereby waive and
release to the owners of said premises [the Aladdin Theatre for the Performing Arts] . . . any
and all liens or right to liens upon said land, or upon the improvements now or hereafter
thereon, or upon the monies or other considerations due or to become due from the owner. . . .
The premises as to which said liens or right to liens are hereby released is: [the Aladdin
Theatre for the Performing Arts]. By its own terms, the document only refers to General
Drapery's lien rights against the premises (or arguably against any sums paid to the general
contractor for the project).
[Headnote 2]
It is clear that the character of the written instrument itself is far from obvious. In such a
situation, where it may be properly inferred that the parties did not intend the written paper
to be a complete and final settlement of the whole transaction between them, Alexander v.
Simmons, 90 Nev. at 24, 518 P.2d at 161, parol evidence is admissible. On appeals of
summary judgments, all inferences are reviewed in favor of the party moved against.
Kaminski v. Woodbury, 85 Nev. 667, 462 P.2d 45 (1969). Since the intention of the parties is
a crucial issue when the defense of accord and satisfaction is raised, Johnson v. Utile, 86 Nev.
593, 472 P.2d 335 (1970), and that question is one of fact, Black v. Denver United States
National Bank, 362 F.2d 38, 41 (8th Cir.), cert. denied, 385 U.S 990 (1966), summary
judgment was improper in the instant case.
Respondent also contends that summary judgment was justified because the affidavit of
Dennis Piotrowski submitted by Aladdin in opposition to the motion was insufficient. We
need not decide whether Piotrowski's affidavit was sufficient. The record in this case shows
that the district court had before it the affidavit of Joseph Locricchio, which affidavit fully
complies with the requirement of NRCP 56(e) and Saka v. Sahara-Nevada Corp., 92 Nev.
703, 705, 558 P.2d 535, 536 (1976), that such affidavits must be made upon the affiant's
personal knowledge, and there must be an affirmative showing of his competency to testify to
them.
We conclude, therefore, that there are genuine issues of material fact with respect to the
intended effect of the waiver agreement. We therefore must reverse the order of the district
court and remand the cause for trial on the merits.
____________
96 Nev. 520, 520 (1980) Acklin v. McCarthy
THOMAS C. ACKLIN, et al., Appellants, v. JOHN
McCARTHY, et al., Respondents.
No. 11731
June 4, 1980 612 P.2d 219
Appeal from judgment dismissing complaint, Eighth Judicial District Court, Clark County;
James A. Brennan, Judge.
On appeal from a judgment of the district court dismissing, with prejudice, plaintiffs'
complaint for declaratory and injunctive relief concerning certain police officer promotions,
the Supreme Court, Manoukian, J., held that the sheriff of the Las Vegas metropolitan police
department was not required to select appointive officers from those officers holding the
highest civil service ranks in the department.
Affirmed.
Galatz, Earl and Bigger, Las Vegas, for Appellants.
Robert J. Miller, District Attorney, and S. Mahlon Edwards, Deputy District Attorney,
Clark County, for Respondents.
Sheriff of the Las Vegas Metropolitan Police Department was not required to select appointive officers
from those officers holding the highest civil service ranks in the department. NRS 280.010 et seq.,
280.290, subds. 1-5.
2. Statutes.
An entire act must be construed in light of its purpose and as a whole.
3. Statutes.
Examination of legislative history and extrinsic aids is not necessary where the court determines clear
legislative intent from the language of the entire act.
OPINION
[Headnote 1]
This is an appeal from a judgment dismissing with prejudice, NRCP 41(b),
plaintiffs-appellants' complaint for declaratory and injunctive relief. We are asked to
determine whether respondent McCarthy, Sheriff of the Las Vegas Metropolitan Police
Department, was required to select appointive officers from those officers holding the highest
civil service ranks in the department.
department. We hold that this action was not required by chapter 280 of the Nevada Revised
Statutes and affirm the decision of the lower court.
The Nevada Legislature, in 1973, provided for the consolidation of city and county law
enforcement agencies in counties with a population of 200,000 or more. 1973 Nev. Stats. ch.
568, 1-37, at 915-22 (codified in NRS 280.010-.360). Each county with the stated
population was to comply with the merger provisions of July 1, 1973. Id. 11, at 916. The
chief law enforcement officer of the consolidated department would be the county sheriff and
the chief of police of the largest city would be second in command. NRS 280.290(1), (2).
Clark County, having a population greater than 200,000, abided by the legislative mandate
and merged its county sheriff department with the police department of Las Vegas, the largest
city in the county.
In November of 1978, respondent McCarthy was elected Sheriff of Clark County and
assumed office on January 1, 1979. On December 4, 1978, Sheriff-elect McCarthy announced
the promotions of several police officers to appointive positions which would take effect in
1979. This action included the promotion of a lieutenant to the position of assistant sheriff
and the appointment of two sergeants and a detective to the position of commander. There
were nine captains and eight lieutenants at a higher civil service level at the time. Appellants
contend that appointive officer positions may be filled only with selections from the highest
civil service ranks within the department and that, because respondent McCarthy failed to
comply with this requirement, the appointments must be nullified.
Section 280.290 of our revised statutes is the provision with which we are primarily
concerned.
1
Subsection 1 states that the chief law enforcement officer will be the county
sheriff and subsection 2 indicates that, upon the merger, the chief of police of the largest
city shall be the undersheriff.
____________________

1
Department chief, other executive officers.
1. The chief law enforcement officer, and except as limited or otherwise provided in this chapter the
chief administrative officer in a department is the sheriff of the county in which a department is located.
Except as otherwise specifically provided or limited, such sheriff shall continue to perform all of his
duties and retain all of his powers as sheriff of the county.
2. Upon merger, the chief of police of the largest participating city shall be second in command of
the department and shall be designated as undersheriff of the department.
3. Upon merger, the chiefs of police of other participating cities, the assistant chiefs of police of other
participating cities, the chief deputies or deputy chiefs, or both, and the undersheriff of the county are
entitled to obtain employment with the department in positions which their leadership abilities warrant.
chief law enforcement officer will be the county sheriff and subsection 2 indicates that, upon
the merger, the chief of police of the largest city shall be the undersheriff. Subsection 3
provides that, upon merger, other police chiefs, assistant chiefs, and undersheriffs may obtain
employment according to their leadership abilities.
Appellants maintain that subsection 5 requires that the appointive positions listed in
subsections 2 and 3
2
now may be filled only with selections from the highest civil service
ranks. We do not agree with this interpretation. Subsections 2 and 3 merely designate
positions in the new department for the chiefs and deputy chiefs of the merging departments.
The latter subsection indicates that, upon merger, leadership abilities would determine
specific positions. According to subsection 4, those persons listed in subsections 2 and 3 were
to retain an equivalent rank, upon merger, only until the expiration of the current term of
office of the sheriff. If they were removed from a position without cause, they would retain
their highest civil service rank.
3
Finally, any of the positions listed in subsections 2 and 3
could only be selected from the highest civil service rank in the department. We interpret this
last section to refer to the positions which would be created upon the merger. Under such
interpretation, after the merger was completed, the sheriff could fill the appointive positions
without regard to civil service ranks. We emphasize that subsection 1 states that the sheriff
shall retain all of his powers as sheriff unless specifically limited. We believe that one of
these powers was that of appointments and that the limitation was effective only until the
merger was completed.
____________________
4. Upon merger, all persons designated in subsections 2 and 3 shall retain an equivalent rank in the
department at least until the expiration of the current term of office of the sheriff, except that such
persons may be removed for cause. Each of the persons designated in subsections 2 and 3 shall hold and
be entitled to return to the highest civil service rank if he is removed from his appointed position for
reasons other than cause requiring termination.
5. The persons selected to fill any of the positions in subsections 2 and 3 shall be selected from the
highest civil service rank in the department.

2
Within the new metropolitan police structure, there is a distinction between the appointive ranks and the
civil service ranks. The civil service ranks include, from the lowest position up, patrolman, sergeant, lieutenant,
and captain. The appointive positions include commanders, deputy chiefs, assistant sheriffs, and undersheriff.

3
This clause is indicative of the fact that the sheriff retained his power to appoint and dismiss. The limitation
simply was that he could not summarily dismiss from the department officers who had had officer status within
one of the merging departments.
[Headnote 2]
Even assuming that the intent of the legislature could not be gleaned from this statute
itself, we find that a reading of the entire statutory scheme demonstrates the correctness of the
result we reach. An entire act must be construed in light of its purpose and as a whole.
Thomas v. State, 88 Nev. 382, 384, 498 P.2d 1314, 1315 (1972); Ex parte Iratacable, 55 Nev.
236, 282, 30 P.2d 284, 290 (1934). The declaration of purpose was set forth in NRS
280.010(2). There, the legislature stated its desire to provide the means whereby the
respective law enforcement agencies of the cities and counties may merge. . . . The final
section, NRS 280.360, states that the provisions of the chapter shall be construed liberally to
effect the merger . . . without administrative difficulty, it being the intention of the legislature
that the formation of departments be effected in an orderly manner. From these statutes, it is
clear that the legislature was primarily concerned with the merger procedure and how
positions would be affected by such a consolidation. We do not discern from these
enactments that the legislature intended to preclude discretionary appointments once the
process was completed. Indeed, NRS 280.290(4) states that a person in an appointed position
could be removed for reasons other than cause although he would return to his highest civil
service rank. The evident purpose was to assure officers of the pre-merger departments of
employment security for a reasonable period of time in the new department.
4

[Headnote 3]
Appellants contend that because of the legislative uncertainty, it was necessary for the trial
court to review the legislative history in order to resolve the controversy regarding the
enactments. We disagree. Examination of legislative history and extrinsic aids, see Washoe
County v. Baker, 75 Nev. 335, 338, 340 P.2d 1003, 1004 (1959), is not necessary in the
instant case as we have determined a clear legislative intent from the language of the entire
act. In any event, the evidence proffered by appellants is not of the type which is considered
in determining legislative intent.
5
We conclude from the language of the entire statutory
act that the legislature did not intend to preclude respondent sheriff from filling
appointive positions with persons other than those with the highest civil service ranks.6
We are unable to conclude that the management prerogatives of the sheriff were
intended to be restricted in the manner appellants assert.

____________________

4
See note 3 and accompanying text supra.

5
This evidence included the post-merger remarks of a police officer-member of a sub-committee, only
remotely connected with the legislature and a legislator during a legislative hearing. The statements, even if
relevant, were more similar to ambiguous individual opinions, see March v. United States, 506 F.2d 1036, 1314
n. 31 (D.C. Cir. 1974), than to clear statements by proponents at a legislative hearing. See Chicago & North
Western Ry. v. United Transp. Union, 402 U.S. 570, 576 (1971). Additionally, the actions and remarks of
We conclude from the language of the entire statutory act that the legislature did not intend
to preclude respondent sheriff from filling appointive positions with persons other than those
with the highest civil service ranks.
6
We are unable to conclude that the management
prerogatives of the sheriff were intended to be restricted in the manner appellants assert. The
decision of the district court is affirmed.
When Sheriff McCarthy selected several police officers for appointment to unclassified
positions, and such officers were not of the rank of captain, his appointments violated Nevada
law, specifically NRS 280.290(5), and 280.120(2). If there were any doubt concerning
interpretation of the relevant statutes, plaintiffs offered abundant evidence to the Legislature's
intent. Moreover, reason militates in favor of the interpretation for which the plaintiffs
contend.
The district court apparently felt appointments to unclassified positions need be made from
the rank of captain, or above, only at the time of the consolidation. This reasoning is contrary
to the literal statutory language of 280.290(5) and 280.120, which states, The resulting
department shall operate under the provisions of this chapter. NRS 280.290(2), (3) and (5)
reads as follows:
(2) Upon merger, the chief of police of the largest participating city shall be second
in command of the department and shall be designated as undersheriff of the
department.
(3) Upon merger, the chiefs of police of other participating cities, the assistant chiefs
of police of other participating cities, the chief deputies or deputy chiefs, or both, and
the undersheriff of the county are entitled to obtain
____________________
police department officials certainly did not constitute an official position by an agency required to administer
certain laws. See Sierra Pacific Power Co. v. Department of Taxation, 96 Nev. 295, 607 P.2d 1147 (1980); Clark
County School Dist. v. Local Gov't Employee Management Relations Bd., 90 Nev. 442, 530 P.2d 114 (1974).

6
We are not persuaded by appellants' argument that the legislature was concerned only with continuity and
proven ability as shown by a civil service rank. The legislature was primarily concerned that all officers retain
their positions in the new department for a reasonable period of time. The fact that an officer has a certain civil
service rank is not, in and of itself, indicative of his ability to handle an appointive position or demonstrative of
capabilities superior to someone within or without the department who may be appointed by the sheriff.
employment with the department in positions which their leadership abilities warrant.
. . .
(5) The persons selected to fill any of the positions in subsections 2 and 3 shall be
selected from the highest civil service rank in the department.
In addition to contradicting this clear language, it seems to me that my brethren are
attributing a rather surprising intent to our Legislature. In effect, the majority hold that our
Legislature did not intend to require the sheriff to accord recognition to merit in the police
department's highest and most important positions, following formation of the unified
department. As I see it, this means career officers may work the bulk of their professional
lives, to achieve a captain's rank on merit, only to have others appointed over them, without
regard to merit. I am unwilling to attribute such a divisive and demoralizing scheme to our
Legislature.
____________
96 Nev. 525, 525 (1980) Eikelberger v. Tolotti
FRED L. EIKELBERGER, and MARGARET A. EIKELBERGER, Appellants, v.
JOHN TOLOTTI, and RICHARD W. HORTON, Respondents.
No. 10682
June 4, 1980 611 P.2d 1086
Appeal from order granting motion for judgment notwithstanding verdict; Second Judicial
District Court, Washoe County; Peter I. Breen, Judge.
Action was brought to recover damages for alleged conspiracy. After verdict for plaintiffs,
the district court granted motion for judgment notwithstanding jury verdict, and plaintiffs
appealed. The Supreme Court, Thompson, J., held that: (1) rule which prohibits member of
the bar from purchasing or otherwise acquiring any interest in subject matter of litigation
which he is conducting was not violated by attorney's purchasing client's judgment after the
litigation had ended; (2) giving of false testimony is not civilly actionable, and claim of
conspiracy does not avoid such doctrine; and (3) even if refusal to accept the monthly
payments on judgment was in violation of agreement between the parties and for purpose of
permitting assignee of judgment creditor to levy execution, judgment debtors were not
damaged by it where the execution sale was set aside upon motion of the judgment debtors
and sum due on a judgment was paid to assignee of the judgment from cash deposit
made by the debtors, with balance being released to the debtors.
set aside upon motion of the judgment debtors and sum due on a judgment was paid to
assignee of the judgment from cash deposit made by the debtors, with balance being released
to the debtors.
Affirmed.
[Rehearing denied October 17, 1980]
Johnson, Belaustegui & Robison, of Reno, for Appellants.
Roger A. Bergmann, of Reno, for Respondent Tolotti.
Vargas, Bartlett & Dixon and John C. Renshaw, of Reno, for Respondent Horton.
Where plaintiffs in conspiracy action did not object to giving of instruction based on narrow definition of
actionable conspiracy in an earlier case and did not request instruction encompassing expanded concept of
conspiratorial civil liability as declared in later cases, on appeal the evidence regarding conspiracy had to
be reviewed with the earlier doctrine in mind. NRCP 51.
Where attorney had consent of creditors and assignee of judgment to simultaneous representation and
each was fully informed, there was no violation of rule precluding member of the bar from representing
conflicting interest except with the consent of all parties concerned; judgment debtors, who had never been
represented by such attorney, were not concerned parties. SCR 169.
3. Champerty and Maintenance.
Rule which prohibits member of the bar from purchasing or otherwise acquiring any interest in subject
matter of litigation which he is conducting was not violated by attorney's purchasing client's judgment after
the litigation had ended. SCR 183.
Attorney may purchase his clients' property if he does so openly, fairly and honestly.
5. Torts.
Giving of false testimony is not civilly actionable, and claim of conspiracy does not avoid such doctrine.
SCR 198(3)(7).
6. Perjury.
Perjury is an offense against the public only, and subject only to the criminal law.
7. Torts.
Where judgment debtors did not employ certified public accountant nor did they rely on his accounting
statements, prepared to be used by assignee of judgment creditor in litigation between assignee and
debtors, there was no legal basis for damages claimed to have been incurred by the debtors.
8. Judgment.
Even if refusal to accept the monthly payments on judgment was in violation of agreement between the
parties and for purpose of permitting assignee of judgment creditor to levy execution,
judgment debtors were not damaged by it where the execution sale was set aside
upon motion of the judgment debtors and sum due on a judgment was paid to
assignee of the judgment from cash deposit made by the debtors, with balance being
released to the debtors.
assignee of judgment creditor to levy execution, judgment debtors were not damaged by it where the
execution sale was set aside upon motion of the judgment debtors and sum due on a judgment was paid to
assignee of the judgment from cash deposit made by the debtors, with balance being released to the
debtors.
OPINION
Fred and Margaret Eikelberger commenced this action to recover damages resulting from
an alleged conspiracy between John Tolotti and his attorney, Richard W. Horton, to cause
harm to the business interests of the Eikelbergers. A jury found for the Eikelbergers awarding
compensatory damages of $75,000 and punitive damages of $50,000. Subsequently, the court
granted the motion of Tolotti and Horton for judgment notwithstanding the jury verdict. By
this appeal the Eikelbergers request this court to set aside the judgment n.o.v. and reinstate
the jury verdict.
Litigation between the Eikelbergers and Tolotti, and others peripherally involved, has been
carried on for years and may appropriately be characterized as oppressive. There have been
fourteen separate district court actions, and nine appeals to this court, excluding the instant
matter. Indeed, on one occasion we described the litigation as acrimonious. Eikelberger v.
Lonergan Corp, 92 Nev. 284, 549 P.2d 748 (1976).
The case at hand differs from the others since it concerns the rather elusive concept of
conspiracy as applied to a civil action for damages. In Carlton v. Manuel, 64 Nev. 570, 187
P.2d 558 (1947), we recognized the principle that what one may lawfully do, many may do in
combination. That ruling would lead one to conclude that an alleged conspiracy is not
actionable unless the combination results in the perpetration of an unlawful act, or some
injurious act by unlawful means.
The principle acknowledged in Carlton appears to have been expanded by the more recent
opinions of Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963); and Hotel Riviera,
Inc. v. Short, 80 Nev. 505, 396 P.2d 855 (1964). We there recognized that there may be a
conspiracy to commit an act that would not be unlawful if done by an individual actor. The
Short opinions approved two propositions. First, that an act lawful when done, may become
wrongful when done by many acting in concert taking on the form of a conspiracy which may
be prohibited if the result be hurtful to the individual against whom the concerted action is
taken. Second, that when an act done by an individual is not actionable because justified by
his rights, such act becomes actionable when done in pursuance of a combination of
persons actuated by malicious motives, and not having the same justification as the
individual.
done by an individual is not actionable because justified by his rights, such act becomes
actionable when done in pursuance of a combination of persons actuated by malicious
motives, and not having the same justification as the individual.
[Headnote 1]
When the district court entered judgment n.o.v. it stated, among other things, that it is
necessary for the act in furtherance of the conspiracy to constitute an actionable tort. That
statement is in line with the principle acknowledged in Carlton. Indeed, the instruction to the
jury embodied that concept.
1
The Eikelbergers did not object to the giving of that
instruction, nor did they request an instruction encompassing the expanded concept of
conspiratorial civil liability as declared in the Short cases. Consequently, on this appeal we
must review the evidence regarding conspiracy with the Carlton doctrine in mind since that is
the command of NRCP 51 and case law.
2
We acknowledge, of course, that in reviewing the
propriety of a judgment n.o.v. we must read the record in a light most favorable to the jury
verdict. Dudley v. Prima, 84 Nev. 549, 445 P.2d 31 (1968); Bliss v. DePrang, 81 Nev. 599,
407 P.2d 726 (1965).
1. The extensive litigation between the Eikelbergers and the Tolottis stems from a
sublease agreement between them upon the Y-Rancho Trailer Park property in Sparks,
Nevada, and an agreement authorizing the Eikelbergers to operate and manage the park.
3

____________________

1
A civil conspiracy is a combination of two or more persons by some concerted action to accomplish some
criminal or unlawful purpose or to accomplish some purpose not in itself criminal or unlawful by criminal or
unlawful means. The conspiratorial agreement need not be in any particular form and need not extend to all the
details or the conspiratorial scheme so long as its primary purpose is to cause injury to another.
The gist of a civil conspiracy is not the unlawful agreement but the damage resulting from that agreement or
its execution. The cause of action is not created by the conspiracy but by the wrongful acts done by the
defendants to the injury of the plaintiff.

2
NRCP 51: . . . No party may assign as error the giving or the failure to give an instruction unless he objects
thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the
grounds of his objection.
Cases: Gallues v. Harrah's Club, 87 Nev. 624, 491 P.2d 1276 (1971); Houlden v. Discount Motors, Inc., 85
Nev. 125, 451 P.2d 366 (1969); Fireman's Fund Ins. v. Shawcross, 84 Nev. 446, 442 P.2d 907 (1968); Wagon
Wheel v. Mavrogan, 78 Nev. 126, 369 P.2d 688 (1962); Lathrop v. Smith, 71 Nev. 274, 288 P.2d 212 (1955).

3
Eikelberger v. Tolotti, 90 Nev. 463, 530 P.2d 104 (1974), an accounting suit; Eikelberger v. Tolotti, 90
Nev. 465, 530 P.2d 105 (1974), distribution of condemnation award; Tolotti v. Eikelberger, 90 Nev. 466, The
present charge of civil conspiracy 530 P.2d 106 (1974),
The present charge of civil conspiracy against Tolotti and Horton arises mainly from the
manner in which they handled the claims of certain judgment creditors of the Eikelbergers.
The Eikelbergers had purchased house trailers from Guerdon Industries, Inc., and Lonergan
Corp. and had defaulted in payments due those corporations. As a consequence thereof,
Guerdon Industries, in February 1967, obtained a judgment against the Eikelbergers for
$22,640.11 plus accrued interest and costs. In April 1968, Lonergan Corp. secured a
judgment against the Eikelbergers for $15,970.43, plus accrued interest, costs and attorneys'
fees. Attorney Horton represented the creditors in prosecuting their claims to judgment. In
October 1969, Tolotti retained Horton to represent him in his litigation with the Eikelbergers.
In February 1970, Horton, on behalf of Guerdon Industries and Lonergan, entered into a
written agreement with Eikelberger regarding the Guerdon and Lonergan judgments. Pursuant
thereto, Eikelberger paid a lump sum of $10,000, assigned funds from the operation of the
laundry room, and assigned his rights to all reserve accounts at Security National Bank.
Eikelberger also agreed to pay $500 per month until the judgments were paid.
The Guerdon judgment was assigned to the law firm of Stewart & Horton in November
1970.
In 1971, the Eikelbergers defaulted on seven of their monthly payments. This prompted
Horton to schedule an execution sale. The sale did not occur since Eikelberger agreed to pay
$4,000 in a lump sum and, by written stipulation with Horton, to reinstate the February 1970
agreement for monthly payments of $500.
In February 1972, the Lonergan judgment was assigned to Tolotti for a sum equal to 50
percent of the amount then due on the judgment.
4

In June and July 1972, the Eikelbergers again defaulted on the monthly payments. Horton
and Tolotti instituted execution proceedings, and a sale was scheduled for August 9, 1972.
Once again, the sale did not take place since Eikelberger agreed to pay a lump sum of $3,000
and renew the monthly payments of $500.
____________________
second accounting suit and laundry expense suit; Eikelberger v. Rogers, 92 Nev. 282, 549 P.2d 748 (1976); suit
by Eikelberger against Tolotti's accountant; Eikelberger v. Lonergan Corp., 92 Nev. 284, 549 P.2d 748 (1976);
purchase by Tolotti of Lonergan judgment against Eikelberger; Eikelberger v. Tolotti, 94 Nev. 58, 574 P.2d 277
(1978), suit for back rent and damages.

4
The contention of the Eikelbergers that Tolotti committed a wrong when he purchased the Lonergan
judgment was found, by this court, to be without merit. Eikelberger v. Lonergan Corp., 92 Nev. 284, 549 P.2d
748 (1976).
of $500. Such monthly payments for September and October were accepted, and the Guerdon
judgment satisfied.
On November 6, 1972, the Eikelbergers were instructed to tender no further monthly
payments since Tolotti wished to preserve the size of his judgment for partial use in lieu of a
bond on appeal in one of his lawsuits with the Eikelbergers. Notwithstanding such
instruction, the Eikelbergers tendered monthly payments for November and December 1972
and the first four months of 1973. These payments were rejected. Meanwhile, in January
1973, the court ruled that the judgment purchased by Tolotti could not be used in lieu of a
bond on appeal in another law suit with the Eikelbergers. Consequently, Horton and Tolotti
again instituted execution proceedings. The Eikelbergers moved to stay the sale alleging
complete compliance with the reinstated agreement for monthly payments of $500.
In opposing the motion to stay, Horton, by affidavit, alleged the nonpayment of the
September and October 1972 installments. This statement was false. The court ordered a
hearing on the merits of the motion without granting or denying the stay. Horton and Tolotti,
nevertheless, proceeded with execution. The sale later was set aside upon the posting of
$10,000 bond by the Eikelbergers.
The Eikelbergers contend that Horton and Tolotti, or either of them, committed six
separate unlawful acts in furtherance of their conspiracy to damage the business interest of
the Eikelbergers. We turn to examine this contention with regard to each asserted unlawful
act.
2.
(a) SCR 169 provides that a member of the state bar shall not represent conflicting
interests, except with the consent of all parties concerned. The Eikelbergers contend that the
simultaneous representation by Attorney Horton of Guerdon Industries, Lonergan Corp. and
Tolotti violates the mentioned rule, and somehow caused the Eikelbergers damage.
[Headnote 2]
It is clear from the record that Horton had the consent of Guerdon, Lonergan and Tolotti to
simultaneous representation, and that each was fully informed. Those three are the parties
concerned within the contemplation of the rule. None has complained. The Eikelbergers,
who never have been represented by Horton, are not concerned parties. Their contention that
SCR 169 was violated is without substance.
[Headnotes 3, 4]
(b) SCR 183 prohibits a member of the state bar from purchasing or otherwise acquiring,
directly or indirectly, any interest in the subject matter of the litigation which he is
conducting.
conducting. The Eikelbergers assert that Horton, in purchasing the Guerdon judgment,
violated this rule. The contention is specious. The litigation between Guerdon Industries and
the Eikelbergers ended upon rendition of final judgment therein. The later purchase of that
judgment by the firm of Stewart & Horton did not violate SCR 183. Indeed, an attorney may
purchase his clients' property if he does so openly, fairly and honestly. McFail v. Braden, 166
N.E.2d 46 (Ill. 1960). The possibility of an adverse effect upon the exercise of free judgment
by a lawyer on behalf of his client during litigation is the evil which SCR 183 seeks to avoid.
Consequently, the rule appropriately has application to those dealings between an attorney
and his client which would place the interests of the attorney in conflict with those of his
client. McFail v. Braden, supra; In re Brown, 559 P.2d 884 (Ore. 1976), rehearing denied, 561
P.2d 1030 (Ore. 1977); Eschwig v. State Bar, 459 P.2d 904 (Cal. 1969); cf. In re Kellar, 88
Nev. 63, 493 P.2d 1039 (1972). The purchase of Guerdon's interest in the litigation after it
had been reduced to final judgment would not create such conflict. In any event, the purchase
of that judgment did not damage the Eikelbergers. They were obliged to pay that judgment
regardless of the identity of the owner thereof.
[Headnotes 5, 6]
(c) In an effort to justify a scheduled execution sale, Attorney Horton submitted an
affidavit which was partially false. This is unethical conduct expressly forbidden by SCR
198(3)(7). Such conduct, however, does not create civil liability. It is uniformly held that the
giving of false testimony is not civilly actionable. Radue v. Dill, 246 N.W.2d 507 (Wis.
1976); Platts, Inc. v. Platts, 438 P.2d 867 (Wash. 1968); Ginsburg v. Halpern, 118 A.2d 201
(Pa. 1955); Kantor v. Kessler, 40 A.2d 607 (N.J. 1945). A claim of conspiracy does not avoid
the doctrine that there is no civil action for giving false evidence. Kantor v. Kessler, supra;
Ginsburg v. Halpern, supra. This doctrine rests upon a policy to encourage witnesses to speak
freely, and without fear of civil liability. It is important to the administration of justice that
full disclosure by a witness be not hampered by a possible future damage suit. Consequently,
perjury is an offense against the public only, and subject only to the criminal law. Thus, we
are compelled to conclude that the Eikelbergers may not claim damages for the unethical
conduct of Horton in submitting a partially false affidavit.
(d) It is contended that certain accountings prepared by Earl Rogers, a certified public
accountant employed by the Tolottis, to be used in litigation between the Eikelbergers and the
Tolottis were false and inaccurate, thereby breathing life into the Eikelbergers' present claim
for relief based upon conspiracy.
the Eikelbergers' present claim for relief based upon conspiracy.
[Headnote 7]
The Eikelbergers did not employ Rogers. Neither did they rely upon his accounting
statements. Because of this, we already have ruled that there is no legal basis for damages
claimed to have been incurred by the Eikelbergers. Eikelberger v. Rogers, 92 Nev. 282, 549
P.2d 748 (1976). To now contend that Horton and Tolotti conspired to have Rogers prepare
such accountings does not aid the Eikelbergers since we already have ruled that they did not
incur damage by reason of those accountings.
[Headnote 8]
(e) In August 1972, Horton and Tolotti orally agreed with the Eikelbergers to reinstate the
February 5, 1970, agreement, thus allowing the Eikelbergers to pay their judgment creditors
at the rate of $500 per month. In spite of such oral agreement, Horton and Tolotti,
commencing in November 1972, refused to accept monthly payments thereafter tendered by
the Eikelbergers. [As of November 1972, the Guerdon judgment which had been assigned to
the law firm of Stewart & Horton was fully satisfiedthe Lonergan judgment, which Tolotti
had purchased, had not been paid fully, the balance then remaining due being approximately
$9,000.]
It is asserted that the refusal by Horton and Tolotti to accept monthly payments was done
to create a false appearance that the Eikelbergers were in default, thereby permitting Tolotti to
levy execution to satisfy the balance remaining due on the judgment purchased from
Lonergan.
Although the record may be read inferentially to support such assertion, we do not
perceive damage to the Eikelbergers. The execution sale did occur, but was later set aside
upon motion of the Eikelbergers who were required to deposit $10,000 with the court pending
a hearing to ascertain the amount remaining due on the judgment, and to determine whether
the liquidation agreement should be reinstated.
The liquidation agreement was not reinstated. The court found that $8,936.84 remained
due on the judgment and directed that sum paid to Tolotti from the cash deposit and the
balance released to the Eikelbergers. That decision was appealed to this court and affirmed.
Eikelberger v. Lonergan Corp., 92 Nev. 284, 549 P.2d 748 (1976). That opinion is dispositive
of this contention.
(f) The last contention is that by proceeding with the execution sale (which later was set
aside as hereinabove mentioned) Horton and Tolotti abused legal process.
Horton and Tolotti abused legal process. The claim for relief for abuse of legal process was
dismissed by the district court, and has not been challenged. Consequently, we shall not
consider this contention.
Affirmed.
I respectfully dissent.
My brethen first decide that the lower court incorrectly instructed the jury, to the
appellant's disadvantage. Despite this error, appellants prevailed. The district court entered a
judgment n.o.v. On appeal, instead of determining whether the evidence sustains the jury's
verdict, when correct legal principles are applied, my brethren have elected to review the
record as though the district court's admittedly incorrect legal instructions were correct.
I am unclear just how NRCP 51, which requires an objection if an unsuccessful litigant is
to complain of a jury verdict, may be applied to preclude a successful litigant from
complaining that a judgment n.o.v. is unwarranted.
____________
96 Nev. 533, 533 (1980) North Nevada Co. v. Menicucci
NORTH NEVADA COMPANY, INC., a Delaware Corporation Qualified to do Business in
the State of Nevada, Appellant, v. BRUNO MENICUCCI, MAYOR OF THE CITY OF
RENO, CLYDE BIGLIERI, ED SPOON, ED OAKS, BILL WALLACE, WILLIAM
GRANATA, ROBERT K. BEAMAN, Respondents.
No. 10920
June 4, 1980 611 P.2d 1068
Appeal from an order denying injunctive relief and mandamus. Second Judicial District
Court, Washoe County; John E. Gabrielli, Judge.
Plaintiff, the proprietor of an adult bookstore in the City of Reno, appealed from a
judgment of the district court denying injunctive relief and refusing to compel the city
counsel to grant plaintiff a business license. The Supreme Court, Batjer, J., held that
provisions of Reno's business licensing ordinance are facially invalid since they permit
licensing authorities to exercise unlimited discretion in determining whether or not to
grant business licenses to those engaged in communicative activities protected by the
First Amendment.
exercise unlimited discretion in determining whether or not to grant business licenses to those
engaged in communicative activities protected by the First Amendment.
Alan B. Andrews, Las Vegas; Keith Lee, Reno; Fleishamn, Brown, Weston & Rohde,
Beverly Hills, California, for Appellant.
Louis S. Test, City Attorney, Charles L. Eddleman, Assistant City Attorney, Reno, for
Respondents.
1. Licenses.
Provisions of Reno's business licensing ordinance are facially invalid since they permit licensing
authorities to exercise unlimited discretion in determining whether or not to grant business licenses to those
engaged in communicative activities protected by the First Amendment. U.S.C.A.Const. Amend. 1.
Whether or not a statute is overbroad depends upon the extent to which it lends itself to improper
application to protected conduct; the statute need not explicitly refer to First Amendment activities.
To be constitutionally acceptable, an ordinance authorizing officials to license activity that is
presumptively protected by the First Amendment must establish precise, narrowly-drawn standards to guide
the officials. U.S.C.A.Const. Amend. 1.
Because appellant's adult bookstore was operating legally, albeit without a license, after June 17, 1977,
ordinance which restricts the location of adult-oriented businesses, but which did not become effective until
July 1, 1977, could not be applied retroactively to close appellant's bookstore at its present location.
OPINION
North Nevada Company appeals from the district court's denial of injunctive relief and
refusal to compel the Reno City Council to grant a business license to North Nevada Co. The
district judge found Reno's general business license provisions, R.M.C. 4.01.010 et seq., to
be constitutional and dissolved a temporary restraining order against city officials. We reverse
and remand.
On May 23, 1977, North Nevada Co. applied for a business license to operate an adult
book store, novelty shop, and movie arcade in Reno.
arcade in Reno. Fire code violations were discovered on May 24 and June 7. North Nevada
Co., dba Virginia Street Book Store opened for business without a license on June 1, 1977.
North Nevada Co. contended then, and now, that Reno's licensing ordinance is an
unconstitutional prior restraint of First Amendment freedoms that may be ignored with
impunity.
On June 17, 1977, all fire code violations were cured. However, the license inspector
denied North Nevada Co.'s license application because a new regulated use ordinance was
being considered by the city council. The ordinance, R.M.C. 11.12.145, became effective
on July 1, 1977.
1

The city council affirmed the denial on July 25, 1977. North Nevada Co. filed a complaint
seeking a declaration that the general business license provisions of the Reno Municipal Code
and the regulated use ordinance are unconstitutional. It also requested an injunction
restraining Reno from prosecuting North Nevada Co. for operating without a license or, in the
alternative, a writ of mandamus compelling the council to issue a business license to North
Nevada Co. The district judge denied the relief sought.
Reno's municipal code provides that it is unlawful for any entity to carry on any business
in Reno without first procuring a license. R.M.C. 4.01.020. All applications for the issuance
of a business license are referred to the license inspector who has the power in the first
instance to determine whether or not the license shall issue. R.M.C. 4.01.170. If the
inspector denies the application, the applicant may appeal to the city council. The council
may deny issuance of a license on the basis of any of the grounds enumerated in 4.01.310.
R.M.C. 4.01.310 provides:
Good cause for [denial] . . . shall include but is not limited to: (1) The existence of
unsanitary conditions, noise, disturbances, or any other conditions at, near or in the
premises which cause or tend to create a public nuisance or which injuriously affects
the public health, safety or welfare; (2) The commission of, or permitting or causing the
commission of, any act in the operation of the business which act is made unlawful or is
prohibited by any ordinance, rule or law of the city, state or federal governments; and
(3) Fraudulent practices and misrepresentation in the operation of the business, or
concealment or misrepresentation in procuring the license.
____________________

1
R.M.C. 11.12.145 prevents the establishment of regulated uses within 1,000 feet of any other regulated
use and within 500 feet of residential areas. Regulated uses include, inter alia, adult book stores, massage
parlors, and pawnshops.
in the operation of the business, or concealment or misrepresentation in procuring the
license.
[Headnote 1]
North Nevada Co. argues that R.M.C. 4.01.170 and 4.01.310 are facially invalid
because they permit licensing authorities to exercise unlimited discretion in determining
whether or not to grant business licenses to those engaged in communicative activities
protected by the First Amendment.
2
We agree.
[Headnotes 2, 3]
Whether or not a statute is overbroad depends upon the extent to which it lends itself to
improper application to protected conduct. The statute need not explicitly refer to First
Amendment activities. People v. Fogelson, 577 P.2d 677 (Cal. 1978) (construing ordinance
prohibiting solicitation on city property). To be constitutionally acceptable, an ordinance
authorizing officials to license activity that is presumptively protected by the First
Amendment must establish precise, narrowly-drawn standards to guide the officials. Talk of
the Town v. City of Las Vegas, 92 Nev. 466, 553 P.2d 959 (1976). See also Shuttlesworth v.
Birmingham, 394 U.S. 147 (1969).
R.M.C. 4.01.170 and 4.01.310 are so broad that they vest officials with the power to
deny a license based solely on the content of the books to be disseminated. The criteria are
vague, subjective, and non-exclusive. Consequently, the licensing provisions create an
unconstitutional prior restraint and are invalid.
3

R.M.C. 11.12.145 is a valid means of restricting the location of adult-oriented
businesses. See Young v. American Mini Theatres, 427 U.S. 50 (1976). However, R.M.C.
11.12.145 was not effective until July 1, 1977, and applies only to regulated uses established
thereafter. R.M.C. 11.12.145(c)(e).
[Headnote 4]
In this case, North Nevada Co. had fully complied with the fire and building standards by
June 17, 1977. It was entitled to a license on that date. Because the book store was operating
legally, albeit without a license, after June 17, 1977, R.M.C. 11.12.145 cannot be applied
retroactively to close it at its present location.
____________________

2
Congress shall make no law . . . abridging the freedom of speech, or of the press. . . The First Amendment
is made applicable to the states by the due process clause of the Fourteenth Amendment. Edwards v. South
Carolina, 372 U.S. 229 (1963).

3
To pass constitutional requirements, the licensing ordinance should set objective standards to guide
licensing authorities, such as requiring compliance with fire, building, safety, health, and zoning regulations.
The judgment of the lower court is reversed and the case is remanded for further
proceedings consistent with this opinion.
____________
96 Nev. 537, 537 (1980) Anderson v. Felten
MARTIN ANDERSON, Appellant, v. EUGENE FELTEN, HAROLD
FELTEN and NORMA C. FELTEN, Respondents.
No. 11087
June 4, 1980 612 P.2d 216
Appeal from judgment; First Judicial District Court, Douglas County, Stanley A. Smart,
Judge.
Suit was brought seeking a declaration that plaintiff owns a 50-foot easement over
defendants' property, and seeking to enjoin defendants from obstructing such easement. The
district court found that an easement had not been acquired, and plaintiff appealed. The
Supreme Court, Thompson, J., held that: (1) plaintiff's predecessor in interest had not
acquired an easement by prescription over defendants' property, since use of the subject road
by plaintiff's predecessor was infrequent and sporadic, and since, moreover, he testified that
he did not have a right-of-way but thought that he had a right to use the road because it had
been there for a long time, and (2) road in question was not a public road, where there was no
evidence showing that defendants clearly and unequivocally intended to devote the road to
public use.
Affirmed.
Batjer and Gunderson, JJ., dissented.
Guild, Hagen & Clark, Ltd., and Thomas J. Hall, of Reno, for Appellant.
Hale, Lane, Peek, Dennison & Howard, and Gregg W. Zive, of Reno, for Respondents.
1. Easements.
An easement by prescription may be created through five years' adverse, continuous,
open and peaceable use.
2. Adverse Possession.
For use to be adverse, it must be exclusive, that is, held under a claim of title exclusive
of any other right, as one's own.
3. Easements.
Although one may acquire a prescriptive easement even though the easement also was
used by the public, such private right must rest on the actual use by that individual and
his predecessors and not on their use as members of the general public.
4. Easements.
Plaintiff's predecessor in interest had not acquired an easement by prescription over
defendants' property, since use of the subject road by plaintiff's predecessor was
infrequent and sporadic, and since, moreover, he testified that he did not have a
right-of-way but thought that he had a right to use the road because it had been there for a
long time.
5. Dedication.
Road in question was not a public road, where there was no evidence showing that
defendants clearly and unequivocally intended to devote the road to public use.
6. Dedication.
When a road over unenclosed, uncultivated land is used occasionally by skiers, hikers
and hunters, such use ordinarily will be attributed to a license on the part of the owner,
rather than to an intention to dedicate.
OPINION
This action was commenced by Anderson seeking a court declaration that he is the owner
of a 50-foot easement over the property of the Feltens, and that the Feltens be enjoined from
obstructing such easement. It was his contention that the easement had been acquired by
prescription and by implied public dedication. The district court found that an easement had
not been acquired. This appeal followed.
This litigation concerns an area in Douglas County, Nevada, known as Mott Canyon.
The Feltens own two contiguous parcels depicted on the map as Felten A and B. Parcel A
was purchased from Raymond Fillmore in October 1958. Parcel B was purchased in 1970
from the Hansons and Muriel Elges. Anderson owns two noncontiguous parcels in the
Canyon. Anderson A was purchased in 1971 from August Kettenberg. Anderson B was
purchased from Kettenberg in 1976. Kettenberg had purchased the larger parcel, A, in 1948,
and the smaller parcel, B, in 1956 or 1958.
The claimed right of way is an unpaved, diagonal path through the sagebrush,
approximately one car wide. The path cuts across the southeast corner of Felten B and
continues in a southwesterly direction to Anderson B. Thereafter it continues westerly across
other land to Anderson A.
When Kettenberg purchased the larger parcel, Anderson A, the diagonal path was the only
entrance into the Canyon, and {See Map in Book)
(See Map in Book)
was used mainly by hunters and Christmas tree foragers. It also was used by two lumber
companies for access to logging operations on Anderson A. In recent years the road has been
used sporadically as a pickup point for skiers who had skied down the back side of Heavenly.
Kettenberg's personal use of the road was very limited. He was never granted permission to
use the road.
In 1963 and 1973, two roads adjacent to Anderson B (Felten RoadRuppel Road) and
leading off the new Kingsbury Grade were paved. Thereafter Kettenberg used those roads to
gain access to his property. The record does not reveal that Anderson ever used the diagonal
path over which he claims an easement.
Mr. Felten moved onto Felten B in 1974 and has never expressly granted permission to
anyone to use the diagonal path.
[Headnotes 1, 2]
1. An easement by prescription may be created through five years adverse, continuous,
open and peaceable use. Jackson v. Hicks, 95 Nev. 826, 604 P.2d 105 (1979). For a use to be
adverse it must be exclusive, that is, held under a claim of title exclusive of any other
right, as one's own.
adverse it must be exclusive, that is, held under a claim of title exclusive of any other right, as
one's own. Howard v. Wright, 38 Nev. 25, 143 P. 1184 (1914).
[Headnotes 3, 4]
There is no evidence that Anderson, himself, used the road after his purchase of the
property. If an easement by prescription was created, it must have been by his predecessor,
Kettenberg. His use thereof was infrequent and sporadic. Moreover, he testified that he did
not have a right of way, but thought that he had a right to use the road because it had been
there for a long time. He also stated that before he purchased land in Mott Canyon, the public
had used the road on hunting and hiking trips. Although one may acquire a prescriptive
easement even though the easement also is used by the public, such private right must rest on
the actual use by that individual and his predecessors and not on their use as members of the
general public. Stix v. La Rue, 78 Nev. 9, 368 P.2d 167 (1962); O'Banion v. Borba, 195 P.2d
10 (Cal. 1948). It was permissible for the trial court to find that the predecessors of Anderson
had not acquired an easement by prescription.
[Headnotes 5, 6]
2. It also was permissible for the trial court to find that the road in question was not a
public road. No evidence was received showing that the Feltens clearly and unequivocally
intended to devote the road to public use. This was the burden of proof placed upon
Anderson. Mid-County Cemetery District v. Thomason, 518 P.2d 174 (Ore. 1974); City of
Northglenn v. City of Thornton, 569 P.2d 319 (Colo. 1977). It was not met. When a road over
uninclosed, uncultivated land is used occasionally by skiers, hikers and hunters, such use
ordinarily will be attributed to a license on the part of the owner, rather than to an intention to
dedicate. Hamerly v. Denton, 359 P.2d 121 (Alas. 1961).
Affirmed.
Mowbray, C. J., and Manoukian, J., concur.
Batjer, J., with whom Gunderson, J., agrees, dissenting:
I respectfully dissent from the holding of the majority. The maps and photographs in
evidence as well as the testimony of August Kettenberg indicate at least the existence of an
unimproved, unpaved, diagonal path through the sagebrush approximately one car wide
leading from the Foothill Road to both parcels of appellant's property. Kettenberg's
testimony indicates some use of the road by the general public for many years.
years. As the Colorado Supreme Court said in Brown v. Jolley, 387 P.2d 278 (Colo. 1963),
A road may be a highway though it reaches but one property owner. Cf. Anderson v.
Richards, 96 Nev. 318, 608 P.2d 1096 (1980).
A slight deviation of the road over the years does not negate the claim that the road had
been brought into existence. Central Pacific Railway v. Alameda Co., 284 U.S. 463 (1932).
I agree that appellant is not entitled to enlarge the easement to a width of 50 feet over the
property of the Feltens. Keller v. Martini, 86 Nev. 492, 471 P.2d 207 (1970); see Cox v.
Glenbrook Co., 78 Nev. 254, 262, 371 P.2d 647 (1962). Nevertheless, he should be entitled to
the original trail or a reasonable alternate for ingress to and egress from his land.
____________
96 Nev. 541, 541 (1980) Renshaw v. Renshaw
JOHN C. RENSHAW, Appellant, v. DIANA D.
RENSHAW, Respondent.
No. 11620
June 4, 1980 611 P.2d 1070
Appeal from judgment, Second Judicial District Court, Washoe County; Llewellyn A.
Young, Judge.
Father commenced proceedings to modify divorce decree for change of custody and for
award of child support to which mother responded and filed action in breach of contract to
recover amount father deducted from his support payments. The district court entered
judgment for mother, and father appealed. The Supreme Court held that mother did not have
legal obligation to support 16-year-old daughter, who moved out of mother's abode and
moved in with father, where parties' property settlement agreement, which was prepared by
father, an experienced attorney, which awarded custody of parties' children to mother, and
which provided that father pay child support to mother for certain number of years, did not
provide for modification and made no provision for any change of circumstances, and there
was no authority that allowed father to peremptorily cease paying mother money called for in
agreement.
Affirmed.
Vargas, Bartlett & Dixon, and Albert F. Pagni, Reno, for Appellant.
Cooke, Roberts & Reese, Reno, for Respondent.
1. Divorce.
Mother did not have legal obligation to support 16-year-old daughter, who moved out of mother's abode
and moved in with father, where parties' property settlement agreement, which was prepared by father, an
experienced attorney, which awarded custody of parties' children to mother, and which provided that father
pay child support to mother for certain number of years, did not provide for modification and made no
provision for any change of circumstances, and there was no authority that allowed father to peremptorily
cease paying mother money called for in agreement.
It was clear from parties' property settlement agreement that parties intended it to be complete and
integrated agreement, and thus it was court's responsibility to honor that intention.
3. Contracts.
When document is clear and unambiguous on its face, court must construe it from language therein.
OPINION
Per Curiam:
Diana and John Renshaw were married in 1958 and had three children during their
marriage. The parties divorced April 27, 1977. Pursuant to the divorce, by written agreement,
custody of the children was awarded to Diana and the agreement provided that John pay
alimony and child support to Diana in one fixed sum per month for specified years until
March 15, 1982, when the support payments would end.
The terms of the contract did not distinguish money given for child support from that for
alimony. This was admittedly done in order that John obtain certain tax benefits. See
Commissioner v. Lester, 366 U.S. 299 (1961). The property settlement agreement further
provided for payments to be decreased by fifty percent (50%) upon the death of the wife and
to cease upon the death of the husband. A paragraph of the agreement recites that this was an
integrated agreement and that none of the provisions pertaining to support could be modified
by any court or in any manner whatsoever other than by the subsequent written agreement of
the parties.
A few months after the divorce and signing of the agreement, one of the children, Leslie,
who was then sixteen years old, moved in with her father. John reduced his payments to
Diana by twenty-five percent (25%) on the premise that Diana had a duty to support Leslie
although she was no longer living with her mother. John commenced proceedings to modify
the decree for change of custody and for award of child support to which Diana responded
and filed a separate action in breach of contract to recover the amount John deducted
from his support payments.
decree for change of custody and for award of child support to which Diana responded and
filed a separate action in breach of contract to recover the amount John deducted from his
support payments. Ultimately the proceedings continued solely on the breach of contract
action and, after trial, Diana was awarded the back payments of $1,762.50 which John had
deducted for Leslie's support, and $1,000 for attorney fees. John appeals therefrom.
The property settlement agreement was neither incorporated in nor merged in the judgment
and decree of the trial court. Therefore, this is clearly a breach of contract action. See Paine v.
Paine, 71 Nev. 262, 287 P.2d 716 (1955).
[Headnotes 1-3]
John's contention that Diana has a legal obligation to support Leslie although she moved
out of her mother's abode is without foundation.
It is clear from the documentthe property settlement agreementthat the parties
intended it to be a complete and integrated agreement and, thus, it is the court's responsibility
to honor that intention. See Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978). When the
document is clear and unambiguous on its face, the court must construe it from the language
therein. See Mohr Park Manor, Inc. v. Mohr, 83 Nev. 107, 424 P.2d 101 (1967); Club v.
Investment Co., 64 Nev. 312, 182 P.2d 1011 (1947); Rankin v. New England M. Co., 4 Nev.
78 (1868).
The contract which was prepared by John, an experienced attorney, does not provide for
modification. It makes no provision for any change of circumstances nor is there authority
that allows him to peremptorily cease paying Diana the money called for in the agreement.
We affirm the judgment and assess interest at the rate of twelve percent (12%) per annum
from the date of its entry, plus an additional $1,500 attorneys' fees on appeal, plus costs.
NRAP 38(b).
Mowbray, C. J., Gunderson and Batjer, JJ., and Zenoff, Sr. J.,
1
and Goldman, D. J.,
2
concur.
____________________

1
Honorable Gordon Thompson, who voluntarily disqualified himself in this case. Nev. Const. art. 6, 19; SCR
10.

2
Governor, pursuant to art. 6, 4, of the Constitution, designated Judge Paul S. Goldman of the Eighth Judicial
____________
96 Nev. 544, 544 (1980) Kussman v. District Court
KENNETH B. KUSSMAN, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the COUNTY OF CLARK, and
the HONORABLE CARL J. CHRISTENSEN, DISTRICT JUDGE, DEPARTMENT
No. VII, Respondents.
No. 12347
June 18, 1980 612 P.2d 679
Petitioner who was indicted for attempted escape and other crimes, after unsuccessful
endeavor seeking writ of habeas corpus, filed original petition for writ of mandamus to
compel district court to release him from custody on ground that insufficient evidence was
produced before grand jury to warrant indictment. The Supreme Court, Thompson, J., held
that court would elect its discretion against entertaining petition for writ of mandamus.
Petition dismissed.
Gunderson and Batjer, JJ., dissented.
Jack J. Pursell, Las Vegas, for Petitioner.
Gregory C. Diamond, Deputy District Attorney, Clark County, for Respondents.
1. Mandamus.
Mandamus is an extraordinary remedy and decision as to whether an application for writ of mandate will
be entertained lies within discretion of court. NRS 34.160.
2. Mandamus.
Although Supreme Court may have constitutional power to review probable cause pretrial factual
determination through a proceeding in mandamus, court is not compelled to exercise that power. NRS
34.160.
3. Mandamus.
Court would exercise its discretion against entertaining petition for writ of mandamus to compel district
court to release petitioner from custody on ground that there was insufficient evidence produced before
grand jury to warrant indictment. NRS 34.160.
OPINION
A grand jury indicted Kussman for attempted escape with use of a deadly weapon,
extortion with use of a deadly weapon {three counts), and first degree kidnapping with use
of a deadly weapon {three counts).
(three counts), and first degree kidnapping with use of a deadly weapon (three counts).
Contending that insufficient evidence was produced before the grand jury to warrant
indictment, he filed a petition with the district court for a writ of habeas corpus. He was
unsuccessful in that endeavor, and now has filed with this court an original petition for a writ
of mandamus to compel the district court to release him from custody. For reasons hereafter
expressed we dismiss his petition.
In 1979 the legislature removed the jurisdiction of this court to entertain an appeal from an
order denying a pretrial petition for a writ of habeas corpus based on an alleged want of
probable cause. Stats. Nev. 1979, ch. 216; NRS 34.380. And, in Gary v. Sheriff, 96 Nev. 78,
605 P.2d 212 (1980) we ruled that it was constitutionally permissible for the legislature to so
preclude appellate review. Neither the statutory change nor our opinion in Gary concerned
the original jurisdiction of this court to issue a writ of mandamus when warranted, nor do we
perceive any effort to restrict our power to do so.
[Headnote 1]
Mandamus is an extraordinary remedy. The decision as to whether an application for a
writ of mandate will be entertained lies within the discretion of the court. State ex rel. List v.
County of Douglas, 90 Nev. 272, 524 P.2d 1271 (1974). Indeed, statute declares that the writ
may be issued by the supreme court. . . . NRS 34.160.
A guide to the exercise of our discretion may be found in Southwest Gas Corp. v. Public
Serv. Comm'n, 92 Nev. 48, 546 P.2d 219 (1976) wherein we quoted with approval the
following:
Thus, as a general proposition, the rule has been laid down that the conferring of
original jurisdiction in mandamus upon appellate courts does not contemplate that such
courts will take jurisdiction of all mandamus cases which parties may think best to
bring before them, but that such original jurisdiction is conferred so that such courts of
the highest authority in the state shall have the power to protect the rights, interests, and
franchises of the state, and the rights and interests of the whole people, to enforce the
performance of high official duties affecting the public at large, . . . (Emphasis in
original.) Id. at 57, 546 P.2d at 225.
[Headnote 2]
Although we may have the constitutional power to review a probable cause pretrial factual
determination through a proceeding in mandamus, we are not compelled to exercise that
power.
power. The legislature, by the aforementioned 1979 amendment, has expressed its
disapproval of our pretrial review of a probable cause determination denying habeas relief.
And, as noted in Gary, legislative history discloses a purpose to eliminate frivolous appeals
and to prevent the concomitant delay in bringing those cases on for trial. To allow the
identical issue, probable cause, to be the subject of review by this Court through an original
proceeding in mandamus would frustrate the legislative purpose.
The California Supreme Court when faced with a similar question, i.e., whether mandate
should be available to secure a review when the Legislature has determined there should be
no appeal, People v. Superior Court of Marin County, 446 P.2d 138, 142 (Cal. 1968),
concluded that in order to give meaningful effect to the legislative policy, it should not. Id. at
145. The court noted that, in the context presented the intent was for the lower court to be the
ultimate tribunal, and that error in the exercise of its jurisdiction was not to be reviewed. Id.
at 143.
[Headnote 3]
Moreover, and wholly apart from the expression of legislative will, judicial economy and
sound judicial administration generally will militate against the utilization of mandamus to
review pretrial probable cause determinations. Accordingly, we elect to exercise our
discretion against entertaining the instant petition for a writ of mandamus.
Petition dismissed.
Mowbray, C. J., and Manoukian, J., concur.
Gunderson, J., with whom Batjer, J., agrees, dissenting:
The threshold question is whether mandamus affords a proper remedy for one in the
position of petitioner. Justice Batjer and I feel it does.
At its last session, our Legislature amended NRS 34.380 to preclude appeals from most
habeas corpus denials. See 1979 Nev. Stats. ch. 216, 1, at 312. According to this court's
decision in Gary v. Sheriff, 96 Nev. 78, 605 P.2d 212 (1980), in which we upheld the statute
against constitutional attack, Kussman therefore cannot appeal the district court's denial of his
habeas petition. Here, the State now urges that henceforth we should ignore petitions like the
instant one, because we would otherwise negate the effect said legislation was intended to
have.
In considering this contention, I note that our original jurisdiction in habeas corpus,
mandamus and prohibition does not derive from statute.
derive from statute. It is directly vested by the Nevada Constitution, Art. 6, 4. Gary v.
Sheriff, supra (Gunderson, J., concurring). Thus, any attempt by the Legislature to restrict our
jurisdiction in these matters would be highly suspect. It is a cardinal principle of statutory
interpretation that a court will first ascertain whether a construction of a statute is fairly
possible by which a constitutional question may be avoided. Ashwander v. Valley Authority,
297 U.S. 288, 348 (1936) (Brandeis, J., concurring); Crowell v. Benson, 285 U.S. 22, 62
(1932).
My review of the legislative history of the amendment of NRS 34.380 reveals that possible
impact on our original jurisdiction was never discussed. The only item in the history with any
substantial bearing on this issue is a letter to the Honorable Michael R. Griffin, a judge of the
First Judicial District, by Frank W. Daykin, the Legislative Counsel. (The letter appears as
attachment A to the Senate Judiciary Committee minutes of February 2, 1979.) In the letter,
Mr. Daykin stated:
Removal of the provision for appeal from the granting or denial of a writ of habeas
corpus by the district court . . . would essentially restore the law as it existed before
1953. So the law had stood since enacted in 1862. Under it, In the Matter of Sullivan,
65 Nev. 128 (1948), a lengthy opinion by Justice Horsey, summarized by the court at
page 154, held that there was no statutory right of appeal, the constitution conferred
none, and appeal was inconsistent with [the] basic nature of the writ. . . .
Prior to 1953,
1
although no appeal was available from an adverse habeas determination,
an unsuccessful habeas petitioner was not denied all access to this court, but instead could
prosecute an original proceeding in habeas corpus here. Ex parte Sullivan, 65 Nev. 128, 189
P.2d 338 (1948). Thus, the Daykin letter lends no support to the view that the Legislature
intended to preclude relief in this court.
Moreover, the Legislature, in repealing the former NRS 34.380(6), neither amended nor
repealed subsections (2) or (5)
2
dealing with our original habeas jurisdiction.

____________________

1
In 1953, N.C.L. 11377, the predecessor of NRS 34.380, was amended to provide for appeal from denials
of habeas petitions, 1953 Nev. Stat. ch. 205, 3(a) at 257. The recently enacted legislation repealed this section.

2
Each of the justices of the supreme court may issue writs of habeas corpus to any part of the state, on
petition by, or on behalf of any person held in actual custody, and may make such writ returnable before
himself or before the supreme court, or before any district court in the state or before any judge of the
district court, as provided in section 4 of article 6 of the constitution of the State of Nevada.
dealing with our original habeas jurisdiction. Nor did the Legislature amend NRS 34.150 et
seq. or NRS 34.320 et seq. dealing with mandamus and prohibition, respectively. The
Legislature hardly could have intended to affect our original jurisdiction and yet ignore the
above-cited provisions of our statutes, one of which immediately preceded the repealed
subsection.
Strong policy considerations also militate against our accepting the State's contention. This
court, throughout the history of Nevada as a state, has entertained pre-trial writs, see e.g.,
Eureka Bank Cases, 35 Nev. 80, 126 P. 655 (1912), except for the period after 1953 when we
held that appeal to this court constituted an adequate substitute, Shelby v. District Court, 82
Nev. 204, 414 P.2d 942 (1966) (prohibition would not lie to test sufficiency of evidence upon
which indictment was founded because appeal from denial of writ of habeas corpus provided
a plain, speedy, and adequate remedy); Ex parte Merton, 80 Nev. 435, 395 P.2d 766 (1964)
(availability of appeal from habeas denial precluded original habeas petition in Supreme
Court). The importance attached by this court to the availability of the writ is demonstrated
by the following passage in Shelby v. District Court, supra, at 207:
It is fundamentally unfair to require one to stand trial unless he is committed upon a
criminal charge with reasonable or probable cause. No one would suggest that an
accused person should be tried for a public offense if there exists no reasonable or
probable cause for trial. Our Constitution and Statute recognize this principle of
fairness and provide for its protection by the writ of habeas corpus. Nev. Const. Art. 1,
5, commands that the writ of habeas corpus shall not be suspended unless, in cases of
rebellion or invasion, the public safety may require its suspension. . . .
Considering the long tradition of the availability of extraordinary relief in this court and
the strength of our policy in regard to probable cause, we should not infer an intent on the part
of the Legislature to preclude such rights unless such intent is made manifestly clear. There
will be time enough to consider the constitutionality of any legislative attempt to confine
our original jurisdiction should legislation with a clear purpose to that effect be enacted.
____________________
When an application is made to a justice of the supreme court for a writ of habeas corpus and the
application is entertained by the justice, or the supreme court, and thereafter denied, the person making
such application has no right to submit thereafter an application to the district judge of the district
wherein such applicant is held in custody, nor to any other district judge in any other judicial district of
the state, premised upon the illegality of the same charge upon which such applicant is held in custody.
consider the constitutionality of any legislative attempt to confine our original jurisdiction
should legislation with a clear purpose to that effect be enacted.
For the foregoing reasons, Justice Batjer and I believe the Legislature did not intend, by
the repeal of the former NRS 34.380(6), to restrict this court's original jurisdiction.
3

Having concluded that extraordinary relief is available, it remains to be decided whether
mandamus is a proper form for such relief. My brother Batjer and I believe that it is. The
State's contention that the defendant, because he may go to trial and, if convicted, appeal
therefrom, has an adequate remedy
4
in the ordinary course of the law is without merit. The
personal hardship that results from being the subject of a criminal prosecution as well as the
strong public interest in avoiding the wasted time and effort in conducting a trial that should
never have taken place refute the State's contention. See Rescue Army v. Municipal Court,
171 P.2d 8 (Cal. 1946), appeal dismissed, 331 U.S. 549 (1947). We also note that this court
has recognized the availability of mandamus to compel the entry of summary judgment.
Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964). In so holding, we found that the
expense and inconvenience of a trial are sufficiently grave that the adequate-remedy
requirement was met. We need not belabor the point that, in general, the hardships suffered
by a criminal defendant far outweigh those suffered by a civil litigant. Mandamus affords an
established, convenient, and efficient process by which to adjudicate these petitions.
5
Thus,
this petition is clearly cognizable.
____________________

3
It appears from the minutes of the committee hearings on the bill to repeal our appellate habeas jurisdiction
that delay in the pre-trial process was one of the major concerns of the legislature. See Gary v. Sheriff, supra. It
should be noted that a petition for extraordinary relief does not cause delay in the district court proceedings
unless this court or the district court issues a stay. It should also be noted that the instant petition was filed with
copies of the habeas petition submitted to the court below, the points and authorities in support thereof, the writ
itself, the return to the writ, the order denying the writ, and the transcript of the grand jury proceedings. Thus,
petitioner has done all that could be expected from him to avoid delay and has presented the probable cause
issue to this court in a context capable of swift adjudication. While there may be cases in which, due to
procrastination in bringing the writ petition or inadequacy of documentation, consideration by this court may be
properly denied, this clearly is not such a case.

4
Such a remedy precludes mandamus relief. NRS 34.170.

5
It is also arguable that prohibition would be the correct remedy. See Rescue Army v. Municipal Court, 171
P.2d 8 (Cal. 1946), appeal dismissed, 331 U.S. 549 (1947). It is clear that probable cause is jurisdictional,
Shelby v. District Court, supra, Eureka Bank Cases, supra, and that prohibition is available to arrest proceedings
of the district court in excess of its jurisdiction. NRS 34.320.
In the instant case, Justice Batjer and I feel Kussman's petition lacks merit. The petition
should not be ignored and dismissed; it should be considered and denied. However, in view
of the majority's election not to meet the merits, it would serve no purpose to elaborate why
we believe evidence of probable cause is sufficient.
____________________
We have recognized the availability of prohibition to challenge the sufficiency of an indictment, Konstantinidis
v. Sheriff, 96 Nev. 285, 607 P.2d 584 (1980), and in the Eureka Bank Cases we stated:
We see no difference, in legal effect, between an indictment which fails to charge a public offense and
an indictment which charges a public offense, without facts constituting such offense to support it, with
the exception that in the former case the want of jurisdiction is apparent upon the face of the indictment.
(at 105).
To make too much of this point, however, would be to exalt form over reality. Most mandamus petitions filed
in this court contain the phrase or, in the alternative, prohibition. No great skill is required to rephrase a
prohibition petition to meet the requirements for mandamus. See NRS 34.160. The line separating the two
closely-related writs has never been drawn with any great precision, and it has long been our policy to consider
any petition filed in either form even if, technically, the other would have been preferable. This policy is but an
aspect of our belief that minor procedural errors should not stand in the way of consideration of disputes on their
merits.
____________
96 Nev. 550, 550 (1980) Hunt v. State
REXFORD HUNT, Jr. and ARTHUR F. WHITTEMORE, Appellants,
v. THE STATE OF NEVADA, Respondent.
No. 10568
June 18, 1980 612 P.2d 683
Appeal from judgments upon jury verdicts, Eighth Judicial District Court, Clark County;
Carl J. Christensen, Judge.
Defendants were convicted in the district court of cheating at gambling. Defendants
appealed. The Supreme Court held that in view of evidence as a whole, including testimony
of finding monofilament wire wound around one defendant's coat button and pieces of scotch
tape under his coat lapel and testimony as to how such items could be used to cheat slot
machine, fair trial was not denied defendants by reason of fact that police officer at
preliminary hearing testified he had found piece of string in slot machine which he saw
second defendant playing but that, at trial, he testified he was mistaken and that string had
been found on an earlier occasion.
Affirmed.
96 Nev. 550, 551 (1980) Hunt v. State
Goodman, Oshins, Brown & Singer, Chartered, and William B. Terry, Las Vegas, for
Appellants.
Richard Bryan, Attorney General, Carson City; Robert Miller, District Attorney, and
Gregory Diamond, Deputy District Attorney, Clark County, for Respondent.
Gaming.
In prosecution for cheating at gambling, in view of evidence as a whole, including testimony of finding
monofilament wire wound around one defendant's coat button and pieces of scotch tape under his coat lapel
and testimony as to how such items could be used to cheat slot machine, fair trial was not denied
defendants by reason of fact that police officer at preliminary hearing testified he had found piece of string
in slot machine which he saw second defendant playing but that, at trial, he testified he was mistaken and
that string had been found on an earlier occasion. NRS 465.080, 465.080, subd. 2.
OPINION
Per Curiam:
A jury convicted appellants of cheating at gambling, a violation of NRS 465.080.
1
Appellants assert that a new trial is required because the prosecutor failed to apprise defense
counsel that a prosecution witness had made a mistake while testifying at preliminary
hearing. A police officer had first testified that when he arrested appellants, he found a piece
of eight-inch string in the slot machine which he saw appellant Hunt playing. Before he
testified at trial, however, the police officer informed the prosecutor that he was mistaken: the
string had been found on an earlier occasion. As a result of the officer's disclosure, the
prosecutor neither questioned the police officer concerning the eight-inch string, nor offered
as an exhibit the eight-inch string. He did, however, argue that a string is an item easily
discarded. The trial court denied appellants' motion for new trial, and this appeal follows.
On appeal, appellants argue absence of the expected testimony damaged and disrupted
their defense.
____________________

1
NRS 465.080(2) provides in material part:
. . . .
2. It is unlawful for any person, in playing or using any slot machine designed to receive or be
operated by lawful coin of the United States of America:
. . . .
(b) To use any cheating or thieving device, including but not limited to tools, drills, wires, coins
attached to strings or wires or electronic or magnetic devices, to unlawfully facilitate aligning any
winning combination or removing from any slot machine any money or other contents thereof.
96 Nev. 550, 552 (1980) Hunt v. State
The appellants assert the prosecutor's failure to apprise defense counsel that the police
officer had made a mistake was improper, and that reversal is required. In support of their
position, appellants cite Giles v. Maryland, 386 U.S. 66 (1967); Brady v. Maryland, 373 U.S.
83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959). We believe, however, that the cases
cited are inapposite. The prosecutor refrained from using what he believed was unreliable
testimony in his case in chief. The fact that the officer had testified differently at preliminary
hearing was known to defense counsel. In spite of this allegedly damaging and disruptive
omission, defense counsel did not request a continuance, did not call the officer as defense
witness, did not attempt to have the eight-inch string introduced into evidence. Instead, after
learning the reason for the omitted testimony, the defense rested.
Clearly, no prejudice occurred unless the evidence assertedly withheld was so crucial that
a different result would be reached if the case were retried. See Armstrong v. State, 96 Nev.
175, 605 P.2d 1142 (1980); cf. King v. State, 95 Nev. 497, 596 P.2d 501 (1979). On the
record before us, the trial court properly could reach the conclusion that evidence of guilt was
such that inclusion of the testimony expected would be unlikely to change the result. The
officer testified he found a monofilament wire wound around appellant Whittemore's coat
button and pieces of scotch tape under Whittemore's coat lapel. The officer also found a coin
with a piece of scotch tape in the slot tray. The prosecution's expert described how such items
may be used to cheat a slot machine, and also testified that it was possible to use a paper clip,
or other such item, as a handle to achieve the necessary string length. A witness also observed
the appellants playing the slot machine in a suspicious manner. In view of these facts, we
perceive no prejudicial error.
Affirmed.
____________
96 Nev. 552, 552 (1980) Cleveland v. Bally Distributing Co.
JOANNE K. CLEVELAND, Appellant, v. BALLY
DISTRIBUTING COMPANY, Respondent.
No. 10578
June 18, 1980 612 P.2d 684
Appeal from judgment n.o.v., and from order denying new trial or additur; Second Judicial
District Court, Washoe County; John E. Gabrielli, Judge.
Casino employee, who received personal injuries when slot machines fell forward and
struck her, sued company which leased machines to casino. The district court granted
company judgment n.o.v., and casino employee appealed seeking either additur or new
trial. The Supreme Court, Gunderson, J., held that the company was not liable for injuries
casino employee received.
machines fell forward and struck her, sued company which leased machines to casino. The
district court granted company judgment n.o.v., and casino employee appealed seeking either
additur or new trial. The Supreme Court, Gunderson, J., held that the company was not liable
for injuries casino employee received.
Affirmed.
Leonard T. Howard, Sr., Chartered, Reno, for Appellant.
Erickson, Thorpe & Swainston, Ltd., Reno, for Respondent.
In determining whether judgment n.o.v. was proper, the Supreme Court deems all facts favorable to
appellant's case as proved, which are established either directly or by reasonable inference.
2. Negligence.
A person is not liable for injuries resulting from conditions which he has not been instrumental in creating
or maintaining.
3. Negligence.
Where company which leased slot machines to casino did not contract to inspect and correct placement of
slot machines in casino and did not assume a duty to do so, company was not liable for injuries casino
employee received when two slot machines fell forward and struck her.
4. Negligence.
Fact that casino employee told unidentified repairman of company which leased slot machines to casino
that slot machines in club were unstable after having been removed by casino employees in order to lay
down carpet and then replaced by casino employees was not sufficient basis upon which to impute
knowledge of dangerous condition to company thereby rendering it liable for injuries casino employee
received when two slot machines fell forward and struck her.
OPINION
Contending that the trial court erred in granting respondent judgment n.o.v., appellant
seeks either additur or a new trial.
Appellant sustained injuries when two slot machines, leased by respondent to appellant's
employer, fell forward and struck her.
1
A jury returned a verdict approximately in the
amount of her hospital bill. The trial court entered judgment n.o.v., concluding that
respondent Bally Distributing Company owed appellant no duty. We affirm.
____________________

1
Appellant pursued her remedies against the Gold Club under applicable provisions of the Nevada Industrial
Insurance Act.
In 1968, the Gold Club leased slot machines from respondent. The lease agreement
provided the respondent would help maintain the machines, and the Gold Club would employ
a mechanic to work on them. In 1969, a new agreement nullified the 1968 agreement. The
1969 lease was silent as to installation, maintenance or repair. After 1969, the Gold Club
employed its own slot machine repairmen. Respondent's repairmen assisted only when club
employees failed in their repair efforts. The machines stood on stands supplied to the Gold
Club by third parties.
Approximately four months before appellant's accident, Gold Club employees unbolted
and removed slot machines from the casino. After the casino floor was recarpeted, club
employees returned the machines. A club employee testified that he had not rebolted the slot
machines back to back. Had he done so, the accident could not have occurred. The slot
machines which fell on appellant were not defective.
[Headnotes 1, 2]
In determining whether judgment n.o.v. was proper, we deem all facts favorable to the
appellant's case as proved, which are established either directly or by reasonable inference.
Dudley v. Prima, 84 Nev. 549, 445 P.2d 31 (1968). Nonetheless, a person is not liable for
injuries resulting from conditions which he has not been instrumental in creating or
maintaining, id., and without a duty owed to appellant there can be no actionable negligence.
Turney v. Sullivan, 89 Nev. 554, 516 P.2d 738 (1973).
Appellant predicates her theory of liability on testimony that respondent's repairmen
continued to work on the leased machines after execution of the 1969 lease agreement.
Appellant argues that respondent had a continuing duty under the 1968 agreement to maintain
the machines and should be held liable for failing to correct the dangerous condition created
by the Gold Club. Appellant argues, in the alternative, that the respondent had assumed a duty
to correct an unstable slot machine.
[Headnotes 3, 4]
We do not believe the evidence supports a reasonable inference that respondent contracted
to inspect and correct placement of slot machines in the casino, nor do we believe the
evidence supports a reasonable inference that respondent had assumed a duty to do so.
Further, the mere fact that a Bally repairman knew a slot machine was unstable does not
impose liability upon respondent.2 Giving appellant the benefit of all reasonable
inferences, the evidence showed that a club employee, at some time in the relevant four
months, told an unidentified Bally repairman that slot machines in the club were unstable.
liability upon respondent.
2
Giving appellant the benefit of all reasonable inferences, the
evidence showed that a club employee, at some time in the relevant four months, told an
unidentified Bally repairman that slot machines in the club were unstable. This is not
sufficient basis upon which to impute knowledge of a dangerous condition to respondent. Cf.
Reid v. Royal Insurance Co., 80 Nev. 137, 390 P.2d 45 (1964) (employee was definitely
informed of a defect and his knowledge was imputed to the employer). Appellant's argument
that respondent created the dangerous condition, and that Gold Club simply allowed it to
continue, is not supported by the record. In our view, the Gold Club was solely liable for
appellant's injuries.
Having concluded the trial court correctly determined that respondent owed no duty of
care to appellant, we need not consider further assignments of error.
Affirmed.
____________________

2
Restatement (Second) Agency, 232, Comment a (1958) provides in part:
a. Necessity of duty of action by servant. In order that the failure of a servant to act can constitute conduct
within the scope of employment, for which the master is responsible, the servant must have duties to perform at
the time and the master must owe to the person injured a duty that the servant should act. It is not enough that the
servant is authorized to act in the service at the time. . . .
____________
96 Nev. 555, 555 (1980) Greene v. State
GEORGIA SUE GREENE, Appellant, v. THE STATE
No. 10887
June 18, 1980 612 P.2d 686
John F. Mendoza, Judge.
Defendant was convicted in the district court of a drug-related offense, and she appealed.
The Supreme Court, Gunderson, J., held that: (1) trial court's sustaining of State's objection to
question requiring disclosure of undercover narcotics agent's precise home address did not
deny defendant effective cross-examination, and (2) where personnel file of undercover
agent was absent from the record on appeal, Supreme Court could not determine validity
of defendant's contention that trial judge abused his discretion in precluding disclosure of
its contents.
undercover agent was absent from the record on appeal, Supreme Court could not determine
validity of defendant's contention that trial judge abused his discretion in precluding
disclosure of its contents.
Affirmed.
1. Witnesses.
In prosecution of defendant on drug-related charge, trial court's sustaining of State's objection to question
requiring disclosure of undercover narcotics agent's precise home address did not deny defendant effective
cross-examination.
2. Criminal Law.
Burden to make a proper appellate record rests on the appellant.
3. Criminal Law.
Where personnel file of undercover agent was absent from the record on appeal, Supreme Court could
not determine validity of defendant's contention that trial judge abused his discretion in precluding
disclosure of its contents.
OPINION
A jury convicted appellant of violating NRS 453.321, which provided in material part: 1.
Except as authorized by the provisions of NRS 453.011 to 453.551, inclusive, it is unlawful
for any person to import, transport, manufacture, compound, sell, exchange, barter, supply,
give away or administer a controlled or counterfeit substance or to offer or attempt to do any
such act.
On March 13, 1975, police officer James Thomas, working undercover, went with an
informant to a Las Vegas bar to buy narcotics. The informant went inside while the officer
remained in his automobile. Within minutes, the informant emerged with appellant. The
officer, feigning withdrawal symptoms, asked appellant to purchase heroin for him. The
officer testified appellant said that for her trouble she expected to be turned on, i.e. to get
part of any heroin she bought. The appellant testified she agreed to buy for the officer because
she, as a heroin addict, felt sorry for him.
The appellant, the informant, and the officer made several stops. At each, appellant went
into a building and returned without narcotics. Finally, she returned and quoted the officer a
price. She took the money, returned to the building, then emerged with three balloons she said
contained heroin. The officer testified she gave him two balloons, keeping the third, saying
she was keeping one for her trouble. The appellant testified that she handed the officer all
three balloons, but that later he gave her one. Testimony at appellant's preliminary hearing
and trial indicated that the informant had assisted the officer to turn his own charges, then
pending.
The appellant served subpoenas duces tecum seeking all personnel records pertaining to
Officer Thomas. The trial court quashed the subpoenas when appellant's counsel
acknowledged that he was on a fishing expedition, merely hoping to find information to
impeach the officer. The court also denied appellant's request for the officer's home address.
Appellant contends it was reversible error for the court to deny him the residence address
of the police officer and personnel files, which might have led to impeachment material.
Appellant cites Alford v. United States, 282 U.S. 687 (1931) and Smith v. Illinois, 390 U.S.
129 (1968). We first consider whether appellant was denied an opportunity to cross-examine
Officer Thomas effectively. The trial court sustained the State's objection to the question,
Mr. Thomas, what is your residence address? That is, where do you live at the present
time?
[Headnote 1]
In Alford v. United States, cited above, the Supreme Court wrote at 694:
The extent of cross-examination with respect to an appropriate subject of inquiry is
within the sound discretion of the trial court. It may exercise a reasonable judgment in
determining when the subject is exhausted. (Citations omitted.) But no obligation is
imposed on the court, such as that suggested below, to protect a witness from being
discredited on cross-examination, short of an attempted invasion of his constitutional
protection from self incrimination, properly invoked. There is a duty to protect him
from questions which go beyond the bounds of proper cross-examination merely to
harass, annoy or humiliate him. (Citations omitted.) But no such case is presented here.
The trial court cut off in limine all inquiry on a subject with respect to which the
defense was entitled to a reasonable cross-examination. This was an abuse of discretion
and prejudicial error. (Citations omitted.)
282 U.S. at 694. The witness in Alford was in federal custody. The question, Where do you
live? was an appropriate preliminary to cross-examination, and was an essential step in
identifying the witness with his environment. The purpose of the question was to show, by
such facts as proper examination might develop, that his testimony was biased because given
under promise or expectation of immunity, or under the coercive effect of his detention by the
federal authorities. In Smith v. Illinois, cited above, it was reversible error to allow a police
informer to give only his assumed name. Forbidding the most rudimentary inquiry at the
threshold effectively emasculated the right of cross-examination. 390 U.S. at 131. Here, the
witness was a police officer. He testified to his full name, gave his employment history in law
enforcement in reasonable detail, and disclosed his involvement in undercover narcotics
activities. Brown v. State, 94 Nev. 393, 580 P.2d 947 (1978). Because a police officer is
subject to supervision and training, there is less reason to require disclosure of a home
address than for an informer or an accomplice; and officer's continuing involvement in police
activity gives rise to a reasonable inference that the officer or his family may be endangered
by disclosure. See United States v. McKinley, 493 F.2d 547 (5 Cir. 1974); United States v.
Davis, 262 F.2d 871 (7 Cir. 1959). We note that when the State's objection to his question
was sustained, appellant's attorney simply moved to other areas of inquiry. See Deutscher v.
State, 95 Nev. 669, 601 P.2d 407 (1979). In this case, failure to divulge the officer's precise
street address did not deny appellant effective cross-examination.
[Headnotes 2, 3]
Because the personnel file is absent from the record on appeal, we cannot determine
whether the trial judge abused his discretion in precluding disclosure of its contents. See e.g.
Lee v. Sheriff, 85 Nev. 379, 455 P.2d 623 (1969). The burden to make a proper appellate
record rests on appellant. Other considerations, including appellant's contention that the
evidence is insufficient to support the verdict, likewise are without merit. The appellant's
requested instruction on her purchasing agent defense was substantially covered by
Instruction No. 7. Instruction No. 7 is in the form approved in Roy v. State, 87 Nev. 517, 489
P.2d 1158 (1971). See also Moore v. State, 93 Nev. 645, 572 P.2d 216 (1977).
Affirmed.
____________
96 Nev. 559, 559 (1980) Whalen v. County of Clark
PATRICIA WHALEN, HELEN NOONAN, JEAN NOONAN RUFFELL, and JOHN
JOSEPH NOONAN, Jr., Appellants, v. COUNTY OF CLARK, Respondent.
No. 10735
June 27, 1980 613 P.2d 407
Appeal from order dismissing complaint under NRCP 12(b)(5), certified as a final
judgment under NRCP 54(b). Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Relatives of murder victim sued county, alleging that it had negligently failed to prosecute
the assailant for a previous murder, had negligently treated him while in custody and had
negligently failed to prevent his release from a mental hospital. The district court dismissed
and relatives appealed. The Supreme Court held that: (1) a failure to prosecute did not give
rise to a private cause of action; and (2) the county could not be held liable for failure to treat
the assailant or for negligently failing to prevent his release where at the time of his release
the assailant was in the custody of a state agency.
Affirmed.
J. R. Crockett, Jr., Las Vegas, for Appellants.
Richard H. Bryan, Attorney General, Carson City; and Cromer, Barker & Michaelson and
James R. Olson, Las Vegas, for Respondent.
1. Counties.
County prosecutor's failure to prosecute did not give rise to private cause of action against county.
2. Counties.
County could not be held liable for death of murder victim killed by recently released mental patient
where patient had been in custody of state agency, not county, and county exercised no control over
patient's treatment or his release.
OPINION
Per Curiam:
Appellants are relatives of Francis Whalen and John Noonan, Sr., who were killed in 1977
by one Kahlil ben Maatallah. Appellants brought suit in the district court against respondent
Clark County, the State of Nevada, and the Las Vegas Mental Health Center. The complaint
alleged, among other things, that respondent Clark County had negligently failed to
prosecute ben Maatallah for a murder he allegedly committed in 1965, had negligently
treated ben Maatallah while in custody and had negligently failed to prevent his release
from the Las Vegas Mental Health Center in 1973.
that respondent Clark County had negligently failed to prosecute ben Maatallah for a murder
he allegedly committed in 1965, had negligently treated ben Maatallah while in custody and
had negligently failed to prevent his release from the Las Vegas Mental Health Center in
1973. On respondent Clark County's motion, the district court dismissed the complaint as to
Clark County for failure to state a claim upon which relief may be granted, NRCP 12(b)(5),
and certified the order as a final judgment under NRCP 54(b). This appeal followed.
It appears from the record that the respondent submitted, and the district court did not
exclude, matter outside the pleadings in support of the motion to dismiss. We must therefore
consider this an appeal from an order granting summary judgment. NRCP 12(b). Taking as
true the allegations in appellants' complaint, and viewing the evidence in the light most
favorable to appellants, Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963), we
conclude that the complaint does not state a cause of action against the County, and therefore
affirm.
[Headnote 1]
Appellant's complaint alleged that respondent Clark County was negligent in failing to
prosecute ben Maatallah for the alleged 1965 murder. A failure to prosecute, under any
circumstances, does not give rise to a private cause of action. The prosecutorial function is a
public one, and the duty to prosecute is a public duty. A prosecutor's breach of this public
duty may expose him or her to professional discipline, removal from office, or criminal
prosecution, see Imbler v. Pachtman, 424 U.S. 409, 429 (1976), but it cannot transform the
duty owed to the public generally into the basis for a private action for damages. See
Bruttomesso v. Las Vegas Met. Police, 95 Nev. 151, 591 P.2d 254 (1979).
[Headnote 2]
Appellants have also alleged that the County negligently treated ben Maatallah and
negligently failed to prevent his release from the Las Vegas Mental Health Center. The record
demonstrates that at the time of ben Maatallah's release he was in the custody of the Division
of Mental Hygiene and Mental Retardation, an agency of the State of Nevada, not of the
County. NRS 232.300(2)(c). Appellants have not alleged that respondent Clark County
exercised any control over ben Maatallah's treatment in or his release from the state agency.
Nor have appellants alleged that the County was obligated to do so. Appellants do not allege
any special relationship between the County and their decedents which could form any
basis for liability in this case.
County and their decedents which could form any basis for liability in this case. See Fair v.
United States, 234 F.2d 288 (5th Cir. 1956); Schuster v. City of New York, 154 N.E.2d 534
(N. Y. 1958).
In short, appellants have failed to allege the existence of any duty toward their decedents
on the part of Clark County. See Bruttomesso v. Las Vegas Met. Police, supra. The
complaint, therefore, fails to state a cause of action for negligence against respondent and,
accordingly, the judgment of the district court must be affirmed.
1
concur.
____________________

1
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable E. M. Gunderson, Justice. Nev. Const. art. 6, section 19; SCR 10.
____________
96 Nev. 561, 561 (1980) Gaines v. State
LEON GAINES, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 11906
June 30, 1980 613 P.2d 409
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; James
A. Brennan, Judge.
Defendant was convicted in the district court of burglary, and he appealed. The Supreme
Court held that it was reversible error to give instruction on presumption of intent that Every
person who shall unlawfully break and enter or unlawfully enter any building shall be deemed
to have broken and entered or entered the building with intent to commit larceny or a felony
therein, unless such unlawful breaking and entering or unlawful entry shall be explained by
testimony satisfactory to the Jury to have been made without criminal intent.
Morgan D. Harris, Public Defender, and Victor John Austin, Deputy Public Defender, Las
Vegas, for Appellant.
James Tufteland, Deputy District Attorney, Las Vegas, for Respondent.
96 Nev. 561, 562 (1980) Gaines v. State
Burglary; Criminal Law.
In burglary prosecution, it was reversible error to give instruction on presumption of intent that Every
person who shall unlawfully break and enter or unlawfully enter any building shall be deemed to have
broken and entered or entered the building with intent to commit larceny or a felony therein, unless such
unlawful breaking and entering or unlawful entry shall be explained by testimony satisfactory to the Jury to
have been made without criminal intent. NRS 205.060, 205.065.
OPINION
Per Curiam:
Appellant was convicted of burglary, a felony under NRS 205.060. We need only consider
appellant's contention that the district court committed error as to an instruction on the
presumption of intent for burglary. See NRS 205.065.
Over appellant's objection, the district court gave the following instruction:
Every person who shall unlawfully break and enter or unlawfully enter any building
shall be deemed to have broken and entered or entered the building with intent to
commit larceny or a felony therein, unless such unlawful breaking and entering or
unlawful entry shall be explained by testimony satisfactory to the Jury to have been
made without criminal intent.
The challenged instruction was nearly identical to the instruction we condemned as
reversible error in Hollis v. State, 96 Nev. 207, 606 P.2d 534 (1980).
Accordingly, the judgment of conviction is reversed and the case is remanded for a new
trial.
____________
96 Nev. 562, 562 (1980) Gonzales v. State
FEDERICO CRUZ GONZALES, Appellant, v. THE
No. 11536
June 30, 1980 613 P.2d 410
Appeal from order denying motion to withdraw guilty plea, and judgment of conviction,
Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
Defendant was convicted in the district court on his plea of guilty, of attempting to obtain
money under false pretenses, and he appealed from denial of his motion to withdraw his
guilty plea.
and he appealed from denial of his motion to withdraw his guilty plea. The Supreme Court
held that district court should have allowed defendant to withdraw his plea where it was
unclear that the plea was made with a full understanding of the charge.
[Rehearing denied September 2, 1980]
1. Criminal Law.
In accepting a guilty plea, district court must determine that accused understands elements of the crime to
which he has pleaded guilty; if, upon examination by the court after entering a plea of guilty, accused states
facts which indicate a misunderstanding of an essential element of the crime, a plea of guilty should not be
accepted, and if made, should be withdrawn.
2. Criminal Law.
Defendant should have been allowed to withdraw his plea of guilty to charge of attempting to obtain
money under false pretenses where his assertion that he did not intend to defraud victim indicated that he
did not understand that intent to defraud was an element of the offense to which he was pleading guilty.
OPINION
Per Curiam:
Appellant, Federico Cruz Gonzales, was charged in an indictment with two counts of
obtaining money under false pretenses, felonies under NRS 205.380. Gonzales initially pled
not guilty to the charges. Subsequently, pursuant to a plea bargain, he entered a plea of guilty
to one count of the lesser charge of attempting to obtain money under false pretenses.
Gonzales later moved to withdraw his guilty plea, contending it was involuntarily entered
because, among other things, he did not fully understand the nature of the offense to which he
pled guilty. The district court denied the motion and entered judgment of conviction against
Gonzales. This appeal followed.
The alleged factual basis of the charge to which Gonzales pled guilty was that, with intent
to cheat and defraud the Sands Hotel in Las Vegas, he attempted to obtain a sum of money in
excess of $100 by presenting a check issued by a Mexican bank and representing to the
hotel that the check would be honored when in fact he knew that such representations
were false.
excess of $100 by presenting a check issued by a Mexican bank and representing to the hotel
that the check would be honored when in fact he knew that such representations were false.
When Gonzales entered his guilty plea, he stated that he had committed the offense and
that he understood the charge. This colloquy then occurred:
BY THE COURT: What did you do and how did you do it?
BY MR. GONZALES: I received a check for payment on the bank of Atlas, and I
used it to gamble in the Sands Hotel.
BY THE COURT: At that time you didn't have money to cover that check, is that
correct?
BY MR. GONZALES: It was a cashier's check, and they were supposed to have the
money to cover it.
BY THE COURT: When you did it, you intended to attempt to cheat and defraud
the Sands Hotel?
BY MR. GONZALES: I didn't know that at the time, sir. (Emphasis added.)
Gonzales contends that the above quotation reveals that he in fact did not fully
comprehend the nature of the offense, i.e., that intent to defraud is an element of the crime,
1
and therefore the court should have allowed him to withdraw his guilty plea. We agree.
[Headnote 1]
In accepting a guilty plea, the district court must determine that the accused understands
the elements of the crime to which he is pleading guilty. Higby v. Sheriff, 86 Nev. 774, 476
P.2d 959 (1970), modified, Heffley v. Warden, 89 Nev. 573, 516 P.2d 1403 (1973). If, upon
examination by the court after entering a plea of guilty, the accused states facts which indicate
a misunderstanding of an essential element of the crime, a plea of guilty should not be
accepted, and if made, should be withdrawn. See State v. Tahash, 154 N.W.2d 200 (Minn.
1967). See also Fox v. State, 181 N.W.2d 869 (Minn. 1970).
[Headnote 2]
Here, Gonzales asserted that he did not intend to defraud the hotel.
2
This assertion
indicates that he did not understand that intent to defraud was an element of the offense to
which he was pleading guilty.
____________________

1
NRS 205.380 states in part:
1. Every person who knowingly and designedly by any false pretense obtains from any other person
any chose in action, money, goods, wares, chattels, effects or other valuable thing, with intent to cheat or
defraud the other person, is a cheat, and . . . shall be punished. . . .

2
We note that under certain circumstances it is permissible for an accused to enter a guilty plea while
maintaining his innocence. See North Carolina v.
intent to defraud was an element of the offense to which he was pleading guilty. See State v.
Birrueta, 570 P.2d 868 (Idaho 1977). Therefore, since it is unclear that the plea was made
with a full understanding of the charge, the district court should have allowed Gonzales to
withdraw the plea.
The order of the district court denying the motion to withdraw the guilty plea and the
judgment of conviction are reversed and this matter is remanded for further proceedings.
____________________
Alford, 400 U.S. 25 (1970). However, a guilty plea entered pursuant to Alford must still be voluntarily,
knowingly and intelligently made. State v. Birrueta, 570 P.2d 868 (Idaho 1977).
____________
96 Nev. 565, 565 (1980) State of Rhode Island v. Prins
THE STATE OF RHODE ISLAND, MARGUERITE PRINS,
Appellants, v. JOHN PRINS, Jr., Respondent.
No. 12359
June 30, 1980 613 P.2d 408
Appeal from judgment of the Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Appeal was taken by State from judgment of the district court holding that respondent
owed no duty of support to his child. The Supreme Court held that where respondent's
answering brief was more than two months overdue, despite extension of time, the judgment
in respondent's favor would be reversed and remanded with instructions to determine
reasonable order for support to continue until child was emancipated or reached age of
majority.
Reversed.
Robert J. Miller, District Attorney, and John B. Squires, Deputy District Attorney, Clark
Archie & Heggie for Respondent.
Richard H. Bryan, Attorney General and Nancy Ford Angres, Deputy Attorney General,
amici curiae, urging reversal.
Supreme Court may, in its discretion, treat failure of respondent to file his brief as confession of error and
reverse judgment without consideration of merits of appeal. NRAP 31(c).
96 Nev. 565, 566 (1980) State of Rhode Island v. Prins
Where respondent's answering brief was more than two months overdue, despite extension of time with
respect to appeal from judgment that he owed no duty of support to his child, the judgment in respondent's
favor would be reversed and remanded with instructions to determine reasonable order for support to
continue until child was emancipated or reached age of majority. NRAP 31(c).
OPINION
Per Curiam:
This is an appeal by the State of Rhode Island from a judgment that respondent owed no
duty of support to his child.
Despite an extension of time to file respondent's answering brief, no such brief has been
filed. The brief is now more than two months overdue. See NRAP 31(a). Appellant has
moved this court to treat respondent's failure to timely file his brief as a confession of error, to
reverse and to remand this matter to the district court with instructions to determine a
reasonable order for support retroactive to July 12, 1979, to continue until the child is
emancipated or reaches the age of majority.
[Headnote 1]
This court may, in its discretion, treat the failure of a respondent to file his brief as a
confession of error, and reverse the judgment without consideration of the merits of the
appeal. NRAP 31(c); Kitchen Factors, Inc. v. Brown, 91 Nev. 308, 535 P.2d 677 (1975);
Toiyabe Supply Co. v. Arcade, 74 Nev. 314, 330 P.2d 121 (1958).
[Headnote 2]
In our view, this is an appropriate case for such disposition. The judgment in respondent's
favor is reversed and remanded with instructions to determine a reasonable order for support
retroactive to July 12, 1979, to continue until the child is emancipated or reaches the age of
majority.
____________
96 Nev. 567, 567 (1980) Havas v. Bank of Nevada
TYRONE HAVAS, d/b/a COURTESY MOTORS, Appellant, v. BANK OF NEVADA, a
Nevada Banking Corporation; ROGER BAKER; GRANT MENDENHALL; ROBERT
OWENS; RALPH LAMB, Sheriff of Clark County, State of Nevada; and ROBERT ORR,
Respondent.
No. 10988
July 2, 1980 613 P.2d 706
Appeal from order, Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Car dealer brought action against bank, bank employees, sheriff and deputies for damages
for allegedly unlawful levy, seizure and conversion of several automobiles from dealer's car
lot, and bank counterclaimed. The district court struck car dealer's complaint on motion of
bank, struck reply to bank's counterclaim, and granted sheriff's motion to join motion to
strike. Car dealer appealed. The Supreme Court, Manoukian, J., held that: (1) it was not abuse
of discretion to strike car dealer's complaint for failure to complete discovery as ordered, and
(2) sheriff and deputies could join bank in its motion to strike.
Affirmed.
Bilbray, Carelli & Miller, Las Vegas, for Appellant.
Smith, O'Brien & Avila, Las Vegas, and Johnson & Pilkington, Las Vegas, for
Respondents Bank of Nevada, Roger Baker, Grant Mendenhall and Robert Owens.
Cromer, Barker & Michaelson, Mike Mansfield and Corby D. Arnold, Las Vegas, for
Respondents Ralph Lamb and Robert Orr.
Standard upon review of action of trial court in striking pleading of party for failure to answer
interrogatories is whether trial court abused its discretion. NRCP 37(d).
In action against bank, bank employees, sheriff, and deputies for damages for allegedly unlawful levy,
seizure and conversion of several automobiles from dealer's car lot, it was not an abuse of discretion to
strike dealer's complaint for failure to complete discovery as ordered on motion made by bank, even though
dealer had answered a number of interrogatories put to him, where a number of dealer's answers were
incomplete or evasive, dealer's subsequent failure to answer was willful and not due to any inability on
dealer's part, and although trial court made no finding of flagrant bad faith, trial court did characterize
dealer's evasiveness and nonresponsiveness as falling short of "good faith."
dealer's evasiveness and nonresponsiveness as falling short of good faith. NRCP 37(a)(3), (d).
In light of fact that car dealer's complaint against bank, bank employees, sheriff, and deputies for
damages for allegedly unlawful levy, seizure and conversion of several automobiles from dealer's car lot
was stricken on motion of bank for dealer's failure to complete discovery as ordered, and in light of fact
that liability, if any, of sheriff and his deputies in carrying out execution was derivative, sheriff and
deputies could join bank in its motion to strike. NRCP 33(a), 37(b).
OPINION
This is an appeal from an order striking plaintiff-appellant's complaint and rendering
judgment in favor of respondents, and striking appellant's reply to respondent Bank of
Nevada's counterclaim and granting judgment by default in favor of respondents. We are
asked to decide whether the trial court erred in granting respondent Bank's motion to strike
appellant's complaint, and whether the trial court erred in granting respondents deputies'
motion to join respondent Bank's motion to strike. We resolve both questions in favor of
respondents.
The instant action was instituted by appellant alleging that several defendant-respondents
were liable in damages for the unlawful levy, seizure and conversion of several automobiles
from appellant-dealer's car lot. On April 17, 1974, respondent Bank and several of its
employees, Baker, Mendenhall and Owens, who are named respondents herein, along with
respondent sheriff of Clark County, Deputy Orr, and several unnamed deputy defendants,
executed a writ of possession against appellant. Appellant's complaint alleged that
respondents were entitled to execute a writ of possession according to an action previously
filed by Bank of Nevada.
1
Appellant alleged, however, that the execution exceeded the scope
of the writ of possession and that respondents improperly seized several additional vehicles
from appellant's automobile lot. Clark County and the individual deputies filed their answers
by June 7 and respondent Bank of Nevada and its individual employees timely answered the
complaint on June 11, 1976.
____________________

1
The complaint stated in relevant part that on April 16, 1974, the district court in action number 123437,
entitled Bank of Nevada, Plaintiff, v. Tyrone Havas, dba Courtesy Motors, Defendant, issued a writ of
possession directed to Ralph Lamb, Sheriff of Clark County, directing said sheriff to seize from defendant
Havas 25 specifically described vehicles.
timely answered the complaint on June 11, 1976. Respondent Bank of Nevada also
counter-claimed based on a dealer agreement it had with appellant. Appellant thereafter
replied to the counterclaim.
Interrogatories propounded to appellant from respondent deputies on July 27, were
answered by appellant on November 5, 1976. On February 18, 1977, respondent Bank
propounded interrogatories to appellant. By October 7, 1977, appellant had failed to respond
to these interrogatories and respondent Bank brought a motion to strike appellant's complaint
and appellant's reply to the counterclaim. The motion was to be heard on October 18;
however, on October 17 appellant answered the interrogatories by respondent Bank and
included several objections to interrogatories. On October 19, visiting District Judge Merlyn
Hoyt denied the Bank's motion to strike and entered an order directing appellants to answer
all forty-three interrogatories fully and in good faith within fifteen days. Additionally,
appellants objections were overruled and attorneys fees were granted to respondent Bank.
On March 1, 1978, appellant filed a Notice for Trial Docket attempting to set the case for
trial. By April 26, 1978, however, appellant had not made an additional response to the
interrogatories as required by the order of October 19, 1977. Consequently, respondent Bank
filed a new motion to strike appellant's complaint and appellant's reply to the counterclaim.
Respondent sheriff and deputies immediately moved to join respondent Bank's motion.
On May 8, 1978, appellant filed affidavits in opposition to the motion claiming he had
complied with Judge Hoyt's order either by providing the answers to interrogatories or stating
that respondent Bank already had the answers to other interrogatories. On May 10, 1978,
Judge Christensen granted respondent Bank's motion to strike the complaint and reply to the
counterclaim. The court also granted respondent sheriff's motion to join the motion by
respondent Bank. The court stated that the motion was granted, it appearing to the Court the
above named plaintiff was ordered by this Court to answer fully and completely in good faith
the forty-three interrogatories served upon him and that the plaintiff has wilfully failed and
refused to comply with this order; and good cause appearing therefor. . . . This appeal
followed.
1. The Order to Strike.
[Headnotes 1, 2]
Under NRCP 37(d), a court may strike a pleading of a party for his failure to answer
interrogatories.
for his failure to answer interrogatories. The standard upon review of such an action is
whether the trial court abused its discretion. Kelly Broadcasting Co. v. Sovereign Broadcast,
Inc., 96 Nev. 188, 192, 606 P.2d 1089, 1092 (1980). Nevertheless, under this standard, we
must be mindful of the underlying rights of a party to due process and a trial by jury, as well
as the judicial policy favoring the disposition of cases on their merits. Societe Internationale
v. Rogers, 357 U.S. 197, 209 (1958); Affanato v. Merrill Bros., 547 F.2d 138, 140 (1st Cir.
1977). See Kelly Broadcasting Co. v. Sovereign Broadcast, Inc., 96 Nev. at 194-97, 606 P.2d
at 1093-95 (Manoukian, J., dissenting in part).
In the present case, as in Kelly, the basis for the imposition of sanctions was appellant's
failure to complete discovery as ordered. An affidavit of counsel for appellant suggested that
his client had no further knowledge than what he had already provided except with regard to
certain interrogatories, the answers of which respondent Bank was already in possession.
Additionally, appellant claimed that the order by Judge Hoyt was not specific as to which
interrogatories needed to be answered fully. But we note that appellant's previous answers to
a number of the interrogatories clearly provided only general information in response to
questions calling for specific answers and appellant's objections to the interrogatories were
overruled. For instance, appellant was asked to state the facts tending to demonstrate a right
to a setoff on the counterclaim. Appellant objected to the question and then only said that
facts would be presented at trial. Concerning other questions, appellant referred respondent
Bank to depositions of other respondents taken in the separate proceeding
2
instituted by
respondent Bank and referred to all answers previously given and incorporated herein.
It is clear here that the subsequent failure to answer was willful, as the trial court found,
and not due to any inability on appellant's part. Cf. Societe Internationale v. Rogers, 357 U.S.
at 212 (petitioner unable to comply). Although the trial court made no finding of flagrant
bad faith, see National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639,
643 (1976) (per curiam); Riverside Casino v. J. W. Brewer Co., 80 Nev. 153, 156-57, 390
P.2d 232, 234 (1964), in essence, the court did characterize appellant's evasiveness and
non-responsiveness as falling short of good faith. The fact that appellant had filed a Note
for Trial Docket, indicating his desire to go to trial does not support his position as he
contributed substantially to respondent Bank's inability to prepare adequately for trial.
____________________

2
See note 1 supra.
for trial. Appellant willfully and persistently evaded much of respondent's efforts under our
rules of discovery. An incomplete or evasive answer is viewed as a failure to respond. NRCP
37(a)(3).
3
We do not find an abuse of discretion.
2. The Order Allowing Government Respondents to Join the Motion to Strike.
[Headnote 3]
It is clear to us that appellant's failure to answer interrogatories by respondent Bank only
indirectly affected the other respondents.
4
Nevertheless, because the liability, if any, of the
sheriff and his deputies is derivative, reason and fairness dictate that the latter not be exposed
to liability where it is shown that the party precipitating the execution of the writ of
possession, here respondent Bank, is no longer vulnerable to liability or damages. Compare
Fireman's Fund Ins. v. Shawcross, 84 Nev. 448, 452, 442 P.2d 907, 911 (1968) (sheriff not
held to higher standard of care than attaching plaintiff).
The order striking appellant's complaint and reply to counterclaim is affirmed as to all
respondents.
Thompson, Gunderson, and Batjer, JJ., and Beko, D. J.,
5
concur.
____________________

3
Appellant cannot rely upon an ex parte conversation with the first trial judge to avoid a clear duty imposed
by the order and an unambiguous record. If the order to answer was not clear, appellant could have requested a
clarification on the record.

4
It is noteworthy that appellant had previously answered interrogatories propounded by the other
respondents. Under NRCP 37(d), sanctions may be granted only when a party fails to serve answers or
objections to interrogatories submitted under Rule 33. . . . Rule 33 states that [t]he party submitting the
interrogatories may move for an order under Rule 37(a) [order to compel discovery] with respect to any
objections to or other failure to answer an interrogatory. NRCP 33(a). Notwithstanding the fact that the
apparent intent of the rules was to protect affected parties, we believe this result to be consistent with
fundamental fairness.

5
Governor Robert List designated Hon. William Beko, District Judge, to sit in this case in place of Hon. John
C. Mowbray, Chief Justice, who voluntarily disqualified himself. Nev. Const. art. 6, 4.
____________
96 Nev. 572, 572 (1980) Bryan v. Allen
DANNY BRYAN and KENNETH BRYAN, Appellants,
v. CARL E. ALLEN, Respondent.
No. 10693
July 9, 1980 613 P.2d 412
Appeal from amended judgment reducing jury award, Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
Pedestrians brought action against automobile driver. The district court reduced jury award
by amount of previously paid benefits, and pedestrians appealed. The Supreme Court held
that pedestrians failed to meet their burden of establishing that their tort recovery did not
include previously paid insurance benefits, and thus district court properly reduced
pedestrians' jury award.
Affirmed.
James J. Brown, Las Vegas, for Appellants.
1. Insurance.
Under Nevada's no-fault system, injured party was not entitled to multiple recovery for the same loss.
NRS 698.010 et seq., 698.040, 698.070, 698.280, subd. 1(i) (Repealed).
Jury verdict is presumptively valid, and absent showing in the record, Supreme Court will not read error
into a general verdict.
3. Insurance.
Where pedestrians received basic reparation benefits for their economic losses sustained as a result of
accident and jury returned its general verdict after having been instructed on computation of damages for
both economic and noneconomic detriment and after having received evidence of economic loss,
pedestrians failed to meet their burden of establishing that their tort recovery did not include previously
paid insurance benefits, and district court therefore properly reduced pedestrians' jury award by amount of
previously paid benefits; by doing so, district court did not encroach upon province of jury but merely
insured that pedestrians could not recover in tort action that which Legislature had specifically prohibited
them from recovering. NRS 698.280, 698.280, subd. 1(h) (Repealed).
OPINION
Per Curiam:
Danny and Kenneth Bryan, two pedestrians, were injured by respondent Carl Allen's
negligent operation of an automobile.
96 Nev. 572, 573 (1980) Bryan v. Allen
At the time of the accident, the Nevada Motor Vehicle Insurance Act (Chapter 698 of the
Nevada Revised Statutes, repealed 1979 Nev. Stat., ch. 660, 9) was still in effect. The
Bryans received basic reparation benefits to cover their economic losses. See NRS 698.040;
698.070. Subsequently, the Bryans brought this tort action against Allen. See NRS
698.280(1)(i). No transcript of the trial appears in the record. The jury, instructed on the
computation of damages for both economic and noneconomic detriment, returned a general
verdict far in excess of the previously received reparation benefits. Upon respondent Allen's
motion, the district court reduced the jury award by the amount of those previously paid
benefits, and entered judgment accordingly. The Bryans appeal, contending that the reduction
was error. We affirm.
[Headnote 1]
Under Nevada's no-fault system, an injured party was not entitled to multiple recovery for
the same loss. Cooke v. Safeco Ins. Co., 94 Nev. 745, 587 P.2d 1324 (1978); Travelers
Insurance Co. v. Lopez, 93 Nev. 463, 567 P.2d 471 (1977). Indeed, the Legislature
specifically abolished tort liability with respect to injuries compensated by the payment of
basic reparation benefits. NRS 698.280(1)(h).
Here, it is undisputed that appellants received basic reparation benefits for their economic
losses. It is also undisputed that the jury returned its general verdict after having been
instructed on the computation of damages for both economic and noneconomic detriment and
after having received evidence of economic loss.
[Headnotes 2, 3]
A jury verdict is presumptively valid; absent a showing in the record, this Court will not
read error into a general verdict. J.C. Penney Co. v. Gravelle, 62 Nev. 439, 455, 155 P.2d
477, 484 (1944). Appellants have not met their burden, either in the court below or on appeal,
of establishing that their tort recovery did not include previously paid benefits. Easom v.
Farmers Ins. Co., Inc., 560 P.2d 117 (Kan. 1977). The district court therefore properly
reduced appellants' jury award. By so doing, the court did not encroach upon the province of
the jury. See Van Fleet v. O'Neil, 44 Nev. 216, 233-34, 192 P. 384, 390 (1920). Rather, the
court merely insured that appellants could not recover in a tort action what the Legislature
had, by enacting NRS 698.280, specifically prohibited them from recovery.
96 Nev. 572, 574 (1980) Bryan v. Allen
1
concur.
____________________

1
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable E. M. Gunderson, Justice. Nev.Const. art. 6, subsection 19; SCR 10.
____________
96 Nev. 574, 574 (1980) Sea Air Support, Inc. v. Herrmann
SEA AIR SUPPORT, INC., a Nevada Corporation, dba Automated Accounts Associates of
Nevada, Appellant, v. RALPH HERRMANN, Respondent.
No. 10786
July 11, 1980 613 P.2d 413
Appeal from dismissal of action. First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
Drawer of check which was not paid due to insufficient funds was sued to recover amount
of the indebtedness. The district court dismissed, and assignee for collection appealed. The
Supreme Court held that: (1) check was unenforceable as drawn for purpose of repaying
money knowingly advanced for gaming, and (2) plaintiff was not a holder in due course
where it promised to take such legal action as may be necessary to enforce collection and,
also, had constructive notice of a defense against collection because the check was payable to
a casino and plaintiff knew that the check had been dishonored.
Affirmed.
Nicolaus R. Harkins, Carson City, for Appellant.
Carl F. Martillaro, Carson City, for Respondent.
1. Gaming.
Despite the fact that gambling, where licensed, is legal in Nevada, debts incurred and
checks drawn for gambling purposes are void and unenforceable. NRS 1.030, 104.3305.
Any change in rule that a check drawn for purpose of repaying money knowingly
advances for gambling is void and unenforceable must be done by legislative action.
NRS 1.030, 104.3305.
3. Bills and Notes.
Where assignee of unpaid check issued to casino promised to take such legal action as
may be necessary to enforce collection, such promise to perform services in the future
did not constitute taking for value so as to constitute assignee a holder in due course
immune from defense that check was unenforceable because of gaming purposes
and, also, assignee had constructive notice of a defense against collection because
check was payable to a casino and knew that the check had been dishonored.
as to constitute assignee a holder in due course immune from defense that check was unenforceable
because of gaming purposes and, also, assignee had constructive notice of a defense against collection
because check was payable to a casino and knew that the check had been dishonored. NRS 1.030,
104.3302, subd. 1, 104.3303, 104.3305.
OPINION
Per Curiam:
Ralph Herrmann wrote a check for $10,000 payable to the Ormsby House, a hotel-casino
located in Carson City, Nevada, and exchanged it for three counter checks he had written
earlier that evening to acquire gaming chips. The Ormsby House was unable to collect the
proceeds from the check because Herrmann had insufficient funds in his account. The debt
evidenced by the check was assigned to Sea Air Support, Inc., dba Automated Accounts
Associates, for collection. Sea Air also was unsuccessful in its attempts to collect and,
therefore, filed this action against Herrmann to recover $10,567.
The district judge dismissed the action on the ground that Sea Air's claim is barred by the
Statute of Anne. Sea Air appeals the dismissal. We are asked to reconsider the long line of
Nevada cases refusing to enforce gambling debts. We refuse to do so, and affirm the
dismissal.
[Headnote 1]
Nevada law incorporates the common law of gambling as altered by the Statute of 9 Anne,
c. 14, 1, absent conflicting statutory or constitutional provisions. NRS 1.030; West Indies v.
First National Bank, 67 Nev. 13, 214 P.2d 144 (1950); Burke v. Buck, 31 Nev. 74, 99 P. 1078
(1909). The Statute provides that all notes drawn for the purpose of reimbursing or repaying
any money knowingly lent or advanced for gaming are utterly void, frustrate, and of none
effect. Despite the fact that gambling, where licensed, is legal in Nevada, this court has long
held that debts incurred, and checks drawn, for gambling purposes are void and
unenforceable. Corbin v. O'Keefe, 87 Nev. 189, 484 P.2d 565 (1971); Wolpert v. Knight, 74
Nev. 322, 330 P.2d 1023 (1958); Weisbrod v. Fremont Hotel, 74 Nev. 227, 326 P.2d 1104
(1958); West Indies, 67 Nev. at 31; Burke, 31 Nev. at 80; Evans v. Cooke, 11 Nev. 69 (1876);
Scott v. Courtney, 7 Nev. 419 (1872).
[Headnote 2]
In this case, Herrmann's $10,000 check clearly was drawn for the purpose of repaying
money knowingly advanced for gaming. See Craig v. Harrah, 66 Nev. 1, 201 P.2d 1081
(1949).
The check is void and unenforceable in this state. If the law is to change, it must be done by
legislative action.
[Headnote 3]
Sea Air seeks to avoid the defense that the check is void and unenforceable because of
gaming purpose by claiming to be a holder in due course, immune to most defenses. NRS
104.3305. A holder in due course is a holder who takes the [negotiable] instrument: (a) For
value; and (b) In good faith; and (c) Without notice that it is overdue or has been dishonored
or of any defense against or claim to it on the part of any person. NRS 104.3302(1). Sea Air
promised to take such legal action as may be necessary to enforce collection of the $10,000.
The promise to perform services in the future does not constitute taking for value under NRS
104.3303. Anderson, 2 Uniform Commercial Code (2d ed.) 3303:3. In addition, Sea Air had
at least constructive notice of a defense against collection because the check was payable to a
casino, and Sea Air knew the check had been dishonored. Consequently, Sea Air is not a
holder in due course. The action was properly dismissed.
1

Affirmed.
Mowbray, C. J., Thompson, Gunderson, and Batjer, JJ., and Torvinen, D.J.,
2
concur.
____________________

1
This case was consolidated with Sandler v. District Court, Docket No. 11919, for the purpose of oral
argument.

2
Governor, pursuant to Art. VI, 4, of the Constitution, designated Judge Roy L. Torvinen of the Second Judicial
____________
96 Nev. 576, 576 (1980) Hartford Accident & Indem. v. Rogers
HARTFORD ACCIDENT AND INDEMNITY COMPANY,
Appellant, v. JAMES E. ROGERS, Respondent.
No. 10563
July 11, 1980 613 P.2d 1025
Appeal from order granting respondent's motion for summary judgment, Eighth Judicial
District, Clark County; Howard W. Babcock, Judge.
Insurer brought suit against attorney for proceeds of check sent to attorney for payment of
client's hospital bills and which attorney retained, demanding payment for his services. The
district court granted attorney's motion for summary judgment based on statute of
limitations, and insurer appealed. The Supreme Court, Manoukian, J., held that: {1)
complaint based on conversion was properly dismissed based on statute of limitations;
{2) action for fraud was foreclosed by statute of limitations; and {3) insurer had no
causes of action against attorney for breach of agency, breach of trust or professional
malpractice.
district court granted attorney's motion for summary judgment based on statute of limitations,
and insurer appealed. The Supreme Court, Manoukian, J., held that: (1) complaint based on
conversion was properly dismissed based on statute of limitations; (2) action for fraud was
foreclosed by statute of limitations; and (3) insurer had no causes of action against attorney
for breach of agency, breach of trust or professional malpractice.
Affirmed.
Wanderer & Wanderer and Douglas A. Watkins, Las Vegas, for Appellant.
Dickerson, Miles & Pico and Bert O. Mitchell, Las Vegas, for Respondent.
Where check was appropriated, if at all, by attorney on or about December 19, 1968 and no later than
January 26, 1970, complaint filed on August 10, 1976 based on conversion was properly dismissed based
on three-year statute of limitation for conversion. NRS 11.190, subd. 3(c).
If attorney's acts of retaining check from insurer and not applying check to satisfy client's medical bills
constituted fraud at time check was presented by insurer, insurer sustained damage upon its parting with its
money and, having awareness of all pertinent facts, statute of limitations for fraud commenced to run and
action brought more than three years later was foreclosed by statute of limitations. NRS 11.190, subd.
3(d).
3. Fraud.
Cause of action for fraud requires showing of false representation of material fact, known to be false, with
intent to induce reliance.
Absent professional relationship between insurer and attorney, insurer had no actions for breach of
agency, breach of trust or professional malpractice against insured's attorney to recover proceeds of check
sent to attorney for payment of client's hospital bills.
OPINION
In this appeal from a summary judgment in favor of defendant-respondent, we are required
to decide whether the trial court erred in ruling that appellant's claims were barred by the
statute of limitations. We hold that it did not, and affirm.
On September 21, 1968, Susan Saari and her brother, William Saari, Jr. had pulled off of
Interstate 15, south of Las Vegas, on their way to Los Angeles. While the vehicle was on the
side of the road, it was struck by a second vehicle.
the side of the road, it was struck by a second vehicle. The driver of the second vehicle had
been driving under the influence and was uninsured. William Jr. and his sister, Susan, who
was seriously injured, resided in New York at the time. Subsequently, Susan and her brother
signed a contingency fee agreement under which respondent Rogers, a licensed attorney in
this state, was to represent them in connection with the accident in exchange for one-third of
the amount recovered.
On September 27, the Las Vegas office of Hartford Accident and Indemnity, appellant
herein, received notice of the accident, took a statement from William, Jr., and opened a file.
An initial memorandum in that file indicated that Susan was being represented by respondent
Rogers of Las Vegas. On October 4, William Saari, Sr. (Mr. Saari) retained attorney Frank J.
Hand of New York to represent him and Susan in prosecuting their claims. Susan was
released from the hospital on October 9. Attorney Hand filed an uninsured motorist claim
with appellant Hartford at its New York office on October 11th. On December 2, Rogers sent
a letter to appellant at its Las Vegas office advising them that he was representing Susan and
that he was making a demand for the policy limit of $10,000. This information was also
phoned to appellant at its Las Vegas office on January 7, 1969.
On December 16, 1968, Hartford's Las Vegas office sent a check to respondent in the
amount of $1,837.25 which represented Susan's hospital bills through October 10. This check
was made payable to Susan and respondent Rogers. It was endorsed and deposited in
respondent's trust account without the benefit of Susan's signature. Thereafter, respondent
made no payments to the hospital, but did request a bill reduction of fifty percent by the
hospital.
In 1969, respondent Rogers was informed by Mr. Saari that his services were no longer
required. Rogers indicated that he would take no further action but that he did expect to be
paid for his services rendered to date. He said that he would return the check for $1,837.25,
along with another check he had received for $240, upon his receipt of $2,000 as full payment
for his services. By May 9, 1969, respondent, having heard nothing further, returned the $240
check to Hartford.
An internal report dated September 10, 1969 indicated that Hartford was aware that the
checks issued by its Las Vegas office had not been applied by Rogers to satisfy the medical
bills. Therefore, when Hartford and the Saaris arrived at a settlement for $9,750.00, Hartford
deducted the $1,837.25, which Rogers held, and paid only $7,912.75 in January of 1970.
Attorney Hand first asked Rogers to return the check in exchange for a fee of $787.50. When
Rogers refused, Hand demanded payment from Hartford for the full amount.
Saari's subsequent suit against Hartford ended successfully for the Saaris on March 17,
1975. A New York supreme court ruled that Hartford could not assert prior payment as the
check had been paid after Hartford became aware that different attorneys had filed claims and
should have made an inquiry. The present action was filed by Hartford against Rogers on
August 10, 1976. Respondent's motion for summary judgment, based on the statutes of
limitation, was granted and this appeal followed.
[Headnote 1]
Appellant's initial complaint filed on August 10, 1976 was based on conversion. That
complaint was dismissed without prejudice. The statute of limitation for conversion is three
years and runs from the time of taking. NRS 11.190(3)(c). The complaint was properly
dismissed as the check was appropriated, if at all, by respondent on or about December 19,
1968 and no later than January 26, 1970 when attorney Hand demanded the check from
respondent.
Appellant's amended complaint alleged, inter alia, fraud, breach of agency, breach of trust
by a fiduciary under NRS 11.290, and violation of ethical standards. The district court
determined that the statute of limitations barred these claims, that NRS 11.290 applies only to
banks and trust companies, and that our attorney disciplinary rules do not create a private
cause of action. In dismissing the amended complaint, the court determined that appellant
was aware of all facts which may have constituted a fraud more than three years prior to the
filing of the first complaint.
Appellant acknowledges that it was aware of all pertinent facts in this case by April 13,
1970. On that date, an interoffice memo was drafted by Hartford which set forth all of the
relevant facts. Nevertheless, appellant argues that the statute of limitations begins to run only
when damage is suffered. This damage, appellant states, occurred upon the March 17, 1975
judgment by the New York court as appellant believed until then that it could claim an offset
against the Saaris. We disagree.
[Headnotes 2, 3]
If indeed Rogers' acts constituted a fraud at the time the check was presented by appellant,
see City of Coon Rapids v. Suburban Engineering, Inc., 167 N.W.2d 493, 496 (Minn.
1969), then appellant sustained damage upon its parting with its money. Remus Films, Ltd. v.
William Morris Agency, 53 Cal.Rptr. 526, 529 (Ct.App. 1966). Cf. City of Abilene v.
Bynum, 367 S.W.2d 942 (Tex.Civ.App. 1963) (initial action by city lawful and no cause of
action by plaintiff until subsequent damage). It does not matter here that appellant was not
totally certain of its damages. Quinn v. Press, 140 S.W.2d 438, 440-41 (Tex. 1940);
American Indemnity Co. v. Ernst & Ernst, 106 S.W.2d 763, 765-66 (Tex.Civ.App. 1937). See
Webb v. Lewis, 209 S.E.2d 712 (Ga.App. 1974). Nevada law clearly provides that the statute
runs from the date of discovery of facts constituting the fraud and must be brought within
three years. Howard v. Howard, 69 Nev. 12, 21-22, 239 P.2d 584, 588-89 (1952); NRS
11.190(3)(d). See Winn v. McCulloch Corp., 131 Cal.Rptr. 597, 602 (Ct.App. 1976). See also
Fuls v. Shastina Properties, Inc., 448 F.Supp. 983, 986 (N.D.Cal. 1978). In this case, the facts
were known by April 13, 1970. Had the initial taking been wrongful against Hartford and
constituted a fraud,
1
appellant's cause of action would have accrued at that time. The action
for fraud is foreclosed by the statute of limitations.
[Headnote 4]
Appellant also alleged breach of agency, breach of trust and professional malpractice.
Appellant's authority is misplaced. The dispositive fact in this case is that appellant and
respondent were not in a professional relationship such as in the cases cited by appellant. In
this case, respondent was retained to represent Susan Saari in her efforts to recover insurance
benefits from appellant. Appellant was certainly not an intended beneficiary of any of
respondent's services. Cf. Lucas v. Hamm, 364 P.2d 685 (Cal. 1961) (court allowed recovery
for intended beneficiaries of a will who lost their testamentary rights because of attorney's
contractual failures). Appellant has cited cases which involved such relationships as
attorney-client, insurer-insured, and doctor-patient. See, e.g., Budd v. Nixen, 491 P.2d 433
(Cal. 1971); Walker v. Pacific Indemnity Co., 6 Cal.Rptr. 924 (Ct.App. 1960); Fernandi v.
Strully, 173 A.2d 277 (N.J. 1961). No cases are cited, and we have found none, which
allowed recovery for a third party who was not an intended beneficiary.
____________________

1
A cause of action for fraud requires a showing of a false representation of a material fact, known to be false,
with the intent to induce reliance. Lubbe v. Barba, 91 Nev. 596, 599, 540 P.2d 115, 117 (1975). The valid
retainer between Susan and Rogers precludes a finding that the check was taken upon a false representation.
beneficiary. There was nothing to support a theory of agency between appellant and Rogers.
Appellant contends that the facts do not reveal when respondent Rogers took the
appropriated check funds from his trust account. Appellant argues that this date would be
important in establishing when the statute for conversion began running. Appellant cites no
authority for his conclusion that such a date would be the controlling date for such purposes.
It is difficult to see how Rogers could have committed a conversion when the check was
sent to him. There was a valid attorney-client relationship at the time between the Saaris and
respondent Rogers which terminated a month after the check was sent. This was not a
wrongful acquisition of possession. As the agent for Susan Saari, Rogers accepted the check
on her behalf. Any conversion which could have occurred would have been against the client.
This would have been when the New York attorney for the Saaris wrote to Rogers on January
26, 1970, demanding the funds. Any subsequent disposition by Rogers would not have been
wrongful against appellant.
2

The remaining contentions are without merit. The summary judgment in favor of
respondent is affirmed. NRCP 56(c).
Mowbray, C. J., and Thompson, Gunderson, and Batjer, JJ., concur.
____________________

2
Because appellant Hartford paid the Saaris in full for their losses, appellant appears to have been subrogated
to all rights which the Saaris may have had. See Valley Power Co. v. Toiyabe Supply Co., 80 Nev. 458, 396
P.2d 137 (1964). This may have included the action in conversion against Rogers. The statute of limitations,
however, began running when Rogers refused attorney Hand's demand of January 26, 1970 for the funds.
____________
96 Nev. 581, 581 (1980) Gehrke v. State
DENNIS GENE GEHRKE, Appellant, v. THE STATE
No. 10845
July 14, 1980 613 P.2d 1028
Appeal from judgment of conviction. Eighth Judicial District Court, Clark County, J.
he appealed. The Supreme Court, Batjer, J., held that: (1) although pretrial identification
procedure was unnecessarily suggestive, identification was reliable and there was no due
process violation in admission of testimony describing identification, and {2) prosecutor's
opening remarks did not prejudicially affect defendant's substantial rights, despite
contention that remarks give rise to improper inference of prior criminal activity by
defendant.
and there was no due process violation in admission of testimony describing identification,
and (2) prosecutor's opening remarks did not prejudicially affect defendant's substantial
rights, despite contention that remarks give rise to improper inference of prior criminal
activity by defendant.
Affirmed.
Richard Bryan, Attorney General, Carson City; Robert Miller, District Attorney, Clark
1. Criminal Law.
Test of admissibility of pretrial identification preceding formal charges is whether, considering all
circumstances, confrontation conducted was so unnecessarily suggestive and conducive to irreparable
mistaken identification that defendant was denied due process of law; short of that, it is for jury to weigh
evidence and assess credibility of witnesses. U.S.C.A.Const. Amend. 14.
Pretrial identification in which eyewitnesses were escorted by officer to defendant's home after being told
that police had a suspect in mind and defendant was positioned in front of headlights of squad car and
identified by two eyewitnesses who were seated together in back seat of car, was, absent exigent
circumstances, unnecessarily suggestive, but, where each witness had opportunity to see robber's face
during holdup, described robber and testified at time of identification that there was no doubt that
defendant was the robber and confrontation took place within an hour of crime, identification was reliable
and due process was not denied by admission of testimony describing identification. U.S.C.A.Const.
Amend. 14.
3. Criminal Law.
Factors to be weighed against corrupting effect of suggestive pretrial identification procedure include
witness' opportunity to view criminal at time of crime, witness' degree of attention, accuracy of his prior
description of criminal, level of certainty demonstrated at confrontation, and time between crime and
confrontation.
4. Criminal Law.
Despite contention that prosecutor's opening remarks gave rise to improper inference of prior criminal
activity, any inference of criminal activity was not at all obvious and defendant himself testified to previous
robbery conviction; thus, challenged statements did not prejudicially affect defendant's substantial rights.
NRS 47.040.
OPINION
Dennis Gehrke appeals his conviction for robbery with the use of a deadly weapon. Gehrke
asserts two grounds for reversal: {1) the pretrial identification was unduly suggestive and
unreliable, and {2) the prosecutor's opening remarks gave rise to an improper inference
of prior criminal activity by Gehrke.
reversal: (1) the pretrial identification was unduly suggestive and unreliable, and (2) the
prosecutor's opening remarks gave rise to an improper inference of prior criminal activity by
Gehrke. We affirm.
At about 3:15 a.m. on September 21, 1977, a Las Vegas gas station attendant was robbed
at gun point. He and his girlfriend were the only witnesses to the crime. The police were
summoned. The victim described the robber as 5'9, 135-140 pounds, with sandy-colored hair
and brownish-green eyes. The eyewitness described the man as having brownish hair and
light green eyes. Both reported that the robber wore blue jeans, a yellow windbreaker, and a
blond wig, and that he ran in an awkward manner. They noted the direction he ran and where
he was last seen. The police gave to the victim and the eyewitness different mugshot books.
Each one chose a photo that was similar in appearance to the robber. Based upon the
descriptions and the similar-looking mugshots, an officer suspected that Gehrke was the
robber.
In the meantime, an officer and dog from the K-9 division began to search on foot for the
robber, beginning at the corner where the robber was last seen. The dog behaved differently
when they neared the Gehrke house; therefore, the officer decided to watch the house. Shortly
thereafter, a man matching the eyewitness description, but not wearing a wig or windbreaker,
drove up to the house, staggered to the front door, and entered.
1
The officer radioed that he
had located a suspect.
The eyewitnesses were taken to the Gehrke house to identify a suspect. Gehrke was
brought outside and placed in front of the headlights of the police car in which the
eyewitnesses were sitting. Although he was not wearing a yellow windbreaker or blond wig,
each eyewitness positively identified Gehrke as the robber. The victim also recognized a
leather holster found in the Gehrkes' Fiat as similar to the one carried by the robber.
I.
Gehrke argues that the pretrial identification at his house was unduly suggestive and that,
therefore, the trial court erred by admitting testimony describing the identification.
[Headnote 1]
The pretrial identification preceded formal charges and, therefore, the case is governed by
the standard enunciated in Stovall v. Denno, 388 U.S. 293 (1967). Jones v. State, 95 Nev.
613, 600 P.2d 247 (1979). The test is whether, considering all the circumstances, "the
confrontation conducted in this case was so unnecessarily suggestive and conducive to
irreparable mistaken identification that [appellant] was denied due process of law".
____________________

1
Gehrke's father testified that he had gone to the store for some medicine at approximately 3:30 a.m.
the circumstances, the confrontation conducted in this case was so unnecessarily suggestive
and conducive to irreparable mistaken identification that [appellant] was denied due process
of law. Stovall, 388 U.S. at 301-302; Manson v. Braithwaite, 432 U.S. 98 (1977); Jones, 95
Nev. 613. Short of that, it is for the jury to weigh the evidence and assess the credibility of the
eyewitnesses. Id.; Wise v. State, 92 Nev. 181, 547 P.2d 314 (1976).
[Headnote 2]
A review of the circumstances in this case reveals that the identification procedure was
unnecessarily suggestive. The eyewitnesses were escorted by an officer to Gehrke's home
after being told that the police had a suspect in mind. Gehrke was positioned in front of the
headlights of the squad car and identified by the two eyewitnesses who were seated together
in the back seat of the car. Because there were no exigent circumstances, the procedure was
unnecessary.
2

[Headnote 3]
Despite the unnecessarily suggestive procedure, the key question is whether the
identification was reliable. Manson, 432 U.S at 114; Jones, 95 Nev. 613. The factors to be
weighed against the corrupting effect of the suggestive procedure were set forth in Neil v.
Biggers, 409 U.S. 188 (1972), and include the witness' opportunity to view the criminal at the
time of the crime, the witness' degree of attention, the accuracy of his prior description of the
criminal, the level of certainty demonstrated at the confrontation, and the time between the
crime and the confrontation.
In this case, each witness had an opportunity to clearly see the robber's face during the
holdup. They described the robber as slender, with high cheek bones, sandy-colored hair, and
green eyes.
3
Each one testified that at the time of the identification there was no doubt that
Gehrke was the robber. Finally, the confrontation took place within an hour of the crime.
These factors indicate that the identification was reliable. There was no denial of due process.
II.
During his opening statement, the prosecutor stated that an officer had developed Gehrke
as a suspect based upon the
____________________

2
This court has recognized countervailing policy considerations that may justify prompt confrontations, such
as fresher memory and exoneration of innocent suspects. Jones, 95 Nev. 613; Banks v. State, 94 Nev. 90, 575
P.2d 592 (1978).

3
At trial, Gehrke testified that he has blue eyes and is taller than the victim had estimated.
description given by the witnesses and the fact that [the officer] knew that Mr. Gehrke, the
defendant, lived in the area, and knew him from prior occasions. Later in the trial, the officer
testified that he had seen Gehrke prior to September 21, 1977, the date of the crime. Gehrke
contends that the only logical inference to be drawn from those statements is that he was
involved in criminal activity prior to the robbery.
Evidence of other crimes is admissible only for certain specified purposes (NRS
48.045(2)) and only if its probative value outweighs its prejudicial effect (NRS 48.035(1)).
Otherwise, it is improper for a prosecutor to imply that a defendant was engaged in prior
criminal activity. See Theriault v. State, 92 Nev. 185, 547 P.2d 668 (1976); Garner v. State,
78 Nev. 366, 374 P.2d 525 (1962).
[Headnote 4]
In this case, any inference of criminal activity is not at all obvious. The officer also
testified that he knew where Gehrke's parents lived, which suggests that he could have been a
friend of the Gehrke family. Furthermore, Gehrke himself testified that he was convicted of
robbery in 1972. Taken in the context of the entire case, the challenged statements did not
prejudicially affect Gehrke's substantial rights. Gehrke was not denied a fair trial and it was
not error to deny his motion for mistrial. NRS 47.040; Berger v. United States, 295 U.S. 78
(1935); United States v. Houde, 596 F.2d 696 (5th Cir. 1979); cf. Theriault, 92 Nev. at 190
(inference of criminal activity harmless in view of overwhelming evidence of guilt).
Finding no error, we affirm the judgment of conviction.
Thompson, Gunderson, and Manoukian, JJ., concur.
Mowbray, C. J., concurring:
I fully concur with the views expressed in the opinion of my Brother Batjer. I write
separately to emphasize my concern with the constitutional problems raised by suggestive
identification procedures.
Under the applicable due process standards we are required to weigh the factors in favor of
the reliability of an identification, Neil v. Biggers, 409 U.S 188, 198 (1972), against the
corrupting effect of the suggestive identification itself. Manson v. Braithwaite, 432 U.S. 98,
114 (1977). Factors indicating the reliability of the identification are present in this case, ante
at 3. The procedure used, however, was suggestive. The witnesses were taken to appellant's
home at four in the morning, after police officers had indicated that appellant fit the
description the witnesses had given; appellant was escorted before the headlights of a police
car in the company of police officers; the witnesses were seated together in the back seat
of the police car, where their initial reaction, whether correct or not, could be reinforced.
witnesses were seated together in the back seat of the police car, where their initial reaction,
whether correct or not, could be reinforced. This procedure was suggestive, Neil v. Biggers,
409 U.S. at 198; and since there was no emergency, see Stovall v. Denno, 388 U.S. 293, 302
(1967), or other exigent circumstances, this increased possibility of misidentification was
gratuitous as well. Manson v. Braithwaite, 432 U.S at 109.
While the factors indicating the reliability of the identification in this case outweigh the
possible corrupting effect of the suggestive procedure, I am disturbed by the testimony in the
record which suggests that this sort of procedure is commonplace.
I believe that unnecessarily suggestive identification procedures may not be tolerated if
this Court is to continue to deal with these cases on an ad hoc basis, assessing the totality of
the circumstances of each case, rather than by enforcing rules when such procedures are
employed. See Manson v. Braithwaite, 432 U.S. at 111-112. The economic and societal costs
incident to these procedures are substantial: judicial time and resources are expended in
processing these appeals, and otherwise valid convictions are called into question. We cannot
ignore such procedures.
In short, I believe that the administration of criminal justice would be well served if
procedures which are either unduly or unnecessarily suggestive are avoided.
1
If followed,
this appeal and many others similarly grounded would not therefore be taken.
____________________

1
While formal line-up procedures are not necessary in all situations, see ALI Model Code of
Pre-Arraignment Procedure 160.1 and 160.2 (1975); Manson v. Braithwaite, 432 U.S. at 111; the
identification procedures should be as free of suggestion as possible.
____________
96 Nev. 586, 586 (1980) Havas v. Atlantic Insurance Co.
VICTOR HAVAS and ARLENE HAVAS, Appellants, v. ATLANTIC INSURANCE
COMPANY, a Foreign Corporation Duly Licensed to do Business in the State
of Nevada, Respondent.
No. 10708
July 17, 1980 614 P.2d 1
Appeal from judgment; Eighth Judicial District Court, Clark County, William P. Beko,
Judge.
Action was brought by homeowner's insurer for declaratory judgment that it was not liable
to insureds for water damage to their home.
their home. The district court ruled that recovery was barred by lack of timely notice, and
appeal followed. The Supreme Court held that insurer, which agreed to investigate validity of
claim while specifically reserving all defenses available to it, and which subsequently denied
claim as falling within policy exclusion, was not precluded from relying on late notice
provision.
Affirmed.
Richard A. Wright and George E. Franzen, of Las Vegas, for Appellants.
Rose, Edwards, Hunt & Pearson, of Las Vegas, for Respondent.
1. Insurance.
Waiver by insurer is intentional relinquishment of a known right and intent may be express or implied
from the circumstances.
2. Insurance.
Where insurer's denial of coverage on one ground encourages or excuses insured's untimely notice, late
notice defense is generally held to be waived but, where insurer asserts late notice defense from outset via
non-waiver agreement, a subsequent denial of coverage on other grounds does not constitute a waiver of
notice defense.
3. Insurance.
Homeowner's insurer, which informed insureds that there was a problem with timeliness of their claim for
water damage and obtained a non-waiver release, which by this release agreed to investigate validity of
claim while specifically reserving all defenses available to it, and which then denied claim as falling within
exclusion provision of policy, did not waive and was not precluded from relying on late notice provision of
policy and thus insureds, who conceded that notice was untimely, were barred from recovering under
policy.
OPINION
Per Curiam:
This action was commenced by Atlantic Insurance Company seeking a declaratory
judgment that it was not liable to appellants for water damage to their home. The district
court ruled that the water damage was covered by the policy but that recovery was barred by
appellants' lack of timely notice to Atlantic. This appeal followed.
Appellants' carpet and wallpaper were damaged from flooding caused by a malfunction of
their water softener. Unable to recover their expenses from the water softener supplier and his
insured, appellants filed a claim with Atlantic, their own insurer under a homeowner's policy.
Although the homeowner's policy required appellants to give Atlantic immediate written
notice of any loss, the claim was not filed until 16 months after the accident occurred.
Appellants were informed that there was a problem with the timeliness of their claim and
agreed to sign a non-waiver release. By this release, Atlantic agreed to investigate the validity
of the claim while specifically reserving all defenses available to it. Appellants' claim
subsequently was denied as falling within the exclusion provision of the policy. Appellants
assert that by this action, Atlantic waived the late notice defense and therefore cannot rely on
it to deny coverage.
[Headnotes 1-3]
A waiver is the intentional relinquishment of a known right. Violin v. Firemen's Fund Ins.
Co., 81 Nev. 456, 406 P.2d 287 (1965). The intent may be express or implied from the
circumstances. Id. at 462; American Home Assur. Co. v. Harvey's Wagon Wheel, Inc., 398
F.Supp. 379 (D.Nev. 1975). Where the insurer's denial of coverage on one ground encourages
or excuses the insured's untimely notice, the late notice defense is generally held to be
waived. See e.g., Couey v. National Benefit Life Ins. Co., 424 P.2d 793 (N.M. 1967); Grant
v. Sun Indemnity Co. of New York, 80 P.2d 996 (Cal. 1938); Bloom v. Wolfe, 547 P.2d 934
(Colo.App. 1976). Where, however, the insurer asserts the late notice defense from the outset
via a non-waiver agreement, a subsequent denial of coverage on other grounds does not
constitute a waiver of the notice defense. Roberts v. Jersey Insurance Company of New York,
457 S.W.2d 244 (Mo.App. 1970); Allied Steel Construction Co. v. Employers Casualty Co.,
422 F.2d 1369 (10th Cir. 1970). Atlantic, therefore, was not precluded from relying on the
late notice provision of the policy. As appellants concede that notice was not timely, the
district court correctly found that appellants were barred from recovering under the policy.
Atlantic's motion for fees pursuant to NRAP 38 is denied. This appeal is neither frivolous
nor a misuse of the processes of this court.
1

Affirmed.
Thompson, Manoukian, and Batjer, JJ., and Torvinen, D. J., and Fondi, D. J., concur.
____________________

1
The Governor, pursuant to art. 6, 4, of the Constitution, designated Judge Roy L. Torvinen of the Second
Judicial District Court to sit in the stead of Mr. Chief Justice Mowbray.
The Governor, pursuant to art. 6 4, of the Constitution, designated Judge Michael E. Fondi of the First
Judicial District Court to sit in the stead of Mr. Justice Gunderson.
____________
96 Nev. 589, 589 (1980) Riddle v. State
CYNTHIA LYNN RIDDLE, Appellant, v. THE
No. 11721
July 21, 1980 613 P.2d 1031
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Defendant was convicted in the district court of murder in the second degree, and she
appealed. The Supreme Court held that: (1) where defendant did not allege that she knew of
victim's predisposition for violence at time of incident, and district attorney's investigation
revealed only an outstanding traffic citation against victim, trial court did not abuse its
discretion in denying defendant's motion for discovery; (2) where defendant made no
objection and there was no request for instruction that jury should disregard remarks of trial
judge, defendant could not argue on appeal that such remarks were so prejudicial that she was
denied fair trial by impartial jury; and (3) where there was no evidence that defendant was
ever placed in fear of her life and habitation, she was not entitled to have jury instructed on
self-defense and justifiable homicide.
Affirmed.
Alan R. Harter, Las Vegas, for Appellant.
John Redlein, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Trial court is vested with authority to order discovery and inspection of materials in possession of state;
exercise of court's discretion, however, is predicated on showing that evidence sought is material to
preparation of defense and existence of evidence is known or, by exercise of due diligence, may become
known to district attorney. NRS 174.235, 174.245.
2. Criminal Law.
Where defendant, charged with second degree murder, did not allege that she knew of victim's
predisposition for violence at time of incident, and district attorney's office had conducted investigation for
any complaints which may have been filed against victim and discovered only outstanding traffic citation,
trial court did not abuse its discretion in denying motion for discovery for evidence concerning victim's
character. NRS 174.235, 174.245.
3. Criminal Law.
Trial judges must avoid conduct from which jury may infer bias; however, unless error is plain,
contemporaneous objection is required to preserve assignment of error for appeal. NRS 178.602.
4. Criminal Law.
Where defendant made no objection to remarks of trial judge, and there was no request for instruction
that complained of admonitions be disregarded, and such remarks did not amount to plain
error, defendant could not argue on appeal that remarks of trial judge were so
prejudicial that she was denied fair trial by impartial jury.
disregarded, and such remarks did not amount to plain error, defendant could not argue on appeal that
remarks of trial judge were so prejudicial that she was denied fair trial by impartial jury. NRS 178.602.
5. Criminal Law.
Defendant is entitled to have jury instructed as to his theory of case; however, instruction need not be
given unless there is supportive evidence.
6. Homicide.
Where there was no evidence that defendant was ever placed in fear of her life or habitation, but, rather,
victim remained seated on sofa and made no threatening gesture toward defendant, trial court, in murder
prosecution, did not err in denying defendant's proposed jury instructions concerning self-defense and
justifiable homicide.
OPINION
Per Curiam:
A jury convicted Cynthia Lynn Riddle of murder in the second degree for the shooting
death of Brenda Campbell. The facts are not in dispute. On July 24, 1978, Brenda Campbell
was spending the afternoon with relatives at the appellant's residence. After several
arguments, the appellant left the room, returned with a gun, and shot Brenda Campbell. The
decedent was seated on a sofa and had made no threatening gesture toward the appellant.
[Headnotes 1, 2]
1. Appellant contends that denial of her motion for discovery so prejudiced the defense
trial preparation concerning the decedent's character that a new trial is warranted. We
disagree.
The trial court is vested with the authority to order the discovery and inspection of
materials in the possession of the state. The exercise of the court's discretion, however, is
predicated on a showing that the evidence sought is material to the preparation of the defense
and the existence of the evidence is known or, by the exercise of due diligence, may become
known to the district attorney. NRS 174.235, 174.245. Here, evidence of the decedent's
predisposition for violence would only be material if appellant had known of it at the time of
the incident. This was not alleged in her motion for discovery. Furthermore, the district
attorney's office had conducted an investigation for any complaints which may have been
filed against the deceased. All that the search revealed was that the victim had an outstanding
traffic citation. Under these circumstances the denial of the motion for discovery was not an
abuse of discretion.
[Headnotes 3, 4]
2. Appellant next argues that the remarks of the trial judge were so prejudicial that she
was denied a fair trial by an impartial jury.
were so prejudicial that she was denied a fair trial by an impartial jury. We recognize that trial
judges must avoid conduct from which the jury may infer bias, State v. Boyle, 49 Nev. 386,
397, 248 P. 48, 52 (1926); however, unless the error is plain, NRS 178.602, a
contemporaneous objection is required to preserve an assignment of error for appeal. See
Cutler v. State, 93 Nev. 329, 336, 566 P.2d 809, 813 (1977); Hayden v. State, 91 Nev. 474,
476, 538 P.2d 583, 584 (1975); Clark v. State, 89 Nev. 392, 393, 513 P.2d 1224 (1973). Here,
appellant made no objection and there was no request for an instruction that the complained
of admonitions be disregarded. Furthermore, we do not believe that the remarks of the trial
judge amount to plain error.
[Headnotes 5, 6]
3. Finally, appellant contends that the trial court's failure to give the proposed jury
instructions concerning self-defense and justifiable homicide resulted in a denial of a jury
trial on every material issue. A defendant is entitled to have the jury instructed as to his theory
of the case, Barger v. State, 81 Nev. 548, 550, 407 P.2d 584, 585 (1965); however, an
instruction need not be given unless there is supportive evidence. Mirin v. State, 93 Nev. 57,
59, 560 P.2d 145, 146 (1977); Williams v. State, 91 Nev. 533, 535, 539 P.2d 461, 462
(1975); Walker v. State, 85 Nev. 337, 344, 455 P.2d 34, 38 (1969). Here, there was no
evidence that the appellant was ever placed in fear of her life or habitation. The victim
remained seated on the sofa and made no threatening gesture toward the appellant. Therefore,
it was not error to deny the proffered instructions.
We affirm the judgment of the lower court.
1
concur.
____________________

1
The Chief Justice designated Hon. David Zenoff, Senior Justice, to sit in this case in the place of the Hon. E.
M. Gunderson, Justice. Nev. Const. art. 6, 19; SCR 10.
____________
96 Nev. 592, 592 (1980) Vipperman v. State
FRANK DELANO VIPPERMAN, Appellant, v. THE
No. 11634
July 21, 1980 614 P.2d 532
Appeal from judgment of conviction of murder in the second degree, Eighth Judicial
District Court, Clark County; Carl J. Christensen, Judge.
The Supreme Court, Manoukian, J., held that evidence indicating that murder victim was
dealing in stolen automobiles was not relevant to determination of guilt of defendant, who
was victim's business partner, and was thus properly excluded from trial at which sole
defense raised was that of alibi.
Affirmed.
Jeffrey Sobel, Las Vegas, for Appellant.
1. Criminal Law.
Evidence indicating that murder victim was dealing in stolen automobiles was not relevant to
determination of guilt of defendant, who was victim's business partner, and was thus properly excluded
from trial at which sole defense raised was that of alibi. NRS 48.015.
Due process assures an accused the right to introduce into evidence any testimony or documentation
which would tend to prove a defendant's theory of the case. U.S.C.A.Const. Amend. 14; NRS 48.015.
OPINION
Appellant, Frank Delano Vipperman, appeals from a conviction by jury of murder in the
second degree. He was sentenced to life imprisonment. There are several assignments of
error. We have determined, however, that only one issue warrants our considerationthat is,
whether the trial court erred in excluding proffered evidence claimed to have been material to
appellant's defense.
[Headnote 1]
On April 20, 1973, William Parquette was shot and killed in Las Vegas. Appellant was
subsequently charged by information with the homicide.
1
It was the state's theory that a
hostile relationship existed between appellant and the victim who were partners in an auto
body and used automobile business. The state attempted to show that appellant wanted his
money out of the business and that the victim would not give it to him. The partnership
agreement provided that in the event of the death of either party, the surviving partner would
become the sole owner of all partnership assets. The state essentially argued that appellant
dissolved the partnership with a shotgun.
The state presented a witness, Dave McPeak, an employee of the partnership, who testified
that he saw appellant shoot Parquette. The witness first testified that he heard appellant
threaten the victim during several telephone conversations. He then stated that, on April 20,
1973, he and the victim were working at the used car lot and body shop until about 7:00 p.m.
Parquette went to lock up and the witness remained in the body shop. The witness then heard
a shot and a scream and went to investigate. The victim was yelling Frank shot me as he
held his wrist and was spinning around. The witness was about to help when he saw appellant
standing nearby with a gun. The witness turned, the gun went off, and he crawled underneath
a car before running to the building next door.
There was additional testimony as to threats by appellant against the victim. The state also
pointed out that appellant was able to account for every minute he spent on that day, except
for the period between 7:00 and 10:00 p.m. Appellant attempted to show that McPeak, the
alleged eye witness, was in fact lying and that appellant did not kill the victim. Vipperman
testified that the friction between the two men was due in large part to the fact that the victim
was not conducting the business responsibly. Because of that, appellant decided that he
wanted to dissolve the partnership. In furtherance of this decision, appellant called the FBI
and the Department of Motor Vehicles in order to report Parquette's involvement in stolen
automobiles which Parquette and a girl living with him had obtained. Appellant testified that
he had asked Parquette if there was any way he could get his share of partnership money
back. It was on this occasion that appellant purportedly was informed by Parquette that
he knew appellant had turned Parquette in to the authorities.
____________________

1
Appellant was previously convicted of second degree murder. That conviction was reversed by this court.
Vipperman v. State, 92 Nev. 213, 547 P.2d 682 (1976) (district attorney's repeated questioning of defendant
with regard to his failure to reveal alibi to police constituted prejudicial error). Appellant was subsequently
retried and convicted. It is the second conviction which prompts the instant appeal.
on this occasion that appellant purportedly was informed by Parquette that he knew appellant
had turned Parquette in to the authorities. Appellant also testified that Parquette said that the
only thing that appellant was going to get out of him was a face full of desert.
When appellant was told this, he decided to leave for California. He was scared and
nervous. On the day of the homicide, appellant purchased a shotgun from a pawnshop
believing that he could discourage Parquette if Parquette saw that appellant had a gun.
Appellant also testified that he was certain that Parquette would have somebody after him and
appellant stated that on that day he saw men following him. Appellant testified that he missed
his scheduled plane to California and then went to the bus station. He left his suitcase in a
locker at the bus station and took a cab from downtown. Appellant said that he took his car
downtown and parked at a hotel, leaving the shotgun in the car. He testified that he met a girl
at a downtown casino and spent time with her from 7:00 to 10:00 p.m., after having been
drinking all day. When he returned to his car, he discovered that the shotgun was missing.
When he arrived back at his house, he was arrested.
Vipperman first testified without objection to the fact that he had contacted the FBI and
the Department of Motor Vehicles with regard to Parquette's involvement with stolen
vehicles. Appellant then introduced the testimony of an FBI agent who stated that the FBI had
received information of the possible involvement of Parquette in the possession of stolen
cars. Appellant attempted to elicit testimony from the agent as to what happened as a result of
that information. According to the offer of proof, the agent would testify that the FBI had the
Las Vegas Police impound stolen vehicles found at Parquette's home one week after the
homicide and, shortly thereafter, the FBI terminated its investigation. Vipperman argued that
this testimony would directly corroborate appellant's testimony that Parquette was in fact
dealing in stolen cars and that Parquette made the threat to appellant that he would get a face
full of desert. The state argued that not only was this hearsay, but that what transpired
subsequent to the death of Parquette was irrelevant and immaterial to the case. The objection
was sustained. Appellant also attempted to introduce the testimony of a records supervisor
from the Las Vegas Metropolitan Police Department which indicated that the vehicles found
on the property next to the body shop were actually stolen. The court also sustained the
objection to this offer and stated that the fact that the victim was dealing illegally in stolen
cars was irrelevant, immaterial and remote. In the context of this case, we agree.
The fact that stolen vehicles were found on the victim's property after his death may be
relevant toward showing that he was dealing in stolen cars and may have threatened
appellant, but such fact is not material to whether or not appellant killed Parquette. See
Conforte v. State, 77 Nev. 269, 362 P.2d 274 (1961). Our statutes provide that evidence is
relevant and admissible if it has any tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable than it would be
without the evidence.NRS 48.015 (emphasis added). The evidence which was admitted, if
believed, makes it rather clear that Parquette knew he had been turned in by appellant and it is
very likely Parquette made the threat appellant said was made. But appellant's sole defense
was that of alibi. Therefore, even though the excluded evidence was offered to prove that it
was more likely Parquette made a threat than it would have appeared without the evidence,
such evidence was simply not of consequence to the determination of the action.
Appellant argues, citing Johnstone v. State, 92 Nev. 241, 548 P.2d 1362 (1976), that the
evidence was admissible and highly relevant and that this was evidence which could have
been used by the jury as a basis for acquittal. In Johnstone, hearsay testimony tended to prove
that appellant was not with companions when they killed the victims. There was a logical
connection between the evidence and appellant's claim that he did not commit the crime. In
the instant case, appellant contended that he did not commit the crime and was with an
unidentified female at the time the homicide occurred. The evidence that stolen vehicles were
found on the victim's property and the fact that the stolen car investigation ceased after
Parquette's death were proffered to prove involvement with stolen cars and to substantiate the
fact that a threat was made by Parquette. These matters would tend to prove a claim of
self-defense or provocation by appellant rather than an alibi. Appellant, though, failed to
claim self-defense or provocation. Had he done so, the evidence likely would have been
relevant. The only reason proffered for introduction of the evidence was to corroborate
appellant's position as to threats made by the victim
2
and was thus properly excluded.
____________________

2
In closing argument, the prosecutor said that defense counsel might claim the homicide was committed by
Jack Heath to put the quietus on this investigation into stolen cars. The prosecutor also said it was ridiculous
to believe that an investigation would be dropped if the victim was killed. Defense counsel claimed that this
argument was improper since the defense previously was unable to show that the investigation did in fact cease.
It must be emphasized, however, that at no time did appellant assert that evidence of the investigation being
stopped would tend to show that another person committed the homicide. Again, the only reason given at the
time the evidence was proffered was
[Headnote 2]
The due process clauses in our constitutions assure an accused the right to introduce into
evidence any testimony or documentation which would tend to prove the defendant's theory
of the case. United States v. Nixon, 418 U.S. 683, 711 (1974); State v. Fouquette, 67 Nev.
505, 514, 221 P.2d 404, 409 (1950). In this case, appellant fully presented his defense,
including the alibi theory, and presented favorable character testimony, evidence of his
intoxication, and even irrelevant evidence of the decedent's probable involvement with stolen
vehicles. The trial court properly ruled that the evidence appellant attempted to elicit through
law enforcement authorities was confusing, misleading, remote and unduly time-consuming.
NRS 48.035. The evidentiary exclusion did not constitute an improper obstruction into
matters relevant and material to appellant's case. The substantial rights of the accused were
not violated. NRS 47.040, 177.255, 178.598.
Other contentions of error are wholly without merit. We affirm the judgment of
conviction.
To prove appellant killed Parquette, the State established that appellant had purchased the
death weapon on the day of the homicide. Interpreted as an act of preparation, this purchase
inferentially helped evidence appellant's presence and participation in Parquette's murder.
Attempting to prove his theory of the case, i.e. that another had killed Parquette, while he
himself was elsewhere, it obviously became important for appellant to establish the innocent
nature of the purchase, from which his preparation and guilt might otherwise be inferred. For
this purpose, evidence corroborating appellant's explanation that the weapon had not been
purchased as preparation for Parquette's murder, but for self-defense, was clearly relevant.
Thus, it is unclear to me how it may logically be said that the evidence in question was
simply not of consequence to the determination of the action.'
____________________
that it would corroborate appellant's testimony that he was threatened by Parquette. As such, the court did not err
in excluding evidence that the investigation ceased based on reasons then presented by appellant attempting to
show relevance.
____________
96 Nev. 597, 597 (1980) In re Knast
In the Matter of the Application of LEONARD KNAST,
for a Writ of Habeas Corpus, Petitioner.
No. 12576
July 21, 1980 614 P.2d 2
In original proceeding in habeas corpus, the Supreme Court held that even if proof was
evident or presumption great that petitioner had committed first degree murder, without an
aggravating circumstance case could not be considered capital one, and absent finding that
proof was evident or presumption great that such circumstance was present, bail could not be
constitutionally denied.
Writ granted.
Johnson, Belaustegui & Robison, Reno, and Puccinelli & Puccinelli, Elko, for Petitioner.
Thomas L. Stringfield, District Attorney, Elko County, for Respondent.
1. Bail.
Punishment should follow conviction, not precede it, and right to bail is consonant with presumption of
innocence that attaches to all defendants prior to conviction, and Nevada Constitution admits of but one
exception to right, a capital case where proof is evident or presumption great that defendant had committed
crime. Const. art. 1, 7.
2. Bail.
Even if proof was evident or presumption great that habeas corpus petitioner had committed first degree
murder, without an aggravating circumstance case could not be considered capital one, and absent finding
that proof was evident or presumption great that such circumstance was present, bail could not be
constitutionally denied. NRS 200.033; Const. art. 1, 7.
OPINION
Per Curiam:
By way of petition for a writ of habeas corpus, Leonard Knast challenges the refusal of the
district court to grant him release on bail pending his trial on open murder charges. See NRS
34.530. The state contended that aggravating circumstances which would justify imposition
of the death penalty were present under NRS 200.033(8). However, the district court in
denying bail held that it need not determine whether the death penalty could be imposed in
the case, but only whether the proof were evident or the presumption great that petitioner
would be convicted of first degree murder. Because of the substantial question presented
concerning the interpretation of Nev. Const. art.
96 Nev. 597, 598 (1980) In re Knast
of the substantial question presented concerning the interpretation of Nev. Const. art. 1, 7,
which provides for an absolute right to bail unless for Capital Offenses when the proof is
evident, or the presumption great, we ordered respondent to file an answer addressed to the
question of whether the writ should issue.
[Headnote 1]
Punishment should follow conviction, not precede it. Ex Parte Wheeler, 81 Nev. 495, 406
P.2d 713 (1965). The right to bail is consonant with the presumption of innocence that
attaches to all defendants prior to conviction. Id. Our constitution admits of but one exception
to the right, a capital case where the proof is evident or the presumption great. Howard v.
Sheriff, 83 Nev. 48, 422 P.2d 538 (1967); Ex Parte Wheeler, supra, State v. Teeter, 65 Nev.
584, 200 P.2d 657 (1948).
In St. Pierre v. Sheriff, 90 Nev. 282, 524 P.2d 1278 (1974), we held that one accused of
first degree murder had an absolute right to bail because, at the time, death was not an
available punishment for the crime. To hold to the contrary, we stated, would be saying that
first degree murder . . . is a capital crime for purposes of bail, but is non-capital for purposes
of punishment. Id. at 285, 524 P.2d at 1279.
[Headnote 2]
Subsequent to our decision in St. Pierre, the legislature amended the murder statutes. 1977
Nev. Stats. ch. 585, at 1541-6. In doing so, the legislature again made the death penalty an
available punishment for first degree murder. However, the punishment may be inflicted only
if at least one of the aggravating circumstances listed in NRS 200.033 is found. Thus, even if
the proof is evident or the presumption great that petitioner has committed first degree
murder, without an aggravating circumstance the case cannot be considered a capital one.
Absent a finding that the proof is evident or the presumption great that such a circumstance is
present, bail cannot be constitutionally denied.
1
The district court, in ruling to the contrary,
erred.
____________________

1
We note that at the time St. Pierre was decided, NRS 200.030 provided that murders committed under
certain circumstances were capital murder for which the penalty was death. By the 1977 amendments, the
legislature introduced a system of greater flexibility to be utilized when considering the death penalty. In
accomplishing this objective, the legislature abolished the crime of capital murder and made first degree
murder, when any aggravating circumstances were not outweighed by any mitigating circumstances, punishable
by death. The same substantive result could have been reached had the legislature
96 Nev. 597, 599 (1980) In re Knast
Accordingly, we grant the writ of habeas corpus entitling petitioner to release upon the
posting of reasonable bail in an amount to be set by the district court unless, upon
reconsideration, the district court determines that bail can be denied because the proof is
evident or the presumption great that the aggravating circumstances designated in NRS
200.033(8) were present.
____________________
retained the crime of capital murder and redefined it in terms of aggravating and mitigating circumstances.
Had this been done, it is clear that without an aggravating circumstance, St. Pierre would require that petitioner
be admitted to bail. We see no reason why what is essentially a matter of form should affect so substantial a right
as the right to bail.
____________
96 Nev. 599, 599 (1980) State, Dep't Mtr. Vehicles v. Palmer
STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES,
Appellant, v. FRANCES T. PALMER, Respondent.
No. 12044
July 28, 1980 614 P.2d 5
Appeal from judgment, Eighth Judicial District Court, Clark County; Howard W.
Babbock, Judge.
The district court remanded the case for a new hearing on issue of suspension of
respondent's driving privileges, and Department of Motor Vehicles appealed. The Supreme
Court held that conduct on part of respondent in failing to file an answering brief to appeal
and in failing to seek an extension of time to do so amounted to a confession of error and, as
such, required reversal of judgment in respondent's favor with instructions to dismiss, with
prejudice, respondent's petition for judicial review.
Reversed, with instructions.
Richard H. Bryan, Attorney General, Carson City; and Michael Kaplan, Deputy Attorney
General, Las Vegas, for Appellant.
Redmon & McGimsey, Ltd., Las Vegas, for Respondent.
Automobiles.
Conduct on part of respondent in failing to file an answering brief to appeal by the Department of Motor
Vehicles from a judgment remanding the case for a new hearing on issue of suspension of
respondent's driving privileges and in failing to seek an extension of a time to file an
answering brief amounted to a confession of error and, as such, required reversal of
judgment with instructions to dismiss, with prejudice, respondent's petition for
judicial review.
96 Nev. 599, 600 (1980) State, Dep't Mtr. Vehicles v. Palmer
the case for a new hearing on issue of suspension of respondent's driving privileges and in failing to seek an
extension of a time to file an answering brief amounted to a confession of error and, as such, required
reversal of judgment with instructions to dismiss, with prejudice, respondent's petition for judicial review.
NRS 484.383; NRAP 31(c).
OPINION
Per Curiam:
The Department of Motor Vehicles appeals from a judgment entered June 26, 1979,
remanding this case for a new hearing. Previously a hearing officer had determined that
respondent's refusal to submit to a blood, urine, or breath test violated Nevada's Implied
Consent Law. See NRS 484.383. Respondent's driving privileges were ordered suspended for
a period of six months.
Pursuant to an order of this court, respondent's answering brief was due on December 31,
1979. To this date, no answering brief has been filed; no extension of time to do so has been
sought or granted. Thus, respondent's answering brief is now more than six months overdue.
Under these circumstances, we elect to treat respondent's conduct as a confession of error.
NRAP 31(c); State, Dep't Motor Vehicles v. Stone, 94 Nev. 775, 587 P.2d 1325 (1978);
Kitchen Factors, Inc. v. Brown, 91 Nev. 308, 535 P.2d 677 (1975).
The judgment in respondent's favor is reversed and the district court is instructed to
dismiss, with prejudice, the petition for judicial review filed by respondent in the district
court on March 14, 1979.
____________
96 Nev. 600, 600 (1980) Summa Corp. v. District Court
SUMMA CORPORATION, a Delaware Corporation, Petitioner, v. THE EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, THE HONORABLE JOHN
F. MENDOZA, Judge; MOBIL OIL CORPORATION, a New York Corporation; and FIRST
WESTERN SAVINGS ASSOCIATION, a Nevada Corporation, Respondents.
No. 12175
July 28, 1980 614 P.2d 4
Original petition for mandamus.
Lessor's transferee brought action against lessee and optionee, which held option to
purchase land covered by the lease, seeking declaratory judgment that the lease was
terminated and that optionee's option was unenforceable.
lease, seeking declaratory judgment that the lease was terminated and that optionee's option
was unenforceable. The district court initially granted transferee's motion for partial summary
judgment but, on rehearing, denied the motion, and transferee brought proceeding in
mandamus seeking to compel entry of partial summary judgment. The Supreme Court held
that issue as to whether lessee had received notice to transfer of the lease precluded summary
judgment.
Writ denied.
Lionel Sawyer & Collins, of Las Vegas, for Petitioner.
Vargas, Bartlett & Dixon and Christopher L. Kaempfer, of Las Vegas, for Respondents.
1. Mandamus.
A writ of mandamus will issue to compel entry of a summary judgment when there is no genuine issue as
to any material fact and movant is entitled to judgment as a matter of law.
Transferee of lessor had affirmative duty to give notice to lessee of transfer of the lease.
3. Judgment.
Whether lessee had notice of lessor's transfer of lease was issue of fact precluding summary judgment for
optionee, who had option to purchase land covered by the lease, in action brought by transferee of lessor
which sought judicial determination that its lease was terminated and that optionee's option was
unenforceable.
OPINION
Per Curiam:
Petitioner, Summa Corporation, is a defendant in a declaratory judgment action
commenced by First Western Savings Association against Summa and Mobil Oil Co. In that
action, First Western sought a judicial determination that its lease with Mobil Oil was
terminated and that Summa's option to purchase the land covered by Mobil's lease was
unenforceable.
Summa moved for partial summary judgment against First Western and Mobil. This
motion was granted and Summa was awarded damages, costs and attorney's fees in an amount
to be determined at trial. Mobil petitioned for a rehearing, which was granted. At a rehearing
on the motion, the district court ruled that material issues of fact remained and denied
Summa's motion. Summa, through this proceeding in mandamus, seeks to compel the entry of
partial summary judgment.
[Headnote 1]
A writ of mandamus will issue to compel entry of a summary judgment when there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter
of law.
judgment when there is no genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law. Hoffman v. District Court, 90 Nev. 267, 523 P.2d 848 (1974);
Holloway v. Barrett, 87 Nev. 385, 487 P.2d 501 (1971); Dzack v. Marshall, 80 Nev. 345, 393
P.2d 610 (1964); see NRCP 56(c); NRAP 3A(b)(5).
[Headnotes 2, 3]
In this case, Mobil's lease was properly terminated only if Mobil had or should have had
notice of its new lessor, First Western. First Western, as the transferee of a lessor, had an
affirmative duty to bring home to Mobil notice of the transfer of the lease. Snortland v.
Olsonawski, 238 N.W.2d 215 (Minn. 1976); Pillsbury Inv. Co. v. Otto, 65 N.W.2d 913
(Minn. 1954). Summa asserts that such notice can be inferred from a series of exchanges
between First Western and Mobil. As Mobil sent its renewal notice to its prior lessor,
however, it can be inferred that Mobil had no notice of a change in its lessor. Indulging, as we
must, in all reasonable inferences favorable to Mobil, Round Hill Gen. Improvement v.
B-Neva, 96 Nev. 181, 606 P.2d 176 (1980), we cannot say that Mobil had such notice as a
matter of law.
1

Writ denied.
____________________

1
This a case was consolidated with Mobil Oil Corporation v. First Western Savings Association, Docket No.
11244, for the purpose of oral argument.
____________
96 Nev. 602, 602 (1980) Mobil Oil v. First W. Savings
MOBIL OIL CORPORATION, a New York Corporation, Appellant, v. FIRST WESTERN
SAVINGS ASSOCIATION, a Nevada Corporation, Respondent.
No. 11244
July 28, 1980 614 P.2d 6
Appeal from summary judgment; Eighth Judicial District Court, Clark County, Thomas J.
O'Donnell, Judge.
Transferee of lessor brought action against lessee of determination of parties' right and
duties in certain leased premises. The district court entered summary judgment in favor of the
transferee, and appeal was taken. The Supreme Court held that genuine issue of material fact
existed as to whether lessee had requisite notice of change of ownership, either actual or that
arising from exchanges between the parties, so as to require lessee to send renewal notice to
transferee in order to be entitled to renew, thus precluding summary judgment in favor of
transferee.
lessee to send renewal notice to transferee in order to be entitled to renew, thus precluding
summary judgment in favor of transferee.
Reversed.
Vargas, Bartlett and Dixon and Christopher L. Kaempfer, of Las Vegas, for Appellant.
Dickerson, Miles & Pico and Bert O. Mitchell, of Las Vegas, for Respondent.
Transferee of lessor has affirmative duty to bring home to lessee notice of transfer of
lease; until this is done, obligation of lessee to perform his covenants does not extend to
transferee.
2. Judgment.
In declaratory judgment action transferee of lessor brought against lessee seeking
determination of parties' rights and duties in certain leased premises, genuine issue of
material fact existed as to whether lessee had requisite notice of change of ownership,
either actual or that arising from exchanges between the parties, so as to require lessee to
send renewal notice to transferee in order to be entitled to renew, thus precluding
summary judgment in favor of transferee.
OPINION
Per Curiam:
First Western Savings Association commenced this action for declaratory relief seeking a
determination of the parties' rights and duties in certain leased premises. The district court
found as a matter of law that Mobil's interest in the property was a month-to-month tenancy
and that the lease had terminated. Summary judgment was entered for First Western. It is
Mobil's appellate contention that material issues of fact remain and that the entry of summary
judgment was therefore error.
Mobil leased certain Las Vegas Strip property from First Western's predecessor in interest,
Theresa Cardinal. To renew its lease, Mobil was required to give notice of its election to
renew to the lessor at least 30 days prior to the expiration of the then current term. The lease
required all notices to be in writing and delivered personally or sent by registered or certified
mail to the lessor at a stated address unless changed by notice.
In 1961, Cardinal executed a deed of trust on the property to secure an obligation to First
Western. Thereafter, First Western notified Mobil that default proceedings had been instituted
against Cardinal and that during the default, rents were to be paid to First Western.
paid to First Western. In April of 1966, First Western foreclosed on its deed of trust and
became record owner of the premises. Notice of the change of ownership was never sent to
Mobil Oil.
By letter dated April 24, 1969, Mobil notified Theresa Cardinal of its intent to renew its
lease. It did not send like notice to First Western. In July of 1969, First Western notified
Mobil that by reason of its failure to send a renewal notice to First Western, the lease was
terminated. The district court agreed and this appeal followed.
[Headnote 1]
The transferee of a lessor has an affirmative duty to bring home to the lessee notice of the
transfer of the lease. Until this is done, the obligation of the lessee to perform his covenants
does not extend to the transferee. Snortland v. Olsonowski, 238 N.W.2d 215 (Minn. 1976);
Pillsbury Inv. Co. v. Otto, 65 N.W.2d 913 (Minn. 1954); cf. American Oil Co. v. Rasar, 308
S.W.2d 486 (Tenn. 1957) (where, in light of the factual circumstances, the court found such
notice as a matter of law).
[Headnote 2]
In this case, actual notice of the change in ownership was never given to Mobil by First
Western. Actual notice, however, is not required. Mobil may also be charged with all facts
which by proper inquiry it might have ascertained. Bottini v. Mongolo, 45 Nev. 245, 197 P.
702 (1921). First Western contends that Mobil's notice of a new lessor can be inferred from a
series of exchanges between the parties. In determining the propriety of a summary judgment,
however, we must indulge in all inferences favorable to appellant, Mobil Oil. Round Hill
Gen. Improvement v. B-Neva, 96 Nev. 181, 606 P.2d 176 (1980); American Fence, Inc. v.
Wham, 95 Nev. 788, 603 P.2d 274 (1979). The fact that Mobil sent its notice of renewal to
Theresa Cardinal rather than First Western gives rise to the inference that Mobil had no
notice of a change in its lessor. As an issue of material fact regarding such notice exists,
summary judgment should not have been granted.
1
McDermond v. Siemens, 96 Nev. 226,
607 P.2d 108 (1980).
Reversed.
____________________

1
This case was consolidated with Summa Corporation v. The Eighth Judicial District Court of the State of
Nevada, Docket No. 12175, for the purpose of oral argument.
____________
96 Nev. 605, 605 (1980) Clow v. Sheriff
TORRENCE M. CLOW, Appellant, v. SHERIFF, CLARK
COUNTY, NEVADA, Respondent.
No. 12634
July 28, 1980 614 P.2d 535
Appeal from denial of petition for a writ of habeas corpus, Eighth Judicial District Court,
Clark County; Stephen L. Huffaker, Judge.
The Supreme Court held that it lacked jurisdiction to entertain the appeal.
Appeal dismissed.
Peter L. Flangas, Las Vegas, for Appellant.
1. Habeas Corpus.
Supreme Court lacked jurisdiction to entertain pretrial petition for writ of habeas corpus. NRS 34.380
2. Criminal Law.
Failure to appeal issue of denial of habeas corpus relief for delay in bringing prosecution would not have
constituted a waiver such as would have precluded post-conviction review. NRS 34.380.
OPINION
Per Curiam:
Appellant sought a writ of habeas corpus in the district court on the ground of delay in
bringing the prosecution. The district court denied relief and the instant appeal was taken.
Respondent moves that we dismiss the appeal because we lack jurisdiction to entertain it.
[Headnote 1]
At its last session our legislature amended NRS 34.380 so as to preclude appeals in most
habeas matters, 1979 Nev. Stats. ch. 216, 1, at 312. In Gary v. Sheriff, 96 Nev. 78, 605 P.2d
212 (1980) and Konstantinidis v. Sheriff, 96 Nev. 285, 607 P.2d 584 (1980), we dismissed
appeals on the authority of the amendment where the issues raised were probable cause and
sufficiency of the indictment, respectively. While those decisions are not controlling here, as
they were limited to their facts, we perceive no reason why the reasoning of those opinions
is not equally applicable to the case at hand.
96 Nev. 605, 606 (1980) Clow v. Sheriff
facts, we perceive no reason why the reasoning of those opinions is not equally applicable to
the case at hand.
[Headnote 2]
Appellant argues, however, that we must entertain the instant appeal because, under prior
holdings of this court, see, e.g., Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966), failure
to appeal the issue at this time will constitute a waiver and preclude post-conviction review.
We disagree. Oberle was decided when pretrial appeal from a denial of a habeas petition was
an available remedy, and failure to pursue such a remedy was held to constitute a waiver.
However, with the passage of the amendment to NRS 34.380, the logical underpinnings of
Oberle were removed; clearly, a waiver cannot be inferred from the failure to appeal a
non-appealable order. Thus, appellant's contention is lacking in merit.
Accordingly, we order this appeal dismissed.
____________
96 Nev. 606, 606 (1980) Bottorff v. O'Donnell
JAMES E. BOTTORFF, Petitioner, v. THOMAS J. O'DONNELL, DISTRICT JUDGE,
EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, Respondent.
No. 12431
July 29, 1980 614 P.2d 7
Petitioner brought original proceedings in mandamus. The Supreme Court held that
mandamus was not appropriate to require that summary judgment be granted in favor of
divorced husband in action by title insurance company to recover excess sum paid to husband
and his ex-wife, despite affidavit stating that ex-husband had received none of the sale
proceeds of home which had been awarded wife by divorce decree.
Writ denied.
L. Earl Hawley, Las Vegas, for Petitioner.
Donald W. Haley, Las Vegas, for Respondent.
1. Mandamus.
Mandamus is an extraordinary remedy and, generally, petitioner seeking such relief must show that the
continuation of proceedings with respect to which mandamus relief is sought would be an exercise in
futility, that a clear question of law dispositive of the suit is presented, and that litigation is foreordained to
inevitable conclusion.
2. Mandamus.
Mandamus was not appropriate to require that summary judgment be granted in favor of divorced
husband in action by title insurance company to recover excess sum paid to husband and his ex-wife,
despite affidavit stating that ex-husband had received none of the sale proceeds of home which had been
awarded wife by divorce decree.
OPINION
Per Curiam:
In this original proceeding, petitioner seeks a writ of mandate directed to the district court
requiring that summary judgment in his favor be granted. See Dzack v. Marshall, 80 Nev.
345, 393 P.2d 610 (1964); NRAP 3A(b)(5).
From the limited record before us, it appears that petitioner and his ex-wife, while married,
purchased a home. As part of the subsequent divorce decree, the ex-wife was awarded the
house and agreed to assume all the obligations on it. However, no effort was made the change
the title.
Subsequently the house was sold. Due to a failure to detect a mortgage on the house, First
American Title Company of Nevada, the escrow agent/title insurance company, issued a
check made out to both petitioner and his ex-wife for an amount approximately $15,000 in
excess of the correct payment. Upon discovery of the outstanding obligation, the title
insurance company paid off the amount due and thereafter brought an action against
petitioner and his ex-wife, as co-defendants, to recover the sum.
Petitioner moved the district court for summary judgment. In support of the motion,
petitioner filed an affidavit stating in essence that while he was required to sign papers in
order to complete the sale, he had received none of the sale proceeds. The motion was also
supported by a copy of the divorce decree. In opposition to the motion, the title insurance
company submitted the affidavit of one of its officers which stated that the check issued by
the insurer was made out to and endorsed by both defendants.
[Headnotes 1, 2]
Mandamus is an extraordinary remedy. The normal judicial process is trial and appeal, not
final adjudication on pre-trial writs. Generally, a petitioner must show that continuation of the
proceedings would be an exercise in futility, and that the litigation, irrespective of what may
transpire at trial, is foreordained to its inevitable conclusion. Where such a showing is made,
this court will not hesitate to cut off the district court proceedings, the continuation of which
would be both expensive and meaningless. But the burden on the petitioner is a heavy one;
where such a petition is granted, the relevant facts are not in dispute and a clear question
of law, dispositive of the suit, is presented.
heavy one; where such a petition is granted, the relevant facts are not in dispute and a clear
question of law, dispositive of the suit, is presented. See, e. g., Ash Springs Dev. v.
O'Donnell, 95 Nev. 846, 603 P.2d 698 (1979) (writ granted where it was determined that
action, on agreed facts, was barred by the statute of limitations), Dzack v. Marshall, supra
(dispositive facts deemed admitted). Such is not the case here.
Writ denied.
____________
96 Nev. 608, 608 (1980) County of Clark v. Atlantic Seafoods
COUNTY OF CLARK; RALPH LAMB, Sheriff; GEORGE E. HOLT, District Attorney;
MANUEL CORTEZ, DAVID CANTER, SAM BOWLER, THALIA DONDERO,
RICHARD RONZONE, JACK PETITTI and ROBERT BROADBENT, in Their Capacity as
the LIQUOR LICENSING BOARD OF CLARK COUNTY, NEVADA, Appellants, v.
ATLANTIC SEAFOODS, INC., a Nevada Corporation, dba ATLANTIC
SEAFOODS, INC., Respondent.
No. 11582
July 29, 1980 615 P.2d 233
Appeal from order granting permanent writ of mandate. Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
Applicant, a seafood and fish market, filed petition for writ of mandamus to compel
county liquor licensing board to approve its application for package beer and wine license.
The district court entered order granting permanent writ of mandate, and board appealed. The
Supreme Court held that board abused its discretion in denying applicant's application,
because it was not based on a good and sufficient reason related to public's well-being, since
fact that applicant was seafood and fish market had no bearing on public health and welfare.
Affirmed.
Richard H. Bryan, Attorney General; Robert Miller, District Attorney, S. Mahlon
Edwards, Deputy District Attorney, for Appellants.
Bilbray & Carelli, for Respondent.
1. Intoxicating Liquors.
In Nevada, regulation of sale of liquor is delegated to county liquor boards composed of sheriff
and county commissioners, and wide discretion may be exercised by such boards in
reviewing applications for licenses.
boards composed of sheriff and county commissioners, and wide discretion may be exercised by such
boards in reviewing applications for licenses. NRS 244.350, subd. 1.
Requirement in applicable county code section that county liquor licensing board may deny license upon
its discretion for good and sufficient reason imposed limitation on board's exercise of discretion, as
board's decision had to be reasonably related to public welfare and not arbitrary and capricious.
County liquor licensing board abused its discretion in denying applicant's application for package beer
and wine license, because such denial was not based on a good and sufficient reason related to public's
well-being, since fact that applicant was seafood and fish market had no bearing on public health and
welfare, applicant appeared to be appropriate place to sell wine and beer, and board had not affirmatively
explained how denial promoted public welfare or why applicant would be inappropriate licensee.
4. Mandamus.
Mandamus is appropriate remedy when discretion is exercised arbitrarily or capriciously. NRS 34.160.
Where county liquor licensing board, in denying applicant's application for package beer and wine
license solely on fact that applicant was seafood and fish market, capriciously ignored standards and
criteria set forth in applicable county code section, district judge did not err by issuing permanent writ of
mandate to compel board to approve applicant's application.
OPINION
Per Curiam:
Atlantic Seafoods, Inc. filed an application for a package beer and wine license on August
17, 1978. The Clark County licensing bureau conducted an investigation and recommended
that Atlantic be granted a liquor license, noting that there were no other liquor licensees in the
vicinity.
On October 17, 1978, a hearing was held before the Clark County liquor licensing board.
Atlantic's owners testified that Atlantic is a seafood and fish market and that a liquor license
is desirable for the convenience of Atlantic's customers who cook and eat seafood with wine
or beer. The only opposition was Robert Keck, of the Las Vegas Restaurant and Tavern
Owners Association, who protested the present number of liquor licenses in Clark County,
and who said, we don't believe that the fish markets need a package beer and wine license.
The board voted to deny the license. No reason for the denial appears in the transcript of
the hearing. On appeal, the board admits that its denial was based solely on the fact that
Atlantic is a fish market.
Atlantic petitioned the district court for a writ of mandamus to compel the board to
approve Atlantic's liquor license application. On December 21, 1978, the district judge held
that there was no evidence to support the denial, and consequently, the board's exercise of
discretion was capricious and arbitrary. A permanent writ of mandamus was issued on
December 29, 1978. This appeal followed.
[Headnote 1]
There is no inherent right in a citizen to sell intoxicants. Gragson v. Toco, 90 Nev. 131,
133, 520 P.2d 616, 617 (1974). In Nevada, the regulation of the sale of liquor is delegated to
county liquor boards composed of the Sheriff and county commissioners. NRS 244.350(1).
Wide discretion may be exercised by the board in reviewing applications for licenses. Cf.
State ex rel. Grimes v. Board, 53 Nev. 364, 1 P.2d 570 (1931) (city enjoys discretion to
control gambling). The Clark County Code 8.20.010(b) limits the board's discretion by
listing six reasons to deny a liquor license.
1

In this case, the board relied upon the last ground, for any other good and sufficient
reason. The board argues that the fact that Atlantic is a fish market is a sufficient reason to
deny its application for a license.
[Headnote 2]
The requirement of good and sufficient reason imposes a limitation on the board's
exercise of discretion. The board's decision must be reasonably related to the public welfare
and not arbitrary and capricious. See Kirby v. Alcoholic Beverage Control Appeals Board,
498 P.2d 1105 (Cal. 1972) (for good cause).
2
In the past, we have upheld revocations or
denials
____________________

1
8.20.010:
(b) In conformity with the policy of this chapter, the liquor board may deny a license upon its
discretion when:
(1) In the judgment of the board, the granting of such license may tend to create or constitute a
public nuisance;
(2) By the granting of such license, a disorderly house or place may be maintained;
(3) The granting of such license may seriously and adversely affect the valuation of adjoining and
contiguous property;
(4) The board is satisfied that the applicant is not a fit and proper person to operate the business
contemplated by his application;
(5) In the judgment of the board there are ample and sufficient licensees and establishments in the
area or place for which the license is to be used to properly serve such area or place;
(6) For any other good and sufficient reason.

2
In a different context, we held that for any cause deemed reasonable was not an unconstitutional standard
because it required reasonable action in light of the public interest at stake. State v. Rosenthal, 93 Nev. 36, 559
P.2d 830, appeal dismissed 434 U.S. 803 (1977).
when the record demonstrated that the board's decision was based upon considerations of
public welfare. See e.g. Kochendorfer v. Board of Co. Comm'rs, 93 Nev. 419, 566 P.2d 1131
(1977) (failure to meet conditions in temporary license, noise incompatible with adjoining
neighborhood, diminish adjoining property values); Gragson, 90 Nev. 131 (incompatible with
neighborhood).
[Headnote 3]
In this case, the fact that Atlantic is a fish market has no bearing on the public health and
welfare. Atlantic Seafoods 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.
[Headnotes 4, 5]
Mandamus is an appropriate remedy when discretion is exercised arbitrary or capriciously.
Kochendorfer, 93 Nev. at 422, 566 P.2d at 1133; Gragson, 90 Nev. at 133, 520 P.2d at 617;
see NRS 34.160. Because the board capriciously ignored the standards and criteria set forth in
8.20.010(b), the district judge did not err by issuing the permanent writ of mandate.
Affirmed.
____________
96 Nev. 611, 611 (1980) Boulet v. City of Las Vegas
BAXTER BOULET dba SULTAN'S PALACE MASSAGE PARLOR, Appellant, v. THE
CITY OF LAS VEGAS, a Municipal Corporation; THE BOARD OF CITY
COMMISSIONERS, of Las Vegas, Nevada, WILLIAM BRIARE, Mayor of the City
of Las Vegas and Chairman of Said Board, and ROY WOOFTER, MYRON
LEAVITT, RON LURIE and PAUL J. CHRISTENSEN, Constituting the Members
of Said Board; and ILA BRITT, Director of the Department of License and
Revenue of the City of Las Vegas, Respondents.
Nos. 9100, 10554
July 29, 1980 614 P.2d 8
Appeals from orders denying writs of certiorari, Eighth Judicial District Court, Clark
County; Thomas J. O'Donnell and J. Charles Thompson, Judges.
After massage parlor owner's petition for writ of certiorari for review of city commission's
revocation of his business license was twice denied by the district court owner appealed.
for review of city commission's revocation of his business license was twice denied by the
district court owner appealed. The Supreme Court held that owner's license revocation cases
were rendered moot where owner permitted lease for premises covered by the license to
expire and did not pay semi-annual license fees due and owing city.
Appeals dismissed.
Patrick R. Doyle, Las Vegas, for Appellant.
M. H. Sloan, City Attorney, and James P. Sitter, Deputy City Attorney, Las Vegas, for
Respondents.
1. Action.
Actions challenging revocation of massage parlor owner's license were rendered moot where owner
permitted lease for the premises covered by his business license to expire and did not pay semi-annual
license fees due and owing city; owner's counsel's allegations of possible, future collateral consequences
did not convert the cases into actual controversies.
2. Licenses.
An appeal from a license revocation is moot if license would have expired for reasons independent of
administrative tribunal's actions.
3. Action.
A civil case will not be considered moot if an aggrieved party diligently and actively seeks relief from
discernible and substantial consequences flowing from a lower tribunal's judgment.
4. Judgment.
Discretionary remedy of vacating judgments while dismissing appeals may not be invoked by a party
which has slept on its rights.
OPINION
Per Curiam:
Pursuant to this Court's order, the parties have submitted affidavits and memoranda
addressing the question whether these two license revocation cases should now be considered
moot. The relevant facts are not in dispute.
On August 17, 1976, the Las Vegas City Commission revoked appellant's business license.
Appellant's petition for a writ of certiorari was denied by the district court on September 13,
1976. An appeal was filed (No. 9100). On October 14, 1976, this Court stayed the revocation
pending disposition of the appeal. Though appellant was required by law to pay to the city a
semi-annual license fee due on October 1, 1976 and on April 1, 1977, see L.V.C.C. 5-1-3(A),
5-1-12, 5-29-12, 5-29-25, and 5-29-34(A), no such payments were made.
On July 8, 1977, the Commission revoked appellant's business license a second time. On
September 22, 1977, the district court denied appellant's petition for a writ of certiorari. After
an appeal was filed (No. 10554), these two cases were consolidated.
[Headnote 1]
Subsequent to the filing of these appeals, appellant permitted the lease for the premises
covered by his business license to expire. See L.V.C.C. 5-1-3(B), 5-29-4, 5-29-9, 5-29-21,
and 5-29-22. He has apparently left the Las Vegas area. He no longer desires to operate a
massage establishment in Las Vegas. He has not paid the semi-annual license fees due and
owing the city. Under these circumstances, these two license revocation cases are moot.
This Court shall not render opinions on moot or abstract questions. Nev. Const. art. 6, sec.
4; Miller v. West, 88 Nev. 105, 109-10, 493 P.2d 1332, 1334-35 (1972). We will decide only
actual controversies, in which the parties are adverse and the issues ripe. Id. Here, appellant's
failure to pay the required semi-annual license fee, see L.V.C.C. 5-1-12 and 5-29-12, the
expiration of appellant's lease, see L.V.C.C. 5-29-21 and 5-29-22, and appellant's decision not
to continue his operation of a massage establishment in Las Vegas, prevent this Court from
rendering a judgment which would affect the legal rights of the parties.
[Headnote 2]
Moreover, it has long been established that an appeal from a license revocation is moot if
the license would have expired for reasons independent of the administrative tribunal's
actions. Security Life Ins. Co. v. Prewitt, 200 U.S. 446 (1906); State v. Superior Court for
Thurston County, 41 P.2d 155 (Wash. 1935); Yent v. State, 63 So. 452 (Fla. 1913). Here,
appellant's failure to pay the required semi-annual license fee caused his license to expire by
operation of law. L.V.C.C. 5-1-12, 5-29-12.
[Headnote 3]
Nor can we say that counsel's allegations of possible, future collateral consequences
1
convert these cases into actual controversies. A civil case will not be considered moot if an
aggrieved party diligently and actively seeks relief from discernible and substantial
consequences flowing from a lower tribunal's judgment.
____________________

1
Counsel has alleged that, at some unspecified time in the future, appellant may decide to return to Nevada,
that appellant may then decide to engage in an occupation requiring licensing, and that the licensing board may
deny the license because of the instant revocations.
aggrieved party diligently and actively seeks relief from discernible and substantial
consequences flowing from a lower tribunal's judgment. Compare Robinson v. Rodgers, 481
F.2d 1110 (D.C. Cir. 1973) with In re Ballay, 482 F.2d 648 (D.C. Cir. 1973). By contrast, the
appellant here has not been diligent in attempting to retain or preserve his business license;
nor are counsel's allegations of collateral consequences sufficiently substantial or
immediate to warrant relief at this time.
[Headnote 4]
Finally, we cannot agree with appellant's counsel that the proper remedy is to vacate the
judgments of the district court while dismissing the appeals. This discretionary remedy may
not be invoked by a party which has slept on its rights. United States v. Munsingwear, 340
U.S. 36, 41 (1950).
For these reasons we dissolve the previously granted stay in case no. 9100, and order that
cases no. 9100 and no. 10554 be dismissed.
____________
96 Nev. 614, 614 (1980) Feldman v. State of Nevada
ROBERT B. FELDMAN and ALL RISK INSURANCE AGENCY, INC., Appellants and
Cross-Respondents, v. THE STATE OF NEVADA, DICK L. ROTTMAN, Commissioner,
Division of Insurance, Department of Commerce, Respondent and Cross-Appellant.
No. 10773
July 29, 1980 615 P.2d 238
Appeal from judgment. Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Insurance division ruled that service fee charged by insurance agency was illegal,
ordered the president of the agency to return the fees collected, and revoked the license of the
agency and its president. The district court affirmed the ruling that the charge was illegal but
reversed the orders as to license revocation and return of fees, and an appeal and cross-appeal
were taken. The Supreme Court, Batjer, J., held that: (1) the service fee was illegal since
any charge for procuring insurance above the authorized premium is prohibited by statute; (2)
the agency was not entitled to retain such fees procured without authority; but (3) license
revocation was an unduly harsh and unjustified penalty under the circumstances.
Affirmed in part, reversed in part and remanded.
Weiner, Goldwater, Waldman & Gordon, Las Vegas, for Appellants and
Cross-Respondents.
Richard Bryan, Attorney General, Wayne D. Wilson, Deputy Attorney General, Carson
City, for Respondent and Cross-Appellant.
1. Insurance.
Service fee charged by insurance agency, which specialized in obtaining auto insurance for high-risk
customers, was illegal under statutory provisions making it clear that any charge for procuring insurance
above the authorized premium is prohibited. NRS 686A.230, subds. 1, 2, 687B.030.
2. Insurance.
Purpose of the McCarran-Ferguson Act is to allow the states to regulate interstate commerce between the
insurance companies of one state and customers of another state, and the intention of the Act is to allow the
states to regulate directly or indirectly such relationship. McCarran-Ferguson Act, 1-5, 15 U.S.C.A.
1011-1015.
Appellant having failed to raise certain constitutional issues below, the Supreme Court would not
consider them on appeal; furthermore, those issues now attempted to be raised were not supported by any
relevant authority and, for that additional reason, they would not be considered.
4. Insurance.
Since the service fees charged by insurance agency were procured without authority, the agency was
not entitled to retain them; allowing retention would encourage noncompliance with the insurance
division's rulings and grant a windfall to the agency simply because it defiantly charged the unauthorized
fees after directions from the division not to do so; on the other hand, the division's revocation of the
licenses of the agency and its president was an unduly harsh and unjustified penalty under the
circumstances, including the fact that the agency was not devious or dishonest about the fee with either the
division or its customers. NRS 686A.210, 686A.230, 686A.230, subds. 1, 2.
OPINION
Upon review, the district court affirmed that part of an order of the Division of Insurance,
respondent and cross-appellant, hereinafter referred to as the division, holding that the
service fee charged by appellants was illegal, and reversed that part of the order revoking
appellants' insurance license and requiring appellants to refund service charges collected
prior to December 22, 1977. Robert B. Feldman and All Risk Insurance Agency, Inc.,
hereinafter referred to as Feldman, now appeal the district court's ruling that the fee is
illegal. The division appeals from the reversal of its penalty orders.
Feldman is president of All Risk, and was also licensed as an insurance broker. The
agency specializes in obtaining auto insurance for high risk customers.
In late 1976, Feldman decided that the extra expense of performing his specialized
services, such as driving record searches, accounting and clerical work, justified and
necessitated an initial customer service fee of $25.00. Sometime before October 29, 1976,
Feldman informed the division of his intention to charge the customer service fee. After a
series of correspondence with the division, Feldman was notified that the fee was not to be
charged until it was approved. Feldman answered the following day, by letter, that in his
opinion the fee was legal, that he intended to charge it, and if the division objected, it could
summon him to a hearing. Counsel for the division answered Feldman's letter and stated that
the fee was illegal. Feldman replied shortly, by letter, that he did not agree, and implied that
he would nevertheless charge the fee.
On November 5, 1976, Feldman began to charge each new customer $25.00 upon
application for insurance. The fee was charged as a condition to Feldman's beginning the
process of searching for and obtaining an insurance policy. He requested each customer to
sign a statement which explicitly revealed the fee, the reason for it, and its nature. The
statement also made clear that the fee was not for premiums to be paid to an insurance
company, but a charge to be kept by the agency as a service fee.
The division summoned Feldman to a hearing, after which the examiner ruled the fee was
illegal under NRS 686A.230, and found that Feldman had willfully, consciously and
voluntarily violated NRS 686A.230. He ordered Feldman to return the fees collected and
revoked the license of Feldman and All Risk.
The district court, reviewing the division's order, affirmed the ruling that the charge was
illegal, but reversed the orders that Feldman return the fees and that the license be revoked,
as being an unduly harsh and unjustified penalty under the circumstances and in view of
[appellants'] good faith.
Feldman contends that the service fee is not prohibited by NRS 686A.230(1)(2), nor by
NRS 686A.210.
1
The division and the district court both found this contention to be in
error when NRS 6S6A.230{1){2) is read in conjunction with NRS 6S7B.030{1).2
____________________

1
NRS 686A.230:
1. No person shall willfully collect any sum as premium or charge for insurance, which insurance is
not then provided or is not in due course to be provided (subject to acceptance of the risk by the insurer)
by an insurance policy issued by an insurer as authorized by this code.
2. No person shall willfully collect as premium or charge for insurance any
the district court both found this contention to be in error when NRS 686A.230(1)(2) is read
in conjunction with NRS 687B.030(1).
2

[Headnote 1]
A strained and isolated reading of NRS 686A.230(1)(2) might support appellants' position,
3
but when read with NRS 687B.030, it is clear and explicit that any charge for procuring
insurance above the authorized premium is prohibited.
In support of his position, Feldman relies on Coro Brokerage, Inc. v. Rickard, 148 A.2d
817 (N.J. 1959), which held that a service fee similar to the one charged by him was legal. In
that case, the New Jersey Supreme Court held that, A payment for such services does not
come within the term premium' [as used in the New Jersey statutes], and therefore is not
prohibited by that section. This is not so in Nevada, where the word premium specifically
includes service or similar fee or other charge in consideration for an insurance contract or
procurement. NRS 687B.030.
____________________
sum in excess of the premium or charge applicable to such insurance and as specified in the policy, in
accordance with the applicable classifications and rates as filed with and approved by the commissioner;
or, in cases where classifications, premiums or rates are not required by this code to be so filed and
approved, such premiums and charges shall not be in excess of those specified in the policy and as fixed
by the insurer.
NRS 686A.210:
No mortgagee, lessor, vendor or other person whose interest is insured under an insurance policy paid
for by another shall make, receive or accept any monetary charge or fee paid or payable by such other
person, for handling, servicing or processing the insurance policy, or endorsements thereon or
cancellation thereof.

2
NRS 687B.030:
1. As used in this code, premium is the consideration for insurance, by whatever name called. Any
assessment, or any membership, policy, survey, inspection, service or similar fee or other
charge in consideration for an insurance contract or procurement thereof is part of the premium.

3
The legislative counsel, in a letter dated January 13, 1978, pursuant to NRS 218.695(2), in response to the
following request by a member of the Legislature:
. . . whether an insurance agent who makes an independent investigation of applicants for insurance, to
determine whether insurance can be obtained for the applicant at all and if so from what insurer, may
lawfully make a separate charge for this service,
replied:
[I]t is my opinion that NRS 686A.230 does not generally prohibit a service charge by a person
independent of the insurer, and that therefore a charge of the kind described in the first paragraph of this
letter may lawfully be made.
[Headnote 2]
Feldman further contends that the Commerce Clause of the Constitution of the United
States precludes the Nevada Legislature from prohibiting the questioned fee because it is not
part of the relationship between the insurance company and the customer, and is therefore not
the business of insurance which the state may regulate under the McCarran-Ferguson Act
(15 U.S.C. 1011-1015). This argument is unsupported in the law and without merit. The
purpose of the McCarran-Ferguson Act is to allow the states to regulate interstate commerce
between insurance companies of one state and customers of another state. S.E.C. v. National
Securities, Inc., 393 U.S. 453 (1969), makes it clear that the intention of the
McCarran-Ferguson Act is to allow the states to regulate directly or indirectly such
relationship.
Without citing any relevant supporting authority, Feldman contends, for the first time in
this appeal, that the statutory scheme precluding his service charge, in particular NRS
686A.230, violates the due process clause of the Fifth Amendment of the United States
Constitution and Article I, Section 8, of the Nevada Constitution, as well as the Contract
Clause, Article I, Section 10, of the United States Constitution and Article I, Section 15, of
the Nevada Constitution.
[Headnote 3]
Although Feldman made an attempt to raise certain constitutional issues in the district
court, those issues bear no resemblance to those which he attempts to raise on appeal. Having
failed to raise those contentions below, we will not consider them here. Central Bank v.
Baldwin, 94 Nev. 581, 583 P.2d 1087 (1978). Furthermore, those constitutional issues which
Feldman now attempts to raise are not supported by any relevant authority, and for that
additional reason they will not be considered. Gilbert v. Warren, 95 Nev. 296, 594 P.2d 696
(1979); D'Atri v. Vignalats, 92 Nev. 748, 557 P.2d 272 (1976); Holland Livestock Ranch v. B
& C Enterprises, 92 Nev. 473, 553 P.2d 950 (1976); General Electric Co. v. Bush, 88 Nev.
360, 498 P.2d 366 (1972). We find no infirmities in the statutory scheme precluding Feldman
from assessing a service charge and affirm the part of the judgment declaring the relevant
statutes to be valid.
CROSS-APPEAL
In its cross-appeal, the division contends that the district court erred in reversing its order
to return the service fees. This contention is valid.
[Headnote 4]
Since the service fees were procured without authority, Feldman is not entitled to retain
them. Moreover, allowing him to retain the fees would encourage noncompliance with the
division's rulings and grant a windfall to Feldman simply because he defiantly charged the
unauthorized fee after directions from the division not to do so. Consequently, the division's
order to return the fees was justified and valid. Kostika v. Cuomo, 363 N.E.2d 568 (N. Y.
1977). The examiner did not abuse his discretion or controvert the evidence (NRS
683A.450(1)(b)), and as a matter of law, the district court erred in reversing the division's
order. NRS 233B.140(5).
On the other hand, that part of the judgment of the district court reversing the division's
order revoking Feldman's license is affirmed.
Although there is no doubt that Feldman willfully violated NRS 686A.230, Air
Transport Associates v. C.A.B., 199 F.2d 181 (D.C. Cir. 1952), cert. denied 344 U.S. 922
(1953); Hughes v. S.E.C., 174 F.2d 969 (D.C. Cir. 1949), he was not devious or dishonest
about the fee with either the division or the customers, and dishonesty, rather than defiance, is
generally the cause for license revocation. Alley v. Nevada Real Estate Division, 94 Nev.
123, 575 P.2d 1334 (1978); Randono v. Nevada Real Estate Division, 79 Nev. 132, 379 P.d
537 (1963); see Laman v. Nevada Real Estate Adv. Comm'n, 95 Nev. 50, 589 P.2d 166
(1979).
The division's reliance upon Kostika, 363 N.E.2d 568 and Alley, 94 Nev. 123, are
somewhat misplaced because in each of those cases the real estate broker acted in a
surreptitious manner concealing facts from the clients as well as the regulatory offices. Here,
Feldman, although defiant toward the division, was forthright in his dealings with his clients
and was not surreptitious in his actions toward the division.
Although the district court's finding that Feldman acted in good faith may be somewhat
infirm, there exists enough ambiguity in NRS 686A.230 (as evidenced by the legislative
counsel's interpretation) to support the district court's reversal of the license revocation as
being an unduly harsh and unjustified penalty under the circumstances.
Here, neither the district court nor this court is substituting its judgment for that of the
division as to the weight of any evidence on questions of fact, but because of the unsettled
meaning of NRS 686A.230, we view the action of the division in revoking the license as an
unwarranted exercise of discretion under the circumstances.
under the circumstances. NRS 233B.140(5)(f).
4
Cf. Flanders v. State Dep't of Commerce, 87
Nev. 303, 486 P.2d 499 (1971) (technical violations did not support revocation).
This case is remanded for disposition consistent with this opinion.
____________________

4
NRS 233B.140:
. . . .
5. The court shall not substitute its judgment for that of the agency as to the weight of the evidence
on questions of fact. The court may affirm the decision of the agency or remand the case for further
proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been
prejudiced because the administrative findings, inferences, conclusions or decisions are:
. . . .
(f) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of
discretion.
____________
96 Nev. 620, 620 (1980) Wylie v. District Court
WILLIAM C. WYLIE, Petitioner, v. SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Washoe, Department 5 Thereof, and THE
HONORABLE WILLIAM N. FORMAN, District Judge, Respondents.
No. 12686
July 29, 1980 614 P.2d 12
Proceeding was instituted on petition for writ of prohibition to prevent district court from
proceeding in a divorce action. The Supreme Court held that statute authorizing a person who
has submitted himself to jurisdiction of Nevada while living in marital relationship within
Nevada to be personally served outside Nevada as long as his spouse continues to reside in
Nevada carries no requirement of a court order and takes precedence over rule requiring an
order of a district judge before a nonresident of Nevada may be personally served outside
Nevada.
Denied.
Goedert & Van Walraven, Reno, for Petitioner.
Divorce.
Statute authorizing a person who has submitted himself to jurisdiction of Nevada while living in marital
relations within Nevada to be personally served outside Nevada as long as his spouse
continues to reside in Nevada carries no requirement of a court order and takes
precedence over rule requiring an order of a district judge before a non-resident of
Nevada may be personally served outside Nevada.
personally served outside Nevada as long as his spouse continues to reside in Nevada carries no
requirement of a court order and takes precedence over rule requiring an order of a district judge before a
non-resident of Nevada may be personally served outside Nevada. NRS 14.065, 14.065, subd. 2(e);
NRCP 4(e)(2).
OPINION
Per Curiam:
We previously issued an unpublished order denying this petition for a writ of prohibition.
Since an opinion in this matter has been requested, we are hereby publishing our holding for
the benefit of bench and bar.
Luann and William Wylie were married in 1974 in Stockton, California. They
subsequently moved to Reno, Nevada, where they purchased a house. Luann filed a complaint
for divorce in Washoe County, her county of residence, in November 1979. William, who
resided in Fresno, California, at that time, was personally served in California with the
complaint and summons. He moved the district court to quash the service because it was not
carried out in compliance with NRCP 4(e)(2)
1
which requires the order of a district judge
before a non-resident of Nevada may be personally served outside Nevada. After the district
court denied his motion, William petitioned this court to issue a writ of prohibition to prevent
the district court from proceeding in the divorce action.
NRS 14.065(2)(e)
2
provides that a person who has submitted himself to the jurisdiction
of Nevada by living in the marital relationship within Nevada, may be personally served
outside Nevada as long as his spouse continues to reside in Nevada.
____________________

1
NRCP 4(e)(2) provides:
Personal service outside the state upon a natural person over the age of 18 years may be made (i) in
any action where the person served is a resident of this state, and (ii) in any action affecting specific
property or status, or in any other proceeding in rem without regard to the residence of the person served.
When such facts shall appear, by affidavit, to the satisfaction of the court or judge thereof, and it shall
appear, either by affidavit or by a verified complaint on file, that a cause of action exists against the
person in respect to whom the service is to be made, and that he is a necessary or proper party to the
action, such court or judge may grant an order that the service be made by personal service outside the
state. Such service shall be made by delivering a copy of the process together with a copy of the
complaint in person to the person served. The methods of service are cumulative, and may be utilized
with, after, or independently of, other methods of service.

2
NRS 14.065 provides in relevant part:
1. Personal service of summons upon a party outside this state is sufficient to confer upon a court of
this state jurisdiction of the person of the party so served if:
(a) Such service is made by delivering a copy of the summons, together with a copy of the complaint,
to the party served in the manner provided by
himself to the jurisdiction of Nevada by living in the marital relationship within Nevada, may
be personally served outside Nevada as long as his spouse continues to reside in Nevada. It
carries no requirement of a court order and takes precedence over NRCP 4(e)(2) in this
situation. NRCP 4(e)(3);
3
NRCP 81(a).
4
Since the service of process in this case appears to
have been carried out in compliance with NRS 14.065(2)(e), a writ of prohibition will not
issue and the petition is denied.
____________________
statute or rule of court for service upon a person of like kind within this state; and
(b) Such party has submitted himself to the jurisdiction of the courts of this state in a manner
provided by this section.
2. Any person who, in person or through an agent or instrumentality, does any of the acts
enumerated in this subsection thereby submits himself and, if an individual, his personal representative to
the jurisdiction of the courts of this state as to any cause of action which arises from the doing of such
acts:
. . . .
(e) Living in the marital relationship within this state notwithstanding subsequent departure from this
state, as to all obligations arising for alimony, child support or property settlement, if the other party to
the marital relationship continues to reside in this state.

3
NRCP 4(e)(3) provides:
Whenever a statute provides for service, service may be made under the circumstances and in the
manner prescribed by the statute.

4
NRCP 81(a) provides in relevant part:
These rules do not govern procedure and practice in any special statutory proceeding insofar as they
are inconsistent or in conflict with the procedure and practice provided by the applicable statute.
____________
96 Nev. 622, 622 (1980) Sandler v. District Court
JERROLD SANDLER, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, and HONORABLE
WILLIAM BEKO, Respondents, and NEVADA NATIONAL BANK, a Nevada Corporation,
Real Party in Interest.
No. 11919
July 29, 1980 614 P.2d 10
On petition for mandamus, the Supreme Court, Batjer, J., held that bank could not enforce
checks written for the purpose of gambling and to cover gambling losses against drawer,
despite bank's contention that it was a holder in due course of the checks.
Writ granted.
Wiener, Goldwater & Waldman, Las Vegas, for Petitioner.
John Peter Lee and James C. Mahan, Las Vegas, for Real Party in Interest.
1. Mandamus.
A writ of mandamus will issue to compel entry of a summary judgment when there is no genuine issue as
to any material fact and the movant is entitled to judgment as a matter of law. NRCP 56(c); NRAP
3A(b)(5).
2. Gaming.
Checks drawn for the purpose of gambling are void and unenforceable in Nevada.
3. Bills and Notes.
A holder in due course of a check is not immune to real defenses, that is, those defenses which render the
check, and the underlying obligation created thereby, entirely void. NRS 104.3305.
4. Bills and Notes.
Drawer's defense that check drawn for purpose of engaging in gambling and to cover gambling losses was
void and unenforceable precluded bank's recovery on the checks even if bank was a holder in due course.
NRS 104.3305.
OPINION
Nevada National Bank filed suit against Jerrold Sandler to recover the proceeds from
several checks written by Sandler. Sandler wrote the checks on a Maryland bank account to
John Hutchings and others for gambling and to cover gambling losses incurred by Sandler,
and by Hutchings in Sandler's behalf, during private freeze out games of 21. The checks
were all negotiated to Nevada National Bank. The district judge denied Sandler's motion for
summary judgment. Sandler petitions this court for a writ of mandamus to compel the district
judge to grant summary judgment in his favor.
[Headnotes 1, 2]
A writ of mandamus will issue to compel entry of a summary judgment when there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of
law. Manufacturers & Traders Trust v. District Court, 94 Nev. 551, 583 P.2d 444 (1978);
Hoffman v. District Court, 90 Nev. 267, 523 P.2d 848 (1974); Holloway v. Barrett, 87 Nev.
385, 487 P.2d 501 (1971); Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964); see NRCP
56(c); NRAP 3A(b)(5). In this case it is undisputed that the checks were drawn by Sandler
to engage in gambling or delivered to John Hutchings for the express purpose of engaging
in gambling ventures.
undisputed that the checks were drawn by Sandler to engage in gambling or delivered to John
Hutchings for the express purpose of engaging in gambling ventures. As a matter of law,
checks drawn for the purpose of gambling are void and unenforceable in this state. Sea Air
Support, Inc. v. Herrmann, 96 Nev. 574, 613 P.2d 413 (1980); Corbin v. O'Keefe, 87 Nev.
189, 484 P.2d 565 (1971); Wolpert v. Knight, 74 Nev. 322, 330 P.2d 1023 (1958).
[Headnotes 3, 4]
Nevada National Bank seeks to avoid the defense that the checks are void and
unenforceable (Statute of 9 Anne, C. 14, 1) by claiming to be a holder in due course
immune to that defense. NRS 104.3305 provides that a holder in due course takes an
instrument free from: 2. All defenses of any party to the instrument with whom the holder
has not dealt except: . . . (b) Such other incapacity, or duress, or illegality of the transaction,
as renders the obligation of the party a nullity[.] A holder in due course is not immune to
real defenses; that is, those defenses which render the check, and the underlying obligation
created thereby, entirely void. Bankers Trust Co. v. Litton Systems, 599 F.2d 488 (2d Cir.
1979); Middle Georgia Livestock Sales v. Commercial Bank & Trust Co., 182 S.E.2d 533
(Ga.App. 1971); White & Summers, Uniform Commercial Code 1410 at 487-488. Because
the Statute of Anne renders the checks herein void ab initio, the defense may be asserted
against Nevada National Bank. Pacific National Bank v. Herneich, 398 S.W.2d 221 (Ark.
1966). Therefore, summary judgment in favor of Sandler must be granted.
Accordingly, a writ of mandamus shall issue directing the district judge to grant Sandler's
motion for summary judgment.
1

Writ granted.
Mowbray, C. J., and Thompson and Gunderson, JJ., and Torvinen, D. J.,
2
concur.
____________________

1
This case was consolidated with Sea Air Support, Inc. v. Herrmann, 96 Nev. 574, 613 P.2d 413 (1980),
Docket No. 10786, for the purpose of oral argument.

2
Governor, pursuant to Art. VI, 4, of the Constitution, designated Judge Roy L. Torvinen of the Second Judicial
____________
96 Nev. 625, 625 (1980) Zobrist v. Sheriff
GERRY ZOBRIST, MARVIN KRATTER, and KENT ORAM, Appellants,
v. SHERIFF, CARSON CITY, NEVADA, Respondent.
No. 12608
July 29, 1980 614 P.2d 538
Appeal from order denying pretrial petition for a writ of habeas corpus; First Judicial
District Court, Carson City; Michael E. Fondi, Judge.
The Supreme Court, Thompson, J., held that factual determination by district court in a
pretrial habeas proceeding arising out of a criminal charge and resulting in denial of relief are
not subject to appellate review even if petition for habeas relief is initially filed with Supreme
Court rather than with district court.
Appeal dismissed.
Kent R. Robinson, of Reno, Robert A. Grayson, of Carson City, Devoe Heaton, of Las
Vegas, Oscar B. Goodman, of Las Vegas, and Frank J. Cremen, of Las Vegas, for
Appellants.
William Maddox, Deputy District Attorney, Carson City, for Respondent.
1. Habeas Corpus.
Factual determinations by district court in pretrial habeas proceeding commenced in that court arising out
of criminal charge and resulting in denial of relief are not the subject of appellate review. Const. Art. 6,
4; NRS 34.380, 34.380, subd. 2.
2. Habeas Corpus.
Factual determination by district court in a pretrial habeas proceeding arising out of a criminal charge and
resulting in denial of relief are not subject to appellate review even if petition for habeas relief is initially
filed with Supreme Court rather than with district court. Const. Art. 6, 4; NRS 34.380, 34.380,
subd. 2.
3. Habeas Corpus.
Supreme Court will entertain habeas petitions filed with clerk of court presenting questions of law.
Const. Art. 6, 4; NRS 34.500.
OPINION
Zobrist, Kratter and Oram filed with this court a petition for a writ of habeas corpus which
we made returnable before the First Judicial District Court.
First Judicial District Court. Such procedure is authorized by Constitution and statute. Nev.
Const., art. 6, sec. 4; NRS 34.380(2).
[Headnotes 1, 2]
It now is settled that factual determinations by a district court in a pretrial habeas
proceeding commenced in that court arising out of a criminal charge and resulting in the
denial of relief, are not the subject of appellate review. 1979 Nev. Stats., ch. 216; NRS
34.380; Gary v. Sheriff, 96 Nev. 78, 605 P.2d 212 (1980). The legislative preclusion of
appellate review in such cases, which we approved and found constitutionally permissible in
Gary, is asserted to be inapposite to this case since the petition for habeas relief was filed
initially with this court rather than with the district court as in Gary. In our view this
distinction is without substance when the petition for relief requires the resolution of
questions of fact rather than questions of law.
[Headnote 3]
In specifying the jurisdiction of the Supreme Court, the writers of our Constitution had in
mind the distinction between questions of fact and questions of law, and the need to provide
for the resolution of fact questions by a tribunal equipped to handle that task. Indeed, our
appellate jurisdiction is confined to questions of law alone in all criminal cases in which the
offense charged is within the original jurisdiction of the district courts. Nev. Const., art. 6,
sec. 4. And, with regard to our original jurisdiction to issue a writ of habeas corpus, it is
provided that such writ may be made returnable before any district court in this state. Nev.
Const., art. 6, sec. 4. This discretionary power is explicit recognition that this Court is not a
fact finding tribunal, and allows that function to be performed by the court best able to do so.
In contrast, we do entertain habeas petitions filed with the clerk of this Court presenting
questions of law. Perhaps the most common example of this is the case where one is
restrained of his liberty upon a charge based upon an unconstitutional ordinance or statute. In
re Martin, 88 Nev. 666, 504 P.2d 14 (1972); In re Laiolo, 83 Nev. 186, 426 P.2d 726 (1967);
Ex Parte Philipie, 82 Nev. 215, 414 P.2d 949 (1966). And, NRS 34.500 specifies other
situations in which we may entertain the petition to resolve questions of law.
The case before us is a criminal case. Zobrist, Kratter and Oram are charged with the
crimes of Bribery of a Legislative Member, and Conspiracy to Bribe a Legislative Member,
respectively a felony and a gross misdemeanor. These are offenses within the original
jurisdiction of the district court.
When they filed a petition for habeas relief with this Court, we exercised our constitutional
discretion and ordered the writ returnable before the district court where evidence could be
received, fact issues resolved, and a final decision made in the same manner as though the
petition initially had been filed with that court. That court has the same measure of authority
as this Court would have had we made the writ returnable before this Court. People v.
Booker, 51 Cal. 317 (1876). Once the district judge enters judgment based upon his
resolution of a factual controversy, the habeas proceeding is finally and definitely ended. Ex
Parte Shoemaker, 144 P. 985 (Cal.App. 1914) on rehearing, citing Ex Parte Zany, 130 P. 710
(Cal. 1913).
The several reasons which prompted the legislature to preclude our review of factual
determinations of a district court resulting in the denial of habeas relief, apply with equal
force to habeas petitions originally filed with this Court and made returnable before a district
court to resolve such factual issues. We, therefore, dismiss this appeal.
____________
96 Nev. 627, 627 (1980) Griffin v. Westergard
ROBERT H. GRIFFIN and HUNEWILL LAND AND LIVESTOCK CO., INC., Appellants,
v. ROLAND D. WESTERGARD, STATE ENGINEER OF THE
No. 10544
July 29, 1980 615 P.2d 235
Appeal from judgment; First Judicial District Court, Lyon County; Howard D. McKibben,
Judge.
Water users petitioned for judicial review of denial of applications for permits. From an
adverse judgment of the district court the users appealed. The Supreme Court, McDaniel,
District Judge, held that: (1) evidence sustained findings that granting any additional water
permits in basin would either deplete underground reservoir or would cause water to be
replaced by infiltrating surface water from river which was over appropriated, that if
underground reservoir was depleted existing ground water rights would be impaired and that
if additional water was replaced from river existing surface water rights would be impaired
and it would be detrimental to public welfare, and, upon such findings, denial of
applications for permit was required by statute, and {2) the doctrine of equitable estoppel
was not applicable to require issuance of the permits.
welfare, and, upon such findings, denial of applications for permit was required by statute,
and (2) the doctrine of equitable estoppel was not applicable to require issuance of the
permits.
Affirmed.
Johnson, Belaustegui & Robison, Reno, for Appellants.
Richard H. Bryan, Attorney General, and Harry W. Swainston and Stephen C. Balkenbush,
Deputy Attorneys General, Carson City, for Respondent.
Evidence sustained findings that granting any additional water permits in basin would either deplete
underground reservoir or cause water to be replaced by infiltrating surface water from river which was
overappropriated, that if underground reservoir was depleted existing ground water rights would be
impaired and that if additional water was replaced from river existing surface water rights would be
impaired and it would be detrimental to public welfare, and upon such findings, denial of applications for
permit was required by statute. NRS 533.370, 533.370, subd. 4, 533.450, 534.050, 534.110, subds. 3,
7.
2. Estoppel.
Where deepening of well was unlawful act and cost of drilling well to depths of 500 feet was incurred on
permits that had been cancelled, joint well having been located in designated well basin and state engineer
finding that granting of any further permits would impair existing rights, equitable estoppel was not
applicable to require issuance of permit. NRS 533.370, 533.370, subd. 4, 533.450, 534.050, 534.110,
subds. 3, 7.
Where record and evidence therein are clear as to required specific findings, court will examine decision
and record and imply the findings. NRCP 52(a).
OPINION
By the Court, McDaniel, D. J.:
1

In 1967 and 1969, appellant Hunewill Land and Livestock Co., Inc. (hereinafter called
Hunewill), and appellant Griffin, respectively, were granted permits to divert underground
water to supplement their decreed surface water and storage rights from West Walker River
in Smith Valley, Lyon County, Nevada. The well was to be located within the boundaries of
the Smith Valley Artesian Basin as designated by an order of the state engineer issued on
June 27, 1960. A permit is required before a well may be drilled in a designated basin. NRS
S3+.0S0.
____________________

1
The Governor designated the Honorable Joseph O. McDaniel, Judge of the Fourth Judicial District Court to
sit in the place of Justice Cameron M. Batjer, who voluntarily disqualified himself. Nev. Const. art. 6, 4.
534.050. In late 1969 applications to change the point of diversion were filed and new
permits were granted to appellants. These permits were subject to cancellation upon the
failure of appellants to file proof of commencement, completion and beneficial use prior to
the dates set forth in said permits.
Appellants hired a well driller to drill their joint well to a depth of 500 feet. At 420 feet the
well driller encountered hard rock and stopped. Despite the driller's assertion that the well
would produce the desired quantity of water, after test pumping appellants were not satisfied.
Appellants notified respondent of their problem and filed for an extension of time. The date
for filing proof of completion was extended for one year with a warning that no further
extensions would be granted. As appellants were unable to obtain a well driller's services
within that time and were unwilling to establish a beneficial use of the water at the 420-foot
level, a timely filing of completion and beneficial use was not filed. Notice of intent to cancel
their permits was sent by respondent by certified mail and appellants were allowed a 30-day
grace period within which to file both the proof of completion and proof of beneficial use.
Upon expiration of this period, appellant Griffin's permit was cancelled on July 25, 1972 and
that of appellant Hunewill was cancelled on August 2, 1972. No appeals were taken from
these cancellations by either appellant. In late 1973, appellants employed another well driller
to deepen the well to 500 feet, without first having obtained permits to do so. Additional
water was produced in the deeper well. In early 1974 appellants contacted respondent relative
to purchasing a pump. At that time, they were reminded that their permits had been cancelled
and their only alternative was to apply for new permits in accordance with the applicable
statutes. They allege that respondent indicated that, if there were no protests to their new
applications, their permits would probably be granted. Respondent could not recall making
any such statements. Applications for new permits were filed on April 18, 1974.
Appellants purchased a pump in 1974 and placed it in storage. They expended
approximately $16,000.00 in drilling the well and purchasing the pump. Appellant Griffin
purchased 200 acre feet of water to supplement his decreed surface water rights during the
1976 irrigation season, instead of installing the pump and using water from the well.
[Headnote 1]
Appellants applied for new permits, and respondent published their applications as
required by NRS 533.360 to allow any interested person to file a protest within 30 days of the
last publication.
publication. No protest was filed as to these applications. However, a protest was filed as to
another pending application within the Smith Valley Artesian Basin which resulted in a
public hearing on all pending applications for permits. Appellants were given notice of the
hearing, to be held by respondent on December 16, 1976, and appeared at the hearing where
evidence was adduced. On March 1, 1977, respondent filed a written ruling with findings of
fact and conclusions of law. In making his findings, respondent relied upon Water Resources
Bulletin No. 43, A Geohydrology of Smith Valley, Nevada, with Special Reference to the
Water-Use, 1953-72. This bulletin was prepared cooperatively by the U.S. Department of
Interior, Geological Survey, and the Nevada Division of Water Resources. That study
estimated that the recharge from precipitation to the Smith Valley ground water reservoir was
17,000 acre feet per year and discharge by evapotranspiration by low-value phreatophytes and
discharging bare soil was estimated to withdraw 13,000 ac. ft/yr. Use of ground water for
irrigation is substantially less in years when surface water is readily available, however it is
still estimated to average more than the 4,000 ac. ft/yr difference between the recharge and
discharge through natural causes. The effect of granting any additional permits in the basin
would either deplete the underground reservoir or the water would be replaced by infiltrating
surface water from the West Walker River, which is over appropriated. If it depletes the
underground reservoir, existing ground water rights will be impaired. If the additional water
is replaced from the West Walker River, existing surface water rights will be impaired and it
will be detrimental to the public welfare. Upon such findings, respondent was required by
statute to deny all applications and ruled accordingly. NRS 533.370.
Appellants timely petitioned for judicial review in the district court, as provided by NRS
533.450. They alleged therein that respondent's findings were not supported by the record.
While the review by the district court was pending, appellants installed the pump and
commenced pumping water from the joint well during the first part of June of 1977.
Respondent issued a cease and desist order. Appellants obtained a temporary order staying
execution of this order on June 27, 1977 and they subsequently obtained a stay of execution
pending the appeal to this court. After a hearing in the district court, respondent's ruling was
affirmed. In its decision and judgment, the district court determined that, while appellants had
apparently abandoned their contentions of insufficient evidence as to the availability of water,
there was nonetheless sufficient evidence to support respondent's ruling in this regard.
Appellants relied on an equitable estoppel argument in the district court which found no
basis for affording appellants equitable relief on this ground.
relied on an equitable estoppel argument in the district court which found no basis for
affording appellants equitable relief on this ground. This appeal followed.
In this appeal, appellants contend that: (1) the trial court erred in finding sufficient
evidence to support respondent's ruling; (2) the trial court erred in refusing to grant appellants
equitable relief; and (3) the trial court's failure to set out specific findings of fact and
conclusions of law constitutes reversible error.
1. Appellants did not dispute the findings and conclusions of respondent as to the
availability of underground water in the Smith Valley Artesian Basin. They now argue that
these findings and conclusions are based on the cumulative effect of granting all of the
pending permits and do not establish that the sole granting of appellants' permits for their
joint well would impair existing rights. Appellants are mistaken. The findings and
conclusions of respondent are that the granting of any new permits to appropriate
underground water for irrigation in the Smith Valley Artesian Basin would impair existing
rights and be detrimental to the public welfare. NRS 533.370(4) required respondent to deny
any permit that would impair existing rights and prove detrimental to the public interest. See
also NRS 534.110(3) and (7). The district court committed no error in finding that this issue
was established by substantial evidence.
[Headnote 2]
2. Appellants contend that respondent, by his alleged statements, had induced them into
believing that their pending permits would be granted if there was no protest. They had
expended $16,000.00 in drilling the well and purchasing a pump. However, the deepening of
the well was an unlawful act. The cost of drilling the well to a depth of 500 feet was incurred
under permits that had been cancelled.
In support of their contention that they are entitled to equitable relief, appellants cite State
Engineer v. American Nat'l Ins. Co., 88 Nev. 424, 498 P.2d 1329 (1972). In State Engineer,
this court held that a court may grant equitable relief from the cancellation of a permit by the
state engineer. Appellants, however, do not seek such relief. Rather, they assert that the
second permits which they applied for should be granted on the basis of equitable estoppel.
Appellants contend that they relied to their detriment on the alleged assurances by
respondent that their permits would be granted if no protests were filed. They assumed that,
after the notice of the filing of their applications had been published and the 30 days had
elapsed from the last publication, they would have until April of 1977 to put the water to
beneficial use.
the 30 days had elapsed from the last publication, they would have until April of 1977 to put
the water to beneficial use. This would have been a reasonable assumption had their joint
well not been located in a designated well basin. The state engineer found that the granting of
any further permits would impair existing rights. Upon such a finding, respondent was
prohibited by statute from approving any further permits. Appellants have cited no legal
authorities for the application of equitable estoppel under these circumstances.
[Headnote 3]
3. Finally, appellants contend that the failure of the district court to set out specific
findings of fact and conclusions of law constitutes reversible error. NRCP 52(a) requires that:
In all actions tried upon the facts without a jury . . . the court shall find the facts
specially and state separately its conclusions of law thereon and direct the entry of the
appropriate judgment. . . . If an opinion or memorandum of decision is filed, it will be
sufficient if the findings of fact and conclusions of law specifically appear as such
therein.
Where the record and evidence therein is clear as to the required specific findings, the
court will examine the decision and record and imply the findings. Gorden v. Gorden, 93
Nev. 494, 569 P.2d 397 (1977); Cooper v. Pacific Auto. Ins. Co., 95 Nev. 798, 603 P.2d 281
(1979).
Specific findings of fact and conclusions of law appear in the district court's decision and
judgment. After discussing the evidence which led up to the petition for review, the court
found that there was sufficient evidence to support the state engineer's order. The court also
found that there was no basis to grant equitable relief.
We therefore conclude that the decision and judgment of the district court dismissing
appellants' challenge to the order of the state engineer denying their permits should be
affirmed.
____________
96 Nev. 633, 633 (1980) Anderson v. State
RANDY ANDERSON, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 11025
July 29, 1980 614 P.2d 540
Appeal from judgment, Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
he appealed. The Supreme Court, Manoukian, J., held that use of a blank gun in commission
of robbery supported enhanced penalty for crime committed with deadly weapon.
Affirmed.
Morgan D. Harris, Public Defender, and H. Leon Simon, Deputy Public Defender, Clark
Criminal Law.
Use of blank gun in commission of robbery was sufficient to support enhanced penalty for crime
committed with use of deadly weapon. NRS 193.165, 200.380.
OPINION
Appellant was convicted of robbery with use of a deadly weapon. See NRS 200.380,
193.165. The sole contention on appeal is that the evidence was insufficient to support the
weapons enhancement.
At trial appellant admitted using a blank gun in the commission of the robbery. In Allen v.
State, 96 Nev. 334, 609 P.2d 321 (1980), we held that use of an inoperable firearm in the
commission of a crime would support the enhanced penalty. In so deciding, we stated: A
firearm is dangerous, not only because it can inflict deadly harm, but because its use may
provoke a deadly reaction from the victim or from bystanders.
96 Nev. 633, 634 (1980) Anderson v. State
Id. at 336, 609 P.2d at 322. We perceive no substantial distinction between the inoperable
firearm in Allen and the blank gun used in the instant case.
Affirmed.
Any dicta in Allen v. State, 96 Nev. 334, 609 P.2d 321 (1980) notwithstanding, I
respectfully submit that the term deadly weapon should be applied only to objects having
that essential nature. In Allen v. State, a robber's pistol misfired when he attempted to shoot
his victim. This court decided not to burden enhancement cases with debate over whether
something clearly a weapon, and clearly deadly in its essential nature, is actually operable
or inoperable at the moment of the crime. I submit that such a holding does not support the
view that an object which is neither a weapon nor deadly, such as a cap pistol or a rubber
knife, should be deemed a deadly weapon in law.
____________
96 Nev. 634, 634 (1980) White v. Warden
IVAN H. WHITE, Appellant, v. WARDEN, NEVADA
STATE PRISON, Respondent.
No. 12178
July 29, 1980 614 P.2d 536
Motion to dismiss appeal from order denying post-conviction petition for writ of habeas
corpus, First Judicial District Court, Carson City; Michael R. Griffin, Judge.
On motion of respondent to dismiss appeal, the Supreme Court, Manoukian, J., held that
right to appeal from denial of a post-conviction petition for habeas corpus has not been
abrogated in absence of a clear expression of legislative intent to contrary.
Motion denied.
Richard H. Bryan, Attorney General, and John C. DeGraff, Deputy Attorney General,
1. Statutes.
The intent of the legislature is the controlling factor and, if the statute under consideration is clear on its
face, a court cannot go beyond statute in determining legislative intent.
2. Statutes.
Statutes must be construed in light of their purpose and as a whole.
3. Habeas Corpus.
Excision of statutory phrase giving an applicant right to appeal to the supreme court from the order and
judgment of the district judge or district court refusing to grant the writ was not a purposeful act by the
legislature to preclude appeals from denials of post-conviction habeas petitions. NRS 34.380, subd. 6;
NRAP 22.
4. Habeas Corpus.
Right to appeal from denial of a post-conviction petition for habeas corpus has not been abrogated in
absence of a clear expression of legislative intent to contrary. NRS 34.380, subd. 6; NRAP 22.
OPINION
In September of 1978, appellant pled nolo contendere to a charge of sexual assault.
Judgment of conviction was entered in October of 1978 and appellant was sentenced to life
imprisonment with the possibility of parole in five years. In April of 1979, appellant filed a
petition for a writ of habeas corpus in the district court challenging the voluntariness of his
plea. The petition was denied and appellant appealed to this court. Respondent now moves to
dismiss the appeal and contends that the legislature, in amending NRS 34.380 in 1979,
removed the right to appeal from the denial of a post-conviction petition for habeas corpus.
In Gary v. Sheriff, 96 Nev. 78, 605 P.2d 212 (1980), we concluded that the legislature
could constitutionally preclude appellate review of a pretrial petition for a writ of habeas
corpus based upon an alleged lack of probable cause. We reserved determination of the
question presented here as to the effect the legislative amendment to NRS 34.380 had on
appeals from denials of post-conviction petitions. We have determined that the legislature did
not intend to abrogate the right of appeal in this context. Accordingly, we deny respondent's
motion to dismiss.
In 1979, the Nevada Legislature amended NRS 34.380. 1979 Nev. Stats. ch. 216, 1, at
312. Section 6 of NRS 34.380, which provided that an applicant may appeal to the supreme
court from the order and judgment of the district judge or district court refusing to grant the
writ, was deleted. The state's right to appeal was preserved.
to appeal was preserved. NRS 34.380(6),(7) (as amended). Because the deleted section did
not previously distinguish between pretrial or post-trial petitions, respondent now argues that
there can be no appeal from any denial of a habeas petition.
[Headnotes 1, 2]
Of course, we recognize that the intent of the legislature is the controlling factor and that,
if the statutes under consideration are clear on their face, we cannot go beyond them in
determining legislative intent. Cirac v. Lander County, 95 Nev. 723, 729, 602 P.2d 1012,
1015 (1979); State v. Beemer, 51 Nev. 192, 199, 272 P. 656, 658 (1928). But statutes must
also be construed in light of their purpose and as a whole. Thomas v. State, 88 Nev. 382, 384,
498 P.2d 1314, 1315 (1972); Midwest Livestock v. Griswold, 78 Nev. 358, 360-61, 372 P.2d
689, 690-91 (1962). A reading of the entire actthat is, NRS 34.360-.680reveals some
inconsistency.
Although the main subsection allowing for an appeal of a decision on a habeas petition
was deleted in 1979, there remain references to a party's ability to appeal. We note that some
parties may still appeal from decisions in extradition habeas proceedings. NRS 34.560. And,
even though pretrial appeals were abolished in 1979, there is some ambiguity in remaining
sections referring to pretrial petitions and appeals. See, e.g., NRS 34.375(1)(b)(3).
In O'Donnell v. District Court, 40 Nev. 428, 165 P. 759 (1917), this court said that the
right to appeal is a substantial right and such a right should not be taken away unless such is
clearly intended. Id. at 432-33, 165 P. at 759-60. In light of the ambiguity of the action of the
legislature, we deem it appropriate to look at the legislative history of the 1979 amendment to
determine just what rights of appeal were abrogated.
[Headnotes 3, 4]
The legislative history of the 1979 amendments indicates that the legislature was primarily
concerned with trial delays due to appeals from denials of habeas petitions. At a hearing by
the senate judiciary committee, District Judge Michael Griffin stated that the Judge's
Association requested a bill be introduced to limit pretrial habeas corpus appeals. Nevada
Senate Committee on Judiciary, Minutes of Feb. 2, 1979, at 3. The subsequent discussion
also reflected concern about trial delay and a desire to return authority for a state appeal from
the grant of a petition. Id. at 4. At a later meeting, Judge [J. Charles] Thompson said that this
bill is designed to preclude intermediate appeals to the Supreme Court from pretrial
denials of petitions for writs of habeas corpus."
intermediate appeals to the Supreme Court from pretrial denials of petitions for writs of
habeas corpus. Nevada Assembly Committee on Judiciary, Minutes of Apr. 6, 1979, at 2-3.
The clear import of this legislative history is that the legislature only intended to limit appeals
from a pretrial denial of a petition for habeas corpus in criminal cases. We do not agree with
respondent state that the excision of former NRS 34.380(6) was a purposeful act by the
legislature to preclude appeals from denials of post-convection habeas petitions. Absent a
clear expression from the legislature, we will not find an intent to bar an appeal in the context
of this case.
1

Finally, NRAP 22 provides that that proper remedy [upon a denial of a habeas petition] is
by appeal to the Supreme Court from the order of the district court denying the writ. As we
recognized in Gary v. Sheriff, 96 Nev. at 79-80, 605 P.2d at 213-214, this rule fails to have
continuing vitality in the context of pretrial habeas appeals due to a clear legislative intent to
bar such appeals. Nevertheless, in the post-conviction setting, we arrive at a different result.
We consider NRAP 22, as applied to post-conviction habeas appeals, not inconsistent with
the legislative intent in the present habeas statutes. See NRS 2.120. As such, we shall
continue to regulate post-conviction habeas appeals under our rules. Accordingly, we deny
the motion to dismiss this appeal. Respondent shall have thirty days from the date of this
decision to file its answering brief.
____________________

1
We express no opinion as to the constitutionality of a clear action by the legislature limiting the right to
appeal from the denial of a post-conviction petition for habeas corpus. This court will avoid consideration of
constitutional questions when such consideration is unnecessary to the determination of an appeal. Union Pacific
R.R. v. Adams, 77 Nev. 282, 290, 362 P.2d 450, 454 (1961). We should do so especially in this case where the
legislature did not clearly intend to preclude post-conviction appeals by a habeas petitioner.
____________
96 Nev. 637, 637 (1980) Rainbow Blvd. v. State ex rel. Dep't Hwys.
RAINBOW BLVD. EXPRESSWAY-ALEXANDER ROAD, a Limited Partnership,
DONALD P. ROMANO, BARBARA E. ROMANO, Partners, and ROMANO REALTY,
INC., Appellants, v. THE STATE OF NEVADA, on Relation of its DEPARTMENT OF
HIGHWAYS, Respondent.
No. 11585
July 29, 1980 615 P.2d 931
Appeal from judgment of condemnation, Eighth Judicial District Court, Clark County;
Thomas J. O'Donnell, Judge.
Condemnees appealed from a judgment of condemnation entered in the district court
contending that they were entitled to severance damages. The Supreme Court, Manoukian, J.,
held that: (1) a dedication of property by the condemnees to a city in a prior deed required no
consideration and a waiver of severance damages therein was valid, and (2) the waiver in the
prior deed, which applied to severance damages by reason of the location, construction,
landscaping and maintenance of a highway contemplated at the time the deed was executed,
did not apply if the highway contemplated in this condemnation caused damage to
condemnees' remaining parcel above and beyond that damage which would have resulted
from the highway previously contemplated.
Bell and Young, Ltd., for Appellants.
Richard Bryan, Attorney General, and Timothy D. Hay, Deputy Attorney General, Carson
City, for Respondent.
1. Dedication.
Dedication of land for appropriate public use required no consideration and grantors' waiver of severance
damages in deed was valid.
2. Dedication; Eminent Domain.
Deed which dedicated property for use as highway and waived access rights to grantors' remaining
property if and when said street shall be designated a Primary or Interstate Route by the State of Nevada
did not require any time limit on construction and construction was not limited to that of city to which
property was dedicated.
3. Eminent Domain.
Deed which vested city with title to 75-foot strip of land for construction of highway and which waived
any severance damages to remaining parcel did not waive severance damages caused by subsequent
condemnation of part of the remaining parcel if the new appropriation caused damage to remaining parcel
above and beyond that damage which would have resulted from highway on 75-foot strip.
OPINION
This condemnation judgment was entered according to a stipulation that it would be
treated as a summary judgment on the issue of severance damages in favor of respondent.
Appellants agreed as to the amount of damages for the land actually condemned, but
contended that they should be allowed severance damages accruing to the land not
condemned. In this appeal, we are required to decide whether the waivers in a deed of a
parcel of land to a municipal government were valid and, whether the trial court erred by
precluding appellants from introducing evidence of severance damages.
of a parcel of land to a municipal government were valid and, whether the trial court erred by
precluding appellants from introducing evidence of severance damages. We hold that the trial
court erred in precluding such evidence.
On March 9, 1977, respondent state filed a complaint in eminent domain on 2.31 acres of
appellants' property (herein referred to as Parcel B), which abutted land to be used in the
construction of U.S. Expressway 95.
1
Appellants' entire parcel of land (Parcels B and C) was
on the northwest corner of and directly abutted the proposed expressway at its intersection
with Alexander Road. The affidavit of valuation placed the estimated fair market value of
Parcel B, which would have no abutter's rights or easements of access, at $13,900. On April
12, 1977, appellants answered and counter-claimed alleging that a 1963 deed from their
predecessors to the City of Las Vegas was invalid. This deed had conveyed an easterly
seventy-five foot strip (Parcel A), just east of the present parcel, to the City of Las Vegas and
its assigns in contemplation of a possible primary or interstate route to be constructed by the
state. The counterclaim here contended that that deed was without consideration and that the
grantee had not complied with its terms. The counterclaim also alleged that the state was now
leaving appellants with a noneconomic remnant which fronted Alexander Road.
On April 26, the state moved to dismiss contending that appellants could not assert an
invalid deed against the state when the deed had been to the City of Las Vegas. The trial court
subsequently ordered the dismissal of the counterclaim and consolidated all the arguments
into the condemnation action.
On November 16, 1978, the state filed a motion in limine requesting that the court
determine that appellants had waived all damage claims to property which remained adjacent
to the property being condemned.
____________________

1
This is a map of the Parcels C, B, A.
property being condemned. The appellants had received the property from their predecessors
on August 31, 1976. That deed had excepted the easterly seventy-five foot strip of property
(Parcel A), which previously had been conveyed to the city. The deed was also subject to the
restrictions in that 1963 deed. The 1963 deed provided that Parcel A was conveyed along
with any and all abutter's rights, including access rights pertinent to the remaining property,
if and when said street shall be designated a Primary or Interstate Route by the State of
Nevada. . . . Additionally, the 1963 deed purported to waive the grantors' claim for any and
all damages to the remaining adjacent land by reason of the location and maintenance of the
highway. The state thus moved to preclude the appellants from claiming any damages to the
remainder of its property or damage for the loss of access rights.
On December 5, 1978, appellants filed an opposition to the motion and tendered three
arguments. The first argument was that there had been no reference in the 1963 deed to land
adjacent to Alexander Road of which the state was now trying to condemn. Appellants argued
that the state was now leaving an uneconomic remnant of an additional ten feet. The second
argument was that appellants were entitled to damages arising out of the widening of the
main highway. Appellants' final argument was that the 1963 deed failed for lack of
consideration. Appellants argued that the waiver of damages for the construction of a road on
the deeded property was subject to the condition that such a road actually be built. Because
this road was never constructed, appellants alleged that the consideration for waiver of
damages had failed. Thus, they claim that they may recover damages to pay for improvements
necessary to protect their property from flooding, noise, and other matters. Appellants also
filed affidavits showing that no payments had in fact been made to the previous owners and
that Parcel A had been acquired as a result of a dedication to the city. On appeal, respondent
contends that because Parcel A was dedicated to the city, no consideration for the property
was required, even assuming the appellants have standing now to challenge that deed.
1. Validity of the 1963 Deed.
Appellants are not asserting title to Parcel A which was conveyed to the city. Instead, they
contend that the waivers of damage to the remaining Parcel C, which they now own, are void
for lack of consideration and fraud in the conveyance of Parcel A by their predecessors to the
city. The invalidity is claimed as a defense against the state's condemnation action of Parcel
B although the waivers appeared in the deed of Parcel A to the City of Las Vegas.
to the City of Las Vegas. Certainly, if such waivers are now found to be invalid with regard to
damages caused by the city, then there would have been a failure to join a necessary party.
See Johnson v. Johnson, 93 Nev. 655, 572 P.2d 925 (1977); NRCP 19(a). Should we decide
only that such waivers do not apply to damages caused by the state, the city would not be an
indispensible party.
[Headnotes 1, 2]
In any event, we find appellants' arguments to be without merit. First, appellants
themselves argue that the conveyance to the city was a dedication. A dedication is a gift of
land for an appropriate public use and thus requires no consideration. Lovett v. County of
Harris, 462 S.W.2d 405, 408 (Tex.Civ.App. 1979). See McKernon v. City of Reno, 76 Nev.
452, 357 P.2d 597 (1960). Second, even if this was not a dedication, the deed itself does state
the conveyance to the city was for and in consideration of the sum of One Dollar, . . . and
other good and valuable consideration, the receipt whereof is hereby acknowledged. . . .
2
See McGill v. Headrick, 578 S.W.2d 377, 382 (Tenn.App. 1978). Appellants argue that either
the consideration for the conveyance was that a street be constructed or that this was a
condition for the waivers. But the deed does not clearly show either. The deed only purports
to waive access rights of the remaining property to Rainbow Boulevard (the proposed
highway) if and when said street shall be designated a Primary or Interstate Route by the
State of Nevada. There is no set time limit on the construction and such construction is not
limited to that of the city. We do not find the failure of a condition. See State ex rel. Dep't
Hwys. v. LoBue, 83 Nev. 221, 223-24, 427 P.2d 639, 640-41 (1967). Because appellants
could not prevail on any theory, summary judgment was appropriate. NRCP 56.
2. The Damage Waivers.
[Headnote 3]
Having concluded that the 1963 deed is valid, we must still decide whether the waivers of
damages have application to a subsequent condemnation action by the state. In the
conveyance of the seventy-five foot strip (Parcel A) from appellants' predecessors to the City
of Las Vegas, the grantors waived,
with full knowledge that if a Primary or Interstate Route and the necessary incidents
thereto are to be located upon . . . [Parcel A], any claim for any and all damages to the
remaining adjacent lands and property of the GRANTORS by reason of the location,
construction, landscaping and maintenance of said highway. . . .
____________________

2
It is interesting to note that this recitation of consideration is just as clear as that in the deed of Parcels B and
C to appellants.
remaining adjacent lands and property of the GRANTORS by reason of the location,
construction, landscaping and maintenance of said highway. . . .
There was also a conveyance of abutter's rights and access rights to Rainbow Boulevard.
Appellants now argue that they are entitled to damages notwithstanding the 1963 deed.
They claim damage from the fact that the state is leaving an uneconomic remnant of ten feet
along Alexander Road (the road on the southern boundary of the parcel and not specifically
mentioned in the 1963 deed), and damage resulting from the widening by the state of the right
of way owned by the city. These arguments have merit in the context of a summary judgment.
The waiver in the 1963 deed was based on the belief that a highway would be constructed
on the property then conveyed to the city. Because this could include construction by the
state, the grantor could not then claim any damages to its remaining property. But the
construction has now expanded and intensified and the state is taking a separate piece of
property. There may be some damages now occurring which are beyond the contemplation of
the parties to the original deed.
3

The effect of the 1963 deed was to vest a governmental entity with title to the seventy-five
foot strip as if it had also been condemned. Thus, any damages now affecting appellants as a
result of the original conveyance may not be litigated. See Block v. Orlando-Orange County
Expressway Authority, 313 So.2d 75 (Fla.App. 1975). But, if the new appropriation has
caused damage to appellants' remaining parcel above and beyond that damage which would
have resulted from the highway on the seventy-five foot strip, appellants are entitled to
recover. See DeVore v. State Highway Comm'n, 54 P.2d 971 (Kan. 1936). The deed does not
preclude appellants from demonstrating new and uncontemplated damages. We believe we
should strictly construe a waiver of damages so as not to bar a claim which had not accrued
when the release was executed. Henry Shenk Co. v. City of Erie, 43 A.2d 99, 102 (Pa. 1945).
Thus, there can be no waiver as to matters which were beyond the contemplation of the
parties.
____________________

3
With regard to the effect of the widening of the right-of-way, a reduction in the size of appellants' remaining
parcel may preclude them from certain types of zoning and attendant construction. See Andrews v. Kingsbury
Gen. Improvement, 84 Nev. 88, 90, 436 P.2d 813, 814 (1968). This may be beyond the impairment caused by
the first severance of property. Whether or not other alleged damages, such as the lack of electrical conduits or
the need for a sound barrier, grade change, or flood control can be demonstrated by appellants as being above
and beyond those initially incurred or contemplated is a matter of fact which must be determined upon remand.
Although the language of the waivers is broad, and can arguably be interpreted to include
all subsequent damages, on a motion for summary judgment all doubt should be resolved in
favor of the non-moving party. NRCP 56. Thus, this case must be remanded for a trial on
these alleged damages.
We affirm the lower court concerning its entry of summary judgment on the validity of the
1963 deed and reverse and remand this case for trial regarding the question of severance
damages.
____________
96 Nev. 643, 643 (1980) County of Clark v. Bonanza No. 1
COUNTY OF CLARK, a Political Subdivision of the State of Nevada, Appellant, v.
BONANZA NO. 1; T. L. CORPORATION (MGM GRAND HOTEL, INC.); TRACY
INVESTMENT COMPANY, and J. J. ENTERPRISES OF NEVADA, Respondents.
No. 11502
BONANZA NO. 2 and NATHAN JACOBSON, Petitioners, v. THE EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, THE HONORABLE J. CHARLES
THOMPSON, Judge, and the COUNTY OF CLARK, Respondents.
No. 11706
August 14, 1980 615 P.2d 939
Appeal from summary judgment and original proceedings in mandamus. Eighth Judicial
District Court, Clark County; J. Charles Thompson, Judge.
In action for inverse condemnation, county cross-claimed under indemnity agreement to
obtain indemnity for any damages awarded to landowners claiming condemnation. The
district court granted summary judgment to all but two defendants on cross claim. County
appealed and two remaining defendants sought writ of mandamus to compel district judge to
grant summary judgment in their favor. The Supreme Court, Batjer, J., held that: (1)
successor tenant, whose predecessors were parties to indemnity agreement in which
predecessors promised to save county harmless from any damages resulting to county by
reason of claim asserted to portion of paved roadway, who were not parties to indemnity
agreement, and who, based upon pleadings and proof in record, did not assume indemnity
obligation, were not bound by indemnity agreement to indemnify county for any damages
awarded in inverse condemnation action; {2) even though county could have right of
action against party to indemnity agreement with county, it could not sue party's
indemnitor under separate agreement between indemnitor and party because separate
agreement did not create direct obligation in county's favor and county was not
third-party beneficiary; and {3) county's promise to resist claims and to insure
unrestricted access to hotel property, contained in agreement indemnifying county from
claims to access roadway, was not improper restraint on official discretion and void as
against public policy.
and who, based upon pleadings and proof in record, did not assume indemnity obligation,
were not bound by indemnity agreement to indemnify county for any damages awarded in
inverse condemnation action; (2) even though county could have right of action against party
to indemnity agreement with county, it could not sue party's indemnitor under separate
agreement between indemnitor and party because separate agreement did not create direct
obligation in county's favor and county was not third-party beneficiary; and (3) county's
promise to resist claims and to insure unrestricted access to hotel property, contained in
agreement indemnifying county from claims to access roadway, was not improper restraint on
official discretion and void as against public policy.
Summary judgment affirmed. Writ denied.
[Rehearing denied November 20, 1980]
Lionel Sawyer & Collins, and Stephen L. Morris, Las Vegas, for Respondents on appeal
and for Petitioners.
Robert J. Miller, District Attorney, Clark County, and George Rudiak, Las Vegas, for
Respondents in the mandamus proceeding.
1. Judgment.
Summary judgment is proper only if pleadings, depositions, answers to interrogatories and admissions on
file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that
moving party is entitled to judgment as matter of law. NRCP 56(c).
2. Contracts.
As general rule, none is liable upon contract except those who are parties to it; if successor does not
promise to satisfy its predecessor's indebtedness or assume predecessor's obligations, predecessor's
creditors are not entitled to recover against successor.
3. Indemnity.
Successor tenants, whose predecessors were parties to indemnity agreement in which predecessors
promised to save county harmless from any damages resulting to county by reason of claim asserted to
portion of paved roadway, who were not parties to indemnity agreement, and who, based upon pleadings
and proof in record, did not assume indemnity obligation, were not bound by indemnity agreement to
indemnify county for any damages awarded in inverse condemnation action.
4. Indemnity.
Only party entitled to sue on indemnity contract is indemnitee, his assignee, or third-party beneficiary.
5. Indemnity.
Even though county could have right of action against party to indemnity agreement with
county, it could not sue party's indemnitor under separate agreement between
indemnitor and party because separate agreement did not create direct obligation in
county's favor and county was not third-party beneficiary.
indemnity agreement with county, it could not sue party's indemnitor under separate agreement between
indemnitor and party because separate agreement did not create direct obligation in county's favor and
county was not third-party beneficiary.
6. Federal Courts.
No appeal may be taken from denial of summary judgment; however, writ of mandamus will issue to
compel entry of summary judgment when there is no genuine issue as to any material fact and movant is
entitled to judgment as matter of law. NRAP 3A(b)(5).
7. Contracts.
Benefit conferred or detriment incurred in past is not adequate consideration for present bargain.
8. Indemnity.
Where county, in 1969 indemnity agreement, promised to resist claims against its right to use roadway
and to do nothing to impair access to adjoining hotel property in consideration for promise to save county
harmless from any damages resulting to county by reason of claims to portion of paved roadway, even if
county impliedly bound itself to condemn parcel on which roadway was situated if it became necessary,
such promise would be valuable consideration notwithstanding that county had condemned roadway in
1967, since county did not realize at time of 1969 indemnity agreement that county's acts had effected
inverse condemnation of parcel in 1967 and since county and other parties to indemnity agreement
obviously believed that any condemnation would occur in future.
9. Contracts.
Consideration is not adequate when it is mere promise to perform that which promisor is already bound to
do.
10. Indemnity.
County did not have preexisting duty to resist claims and to insure unrestricted access to hotel property,
as it had promised to do in indemnity agreement, where statutes governing maintenance and improvement
of standard county roads might give rise to duty to improve and maintain roads, but did not compel county
to insure unrestricted access to hotel property or to resist claims against its right to road. NRS 403.180,
403.200.
11. Contracts.
County's promise in indemnity contract to insure access to hotel property leased by other parties to
contract complemented duty to maintain county roads in proportion to use; if road fell into disuse, county
had no duty to maintain it, but county would not thereby breach its promise to insure unrestricted access
because no one would be seeking access, and thus promise to maintain unlimited access to and from hotel
property was not illusory. NRS 403.180, 403.200.
12. Indemnity.
County's promises to resist claims and to insure unrestricted access to hotel property contained in
indemnity agreement with tenants of property were bargained for in view of unambiguous statement of
consideration set forth in agreement.
13. Evidence.
Extrinsic evidence is inadmissible to contradict unambiguous statement of consideration set forth in
agreement.
14. Indemnity.
Private parties may legitimately share cost of eminent domain through indemnity agreement.
15. Indemnity.
It was not contrary to public policy to indemnify county against claims asserted to portion of paved
roadway expanded by county over parcel of land leased by parties to the indemnity agreement where
county was not trespasser but had inversely condemned property by construction of road.
16. Contracts.
Contracts with public body to locate public facilities or highways in certain place tend to operate to
detriment of public interest in that such contracts prevent change or removal of public facilities when needs
or convenience of public demand; thus, all such contracts are against public policy and void.
17. Contracts.
Even when consideration inures to benefit of public, in contract with public body to locate public
facilities or highways in certain place, and there is not intentional private advantage, contract that
influences exercise of official discretion is contrary to public policy and unenforceable because public is
entitled to free and unconstrained public officers.
18. Contracts.
To extent that county's obligation in contract with private party is ambiguous, court must construe it to
avoid conflict with public policy.
19. Contracts.
County's promise to resist claims and to insure unrestricted access to hotel property, contained in
agreement indemnifying county from claims to access roadway, was not improper restraint on official
discretion and void as against public policy where widening of access road, unrestricted access to hotel
property, and cost of condemnation being borne by private parties inured to benefit of public, where
county's promise complemented its statutory duty, and where any corresponding detriment, in terms of less
official discretion, appeared to be remote and speculative. NRS 403.180, 403.200.
20. Indemnity.
Where agreement indemnifying county against claims to access roadway to hotel, which county in turn
promised to maintain, set no time limits upon performance of promise to indemnify county for costs arising
from condemnation of roadway and promise to indemnify became operable only if it became necessary for
county to condemn parcel, private parties to agreement apparently assumed risk that condemnation would
occur in distant future and, therefore, there was no inequity in shifting enhanced liability for inverse
condemnation of property beneath roadway to them when county resisted claim of inverse condemnation
and thereby allowed land value to skyrocket.
OPINION
This case involves the validity of an indemnity agreement whereby Nathan Jacobson and
Bonanza No. 2 promised to pay to Clark County the amount of any condemnation award
received by Ruth and Arby Alper for a parcel of land underlying Flamingo Road. We affirm
the summary judgment in favor of Bonanza No. 1, Tracy Investment Co., J. J. Enterprises,
and T. L. Corporation because they did not assume the obligation to indemnify the county.
favor of Bonanza No. 1, Tracy Investment Co., J. J. Enterprises, and T. L. Corporation
because they did not assume the obligation to indemnify the county. We deny the writ of
mandate because the agreement is not clearly unenforceable against Jacobson and Bonanza
No. 2.
In 1959, Arby and Ruth Alper acquired land abutting Flamingo Road in Clark County. The
land was leased to Bonanza No. 1
1
in 1966 for a term ending in 1972 with an option to
extend the lease for 50 years.
As a condition to securing building permits, Bonanza No. 1 granted to Clark County a
52-year easement over a portion of the property, measuring 50 feet by 1,000 feet (Parcel 1). In
May, 1967, Flamingo Road was widened to include Parcel 1. On June 19, 1968, the county
acknowledged the Alpers' ownership and promised not to assert any prescriptive rights to the
property underlying the roadway.
On January 16, 1969, the lease was cancelled.
2
On May 26, 1969, Bonanza No. 2, Nathan
Jacobson,
3
and Clark County entered into an indemnity agreement. The county promised
. . . to resist any claim asserted by any such person or persons and to do nothing to
impair the right to, or to prevent, unlimited and uncontroverted access to and from said
hotel property to said western portion of paved roadway. In this regard County agrees to
resist any claim that it does not have an easement for road and highway purposes over
said western portion of paved roadway.
Bonanza No. 2 and Nathan Jacobson each promised
. . . to save County harmless from any damages resulting to County by reason of the
claims asserted by any person or persons to said western portion of paved roadway,
[and] [i]n the event it shall be finally adjudicated that the alleged fee owners of said
western portion of paved roadway may prevent access thereto from the hotel property
adjacent and contiguous thereto, and it thereby becomes necessary for the County to
condemn for road and highway purposes any or all of the said western portion of paved
roadway, to pay to County the amount of any final judgment received by the alleged
owners of said western portion of paved roadway or any amount required to be paid
therefor by reason of a negotiated settlement. . . .
____________________

1
Bonanza No. 1 is wholly owned by Bonanza No. 2.

2
About this time, Tracy Investment Co. purchased Bonanza No. 2, which had declared bankruptcy. In March,
1969, Tracy sold Bonanza No. 2 to J. J. Enterprises.

3
Nathan Jacobson was an owner of J. J. Enterprises.
Nathan Jacobson sold J. J. Enterprises and Bonanza No. 2 to Levin-Townsend Computer
Corporation in September, 1969. On September 2, 1969, Levin-Townsend, J. J. Enterprises,
and Bonanza No. 2 agreed to indemnify and hold Jacobson [and others] harmless for all
costs and expenses . . . arising from any claims made against [them] arising from acts done by
[them] within the scope of [their] authority as officers and/or directors of J. J. and Bonanza
No. 2.
In 1972, the Alpers filed a complaint against the county to recover damages for inverse
condemnation.
4
The county cross-claimed against Bonanza No. 1, Bonanza No. 2, J. J.
Enterprises, Nathan Jacobson, Tracy and T. L. Corporation.
5
The county alleged that the
cross-claim defendants were bound by the May 26, 1969, agreement to indemnify the county
for any damages awarded to the Alpers.
All third-party defendants moved for summary judgment. On September 12, 1978,
summary judgment was entered in favor of Bonanza No. 1, J. J. Enterprises, Tracy and T. L.
Corporation (hereinafter respondents). Clark County appeals from that judgment. The district
judge denied summary judgment for Bonanza No. 2 and Nathan Jacobson (hereinafter
petitioners) on November 2, 1978. They now seek a writ of mandamus to compel the district
judge to grant summary judgment in their favor.
Appeal From Summary Judgment
[Headnote 1]
Summary judgment is proper only 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.
NRCP 56(c); Harvey's Wagon Wheel v. MacSween, 96 Nev. 215, 606 P.2d 1095 (1980).
Clark County argues that whether or not the May 26, 1969, indemnity agreement binds
respondents is a triable issue of fact. Specifically, Clark County contends that the agreement
is binding upon all successors in interest to Bonanza No. 2 and Nathan Jacobson, the
signatories to the agreement.
[Headnote 2]
As a general rule, none is liable upon a contract except those who are parties to it.
____________________

4
See Alper v. Clark Co., 93 Nev. 569, 571 P.2d 810 (1977). The district judge's finding that Clark County
had condemned Parcel 1 in May, 1967, was not overturned on appeal.

5
T. L. Corporation had purchased Bonanza No. 2 by the time the cross-claim was filed.
who are parties to it. Paxton v. Bacon Mill and Mining Co., 2 Nev. 257 (1866); Barbara's
Lighting Center, Inc. v. Churchill, 540 P.2d 1110 (Colo.App. 1975). If a successor does not
promise to satisfy its predecessor's indebtedness or assume the predecessor's obligations, the
predecessor's creditors are not entitled to recover against the successor. Eaton v. J.H., Inc., 94
Nev. 446, 581 P.2d 14 (1978); Lipshie v. Tracy Investment Co., 93 Nev. 370, 566 P.2d 819
(1977).
[Headnote 3]
In this case, none of the respondents was party to the May 26, 1969, agreement. Only J. J.
Enterprises promised to indemnify Jacobson for claims arising from acts done as an officer or
director of Bonanza No. 2 or J. J. Enterprises. Based upon the pleadings and proof in the
record, there is no indication that Bonanza No. 1, Tracy and T. L. Corporation assumed the
indemnity obligation. Consequently, summary judgment in their favor was proper.
As noted above, on September 2, 1969, J. J. Enterprises promised to indemnify Jacobson
for claims arising from his actions as an officer or director of Bonanza No. 2 and J. J.
Enterprises. If Jacobson is liable to the county under the May 26, 1969, agreement, and his
signature was an act within the scope of his authority as an officer of Bonanza No. 2 or J. J.
Enterprises, then Jacobson may pursue his right to indemnification under the September 2,
1969, agreement.
[Headnotes 4, 5]
However, the only party entitled to sue on an indemnity contract is the indemnitee, his
assignee, or a third party beneficiary. Clark v. Compania Ganadera de Cananea, S. A., 385
P.2d 691 (Ariz. 1963); Fidelity and Deposit Co. of Maryland v. Reed, 108 S.W.2d 939
(Tex.Civ.App. 1937); 41 Am.Jur.2d Indemnity 41; cf. Carson Opera House Ass'n v. Miller,
16 Nev. 327 (1881) (liability of a surety may not be extended by implication beyond the strict
terms of the contract). Although Clark County may have a right of action against Jacobson
pursuant to the May 26, 1969, agreement, it cannot sue Jacobson's indemnitor, J. J.
Enterprises, because the September 2, 1969, agreement did not create a direct obligation in
the county's favor. The county was not a third-party beneficiary. Lipshie, 93 Nev. at 379;
Lucerne Motor v. Airways International, 82 Nev. 11, 409 P.2d 622 (1966); Fidelity and
Deposit Co, of Maryland, 108 S.W.2d at 940-941. There is no factual issue regarding J. J.
Enterprises' liability to the county, therefore summary judgment in its favor was proper.
Petition for Writ of Mandate
[Headnote 6]
No appeal may be taken from a denial of summary judgment. However, a writ of
mandamus will issue to compel entry of a summary judgment when there is no genuine issue
as to any material fact and the movant is entitled to judgment as a matter of law. Sandler v.
District Court, 96 Nev. 622, 614 P.2d 10 (1980); Manufacturers & Traders Trust v. District
Court, 94 Nev. 551, 583 P.2d 444 (1978); Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610
(1964); NRAP 3A(b)(5).
Petitioners Jacobson and Bonanza No. 2 argue that, as a matter of law, they are not liable
to Clark County under the May 26, 1969, agreement because it is void and unenforceable.
Specifically, petitioners contend that the agreement is not supported by consideration and that
it violates public policy.
A.
[Headnotes 7, 8]
Petitioners argue that because Clark County had condemned the roadway in May, 1967,
6
its promise constituted past consideration. A benefit conferred or detriment incurred in the
past is not adequate consideration for a present bargain. Smith v. Recrion Corp., 91 Nev. 666,
541 P.2d 663 (1975). However, the county did not promise to condemn the property; it
promised to resist claims against its right to use the roadway and to do nothing to impair
access to the adjoining hotel property.
Even if the county impliedly bound itself to condemn the parcel if it became necessary,
that promise would be valuable consideration. [W]here on the facts known at the time of the
bargain any reasonable person would think a detriment or possible detriment was promised,
the consideration is sufficient. 1 Williston on Contracts, 3d Ed. 119 at 489. On May 26,
1969, the county did not realize that its acts had effected an inverse condemnation of Parcel 1.
Rather, the county and petitioners obviously believed that any condemnation would occur in
the future. Consequently, the county's promise was sufficient consideration.
B.
[Headnote 9]
Petitioners also argue that the county had a pre-existing duty to perform the promised acts
and, thus, it did not bind itself to do anything it was not already bound to do. Consideration is
not adequate when it is a mere promise to perform that which the promisor is already bound
to do.
____________________

6
Finding of fact in Alper v. Clark County, 93 Nev. 569, 571 P.2d 810 (1977).
the promisor is already bound to do. Walden v. Backus, 81 Nev. 634, 408 P.2d 712 (1965);
Thomas v. Palmer, 49 Nev. 438, 248 P. 887 (1926).
[Headnote 10]
The county's pre-existing duty to resist claims and to insure unrestricted access to hotel
property is said to emanate from NRS 403.180 and NRS 403.200.
7
Those statutes may give
rise to a duty to improve and maintain roads, but they do not compel the county to insure
unrestricted access to the hotel property or to resist claims against its right to the road. There
is no pre-existing duty to do what it has promised to do in the agreement.
C.
Petitioners also contend that the county's promise to maintain unlimited access to and from
the hotel property is illusory. If the county is not free to abandon the street when the public
interest requires such action, then the county's promise is illegal because it violates public
policy. Martinez v. Johnson, 61 Nev. 125, 119 P.2d 880 (1941). On the other hand, if the
county is free to abandon the road when the public interest favors abandonment, then the
county's promise may be illusory. Either way, according to petitioners, the contract is
rendered unenforceable.
[Headnote 11]
The county's promise to insure access to the hotel property complements its duty to
maintain county roads in proportion to use. NRS 403.200(2). If Flamingo Road falls into
disuse, the county has no duty to maintain it. However, the county would not thereby breach
its promise to insure unrestricted access because no one would be seeking access.
____________________

7
NRS 403.180 Standard county roads. Designation; maintenance.
. . . .
2. When the board of county highway commissioners shall have declared and designated any road to
be a standard county road, then the cost of maintaining such road shall be paid out of the county general
fund in the same manner as provided in NRS 403.460.
NRS 403.200 Priority of construction, improvement.
1. The roads designated by the board of county highway commissioners as main county roads shall
be the first to be constructed or improved and made to meet the requirements and specifications of
standard county roads; but no road or roads shall receive the attention of the board of county highway
commissioners or the county road supervisor to the exclusion of the other county roads.
2. It is the intention and purpose of this chapter to improve all of the county roads in the proportion
of their public travel and their degree of importance to the people of the whole county, and the board of
county highway commissioners will be so guided in its operations.
D.
[Headnotes 12, 13]
Petitioners' argument that the county's promises were not bargained for has no merit.
Extrinsic evidence is inadmissible to contradict the unambiguous statement of consideration
set forth in the agreement. Schieve v. Warren, 87 Nev. 42, 482 P.2d 303 (1971).
E.
[Headnotes 14, 15]
Private parties may legitimately share the cost of eminent domain. See e.g. Gruntorad v.
Hughes Brothers, 73 N.W.2d 700 (Neb. 1955); cf. Aeroville v. Lincoln Power, 71 Nev. 320,
290 P.2d 970 (1955) (federal government agreed to reimburse power district for cost of
relocating power lines away from air strip). However, petitioners argue that it is contrary to
public policy to indemnify the county for its deliberate and wrongful trespass upon the Alpers'
land. Their argument is meritless. The county was not a trespasser; it inversely condemned
the property in 1967.
F.
Petitioners next contend that the promise to insure unlimited access to the hotel property
may be viewed as binding the county to one course of action, which is detrimental to the
public interest.
[Headnotes 16, 17]
A contract with a public body to locate public facilities or highways in a certain place
tends to prevent the change or removal of such facilities when the needs or convenience of
the public demand. All such contracts tend to operate to the detriment of the public interest
and are against public policy and void. Western Cab Co. v. Kellar, 90 Nev. 240, 523 P.2d 842
(1974); King v. Randall, 44 Nev. 118, 190 P. 979 (1920). Even when the consideration inures
to the benefit of the public and there is no intentional private advantage, a contract that
influences the exercise of official discretion is contrary to public policy and unenforceable
because the public is entitled to the free and unconstrained judgment of public officers. Id. at
124; Osborne v. Allen, 226 S.W. 221 (Tenn. 1920); 15 Williston on Contracts, 3d Ed. 1734,
at 23.
[Headnotes 18, 19]
To the extent the county's obligation is ambiguous, we must construe it to avoid conflict
with public policy. It is not clear that the public stands to lose from the county's bargain.
that the public stands to lose from the county's bargain. The widening of Flamingo Road, the
unrestricted access to the hotel property, and the cost of condemnation being borne by private
parties inure to the benefit of the public. Any corresponding detriment, in terms of less
official discretion, appears to be remote and speculative. As noted above, the county's
promise complements its statutory duty. Consequently, the county's promise is not an
improper restraint on official discretion.
G.
[Headnote 20]
Finally, the petitioners argue that it is against public policy to shift the enhanced liability
for inverse condemnation to them. According to petitioners, the county should have promptly
compensated the Alpers for the land taken by inverse condemnation. By waiting, and resisting
the Alpers' claims, the county has allowed the land value to skyrocket.
8
Petitioners do not
believe they should assume the burden of paying the enhanced value.
The agreement sets no time limits upon performance of the promise to indemnify the
county for costs arising from condemnation. In fact, the promise to indemnify becomes
operable only if it becomes necessary for the county to condemn the parcel. Jacobson and
Bonanza No. 2 apparently assumed the risk that condemnation would occur in the distant
future. There is no inequity in shifting the enhanced liability to them.
We cannot conclude that, as a matter of law, the May 26, 1969, agreement is
unenforceable. Therefore, the district judge's denial of petitioners' motion for summary
judgment will not be disturbed.
Summary judgment is affirmed. The writ is denied.
Mowbray, C. J., and Thompson and Manoukian, JJ., and Zenoff, Sr. J.,
9
concur.
____________________

8
The valuation date is the trial date.

9
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit the place of The Honorable
E. M. Gunderson, who voluntarily disqualified himself in this case. Nev. Const. Art. 6, 19; SCR 10.
____________
96 Nev. 654, 654 (1980) Rhoden v. First Nat'l Bank of Nev.
HAROLD RHODEN, Substitute Executor of Noah Dietrich, Estate of Howard R. Hughes,
Appellant, v. FIRST NATIONAL BANK OF NEVADA; WILLIAM LUMMIS, and
ABSENT and MINOR HEIRS, Respondents.
No. 11369
August 14, 1980 615 P.2d 244
Appeal from order denying petition for allowance of attorney's fees; Eighth Judicial
District Court, Clark County; Keith C. Hayes, Judge.
Proceeding was instituted on petition for allowance of attorney's fees to the executor of a
will denied probate. The district court entered order denying petition, and petitioner appealed.
The Supreme Court, Thompson, J., held that statute providing that attorneys for executors,
administrators and special administrators are entitled to reasonable compensation for their
services to be paid out of the decedent's estate does not authorize payment of attorney's fees
to an executor in an unsuccessful attempt to procure probate of a contested will even if
attempt is carried forward in good faith.
Affirmed.
Beckley, Singleton, DeLanoy & Jemison and Mark C. Scott, Jr., of Las Vegas, for
Appellant.
Morse-Foley, of Las Vegas, and Andrews, Kurth, Campbell & Jones and James W.
Dilworth, of Houston, Texas, for Respondents.
Concept of In re Hegarty that a decedent's estate may be obliged to pay for counsel fees incurred in
successfully procuring the probate of a contested will cannot be enlarged to embrace an unsuccessful
attempt to procure the probate of a contested will if the attempt was carried forward in good faith.
2. Costs.
In the absence of rule, statute or contract authorizing an award of attorney's fees, such fees may not be
allowed.
3. Wills.
Statute providing that attorneys for executors, administrators and special administrators are entitled to
reasonable compensation for their services to be paid out of the decedent's estate does not authorize
payment of attorney's fees to an executor in an unsuccessful attempt to procure probate of a contested will
even if attempt is carried forward in good faith. NRS 136.050, subd. 2, 150.060, subd. 1.
4. Wills.
Statute directing one who is named executor of a will to present the will, if in possession of it, to district
court, though allegedly carrying right to employ counsel and to defend a contest of a will so
presented, is not a basis for an award of attorney's fees when record does not reflect
that possession of purported will was ever in named executor.
to employ counsel and to defend a contest of a will so presented, is not a basis for an award of attorney's
fees when record does not reflect that possession of purported will was ever in named executor. NRS
136.050, subd. 2, 150.060, subd. 1.
One named as executor in a document purporting to be a will is not compelled to seek letters or to
probate will and may renounce his nomination. NRS 136.050, subd. 2, 150.060, subd. 1.
OPINION
The district court denied attorney's fees to the executor of a will which was presented for
but not admitted to probate on the ground that it was without jurisdiction to award fees. This
appeal tests the propriety of that ruling. For reasons hereafter stated, we affirm.
Howard R. Hughes, Jr., died April 5, 1976. A handwritten document purporting to be his
Last Will was discovered at the Mormon Church Headquarters, Salt Lake City. Officials of
the Church delivered that document to the clerk of the district court in Clark County, Nevada.
The document nominated Noah Dietrich to be executor. Harold Rhoden, as attorney for
Dietrich, petitioned the court to admit that document to probate as the Last Will of Howard R.
Hughes, Jr. Because of Dietrich's advanced years, Rhoden was substituted as executor.
The heirs of Hughes contested the probate of the proffered will. The contest was tried to a
jury. The jury found that document invalid since it was not entirely written, dated and signed
by Hughes. The validity of that finding has not since been challenged by the proponents of the
document.
The coadministrators of the Hughes Estate in Nevada, First National Bank of Nevada and
William R. Lummis, were not parties to the will contest. Assets of the Estate were not used to
defray expenses of that contest. That litigation was between private parties.
[Headnote 1]
1. A decedent's estate may be obliged to pay for counsel fees incurred in successfully
procuring the probate of a contested will. In Re Hegarty's Estate, 47 Nev. 369, 222 P. 793
(1924). The appellant suggests that we enlarge the concept of In Re Hegarty to embrace an
unsuccessful attempt to procure the probate of a contested will, if the attempt was carried
forward in good faith. We decline to do so. Indeed, In Re Hegarty explicitly distinguished
between an unsuccessful effort to establish a proffered will and a successful one, noting
that in the former case the parties are liable for counsel fees, and in the latter the estate
may be chargeable if it is distributed to the parties benefited by the litigation. Id. at 374.
explicitly distinguished between an unsuccessful effort to establish a proffered will and a
successful one, noting that in the former case the parties are liable for counsel fees, and in the
latter the estate may be chargeable if it is distributed to the parties benefited by the litigation.
Id. at 374.
[Headnotes 2, 3]
2. It is settled that in the absence of rule, statute or contract authorizing an award of
attorney's fees, such fees may not be allowed. Guild v. First Nat'l Bank of Nev., 95 Nev. 621,
600 P.2d 238 (1979); Consumers League v. Southwest Gas, 94 Nev. 153, 576 P.2d 737
(1978); Sun Realty v. District Court, 91 Nev. 774, 542 P.2d 1072 (1975). It is the appellant's
contention that NRS 150.060(1) should be read to authorize the payment of fees in the
circumstances here present. In relevant part it is there stated that [a]ttorneys for executors,
administrators and special administrators are entitled to reasonable compensation for their
services, to be paid out of the decedent's estate. It is argued that since the quoted language
does not limit the award to services rendered at any particular time, that is, before or after
probate, we should allow such fees if the unsuccessful attempt to procure the probate of a will
was carried forward in good faith. We do not so read the quoted words. To allow the
requested fees to one who did not perform services to an executor, administrator or special
administrator, would be contrary to the statutory authorization. Neither Noah Dietrich nor
Harold Rhoden qualified as executor (or in any other capacity) of the Estate of Hughes.
Dietrich merely was named executor in a handwritten document purporting to be the Last
Will of Hughes and found to be invalid. Had that document been admitted to probate, NRS
150.060(1) would have been satisfied, and reasonable compensation to the attorneys for
preprobate services to the executor authorized. In Re Hegarty, supra. However, that document
was denied probate. In such circumstances compensation is not authorized.
[Headnotes 4, 5]
3. Statute directs one who is named executor of a will to present the will, if in possession
of it, to the district court. NRS 136.050(2). It is suggested that this duty to present necessarily
carries with it the right to employ counsel and to defend a contest of a will so presented. The
record does not reflect that Noah Dietrich, the named executor, ever had possession of the
purported will. Consequently, the statute has no bearing on this case. In any event, one named
as executor in a document purporting to be a will is not compelled to seek letters or to probate
the will. He may renounce his nomination.
4. Other contentions have been considered and found to be without merit.
Affirmed.
Gunderson, Manoukian, and Batjer, JJ., and Beko, D.J.,
1
concur.
____________________

1
The Governor, pursuant to art. 6, 4, of the Constitution, designated Judge William P. Beko of the Fifth
Judicial District Court to sit in the stead of Mr. Chief Justice Mowbray.
____________
96 Nev. 657, 657 (1980) Southwest Gas v. Public Serv. Comm'n
SOUTHWEST GAS CORPORATION, a California Corporation, Appellant, v. PUBLIC
SERVICE COMMISSION OF NEVADA, an Administrative Agency of the State of Nevada,
NOEL A. CLARK, Chairman, EVO A. GRANATA and HEBER P. HARDY, as Members of
the Commission, HARVEY'S RESORT HOTEL, HARVEY'S INN and SAHARA-TAHOE
HOTEL, Respondents.
No. 11534
August 14, 1980 614 P.2d 1080
Appeal from an order granting summary judgment, First Judicial District Court, Carson
City; Frank B. Gregory, Judge.
The district court entered order affirming an order of the Public Service Commission
requiring utility to refund overcharges to customers, and utility appealed. The Supreme Court
held that: (1) failure of gas utility to inform customers of General Order No. 18 establishing
priorities for natural gas consumers based upon use and eliminating any difference in services
received by customers under NG-10 and NG-40 constituted a breach of utility of its duty to
customers, and (2) order of Public Service Commission directing utility to refund
overpayments made by customers was not tantamount to retroactive rate application in that
customers paid the more costly rate under NG-10, but received only the services offered
under NG-40, and the Commission merely ordered utility to refund overpayments.
Affirmed.
Guild, Hagen & Clark, Reno, for Appellant.
Richard H. Bryan, Attorney General, Carson City, and Allison, Brunetti, MacKenzie &
Taylor, Carson City, for Respondents.
1. Administration Law and Procedure.
In reviewing an order of an administrative agency, the function of the Supreme Court, as well as that of
the district court, is to review the evidence presented to the administrative body and determine whether that
agency abused its discretion.
2. Gas.
A utility has the duty to inform the customer of the optional schedules in order to enable the customer to
select the schedule more beneficial to him.
3. Gas.
Failure of gas utility to inform customers of General Order No. 18 establishing priorities for natural gas
consumers based upon use and eliminating any difference in service received by customers under NG-10
and NG-40 constituted a breach by utility of its duty to customers.
4. Gas.
Refusal to grant customers' request for service pursuant to Schedule NG-40 constituted a violation by
utility of its tariff provision providing that if a customer elected service under a different applicable rate
schedule, change would become effective after meter reading next following date of request.
5. Gas.
A public utility rate can operate only prospectively.
6. Gas.
Order of Public Service Commission directing utility to refund over-payments made by customers was
not tantamount to retroactive rate application in that customers paid the more costly rate under NG-10, but
received only the services offered under NG-40, and the Commission merely ordered utility to refund
overpayments.
OPINION
Per Curiam:
Southwest Gas Corporation appeals from an order by the district court affirming a Public
Service Commission (PSC) order requiring appellant to refund overcharges to Harvey's
Resort Hotel, Harvey's Inn and Sahara-Tahoe Hotel (hereinafter collectively referred to as
respondent hotels). Southwest contends that the PSC erred by concluding that Southwest
breached any duty to inform customers of the effects of a PSC order on service schedules and
that the PSC's refund order is retroactive rate-making. We disagree and affirm.
Prior to November, 1973, respondent hotels were supplied natural gas by Southwest Gas
Corporation according to the services and rates detailed in Southwest's Schedule NG-40.
1
Respondent hotels, upon their request, began receiving natural gas service according to
Schedule NG-10 in November, 1973.
____________________

1
Schedule NG-40 (and its predecessors) contained Special Condition No. 1:
Service under this schedule, though considered to be firm service, is expressly represented as being inferior to
service under the Utility's Schedule No. G-1 on file with the Federal Power Commission and NG-10, NG-30 and
gas service according to Schedule NG-10 in November, 1973. Schedule NG-10 guaranteed
uninterrupted service in exchange for a more costly rate.
On September 15, 1974, however, PSC's General Order No. 18 became effective. General
Order No. 18 established priorities for natural gas consumers based upon end-use, and
eliminated insurance against service curtailment which had been previously afforded to
customers under Schedule NG-10. In effect, the general order eliminated any difference in
service received by respondent hotels under NG-40 and NG-10.
On April 18, 1975, Southwest Gas notified respondent hotels that, in light of General
Order No. 18, they were no longer guaranteed uninterrupted service. The hotels' subsequent
requests for service pursuant to the less costly Schedule NG-40 were denied.
A formal complaint was filed by respondent hotels with the PSC. The PSC found that
Southwest Gas had breached its duty to inform respondent hotels of the effect of General
Order No. 18 prior to April 18, 1975, and that Southwest Gas had violated its tariff provisions
by refusing respondent hotels' requests for service pursuant to Schedule NG-40.
Consequently, Southwest Gas was ordered to refund to the hotels an amount equal to the
difference between NG-10 and NG-40 rates for the period of October 16, 1974, to September
30, 1975.
2
Southwest sought judicial review of the PSC's order. The district court affirmed
the PSC's findings and refund award.
[Headnote 1]
In reviewing an order of an administrative agency, the function of this Court, as well as
that of the district court, is to review the evidence presented to the administrative body and
determine whether that agency abused its discretion. Gandy v. State ex. rel. Div. of
Investigation, 96 Nev. 281, 607 P.2d 581 (1980); Urban Renewal Agency v. Iacometti, 79
Nev. 113, 397 P.2d 466 (1963). Our review of the record reveals that the PSC acted within
the permissible limits of its discretion.
I.
[Headnotes 2, 3]
This court has previously held that a utility has the duty . . . to inform the customer of the
optional schedules in order to enable the customer to select the schedule more beneficial
to him".
____________________
NG-70 on file with the Nevada Public Service Commission. Customers of the Utility on all of such schedules
will receive 100 percent of their service requirements before any gas is made available to customers taking
service under this schedule.

2
General Order No. 18 became effective September 15, 1974. Southwest Gas had 30 days in which to notify
respondents; therefore, overpayments began October 16, 1974, and continued until September 30, 1975.
enable the customer to select the schedule more beneficial to him. Sierra Pacific Power Co.
v. Nye, 80 Nev. 88, 93, 389 P.2d 387, 389 (1964). The record supports the PSC's finding that
Southwest was aware that General Order No. 18 had equalized the service provided under
NG-10 and NG-40 and yet failed to inform its customers of that fact. The PSC, therefore, did
not err in finding that Southwest breached its duty.
II.
[Headnote 4]
Furthermore, Rule 7E of Southwest's tariff provision provides that if a customer elects
service under a different applicable rate schedule, the change will become effective after the
meter reading next following the date of such requests. Southwest violated its tariff provision
by refusing to grant respondent hotels' request for service pursuant to Schedule NG-40.
III.
[Headnotes 5, 6]
Finally, we reject Southwest's argument that the PSC's order to refund overpayments made
by respondent hotels is tantamount to a retroactive rate application. A public utility rate can
operate only prospectively. Southwest Gas Corp. v. Public Service Comm'n, 86 Nev. 662,
474 P.2d 379 (1970). Respondent hotels, in effect, were charged a premium for a priority of
use that could not legally be provided. The hotels paid the more costly rate under NG-10, but
received only the services offered under NG-40. The PSC merely ordered Southwest Gas to
refund the overpayments. A future rate was not imposed retroactively. Thus, the PSC acted
within its statutory powers and constitutional limitations. Id. at 668, 383.
Finding no error and no abuse of discretion, we affirm the summary judgment upholding
the PSC's order.
____________
96 Nev. 661, 661 (1980) Jones v. Bank of Nevada
FERRIS JONES; EMIL B. FETZER; NOLAND OSWALD; and SARA J. MURRAY,
Appellants, v. BANK OF NEVADA; SKAGGS COMPANIES, INC., a Delaware
Corporation; and ALBERTSON'S, INC., a Delaware Corporation, Respondents.
No. 10698
August 14, 1980 615 P.2d 242
Appeal from judgment, Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Parties purchasing property from individual, who had bought portion of property from
vendor of a large tract of land and who had entered written agreement with vendor to the
effect that vendor would not construct any buildings in excess of 50,000 square feet on his
property adjacent to conveyed property for period of 20 years with remainder of property
intended to be used for parties as joint parking privileges for customers of respective parties,
appealed judgment of the district court contending that lower court erred by not finding an
express, implied or prescriptive easement or an irrevocable lease in their favor for parking
purposes on land bought by successors-in-title to vendor's retained portion of land. The
Supreme Court held that: (1) respondents were purchasers for value without notice of
encumbrances on their property, and as bona fide purchasers, took the lease interest free of
any right which appellants may have had through written instrument, and (2) record supported
finding that any use of property by appellants during time respondents had been in possession
was permissive use.
Affirmed.
Deaner, Deaner & Reynolds, Las Vegas, for Appellants.
Denton & Denton, Las Vegas, for Respondent Bank of Nevada.
Cochrane, Lehman, Nelson & Rose, Las Vegas, for Respondents Skaggs Companies, Inc.,
and Albertson's, Inc.
Parties purchasing property from landowner, who had previously sold a portion of his property to another
party with corporation to be lessee of market purchaser would construct on property and who had entered
written agreement that he would not construct any buildings in excess of 50,000 square feet on his property
adjacent to convey property for a period of 20 years with the intent that remainder of
property would be used by parties as joint parking privileges for customers of
respective parties, were purchasers for value without notice of encumbrances on
their property, and as bona fide purchasers took their lease interest free of any right
which purchasers of other property may have had through written agreement
regarding parking privileges.
for a period of 20 years with the intent that remainder of property would be used by parties as joint parking
privileges for customers of respective parties, were purchasers for value without notice of encumbrances on
their property, and as bona fide purchasers took their lease interest free of any right which purchasers of
other property may have had through written agreement regarding parking privileges.
2. Injunction.
In action for injunction to prohibit adjacent property owners from erecting fence between properties,
record supported trial court finding that any use of property by purchasers of property from individual, who
had bought portion of property from vendor and who had entered a written agreement with vendor that
vendor would not construct any buildings in excess of 50,000 square feet on his property adjacent to
conveyed property for period of 20 years with intent that remainder of property would be used by parties as
joint parking privileges for customers of respective parties, during time purchasers of vendor's portion of
property had been in possession was a permissive use, and as such, first purchasers could not acquire an
easement by prescription.
OPINION
Per Curiam:
Appellants contend in this appeal that the lower court erred by not finding an express,
implied or prescriptive easement or an irrevocable license in their favor for parking purposes
on respondents' land. We find no error and affirm.
The written agreement which is the subject of this action was executed in November of
1957 by Leonard Atkison, respondent's predecessor in interest, and Sidney Horman,
appellant's predecessor in interest. Atkison owned a large tract of land in Clark County and
agreed to sell a portion of the land to Horman with a third party, Adelson, Incorporated, to be
the lessee of a market Horman would construct on the property. The record on appeal
indicates that Atkison wished to develop his property as a shopping center. Paragraph 6 of the
agreement provided that Atkison would not construct any buildings in excess of 50,000
square feet on his property adjoining the conveyed property for a period of twenty years. It
was intended that the remainder of his property would be used by the parties as joint parking
privileges for the customers of the respective parties hereto. The agreement was not recorded
until August of 1976 although the deed to Horman was recorded on February 6, 1958.
Appellants requested injunctive relief when respondents erected a fence between the
properties in 1976.
Appellants argued below and on appeal that this agreement gave them an express easement
on respondent's land. In the alternative, appellants claim that they acquired an implied or
prescriptive easement or an irrevocable license on the land retained by Atkison for purposes
of parking.
[Headnotes 1, 2]
We need not pause to determine whether the intent was to grant an easement or to provide
appellants with a license. The lower court found respondent lessees to be purchasers for value
without notice of encumbrances on their property. See NRS 111.320, 111.325. See also
Commercial Bank v. Pritchard, 59 P. 130, 132 (Cal. 1899) (a lease is a conveyance); Cal. Civ.
Code 1214 (1954). As bona fide purchasers, respondents took their lease interests free of
any right which appellants may have had through that instrument. Further, the record supports
the trial court's finding that any use of the property by appellants during the time respondents
have been in possession was a permissive use. As such, appellants could not acquire an
easement by prescription. Jackson v. Hicks, 95 Nev. 826, 829, 604 P.2d 105, 106 (1979).
The remaining contentions are without merit. The judgment is affirmed.
1
concur.
____________________

1
The Chief Justice designated Hon. David Zenoff, Senior Justice, to sit in this case in the place of the Hon. E.
M. Gunderson, Justice. Nev. Const. art. 6, 19; SCR 10.
____________
96 Nev. 663, 663 (1980) Sanchez v. Alonso
GILBERT SANCHEZ, Appellant and Cross-Respondent, v.
ALFREDO ALONSO, Respondent and Cross-Appellant.
No. 10537
August 14, 1980 615 P.2d 934
Appeal from amended money judgment, Second Judicial District Court, Washoe County;
William N. Forman, Judge.
Seller sued buyer of seller's partnership interest to recover on $50,000 promissory note and
on agreement whereby seller was to be indemnified by buyer against all construction
liabilities. The district court entered judgment from which parties appealed. The Supreme
Court, Manoukian, J., held that: (1) damages awarded were inadequate as matter of law, and
(2) no error occurred in awarding attorney fees to seller.
Affirmed as modified and remanded.
John Sanchez, Reno, for Appellant and Cross-Respondent.
Daniel J. Olguin, Reno, and C. Frederick Pinkerton, Reno, for Respondent and
Cross-Appellant.
1. Indemnity.
In action by seller against buyer of seller's partnership interest to recover on agreement whereby seller
was to be indemnified by buyer against all construction liabilities, which amounted to $133,324.65, jury's
verdict of $91,662.32 for seller did not adequately compensate him for his losses, since, in context of this
case, fact that this was agreement to indemnify meant that seller need not demonstrate actual damages in
order to recover.
2. Indemnity.
Case, which was brought by seller against buyer of seller's partnership interest to recover on agreement
whereby seller was to be indemnified by buyer against construction liabilities, involved indemnification
against all liabilities, and thus seller indemnitee had complete right of action when he became legally liable
for damages, with result that seller was not required to prove that any payment had been made to creditors.
3. Indemnity.
Under indemnity agreement whereby seller was to be indemnified by buyer of seller's partnership interest
against all construction liabilities, right of action accrued in favor of seller indemnitee upon demand from
creditors, whether seller had sustained actual damage at time, and thus instant action, premised on
indemnity agreement, was appropriately brought prior to time any judgment was rendered against seller.
4. Indemnity.
was to be indemnified by another partner and buyer against all construction liabilities, jury was not
authorized to hold buyer responsible for only half of amount claimed, since fact that such other partner and
buyer had agreed jointly and severally to indemnify seller from payment of all liabilities meant that fact
that other partner, who had filed bankruptcy, was dismissed as defendant did not relieve buyer of total
liability.
5. Bills and Notes.
In action on $50,000 promissory note, no error occurred in allowing attorney fees of $10,000 on note
which had provided for such fees, even though defendant contended that first statute specifically precludes
award of attorney fees upon recoveries greater that $10,000, where second statute provides that first statute
does not apply to any action arising out of written instrument or agreement which entitles to prevailing
party award of reasonable attorney fees, and note in question so provided. NRS 18.010, subds. 2, 5.
6. Bills and Notes.
In consolidated action by seller against buyer of seller's partnership interest to recover on $50,000
promissory note and agreement whereby seller was to be indemnified by buyer against all construction
liabilities, which amounted to $133,324.65, no error occurred in allowing attorney fees of $10,000 on note
which had provided for such fees, even though there was no basis for trial court's determination that
$50,000 of jury's award of $91,662.32 represented amount due on note, since jury returned verdict for
seller, he was entitled to recover on note and there was no contention that award was unreasonable.
7. Interest.
was to be indemnified by buyer against all construction liabilities, which amounted to
$133,324.65, interest on proven damages of $36,599.S3 on indemnity agreement
would commence from time of judgment by lower court as this was not a liquidated
amount.
against all construction liabilities, which amounted to $133,324.65, interest on proven damages of
$36,599.83 on indemnity agreement would commence from time of judgment by lower court as this was
not a liquidated amount. NRS 99.040.
OPINION
In this appeal and cross-appeal from a judgment in favor of appellant, we recognize two
issues as having merit. They are: (1) Whether the damages awarded were inadequate as a
matter of law; and (2) Whether the trial court erred in awarding attorney's fees to appellant.
In 1972, appellant Sanchez, John Sankovich and Art Fife formed a partnership called
Esquire Properties. Sanchez acquired Fife's interest two years later. Dr. Edwards joined the
partnership in 1974 as a limited partner. Each of the three partners owned a one-third interest
although Dr. Edwards would only make a contribution of $50,000 above the original
investment. The assets of the partnership consisted of property on Washington Street in Reno.
The partnership decided to construct an office building on the Washington Street property
in 1974. Appellant obtained an interim loan from the First National Bank in the amount of
$500,000 and signed on behalf of the partnership. Due to a poor occupancy rate, appellant
was unable to obtain permanent financing.
Appellant also owned Sanchez Construction Company which was to build the office
building and to receive ten percent of construction costs. The profit was to be $65,000 on the
$650,000 building. Appellant made advances on behalf of the partnership and was to receive
one-third contributions from each of the two other partners.
In March of 1976, appellant desired to sell his interest and offered to sell to Sankovich for
$80,000 and the assumption of all debts. The sale did not materialize. Sankovich, the
accountant for the partnership, mentioned the opportunity to another client, respondent
Alonso. Respondent's attorney would later inform appellant that respondent was interested.
Appellant testified that he offered respondent the same terms as were offered to
Sankovich. After apparently clearing up some misunderstandings as to how much was owed
to the bank on the loan, respondent asked his attorney to draw up the papers.
papers. Because he was busy, respondent's attorney purportedly asked appellant's attorney to
prepare the papers. Due to some construction problems, the sale price was reduced to
$50,000. A promissory note reflecting this amount with twelve percent interest was drafted as
were an assignment of appellant's interest in the partnership and an agreement by respondent
to assume underlying debts.
When the papers were sent to respondent, he asked his attorney to make several changes.
1
The interest rate was reduced to nine and one-half percent per annum and the $10,000 owed
to Sanchez Construction was struck. Other wording of the agreement was modified. After the
note, assignment, and agreement were signed, respondent left for Spain on June 25 to attend
to his deceased father's estate matters.
2
No payments have been made according to the
agreement. Appellant filed an action only on the $50,000 note on June 29, 1976, the
expiration date of the thirty day note. Respondent answered claiming that appellant had
misrepresented that he had full title to the Washington Street property. Respondent also
alleged that appellant failed to inform respondent that there was an IRS lien and a lien by a
subcontractor on the property. Respondent counterclaimed on these bases and also on the
basis that appellant had represented that Dr. Edwards and his wife were no longer involved in
the partnership and that respondent and Sankovich were to acquire one-half interest each in
the property.
In October of 1976, appellant also filed suit on the agreement whereby he was to be
indemnified by Sankovich and respondent against construction liabilities.
3
The total against
which appellant was indemnified was $133,324.65. At the trial on the consolidated actions,
appellant stated that he was unaware of the IRS lien. Sankovich, appellant's accountant, had
allegedly failed to file tax returns for past years. Additionally, any variance between the actual
amount owed to creditors and the amount listed in the agreement were due to Sankovich's
failure to update the list.
The amount claimed by appellant in the complaints was $50,000 on the note and
$133,324.65 on the agreement.
____________________

1
Respondent's attorney testified at trial that he made changes for respondent but that he was not acting as an
attorney at that time. He stated that he was merely acting as a translator in incorporating changes because
respondent spoke or read little English.

2
Respondent argued that the documents were to go through an escrow as if this was a sale of real property.
The jury apparently gave no credence to this theory.

3
John Sankovich did sign the indemnification agreement.
$50,000 on the note and $133,324.65 on the agreement. Sankovich was a named defendant,
as he had signed the indemnification agreement, but subsequently filed bankruptcy and was
dismissed from the suit. The jury rendered a verdict for appellant in the amount of
$91,662.32, exactly one-half of the claimed amount. The trial court concluded that $50,000 of
the award represented the amount due on the note and the balance was the amount on the
agreement. Thus, the court allowed appellant attorney's fees on the note in the amount of
$10,000.
Appellant appealed and now argues that he should have recovered the entire amount
alleged. Respondent cross-appealed claiming appellant breached a warranty of title and also
was unable to convey any interest in the property. He also claims that appellant was not
entitled to attorney's fees on the note as the jury award could have been attributed just as
logically to a recovery on the indemnification agreement. We find respondent's contentions to
be without merit and affirm as modified.
1. The Alleged Inadequacy of the Verdict.
According to the agreement, Sankovich and respondent agreed to indemnify appellant
against the payment of creditors and the respective amounts as listed and attached to the
agreement. The agreement provided that Sankovich and respondent would jointly and
severally keep and save harmless and indemnify [appellant] of, from and against the payment
of any and all legal liabilities incurred during and for the construction of [the Washington
Street building]. . . . This included the amount owed to First National Bank and to the listed
contractors and materialmen along with interest and penalties due. Respondent had the right
to settle or dispute claims and Sankovich and respondent were to defend any suits by creditors
against appellant.
[Headnote 1]
Appellant argues that the verdict of $91,662.32 did not adequately compensate him for his
losses. Because this was an agreement to indemnify, appellant contends, he need not
demonstrate actual damages in order to recover. In the context of this case, we agree.
[Headnotes 2, 3]
This case involves an indemnification against all liabilities. Here, the indemnitee has a
complete right of action when he becomes legally liable for damages. Jones v. Child, 8 Nev.
121, 125 (1872). See Continental Casualty Co. v. Farrow, 79 Nev. 428, 386 P.2d 90 (1963).
The cause of action arises where, as here, the indemnitor fails to perform in accordance
with the contract.
as here, the indemnitor fails to perform in accordance with the contract. Respondent and
Sankovich were to indemnify appellant against any liabilities and would also have to defend
actions against appellant. The fact that a review of the record reveals that appellant had only
paid ten of the seventeen listed creditors,
4
is irrelevant. Although these amounts, which
included interest for some, totalled $36,599.83, appellant was not required to prove that any
payment had been made. Under the instant indemnity contracts, the right of action accrued in
favor of the appellant-indemnitee upon a demand from the creditors, whether or not appellant
had sustained actual damage at the time. See Jones v. Child, 8 Nev. at 125; Levin v.
Friedman, 317 A.2d 831, 834-35 (Md.App. 1974). This action, premised on the indemnity
agreement, was appropriately brought prior to the time any judgment was rendered against
appellant. K & S Oilwell Service, Inc. v. Cabot Corporation, Inc., 491 S.W.2d 733, 739
(Civ.App.Tex. 1973). The trial court's determination would contravene the policy of the
courts to settlement and reduce litigation. Id.
[Headnote 4]
It is clear that the jury found in favor of appellant and against respondent. And, because
the jury awarded exactly one-half of the amount claimed, it is equally clear that the jury
thought that Sankovich, the other party to the agreement, was responsible for the other half.
5
But Sankovich and respondent agreed jointly and severally to indemnify appellant from
payment of liabilities. The fact that Sankovich was dismissed as a defendant did not relieve
respondent of total liability. We conclude that the verdict below was in appellant's favor and
that respondent is fully liable on the note and agreement.
____________________

4
At trial, appellant demonstrated that he had paid $6,422.09 to Monarch Carpet; $8,206.24 to Earl Games;
$384.00 to Clyde Robad's; $13,231.31 to I. Christensen Co.; $2,000.00 to C.B. Concrete Co.; $3,663.74 to
Berger Building Supply; $2,500.00 to Western Crane; $20.95 to Re. Incorporated; $31.50 to Reno Blueprint;
and, $140.00 to Able Steel. During oral argument, counsel for appellant indicated that $15,408.57 had also been
paid to Anvil Ornamental, one of the listed creditors.

5
The jury was made aware of the fact that John Sankovich was a maker on the note and would have been a
defendant had he not filed in bankruptcy. Furthermore, close scrutiny of the record indicates that Sankovich was
responsible for several misstatements to respondent as to the interest conveyed by appellant. Sankovich also was
apparently responsible for the IRS liens as he had not filed tax returns for appellant when appellant was
informed that Sankovich had. Finally, Sankovich prepared the list of creditors attached to the agreement.
Appellant gave Sankovich the bills from creditors when the building was completed and Sankovich did not
update the amounts owed to include interest. It is obvious that the jury desired that respondent be responsible for
only half of the amount claimed even though the court concluded that $50,000 was for the note and the balance
for the breach of the contract. This the jury was not authorized to do.
respondent is fully liable on the note and agreement. This liability amounts to $50,000.00 on
the note and $133,324.65 on the creditors' claims. The judgment should be modified
accordingly. NRS 2.110.
2. Award of Attorney's Fees.
Because the jury only allowed $91,662.32 as damages, respondent claims that the trial
court erred in determining that $50,000 represented the amount due on the note. Due to this
determination, the court allowed attorney's fees of $10,000 on the note which had provided
for such fees.
[Headnote 5]
Respondent first argues that NRS 18.010(2) specifically precludes the award of attorneys'
fees upon recoveries greater than $10,000. Respondent overlooks NRS 18.010(5) which
provides that subsection 2 does not apply to any action arising out of a written instrument or
agreement which entitles to the prevailing party an award of reasonable attorney's fees. The
note in question so provided.
[Headnote 6]
Respondent next argues that the trial court improperly allocated the damage award to the
note. We find no basis for the allocation by the court. Nevertheless, due to our holdings that
the jury returned a verdict for appellant and that appellant is entitled to recover on the note,
attorney's fees were properly awarded. There is no contention that the award was
unreasonable.
[Headnote 7]
We find that the jury returned a verdict in appellant's favor and that appellant may recover
the $50,000 on the note, $36,599.83 as proven damages on the indemnity agreement, and we
ratify the indemnity provision. Respondent remains responsible on the agreement's indemnity
provision. Interest on the note at 9 1/2 percent per annum remains at $6,194.52, prior to the
entry of judgment. Interest on the $36,599.83 will commence from the time of judgment by
the lower court as this was not a liquidated amount. NRS 99.040 (amended in 1979 Nev.
Stats. ch. 448, 4, at 830). See Paradise Homes v. Central Surety, 84 Nev. 109, 437 P.2d 78
(1968). As to creditors who have not asserted claims, when asserted, respondent shall be
obligated to pay subject, of course, to his right to dispute and defend any of the claims, and
the trial court shall compute interest in accordance with law. Attorney's fees and costs will
remain as awarded by the trial court. Remaining issues are without merit.
This matter is remanded to the district court to enter judgment in favor of Sanchez in
accordance with this opinion.
____________
96 Nev. 670, 670 (1980) Bernier v. State
HENNY BERNIER, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 11010
August 14, 1980 614 P.2d 1079
Appeal from judgment of conviction for extortion and possession of stolen property;
Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
Defendant was convicted in the district court of extortion and possession of stolen
property, and she appealed. The Supreme Court, Thompson, J., held that: (1) defendant's
conviction was required to be set aside and new trial granted where prosecutor impermissibly
used her post-arrest silence to impeach her trial testimony, and (2) prosecutor erred in making
several comments about failure of defendant to testify at preliminary hearing.
Morgan D. Harris, Public Defender, and Terrence M. Jackson, Deputy Public Defender,
Richard Bryan, Attorney General, Carson City, and Robert J. Miller, District Attorney,
and Gary Weinberger, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Defendant's conviction for extortion and possession of stolen property was to be set aside and new trial
was required due to prosecutor's impermissible use of her post-arrest silence to impeach her trial testimony.
2. Criminal Law.
Prosecutor erred in making several comments about failure of defendant to testify at preliminary hearing.
OPINION
Relying primarily upon our decision in Vipperman v. State, 92 Nev. 213, 547 P.2d 682
(1976), and the United States Supreme Court case of Doyle v. Ohio, 426 U.S. 610 {1976),
the appellant requests that we set aside her conviction for extortion and possession of
stolen property since the prosecutor impermissibly used her post-arrest silence to
impeach her trial testimony.
Supreme Court case of Doyle v. Ohio, 426 U.S. 610 (1976), the appellant requests that we set
aside her conviction for extortion and possession of stolen property since the prosecutor
impermissibly used her post-arrest silence to impeach her trial testimony. Moreover, the
prosecutor commented upon her failure to testify at preliminary examination. This is asserted
as an additional reason for voiding her conviction. In our view the assigned errors have merit
and compel us to reverse and remand for another trial.
A small wooden plaque bearing an American flag and a picture of the Apollo XIV space
capsule disappeared from the home of Clem Bernier. The plaque, valued at between $25,000
and $40,000, was a gift from Stuart Roosa, an astronaut on the Apollo XIV moon mission. It
was the State's theory that Henny Bernier, the former wife of Clem, and Mike Uzelac
acquired the plaque, knowing it to be stolen, with the intent of extorting $2,500 from Clem
Bernier by telling him that the thief had threatened to destroy the flag unless he paid the
money. An arrangement was made to exchange the plaque for $2,500. Mike Uzelac drove
Henny Bernier to the Hacienda Hotel where the exchange occurred. Clem Bernier previously
had notified the police of the contemplated exchange, and when it happened Henny Bernier
was arrested. Uzelac, waiting outside, also was arrested. When arrested, Henny was given the
Miranda warnings.
At trial, Henny testified that a young man named Vic had approached her regarding the
flag and that she had to act as a go-between. This was the first mention of Vic. She did not
mention Vic to the police or to the district attorney, nor did she attempt to utilize police
services in an effort to locate Vic. During cross-examination she was questioned about her
failure to disclose Vic, or to utilize police services to locate him. She responded by stating
that she had not disclosed his name, nor had she utilized police services to locate him. When
asked whether she had testified at the preliminary examination she answered no.
During summation the prosecutor argued that an innocent person would not have waited
two years to tell her story and would have gone to the police for help in locating Vic.
1. The Miranda warnings inform a person of his right to remain silent and implicitly
assures him that his decision to remain silent cannot be used against him. Because of this, the
Supreme Court in Doyle v. Ohio, 426 U.S. 610 (1976), found that impeachment by silence
violated the constitution stating,
it does not comport with due process to permit the prosecution during the trial to call
attention to his silence at the time of arrest and to insist that because he did not
speak about the facts of the case at that time, as he was told he need not do, an
unfavorable inference might be drawn as to the truth of his trial testimony.' Id. at
619.
time of arrest and to insist that because he did not speak about the facts of the case at
that time, as he was told he need not do, an unfavorable inference might be drawn as to
the truth of his trial testimony.' Id. at 619.
Post-arrest silence following the giving of Miranda warnings may have been induced by
governmental action. It would be fundamentally unfair to allow the government inducing
such silence to later use such silence as impeachment at trial. Cf. Jenkins v. Anderson, 447
U.S. 231, (1980), where the court ruled that impeachment by use of prearrest silence does not
violate the fourteenth amendment, since no governmental action induced the defendant to
remain silent before arrest.
[Headnote 1]
In Vipperman v. State, 92 Nev. 213, 547 P.2d 682 (1976), we ruled that the repeated
questioning of the defendant with regard to his failure to reveal his alibi to the police was
reversible error, noting that due process prohibits any inference to be drawn from the exercise
of one's constitutional right to remain silent after arrest. There, as here, the accused when
arrested was given the warnings required by Miranda. Also, in the case at hand, as in
Vipperman the prosecutor made more than a mere passing reference to the accused's
post-arrest silence. Not only did he impermissibly cross-examine upon that subject, he also
forcefully argued such silence during jury summation. Here, as in Vipperman we must
condemn such conduct, set aside the conviction and remand for another trial.
[Headnote 2]
2. Another error occurred in this case. The prosecutor made several comments about the
failure of Henny to testify at preliminary hearing. This was error. State v. Anderson, 517 P.2d
508 (Ariz. 1973). Defense testimony seldom is offered at the preliminary hearing. There
normally is no reason to divulge the defendant's case at that stage of the proceeding. In this
case Henny was advised by her attorney not to testify. It is evident that there is no legitimate
basis upon which to draw an inference adverse to the defendant from the failure to testify at
the preliminary hearing, and a prosecutor should not attempt to do so.
Reversed and remanded for a new trial.
____________
96 Nev. 673, 673 (1980) Wynn v. State
CHARLES HANSEN WYNN, Appellant, v. THE STATE
No. 11061
August 18, 1980 615 P.2d 946
Appeal from judgment on plea of guilty, Eighth Judicial District Court, Clark County;
Defendant was convicted by the district court of robbery with use of deadly weapon. From
denial of motion to withdraw pleas of guilty, defendant appealed. The Supreme Court,
Gunderson, J., held that: (1) canvass of defendant by trial court upon entry of guilty plea was
sufficient to disclose upon record that defendant entered his plea understandingly and
voluntarily, and it was not necessary that trial judge ascertain that there was factual basis for
plea as required of federal judges; (2) trial court did not abuse its discretion in refusing to set
aside pleas of guilty where part of plea bargain providing that defendant could be released on
his own recognizance pending sentence was not breached when defendant was rearrested on
other charges; and (3) trial court did not abuse its discretion in refusing to allow defendant to
withdraw plea where defendant had failed to sustain burden of proof on motion to set aside
his plea that deeper investigation by counsel might have revealed lack of counsel in regard to
convictions upon which habitual criminal charges were predicated, and where former counsel
was not ineffective merely because counsel did not pursue issue of supplemental information
alleging that defendant had been previously convicted of felonies once plea bargain was
offered.
Affirmed.
John J. Graves, Jr., Las Vegas, for Appellant.
Richard Bryan, Attorney General, Carson City; Robert Miller, District Attorney, and Ira
H. Hecht, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Plea of guilty is presumptively valid, and burden is upon defendant to show that denial of defendant's
motion to withdraw plea constituted clear abuse of discretion.
2. Criminal Law.
Canvass of defendant by trial court upon entry of guilty plea to robbery which was directed to mandatory
constitutional issues and constitutional rights being waived by defendant, in which defendant was
represented by counsel, no promises of leniency were made, and defendant admitted that he was pleading
guilty because, in truth and in fact, he was guilty of crimes charged, was sufficient to disclose
upon record that defendant entered his plea understandingly and voluntarily, and it
was not necessary that trial judge ascertain that there was factual basis for plea as
required of federal judges under rule of procedure.
96 Nev. 673, 674 (1980) Wynn v. State
was guilty of crimes charged, was sufficient to disclose upon record that defendant entered his plea
understandingly and voluntarily, and it was not necessary that trial judge ascertain that there was factual
basis for plea as required of federal judges under rule of procedure. NRS 174.035, subd. 1; Fed.Rules
Cr.Proc. Rule 11, 18 U.S.C.A.
3. Criminal Law.
Trial court did not abuse its discretion in refusing to set aside guilty pleas to robbery and use of deadly
weapon on ground that plea bargain resulting in guilty plea had been breached when defendant, released on
own recognizance prior to sentencing, was rearrested on other charges, where prosecutor had fulfilled part
of bargain that defendant could be released on own recognizance pending sentence when defendant was
released from jail on own recognizance.
4. Criminal Law.
Defendant, who made no showing beyond own statement that one of listed convictions in supplemental
information upon which habitual criminal charges were predicated had occurred when he was without
counsel and, thus, who made no showing to warrant belief that deeper investigation by counsel might have
revealed lack of counsel in regard to conviction, failed to sustain burden of proof of ineffective counsel on
motion to set aside guilty plea.
5. Criminal Law.
Counsel for defendant who entered plea of guilty to robbery and to use of deadly weapon was not
ineffective merely because he did not pursue issue of supplemental information alleging that defendant had
been previously convicted of felonies once plea bargain was offered, where district attorney obtained leave
of court to file supplemental information over counsel's objections. NRS 207.010.
6. Criminal Law.
Habitual criminal proceedings are not for separate offenses, but are solely to determine facts that, if true,
will affect punishment. NRS 207.010.
7. Criminal Law.
Additional counsel did not have to be appointed at sentencing hearing to assist defendant, who had
entered plea of guilty to robbery and use of deadly weapon, with argument to set aside guilty plea based on
ineffectiveness of counsel.
OPINION
Charles Hansen Wynn appeals from a judgment of conviction entered on a plea of guilty to
robbery (NRS 200.380) with use of a deadly weapon in commission thereof (NRS 193.165).
He also appeals from denials of motions to withdraw his pleas of guilty.
On May 13, 1977, a grand jury indicted appellant. On June 21, the district attorney filed a
supplemental information, alleging that the appellant had been previously convicted of
crimes amounting to felonies in Nevada.
96 Nev. 673, 675 (1980) Wynn v. State
crimes amounting to felonies in Nevada. NRS 207.010. On December 22, appellant,
appearing with court-appointed counsel, pleaded guilty to the charges in the indictment, and
the court accepted his plea. As part of the negotiated plea bargain, the district attorney had
agreed that he would not pursue the habitual criminal charges, that he would stand silent at
sentencing, and that appellant could be released on his own recognizance pending sentence.
After his release from jail, police arrested appellant on other charges. The State's subsequent
motion to revoke the O.R. release was granted.
On March 6, 1978, new counsel argued appellant's motion to withdraw the plea of guilty.
Counsel contended to the district court that the prosecutor breached the plea bargain by
seeking revocation of the O.R. release, and further that the trial court failed to canvass
appellant properly when the plea was entered. The court denied the motion.
On May 15, appellant appeared for the sentencing. Learning that appellant had moved in
proper person to withdraw his plea, asserting ineffectiveness of counsel, the sentencing court
continued the hearing to May 19. At that time, appellant requested the court to appoint
another attorney to argue the issue relating to effectiveness of counsel, for his then counsel
understandably felt unable to argue it. After argument from the district attorney, from
appellant, and from the appellant's attorney on other issues, the trial court denied appellant's
motion to withdraw his plea.
[Headnote 1]
1. We begin by noting that a plea of guilty is presumptively valid, Wingfield v. State, 91
Nev. 336, 535 P.2d 1295 (1975), and that the burden is upon appellant to show denial of
appellant's motion to withdraw a plea constituted a clear abuse of discretion. State v. District
Court, 85 Nev. 381, 455 P.2d 923 (1969).
[Headnote 2]
Appellant argues that the trial court committed reversible error in failing to ascertain that
there was a factual basis for the plea, citing Supreme Court and federal cases interpreting
Rule 11, F.R.Cr.P.
1
He also argues that the trial court erred in failing to explain the elements
of the offense to the appellant, citing Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970).
Although the criteria of Higby remain suitable as a guideline for our courts to follow,
Boykin v. Alabama2 required only that the record must affirmatively disclose that a plea
has been entered understandingly and voluntarily.3 Heffley v.
____________________

1
See, e.g., Henderson v. Morgan, 426 U.S. 637 (1976); McCarthy v. United States, 394 U.S. 459 (1969).
96 Nev. 673, 676 (1980) Wynn v. State
for our courts to follow, Boykin v. Alabama
2
required only that the record must affirmatively
disclose that a plea has been entered understandingly and voluntarily.
3
Heffley v. Warden,
89 Nev. 573, 516 P.2d 1403 (1973). Here, the canvass directed itself to mandatory
constitutional issues and constitutional rights being waived by the appellant. Appellant was
represented by counsel. No promises of leniency were made to the appellant. Appellant
admitted to the trial court that he was pleading guilty because, in truth and in fact, he was
guilty of the crime charged. Hence, we hold the canvass sufficient to disclose upon the record
that appellant entered his plea understandingly and voluntarily. We decline to impose upon
our trial judges the rigid requirements imposed upon federal judges when pleas are taken
under F.R.Cr.P.11.
[Headnote 3]
2. We next consider whether the trial court otherwise erred, in refusing to set aside the
pleas of guilty to robbery and use of deadly weapon. In this regard, we think appellant has
failed to show that the trial court clearly abused its discretion. State v. District Court, cited
above.
The plea bargain was not breached when appellant's other criminal activity resulted in his
re-arrest and further incarceration. When the appellant was released from jail on his own
recognizance, we think the prosecutor had fulfilled that part of the bargain. Cf. Rouse v.
State, 91 Nev. 677, 541 P.2d 643 (1975) (defendant's subjective belief that he would receive
probation not a basis for setting aside his plea).
Appellant argues that the trial court erred in denying the second motion to withdraw his
plea. The appellant first argues that the attorney was ineffective because he failed to
investigate the previous convictions and, had he investigated, he would have discovered that
one of the convictions alleged in the supplemental complaint was entered in the absence of
counsel. We find no clear abuse of discretion in the trial court's refusal to allow the appellant
to withdraw his plea and affirm.
[Headnote 4]
At the time the proper person motion was heard, the appellant made no showing beyond
his own nude statement that one of the listed convictions had been entered when he was
without counsel.
____________________

2
395 U.S 238 (1969).

3
1. . . . The court may refuse to accept a plea of guilty, and shall not accept such plea . . . without first
addressing the defendant personally and determining that the plea is made voluntarily with understanding
of the nature of the charge and consequences of the plea.
96 Nev. 673, 677 (1980) Wynn v. State
of the listed convictions had been entered when he was without counsel. Appellant produced
no court records from which it could be demonstrated that he did not have counsel, nor did he
tender any reason why he could not have done so. Appellant made no showing whatsoever to
warrant a belief that a deeper investigation might have revealed a lack of counsel in regard to
any of the three convictions upon which the habitual criminal charges were predicated. We
also note from a review of the record that even after appointment of present counsel, no
evidentiary support for appellant's claim was tendered to the district court. At a hearing for
bail pending appeal, present counsel asked the court to consider the pending petition for writ
of habeas corpus as a motion to set aside the plea. The appellant was sworn and testified, but,
again, he failed to substantiate his claim, even by so much as stating which of the three
previous convictions listed in the supplemental information had been entered without benefit
of counsel. Appellant may have relied upon the rule that, in proceeding under NRS 207.010,
the State must prove previous convictions had been entered with advice of counsel, or after a
valid waiver. Cf. Burns v. State, 88 Nev. 215, 495 P.2d 602 (1972). In any case, appellant
simply failed to sustain his burden of proof on the motion to set aside his plea. Cf. Boyle v.
Warden, 95 Nev. 888, 603 P.2d 1068 (1979).
[Headnotes 5, 6]
Appellant's second claim that counsel was ineffective is based, in part, upon an assumption
that if an accused is indicted, and the district attorney thereafter decides to proceed under
NRS 207.010 to have him adjudged an habitual criminal, the district attorney must return to
the grand jury and must request the grand jury to include allegations of previous convictions
in the indictment. In this case, the district attorney obtained leave of court to file a
supplemental information, over appellant's former counsel's objections. Although the
applicable provisions of NRS 207.010 arguably are not models of clarity, former counsel was
not ineffective merely because he did not pursue the issue once the plea bargain was offered.
4
Counsel did all that could be expected of him.

____________________

4
NRS 207.010 provides, in part:
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.
5. In proceedings under this section, each previous conviction shall be alleged in the accusatory
pleading charging the primary offense, but no such conviction may be alluded to on trial of the primary
offense, nor may any allegation of such conviction be read in the presence of a jury trying such offense.
96 Nev. 673, 678 (1980) Wynn v. State
Counsel did all that could be expected of him. Cline v. State, 90 Nev. 17, 518 P.2d 159
(1974). Inasmuch as allegations of prior convictions merely serve as notice that the State
intends to proceed against a defendant as an habitual criminal, there arguably is little reason
to require the district attorney to return to the grand jury to have its members pass upon such
allegations. Habitual criminal proceedings are not separate offenses, but are solely to
determine facts that, if true, will affect the punishment. Hollander v. Warden, 86 Nev. 369,
468 P.2d 990 (1970).
[Headnote 7]
Nor do we agree that the trial court erred in refusing to appoint additional counsel to assist
the appellant with his argument based on ineffectiveness of counsel. Appellant was
represented by counsel at the May 19 hearing. His present counsel argued his claims again at
a post-sentencing hearing, and again, the trial court rejected those arguments.
Affirmed.
____________
96 Nev. 678, 678 (1980) Gibby's, Inc. v. Aylett
GIBBY'S, INC., Appellant, v. BRIAN AYLETT and
SYLVIA AYLETT, Respondents.
No. 11803
August 18, 1980 615 P.2d 949
Appeal from judgment. Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Lessee appealed from a judgment rendered by the district court which entered an award of
sanctions and attorney fees in favor of lessors in an action for unlawful detainer. The
Supreme Court, Batjer, J., held that: (1) lessee's notice of appeal was timely filed, and (2)
district judge exceeded the limited scope of an unlawful detainer action when he denied the
unlawful detainer and yet awarded sanctions.
Rose, Edwards, Hunt & Pearson, Las Vegas, for Appellant.
Jolley, Urga & Wirth, Las Vegas, for Respondents.
1. Forcible Entry and Detainer.
Untimely appeal from adverse judgment in unlawful detainer action deprives Supreme Court of
jurisdiction to review the judgment insofar as it denies or grants restitution of the property. NRS 40.380.
Appeal from money judgment that is not incidental to unlawful detainer may be taken within 30 days
notice of the entry of judgment, because haste and summary action are not as important when possession is
not involved. NRS 40.380.
Because money judgment awarded to lessors was distinct from any finding of unlawful detainer, it was
not governed by limitations of unlawful detainer statute, and, therefore, lessee's notice of appeal was timely
filed within 30 days. NRS 40.380; NRAP 4(a).
Statute governing unlawful detainer which is purely statutory proceeding and remedy, unknown to the
common law, must be strictly construed and is presumably exclusive and complete as to the procedure to
be followed pursuant to it. NRS 40.215-40.420.
District judge exceeded limited scope of unlawful detainer action when he denied unlawful detainer and
yet awarded sanctions in favor of lessors. NRS 40.360, subds. 1, 2.
Where breach is insufficient to constitute unlawful detainer, appropriate remedy for breach of lease
covenants is ordinary civil action for damages. NRS 40.215-40.420.
OPINION
Appellant (lessee), Gibby's, Inc., a Nevada corporation, and respondents, Brian and Sylvia
Aylett (lessors), entered into a lease agreement on May 31, 1977. Respondents sent to
Gibby's, Inc. a Notice of Termination of Lease and to Quit Premises on the grounds of
nuisance and breach of lease covenants. Subsequently, respondents filed an action for
unlawful detainer and an application for a writ of restitution.
The district court found no material breach of the covenants or conditions of the lease
sufficient to work a forfeiture of the lease. Minor infractions were found, but were deemed
insufficient to warrant granting unlawful detainer and restitution of the property under NRS
40.215 to 40.420, inclusive. However, the district court, performing its function as a court of
equity, ordered appellant pay to respondents $3,200 as sanctions for the hardship caused by
the minor infractions of the lease covenants. Respondents were also awarded attorney's fees
in the amount of $1,200.
Appellant contends that the district judge did not have jurisdiction to impose sanctions in
an unlawful detainer action. Respondents contend that we are without jurisdiction to review
the trial court's judgment because NRS 40.380 requires an appeal from an unlawful detainer
action be filed within 10 days of judgment.
1

[Headnotes 1, 2]
An untimely appeal from adverse judgment in an unlawful detainer action deprives this
court of jurisdiction to review the judgment insofar as it denies or grants restitution of the
property. Aikins v. Andrews, 91 Nev. 746, 542 P.2d 734 (1975). However, an appeal from a
money judgment that is not incidental to an unlawful detainer may be taken within 30 days of
notice of the entry of judgment because haste and summary action are not as important when
possession is not involved. West v. Edwards, 62 Nev. 1, 139 P.2d 1022, on rehearing (1943)
(judgment on cross-complaint in unlawful detainer action); NRAP 4(a).
[Headnote 3]
This appeal challenges the propriety of sanctions awarded for minor breach of the lease
covenants when no unlawful detainer is found. Because the money judgment is distinct from
any finding of unlawful detainer, it is not governed by the limitations of the unlawful detainer
statute. Appellant's notice of appeal was timely filed within 30 days, as required by NRAP
4(a); therefore, appellate review is not foreclosed.
[Headnote 4]
We agree with appellant that the district judge exceeded the limited scope of an unlawful
detainer action when he denied the unlawful detainer and yet awarded sanctions. Unlawful
detainer is an action designed to afford to a landlord a summary remedy for the recovery of
demised premises. . . . Yori v. Phenix, 38 Nev. 277, 281, 149 P. 180, 180 (1915). It is purely
a statutory proceeding and remedy, unknown to the common law.
____________________

1
NRS 40.380 Provisions governing appeals:
Either party may, within 10 days, appeal from the judgment rendered. But an appeal by the defendant
shall not stay the execution of the judgment, unless, within the 10 days, he shall execute and file with the
court or justice his undertaking to the plaintiff, with two or more sureties, in an amount to be fixed by the
court or justice, but which shall not be less than twice the amount of the judgment and costs, to the effect
that, if the judgment appealed from be affirmed or the appeal be dismissed, the appellant will pay the
judgment and the cost of appeal, the value of the use and occupation of the property, and damages justly
accruing to the plaintiff during the pendency of the appeal. Upon taking the appeal and filing the
undertaking, all further proceedings in the case shall be stayed.
law. As such, the statute must be strictly construed and is presumably exclusive and complete
as to the procedure to be followed pursuant to it. Farnow v. District Court, 64 Nev. 109, 121,
178 P.2d 371, 377 (1947).
[Headnotes 5, 6]
NRS 40.360(1) authorizes a court to order restitution and forfeiture of the lease where
judgment is rendered for the plaintiff. NRS 40.360(2) authorizes the assessment of damages
caused by defendant's unlawful detainer.
2
The district court is without jurisdiction to award
sanctions when unlawful detainer is denied. Gasser v. Jet Craft, Ltd., 87 Nev. 376, 380, 487
P.2d 346, 349 (1971). In cases such as this, where the breach is insufficient to constitute
unlawful detainer, the appropriate remedy for breach of lease covenants is an ordinary civil
action for damages. Nothing we have said herein prejudices the right of the Ayletts to pursue
such other remedies.
The district court's judgment is reversed as to the award of sanctions and, also the award of
attorney's fees to respondents must be reversed because respondents are not the successful
party. This case is remanded to the district court to consider awarding reasonable attorney's
fees, if any, to appellant, Gibby's, Inc., pursuant to the lease agreement.
3

____________________

2
NRS 40.360 Judgment; damages; execution and enforcement:
1. Judgment. If, upon the trial, the verdict of the jury, or, if the case be tried without a jury, the
finding of the court, be in favor of the plaintiff and against the defendant, judgment shall be entered for
the restitution of the premises; and, if the proceeding be for unlawful detainer after neglect or failure to
perform any condition or covenant of the lease or agreement under which the property is held, or after
default in the payment of rent, the judgment shall also declare the forfeiture of such lease or agreement.
2. Damages. The jury or the court, if the proceeding be tried without a jury, shall also assess the
damages occasioned to the plaintiff by any forcible entry, or by any forcible or unlawful detainer, and any
amount found due the plaintiff by reason of waste of the premises by the defendant during the tenancy,
alleged in the complaint and proved on the trial, and find the amount of any rent due, if the alleged
unlawful detainer be after default in the payment of rent; and the judgment shall be rendered against the
defendant guilty of the forcible entry, or forcible or unlawful detainer, for the rent and for three times the
amount of the damages thus assessed.

3
Paragraph XIV of the lease provides: In any litigation between Lessor and Lessee to enforce any of the
provisions hereunder, the unsuccessful party to such litigation, shall pay to the successful party reasonable
attorney's fees incurred therein by such successful party.
____________
96 Nev. 682, 682 (1980) Cottino v. Harrison
GARY A. COTTINO, Appellant, v. J. ROSS HARRISON, Individually and in His Capacity
as a County Commissioner; NORMAN RAYMOND, VIRGINIA EDWARDS and JAY
WADSWORTH, Individually; THE COUNTY OF LINCOLN, a Political Subdivision of the
STATE OF NEVADA; JOHN McGIMSEY, Individually and in His Capacity as District
Attorney for Lincoln County, Respondents.
No. 11397
August 18, 1980 615 P.2d 246
Appeal from judgment of dismissal, Seventh Judicial District Court, Lincoln County;
Merlyn H. Hoyt, Judge.
A dismissed business manager of a county hospital sought damages for defamation,
malicious prosecution, wrongful termination, and alleged violations of open meeting laws,
and sought reinstatement and back pay. His complaint was dismissed by the district court and
plaintiff appealed. The Supreme Court held that: (1) where the record did not clearly establish
whether trial court considered plaintiff's argument that he had acquired property interest in his
employment and was entitled to due process before he could be terminated, case would be
remanded for further consideration of such claims, and (2) where plaintiff had been convicted
on charges brought, he had no cause of action for malicious prosecution.
Albert G. Marquis, Las Vegas, for Appellant.
Rose, Edwards, Hunt & Pearson, Las Vegas; C. E. Horton, Ely; John McGimsey, Pioche,
for Respondents.
Where, with respect to claims for reinstatement, back pay and damages for wrongful termination of
position as county hospital business manager, the record did not clearly establish whether trial court
considered plaintiff's argument that he had acquired property interest in his employment and was entitled to
due process before he could be terminated, case was remanded for further consideration of such claims.
NRS 41.032, 41.032, subd. 2; U.S.C.A.Const. Amends. 5, 14.
2. Malicious Prosecution.
When plaintiff had been convicted on charges brought, he had no cause of action for malicious
prosecution.
OPINION
Per Curiam:
The trial court dismissed appellant's amended complaint which sought damages for
defamation, malicious prosecution, wrongful termination, sought reinstatement and
backpay, and sought damages for alleged violations of open meeting laws.
96 Nev. 682, 683 (1980) Cottino v. Harrison
which sought damages for defamation, malicious prosecution, wrongful termination, sought
reinstatement and backpay, and sought damages for alleged violations of open meeting laws.
Respondents Harrison, Raymond, Edwards, and Wadsworth, comprising the board of
trustees for Lincoln County Hospital, terminated appellant's employment as business
manager. Appellant also alleged that respondent McGimsey, in his capacity as District
Attorney, maliciously instituted unfounded criminal charges against appellant. The trial court
dismissed appellant's amended complaint on the theory that all the acts alleged were subject
to the defense of discretionary immunity, NRS 41.032(2).
1

[Headnote 1]
With respect to the claims for reinstatement, backpay, and damages for wrongful
termination, the record does not clearly establish whether the trial court considered appellant's
argument that he had acquired a property interest in his employment and was entitled to due
process before he could be terminated. Cf. State ex rel. Sweikert v. Briare, 94 Nev. 752, 588
P.2d 542 (1978) with Eads v. City of Boulder City, 94 Nev. 735, 587 P.2d 39 (1978). We
remand for further consideration of these claims.
[Headnote 2]
With respect to dismissal of the cause of action for malicious prosecution, we affirm.
Appellant was convicted on the charges brought. See Chapman v. City of Reno, 85 Nev. 365,
455 P.2d 618 (1969) and Catrone v. 105 Casino Corp., 82 Nev. 166, 414 P.2d 106 (1966).
Also see, Imbler v. Pachtman, 424 U.S. 409 (1976).
Other assignments of error have been considered and rejected.
Affirmed in part; reversed in part and remanded.
____________________

1
41.032 Conditions and limitations on actions: Officers', employees' acts or omissions. No action
may be brought under NRS 41.031 or against an officer or employee of the state or any of its agencies or
political subdivisions which is:
. . .
2. Based upon the exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of the state or any of its agencies or political subdivisions or of any officer or
employee of any of these, whether or not the discretion involved is abused.
____________
96 Nev. 684, 684 (1980) Unruh v. Streight
PAUL UNRUH and RETA UNRUH, Appellants, v. EUGENE R. STREIGHT, CHRISTINE
D. STREIGHT and SILVER STATE TITLE COMPANY, a Nevada Corporation,
Respondents.
No. 11097
August 18, 1980 615 P.2d 247
Appeal from deficiency judgment and from order denying motion to amend findings of
fact and motion for new trial; First Judicial District Court, Douglas County; Howard D.
McKibben, Judge.
Action was brought to recover balance owed on promissory note, which was secured by
deed of trust covering 50-acre parcel that judgment creditors purchased at foreclosure sale.
The district court awarded creditors deficiency judgment, and appeal was taken. The Supreme
Court held that: (1) record supported district court's finding of fair market value of parcel, and
(2) district court, which had benefit of two appraisal reports submitted by parties as well as
actual sale of parcel to third party one month after foreclosure sale, did not abuse its
discretion in failing to appoint yet another appraiser.
Affirmed.
Allison, Brunetti, MacKenzie & Taylor, Ltd., Carson City, for Appellants.
Sheerin, O'Reilly & Walsh, Carson City, for Respondents.
1. Evidence.
Fair market value is generally defined as price which a purchaser, willing but not obliged to buy, would
pay an owner willing but not obliged to sell, taking into consideration all uses to which property is adapted
and might in reason be applied.
2. Mortgages.
In proceeding to recover balance owed on note secured by deed of trust covering parcel that judgment
creditors purchased at foreclosure sale, record was sufficient to support finding of the district court, which
properly considered all relevant evidence in determining value of property and was not required to adopt
opinion of qualified appraiser, that fair market value of parcel was $30,000, the amount paid for it at sale,
rather than $84,000 as contended by debtors' appraiser. NRS 40.457.
3. Mortgages.
Failure of district court, which had benefit of two appraisal reports submitted by the parties as well as
actual sale of subject parcel to third party one month after foreclosure sale, to appoint yet another
appraiser, as allowed by statute, was not oppressive or arbitrary and thus was not abuse of discretion
in action to recover balance on promissory note which was secured by deed of trust
covering parcel that judgment creditors purchased at foreclosure sale.
abuse of discretion in action to recover balance on promissory note which was secured by deed of trust
covering parcel that judgment creditors purchased at foreclosure sale. NRS 40.457, subd. 2.
OPINION
Per Curiam:
This action was commenced by Eugene and Christine Streight seeking to recover the
balance owed by Paul and Reta Unruh on a $100,000 promissory note. The note was secured
by a deed of trust covering a 50-acre parcel in Douglas County which the Streights purchased
for $30,000 at the foreclosure sale. The district court found that the fair market value of the
property on the day of the foreclosure sale was $30,000 and, pursuant to NRS 40.455,
1
awarded the Streights a deficiency judgment of $70,000 plus interest and costs. This appeal
followed.
NRS 40.455 allows a judgment creditor to seek a deficiency judgment where the proceeds
he received from the sale of the security do not equal the amount of his debtor's indebtedness.
Judgment is limited, however, to the amount by which the debt exceeds the greater of the fair
market value of the security on the date of the foreclosure sale or the amount bid at such sale
by the creditor. NRS 40.459. In this case, appellants Unruh contend that the district court
failed to properly determine the fair market value of the property. Appellants also contend
that the district court abused its discretion in failing to appoint an appraiser sua sponte
pursuant to NRS 40.457(2).
2
NRS 40.457 requires the district court to hold a hearing
before awarding a deficiency judgment.

____________________

1
Upon application of the judgment creditor or the beneficiary of the deed of trust within 3 months from
the date of the foreclosure sale or the trustee's sale held pursuant to NRS 107.080, respectively, and after
the hearing conducted under NRS 40.457, the court may award a deficiency judgment to the judgment
creditor or the beneficiary of the deed of trust if it appears from the sheriff's return or the recital of
consideration in the trustee's deed that there is a deficiency of sale proceeds and a balance remaining due
to the judgment creditor or the beneficiary of the deed of trust, respectively.

2
Upon application of any party made at least 10 days before the date set for the hearing the court shall,
or upon its own motion the court may, appoint an appraiser to appraise the property sold as of the date of
foreclosure sale or trustee's sale. Such appraiser shall file with the clerk his appraisal, which is admissible
in evidence. The appraiser shall take an oath that he has truly, honestly and impartially appraised the
property to the best of his knowledge and ability. Any appraiser so appointed may be
NRS 40.457 requires the district court to hold a hearing before awarding a deficiency
judgment. At the hearing, the court is required to take evidence presented by either party
concerning the fair market value of the property sold as of the date of foreclosure sale. NRS
40.457(1). In this case, the district court heard testimony from respondent Streight that his bid
of $30,000 at the foreclosure sale was in accordance with an appraisal which he had secured.
He also testified that two realtors from Gardnerville placed a similar value on the property.
Mr. Streight stated that he advertised the property for one month in the Reno papers, during
which time he received two offers, one for $28,000, which fell through, and one for $25,000
in cash from Swift Realty, which he accepted.
The appraisal reports submitted by the parties as evidence of the parcel's fair market value
were conflicting. Respondents' appraiser noted that the land appeared to be landlocked in the
sense that the road commonly used for access had not been dedicated to the county and a
private right of way had not been purchased. In addition, the appraiser indicated that the
parcel had no irrigation water rights and that a building moratorium on subdivisions was in
effect at the time of the sale due to a county water shortage. In light of these factors, the
respondents' appraiser found that the highest and best use of the property was as a 50-acre
single family residence and that the parcel was worth only $600 an acre, or $30,000.
Appellants' appraiser assumed that the property had access rights. He also assumed that a
temporary building moratorium would not affect the value of the property. Thus he found that
the highest and best use of the property was as a rural type subdivision of 2-acre parcels. As
such the property had a fair market value of approximately $1,600 an acre or $84,000 on the
date of the foreclosure sale.
[Headnotes 1, 2]
Fair market value is generally defined as the price which a purchaser, willing but not
obliged to buy, would pay an owner willing but not obliged to sell, taking into consideration
all the uses to which the property is adapted and might in reason be applied. Union Nat. Bank
of Pittsburgh v. Crump, 37 A.2d 733 (Penn. 1944). The district court, relying on the arm's
length transaction between Swift Realty and the Streights and resolving the conflicting
appraisal testimony in favor of the Streights, found that the fair market value of the
parcel was $30,000.
____________________
called and examined as a witness by any party or by the court. The court shall fix a reasonable
compensation for the appraiser, but his fee shall not exceed similar fees for similar services in the county
where the encumbered land is situated.
resolving the conflicting appraisal testimony in favor of the Streights, found that the fair
market value of the parcel was $30,000. Appellant's contention that the court was required to
adopt the opinion of a qualified appraiser is without merit. The district court could properly
consider all relevant evidence in determining the value of the property. Tahoe Highlander v.
Westside Fed. Sav., 95 Nev. 8, 588 P.2d 1022 (1979); Union Nat. Bank of Pittsburgh v.
Crump, 37 A.2d 733 (Penn. 1944); NRS 40.457. As the record supports its finding, we may
not disturb it on appeal.
[Headnote 3]
Appellants also contend that where, as here, there is a large discrepancy between appraisal
reports, it is an abuse of discretion for the trial court to fail to appoint another appraiser sua
sponte. NRS 40.457(2) allows the district court in its discretion to appoint an appraiser to
appraise the property. Such appraisal may be considered as evidence of the parcel's fair
market value. Although the district court acknowledged that it had this option, it deemed
itself sufficiently apprised at the close of the evidence to render a decision without such an
appointment. In making its finding, the district court had the benefit of the two appraisal
reports submitted by the parties, as well as an actual sale of the subject parcel to a third party
one month after the foreclosure sale. In light of this, we cannot say that the district court's
failure to appoint yet another appraiser was oppressive or arbitrary and therefore an abuse of
its discretion.
Affirmed.
____________
96 Nev. 687, 687 (1980) Roggen v. Roggen
ROBERT C. ROGGEN, Appellant, v.
ROBERTA ROGGEN, Respondent.
No. 11463
August 18, 1980 615 P.2d 250
Appeal from judgment, Eighth Judicial District Court, Clark County; James A. Brennan,
Judge.
Husband appealed from provisions of a divorce decree rendered by the district court which
confirmed the condominium as the wife's separate property and valued the parties' businesses.
The Supreme Court held that: (1) there was substantial evidence to support the trial court's
decision that the condominium was the wife's sole and separate property; (2) the husband was
not entitled to a new trial to establish the value of the parties' businesses; and {3) there was
substantial evidence in the record to support the trial court's valuation.
parties' businesses; and (3) there was substantial evidence in the record to support the trial
court's valuation.
Affirmed.
Wiener, Goldwater & Waldman, Las Vegas, for Appellant.
Bell, Leavitt & Green, Las Vegas, for Respondent.
Clear and certain proof is required to rebut the presumption that property acquired during marriage is
community property.
Whether wife produced clear and convincing evidence that condominium was a gift sufficient to
overcome presumption that property acquired during marriage is community property was for the trial
court.
3. Divorce.
In divorce proceeding, substantial evidence supported trial court's decision confirming condominium as
wife's sole and separate property.
4. Divorce.
Where ex-husband could have presented evidence at divorce trial, his claim that trial court relied on stale
financial and business records and failed to consider declining market conditions when it valued the
divorcing parties' businesses at $334,641 was belated and did not entitle ex-husband to a new trial.
5. Divorce.
Record of divorce proceeding contained substantial evidence to support trial court's valuation of
divorcing parties' businesses at $334,641.
It is not the duty of a reviewing court to instruct the trier of fact as to which witnesses and what portions
of their testimony are to be believed.
OPINION
Per Curiam:
When the parties to this divorce action moved to Nevada, they purchased a condominium
in Mrs. Roggen's name. Thereafter, Mrs. Roggen filed for divorce, claiming the Regency
Towers condominium as her sole and separate property, and seeking distribution of the
parties' community property.
Mr. Roggen takes this appeal from provisions of the divorce decree confirming the
condominium as Mrs. Roggen's sole and separate property and valuing the parties' businesses
at $334,641. He seeks a new trial to establish the value of the businesses, arguing that trial
court relied upon stale financial and business records and failed to consider declining market
conditions.
[Headnotes 1-3]
Clear and certain proof is required to rebut the presumption that property acquired during
marriage is community property. Burdick v. Pope, 90 Nev. 28, 518 P.2d 146 (1974);
Zahringer v. Zahringer, 76 Nev. 21, 348 P.2d 161 (1960); Carlson v. McCall, 70 Nev. 437,
271 P.2d 1002 (1954); Petition of Fuller, 63 Nev. 26, 159 P.2d 579 (1945). The record
reflects that Mr. Roggen told his housekeeper and a former business associate that he had
made a gift of the condominium to Mrs. Roggen. Although Mr. Roggen denied making
statements attributed to him, Mrs. Roggen's claims are supported by Mr. Roggen's
handwritten memorandum to her and the fact that title was taken in her name only. Whether
Mrs. Roggen produced clear and convincing evidence that the condominium was a gift
sufficient to overcome the presumption was for the trial court, Zahringer v. Zahringer, cited
above, and there is substantial evidence to support the trial court's decision. Kelly v. Kelly, 86
Nev. 301, 468 P.2d 359 (1970). We affirm that portion of the judgment.
[Headnotes 4-6]
2. We believe that appellant's arguments as to valuation of the businesses are belated.
Appellant could have presented at trial the evidence he now seeks to bring before the court.
Cf. Burr v. Burr, 96 Nev. 480, 611 P.2d 623 (1980). There is substantial evidence in the
record to support the trial court's valuation. It is not the duty of a reviewing court to instruct
the trier of facts as to which witnesses, and what portions of their testimony, are to be
believed. Carlson v. McCall, cited above.
____________
96 Nev. 689, 689 (1980) Edwards v. State, Dep't Human Resources
JOAN F. EDWARDS, Ph.D., and JOAN E. OWEN, Ph.D., Appellants, v. STATE
OF NEVADA, DEPARTMENT OF HUMAN RESOURCES, DIVISION
OF HEALTH, Respondent.
No. 11494
August 18, 1980 615 P.2d 951
Appeal from judgment vacating order of Personnel Advisory Commission. First Judicial
Doctors appealed from judgment of the district court holding that Personnel Advisory
Commission was without jurisdiction to reclassify their civil service positions. The Supreme
Court, Batjer, J., held that: (1) Health Division of Department of Human Resources had
standing to seek judicial review of Commission's decision ordering reclassification of doctors'
civil service position; (2) Commission's action was not invalid because Health Division did
not receive formal notice of hearing before Commission in terms specified by statute; (3)
Commission had jurisdiction to review decision of State Personnel Division denying doctors'
request for reclassification of their civil service positions; and (4) Commission properly
concluded that reclassification of civil service positions held by doctors was necessary to
reflect more accurately duties actually associated with those positions.
Reversed and remanded with instructions.
Manoukian and Thompson, JJ., concurred in part, dissented in part.
Nitz, Schofield & Nitz, Las Vegas, for Appellants.
Richard H. Bryan, Attorney General, and Bryan M. Nelson, Deputy Attorney General,
Health Division of Department of Human Resources had standing to seek judicial review of State
Personnel Advisory Commission's decision ordering reclassification of doctors' civil service positions,
since Health Division was affected by Commission's decision and would have to pay increased salaries and
back pay ordered by that decision. NRS 233B.035, 233B.130, subd. 1.
Although Health Division of Department of Human Resources did not receive formal notice of hearing
before State Personnel Advisory Commission on doctors' request for reclassification of their civil service
positions, Commission's action of reclassifying their civil service positions was not invalid, in view of
vigorous opposition to doctors' complaint made by State Personnel Division and actual notice to Health
Division of nature of hearing. NRS 233B.121.
Personnel Advisory Commission had jurisdiction to review decision of State Personnel Division denying
doctors' request for reclassification of their civil service positions. NRS 284.160, subd. 4.
Personnel Advisory Commission properly concluded that reclassification of civil service positions held
by doctors was necessary to reflect more accurately duties actually associated with those
positions.
more accurately duties actually associated with those positions. NRS 284.160, subd. 4.
OPINION
Doctors Joan Edwards and Joan Owen appeal from the judgment of the district court
holding that the Personnel Advisory Commission was without jurisdiction to reclassify their
civil service positions. We reverse.
In 1976, appellants held positions classified as Psychologist V in the Health Division of
the Department of Human Resources. They requested reclassification of their positions to
Clinic Director III, asserting that they were being required to perform administrative duties
beyond the scope of the Psychologist V classification. The head of the Health Division
opposed the reclassification and forwarded their requests to the State Personnel Division. In
December 1977, an analyst in the Personnel Division denied the requests. Edwards and Owen
then filed a formal grievance with the Personnel Division, which held a hearing. In January
1978, the Personnel Division denied the request for reclassification. Owen and Edwards
appealed this decision to the State Personnel Advisory Commission, which held a hearing on
May 18, 1978. The Personnel Division appeared with counsel at this hearing and contested
the request for reclassification. The head of the Health Division was also present. Based on
the evidence adduced at the hearing, the Commission ordered that the positions held by
Edwards and Owen be reclassified as Clinic Director III positions, and awarded them back
pay. In June 1978, the Health Division requested a rehearing before the Commission, alleging
a lack of proper notice at the May hearing. The Commission denied the request, reaffirmed its
reclassification decision, and amended the award of back pay to cover the period after the
receipt of the request for reclassification by the Personnel Division.
The Health Division then sought judicial review of the Commission's decision. The district
court held a hearing, concluded that the Commission was without jurisdiction to entertain
appeals in reclassification matters, and vacated the Commission's decision. This appeal
ensued.
[Headnote 1]
Appellants contend that the Health Division had no standing to seek judicial review of the
Commission's decision because it was not a party to the proceedings before the
Commission.
to seek judicial review of the Commission's decision because it was not a party to the
proceedings before the Commission. This argument is without merit. The Health Division is a
party within the meaning of NRS 233B.035, which includes in the definition an agency
entitled as of right to be admitted as a party, in any contested case. Since the Health
Division is affected by the Commission's decision, and will have to pay the increased salaries
and back pay ordered by that decision, it is an aggrieved party within the meaning of NRS
233B.130(1).
[Headnote 2]
The Health Division did not receive formal notice of the hearing before the Commission in
the terms specified in NRS 233B.121. On the record before us, however, it is abundantly
clear that the Health Division was aware that the hearing concerning appellants was to be
held on May 18, 1978, was familiar with appellants' complaint, and was aware of the
Commission's asserted jurisdiction over reclassification appeals. The head of the Health
Division appeared at the hearing to give testimony. It is clear, then, that the Health Division
had actual notice of the Commission proceedings, but sought to intervene as a party only after
the Commission had rendered a decision favorable to appellants. In view of the vigorous
opposition to appellants' complaint made by the Personnel Division at the Commission
hearing, and the actual notice to the Health Division of the nature of the hearing, Brown v.
Sutton, 356 So.2d 965, 971-72 (La. 1978), we conclude that the Commission's action is not
invalid on this ground.
Respondent Health Division's main contention is that the Personnel Advisory Commission
does not have jurisdiction to entertain appeals from the Chief of the Personnel Division in
reclassification matters. We disagree.
[Headnote 3]
The Chief of the Personnel Division has the power to reclassify positions.
1
The
Commission must approve such changes.
____________________

1
It is clear that what appellants requested was a reclassification rather than a promotion. Appellants did not
contend that there were existing Clinic Director III positions into which they should be promoted. Rather, they
asserted that the duties which the Health Division had imposed upon their Psychologist V positions were more
appropriate to Clinic Director III positions, and that their positions should be reclassified accordingly. Nevada
Dept. of Administration, State Administrative Manual, Rules for Personnel Administration I D (24) (10th ed.
1977):
Reclassification' means a reassignment or change in allocation of an individual position by raising it to
a higher class . . . on the basis of significant changes in kind, difficulty, or responsibility of the work
performed. (Emphasis supplied.)
NRS 284.160(4). The Commission's power to approve necessarily encompasses the review of
denials of reclassification requests. Such authority is articulated in Rule II E of the Nevada
Department of Administration, State Administrative Manual, Rules for Personnel
Administration II E (10th ed. 1977).
2
The Rules have the force and effect of law. NRS
284.155(1). Consequently, we hold that the Commission had jurisdiction to review the
decision of the Personnel Division in these reclassification appeals.
3

[Headnote 4]
The Commission properly concluded that a reclassification of the positions held by
appellants was necessary to reflect more accurately the duties actually associated with those
positions. No ground for reversal of the administrative action, NRS 233B.140(5), is present in
this case. We therefore reverse the judgment of the district court and remand the case with
instructions to reinstate the order of the Personnel Advisory Commission.
Mowbray, C. J., and Gunderson, J., concur.
Manoukian, J., with whom Thompson, J. joins, concurring in part and dissenting in part:
I concur in the majority holding with regard to the issue of standing for the reason that
actual notice and employer participation before the Commission cured the deficiency in the
formal notice. See Brown v. Sutton, 356 So.2d 965, 971 (La. 1978). Because I cannot agree,
however, with the majority that the Commission had jurisdiction in this matter, I respectfully
dissent.
Appellants' 1976 requests for upward reclassifications was opposed by Dr. John Carr, the
state health officer, who disagreed with appellants' description of their positions. The
Personnel Division studied the matter through December of 1977 and included a study of new
positions approved by the legislature. In December, Mr. Wenner, the supervisory personnel
analyst, informed appellants that he recommended that their positions were properly
classified as Psychologist V.
____________________

2
Rule II E. Investigations:
The State Personnel Division, upon the written request of an appointing authority or an employee, or upon its
own initiative, may investigate the classification status of any existing position, which could be ultimately
appealed by any of the parties to the Personnel Advisory Commission.

3
The Legislature has amended NRS 284.065 and 284.165 to include jurisdiction over reclassification appeals
in the Commission's express powers. This evidences the Legislature's original intent to confer this jurisdiction on
the Commission. Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975); Sheriff v. Smith, 91 Nev. 729, 542
P.2d 440 (1975).
analyst, informed appellants that he recommended that their positions were properly
classified as Psychologist V. Appellants filed a grievance with the State Personnel Division
soon thereafter. After a hearing, Fred Bartlett, chief of special personnel services, denied
appellants' request for reclassification.
Appellants informed the state personnel administrator of their intent to appeal the decision.
In February of 1978, Mr. Bartlett wrote to counsel for appellants and stated, As we agreed,
the proper forum for the classification appeals at this point is the Personnel Advisory
Commission. In May of 1978, the Commission held a hearing and unanimously granted a
ten percent increase in pay and reclassified the positions of appellants to that of Clinic
Director III.
1
the personnel administrator subsequently wrote to the chairman of the
Commission and stated that he thought the appeal procedure followed was at variance with
past proceedings. Thereafter, the Health Division sought judicial review.
In my view, the majority, in conferring jurisdiction on the Commission, has misconstrued
the statutory scheme finding that [t]he Commission's power to approve [position
reclassifications] necessarily encompasses the review of denials of reclassification requests.
First, I believe that the action by the chief of the Personnel Division was not subject to review
by the Commission as a reclassification matter. Second, even assuming the Commission had
the authority to hear appeals in reclassification matters, the request here actually amounted to
a request for a promotion which was more properly subject to approval by the Health
Division, appellants' employer.
Prior to 1979, section 284.065 of our statutes provided that the Commission had only
those powers and duties authorized by law. The Commission had the power to advise the
personnel division chief on several matters and to exercise any other advisory powers
necessary or reasonably implied within the . . . chapter. NRS 284.065 (emphasis added).
2
On the other hand, it is the chief who is the executive head of the personnel system who is
to apply and carry out the provisions of the statutes.
____________________

1
The minutes for this meeting reflect that the Commission granted an increase in pay and a promotion to
Clinic Administrator III, Range C, effective May 18, 1978. (Emphasis added.)

2
This statute was amended in 1979 and now gives the Commission the power [t]o review decisions of the
chief in contested cases involving the classification or allocation of particular positions. 1979 Nev. Stats. ch.
262, at 356-57 (codified in NRS 284.065(2)(f) (emphasis added). Unlike my brethen in the majority, I do not
believe that this amendment, more than twenty-five years after the original enactment, reflects an intent by the
1953 legislature to vest the Commission with the power to hear the instant controversy. Indeed, this position
becomes abundantly clear from a reading of the plain language of the prior statute. See Cirac v. Lander County,
95 Nev. 723, 729, 602 P.2d 1012, 1015 (1979).
it is the chief who is the executive head of the personnel system who is to apply and carry out
the provisions of the statutes. Although the chief is to report to the Commission and request
advice on policy, he is the one who is to [p]erform any other lawful acts which he may
consider necessary or desirable to carry out the purposes and provisions of this chapter. NRS
284.105(2)(i). The chief has the power to reclassify particular sets of duties to particular
classes. The Commission may approve such general changes. NRS 284.160(4). Individual
employees may request a rehearing by the chief when affected by general changes in the
allocation of a position to a grade or class. NRS 284.165. But even with such general
changes, there was no provision for an appeal to the Commission by the individuals.
The majority does cite Rule II E of the Rules for Personnel Administration, which was
promulgated by the chief pursuant to NRS 284.155. This rule states that the Personnel
Division may investigate the classification status of any existing position, which ultimately
could be appealed to the Commission. I read this only as authorizing a Commission review of
classifications of positions in general according to the duties attendant to the position. This
does not vest appellate authority in the Commission over the allocation of individual
employees to existing positions in an approved classification plan. That is the duty of the
chief of the Personnel Division from which there is no appeal.
Even assuming the Commission had authority to hear reclassification appeals, I do not
believe that the action requested here was for a re-allocation of a general position, but was a
request for a promotion. A promotion is defined by the Rules for Personnel Administration
as any movement of a classified employee to a position in a class having a higher maximum
salary range than the position previously occupied. . . . Appellants were occupying one
position in a certain class and wished to be transferred to a higher position. They do not claim
that all persons classified as Psychologist V performed the work of a Clinic Director III.
These are two different classes and appellants wished to be assigned to a different class.
The legislature has also provided that no one is to be appointed or promoted by any means
other than those set forth in the chapter and the promulgated regulations. And appointments
shall be made according to merit and fitness from eligible lists prepared upon the basis of
examination. . . . NRS 284.150(2). Examinations are regulated in NRS 284.205-.235 and
NRS 284.240-.275 provide the procedure for certifying eligible persons for positions and
establishing eligibility lists.
Appointments are to be made from eligibility lists and the chief certifies from the lists. NRS
284.255, 284.265. For vacancies in certain appointed positions, the appointing authority must
appoint from the list. This authority is, presumably, the head of respective departments. NRS
284.270. See Op. Att'y Gen. Nev. 96 at 107, 110 (1963). Here, the Commission simply
determined that appellants were to be elevated in position. There had been no examination
and no indication from department heads that appellants were to be promoted.
I am apprehensive that, under the authority of the majority opinion, state employees in the
future will attempt to circumvent promotion procedures simply by requesting a
reclassification when the employees believe they have assumed duties which are attendant
with a position in a higher class. In the present case, appellants' remedies were to request a
promotion and to follow the qualifying procedures or to ask for a special salary adjustment.
See Rules for Personnel Administration, Rule III H 2.
3
The Commission did not simply
reclassify a position which was held by a class of employees of which appellants happened to
be a part. The Commission actually moved classified employees to a higher class. The
Commission improperly granted appellants a promotion which was beyond their powers
authorized by law. See NRS 284.065, 284.245, 284.355, 284.376, 284.390. In addition to an
impairment of budgetary control, by individual departments, this action will effectively deny
the heads of individual agencies the ability to determine job placement according to merit and
comparative ability.
Those in the majority err in holding that the Personnel Advisory Commission could hear
this appeal from the decision of the Chief of the Personnel Division not to reclassify
appellants' positions. I would affirm the decision of the trial court.
Thompson, J., concurs.
____________________

3
This is not to say that the Health Division had any right to require appellants to assume additional
responsibilities not attendant with their classification. Appellants may be eligible for compensation if they were
carrying responsibilities beyond those required for the class as a whole. . . . Rules for Personnel
Administration, Rule III H 2.
____________
96 Nev. 697, 697 (1980) Ogden v. State
JOSEPH OGDEN, Appellant, v. THE STATE
No. 11768
August 18, 1980 615 P.2d 251
Appeal from judgment of conviction; Ninth Judicial District Court, Douglas County;
Howard D. McKibben, Judge.
The district court found defendant guilty of possession of controlled substance, and
defendant appealed. The Supreme Court held that testimony by one doctor sustained finding
that defendant was competent to stand trial and defendant's plea of guilty waived insanity
defense.
Affirmed.
Norman Y. Herring, Nevada State Public Defender, and J. Gregory Damm, Deputy State
Public Defender, for Appellant.
Michael Smiley Rowe, District Attorney, Douglas County, for Respondent.
1. Criminal Law.
When there is conflicting psychiatric testimony at competency hearing, trier of fact resolves conflicting
testimony of witnesses and trial court's findings will be sustained when substantial evidence exists to
support them.
2. Criminal Law.
Notwithstanding testimony by one doctor that defendant was not competent to stand trial, testimony by
another doctor that he was competent to stand trial supported trial court's determination that defendant was
competent to stand trial.
3. Criminal Law.
Competency to stand trial is a judicial determination whereas defendant's insanity at time of commission
of act is factual question.
4. Criminal Law.
Defendant who pled guilty waived opportunity of raising defense of insanity.
OPINION
Per Curiam:
The appellant seeks to have his conviction of possession of a controlled substance
overturned. Three errors are assigned. First, that the trial court should have called for
additional psychiatric examinations. Second, that the trial court abused its discretion in
determining that the appellant was competent to stand trial. Finally, that the appellant did not
make a knowing and intelligent guilty plea.
96 Nev. 697, 698 (1980) Ogden v. State
[Headnotes 1, 2]
1. NRS 178.415(1)
1
provides that the court shall appoint two physicians, at least one of
whom is a psychiatrist, to examine a defendant when determining if he is competent to stand
trial. In the present case, Dr. Gerow testified that Ogden was not competent to stand trial,
whereas Dr. Molde testified that Ogden was competent to stand trial. When there is
conflicting psychiatric testimony at a competency hearing, the trier of fact resolves the
conflicting testimony of the witnesses. Doggett v. Warden, 93 Nev. 591, 572 P.2d 207
(1977). Furthermore, such findings will be sustained on appeal when substantial evidence
exists to support them. Hunt v. State, 92 Nev. 536, 554 P.2d 255 (1976). Dr. Molde testified
that Ogden was competent to stand trial. This testimony supports the court's decision.
2. The appellant vigorously argues that the court wrongfully relied upon a treating doctor's
letter. The record does not support this assertion since the trial court expressly discounted any
reliance upon any evidence other than the testimony of Dr. Gerow and Dr. Molde.
[Headnotes 3, 4]
3. Finally, the appellant contends that inconclusive testimony as to his mental condition at
the time of the offense precluded him from knowing whether the alternative pleas of not
guilty and not guilty by reason of insanity were available to him. This contention is without
merit. The medical testimony received concerned only the appellant's capacity to stand trial
and was irrelevant as to his mental state at the time of the act. Competency at time of trial is
not to be confused with the defense of insanity. Competency to stand trial is a judicial
determination, whereas the defendant's sanity at time of commission of the act is a factual
question. By pleading guilty, the appellant gave up his right to a jury trial, Duncan v.
Louisiana, 391 U.S. 145 (1968), thus waiving his opportunity to raise the defense of insanity.
State v. Bourdlais, 70 Nev. 233, 265 P.2d 761 (1954).
Affirmed.
____________________

1
NRS 178.415(1) The court shall appoint two physicians, at least one of whom is a psychiatrist or otherwise
especially qualified, to examine the defendant.
____________
96 Nev. 699, 699 (1980) Weakland v. State
GERALD RONALD WEAKLAND, Appellant, v. THE
No. 10985
August 18, 1980 615 P.2d 252
Appeal from judgment of conviction for perjury; Eighth Judicial District Court, Clark
The Supreme Court, held that where it was participation of two persons in arranging
murder committed by defendant, rather than the details of the actual killing, which gave rise
to perjury charges after defendant, at the trial of the other persons, repudiated statements that
he was hired by such persons to do the killing, portions of prior transcripts and statements
which described the commission of the crime were irrelevant, and admission of statements
and transcripts containing detailed description of the murder was reversible error.
Morgan D. Harris, Public Defender, and Terrance M. Jackson, Deputy Public Defender,
Robert J. Miller, District Attorney, and David Swartz, Deputy District Attorney, Clark
1. Criminal Law.
In prejury prosecution, evidence relating to a crime other than that for which defendant is on trial is
relevant where it tends to show the false swearing of the defendant.
2. Criminal Law.
Where it was participation of two persons in arranging murder committed by defendant, rather than the
details of the actual killing, which gave rise to perjury charges after defendant, at the trial of the other
persons, repudiated statements that he was hired by such persons to do the killing, portions of prior
transcripts and statements which described the commission of the crime were irrelevant, and admission of
statements and transcripts containing detailed description of the murder was reversible error. NRS
48.015, 48.025, subd. 2, 178.598; U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Guidelines for determining when trial errors are harmless include whether issue of innocence or guilt is
close, quantity and character of the error, and the gravity of the harm charged, and underlying each of these
factors is the supervisory function of the appellate court in maintaining the standards of the trial bench and
bar, to the end that all defendants will be accorded a fair trial. NRS 178.598.
OPINION
Per Curiam:
Gerald R. Weakland pled guilty to second degree murder for the killing of Hilda Kraus.
the killing of Hilda Kraus. In connection with his plea, Weakland made a written and
videotaped statement implicating Rosalie Maxwell and Frank LaPena. At the preliminary
hearing for Maxwell and LaPena, Weakland repeated his statement, testifying that he was
hired by Maxwell and LaPena to kill Kraus. Weakland later repudiated these statements at the
Maxwell and LaPena trials, asserting that neither Maxwell nor LaPena was involved in the
killing. The state subsequently charged that Weakland committed perjury when he denied
LaPena's and Maxwell's involvement in the Kraus killing. After a trial to a jury, Weakland
was convicted of two counts of perjury
Although Weakland makes numerous assignments of error in this appeal, his primary
argument involves the admission of the prior testimony and statements of himself and the
victim's husband, Mr. Kraus, it is Weakland's appellate contention that such admissions were
reversible error as the statements and transcripts of the testimony contained much irrelevant
and cumulative information. We agree and believe the judgment of conviction must be
reversed and the cause remanded for new trial.
[Headnotes 1, 2]
Over vigorous objection by appellant's counsel, the district court admitted the complete
transcripts of appellant Weakland's previous testimony and statements as well as those of the
victim's husband, Mr. Kraus. Each of the transcripts contained a detailed description of the
actual killing of Hilda Kraus which appellant's counsel sought to exclude as irrelevant and
highly prejudicial. The district court ruled that such information was relevant as the acts
surrounding the murder were so inextricably entwined with the charge as to be not susceptible
of separation. NRS 48.015 defines relevant evidence as evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action more
or less probable than it would be without the evidence. Evidence relating to a crime other
than that for which the appellant is on trial is relevant where it tends to show the false
swearing of the appellant. State v. Cerfoglio, 46 Nev. 332, 205 P. 791, 213 P. 102 (1923). In
this case, however, it is the participation of LaPena and Maxwell in arranging the murder,
rather than the details of the actual killing, which gives rise to the perjury charges. Thus,
those portions of the transcripts and statements which describe the commission of the crime
are irrelevant and their admission clearly error. NRS 48.025(2).
[Headnote 3]
It is asserted that the reception of this inadmissible evidence is not harmless error as it
denied appellant his right to a fair trial. NRS 178.598 defines harmless error as that which
does not affect substantial rights. Although NRS 178.598 does not provide a standard for
determining when errors are harmless, this court has established certain guidelines to be
followed in exercising its discretion. These include whether the issue of innocence or guilt is
close, the quantity and character of the error and the gravity of the harm charged. Underlying
each of these factors is the supervisory function of the appellate court in maintaining the
standards of the trial bench and bar, to the end that all defendants will be accorded a fair
trial. Garner v. State, 78 Nev. 366, 374 P.2d 525 (1962).
A review of the record reveals that the evidence is not overwhelming. Weakland made
three statements implicating Maxwell and LaPena. These statements were corroborated in
part by Weakland's wife and two of Weakland's friends. Weakland subsequently repudiated
his testimony, under oath, at the LaPena and Maxwell trials.
In this case, the error was repeated with the admission of each prior statement and trial
transcript into evidence. The details of the murder, while not expounded upon by the state,
were nevertheless argued to the jury at the close of the case. Further, the nature of the error
(the admission of the details of the killing) is inherently harmful to one charged with perjury
arising from such a crime. Contrary to respondent's contention, the repeated description of the
murder did more than provide a backdrop of reality against which the defendant's false
statements could be weighed. Instead, they impressed upon the jury that appellant Weakland
was a cold-blooded killerin addition to being a liar. In determining whether Weakland
committed perjury at the LaPena and Maxwell trials as the state charged, the jury may well
have been influenced by this reception of inadmissible evidence.
We conclude that the judgment below must be and is reversed and the sentence vacated
and the cause remanded for a new trial. As stated by Justice Traynor,
[The] litigant has a right to objective consideration of all proper evidence by triers of
fact without violations of any substantial rights he may have as a litigant. He is entitled
not to a trial free of all possible error but to a trial free of harmful error.
. . . .
. . . [Where] the error is so forceful as to leave its mark on the judgment, the trial itself
[is] contaminated.
the judgment, the trial itself [is] contaminated. An appellant whose right to a fair trial in a
trial court has been vitiated should be accorded that right anew. Retrial is a small price to pay
for insuring the right to a fair trial.
1

____________________

1
R. Traynor, The Riddle of Harmless Error 20, 22 (1970).
____________
96 Nev. 702, 702 (1980) Morales v. State
LEON EUSTORGIO MORALES, Appellant, v. THE
No. 10971
August 19, 1980 615 P.2d 254
Appeal from judgments of conviction upon pleas of guilty, Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
Pursuant to his plea of guilty, defendant was convicted in the district court of sale of
controlled substance and possession of controlled substance. Defendant was sentenced to
serve a term of 20 years on the sale charge and a concurrent term of six years on the
possession charge. On appeal, the Supreme Court held that: (1) although judge's remarks may
have been unfortunate, there was no reversible error in considering defendant's status as an
alien in imposing sentence, and (2) judge did not impermissibly consider allegation that
defendant was a revolutionary and an international drug dealer in imposing sentence.
Affirmed.
1. Criminal Law.
Although judge's remarks may have been unfortunate, there was no reversible error in considering
defendant's status as an alien in imposing sentence.
2. Criminal Law.
So long as record does not demonstrate prejudice resulting from consideration of information or
accusations founded upon facts supported only by impalpable or highly suspect evidence, reviewing court
will refrain from interfering with sentence imposed.
96 Nev. 702, 703 (1980) Morales v. State
3. Criminal Law.
In sentencing defendant following convictions on drug charges, sentencing court did not impermissibly
consider allegations that defendant was a revolutionary and international drug dealer.
OPINION
Per Curiam:
Appellant pleaded guilty to sale of controlled substance and to possession of a controlled
substance. The trial court sentenced appellant to serve a term of twenty years on the sale
charge, and to serve a concurrent term of six years on the possession charge. Appeal is taken
from imposition of sentence.
Appellant first claims that the sentencing court violated appellant's right to equal
protection because it considered appellant's status as an alien in imposing sentence. Appellant
also claims that the sentencing court impermissibly considered allegations that appellant was
a revolutionary and an international drug dealer.
[Headnote 1]
Appellant cited no case which directly supports his argument that a court commits
reversible error if he considers alienage when imposing sentence. In our view, Graham v.
Richardson, 403 U.S. 365 (1971) does not support appellant's argument. Although the district
judge's remarks may have been unfortunate, we find no reversible error. Cf. Hall v. State, 89
Nev. 366, 513 P.2d 1244 (1973).
[Headnotes 2, 3]
Nor do we believe that the trial court abused its discretion in sentencing appellant. So long
as the record does not demonstrate prejudice resulting from consideration of information or
accusations founded upon facts supported only by impalpable or highly suspect evidence, this
court will refrain from interfering with sentence imposed. Silks v. State, 92 Nev. 91, 545 P.2d
1159 (1976). Here, the trial court inquired of the appellant to ascertain whether there was any
basis for reports that appellant was a revolutionary and had dealt in weapons and narcotics,
and, although appellant's attorney argued that the reports were baseless, his attorney objected
when the prosecutor offered to call witnesses and substantiate the claims.
The judgments are affirmed.
____________
96 Nev. 704, 704 (1980) Soller Corp. v. W. B. C. Development
SOLLER CORPORATION, a Nevada Corporation, Appellant, v. W. B. C. DEVELOPMENT
a/k/a W. B. C. DEVELOPMENT COMPANY, a Partnership;
LAMAR WILSON, FRANK WILSON, FRANK BURKE and PHIL CONVILLE,
Partners, Respondents.
No. 10687
August 21, 1980 615 P.2d 956
Appeal from judgment, Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
Subcontractor brought action to foreclose mechanics' lien, and owners counterclaim for
slander of title. The district court entered judgment, and appeal was taken. The Supreme
Court held that: (1) evidence was sufficient to support conclusion by trial court that
$2,601.75, and not larger amount including claimed additional charges, was amount of
owners' liability to the subcontractor; (2) evidence was sufficient to support finding by trial
court that subcontractor had slandered owners' title; and (3) it was not abuse of discretion to
award owners $100 damages on counterclaim for slander of title, even though trial court
erroneously referred to nominal damages.
Affirmed.
Dale W. Beasey, Las Vegas, for Appellant.
Deaner, Deaner & Reynolds, Las Vegas, for Respondents.
1. Mechanics' Liens.
In subcontractor's action to foreclose mechanics' lien, evidence was sufficient to support conclusion by
trial court that $2,601.75, and not larger amount including claimed additional charges, was amount of
owners' liability to the subcontractor.
Where trial court, sitting without jury, makes determination upon conflicting evidence, such
determination will not be disturbed on appeal if it is supported by substantial evidence.
In subcontractor's action to foreclose mechanics' lien wherein owners counterclaimed for slander of title,
evidence was sufficient to support finding by trial court that subcontractor had slandered owners' title.
It was not abuse of discretion to award owners $100 as damages on property owners' claim for slander of
title, even though trial court erroneously referred to nominal damages.
OPINION
Per Curiam:
In an action to foreclose its labor and materialman's lien against respondents' apartment
project, appellant, a sheet rock and painting contractor, recovered $2,601.75.
96 Nev. 704, 705 (1980) Soller Corp. v. W. B. C. Development
and painting contractor, recovered $2,601.75. Respondents counterclaimed, and recovered
$100.00 as damages for slander of title.
On appeal, appellant argues that the trial court erred in awarding it the sum of $2,601.75
rather than the full amount claimed, i.e., $21,269.19. Appellant further contends that
respondents failed to prove malice or special damage and, therefore, the court erred in finding
appellant had slandered respondents' title by recording its notice of claim of lien.
[Headnotes 1, 2]
In our view, the record amply supports the trial court's conclusion that appellant was
entitled to recover $2,601.75. Where a trial court, sitting without a jury, makes a
determination upon conflicting evidence, that determination will not be disturbed on appeal if
it is supported by substantial evidence. Harris v. Shell Dev. Corp., 95 Nev. 348, 594 P.2d 731
(1979). The record reflects that in October, 1973, appellant claimed it was owed $192,570.00,
under its written and oral contracts, and $12,613.85 for extra work requested by the owners.
By our calculations, prior payments made by the respondents, together with the trial court's
award, compensated appellant for this work. The trial court could properly conclude that
appellant was not entitled to additional payment. The trial court was not required to accept
appellant's evidence. See Heidtman v. Nevada Ind. Comm'n, 78 Nev. 25, 368 P.2d 763
(1962); In re Duffill's Estate, 57 Nev. 224, 61 P.2d 985 (1936).
[Headnotes 3, 4]
The trial court's finding that appellant had slandered respondents' title is also supported by
the evidence.
1
Cf. Summa Corp. v. Greenspun, 96 Nev. 247, 607 P.2d 569 (1980). Although
the trial court erroneously referred to nominal damages, we perceive no abuse of discretion
in awarding respondents $100.00 as damages resulting from the wrongful recordation of the
notice of claim of lien.
Affirmed.
Mowbray, C. J., and Thompson, Manoukian, and Batjer, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

1
Finding of Fact # 13 reads:
The actions of the Plaintiff in recording its Lien were intentionally designed to prohibit the Defendants from
transferring title to the fifty-six units at Monterey Grand Manor. At the time of the recording of the Lien,
Defendants were not indebted to Plaintiff in the sum of $20,196.09, a fact known to Plaintiff. That the recording
of said Lien was an attempt by Plaintiff to obtain funds that were not justly due it and as such constituted a
slander of title.

2
The Chief Justice designated Hon. David Zenoff, Senior Justice, to sit in this case in place of The Hon. E.
M. Gunderson, Justice, Nev. Const. art. 6, 19; SCR 10.
____________
96 Nev. 706, 706 (1980) Bull v. McCuskey
SAMUEL T. BULL, Appellant v. CHARLES F.
McCUSKEY, Jr., Respondent.
No. 10732
August 21, 1980 615 P.2d 957
Appeal from judgment awarding compensatory and punitive damages for abuse of process;
Second Judicial District Court, Washoe County, William N. Forman, Judge.
Physician sued attorney to recover damages for abuse of process, contending that the
attorney instituted a medical malpractice suit against him for the ulterior purpose of coercing
a nuisance settlement, knowing that there was no basis for the claim of malpractice. The
district court rendered judgment for the physician and attorney appealed. The Supreme Court,
Thompson, J., held that: (1) evidence of abuse of process was sufficient for the jury; (2) the
fact that the trial court allowed the underlying suit to go to the jury did not bar by collateral
estoppel the abuse of process suit; (3) the award of $35,000 in compensatory damages and
$50,000 in punitive damages was supported by the evidence; and (4) though the denigrating
comments of the attorney concerning the physician during the trial of the malpractice case
were privileged and should not have been admitted in evidence in the abuse of process case,
their admission was not prejudicially erroneous.
Affirmed.
Johnson, Belaustegui & Robison, of Reno, for Appellant.
Echeverria & Osborne, Chartered, and Nathan M. Jenkins, of Reno, for Respondent.
1. Process.
In action by physician against attorney to recover damages for abuse of process, evidence that attorney
instituted malpractice suit against physician for ulterior purpose of coercing nuisance settlement, knowing
that there was no basis for claim of malpractice, was sufficient for jury.
2. Judgment.
Fact that medical malpractice case was allowed to go to jury did not raise bar of collateral estoppel to
subsequent suit for abuse of process by defendant physician against plaintiff's counsel, alleging that
malpractice suit was instituted for ulterior purpose of coercing nuisance settlement.
3. Judgment.
Relitigation of issue that has been finally resolved in prior case may be barred by doctrine of collateral
estoppel, but doctrine is not concerned with interlocutory rulings.
4. Attorney and Client; Process.
In suit against attorney by physician who claimed that attorney instituted malpractice suit against
physician for ulterior purpose of coercing nuisance settlement, award of $35,000 in compensatory damages
and $50,000 in punitive damages for abuse of process was not excessive.
5. Process.
Compensatory damages recoverable in action for abuse of process are the same as in action for malicious
prosecution and include compensation for fears, anxiety, and mental and emotional distress.
6. Process.
In abuse of process suit, malice may be established by showing that defendant's conduct was willful,
intentional and done in reckless disregard of its possible consequences.
In action by physician against attorney for abuse of process, alleging that attorney instituted malpractice
suit against physician for ulterior purpose of coercing nuisance settlement, knowing that there was no basis
for claim of malpractice, attorney's denigrating comments in malpractice trial concerning physician were
privileged and should not have been admitted in abuse of process trial, but their admission was not
prejudicial.
As general proposition, attorney at law is absolutely privileged to publish defamatory matter concerning
another in communications preliminary to proposed judicial proceeding, or in institution of or during
course and as a part of judicial proceeding in which he participates as counsel, if it has some relation to
proceeding.
OPINION
Dr. Charles McCuskey commenced this action against attorney Samuel Bull to recover
damages for abuse of process. It was his contention that attorney Bull, acting for Catherine
Doucette, instituted a malpractice suit against him for the ulterior purpose of coercing a
nuisance settlement knowing that there was no basis from the claim of malpractice. A jury
returned its verdict for Dr. McCuskey, awarding him $35,000 as compensatory and $50,000
as punitive damages. Bull has appealed from the judgment entered upon jury verdict and from
denial of his post-trial motion for judgment n.o.v., or in the alternative, a new trial. The main
claim of error is that the evidence does not show an abuse of process. Other errors also are
assigned and will be considered.
On May 20, 1974, Catherine Doucette, an 86-year-old woman, was admitted to St. Mary's
Hospital following an automobile accident. She had sustained multiple injuries, including
fractures of the left wrist, the patellas, and the right femur.
femur. Because of her age, she also suffered from an arteriosclerotic heart disease, and was
senile. Dr. Charles McCuskey was called to take care of the orthopedic problems, while other
doctors managed her other disabilities. The following August, she was transferred from St.
Mary's Hospital to the Physicians' Hospital for Extended Care. She was depressed,
uncooperative and uncommunicative. While there, she developed bed sores or her hips and
heels. Because of this, her nephew, Milan Jeffers, who had been appointed her guardian,
dismissed Dr. McCuskey and replaced him with Dr. Jack Sargent. Soon after the substitution,
Jeffers inquired of Dr. Sargent whether there had been malpractice by Dr. McCuskey and was
told that there was none. Apparently, her bed sores resulted either from her refusal to follow
directions, or her inability to do so, and were not traceable to any conduct of the doctor.
In October 1974, Milan Jeffers contacted attorney Bull. An action charging Dr. McCuskey
with malpractice, and the Physicians' Hospital with negligence then was filed. The complaint
was filed on the basis of Jeffers' statement that the condition of his aunt, Catherine Doucette,
had greatly deteriorated, and upon photographs showing bed sores, which photographs were
taken by Bull's assistant.
Before filing suit, attorney Bull did not examine nor did he obtain medical records from St.
Mary's Hospital or Physicians' Hospital. He did not confer with a doctor. Neither did he
submit his client's claim to the Joint Screening Panel, established pursuant to an agreement
between the Washoe County Medical Society and the Washoe County Bar Association.
1

After filing suit, attorney Bull did not secure the deposition of Dr. McCuskey, nor of any
doctor. He did not retain an expert for trial, nor attempt to do so.
Shortly before trial, the claim against Physicians' Hospital was settled for $750. Dr.
McCuskey refused to authorize his carrier to settle for any amount, although settlement of the
claim against him also could have been made for $750.
During trial, attorney Bull called Dr. McCuskey incompetent, a fumble-fingered fellow, a
liar, a scoundrel, a damned idiot. He also said, [i]t will be a cold day in hell when I let that
dum-dum take care of my mother. Of the doctor he also stated, [h]e will lie under oath,
steal an elderly woman's redress, cheat if he can get away with it, and all that is left for him is
to make a pact with the devil and murder those who would oppose him."
____________________

1
Since April 30, 1975, state statute provides for the joint medical-legal screening panel. See 1975 Nev. Stats.
ch. 302.
him is to make a pact with the devil and murder those who would oppose him.
The jury to whom the medical malpractice action was presented, quickly returned its
verdict for Dr. McCuskey. Dr. McCuskey then commenced this action against attorney Bull
for abuse of process.
[Headnote 1]
1. The main assignment of error is that the evidence may not be viewed as establishing the
elements of the tort of abuse of process. Recently, this court had occasion to consider that
tort. Nevada Credit Rating Bur. v. Williams, 88 Nev. 601, 503 P.2d 9 (1972). We there noted
that the two essential elements of abuse of process are an ulterior purpose, and a willful act in
the use of the process not proper in the regular conduct of the proceeding. The malice and
want of probable cause necessary to a claim of malicious prosecution are not essential to
recovery for abuse of process. Moreover, we mentioned that abuse of process hinges on the
misuse of regularly issued process in contrast to malicious prosecution which rests upon the
wrongful issuance of process.
In Nevada Credit Rating Bur. we sustained an award of compensatory and punitive
damages for abuse of process. In that case, property valued at more than $30,000 was
attached to secure an alleged debt of less than $5,000. We deemed that to be a willful misuse
of the ancillary remedy of attachment for the ulterior purpose of coercing payment of the sum
claimed to be due.
In the case at hand, it is asserted that the process (complaint and summons) charging Dr.
McCuskey with malpractice was misused for the ulterior purpose of coercing a nuisance
settlement. In considering all evidence presented, it was permissible for the jury to conclude
that attorney Bull had utilized an alleged claim of malpractice for the ulterior purpose of
coercing a nuisance settlement. His offer to settle the case for the minimal sum of $750 when
considered in the light of his failure adequately to investigate before deciding to file suit and
the total absence of essential expert evidence, supports such a conclusion by the jury, and we
may not set it aside.
[Headnote 2]
2. Next, it is asserted that certain rulings of the trial court in the medical malpractice
action preclude recovery by Dr. McCuskey in this case by reason of the doctrine of collateral
estoppel. This contention is without substance.
In the malpractice case the district court denied Dr.
McCuskey's pre-trial motion for summary judgment, and also his motion for a directed
verdict tendered during trial. It is asserted that those rulings conclusively establish that the
Doctor's instant action for abuse of process is without merit.
[Headnote 3]
The relitigation of an issue that has been finally resolved in a prior case may be barred by
the doctrine of collateral estoppel. Clark v. Clark, 80 Nev. 52, 389 P.2d 69 (1964). The
mentioned rulings in the earlier malpractice action were interlocutory rather than final. The
only final determination in that action was a judgment entered upon a jury verdict that Dr.
McCuskey was not liable for malpractice. The doctrine of collateral estoppel is not concerned
with interlocutory rulings.
[Headnote 4]
3. It is asserted that the evidence simply does not support either the award of $35,000 in
compensatory damages or $50,000 in punitive damages.
[Headnote 5]
a. The compensatory damages recoverable in an action for abuse of process are the same
as in an action for malicious prosecution. Prosser, Law of Torts at 858 (4th ed. 1971), and
include compensation for fears, anxiety, mental and emotional distress. Spellens v. Spellens,
317 P.2d 613 (Cal. 1957). In Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962), a
malicious prosecution case, we wrote:
[T]he plaintiff may recover general money damages to compensate for injury to
reputation . . . , humiliation, embarrassment, mental suffering and inconvenience,
provided they are shown to have resulted as the proximate consequence of the
defendant's act. These elements of damage are wholly subjective. The monetary extent
of damage cannot be calculated by reference to an objective standard. The extent of
such damage, by its very nature, falls peculiarly within the province of the trier of fact,
in this case, a jury. (Citations) The only limitation upon the judgment of the jury in this
regard is that the damages thus awarded must not have been given under the influence
of passion or prejudice. NRCP 59(a)(6).
In the Miller case we affirmed a compensatory damage award of $30,000, noting that the
record, when read in the light most favorable to plaintiff, contained substantial evidence
tending to prove damage to reputation, extreme embarrassment, humiliation, mental suffering
and inconvenience as the proximate consequence of the defendant's conduct.
consequence of the defendant's conduct. That observation applies with equal force to the
record now before us. The compensatory damage award of $35,000 is fully supported by the
evidence.
b. In an action for the breach of an obligation not arising from contract, punitive damages
may be recovered where the defendant has been guilty of oppression, fraud or malice, express
or implied. NRS 42.010. It is suggested that malice is not shown, and, in any event, that the
award of $50,000 is too high.
[Headnote 6]
Malice may be established by showing that the defendant's conduct was willful, intentional
and done in reckless disregard of its possible consequences. Nevada Credit Rating Bur. v.
Williams, 88 Nev. 601, 503 P.2d 9 (1972). It was permissible for the jury to conclude that
suit was filed against Dr. McCuskey and an offer to settle made with the intention to force a
nuisance payment, and that this occurred intentionally and in reckless disregard of possible
consequences. Accordingly, an award of punitive damages was within the province of the
jury to allow.
Heretofore, we have recognized the subjective nature of punitive damages, Caple v.
Raynel Campers, Inc., 90 Nev. 341, 526 P.2d 334 (1974), and the absence of workable
standards by which to evaluate the propriety of such an award. Accordingly, we have allowed
that determination to rest with the discretion of the trier of the fact, Midwest Supply, Inc. v.
Waters, 89 Nev. 210, 510 P.2d 876 (1973), unless the evidence introduced at trial shows that
the amount awarded by the jury would financially destroy or annihilate the defendant, Miller
v. Schnitzer, supra, in which event we would attempt an appropriate adjustment of the award.
In the case at hand, trial evidence as to attorney Bull's net worth was not produced.
Therefore, we are unable to conclude that the award was excessive.
[Headnote 7]
4. The denigrating comments of attorney Bull concerning Dr. McCuskey during the trial
of the malpractice case (incompetent, a liar, a scoundrel, a damned idiot, etc.) were received
in evidence in this case to show malice. A prior motion in limine to preclude such evidence
was tendered and denied. This ruling is asserted to be reversible error.
[Headnote 8]
As a general proposition an attorney at law is absolutely privileged to publish defamatory
matter concerning another in communications preliminary to a proposed judicial
proceeding, or in the institution of or during the course and as a part of, a judicial
proceeding in which he participates as counsel, if it has some relation to the proceeding.
privileged to publish defamatory matter concerning another in communications preliminary to
a proposed judicial proceeding, or in the institution of or during the course and as a part of, a
judicial proceeding in which he participates as counsel, if it has some relation to the
proceeding. Restatement (Second) of Torts 586 (1976); Richards v. Conklin, 94 Nev. 84,
575 P.2d 588 (1978). The privilege rests upon a public policy of securing to attorneys as
officers of the court the utmost freedom in their efforts to obtain justice for their clients.
The malpractice complaint placed in issue Dr. McCuskey's competence as a physician.
When Dr. McCuskey testified in that case, he placed in issue his credibility. Attorney Bull's
comments may be understood to pertain to either Dr. McCuskey's competence or his
credibility, and therefore, are privileged. The motion in limine should have been granted.
It does not follow, however, that the error in admitting such evidence requires this court to
set aside the judgment entered upon jury verdict. An error in the reception of evidence which
does not affect the substantial rights of the parties must be disregarded as harmless. NRCP
61.
We already have mentioned the evidence that would allow the jury to find malice and
award punitive damages. With this in mind, it is evident that the reception of attorney Bull's
denigrating comments was not essential to the punitive damage issue and, therefore, may be
deemed harmless.
Although the denigrating comments of attorney Bull regarding Dr. McCuskey were
privileged, and alone would not supply a basis for liability in damages, it does not follow that
an attorney may so conduct himself without fear of discipline. Indeed the oath taken by an
attorney licensed to practice in Nevada states in part that I will abstain from all offensive
personalities and advance no fact prejudicial to the honor or reputation of a party or witness,
unless required by the justice of the cause with which I am charged . . . Moreover, SCR
188(4) commands that a lawyer should never be unfair or abusive or inconsiderate to adverse
witnesses or opposing litigants. His obligation to present his client's cause vigorously does
not contemplate violation of the attorney's oath or of the standards of conduct.
5. We shall not comment upon the remaining assignment of errorthat of the
impeachment of a witness by reference to his prior felony conviction, when that conviction
had been satisfied by an honorable discharge from probation and the witness released from all
penalties and disabilities resulting therefromsince the impeaching evidence already was
before the jury through an earlier witness without objection.
therefromsince the impeaching evidence already was before the jury through an earlier
witness without objection.
Affirmed.
Mowbray, C. J., and Batjer and Manoukian, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

2
The Chief Justice designated The Hon. David Zenoff, Senior Justice, to sit in the place of The Hon. E. M.
Gunderson, Justice. Nev. Const. art. 6, 19; SCR 10.
____________
96 Nev. 713, 713 (1980) Brown v. Brown
RONALD R. BROWN, Appellant, v. LEONA C.
BROWN, Respondent.
No. 10739
August 21, 1980 615 P.2d 962
Appeal from order granting motion for summary judgment, Eighth Judicial District Court,
Clark County; Thomas J. O'Donnell, Judge.
Ex-husband appealed from summary judgment entered by the district court according full
faith and credit to foreign judgment for child support arrearages. The Supreme Court,
Manoukian, J., held that where Idaho proceedings, which culminated in judgment for accrued
child support against ex-husband, were conducted without notice to or appearance by
ex-husband, to extent that ex-husband was thus deprived of opportunity to present defenses
otherwise available to him under laws of Idaho, there existed want of in personam jurisdiction
over ex-husband, and hence lack of due process, from which it followed that Nevada need not
afford full faith and credit to judgment.
Scotty Gladstone, Las Vegas, for Appellant.
Gary A. Bottinelli, Commerce City, Colorado; Cromer, Barker & Michaelson, and
Michael Mansfield, Las Vegas; and Walter R. Cannon, Las Vegas, for Respondent.
1. Judgment.
State court is bound to give full faith and credit to judgments of courts of another state. U.S.C.A. Const.
Art. 4, 1.
2. Judgment.
In determining whether judgment of court of another state should receive full faith and credit, court
rendering foreign judgment must have had jurisdiction over parties and subject matter.
96 Nev. 713, 714 (1980) Brown v. Brown
had jurisdiction over parties and subject matter. U.S.C.A.Const. Art. 4, 1; Amend. 14.
3. Divorce.
Under Idaho law, past-due installments of support did not constitute final judgment such that ex-husband
could not contest such amounts.
4. Constitutional Law; Divorce.
Where Idaho proceedings on past-due installments of child support, which culminated in entry of
judgment for accrued child support, were conducted without notice to or appearance by ex-husband, to
extent that ex-husband was thus deprived of opportunity to present defenses otherwise available to him
under laws of Idaho, there existed want of in personam jurisdiction over him, and hence lack of due
process, from which it followed that Nevada need not afford full faith and credit to judgment.
U.S.C.A.Const. Art. 4, 1; Amend. 14.
5. Divorce.
Where ex-wife was attempting enforcement in Nevada of Idaho judgment against ex-husband for accrued
child support, district court had to consider any defenses ex-husband would have available to him under
Idaho law upon remand.
OPINION
We are asked to set aside a summary judgment of our district court because it accords full
faith and credit to a foreign judgment for child support arrearages entered without notice to
appellant. For the reasons hereinafter expressed, we reverse.
On July 18, 1958, Ronald Brown, defendant-appellant, and Leona Brown,
plaintiff-respondent, were divorced in the State of Idaho. Leona was awarded the custody of
the minor child and Ronald was ordered to pay $60.00 per month as and for child support
commencing on August 1, 1958, such obligation to continue until the child attained the age of
majority. Both parties were represented by counsel at that proceeding.
The fact that no child support payments were made until January of 1968 is undisputed.
The subsequent payments were made in accordance with a stipulation and order for support
entered on December 15, 1967 in the Eighth Judicial District Court, Clark County, Nevada.
This order resulted from a complaint filed by Leona in Colorado under the Uniform
Reciprocal Enforcement of Support Act (URESA). NRS 130.010-.370. At that time, Ronald
was residing in Las Vegas.
In January of 1977, Leona moved for a judgment in Idaho for child support arrearages
allegedly owed by Ronald in the amount of $6,840. No notice was provided to Ronald and the
court ordered an entry of judgment in the amount prayed for in the motion.
96 Nev. 713, 715 (1980) Brown v. Brown
the motion. On April 14, 1977, Leona instituted the present action in the Eighth Judicial
District to recover on the January judgment entered by the Idaho court. Thereafter, Leona
moved for summary judgment asserting that the 1977 Idaho judgment was entitled to full
faith and credit. Ronald opposed Leona's motion for summary judgment and filed a
cross-motion for summary judgment contending that, because the Idaho judgment was
entered without notice to him, it was not entitled to full faith and credit. Appellant argued
below, and now on appeal, that as a result of the lack of notice, he was unable to present any
defenses in the Idaho court.
1
Finally, appellant claimed that the alleged arrearages accrued
prior to 1968 and were consequently barred by the statute of limitations. Respondent replied,
arguing that, because each support installment which matures under a decree becomes a
judgment, these past due final judgments could be consolidated into an aggregate judgment
and such action did not require notice to the appellant. Respondent stated that the Idaho
statute of limitations is applicable and that such statute was tolled as long as the defendant
was absent from the state.
2
Respondent asserted that appellant left Idaho in late 1963 and
had not returned.
The district court granted Leona's motion for summary judgment in the amount of six
thousand eight hundred and forty dollars with interest from the date of the Idaho judgment in
1977. This appeal ensued.
[Headnotes 1, 2]
The courts of this state are bound to give full faith and credit to the judgments of the courts
of another state. U.S. Const. art. IV, 1. See Franklin National Bank v. Krakow, 295 F.Supp.
910 (D.D.C. 1969); Wicker v. Wicker, 85 Nev. 141, 143, 451 P.2d 715, 716 (1969). But the
court rendering such foreign judgment must have had jurisdiction over the parties and subject
matter to comport with due process. And due process requires that a party be provided notice
and an opportunity to be heard.
____________________

1
Appellant's affidavit below stated that he had made no payments to Leona pursuant to the original support
decree because, shortly after the 1958 decree, respondent took the child and departed the State of Idaho without
advising where they were. Ronald said that he was unaware of the location of Leona and the child until 1968
when he was arrested incidental to the URESA action. The record demonstrates that Ronald made correct
support payments from January 1968 until January of 1974 when the daughter reached the age of majority.

2
See Idaho Code 5-215, 5-229 (1979). On the sparse facts found by the trial court, we decline to decide
whether the Idaho statute applies.
96 Nev. 713, 716 (1980) Brown v. Brown
to be heard. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313 (1950). In the instant
case, it is uncontradicted that appellant was not provided with notice when respondent moved
for an order in Idaho to bring alleged arrearages to judgment.
[Headnote 3]
Respondent contends that, under Idaho law, past due installments of support constitute a
final judgment and, as such, appellant cannot contest these amounts. See Brown v. Brown,
165 P.2d 886 (Idaho 1946). See also Burke v. Burke, 255 P.2d 740 (Colo. 1953). We do not
so read the cases cited. These cases upon which respondent relies did not involve the
enforcement in one state of the judgment of another state. And, in each case, the husband was
given the opportunity at some point to offer a valid defense to the claimed arrearages. In
Brown, the husband attempted to have arrearages modified retroactively due to changed
circumstances. He did not raise proper defenses such as payment or statute of limitations. In
Burke, the court specifically found no laches on the wife's part in instituting the action.
A case quite similar to that before us is Griffin v. Griffin, 327 U.S. 220 (1945). Griffin
involved an action by the wife to enforce a foreign alimony judgment entered against the
husband without notice. The foreign judgment had consolidated arrearages due. The Supreme
Court found that the lack of notice violated due process and deprived the foreign court of
jurisdiction to enter the judgment against the husband. Id. at 228. The Supreme Court stated
that the laws of New York, the foreign jurisdiction, allowed a husband to modify arrearages
retroactively in a proceeding by the wife to docket a judgment for the accrued alimony. Id at
229. But the court also held that the husband was entitled to present any defense available to
him under the laws of the state. Id. at 230-31. The assertion of power by the New York court
to adjudicate the husband's liability and to direct enforcement by execution does not differ in
its nature and constitutional effect from the like assertion of power to issue execution by any
other judgment rendered without notice. Id. at 231. The judgment in New York, like
judgments in Nevada, authorized the immediate issuance of execution. Id. at 232. See NRS
125.180. The defenses available to the husband in Griffin were purported to be foreclosed by
the New York judgment.
Respondent attempts to distinguish Griffin with the recent California case of In re
Marriage of Wyshak, 138 Cal.Rptr.
96 Nev. 713, 717 (1980) Brown v. Brown
811 (Cal.App. 1977). But Wyshak involved the wife's enforcement action of arrearages by
way of a writ of execution. In addition, the enforcement did not involve a judgment of
another state. In California, a judgment for spousal support arrearages may be perfected
without a motioned hearing. Id. at 814. Nevertheless, a judgment debtor may seek relief from
a writ of execution after the fact of its issuance. Id. at 816-17. Upon a levy of real property,
notice requirements must be met before a sale and the debtor may move to quash the writ at
that point. In Wyshak, the husband did have a post-judgment execution hearing and an
opportunity to present any defenses he may have had to the issuance of the writ and the levy
made by petitioner. Id. at 817. Thus, at some time during the execution proceedings, a
defendant is allowed to present defenses available to him.
3

[Headnote 4]
In this case, the 1977 Idaho proceedings culminated in a judgment and were conducted
without notice to or appearance by appellant.
4
As a result of this deficiency, and to the extent
that Ronald was thus deprived of an opportunity to present defenses otherwise available to
him under the laws of Idaho against the entry of judgment for accrued child support, there
exists a want of in personam jurisdiction over appellant and hence, a lack of due process. It
follows that Nevada need not afford full faith and credit to the judgment. [D]ue process
requires that no other jurisdiction shall give effect, even as a matter of comity, to a judgment
acquired elsewhere without due process. Davidson & Company v. Allen, 89 Nev. 126, 129,
508 P.2d 6, 7 (1973), citing Griffin v. Griffin, 327 U.S at 229.
Because respondent now is attempting enforcement of the Idaho judgment in Nevada, our
district court should consider any defenses appellant would have available to him.
5
The
order granting summary judgment is reversed and the case remanded for further
proceedings consistent herewith.
____________________

3
This, apparently, is the same procedure required by Idaho law when a writ of execution is sought. Compare
Cal Civ. Pro. Code 684 (West 1980) with Idaho Code 11-104 (1979).

4
It is noteworthy that the judgment is dated the same day the application was filed with the Clerk of the Idaho
Court.

5
Upon remand, the trial court should allow respondent to amend her complaint to enforce arrearages under
the valid 1958 Idaho decree. See Griffin v. Griffin, 327 U.S. 220, 234-35 (1946). Appellant may then assert any
defenses which may be available to him, including a claim of bar under the statute of limitation and alleged
deprivation of visitation rights. The trial court must determine which forum law applies according to the facts of
the case and must determine the validity of claimed defenses.
96 Nev. 713, 718 (1980) Brown v. Brown
granting summary judgment is reversed and the case remanded for further proceedings
consistent herewith.
Mowbray, C. J., and Thompson and Batjer, JJ., and Zenoff, Sr. J.,
6
concur.
____________________

6
The Chief Justice designated The Hon. David Zenoff, Senior Justice, to sit in the place of The Hon. E. M.
Gunderson, Justice. Nev. Const. art. 6, 19; SCR 10.
____________
96 Nev. 718, 718 (1980) Public Emp. Ret. v. Washoe Co.
PUBLIC EMPLOYEES' RETIREMENT BOARD OF THE STATE OF NEVADA;
LEGISLATIVE COMMISSION OF THE STATE OF NEVADA, Appellants, v. WASHOE
COUNTY, NEVADA, a political Subdivision of the State of Nevada; WASHOE COUNTY
EMPLOYEES, Respondents.
No. 11719
September 5, 1980 615 P.2d 972
Appeal from judgment. Second Judicial District Court, Washoe County; John E. Gabrielli,
Judge.
Appeal was taken from a declaratory judgment rendered in the district court in favor of
public employees in their action for relief from a legislative amendment which removed
special investigators and university police from the definition of police officers who were
eligible for early retirement under the public employees' retirement system. The Supreme
Court, Batjer, J., held that: (1) the legislative amendment unreasonably and unnecessarily
deprived public employee of the right to become eligible for early retirement, and (2) the
Public Employee Retirement Board's inclusion of special investigators and university police
in the early retirement provision, prior to passage of the amendment, was within the Board's
delegated power, and thus the affected public employees who were hired before the effective
date of the amendment were eligible for early retirement.
Affirmed.
Robert R. Barengo, Reno, and Frank W. Daykin, Legislative Counsel, Carson City, for
Appellants.
Calvin R. X. Dunlap, District Attorney, Chauncey Griswold, Chief Civil Deputy District
Attorney, and David Kladney, Reno, for Respondents.
Public employment contracts are within ambit of constitutional clause prohibiting a state from passing a
law impairing obligation of contracts. Const.Art. 1, 15; U.S.C.A.Const. Art. 1, 10, cl. 3.
By rendering services and making contributions to a public employees' retirement system, employee
acquires a limited vested right to pension benefits which may not be eliminated or substantially changed by
unilateral action of the governmental employer to detriment of the member. NRS 286.010 et seq.
To be sustained as a reasonable modification of public employees' pension rights, the modification must
bear some material relationship to purpose of the pension system and its successful operation, and any
disadvantage to employees must be accompanied by comparable new advantages. NRS 286.010 et seq.
Statute which removed special investigators and university police from the definition of police officer
in public employees' retirement system, in which police officers and firemen were eligible to retire earlier
than other public employees, unreasonably and unnecessarily deprived existing investigators and university
police of the right to become eligible for early retirement, in that there was no evidence that the change was
essential to maintain the system's integrity or flexibility, and the fact that the affected employees would no
longer be required to pay an extra 0.5 percent contribution to the system was not comparable to the
disadvantage of a postponed retirement and thus statute could operate prospectively only. NRS 286.010
et seq., 286.061.
Inclusion by Public Employees' Retirement Board of special investigators and university police in the
early retirement provision of the system applicable to police officers, prior to enactment of statute by
Legislature which removed the investigators and university police from definition of police officer, was
within Board's delegated power to stipulate employee positions, within general categories, whose holders
are deemed police officers, and thus public employees in such categories who were hired before effective
dates of the legislative amendments were eligible for early retirement if they continued to contribute the
additional 0.5 percent mandated for police officers and completed the requisite number of years of
creditable service. NRS 286.010 et seq., 286.061, 286.061, subd. 2.
OPINION
In 1947, a public employees' retirement system (PERS) was established. Chapter 286.
Police officers and firemen are eligible to retire earlier than other public employees, NRS
286.S10,1 and, since 1971, their rate of contribution has been 0.5 percent higher than
that of other members of the system.
286.510,
1
and, since 1971, their rate of contribution has been 0.5 percent higher than that of
other members of the system. NRS 286.410(3), NRS 286.450(2).
Before 1975, police officer was not defined.
2
However, all of the
employee-respondents were treated as eligible for early retirement by the PERB, and all
employees made the requisite additional 0.5 percent contribution. In 1975, police officer
was defined to include members of the University of Nevada police department and special
investigators employed by the attorney general and by the district attorneys. 1975 Nev. Stats.
ch. 575 8, at 1028. At least until 1977, the PERB continued to include PSC inspectors,
parole counselors, and juvenile probation officers under the early retirement provision,
presumably pursuant to its power to stipulate employee positions in the enumerated
categories whose holders would be deemed police officers. NRS 286.061(2).
3

In 1977, the Legislature removed the investigators and university police from the
definition of police officer, effective July 1, 1977.
4
1977 Nev. Stats. ch. 594 11 at 1575. At
that point, Washoe County and its affected employees sought injunctive and declaratory
relief. They argued that the 1977 amendments were unconstitutional to the extent they
purported to remove existing employees from the early retirement provisions. The PERB and
the commission, as intervenor,
5
argued that unless and until an employee acquires a vested
right to the benefit of the PERS by completing 10 years of creditable service, he or she has
no protectible interest in early retirement.
____________________

1
NRS 286.510:
1. Except as provided in subsection 2, a member of the system is eligible to retire at age 60 if he has
at least 10 years of service, and at age 55 if he has at least 30 years of service.
2. A police officer or fireman is eligible to retire at age 55 if he has at least 10 years of service, and at
age 50 if he has at least 20 years of service.

2
Peace officer was defined in 1967, NRS 169.125, to include inspectors employed by the public service
commission, parole and probation officers, district attorney and attorney general special investigators, and
members of the University of Nevada police department. The employee-respondents in this case are employed in
those job categories. The 1971 act referred to peace officers in NRS 286.450 and police officers in NRS
286.410 in adding the 0.5 percent contribution.

3
NRS 286.061(2):
The board may, subject to statutory limitations, adopt regulations stipulating employee positions in
these categories whose holders shall be deemed police officers. Service in any position not enumerated
in this section does not entitle a member to early retirement as a police officer. (Emphasized portion was
added in 1977.)

4
Parole and probation officers of the department of parole and probation were eliminated from the definition
of police officer effective July 1, 1979. 1977 Nev. Stats. ch. 594 11.5 at 1576; 57 at 1603.

5
NRS 218.697(1):
When deemed necessary or advisable to protect the official interests of the legislature or one or more
legislative committees, the legislative commission
and until an employee acquires a vested right to the benefit of the PERS by completing 10
years of creditable service, he or she has no protectible interest in early retirement. NRS
286.6793.
Both parties moved for summary judgment. After a hearing, the district judge rendered a
declaratory judgment in favor of respondents. He concluded that the 1977 amendments could
operate only prospectively, to those employees hired after the effective date of the
amendments. We affirm.
[Headnote 1]
No state may pass a law impairing the obligation of contracts. U.S. Const., Art. 1 10;
Nev. Const. art. 1, 15. Public employment contracts are within the ambit of the contract
clause. Singer v. City of Topeka, 607 P.2d 467 (Kan. 1980).
[Headnote 2]
Appellants argue that before the vesting of an employee's right to receive pension benefits
or retire early, the Legislature may modify the terms and conditions of receiving such benefits
without impairing any contractual obligations. Historically, pension benefits were treated as
gratuities subject to alteration, amendment, and repeal without any constitutional
ramifications. See e.g., Dodge v. Board of Education, 302 U.S. 74 (1937). The modern and
better-reasoned view recognizes that employees accept their positions, perform their duties,
and contribute to the retirement fund in reliance upon the governmental employer's promise
to pay retirement benefits and permit early retirement if certain conditions are met. By
rendering services and making contributions, an employee acquires a limited vested right to
pension benefits which may not be eliminated or substantially changed by unilateral action of
the governmental employer to the detriment of the member.
6
Brazelton v. Kansas Public
Emp. Retirement System, 607 P.2d 510 (Kan. 1980); Singer, 607 P.2d at 473; Betts v. Bd. of
Admin. of Pub. Emp. Ret. System, 582 P.2d 614 (Cal. 1978); Taylor v. Multnomah Cty.
Deputy Sher. Retire. Bd., 510 P.2d 339 (Ore. 1973); Weaver v. Evans, 495 P.2d 639 (Wash.
1972); Hanson v. City of Idaho Falls, 446 P.2d 634 (Idaho 1968); Yeazell v. Copins, 402
P.2d 541 {Ariz.
____________________
may direct the legislative counsel and his staff to appear in, commence, prosecute, defend or intervene in
any action, suit, matter, cause or proceeding in any court or agency of this state or of the United States.

6
The limited vesting theory promotes the state policy and purpose underlying the PERS because it assures
employees that their reasonable expectations will be fulfilled by serving the requisite number of years, and that
the legislature cannot act to their disadvantage without introducing a commensurate advantage. See NRS
286.015(1)(c).
Copins, 402 P.2d 541 (Ariz. 1965) (no change without employee's consent). See generally, 3
McQuillan, Municipal Corporations, 12.144, at 609; 52 ALR2d 437 at 442.
[Headnote 3]
The limited vesting theory is premised on the principle that a pension is an element of
compensation and thus part of the employment contract. Betts, 582 P.2d at 617. A pension
right may not be destroyed without impairing the contractual obligation of the public
employer. However, prior to absolute vesting, pension rights are subject to reasonable
modification in order to keep the system flexible to meet changing conditions, and to
maintain the actuarial soundness of the system. Id.; Brazelton, 607 P.2d at 518; Allen v. City
of Long Beach, 287 P.2d 765 (Cal. 1955). To be sustained as reasonable, the modification
must bear some material relationship to the purpose of the pension system and its successful
operation; and any disadvantage to employees must be accompanied by comparable new
advantages. Singer, 607 P.2d at 475-476.
[Headnote 4]
In this case, the employee-respondents were deprived of the right to become eligible for
early retirement. The district court, applying the limited vesting theory, concluded that the
legislature acted unreasonably and unnecessarily, because there was no evidence that the
change was essential to maintain the system's integrity or flexibility. See Singer, 607 P.2d at
476; Glaeser v. City of Berkeley, 307 P.2d 61 (Cal.App. 1957). But cf. Eisenberger v. Police
Pension Com'n of Harrisburg, 162 A.2d 347 (Pa. 1960) (court assumed an increase in
retirement age enhanced actuarial soundness). In addition, the fact that the affected employees
would no longer be required to pay the extra 0.5 percent is not comparable to the
disadvantage of a postponed retirement.
[Headnote 5]
Having concluded that retroactive application of the 1977 amendments is unreasonable,
we turn to the question of who should be included in the class of people eligible for early
retirement. As noted above, all employee-respondents either were within the definition of
police officer before 1977, or were granted that status by the PERB. 1975 Nev. Stats. ch. 575
at 1028. An administrative construction that is within the language of the statute will not be
readily disturbed by the courts. Oliver v. Spitz, 76 Nev. 5, 348 P.2d 158 (1960). Here, the
PERB's inclusion of non-enumerated positions in the early retirement provision, prior to
1977, was within the PERB's delegated power to stipulate employee positions, within
general categories, whose holders are deemed police officers.7 Consequently,
employee-respondents, and those public employees similarly situated, who were hired
before the effective dates of the 1977 amendments, will be eligible for early retirement if
they continue to contribute the additional 0.5 percent and complete the requisite number
of years of creditable service.
delegated power to stipulate employee positions, within general categories, whose holders are
deemed police officers.
7
Consequently, employee-respondents, and those public employees
similarly situated, who were hired before the effective dates of the 1977 amendments, will be
eligible for early retirement if they continue to contribute the additional 0.5 percent and
complete the requisite number of years of creditable service.
____________________

7
See footnote 4.
____________
96 Nev. 723, 723 (1980) Apeceche v. White Pine Co.
MARIA APECECHE, Appellant, v. WHITE PINE
COUNTY, Respondent.
No. 11840
September 5, 1980 615 P.2d 975
Appeal from judgment. Seventh Judicial District Court, White Pine County; William P.
Beko, Judge.
The Equal Rights Commission determined that county engaged in unlawful employment
practice by discriminating against an employee because she was a Mexican national. The
district court reversed the administrative decision, and appeal was taken. The Supreme Court,
Batjer, J., held that substantial evidence supported finding of the Equal Rights Commission
that county's actions in cutting employee's wages and hours and subsequently discharging her
were not based upon articulated reason, but were based on fact that she was a Mexican
national.
Richard H. Bryan, Attorney General, and Samuel P. McMullen, Deputy Attorney General,
Carson City, for Appellant.
Robert J. Johnston, District Attorney, White Pine County, for Respondent.
1. Civil Rights.
In cases involving an employer's isolated decision to discharge of or to alter terms of employment of an
individual employee, focus of inquiry is whether employer is treating some people less
favorably than others because of their race, religion, sex or national origin.
is whether employer is treating some people less favorably than others because of their race, religion, sex
or national origin. NRS 613.330.
2. Civil Rights.
In employment discrimination action alleging unlawful discharge, employee carried initial burden of
establishing prima facie case of discrimination by proving that she was member of protected class, she was
qualified for job, she was satisfying job requirements, she was discharged, and that employer assigned
others to do same work; once prima facie case of discrimination was established, burden shifted to
employer to articulate some ligitimate, [legitimate,] nondiscriminatory reasons for actions. NRS
613.330.
3. Civil Rights.
Substantial evidence supported finding of the Equal Rights Commission that county's actions in cutting
employee's wages and hours and subsequently discharging her were not based upon articulated reason, but
were based on fact that she was a Mexican national. NRS 613.330.
OPINION
Maria Apeceche appeals from a judgment reversing an administrative decision of the
Nevada Equal Rights Commission (Commission). The Commission determined that White
Pine County (County) engaged in an unlawful employment practice, in violation of NRS
613.330, by discriminating against Apeceche because she is a Mexican national. The
Commission's decision is supported by substantial probative and reliable evidence; therefore,
we reverse the judgment of the district court and remand for reinstatement of the
Commission's order.
Maria Apeceche is a Mexican national legally residing in Ely, Nevada. In August, 1976,
she was hired by the county maintenance supervisor to work as a custodian in the Public
Safety Building. Sheriff Robison was to supervise her work. Apeceche's hours were 8:00 a.m.
to 5:00 p.m. and her salary was $550 per month.
In early 1977, the county commissioners ordered Sheriff Robison to reduce Apeceche's
hours to seven per day, to reduce her salary to $492 per month, and to schedule her on a night
shift. The county's purported reasons for the modifications in the terms and conditions of
Apeceche's employment were: (1) Commissioner Jones' wife, who worked at the Public
Safety Building, had once complained that Apeceche's vacuuming disturbed her; and (2)
Commissioner Jones planned to institute a uniform personnel system and equalize salaries for
similar jobs. Apeceche filed a complaint with the Commission based upon the change in her
hours and salary.
In late 1977, the county commissioners, at the instigation of Commissioner Jones, decided
to contract with a janitorial service to clean the Public Safety Building. The purported motive
was to save the County $176 per month. However, several witnesses testified that
Commissioner Jones had voiced his concern that Apeceche was an illegal alien, that she
could not read or write English, and that she was a security risk. Apeceche was the only
custodian affected by the new policy. She was terminated as of January 31, 1978.
1

Following an investigation of Apeceche's complaint, an administrative hearing was held in
Ely. The hearing officer concluded that Apeceche had established a prima facie case of
discrimination on the basis of national origin and that the County had failed to rebut the
inference of discrimination or to establish any bona fide nondiscriminatory motive. The
Commission affirmed the hearing officer's decision and ordered reinstatement and back pay.
2
The district judge reversed the administrative order on the ground that the substantial rights
of the County had been prejudiced because the administrative findings and conclusions were
clearly erroneous.. This appeal ensued.
When a decision of an administrative body is challenged, the function of this court is
identical to that of the district court. It is to review the evidence presented to the
administrative body and ascertain whether that body acted arbitrarily or capriciously, thus
abusing its discretion. Gandy v. State ex rel. Div. of Investigation, 96 Nev. 281, 607 P.2d
581 (1980). Judicial review is confined to the record before the agency. NRS 233B.140(4).
The court may not substitute its judgment for that of the agency as to the weight of the
evidence on questions of fact. NRS 233B.140(5). An agency decision may be reversed if
substantial rights of appellant have been prejudiced because the administrative findings,
inferences, conclusions or decisions are clearly erroneous in view of the reliable, probative
and substantial evidence on the whole record. NRS 233B.140(5)(e). However, if the record of
evidence supports the agency's determination, the court is bound to sustain the agency's
decision.
In this case, the district judge held that the Commission's determinations were clearly
erroneous. As discussed below, the judge appears to have substituted his judgment for that
of the Commission on factual questions, in violation of NRS 233B.140{5).
____________________

1
The County had experimented with contracting-out janitorial services in 1974. At that time, the affected
janitors were transferred to other positions. A janitor position was available in the county courthouse in January,
1978.

2
Apeceche was hired as a custodian in the county courthouse in mid-1978.
judge appears to have substituted his judgment for that of the Commission on factual
questions, in violation of NRS 233B.140(5).
NRS 613.330(1) is almost identical to 703(a)(1) of Title VII of the Civil Rights Act of
1964. (42 U.S.C. 2000e-2(a)(1)), and provides that
It is an unlawful employment practice for an employer:
(a) To fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions
or privileges of employment, because of such individual's race, color, religion, sex, age,
physical or visual handicap or national origin[.]
In this case, Apeceche complained that her wages and hours were cut, and that she was
discharged, because she is Mexican.
[Headnotes 1, 2]
In cases involving an employer's isolated decision to discharge or to alter the terms of
employment of an individual employee, the focus of the inquiry is whether the employer is
treating some people less favorable [favorably] than others because of their race, religion,
sex, or national origin. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The employee
carries the initial burden of establishing a prima facie case of discrimination by proving (1)
she is a member of a protected class, (2) she is qualified for the job, (3) she is satisfying the
job requirements, (4) she was discharged, and (5) the employer assigned others to do the same
work. Id. at 575; Kirby v. Colony Furniture Co., Inc., 613 F.2d 696 (8th Cir. 1980); Wright v.
National Archives & Records Service, 609 F.2d 702 (4th Cir. 1979); Flowers v.
Crouch-Walker Corp., 552 F.2d 1277 (7th Cir. 1977); see McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).
Apeceche met her burden of proof. Several witnesses testified that she is qualified for the
job and that she did her job well. Nevertheless, she was fired, and the County contracted-out
to do the same work. Other employees in similar circumstances were not treated as Apeceche
was. An inference arose that the County's actions were based on illegal discriminatory
criteria. That inference is not vitiated by the fact that the County employed other members of
minority groups. Flowers v. Crouch-Walker Corp., 552 F.2d at 1282.
Once a prima facie case of discrimination is established, the burden shifts to the employer
to articulate some legitimate, nondiscriminatory reason for its actions. Board of Trustees v.
Sweeney, 439 U.S. 24 (1978); Furnco Constr. Corp. v. Waters, 43S U.S. at 57S; McDonnell
Douglas Corp. v.
438 U.S. at 578; McDonnell Douglas Corp. v. Green, 411 U.S. at 802. Here, the County
justified its actions against Apeceche as necessary to implement a uniform personnel plan and
to save money.
[Headnote 3]
Apeceche introduced evidence to show that the proffered justifications were mere pretext.
No other janitors were subjected to the same treatment and there is no evidence that other
employees were affected by those two goals. The county commissioners were at a loss to
explain the disparate treatment. Because the true motivation for the action is a factual issue,
Id. at 801, and because there is substantial evidence to support the Commission's finding that
the County's actions were not based upon the articulated reasons, the inference of
discriminatory motivation remains unrebutted and the decision in favor of Apeceche must be
reinstated.
Accordingly, the judgment below is reversed and the case is remanded for proceedings
consistent with this opinion.
____________
96 Nev. 727, 727 (1980) Haws v. Haws
LEOLA CLAIR HAWS, Appellant, v. JESSE WILLIAM
HAWS, Respondent.
No. 10509
September 5, 1980 615 P.2d 978
Appeal from order denying a new trial, Second Judicial District Court, Washoe County;
John E. Gabrielli, Judge.
Proceeding was instituted on motion of wife for a new trial in dissolution matter on ground
that a California interlocutory judgment should have been given full faith and credit in
Nevada. The district court entered order denying a new trial, and wife appealed. The Supreme
Court, Batjer, J., held that alleged fraud by which wife obtained judgment in California
dissolution proceeding, namely, failure to inform California court of a letter in which she
allegedly agreed to a division of property, was intrinsic and, hence, was not a basis for relief
from judgment and a defense to full faith and credit where husband was not prevented from
knowing of his rights or from having an opportunity to appear and present them at trial.
James F. Sloan, Reno, for Appellant.
96 Nev. 727, 728 (1980) Haws v. Haws
Sinai, Ohlson, Schroeder, Specchio & Albright, Reno, for Respondent.
1. Divorce; Judgment.
An interlocutory judgment rendered by a California court having subject matter jurisdiction and personal
jurisdiction over both spouses is a final judgment entitled to full faith and credit except as to marital status.
2. Divorce.
Judgment which was entered by California court in dissolution matter and which awarded stock in
corporation to husband and gave each party half of husband's pension was entitled to the same faith and
credit in Nevada as it received in California. U.S.C.A.Const. Art. 4, 1.
3. Judgment.
Doctrine of res judicata bars relitigation in California between same parties of property rights that were
adjudicated in previous litigation.
4. Divorce.
Husband, who could have appeared in his wife's dissolution proceeding in California and argued his case,
but who chose not to do so, was barred by res judicata from relitigating property rights and support in
Nevada proceeding. U.S.C.A.Const. Art. 4, 1.
5. Judgment.
Extrinsic fraud is a basis for relief from judgment and a defense to full faith and credit; intrinsic fraud is
not. U.S.C.A.Const. Art. 4, 1.
6. Divorce.
Alleged fraud by which wife obtained judgment in California dissolution proceeding, namely, failure to
inform California court of a letter in which she allegedly agreed to a division of property, was intrinsic and,
hence, was not a basis for relief from judgment and a defense to full faith and credit where husband was not
prevented from knowing of his rights or from having an opportunity to appear and present them at trial.
U.S.C.A.Const. Art. 4, 1.
7. Divorce.
Division of community property was governed by California law where California was marital domicile
and wife's residence at time of dissolution. Cal.Civ.Code 5118.
OPINION
Leola and William Haws were married in 1939. From 1948 until 1973 they resided in
California. In 1971, Leola wrote a letter to William proposing a division of community
property. She told William he could keep all the proceeds from his United Airlines pension.
The couple did not separate until January, 1973, when William moved to Nevada.
On August 6, 1975, Leola commenced divorce proceedings in California. William was
personally served in California on October 8, 1975. He chose not to appear in the California
action.
96 Nev. 727, 729 (1980) Haws v. Haws
action. William had filed for a divorce in Nevada on October 6, 1975. Leola was personally
served in California on December 16, 1975. She did not appear in the Nevada action.
On October 22, 1975, the California court awarded temporary support of $1,100 per month
and attorney's fees of $2,000 to Leola. An interlocutory judgment of dissolution of marriage
was entered July 9, 1976. The judgment provided for spousal support of $1,500 per month
and an even division of community property. The California judge was not aware of Leola's
1971 letter.
1
No appeal was taken from the California judgment.
In Nevada, William obtained a default divorce on January 14, 1976. The judgment of
divorce did not divide the community, nor provide for spousal support. On June 3, 1976,
Leola moved to set aside the Nevada divorce. The parties stipulated to set aside the Nevada
judgment to the extent, if any, it adjudicated property rights and support. They further
stipulated that the Nevada court conduct an evidentiary hearing concerning community
property and support. A hearing was held on January 5, 1977.
In April, 1977, the district judge entered a judgment dividing the community assets
pursuant to the 1971 letter and awarding arrearages in support and attorney's fees pursuant to
the California temporary support order. Consequently, William was awarded all of his
pension benefits and Leola was awarded $4,400 for temporary support payments due before
the Nevada divorce and $2,000 for attorney's fees in addition to the other property she
received pursuant to the letter. The court denied permanent alimony.
Leola moved, pursuant to NRCP 59, for a new trial, contending that the California
interlocutory judgment should have been given full faith and credit in Nevada. Following a
hearing, her motion was denied and this appeal was taken.
[Headnotes 1, 2]
An interlocutory judgment rendered by a California court having subject matter
jurisdiction and personal jurisdiction over both spouses is a final judgment entitled to full
faith and credit, except as to marital status. Mizner v. Mizner, 84 Nev.
____________________

1
The major differences between the 1971 letter and the California judgment were that the letter allocated the
United Airlines stock to Leola and all of the pension to William, whereas the judgment awarded the United
Airlines stock to William and gave each party half of the pension. The California court was aware that William
was holding the stock as security for a $21,000 loan to Leola. Leola's debt was included in the California court's
calculation of an equal division of the community.
96 Nev. 727, 730 (1980) Haws v. Haws
268, 439 P.2d 679, cert. denied 393 U.S. 847, reh. denied 393 U.S. 972 (1968); Wilson v.
Superior Court, 189 P.2d 266 (Cal. 1948). The California court had jurisdiction, and its
judgment should be given the same faith and credit in Nevada as it would receive in
California. U.S. Const. art. IV, 1;
2
Fauntleroy v. Lum, 210 U.S. 230 (1908); Summers v.
Summers, 69 Nev. 83, 241 P.2d 1097 (1952).
[Headnotes 3, 4]
In California, the doctrine of res judicata bars relitigation between the same parties of
property rights that were adjudicated in previous litigation. Sutphin v. Speik, 99 P.2d 652
(Cal. 1940); Henn v. Henn, 605 P.2d 10 (Cal. 1980). Cf. Kraemer v. Kraemer, 79 Nev. 287,
382 P.2d 394 (1963) (alimony); Wicker v. Wicker, 85 Nev. 141, 451 P.2d 715 (1969)
(Wisconsin judgment). William could have appeared in California and argued his case. He
chose not to do so. Res judicata should have precluded relitigation of property rights and
support in Nevada.
However, William argues that the California judgment was procured by fraud and,
therefore, is not entitled to full faith and credit. The alleged fraud was Leola's failure to
inform the California court of the 1971 letter.
[Headnotes 5, 6]
Extrinsic fraud is a basis for relief from judgment and a defense to full faith and credit;
intrinsic fraud is not. Colby v. Colby, 78 Nev. 150, 369 P.2d 1019, cert. denied 371 U.S. 888
(1962); In re Marriage of Carletti, 126 Cal.Rptr. 1 (Cal.App. 1975). In this case, the fraud, if
any, was intrinsic because William was not prevented from knowing of his rights or from
having an opportunity to appear and present them at trial. McCarroll v. McCarroll, 96 Nev.
455, 611 P.2d 205 (1980); Muscelli v. Muscelli, 96 Nev. 41, 604 P.2d 1237 (1980); Colby, 78
Nev. at 153. William voluntarily chose not to appear in the California action after he was
served. He was the recipient of the 1971 letter and could have introduced the letter himself.
He did not appeal the California judgment or move within six months to set it aside. He is
bound by the California judgment.
3
Boeseke v. Boeseke, 519 P.2d 161 (Cal. 1974); Carletti,
126 Cal.Rptr. at 4.
____________________

2
Art. IV, 1: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial
Proceedings of every other State.

3
Although neither party refers to it, NRCP 60(d) is the only conceivable basis for this action. NRCP 60(d)
states: During oral argument, Leola's counsel indicated that Leola sought an adjudication of
property rights in Nevada because she believed William's real estate purchases in Nevada,
following their separation, were community property.
Whenever a default judgment or decree has been entered, the party or parties in default therein may at
any time thereafter, upon written consent
96 Nev. 727, 731 (1980) Haws v. Haws
During oral argument, Leola's counsel indicated that Leola sought an adjudication of
property rights in Nevada because she believed William's real estate purchases in Nevada,
following their separation, were community property.
[Headnote 7]
The division of the community property is governed by California law because California
was the marital domicile and Leola's residence at the time of the dissolution. California Civil
Code 5118 provides that earnings and accumulations of a spouse following separation are
classified as separate property. Therefore, after separating from Leola in 1973, William's
acquisitions were his separate property.
The California interlocutory judgment was a full and final adjudication of the parties'
community property. Accordingly, the order is reversed and the case is remanded with
instructions to give full faith and credit to the California judgment.
____________________
of the party or parties in whose favor judgment or decree has been entered, enter general appearance in
the action, and the general appearance so entered shall have the same force and effect as if entered at the
proper time prior to the rendition of the judgment or decree. On such appearance being entered the court
may make and enter a modified judgment or decree to the extent only of showing such general
appearance on the part of the party or parties in default, and it shall be entered nunc pro tunc as of the
date of the original judgment or decree; provided, however, that nothing herein contained shall prevent
the court from modifying such judgment or decree as stipulated and agreed in writing by the parties to
such action, and in accordance with the terms of such written stipulation and agreement.
An order pursuant to NRCP 60(d) only has the effect of modifying the earlier judgment to reflect a general
appearance by the defaulting party. See e.g., Chusid v. Chusid, 142 N.Y.S.2d 846 (Sup.Ct. 1955); Zeitlan v.
Zeitlan, 298 N.Y.S.2d 816 (App.Div. 1966). Further modification is barred by res judicata unless it is in
accordance with the terms of a written stipulation or agreement by the parties. In this case, the district judge
clearly exceeded the permissible scope of a judgment entered nunc pro tunc.
____________
96 Nev. 732, 732 (1980) Clark Co. Bd. Comm'rs v. Taggart Constr.
CLARK COUNTY BOARD OF COMMISSIONERS, THALIA DONDERO, DAVID
CANTER, SAM BOWLER, ROBERT BROADBENT, MANUEL CORTEZ, and JACK
PETITTI, Appellants, v. TAGGART CONSTRUCTION CO., INC., d/b/a W.M.K. TRANSIT
MIX, and GULF OIL CORPORATION, Respondents.
No. 11418
September 5, 1980 615 P.2d 965
Appeal from declaratory judgment, Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Property owner filed declaratory judgment action seeking reversal of determination of
county planning department denying its application for permission to make certain capital
improvements under an existing variance. The district court concluded that the zoning
variance did include the new uses asserted by property owners, and county appealed. The
Supreme Court, Manoukian, J., held that: (1) the district court erred in making independent
determination of breadth of variance, and (2) original variance was not intended to include
asphalt mixing plant or maintenance shop, and therefore, order allowing construction of such
facilities was improper.
Reversed.
[Rehearing denied December 9, 1980]
Torvinen, D. J., dissented in part.
Robert J. Miller, District Attorney, and Victor W. Priebe, Deputy District Attorney, Clark
Morse-Foley, Las Vegas, for Respondents.
1. Zoning and Planning.
District court erred in making independent determination that breadth of zoning variance included asphalt
mixing plant and a maintenance building in that its province was confined to review of record of evidence
presented to county board of commissioners and county planning department, with its primary focus on
variance itself.
County board of commissioners and county planning department did not abuse their discretion in refusing
to grant building permit for asphalt mixing plant even though property owner had variance allowing for
mining and crushing of gravel, construction and maintenance of rock crusher and concrete plant.
Variance is designed to authorize specific use of property in manner otherwise proscribed.
Because variance affords relief from literal enforcement of zoning ordinance, it will be strictly construed
to limit relief to minimum variance which is sufficient to relieve hardship.
In order to determine scope of variance, Supreme Court must consider both representations of applicant
and intent of language of variance at time it was issued.
Where property owner's application for original variance was silent as to either asphalt mixing plant or
maintenance shop, requested expansion to include such plant and maintenance shop was not within scope
of variance granted for mining and crushing of gravel, and to maintain rock crusher and ready-mix concrete
plant.
Zoning restrictions must be balanced against right of property owner to develop his property to his own
economic advantage.
Where property owner itself did not believe that variance allowing use of property for mining and
crushing of gravel, to maintain rock crusher and ready-mix concrete plant included requested uses of either
asphalt mixing plant or maintenance shop, and allowing such activities would substantially exceed scope of
those intended by original variance, there was no basis for judicial interference with decision of county
board of commissioners and county planning department denying variance for construction of asphalt
mixing plant and maintenance shop.
OPINION
This is an appeal from a declaratory judgment entered by the district court, reversing a
determination of the Clark County Planning Department denying respondents' application for
permission to make certain capital improvements and expand business activities under an
existing variance on respondent W.M.K.'s real property. The sole issue before us is whether
the trial court erred in concluding that the zoning variance included the uses asserted by
respondents. We hold that the trial court did err.
Respondent, W.M.K., owns approximately 160 acres of real property on the alluvial ledge
of the Charleston Range just west of Las Vegas in Clark County. The property has been
zoned RE (residential) since 1947 and continued to be so zoned at all times relevant hereto. In
1965, W.M.K. applied for a zoning reclassification from RE to M2 (industrial) for the mining
and crushing of gravel, the construction and maintenance of a rock crusher, together with a
ready-mix concrete plant. The request for a zoning change was denied; however, the Board
of County Commissioners approved W.M.K.'s request as a variance for a term of five
years.
for a zoning change was denied; however, the Board of County Commissioners approved
W.M.K.'s request as a variance for a term of five years. When the variance expired, W.M.K.
sought and received a permanent variance consistent with the scope of the variance granted in
1965. The trial court found this to be a continuation of the original 1965 variance without a
time limitation.
In the early 1970's, respondent Industrial Asphalt, a division of Gulf Oil Corporation,
entered into a lease agreement with W.M.K. Under the terms of the agreement, Industrial
Asphalt would construct a mixing plant for asphalt paving provided W.M.K. could obtain a
variance or conditional use permit, believed by both parties to be necessary. Between March
1973 and May 1975, W.M.K. filed five applications for permission to build an asphalt mixing
plant, all of which were denied by the appellant Board of County Commissioners. It was only
when these requests were denied that W.M.K. sought a building permit under an expanded
interpretation of the original variance. Nevertheless, the Clark County Planning Department,
an arm of the County Commission, denied respondents building permit for an asphalt mixing
plant because the property was still zoned RE (residential). Similarly, in December of 1976,
the Planning Department denied W.M.K.'s request for a building permit for an equipment
maintenance shop because of the property's RE zoning status.
In granting the declaratory judgment in favor of W.M.K., the trial court ruled that their
variance included permissible and reasonable and necessary additions or enlargements to the
original use that the property was put to under the variance. The variance was found to
include an asphalt plant and a maintenance shop. The trial court accordingly concluded that
W.M.K. was entitled to the building permits.
[Headnotes 1, 2]
The district court conducted the equivalent of a trial de novo. It made an independent
determination that the breadth of the variance included an asphalt mixing plant and a
maintenance building. The court erred in doing so. Its province was confined to a review of
the record of evidence presented to the Clark County Board of Commissioners and the
Planning Department, with its primary focus on the variance itself. Lapinski v. City of Reno,
95 Nev. 898, 901, 603 P.2d 1088, 1090 (1979); Bartlett v. Board of Trustees, 92 Nev. 347,
350, 550 P.2d 416, 417 (1976); Urban Renewal Agcy. v. Iacometti, 79 Nev. 113, 117-20, 379
P.2d 466, 468-69 (1963). We must review the variance and related proceedings before the
commission, and in doing so, determine whether the district court abused its discretion by
substituting its judgment for that of the zoning tribunals.
review the variance and related proceedings before the commission, and in doing so,
determine whether the district court abused its discretion by substituting its judgment for that
of the zoning tribunals. Urban Renewal Agcy. v. Iacometti, 79 Nev. at 118-20, 379 P.2d at
468-69. We have reviewed both the commission and district court proceedings and we find
and so hold that neither the commission nor the planning department abused their discretion.
[Headnotes 3-5]
A variance is designed to authorize a specific use of property in a manner otherwise
proscribed. Because a variance affords relief from the literal enforcement of a zoning
ordinance, it will be strictly construed to limit relief to the minimum variance which is
sufficient to relieve the hardship. Hazel v. Metropolitan Development Comm'n, 289 N.E.2d
308, 313 (Ind. 1972); Board of Adjustment v. Ruble, 193 N.W.2d 497, 503 (Iowa 1972); 3 R.
Anderson, American Law of Zoning 18.84, at 352 (2d ed. 1977). It should not be construed
to include a generic class of uses, or a list of uses.
1
Anderson, supra, 18.71, at 328. In
order to determine the scope of the variance, we must consider both the representations of the
applicant and the intent of the language in the variance at the time that it was issued. See
Town of Rye v. Ciborowski, 276 A.2d 482, 485-86 (N. H. 1971).
[Headnote 6]
The variance which W.M.K. acquired in 1965, and which was made permanent in 1970,
was for the mining and crushing of gravel, and to maintain a rock crusher and ready-mix
concrete plant. Respondents' application for the original variance was silent as to either an
asphalt mixing plant or a maintenance shop, and there was no mention of such uses in
W.M.K.'s letter to the Planning Commission prior to the Commission's approval of the
permanent variance. Nor does the variance include language which would allow permissible,
necessary and reasonable additions, as found by the court below. It appears clear that the
requested expansion of W.M.K.'s business to include an asphalt plant and a maintenance shop
were not uses within the scope of the variances granted, because such uses were not
expressed or anticipated at the time the variances were granted.
____________________

1
During oral argument, counsel for respondents stated that we must assume that the variance includes by
implication all M-2 11(b) uses under Chapter XXI of Clark County ordinance 61.M-2 11(b) permits the
following uses: Central Mixing Plant for cement, mortar, plaster or paving materials (ready-mix plant).
Respondent has cited no relevant authority in support of this allegation, and we have found none. We are not
inclined to make overbroad a variance which is clear and unambiguous on its face.
granted, because such uses were not expressed or anticipated at the time the variances were
granted. See Dahar v. Dept. of Bldgs., 352 A.2d 404, 405 (N. H. 1976); Frankel v. C.
Burwell, Inc., 226 A.2d 748, 751-52 (N.J. 1967).
[Headnotes 7, 8]
Zoning is an instrument by which governmental bodies can more effectively accommodate
the needs and demands of our growing society. Coronet Homes, Inc. v. McKenzie, 84 Nev.
250, 255, 439 P.2d 219, 223 (1968). Nevertheless, the zoning restrictions must be balanced
against the right of a property owner to develop his property to his own economic advantage.
It is for this reason that zoning plans, no matter how sophisticated they may be, generally
contain, as here, some procedures for granting variances, amendments, special use permits, or
exemptions for specific uses of specific parcels of property. Even so, we find nothing present
which would provide a basis for judicial interference with administrative prerogatives.
2
It is
clear that W.M.K. itself did not believe that the variance included the requested uses, as
evidenced by its repeated efforts to obtain either a zoning reclassification or broader variance.
It is equally obvious that if the request for enlargements of the existing variance were granted,
the activities would substantially exceed the scope of those intended by the variance. In
giving deference to the planning process, we subscribe to the view that variances will be
strictly construed.
Respondents remaining contentions are without merit. We reverse the judgment of the
lower court.
Thompson and Batjer, JJ., and Zenoff, Sr. J.,
3
concur.
Torvinen, D. J.,
1
dissenting in part:
I respectfully dissent as to a part of the majority opinion.
____________________

2
During the trial proceedings, respondents produced considerable evidence concerning the quality of gravel
on the site, the existence of several other similar businesses in the general locale, one with an asphalt paving
plant, and the economics of competition with the other asphalt plant, as well as arguable governmental benefits
in the context of governmental bidding. This evidence is not relevant to the issue of whether the contemplated
uses transcended the scope of the existing variance. See Urban Renewal Agcy. v. Iacometti, 79 Nev. at 118, 379
P.2d at 468.

3
Honorable E. M. Gunderson, Justice. Nev. Const., art. 6, 19; SCR 10.

1
The Governor designated the Honorable Roy Torvinen, Judge of the Second Judicial District Court, to sit in
the place of The Honorable John Mowbray, Chief Justice, who was disqualified. Nev. Const. art. 6, 4.
Respondent W.M.K. Transit Mix obtained a permanent variance from the Board of County
Commissioners of Clark County, for the mining and crushing of gravel, and to construct and
maintain rock crusher and ready-mix concrete plant, . . .. W.M.K. made an application for a
building permit to construct a mixing plant for paving material. The application was referred
to the Planning Department of Clark County which rejected the permit application. Thereafter
W.M.K. applied for a building permit to construct a shop building on the premises to be used
for maintenance and repair operations on the mechanical equipment and machinery located
on the premises. The building permit for the shop building was also denied. Respondents
brought an action in the district court for declaratory judgment. They claim they are entitled
to building permits because the variance authorized those uses.
The trial court, in its findings of fact, stated:
That the variance was permanent and included permissible and reasonable and
necessary additions or enlargements to the original use that the property was put to
under the variance and the court specifically declares that the use of the property is
limited to central mixing plant for cement, mortar, plaster, and paving material
ready-mix plant. This includes an asphalt paving material plant.
The trial court also stated in the findings of fact:
That the building for the maintenance, repair, and housing and storage of equipment is
a logical extension of the use which would include buildings as are reasonably
necessary and incident to the operation of the use to which the property is put. The
plaintiffs are entitled to a building permit for the shop building.
The majority opinion states that the district court conducted the equivalent of a trial de
novo and made its own independent determination of the breadth of the variance. I take that
to mean that, in effect, the trial court reheard the variance application and ordered a change in
the terms of the variance.
As to the mixing plant, I respectfully disagree with that conclusion. The trial court was
asked to interpret the meaning of the language of the 1965 variance and determine whether or
not within that language the respondent was entitled to a building permit. To interpret the
meaning of the wording of a variance is a proper use of the declaratory judgment action.
Although there are other extraneous words in the findings of fact by the trial court, in
effect the trial court found that the words "ready-mix concrete plant" included an asphalt
mixing plant.
words ready-mix concrete plant included an asphalt mixing plant. Concrete may not
necessarily mean a paving mixture made with portland cement but may also include asphalt
or bituminous concrete. Appeal of H. R. Miller Co., 281 A.2d 364 (Pa. 1971).
Findings of fact of the trial court should not be set aside unless clearly erroneous. NRCP
52(a); McMillan v. Torre, 84 Nev. 556, 445 P.2d 160 (1968). A trial court's construction of
an agreement supported by substantial evidence will not be disturbed on appeal. Fox v. First
Western Savings, 86 Nev. 469, 470 P.2d 424 (1970). Here the trial court, after hearing the
evidence, interpreted the variance language ready-mix concrete plant as including an
asphalt mixing plant. If there is some evidence in the record to support it, such a finding is
not clearly erroneous as a matter of law and the trial court should be upheld.
The shop maintenance building is another matter however. I agree with the majority
opinion holding that variances granted from zoning ordinances are to be strictly construed.
The variance makes no mention of any shop or maintenance building and if the variance is to
be strictly construed, adding the shop and maintenance building goes beyond the specifics of
the variance by adding an additional use. Such a finding goes beyond the authority of the
court to interpret the words of the variance. Therefore, I join with the majority in reversing
the judgment of the lower court in that respect.
____________
96 Nev. 738, 738 (1980) Taylor v. Silva
JOHN TAYLOR and RUTH TAYLOR, Appellants, v. WILLIAM SILVA, KELLY HIATT
and A & K EARTHMOVERS, a Nevada Corporation, Respondents.
No. 10632
September 5, 1980 615 P.2d 970
Appeal from judgment and from order denying new trial. Third Judicial District Court,
Churchill County; Howard D. McKibben, Judge.
Suit was brought against earthmoving company to recover for personal injuries sustained
by an automobile driver when earthmover turned right, hitting the front left fender of the
driver's car and throwing her across the inside of her car. After trial, a jury returned a special
verdict finding that defendants were negligent but that their negligence was not the
proximate cause of the driver's injuries.
were negligent but that their negligence was not the proximate cause of the driver's injuries.
Plaintiff's motion for a new trial or for judgment notwithstanding the verdict was denied by
the District court and appeal was taken. The Supreme Court, Batjer, J., held that under all the
circumstances including the fact that there was no intervening force between the defendants'
negligence and the collision, the jury could not have found an absence of proximate cause if it
correctly applied the law and, therefore, a new trial was required.
Gary C. Backus, Reno, for Appellants.
Diehl, Recanzone & Evans, Fallon, for Respondents.
1. New Trial.
The trial court is obligated to grant a new trial if the jurors could not have reached the verdict that they
reached if they had properly applied the court's instruction on proximate cause. NRCP 59(a)(5).
Where injured automobile driver argued at trial that earthmovers were negligent in failing to signal a turn
and in failing to equip the earthmover with turn signals and a rearview mirror as well as in omitting to look
before turning and where driver who was following earthmover would have been forewarned that
earthmover was going to turn right if earthmover had signaled or if there had been an escort car and driver
of earthmover would have noticed automobile's presence if he had looked and it appeared that failure to
take such precautions was substantial factor in bringing about accident in which earthmover hit front left
fender of automobile injuring driver, jury could not have found that earthmover was negligent but that the
negligence was not the proximate cause of the driver's injuries if the jury had correctly applied the law and
therefore, a new trial was required. NRCP 59(a)(5).
3. Negligence.
A negligent defendant is responsible for all foreseeable consequences proximately caused by his or her
negligent act.
4. Negligence.
Contributing fault on the part of the plaintiff, though it could reduce recovery under the doctrine of
comparative negligence, does not negate a finding that defendants' negligence was a proximate cause of
plaintiff's injuries. NRS 41.141, subd. 1.
OPINION
John and Ruth Taylor appeal from a judgment in favor of respondents, William Silva,
Kelly Hiatt, and A & K Earthmovers, and from an order denying their motion for a judgment
notwithstanding verdict or a new trial. We agree with the Taylors that the judgment must be
reversed and the case remanded for a new trial on the ground that the jury exhibited a
manifest disregard for the jury instructions.
Taylors that the judgment must be reversed and the case remanded for a new trial on the
ground that the jury exhibited a manifest disregard for the jury instructions.
This litigation stems from an accident that occurred in Fallon, Nevada, on October 1,
1975. Mrs. Taylor was driving eastbound on Williams Street, following an earthmover owned
by A & K Earthmovers and driven by Silva.
1
The earthmover straddled both eastbound
lanes. As the vehicles approached the intersection of Williams and Taylor Streets, the traffic
signal turned red. Believing that the earthmover would continue on Williams, Mrs. Taylor
drove her car to the right of the earthmover, in what would have been a parking lane but for
the red curb, and prepared to turn right onto Taylor Street. As she was about to turn, the
earthmover turned right, hitting the front left fender of Mrs. Taylor's car. Mrs. Taylor was
thrown across the inside of her car and suffered neck injuries.
The Taylors filed an action for damages against respondents. Following a jury trial, the
jury returned a special verdict finding that respondents were negligent, but that their
negligence was not the proximate cause of Mrs. Taylor's injuries. Appellants' motion for a
new trial or judgment notwithstanding verdict was denied and this appeal ensued.
[Headnote 1]
A new trial may be granted if there was [m]anifest disregard by the jury of the
instructions of the court. NRCP 59(a)(5). Therefore, if the jurors could not have reached the
verdict that they reached if they had properly applied the court's instruction on proximate
cause, then the district court was obligated to grant a new trial. Price v. Sinnott, 85 Nev. 600,
460 P.2d 837 (1969); see also Groomes v. Fox, 96 Nev. 457, 611 P.2d 208 (1980); Shere v.
Davis, 95 Nev. 491, 596 P.2d 499 (1979); Eikelberger v. Tolotti, 94 Nev. 58, 574 P.2d 277
(1978).
[Headnote 2]
In this case, the jury found that respondents were negligent, but that respondents'
negligence was not the proximate cause of Mrs. Taylor's injuries. During the trial, appellants
argued that respondents negligently failed to signal the turn, to equip the earthmover with turn
signals, to look before turning, to equip the earthmover with a rearview mirror, and to have an
escort car. A finding of negligence on any of the alleged grounds would require a finding of
actual causation. Mrs. Taylor would have been forewarned of Silva's intent to turn if Silva
had signaled or if there had been an escort car.
____________________

1
Kelly Hiatt was Silva's employer.
Silva had signaled or if there had been an escort car. Silva would have been aware of Mrs.
Taylor's presence if he had looked. Failure to take such precautions was a substantial factor in
bringing about the accident and injuries. According to Mrs. Taylor's unrefuted testimony, she
was in perfect physical health prior to the accident. Cf. Fox v. Cusick, 91 Nev. 218, 523 P.2d
466 (1975) (pre-existing back condition).
[Headnotes 3, 4]
Proximate cause is any cause which in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury complained of and without which the result
would not have occurred. Mahan v. Hafen, 76 Nev. 220, 225, 351 P.2d 617, 620 (1960);
Drummond v. Mid-West Growers, 91 Nev. 698, 542 P.2d 198 (1975). A negligent defendant
is responsible for all foreseeable consequences proximately caused by his or her negligent act.
See e.g., Price, supra; Nevada Transfer & Warehouse Co. v. Peterson, 60 Nev. 90, 99 P.2d
633 (1940). There was no intervening force between respondents' negligence and the
collision. The type of harm was foreseeable. Contributing fault, if any, on Mrs. Taylor's part
could reduce her recovery under the doctrine of comparative negligence, but does not negate a
finding that respondents' negligence was a proximate cause of her injuries. The jury was
adequately instructed on the concept of proximate cause.
2
If the jury had correctly applied
the law, it could not have found an absence of proximate cause.
3
Consequently, the case is
remanded for a new trial.
In light of our disposition of this case, we decline to address the other issues raised on
appeal.
____________________

2
Instruction No. 22:
The term proximate cause means a cause which, in a direct unbroken sequence, produces the damage
complained of, and without which the damage would not have occurred. Negligence is the proximate cause of
the damage when the damage is the natural or probable result of the negligence. Such negligence need not be the
only cause, but it must be one of them, and such as might have been reasonably foreseen as leading to damage of
the general nature claimed in this case.

3
A general verdict in favor of respondents may be correct if, for example, Mrs. Taylor's negligence was
greater than respondents' negligence, NRS 41.141(1). It is possible that the jury disregarded or did not
understand the difference between proximate cause and comparative negligence.
____________
96 Nev. 742, 742 (1980) Shults v. State
LAWRENCE LEE SHULTS, Appellant, v. THE STATE
No. 10848
September 5, 1980 616 P.2d 388
Appeal from judgment of conviction for murder in the first degree, Eighth Judicial District
Court, Clark County; Michael J. Wendell, Judge.
Defendant was convicted in district court of murder in first degree, and defendant
appealed. The Supreme Court, Manoukian, J., held that: (1) testimony by officers regarding
fact that defendant's wife had engaged in conversations with them did not violate marital
privilege statute; (2) trial court did not abuse its discretion in determining that fact that
defendant planned robbery, gave orders, and actually carried out robbery was relevant to
demonstrating motive in killing of murder victim who cooperated with police in implicating
defendant in robbery; (3) instruction that evidence of escape could be considered by jury in
light of all other proven facts and that whether this evidence indicated consciousness of guilt
was left for their determination was sufficient; and (4) admission of hearsay statements of
murder victim constituted error but error did not affect substantial rights of defendant.
Affirmed.
Morgan D. Harris, Public Defender, and Terrence Jackson, Deputy Public Defender,
James Tufteland and Gregory C. Diamond, Deputy District Attorneys, Clark County, for
Respondent.
1. Witnesses.
Where wife of criminal defendant was not witness at trial for murder, she was not actually examined as
witness for or against her husband for purposes of applying marital privilege statute. NRS 49.295, subd.
1.
2. Witnesses.
Where, from testimony of police officers regarding existence of conversation with defendant's wife in
prosecution of defendant for murder in first degree, it was impossible to determine whether defendant's
wife made statement as to location of murder victim's body, whether she was present during burial of
victim, whether others in addition to defendant were present at burial scene, or whether, in fact,
confidentiality as to location of victim's body was contemplated, no violation of marital privilege statute
existed in admission of testimony. NRS 49.295, subd. 1.
3. Criminal Law.
Out-of-court statements by wife of criminal defendant would be inadmissible hearsay if offered for truth
of matter asserted.
4. Criminal Law.
Admission of testimony of police officers regarding fact that they had conversation with defendant's wife
was not violative of hearsay rule where, after testifying that conversation with defendant's wife took place,
officers simply testified as to what occurred thereafter, not to out-of-court statements to wife, and officers
were subject to cross-examination as to existence of these facts.
5. Criminal Law.
Evidence of other crimes or bad acts is inadmissible to prove character of person in order to show he
acted in conformity with such character, but such evidence is admissible if relevant for some purpose other
than to show accused's criminal character and probability that he committed crime. NRS 48.045, subd. 2.
6. Criminal Law.
Evidence of other crimes or bad acts in criminal prosecution must be limited according to prejudicial
effect. NRS 48.035.
7. Criminal Law.
When evidence of prior crimes is relevant and admissible in criminal prosecution, trial court should
cautiously weigh probative value against bias or prejudice to defendant likely to result.
8. Criminal Law.
Although prosecution is entitled to present full and accurate account of circumstances surrounding crime,
evidence must be relevant and necessary in presentation of case, especially when evidence implicates
defendant in commission of other crimes or only tends to prove bad character.
9. Criminal Law.
Decision of which evidence will be allowed to show motive of defendant under prosecution for murder,
balancing prejudice and probative value of such evidence, is addressed to sound discretion of trial court.
NRS 48.035.
10. Homicide.
Trial court did not abuse its discretion in determining that fact that defendant planned robbery, gave
orders, and actually carried out crime was relevant to demonstrating motive of defendant for murdering
cohort in robbery, for implicating defendant in crime, even though motive could have been established by
showing that robbery was committed, that murder victim cooperated with police in implicating defendant in
robbery, and that defendant was aware of murder victim's cooperation.
11. Criminal Law.
Instructions to jury in prosecution for murder that evidence of escape could be considered in light of all
other proven facts in deciding guilt, and that whether such evidence indicated consciousness of guilt was
left for jury determination, was sufficient in view of argument by defense counsel in closing that defendant
had been in jail for robbery conviction at time of alleged murder.
12. Criminal Law.
Where evidence of escape by criminal defendant suggests that defendant may not have committed alleged
crime because he had been in jail at time crime was alleged to have been committed, better practice in
instructing jury would be to include reference to fact that defendant was in custody on other charges if such
is properly proven fact.
13. Homicide.
Admission of statements, in prosecution for murder, that victim had said that he was afraid that if he told
on defendant on robbery, that defendant would kill him, and that somebody was going to waste him,
was error where such hearsay statements of victim were not corroborated, but error did not affect
substantial rights of defendant. NRS 48.064 (Repealed), 177.255.
14. Witnesses.
In prosecution for murder, witnesses, whose testimony regarding hearsay statements of murder victim
required corroboration under statute, could not corroborate each other, in light of real danger of
unreliability and due to fact that victim's statement of his fear of defendant was so injurious. NRS 48.064
(Repealed).
15. Criminal Law.
Hearsay statements as to murder victim's fear of defendant for implicating defendant in robbery did not
fall within statutory state of mind hearsay exception where victim's state of mind was not in issue since
defendant was not claiming self-defense, accidental death or suicide, and, as such, statements had little
relevancy except toward providing strong inference of defendant's intent, actions or culpability. NRS
51.105, subd 1.
16. Criminal Law.
In order for state of mind exception to hearsay rule to be applicable to hearsay statements regarding
murder victim's fear of defendant, victim's state of mind must be relevant issue, relevance must be weighed
against prejudice, and proper limiting instruction must be given or objectionable testimony deleted. NRS
51.105, subd. 1.
17. Criminal Law.
Although defendant offered no limiting instruction as to hearsay statements of murder victim regarding
fear of defendant, potential damage incidental to testimony in prosecution of defendant for murder and fact
that objection was made against admission of such statements in evidence warranted consideration of issue
of admission as plain error. NRS 178.602.
OPINION
On January 3, 1978, a jury found appellant guilty of murder in the first degree. Thereafter,
the trial judge sentenced him to life without the possibility of parole. The evidence is not
challenged as insufficient. In this appeal, appellant contends that the trial court erred: (1) by
allowing admission of testimony of a peace officer as to conversations with appellant's wife;
(2) by admitting evidence of details of a robbery by appellant; (3) by admitting evidence of
escapes by appellant; and (4) by admitting hearsay statements of the victim. We affirm.
On October 21, 1975, the decomposed body of a white male adult was discovered in a
shallow rock-covered grave off of state highway 52 near Las Vegas. Appellant was indicted
by a grand jury for the murder of William Harvey Singley and, in October of 1976, was
extradited from Colorado where he was serving a twenty-year sentence for armed
robbery.
October of 1976, was extradited from Colorado where he was serving a twenty-year sentence
for armed robbery.
At trial, a Detective Aldrich of Colorado Springs testified that, in May of 1975, appellant
Shults and his wife, Norma, had been arrested along with Singley and a George Janicek for
the robbery of a Montgomery Ward store in Colorado. During appellant's preliminary hearing
in Colorado, appellant learned that the victim in this case, William Singley, was the source of
information regarding particular details about the robbery. Approximately one month later, on
July 17, 1975, Singley agreed to testify at appellant's trial on the robbery charge in exchange
for a reduced charge to which he pled guilty.
1
Detective Aldrich then testified that on
October 20, 1975, he met with his division chief and with Norma Shults in Colorado. After
this meeting, Aldrich placed a telephone call to the Las Vegas Metropolitan Police
Department at which time he informed Lieutenant Avants that he had information that there
was a homicide victim located in the desert near Mt. Charleston.
Colorado Springs Detective Andrew Smit testified as to his May 17, 1975 interview with
Singley. Detective Smit was told by Singley that he was afraid that appellant would kill him if
Singley provided information in connection with appellant's involvement in the Montgomery
Ward robbery. Another witness, Robert Howard, testified that in late July of 1975 the victim,
William Singley, acted worried about something. The witness stated that Singley was afraid
that someone was going to waste him although he did not say who. The witness then stated
that he had loaned his 1974 blue Pinto to the victim. The vehicle was not returned and the
witness never saw Singley again. In the latter part of August, Howard received information
that his car was in Las Vegas. Over the labor day weekend, Howard retrieved his automobile
and discovered that a blanket was missing, as well as the blue carpet which had covered the
spare tire compartment. Shotgun shells were found in the back of the car. Howard then
identified the blanket which had been found around the victim as the one missing from his
car.
Several witnesses testified that appellant had admitted killing Singley. One witness,
Edmund Friedrich, testified that he had been told by appellant that appellant had shot the
victim twice and then buried him in a rock grave. Appellant stated that he had returned to the
grave shortly thereafter to make sure that the body was buried. Vickie Ritter testified that
appellant had told her that he had killed Singley and that Janicek was next. Mary Kay Fuller
testified that she had talked to appellant just after the fourth of July in 1975.
____________________

1
Singley did not testify at the robbery trial.
after the fourth of July in 1975. At the time, appellant stated that he was mad at Singley and
Janicek because they were going to testify against appellant as to the robbery. In late July,
Ms. Fuller saw appellant and the victim together. On this occasion, Ms. Fuller loaned her
pickup to the two men in exchange for a blue Pinto the two men had been driving. The pickup
contained a .12 gauge shotgun belonging to Ms. Fuller's husband. The next day, on July 29,
Ms. Fuller had reacquired possession of her pickup and noticed that the shotgun was missing.
Ms. Fuller asked appellant where the shotgun was and appellant said, Don't worry about it,
it's out in Nevada. Appellant said it was too hot to bring back at that time. When Ms.
Fuller asked about the victim, appellant said, Don't worry about it, you'll never see him
again.
A resident police officer of the Mt. Charleston area near Las Vegas testified that, in
October of 1975, he had spoken with Mrs. Shults who was in Colorado Springs. Without
testifying as to what Mrs. Shults had told him, Officer Woodworth stated that he subsequently
went to a desert area and discovered the victim's grave.
The Clark County Coroner testified that he had concluded from an examination of the
remains that death had resulted from a shotgun wound to the head of the victim and that there
had also been a wound in the left shoulder. A Colorado dentist had testified that he had
extracted a tooth from the victim in April of 1975. Subsequent medical testimony matched
the dental cavity of the body discovered in the desert with that of Singley.
1. The Marital Privilege and Hearsay Claims.
Colorado Springs Detective Aldrich testified that he talked with Norma Shults. He then
called Las Vegas police informing them that he had information regarding a homicide victim
and directed Las Vegas police to a location he had been given. Officer Woodworth testified
that he talked with Norma Shults by telephone and consequently directed the search for the
body to a different area. Aldrich stated that he listened to Norma Shults as she talked to
Officer Woodworth. At trial neither officer testified as to the content of Mrs. Shults'
statement.
[Headnotes 1, 2]
In Nevada, a wife cannot be examined as a witness for or against her husband without
the consent of the husband nor can a wife be examined without the consent of the husband
as to any communication made by one to the other during marriage. NRS 49.295(1).
Appellant contends that the testimony by the officers violated the marital privilege statute.
We first note that appellant's wife was not a witness at trial.
note that appellant's wife was not a witness at trial. Thus, she was not actually examined as
contemplated by the statute. See Metz v. State, 262 A.2d 331, 333-34 (Md.App. 1970).
Moreover, we cannot say that the testimony by the officers revealed any privileged
communication between appellant and his wife. On this record, it is impossible to determine
whether Mrs. Shults made a statement as to the body's location, whether she was present
during the burial, whether others in addition to appellant were present at the scene, or
whether, in fact, confidentiality was contemplated. It would be mere speculation to say that
she acquired what knowledge she had from a communication with appellant. We do not find
a violation of the marital privilege statutes.
2
Compare Deutscher v. State, 95 Nev. 669, 601
P.2d 407 (1979) (testimony by officer as to comments by appellant's wife did not violate
privilege) and Grundstrom v. State, 456 S.W.2d 92 (Tex.Crim.App. 1970) (wife did not
testify as to a communication by giving physical evidence to police in response to question by
officer) with State v. Suits, 251 S.E.2d 607 (N.C. 1979) (officer could not testify as to wife's
conduct in response to questions asked of her).
[Headnote 3]
Appellant next contends that the testimony by the officers improperly circumvented the
hearsay rule. Of course, out of court statements by appellant's wife would be inadmissible
hearsay if offered for the truth of the matter asserted. Deutscher v. State, 95 Nev. at 683-84,
601 P.2d at 417. Although the officers revealed no statements made by Mrs. Shults, appellant
argues that the inference was that she told the officers that she knew where the body was and
that appellant placed it there or had some connection with it. The state asserts that the results
of the conversation with Mrs. Shults were not offered to prove the truth of any matter but
only to explain the conduct of the searchers.
[Headnote 4]
Here, the officers did not reveal any particular statements made by Mrs. Shults. The results
of the conversation with appellant's wife were offered only to explain the resulting conduct of
the police. After testifying that a conversation took place, the witnesses simply testified as to
what occurred thereafter, not to out of court statements of another. The witnesses were
subject to cross-examination as to the existence of these facts.
____________________

2
We are not prepared to expand the marital privilege beyond the language of the statute and thereby exclude
what may be relevant evidence. See Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906 (1980).
facts. Such is not violative of the hearsay rule. Enlow v. United States, 239 F.2d 887, 890
(10th Cir. 1957).
2. The Details of the Robbery.
[Headnotes 5, 6]
The general rule with regard to character evidence is that evidence of other crimes or bad
acts is inadmissible to prove the character of a person in order to show he acted in conformity
with such character. NRS 48.045(2). But such evidence is admissible if relevant for some
purpose other than to show an accused's criminal character and the probability that he
committed the crime. McMichael v. State, 94 Nev. 184, 188, 577 P.2d 398, 400 (1978).
Motive, intent, plan, and identity are some of the objectives for which such evidence may be
admitted. NRS 48.045(2). This evidence must nevertheless be limited according to prejudicial
effect. NRS 48.035.
Detective Aldrich testified that the victim had cooperated and implicated himself and
appellant in the Colorado robbery. This was used to establish appellant's motive for the
subsequent killing. Aldrich was then allowed to testify as to the details of the robbery. The
state was permitted to show that appellant planned the robbery, gave orders and divided the
money. The state argues that because this case is wholly circumstantial, it was important to
show motive and therefore the details of the robbery. Bails v. State, 92 Nev. 95, 99, 545 P.2d
1155, 1157-58 (1976).
[Headnote 7]
Evidence of other crimes committed by a criminal defendant is generally excluded due to
its highly prejudicial effect. A defendant should not have to defend against charges for which
he is not on trial. See People v. Schader, 457 P.2d 841, 847-48 (Cal. 1969). Thus, when
evidence of prior crimes is relevant and admissible, the trial court should cautiously weigh
the probative value against the bias or prejudice likely to result. McMichael v. State, 94 Nev.
at 190, 577 P.2d at 401-02. It is for this reason that we have held that, although a witness may
be impeached with evidence of prior convictions, NRS 50.595, [t]he details and
circumstances of the prior crimes are, of course, not appropriate subjects of inquiry. Plunkett
v. State, 84 Nev. 145, 147, 437 P.2d 92, 93 (1968). In most instances, this rule should be
applied to character evidence.
[Headnotes 8-10]
We have also held that the prosecution is entitled to present a full and accurate account
of the circumstances surrounding a crime. Dutton v. State, 94 Nev. 461, 464, 581 P.2d 856,
S5S {197S).
858 (1978). Nevertheless, the evidence must be relevant and necessary in the presentation of
the case, especially when the evidence implicates the defendant in the commission of other
crimes or only tends to prove a bad character. In the present case, although motive could have
been established by showing that the robbery was committed, that the victim cooperated with
the police in implicating appellant, and that appellant was aware of the victim's cooperation,
the trial court determined that the fact that appellant planned the robbery, gave the orders, and
actually carried out the crime was relevant to demonstrating motive. The trial court carefully
scrutinized the evidence it allowed to show motive, and balanced prejudice and probative
value, a decision addressed to its sound discretion. NRS 48.035. There was no abuse of
discretion.
3. Evidence of Escapes of Appellant.
Appellant contends that the trial court erred in admitting evidence of appellant's escapes. A
correctional officer, Elbert Crowe, testified that appellant escaped from the county jail on
April 16, 1977. Agent John Kazystyniak of the FBI had previously testified that appellant was
apprehended in New York on May 11, 1977 after the escape. Appellant admitted the fact of
his escape to the agent. Finally, a Las Vegas Police Officer testified that appellant was also
apprehended on November 4, 1977. There was no direct evidence that appellant had escaped
a second time although this was the inference. The contention here is that an inference of
guilt on the murder charge could not be drawn as appellant was in jail on a robbery conviction
and was facing a burglary charge. Appellant concedes that flight is admissible as an
indication of consciousness of guilt. Edwards v. State, 90 Nev. 255, 260, 524 P.2d 328, 332
(1974); Williams v. State, 85 Nev. 169, 175, 451 P.2d 848, 852 (1969). And a majority of
jurisdictions have held that, provided the jury is properly instructed, evidence of flight may be
taken into consideration even though two or more charges are pending. See People v.
Nieman, 232 N.E.2d 805 (Ill.App. 1967); State v. Tyler, 306 S.W.2d 452 (Mo. 1957); People
v. Yazum, 196 N.E.2d 263 (N. Y. 1963).
[Headnotes 11, 12]
The jury was properly instructed that evidence of escape may be considered by you in the
light of all other proven facts in deciding guilt and that whether this indicated consciousness
of guilt was left for their determination. Appellant contends that the court should have
instructed the jury that other facts would include whether or not he was in custody on
another charge. Considering the fact that counsel for appellant argued in closing that
appellant had been in jail for the robbery conviction, we believe that the instruction given
was sufficient.
robbery conviction, we believe that the instruction given was sufficient. Nevertheless, we
conclude that the better practice would be to include a reference to the fact that a defendant
was in custody on other charges if that is a properly proven fact. On this record, we perceive
no error.
4. Admission of Statements by the Victim.
Detective Smit testified during redirect examination as to statements made to him by the
victim, Singley. Singley had said that he was afraid that if he told on [appellant] on the
Montgomery Ward robbery, that [appellant] would kill him. Robert Howard later testified
that, on an outing with Singley, Howard was told by Singley that somebody was going to
waste him.
[Headnote 13]
The trial court permitted Smit's testimony stating that defense counsel had opened the door
as to fear by the victim. But the fear to which defense counsel had alluded regarded Singley's
fear about being a witness in a case in Virginia. The state had not objected to the testimony.
The trial court allowed Howard's testimony stating that there was sufficient corroboration of
the conversation under NRS 48.064.
3
The admission of these statements constituted error.
This court has allowed hearsay statements of a victim in a criminal case when such
statements were corroborated under NRS 48.064. Bails v. State, 92 Nev. at 100, 545 P.2d at
1158. But there the victim had mentioned a two-dollar bill collection, appellant was seen with
two such bills on the day of the homicide, and the victim's collection and failure to place it in
a safe deposit box was corroborated by other witnesses. In the instant case, the hearsay
testimony relates to the victim's fear of appellant and the state argues that each statement
independently corroborates the other thereby making them admissible under NRS 48.064. We
cannot agree.
[Headnote 14]
We have recently held that, in a pandering prosecution under NRS 201.300, [w]itnesses
whose testimony requires corroboration may not corroborate each other. Sheriff v. Gordon,
96 Nev. 205, 206, 606 P.2d 533, 534 (1980). In that case, the victim's testimony required
corroboration under NRS 175.301 and the accomplice's testimony required corroboration
under NRS 175.291.
____________________

3
At the time of trial, NRS 48.064 provided, Transactions or conversations with or actions of a deceased
person are admissible if supported by corroborative evidence. This statute has been repealed. 1979 Nev. Stats.
ch. 134, at 198.
NRS 175.291. We believe that a similar holding is required in the present case where there is
a real danger of unreliability and due to the fact that a victim's statement of his fear of a
defendant is so injurious.
[Headnotes 15-17]
Moreover, the state of mind hearsay exception under NRS 51.105(1) gives no solace to the
state. First, the victim's state of mind was not in issue. Appellant was not claiming
self-defense, accidental death or suicide. As such, the statement had little relevancy except
toward providing the strong inference of appellant's intent, actions or culpability. See United
States v. Brown, 490 F.2d 758, 766 (D.C.Cir. 1974). In order for the state of mind exception
to be applicable, the victim's state of mind must be a relevant issue, the relevance must be
weighed against prejudice, and a proper limiting instruction must be given or objectionable
testimony deleted. Id. at 773-78. See People v. Lew, 441 P.2d 942 (Cal. 1968). Although
appellant offered no limiting instruction, the potential damage incidental to the testimony and
the fact that an objection was made warrant our consideration of the issue as plain error. NRS
178.602. Although the trial court erred in receiving this evidence, the evidence of guilt in the
instant case is incredibly strong. Indeed, it is overwhelming. See Abram v. State, 95 Nev. 352,
356, 594 P.2d 1143, 1145 (1979). We conclude that the error in admitting the complained of
declarations did not effect the substantial rights of the appellant. See NRS 177.255.
The remaining contentions are without merit. The judgment of the district court is
affirmed.
____________
96 Nev. 751, 751 (1980) Ledbetter v. Springer
ALFORD H. LEDBETTER, Appellant, v. PAULINA L. SPRINGER, Administrator
of the Estate of HANNAH LUELLA WEAVER, aka HANNAH LUELLA
LEDBETTER, Respondent.
No. 11176
September 9, 1980 616 P.2d 394
Appeal from judgment of dismissal, Third Judicial District Court, Churchill County;
Stanley A. Smart, Judge.
Action was brought to recover trailer house and three acres of land from a decedent's
estate. The district court dismissed the action after it became apparent that plaintiff had
purchased the property and placed it in decedent's name to evade potential creditors'
claims, and plaintiff appealed.
the property and placed it in decedent's name to evade potential creditors' claims, and plaintiff
appealed. The Supreme Court held that dismissing the action, without permitting a full trial
so as to allow admission of evidence in regard to significance, if any, of absence of
noncomplaining creditors and absence of parties not participating in the transaction, was
error.
Smith & Gamble, Ltd., and Samuel Wardle, Carson City, for Appellant.
Diehl, Recanzone & Evans, Fallon, for Respondent.
Pretrial Procedure.
In action to recover trailer house and three acres of land from a decedent's estate, dismissing the action,
on basis of fact that plaintiff had apparently purchased such property and placed it in decedent's name to
evade potential creditors' claims, without permitting a full trial so as to allow admission of evidence in
regard to significance, if any, of the absence of noncomplaining creditors from the action and the absence
of parties who did not participate in the transaction was error. NRCP 41(b).
OPINION
Per Curiam:
Appeal is taken from a judgment of dismissal pursuant to NRCP 41(b). Appellant filed an
action to recover a trailer house and three acres of land from the estate of Hannah Weaver. At
trial, when it became apparent that appellant had purchased the property and placed it it
Hannah's name to evade potential creditors' claims, the trial judge granted respondent's
motion to dismiss.
The creditors appellant apparently intended to escape did not in fact materialize, one, his
wife, and the other a judgment creditor. He was living with Hannah Weaver while separated
from his wife and divorce proceedings were pending in California. He and wife settled their
property interests amicably and divorced. From his division of the proceeds of the sale of one
of their properties he purchased the property here.
The judgment creditor's claim was reduced from $15,000 and settled for $2,500, which
Ledbetter paid.
Hannah was killed in an automobile accident while the property was still in her name. The
action here is not one brought by a complaining creditor nor by a party to the purportedly
fraudulent transaction. The trial judge placed complete reliance on Allison v. Hagan, 12 Nev.
3S
reliance on Allison v. Hagan, 12 Nev. 38 (1877), without permitting a full trial or evidence
other than Ledbetter's recognition that he bought the property in Hannah's name, thinking it
was the safe thing to do. The aborted trial therefore deprives this court of a complete record
that would reflect the significance, if any, of the absence of non-complaining creditors, the
absence of parties who did not participate in the transaction and possibly other considerations.
We reverse and remand.
1
and Guy, D. J.,
2
concur.
____________________

1
The Chief Justice designated Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable E. M. Gunderson, Nev. Const. art. 6, 19; SCR 10.

2
The Governor, pursuant to art. 6, 4, of the Constitution, designated Judge Addeliar D. Guy of the Eighth
Judicial District Court to sit in the stead of Mr. Justice Batjer.
____________
96 Nev. 753, 753 (1980) Barnett v. State
TIMOTHY MICHAEL BARNETT, Appellant, v. THE
No. 11016
September 10, 1980 616 P.2d 1107
Paul S. Goldman, Judge.
Defendant was convicted in the district court of possession of stolen property, and he
appealed. The Supreme Court, Gunderson, J., held that giving of instruction declaring
unexplained possession of recently stolen property to be evidence that possessor knew it was
stolen and also to be sufficient to convict him of crime charged was reversible error.
Criminal Law; Receiving Stolen Goods.
In prosecution for possession of stolen property, giving instruction that unexplained possession of
recently stolen property was evidence that possessor knew it was stolen and also was sufficient to convict
him of crime charged was reversible error in that it did not merely instruct jury that
possession of recently stolen property is a circumstance tending to justify an
inference of knowledge nor direct jury to weigh circumstance of possession of
recently stolen property with other evidence in reaching of verdict, and thus the
instruction effectively relieved prosecution of its burden of proof on an essential
element of the crime.
crime charged was reversible error in that it did not merely instruct jury that possession of recently stolen
property is a circumstance tending to justify an inference of knowledge nor direct jury to weigh
circumstance of possession of recently stolen property with other evidence in reaching of verdict, and thus
the instruction effectively relieved prosecution of its burden of proof on an essential element of the crime.
NRS 205.275.
OPINION
A jury convicted appellant of possession of stolen property, a violation of NRS 205.275.
1

On May 8, 1977, police officers recovered a stolen 19-inch color television set from Gloria
Phillips. Witnesses testified that it was stolen from Jon Ridgeway's apartment on May 8, at
approximately 3:30 p.m. Phillips testified that appellant offered to sell her a color television
set about 3:00 p.m., approximately thirty minutes prior to the Ridgeway burglary. Appellant
delivered Ridgeway's television set to Phillips about 5:30 p.m. the same day.
Over appellant's objection, the court gave the following instruction:
Instruction No. 7:
The recent unexplained possession of stolen property is evidence of the fact that the
possessor of said property knew that it was stolen. The elements of this presumption are
the property must be stolen, must be in the possession of the Defendant, the possession
must be recent, and it must be otherwise unexplained. This may be sufficient to convict
in the absence of other facts and circumstances which leave a reasonable doubt in the
minds of the Jury.
Appellant contends that giving the instruction was reversible error. We agree. Cf. Hollis v.
State, 96 Nev. 207, 606 P.2d 534 (1980). NRS 47.230(2) commands that a judge shall not
direct the jury to find a presumed fact against an accused and NRS 47.230{3) expressly
provides that instructions dealing with presumptions against the accused must be in
permissive terms. Id.
In our view, Instruction No.
____________________

1
NRS 205.275 provides in material part:
205.275 Receiving, possessing, withholding stolen goods: Penalty; prima facie evidence.
1. Every person who, for his own gain, or to prevent the owner from again possessing his property,
buys, receives, possesses or withholds stolen goods, or anything the stealing of which is declared to be
larceny, or property obtained by robbery, burglary or embezzlement:
(a) Knowing that the goods or property were so obtained; or
(b) Under such circumstances as should have caused a reasonable man to know that such goods or
property were so obtained, shall be punished. . .
the jury to find a presumed fact against an accused and NRS 47.230(3) expressly provides
that instructions dealing with presumptions against the accused must be in permissive terms.
Id.
In our view, Instruction No. 7 impermissibly declared unexplained possession of recently
stolen property to be evidence that the possessor knew it was stolen, and also to be sufficient
to convict him of the crime charged. The instruction does not merely instruct the jury that
possession of recently stolen property is a circumstance tending to justify an inference of
knowledge, nor does it direct the jury to weigh the circumstance of possession of recently
stolen property with other evidence in reaching a verdict. No other instruction cured these
deficiencies. The appellant argues, and we agree, that the instruction effectively relieved the
prosecution of its burden of proof on an essential element of the crime and, therefore, reversal
is required. Id.
In view of our disposition of the case, we need not consider appellant's contention that
Instruction No. 7 violated constitutional due process. State v. Plunkett, 62 Nev. 265, 149 P.2d
101 (1944).
Inasmuch as the case is remanded for new trial, other claimed errors need not necessarily
recur and we do not choose to discuss them, except to note that it was not improper to allow
the pawnbroker's testimony as to value. See Cleveland v. State, 85 Nev. 635, 461 P.2d 408
(1969).
____________
96 Nev. 755, 755 (1980) Rusling v. State
MATTHEW N. RUSLING, Appellant, v. THE STATE
No. 11029
September 10, 1980 616 P.2d 1108
John F. Mendoza, Judge.
Defendant was convicted before the district court of burglary, and he appealed. The
Supreme Court, Gunderson, J., held that: (1) defendant had effective aid in preparation and
trial of his case; (2) trial court did not abuse its discretion in admitting proof of other burglary
convictions by defendant; and {3) dismissal of action was not required for failure of police
to impound hammer and screwdriver found at scene.
and (3) dismissal of action was not required for failure of police to impound hammer and
screwdriver found at scene.
Affirmed.
1. Criminal Law.
Defense counsel's admitted error in misinterpreting statute concerning impeachment by evidence of
convictions as only pertaining to convictions that occurred within the previous ten years did not vitiate his
advice to defendant to take witness stand where it was a practical necessity that defendant, who was inside
bar with burglar alarm ringing, who attempted to evade police, and who had bar owner's bait money in his
possession, take stand, and thus defendant had effective aid in preparation of trial of his case despite
counsel's misinterpretation of statute. NRS 50.095; U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Trial court in burglary prosecution did not abuse its discretion in admitting prior burglary convictions
which were not too remote. NRS 50.095.
3. Criminal Law.
In light of tenuous connection that screwdriver had to burglary, and in light of fact that police
identification officer found no prints on hammer and screwdriver, dismissal of burglary action was not
required for failure of police to impound hammer and screwdriver allegedly held by defendant at scene on
theory that independent examiner might have found latent prints on screwdriver, or might have determined
that user had worn gloves.
4. Criminal Law.
Even if testimony showing that defendant had ample resources and therefore no motivation to commit
crime of burglary was relevant, trial court could properly have determined its value to be substantially
outweighed by danger of confusion of issues and by consideration of undue delay or waste of time, and
thus did not abuse its discretion in excluding such testimony. NRS 48.035, subds. 1, 2.
OPINION
A jury convicted appellant of burglary. On appeal, appellant contends: (1) that he was
denied effective assistance of counsel; (2) that the trial court erred in denying his motion to
dismiss for failure of police to preserve evidence; and (3) that the trial court erred in refusing
certain evidence proffered by the appellant, in admitting certain convictions to impeach
appellant, and in overruling a challenge to the district attorney's pleadings.
and in overruling a challenge to the district attorney's pleadings. We find no error and affirm.
Police officers responded to a silent alarm in a Las Vegas bar in the early morning hours.
Appellant exited the back door toward a waiting police officer. The officer testified appellant
held a hammer and screwdriver. An identification officer, satisfied that there were no
fingerprints on the hammer and screwdriver, left the tools with the bar owner, who claimed
them. Officers discovered the front door glass had been broken and saw pails of quarters from
the bar's slot machines and pinball machines on the bar floor. Two dollar bills, marked by the
bar owner as bait money and kept in the bar, were found after police arrested appellant.
At trial, appellant explained to the jury that he was in the neighborhood on an errand.
Seeing the bar door broken, he entered the bar. When he heard the police cars approach, he
took a hammer and broke the padlock on the back door to exit. He also testified that he had
been previously convicted of burglary. On cross-examination, the prosecutor brought out that
appellant had additional burglary convictions. On redirect, appellant explained that, in
testifying to only one conviction, he had relied on what his trial counsel had told him, i.e.,
that he need not reveal the other burglary convictions. Following the trial, trial counsel
admitted that he had misread the applicable statute.
1
Counsel erroneously believed that only
convictions occurring within the previous ten years would be admissible.
1. Appellant claims that his trial counsel's misinterpretation of NRS 50.095 deprived
appellant of effective assistance of counsel and requires reversal. Cf. People v. Ibarra, 386
P.2d 487 (Cal. 1963). Appellant claims that had trial counsel properly advised him, he would
have exercised his right to remain silent to keep the convictions from the jury.
[Headnote 1]
The presumption is that counsel has fully discharged his duties. Warden v. Lischko, 90
Nev. 221, 523 P.2d 6 (1974). We do not find strong and convincing proof to the contrary,
as is required by our cases.
____________________

1
Applicable portions of the statute provide:
50.095 Impeachment by evidence of conviction of crime.
1. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a
crime is admissible but only if the crime was punishable by death or imprisonment in excess of 1 year
under the law under which he was convicted.
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.
do not find strong and convincing proof to the contrary, as is required by our cases. See e.g.
Smithart v. State, 86 Nev. 925, 478 P.2d 576 (1970). Effective counsel does not mean
errorless counsel, but rather counsel whose assistance is [w]ithin the range of competence
demanded of attorneys in criminal cases. Jackson v. Warden, 91 Nev. 430, 537 P.2d 473
(1975). To this end, we have recognized that a primary requirement is that counsel conduct
careful factual and legal investigations and inquiries with a view to developing matters of
defense in order that he may make informed decisions on his client's behalf both at the
pleading stage and at trial. Id. We do not believe that counsel's admitted error vitiated
counsel's advice to his client to take the witness stand. It was a practical necessity. Appellant
was inside the bar with the burglar alarm ringing; he attempted to evade the police rather than
explain; and, he had the bar owner's bait money in his possession. After review of the record,
we are satisfied that appellant had effective aid in the preparation and trial of his case. Cf.
People v. Steger, 546 P.2d 665 (Cal. 1976) (generally, single lapse of skill on counsel's part
will not result in denial of a fair trial).
[Headnote 2]
2. Appellant appeals the trial court's decision to allow proof of other burglary convictions,
alleging that the trial court abused its discretion in admitting those convictions. We have
considered similar arguments. See e.g., Yates v. State, 95 Nev. 446, 596 P.2d 239 (1979);
Anderson v. State, 92 Nev. 21, 544 P.2d 1200 (1976); and Edwards v. State, 90 Nev. 255,
524 P.2d 328 (1974). Whether to admit or exclude such evidence is a determination which
rests in the sound discretion of the trial court. The convictions were not too remote, and,
unlike other evidence codes, the Nevada Evidence Code does not restrict the type of felony
which may be used. We find no abuse of discretion.
[Headnote 3]
3. Appellant also contends that the action should have been dismissed for failure of police
to impound the hammer and screwdriver found at the scene. In Boggs v. State, 95 Nev. 911,
604 P.2d 107 (1979), we held that the defendant must show that it could be reasonably
anticipated that the evidence sought would be exculpatory and material to appellant's defense.
It is not sufficient that the showing disclose a hoped-for conclusion from examination of the
evidence, nor is it sufficient for the defendant to show only that examination of such evidence
would be helpful in preparing his defense. Id. The appellant contends that an independent
examiner might have found latent prints on the screwdriver, or might have determined
that the user had worn gloves.
appellant contends that an independent examiner might have found latent prints on the
screwdriver, or might have determined that the user had worn gloves. In light of the tenuous
connection that the screwdriver had to the crime, and in light of the fact that the police
identification officer had found no prints, we hold that the trial court's denial of appellant's
motion to dismiss was proper.
[Headnote 4]
4. The trial court excluded testimony from appellant's college dean, and from his wife,
offered to show he had ample resources and therefore no motivation to commit the crime. We
decline, however, to require that every trial must include an inquiry into the defendant's
affluence, and into the arguable consequences of the defendant's financial condition upon his
or her criminal propensities. Assuming the proffered evidence to have been relevant, we think
the trial court could properly determine its value to be substantially outweighed by the danger
of confusion of issues, NRS 48.035(1), and by considerations of undue delay or waste of
time, NRS 48.035(2). We find no abuse of discretion.
Other contentions of error are without merit.
Affirmed.
____________
96 Nev. 759, 759 (1980) Kramer v. Kramer
JEROME P. KRAMER, Appellant, v. FRANCES D.
KRAMER, Respondent.
No. 11930
September 11, 1980 616 P.2d 395
Appeal from an order. Eighth Judicial District Court, Clark County; Keith C. Hayes,
Judge.
Former husband appealed from order of the district court modifying distribution of
community property established in divorce decree. The Supreme Court, Batjer, J., held that:
(1) rule establishing six-month period to seek relief from a judgment or order on ground of
mistake, etc., governs motions to modify property rights established by divorce decrees, and
(2) wife's motion was untimely where filed three years after decree was entered,
notwithstanding that husband's opposition was not timely filed.
Reversed.
R. Steven Young, Las Vegas, for Appellant.
Rogers, Monsey, Woodbury & Berggreen, and Douglas G. Crosby, Las Vegas, for
Respondent.
1. Divorce.
Absent specific authorization for continuing jurisdiction over property rights, statute granting six-month
period in which to seek relief from a judgment or order on ground of mistake, etc., governs motions to
modify rights established by divorce decrees. NRS 125.150, subds. 5, 6; NRCP 60(b).
2. Divorce.
Wife's motion to modify distribution of community property established in a divorce decree was untimely
where filed three years after the decree was entered. NRS 125.150, subds. 5, 6; NRCP 60(b).
3. Divorce.
Divorce decree, in all respects, except as to custody and support of minor children, became unmodifiable
six months after the decree was entered. NRS 125.140, 125.140, subd. 2, 125.150, subds. 5, 6; NRCP
60(b).
4. Divorce.
Fact that former husband's opposition to wife's motion to modify distribution of community property
established in divorce decree was not timely filed could not procedurally supply the district court with
jurisdiction that was substantively lacking, in that wife's motion also was untimely. NRS 125.150, subds.
5, 6; NRCP 60

(b).
OPINION
Jerome Kramer appeals from an order modifying the distribution of community property
established in a divorce decree entered in January, 1976. He contends that the district judge
lacked jurisdiction to modify the judgment entered three years before the motion to modify.
We agree and reverse.
In 1973, respondent, Frances Kramer, filed for divorce from Jerome. Thereafter, a
reconciliation was attempted and the parties stipulated to dismiss the divorce action. As part
of the reconciliation, Jerome quitclaimed his interest in the Monterey Street property to
Frances. Frances quitclaimed her interest in the Spring Mountain property to Jerome and
his mother as joint tenants. The reconciliation attempt failed, and Frances filed for divorce on
July 8, 1975.
A divorce decree was entered July 21, 1975, awarding the Monterey property to Frances
and the Spring Mountain property to Jerome. However, on January 2, 1976, the
aforementioned distribution of property was altered in a modified divorce decree wherein
both pieces of property were adjudicated to be community property and owned equally by
Frances and Jerome as tenants in common.
Three years later, on March 6, 1979, Frances filed a motion to modify the modified decree
on the ground of intrinsic fraud. The opposition to modify the modified decree was not timely
filed pursuant to the Rules of Practice, Eighth Judicial District Court, State of Nevada, Rule
2.3. Jerome failed to file his response within ten days after service of the motion on March 9,
1979.
1
As a result, the district court ruled that Jerome had waived his right to object to the
motion, and awarded his interest in the Spring Mountain property to Frances.
Jerome contends that NRCP 60(b) governs the motion to modify the modified decree
regarding property distributions. NRCP 60(b) requires that such motion be filed within six
months after the decree was entered.
2
Jerome argues that because Frances filed the motion to
modify three years after the decree was entered, the district court was without jurisdiction to
modify the divorce decree concerning property distributions. We agree.
A decree of divorce cannot be modified or set aside except as provided by rule or statute.
Lam v. Lam, 86 Nev. 908, 478 P.2d 146 {1970).
____________________

1
Rules of Practice, Eighth Judicial District Court, State of Nevada, Rule 2.3 Motions; contents; responses
and replies.
(a) All motions shall contain a notice of motion setting the same for hearing on a day when the judge
to which the case is assigned is hearing civil motions and not less than 21 days from the date the motion
is served and filed. A party filing a motion shall also serve and file with it a memorandum of points and
authorities in support of each ground thereof. The absence of such memorandum may be supported.
(b) Within 10 days after the service of the motion, the opposing party shall serve and file his written
opposition thereto, together with a memorandum of points and authorities and supporting affidavits, if
any, stating facts showing why the motion should be denied. Failure of the opposing party to serve and
file his written opposition may be construed as an admission that the motion is meritorious and a consent
to granting the same.

2
NRCP 60(b) Mistakes; Inadvertence; Excusable Neglect; Fraud, Etc.
On motion and upon such terms as are just, the court may relieve a party or his legal representative
from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise,
or excusable neglect; (2) fraud, misrepresentation or other misconduct of an adverse party which would
have theretofore justified a court in sustaining a collateral attack upon the judgment; (3) the judgment is
void; or (4) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no longer equitable that an injunction should have
prospective application. The motion shall be within a reasonable time, and for reasons (1) and (2) not
more than six months after the judgment, order, or proceeding was entered or taken. A motion under this
subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit
the power of a court to entertain an independent action to relieve a party from a judgment, order, or
proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief
from a judgment shall be by motion as prescribed in these rules or by an independent action.
146 (1970). NRS 125.150(5) governed subsequent modification of orders adjudicating
property rights.
3
NRS 125.150(5) allowed the parties to stipulate to modification of the
decree, whether or not the court had retained jurisdiction to modify.
4
It did not provide for
the court's continuing jurisdiction regarding property rights. If the legislature had intended to
vest the courts with continuing jurisdiction over property rights, it would have done so
expressly, as it did in NRS 125.140(2) concerning child custody and support.
5

[Headnotes 1-4]
Absent specific authorization for continuing jurisdiction over property rights, NRCP 60(b)
governs motions to modify property rights established by divorce decrees. In re Marriage of
Gallegos, 580 P.2d 838 (Colo.App. 1978). Frances' motion to modify was filed three years
after the decree was entered; not within six months, as NRCP 60(b) requires. Therefore, the
district court was without jurisdiction to modify the decree regarding the property
distribution. McCarroll v. McCarroll, 96 Nev. 455, 611 P.2d 205 (1980). The decree in all
respects, except as to custody and support of the minor children, became unmodifiable six
months after the decree was entered. Schmutzer v. Schmutzer, 76 Nev. 123, 125, 350 P.2d
142, 144 (1960). The fact that Jerome's opposition to the motion to modify the modified
decree was not timely filed, cannot procedurally supply the district court with jurisdiction that
is substantively lacking. See Lauer, et al. v. District Court, 62 Nev. 78, 140 P.2d 953 {1943).
____________________

3
NRS 125.150(5) was amended in 1979 and is now NRS 125.150(6).

4
NRS 125.150(6) Alimony and adjudication of property rights; award of attorney's fee; subsequent
modification by court.
If the court adjudicates the property rights of the parties, or an agreement by the parties settling their
property rights has been approved by the court, whether or not the court has retained jurisdiction to
modify them, the adjudication of property rights, and the agreements settling property rights, may
nevertheless at anytime thereafter by modified by the court upon written stipulation signed and
acknowledged by the parties to the action, and in accordance with the terms thereof.

5
NRS 125.140 Order concerning custody of and provision for children; continuing jurisdiction of the court.
2. In actions for divorce the court may:
(a) During the pendency of the action, or at the final hearing or at any time thereafter during the
minority of any of the children of the marriage, make such order for the custody, care, education,
maintenance and support of such minor children as appears in their best interest; and
(b) At any time modify or vacate its order, even if the divorce was obtained by default without an
appearance in the action by one of the parties.
The party seeking such an order shall submit to the jurisdiction of the court for the purposes of this
subsection. The court may make such an order upon the application of one of the parties or the legal
guardian of the minor.
953 (1943). Consequently, the order modifying the modified decree of divorce is reversed
because the district court lacked jurisdiction to modify.
6
concur.
____________________

6
Honorable E. M. Gunderson, who voluntarily disqualified himself in this case. Nev. Const. Art. 6, 19; SCR 10.
____________
96 Nev. 763, 763 (1980) Bank of Nevada v. Butler Aviation
BANK OF NEVADA, Appellant, v. BUTLER AVIATION-O'HARE, INC.,
and BUTLER AVIATION-BOSTON, INC., Respondents.
No. 10639
September 18, 1980 616 P.2d 398
Appeal from judgment, Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Plaintiffs brought suit to recover damages incurred when bank officers furnished plaintiffs'
credit manager incorrect information about bank customer's account. The district court
dismissed action against bank officers and entered judgment against bank, and bank appealed.
The Supreme Court, Gunderson, J., held that: (1) dismissal of action against officers did not
preclude liability on part of bank, and (2) trial court need have required plaintiffs to prove
their case by clear and convincing evidence.
Affirmed.
Smith & O'Brien, Las Vegas, for Appellant.
Donald W. Haley, Las Vegas, for Respondents.
1. Judgment.
Dismissal of action against bank officers to recover damages incurred when officers furnished plaintiffs'
credit manager with incorrect information about bank customer's account did not preclude liability on part
of bank, where trial court dismissed claims against officers because it found insufficient evidence of
collusion and record amply supported finding that at least one officer negligently misrepresented facts
regarding customer's account balances to credit manager and that credit manager reasonably relied upon
information he was given.
2. Negligence.
In action to recover damages incurred when bank officers furnished plaintiffs' credit manager incorrect
information about bank customer's account, trial court need not have required plaintiffs to
prove their case by clear and convincing evidence, where officers had honest
intentions but merely failed to exercise reasonable care.
account, trial court need not have required plaintiffs to prove their case by clear and convincing evidence,
where officers had honest intentions but merely failed to exercise reasonable care.
OPINION
Respondents sued to recover damages incurred when bank officers furnished respondents'
credit manager incorrect information about a bank customer's account. Although the trial
court dismissed the action against all bank officers, it entered judgment against the bank. The
bank appeals, contending that dismissal of the action against the officers precluded liability
on the part of the bank. It further contends that the trial court should have required
respondents to prove their case by clear and convincing evidence.
Respondents' credit manager telephoned the bank and spoke with one of the bank officers
named. The credit manager inquired about the account balance of a customer who wished to
pay respondents by check. Ron Foglia informed the credit manager that the customer's
account balances were, various, mostly moderatehigh six, i.e., that the customer's
account balances had been at least $500,000. In fact, the customer's account balances had
never been higher than $17,809.15, and, five days prior to the officer's conversation with
respondents' credit manager, the customer's account balance was $40.91. Respondents' credit
manager instructed respondents airport facilities to accept checks from the bank's customer.
Two checks were accepted, but when respondents presented them for payment, appellant
dishonored them for insufficient funds.
1. Appellant argues that if no basis exists to charge an employer, other than vicarious
liability for the imputed negligence of its agent, a judgment on the merits in the agent's favor
bars further action against the employer. See Village Development Co. v. Filice, 90 Nev. 305,
310, 526 P.2d 83, 86 (1974). Respondents argue that the bank had an independent duty to the
respondents, and, therefore, the general rule should not be applied.
[Headnote 1]
We believe the general rule to be inapplicable. The record does not show the trial court
found that the bank officers were free from negligence. Rather, the record reflects that the
trial court dismissed claims against the officers because it found insufficient evidence of
"collusion."
insufficient evidence of collusion. The record amply supports a finding that at least one
officer, Ron Foglia, negligently misrepresented the facts regarding the customer's account
balances to the respondents' credit manager, and that the credit manager reasonably relied
upon the information he was given. This court wrote in Nevada Nat'l Bank v. Gold Star Meat
Co., 89 Nev. 427, 514 P.2d 651 (1973):
Here it was foreseeable that after a specific inquiry about the credit of a potential
customer and a favorable disclosure by the appellant that an ordinary, prudent person
would extend credit based on that favorable information. The position of an agent such
as Hastings facilitates the reliance of third persons to whom such information appears
accurate and to whom such agent appears to be acting in the ordinary course of the
business entrusted to him. In Warshauer v. Bauer Construction Co., 3 Cal.Rptr., 570,
573 (Cal.App. 1960), that court said: The courts have consistently held that the
principal is responsible to third parties for the misconduct of an agent committed within
the scope of his authority even though the principal is completely innocent and has
received no benefit from the transaction . . ., citing Wells Fargo Bank & Union Trust
Co. v. Dowd, 294 P.2d 159 (Cal.App. 1956); Rutherford v. Rideout Bank, 80 P.2d 978
(Cal. 1938); Restatement of Agency 261. See also Merchant's Bank v. State Bank,
supra, at 644, Dougherty v. Wells Fargo & Co., supra; 2A C.J.S. Agency 157 at p.
785.
The district court committed no error in holding Nevada National Bank liable for the
negligent acts of its agent, based on Hastings' material misrepresentations.
89 Nev. at 431, 514 P.2d at 654. See also Restatement (Second) of Torts 552 (1977).
1
The
judgment is affirmed. Cf. Propane Transport Company v. Edelen, 400 S.W.2d 697 (Ky.App.
1966).
Of course, absent entry of a final judgment pursuant to NRCP 54(b), dismissal as to the
bank officers did not become final until entry of judgment against the bank itself.
____________________

1
The applicable paragraph reads:
552. Information Negligently Supplied for the Guidance of Others
(1) One who, in the course of his business, profession or employment, or in any other transaction in which
he has a pecuniary interest, supplied false information for the guidance of others in their business transactions, is
subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails
to exercise reasonable care or competence in obtaining or communicating the information.
final until entry of judgment against the bank itself. See Lum v. Stinnett, 87 Nev. 402, 488
P.2d 347 (1971). We might, therefore, remand this case and order that judgment be entered
against Mr. Foglia as well as against the bank. Id. However, respondents have not complained
of any error in the court's dismissal of their claim against Foglia. Appellant obviously is not
aggrieved by such dismissal, for it did not attempt to hold any of its officers accountable for
negligence, by pleading a cross-claim against them.
[Headnote 2]
2. Appellant's contention that the trial court should have required respondents to prove
their case by clear and convincing evidence is without merit. The considerations of policy
which require proof of fraud by clear and convincing evidence do not apply where the
defendant has had honest intentions, but has merely failed to exercise reasonable care in what
he says or does. See, e.g., Liodas v. Sahadi, 562 P.2d 316, 320-25 (Cal. 1977), and
McCormick on Evidence 340, at 796-98 (2d ed. 1972).
Affirmed.
____________
96 Nev. 766, 766 (1980) Quiriconi v. State
STEVEN DARIO QUIRICONI, Appellant, v. THE
No. 11008
September 18, 1980 616 P.2d 1111
Appeal from judgment of conviction for forcible rape, Second Judicial District Court,
Washoe County; John W. Barrett, Judge.
Defendant was convicted in the district court of forcible rape, and he appealed. The
Supreme Court, Manoukian, J., held that: (1) evidence of other crimes was admissible in
prosecution for forcible rape where nearly four years had lapsed since commission of the
several offenses with which defendant had been charged, victim was sole eyewitness to crime
now being charged, had seen defendant only twice before trial and such testimony concerning
other crimes was introduced for sole purpose of establishing identity; (2) evidence was
sufficient to sustain decisions of trial judge and jury that defendant's confessions which
were made while he was a juvenile were voluntary in order for such statements to be
admissible in criminal trial; and {3) prosecution of defendant as adult on forcible rape
charges did not constitute double jeopardy after delinquency adjudication in which
defendant was adjudicated delinquent only as to unrelated offenses.
sustain decisions of trial judge and jury that defendant's confessions which were made while
he was a juvenile were voluntary in order for such statements to be admissible in criminal
trial; and (3) prosecution of defendant as adult on forcible rape charges did not constitute
double jeopardy after delinquency adjudication in which defendant was adjudicated
delinquent only as to unrelated offenses.
Affirmed.
Carl F. Martillaro, Arthur J. Bayer, and Edward Bernard, Carson City, for Appellant.
and Edward Horn, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Although evidence of other crimes or bad acts is inadmissible to prove person's character to show that he
acted in conformity with that character, such evidence is admissible when introduced for sole purpose of
establishing identity of perpetrator. NRS 48.045, subd. 2.
2. Criminal Law.
Testimony of victims, other than victim of the crime charged, who described car driven by defendant and
manner in which defendant identified himself, who identified gun obtained from defendant at time of his
arrest as being similar to one used by their assailant, and who demonstrated manner in which victims were
approached was admissible to establish identity, especially as proper cautionary instruction was given at
trial which was nearly four years after incident in question. NRS 48.045, subd. 2.
3. Criminal Law.
Juvenile should be advised of his rights and informed of possibility of adult trial, but where nature of
charges and identity of interrogator reflect existence of unquestionably adversary police atmosphere and
suspect is reasonably mature and sophisticated with regard to nature of process, resulting statements will be
admissible in criminal trial provided that record otherwise supports finding of voluntariness.
4. Criminal Law.
State has burden of proving voluntariness of confession by preponderance of evidence. U.S.C.A.Const.
Amend. 5.
5. Criminal Law.
Voluntariness of confession must be shown under totality of circumstances. U.S.C.A.Const. Amend. 5.
6. Criminal Law.
Where charges made against defendant while he was juvenile were serious, defendant was interrogated by
police officer and was advised of his rights, and defendant had had previous experience with process and
with signed waivers, and spoke with his parents before statements were made, defendant's confession which
was made while he was juvenile was admissible in subsequent criminal trial in which defendant was tried
as an adult, upon finding of voluntariness by both trial judge and jury. U.S.C.A.Const. Amend. 5.
7. Criminal Law.
Prosecution of defendant on forcible rape charges was not double jeopardy after delinquency
adjudication in which defendant was adjudicated delinquent only as to unrelated offenses. U.S.C.A.Const.
Amend. 5.
OPINION
In this appeal from a judgment of conviction for the crime of forcible rape, NRS 200.363,
1
a felony, we are asked to determine whether the trial court abused its discretion in admitting
evidence of other crimes; whether the confession given by appellant during his post-arrest
detention was illegally obtained; and whether the district court had jurisdiction over
appellant. For the reasons hereinafter expressed, we affirm.
On August 11, 1974, appellant was arrested for assault. He was sixteen years of age at the
time. A juvenile petition was filed against him on August 20, 1974 charging appellant with
two counts of forcible rape, three counts of kidnapping in the first degree, and two counts of
attempted kidnapping in the first degree. These acts had allegedly occurred against four
females within a period of approximately three weeks. As to several counts of the
petitionthe charges of rape, kidnapping and attempted kidnapping against a Ms.
Babcockappellant was adjudicated a delinquent on February 5, 1975, and committed to the
Nevada Youth Training Center in Elko.
In December of 1974, appellant, together with his parents and attorney, had stipulated with
the Washoe County District Attorney that appellant would remain subject to adult
certification and prosecution on the remaining counts of the petition for the period of the
applicable statutes of limitation. The stipulation also provided that appellant knowingly and
voluntarily waived his constitutional rights to due process and a speedy trial.
Subsequently, in April of 1977, appellant was charged with indecent exposure concerning
a March 25, 1977 incident. As a result of this, on July 12, 1977, the state moved to certify
appellant as an adult on the remaining counts of the juvenile petition filed in 1974. The
pending counts had charged appellant with the rape and kidnapping of a Ms. Smith and the
attempted kidnapping of a Ms. Haun. On August 26, 1977, appellant was certified as an
adult as to the charges.
____________________

1
NRS 200.363, now codified in NRS 200.366 and characterized as sexual assault, was amended by the
legislature in 1977.
appellant was certified as an adult as to the charges. An information charging the offenses
was filed in the district court on September 21, 1977.
Appellant moved to dismiss the kidnapping charges claiming that the applicable statute of
limitations had run. See NRS 171.085(2). Thereafter, the district court ruled that the three
year statute of limitations had run on the kidnapping and attempted kidnapping charges.
Appellant was tried on the remaining charges.
Prior to trial, the district court denied a motion to suppress statements made by appellant
while in custody after his August 1974 arrest. Appellant had claimed that any statements
made by a juvenile during his detention were inadmissible at a subsequent adult trial.
Appellant also unsuccessfully moved to exclude any evidence of other prior similar crimes
which appellant allegedly committed. Finally, the court denied appellant's motion to dismiss
on the basis that the 1975 certification of the appellant-juvenile on the other counts in the
juvenile petition deprived the district court of jurisdiction over appellant as an adult.
Appellant appeals from these adverse rulings.
1. Uncharged Similar Conduct.
At trial, the state introduced the testimony of two of appellant's victims other than Ms.
Smith. Appellant contends that, under NRS 48.045(2) and Nester v. State, 75 Nev. 41, 334
P.2d 524 (1959), the district court abused its discretion in receiving evidence of other crimes.
This contention is without merit.
[Headnote 1]
Although evidence of other crimes or bad acts is inadmissible to prove a person's character
to show that he acted in conformity of that character, such evidence is admissible when
introduced, as here, for the sole purpose of establishing the identity of the perpetrator. Nester
v. State, 75 Nev. at 46-49, 334 P.2d at 527; NRS 48.045(2).
[Headnote 2]
At the time of the trial, nearly four years had lapsed since the commission of the several
offenses. Ms. Smith was the sole eyewitness to the single crime now being charged and had
seen the appellant only twice before this trial. Moreover, appellant was not arrested on the
night of the incident. Thus, it was important that the state convince the jury of the identity of
the perpetrator.
This was accomplished properly by the witnesses who described the car driven by
appellant and the manner in which appellant identified himself as Mike from California. In
addition, each of the witnesses identified the gun obtained from appellant at the time of his
arrest as being similar to the one used by their assailant.
appellant at the time of his arrest as being similar to the one used by their assailant. Finally,
the evidence demonstrated the manner in which the victims were approached.
Here, the trial court weighed prejudice against probativeness, thereby complying with the
mandates of Nester and its progeny. See NRS 48.035. The lower court properly concluded
that the probative value of the evidence outweighed the claimed prejudicial effect. Moreover,
the court gave the jury a proper cautionary instruction as to the limited purpose of the
evidence. See McMichael v. State, 94 Nev. 184, 189, 577 P.2d 398, 401 (1978).
2. Confession by a Juvenile.
Appellant contends that his confession was elicited while he was a minor and during his
detention at juvenile hall and, as such, is inadmissible, as a matter of law, in adult criminal
proceedings.
2
We disagree.
Appellant relies exclusively on Harling v. United States, 295 F.2d 161 (D.C. Cir. 1961). In
Harling, the court of appeals for the District of Columbia circuit held that the admission in a
criminal proceeding of a confession by a juvenile prior to his adult certification would destroy
the juvenile court's parens patriae relation to the child. 295 F.2d at 163-64. This continues to
be the rule in that circuit. But Harling was based on the court's supervisory powers over
juvenile proceedings in the District of Columbia. In addition, Harling was decided prior to In
re Gault, 387 U.S. 1 (1967), which defined the rights of juveniles in commitment
proceedings. In confirming a juvenile's fifth amendment rights, the Supreme Court said that
[i]t would be entirely unrealistic to carve out of the Fifth Amendment all statements by
juveniles on the ground that these cannot lead to criminal' involvement. Id. at 49. The Court
thus granted juveniles the protections of adult status.
____________________

2
Although we have not expressly decided whether a confession by a juvenile may be used in a criminal
proceeding, we have stated that [b]efore being interviewed, a child should be advised of his rights and
cautioned that any answers may be used in a criminal court as well as before the juvenile court. Special efforts
should be made, especially in the case of young children, to interview the juvenile only in the presence of a
parent or guardian. Marvin, A Minor v. State, 95 Nev. 836, 839-40 n. 4, 603 P.2d 1056, 1058 n. 4 (1979),
citing Harling v. United States, 295 F.2d 161, 163-64 n. 12 (1961). In Marvin, this court determined that a court
could base its determination to certify a juvenile as an adult on reliable statements made by a juvenile outside the
presence of his parents after being advised of his rights. There had been no suppression hearing for the pending
criminal trial and the opinion was without prejudice to appellant's right to move to suppress in the criminal
proceeding. Marvin, A Minor v. State, 95 Nev. at 843, 603 P.2d at 1061. The United States Supreme Court has
not ruled on the issue presented in the case at bar. See Harrison v. United States, 392 U.S. 219, 222, n. 6 (1968).
Subsequent to Gault, and in refusing to follow the lead of Harling, many state courts have
decided that juvenile confessions are admissible in criminal proceedings provided they were
obtained in compliance with constitutional standards. See, e.g., State v. Councilman, 460
P.2d 640 (Ariz. 1969) (statement inadmissible where neither youth nor mother advised of
youth's right to counsel, privilege against self-incrimination, or possibility of adult trial);
People v. Lara, 432 P.2d 202 (Cal. 1967), cert. denied, 392 U.S. 945 (1968) (age and
presence of parent are only factors in determining voluntariness); People v. Hester, 237
N.E.2d 466 (Ill. 1968) (test is voluntariness under the circumstances); State v. Sinderson, 455
S.W.2d 486 (Mo. 1970) (test is voluntariness and juvenile must be told of possible criminal
responsibility); State v. Prater, 463 P.2d 640 (Wash. 1970) (test is voluntariness). See also
State v. Gullings, 416 P.2d 311 (Ore. 1966). No state decisions following Harling have been
cited to us and we have found none.
[Headnote 3]
The parens patriae relation of the juvenile court and authorities to the child cannot be
dismissed lightly. Clearly, neither police officers nor juvenile authorities should be allowed to
mislead a youth in order to obtain a confession. See State v. Loyd, 212 N.W.2d 671, 676-77
(Minn. 1973). A juvenile should be advised of his rights and informed of the possibility of an
adult trial. But where the nature of the charges and the identity of the interrogator reflect the
existence of an unquestionably adversary police atmosphere and the suspect is reasonably
mature and sophisticated with regard to the nature of the process, resulting statements will be
admissible in a criminal trial provided that the record otherwise supports a finding of
voluntariness.
In this case, appellant testified that the police told him he would be treated as a juvenile.
An officer testified that he informed appellant that he could be tried as an adult. The judge
and jury apparently disbelieved appellant. Nevertheless, there is sufficient evidence to support
the admission of the statements. The charges involved here were serious, appellant was
interrogated by a police officer and appellant had had previous experience with the process
and with signed waivers. The court held a hearing outside the presence of the jury and found
the confession to have been voluntary. The issue of voluntariness was then, pursuant to
Jackson v. Denno, 378 U.S. 368 (1964), presented to the jury which was instructed to
determine the same issue. The written confession also demonstrates that appellant was
advised of his right to remain silent and his right to an attorney, and told that the
statements could be used against him in court.
right to an attorney, and told that the statements could be used against him in court.
Additionally, incidental to appellant's request, both of his parents spoke to him before the
statements were given. Appellant was then re-advised of his rights before he made the
statements.
[Headnotes 4-6]
The state has the burden of proving voluntariness by a preponderance of the evidence.
Lego v. Twomey, 404 U.S. 477, 489 (1972); Scott v. State, 92 Nev. 552, 554, 554 P.2d 735,
736-37 (1976). Voluntariness must be shown under the totality of the circumstances. Franklin
v. State, 96 Nev. 417, 421, 610 P.2d 732, 734-35 (1980). In the instant case, respondent easily
met its burden. The decision of the trial judge and the jury will not be disturbed where, as
here, they are supported by substantial evidence. See Scott v. State, 92 Nev. 552, 554, 554
P.2d 735, 737 (1976).
3. District Court Jurisdiction.
[Headnote 7]
Appellant's final contention is that he was previously treated as a juvenile and his cases
were resolved with appellant ordered to serve time at a juvenile facility. Fain v. Duff, 488
F.2d 218 (5th Cir. 1973), holds that criminal proceedings may not be had against a juvenile
who has been adjudicated a delinquent on the same offense. But it is double jeopardy which
prevents a criminal action after a delinquency adjudication. Breed v. Jones, 421 U.S. 519, 541
(1975).
It is clear that appellant was adjudicated a delinquent only as to unrelated offenses. The
present case involves an offense upon which there had been no juvenile court adjudication.
This claim is without merit.
The remaining contentions are without merit. The judgment of conviction is affirmed.
Mowbray, C. J., and Thompson and Batjer, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
Honorable E. M. Gunderson, Justice. Nev. Const. art. 6, 19; SCR 10.
____________
96 Nev. 773, 773 (1980) Eaton v. District Court
VIRGINIA G. EATON and JAMES C. MORLEY, Petitioners, v. SECOND JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF
WASHOE, DEPARTMENT NUMBER 7, Respondent.
No. 12639
September 18, 1980 616 P.2d 400
Original petition for writ of mandamus.
Original proceeding was brought for writ of mandamus compelling district court to vacate
dismissal of petitioners' complaint. The Supreme Court held that where petitioners' complaint
was against Nevada corporation, and where overall such corporation made no factual showing
whatsoever upon which a forum non conveniens dismissal could be supported, motion to
dismiss, which was granted following finding that Montana was much more convenient place
to litigate matter, should not have been granted.
Writ granted.
Howard, Cavallera & Sferrazza, Reno, for Petitioners.
Sala & McAuliffe, Chartered, Reno, for Respondent.
1. Courts.
Although location of defendant corporation in Nevada is significant, and should weigh heavily against the
granting of motion to dismiss, doctrine of forum non conveniens is not limited to single factor and involves
balancing approach using several other factors, including public and private interests, access to sources of
proof, availability of view of premises, availability of compulsory process for unwilling witnesses, cost of
obtaining testimony from willing witnesses, and enforceability of judgment.
2. Courts.
In determining whether doctrine of forum non conveniens applies, court should consider whether failure
to apply doctrine would subject defendant to harassment, oppression, vexatiousness or inconvenience.
3. Courts.
In balancing factors required by doctrine of forum non conveniens, mere fact that another court is more
convenient for one party is not sufficient to justify dismissal; a plaintiff may be denied his choice of forum
only in exceptional circumstances when factors weigh strongly in favor of another forum.
4. Courts.
Moving party may not rely on general allegations concerning inconvenience, view of premises or
hardship in support of its forum non conveniens motion but, rather, a specific factual showing must be
made.
5. Courts.
Nevada corporation, which did not provide information as to number of witnesses, substance of testimony
or necessity for their presence, which did not show why view of properties in Montana might
be necessary, and which did not show hardship in bringing documentary evidence to
Nevada, made no factual showing whatsoever upon which a forum non conveniens
dismissal of petitioners' complaint could be supported, and thus motion to dismiss,
which was granted following finding that Montana was much more convenient place
to litigate matter, should not have been granted on forum non conveniens grounds.
did not show why view of properties in Montana might be necessary, and which did not show hardship in
bringing documentary evidence to Nevada, made no factual showing whatsoever upon which a forum non
conveniens dismissal of petitioners' complaint could be supported, and thus motion to dismiss, which was
granted following finding that Montana was much more convenient place to litigate matter, should not have
been granted on forum non conveniens grounds.
OPINION
Per Curiam:
Western Oil and Gas Company, defendant below, filed a motion in the district court to
dismiss petitioners' complaint. The motion contended that Nevada courts lack both in rem and
in personam jurisdiction in the case. The motion also contended that the doctrine of forum
non conveniens mandated dismissal. The district court dismissed the case, finding that
Montana is a much more convenient place to litigate this matter. Petitioners seek a writ of
mandamus compelling the district court to vacate the dismissal.
[Headnotes 1, 2]
In Buckholt v. District Court, 94 Nev. 631, 584 P.2d 672 (1978), we suggested that the
doctrine of forum non conveniens is inapposite where the defendant is a Nevada corporation
and does business here. Although the location of a defendant corporation in this state is
significant, and should weigh heavily against the granting of such a motion, the doctrine of
forum non conveniens is not limited to a single factor. The doctrine involves a balancing
approach using several other factors, including public and private interests, access to sources
of proof, and the availability of a view of the premises, if necessary. Additional factors
include the availability of compulsory process for unwilling witnesses, the cost of obtaining
testimony from willing witnesses, and the enforcibility of a judgment. Gulf Oil Corp. v.
Gilbert, 330 U.S. 501 (1947). The court should also consider whether failure to apply the
doctrine would subject the defendant to harassment, oppression, vexatiousness or
inconvenience. See Swisco, Inc. v. District Court, 79 Nev. 414, 385 P.2d 772 (1963).
[Headnote 3]
In balancing these factors, the mere fact that another court is more convenient for one
party is not sufficient to justify a dismissal. A plaintiff may be denied his choice of forum
only in exceptional circumstances when the factors weigh strongly in favor of another forum.
favor of another forum. Gulf Oil Corp. v. Gilbert, supra; Swisco, Inc. v. District Court,
supra.
[Headnote 4]
Furthermore, affidavits in support of a forum non conveniens motion must be carefully
examined to determine the existence of the factors mentioned above. The moving party may
not rely on general allegations concerning inconvenience, a view of the premises, or hardship.
A specific factual showing must be made. See Swisco, Inc. v. District Court, supra.
[Headnote 5]
The record before us in the present case reveals that defendant is a Nevada corporation.
Defendant's forum non conveniens motion was similar to the insufficient showing made in
Swisco. There was no information given as to the number of witnesses, the substance of
testimony, or the necessity for their presence. There was no showing as to why a view of the
properties in Montana might be necessary. Nothing was shown with reference to hardship in
bringing documentary evidence to Nevada, or as to why testimony could not be presented in
depositions. Overall, defendant made no factual showing whatsoever upon which a forum non
conveniens dismissal could be supported. The motion to dismiss should not have been
granted on forum non conveniens grounds.
In its order of dismissal the district court denied petitioners' motion to amend the
complaint. It is not clear whether the district court would have denied the motion to amend if
the dismissal had not been entered. It is also not clear whether the district court ruled on the
jurisdictional contentions raised in the motion to dismiss.
Accordingly, a writ of mandamus shall issue forthwith directing the respondent court to
vacate its order of dismissal. The case is remanded for further proceedings, including
reconsideration of petitioners' motion to amend and defendant's jurisdictional contentions.
Writ granted.
____________
96 Nev. 776, 776 (1980) Sheriff v. Scalio
LAWRENCE LUCIAN SCALIO, Respondent.
No. 12832
September 18, 1980 616 P.2d 402
District Court, Clark County; Addeliar D. Guy, Judge.
The Supreme Court held that petition for writ of habeas corpus was not cognizable in
district court where petition was not verified by oath or affirmation.
Reversed with instructions.
Richard T. Bourgault, Las Vegas, for Respondent.
Habeas Corpus.
Petition for writ of habeas corpus was not cognizable in district court where petition was not verified by
oath or affirmation. NRS 34.370, subd. 3.
OPINION
Per Curiam:
Indicted for a felony, respondent filed a pretrial petition for a writ of habeas corpus. The
petition was considered and granted by the district court, and the state has appealed.
We need not consider the merits, if any, of the appeal. Respondent's habeas petition was
not verified by oath or affirmation as clearly required by NRS 34.370(3). Therefore, the
petition was not cognizable in the district court. Sheriff v. Arvey, 93 Nev. 72, 560 P.2d 153
(1977). Accordingly, we sua sponte reverse and instruct the district court to dismiss the
habeas petition.
____________
96 Nev. 777, 777 (1980) Esquivel v. State
ROBERT VICTOR ESQUIVEL, Appellant, v. THE
No. 11014
October 8, 1980 617 P.2d 587
Appeal from judgment of conviction. Eighth Judicial District Court, Clark County; James
A. Brennan, Judge.
Defendant was convicted in the district court of the infamous crime against nature.
Defendant appealed. The Supreme Court held that where sole defense was based upon
defendant's testimony that alleged victim, who gave the only testimonial evidence against
defendant, gave consent, prosecution was improperly allowed to impeach defendant, over
defense objections, with statements which defendant had made to psychiatrist during mental
examination ordered by court after defendant's guilty plea, which was reason for the
examination, had been withdrawn as involuntary.
1. Witnesses.
Subject being examined by court-appointed physician should feel free in such clinical climate to discuss
all facts relevant to examination without guarded fear that statement may be later used against him. NRS
49.245, subd. 2.
2. Witnesses.
In prosecution wherein defendant was convicted of infamous crime against nature and wherein sole
defense was based upon defendant's testimony that alleged victim, who gave the only testimonial evidence
against defendant, gave consent, statements which defendant had made to psychiatrist during mental
examination ordered by court after defendant's guilty plea, which was reason for the examination, had been
withdrawn as involuntary were not admissible to impeach defendant over his objections. NRS 49.245,
subd. 2.
OPINION
Per Curiam:
[Headnotes 1, 2]
Appellant Esquivel was convicted of the infamous crime against nature after a jury trial.
The primary issue presented at the jury trial was appellant's credibility.
96 Nev. 777, 778 (1980) Esquivel v. State
the jury trial was appellant's credibility. This issue was particularly important since appellant
predicated his sole defense on his testimony of the consent of the alleged victim who gave the
only testimonial evidence against the defendant. The prosecution, however, impeached
Esquivel, over defense objections, with statements Esquivel had made to a psychiatrist during
a court-ordered mental examination. We believe that admission of these statements was error
as a subject being examined by a court appointed physician should feel free in such a clinical
climate to discuss all the facts relevant to the examination without the guarded fear that the
statements may be later used against him.
1
Fair play dictates nothing less. Mann v. State, 96
Nev. 62, 605 P.2d 209 (1980); see also Williamson v. State, 330 So.2d 272 (Miss. 1976).
Here the principal issue in the case was Esquivel's credibility; the damaging evidence
introduced to impeach his own testimony was garnered during Esquivel's mental
examination. We may not deem the evidence harmless error under the factual posture
presented and must therefore reverse and remand the case to the district court for a new trial.
____________________

1
There is no question in this case of an assertion of privilege with respect to such statements when the report
of a court-ordered examination is used for the purpose for which it was ordered. NRS 49.245(2). Here, the
statements were used as evidence in a criminal prosecution, after appellant's guilty plea, which was the reason
for the psychiatric examination, was withdrawn as involuntary.
____________
MATTHEW NOLAN RUSLING, Appellant, v. THE
No. 11047
October 8, 1980 617 P.2d 1302
Appeal from judgment of conviction, and adjudication as an habitual criminal. Eighth
Judicial District Court, Clark County; John F. Mendoza, Judge.
Defendant was convicted before the district court of possession of a firearm by an
ex-felon, and he appealed. The Supreme Court, Mowbray, C. J., held that: (1) the temporary
detention and pat down of the defendant, and removal of weapon from the defendant's person
by the officer, were proper, and (2) trial court did not err in failing to instruct the jury that
operability of the weapon was an essential element of the crime.
Affirmed.
1. Arrest.
Police officer may, under appropriate circumstances and in a proper manner, approach and retain a
person to investigate possible criminal behavior, though probable cause may not exist to place such person
under arrest.
2. Arrest.
Officer was justified in approaching and stopping defendant, for further investigation, where defendant,
matching description of suspect, emerged from area where suspect had been lurking. U.S.C.A.Const.
Amend. 4.
3. Arrest.
Officer may conduct pat down of detained person, when officer has a reasonable belief, based upon the
circumstances surrounding the stop and the facts of the person's reaction, that the officer's safety or that of
others is in danger.
4. Arrest.
Pat down of defendant after detentionary stop was not unreasonable where stop occurred late at night,
officer was seeking a suspect of defendant's description who had fled, and the defendant bore evidence of
flight and that he had been hiding in the underbrush. NRS 171.1232, subd. 1; U.S.C.A.Const. Amend. 4.
5. Arrest.
When a police officer reasonably believes from his initial pat down that a weapon is concealed upon a
suspect, the officer may place his hand within the person's clothing and remove the weapon.
6. Arrest.
Arrest of defendant, who had identified himself as an ex-felon, was proper where officer found a firearm
on the person of defendant during a permissible pat down. NRS 202.360, subd. 2.
7. Weapons.
Trial court did not err in failing to instruct jury that operability of a handgun was an essential element of
the crime of possession of a firearm by an ex-felon, where no evidence indicated firearm was inoperable.
NRS 202.360.
OPINION
A jury found Matthew Nolan Rusling guilty of possession of a firearm by an ex-felon.
NRS 202.360. He was also adjudged an habitual criminal and sentenced to life imprisonment
with the possibility of parole, NRS 207.010.
By pretrial motion, appellant unsuccessfully sought to suppress introduction of the firearm
into evidence. He now seeks reversal of his judgment of conviction on two grounds: (1) that
the introduction of the firearm into evidence violated his fourth amendment right against
unreasonable searches and seizures; and (2) that the trial court erred in failing to instruct the
jury that operability of a firearm is a necessary element of the offense charged.
that operability of a firearm is a necessary element of the offense charged. We disagree and
affirm.
THE FACTS
While patrolling in his vehicle at approximately eleven in the evening of November 21,
1977, Officer Harber of the Las Vegas Metropolitan Police Department noticed an
automobile, with both trunk and driver's side door open, parked in the middle of the travel
lane. Officer Harber observed a white adult male leave the parked vehicle and walk across the
street to a pickup truck. Protruding from the gas tank of the truck and leading into a metal
container on the ground was a rubber hose. After the officer stopped his car, the man turned,
saw the officer, and immediately fled down the street. By fixing his spotlight on him, Harber
was able to observe that the man was approximately five foot ten inches to six feet tall, had
long dark unkempt hair, and wore a brown jacket, levis, and a white T-shirt. Harber
ascertained that the license plates on the stopped vehicle were registered to a Matthew
Rusling and that the vehicle had been reported stolen.
Officer Scholl, a member of the canine patrol, responded to the scene and was advised of
the above facts. Scholl spent the next forty minutes searching the thick underbrush near the
area where the suspect was last seen; twice his dog indicated the probable presence of a
human being in the thick bushes, but the Officer did not see anyone. Returning to his car,
Scholl was joined by Officer Shelton, and the two proceeded to divide the area and continue
the search by automobile. Ten to fifteen minutes later Shelton spied a man matching the
suspect's description. Shelton stopped the suspect, requested identification, and he identified
appellant as the owner of the license plates on the stolen car. During this initial contact,
Shelton noted that the suspect continued to move his right hand near and around his right side
coat pocket; he warned Rusling to keep his hands away from his pockets. Within two minutes
after Shelton stopped Rusling, Scholl responded to Shelton's radio call and arrived at the
scene. He saw a white male matching the description supplied by Officer Harber; he also
noted that the suspect had grass stains and loose grass on his coat as well as dirt and concrete
burns on his hands. Scholl left his vehicle and proceeded to pat down the suspect's outer
clothing. Feeling a hard object resembling a gun in right hand coat pocket, he reached into the
pocket and removed an automatic pistol which contained an ammunition clip as well as a live
round in the chamber. Appellant was then arrested.
THE SEARCH
[Headnotes 1, 2]
Even though probable cause may not exist to place a person under arrest, a police officer
may, under appropriate circumstances and in a proper manner, approach and detain a person
for the purpose of investigating possible criminal behavior. Terry v. Ohio, 392 U.S. 1, 22
(1968); Stuart v. State, 94 Nev. 721, 722, 587 P.2d 33, 34 (1978); Jackson v. State, 90 Nev.
266, 267, 523 P.2d 850, 851 (1974); Wright v. State, 88 Nev. 460, 464, 499 P.2d 1216, 1219
(1972); NRS 171.123(1). Appellant emerged from the area where the police officers had
reason to believe the suspect was lurking; he matched the description broadcast by Officer
Harber. Officer Shelton was, therefore, justified in approaching appellant and stopping him
for the purpose of further investigation.
[Headnote 3]
Appellant suggests that even conceding the legality of the stop, the subsequent patdown by
Officer Scholl was illegal. The Terry Court set the standard for warrantless stop and frisk
search and seizures: [T]he officer need not be absolutely certain that the individual is armed;
the issue is whether a reasonably prudent man in the circumstances would be warranted in the
belief that his safety or that of others was in danger. Terry v. Ohio, supra, at 27 (citations
omitted). The reasonable basis for the patdown arises from the circumstances surrounding the
stop as well as the specific facts of the citizen's reaction. Glick v. Erickson, 488 F.2d 182, 184
(8th Cir. 1973); People v. Casias, 563 P.2d 926, 932 (Colo. 1977).
[Headnote 4]
Officer Scholl had reasonable grounds to anticipate the possibility of danger to himself or
Officer Shelton. The suspect met the description of one possibly engaged in auto theft. The
man bore evidence of flight and that he had been hiding in the underbrush. The stop occurred
late at night, and the license plates on the stolen automobile were registered in appellant's
name. All these factors led the officer to conclude reasonably that the suspect was involved in
criminal conduct. Therefore, it was not improper for him to infer the possibility of a
concealed weapon. See People v. McGowan, 370 N.E.2d 537 (Ill. 1977), cert. denied, 435
U.S. 975 (1978); People v. Martineau, 523 P.2d 126 (Colo. 1974); Wright v. State, supra;
People v. Mosher, 461 P.2d 659 (Cal. 1969); NRS 171.1232(1).
[Headnotes 5, 6]
Finally, when a police officer reasonably believes from his initial patdown that a weapon
is concealed upon a suspect, the officer may, of course, place his hand within the person's
clothing and remove the weapon.
initial patdown that a weapon is concealed upon a suspect, the officer may, of course, place
his hand within the person's clothing and remove the weapon. Sibron v. New York, 392 U.S.
40, 65 (1968); People v. Casias, supra, at 933. Officer Scholl felt an object he reasonably
believed to be a gun; placing his hand inside appellant's pocket to remove the firearm was
constitutionally permissible. The subsequent arrest of appellant, who had identified himself as
an ex-felon, was, therefore, proper. Adams v. Williams, 407 U.S. 143, 148 (1972); NRS
202.360(2).
THE JURY INSTRUCTION
[Headnote 7]
As to appellant's second contention that the trial court erred in failing to instruct the jury
that the operability of the handgun was an essential element of the crime, we find no error.
Appellant offered no evidence indicating that the handgun was inoperable. Both officers,
Shelton and Scholl, testified the gun appeared operable and that it contained live ammunition.
Further, the gun as well as the clip and ammunition were admitted into evidence. It was
within the judgment of the jury to conclude that the gun was a firearm within the definition of
NRS 202.360. See State v. Cartwright, 418 P.2d 822, 830-831 (Ore. 1966), cert. denied, 386
U.S. 937 (1967).
____________
96 Nev. 782, 782 (1980) Hickman v. Meadow Wood Reno
DEE E. HICKMAN, Appellant, v. MEADOW WOOD
RENO, Respondent.
No. 10696
October 16, 1980 617 P.2d 871
Appeal from summary judgment, Second Judicial District Court, Washoe County; Peter I.
Breen, Judge.
In an action against apartment owner for alleged assault by an alleged employee of owner,
the district court entered summary judgment in favor of the owner and appeal was taken. The
Supreme Court, Huffaker, District Judge, held that alleged failure of plaintiff to submit
interrogatory answers which were based on personal knowledge and which set forth facts as
would be admissible in evidence, and plaintiff's failure to respond in additional time to reply
to summary judgment motion by way of affidavit other than by requesting more time to
contact "several important witnesses," was insufficient offer to avoid entry of summary
judgment.
to contact several important witnesses, was insufficient offer to avoid entry of summary
judgment.
Affirmed.
Harry A. Busscher, Reno, Appellant.
Sanford, Sanford & McGee; and Leggett & Hamilton, Reno, for Respondent.
Judgment.
Alleged failure of plaintiff to submit interrogatory answers which were based on personal knowledge and
which set forth facts as would be admissible in evidence, and plaintiff's failure to respond in additional
time to reply to summary judgment motion by way of affidavit other than by requesting more time to
contact several important witnesses, was insufficient offer to avoid entry of summary judgment.
NRCP 56(e).
OPINION
By the Court, Huffaker, D. J.:
1

The trial court entered summary judgment in favor of respondent Meadow Wood Reno,
and certified the judgment as final. NRCP 54(b). Appellant, plaintiff below, takes this appeal,
contending that the judgment should not have been entered. The trial court's judgment is
affirmed.
Appellant's complaint alleged that a security officer, assigned to guard an apartment
complex owned by respondent, had assaulted and battered plaintiff. Appellant claimed that he
was asleep in his automobile at the Meadow Wood complex when the security guard opened
the door and struck him on the head and back. Meadow Wood disclaimed liability on the
ground that the security officer was not its employee.
Respondent Meadow Wood served requests for admissions upon its co-defendant, Neilsen
Detective Agency, Inc., and determined that there was an agreement in effect at the time of
the alleged assault in which Neilsen, allegedly as an independent contractor, had agreed to
furnish security services to respondent. Meadow Wood unsuccessfully moved for summary
judgment. Subsequently Meadow Wood served requests for admissions and interrogatories
upon appellant, seeking to determine the basis for appellant's claim that the security officer
was an employee of Meadow Wood. Appellant obtained an extension of time to respond to
the requests for admissions, and
____________________

1
The Governor designated the Honorable Stephen L. Huffaker, Judge of the Eighth Judicial District Court, to
sit in place of Justice Gordon Thompson who voluntarily disqualified himself. Nev. Const., art. 6, 4.
within the additional time provided, denied all requests for admissions and answered the
interrogatories.
Meadow Wood again urged this motion for summary judgment. Respondent claimed, inter
alia, that the answers to interrogatories submitted by appellant did not meet the requirements
of NRCP 56(e) that a motion for summary judgment must rest upon affidavits which shall be
made on personal knowledge, shall set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is competent to testify to the matters stated
therein. The trial court allowed appellant an additional ten days to reply to respondent's
pending motion by way of affidavit. Appellant's sole response was to request additional time
to contact several important witnesses.
Appellant's argument that the summary judgment was entered erroneously is without
merit.
This court has written:
The rule is well-settled that the opposing party is not entitled to have the motion for
summary judgment denied on the mere hope that at trial he will be able to discredit
movant's evidence; he must at the hearing be able to point out to the court something
indicating the existence of a triable issue of fact. [Citation omitted.] The opponent is
required to set forth specific facts showing that there is a genuine issue for trial.
[Citations omitted.] Taking into consideration that inferences will be drawn in favor of
the party opposing the motion the opponent must nevertheless show he can produce
evidence at the trial to support his claim. [Citations omitted.]
Thomas v. Bokelman, 86 Nev. 10, 14, 462 P.2d 1020, 1022-23 (1970). Appellant failed to
demonstrate to the trial court that a genuine issue of material fact remained to be tried. It was
not error for the trial court to enter summary judgment without further delay.
Affirmed.
Mowbray, C. J., and Manoukian and Batjer, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

2
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of
Justice E. M. Gunderson, Nev. Const. art. 6, 19; SCR 10.
____________
96 Nev. 785, 785 (1980) In re Eastham
In the Matter of the Application of ARNOLD EASTHAM
for a Writ of Habeas Corpus.
No. 12690
October 24, 1980 617 P.2d 1304
Petitioner, who was charged with certain offenses and whose pretrial habeas corpus
petition had been denied by a district court, filed an original habeas corpus petition. The
Supreme Court held that it would not, in effect, review district court's decision denying the
prior petition based on resolution of questions of fact.
Petition dismissed.
John W. Hunt, Las Vegas, for Petitioner.
1. Habeas Corpus.
Supreme Court will not review final decision of a district court denying a pretrial petition for writ of
habeas corpus which is based on resolution of questions of fact, even though the habeas petition has been
originally filed in Supreme Court and made returnable to district court.
2. Habeas Corpus.
In proceeding on original habeas corpus petition, Supreme Court would not, in effect, review district
court's decision denying prior pretrial habeas corpus petition based on resolution of questions of fact.
OPINION
Per Curiam:
Petitioner, Arnold Eastham, was charged with two counts of lewdness with a minor (NRS
201.230) and one count of sexual assault. (NRS 200.366). On the day of the scheduled
preliminary examination, the magistrate continued the proceedings because the prosecution
had obtained a Vietnamese interpreter to assist in the examination of the alleged victims, but
actually needed a Chinese interpreter. The purpose of the continuance was to allow the
prosecution time to obtain the correct interpreter.
Eastham thereafter filed a petition for a writ of habeas corpus in the district court
contending the charges should be dismissed because the preliminary examination was
improperly continued. The district court denied the petition and Eastham subsequently filed
an original habeas petition with this court wherein he asserts the same grounds for relief he
raised in the district court.
96 Nev. 785, 786 (1980) In re Eastham
wherein he asserts the same grounds for relief he raised in the district court. This court
ordered the Clark County District Attorney to file a response to the petition and stayed further
proceedings in the justice's court.
Shortly after the response was ordered, the Clark County Grand Jury returned an
indictment charging Eastham with two counts of lewdness with a minor. Since these charges
arose from the same conduct involved in the case in the justice's court, the district attorney
filed a motion to dismiss Eastham's original habeas petition as moot. Eastham opposed the
motion and sought leave to amend his habeas petition to challenge the propriety of the
indictment. The district attorney's motion to dismiss was denied and Eastham was permitted
to amend his petition.
[Headnote 1]
1. This court will not review a final decision of a district court denying a pretrial petition
for a writ of habeas corpus which is based upon the resolution of questions of fact, even
though the habeas petition was originally filed in this court and made returnable to the district
court. Zobrist v. Sheriff, 96 Nev. 625, 614 P.2d 538 (1980).
[Headnote 2]
The posture of this case differs from Zobrist only in that here the habeas petition was
initially filed in the district court, where it was denied. An original habeas petition was then
filed in this court raising the same issue which was considered below. The question
considered was whether the prosecution had an acceptable explanation for its failure to obtain
the correct language interpreter to assist at the preliminary examination, thus justifying the
granting of the continuance. See, e.g., Salas v. Sheriff, 94 Nev. 490, 581 P.2d 865 (1978). It is
the prosecution's contention that [p]rior to the [preliminary] hearing the State had been
affirmatively led to believe that the witnesses involved were Vietnamese and having lived in
Viet Nam, spoke that language. Thus, a Vietnamese interpreter was obtained.
In determining that the misunderstanding concerning the proper interpreter constituted
good cause for the continuance, the district court resolved factual issues, a task which it is
equipped to handle. See Zobrist v. Sheriff, supra. Eastham, by way of original habeas, now
asks this court to reach a different conclusion. In our view the holding in Zobrist precludes
our consideration of Eastham's petition. We perceive no real distinction between this case and
the situation in Zobrist. In both cases the district court resolved factual issues and made a
final decision. To consider Eastham's original habeas petition under these circumstances,
where a question of law is not involved, would frustrate the legislative intent, as stated in
Zobrist, to remove our appellate jurisdiction in pretrial habeas matters.
96 Nev. 785, 787 (1980) In re Eastham
would frustrate the legislative intent, as stated in Zobrist, to remove our appellate jurisdiction
in pretrial habeas matters. An original habeas petition should not be permitted to serve this
purpose. Cf. Kussman v. District Court, 96 Nev. 544, 612 P.2d 679 (1980).
2. In his amended petition Eastham argues that the prosecution obtained the grand jury
indictment against him in order to prevent this court from considering his habeas petition.
However, in light of our disposition of this case, we need not reach the merits of the amended
petition.
The petition is dismissed and the order staying the proceedings in the justice's court is
vacated.
____________
96 Nev. 787, 787 (1980) Lunn v. American Maintenance Corp.
ARDIS M. LUNN, Appellant, v. AMERICAN MAINTENANCE
CORPORATION, a Nevada Corporation, Respondent.
No. 10824
October 27, 1980 618 P.2d 343
Appeal from order dismissing amended complaint, Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
Plaintiff attempted to amend a personal injury complaint against a pet store and various
John Doe defendants to include the name of janitorial service which maintained the
common walkway in the shopping center in which she fell. The district court granted the
janitorial service's motion to dismiss the second amended complaint as to itself for failure to
state a cause of action within the limitations period, and plaintiff appealed. The Supreme
Court, Manoukian, J., held that the attempted amendment brought in a new party defendant
and did not merely identify a party defendant already before the court where the original
pleading could not have notified the janitorial service of the pending litigation against the pet
store, the realtor owning the shopping center and other unnamed defendants, nothing in the
original complaint indicated any intent on plaintiff's part to have any janitorial service
identified or described as a party and the janitorial service had been prejudiced in that it could
no longer timely investigate the scene of the accident, marshal the evidence or locate
witnesses.
Affirmed.
Deaner, Deaner & Reynolds, and Embry & Shaner, Las Vegas, for Appellant.
Amendment to pleading under fictitious-defendant rule which allows plaintiff, when name of actual
defendant is discovered, to amend original pleading to add such true name relates back to date of original
pleading allowing defendant's true name to be substituted after expiration of statutory limitation. NRCP
10(a), 15(c).
Rule allowing amendment as to defendant's identity subsequent to running of statute of limitations was
designed to apply in situation where plaintiff is cognizant of identity or description of fictitiously named
defendant, but not his true name. NRCP 10(a), 15(c).
Factors governing determination of when proper defendant may be involved in amended pleading even
though statute of limitations has run are whether proposed party defendant has actual notice of institution of
action; knows that it was proper defendant in original action; and is not misled in any way to its prejudice.
NRCP 10(a), 15(c).
4. Limitation of Actions
Personal injury complaint against pet store and various John Doe defendants alleging negligence in
allowing liquid to flow from pet store onto common walkway of shopping center, that all defendants knew
or should have known of condition and failed to inspect or remedy condition could not be amended after
statute of limitations had run to add as named defendant in place of one John Doe janitorial service hired
to maintain such common walkway in shopping center where there was nothing in original pleadings which
would have notified janitorial service of pending litigation, nothing evidenced any intent on plaintiff's part
to have any janitorial service identified or described as party to the action, agent would not be able to
properly investigate seeing and marshal evidence due to failure to be promptly named and attempted
amendment concerned cause of dangerous condition by naming new party defendant. NRCP 10(a), 15(c).
OPINION
In this appeal from the trial court's partial dismissal of appellant Ardis M. Lunn's amended
complaint for personal injuries, we are required to determine whether the court erred in ruling
that the statute of limitations barred appellant's amended cause of action against a defendant
who was originally pled under a Doe allegation. Finding no error, we affirm.
Appellant alleged in her initial complaint that on May 28, 1975 she slipped and fell in the
common area of the Boulevard Mall Shopping Center in Las Vegas, and as a result incurred
personal injuries. The complaint was filed on July 14, 1976, and included what has become a
common John Doe paragraph.1 The complaint named Doktor's Pet Center, Chrysler
Realty, Does I-X, and Roes I-X as defendants.
graph.
1
The complaint named Doktor's Pet Center, Chrysler Realty, Does I-X, and Roes I-X
as defendants. It alleged that Doktor's Pet Center was negligent in allowing a liquid to flow
from the store onto the common walkway. Furthermore, it alleged that all the defendants
knew or should have known of the slippery condition and that they failed to inspect and
remedy such situation.
On August 23, 1976, the appellant filed her first amended complaint which substituted
Balcor Realty for Chrysler Realty as the owner of Boulevard Mall and reasserted in hac verba
the paragraphs dealing with fictitious parties. Thereafter, on December 13, 1977, appellant
filed the second amended complaint which substituted Dr. Arthur Statt for Doe I as the
franchisee of Doktor's Pet Center. In addition, the complaint purported to substitute American
Maintenance for Roe I as an agent hired to maintain the common area, and state a cause of
action against all the defendants for negligence in causing or allowing the liquid substance to
flow onto the common walkway.
American Maintenance successfully moved to dismiss the second amended complaint as to
itself for failure to state a cause of action within the limitations period.
2
The district court in
granting the motion, determined that the amendment constituted an attempt to add a new
party, rather than simply substitute one. The court reasoned that American Maintenance had
been inadequately described as Roe I in the original and first amended complaints. This
effectively resulted in a new cause of action against a new defendant beyond the limitations
period.
____________________

1
Paragraph V of the complaint provides:
Plaintiff is informed and believes that Does I through X are persons who were employed by
Defendants, or associated with Defendants, who in the course of such an employment or association were
negligent, and as a result of such negligence, the Plaintiff has suffered special and general damages as
more fully set forth hereunder. At such time as the true names and identities of said Does I through X
become known to Plaintiff she shall ask leave of the Court to amend her Complaint so as to set forth the
true names of such persons.
Although NRCP 10(a) expressly authorizes the use of fictitious names, plaintiffs should not be lulled thereby
into a false feeling of procedural security. See Craig v. United States, 413 F.2d 854 (9th Cir. 1969). See also Hill
v. Summa Corporation, 90 Nev. 79, 81, 518 P.2d 1094, 1095 (1974); NRCP 15(c). Where, unlike the instant
case, the designated but unnamed defendants are properly joined and described pursuant to NRCP 10(a), a
subsequent amendment providing their true names relates back to the date of the original pleading.

2
An action to recover damages for personal injury must be brought within two years. NRS 11.190.
[Headnote 1]
Appellant contends that American Maintenance should not have been dismissed because
they were alleged in the initial complaint under a fictional name. Nevada's fictitious
defendant rule allows a plaintiff to plead a cause of action against a party whose name is not
known; when the name is discovered the pleading may then be amended. NRCP 10(a). Such
an amendment relates back to the date of the original pleading allowing a defendant's true
name to be substituted after the expiration of the statutory limitation. NRCP 15(c).
[Headnote 2]
The rule allowing the amendment as to a defendant's identity subsequent to the running of
the statute of limitations was designed to apply in the situation where the plaintiff is
cognizant of the identity or description of the fictitiously named defendant, but not his true
name. State ex rel. Dep't Hwys. v. District Court, 95 Nev. 715, 717, 601 P.2d 710, 711
(1979). Accordingly, we have held that when a plaintiff has relied on NRCP 10(a), properly
alleging contemplated defendants and uncertainty as to their names, subsequently providing
their true names in an amended pleading, a substitution is effected, not an addition of a party
defendant. Hill v. Summa Corporation, 90 Nev. at 81, 518 P.2d at 1095. Attempts to broaden
our fictitious defendant practice to encompass situations where the plaintiff was ignorant not
only of the defendant's name, but also of his identity or even his involvement have been
unsuccessful. See Garvey v. Clark County, 91 Nev. 127, 532 P.2d 269 (1975); Knight v.
Witco Chemical Co., 89 Nev. 586, 517 P.2d 792 (1973). We have recognized the problem of
allowing new parties to be brought in after the expiration of the period of limitation. Servatius
v. United Resort Hotels, 85 Nev. 371, 455 P.2d 621 (1969). Accordingly, we have interpreted
the fictitious defendant rule as providing a narrow exception, allowing the pleading of
fictitious defendants only where there is an uncertainty as to their names. Hill v. Summa
Corporation, 90 Nev. at 81, 518 P.2d at 1095.
[Headnote 3]
In Servatius v. United Resort Hotels, 85 Nev. 371, 455 P.2d 621 we announced the three
factors that we perceived as governing the determination of when a proper defendant may be
involved in an amended pleading even though the statute of limitations has run. They are that
the proposed party defendant (1) have actual notice of the institution of the action; (2) knew
that it was the proper defendant in the action; and (3) was not in any way misled to its
prejudice. (Citations omitted.) Id. at 373, 455 P.2d at 622-23. Those factors are not present
here.
[Headnote 4]
None of the allegations in the original or first amended complaint filed by appellant met
any of the criteria established in Servatius. There was nothing in the original pleadings which
would have notified respondent of the pending litigation and plainly nothing that would
evidence any intent on appellant's part to have any janitorial service, including respondent,
identified or described as a party to the action.
Finally, the prejudice referred to in Servatius is manifest in this case. The respondent's
ability to timely investigate the scene of the accident, to marshall the evidence, and to locate
witnesses has been lost or is greatly impaired. Appellant's inaction is directly responsible for
this inability.
Here, appellant sought to amend the complaint concerning the cause of the dangerous
condition and by expressly naming respondent as a defendant. We therefore hold that the
amendment brought in a new party defendant and did not merely correctly identify a party
defendant already before the court. The trial court acted properly in determining that
appellant's prior pleadings did not toll the statute of limitations.
3

The order of dismissal is affirmed
____________________

3
Appellant attempted to justify the proposed substitution of American Maintenance for Roe I on the basis
that their true name was only recently discovered. The fruits of appellant's belated depositions taken October 20,
1977, five months after the running of the limitation period fails to provide a basis for any such tolling of the
statute.
____________
96 Nev. 791, 791 (1980) Kell v. State
SCOTT DEAN KELL, Appellant, v. THE STATE
No. 11062
October 29, 1980 618 P.2d 350
John E. Gabrielli, Judge.
Minor defendant was convicted before the district court of first degree murder, and he
appealed. The Supreme Court held that minor who was charged with murder was not entitled
to have his case transferred to the juvenile division of the court.
Affirmed.
96 Nev. 791, 792 (1980) Kell v. State
and Edward B. Horn, Deputy District Attorney, Washoe County, for Respondent.
1. Infants.
Juvenile court system is a creation of statute and possesses only jurisdiction expressly provided for in the
statute. NRS 62.010 et seq.
2. Infants.
Minor who was charged with murder was not entitled, under Juvenile Court Act, to have his case
transferred to juvenile division of the court. NRS 62.010 et seq., 62.040, 62.040, subds. 1, 1(c), 1(c)(1),
62.060, subd. 1, 62.170, subd. 7, 62.290.
OPINION
Per Curiam:
Appellant Scott Dean Kell, a minor, was charged with murder in the district court. He
moved the court for an order directing an investigation to determine whether he should be
treated as a juvenile in the juvenile division of the district court. The district court, however,
concluded that it lacked authority under the Juvenile Court Act, NRS 62.010 et seq., to
transfer a case where the juvenile was charged with murder to the juvenile division of the
court, and, accordingly, denied appellant's motion. The case proceeded to trial. Kell was
convicted of first degree murder. He appeals the conviction. We affirm.
[Headnotes 1, 2]
We recognize, as did the district court, that there are ambiguities in the Juvenile Court Act
which may suggest that the legislature intended to allow a juvenile charged with murder or
attempted murder, NRS 62.040(1)(c)(1); 62.060(1), to make a showing of exceptional
circumstances sufficient to warrant his transfer to the juvenile division.
1
However, the
juvenile court system is a creation of statute, and it possesses only the jurisdiction expressly
provided for it in the statute.
____________________

1
The legislative history of the act, Minutes of the Senate Judiciary Committee, April 21, 1977, indicates that
the proponents of the bill thought that transfer of such cases would be possible on a showing of exceptional
circumstances justifying juvenile treatment of the offender. There is a further indication of this intent in NRS
62.170(7), which provides:
During the pendency of a criminal or quasi-criminal charge of murder or attempted murder, a child
may petition the juvenile division for temporary placement in a juvenile detention facility pending final
disposition of the issue of jurisdiction. [Emphasis added.]
96 Nev. 791, 793 (1980) Kell v. State
jurisdiction expressly provided for it in the statute. See Levy & Zentner Co. v. Justice Court,
48 Nev. 425, 233 P. 40 (1925); Paul & Co. v. Beegan & Co., 1 Nev. 327 (1865). Although a
statutory provision by which a juvenile charged with murder or attempted murder may have
his case transferred to the juvenile division of the district court may well be desirable, in
certain circumstances, see NRS 62.290, we may not imply ex nihilo a grant of jurisdiction to
try such an offense as a delinquent act within the juvenile court's jurisdiction under the
present provisions of NRS 62.040(1)(c).
2

____________________

2
NRS 62.040 provides that the juvenile court has exclusive original jurisdiction in proceedings: . . . . (c)
Concerning any child living or found within the county who has committed a delinquent act. A child commits a
delinquent act if he: (1) Commits an act designated a crime under the law of the State of Nevada except murder
or attempted murder. . .
____________
96 Nev. 793, 793 (1980) Carrillo v. State Farm Mut. Auto. Ins.
ROBERT CARRILLO and ANNIE CARRILLO, Appellants and Cross-Respondents,
v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Respondent and Cross-Appellant.
No. 11738
October 29, 1980 618 P.2d 351
Appeal and cross-appeal from a partial summary judgment. Eighth Judicial District Court,
Clark County; Keith C. Hayes, Judge.
Appeal and cross-appeal were taken from amended judgment entered by the district court
awarding insureds $5,000 survivor's benefits for death of their daughter on each of five
automobile policies, and denying attorney fees and prejudgment interest to insureds. The
Supreme Court, Batjer, J., held that: (1) where deceased daughter did not contribute any
wages to her parents, the insureds, insureds suffered no economic loss and were entitled to
recover only $5,000 per automobile policy; (2) insureds were entitled to recover survivor's
benefits for death of their daughter on five automobile policies, inasmuch as no ultimate
value could be placed on her life; (3) insurer was liable for interest on overdue survivor's
benefits; and (4) insurer owed reasonable attorney fees to insureds.
[Rehearing denied January 13, 1981] Rogers, Monsey, Woodbury & Berggreen, Las
Vegas, for Appellants and Cross-Respondents.
Rogers, Monsey, Woodbury & Berggreen, Las Vegas, for Appellants and
Cross-Respondents.
Rose, Edwards, Hunt & Pearson, Ltd., Las Vegas, for Respondent and Cross-Appellant.
1. Insurance.
Basic reparation benefits payable without regard to fault under former no-fault insurance law includes
survivor's benefits. NRS 698.070, subd. 5.
2. Insurance.
Plain meaning of insurance statute governing survivor's benefits is that survivor shall receive at least
$5,000 minimum benefits and up to $9,100 if actual economic loss can be proved. NRS 698.070, subd.
5.
3. Insurance.
Phrase things of economic value contained in insurance statute governing survivor's benefits indicates
something affecting the material resources of survivors, such as wages or services. NRS 698.070, subd.
5.
4. Death.
Noneconomic detriment to survivors, such as value of future companionship, society, and comfort, is
recoverable in wrongful death action. NRS 41.090, subd. 2, 698.120, 698.280, subd. 1(i).
5. Insurance.
Plain meaning of insurance statute governing survivor's benefits excludes damages for loss of
companionship, comfort, and society from survivor's benefits. NRS 698.070, subd. 5.
6. Insurance.
Where deceased daughter did not contribute any of her wages to parents, the insureds, insureds did not
suffer economic loss and were entitled to recover only $5,000 per policy pursuant to statute governing
survivor's benefits. NRS 698.070, subd. 5.
7. Insurance.
Motor Vehicle Insurance Act does not preclude stacking of obligations to pay basic reparation benefits as
long as payment does not entail recovery for same items of damage. NRS 698.010 et seq.
8. Insurance.
Insureds were properly allowed to recover survivor's benefits on five automobile policies for death of
their daughter, in that no ultimate value could be placed on her life. NRS 698.070, subd. 5.
9. Insurance.
Where insurer paid $5,000 to insureds but erroneously refused to pay remainder of their claim, insurer
was liable for interest on amount it owed in excess of $5,000, whether or not it acted in good faith in
rejecting claim. NRS 698.410, subds. 1, 2.
10. Insurance.
Allowance of interest on overdue payments is not dependent upon presence or absence of insurer's good
faith in rejecting claim. NRS 698.410, subds. 1, 2.
11. Insurance.
Statute providing that overdue payments on insurance policy bear interest at rate of 18 percent per year is
absolute on its face. NRS 698.410, subd. 2.
12. Insurance.
Language of statute providing that if overdue benefits are recovered in action against insurer,
reasonable attorney fee "shall be paid by the reparation obligor to the attorney" is
mandatory.
in action against insurer, reasonable attorney fee shall be paid by the reparation obligor to the attorney is
mandatory. NRS 698.420.
13. Insurance.
Insurer owed reasonable attorney fees to insureds, where it also owed overdue survivor's benefits on
automobile policies to insureds for death of their daughter. NRS 698.420.
OPINION
The Carrillos' daughter Barbara was killed in a one-car accident on July 29, 1977. The car
was owned by the Carrillos and insured by State Farm Mutual Automobile Insurance
Company (State Farm). Pursuant to terms of the insurance policy and NRS 698.070(5), State
Farm paid the Carrillos $5,000 for survivor's benefits. On September 6, 1977, the Carrillos
filed an amended complaint for declaratory relief against State Farm seeking, among other
things, a declaration that they were entitled to recover survivor's benefits under each of the
five automobile policies issued to them by State Farm and that they were entitled to recover
$9,100, the maximum survivor's benefits, under each policy.
On November 3, 1977, the Carrillos moved for partial summary judgment. They argued
that state public policy favors stacking of insurance policies and that they need not prove
actual monetary loss in order to recover maximum survivor's benefits pursuant to NRS
698.070(5).
The district court found that the Carrillos were entitled to recover under each policy.
However, because their daughter did not contribute anything of economic value at the time of
her death, the district court awarded the minimum benefits of $5,000 per policy, together with
interest at the rate of 18% per annum from 30 days after proof of loss was received by State
Farm. See NRS 698.410.
Both parties moved to amend the judgment. The Carrillos sought attorney's fees. State
Farm disagreed with the findings of fact, the award of 18% interest and the stacking of
policies. Following a rehearing, the district judge vacated the November 3, 1978, judgment.
On December 5, 1978, he entered a final judgment awarding the Carrillos $5,000 survivor's
benefits on each of the five policies. On December 7, 1978, he entered an order denying
attorney's fees and prejudgment interest.
In the district court the Carrillos argued that they are entitled to the maximum survivor's
benefits of $9,100 on each policy because they had proved that their daughter was earning
$237 per week when she died. On appeal, they argued that things of economic value"
include the value of future companionship, society, and comfort.
of economic value include the value of future companionship, society, and comfort. State
Farm responds that recovery of more than the minimum benefits of $5,000 requires proof of
actual economic loss to the survivors.
[Headnote 1]
Basic reparations benefits payable without regard to fault under Nevada's former no-fault
insurance law include survivor's benefits. NRS 698.070(5) provides that
Survivor's benefits means payment, in an amount not less than $5,000 and, except
as provided in this subsection, not more than the amount a decedent would have
received in disability income benefits for a period of 1 year if he had survived, to
compensate survivors for loss of contributions of things of economic value which the
survivors would have received from the decedent if he had not suffered the fatal injury,
less expenses the survivors avoided by reasons of the decedent's death.
Arguably, the statute provides for compensation for economic loss up to $9,100 (maximum
disability benefits decedent could have received under NRS 698.070(1)), but not less than
$5,000.
[Headnote 2]
If the survivors can prove actual economic loss in excess of $5,000, they might be able to
recover up to $9,100. NRS 698.070(5) can be distinguished from transfer-type statutes that do
not require proof of actual economic loss.
1
' The plain meaning of the statute is that the
survivor shall receive at least $5,000 minimum benefits and up to $9,100 if actual economic
loss can be proved.
[Headnotes 3-5]
Things of economic value indicates something affecting the material resources of the
survivors, such as wages or services. Noneconomic detriment, NRS 698.120, is recoverable
in a wrongful death action. NRS 698.280(1)(i); NRS 41.090(2). Pecuniary value has been
construed to include loss of comfort, companionship, and society. However, the word
pecuniary is not contained in NRS 698.070(5). The plain meaning of that statute excludes
damages for the loss of companionship, comfort, and society from survivor's benefits.
[Headnote 6]
The Carrillos concede that their daughter did not contribute any of her wages to them.
____________________

1
Compare K.S.A. 1977 Supp. 40-3103(y), which provides for allowances to all survivors for the loss of an
injured person's monthly earnings after his or her death, up to a maximum of not less than $650 per month. Hand
v. State Mut. Auto. Ins. Co., 577 P.2d 1202 (Kan.App. 1978).
any of her wages to them. Based upon that concession, the district judge concluded that the
Carrillos are entitled to only $5,000
2
per policy because they suffered no economic loss.
State Farm argues that stacking is appropriate only when actual damages exceed the
benefits recoverable on a single policy. The Carrillos argue that the proscription against
double recovery for the same items of damages and the actual damage limitation on stacking
policies should not apply to survivor's benefits. They compare the benefits to life insurance
and argue that they paid the premiums and should receive the benefits.
[Headnotes 7, 8]
The Nevada Motor Vehicle Insurance Act does not preclude stacking of obligations to pay
basic reparation benefits as long as payment does not entail recovery for the same items of
damage. Cooke v. Safeco Ins. Co., 94 Nev. 745, 587 P.2d 1324 (1978); Travelers Ins. Co. v.
Lopez, 93 Nev. 463, 567 P.2d 471 (1977). As the court noted in Lopez, NRS 698.360 allows
additional optional coverage for added reparation benefits. The added coverage can be
accomplished by purchasing separate policies providing for the same basic reparations
benefits. In this case, the Carrillos had five State Farm policies providing for the same
survivor's benefits. Cases previously decided by this court concerning stacking involved
actual damages in excess of the combined limits of all the policies. See e.g., United Services
Automobile Ass'n v. Dokter, 86 Nev. 917, 478 P.2d 583 (1970); Cooke v. Safeco Ins. Co., 94
Nev. 745, 587 P.2d 1324 (1978). Inasmuch as no ultimate value can be placed on the life of
any person, the stacking ordered by the district judge is permissible.
[Headnotes 9-11]
Benefits are overdue if not paid within 30 days after the insurer receives reasonable proof
of the fact and amount of loss realized. NRS 698.410(1). Overdue payments bear interest at
the rate of 18% per year. NRS 698.410(2). State Farm paid $5,000 to the Carrillos but refused
to pay the remainder of their claim. State Farm erroneously rejected the claim. It did so at its
own risk. The allowance of interest is not dependent upon the presence or absence of State
Farm's good faith in rejecting the claim. Ortiz v. Safeco Ins. Co., 366 A.2d 695 (NJA App.
1976); cf. State Farm Mut. Auto. Ins. Co. v. Christensen, 88 Nev. 160, 494 P.2d 552 (1972)
(prejudgment interest accrued from default against uninsured motorist despite unresolved
bona fide dispute about stacking). The statute is absolute on its face.
____________________

2
The Carrillos have settled their wrongful death action against the driver of the car. As noted above, damages
for loss of companionship, society, and comfort are recoverable in such an action. NRS 41.090(2).
face. State Farm is liable for the interest on the amount it owes in excess of $5,000.
[Headnotes 12, 13]
NRS 698.420 provides that if overdue benefits are recovered in an action against the
insurer, a reasonable attorney's fee shall be paid by the reparation obligor to the attorney.
The language of the statute is mandatory. Because State Farm owes overdue benefits, it
therefore owes reasonable attorney's fees to the Carrillos.
The case is affirmed in part, reversed in part and remanded to the district court for the
purpose of fixing interest and awarding reasonable attorney fees.
____________
96 Nev. 798, 798 (1980) Kaplan v. State
MOREY KAPLAN, Also Known as HAROLD HARTZ, Jr., Appellant,
No. 12590
October 29, 1980 618 P.2d 354
Appeal from order denying motion for change of venue, Second Judicial District Court,
Washoe County; Peter I. Breen, Judge.
1

From order of the district court denying defendant's motion for a change of venue for his
second trial on murder charge, defendant appealed. The Supreme Court, Mowbray, C. J., held
that: (1) it would not be presumed that juror exposure to information about defendant's prior
conviction or to news accounts of the crime with which he was charged would, alone, deprive
him of due process, and (2) denial of the motion was not abuse of discretion, in light of fact
that, though it was asserted that eight of the twelve jurors selected for the second trial had
been exposed to publicity concerning the case, four were aware of his first trial and
conviction, three knew of his prior criminal record and four had formed opinions that he was
guilty, all of the jurors indicated that they could render fair verdict based on the evidence
presented in court.
Affirmed.
____________________

1
An order was previously filed in this case affirming the judgment of the district court, with provision for the
subsequent filing of this opinion.
Johnson, Belaustegui & Robison, Reno, for Appellant.
and Edwin T. Basl, Deputy District Attorney, Washoe County, for Respondent.
1. Jury.
Defendant is entitled to have a panel of impartial jurors, but a qualified juror need not be totally ignorant
of the facts and issues involved.
2. Criminal Law.
Under certain circumstances, such as where influence of news media has been so outrageous that it
pervades the proceedings and utterly corrupts the trial atmosphere, prejudice will be presumed.
Where defendant, who had been granted new trial after he was found guilty of murder, did not contend
that content of the news concerning the case was so biased or inflammatory as to utterly corrupt the
proceedings, it would not be presumed that juror exposure to information about defendant's prior
conviction or the news accounts of the crime would, alone, deprive him of due process. U.S.C.A.Const.
Amend. 14.
4. Criminal Law.
Denial of defendant's motion for change of venue for his second trial on murder charge was not abuse of
discretion, in light of fact that, though it was asserted that eight of the twelve jurors selected for the second
trial had been exposed to publicity concerning the case, four were aware of the first trial and conviction,
three knew of defendant's prior criminal record and four had formed opinions that defendant was guilty, all
of the jurors indicated that they could render fair verdict based on the evidence presented in court.
OPINION
Morey Kaplan appeals from the district court's order denying his motion for change of
venue of his trial from Washoe County. Kaplan was charged in an indictment with the murder
of Peggy Jean Davis. After a jury trial in 1979 Kaplan was found guilty. However, because of
certain prejudicial statements made by the special prosecutor concerning Kaplan's prior
criminal record which were published by the media, Kaplan was granted a new trial.
After the date for his second trial was set, Kaplan moved for a change of venue from
Washoe County. Following selection of the jury the motion was argued and denied. This
appeal followed.
Kaplan contends the district judge erred in denying his motion for change of venue
because a fair trial cannot be had in Washoe County in view of the influence of the pervasive
publicity" surrounding the murder of Peggy Davis, Kaplan's alleged involvement in the
crime, his conviction following the first trial, and his prior criminal record.
publicity surrounding the murder of Peggy Davis, Kaplan's alleged involvement in the crime,
his conviction following the first trial, and his prior criminal record. To support this
contention Kaplan argues that of the twelve jurors selected for his second trial, eight have
been exposed to publicity concerning the case, four are aware of his first trial and conviction,
three know of his prior criminal record, and four have already formed opinions that Kaplan is
guilty of the crime.
[Headnote 1]
A defendant is entitled to have a panel of impartial jurors. Murphy v. Florida, 421 U.S.
794 (1975). However, a qualified juror need not be totally ignorant of the facts and issues
involved.
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.
Id. at 800, quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961).
[Headnote 2]
Under certain circumstances, as the Court noted in Murphy v. Florida, supra, prejudice
will be presumed, i.e., where the influence of the news media is so outrageous that it pervades
the proceedings and utterly corrupts the trial atmosphere. See, e.g., Sheppard v. Maxwell, 384
U.S. 333 (1966); Estes v. Texas, 381 U.S. 532 (1965); Rideau v. Louisiana, 373 U.S. 723
(1963); Irvin v. Dowd, supra.
[Headnotes 3, 4]
Here, Kaplan does not argue that the content of the news concerning this case was so
biased or inflammatory as to utterly corrupt the proceedings, and thus we will not presume
that juror exposure to information about Kaplan's prior conviction or to news accounts of the
crime with which he is charged alone deprives him of due process. Murphy v. Florida, supra.
Kaplan's contention that he cannot receive a fair trial in Washoe County is based on the
assertion that publicity in the community was so extensive that most of the present jurors
have some knowledge of the case and some have already formed opinions that Kaplan is
guilty.
We do not agree with Kaplan's argument that he cannot receive a fair trial in Washoe
County. The portions of the voir dire transcript to which we have been directed as support for
Kaplan's contention do not establish that the "setting of the trial [is] inherently
prejudicial or that the jury-selection process of which he complains permits an inference
of actual prejudice."
Kaplan's contention do not establish that the setting of the trial [is] inherently prejudicial or
that the jury-selection process of which he complains permits an inference of actual
prejudice. Murphy v. Florida, 421 U.S. at 803. See also Dobbert v. Florida, 432 U.S. 282
(1977). Each of the jurors was extensively examined, and all of them, including the four who
allegedly have formed opinions that Kaplan is guilty, have assured the court that they can
render a fair verdict based on the evidence presented in court.
Under these circumstances, we believe the district judge did not abuse his discretion in
denying Kaplan's motion for a change of venue. Cutler v. State, 93 Nev. 329, 566 P.2d 809
(1977).
Affirmed.
Thompson, Manoukian, and Batjer, JJ., concur.
My respected colleagues hold appellant has failed to demonstrate that pretrial publicity
adversely affected his prospects for a fair trial in Washoe County, because all the jurors
assertedly felt able to render a fair verdict.
I suggest such conclusory statements do not offset realities about those jurors, who were
seated after the district judge ruled upon all challenges for cause, and after appellant had
exercised his peremptory challenges. As my brethren note, eight of the jurors thus seated
acknowledged they had been exposed to publicity on appellant's case; four knew another jury
had previously found him guilty; three knew his prior criminal record; four had already
formed the opinion that he was guilty.
With all respect, I submit that when a change of venue could palliate the prospect of
prejudice, a trial before such a jury does not comport with contemporary standards of due
process. Irvin v. Dowd, 366 U.S. 717, 722 and 728 (1966). I believe a change of venue should
have been granted.
____________
96 Nev. 802, 802 (1980) Burns v. State
WILLIAM BURNS, NATHAN F. KIMMEL, and RAYMOND A. LOVELL,
Appellants, v. THE STATE OF NEVADA, Respondent.
No. 11041
October 29, 1980 618 P.2d 881
Appeals from judgments of conviction. First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
Defendants were convicted in the district court of two counts of first degree murder and
six counts of attempted murder arising out of a prison riot, and they appealed. Codefendant
appealed from his conviction on charge of battery with use of a deadly weapon. The Supreme
Court, Mowbray, C. J., held that: (1) in view of extensive voir dire and repeated admonitions
of trial court and under totality of circumstances, limited exposure of two jurors to publicity
about another prosecution arising out of prison riots did not raise such a probability of
prejudice that circumstances of trial were rendered inherently suspect; thus, trial court did not
err in refusing to grant a mistrial, and (2) where various charges of attempted murder were not
dismissed until completion of testimony of accomplice, who pled guilty to one count of
second degree murder during trial, admission of such testimony violated rule enunciated in
Franklin v. State; however, inasmuch as state's case did not rely substantially upon testimony
of accomplice for whose testimony it bargained and that defendants' convictions would have
occurred without accomplice's testimony, admission of such testimony did not constitute
prejudicial error.
Affirmed.
Jacquette & Kilpatrick, Carson City, for Appellant Burns.
Robert F. Butler, Reno, for Appellant Kimmel.
William K. Lohse, Reno, for Appellant Lovell.
Richard H. Bryan, Attorney General, Carson City, for Respondent.
1. Criminal Law.
Supreme Court decision that indictment charging defendant with battery with use of a deadly weapon was
law of case and therefore defendant could not renew his challenge to the indictment.
2. Criminal Law.
In view of extensive voir dire and repeated admonitions of trial court and under totality of circumstances,
limited exposure of two jurors to publicity about another prosecution arising out of prison riots did not
raise such a probability of prejudice that circumstances of trial were rendered
inherently suspect; thus, trial court did not err in refusing to grant a mistrial.
96 Nev. 802, 803 (1980) Burns v. State
raise such a probability of prejudice that circumstances of trial were rendered inherently suspect; thus, trial
court did not err in refusing to grant a mistrial.
3. Witnesses.
Where possibility of confusion was obvious as to which previous statements defense counsel were
inquiring about, trial judge was within his discretion in requiring that allegedly inconsistent statements be
shown to the witness. Fed. Rules Evid. Rule 613 note, 28 U.S.C.A.; NRS 50.115, 50.135.
4. Criminal Law.
Where there was no evidence in record that state had entered into any plea bargain with accomplice in
exchange for his testimony or had offered or obtained any sort of immunity for him, admission of
accomplice's testimony did not require reversal under Franklin v. State.
5. Criminal Law.
Where various charges of attempted murder were not dismissed until completion of testimony of
accomplice, who pled guilty to one count of second degree murder during trial, admission of such
testimony violated rule enunciated in Franklin v. State; however, inasmuch as state's case did not rely
substantially upon testimony of accomplice for whose testimony it bargained and that defendants'
convictions would have occurred without accomplice's testimony, admission of such testimony did not
constitute prejudicial error.
6. Criminal Law.
State may bargain properly for an accomplice's testimony by offering bargain on condition that
accomplice testify fully and fairly; if accomplice should refuse to testify, after bargain has been approved
by court and plea accepted, state may revoke the bargain and if accomplice testifies but state believes that
testimony is false, it may institute a prosecution for perjury.
7. Criminal Law.
State may not bargain for testimony and withhold its performance until after accomplice has testified.
OPINION
This case grows out of a riot at the Maximum Security Prison in Carson City. Appellants
Lovell and Kimmel were each convicted of two counts of first degree murder and six counts
of attempted murder. Appellant Burns was convicted of one count of battery with use of a
deadly weapon. Burns, Kimmel, and Lovell appeal their convictions, alleging numerous
errors in the conduct of the trial, which we reject. We therefore affirm.
THE FACTS
On September 27, 1976, there was an altercation between white and black prisoners.
Evidence presented at trial showed that racial tensions were high, that certain white and
Indian prisoners planned a retaliatory attack on the black prisoners.
96 Nev. 802, 804 (1980) Burns v. State
The attack took place when a riot occurred in the mess hall of the prison on October 10, 1976,
leaving two black prisoners dead, and four black prisoners wounded, two seriously.
The state charged eighteen white and Indian prisoners with two counts of open murder and
six counts of attempted murder. In this case, appellants Burns, Kimmel and Lovell were tried
with two other prisoners, Chism and Bender.
Chism was permitted to plead guilty to one count of second degree murder during the trial,
and testified for the state. Bender was acquitted of all charges.
The evidence at trial showed that appellants Kimmel and Lovell participated in the
planning of the attack, and that each had stabbed at least one black prisoner. Appellant Burns
admitted striking one black prisoner with a weighted sock, but claimed he had acted in self
defense.
The jury found Burns guilty of battery with use of a deadly weapon, and found Lovell and
Kimmel guilty of two counts of first degree murder and six counts of attempted murder.
THE ASSIGNMENTS OF ERROR
[Headnote 1]
1. Initially, appellant Burns claims that the indictments below were too vague to give him
notice of the charges. This claim was rejected by this Court in Burns v. Sheriff, 93 Nev. 530,
569 P.2d 407 (1977). That decision is now the law of this case, and Burns may not renew his
challenge to the indictment. Hall v. State, 91 Nev. 314, 535 P.2d 797 (1975).
[Headnote 2]
2. Appellant Lovell contends that it was error for the trial court to refuse to grant a
mistrial when it appeared that the jury had been exposed to certain publicity about a separate
trial of another group of defendants arising from the riot. We do not agree. The trial court
conducted extensive individual voir dire examinations of the jurors. The judge excused two
jurors who may have been influenced by the publicity. Two other jurors, who had heard of the
publicity, but who stated that they had not been influenced by it, were permitted to remain on
the jury. The remaining jurors had not been exposed to the publicity. In view of the extensive
voir dire and the repeated admonitions of the trial court, Crowe v. State, 84 Nev. 358, 441
P.2d 90 (1968), and under the totality of the circumstances of this case, see Marshall v.
United States, 360 U.S. 310, 312 (1959), the limited exposure of two jurors to publicity about
another trial did not raise such a probability of prejudice that the circumstances of the trial
were rendered inherently suspect. See Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes v.
Texas, 3S1 U.S. 532 {1965); Turner v. Louisiana, 379 U.S. 466 {1965).
96 Nev. 802, 805 (1980) Burns v. State
381 U.S. 532 (1965); Turner v. Louisiana, 379 U.S. 466 (1965). The district judge therefore
did not err in refusing to grant a mistrial.
[Headnote 3]
3. Appellant Kimmel also suggests that the trial court erred by ruling that the witnesses be
shown their prior statements when they were cross-examined. NRS 50.135 provides that a
prior inconsistent statement need not be shown nor its contents disclosed to the witness. It
appears from the transcript of the trial that many of the witnesses (some of whom had
testified up to five times previously with respect to this matter) were confused as to which
previous statements defense counsel were inquiring about. Commentary on Federal Rule of
Evidence 613, from which NRS 50.135 was taken, indicates that the trial court has discretion,
in its control over interrogation and the presentation of evidence, see NRS 50.115, to require
that a witness be shown an allegedly inconsistent statement before being examined about it.
Federal Rules of Evidence, 75 F.R.D. 89, 352 (1976); see also, United States v. Rogers, 549
F.2d 490 (8th Cir. 1976). We hold therefore that, in this case, where the possibility of
confusion was obvious, the trial judge was within his discretion in requiring that the allegedly
inconsistent statements be shown to the witnesses. See 10 Moore's Federal Practice
613.01[3](a) (2d ed. 1979).
4. Questions have been raised relating to the testimony of two accomplice witnesses,
Pittman and Chism. Pittman had charges pending against him because of the prison riot, and
Chism testified before his plea bargain had been completely performed by the state.
Appellants in this case assert, as grounds for reversal, that admission of the Pittman and
Chism testimony require reversal under Franklin v. State, 94 Nev. 220, 577 P.2d 860 (1978).
1

[Headnote 4]
With respect to the testimony of Pittman, the rationale of Franklin does not apply.
Although he had apparently been charged with several crimes (the record does not reflect
what charges were pending against him), there is no evidence in the record before us that the
state had entered into any plea bargain with him in exchange for his testimony, or had offered
or obtained any sort of immunity for him. This distinguishes this case from Franklin. If
Pittman had not wished to testify, his privilege against self-incrimination remained, and there
was no pressure of a conditional plea bargain to compel his testimony. The rule of Franklin is
therefore inapplicable to this situation.
____________________

1
Although Franklin was decided after the trial at issue here, both parties assume that the decision is
applicable to this case.
96 Nev. 802, 806 (1980) Burns v. State
[Headnote 5]
The state permitted Chism to plead guilty to one count of second degree murder during the
trial. The change of plea was made and accepted outside the presence of the jury, in order to
minimize the possibility of prejudice to the other defendants. United States v. Kelly, 349 F.2d
720, 767 (2d Cir. 1965). In return for Chism's testimony and his plea to one count of second
degree murder, the prosecution moved to dismiss only the other count of open murder. The
remaining six counts of attempted murder were not dismissed until the completion of Chism's
testimony. This was a violation of the Franklin rule.
[Headnotes 6, 7]
The state may bargain properly for an accomplice's testimony by offering the bargain on
the condition that the accomplice testify fully and fairly. If the accomplice should refuse to
testify, after the bargain has been approved by the court and the plea accepted, the state may
move to revoke the bargain. If the accomplice testifies, but the state believes that the
testimony is false, it may institute a prosecution for perjury. Gamble v. State, 95 Nev. 904,
604 P.2d 335 (1979). What the state may not do is bargain for testimony, and withhold its
performance (whether it is moving for acceptance of a plea or dismissal of other charges)
until after the accomplice has testified.
Our conclusion that the Franklin rule was violated in this case, however, does not dispose
of the issue. In order for reversal to be appropriate, the state's case must have relied
substantially upon the testimony of the accomplice for whose testimony it bargained. Franklin
v. State, 94 Nev. at 223, 577 P.2d at 861. Upon review of the record, we are convinced
beyond a reasonable doubt that appellants' convictions would have occurred without Chism's
testimony. Chism's testimony with respect to Kimmel was exculpatory, if anything; and his
testimony with respect to Burns and Lovell added nothing substantial to the state's case. Since
we conclude that admission of this testimony was not prejudicial to appellants, we shall not
reverse.
As the appellants have not demonstrated that any prejudicial error was committed in the
trial, we affirm their judgments of conviction.
Thompson, Gunderson, and Batjer, JJ., concur.
Although I concur in the result of the opinion of the court, I disagree that the prosecutorial
tactics involving the plea bargaining with the defendant Chism, violated his codefendants'
rights to due process.
96 Nev. 802, 807 (1980) Burns v. State
rights to due process. Here, during the trial, the state offered Chism the opportunity to plead
guilty to one count of second degree murder. Although the plea was entered prior to the trial's
progressing any further, and the remaining count, which also charged open murder, was
dismissed, the several other charges of attempted murder were left in abeyance pending
completion of Chism's testimony. The majority terms this a violation of Franklin v. State, 94
Nev. 220, 557 P.2d 860 (1978). I would not assign error to that issue. My basis for
disagreement is two-fold.
First, I believe that Franklin, a near carbon copy of People v. Medina, 116 Cal.Rptr. 133
(Cal.App. 1974), represents bad precedent as well as an unreasonable intrusion into legitimate
prosecutorial prerogatives. I am no more disposed today than I was in Franklin, to establish
yet another technicality in criminal procedure hitherto unknown to Nevada Criminal
jurisprudence. . . . Franklin v. State, 94 Nev. at 228, 577 P.2d at 865 (Manoukian, J.,
dissenting). Indeed, not only is Medina a product of a California district appeals court, but
there were no other reported judicial opinions in the United States or Canada, that went to the
liberal extreme of Medina, fact for fact. See Rex v. Robinson, 70 D.L.R. 755, 30 B.C. 369
(1921)
Second, reluctantly recognizing the precedential viability of Franklin, there is no showing
in the instant case that Chism did not render a full, fair, and accurate account of the facts out
of which the charge arose. Franklin, 94 Nev. at 223, 577 P.2d at 862.
I believe that the Chism plea bargaining issue is controlled by the principles established in
LaPena v. State, 92 Nev. 1, 6, 544 P.2d 1187, 1190 (1970), where we held that although the
accomplice's participation in the crimes may have warranted a more serious charge than
second degree murder, plea bargaining is permissible. It is clear that until Franklin, grants of
immunity generally remained permissible [u]ntil legislatively [or otherwise] forbidden.
LaPena v. State, 92 Nev. at 6, 544 P.2d at 1190. See also Santobello v. New York, 404 U.S.
257 (1971). This is not a case for such limitation.
Although I join in the affirmance, I believe it to be unnecessary for the majority to find
error, harmless or otherwise, incidental to Chism's bargained for testimony.
____________
96 Nev. 808, 808 (1980) Carcione v. Clark
MARIETTA CARCIONE, Appellant, v. WILLIAM J.
CLARK and CLARA F. CLARK, Respondents.
No. 11775
October 29, 1980 618 P.2d 346
Appeal from judgment of the Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
Purchasers brought action against vendor for specific performance of contract to sell
home. The district court ordered specific performance, and vendor appealed. The Supreme
Court, Batjer, J., held that: (1) clearing of lis pendens was not condition precedent under
contract to vendor's obligation to perform; (2) vendor's refusal to clear lis pendens by posting
bond or other method, after motion to secure release of lis pendens had been denied, was
analogous to subjective impossibility and did not excuse her from conveying clear title; (3)
failure of purchasers to deposit $1,000 into escrow as earnest money when they applied for
new loan to purchase home, as required under contract provision upon clearing of lis pendens
by vendor, did not discharge vendor from her duty to convey; and (4) specific performance
was properly ordered.
Affirmed.
Wartman & Boyd, Ltd., Las Vegas, for Appellant.
Greenman & Goldberg, Las Vegas, for Respondents.
Clearing of lis pendens attached to home was not condition precedent to vendor's obligation to perform
under contract for sale of home to purchasers where only provisions affected by lis pendens clause in
contract were purchasers' obligation to apply and qualify for loan and term of lease of property until lis
pendens was cleared.
Trial court's findings will not be set aside unless clearly erroneous.
In action for specific performance of contract for sale of realty, vendor could not claim benefit of sales
condition that did not affect her duty to convey.
Vendor's refusal to clear lis pendens attached to home by posting bond or other method, after motion to
secure release of lis pendens was denied, was analogous to subjective impossibility and did not excuse her
from conveying clear title to home to purchasers under contract for sale of home; vendor was obligated to
clear lis pendens and to convey clear title.
Failure of purchasers to deposit $1,000 into escrow as earnest money when they applied for new loan, as
required under contract clause upon clearing of lis pendens on home by vendor, did not discharge vendor
from her duty to convey home, notwithstanding that vendor had made motion to
secure release of lis pendens and motion had been denied.
her duty to convey home, notwithstanding that vendor had made motion to secure release of lis pendens
and motion had been denied.
6. Equity.
Equity regards as done what in good conscience ought to be done.
Specific performance is available when terms of contact are definite and certain, remedy at law is
inadequate, plaintiff has tendered performance, and court is willing to order it.
Where contract for purchase of home was clear, subject matter was realty, purchasers had tendered
performance, and trial court was willing to supervise performance of contract, specific performance was
properly ordered.
OPINION
This is an action by William J. and Clara F. Clark, buyers, to compel Marietta Carcione,
seller, to specifically perform a contract to sell a home in Las Vegas. The district court
ordered specific performance and this appeal followed.
The relevant facts giving rise to this controversy are not disputed. The property in question
was listed for sale by Marietta Carcione sometime in October of 1975. At that time she was
married to Vincent Carcione, who was involved in a dispute with his ex-wife over child
support payments. To avoid endangering Marietta's alleged separate property, Vincent
executed a quitclaim deed of his interest in the home, if any, to Marietta. Vincent and
Marietta were divorced in December, 1975. Soon after the divorce, Vincent's ex-wife filed an
action to set aside the quitclaim deed as fraudulent. A lis pendens attached to the property and
remains attached to the property pending the outcome of the suit filed by Vincent's ex-wife.
The Clarks offered to buy the home for $58,000.
1
After being informed of the lien on the
property, the Clarks' real estate agent drafted an earnest money receipt and purchase
agreement, which Marietta accepted on January 10, 1976. The Clarks paid $1,000 as the first
and last months' rent for the property, as provided for in the agreement, and $10 as a lease
option deposit and moved into the home. The interpretation of this agreement was before the
district court which sat without a jury. That court found the Clarks had attempted to fully
perform, but their performance was prevented by Marietta, who refused to sell the property.
____________________

1
The parties admit in the briefs submitted to this court that the price was fair and reasonable at the time the
contract for sale was entered into.
The relevant part of the agreement relating to the removal of the lis pendens provided:
Sellers to lease above-described property to Cabaret International, Inc. for a period
of six months or less, depending upon sellers clearing of Lis Pendis [sic] on property,
for $500.00 per month plus utilities and associated dues. Lease is renewable under same
terms for a period of six months at buyers' discretion under above terms.
Upon clearing of Lis Pendix [sic] William Clark and Clara Clark are to apply and
qualify for a new VA loan in the amount of $58,000. [Sic] less the principal referred to
below. Upon applying for new loan, buyers will deposit into escrow $1,000 additional
money as earnest money.
Appellant contends the clearing of the lis pendens is a condition precedent to her
obligation to perform under the contract for sale, and since she made a bona fide attempt to
secure a release of the lis pendens by filing a motion to that effect on September 2, 1976,
2
she has no further obligation to convey the property to the Clarks.
[Headnotes 1, 2]
The trial court found that the lis pendens clause was not a condition precedent which
would shield appellant from any liability to convey under the contract. We agree. The
evidence adduced at trial supported this and this court has held that under NRCP 52(a) a trial
court's findings will not be set aside unless clearly erroneous. Schieve v. Warren, 89 Nev.
268, 510 P.2d 1367 (1973).
[Headnote 3]
It is clear from reading the contract language that this was an agreement to sell the
property in question. The only provisions affected by the lis pendens clause were the Clarks'
obligation to apply and qualify for a VA loan and the term of the lease. The Clarks chose to
proceed with the purchase despite the failure of this condition which may have discharged
them from that duty. Marietta cannot claim the benefit of a failed condition that did not affect
her duty to convey.
[Headnote 4]
Appellant further claims that she was unable to clear the lis pendens despite bona fide
efforts. Her refusal to clear the lis pendens by posting a bond or other method is analogous to
subjective impossibility and does not excuse her from conveying clear title.
____________________

2
The motion in Case No. A149147, McIntyre v. Carcione, was denied by Judge Goldman on September 22,
1976.
subjective impossibility and does not excuse her from conveying clear title. See Lear v.
Bishop, 86 Nev. 709, 476 P.2d 18 (1970); Simpson, Contracts (2d ed. 1965) at 360-361. The
district judge properly concluded that appellant is obligated to clear the lis pendens and to
convey clear title.
[Headnote 5]
Appellant also contends that the Clarks' failure to deposit $1,000 into escrow as earnest
money when they applied for the new VA loan discharged her from her duty to convey. This
contention is without merit.
The only question remaining was whether the trial court was correct in granting the request
for specific performance of this contract.
[Headnotes 6, 7]
Equity regards as done what in good conscience ought to be done. Woods v. Bromley, 69
Nev. 96 at 107, 241 P.2d 1103. Specific performance is available when the terms of the
contract are definite and certain, Dodge Bros., Inc. v. Williams Estate Co., 52 Nev. 364, 287
P.2d 282 (1930), the remedy at law is inadequate, Harmon v. Tanner Motor Tours, 79 Nev. 4,
377 P.2d 622 (1963), the plaintiff has tendered performance, Southern Pacific Co. v. Miller,
39 Nev. 169, 154 P. 929 (1916), and the court is willing to order it.
[Headnote 8]
In this case, the contract is clear, the subject matter is realty, the Clarks have tendered
performance, and the district judge, exercising his discretion, was willing to supervise
performance of the agreement. Specific performance was properly ordered.
Affirmed.
____________
96 Nev. 811, 811 (1980) McKenna v. State
PATRICK CHARLES McKENNA, aka Charles James,
Appellant, v. THE STATE OF NEVADA, Respondent.
No. 11633
October 29, 1980 618 P.2d 348
Appeal from judgment upon jury verdicts, Eighth Judicial District Court, Clark County;
Keith C. Hayes, Judge.
Defendant was convicted in the district court of sexual assault, second degree kidnapping
with use of a deadly weapon and robbery.
and robbery. Defendant appealed. The Supreme Court, Gunderson, J., held that: (1) where,
when the jurors were ready to begin deliberations, a juror explained that she would be unable
to follow the trial court's instructions because she was not impartial, the trial court acted
properly in allowing an alternate juror to deliberate in place of the disqualified juror rather
than declaring a mistrial; (2) the removal of the victims from one hotel room to another and
back again was movement over and above that required to complete the associated crimes and
supported a conviction of second degree kidnapping; (3) admitting evidence of firearms was
not prejudicially erroneous, absent a demonstration that any error affected a substantial right;
and (4) failure to give jury instruction requested by defendant was not erroneous where that
instruction was substantially covered by another instruction.
Affirmed.
Manos & Cherry, Las Vegas, for Appellant.
Richard Bryan, Attorney General, Carson City; and Robert Miller, District Attorney, Clark
1. Jury.
Where, when jurors were ready to begin deliberations, juror explained that she would be unable to follow
trial court's instructions because she was not impartial, trial court acted properly in allowing alternate juror
to deliberate in place of disqualified juror rather than declaring mistrial. NRS 175.061, subds. 1, 3.
2. Jury.
Juror who will not weigh and consider all facts and circumstances shown by evidence for purpose of
doing equal and exact justice between state and accused should not be allowed to decide case.
3. Criminal Law.
Second degree kidnapping charge did not merge into associated offenses of sexual assault and robbery, in
that removal of victims from one hotel room to another and back again was movement over and above that
required to complete associated crimes.
4. Criminal Law.
In prosecution for sexual assault, second degree kidnapping and robbery, admission of evidence
concerning firearms was not prejudicially erroneous, absent demonstration that any error affected
substantial right. NRS 47.040.
5. Criminal Law.
Failure to give jury instruction requested by defendant was not erroneous where requested instruction was
substantially covered by another instruction given by court. NRS 175.181, subd. 1.
OPINION
A jury convicted appellant of sexual assault (three counts), second-degree kidnapping
with use of deadly weapon {two counts), and robbery.
second-degree kidnapping with use of deadly weapon (two counts), and robbery. The trial
court sentenced appellant to serve consecutively three life imprisonments, with possibility of
parole, and five terms of fifteen years.
Appellant was charged with kidnapping, sexually assaulting, and robbing two women at
the Paradise Resort Inn in Las Vegas, Nevada, on July 9, 1978. He forced the two women to
move at knifepoint from their room to another hotel room, and then return. He threatened
them with injury if they called for help or aroused suspicion. Upon return to the room,
appellant bound the women, sexually assaulted, and robbed them. He also said he would
shoot one of them if they did not obtain $300 for him by evening. At trial the prosecution
introduced testimony that appellant had displayed a rifle and had mentioned a handgun to a
witness prior to the crimes.
Appellant claims that the trial court erred in excusing a juror and seating the alternate to
render a verdict; in determining that the kidnapping charges did not merge into the associated
offenses; in admitting evidence of the firearms; and, in refusing appellant's proposed jury
instruction.
[Headnotes 1, 2]
1. We first consider whether the trial court erred in dismissing the juror and seating an
alternate juror. When the jurors were ready to begin deliberations, a juror explained that she
would be unable to follow the trial court's instructions because she was not impartial. A juror
who will not weigh and consider all the facts and circumstances shown by the evidence for
the purpose of doing equal and exact justice between the State and the accused should not be
allowed to decide the case. Merritt v. District Court, 67 Nev. 604, 222 P.2d 410 (1950); cf.
Sorce v. State, 88 Nev. 350, 497 P.2d 902 (1972). In our view, the trial court acted properly
in allowing the alternate juror to deliberate in place of the disqualified juror rather than
declare a mistrial. NRS 175.061(1), (3).
[Headnote 3]
2. We next affirm appellant's conviction for second-degree kidnapping. The removal of
the victims from one hotel room to another and back again was movement over and above
that required to complete the associated crime charged. Jefferson v. State, 95 Nev. 577, 599
P.2d 1043 (1979).
[Headnote 4]
3. Even assuming that the trial court should have excluded testimony concerning the
firearms, appellant has not demonstrated that the error affected a substantial right. NRS
47.040.
[Headnote 5]
4. The jury instruction appellant requested was substantially covered by another
instruction. Collins v. State, 88 Nev. 168, 494 P.2d 956 (1972); McNeeley v. State, 81 Nev.
663, 409 P.2d 135 (1965). The court did not err in refusing to give proposed Instruction A.
1

Affirmed.
Mowbray, C. J., and Thompson, Manoukian, and Batjer, JJ. concur.
____________________

1
No instruction shall be given relative to the failure of the person charged with the commission of
crime or offense to testify, except, upon the request of the person so charged, the court shall instruct the
jury that, in accordance with a right guaranteed by the constitution, no person can be compelled, in a
criminal action, to be a witness against himself.
Appellant's proposed instruction read:
It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus the
decision as to whether he should testify is left to the defendant, acting with the advice and assistance of his
attorney. You must not draw any inference of guilt from the fact that he does not testify, nor should this fact be
discussed by you or enter into your deliberations in any way.
____________
96 Nev. 814, 814 (1980) Molino v. Asher
LEONA MOLINO, Appellant, v. WAYNE ASHER and
EMMA ASHER, Husband and Wife, Respondents.
No. 12116
October 29, 1980 618 P.2d 878
Appeal from order granting summary judgment, Second Judicial District Court, Washoe
County; John E. Gabrielli, Judge.
One employee sued coemployee and her husband to recover for injuries sustained in
automobile accident on employer's parking lot. On remand, 95 Nev. 33, 588 P.2d 1033
(1979), the district court granted summary judgment in favor of defendants and plaintiff
appealed. The Supreme Court, Manoukian, J., held that: (1) where neither of the employees
was within course of employment and under control of employer at time of the accident, the
employer could not be held responsible for defendant employee's conduct under the
respondeat superior doctrine and defendant would not be exempt under common law theory
of liability for injuries suffered by the plaintiff, and (2) earlier decision of Supreme Court on
issue rendered it res judicata and doctrine of law of the case precluded reconsideration of that
issue on remand of the case for other purposes.
Jaquette & Kilpatrick, Carson City, for Appellant.
Cromer, Barker, Michaelson, Gillock & Rawlings, Cynthia Pyzel, and Victor Alan Perry,
Reno, for Respondents.
1. Master and Servant.
Ordinarily, respondeat superior liability attaches only when employee is under control
of employer and when act is within scope of employment.
2. Automobiles.
Tortious conduct of employee in transit to or from place of employment will not expose
employer to liability unless there is special errand which requires driving.
3. Automobiles.
Where neither of employees involved in accident on employer's parking lot was within
course of employment and under control of employer at time of the accident, the
employer could not be held responsible for defendant employee's conduct under the
respondeat superior doctrine and defendant would not be exempt under common-law
theory of liability for injuries suffered by plaintiff employee.
Earlier decision of Supreme Court on issue rendered it res judicata and doctrine of law
of the case precluded reconsideration of that issue on remand of the case for other
purposes.
OPINION
In this second appeal from orders of summary judgment in favor of Wayne Asher and
Emma Asher, respondents-defendants, we are required to determine whether the trial court
erred in concluding that co-employee statutory immunity insulates respondents from common
law liability and whether the doctrine of the law of the case precluded the trial court from
considering the scope of the term highway.
This is an action to recover damages for personal injuries sustained by Leona Molino. She
had parked her vehicle in the parking lot of her employer, Lynch Communications Systems,
and was preparing to go to work. As she exited her vehicle, it was struck by another car
driven by her co-employee, Emma Asher. Molino allegedly sustained personal injuries as a
result of the impact. The employer had accepted the provisions of the Nevada Industrial
Insurance Act. The complaint alleges negligence of the co-employee as the proximate cause
of Molino's injury and damage, and also seeks to impose liability upon Wayne Asher, Emma's
husband, by reason of his co-ownership of the car Emma was driving when the accident
occurred.
Prior to the first appeal, the trial court had entered summary judgment in favor of
respondents, concluding that the Nevada Industrial Insurance Act exempted respondent
Emma Asher from suit and that NRS 41.440 was inapplicable to Wayne Asher,
notwithstanding his co-ownership of the vehicle.
judgment in favor of respondents, concluding that the Nevada Industrial Insurance Act
exempted respondent Emma Asher from suit and that NRS 41.440 was inapplicable to Wayne
Asher, notwithstanding his co-ownership of the vehicle. We reversed, holding that: (1) the
co-employees grant of immunity extends only to situations where, apart from the
compensation act, the employer would be liable under the doctrine of respondeat superior,
and (2) the term highway for the purpose of imputing negligence to the owner of a car
under NRS 41.440, is broad enough to embrace a parking lot. Because the issue of
co-employee immunity under NRS 616.560(1) was not addressed by the district court, we
reversed the summary judgment and remanded for further proceedings to determine if the
co-employee immunity protects Emma Asher from suit. See Molino v. Asher, 95 Nev. 33,
588 P.2d 1033 (1979).
On remand, the district court again granted summary judgment in favor of respondents,
finding that because Emma Asher was within the course and scope of her employment at
the time of the accident, she was immune from suit as a co-employee. NRS 616.560(1).
1
Furthermore, contrary to our earlier Molino holding, the district court concluded that the
privately owned parking lot was not a highway within the context of NRS 41.440, which
ruling, if upheld, would have the effect of relieving Wayne Asher of any liability as the
co-owner of the automobile. We conclude that the trial court erred in both respects.
1. The Propriety of Summary Judgment.
On the initial appeal, we held that NRS 616.560(1) exempts a co-employee from liability
for tortious conduct in situations where the employer would have been liable at common law.
Molino v. Asher, 95 Nev. at 36, 588 P.2d at 1035. In that previous appeal the question of
common law liability had not been determined and therefore we remanded the case for further
proceedings. By granting summary judgment, the district court determined that common law
respondeat superior liability would attach as a matter of law to Emma Asher's employer.
Furthermore, by granting the summary judgment the court determined that the claimed
negligence in parking her vehicle was activity within both the course and scope of her
employment. Therefore, Emma Asher would be immune from an independent suit for
damages.
Summary judgment is only available to resolve issues of law where the facts are not in
dispute.
____________________

1
NRS 616.560(1) provides in part: 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: . . . .
where the facts are not in dispute. NRCP 56(c). We must therefore determine whether
summary judgment in favor of respondents was appropriate, whether in view of
appellant-plaintiff's counter motion for summary judgment and the state of the record,
appellant was entitled to summary judgment, or whether the issue of course and scope of
employment was one for determination by the trier of fact.
2

[Headnotes 1, 2]
Ordinarily respondeat superior liability attaches only when the employee is under the
control of the employer and when the act is within the scope of employment. National
Convenience Stores v. Fantauzzi, 94 Nev. 655, 657-58, 584 P.2d 689, 691-92 (1978). The
tortious conduct of an employee in transit to or from the place of employment will not expose
the employer to liability, unless there is a special errand which requires driving. Id. at 658,
584 P.2d at 692. Here, it is undisputed that the master-servant relationship existed between
appellant Molino and respondent Emma Asher as co-employees and Lynch Communications
as employer. The main focus then, is upon whether the alleged tortious conduct of Emma
Asher occurred within the scope of employment. The record reflects that the trial court
thoroughly detailed the facts allegedly supportive of employer control over both appellant and
Mrs. Asher. Nevertheless, the record is devoid of any evidence to show that either party was
within the course of employment and under the control of Lynch Communications Systems at
the time of the accident in question. Many courts have held, in accordance with our holding,
that parking lot accidents under the coming and going rule are not sufficiently within the
scope of employment to warrant respondeat superior liability. Saala v. McFarland, 403 P.2d
400 (Cal. 1965); McKelvy v. Barber, 381 S.W.2d 59 (Tex. 1964); Ward v. Wright, 490
S.W.2d 223 (Tex.Civ. 1973); Williams v. Bebbington, 146 S.E.2d 853 (S.C. 1966). See also
Rest. Agency 2d 229 comment d.
[Headnote 3]
Clearly, there was no special errand or job responsibility which would have put Emma
Asher in her employer's control. See National Convenience Stores v. Fantauzzi, 94 Nev. at
658, 584 P.2d at 692; Ducey v. Argo Sales Co., 602 P.2d 755, 768 {Cal.
____________________

2
The fact that this case arose upon cross motions for summary judgment raises the question whether the
parties impliedly stipulated that there remained no material question of fact consistent with our opinion in City
of Las Vegas v. Cragin Industries, 86 Nev. 933, 937, 478 P.2d 585, 588 (1970). However, in Cragin we merely
held that the court was at liberty to find such a concession, Id., and that such a finding is discretionary, not
mandatory.
(Cal. 1979). Whether there exists a material conflict in the evidence concerning whether an
employee was engaged in the scope of employment when the tortious act occurred was held
to be a question of fact for jury determination. National Convenience Stores v. Fantauzzi, 94
Nev. at 659, 584 P.2d at 692; Witt v. United States, 319 F.2d 704 (9th Cir. 1963). Here,
however, the evidence was clear that Molino's co-employee, Mrs. Asher, would not be
exempt under the common law theory of liability as the common employer could not be
responsible for his employees' conduct under the respondeat superior doctrine. Molino v.
Asher, 95 Nev. at 36, 588 P.2d at 1035.
Accordingly we conclude, contrary to the trial court's determination and as a matter of law,
that appellant is entitled to summary judgment on the issue of course and scope of
employment. NRCP 56(c).
2. The Law of the Case.
[Headnote 4]
Through her complaint, appellant seeks to impute the negligent conduct of Emma Asher to
her husband, the co-owner of the vehicle.
3
On the initial appeal, this court held that for the
purpose of NRS 41.440, the term highway is broad enough to embrace a parking lot.
Molino v. Asher, 95 Nev. at 36, 588 P.2d at 1035. In the event Emma Asher is proven to
negligent, then NRS 41.440 permits her liability to be imputed to her husband, the other
owner of the vehicle.
Nevertheless, on remand, the district court found that the privately owned parking lot at
Lynch does not fall within the meaning of highway. We did not remand this issue to the
trial court for its determination. Our previous decision rendered the issue res judicata and the
doctrine of law of the case precludes the reconsideration of issues for which a final judgment
has been given. LoBue v. State ex rel. Dep't Hwys., 92 Nev. 529, 532, 554 P.2d 258, 260
(1976); Walker v. State, 85 Nev. 337, 343, 455 P.2d 34, 38 (1969).
In remanding the case after the prior appeal, the sole question to be decided was the
common law liability of Lynch Communications Systems. The trial court erred in
reconsidering the issue of whether a parking lot is within the scope of the term highway,4
and we accordingly reverse.
____________________

3
Any liability imposed upon a wife, husband, son, daughter, father, mother, brother, sister or other
immediate member of a family arising out of his or her driving and operating a motor vehicle upon a
highway with the permission, express or implied, of such owner is hereby imposed upon the owner of the
motor vehicle, and such owner shall be jointly and severally liable with his or her wife, husband, son,
daughter, father, mother, brother, sister or other immediate member of a family for any damages
proximately resulting from such negligence or willful misconduct and such negligent or willful
misconduct shall be imputed to the owner of the motor vehicle for all purposes of civil damages.
(Emphasis added.)
issue of whether a parking lot is within the scope of the term highway,
4
and we accordingly
reverse.
The order granting summary judgment for respondents is reversed and the case remanded
with instructions that the trial court enter summary judgment in favor of appellant as to the
issues of course of employment and imputation of liability consistent with the views
expressed in this opinion.
____________________

4
The respondent's argument that new evidence justified the reconsideration of the issue is without merit. The
only new evidence concerned Lynch Communications' ownership of the parking lot, a fact we had previously
presumed.
____________
96 Nev. 819, 819 (1980) Sievers v. County Treas., Douglas Co.
FERDIE SIEVERS, as an Individual, LAKE TAHOE LAND CO., INC., HENRY
KROEGER and KROEGER PROPERTIES, INC., Appellants, v. COUNTY TREASURER
OF DOUGLAS COUNTY, STATE OF NEVADA, and the BOARD OF COUNTY
COMMISSIONERS, DOUGLAS COUNTY, STATE OF NEVADA, and HARRY
A. WINKLEMAN, COUNTY ASSESSOR, DOUGLAS COUNTY, STATE OF
NEVADA, Respondents.
No. 10829
November 3, 1980 618 P.2d 1221
Appeal from judgment, First Judicial District Court, Douglas County; Peter I. Breen,
Judge.
Appeal was taken from judgment of the district court upholding county's refusal to accept
payment for redemption of certain real estate. The Supreme Court held that where individual
tendered only delinquent taxes, penalties and interest, refusing to tender delinquent
assessments, substantially all of which accrued after delinquent tax notice was delivered to
him, both doctrine of unclean hands and doctrine of laches precluded relief.
Affirmed.
Carl F. Martillaro, Carson City, for Appellants.
Richard H. Bryan, Attorney General, Carson City; Michael Rowe, District Attorney, and J.
Thomas Susich, Deputy District Attorney, Douglas County, for Respondents.
96 Nev. 819, 820 (1980) Sievers v. County Treas., Douglas Co.
1. Equity; Taxation.
Where individual tendered only delinquent taxes, penalties and interest, refusing to tender delinquent
assessments, substantially all of which had accrued after delinquent tax notice was delivered to him, both
doctrine of unclean hands and doctrine of laches precluded any relief to such individual, complaining of
county treasurer's refusal to accept payment for redemption of the real estate. NRS 361.565.
Supreme Court will affirm holding of the lower court if it is supported by any of the theories presented.
OPINION
Per Curiam:
This is an appeal from a judgment upholding Douglas County's refusal to accept payment
for redemption of certain real estate. Appellant Sievers tendered only delinquent taxes,
penalties, and interest, refusing to tender delinquent assessments on the property,
substantially all of which accrued after the delinquent tax notice was delivered to Sievers
pursuant to NRS 361.565.
[Headnote 1]
Here, the trial court determined that both the unclean hands doctrine and the doctrine of
laches precluded any relief to Sievers. Sievers failed to assign error to these conclusions,
either of which was dispositive of the entire action. Cf. Agricultural Ins. Co. v. Biltz, 57 Nev.
370, 64 P.2d 1042 (1937) (unclean hands); Daly v. Lahontan Mines Co., 39 Nev. 14, 158 P.
285 (1915) (laches).
[Headnote 2]
Even had we found error in the Douglas County Treasurer's refusal to accept Sievers'
partial tender, it is well established that this court will affirm the holding of the lower court if
it is supported by any of the theories presented. See Rae v. All American Life & Cas. Co., 95
Nev. 920, 605 P.2d 196 (1979); Kraemer v. Kraemer, 79 Nev. 287, 382 P.2d 394 (1963);
Foster v. Lewis, 78 Nev. 330, 372 P.2d 679 (1962).
We affirm the judgment of the lower court.
Mowbray, C. J., and Gunderson, Manoukian, and Batjer, JJ., and McDaniel, D. J.,
1
concur.
____________________

1
The Governor designated the Honorable Joseph O. McDaniel, Judge of the Fourth Judicial District Court, to
sit in the place of The Honorable Gordon Thompson, Justice. Nev. Const. art. 6, 4.
____________
96 Nev. 821, 821 (1980) McKinnon v. State
RICHARD SUMNER McKINNON, Appellant, v. THE
No. 11949
November 3, 1980 618 P.2d 1222
Appeal from conviction of the crime of resisting a public officer, Eighth Judicial District
Defendant, charged with committing attempted murder, was convicted before the district
court of resisting a public officer, and he appealed. The Supreme Court held that crime of
resisting a public officer is not a lesser included offense of crime of attempted murder.
Reversed.
Greenman & Goldberg, of Las Vegas, for Appellant.
Robert J. Miller, District Attorney, and James N. Tufteland, Deputy District Attorney,
1. Criminal Law.
Although a defendant may be found guilty of an offense necessarily included within the offense charged,
if the offense for which defendant is found guilty is not necessarily included within the offense charged, the
conviction is void. NRS 175.501.
If the offense charged cannot be committed without necessarily committing another offense, the latter is a
necessarily included offense. NRS 175.501.
Crime of resisting a public officer is not a lesser included offense of crime of attempted murder. NRS
175.501, 199.280, 200.010, 208.070.
OPINION
Per Curiam:
McKinnon was charged with having committed the crime of attempted murder. He was
convicted of the crime of resisting a public officer while using a dangerous weapon. The issue
on appeal is whether the crime of resisting a public officer is a lesser included offense of the
crime of attempted murder.
[Headnote 1]
Statute declares that a defendant may be found guilty of an offense necessarily included
within the offense charged. NRS 175.501. On the other hand, if the offense for which the
defendant is found guilty is not necessarily included within the offense charged, the
conviction is void and must be set aside.
96 Nev. 821, 822 (1980) McKinnon v. State
offense charged, the conviction is void and must be set aside. State v. Carter, 79 Nev. 146,
379 P.2d 945 (1963).
The crime of attempted murder is an attempt to unlawfully kill a human being with malice
aforethought, either express or implied. NRS 208.070; NRS 200.010. The crime of resisting a
public officer is complete when one willfully resists, delays or obstructs a public officer in
discharging or attempting to discharge any legal duty of this office. NRS 199.280.
[Headnotes 2, 3]
If the offense charged cannot be committed without necessarily committing another
offense, the latter is a necessarily included offense. Lovell v. State, 92 Nev. 128, 546 P.2d
1301 (1976); Holland v. State, 82 Nev. 191, 414 P.2d 590 (1966); Lisby v. State, 82 Nev.
183, 414 P.2d 592 (1966). One need only read the mentioned statutes to know that a murder
may be attempted without committing the offense of resisting a public officer. Consequently,
we annul the conviction of McKinnon for the crime of resisting a public officer since it is not
an offense necessarily included within the charge of attempted murder.
Reversed.
Mowbray, C. J., and Gunderson, Manoukian, and Batjer, JJ., and Young, D. J.,
1
concur.
____________________

1
The Governor designated the Honorable Llewellyn A. Young, Judge of the Sixth Judicial District Court, to
sit in the place of The Honorable Gordon Thompson, Justice.
____________
96 Nev. 822, 822 (1980) Moffett v. State
DEANNA MOFFETT, Appellant, v. THE STATE
No. 12039
November 7, 1980 618 P.2d 1223
Appeal from judgments of conviction for attempted murder and burglary, Eighth Judicial
District Court, Clark County; John F. Mendoza, Judge.
The Supreme Court held that conduct of defendant in obtaining keys to victim's apartment,
making lists of instruments she was taking to such apartment, writing what she wanted victim
to write in suicide note, entering victim's apartment, tying victim's hands, and starting to
dictate to victim note which defendant had previously written permitted finding of attempt to
commit murder.
Affirmed.
Reid & Alverson, Las Vegas, for Appellant.
James Tufteland and David P. Schwartz, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
To establish attempt to commit crime, prosecution must establish intent to commit crime, performance of
some act toward its commission, and failure to consummate commission. NRS 208.070.
2. Homicide.
Preparation for a crime consists in devising or arranging means or measures necessary for commission of
offense, while attempt is direct movement towards commission after preparations are made and, to
constitute attempt to kill, act need not be actual commencement of potentially death producing action.
NRS 208.070.
3. Homicide.
Conduct of defendant in obtaining keys to victim's apartment, making list of instruments she was taking
to such apartment, writing what she wanted victim to write in suicide note, entering victim's apartment,
tying victim's hands, and starting to dictate to victim note which defendant had previously written permitted
finding of attempt to commit murder. NRS 208.070.
OPINION
Per Curiam:
Although appellant makes several assignments of error, we recognize only one as meriting
discussion, namely, whether there is sufficient evidence to support the attempted murder
conviction.
In the early morning hours of August 29, 1978, the victim, Linda Exner, was asleep alone
in her apartment. She was awakened by appellant, Deanna Moffett, who had begun to tie her
up. Deanna was accompanied by Bobby McPherson, age 14, who held a knife to the throat of
the victim. Appellant then threatened Linda and untied her hands to enable Linda to write in
her own handwriting, her suicide note appellant had written earlier. The note provided:
Dear Ed, you might think I'm happy seeing you like this, but I'm not. I know that I will
never really have you and I can't bear that. You're always looking at other girls when
I'm with you, and when you don't spend the night with me, I know you are making love
to someone else so I'm ending it. I Love you, Linda.
Thereafter, Moffett instructed the victim to write the above message and told her that
afterwards she would give her some pills to make her sleep for 4S hours.
message and told her that afterwards she would give her some pills to make her sleep for 48
hours.
The victim wrote approximately one line of the letter before she escaped following a
struggle. The appellant and her accomplice then fled and returned to the residence of Ed
McPherson where they were apprehended. Upon their arrival at Linda's apartment, the police
found the following incriminating evidence: a bottle of wine, a switchblade knife, a
flashlight, a bottle of pills, another knife, a short length of hemp rope, and the note.
Dr. Green, a board certified pathologist and toxicologist, testified that the pills found at the
victim's apartment were sleeping pills. He stated that a high dosage was dangerous and would
be fatal absent immediate and adequate medical intervention. He further testified that if
alcohol was ingested in conjunction with the pills, the effect would be even more extreme.
Found guilty of both attempted murder and burglary, felonies, appellant appeals.
[Headnote 1]
To prove an attempt to commit a crime, the prosecution must establish (1) the intent to
commit the crime; (2) performance of some act towards its commission; and (3) failure to
consummate its commission. Johnson v. Sheriff, 91 Nev. 161, 163, 532 P.2d 1037, 1038
(1975), citing State v. Thompson, 31 Nev. 209, 216, 101 P. 557, 559 (1909). Appellant
alleges that there was insufficient evidence presented to establish the performance of some
act, beyond mere preparation, toward the commission of murder. We disagree.
[Headnote 2]
The preparation for a crime consists in devising or arranging the means or measures
necessary for the commission of the offense; the attempt is the direct movement towards the
commission after the preparations are made. State v. Lung, 21 Nev. 209, 214, 28 P. 235,
236-37 (1891) (overruled in part as to impossibility of means utilized, Darnell v. State, 92
Nev. 680, 588 P.2d 624 (1976)). In interpreting NRS 208.070,
1
we stated in Darnell v. State,
92 Nev. at 682, 588 P.2d at 625, that a direct but ineffectual act toward the commission of
the crime is the required actus reus for an attempted crime. The act need not be, as appellant
herein asserts, actual commencement of the potentially death producing action. See State v.
Verganadis, 50 Nev. 1, 3, 248 P. 900 (1926).
____________________

1
NRS 208.070 provides in part: An act done with intent to commit a crime, and tending but failing to
accomplish it, is an attempt to commit that crime. . . .
[Headnote 3]
Here, appellant's own testimony showed, inter alia, that she obtained the keys to the
victim's apartment without the victim's or Ed McPherson's knowledge or consent; that she
made a list of the instruments she was taking to Linda's apartment; and the night before she
went to Linda's apartment she wrote the note she wanted Linda to write to Ed. After entering
Linda's apartment, the appellant tied the victim's hands, woke the victim up, and started to
dictate to the victim the note that appellant had previously written. Appellant further testified
that she had planned the incident about two days in advance of her going to the victim's
apartment. She acquired the necessary materials prior to entering the victim's apartment, then
pursuant to her plan, entered the victim's apartment and exercised sufficient control over the
victim to begin to effectuate her plan. Had it not been for Linda's fortuitous escape, appellant
would have effectuated her purpose.
We will not destroy the practical and common sense administration of the law with
subtleties as to what constitutes preparation and [acts] done toward the commission of a
crime. Adams v. State, 81 Nev. 524, 527-28, 407 P.2d 169, 171 (1965). Appellant clearly
took sufficient steps beyond mere preparation, to support the attempted murder conviction.
Other assignments of error are either not supported by persuasive authority or are without
merit and we need not consider them. Jacobs v. State, 91 Nev. 155, 532 P.2d 1034 (1975).
Accordingly, we affirm both judgments of conviction.
Mowbray, C. J., and Gunderson, Manoukian, and Batjer, JJ., and McKibben, D. J.,
2
concur.
____________________

2
The Governor designated the Honorable Howard McKibben, Judge of the Ninth District Court, to sit in the
place of The Honorable Gordon Thompson, Justice. Nev. Const. art. 6, 4.
____________
96 Nev. 825, 825 (1980) Las Vegas Sun, Inc. v. Nelson
LAS VEGAS SUN, INC., a Nevada Corporation, Appellant, v. DOUGLAS T. NELSON,
Guardian ad Litem for TERRY NELSON, LLOYD H. LEANY, Guardian ad Litem, for
LLOYD S. LEANY, Respondents.
No. 10990
November 19, 1980 619 P.2d 534
Appeal from judgment of the Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
96 Nev. 825, 826 (1980) Las Vegas Sun, Inc. v. Nelson
On appeal from judgment of the district court the Supreme Court held that respondents'
failure to file answering brief within two extensions of time was to be treated as a confession
of error and, accordingly, oral argument was vacated and judgment reversed without
consideration of the merits.
Reversed.
Beckley, Singleton, DeLanoy & Jemison, Las Vegas, for Appellant.
Steffen & Simmons, Las Vegas, for Respondent Nelson.
George D. Frame, Las Vegas, for Respondent Leany.
Appeal and Error.
Respondents' failure to file answering brief within two extensions of time was to be treated as a
confession of error and, accordingly, oral argument was vacated and judgment reversed without
consideration of the merits. NRAP 31(c).
OPINION
Per Curiam:
Appellant has filed its opening brief in this matter. Respondents have been granted two
extensions of time, within which to file their answering brief, the last extension having
expired on December 17, 1979. To this date respondents have failed to file an answering
brief.
Pursuant to NRAP 31(c) we elect to treat respondents' failure to file their answering brief
as a confession of error. See also, State of Rhode Island v. Prins, 96 Nev. 565, 613 P.2d 408
(1980); Kitchen Factors, Inc. v. Brown, 91 Nev. 308, 535 P.2d 677 (1975); Toiyabe Supply
Co. v. Arcade, 74 Nev. 314, 330 P.2d 121 (1958). Accordingly, we vacate oral argument,
NRAP 31(c), and reverse the judgment without consideration of the merits.
Reversed.
____________
96 Nev. 827, 827 (1980) Garvin v. State, Dep't of Mtr. Vehicles
NEIL EUGENE GARVIN, Appellant, v. THE STATE OF NEVADA,
DEPARTMENT OF MOTOR VEHICLES, Respondent.
No. 11007
November 19, 1980 619 P.2d 534
Appeal from order affirming administrative ruling. Eighth Judicial District Court, Clark
County; John F. Mendoza, Judge.
Driver sought judicial review of Department of Motor Vehicles' suspension of driver's
license after hearing officer determined that driver failed to comply with implied consent law.
The district court affirmed, and driver appealed. The Supreme Court held that: (1) driver, who
had been arrested for driving under influence of drugs and was advised that breath test alone
would not satisfy implied consent law because of drug aspect of the arrest, had not satisfied
the implied consent law by submitting to breath test; (2) hearing officer's finding that the
controlled substance issue arose prior to the breath test was supported by substantial
evidence; (3) district court did not err in concluding that arresting officer's sworn written
statement substantially complied with state law; and (4) hearing officer's finding that officers
explained implied consent law to driver with great clarity was supported by the evidence.
Affirmed.
Harding & Zervas, Chtd., Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, and Michael Kaplan, Deputy Attorney General,
1. Automobiles.
Mere attempt to urinate, without success, is not a submission to chemical test within meaning of implied
consent law. NRS 484.383-484.387.
2. Automobiles.
Driver, who had been arrested for driving under influence of drugs and was advised that breath test alone
would not satisfy implied consent law because of drug aspect of the arrest, did not satisfy implied consent
law by submitting to breath test; arresting officers were not required to refuse driver's request to take breath
test. NRS 484.383, subd. 5.
Neither Supreme Court nor district court may substitute its judgment for that of administrative agency as
to weight of evidence on questions of fact.
4. Automobiles.
In proceeding in which driver's license was suspended after hearing officer of Department of Motor
Vehicles determined that driver failed to comply with implied consent law, hearing officer's finding to
effect that a controlled substance issue arose before driver took breath test, so as to
preclude driver from satisfying implied consent law by submitting to a breath test
rather than blood or urine test, was supported by substantial evidence.
controlled substance issue arose before driver took breath test, so as to preclude driver from satisfying
implied consent law by submitting to a breath test rather than blood or urine test, was supported by
substantial evidence. NRS 484.383, subd. 5.
5. Automobiles.
In proceeding in review of Department of Motor Vehicles' suspension of driver's license after hearing
officer determined that driver failed to comply with implied consent law, district court did not err in
concluding that, contrary to driver's contention that arresting officer's affidavit submitted to Department
was invalid, the officer's sworn written statement substantially complied with state law. NRS 484.383,
subd. 6.
6. Automobiles.
In proceeding in which driver's license was suspended after hearing officer of Department of Motor
Vehicles determined that driver failed to comply with implied consent law, hearing officer's finding that
officers explained the implied consent law to driver with great clarity was supported by the evidence.
OPINION
Per Curiam:
A hearing officer of the Department of Motor Vehicles determined that appellant failed to
comply with Nevada's implied consent law, NRS 484.383 to 484.387. Consequently,
appellant's driver's license was suspended. Appellant then sought judicial review of the
Department's decision. The district court reviewed the administrative proceedings, and
affirmed the driver's license suspension.
[Headnote 1]
The hearing officer found that appellant was arrested for driving under the influence of
drugs, and that he was advised as to the implied consent law. Upon his arrest appellant was
requested to submit to a blood, urine or breath test, but was specifically told that the breath
test alone would not satisfy the implied consent law because of the drug aspect of the arrest.
See NRS 484.383(5).
1
Appellant requested a breath test. A highway patrol officer informed
appellant that he could take a breath test, but that he would also have to take either a
blood or urine test.
____________________

1
At the time of the arrest, NRS 484.383(5) provided:
Where the alcoholic content of the defendant's blood is in issue, a person may refuse to submit to a blood test
if means are reasonably available to perform a breath or urine test, and may refuse to submit to a blood or urine
test if means are reasonably available to perform a breath test. Where there is no noticeable odor of alcohol
emanating from the body of a person and the presence of a controlled substance in such person's blood is in
issue, such person may refuse to submit to a blood test if means are reasonably available to perform a urine test.
Such person may not submit to a breath test in lieu of submitting to a blood or urine test. (Emphasis added.)
This subsection of the statute has since been amended. See 1979 Nev. Stats. ch. 580 1, at 1164.
highway patrol officer informed appellant that he could take a breath test, but that he would
also have to take either a blood or urine test. Appellant took a breath test, but would not
submit to a blood or urine test.
2

[Headnote 2]
Appellant first contends that he satisfied the implied consent law by submitting to the
breath test. This contention is without merit. At the time of the arrest NRS 484.383(5) clearly
provided that in a controlled substance case the driver could not submit to a breath test in lieu
of submitting to a blood or urine test. This law was explained to appellant, who nevertheless
requested a breath test. The statutes did not require the arresting officers to refuse appellant's
request to take a breath test following the explanation that the breath test alone would not
satisfy the implied consent law.
[Headnotes 3, 4]
Appellant's second contention is that the evidence does not support the finding that the
controlled substance issue arose prior to the breath test. Neither this court nor the district
court may substitute its judgment for that of the administrative agency as to the weight of the
evidence on questions of fact. Gandy v. State ex rel. Div. Investigation, 96 Nev. 281, 607
P.2d 581 (1980); see Windish v. State, 93 Nev. 636, 572 P.2d 210 (1977). The record in the
present case contains substantial evidence to support the finding of the hearing officer.
[Headnote 5]
Appellant next maintains that the arresting officer's affidavit submitted to the Department
of Motor Vehicles was invalid and deprived the Department of authority to proceed against
appellant. It is argued that the officer's affidavit was internally inconsistent and contrary to the
officer's testimony at the hearing. The district court did not commit error by concluding that
the officer's sworn written statement substantially complied with Nevada law. See NRS
484.383(6).
3
[Headnote 6]
[Headnote 6]
____________________

2
Appellant agreed to take a urine test, and was allowed one and one-half hours within which to urinate.
Following his failure to urinate, appellant refused to submit to a blood test. A mere attempt to urinate, without
success, is not a submission to a chemical test within the meaning of the implied consent law. See Quesada v.
Orr, 92 Cal. Rptr. 640 (Cal. App. 1971).

3
If a person under arrest refuses to submit to a required chemical test as directed by a police officer
under this section, the police officer shall submit to the department of motor vehicles within 10 days a
sworn written statement that he had reasonable grounds to believe the arrested person had been driving a
vehicle upon a highway while under the influence of intoxicating liquor or a controlled substance and that
the person refused to submit to the test upon the officer's request.
[Headnote 6]
Finally, appellant asserts that his refusal to submit to chemical tests was due to confusion
caused by the police officers. Appellant testified at the hearing, but he did not claim any
confusion. Furthermore, the police officers testified that at the time of the arrest appellant
stated he understood the implied consent law. The hearing officer specifically found that the
officers explained the implied consent law to appellant with great clarity. This finding was
supported by the evidence.
Affirmed.
____________
96 Nev. 830, 830 (1980) Russell v. Thompson
PHYLLIS J. RUSSELL, Petitioner, v. J. CHARLES THOMPSON, DISTRICT JUDGE,
EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, Respondent.
No. 12565
November 19, 1980 619 P.2d 537
Original petition for writ of mandamus, Eighth Judicial District Court, Clark County; J.
In original proceeding, petitioner requested Supreme Court to issue writ of mandamus to
vacate district court order referring various aspects of divorce proceeding to special master.
The Supreme Court, Manoukian, J., held that writ of mandamus would properly issue to
vacate order of trial court appointing special master where trial court had exceeded authority
by appointing special master on record devoid of showing of any exceptional conditions
necessitating the reference.
Petition granted.
L. Earl Hawley, Las Vegas, for Petitioner.
Howard J. Needham, and Kevin Kelly, Las Vegas, for Respondent.
1. Mandamus.
Writ of mandate is proper to compel performance of act which law especially enjoins as duty resulting
from an office, and where there exists no plain, speedy and adequate remedy. NRS 34.160, 34.170.
2. Mandamus.
Mandamus is appropriate remedy to vacate order of trial court appointing special master if it is found that
trial court exceeded authority by appointment, since reference to special master is not
appealable order in ordinary course of law and there exists no plain, speedy and
adequate legal remedy to challenge appointment.
by appointment, since reference to special master is not appealable order in ordinary course of law and
there exists no plain, speedy and adequate legal remedy to challenge appointment. NRAP 3A(b).
3. Constitutional Law; Divorce.
Where issues in divorce case are not beyond competence of court to consider without master, reference to
special master constitutes unjustified delegation of court's decision-making powers.
4. Appeal and Error; Reference.
Masters are appointed to aid judges in the performance of specific judicial duties, as they may arise in
progress of cause, and not to place trial judge in position of reviewing court; blanket delegation approaches
an unallowable abdication by jurist of constitutional responsibilities and duties, as, although master's report
must be confirmed by court before it becomes final, scope of review of court is limited by clearly erroneous
standard. NRCP 53, 53(e)(2).
5. Divorce.
Reference to special master of determination of nature of property whether community, separate, or in
any other form of ownership, and recommendation of appropriate division of such property and/or alimony
in divorce action, which reference was made sua sponte and did not indicate any exceptional conditions
which necessitated the reference, exceeded authority of trial court. NRCP 53, 53(b), (e)(2).
6. Mandamus.
Mandamus was appropriate remedy to vacate order of trial court appointing special master, where trial
court had exceeded authority by appointing special master on record devoid of showing of any exceptional
conditions necessitating the reference.
7. Reference.
Reference to special master should be made exception and not rule; calendar congestion, complex issues
of fact and law, and prospectively lengthy trials do not provide exceptional conditions for reference, nor
does fact that an accounting may be required in itself offer basis for reference. NRCP 53.
8. Reference.
If an accounting which is beyond the competence of the court is required, court should first hear and
determine issues within its competence before making reference of remainder, in order to afford litigants
their day in court and comply with intent and spirit of rule providing for reference to special master.
NRCP 53(b).
OPINION
This is an original proceeding wherein petitioner requests this court to issue a writ of
mandamus which if granted would vacate District Judge J. Charles Thompson's order of
reference of various aspects of this divorce proceeding to a special master.
Two issues are presented for our determination in this extraordinary proceeding.
extraordinary proceeding. They are (1) whether a writ of mandamus will properly issue to
vacate an order appointing a special master, and (2) whether the trial court erred in appointing
a special master. We answer both questions in the affirmative.
Phyllis Russell, petitioner-defendant, and her husband, Perry Russell, plaintiff below, were
first married in Oklahoma in 1962. Thereafter, on December 5, 1978, a Colorado court
entered a decree dissolving the marriage. In entering its decree of divorce, the Colorado court
made no property disposition. Approximately four months later, on April 21, 1979, Perry
commenced the instant divorce action. In the instant action, both parties have requested, inter
alia, a resolution of their property rights and other spousal rights and obligations. Desirous of
facilitating this division and making the appropriate awards, respondent Judge Thompson,
sua sponte appointed a special master pursuant to NRCP 53 to report back to the Court, with
all convenient speed, his findings of fact and conclusions of law . . . for the purposes of
determining the nature of the property whether community, separate, or in any other form of
ownership, and to recommend an appropriate division of such property and/or alimony. The
order of reference further provided that Kirk B. Lenhard, attorney at law, serve as the special
master and be compensated at the rate of $75.00 per hour. Petitioner's motion objecting to the
order of reference and requesting the court to vacate its order was denied.
1. Mandamus.
In this mandamus proceeding, petitioner contends that the district court was without
authority to appoint a special master, that there is no adequate and speedy remedy at law, and
that mandamus should issue requiring the district court to vacate the order. Respondent
argues that mandamus is an improper vehicle by which to review an order of reference,
because it is a discretionary decision. See Houston Gen. Ins. Co. v. District Court, 94 Nev.
247, 248-49, 578 P.2d 750, 751 (1978). We are persuaded by petitioner's contention.
[Headnotes 1, 2]
The writ of mandate is proper to compel the performance of an act which the law
especially enjoins as a duty resulting from an office, NRS 34.160, and where there exists no
plain, speedy and adequate remedy. NRS 34.170. Since a reference to a special master is not
an appealable order in the ordinary course of law, NRAP 3A(b) and here there exists no
plain, speedy and adequate legal remedy,
1
we must conclude that mandamus is an
appropriate remedy if it is found that the trial judge exceeds his authority by appointing a
special master.
____________________

1
To await rendition of the master's report and the final judgment would result in the unnecessary expenditure
of time, money and judicial energy if, in an appeal subsequent to trial, it were determined that the special master
was erroneously appointed. See Sutterfield v. District Court, 438 P.2d 236, 239 (Colo. 1968).
is an appropriate remedy if it is found that the trial judge exceeds his authority by appointing
a special master. See LaBuy v. Howes Leather Co., 352 U.S. 249, 250-51, 256 (1957);
Gelfond v. District Court, 504 P.2d 673, 675 (Colo. 1972). We turn to consider the
substantive issue of authority.
2. The Order of Reference.
NRCP 53(b) provides, in part: A reference to a master shall be the exception and not the
rule. . . . [I]n actions to be tried without a jury, save in matters of account and of difficult
computation of damages, a reference shall be made only upon a showing that some
exceptional condition requires it.(Emphasis added.)
In the instant case, the order of reference makes no finding that determinations as to the
division of property and/or the award of alimony are unusually complicated, or that some
exceptional condition warranted the appointment of a master. It simply provided that such
an appointment will be of assistance to the Court. Although the record shows the fact of the
two marriages, alleged sporadic cohabitation preceding the remarriage, the existence of
family homes in Nevada and Colorado, real property in Colorado and Florida, diversified
stock ownership and miscellaneous assets including but not limited to furniture, time
certificates, and cash in banks, all totalling in the vicinity of $1,000,000, there is nothing
indicating anything extraordinary with regard to this divorce proceeding.
In LaBuy v. Howes Leather Co., 352 U.S. 249, the trial judge sua sponte, as here, entered
orders of reference in consolidated civil antitrust cases under Rule 53(b) of the Federal Rules
of Civil Procedure. We have adopted an identical rule. NRCP 53(b). Following motions by all
parties to vacate the order, the parties sought relief by mandamus in the court of appeals.
In LaBuy, the respondent judge answered the show cause order contending that the cases
were extremely complicated and complex, that they would take an estimated six weeks to try,
and that his calendar was congested. LaBuy v. Howes Leather Co., 352 U.S. at 253-54. The
court, in issuing the writs, held that calendar congestion alone was not such an exceptional
circumstance as to warrant reference to a master; that since the cases referred had unusually
complex issues of fact and law is not justification for reference to a master, but rather a
compelling reason for trial before an experienced judge; and, the fact that a trial will be
protracted does not provide the exceptional grounds for a reference. Id. at 259. Indeed, if
calendar congestion was the test, congestion would make references the rule rather than
the exception, contrary to the intendment of NRCP 53{b).
make references the rule rather than the exception, contrary to the intendment of NRCP 53(b).
[Headnote 3]
In Gelfond v. District Court, 504 P.2d 673, a divorce proceeding, the trial court appointed
a special master under Rule 53 of the Colorado Rules of Civil Procedure, a provision nearly
identical to NRCP 53. The case involved an evaluation of property and securities, the
interpretation of income tax returns, and other complicated financial transactions. Id. at
674. The Colorado Court held that where the issues in a divorce case are not beyond the
competence of a court to consider without a master, a reference constitutes an unjustified
delegation of the court's decision-making powers. We agree with that court's holding.
[Headnote 4]
Where, as here, the trial court made a general reference of nearly all of the contested
issues, giving the master the authority to decide substantially all issues in the case, as well as
be the fact finder, the trial court's function has been reduced to that of a reviewing court.
Masters are appointed to aid judges in the performance of specific judicial duties, as they
may arise in the progress of a cause, Ex parte Peterson, 253 U.S. 300, 312 (1920), and not to
place the trial judge into a position of a reviewing court. Irrespective of the trial court's
doubtless good faith, this type of blanket delegation approaches an unallowable abdication by
a jurist of his constitutional responsibilities and duties. These conclusions become even more
clear upon a review of NRCP 53(e)(2) which provides in part: (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. (Emphasis added.) It is no answer that the master's report must be
confirmed by the court before it becomes final, because the scope of review is so limited.
2

[Headnote 5]
In the case at bar, the reference was made sua sponte and was considered to be merely
desirable, not necessary. The record is devoid of a showing of any exceptional conditions
which necessitated the reference. This is contrary to NRCP 53(c) which contemplates that an
order of reference specify and limit the powers of the master, Ray v. Stecker, 79 Nev. 304,
309
____________________

2
It is only instances such as the following that permit the court to disregard the report: the findings are based
upon material errors in the proceedings or a mistake in law; or are unsupported by any substantial evidence; or
are against the clear weight of the evidence. See 9 Wright and Miller, Federal Practice and Procedure: Civil
2605, and cases cited therein.
limit the powers of the master, Ray v. Stecker, 79 Nev. 304, 309, 383 P.2d 372, 375 (1953),
and that the order set forth the exceptional circumstances that purport to justify it.
In reviewing those portions of the record now before us and strictly construing the
provisions of NRCP 53 consistent with our holding in Ray v. Stecker, 79 Nev. at 309, 383
P.2d at 375, we cannot say that the issues in this divorce case presented matters of account
3
or exceptional conditions justifying a reference.
[Headnote 6]
We turn again to the procedural question of mandamus and determine that because of the
absence of exceptional conditions, the element of judicial discretion inherent in NRCP
53(b) is diminished. When the subject order of reference is tested in the light of the cases, we
are constrained to conclude that the complained of reference transcended the permissive
scope of NRCP 53(b) and constituted an abuse of discretion. LaBuy v. Howes Leather Co.,
352 U.S. at 250-51, 256; Gelfond v. District Court, 504 P.2d at 675. Such abuse satisfies the
remaining requirement for the use of the extraordinary remedy of mandamus.
4

[Headnotes 7, 8]
In conclusion, we reiterate that in accordance with NRCP 53(b), a reference should be
made the exception and not the rule. Calendar congestion, complex issues of fact and law,
and
____________________

3
In addressing that part of NRCP 53(b) which states save in matters of account, we want to make it clear
that we are not implying that the mere fact that an accounting may be necessary is sufficient in itself to justify a
reference if it is shown that the matter is simple, it would not reach substantial proportions and would not
consume an inordinate amount of judicial resources. Helfer v. Corona Products, Inc., 127 F.2d 612, at 614 (8th
Cir. 1942); Hanover Ins. Co. v. Emmaus Muni. Auth., 38 F.R.D. 470, 473 (1973). See also 5 Moore's Federal
Practice 53.05(2), p. 2939.

4
Without exhaustively listing the number of cases in which special masters have been appointed, it appears
that with the exception of Ray v. Stecker, 79 Nev. 304, 383 P.2d 379, most have involved a stipulation for the
appointment of a master, or situations in which motions for a reference have been unopposed. See e.g.,
Diversified Capital v. City N. Las Vegas, 95 Nev. 15, 690 P.2d 146 (1979) (stipulation); Schulman v. Schulman,
92 Nev. 707, 558 P.2d 525 (1976) (stipulation); Phillips v. Adams, 85 Nev. 675, 462 P.2d 35 (1969)
(stipulation); Bond v. Stardust, Inc., 82 Nev. 47, 410 P.2d 472 (1966) prospectively lengthy trials do
not provide (motion uncontested); Cosner v. Cosner, 78 Nev. 242, 371 P.2d 278 (1962) (stipulation). Of
course, if all parties consent to a reference of a whole case or an issue, the problems of added expense and the
need to maintain respect for judgments and confidence in the outcome of litigation generally lose their
significance. Thus, absent a controversy involving substantial public interest, reference by consent seems
unobjectionable.
prospectively lengthy trials do not provide exceptional conditions for a reference. Nor does
the fact that an accounting may be required in itself offer the basis for a reference. Of course,
if the accounting is beyond the competence of the court, then, the court should first hear and
determine the issues within its competence before making a reference of the remainder. See
LaBuy v. Howes Leather Co., 352 U.S. at 259. In this way, the judge will have afforded the
litigants their day in court, as well as having complied with the intent and spirit of NRCP 53.
See Bartlett-Collins Company v. Surinam Navigation Company, 381 F.2d 546, 550-51 (10th
Cir. 1967).
The case is remanded with directions to vacate the order appointing a master and for
further proceedings before the trial court not inconsistent with the views herein expressed.
Let the writ issue.
____________
96 Nev. 836, 836 (1980) Severance v. Armstrong
DANIEL S. SEVERANCE, Appellant, v. BRYN ARMSTRONG, and
THE NEVADA BOARD OF PAROLE COMMISSIONERS, Respondents.
No. 12328
December 3, 1980 620 P.2d 369
Carson City; Michael R. Griffin, Judge.
Prisoner filed a petition for a writ of habeas corpus contending that State Board of Parole
Commissioners had unlawfully denied his application for parole release. The district court
denied relief and prisoner appealed. The Supreme Court held that: (1) the statute governing
parole release was not unconstitutionally vague, and (2) statute did not confer a legitimate
expectation of parole release and therefore did not create a constitutionally cognizable liberty
interest sufficient to invoke due process.
Affirmed.
[Rehearing denied March 12, 1981, 97 Nev. 95, 624 P.2d 1004]
Powell and Ray, Ltd., Carson City, for Appellant.
Richard H. Bryan, Attorney General, and Ernest E. Adler, Deputy Attorney General,
Carson City, for Respondents.
1. Pardon and Parole.
Statute governing parole release was not unconstitutionally vague. NRS 213.1099; U.S.C.A.Const.
Amend. 14.
2. Pardon and Parole.
State may be specific or general in defining conditions for release on parole and factors that should be
considered by parole authority. U.S.C.A.Const. Amend. 14.
3. Constitutional Law; Pardon and Parole.
Statute governing parole release did not confer legitimate expectation of parole release and therefore did
not create constitutionally cognizable liberty interest sufficient to invoke due process. NRS 213.1099;
OPINION
Per Curiam:
Appellant was convicted of two counts of lewdness with a child under the age of 14 (NRS
201.230) and was sentenced to serve two concurrent ten-year terms in prison. He
subsequently applied to the state board of parole commissioners for parole release. The board
denied appellant's application.
Thereafter, appellant filed a petition for a writ of habeas corpus in the district court
contending the board had unlawfully denied his application. The district court denied the
petition and this appeal followed.
The specific contentions raised in this appeal are that Nevada's statutes governing parole
release are unconstitutionally vague and vest too much discretion with the board of parole
commissioners, and that appellant was denied due process of law when the board, which
allegedly acted arbitrarily and capriciously, denied him a parole release from prison.
[Headnote 1]
The statute which appellant is challenging, NRS 213.1099, provides:
1. Except as provided in subsection 2, the board [of parole commissioners] may
release on parole a prisoner otherwise eligible for parole under NRS 213.107 to
213.160, inclusive, only if, from all the information known to the board, it appears to
the board: (a) That there is a reasonable probability that such prisoner will live and
remain at liberty without violating the laws; and
(b) That such release is not incompatible with the welfare of society.
2. When a person is convicted of any felony and is punished by a sentence of
imprisonment, he remains subject to the jurisdiction of the board from the time he is
released on parole under the provisions of this chapter until the expiration of the
term of imprisonment imposed by the court less any good time or other credits
earned against such term.
released on parole under the provisions of this chapter until the expiration of the term
of imprisonment imposed by the court less any good time or other credits earned
against such term.
[Headnote 2]
Want of structured and mandated parole eligibility standards does not per se constitute
denial of due process. Phillips v. Williams, 608 P.2d 1131, 1135 (Okla. 1980). A state may
be specific or general in defining the conditions for release and the factors that should be
considered by the parole authority. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979).
Concerning Nebraska's parole statute, the Court in Greenholtz, 442 U.S. at 13, said:
Like most parole statutes, it vests very broad discretion in the [Parole] Board. No ideal,
error-free way to make parole-release decisions has been developed; the whole question
has been and will continue to be the subject of experimentation involving analysis of
psychological factors combined with fact evaluation guided by the practical experience
of the actual parole decisionmakers in predicting future behavior. Our system of
federalism encourages this state experimentation. If parole determinations are
encumbered by procedures that states regard as burdensome and unwarranted, they may
abandon or curtail parole.
Thus, in view of the foregoing authority, we must reject appellant's contention that NRS
213.1099 is unconstitutionally vague and vests too much discretion in the board of parole
commissioners. See Murphy v. Indiana Parole Bd., 397 N.E.2d 259 (Ind. 1979).
[Headnote 3]
Appellant's contention that the board denied him due process of law by arbitrarily and
capriciously denying his parole application is also without merit. As the court said in
Averhart v. Tutsie, 618 F.2d 479, 480-481 (7th Cir. 1980):
It is axiomatic that before due process protections can apply, there must first exist a
protectible liberty or property interest. [Citation omitted.] Just last term . . . the United
States Supreme Court considered whether inmates have a general, constitutionally
protected interest in being conditionally released on parole before the expiration of a
valid sentence. In Greenholtz v. Inmates of Nebraska Penal and Correctional Complex,
442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the Court concluded that an inmate
does not have a protectible expectation of parole unless that expectation is created
by a state statute.
inmate does not have a protectible expectation of parole unless that expectation is
created by a state statute. According to the Court, a validly obtained conviction, with all
its procedural safeguards, extinguishes a convict's liberty interest in release. A state is
under no constitutional obligation to create a parole system, and even when it does, the
mere possibility of parole does not a fortiori result in a protectible expectation of
release. Rather, the state statute must be phrased in such a way that it creates a real
expectation of and not just a unilateral hope for parole.
NRS 213.1099 does not confer a legitimate expectation of parole release and therefore
does not create a constitutionally cognizable liberty interest sufficient to invoke due process.
Greenholtz v. Nebraska Penal Inmates, supra.
Affirmed.
____________
96 Nev. 839, 839 (1980) Krieger v. Elkins
BETTY KRIEGER, Appellant, v. NORVAL J. ELKINS and SHIRLEY
ANN ELKINS, dba SH-VAL DRAPERIES and CARPET, Respondents.
No. 12104
December 3, 1980 620 P.2d 370
Appeal from judgment, Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Lessor sued lessees for damages caused by an alleged breach of lease agreement and
lessees counterclaimed for damages, claiming they had been constructively evicted from
leased premises. The district court found lessees had been constructively evicted, and lessor
appealed. The Supreme Court held that: (1) evidence supported finding that constructive
eviction occurred; (2) where lessees had been constructively evicted from leased premises,
they should not have been liable for any damages which may have occurred after they vacated
premises; and (3) testimony concerning alleged oral agreement between lessee and leasing
agent that outside sales would not be included in percentage rent contradicted or varied
written terms of lease concerning gross sales and such testimony therefore was in violation of
parol evidence rule and should not have been admitted.
Affirmed in part; reversed in part, and remanded with instructions.
Wiener, Goldwater & Waldman, Ltd., and Gerald M. Gordon, Las Vegas, for Appellant.
James L. Buchanan II, Las Vegas, for Respondents.
Constructive eviction results from an active interference with, or disturbance of, tenant's possession by an
act of the landlord which renders the whole, or a substantial part of the premises, unfit for occupancy for
the purpose for which it was devised.
Whether constructive eviction has occurred is a factual determination to be made by trier of fact.
Where trial court, sitting without a jury, makes a finding upon conflicting evidence that constructive
eviction has occurred, that finding will not be disturbed on appeal where it is supported by substantial
evidence.
In lessor's action against lessees for damages caused by an alleged breach of lease agreement, evidence
presented at trial was sufficient to support district court's finding that lessor's failure to repair defective roof
amounted to such an interference with leasehold that it caused constructive eviction.
5. Evidence.
In lessor's action against lessees for breach of lease agreement, in light of testimony of one of lessees that
account ledgers which listed relocation expenses incurred by lessees after they were constructively evicted
were compiled from his books and records and were true and accurate expenses, ledgers were properly
admitted.
Where lessees had been constructively evicted from leased premises, they would not be liable for any
damages which may have occurred after they vacated the premises.
Under percentage rent and gross sales provisions of lease, outside sales, i.e., sales made by respondents
to customers outside of leased premises did not come within gross sales as defined in lease provision and,
thus, lessor would be entitled to recover upon her claim that outside sales were improperly excluded from
percentage rent.
8. Evidence.
In lessor's actions against lessees claiming breach of lease agreement, testimony concerning alleged oral
agreement between lessees and leasing agent that outside sales would not be included in percentage rent
contradicted or varied written terms of lease concerning gross sales and, thus, such testimony was in
violation of parol evidence rule and should not have been admitted.
OPINION
Per Curiam:
Appellant sued respondents (lessees) for damages caused by an alleged breach of a lease
agreement. Respondents counterclaimed for damages, contending they had been
constructively evicted from the leased premises.
evicted from the leased premises. Following trial, the district court found that the respondents
had been constructively evicted, and entered judgment in their favor for $9,000. This appeal
followed, wherein appellant claims the court erred in finding that constructive eviction
occurred, in admitting into evidence a document prepared by respondents' accountant which
contained a list of the damages suffered by respondents, and in not entering judgment in her
favor upon her complaint.
According to evidence presented at the trial, respondents in 1972 leased certain premises
from appellant's predecessor in interest for the operation of a drapery and carpet business. The
respondents also presented evidence that they had suffered rain damage to their inventory
because the premises had a damaged or defective roof, that the lessors were notified of the
problems with the roof but failed to make any repairs, and that respondents therefore vacated
the premises and moved to a new location in October 1976.
[Headnotes 1-3]
1. Appellant contends the evidence was insufficient to support the finding that
constructive eviction occurred. Constructive eviction results from an active interference with,
or disturbance of, the tenant's possession by an act of the landlord which renders the whole, or
a substantial part of the premises, unfit for occupancy for the purpose for which it was
demised. Medical Multiphasic v. Linnecke, 95 Nev. 752, 602 P.2d 182 (1979). Whether
constructive eviction has occurred is a factual determination to be made by the trier of fact.
Clifmar, Inc. v. Lee, 94 Nev. 594, 584 P.2d 157 (1978). Where the trial court, sitting without
a jury, makes a finding upon conflicting evidence that constructive eviction has occurred, that
finding will not be disturbed on appeal where it is supported by substantial evidence. Id.
[Headnote 4]
Here, the evidence presented at trial was sufficient to support the district court's finding
that the lessor's failure to repair the defective roof amounted to such an interference with the
leasehold that it caused constructive eviction. See Sewell v. Hukill, 356 P.2d 39 (Mont.
1960). We will not disturb that finding.
[Headnote 5]
2. Appellant also argues the district court erred in admitting into evidence account ledgers
which listed relocation expenses incurred by respondents after they were constructively
evicted. Norval Elkins, one of the respondents, testified that the ledgers were compiled from
his books and records and were true and accurate expenses. The ledgers, therefore, were
properly admitted.
properly admitted. See Foster v. Bank of America, 77 Nev. 365, 365 P.2d 313 (1961).
3. Finally, appellant contends the district court erred in not entering judgment in her favor.
She argues (a) she is entitled to damages incurred after respondents vacated the premises, and
(b) that during the time they occupied the premises the respondents did not pay the correct
percentage rental based on gross sales.
[Headnote 6]
Since the district court properly found that respondents had been constructively evicted
from the leased premises, it also properly ruled they were not liable for any damages which
may have occurred after they vacated the premises. See Sewell v. Hukill, supra.
However, appellant's argument that respondents improperly excluded certain sales figures
from the percentage rental payments during the term of the lease is well-founded. The lease
provided:
7. PERCENTAGE RENT. In addition to the fixed minimum rent and for the
purpose of providing adequate rental to Lessor for Lessee's use and occupancy of the
demised premises, Lessee shall pay as percentage rent the amount, if any, by which six
per cent (6%) of gross sales (as hereinafter defined) in each calendar month exceeds the
minimum rent for the same month.
8. GROSS SALES. The term gross sales as used in this Lease, shall mean the
total of: (a) all sales made in, or upon orders placed at, or completed by delivery in,
through, or from the demised premises; (b) all charges made for services rendered in or
from or upon orders placed at the demised premises; and (c) all sales and charges made
in connection with business transacted, in whole or in part in, upon or from the demised
premises. Gross sales shall include sales and charges made for cash or upon credit, or
partly for cash and partly for credit, without regard to whether or not collection is made
of the amounts for which credit is given, and shall also include: (i) sales and charges,
whether made by Lessee or any other occupant or occupants of the demised premises or
some part or parts thereof; and (ii) sales made by means of mechanical or other vending
machine, in, at or on the demised premises. Each sale, charge or business transaction
upon installment or contract therefor shall be treated as a gross sale for the full price or
charge in year during which such charge or contract is made.
9. EXCLUSIONS FROM GROSS SALES. Gross sales shall exclude delivery
charges; refunds for merchandise returned; sales cancelled; allowances or adjustments
granted to customer, transfers of merchandise from the demised premises to any other
store or stores, warehouse or warehouses of Lessee; merchandise returned to vendors;
sales, excise and any other taxes which are added to the selling price of merchandise
and labor on installation and paid for by the customer.
In determining gross sales, respondents did not include outside sales, i.e., sales made by
respondents to customers outside of the leased premises. At trial, Norval Elkins testified that
these particular sales were made after the customer telephoned the store. Respondents would
then go to the customer's residence, often taking samples of merchandise with them, and then
arrange to have the merchandise which the customer ordered delivered directly to him. Elkins
testified that he orally agreed with the leasing agent that such sales would not be counted as
gross sales in computing the percentage rent.
[Headnotes 7, 8]
In our view, these outside sales come within gross sales as defined in the lease provision
quoted above. They were sales made in connection with business transacted . . . upon or
from the demised premises. See Cissna Loan Co. v. Baron, 270 P. 1022 (Wash. 1928).
Testimony concerning the alleged oral agreement between Elkins and the leasing agent that
outside sales would not be included in the percentage rent contradicted or varied the written
terms of the lease concerning gross sales. Such testimony therefore was in violation of the
parol evidence rule and should not have been admitted. Daly v. Del E. Webb Corp., 96 Nev.
359, 609 P.2d 319 (1980).
Accordingly, the judgment is reversed insofar as it denied recovery to appellant upon her
claim that outside sales were improperly excluded from the percentage rent, and the matter is
remanded to the district court with instructions to determine and award to appellant the
proper rental payments to which she is entitled. In all other respects the judgment is affirmed.
____________
96 Nev. 844, 844 (1980) Tarrant v. Monson
BETTY J. TARRANT, Appellant, v. VERDUN H. MONSON
dba MONSON JEWELRY, Respondent.
No. 10807
December 3, 1980 619 P.2d 1210
Appeal from judgment, Fourth Judicial District Court, Elko County; Joseph O. McDaniel,
Judge.
The district court ordered rescission of replacement contract, and appeal was taken. The
Supreme Court held that where jeweler was unable to return ring which was left for repairs
and agreed to have owner accept another ring, and, after owner accepted another ring, jeweler
found ring, there was no mistake entitling jeweler to rescind agreement.
Reversed.
Evans & Bilyeu, Elko, for Appellant.
Goicoechea & DiGrazia, Elko, for Respondent.
1. Contracts.
Mutual mistake of fact may void contract, and mutual mistake is basis for equitable rescission of contract.
2. Contracts.
A mistake is a state of mind not in accord with the facts.
3. Contracts.
One who acts knowing that he does not know certain matters of fact makes no mistake as to those
matters.
4. Contracts.
If a person is in fact aware of certain uncertainties a mistake does not exist.
5. Contracts.
One who is uncertain assumes risks that facts will turn out unfavorably to his interest.
6. Compromise and Settlement.
Where jeweler was unable to return ring which was left for repairs and agreed to have owner accept
another ring, and, after owner accepted another ring, jeweler found ring, there was no mistake entitling
jeweler to rescind agreement.
OPINION
Per Curiam:
Appellant delivered a diamond engagement ring to respondent jeweler for repairs.
Respondent stated that the ring would be fixed within two weeks. Appellant returned to
respondent's store on several occasions but respondent was unable to deliver the ring.
the ring. After several months, respondent admitted that he could not find the ring and offered
to replace it. Appellant traveled to Salt Lake City, Utah and chose a replacement wedding set.
Respondent asserted that the replacement set was worth approximately $450 more than
appellant's original ring. However, respondent did agree that appellant could have the set of
her choice as a replacement.
Six months later, respondent found appellant's ring in his safe. Respondent discovered that
he had mislabeled the envelope in which the ring had been stored. Upon his discovery,
respondent informed appellant and offered to exchange the rings. Appellant stated that she
would exchange the rings if respondent would also give her a pair of diamond earrings.
Respondent refused and later commenced a suit in equity to rescind the replacement
agreement and to recover the repair cost.
After a trial on the merits, the district court ordered rescission of the replacement contract
since it reasoned that the contract was based upon a mutual mistake of fact. This appeal
followed.
[Headnotes 1-5]
Appellant contends that the district court erred when it found that the replacement contract
was based upon a mutual mistake of fact. We agree. We have held that a mutual mistake of
fact may void a contract, see Miller v. Thompson, 40 Nev. 35, 160 P. 775 (1916), and a
mutual mistake is a basis for an equitable rescission of a contract, see Allenbach v. Ridenour,
51 Nev. 437, 279 P. 32 (1929). However, under the facts of this case, a mutual mistake did
not occur. In this field, a mistake is a state of mind not in accord with the facts. Restatement
of Restitution 6 (1937). One who acts, knowing that he does not know certain matters of
fact, makes no mistake as to those matters. If a person is in fact aware of certain uncertainties
a mistake does not exist at all. See Dobbs, Remedies 11.2 (1973). See also Restatement of
Restitution 6, comment c (1937). Cf. Prince v. Friedman, 42 S.E.2d 434 (Ga. 1947) (lack of
knowledge or ignorance of a fact is not the same as mistake). One who is uncertain assumes
the risk that the facts will turn out unfavorably to his interest. See Dobbs, supra. See also
Wells Cargo v. Dodge Construction, 77 Nev. 425, 366 P.2d 90 (1961).
[Headnote 6]
In the case at bar, respondent knew that appellant's ring was lost and bargained upon that
basis. At the time the replacement contract was formed, there was uncertainty as to the loss
and there was the possibility that the ring would later be found.
there was the possibility that the ring would later be found. Respondent neither investigated
further, nor provided for the possibility that the ring might later be found. By the agreement
appellant gave up her claim for damages against respondent and respondent retained his good
name as a jeweler in the community. Under these circumstances, the subsequent discovery of
the ring does not necessarily give rise to a suit for rescission. Cf. Holmes v. Payne, (1930) 2
K.B. 301 (rescission denied when a replacement agreement for lost necklace had been formed
and necklace subsequently found). But see State Sav. Bank v. Buhl, 88 N.W. 471 (Mich.
1901) (rescission allowed when lost article recovered on following day).
Since respondent at time of agreement knew that the ring might later be found, respondent
bargained with conscious uncertainty and not under a mistaken belief. Respondent assumed
the risk that the facts would turn out unfavorably to his interests. Rescission is not available
in such instances.
Reversed.
____________
96 Nev. 846, 846 (1980) Lewis v. Smart
FRANK W. LEWIS, Petitioner, v. STANLEY A. SMART, District Judge of the
Third Judicial District Court, in and for the County of Churchill,
State of Nevada, Respondent.
No. 12766
December 3, 1980 619 P.2d 1212
Person desiring to purchase land in townsite brought original petition for writ of
mandamus to compel district judge in capacity as townsite trustee to sell unclaimed lots. The
Supreme Court held that: (1) statutes providing that unclaimed lots shall be sold by
townsite trustee did not contemplate that unclaimed townsite lots would be held by trustee in
perpetuity but made it mandatory duty for district judge to sell townsite lots; (2) proceeding in
Supreme Court for extraordinary writ of mandamus was appropriate remedy against district
judge acting in his capacity as townsite trustee; (3) owners of claimed lots in townsite,
although they might have concern over sale of unclaimed lots, were not indispensable parties
in mandamus proceeding; and (4) statutes providing guidelines as to notice of sale and as to
disposition of sale proceeds contained sufficient general directions for district judge for
purpose of issuing writ of mandamus to compel performance of mandatory duty to sell
unclaimed townsite lots and precise details could be formulated by district judge in his
sound discretion.
96 Nev. 846, 847 (1980) Lewis v. Smart
sell unclaimed townsite lots and precise details could be formulated by district judge in his
sound discretion.
Writ granted.
Bowen, Swafford & Hoffman, Reno, for Petitioner.
Richard H. Bryan, Attorney General, and Donald Klasic, Deputy Attorney General,
1. Mandamus.
A writ of mandamus is issued to compel performance of an act which law especially enjoins as duty
resulting from an office, trust or station. NRS 34.160.
2. Towns.
A townsite trustee must dispose of unclaimed townsite lots only in manner provided by law. NRS
34.160, 325.010 et seq., 325.080, 325.090.
3. Mandamus.
Under statutes providing that unclaimed townsite lots shall be sold by trustee, district judge acting in
capacity as townsite trustee could not hold unclaimed lots in perpetuity but was under mandatory duty, for
purposes of mandamus, to sell unclaimed lots. NRS 34.160, 325.010 et seq., 325.080, 325.090.
4. Mandamus.
A district judge has no power to issue mandamus against another district judge acting as trustee over
townsite properties. NRS 34.160, 325.010 et seq.
5. Courts.
Proceedings in Supreme Court for extraordinary writs of mandamus and prohibition are appropriate
remedies against district judge acting in his capacity as townsite trustee. NRS 34.160, 325.010 et seq.
6. Mandamus.
Owners of claimed lots in townsite, although they might have concern over sale of unclaimed townsite
lots, were not indispensable parties to mandamus proceeding against district judge in his capacity of
townsite trustee to compel sale of unclaimed lots in townsite. NRS 34.160, 325.010 et seq.
7. Towns.
Statute requiring sale of unclaimed lots by district judge acting in his capacity as townsite trustee to the
highest bidder contemplates sale in nature of public auction. NRS 325.010 et seq., 325.090.
8. Mandamus.
Where statutes regarding sale of unclaimed lots in townsite by district judge in his capacity as townsite
trustee provided guidelines as to notice of sale and as to disposition of sale proceeds, statutes contained
sufficient general directions for purpose of issuing writ of mandamus to compel district judge to perform
mandatory duty to sell such lots; precise details of performance could be formulated by district judge in his
sound discretion. NRS 34.160, 325.010 et seq., 325.090, 325.140; 43 U.S.C. (1970 Ed.) 718 et seq.
OPINION
Per Curiam:
Pursuant to Nevada law, the district judge of a county acts as the trustee of
unincorporated townsites which have been deeded by federal land grants or patents.
96 Nev. 846, 848 (1980) Lewis v. Smart
as the trustee of unincorporated townsites which have been deeded by federal land grants or
patents. See NRS 325.010 et seq. By virtue of his position as district judge, respondent is the
trustee of lots within the unincorporated townsite of Wonder, Churchill County, Nevada.
1
Many of the lots have never been claimed. Petitioner, who desires to purchase land in
Wonder townsite, contends that respondent has a mandatory duty under NRS 325.080 and
325.090 to sell the unclaimed lots. Petitioner has requested respondent to sell the lots, but
respondent has refused. Petitioner seeks a writ of mandamus compelling respondent to sell
the unclaimed lots.
[Headnotes 1-3]
A writ of mandamus is issued to compel the performance of an act which the law
especially enjoins as a duty resulting from an office, trust or station. NRS 34.160; see State v.
Preble, 20 Nev. 38, 14 P. 584 (1887). A townsite trustee must dispose of unclaimed townsite
lots only in the manner provided by law. See Amador County v. Gilbert, 65 P. 130 (Cal.
1901); Linck v. Salt Lake City, 21 P. 459 (Utah 1889), appeal dismissed, 159 U.S. 258
(1895). The statutes in Nevada clearly do not contemplate that unclaimed townsite lots will
be held by the trustee in perpetuity. Both NRS 325.080 and 325.090 provide, in part, that
unclaimed lots shall be sold. Thus, the statutes create a mandatory duty for respondent, as
trustee of land in Wonder townsite.
[Headnotes 4, 5]
Respondent contends that mandamus should not issue because petitioner has an adequate
remedy at law. See NRS 34.170. Respondent suggests, without any citation of authority, that
petitioner should file an appropriate action in District Court. However, a district judge has
no power to issue mandamus against another district judge acting as trustee over townsite
properties. Jennett v. Stevens, 33 Nev. 527, 111 P. 1025 (1910). Proceedings in this court for
extraordinary writs of mandamus and prohibition are appropriate remedies against a district
judge acting in his capacity as townsite trustee. See Jennett v. Stevens, 34 Nev. 128, 116 P.
601 (1911); State v. Stevens, 34 Nev. 146, 116 P. 605 (1911).
[Headnote 6]
Respondent also contends that petitioner has failed to join certain indispensable parties.
Specifically, respondent argues that petitioner should have joined any persons or entities
having legal title to or an interest in any of the lots in Wonder townsite already deeded by
the trustee or his predecessors.
____________________

1
A federal land patent to Wonder townsite was issued by President Taft in 1911.
96 Nev. 846, 849 (1980) Lewis v. Smart
that petitioner should have joined any persons or entities having legal title to or an interest in
any of the lots in Wonder townsite already deeded by the trustee or his predecessors.
Respondent has cited no relevant authority in support of his contention. A party must be
joined only if complete relief cannot be accorded in his absence, or if he claims an interest in
the subject of the action. NRCP 19(a). In this case the subject matter consists of unclaimed
lots held solely by respondent. The owners of other lots in Wonder townsite may have
concern over the sale of unclaimed lots. However, the owners of other lots are not
indispendable parties in this mandamus proceeding against the respondent district judge.
[Headnotes 7, 8]
Finally, respondent argues that the statutes do not contain sufficient directions for
respondent to determine the manner in which the sale is to be conducted, the notice to be
required, or the appropriate disposition of sale proceeds. We disagree. NRS 325.090 requires
a sale to the highest bidder. The statute contemplates a sale in the nature of a public
auction. See State v. Stevens, 34 Nev. 146, 116 P. 605 (1911) (dictum; approval of public
auction sale of townsite lots); Treadway v. Wilder, 8 Nev. 91 (1872) (dictum; unclaimed lots
should be sold at public auction). NRS 325.090 and 325.140 provide guidelines as to the
notice of the sale, and NRS 325.090 contains guidelines as to the disposition of sale proceeds.
Thus, the statutes contain sufficient general directions for respondent. Precise details may be
formulated by respondent, in his sound discretion.
2

We conclude that respondent has a mandatory duty to sell the unclaimed townsite lots, and
that respondent's arguments against issuance of the writ of mandamus are not persuasive.
Accordingly, a writ of mandamus shall issue forthwith, directing respondent, as trustee of
unclaimed lots in Wonder townsite, to sell those lots as contemplated by NRS 325.080 and
325.090.
Writ granted.
____________________

2
Respondent contends that the repeal of certain federal statutes, 43 U.S.C. 718 et seq., created legal
ambiguities relative to the disposition of the unclaimed lots. The federal statutes were repealed by Pub. L.
94-579, Title VII, 703(a), 90 Stat. 2789 (1976). The federal statutes did not contain guidelines as to the sale of
unclaimed lots. Rather, the federal act left to each state questions relating to the disposition of unoccupied or
unclaimed land, including questions as to the disposition of proceeds. See State v. Webster, 72 P. 295 (Mont.
1903); Martin v. Hoff, 64 P. 445 (Ariz. 1901); City of Denver v. Kent, et al. 1 Colo. 336 (1871). Respondent
does not contend, nor do we find, that repeal of the federal statutes eliminated respondent's mandatory duties
under Nevada statutes.
____________
96 Nev. 850, 850 (1980) Harvey v. State
WILLIAM DONALD HARVEY and JOE ANGEL HERNANDEZ, Appellants,
No. 11863
December 3, 1980 619 P.2d 1214
Appeal from judgments of conviction for robbery, Ninth Judicial District Court, Douglas
County; Howard D. McKibben, Judge.
The Supreme Court, Batjer, J., held that defense counsel's representation of both
defendants deprived them of their constitutional right to conflict-free assistance of counsel.
Loren Graham, Zephyr Cove, for Appellants.
Richard H. Bryan, Attorney General, Carson City, and Michael S. Rowe, District Attorney,
Douglas County, for Respondent.
1. Criminal Law.
Every defendant in criminal prosecution has a constitutional right to assistance of counsel unhindered by
conflict of interest. U.S.C.A Const. Amend. 6.
2. Criminal Law.
Defense counsel's representation of both defendants in criminal prosecution deprived them of their
constitutional right to conflict-free assistance of counsel, where counsel's strategy involved admitting that
both the defendants committed larceny and thereby effectively foreclosed possibility that one defendant
would have been acquitted of any crime, counsel called one defendant to testify but did not call other
defendant, and during the one defendant's examination by defense counsel defendant gave direct testimony
against his codefendant. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
A defendant may waive right to conflict-free representation in criminal prosecution. U.S.C.A.Const.
Amend. 6.
4. Criminal Law.
In all future criminal trials involving joint representation, trial court should address each defendant
personally, explain dangers of joint representation, and inquire as to facts which might reveal conflicts.
Const. Art. 1, 8; U.S.C.A.Const. Amend. 6.
5. Criminal Law.
If actual or potential conflicts exist in criminal prosecution wherein multiple defendants are represented
by one attorney, each defendant must voluntarily, knowingly and understandingly decide on joint
representation. Const. Art. 1, 8; U.S.C.A.Const. Amend. 6.
OPINION
A jury found appellants Harvey and Hernandez guilty of robbery. In this appeal it is
contended that joint representation by appointed counsel resulted in a conflict of interest and
a denial of effective assistance of counsel. We reverse.
On the night of December 4, 1978, appellants entered the East Fork Bar in Gardnerville,
Nevada, where Mrs. Marie Corda was working as bartender. Appellants had apparently been
drinking alcoholic beverages earlier in the evening, and continued to drink at the bar. While
playing the juke box and listening to music, Harvey asked Mrs. Corda if she wanted to dance,
but she declined. Later, Harvey sat on the bar, swung his legs around to the inside of the bar,
and jumped to the floor. He stared at Mrs. Corda and walked toward her but he did not say
anything or make any threatening gestures. Mrs. Corda testified that she was scared of the
look on Harvey's face, and she backed out of the bar area through a door. During this time
Hernandez remained seated at the bar.
A few moments later Mrs. Corda opened the door to look back inside the bar room. She
saw Harvey walking toward the door, and Hernandez standing near the open cash register.
Mrs. Corda went to a nearby business and summoned the police. Appellants were
apprehended, and when money and liquor were found to have been taken from the bar they
were charged with robbery.
The state public defender was appointed to represent both appellants. At the arraignment
the district court asked counsel if a conflict existed. Counsel replied that there was no
conflict.
1
The district court made no explanation to appellants on the subject of a possible
conflict of interest, nor did he elicit any facts which might have revealed a conflict caused by
the dual representation. At the subsequent jury trial counsel's sole theory was that appellants
were guilty of larceny, not robbery.
2
Appellants were both convicted of robbery.
____________________

1
The district court's entire inquiry was as follows:
THE COURT: Is there any conflict in this case, Mr. Mathews?
MR. MATHEWS: Yes, your Honor. Our office is satisfied that both of these Defendants qualify for
our services.
THE COURT: Is there any conflict as far as representation is concerned?
MR. MATHEWS: No, your Honor.

2
In his opening statement to the jury, defense counsel stated:
At the end of this case I'm sure that you will be convinced that my
Appellants contend that whenever two or more defendants are represented by one attorney,
the trial judge has a duty to ascertain whether each defendant is aware of the risks of dual
representation and the possibility of a conflict. Appellants also contend that an actual conflict
of interest existed in the present case.
[Headnote 1]
Every defendant has a constitutional right to the assistance of counsel unhindered by a
conflict of interest. Holloway v. Arkansas, 435 U.S. 475 (1978). Representation of multiple
defendants by a single attorney is fraught with the risks of conflict, and should be approached
with caution by the parties, counsel and the trial court. United States v. Lawriw, 568 F.2d 98
(8th Cir. 1977). The reasons for such caution are obvious. As the Supreme Court of
Minnesota recently stated in State v. Olsen, 258 N.W.2d 898 (Minn. 1977):
The inherent difficulty which faces any attorney who undertakes the joint representation
of co-defendants is that he or she must simultaneously balance the interests of each
defendant against each other. Not only must the attorney of co-defendants defend
against the prosecution, but he or she must also defend against conflicts between the
defendants themselves. Id. at 904.
Joint representation of co-defendants may create a conflict for defense counsel because of
the possibility of inconsistent pleas; factually inconsistent alibis; conflicts in testimony;
differences in degree of involvement in the crime; tactical admission of evidence; the calling,
cross-examination, and impeachment of witnesses; strategy in final argument; and the
possibility of guilt by association. Id. at 905.
The problem of joint representation of co-defendants was recently considered by the
Supreme Court of the United States. In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708
(1980), two defendants were represented by the same attorneys. The defendants were tried
separately. The Supreme Court held that the Sixth Amendment does not require state courts
to initiate inquiries into the propriety of multiple representation in every case.
3
However, the
court indicated that an inquiry is required when the trial court "knows or reasonably should
know that a particular conflict exists." Id. at 347, 100 S.Ct. at 1717.
____________________
clients, Bill Harvey and Joe Hernandez, committed the crime of larceny from the East Fork Bar, [but not
the crime of robbery].
In closing argument defense counsel stated that the proper decision in this case is larceny and not robbery.

3
The Court noted that while an inquiry is not constitutionally required in every case, such a practice is
desirable. The Court also noted that several courts, as well as the proposed Federal Rules of Criminal Procedure,
require an inquiry. Cuyler v. Sullivan, 100 S.Ct. 1708 at 1717, n. 10.
when the trial court knows or reasonably should know that a particular conflict exists. Id. at
347, 100 S.Ct. at 1717. The court also held that a defendant who raised no objection at trial
may demonstrate a Sixth Amendment violation if an actual conflict of interest adversely
effected his lawyer's performance.
4

[Headnote 2]
A review of the record in the present case reveals actual conflicts of which counsel and the
trial court should have been aware. Counsel's strategy involved admitting that both appellants
committed larceny. Counsel effectively foreclosed the possibility that appellant Harvey would
be acquitted of any crime.
5
Furthermore, counsel called Harvey to testify, but did not call
Hernandez. During Harvey's examination by defense counsel, Harvey gave direct testimony
against his co-defendant Hernandez.
6
Finally, a statement of counsel at sentencing further
revealed the existence of a conflict of interest.
7

[Headnote 3]
Defense counsel's representation of both appellants in this case deprived them of their
constitutional right to conflict-free assistance of counsel. While a defendant may waive the
right to conflict-free representation, Kabase v. District Court, 96 Nev. 471, 611 P.2d 194
(1980), there were no such waivers in this case.
[Headnotes 4, 5]
Although the Sixth Amendment to the Constitution of the United States may not require
inquiries as to conflicts of interest in all cases of joint representation, such inquiries
would safeguard the rights of defendants under the Nevada Constitution.S Inquiries
would also promote the effective administration of justice by resolving most conflict
situations at the earliest possible stage of the proceedings.
____________________

4
In Cuyler the Court held under the facts of that case the trial court had no duty to inquire, and no actual
conflict of interest existed.

5
In closing argument defense counsel stated:
[Harvey is] aware of the fact that Joe Hernandez is committing larceny, stealing the money, and he
doesn't do anything to stop him and, therefore, he [Harvey] probably is responsible for that, for not
stopping his friend from taking the money. . . . [B]oth of these men are responsible for stealing the money
and stealing the liquor from the store, from the place. . . . Bill Harvey is responsible along with Joe
[Hernandez] under the law as a principal.

6
Harvey testified that when he turned around from the door through which Mrs. Corda had departed, Harvey
saw Hernandez hitting the cash register, pushing its buttons, and taking money from the cash box.

7
At the sentencing hearing counsel stated:
I don't feel since I represented both individuals that I should say anything other than what I have
already said with regard to Mr. Hernandez and ask that the Court consider it in applying it to Mr. Harvey
with regard to the facts of this case.
United States may not require inquiries as to conflicts of interest in all cases of joint
representation, such inquiries would safeguard the rights of defendants under the Nevada
Constitution.
8
Inquiries would also promote the effective administration of justice by
resolving most conflict situations at the earliest possible stage of the proceedings. Therefore,
in all future trials involving joint representation the trial court should address each defendant
personally, explain the dangers of joint representation, and inquire as to facts which might
reveal conflicts. If actual or potential conflicts exist, each defendant must voluntarily,
knowingly and understandingly decide on the joint representation. See Kabase v. District
Court, supra; State v. Olsen, supra.
This case is reversed and remanded for a new trial or trials, and for the appointment of
separate counsel.
____________________

8
See Nev. Const. Art. 1, 8.
____________
96 Nev. 854, 854 (1980) County of Clark v. Smith
COUNTY OF CLARK, a Political Subdivision of the State of Nevada, and
DARREL R. DAINES, Clark County Comptroller, Appellants, v.
LEONARD P. SMITH, Respondent.
No. 10769
December 3, 1980 619 P.2d 1217
Appeal from order granting attorney fee. Eighth Judicial District Court, Clark County; Carl
The district court granted a motion for payment of excess fees filed by attorney who had
been appointed to represent indigent defendant, and county appealed. The Supreme Court,
Batjer, J., held that trial court did not abuse its discretion in granting a motion for payment of
excess fees, since defendant had been charged with five extremely serious felony counts, two
counts were dismissed as a result of writ of habeas corpus secured by attorney, two others
were dismissed as the result of plea agreement negotiated by attorney, the procedures before
trial lasted over two years, and substantial medical and legal issues were involved in the case.
Affirmed.
Robert Miller, District Attorney, and Stanley W. Parry, Deputy District Attorney, Clark
Smith & Maurer, Las Vegas, for Respondent.
Trial judge, who hears defense presented and can assess the difficulty of the case, is in best position to
gauge reasonableness of a motion for payment of excess fees filed by attorney appointed to represent
indigent defendant, and reviewing court will not interfere with trial judge's judgment in such cases absent a
manifest abuse of discretion.
Trial court did not abuse its discretion in granting a motion for payment of excess fees filed by attorney
who had been appointed to represent indigent defendant, since defendant had been charged with five
extremely serious felony counts, two counts were dismissed as a result of writ of habeas corpus secured by
attorney, two others were dismissed as the result of plea agreement negotiated by attorney, the procedures
before trial lasted over two years, and substantial medical and legal issues were involved in the case. NRS
7.125, subds. 2(a), 4, 6.
OPINION
Respondent Smith was appointed by the district court to represent an indigent defendant
who was charged with first degree murder and four other felony offenses. The defendant was
ultimately allowed to plead guilty to first degree murder, and the other charges were
dismissed pursuant to the negotiated plea. Respondent filed a motion for payment of excess
fees, under NRS 7.125(6), which was granted by the trial judge and approved by the chief
judge of the Eighth Judicial District Court. Clark County and its Comptroller appeal the
district court's order authorizing payment of the fee. We affirm.
[Headnotes 1, 2]
NRS 7.125(4) provides, in pertinent part, that the court appointing an attorney to represent
an indigent defendant may award a fee in excess of the statutory maximum of $2,500, NRS
7.125(2)(a), if the court deems it appropriate because of extraordinary circumstances,
which are defined as financial burdens and hardships far in excess of those normally
attendant upon the defense of indigent persons. The application by the attorney for an excess
fee in this case fully complies with the requirements of NRS 7.125(6); it specifies in detail the
types of services rendered in the defense of the case, the amount of time expended in each
instance, the amount of expenses actually incurred by the attorney, and the lack of any
other reimbursement for his services.
actually incurred by the attorney, and the lack of any other reimbursement for his services.
Given the complexity of the defense in this case, in which substantial medical and legal
issues were involved, the application sets forth adequate data upon which the district court
could conclude that the amounts claimed were reasonably expended. See United States v.
Naples, 266 F.Supp. 608 (D.D.C. 1967). As in all cases where excess attorney fees are
awarded, the trial judge, who hears the defense presented and can assess the difficulty of the
case, is in the best position to gauge the reasonableness of the fees claimed. See United States
v. Thompson, 361 F.Supp. 879 (D.D.C. 1973); People v. Perry, 278 N.Y.S.2d 323 (Sup.Ct.
1967). We shall not interfere with the trial court's judgment in such cases absent a manifest
abuse of its discretion. We therefore conclude that the district court's approval of the amounts
claimed by respondent in this case was not error.
Appellants contend, however, that no amount in excess of the statutory maximum could be
awarded in this case because respondent did not show extraordinary circumstances entitling
him to any excess fee. We do not agree. Respondent's affidavit in support of his application
for the excess fee recited that respondent had entered upon private practice only a few weeks
before being appointed to defend the indigent in this case, that the excess fee involved was
over $2,000, and that the length and complexity of the case required extraordinary efforts on
his part which resulted in financial difficulty in sustaining his private practice. We consider
the circumstances of the present case, in which appointed counsel suffered financial hardship
in the defense of an indigent, in a lengthy and complex case, to be the extraordinary
circumstances contemplated by NRS 7.125(4). The definition of extraordinary
circumstances used by federal courts in determining whether excess fees are justified
includes the amount, character, and complexity of the work required; the responsibilities
involved; the manner in which the necessary duties were performed, and the amount of
knowledge, skill, and judgment displayed by counsel; and the professional standing of
counsel. United States v. James, 301 F.Supp. 107 (W.D.Tenn. 1969). We note that the federal
cases interpreting this language had been decided when the legislature added the
extraordinary circumstances language to our statute, 1977 Nev. Stats. ch. 435 1.
The record in this case shows that the indigent defendant was charged with five extremely
serious felony counts. Two were dismissed as a result of a writ of habeas corpus secured by
respondent. Two others were dismissed as a result of the plea bargain agreement negotiated
by respondent. The record of the case, which did not go to trial, is over one thousand pages
long.
case, which did not go to trial, is over one thousand pages long. The deputy district attorney
who prosecuted the defendant characterized the prosecution as a very lengthy, complicated
case. The names of ninety-seven witnesses were endorsed on the information. The
procedures before trial lasted over two years. The defense to be relied upon was a contention,
based upon the expert testimony of five doctors, that the defendant was incapable of
committing the crimes charged. The district judge, in the order granting the excess fee,
commented upon the high caliber of advocacy displayed by respondent in defense of the
indigent. We consider these factors adequate support for the district court's exercise of
discretion in allowing a fee in excess of the statutory maximum, see Daines v. Markoff, 92
Nev. 582, 587, 555 P.2d 490, 494 (1976) (Gunderson, C. J., concurring), in order to avoid
inordinate hardship to the appointed attorney. As in calculating the amount of an excess fee,
the district judge who hears the case is in the best position to evaluate the necessity for such
an award. United States v. Thompson, supra.
Accordingly, the order of the district court appealed from is affirmed.
____________
96 Nev. 857, 857 (1980) Williams v. Cottonwood Cove Dev. Co.
DALE A. WILLIAMS and CAROL E. WILLIAMS, Appellants, v. COTTONWOOD COVE
DEVELOPMENT COMPANY, a Limited Partnership, DON D. TOBEY, the General
Partner, and T J RENTALS, INC., a Nevada Corporation, Respondents.
No. 10610
December 3, 1980 619 P.2d 1219
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Keith C.
Hayes, Judge.
Purchasers brought suit against vendor for failure to perform contract for sale of land. The
district court sustained vendor's motion for summary judgment, and purchasers appealed. The
Supreme Court, Batjer, J., held that: (1) vendor's affirmative defense to the contract regarding
the execution of a formal agreement did not give notice of a defense based upon statute
which required a limited partner's written authorization or ratification for a transfer of all
partnership assets, but {2) where purchasers had an opportunity and did respond to
vendor's motion for summary judgment, vendor was not precluded from raising as a
defense failure to comply with the provisions of statute, despite fact that statutory
defense was first raised in motion for summary judgment sometime after the complaint
was filed.
based upon statute which required a limited partner's written authorization or ratification for a
transfer of all partnership assets, but (2) where purchasers had an opportunity and did respond
to vendor's motion for summary judgment, vendor was not precluded from raising as a
defense failure to comply with the provisions of statute, despite fact that statutory defense
was first raised in motion for summary judgment sometime after the complaint was filed.
Affirmed.
Cochrane, Lehman, Nelson & Rose, Las Vegas, for Appellants.
Lionel Sawyer & Collins and Dan C. Bowen, Las Vegas, for Respondents.
1. Partnership.
In suit by purchasers against vendor on contract for sale of land, vendor's affirmative defense to the
contract regarding the execution of a formal agreement did not give notice of a defense based upon statute
which required a limited partner's written authorization or ratification for a transfer of all partnership assets.
NRS 88.100; NRCP 8(c), 12(b).
2. Pleading.
Failure to timely assert an affirmative defense may operate as a waiver if the opposing party is not given
reasonable notice and an opportunity to respond.
3. Pleading.
Where purchasers in suit against vendor on contract for sale of land had an opportunity and did respond
to vendor's motion for summary judgment, vendor was not precluded from raising as affirmative defense
failure to comply with the provisions of statute, despite fact that statutory defense was first raised in motion
for summary judgment sometime after the complaint was filed. NRS 88.100; NRCP 8(c).
4. Partnership.
Statutory provision which required limited partner to either give written consent or ratify sale of
partnership's business premises by the general partner was unambiguous and absolute, and any question of
estoppel of partnership based on apparent authority of general partner would not be reached. NRS
88.100.
OPINION
Respondent Cottonwood Cove Development Company, hereinafter referred to as
Cottonwood, is a limited partnership owning a 21-year leasehold interest along the
Colorado River and operating a marina, trailer park, restaurant, and motel.
motel. In January, 1975, the appellants, Dale and Carol Williams, visited the property with
the idea of purchasing it. The limited partner, Herman Goeckner, met them and showed them
the facilities, but told them to negotiate and conclude the terms and conditions of the sale
with the general partner, Don Tobey.
Dale Williams met with Tobey in April, 1975, and again in July, 1975. Tobey allegedly
represented that he had the absolute authority to negotiate the terms and consummate a sale.
On August 8, 1975, after the Williamses rejected a proposed agreement of sale drafted by
Tobey, a memorandum of agreement was drafted and signed by Tobey and the Williamses.
Goeckner neither signed the memorandum nor gave his written consent to it.
Sometime thereafter, Tobey informed the Williamses that there would be no sale. On
February 26, 1976, the Williamses filed a suit for specific performance of the memorandum
of agreement, or, in the alternative, $100,000 damages for the lost bargain and $10,000 for
expenses; for an injunction to prevent a conveyance of the property; and for an accounting of
the profits. Cottonwood filed its answer on March 25, 1976, and an amended answer on
August 16, 1977.
On September 21, 1977, Cottonwood moved for summary judgment on the ground that the
memorandum was unenforceable against the partnership because Goeckner did not give his
written consent or ratification as required by NRS 88.100.
1
The district judge agreed and
entered summary judgment in favor of Cottonwood on January 6, 1978, and certified it as
final pursuant to NRCP 54(b).
2
1.

____________________

1
A general partner shall have all the rights and powers and be subject to all the restrictions and
liabilities of a partner in a partnership without limited partners, except that without the written consent or
ratification of the specific act by all the limited partners, a general partner or all of the general partners
have no authority to:
(a) Do any act in contravention of the certificate,
(b) Do any act which would make it impossible to carry on ordinary business of the partnership. . . .

2
NRCP 54(b) provides:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim,
cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of
a final judgment as to one or more but fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon an express direction for the entry of
judgment. In the absence of such determination and direction, any order or other form of decision,
however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than
all the parties shall not terminate the action as to any of the claims or parties, and the order or
1. The Williamses argue that the summary judgment could not properly be based upon
NRS 88.100 because the statute was not pleaded as an affirmative defense. Cottonwood
responds that its seventh affirmative defense
3
alleging that the agreement was subject to the
execution of a formal agreement was sufficient notice of the requirement of written approval
by the limited partner.
[Headnote 1]
NRCP 8(c)
4
requires a party to set forth affirmatively . . . any other matter constituting
an avoidance or affirmative defense. See also NRCP 12(b). The pleading must give fair
notice of the nature and basis of the claim. Cf. Crucil v. Carson City, 95 Nev. 583, 600 P.2d
216 (1979) (discussing the sufficiency of a complaint). Respondents' affirmative defense
regarding the execution of a formal agreement does not give notice of a defense based upon
NRS 88.100, which requires a limited partner's written authorization or ratification for a
transfer of all partnership assets.
5

[Headnotes 2, 3]
Failure to timely assert an affirmative defense may operate as a waiver if the opposing
party is not given reasonable notice and an opportunity to respond. Schwartz v. Schwartz, 95
Nev. 202, 591 P.2d 1137 (1979). In this case, NRS 88.100 was first raised in a motion for
summary judgment sometime after the complaint was filed. However, unlike the appellant in
Schwartz, the Williamses had an opportunity and did respond to the motion and no
prejudice attached.
____________________
other form of decision is subject to revision at any time before the entry of judgment adjudicating all the
claims and the rights and liabilities of all the parties.

3
The seventh affirmative defense in Cottonwood's amended answer reads:
The agreement set forth in plaintiffs' complaint was subject to certain conditions subsequent, including the
execution of a formal agreement of purchase and sale'. Because those conditions subsequent were never
satisfied, said agreement is unenforceable.

4
NRCP 8(c) provides:
In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction,
arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress,
estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment,
release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an
avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or
a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there
had been a proper designation.

5
It is undisputed that Goeckner was not informed of the terms of the memorandum until after the deal was
called off. He could not have consented to nor ratified the specific act of finalizing the sale.
to the motion and no prejudice attached. Although the better practice would have been to
amend its answer pursuant to NRCP 15
6
before moving for summary judgment, Cottonwood
will not be precluded from raising as a defense failure to comply with the provisions of
NRCP 8(c). Compare Home Furniture, Inc. v. Brunzell Const., 84 Nev. 309, 440 P.2d 398
(1968); Second Baptist Ch. v. First Nat'l Bank, 89 Nev. 217, 510 P.2d 630 (1973) (former
NRCP 12(h) provided for waiver of all defenses not pleaded, asserted by NRCP 12(b)
motion, or tried by consent).
[Headnote 4]
2. The Williamses next argue that Cottonwood should be estopped from asserting lack of
authority as a defense because Tobey had apparent authority to consummate the sale of the
partnership. We do not reach this question because the provision in NRS 88.100 requiring a
limited partner to either give written consent or ratify any act which would make it impossible
to carry on the ordinary business of the partnership is unambiguous and absolute.
7
Courts
have interpreted New York's identical provision, N. Y. Partnership Law 98(1)(b)
(McKinney), as absolute and not subject to variation by agreement of the partners. See e.g.
Newburger, Loeb & Co., Inc. v. Gross, 563 F.2d 1057, 1074-75 (2d Cir. 1977), cert. denied
434 U.S. 1035 (1978) (holding that the execution of a transfer agreement which
consummated the sale of the partnership assets, without the written consent of the limited
partners, violated 98(1)(b)).
____________________

6
NRCP 15(b) permits liberal amendment of pleadings during trial when the presentation of the merits of the
action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such
evidence would prejudice him in maintaining his action or defense upon the merits.

7
Compare the rules of construction for partnership, NRS 87.040, with those for limited partnerships, NRS
88.280. The law of estoppel and the law of agency apply under the partnership chapter. There is no mention of
their application to limited partnerships.
____________
96 Nev. 862, 862 (1980) J. F. Shea Co. v. Hynds Plumbing
J. F. SHEA COMPANY, INC., a Foreign Corporation, dba CENTURY COMMUNITY
DEVELOPERS; and INDUSTRIAL INDEMNITY COMPANY, Appellants, v. HYNDS
PLUMBING & HEATING COMPANY, a Nevada Corporation; BOBBY RUPPERT, JR.;
and ATLANTIC INSURANCE COMPANY, a Foreign Corporation, Respondents.
No. 11053
December 3, 1980 619 P.2d 1207
Brennan, Judge.
Developer filed action against subcontractor, employee of subcontractor and insurer of
subcontractor and employee to recover expenses incurred in repairing fire damage to
buildings and attorney fees. The district court entered summary judgment in favor of
defendants, and developer and developer's builder's risk insurer appealed. The Supreme
Court, Batjer, J., held that: (1) since the insurance provided for in the builder's risk policy
attached to the construction project for the benefit of all unnamed owners of property therein,
and developer, as general contractor, had responsibility for the premises where the work was
in progress and for equipment and supplies on the premises, subcontractor's and employee's
material and supplies located on the damaged premises, which were not specifically excluded,
were covered under the builder's risk policy and subcontractor and employee were, to that
extent, coinsured parties under the policy, precluding subrogation, and (2) the builder's risk
policy was the primary coverage for fire loss, and, therefore, the other insurance and excess
clause in the builder's risk policy did not permit subrogation against the insurer of the
subcontractor and the employee, since other insurance referred to other builder's risk
insurance covering fire loss and not public liability and property damage insurance.
Affirmed.
Thorndal, Backus, Lyles & Maupin, Las Vegas, for Appellant J. F. Shea Company, Inc.
T. D. Bolling, Jr., Sacramento, California; and Guild, Hagen & Clark, Ltd., Las Vegas, for
Appellant Industrial Indemnity Company.
Reid & Alverson, Las Vegas, for Respondents.
1. Insurance.
Even though there was no language in builder's risk policy that expressly added subcontractor and
subcontractor's employee as insureds, either by name or description, but reporting form attached to policy
extended policy to materials, equipment and supplies and temporary structures of all kinds incidental to
construction of buildings and structures, and similar properties belonging to others for which insured is
liable, developer's builder's risk policy covered building under construction and any material, equipment
and supplies of subcontractor and subcontractor's employee there, unless specifically excluded.
2. Insurance.
For purposes of action by developer against subcontractor, subcontractor's employee and insurer which
issued public liability and property damage policy to subcontractor, naming developer as additional
insured, term liable was not restricted to legal liability of developer, but extended coverage to owner of
any property within project for which developer was generally responsible.
3. Insurance.
Where builder's risk policy issued to developer attached to construction project for benefit of all unnamed
owners of property therein, and developer, as general contractor, had responsibility for premises where
work was in progress and for equipment and supplies on premises, subcontractor's and subcontractor's
employee's material and supplies located on damaged premises, which were not specifically excluded, were
covered under builder's risk policy, and, therefore, to that extent, subcontractor and subcontractor's
employees were coinsured parties under policy, precluding subrogation.
4. Insurance.
Insurer may not subrogate against coinsured of its insured.
5. Insurance.
Where subcontractor and subcontractor's employee were coinsured parties under builder's risk policy
issued to developer to extent of supplies located on premises which were responsibility of developer, and
which were not specifically excluded, developer's policy was primary coverage for fire loss and other
insurance clause of builder's risk policy referred to other builder's risk insurance covering fire loss and not
public liability and property damage insurance, and, therefore, public liability and property damage policy
issued to subcontractor, naming developer as additional insured, was not of proper sort to allow builder's
risk policy to permit subrogation against insurer of subcontractor and subcontractor's employee.
OPINION
On October 10, 1974, Industrial Indemnity Company, hereinafter referred to as
Industrial, issued a builder's risk fire insurance policy to J. F. Shea Company, Inc., dba
Century Community Developers, hereinafter referred to as Shea. The policy was effective
through October, 1977, and covered fire losses at Shea's construction projects.
On January 15, 1976, Shea subcontracted with Hynds Plumbing & Heating Company,
hereinafter referred to as "Hynds".
Plumbing & Heating Company, hereinafter referred to as Hynds. Pursuant to the
subcontract, Hynds agreed to indemnify Shea from any loss or damage sustained by Shea
resulting from Hynds' performance of the subcontract. Hynds also agreed to hold Shea
harmless for bodily injury or property damage, and to procure liability insurance naming Shea
as an insured. Atlantic Insurance Company, hereinafter referred to as Atlantic, issued a
public liability and property damage insurance policy to Hynds, naming Shea as an additional
insured. Under Article II, 4 of the subcontract, Shea was obligated to provide fire insurance
for the property subject to the subcontract.
On January 25, 1976, Bobby Ruppert, Jr., an employee of Hynds, while welding, caused a
fire in the building being constructed. Atlantic's adjusters investigated the loss, solicited bids,
and authorized the repair work. The damage was repaired by Kauffman Construction at a cost
of $57,044.60. Kauffman sought payment from Atlantic. Atlantic refused to pay for the
repairs; therefore, Shea asked Industrial to pay. Industrial agreed to loan Shea the repair
costs conditioned upon Shea's promise to repay the loan if a final judgment were entered in
favor of Hynds, construing Article II, 4 of the subcontract as a release by Shea of Hynds
from liability for fire damage.
1

Shea sued Hynds, Ruppert, and Atlantic to recover expenses incurred to repair the fire
damaged buildings and attorney fees. (Industrial brought the action in Shea's name.) Hynds,
Ruppert, and Atlantic filed an amended complaint seeking a judgment declaring Hynds and
Ruppert to be coinsureds under the Industrial policy and precluding subrogation. Following
the entry of summary judgment in favor of respondents, Shea and Industrial appealed. They
argue that there is a genuine issue of material fact regarding the status of Hynds and Ruppert
as coinsureds.
2

1. Summary judgment is proper when there is no genuine issue of material fact or where,
viewing the evidence and inferences which may be drawn in a light most favorable to the
adverse party, the moving party is entitled to judgment as a matter of law.
____________________

1
Paragraph 26 of the Builders Risk Monthly Reporting Form, attached to the Industrial policy, states:
Except as noted below, this company shall not be bound to pay any loss if the insured shall have impaired
any right of recovery for loss to the property insured; however, it is agreed that: (A) as respects property while in
the premises of the insured, permission is given the insured to release others in writing from liability for loss and
such release shall not affect the right of the insured to recover hereunder.

2
There is no evidence to support the district judge's conclusion that Atlantic is a coinsured under the
Industrial policy.
issue of material fact or where, viewing the evidence and inferences which may be drawn in a
light most favorable to the adverse party, the moving party is entitled to judgment as a matter
of law. Harvey's Wagon Wheel v. MacSween, 96 Nev. 215, 606 P.2d 1095 (1980); Round
Hill Gen. Improvement v. B-Neva, 96 Nev. 181, 606 P.2d 176 (1980); McDermond v.
Siemens, 96 Nev. 226, 607 P.2d 108 (1980); NRCP 56. The district judge decided there was
no genuine issue as to material fact and, as a matter of law, found Hynds and Ruppert to be
coinsureds under the Industrial policy. We agree.
In Harvey's Wagon Wheel v. MacSween, supra, we held as a matter of law that coinsureds
are immune from a subrogation claim by their insurer absent an explicit proviso to the
contrary. In Harvey's, the contractor and subcontractor were additional insureds under a
general purpose endorsement to a policy issued to Harvey's. There was no issue concerning
their status as coinsureds.
[Headnote 1]
Here, there is no language that expressly adds Hynds and Ruppert as insureds, either by
name or description. However, the reporting form attached to the Industrial policy extends
coverage to materials, equipment and supplies and temporary structures of all kinds
incidental to the construction of buildings and structures, and similar properties belonging to
others for which the insured is liable. Thus the Industrial policy covered the building under
construction, and any material, equipment and supplies of Hynds and Ruppert there, unless
specifically excluded.
3

[Headnotes 2-4]
The insurance provided for in the Industrial policy attached to the construction project for
the benefit of all the unnamed owners of property therein. In this context, the term liable is
not to be construed as being restricted to the legal liability of Shea, but extends coverage to
the owner of any property within the project for which Shea was generally responsible. Shea,
as general contractor, had responsibility for the premises where the work was in progress and
for equipment and supplies on the premises. Consequently, Hynds' and Ruppert's material
and supplies located on the damaged premises, which were not specifically excluded,
were covered under the Industrial policy.
____________________

3
Builders Risk Monthly Reporting Form attached to the Industrial policy at page one thereof, paragraph 3
(a), states as follows:
PROPERTY NOT COVERED: this policy does not insure: (A) contractors' or sub-contractors' tools and
equipment.
and supplies located on the damaged premises, which were not specifically excluded, were
covered under the Industrial policy. It follows that Hynds and Ruppert were to that extent
coinsured parties under the policy. Transamerica Insurance Company v. Gage Plumbing &
Heating Company, 433 F.2d 1051 (10th Cir. 1970); Louisiana Fire Ins. Co. v. Royal
Indemnity Co., 38 So.2d 807, 809 (La. 1959); United States Fire Insurance Company v.
Beach, 275 So.2d 473, 475 (La.App. 1973); St. Paul Fire & Marine v. Murray Plumbing, Etc.,
135 Cal.Rptr. 120, 126 (Ct.App. 1976); see also Baugh-Belarde Const. Co. v. College
Utilities, 561 P.2d 1211 (Alas. 1977).
4
An insurer may not subrogate against a coinsured of
its insured. Harvey's Wagon Wheel v. MacSween, supra; Home Insurance Company v. Pinski
Brothers, Inc., 500 P.2d 945, 949 (Mont. 1972).
[Headnote 5]
2. Appellant Shea further contends that, even if Hynds and Ruppert are coinsureds, the
other insurance and excess clause
5
in the Industrial policy permits subrogation against
their insurer, Atlantic. We do not agree.
The Atlantic policy was issued to Hynds in compliance with the terms of the subcontract.
It is a public liability and property damage insurance policy that names Hynds and Shea as
insureds. The parties agreed that it was to be the primary insurance for that type of coverage.
The Industrial policy is the primary coverage for fire loss. See United States Fire Ins. Co.
v. Insurance Co. of No. America, 328 F.Supp. 43, 47 (E.D.Mo. 1971) (where two policies
provide coverage, the more specific loss coverage is primary). The other insurance clause
of this policy must be deemed to refer to other builder's risk insurance covering fire loss and
not public liability and property damage insurance. St. Paul Fire & Marine v. Murray
Plumbing, Etc., 135 Cal.Rptr. at 124.
____________________

4
Contra, McBroome-Bennett Plumbing, Inc, v. Villa France, Inc., 515 S.W.2d 32 (Tex.Civ.App. 1974). We
choose not to follow this Texas case because it overlooks the fact that the builder's risk insurance attached to the
property under construction for the benefit of unnamed parties and does not merely indemnify the named insured
against liability in tort or contract to the owners of property on the premises.

5
Paragraph 18 of Industrial's Builders Risk Monthly Reporting Form states in part:
This policy does not attach to or become insurance against any peril upon property herein described, which
at the time of any loss is covered by other insurance (meaning insurance in the name of the insured but not
written upon the identical plan, terms, conditions, and provisions contained in this policy) until liability of such
other insurance has been exhausted, and then cover [sic] only such loss as may exceed the amount due from such
other insurance. . . .
public liability and property damage insurance. St. Paul Fire & Marine v. Murray Plumbing,
Etc., 135 Cal.Rptr. at 124.
6

____________________

6
Our holding today makes it unnecessary to determine whether or not Industrial was a real party in interest in
the suit by Shea against Hynds, Ruppert and Atlantic.
____________
96 Nev. 867, 867 (1980) Pacific Maxon, Inc. v. Wilson
PACIFIC MAXON, INC., a California Corporation, EDWARD MAXWELL
and BETTY MAXWELL, Appellants, v. GINA WILSON, aka
REINA FUCHIGAMA, Respondent.
No. 11879
December 3, 1980 619 P.2d 816
Appeal from judgment. Third Judicial District Court, Churchill County; Stanley A. Smart,
Judge.
Action was brought by purchasers for damages and rescission of a contract for sale of a
bordello. The district court entered judgment for vendor and purchasers appealed. The
Supreme Court, Batjer, J., held that: (1) lower court's conclusion, that there had been no
actual reliance by purchasers on vendor's altered appraisal report, was not supported by
substantial evidence, in view of the court's factual finding that purchasers had relied in part
on the misrepresentation in the report; (2) purchasers were not entitled to damages for fraud,
because their reliance on the misrepresentation was unjustified; and (3) purchasers did not
need to show justifiable reliance to make out a claim for rescission of the contract.
Affirmed in part, reversed in part, and remanded.
Chubb & Silverman, and Guild, Hagen & Clark, Ltd., Reno, for Appellant.
Bissett & Logar, Reno, for Respondent.
1. Contracts.
Total reliance upon a misrepresentation is not required to entitle a party to rescission of a contact, as long
as misrepresentation is part of the inducement to enter into the transaction.
In action for rescission of a contract for sale of brothel, lower court's conclusion that there had been no
actual reliance by purchasers on vendor's altered appraisal report was not supported by substantial
evidence, in view of the court's factual finding that purchasers had relied in part on the misrepresentation in
the report.
3. Fraud.
Lack of justifiable reliance bars recovery in an action at law for damages for the tort of deceit.
4. Fraud.
Though vendor of brothel altered value of property in appraisal report, purchasers were not entitled to
damages for fraud, where their reliance on the misrepresentation was unjustified.
5. Contracts.
Suit in equity for rescission of a contract does not necessarily fail because the party seeking rescission
was unreasonable in relying upon the misrepresentation made by the other party.
6. Contracts.
Negligence on the part of the party seeking rescission of a contract will not bar equitable relief when
misrepresentation was made intentionally by the other party.
7. Fraud.
A party who has made a false representation knowingly and with the intention that the other party be
deceived by it should not be allowed to profit from the credulity or negligence of the party upon whom it
had its intended effect.
8. Contracts.
When a party asserts misrepresentation as grounds for rescission of a contract, actual fraud, that is, an
intentional false misrepresentation which is relied upon in fact is all that is required.
9. Contracts.
A finding of fraud sufficient to support a tort action for deceit will always satisfy the standard of fraud for
rescission of a contract if the other predicates for equitable relief are met.
10. Contracts.
In an action for rescission, once the plaintiff has established that a representation is false, and that it was
material to the transaction, that is, that it was actually relied upon, the burden shifts to the other party to
negate some element of the prima facie case.
Where vendor of bordello altered the appraised value of the property in appraisal report, purchaser, who
relied in part on the misrepresentation, did not need to show justifiable reliance to make out a claim for
rescission of the contract of sale.
OPINION
The district court, after a bench trial, entered judgment for the defendant on a claim for
damages and rescission, on the ground of fraudulent misrepresentation, of a contract for
the sale of a bordello.
ground of fraudulent misrepresentation, of a contract for the sale of a bordello.
The evidence presented at trial showed that respondent Wilson was interested in selling
the brothel she owned, Gina's Salt Wells Villa, located in Churchill County, Nevada. As
part of the information she furnished her broker, she included a copy of an appraisal report,
prepared by a member of the American Institute of Real Estate Appraisers, which she had
altered. The original appraisal report placed an estimated value of $195,000 on the property;
Wilson altered this figure to over $405,000. The report was supplied to appellant Edward
Maxwell by his attorney, who had obtained it from Wilson's broker along with the
information that Wilson was offering the brothel for sale for $400,000.
After observing the business carried on at the brothel and reviewing some records of the
business, appellants purchased the brothel for $400,000. When appellants learned of the
difference between the original appraisal and the altered copy which respondent had supplied
them, they sued to rescind the contract and sought damages for fraud. The district court ruled
that reliance upon the appraisal had not been established and that reliance would in any event
have been unjustified. It rendered judgment for respondent accordingly, and this appeal
followed.
[Headnotes 1, 2]
Although concluding that reliance upon the misrepresentation in the appraisal (both as to
the value of the property and as to the source of the report being a qualified and disinterested
appraiser) had not been established, the district court made a factual finding that there had
been some reliance by Edward Maxwell on the report. Total reliance upon a
misrepresentation is not required to entitle a party to rescission. It is enough that the
misrepresentation is part of the inducement to enter into the transaction. Fishback v. Miller,
15 Nev. 428 (1880); Anderson v. Handley, 308 P.2d 368 (Cal.App. 1957); see also Freeman
v. Soukup, 70 Nev. 198, 265 P.2d 207 (1953). The district court's conclusion that there had
been no actual reliance is thus not supported by substantial evidence, in view of its factual
finding (with evidence in the record to support it) that appellants had relied in part on the
misrepresentation.
[Headnotes 3, 4]
Assuming, then, that there was at least some reliance by appellants upon the
misrepresentation in the altered appraisal report, we must consider whether the district court
erred in concluding that appellants were not entitled to relief because their reliance was
unjustified.
their reliance was unjustified. Lack of justifiable reliance bars recovery in an action at law for
damages for the tort of deceit. Lubbe v. Barba, 91 Nev. 596, 540 P.2d 115 (1975); Clark
Sanitation v. Sun Valley Disposal, 87 Nev. 338, 487 P.2d 337 (1971). As to appellants' claim
for damages in tort for fraud, judgment was properly entered for respondent.
[Headnotes 5-7]
A suit in equity for rescission of a contract, however, does not necessarily fail because the
party seeking rescission was unreasonable in relying upon the misrepresentation made by the
other party. Even negligence on the part of the party seeking rescission will not bar equitable
relief when the misrepresentation was made intentionally by the other party. Van Meter v.
Bent Construction Company, 297 P.2d 644 (Cal. 1956); Seeger v. Odell, 115 P.2d 977 (Cal.
1941). A party who has made a false representation knowingly and with the intention that the
other party be deceived by it should not be allowed to profit from the credulity or negligence
of the party upon whom it had its intended effect. See Bilotti v. Accurate Forming Corp., 188
A.2d 24 (N.J. 1963) (tort of deceit).
1
Here, the focus of the inquiry is whether the party
seeking rescission was deceived in fact by the misrepresentation which the other party made
knowingly and with the intention that it be relied upon. See Prudential Insurance Company of
America v. Anaya, 428 P.2d 640 (N.M. 1967); Halsell v. First Nat. Bank, 159 P. 489 (Okla.
1915).
[Headnotes 8, 9]
Cases cited by both parties to the effect that justifiable reliance must be established in
order to state a claim for relief are inapposite. The cited cases deal with actions in tort for
damages. Lubbe v. Barba, supra; Village Development Co. v. Filice, 90 Nev. 305, 526 P.2d
83 (1974); Clark Sanitation v. Sun Valley Disposal, supra; Miller v. Lewis, 80 Nev. 402, 395
P.2d 386 (1964). They are therefore not controlling when a party asserts misrepresentation
as grounds for rescission of a contract.
____________________

1
Since the district court in this case found that the misrepresentation was made by respondent with
knowledge of its falsity and with the intent to mislead prospective buyers, we need not decide in this case
whether equitable relief would be barred when the misrepresentation is made recklessly, negligently, or
innocently. See Halpert v. Rosenthal, 267 A.2d 730 (R.I. 1970); Seeger v. Odell, supra. We also express no
opinion on the question of whether a degree of unreasonableness greater than simple negligence on the part of
the party seeking rescission would bar even that relief. See Van Meter v. Bent Construction Company, supra;
United Ben. Fire Ins. Co. v. First Nat. Bank of Ariz., 405 P.2d 488 (Ariz.App. 1965) (tort). Similarly, our ruling
here does not alter in any way present standards relevant to tort actions for deceit.
asserts misrepresentation as grounds for rescission of a contract. In this context, actual fraud,
that is, an intentional false representation which is relied upon in fact, is all that is required.
See Havas v. Alger, 85 Nev. 627, 461 P.2d 857 (1969); Friendly Irishman v. Ronnow, 74
Nev. 316, 330 P.2d 497 (1958); see also Banta v. Savage, 12 Nev. 151 (1877). Thus a finding
of fraud sufficient to support a tort action for deceit will always satisfy the standard of fraud
for rescission of a contract if the other predicates for equitable relief are met, see Sanguinetti
v. Strecker, 94 Nev. 200, 577 P.2d 404 (1978), but the converse is not true.
[Headnote 10]
Appellants also contend, relying upon Fishback v. Miller, supra, that the party against
whom fraud is asserted, here respondent Wilson, has the burden of proving lack of reliance.
We interpret the cited language in Fishback
2
as merely a statement of the normal shifting of
the burden of proof when the party seeking relief has established a prima facie claim for
relief. In an action for rescission, once the plaintiff has established that a representation is
false, and that it was material to the transaction, that is, that it was actually relied upon, see
Westchester Fire Ins. Co. v. English, 543 S.W.2d 407 (Tex.Civ. 1976), the burden shifts to
the other party to negate some element of the prima facie case.
[Headnote 11]
The district court erred in requiring that justifiable reliance be shown to make out a claim
for rescission of the contract of sale in this case. We therefore reverse the judgment of the
district court with respect to appellants' claim for rescission and remand the case for further
proceedings not inconsistent with this opinion.
____________________

2
[W]hen representations made by the seller in a case like this are shown to be material and false, the burden
is upon him to show that they were not relied upon by the buyer, and that the purchase would have been made
without the representations. 15 Nev. at 443 (citation omitted).
____________
96 Nev. 872, 872 (1980) Laughlin v. Hydro Search, Inc.
CHANDLER A. LAUGHLIN, Appellant, v. HYDRO SEARCH,
INC., and JEFFREY A. GILMAN, Respondents.
No. 11940
December 8, 1980 620 P.2d 373
Appeal from order of the Second Judicial District Court, Washoe County; John W. Barrett,
Judge.
The district court entered summary judgment against injured vehicle owner, who was
uninsured, in action involving entitlement to receive no fault insurance benefits and for
basic reparation benefits and general damages. The Supreme Court, Young, District Judge,
held that: (1) where there was no evidence in record supporting finding that injured motor
vehicle owner suffered in excess of $10,000 in economic detriment, he was not entitled to
recover for such damages, and (2) incurring of bill by motor vehicle owner of $756 for
secretarial-type replacement services did not meet threshold requirement to sue for damages
for noneconomic detriment that medical benefits exceed $750 where statutory definition of
medical benefits did not include such secretarial-type replacement services.
Affirmed.
William K. Lohse, Reno, for Appellant.
Fahrenkopf, Mortimer, Sourwine, Mousel & Pinkerton, Reno, for Respondents.
1. Insurance.
Where no evidence in record supported finding that injured vehicle owner, who was uninsured, suffered
in excess of $10,000 in economic detriment, vehicle owner was not entitled to recover for such damages.
NRS 698.280, subd. 1(h).
2. Automobiles.
Injured and uninsured vehicle owner, who had incurred bill of $756 for secretarial-type replacement
services, had not thereby met statutory threshold requirement to sue for damages for noneconomic
detriment that medical benefits exceed $750 where statutory definition of medical benefits did not include
secretarial-type replacement services. NRS 698.070, subds. 1, 3, 698.280, subds. 1(i), 2.
OPINION
By the Court, Young, D. J.
1
:
In 1973 no fault insurance laws were enacted by the Nevada State Legislature as a
cure-all for personal injuries in vehicular accidents.
____________________

1
The Governor designated the Honorable Llewellyn A. Young, Judge of the Sixth Judicial District Court, to
sit in the place of The Honorable Gordon Thompson, Justice. Nev. Const. art. 6, 4.
Nevada State Legislature as a cure-all for personal injuries in vehicular accidents. The 1979
legislature passed legislation phasing out no fault insurance on January 1, 1980.
The courts, however, still have to decide those cases that arose during the period
1973-1980. This case is one such case and involves the questions of whether a party, a
vehicle owner in the State of Nevada who was uninsured, is entitled to receive no fault
insurance benefits, and whether he sustained damages in excess of the no fault threshold so as
to entitle him to sue for basic reparation benefits and general damages.
[Headnote 1]
Appellant is not entitled to recover basic reparation benefits as to the first $10,000 of an
injured person's economic detriment. NRS 698.280(1)(h)
2
abolished the tort-feasor's
liability. As no evidence in the record supports a finding that appellant suffered in excess of
$10,000 in economic detriment, appellant as matter of law is not entitled to recover from
respondents for such damages. Surman v. Griebel, 439 F.Supp. 1118 (D.Nev. 1977).
[Headnote 2]
Appellant also argues that he is entitled to sue respondents for damages for noneconomic
detriment. This contention is without merit. Tort liability or noneconomic detriment was also
abolished where a party's medical benefits did not exceed $750. NRS 698.280(1)(i) and (2).
3
Appellant contends that his bill of $756 for secretarial-type replacement services
constitutes medical benefits.
____________________

2
NRS 698.280(1)(h) provided:
Tort liability with respect to accidents occurring in this state and arising from the ownership
maintenance or use of a motor vehicle is abolished except as to:
. . . .
Damages for any loss not recoverable as basic reparation benefits by reason of the limitation on
benefits for those losses, as provided in NRS 698.070;

3
NRS 698.280 provided in pertinent part:
Tort liability with respect to accidents occurring in this state and arising from the ownership
maintenance or use of a motor vehicle is abolished except as to:
. . . .
Damages for noneconomic detriment, but only if the medical benefits for the injured person exceed
$750, or if the accident causes death, chronic or permanent injury, permanent partial or permanent total
disability, disfigurement, more than 180 days of inability of the injured person to work in his occupation,
fracture of a major bone, dismemberment or permanent loss of a body function.
2. Any person who receives medical and surgical benefits is considered in compliance with the
requirements of paragraph (i) of subsection 1 upon at least $750. Any person receiving ordinary and
necessary services normally performed by a nurse from a relative or a member of his household may
include the reasonable value of such services in meeting the requirements of that paragraph.
bill of $756 for secretarial-type replacement services constitutes medical benefits. Appellant
thus suggests he has met the threshold requirement. Medical benefits were expressly defined
by statute, NRS 698.070(3),
4
and did not include secretarial-type replacement services.
Rather, such expenses were expressly covered by the definition of disability income benefits.
NRS 698.070(1).
5

As seen, there are no questions of fact in dispute and appellant may not recover damages
for economic and noneconomic detriment from these respondents as a matter of law.
Summary judgment was properly granted by the district court. NRCP 56(c).
____________________

4
NRS 698.070(3) provided:
Medical benefits' means payment for all reasonable charges incurred for necessary medical services,
X-ray, dental and rehabilitative services, including but not limited to prosthetic devices, necessary
ambulance, hospital and nursing services. Such benefits also include necessary remedial treatment and
services recognized and permitted under the laws of this state for an injured person who relies upon
spiritual means, through prayer alone, for healing in accordance with his religious beliefs. The term does
not include that portion of a charge for a room in a hospital, clinic, convalescent or nursing home or any
other institution engaged in providing nursing care and related services in excess of a reasonable and
customary charge for semiprivate accommodation, unless intensive care is medically required.

5
NRS 698.070(1) provided:
Disability income benefits' means payment, not to exceed $175 per week, for loss of income from
work the injured person would have performed if he had not been injured and expenses reasonably
incurred by him in obtaining services in lieu of those he would have performed for income, reduced by
any income for substitute work actually performed by him or by income he would have earned in
available appropriate substitute work he was capable of performing, but unreasonably failed to undertake.
If disability income benefits are excludable from gross income for income tax purposes, disability
income benefits' means payment, not to exceed $175 per week, for 85 percent of loss of income as
calculated in this subsection. As used in this subsection, income' includes but is not limited to salary,
wages, tips, commissions, professional fees, profits from an individually owned business or farm, or the
profits or income from any partnership, or profits from a corporation which are taxed pursuant to 26
U.S.C. 1371 et seq.
____________
96 Nev. 875, 875 (1980) Potter v. State
STEVEN SEXTON POTTER, Appellant, v. THE STATE
No. 12225
December 8, 1980 619 P.2d 1222
Appeal from judgment of conviction for robbery, Eighth Judicial District Court, Clark
County; Robert G. Legakes, Judge.
The Supreme Court held that: (1) although flight instruction should not gave been given as
there was no evidence whatsoever that defendant's leaving the robbery scene constituted
flight, error was not prejudicial as neither a miscarriage of justice nor prejudice to
defendant's substantial rights resulted, and (2) district court did not err by refusing to give
jury instructions dealing with credibility of witness claimed to be an accomplice.
Affirmed.
Morgan D. Harris, Public Defender, and Victor John Austin, Deputy Public Defender,
Richard H. Byran, Attorney General, Carson City; Robert J. Miller, District Attorney, and
1. Criminal Law.
Although trial court erred in giving instruction that defendant's leaving the robbery scene constituted
flight as there was no evidence whatsoever that defendant's leaving the robbery scene did constitute
flight, error was not prejudicial.
2. Criminal Law.
In prosecution for robbery, trial court did not err in refusing to give cautionary instruction as to character
of witness' testimony as evidence showed without serious contradiction that witness was not an accomplice
and as witness was fully cross-examined and district court gave general instruction on factors relating to
credibility of witnesses and jury's duty to weigh testimony. NRS 175.291, subd. 2.
OPINION
Per Curiam:
[Headnote 1]
Appellant was convicted of robbery. He first contends that the district court erred by
giving a jury instruction on flight. The giving of such an instruction is not error if evidence of
flight has been admitted.
flight has been admitted. See Matthews v. State, 94 Nev. 179, 576 P.2d 1125 (1978). Flight is
more than merely leaving the scene of the crime. It embodies the idea of going away with a
consciousness of guilt and for the purpose of avoiding arrest. Theriault v. State, 92 Nev. 185,
547 P.2d 668 (1976); see e.g., Shults v. State, 96 Nev. 742, 616 P.2d 388 (1980) (escape from
custody); Matthews v. State, supra (running from crime scene); Theriault v. State, supra
(leaving jurisdiction and using assumed name). In the present case there is no evidence
whatsoever that appellant's leaving the robbery scene constituted flight.
1
The instruction
should not have been given.
Nevertheless, the error does not require reversal because a review of the record indicates
neither a miscarriage of justice nor prejudice to appellant's substantial rights, Ogden v. State,
96 Nev. 258, 607 P.2d 576 (1980), and it is apparent that the same result would have been
reached without the error. See Carr v. State, 96 Nev. 238, 607 P.2d 114 (1980).
2

[Headnote 2]
Appellant also contends that the district court erred by refusing to give jury instructions
dealing with the credibility of Sophia Mireles. Appellant argues that Mireles was an
accomplice, and that the district court should have given a cautionary instruction as to the
character of her testimony. Cf. Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968) (testimony of
informer; cautionary instruction favored). An accomplice is one who is liable to prosecution
for the identical offense charged against the defendant, NRS 175.291(2), or who is culpably
implicated in, or unlawfully cooperates, aids or abets in the commission of the crime
charged.
____________________

1
The state asserts that appellant probably ran to a car and sped from the crime scene. Nothing in the record
supports this assertion. In fact, the victim specifically testified that appellant walked to the car.

2
The victim of the robbery positively identified appellant at trial. The victim's uncontradicted testimony was
that he stopped his car to help a stranded vehicle, and while he was pouring gasoline into the vehicle appellant
robbed him. Appellant stood behind the victim and placed an object in the victim's back. Appellant said, I have
a gun. The victim was scared, and at appellant's demand the victim handed over all of his money. The victim's
testimony was corroborated by Sophia Mireles, who had known appellant for at least 7 years prior to the
incident. Mireles was in the car while appellant robbed the victim. When appellant go back into the car, he told
Mireles that he had stuck a comb in the victim's back.
The evidence of a robbery and appellant's identity was uncontradicted, and was very strong. Furthermore, the
flight instruction itself stated that the jury must weigh the evidence of flight in connection with all the evidence
introduced in this case. Accordingly, it is apparent that the same result would have been reached without the
erroneous instruction.
the crime charged. Austin v. State, 87 Nev. 578, 491 P.2d 724 (1971). In the present case the
evidence shows without serious contradiction that Mireles was not an accomplice. See
Globensky v. State, 96 Nev. 113, 605 P.2d 215 (1980). Furthermore, she was fully
cross-examined, and the district court gave a general instruction on factors relating to the
credibility of witnesses and the jury's duty to weigh testimony. See Buckley v. State, 95 Nev.
602, 600 P.2d 227 (1979).
Affirmed.
____________
96 Nev. 877, 877 (1980) Duboise v. State Farm Mut. Auto. Ins.
DIXIE DUBOISE, Appellant, v. STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY, Respondent.
No. 10666
December 10, 1980 619 P.2d 1223
Appeal from judgment. Eighth Judicial District Court, Clark County; James A. Brennan,
Judge.
Insurer brought action against third-party tort-feasor seeking to recover the amount it had
paid to its insureds in settlement of their claims under the uninsured motorists provision of
automobile policy. The district court entered judgment in favor of the insurer and the
third-party tort-feasor appealed. The Supreme Court held that release and trust agreement
entered into between insurer and insureds was not a loan receipt transaction and, therefore,
insurer was the real party in interest in its action against the third-party tort-feasor.
Affirmed.
Dickerson, Miles & Pico, Las Vegas, for Appellant.
Rose, Edwards, Hunt & Pearson, Las Vegas, for Respondent.
1. Insurance.
Absent a loan receipt agreement, an insurer that pays its insured in full for claimed losses is subrogated
by operation of law to the rights, if any, which the insured may have had against the tort-feasor before
payment was made.
2. Insurance.
Generally, a loan receipt agreement constitutes a true loan if the obligation or liability of the insurer who
advances the money is not absolute, but is contingent, conditional, excess or undetermined.
3. Insurance.
Release and trust agreement entered into between insurer and insured in settlement of claims made under
uninsured motorist provision of automobile policy was not a loan receipt transaction and, therefore, insurer
was the real party in interest in its action against the third-party tort-feasor.
OPINION
Per Curiam:
On August 7, 1971, Dixie Duboise made a U-turn and crossed in front of a vehicle driven
by Hobart Abney, causing a collision.
1
Hobart and his wife, Viola, were injured. Duboise
was uninsured.
Pursuant to a settlement agreement, the Abneys' insurer, State Farm Mutual Automobile
Insurance Company, paid them $22,000 in full satisfaction of all claims under the Abneys'
policy. On April 2, 1973, the Abneys and State Farm executed a release and trust agreement
which provides in part:
For consideration aforesaid, and to the extent of any payment made thereunder, the
undersigned agrees to hold in trust for the benefit of the Company all rights of recovery
which he shall have against any person legally liable for such bodily injuries, and
assigns to the Company the proceeds of any settlement with or judgment against such
person.
. . .
State Farm was also authorized to take any action which may be necessary either in law or in
equity in the name of the undersigned against any such person.
On August 6, 1973, State Farm filed a complaint against Duboise seeking to recover the
$22,000 it had paid to the Abneys in settlement of their claim. The case was tried before the
court without a jury. Duboise move to dismiss the complaint on the ground that State Farm
was not a real party in interest because it waived its subrogation rights when it executed the
release and trust agreement. The district judge denied Duboise's motion to dismiss and
entered judgment in favor of State Farm for $22,000.
Duboise argues that the release and trust agreement is similar to the loan receipt agreement
considered in Central National Ins. Co. v. Dixon, 93 Nev. 86, 559 P.2d 1187 (1977) where
this court defined the loan receipt as a written agreement between an insurer and an insured
under which a sum of money is paid to the insured by the insurer, as a loan, and is
repayable to the insurer only to the extent of any recovery made by the insured from third
parties.
____________________

1
There is no transcript from the proceedings below. Pursuant to NRAP 10(c), the parties stipulated to a
statement of the evidence.
an insurer and an insured under which a sum of money is paid to the insured by the insurer, as
a loan, and is repayable to the insurer only to the extent of any recovery made by the insured
from third parties. When the transaction is a true loan, rather than payment of a claim, there is
no basis for subrogation and the insured is the real party in interest in an action against a
third-party tortfeasor. Id. at 87-88, 559 P.2d at 1188.
[Headnotes 1-3]
Absent such an agreement, an insurer that pays its insured in full for claimed losses is
subrogated by operation of law to the rights, if any, which the insured may have had against
the tortfeasor before payment was made. Valley Power Co. v. Toiyabe Supply, 80 Nev. 458,
396 P.2d 137 (1964). What effect the release and trust agreement has on State Farm's
subrogation rights is the key issue in this case. Generally, a loan receipt agreement constitutes
a true loan if the obligation or liability of the insurer who advances the money is not absolute,
but is contingent, conditional, excess or undetermined. Lusk v. State Farm Mut. Auto. Ins.
Co., 569 P.2d 985 (Okla. 1977) (policy language providing for a trust agreement construed as
creating a trust not a loan receipt transaction); Hiebert v. Millers' Mutual Insurance Ass'n of
Ill., 510 P.2d 1203 (Kan. 1973).
The agreement in this case is not a loan receipt transaction. State Farm's liability to the
Abneys under the uninsured motorist provision was absolute. The receipt and trust agreement
acknowledges the Abneys' receipt of $22,000 in full settlement and final discharge of all
claims under the policy.
The purpose of the agreement is to impose a trust upon any proceeds the Abneys might
recover, up to $22,000. They were not required to sue, but neither was State Farm. State Farm
was merely authorized to sue in the name of the Abneys if it chose to do so. Instead, State
Farm pursued its subrogation rights by bringing this action in its own name. No error was
committed by the district judge in concluding State Farm to be the real party in interest. The
judgment of the district court is affirmed.
Mowbray, C. J. and Thompson and Batjer, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

2
Honorable E. M. Gunderson, who voluntarily disqualified himself in this case. Nev. Const. Art. 6, 19; SCR 10.
____________
96 Nev. 880, 880 (1980) Owens v. State
JACKIE CLINTON OWENS, Appellant, v. THE
No. 11897
December 16, 1980 620 P.2d 1236
Appeal from judgment of conviction for sexual assault, Eighth Judicial District Court,
Clark County; Keith C. Hayes, Judge.
The Supreme Court, Batjer, J., held that: (1) it was not error to refuse to order disclosure
of victim's new address; (2) prior felony conviction of defendant was admissible for
impeachment purposes; (3) there was no evidence to support proposed defense instruction on
defendant's belief that the victim consented to the sexual intercourse; and (4) prosecutor's
closing argument was fair response to defense argument.
Affirmed.
Morgan D. Harris, Public Defender, and Terrence M. Jackson, Deputy Public Defender,
1. Criminal Law.
In view of overwhelming evidence of defendant's guilt, any error in introducing into evidence clothes
which were seized at the time of defendant's arrest and which were merely cumulative evidence on the issue
of identity was harmless.
2. Criminal Law.
Prosecutor must usually disclose the names and addresses of all witnesses. NRS 173.045, subd. 2.
3. Criminal Law.
Where defendant had sent two letters to the rape victim following his arrest and had telephoned her at
least twice, where victim had moved from her former address in order to avoid further harassment, and
where the prosecutor had agreed to make all necessary arrangements for the defense counsel to meet with
and interview the victim, prosecutor did not err in refusing to disclose the victim's new address.
4. Criminal Law.
Denial of a motion for mistrial is within the trial court's sound discretion which will not be disturbed on
appeal in the absence of a clear showing of abuse.
5. Criminal Law.
In view of trial court's curative instruction, police officer's statement concerning defendant's fingerprint
card to the effect that the card was used when we fingerprinted people in jail did not require new trial.
6. Criminal Law.
Although it might be better practice not to give instruction, defendant's substantial rights were not
prejudiced by instruction that the refusal to give court order exemplars may be evidence of consciousness
of guilt.
96 Nev. 880, 881 (1980) Owens v. State
7. Witnesses.
Evidence that a witness has been convicted of a felony is admissible for the purpose of attacking
credibility. NRS 50.095, subd. 1.
8. Witnesses.
In defendant's trial for sexual assault, trial court did not abuse its discretion in permitting impeachment by
prior felony conviction for possession of a stolen vehicle.
9. Criminal Law.
Defendant is entitled to have jury instructed as to his theory of the case if there is supportive evidence.
10. Rape.
In the absence of any evidence supporting defendant's contention that the victim had consented to the
sexual intercourse, trial court properly refused to instruct the jury that it was a defense to a charge of sexual
assault that defendant entertained a reasonable good faith belief that the victim voluntarily consented to the
intercourse.
11. Criminal Law.
Defendant who was acquitted on charge of burglary was not prejudiced by prosecutor's comment on
defendant's failure to explain his entry into the victim's home.
12. Criminal Law.
Where defense counsel called the victim a liar, prosecutor's statement in rebuttal was a fair response to
defense counsel's argument despite defendant's contention that the prosecutor's argument was an improper
attempt to gain sympathy for the witness and an improper suggestion that defense counsel treated her
unfairly.
13. Criminal Law.
Prosecutor must not express personal opinions as to a defendant's guilt because jurors might interpret
such opinion as being based on information other than evidence submitted at trial.
14. Criminal Law.
In view of trial court's admonition to jury, prosecutor's closing argument to the effect that, although he
had been brought up to believe that there was some good in all people, he could not see the good in the
defendant was harmless.
OPINION
A jury found appellant guilty of sexual assault. Numerous contentions are raised on
appeal. We affirm.
The victim testified that in the early morning hours of May 23, 1978, she awoke to find
appellant in her bedroom. She jumped out of bed, but appellant closed the bedroom door to
block her exit. She started crying, and appellant said he would take some money and leave.
When the victim's six year old child came into the bedroom appellant grabbed a pair of
scissors from the dresser, held them about six inches from the child's neck, and ordered the
child to leave. Appellant then ordered the victim to get into bed. After throwing down the
scissors, appellant had sexual intercourse with her. The victim testified that she was forced
to have intercourse against her will.
96 Nev. 880, 882 (1980) Owens v. State
testified that she was forced to have intercourse against her will.
Shortly after appellant left her premises, the victim reported the incident to the police. She
had seen appellant a few times before, and was acquainted with him. Consequently, she was
able to provide police with his name. That afternoon, two police officers went to his home.
Appellant told the officers his name. The officers noted that he was wearing a pair of blue
jeans with a red stripe which matched the description given by the victim. Appellant was
placed under arrest and was charged with burglary, robbery and sexual assault. He was
acquitted of the burglary and robbery charges, but was convicted of sexual assault.
[Headnote 1]
1. Appellant contends that certain articles of his clothing were illegally seized by police
officers at the time of the arrest, and that the district court erred by admitting the clothes into
evidence. We need not decide whether the seizure was illegal. The items seized were merely
cumulative evidence on the issue of identity of the assailant. The victim, who knew the
assailant and was able to observe him for a relatively long period of time, positively identified
appellant at trial. Evidence of recent intercourse was found on the jeans appellant was
wearing at the time of his arrest, not on the other clothes which were seized. Furthermore,
after the incident appellant wrote two letters to the victim in which appellant essentially
admitted that he was the assailant. Appellant did not testify or offer any evidence of an alibi.
Thus, evidence proving the identity of the assailant was overwhelming. Accordingly, even if
the clothes were illegally seized, their admission into evidence was cumulative, and any error
was harmless beyond a reasonable doubt. Harrison v. State, 96 Nev. 347, 608 P.2d 1107
(1980); see Weakland v. State, 96 Nev. 699, 615 P.2d 252 (1980).
2. Appellant also contends that the denial of his pretrial discovery motion seeking the
victim's new address deprived him of due process and the right to effectively confront and
cross-examine the witness. Following his arrest, appellant sent two letters to the victim and
telephoned her at least twice. She moved from her former address in order to avoid further
harassment. The prosecutor and district court refused to supply the new address, but agreed to
make all necessary arrangements for defense counsel to meet with and interview the victim
and her children.
[Headnotes 2, 3]
A prosecutor must usually disclose the names and addresses of all witnesses. NRS
173.045(2). However, a defendant's right to confront witnesses is not violated by the trial
court's refusal to disclose the address of a witness if disclosure could subject the witness
to harassment, humiliation or danger.
96 Nev. 880, 883 (1980) Owens v. State
to confront witnesses is not violated by the trial court's refusal to disclose the address of a
witness if disclosure could subject the witness to harassment, humiliation or danger. Brown v.
State, 94 Nev. 393, 580 P.2d 947 (1978). In the circumstances of this case the district court
did not commit error by refusing to order disclosure of the witness's new address.
3. Prior to trial the district court ordered appellant to produce handwriting and fingerprint
exemplars, as well as saliva and blood samples. Appellant refused to obey the court's orders.
The prosecutor attempted to establish appellant's fingerprints at trial by using a 1969
fingerprint card. References on the card to a prior arrest were blocked out. In response to the
prosecutor's question as to the card, a police officer witness stated that the card was used
when we fingerprinted people in jail. Appellant's motion for a mistrial was denied.
Appellant argues that the denial was error.
[Headnotes 4, 5].
Denial of a motion for mistrial is within the trial court's sound discretion. The court's
determination will not be disturbed on appeal in the absence of a clear showing of abuse.
Sparks v. State, 96 Nev. 26, 604 P.2d 802 (1980). In this case the remark by the witness was
relatively brief and innocuous. The district court immediately instructed the jury that the
Clark County fingerprint bureau is located at the jail, that fingerprints are taken for many
purposes other than criminal activity, and that the jury should not speculate as to the reason
for the fingerprinting. Any hint of previous criminal activity was cured by the trial court's
admonition to the jury. See Allen v. State, 91 Nev. 78, 530 P.2d 1195 (1975).
[Headnote 6]
4. Appellant also claims the district court erred by instructing the jury that refusal to give
court-ordered exemplars may be evidence of consciousness of guilt.
1
Appellant does not
claim that evidence of the refusal should have been excluded, or that the instruction was an
incorrect statement of the law. See Theriault v. State, 92 Nev. 185, 547 P.2d 668 (1976).
Appellant's sole argument is that the instruction placed undue emphasis on the refusal to give
exemplars. While it may have been the better practice not to give the instruction, in this case
it cannot be said that appellant's substantial rights were prejudiced by the instruction. See
State v. Haze, 542 P.2d 720 (Kan. 1975).
____________________

1
The challenged instruction read as follows:
You are instructed that the refusal of the defendant to give a court-ordered exemplar, while not of itself
conclusive, may be evidence of consciousness of guilt and may be considered as such by you.
96 Nev. 880, 884 (1980) Owens v. State
5. Appellant next contends that the district court erred by refusing to preclude the state
from using a prior felony conviction for purposes of impeachment. The prior conviction for
possession of a stolen vehicle occurred in 1977.
[Headnotes 7, 8]
Evidence that a witness has been convicted of a felony is admissible for the purpose of
attacking credibility. NRS 50.095(1). The decision to admit or exclude evidence of prior
offenses is within the discretion of the trial court. Rusling v. State, 96 Nev. 755, 616 P.2d
1108 (1980). We find no abuse of discretion.
6. Appellant argues that the district court erred by refusing a proposed defense instruction
on appellant's belief that the victim consented to the sexual intercourse.
2
Appellant argues
that the instruction was a correct statement of the law, see People v. Mayberry, 542 P.2d 1337
(Cal. 1975); cf. Williams v. State, 95 Nev. 830, 603 P.2d 694 (1979) (defendant's intent is
element of sexual assault), and that the instruction was supported by evidence.
[Headnotes 9, 10]
A defendant is entitled to have the jury instructed as to his theory of the case. However, an
instruction need not be given unless there is supportive evidence. Riddle v. State, 96 Nev.
589, 613 P.2d 1031 (1980); see Rusling v. State, 96 Nev. 778, 617 P.2d 1302 (1980). In the
present case the record contains no such supportive evidence,
3
and the district court correctly
refused the instruction.
4
[Headnote 11]
____________________

2
The proposed instruction read as follows:
It is a defense to a charge of sexual assault that the defendant entertained a reasonable and good faith belief
that the female person voluntarily consented to engage in sexual intercourse. If from all the evidence you have a
reasonable doubt whether the defendant reasonably and in good faith believed she voluntarily consented to
engage in sexual intercourse, you must give the defendant the benefit of that doubt and acquit him of said
charge.

3
Appellant did not testify that he believed the victim was consenting to the intercourse. Nevertheless,
appellant argues that the two letters written to her by appellant, introduced into evidence by the state, tend to
show appellant's good faith belief in the consent. We disagree. While appellant stated that his intent was to
please and not injure her appellant did not state he believed, at the time of the incident, that she was consenting.
In fact, appellant admitted that I was more or less in an uncaring state of mind at the time this event occurred.
Neither the letters written by appellant, nor any other evidence in the case, would support the inference that
appellant believed the victim consented to the intercourse.

4
In light of our holding that there was no evidentiary support for the instruction, we need not decide whether
it was an accurate statement of the law in this state.
96 Nev. 880, 885 (1980) Owens v. State
[Headnote 11]
7. Appellant further contends that a cumulation of prosecutorial misconduct during
closing argument resulted in an unfair trial. Appellant first points to the prosecutor's comment
on appellant's failure to explain the entry into the victim's home. This comment was directed
toward the burglary charge. See NRS 205.065. Since appellant was acquitted on that charge,
the comment obviously caused no prejudice.
[Headnote 12]
Appellant also cites the prosecutor's statement that defense counsel called the victim a liar.
Appellant argues that the statement was an improper attempt to gain sympathy for her and an
improper suggestion that defense counsel treated a witness unfairly. However, defense
counsel did, in fact, call the victim a liar.
5
The prosecutor's statement in rebuttal was a fair
response to defense counsel's argument. See Hafer v. People, 492 P.2d 847 (Colo. 1972).
Finally, appellant attacks the following statement by the prosecutor during closing
argument:
I was brought up to believe that there is some good in all of us. For the life of me, on
the evidence presented to me, I can't see the good in Jackie Clinton Owens.
[Headnotes 13, 14]
A prosecutor must not express personal opinions as to a defendant's guilt because jurors
might interpret such opinion as being based on information other than evidence admitted at
trial. People v. Bain, 489 P.2d 564 (Cal. 1971). In the present case, however, appellant's
objection was sustained and the jury was admonished as to the statement. We presume the
admonition was followed by the jury. See Stickney v. State, 93 Nev. 285, 564 P.2d 604
(1977). The admonition rendered the prosecutor's statement harmless. Tucker v. State, 86
Nev. 354, 469 P.2d 62 (1970).
Affirmed.
____________________

5
During his closing argument, defense counsel stated that the victim may not have told the complete truth,
that she lied under oath, that her testimony was fabricated, and that she perjure[d] herself.
____________
96 Nev. 886, 886 (1980) Krewson v. Warden
MICHAEL J. KREWSON, Appellant, v. WARDEN,
No. 12536
December 17, 1980 620 P.2d 859
Petitioner, who had been convicted, on guilty plea, of first degree murder, filed petition
for writ of habeas corpus for postconviction relief. The district court denied petition without
considering its merits, and petitioner appealed. The Supreme Court held that: (1) validity of
guilty plea was a matter which could be determined on petition for writ of habeas corpus filed
in such district court of the district having custody of petitioner, and (2) consideration of
petitioner's failure to raise the issues contained in his petition on a direct appeal from his
conviction was a matter within discretion of the district court, and would not be considered
by Supreme Court in the first instance.
Norman Y. Herring, State Public Defender, and Thomas J. Ray, Special Deputy Public
Richard H. Bryan, Attorney General, and Thomas P. Wright, Deputy Attorney General,
1. Habeas Corpus.
Validity of petitioner's guilty plea was a matter which could be determined on a petition for writ of
habeas corpus filed in district court of the district having custody of petitioner. NRS 34.380, subd. 3.
2. Habeas Corpus.
Consideration of petitioner's failure to raise the issues contained in his habeas corpus petition on a direct
appeal from his conviction was a matter within discretion of district court, and would not be considered by
Supreme Court in the first instance.
OPINION
Per Curiam:
Michael J. Krewson pled guilty to murder in the first degree in the Eighth Judicial District
Court, and judgment of conviction was thereafter entered against him on March 5, 1979.
96 Nev. 886, 887 (1980) Krewson v. Warden
Krewson did not file a direct appeal from the judgment of conviction. On February 12, 1980,
Krewson filed a petition for writ of habeas corpus for post-conviction relief in the First
Judicial District Court challenging the voluntariness of his guilty plea. The district court
denied the petition without considering its merits, finding that as a petition for writ of habeas
corpus the petition requested relief beyond the jurisdiction of the court. This appeal followed.
[Headnote 1]
As conceded by respondent, this case is governed by our recent decision in Dromiack v.
Warden, 96 Nev. 269, 607 P.2d 1145 (1980), in which we held that the validity of a guilty
plea is a matter which may be determined upon a petition for a writ of habeas corpus filed in
the district court of the district having custody of the petitioner. NRS 34.380(3).
[Headnote 2]
The state argues, however, that the decision of the district court should nevertheless be
affirmed because the issues Krewson seeks to present were not raised in a direct appeal of his
conviction. We disagree. Consideration of Krewson's failure to raise the issues contained in
his petition on a direct appeal from his conviction is a matter within the discretion of the
district court, Warden v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974), and will not be considered
by this court in the first instance. See Vargo v. Warden, 94 Nev. 466, 581 P.2d 855 (1978).
Accordingly, the order of the district court is reversed and the case is remanded for
proceedings consistent with this opinion.
____________
96 Nev. 887, 887 (1980) St. Pierre v. State
LOUIS ST. PIERRE, Appellant, v. THE STATE
No. 8126
December 17, 1980 620 P.2d 1240
Appeal from second degree murder conviction and sentence, Second Judicial District
Court; John W. Barrett, Judge.
The Supreme Court, 92 Nev. 546, 554 P.2d 1126 (1976), bifurcated the appeal, dismissing
one portion and holding that jury instruction placing burden of proving self-defense on
defendant was not unconstitutional. In March, 1977, the Supreme Court ordered
reinstatement of the original appeal, for reconsideration in light of United States Supreme
Court decisions. The Supreme Court, Manoukian, J., held that: {1) jury instruction placing
burden of proving self-defense on defendant was unconstitutional; {2) failure of
defendant to object to questioned jury instruction did not constitute waiver of such claim;
{3) Supreme Court on direct appeal would consider recognized constitutional claims
attendant to procedural waiver where cause and prejudice were shown; {4) cause for
defendant's failure to object was demonstrated; and {5) defendant's substantial rights
were prejudiced by placing burden of proof of self-defense on defendant as record
contained no overwhelming evidence of guilt and claim of self-defense was not
unconvincing.
for reconsideration in light of United States Supreme Court decisions. The Supreme Court,
Manoukian, J., held that: (1) jury instruction placing burden of proving self-defense on
defendant was unconstitutional; (2) failure of defendant to object to questioned jury
instruction did not constitute waiver of such claim; (3) Supreme Court on direct appeal would
consider recognized constitutional claims attendant to procedural waiver where cause and
prejudice were shown; (4) cause for defendant's failure to object was demonstrated; and (5)
defendant's substantial rights were prejudiced by placing burden of proof of self-defense on
defendant as record contained no overwhelming evidence of guilt and claim of self-defense
was not unconvincing.
David Hamilton, Reno, for Appellant.
and Edward B. Horn, Deputy District Attorney, Washoe County, for Respondent.
1. Homicide.
Once accused raises issue of self-defense and record contains some evidence of its existence, whatever its
source, accused cannot be required to shoulder burden of proving self-defense by any standard as
self-defense, by its nature, disproves a fact essential to the offense by negating unlawfulness element of
murder.
2. Criminal Law.
Failure of defendant, in prosecution for murder, to object to jury instruction on burden of proving
self-defense, which was challenged on appeal, did not constitute waiver of such claim.
3. Criminal Law.
Supreme Court may, given proper showing, consider recognized constitutional claims attendant to
procedural waiver on direct review where cause for waiver and prejudice to defendant's substantial rights
can be shown.
4. Criminal Law.
Where imposition of burden of persuasion of self-defense on defendant had been upheld by Supreme
Court on prior occasions, failure of defendant in murder prosecution to object to jury instruction on burden
of proving self-defense did not preclude review of constitutional challenge to instruction by Supreme
Court.
5. Criminal Law.
Where there was no overwhelming evidence of guilt, and claim of self-defense was not unconvincing,
jury instruction placing burden of proving self-defense on defendant in murder prosecution was prejudicial
error.
OPINION
In this appeal, appellant seeks reversal assigning error, inter alia, to alleged prosecutorial
and police improprieties occurring prior to as well as during trial, juror irregularities, and the
severity of his sentence. Nevertheless, the single issue warranting our consideration and
which impels us to order a new trial is whether the jury instruction on self-defense improperly
shifted the burden of proof of an essential element of the charge of murder upon the
appellant.
1
We hold that it does, and for the reasons hereinafter expressed, reverse.
Appellant, Louis St. Pierre, had, during the month prior to the instant February 16, 1974
shooting, filed a complaint with the Washoe County Sheriff's Department alleging that Sam
Sutphen, Richard Swatzenberg and the decedent, Tom Whitworth, had stolen his lumber.
Pursuant to his own investigation, St. Pierre discovered that the wood was located in the
backyard of the Swatzenberg's residence.
2
The afternoon of February 16, appellant and a
business partner, Cleve Clark, informed the Swatzenbergs that their rent would increase from
$65 to $165 a month; an increase designed to force the Swatzenbergs to move.
At 5:58 p.m. on February 16, 1974, Officer Balaam of the Washoe County Sheriff's
Department, arrived a the Kirkley residence in order to do a follow-up report on the reported
lumber theft. Officer Balaam left the residence at 6:33 p.m. After leaving, Officer Balaam
received a radio report that a shooting had occurred. Balaam immediately returned to the
crime scene. During the short interval, Thomas Whitworth was shot and killed.
After Officer Balaam's initial departure at 6:33, appellant and Dale Kirkley went into the
backyard of a lot neighboring the Swatzenberg residence to estimate the quantity of lumber in
the yard. Richard Swatzenberg and Sam Sutphen approached from the other side of the fence
and an argument over the wood ensued.
____________________

1
During oral argument, counsel for respondent state conceded that the giving of the instruction constituted
error in light of our holding in Kelso v. State, 95 Nev. 37, 588 P.2d 1035 (1979). Nevertheless, the state
contends that the issue was not properly preserved for appellant review, because of the absence of a proper
objection at trial.

2
The property was occupied by Richard and Bonnie Swatzenberg, who were Thomas Whitworth's sister and
brother-in-law, and by Madge Ashcraft, Whitworth's mother. The property was owned and operated by the
appellant who had leased the property to the Swatzenbergs.
wood ensued. Almost simultaneously, Whitworth drove up the Swatzenberg's driveway,
jumped out of his car, and ran toward the fence. Whitworth was physically restrained by
Swatzenberg before reaching the fence. An argument over the rent increase began. During
this argument St. Pierre fired two shots. Swatzenberg testified that the shots were fired at the
outstretched hands of Whitworth. Appellant testified that the shots were fired down the fence
line as warning shots, an assertion corroborated by the location of the ejected shells from the
two shots. The defense maintained that the argument ended when Whitworth left the scene to
seek police aid. The state contends that it ended when Whitworth left to obtain a weapon.
Shortly thereafter, the argument was resumed in the street in front of the trailer where
Whitworth was residing. During this argument, Whitworth was shot and killed. There were
numerous witnesses to the incident; however, their testimony was conflicting. Two
discernible patterns emerged: those who testified that Whitworth raised his hands in a
surrender position and began to retreat; and those who testified that Whitworth first
threatened St. Pierre and then lunged at him.
Following a protracted jury trial, appellant was found guilty of second degree murder. On
appellant's motion we entered an order permitting a bifurcation of this appeal to consider the
sole issue of whether the rationale of Mullaney v. Wilbur
3
renders the jury instruction on the
burden of proving self-defense unconstitutional. We dismissed the remainder of the appeal
without prejudice to reinstate, if appropriate.
Subsequent to our refusal to extend the Mullaney principle to self-defense absent more
guidance from the United States Supreme Court, St. Pierre v. State, 92 Nev. 546, 554 P.2d
1126 (1976), the high court did apply the Mullaney rationale to affirmative defenses which
negate an essential element of the charged offense. Patterson v. New York, 432 U.S. 197
(1977). In Hankerson v. North Carolina, 432 U.S. 233 (1977), the Court authorized the
retroactive application of the Patterson rationale.
In March 1977, we ordered the reinstatement of the original appeal. Appellant now
contends that in view of Patterson and Hankerson, reversal of St. Pierre's conviction is
mandated. On this record, we are constrained to agree.
____________________

3
Mullaney v. Wilbur, 421 U.S. 684 (1975), held unconstitutional a Maine law which required an accused to
prove that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. The
court held that the due process clause was offended because the prosecution was not required to prove each
element of the charged offense beyond a reasonable doubt.
[Headnote 1]
Instruction No. 16 read: The burden of proving circumstances which justify or excuse the
killing of another is upon the defendant but the defendant need not prove such circumstances
beyond a reasonable doubt. This instruction is identical to that given and objected to in
Kelso v. State, 95 Nev. 37, 41, 588 P.2d 1035, 1038. In both cases, the now impermissible
instruction was proper under Nevada Law. In Kelso, we overruled our initial decision in St.
Pierre v. State, 92 Nev. 546, 554 P.2d 1126, concerning the given instruction, holding that
with respect to the defense of self-defense, the instruction retains the misleading tendency to
impose the burden of proof by a preponderance on the defendant, id. at 43, 588 P.2d at 1040.
We reasoned that because self-defense is justifiable, it negates the unlawfulness element of
murder. Accordingly, once the accused raises the issue of self-defense and the record contains
some evidence of its existence, whatever its source, People v. McEvoy, 337 N.E.2d 437
(Ill.App. 1975), he cannot be required to shoulder the burden of proving self-defense by any
standard as self-defense by its nature, disproves a fact essential to the offense. To shift the
burden to the defendant dilutes the State's own due process burden of proving, beyond a
reasonable doubt, every element of the crime charged. Kelso v. State, 95 Nev. at 41, 588
P.2d at 1038, citing Patterson v. New York, 432 U.S. 197. Notwithstanding, we there
determined that although the instruction was erroneous, it did not require reversal, because of
the absence of a showing of either a miscarriage of justice or prejudice to Kelso's substantial
rights.
[Headnote 2]
Although respondent ably argues that the procedural default incidental to appellant's
failure to object to the questioned jury instruction under the so-called contemporaneous
objection rule constitutes a waiver of such claim, Stewart v. Warden, 94 Nev. 516, 516, 579
P.2d 1244, 1245 (1978); McCall v. State, 91 Nev. 556, 557, 540 P.2d 95, 95 (1975),
Hankerson, through footnote, has seemingly deferred to the states the question of whether
reversal is mandated.
4
In light of Hankerson's ad hoc approach, and the closeness of this
case, fundamental fairness requires us to consider the question on its merits.
____________________

4
The States, if they wish, may be able to insulate past convictions by enforcing the normal and valid rule
that failure to object to a jury instruction is a waiver of any claim of error. Hankerson v. North Carolina, 432
U.S. at 244, n. 8. Although we could opt to leave the enforcement of the contemporaneous objection rule open as
a means of insulating past convictions from the effects of the Mullaney rationale, we choose not to in light of the
intervening
[Headnote 3]
Utilizing the cause and prejudice approach in reviewing allegations of error untimely
raised, as enunciated in Wainwright v. Sykes, 433 U.S. 72 (1977) and Francis v. Henderson,
425 U.S. 536 (1976), we may, given the proper showing, consider recognized constitutional
claims attendant to a procedural waiver. Recognizing that the above rule stems from habeas
corpus proceedings, we nevertheless believe that the cases are persuasive authority to adopt
the same standard on direct review. Accordingly, to promote judicial economy, finality, and
rather than compel a defendant to seek federal habeas corpus relief, we are constrained to
apply the above standard of review on direct appeals. See Commonwealth v. Hibler, 382 A.2d
724 (Pa. 1978); Commonwealth v. Lynch, 383 A.2d 1263 (Pa. 1978); Squire v. State of Md.,
368 A.2d 1019 (Md. 1977) where other state courts reach parallel results.
[Headnote 4]
Cause for appellant's failure to object is demonstrated by the fact that objection would
have been futile as the imposition of the burden of persuasion on a defendant had been upheld
by this court on prior occasions. Phillips v. State, 86 Nev. 720, 475 P.2d 671 (1970); White v.
State, 82 Nev. 304, 417 P.2d 592 (1966). Moreover, on the initial appeal, this court
considered the validity of the jury instruction. St. Pierre v. State, 92 Nev. 546, 554 P.2d 1126.
We find solid support for this position in cases from our own federal circuit. As the court
held in United States v. Wanger, 426 F.2d 1360, (9th Cir. 1970), and we herein adopt,
The appellant did not forfeit his rights . . . by failing to object to jury instructions which
applied the law as it was firmly established . . . nor should he be penalized for his
attorneys not having requested jury instructions which, at the time of trial, would have
been inconsistent with the law as it then existed. Compare United States v. Scott, 425
F.2d 55 (9th Cir. Mr. 6, 1970).
See also Bean v. State, 86 Nev. 80, 465 P.2d 133 (1970). There is no requirement that a
defendant or his trial counsel be clairvoyant.
____________________
cases and the injustice that would result should we refuse to grant reconsideration. The state argues that we
should not treat the giving of the instruction as plain error, dispensing with the requirement of a
contemporaneous objection because the effect would be to open all prior murder convictions involving
self-defense to collateral attack. Even if this factor were to be considered we would not be convinced absent an
intentional, voluntary and knowing relinquishment of the right. Moreover, we are not persuaded that the impact
on the administration of justice in this state will be as devastating as respondent contends. See, for example,
Kelso v. State, 95 Nev. 37, 588 P.2d 1035 (1979).
[Headnote 5]
The concomitant requirement of prejudice to the defendant's substantial rights is readily
demonstrable by the record. Contrary to the Kelso case, there is no overwhelming evidence of
guilt, nor is the claim of self-defense unconvincing.
Appellant's version of self-defense is internally consistent and compatible with much of
the conflicting testimony and physical evidence. At trial there was adduced evidence of the
victim's prior assaultive conduct and mammoth size, especially when compared with
appellant's stature. Here, St. Pierre admitted that he shot the victim, and contested only that he
was not the aggressor. The state and the defense each presented a reasonable interpretation of
the occurrence for jury consideration. On this record, the fact that the trial court instructed the
jury of the state's burden of proving its case beyond a reasonable doubt, is of no material
consequence, and we cannot hold that the burden placed on appellant by virtue of jury
instruction no. 16 was not prejudicial.
In summation, the deliberate bypass standard announced in Fay v. Noia, 372 U.S. 391,
438-39, as it has been interpreted and developed by such cases as Wainwright and Francis,
has played a key role in efforts by the federal judiciary to accommodate the constitutional
rights of the individual with the state's interests in the integrity of their judicial procedural
schemes. It should apply in the context of this unknowing procedural default, to promote the
commitment to enforcing intentional but not inadvertent procedural defaults thereby offering
a realistic measure of protection in the circumstances before this court; a result which will
have little if any ill effect upon the needed finality of our criminal trials.
The remaining assignments of error are either without merit or will probably not reoccur in
a similar factual context, and are therefore not considered.
Mowbray, C. J., Batjer, J., and Christensen, D. J.,
5
concur.
____________________

5
The Governor designated the Honorable Carl J. Christensen, Judge of the Eighth Judicial District Court, to
sit in the place of The Honorable Gordon Thompson, Justice, who was disqualified. Nev. Const. art. 6, 4.
______________
96 Nev. 894, 894 (1980) Tilbe v. Warden
RONALD C. TILBE, Appellant, v. WARDEN OF THE
No. 12530
December 18, 1980 620 P.2d 860
Norman Y. Herring, State Public Defender, and Thomas J. Ray, Special Deputy Public
Richard H. Bryan, Attorney General, and Robert C. Manley, Deputy Attorney General,
OPINION
Per Curiam:
For the reasons stated in and on the authority of Krewson v. Warden, 96 Nev. 886, 620
P.2d 859 (1980), the order of the district court is reversed and the case is remanded for a
determination of whether sufficient grounds exist which excuse appellant's failure to raise the
issues contained in his petition on a direct appeal from his conviction, and if so, for resolution
of the merits of the petition.
____________
96 Nev. 894, 894 (1980) Bonacci v. State
THOMAS LAMAR BONACCI, Appellant, v. THE STATE
No. 11535
December 18, 1980 620 P.2d 1244
Appeal from a judgment entered upon a jury verdict, Fourth Judicial District Court, Elko
County; Joseph O. McDaniel, Judge.
Defendant was convicted in the district court of attempting to sell LSD, and he appealed.
The Supreme Court, Gunderson, J., held that: (1) where defendant took no appeal directly
from district court's order denying motion to change venue, issue was not jurisdictionally
before Supreme Court; (2) in view of defendant's failure to provide Supreme Court with
record containing prosecutor's statement, Supreme Court could not determine whether
trial court abused its discretion in denying motion for mistrial on grounds that prosecutor
included hearsay remarks in his opening statement; {3) trial court did not abuse its
discretion in admitting evidence concerning possession of other controlled substances;
and {4) failure of defendant to object to instructions on entrapment precluded appellate
consideration.
in view of defendant's failure to provide Supreme Court with record containing prosecutor's
statement, Supreme Court could not determine whether trial court abused its discretion in
denying motion for mistrial on grounds that prosecutor included hearsay remarks in his
opening statement; (3) trial court did not abuse its discretion in admitting evidence
concerning possession of other controlled substances; and (4) failure of defendant to object to
instructions on entrapment precluded appellate consideration.
Affirmed.
Jack B. Ames, Elko, for Appellant.
Richard Bryan, Attorney General, Carson City, and Thomas L. Stringfield, District
1. Criminal Law.
Where defendant took no appeal directly from district court's order denying motion to change venue,
issue was not jurisdictionally before Supreme Court. NRS 2.110.
2. Criminal Law.
In view of defendant's failure to provide Supreme Court with record containing prosecutor's statement,
Supreme Court could not determine whether trial court abused its discretion in denying motion for mistrial
on grounds that prosecutor included hearsay remarks in his opening statement.
3. Criminal Law.
In prosecution which resulted in conviction for knowingly and intentionally attempting to sell LSD, there
was no manifest error in exercise of trial court's discretion in admitting evidence concerning possession of
other controlled substances, introduced by prosecutor to show intent and motive to commit crime charged,
or absence of mistake or accident. NRS 48.045, subd. 2, 453.321, subd. 1.
4. Criminal Law.
Where giving of instruction does not constitute plain error failure to object precludes appellate
consideration.
5. Criminal Law.
Where giving of instructions concerning entrapment was not plain or fundamental error, defense counsel's
failure to object precluded appellate consideration.
OPINION
A jury found appellant Bonacci guilty of knowingly and intentionally attempting to sell
LSD, a controlled substance. See NRS 453.321(1). On appeal, appellant contends the district
court deprived him of a fair trial, by denying his motion for a change of venue, by denying
his motion for a mistrial based on prosecutorial misconduct, by certain evidentiary
rulings, and by incorrect jury instructions on entrapment.
court deprived him of a fair trial, by denying his motion for a change of venue, by denying his
motion for a mistrial based on prosecutorial misconduct, by certain evidentiary rulings, and
by incorrect jury instructions on entrapment. We find no merit in any of these contentions.
1. Prior to jury selection, which began on June 15, 1978, appellant moved to change
venue on grounds that prejudicial pretrial newspaper publicity precluded selection of an
impartial jury.
1
The court reserved decision on the motion, pending an attempt to select a fair
jury through the voir dire. Once a jury was empaneled, appellant renewed his motion,
2
which the district court denied.
[Headnote 1]
NRS 2.110 provides in pertinent part: An order changing or refusing to change the place
of trial shall not be appealed from on an appeal from a judgment, but only on direct appeal
from the order changing or refusing to change the place of trial. Appellant took no appeal
directly from the district court's order denying his motion, and hence this issue is not
jurisdictionally before us.
3
NRS 2.110; Anderson v. State, 86 Nev. 829, 838, 477 P.2d 595
(1971).
2. In his initial remarks to the jury, the trial judge noted, inter alia: What is said in the
opening statement is not evidence. The statements simply serve the purpose of an
introduction to the evidence which the party making the statement intends to produce. The
prosecutor then made an opening statement, after which appellant's counsel moved for a
mistrial on grounds the prosecutor included hearsay remarks indicating that appellant was a
major interstate supplier of drugs. The court denied appellant's motion, but admonished the
prosecutor not to make any more remarks along those lines, and once again reminded the
jury that "arguments of counsel are not evidence."
____________________

1
The defendant cited one article headlined, Walking Drugstore Faces District Court Trial Thursday,
published in the Elko Daily Free Press of June 13, 1978, as sufficient to warrant a change of venue. In pertinent
part the article read: Elko County District Court trial begins Thursday for Tom Lamar Bonacci who a State
narcotics agent once referred to as a walking drugstore.' Jury selection begins at 9:30 a.m. in the district
courtroom.

2
Defendant's counsel contended in argument to the court that six of the twelve jurors selected had admitted to
having read the offending article; however, the transcript of the voir dire examination was not included in the
record on appeal, and nothing in the record presented to us indicates that these six jurors were prejudiced unduly
by having read the article. Nor does the record indicate that any of these jurors was unsuccessfully challenged
for cause by the defendant.

3
Following trial, appellant filed a notice of appeal, reciting only that he was appealing the above entitled
matter, including but not limited to the entry of judgment and sentence entered on the 24th day of August,
1978.
once again reminded the jury that arguments of counsel are not evidence.
[Headnote 2]
On appeal, appellant contends that the district court erred in not granting his motion for a
mistrial. He has failed to provide this court a record containing the prosecutor's statement,
however, and this is at the heart of the issue he seeks to raise. Thus, we cannot determine that
the trial court abused its discretion. A Minor v. State, 85 Nev. 323, 325, 454 P.2d 895 (1969);
Lee v. Sheriff, 85 Nev. 379, 380, 455 P.2d 623 (1969).
3. When arrested, appellant allegedly had eight different controlled substances in his
possession, although he subsequently was charged solely with attempted sale of LSD. At trial,
the prosecutor sought to introduce evidence concerning possession of the other controlled
substances to show intent and motive to commit the crime charged, or to show absence of
mistake or accident.
4
The court admitted evidence concerning other controlled substances,
and duly advised the jury that they should consider it only for the aforementioned limited
purposes. Later, the court again so informed the jury with a specific instruction read
immediately prior to their deliberations.
In Nester v. State, 75 Nev. 41, 54, 334 P.2d 524 (1959), this Court stated:
In order to establish admissibility, then, it is not enough to establish that the
evidence of a separate offense is relevant and competent under one of the exceptions to
the general rule excluding such evidence. Even where relevancy under an exception to
the general rule may be found, fair trial demands that the evidence not be admitted in
cases where, by virtue of its prejudicial nature, it is more likely to distract from the
essential issue than to bear upon it.
Whether, under the circumstances, admission of the evidence interferes with fair
trial, can hardly be determined by fixed rule of law. It would seem to require, instead,
the exercise of judicial discretion of the trial judge.
We have consistently applied this rule in subsequent cases. See, e.g. Williams v. State, 95
Nev. 830, 603 P.2d 694 (1979); Reese v. State, 95 Nev. 419, 596 P.2d 212 (1979).
____________________

4
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.
Here, the challenged evidence was relevant and competent under exceptions to the general
rule outlined in NRS 48.045(2), and appellant has admitted as much. Thus, the resolution of
this assignment of error must turn on assessment of the trial court's exercise of discretion, and
as to such matters, we have said:
The duty placed upon the trial court to strike a balance between the prejudicial effect of
such evidence on the one hand, and its probative value on the other is a grave one to be
resolved by the exercise of judicial discretion. . . Of course the discretion reposed in the
trial judge is not unlimited, but an appellate court will respect the lower court's view
unless it is manifestly wrong. (Emphasis added.)
Brown v. State, 81 Nev. 397, 400, 404 P.2d 428 (1965) (citations deleted).
[Headnote 3]
The record on appeal shows no manifest wrong in the exercise of the trial court's
discretion, and consequently admitting the evidence of other controlled substances did not
constitute reversible error.
5

4. As an affirmative defense, appellant attempted to show entrapment. The trial court gave
the jury three instructions related to this issue, and also gave several instructions concerning
the prosecution's burden of proving guilt beyond a reasonable doubt on each element of the
crime charged. Appellant's counsel neither objected to the court's instructions, nor did he
proffer any additions or substitutes; however, now he contends the court inadequately
instructed the jury on entrapment.
6
[Headnote 4]
[Headnote 4]
____________________

5
The trial court's decision to admit the evidence also finds support in NRS 48.035(3), which provides:
3. Evidence of another act or crime which is so closely related to an act in controversy or a crime charged
that an ordinary witness cannot describe the act in controversy or the crime charged without referring to the
other act or crime shall not be excluded, but at the request of an interested party, a cautionary instruction shall be
given explaining the reason for its admission.
The drug sale in question involved numerous controlled substances; all substances confiscated by the police
were in the one brown paper bag; the discussion between appellant and the narcotics agents involved controlled
substances in addition to LSD.

6
The court instructed the jury as follows:
No. 11. You are instructed that if you believe that Robert Rowell asked the defendant to get some
controlled substance for him; and that Defendant undertook to act in behalf of Robert Rowell rather than on his
own behalf, and in doing so obtained controlled substances from a third person with whom he was not associated
in selling controlled substances, and that the Defendant
[Headnote 4]
We have held that when a defendant's counsel has not only failed at trial to object to jury
instructions, but has agreed to them, the failure to object or to request special instructions
precludes appellate consideration. McCall v. State, 91 Nev. 556, 557, 54 P.2d 95 (1975); Van
Valkenberg v. State, 95 Nev. 317, 318, 594 P.2d 707 (1979), citing McCall. The only
exception we have recognized to this otherwise absolute rule is one for plain error. Cutler v.
State, 93 Nev. 329, 337, 566 P.2d 809 (1977); Lewis v. State, 94 Nev. 727, 729, 588 P.2d 541
(1978), citing Cutler. The controlling rule for the instant issue is that set forth by this court in
Cutler: Where . . . the giving of an instruction does not constitute plain error, the failure to
object precludes appellate consideration. Id. at 337.
[Headnote 5]
In the instant matter the trial judge's instructions seem to be in general conformity with the
law as set down by this court. Instruction No. 11 was obviously patterned after the instruction
sanctioned by this court in Roy v. State, 87 Nev. 517, 518, 489 P.2d 1158 (1971), and
Instruction No. 14 is properly based on the law concerning entrapment established by this
court in Lisby v. State, 82 Nev. 183, 186, 414 P.2d 592 (1966) and Wyatt v. State, 77 Nev.
490, 495, 367 P.2d 104 (1961). Hence, we do not consider the giving of such instructions to
be plain or fundamental error, and we decline to consider arguments tendered for the first
time on appeal.
The judgment entered below is affirmed.
____________________
thereafter delivered the controlled substance to a State Narcotic Agent, the Defendant is not a seller and cannot
be convicted of the offense of attempting to sell a controlled substance.
No. 13. Entrapment is the seduction or improper inducement to commit a crime for the purpose of
instituting a criminal prosecution, but if a person in good faith and for the purpose of detecting or discovering a
crime or offense, furnishes the opportunity for the commission thereof by one who has the requisite criminal
intent, it is not entrapment.
No. 14. The defendant has the burden of proving by preponderance of the evidence that he was entrapped
into the commission of the crime. Preponderance of the evidence means such evidence as, when weighed with
that opposed to it, has more convincing force and the greater probability of truth.
____________
96 Nev. 900, 900 (1980) In re Bull
In re: SAMUEL T. BULL, Attorney at Law.
No. 12834
December 18, 1980
ORDER
Pursuant to the stated form of discipline, SCR 113(1), approved by this court in our Order
Granting Petition dated October 8, 1980, we hereby authorize the publication, in accordance
with SCR 121, of the following letter of reprimand, submitted by the State Bar of Nevada
Disciplinary Board, Northern District, Robert McQuaid, Chairman:
Samuel T. Bull, Attorney at Law, 316 South Arlington Avenue, Reno, Nevada 89501
A formal complaint was instituted against you by the State Bar Association pursuant to
SCR 105(2) alleging that you had procured a divorce for a client knowing that the client did
not meet the residency requirements of this State. Prior to the conclusion of the formal
hearing on that matter you entered a conditional plea of guilty to the charge pursuant to SCR
113.
In the conditional plea you admitted to having been grossly negligent, careless and
inattentive to your obligation as an officer of the court in failing to ascertain whether your
client was in fact a resident and domiciliary of the State of Nevada at the time she so testified
in court during the divorce proceedings. You further admitted that although you had received
information that your client had perpetrated a fraud upon the court by perjuring herself during
the divorce proceedings, you failed to promptly call upon your client to rectify the same or to
reveal the fraud to the court. Your conduct violates Disciplinary Rule 6-101(A)(2) and
Disciplinary Rule 7-102(B)(1) of the American Bar Association Code of Professional
Responsibility, incorporated into the Nevada Supreme Court Rules by SCR 203.
Your conduct has brought disgrace to an honorable profession. The legal profession owes
a duty of trust and fidelity to the public which you have breached. The confidence of the
public in our profession has been irreparably tainted by your actions.
Dated this 1st day of December, 1980.
96 Nev. 900, 901 (1980) In re Bull
s/Robert McQuaid, Chairman, Northern Nevada Disciplinary Board.
It is so ORDERED.
____________
96 Nev. 901, 901 (1980) In re Warren
In the Matter of the Suspension of RONALD L.
WARREN, Attorney at Law
No. 12343
December 18, 1980, effective January 17, 1981
ORDER
The State Bar of Nevada, Disciplinary Board, Southern District, has petitioned this court
to impose the stated form of discipline contained in the conditional plea of guilty tendered by
Ronald L. Warren, Attorney at Law. The conditional plea of guilty has been approved by six
members of the Disciplinary Board. See SCR 113(1).
Good cause appearing, the conditional plea is approved and the petition is granted.
Accordingly, we
ORDER that Ronald L. Warren, Attorney at Law, be suspended from the practice of law
for a period of seven years, and that at the conclusion of this seven-year period, Ronald L.
Warren may petition this court for reinstatement.
It is further
ORDERED that during the period of his suspension, Ronald L. Warren must comply with
the following conditions:
1. That he violate no criminal law;
2. That he not take part in any conduct involving civil fraud, conversion,
misrepresentation, dishonesty, deceit or moral turpitude;
3. That he not practice law; and that he not be employed in any capacity in any law office
except with the prior approval of the Disciplinary Board, if it should hereafter appear that law
office employment would further his rehabilitation;
4. That he comply with all provisions of Nevada Supreme Court Rule 116;
5. That he pay the costs of the investigation and prosecution of this matter, incurred by the
State Bar of Nevada, including staff and Bar Counsel fees, in the amount of One Thousand
Six Hundred Sixteen Dollars and Fifty Eight Cents {$1,616.5S);
96 Nev. 901, 902 (1980) In re Warren
Thousand Six Hundred Sixteen Dollars and Fifty Eight Cents ($1,616.58);
6. That said costs shall be paid within seven (7) years to the State Bar of Nevada at its
Reno, Nevada, office; and
7. That he have no association of any kind with any of the individuals involved in the
circumstances giving rise to these disciplinary proceedings.
____________
96 Nev. 902, 902 (1980) Levy v. Levy
SUSAN D. LEVY, Appellant and Cross-Respondent, v.
LOUIS A. LEVY, Respondent and Cross-Appellant.
No. 10896
December 29, 1980 620 P.2d 860
Appeal and cross-appeal from judgment of the court sitting without a jury, Second Judicial
District Court, Washoe County; Grant L. Bowen, Judge.
Appeal and cross-appeal were taken from judgment of the district court granting divorce
and declaring parties' divorce settlement agreement to be valid. The Supreme Court held that:
(1) evidence supported trial court's findings that there had been no condonation and that each
party had freely, voluntarily and without fraud, coercion or duress entered into settlement
agreement upon advice of counsel, and (2) in absence of evidence that property acquired by
husband and wife in joint tenancy was to be separate property of husband, each party was
entitled to undivided separate interest in each parcel.
Affirmed.
John W. Hawkins, Reno, for Appellant and Cross-Respondent.
C. Frederick Pinkerton, Reno, for Respondent and Cross-Appellant.
1. Divorce; Husband and Wife.
In divorce case, evidence supported trial court's findings that there had been no condonation and that
each party had freely, voluntarily and without fraud, coercion or duress entered into settlement agreement
upon advice of counsel.
Point not urged in trial court, unless it goes to jurisdiction of court, will be deemed waived and need not
be considered on appeal.
96 Nev. 902, 903 (1980) Levy v. Levy
3. Divorce.
In absence of evidence that property acquired by husband and wife in joint tenancy was to be separate
property of husband, upon divorce, each party was entitled to undivided separate interest in each parcel.
4. Divorce.
Award of attorney fees in divorce actions is neither automatic nor compulsory, but is within sound
discretion of trial court. NRS 125.150, subd. 3.
OPINION
Per Curiam:
The district court granted a divorce and declared the parties' divorce settlement agreement
to be valid. Susan D. Levy, defendant below, is now the appellant and cross-respondent.
Louis A. Levy, plaintiff below, is respondent and cross-appellant.
Susan challenges trial court findings that (1) no condonation or forgiveness of the cause
for divorce occurred in the period September 3, 1976, to May 24, 1977; (2) the parties'
settlement agreement is valid; and (3) under the agreement's terms, she is not entitled to a
one-half interest in a property known as the Owl Motel. Susan also appeals the court's denial
of her motion for attorney's fees. Louis appeals the trial court's ruling that, under the
agreement's terms, Susan is entitled to a one-half interest in properties known as the Rancho
Reno Motel and the Duplex. In all respects, we affirm the district court.
The parties married in February, 1968, and separated in April, 1976. Louis filed for a
divorce on grounds of incompatibility on May 12, 1976. Trial was set for September 10,
1976, but approximately one week before that date, the parties decided to attempt a
reconciliation. Thus, the trial date was vacated; however, the divorce action was not
withdrawn.
Through their respective attorneys, the parties had been negotiating a settlement agreement
to dispose of their property, to fix support obligations, and to resolve custody matters
concerning their four children. These negotiations continued and, about September 24, 1976,
the parties reached a meeting of the minds. Louis signed the settlement agreement on that
date; Susan signed it in her attorney's office on October 1, 1976. Subsequently, Louis left
Susan for a second time, and on July 7, 1977, filed a supplemental complaint alleging, inter
alia, that the parties had entered into a written agreement providing for the custody of their
minor children, support of defendant and children, and division of the community property
and community obligations. As an affirmative defense, Susan's answer raised contentions
that, subsequent to the initial complaint, she and Louis had resolved their difficulties, that
on or about October 15, 1976, they had resumed living together, and that their settlement
agreement had thus been set aside through condonation.
96 Nev. 902, 904 (1980) Levy v. Levy
raised contentions that, subsequent to the initial complaint, she and Louis had resolved their
difficulties, that on or about October 15, 1976, they had resumed living together, and that
their settlement agreement had thus been set aside through condonation. Following a trial, the
district court granted a divorce, as indicated above.
[Headnote 1]
1. In the instant matter, there is substantial evidence in the record to support the trial
court's findings that there was no condonation, and that each party freely, voluntarily and
without fraud, coercion or duress entered into the agreement upon the advice of their
respective legal counsel. Because these findings by the trial court are not clearly erroneous
but are based instead on substantial evidence, they will not be disturbed on appeal. Fletcher v.
Fletcher, 89 Nev. 540, 542, 516 P.2d 103 (1973); Savini Constr. Co. v. A. & K. Earthmovers,
88 Nev. 5, 7, 492 P.2d 125 (1972).
[Headnote 2]
2. At the trial, Susan's sole claim was that the settlement agreement was invalid because a
reconciliation had occurred. Her post-trial motions only concerned her claim for attorney fees
and the contention that by the terms of the settlement agreement she should have been
awarded a share in the Rancho Reno Motel and the Duplex. On appeal, she has proffered
several other claims neither raised in nor considered by the district court. A point not urged in
the trial court, unless it goes to the jurisdiction of the court, will be deemed waived and need
not be considered on appeal. Britz v. Consolidated Casinos Corp., 87 Nev. 441, 447, 488 P.2d
911 (1971); e.g. Hill v. Summa Corporation, 90 Nev. 79, 82, 518 P.2d 1094 (1974); accord
Tupper v. Kroc, 88 Nev. 146, 150, 494 P.2d 1275 (1972).
3. The trial court's decision as to the Owl Motel, i.e., that it is Louis's separate property, is
in accord with Paragraph V(1) of the parties' settlement agreement, as augmented by NRS
111.010 and NRS 111.160.
[Headnote 3]
4. The trial court's decision as to the Rancho Reno Motel and the Duplex, i.e., that each
party was entitled to an undivided separate interest in each parcel, was not contrary to the
requirements of Paragraph IX of the settlement agreement. Evidence was presented to show
that both Louis and Susan participated in acquiring these parcels, and that both properties
were acquired in joint tenancy. The trial court concluded that, [t]here was no evidence that
the property acquired in joint tenancy was to be the separate property of the husband. Our
review of the record convinces us that the trial court was correct.
96 Nev. 902, 905 (1980) Levy v. Levy
review of the record convinces us that the trial court was correct. Hence, its ruling was not
erroneous, and should not be disturbed on appeal. Fletcher, cited above; Savini Constr. Co.,
cited above.
[Headnote 4]
5. NRS 125.150(3) provides that, [w]hether or not application for suit money has been
made under the provisions of NRS 125.040, the court may award a reasonable attorney's fee
to either party to an action for divorce if those fees are in issue under the pleadings. The
award of attorney's fees in divorce actions is made neither automatic nor compulsory by this
provision, but is within the sound discretion of the trial court. Fletcher, cited above, at 543.
Affirmed.
Mowbray, C. J., and Thompson, Gunderson, and Batjer, JJ., and Babcock, D. J.,
1
concur.
____________________

1
The Governor designated the Hon. Howard Babcock, Judge of the Eighth Judicial District Court, to sit in
the place of The Hon. Noel Manoukian, who was disqualified. Nev. Const., art. 6, 4.
____________
96 Nev. 905, 905 (1980) Howard Hughes Med. Inst. v. Gavin
HOWARD HUGHES MEDICAL INSTITUTE, Appellant, v. JUNE GAVIN, Special
Administratrix of the Estate of Annette Gano Lummis, Deceased, Respondent.
No. 12416
December 29, 1980 621 P.2d 489
Appeal from summary judgment, Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
Medical institute petitioned to probate a lost or destroyed will which allegedly left most of
estate to institute. The district court entered judgment for special administratrix of estate of
one of decedent's next of kin, and medical institute appealed. The Supreme Court, Batjer, J.,
held that: (1) neither declarations made by decedent or others with personal knowledge of
alleged will could be substituted for second credible witness, and (2) institute failed to
provide evidence sufficient to support its petition to probate lost will.
Affirmed.
Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane, Reno; Sherwin J. Markman and
Joseph M. Hassett, Hogan & Hartson, Washington, D.C., for Appellant.
Echeverria & Osborne, Chartered, Reno; Morse-Foley, Las Vegas, Andrews, Kurth,
Campbell & Jones, Houston, Texas, for Respondent.
1. Wills.
In this state, a will may not be proved as a lost or destroyed will unless it was in existence at death of the
testator and unless its provisions can clearly and distinctly be proved by at least two credible witnesses.
NRS 136.240.
2. Wills.
While a testator's declarations may be useful in interpreting ambiguous terms of an established will or in
corroborating other competent evidence, it cannot be substituted for one of the witnesses required by
statute. NRS 136.240, subd. 3.
3. Wills.
Strict compliance with requirements of statute requiring living witnesses or signed, sworn testimony
reduced to writing precludes proof of contents of lost will by hearsay declarations of deceased people,
unless declarant's testimony is written and signed by declarant and while declarations not in this form may
be admissible for other purposes, if trustworthy and necessary, they are not sufficient to prove a lost will
under the statute. NRS 136.240.
4. Wills.
Statements by decedent's attorney which allegedly were made under circumstances free from any
motivation to lie and were necessary to prove contents of will, now deceased, would not be considered
testimony of one of two credible witnesses required to prove contents of lost will. NRS 136.240.
5. Judgment.
Summary judgment is proper when moving party is entitled to judgment as a matter of law.
In reviewing a summary judgment, court must accept as true the allegations and reasonable inferences
favorable to position of nonmoving party.
7. Judgment.
Neither mere conjecture nor hope of proving allegations of a pleading is sufficient to create a factual
issue. NRCP 56(e).
8. Wills.
Medical institute seeking to establish terms of lost will allegedly leaving most of decedent's estate to
institute failed to provide evidence sufficient to support its petition to probate the lost will.
OPINION
Howard R. Hughes, Jr., died on April 5, 1976. To date, no will executed by Hughes has
been found. The appellant, Howard Hughes Medical Institute (HHMI), seeks to establish the
terms of a lost will leaving most of the Hughes estate to HHMI.
HHMI filed its petition to probate a lost or destroyed will of Howard Hughes on January
12, 1977. Respondent, the estate of one of Hughes' next-of-kin, contested the probate.
Following extensive discovery and will-search activities, respondent moved for summary
judgment, which was granted on February 1, 1980.
As grounds for reversal of the trial court's action, appellant claims:
(a) that alleged declarations of the testator may be considered testimony of one of the two
credible witnesses required under NRS 136.240 to prove the contents of a lost will;
(b) that declarations of a deceased person who had personal knowledge of the contents of a
lost will can also be considered as testimony of one credible witness required under NRS
136.240; and
(c) that summary judgment was improperly granted.
[Headnote 1]
In this state, a will may not be proved as a lost or destroyed will unless it was in existence
at the death of the testator and unless its provisions can be clearly and distinctly proved by at
least two credible witnesses.
1

The evidence in the record on appeal tends to show that Hughes may have executed a will
in 1925, although only an unexecuted, unconformed draft has been found. There are also
indications that other wills were drafted in 1930, 1938 and sometime during the 1940's. It is
claimed that all alleged wills benefited medical research.
Only John T. Pettit, whose deposition was presented to the trial court, allegedly read a will
signed by Hughes, which left all his estate to HHMI. The trial court, in granting respondent's
motion for summary judgment, reasoned that the failure to show the existence of the two
testifying witnesses required by NRS 136.240(3) entitled the respondent to judgment as a
matter of law.
1. HHMI argues that declarations made by Hughes, and others with personal knowledge
of the alleged will, may be substituted for the second credible witness. We do not agree.
____________________

1
No will shall be allowed to be proved as a lost or destroyed will unless the same shall be proved to
have been in existence at the death of the person whose will it is claimed to be, or be shown to have been
fraudulently destroyed in the lifetime of such person, nor unless its provisions shall be clearly and
distinctly proved by at least two credible witnesses.
While NRS 51.105(2)
2
makes hearsay evidence admissible relative to the execution,
revocation, identification or terms of the declarant's will, the testator's declarations cannot be
used to supply one of the credible witnesses required by NRS 136.240(3). Courts in
jurisdiction with statutes similar to NRS 136.240(3) have required that each of the two
witnesses be able to testify from his or her personal knowledge, not from the declarations of
others. This court, in In re Duffill's Estate, 57 Nev. 224, 61 P.2d 985 (1936), rejected one
witness' testimony because his only knowledge of the contents of the will was based upon
statements of the deceased. See e.g., In re Estate of Gardner, 417 P.2d 948 (Wash. 1966); Loy
v. Loy, 246 S.W.2d 578 (Ky. 1952); Day v. Williams, 85 P.2d 306 (Okla. 1938); see also 3
Page on Wills (3d ed. 1961) 29.157, 29.161.
[Headnote 2]
The strict statutory requirements for executing a valid will would be rendered ineffectual if
a deceased's declarations were sufficient to dispose of his estate. NRS 133.040. While a
testator's declarations may be useful in interpreting ambiguous terms of an established will or
in corroborating other competent evidence, they cannot be substituted for one of the witnesses
required by NRS 136.240(3).
2. HHMI contends that declarations of a deceased person who had knowledge of the
contents of a lost will should be considered testimony of one of the two credible witnesses
required by NRS 136.240 to prove the contents of a lost will. HHMI asserts that statements
by Hughes' attorneys Cook and Andrews should be admissible under NRS 51.315
3
because
they were made under circumstances free from any motivation to lie and they are necessary to
prove the contents of the will. See e.g. Johnstone v. State, 92 Nev. 241, 548 P.2d 1362
(1976).
We cannot agree. NRS 136.240
4
requires living witnesses or signed, sworn testimony
reduced to writing.
____________________

2
A statement of memory or belief to prove the fact remembered or believed is inadmissible under the
hearsay rule unless it relates to the execution, revocation, identification or terms of declarant's will.

3
1. A statement is not excluded by the hearsay rule if:
(a) Its nature and the special circumstances under which it was made offer strong assurances of
accuracy; and
(b) The declarant is unavailable as a witness.
2. The provisions of NRS 51.325 to 51.355, inclusive, are illustrative and not restrictive of the
exception provided by this section.

4
1. The petition for the probate of a lost or destroyed will must state, or be accompanied by a written
statement of, the testamentary words, or the substance thereof. If the will is established the provisions
thereof must be set forth
[Headnotes 3, 4]
Strict compliance with the requirements of NRS 136.240 precludes proof of the contents
of a lost will by hearsay declarations of deceased people, unless the declarant's testimony is
written and signed by the declarant. While declarations not in this form may be admissible for
other purposes, if trustworthy and necessary, they are not sufficient to prove a lost will under
the statute.
[Headnotes 5, 6]
3. Summary judgment is proper when the moving party is entitled to judgment as a matter
of law. Harvey's Wagon Wheel v. MacSween, 96 Nev. 215, 606 P.2d 1095 (1980). In
reviewing a summary judgment, this court must accept as true the allegations and reasonable
inferences favorable to the position of the non-moving party. Round Hill Gen. Improvement
v. B-Neva, 96 Nev. 181, 606 P.2d 176 (1980).
[Headnote 7]
HHMI claims that Dan Newburn
5
may change his mind and testify as a second necessary
witness at the trial and therefore a factual issue exists precluding summary judgment. Neither
mere conjecture nor hope of proving the allegations of a pleading is sufficient to create a
factual issue. See NRCP 56(e); Garvey v. Clark County, 91 Nev. 127, 532 P.2d 269 (1975).
[Headnote 8]
HHMI has failed to provide evidence sufficient to support its petition to probate the lost
will, and summary judgment was properly granted.
Because of the requirement of strict compliance with NRS 136.240, the existence of a
draft of a will allegedly executed by Hughes in 1925, without more, does not create a factual
issue which would preclude summary judgment.
Affirmed.
____________________
in the order admitting the will to probate, and the order must be so entered at length in the minutes or a
written order signed, filed and recorded.
2. The testimony of each witness must be reduced to writing; signed by him and filed, and shall be
admissible in evidence in any contest of the will, if a witness has died or has permanently removed from
the state.
3. No will shall be allowed to be proved as a lost or destroyed will unless the same shall be proved to
have been in existence at the death of the person whose will it is claimed to be, or be shown to have been
fraudulently destroyed in the lifetime of such person, nor unless its provisions shall be clearly and
distinctly proved by at least two credible witnesses.

5
In April, 1978, Newburn purportedly told representatives of the Hughes estate that he had read an executed
copy of Hughes' will. He refused to be deposed, claiming the news media privilege. See Newburn v. Howard
Hughes Med. Institute, 95 Nev. 368, 594 P.2d 1146 (1979).
Thompson, J., Fondi, D. J.,
6
Zenoff, Sr. J.,
7
and Gregory, Sr. D. J.,
8
concur.
____________________

6
Chief Justice John Mowbray voluntarily disqualified himself and took no part in this decision. The
Governor, pursuant to art. 6, 4, of the Constitution, designated Judge Michael E. Fondi of the First Judicial

7
Honorable E. M. Gunderson, who voluntarily disqualified himself in this case. Nev. Const. art. 6, 19; SCR 10.

8
Governor, pursuant to art. 6, 4, of the Constitution, designated the Honorable Frank B. Gregory, Senior
District Judge, to sit in his stead.
____________
96 Nev. 910, 910 (1980) Griffin v. Rockwell International, Inc.
HENRY C. GRIFFIN and NEVADA INDUSTRIAL COMMISSION, Appellants, v.
ROCKWELL INTERNATIONAL, INC., and DOES I Through X, Respondents.
No. 12368
December 29, 1980 620 P.2d 862
Appeal from involuntary dismissal, Eighth Judicial District Court, Clark County; James A.
Brennan, Judge.
The district court entered judgment after granting manufacturer's motion for involuntary
dismissal of products liability action, and appeal was taken. The Supreme Court held that: (1)
it was not abuse of discretion to strike testimony by expert witness who testified out of his
field of expertise; and (2) table saw manufacturer was not liable, under products liability
theory, for injuries sustained during use of saw absent proof of claimed defect, which was
alleged failure of manufacturer to have interlock safety device on saw.
Affirmed.
Fitzgibbons & Beatty, Las Vegas, for Appellant Henry C. Griffin.
Harkins & Beckett, Ltd., Carson City, for Appellant Nevada Industrial Commission.
Thorndal, Gentner, Backus, Lyles & Maupin, Ltd., Las Vegas, for Respondent Rockwell
International, Inc.
Nevada Trial Lawyers Association, J. R. Crockett, Jr., Las Vegas, Amicus Curiae.
1. Trial.
It was not abuse of discretion to strike testimony by expert witness who testified out of his field of
expertise.
2. Products Liability.
Table saw manufacturer was not liable under products liability theory, for injuries sustained during use of
saw absent proof of claimed defect, which was alleged failure of manufacturer to have interlock safety
device on saw.
OPINION
Per Curiam:
This is an appeal in a products liability case wherein the trial court granted
defendant-respondent's motion for involuntary dismissal, NRCP 41(b), following the
conclusion of plaintiff-appellant's case in chief.
[Headnote 1]
Appellant first contends that the trial court erred in striking the testimony of appellant's
expert witness. We have carefully reviewed the record and briefs on appeal and find that the
trial court properly struck the proffered expert testimony as the witness did in fact, as found
by the trial court, testify out of his field of expertise. We find no abuse of discretion and
will not interfere with the lower court's determination. Provence v. Cunningham, 95 Nev. 4,
7, 588 P.2d 1020, 1021 (1979); Levine v. Remolif, 80 Nev. 168, 172-73, 390 P.2d 718, 720
(1964).
Appellant next contends that irrespective of whether the first assignment of error succeeds,
the trial court committed reversible error in involuntarily dismissing appellant's case. We
disagree.
Although it is true that in reviewing the grant of a Rule 41(b) motion the plaintiff's
evidence must be accepted as true . . . [and] this court must draw all permissible inferences in
his favor and not pass upon the credibility of the witnesses nor weigh the evidence, Bates v.
Cottonwood Cove Corp., 84 Nev. 388, 391, 441 P.2d 622, 624 (1968), it is equally true that
the plaintiff must present a prima facie case upon which the triers of fact can grant relief.
Warner v. Dillon, 92 Nev. 677, 558 P.2d 540 (1976). In a strict liability case, such as that
before us, the burden of proving liability rests upon the plaintiff, who, must still establish
that his injury was caused by a defect in the product, and that such defect existed when the
product left the hands of the defendant. Ginnis v. Mapes Hotel Corp.,
Hotel Corp., 86 Nev. 408, 413, 470 P.2d 135, 138 (1970); Duncan v. Rockwell
Manufacturing Co., 567 P.2d 936, 939 (Mont. 1977).
[Headnote 2]
The claimed defect in this case, the absence of an interlock safety device on a 10 inch table
saw manufactured by respondent, was not sufficiently shown to withstand the motion to
dismiss. The only evidence offered by appellant Griffin was his testimony, the stricken
testimony of his proposed expert, and an instruction booklet on a Rockwell 10 inch saw that
was printed the year after the accident occurred. Even by viewing this evidence most
favorably to Griffin, the testimony of the witnesses does not sufficiently demonstrate that
such an interlock switch was or was not a part of the saw when it left the control of
respondent manufacturer. While an inference could possibly be drawn that the offered booklet
came from an identically built saw, the jury would then have had to draw the further inference
(based not upon a proved fact, but upon the foregoing conclusion) that if such a device were
on the saw it would be reflected in the booklet. The actual facts shown at trial do not provide
a reasonable basis for drawing such an inference regarding such an essential element of
appellant's case in chief. See Rickard v. City of Reno, 71 Nev. 266, 272-73, 288 P.2d 209,
212 (1955).
Because the foregoing determinations are dispositive of this appeal, it is unnecessary for us
to address appellant's remaining contentions.
Mowbray, C. J., Gunderson, Manoukian, and Batjer, JJ., and Fondi, D. J.,
1
concur.
____________________

1
The Governor designated the Honorable Michael Fondi, Judge of the First Judicial District Court, to sit in
the place of The Honorable Gordon Thompson, Justice. Nev. Const. art. 6, 4.
____________
96 Nev. 912, 912 (1980) Ferris v. City of Las Vegas
EDWARD H. FERRIS, Appellant, v. CITY OF
LAS VEGAS, NEVADA, Respondent.
No. 11908
December 29, 1980 620 P.2d 864
Appeal from judgment granting application for an injunction, Eighth Judicial District
City brought action to enjoin landowner's alleged commercial use of his property zoned
residential. The district court granted injunction, and landowner appealed. The Supreme
Court held that: (1) there was sufficient evidence to establish zoning violation by landowner
even though city failed to introduce into evidence certified copy of existing zoning
ordinances; (2) evidence supported finding that landowner did not have nonconforming use
with respect to commercial activities on property; and (3) there was no abuse of discretion in
lower court's refusal to apply doctrines of estoppel and laches against city.
Affirmed.
James J. Brown, Las Vegas, for Appellant.
George F. Ogilvie, City Attorney, and Christopher G. Gellner, Deputy City Attorney, Las
Vegas, for Respondent.
Supreme Court will not disturb finding of lower court when it is supported by substantial evidence.
The use of property in residential zone to gain vehicular access to business property is a commercial use
in violation of zoning laws.
In action by city to enjoin landowner's zoning violation, sufficient evidence was introduced to establish
landowner's commercial use of land zoned residential in violation of zoning laws, even though city failed to
introduce into evidence certified copy of existing zoning ordinances.
A nonconforming use is a use which does not conform to restriction governing a zoned area, but which
lawfully existed at time ordinance went into effect.
Generally, zoning ordinances do not limit right of landowner to continue nonconforming use in existence
at time of adoption of ordinance.
Where landowner's use of property for commercial use began in the early 1950's, zoning ordinances
under which city sought injunction were enacted in 1960, but predecessor zoning ordinances classified
property as residential beginning in 1945, landowner's commercial use of property was unlawful from the
outset, and, thus, landowner did not have a nonconforming use.
A landowner acquires no advantage from nonconforming use where it appears that such use was unlawful
at time zoning regulation took effect.
An injunction is proper remedy where there is zoning violation, and the granting, refusing or dissolving
of injunctions is a matter of discretion.
Where landowner's commercial use of land zoned residential in violation of zoning ordinances began in
early 1950's, city was notified of violations in 1974, in 1975 and 1976 misdemeanor citations were issued,
and in 1977 city brought action to enjoin landowner's violations, district court did not abuse discretion in
refusing to apply doctrines of estoppel and laches against city in the injunction action.
OPINION
Per Curiam:
Appellant owns two houses in an area zoned R-1 (residential). Since the early 1950's,
appellant has used the driveway between the two houses as a means of ingress and egress
from his business, Ed Ferris Automotive Center. Appellant also has used the rear yards to
park and store vehicles being serviced at his business. Pursuant to its zoning ordinances,
1
the
city brought an action to enjoin appellant's alleged commercial uses of his R-1 property. The
district court granted the injunction, and this appeal followed.
1. Appellant first contends that there is insufficient evidence to establish a zoning
violation. This contention is based primarily on the city's failure to introduce into evidence a
certified copy of the existing zoning ordinances.
[Headnotes 1-3]
This court will not disturb the finding of the lower court when it is supported by
substantial evidence. Franklin v. Bartsas Realty, Inc., 95 Nev. 559, 598 P.2d 1147 (1979). In
his answer to the city's complaint, appellant admitted that the houses are located in an R-1
zone. In addition, there is substantial evidence in the record to show that the property was
used for commercial purposes. The use of property in a residential zone to gain vehicular
access to business property is a commercial use in violation of zoning laws. See City and
County of San Francisco v. Safeway Stores, 310 P.2d 68 (Cal.App. 1957); Angel v. Board of
Adjustment of Twp. of Franklin, 262 A.2d 890 (N.J. Super.Ct.App.Div. 1970); City of
Providence v. First National Stores, Inc., 210 A.2d 656 (R.I. 1965).
[Headnotes 4, 5]
2. Appellant next contends that even if a zoning violation was established, he has a
nonconforming use with respect to the commercial activities on the property.
____________________

1
Las Vegas City Code (hereafter L.V.C.C.) 11-1-6(A)(7)(a) states that only vehicles owned by the permanent
resident of residential property may be stored on the property. L.V.C.C. 11-1-11(A) lists permissible uses of R-1
property. Use as an entrance to business property is not one of the permitted uses.
the commercial activities on the property. A nonconforming use is a use which does not
conform to the restriction governing a zoned area, but which lawfully existed at the time the
ordinance went into effect. L.V.C.C. 11-1-7. Generally, zoning ordinances do not limit the
right of a landowner to continue a nonconforming use in existence at the time of the adoption
of the ordinance. Pederson v. County of Ormsby, 86 Nev. 895, 478 P.2d 152 (1970); State ex
rel. Davie v. Coleman, 67 Nev. 636, 224 P.2d 309 (1958).
[Headnotes 6, 7]
Appellant argues that he has a nonconforming use because he began his commercial use of
the residential property prior to the enactment of the zoning ordinances under which the
injunction was sought. Appellant's use of the driveway began in the early 1950's. L.V.C.C
11-1-6(A) and 11(A) were enacted in 1960. However, predecessor ordinances classified the
property as residential beginning in 1945. Thus, appellant's use was unlawful from the outset.
A landowner acquires no advantage from a nonconforming use where it appears that such use
was unlawful at the time the zoning regulation took effect. Botchlett v. City of Bethany, 416
P.2d 613 (Okla. 1966). The evidence in this case supports the finding that appellant did not
have a nonconforming use. Pederson v. County of Ormsby, supra.
3. Appellant's final contention is that the city's action should have been barred by estoppel
and laches. Appellant's commercial use began in the early 1950's. The city was notified of the
violations in 1974. In 1975 and 1976 misdemeanor citations were issued to appellant. In 1977
the city brought this action for an injunction.
[Headnotes 8, 9]
An injunction is a proper remedy where there is a zoning violation. L.V.C.C. 11-1-26(D);
Smith v. City of Las Vegas, 80 Nev. 220, 391 P.2d 505 (1964). The granting, refusing or
dissolving of injunctions is a matter of discretion. Coronet Homes, Inc. v. Mylan, 84 Nev.
435, 442 P.2d 901 (1968); accord, Shakey's Incorporated v. Martin, 430 P.2d 504 (Idaho
1967); South Shore Homes Ass'n v. Holland Holiday's, 549 P.2d 1035 (Kan. 1976); State
Land Board v. Heuker, 548 P.2d 1323 (Or.App. 1976). The city took action against appellant
soon after receiving notice of the zoning violations. We perceive no abuse of discretion in the
district court's refusal to apply the doctrines of estoppel and laches in this case.
Affirmed.
____________
96 Nev. 916, 916 (1980) Martin v. Ross
WILLIAM J. MARTIN, Appellant, v. BERTRAM W.
ROSS, Respondent.
No. 12087
December 29, 1980 620 P.2d 866
Appeal from judgment dismissing action at conclusion of plaintiff's case; First Judicial
Owner of aircraft sued pilot of borrowed plane for damage sustained by the plane in a
crash. The district court dismissed the action at the conclusion of the owner's case and owner
appealed. The Supreme Court, Thompson, J., held that the trial court's finding that the pilot
did not proximately cause the crash was supported by substantial evidence.
Affirmed.
Terry Friedman, of Reno, for Appellant.
Vargas, Bartlett & Dixon and Frederick R. Starich, of Reno, and Kenneth J. Jordan, of
When motion to dismiss is tendered at close of plaintiff's case-in-chief, court is obliged to draw all
permissible inferences for plaintiff and is not to weigh evidence at that juncture; this general rule applies
whether trier of fact is court or jury.
Normal standard of review governing dismissal of action at conclusion of plaintiff's case did not apply to
suit for damage sustained by aircraft in crash where defendant pilot and his wife, a passenger, who were the
only witnesses to the accident, testified in plaintiff's case-in-chief, there was no more relevant evidence to
be presented, and trial court made finding of fact that plaintiff had failed to produce any evidence that
defendant proximately caused damage to aircraft.
3. Aviation.
In action by owner of aircraft against pilot who borrowed plane, for damage sustained by plane in crash,
trial court's finding that pilot did not proximately cause crash was supported by substantial evidence.
OPINION
A single engine Bellanca aircraft, owned by Martin, was damaged when it crashed while
being piloted by Ross who had borrowed the plane.
96 Nev. 916, 917 (1980) Martin v. Ross
borrowed the plane. Alleging ordinary negligence, Martin commenced this action against
Ross to recover damages for the loss thus sustained.
The cause was presented to the court without a jury. At the close of the plaintiff's case the
court granted the defendant's NRCP 41(b) motion to dismiss believing that the plaintiff had
failed to prove a case. Among the witnesses who had testified during the presentation of the
plaintiff's case in chief were the defendant Ross, who was the pilot, and his wife, a passenger.
They were the only witnesses to the accident.
Before entering judgment dismissing the action, the court made a finding of fact that the
plaintiff had failed to produce any evidence that the defendant proximately caused damage to
the aircraft. Although findings are not required on a motion, they are not precluded. NRCP
52(a). From the judgment entered this appeal has been perfected. For reasons hereafter
expressed, we affirm.
1. The aircraft had four gas tanks, two in each wing. The main inboard tanks had a
capacity of nineteen gallons each. The capacity of the outboard tanks was seventeen gallons
each. An inspection following the accident disclosed that three of the four tanks were empty.
The fourth, the right main tank, had about fifteen gallons in it. According to Ross and his
wife, when the engine stopped, all proper steps were taken to switch to the gas tank with fuel,
but for some unknown reason the engine did not restart, and the aircraft crashed.
[Headnote 1]
2. It is established that when a motion to dismiss is tendered at the close of the plaintiff's
case in chief, the court is obliged to draw all permissible inferences for the plaintiff and is not
to weigh the evidence at that juncture. Fennell v. Miller, 94 Nev. 528, 583 P.2d 455 (1978);
Havas v. Carter, 85 Nev. 132, 451 P.2d 711 (1969); Schmidt v. Merriweather, 82 Nev. 372,
418 P.2d 991 (1966); Gunlock v. New Frontier Hotel, 78 Nev. 182, 370 P.2d 682 (1962);
Quimby v. City of Reno, 73 Nev. 136, 310 P.2d 850 (1957); Gordon v. Cal-Neva Lodge, Inc.,
71 Nev. 336, 291 P.2d 1054 (1955); Corn v. French, 71 Nev. 280, 289 P.2d 173 (1955). This
general rule applies whether the trier of fact is a court or a jury. Gordon v. Cal-Neva Lodge,
Inc., supra.
[Headnote 2]
However, in none of the cited cases announcing the standard this court must apply in
reviewing a Rule 41(b) dismissal, does it appear that the defendant had given his testimony,
and all witnesses to the occurrence had testified before the plaintiff closed his case in chief.
96 Nev. 916, 918 (1980) Martin v. Ross
closed his case in chief. Moreover, in none of them did the trial court make findings of fact,
which under the provision of Rule 52(a) shall not be set aside unless clearly erroneous.
[Headnote 3]
If the usual 41(b) standard of review is to govern this case we would reverse since it would
be permissible for the trial court to infer that the pilot Ross did not attempt to switch to the
right main fuel tank, for had he done so the engine would have restarted and the crash would
have been avoided. To apply that standard in the circumstances here present would be
nonsense. There had been a complete trial before the plaintiff rested his case. The defendant
had testified. So had his wife, the other witness to the crash. Apparently, there was no more
relevant evidence to be presented. A finding of fact was made that the defendant Ross did not
proximately cause the crash. Substantial evidence supports that finding. To do other than to
affirm the trial court would be judicially wasteful and exalt form over substance. Cf. Utley v.
Airoso, 86 Nev. 116, 464 P.2d 778 (1970).
Affirmed.
At the close of plaintiff's evidence, the trial court purportedly found that the plaintiff had
failed to produce any evidence that defendant's negligence constituted the proximate cause of
damage to plaintiff's aircraft. In this determination, the trial court clearly erred, even if one
looks upon the court's declaration as a true finding, rather than as an omission to accord
plaintiff's evidence the benefit of all favorable inferences.
The record indicates the trial court realized that the plaintiff had proved negligence;
however, the court apparently failed to perceive that plaintiff has also shown proximate
cause, i.e. a reasonably close causal connection between the negligence and the resulting
injury. See W. Prosser, Law of Torts 143 (4th ed. 1971).
There is ample evidence of defendant's negligence in failing to pre-flight the aircraft and
fill its tanks before taking off from Winnemucca, failing to watch the gas gauges during
flight, and allowing the engine to stop in flight for lack of fuel.
It appears from the record that, when the engine stalled, the defendant realized it had run
out of gas. Thereupon, he testified, he sought to start the engine again. However, it appears
without contradiction that, at the time of the plane's impact with the ground, defendant
had the aircraft's fuel selector switch turned to the left-main tank, which was empty.
96 Nev. 916, 919 (1980) Martin v. Ross
without contradiction that, at the time of the plane's impact with the ground, defendant had
the aircraft's fuel selector switch turned to the left-main tank, which was empty. According to
testimony from the FAA investigator, one Fields, three of the aircraft's tanks (including the
left-main) were empty. The right-main contained fifteen gallons of fuel, but it was turned off.
Moreover, uncontroverted evidence showed that the aircraft was in excellent condition.
Indeed, it had been thoroughly inspected only 9.8 hours before the crash.
Based on this record, even if the declaration be accorded the dignity of a finding, the
trial court clearly erred in determining that the plaintiff had adduced no evidence of
proximate cause. Moreover, it also appears the court erred in precluding expert opinion
evidence as to cause of the crash, by foreclosing the testimony of a commercial pilot and
flight instructor who had 8,000 hours of experience. This witness, William Drake, would
have testified that the plane crashed because the engine was allowed to stall for want of fuel.
The trial court clearly erred, both in its finding, and in foreclosing pertinent expert
testimony.
____________
96 Nev. 919, 919 (1980) Sheriff v. Kravetz
NICHOLAS FRED KRAVETZ, Respondent.
No. 12720
December 29, 1980 620 P.2d 868
District Court, Clark County; James A. Brennan, Judge.
The Supreme Court held that evidence presented at preliminary hearing was sufficient to
support finding that alleged offense was committed within jurisdiction of lower court.
Reversed.
Gregory C. Diamond, Deputy District Attorney, Las Vegas, for Appellant.
Morgan D. Harris, Public Defender, and Robert H. Thompson, Deputy Public Defender,
96 Nev. 919, 920 (1980) Sheriff v. Kravetz
1. Evidence.
Fact, not reasonably open to dispute, should be judicially noticed.
2. Evidence.
Court took judicial notice of fact that intersection at which alleged offense occurred was located within
county over which lower court had jurisdiction.
3. Criminal Law.
Evidence presented at preliminary hearing in criminal case was sufficient to support finding that alleged
offense was committed within jurisdiction of lower court.
OPINION
Per Curiam:
On June 10, 1980, respondent filed a pretrial petition for a writ of habeas corpus upon the
ground that there was insufficient evidence presented during the preliminary hearing to
support a finding that the alleged offense was committed in Clark County, Nevada. On June
27, 1980, the district court granted the petition and the state has appealed.
[Headnotes 1, 2]
A review of the preliminary hearing transcript reveals testimony that the alleged crime
occurred at the parking lot of the Safeway store at Tropicana and Maryland Parkway.
Beyond question, this intersection is located in Clark County, Nevada, a matter of common
knowledge to any one at all familiar with Las Vegas, Nevada. This fact, not reasonably open
to dispute, should be judicially noticed. Ex Rel. Blake v. County Commissioners, 48 Nev.
299, 231 Pac. 384 (1924) (Sanders, J., concurring opinion); NRS 47.130. Therefore, this
court takes judicial notice of the fact that the aforementioned intersection is situated within
Clark County, Nevada. See, e.g., Duran v. Mueller, 79 Nev. 453, 386 P.2d 733 (1963);
Kramer v. State, 60 Nev. 262, 108 P.2d 304 (1940); Crayne v. Crayne, 54 Nev. 205, 13 P.2d
222 (1932).
[Headnote 3]
Consequently, we find that the evidence presented at the preliminary hearing was
sufficient to support a finding that the alleged offense was committed within the jurisdiction
of the lower court. Accordingly, the district court's order granting respondent's petition for a
writ of habeas corpus is reversed.
____________
96 Nev. 921, 921 (1980) Eaves v. Board of Clark Co. Comm'rs
JANE EAVES; MICHAEL O. WASHINGTON, dba SWINGING SUZY'S ESCORTS;
MAYNARD M. RICHARDS, dba FRENCH QUARTER ESCORTS; DONNA LEE
RICHARDS, dba VALLEY OF THE DOLLS; MAYNARD M. RICHARDS, dba VEGAS
TOUCH ESCORTS; NEVADA FORMS, INC., dba VEGAS GIRLS INTERNATIONAL;
FOUR LEAF, INC., dba LUCKY ESCORTS; REPUBLIC ENTERTAINMENT, INC., dba
OUI GIRLS; DAVID SPLEEN, dba PLAYGIRL ESCORTS; WALLACE KRUEGER, dba
ELEGANT ESCORTS; and ANGEL R. SANTANA, dba STAR ESCORTS, Appellants, v.
BOARD OF CLARK COUNTY COMMISSIONERS, ROBERT N. BROADBENT, JACK
T. PETITTI, THALIA DONDERO, R. J. RONZONE, MANUEL CORTEZ, SAMUEL
BOWLER and DAVID CANTER, Constituting the Members of Said Board; CLARK
COUNTY, a Political Subdivision of the State of Nevada, and RALPH LAMB, in his
Capacity as Sheriff of Clark County, Respondents.
No. 11544
December 29, 1980 620 P.2d 1248
Appeal from the denial of a preliminary injunction, Eighth Judicial District Court, Clark
Escort services moved for preliminary injunction against enforcement of ordinance which
prohibited conducting an escort bureau or business or working as an escort. The district court
denied the motion and escort services appealed. The Supreme Court, Gunderson, J., held that
ordinance was void for vagueness.
Reversed.
Mills, Galliher, Lukens, Gibson & Schwartzer, Las Vegas; Edward M. Bernstein, Las
Vegas; Emery and Shaner, Las Vegas; and Alan B. Andrews, Las Vegas, for Respondents.
Richard Bryan, Attorney General, Carson City, and Robert J. Miller, District Attorney,
Clark County, for Respondents.
Ordinance which either forbids or requires doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning, and differ as to its application, violates first essential of
due process, the notion of fair notice or warning. Const. Art. 1, 18; U.S.C.A.Const. Amend. 14.
Ordinance which prohibited persons from working as escort or social companion or from conducting
escort bureau or business was void for vagueness, under strict scrutiny standard, in that language of
ordinance provided unclear definition of escort or social companion, permitted arbitrary and discriminatory
enforcement, permitted criminal sanctions to be imposed without adequate warning, and failed to provide
law enforcement officials with adequate guidance concerning scope of activities it aspired to proscribe.
Const. Art. 1, 18; U.S.C.A.Const. Amend. 14.
OPINION
This appeal from an order of the district court denying appellants' consolidated motions for
a preliminary injunction places in issue the constitutionality of Ordinance No. 595, an
amendment to Title 6, Chapter 6.66 of the Clark County Code. In material part, that
ordinance provides:
6.66.030 Unlawful to conduct an escort bureau or business. It shall be unlawful for
any person, firm or corporation to conduct, manage, operate, maintain, or advertise a
business wherein for payment, direct or indirect [sic] social companions, or escorts
may be obtained.
6.66.040 Unlawful to work as an escort. It shall be unlawful for any person to hold
oneself out as, seek or accept employment as, contract to be, or perform the work of an
escort or social companion.
6.66.050 Definitions. (a) Escort or social companion is defined as any person,
who, for a salary, fee, commission, hire, reward, or profit makes himself or herself
available to the public for the purpose of accompanying other persons for
companionship. [Proper punctuation omitted in the original.]
(b) Escort bureau is defined as any business, agency or person who, for a fee,
commission, hire, reward or profit, furnishes, introduces or arranges for persons to
accompany other persons for companionship, dating or prostitution.
6.66.060 Penalty. Any person violating any of the provisions of this chapter is
guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of
not more than five hundred dollars or by imprisonment in the county jail for a term of
not more than six months, or by any such combination of such fine and imprisonment.
Whenever in this chapter any act is prohibited or is made or declared to be unlawful, an
offense or a misdemeanor, or whenever in this chapter the doing of any act is required
or the failure to do any such act is declared to be unlawful or a misdemeanor, the doing
of such prohibited act or the failure to do any such required act shall constitute a
violation of this chapter. Any day of any violation of this chapter constitutes a separate
offense.
Appellants
1
contend, inter alia, that the ordinance is unconstitutionally vague and
overbroad in that (1) persons of common intelligence cannot determine in advance and with
certainty whether their contemplated actions are within or without the law, (2) the ordinance
fails to provide explicit standards, so as to prevent arbitrary and discriminatory official action,
and (3) the ordinance appears to include within its ambit substantial realms of conduct which
cannot be constitutionally punished. Because we conclude that the ordinance is invalid
because of vagueness, we need not reach the other arguments appellants also advance.
This court has consistently held that ordinances like Ordinance No. 595, which prescribe
serious penalties, must be strictly construed. Oueilhe v. Lovell, 93 Nev. 111, 113, 560 P.2d
1348 (1977); In re Laiolo, 83 Nev. 186, 188, 426 P.2d 726 (1967).
[Headnote 1]
An ordinance which either forbids or requires the doing of an act in terms so vague that
men of common intelligence must necessarily guess at its meaning, and differ as to its
application, violates the first essential of due process, i.e. the notion of fair notice or warning.
Connally v. General Constr. Co., 269 U.S 385, 391 (1926); Papachristou v. City of
Jacksonville, 405 U.S. 156, 162 (1972); Note, The Void-For-Vagueness Doctrine in the
Supreme Court, 109 U.Pa.L.Rev. 67, 68 (1960); accord Smith v. Goguen, 415 U.S. 566, 572
(1974); Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). An ordinance which fails to give
persons of ordinary intelligence fair notice whether their contemplated conduct is permitted
or forbidden must be declared to be void for vagueness, and thus to deny due process of law.
2
United States v. Harriss, 347 U.S. 612, 617 (1954).
____________________

1
The appellants include a professional escort and owners and operators of escort bureaus or escort businesses
in operation in Clark County, Nevada.

2
The Nevada Constitution, art. I, 8 in pertinent part provides [n]o person shall be . . . deprived of life,
liberty, or property, without due process of
[Headnote 2]
Subjecting Ordinance No. 595 to the strict scrutiny prescribed by Oueilhe, supra, and In re
Laiolo, supra, readily discloses its impermissible vagueness. First, 6.66.030 speaks of . . .
direct or indirect social companions, or escort'. . . . These words in the context of the entire
section provide only a vague, uncertain and unintelligible notion of their scope, at which
persons of common intelligence must necessarily guess. Connally, supra. For example,
persons functioning as social secretariesas companions to the aged, lonely or infirmor
even as babysitters, arguably might be guilty of impermissible conduct.
Moreover, it appears that the definition of an escort or social companion in
6.66.050(a) is otherwise unclear. Does the phrase, any person who . . . makes himself or
herself available to the public for the purpose of accompanying other persons for
companionship refer solely to the person accepting the salary, fee, commission, hire,
reward or profitor does it also refer to other persons involved in the transaction? Again,
does reward in 6.66.050(b) refer solely to monetary or material rewardsor also to
intangible rewards, e.g. psychic satisfaction?
Considered in the light of established constitutional principles, these ambiguities in
Ordinance No. 595 allow too much unbridled discretion. The imprecision in the language of
the ordinance permits, and is likely to encourage, arbitrary and discriminatory enforcement.
Papachristou, supra, at 170, Coates v. Cincinnati, 402 U.S 611, 614 (1971).
Ordinance No. 595, as written, may permit criminal sanctions to be imposed without
adequate prior warning. The mere existence of Ordinance No. 595, as written, is likely to
deter law-abiding citizens from conduct which may or may not be covered by its provisions.
As written, Ordinance No. 595 fails to provide law enforcement officials with adequate
guidance concerning the precise scope of the activities it aspires to proscribe. Consequently,
Ordinance No. 595 is void for vagueness on its face.
____________________
law . . . And, the U.S. Constitution, amend. XIV, 1 in pertinent part provides, . . . nor shall any State deprive
any person of life, liberty, or property, without due process of law.
If a county ordinance contains no standards to govern the exercise of the discretion it grants to law
enforcement officials, then the ordinance permits and encourages an arbitrary and discriminatory enforcement of
its provisions. Such an ordinance can become a convenient but improper tool for local prosecuting officials to
employ against particular groups deemed to merit their displeasure. Thornhill v. Alabama, 310 U.S. 88, 97-98
(1940); Papachristou, at 170.
on its face. As written, it therefore violates Art. I, 8 of the Nevada Constitution and
Amendment XIV, 1 of the U.S. Constitution.
Thus, the district court erred when it declared Ordinance No. 595 to be facially valid and
when it refused to grant appellants' motion for a preliminary injunction against enforcement
of the ordinance.
Reversed.
____________
96 Nev. 925, 925 (1980) Alper v. State ex rel. Dep't Hwys.
ARBY ALPER & RUTH ALPER, UNITED OUTDOOR ADVERTISING COMPANY,
a California Corporation; E. T. LEGG and COMPANY; CAR DISPLAYS, INC.;
JAMES VAN DER MEER, SUSAN ANN PINJUV, AMY THOMPSON and
MALENDA VAN DER MEER, Trustees for the Van Der Meer Grandchildren; YOUNG
ELECTRIC SIGN COMPANY; EMIL MILLER; and DORINDA MORGAN,
Appellants, v. THE STATE OF NEVADA, on Relation of its Department of Highways,
Respondent.
No. 11039
December 29, 1980 621 P.2d 492
Appeal from partial summary judgment, Eighth Judicial District Court, Clark County; Carl
Action was brought seeking declaratory relief or injunction with respect to application of
Nevada Outdoor Advertising Act. The district court entered partial summary judgment in
favor of the state, and appeal was taken. The Supreme Court, 95 Nev. 876, 603 P.2d 1085
(1979), Gunderson, J., reversed and remanded. On rehearing, the Supreme Court held that:
(1) federal and state highway beautification laws should be interpreted broadly, with reference
to actual and contemplated land uses, and not limited to review of face of zoning ordinance,
and (2) determination as to status of area on which each billboard in question was located
must be made to determine whether area is exempt from highway beautification laws, or
whether billboard should be removed.
George Rudiak, Las Vegas, for Appellants.
Richard H. Bryan, Attorney General, and Richard E. Thornley, Deputy Attorney General,
1. Highways.
Actions of state under federal Highway Beautification Act in zoning areas for commercial and industrial
uses are not without limitations; state's zoning must be consistent with purposes and intent of Congress, and
must protect travelers from billboards in noncommercial areas. 23 U.S.C.A 131.
2. Statutes.
Where purpose of legislation is expressly stated within the legislation, that purpose is factor to be
considered by courts in interpreting statute.
3. Statutes.
Statutes should be interpreted, so far as practicable, to carry out purposes of legislation and to effectuate
benefits intended to be obtained.
4. Statutes.
Construction of statute adopted by officials entrusted with administration of highway beautification
statutes and regulations is of persuasive force in interpretation of Highway Beautification Act and Outdoor
Advertising Act by court. 23 U.S.C.A. 131; NRS 410.220 et seq.
5. Statutes.
In interpretation of statute, court must consider effect or consequences of proposed interpretations; an
unreasonable result produced by one interpretation is reason for rejecting it in favor of another
interpretation which would produce a reasonable result.
6. Highways.
Inquiry into status of billboard areas, in interpretation of federal and state highway beautification laws, is
not limited to review of face of zoning ordinance but should include reference to actual and contemplated
land uses, and should not exempt from highway beautification laws undeveloped desert area zoned
commercial or industrial activities for which no actual development is planned or contemplated for near
future. 23 U.S.C.A. 131; NRS 410.220 et seq.
7. Judgment.
Where determination as to status of area on which each billboard was located was necessary to determine
whether area was exempt from highway beautification laws, or whether billboards must be removed,
summary judgment without such individual determination was inappropriate. 23 U.S.C.A. 131; NRS
410.220 et seq.
Per Curiam:
This is an appeal from entry of partial summary judgment.
1
In Alper v. State ex rel. Dep't
of Hwys., 95 Nev. 876, 603 P.2d 1085 (1979), we reversed and remanded to the district court
with instructions to grant appellants' cross-motion for summary judgment. Rehearing was
granted pursuant to NRAP 40(c)(2).
____________________

1
The case was certified for appeal pursuant to NRCP 54(b).
Appellants are billboard owners in Clark County. Respondent sought removal of the
billboards pursuant to the federal Highway Beautification Act (23 U.S.C. 131) and the
Nevada Outdoor Advertising Act (NRS 410.220 et seq.). Under both the federal and state
acts, billboards adjacent to primary highways must be controlled. Commercial or industrial
zones are exempt from the acts. The billboards at issue here are on land zoned H-2 by Clark
County authorities.
In granting summary judgment to respondent, the district court found that the H-2 area was
not commercial or industrial within the meaning of the Nevada act.
2
The H-2 zoning
ordinance includes multiple dwellings and apartments, as well as numerous specified
commercial activities. Approximately five percent of the H-2 area has been actually
developed. About two and one-half percent is used for commercial activities, and the other
two and one-half percent is residential. The balance of the H-2 area, approximately ninety
five percent, is undeveloped desert land. Thus, the issue here is whether the billboard
properties should be considered commercial or industrial merely because of the wording of
the H-2 zoning ordinance, when the properties are in fact used for other purposes.
The original opinion in this case determined that the H-2 area was commercial or
industrial. That determination was based upon the wording of the zoning ordinance.
Rehearing was granted for consideration of 23 C.F.R. 750.708(d), and its application to this
case. That regulation reads as follows:
A zone in which limited commercial or industrial activities are permitted as an incident
to other primary land uses is not considered to be a commercial or industrial zone for
outdoor advertising control purposes.
[Headnote 1]
We must now determine whether the regulation should be interpreted to refer to land uses
actually permitted by zoning authorities, regardless of the wording of the zoning ordinance, or
whether the regulation refers only to the zoning ordinance itself. Respondent contends that
actual land uses must be considered, and that Clark County actually permits commercial
businesses only as an incident to residential and open space land uses. Appellants contend
that the actual land uses are irrelevant, and that we need only look to the face of the zoning
ordinance.3
____________________

2
The district court failed to make a judicial determination as to whether the area was commercial or industrial
within the meaning of the federal act. It is clear, however, that the Nevada and federal acts should be interpreted
and applied consistently. See NRS 410.220(2); 410.410(2).
irrelevant, and that we need only look to the face of the zoning ordinance.
3

[Headnotes 2, 3]
In determining the appropriate interpretation, it must be noted that both the Nevada and
federal acts contain specific statements of legislative intent and legislative purposes. Where
the purpose of legislation is expressly stated within the legislation, that purpose is a factor to
be considered by the courts in interpreting a statute. Sheriff v. Smith, 91 Nev. 729, 542 P.2d
440 (1975). Statutes should be interpreted, so far as practicable, to carry out the purposes of
the legislation and to effectuate the benefits intended to be obtained. School Trustees v. Bray,
60 Nev. 345, 109 P.2d 274 (1941).
The purposes of the federal Highway Beautification Act are specifically set forth in 23
U.S.C. 131(a). Those purposes are: (1) to protect the public investment in interstate
highways; (2) to promote safety and recreational value of public travel; and (3) to preserve
natural beauty.
Courts have attempted to construe the federal act consistent with Congress' intent. See,
e.g., State of S.D. v. Adams, 587 F.2d 915 (8th Cir. 1978), cert. denied, 441 U.S. 961 (1979);
E.B. Elliott Adv. Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970), cert.
dismissed, 400 U.S. 805 (1970); South Dakota v. Volpe, 353 F.Supp. 335 (D.S.D. 1973).
4

Regarding Nevada law, a specific declaration of legislative intent appears in NRS
410.220(1)(b). The legislative purposes are: {1) To prevent unreasonable distraction of
operators of motor vehicles, confusion with regard to traffic lights, signs or signals and
other interference with the effectiveness of traffic regulations;
____________________

3
Appellants also argue that adoption of 23 C.F.R. 750.708(d) was beyond the authority of the federal
Department of Transportation because the regulation conflicts with 23 U.S.C. 131(d). Appellants contend that
this court is not bound by the regulation. We disagree. While each state has authority under 23 U.S.C. 131(d)
to zone areas for commercial or industrial uses, the actions of a state are not without limitation. A state's zoning
must be consistent with the purposes and intent of Congress, and must protect travelers from billboards in
noncommercial areas. See South Dakota v. Volpe, 353 F.Supp. 335 (D.S.D. 1973).
23 C.F.R. 750.708(d) appears to be consistent with the federal statute and Congress' intent regarding
commercial or industrial zoning. The regulation has the force of law, see California Comm'n v. United States,
355 U.S. 534 (1958), and Nevada courts are bound thereby.

4
In South Dakota v. Volpe, supra, the court upheld a determination by the Secretary of Transportation that
South Dakota was not in compliance with the federal act. The court held that South Dakota's zoning legislation
was not consistent with the purposes of the act because, among other reasons, travelers were subjected to
billboards in the midst of an area obviously noncommercial.
(1) To prevent unreasonable distraction of operators of motor vehicles, confusion
with regard to traffic lights, signs or signals and other interference with the
effectiveness of traffic regulations;
(2) To promote the safety, convenience and enjoyment of travel on the state
highways in this state;
(3) To attract tourists and promote the prosperity, economic well-being and general
welfare of the state;
(4) For the protection of the public investment in the state highways; and
(5) To preserve and enhance the natural scenic beauty and aesthetic features of the
highways and adjacent areas.
Others courts have attempted to construe similar state highway beautification laws
consistent with legislative intent. See, e.g., Yarbrough v. Arkansas State Highway Com'n.,
539 S.W.2d 419 (Ark. 1976); Mississippi State Highway Com'n. v. Roberts Ent., Inc., 304
So.2d 637 (Miss. 1974); David v. Whitaker, 358 A.2d 404 (N.H. 1976); Markham
Advertising Company v. State, 439 P.2d 248 (Wash. 1968), appeal dismissed, 393 U.S. 316
(1969).
In the present case it appears that many of the billboards are located in areas which are
zoned commercial or industrial, but which in fact are remote, unpopulated and
unindustrialized. In interpreting the federal regulation, it would be contrary to the intent of
both Congress and the state legislature for this court to look solely to the words of the zoning
ordinance in deciding whether the area is commercial or industrial for purposes of highway
beautification.
[Headnote 4]
Furthermore, the construction adopted by those officials entrusted with the administration
of highway beautification statutes and regulations is of persuasive force. State of Vermont v.
Brinegar, 379 F.Supp. 606 (D. Vt.1974); Metromedia, Inc. v. City of San Diego, 592 P.2d
728 (Cal. 1979); see School Trustees v. Bray, 60 Nev. 345, 109 P.2d 274 (1941).
In the present case the Nevada Department of Transportation (formerly Department of
Highways) is charged with enforcement of state highway beautification legislation. NRS
410.045; 410.330; 410.400(1). The state Department of Transportation is urging an
interpretation of highway beautification legislation under which the actual land uses in an
area of highway frontage should be examined to determine if commercial or industrial zoning
is consistent with federal and state law.
In addition to the state agency's position on the interpretation of 23 C.F.R. 750.708(d), it
appears that the federal agency also believes the land in question is not commercial or
industrial for highway beautification purposes.
agency also believes the land in question is not commercial or industrial for highway
beautification purposes. In support of respondent's motion for summary judgment below, the
affidavit of Albert E. Stone was submitted. Stone was a division administrator of the Federal
Highway Administration, Department of Transportation, and was the federal employee
responsible for Nevada's compliance with federal highway beautification statutes and
regulations.
5
Stone's affidavit stated that it is the position of the Department of
Transportation that the billboards in question are not within the commercial or industrial
exceptions of 23 U.S.C. 131(d) and the applicable C.F.R. regulations.
Thus, it would appear that both the state and federal agencies responsible for highway
beautification have adopted an interpretation of federal regulations which require an analysis
of more than merely the face of the zoning ordinance.
[Headnote 5]
We must also consider the effect or consequences of proposed interpretations. School
Trustees v. Bray, supra. An unreasonable result produced by one interpretation is reason for
rejecting it in favor of another interpretation which would produce a reasonable result. Sheriff
v. Smith, 91 Nev. 729, 542 P.2d 440 (1975). Under these rules of construction, federal and
state highway beautification laws should be interpreted so that billboards are removed from
areas of natural scenic beauty, billboard owners are compensated, and Nevada retains its full
share of federal highway funds.
[Headnote 6]
We conclude that the federal and state highway beautification laws, including 23 C.F.R.
750.708(d), should be interpreted broadly. An inquiry into the status of billboard areas is not
limited to a review of the face of a zoning ordinance. The inquiry should include reference to
actual and contemplated land uses. If an undeveloped desert area is zoned for commercial or
industrial activities, but no actual development is planned or contemplated for the near future,
the area is not exempt from highway beautification laws. Billboards within such an area are
subject to removal. However, billboards within areas zoned for and actually used or
contemplated for commercial purposes are exempt from removal.
[Headnote 7]
The district court found that the entire H-2 area was not commercial for highway
beautification purposes. Therefore, the district court's decision was too broad, and
summary judgment should not have been granted.
____________________

5
Stone is now the Director of the Nevada Department of Transportation.
the district court's decision was too broad, and summary judgment should not have been
granted. A determination should have been made as to the status of the area on which each
billboard is located.
6

The judgment is reversed. This cause is remanded to the district court for proceedings
consistent with this opinion.
____________________

6
There are twenty-three billboards in question.
____________
96 Nev. 931, 931 (1980) Butler v. Lovoll
AARON BUTLER, Appellant, v. ELIJAH LOVOLL, VERSIE MAE LOVOLL, GERALD C.
WHEELER, FRIEDA WHEELER and FRANCES O. WHEELER, aka DAN WHEELER,
Respondents.
No. 11700
December 29, 1980 620 P.2d 1251
Appeal from summary judgment. Eighth Judicial District Court, Clark County, Michael J.
Wendell, Judge.
In action on alleged agreement to lease with option to buy property, the district court
entered summary judgment against alleged lessee on ground that memoranda of agreement
were void and of no force and effect, and alleged lessee appealed. The Supreme Court, Batjer,
J., held that: (1) two separate written documents may be construed together to determine if
they meet requirements of statute of frauds; (2) description of property in memoranda was
sufficient; (3) memoranda were sufficient to create interest in the real property; and (4)
memorandum was subscribed by party to whom lease and sale was to be made.
John E. Stone, Las Vegas, for Appellant.
Albright, McGimsey & Stoddard, Las Vegas, for Respondents Elijah Lovoll and Versie
Mae Lovoll.
Wanderer & Wanderer, Las Vegas, for Respondent Frances O. Wheeler, aka Dan Wheeler.
Two separate written documents may be construed together to determine if they meet requirements of
statute of frauds, and may be sufficiently connected by internal evidence without express words of
reference of one to the other, and fact they refer to same transaction may appear from
character of subject matter and nature of terms.
of one to the other, and fact they refer to same transaction may appear from character of subject matter and
nature of terms. NRS 111.205, 111.210.
Description of property in handwritten memorandum as 1117 Miller and Concord was sufficiently
definite to meet statute of frauds. NRS 111.210, 111.250.
Handwritten memoranda of lease with option written by lessor and lessee, when construed together, were
sufficient to create interest in real property, as amounts due and rate of payment were clear, and
ambiguities and supplementary details could be shown by parol evidence. NRS 111.210, 111.250.
Memorandum of lease with option to buy property which was written totally in handwriting of lessor's
agent and signed in middle of body of document by agent was subscribed by party by whom lease or sale
was to be made. NRS 111.210.
OPINION
On December 11, 1976, Aaron Butler and Frances Wheeler, aka Dan Wheeler, entered into
an alleged agreement to lease with the option to buy property located at 1116 Miller Street,
Las Vegas, Clark County, Nevada. There are two handwritten documents evidencing this
agreement; one was written by Frances Wheeler (referred to as the Wheeler version);
1
the
other by Aaron Butler {referred to as the "Butler version").2

____________________

1
The Wheeler version, with spelling, punctuation and grammatical errors, appears to read as follows:
Miller & Concord
Aron Leases with Option to buy within
One yr. at $170.00 first and last Mo. due
this day 11th of Dec. If Some one wants
to by Cash Tenit will have first Chance to
buy at $10,00. All rent pd. Renter will keep up
place pd. $340.00 first and last mo
payment.
Lesses
Leasor Francis O. Wheeler
After one year Buyer will start pyt at
$170.00 with 8% int Buyer can pay more
than 170 per mo or more
Aaron Butler
6471546
863 Bartlet
the other by Aaron Butler (referred to as the Butler version).
2

The two documents are in agreement as to a monthly payment of $170.00, first and last
month's payment of $340.00 having been paid, that the tenant would have the first chance to
buy the property, at a purchase price of $10,000 with 8% interest. The documents are
ambiguous as to whether the option expires within one year or is exercised automatically after
leasing for one year. The Butler version includes a provision that All rent goes as a down
payment. This provision is absent in the Wheeler version. In July, 1977, appellant
recorded the agreement with the Clark County Recorder's office.
Butler began making payments December 11, 1976, and continued making them each and
every month until December, 1977, when he exercised his option to purchase. He then
continued to make payments to Dan Wheeler, which were accepted through and including
December, 1978.
At the time Butler and Dan Wheeler entered into the agreement, Dan's brother and
sister-in-law, Gerald C. Wheeler and A. Frieda Wheeler, were record owners of the property.
They contracted to sell the property in question to Elijah and Versie Mae Lovoll. The Lovolls'
loan application was denied by the mortgage company because of Butler's lease option
agreement.
____________________

2
The Butler version, with spelling, punctuation and grammatical errors, appears to read as follows:
1117 Miller and Concord
Aaron Lease wif A
Option to By within
One year $170 Mo first
And Last Mo due this
day 11 of Dec if some
one wont to Buy
Cash tenent will have
first first Chance to Buy
$10,000 All rent gose
As a down payment
renter will keep up
Place Pade $340 first and
Last Payment
Leases Aaron Butler
Leasor Francis O. Wheeler
After one year Buyer will
start pyt $170 Mo with
8% int Buyer can pay more than $170 or more
Box 714 Logan DAle
Nevada C 89021
3978463
D D Dan Wheeler
mortgage company because of Butler's lease option agreement. All of the respondents, except
Dan Wheeler, brought an action for declaratory relief against Aaron Butler. Butler responded
with a motion for a temporary restraining order and preliminary injunction but failed to file an
answer. Default judgment was awarded respondents on March 11, 1977.
After the default judgment was filed, Gerald C. and A. Frieda Wheeler quitclaimed the
property in question to Dan Wheeler on June 21, 1977. He sold the property to the Lovolls
one week later. On August 9, 1977, Butler filed suit against all of the respondents. The
default judgment dated June 21, 1977, was set aside on September 15, 1977.
Again, summary judgment was entered against Butler on November 17, 1978. He had not
filed an opposition to the motion for summary judgment. His attorney had requested
additional time to respond, but it was denied. On December 1, 1978, Butler filed a motion to
set aside that summary judgment. Respondents opposed the motion, but on January 3, 1979,
the trial court did set it aside. On the same day, respondents again moved for summary
judgment, which was granted on the grounds that the two handwritten documents, one of
which was handwritten by Frances O. Wheeler, and the other of which was handwritten by
Aaron Butler, on or about December 11, 1976 . . . are void and of no force or effect
whatsoever, and create no estate, leasehold, option, contract to purchase, first right of refusal
to purchase or other interest whatsoever in the real property. . . .
Butler appeals from that summary judgment. He contends that the written memoranda
satisfied the requirements of the statute of frauds NRS 111.205
3
and 111.210
4
that the
memoranda adequately describe the real property and that the terms of the memoranda are
sufficiently definite and certain to create an interest in the real property and that the
handwritten documents are properly subscribed by the party by whom the lease or sale is to
be made or by the agent of the party lawfully authorized. NRS 111.210.
____________________

3
No estate or interest in lands, other than for leases for a term not exceeding 1 year, nor any trust or
power over or concerning lands, or in any manner relating thereto, shall be created, granted, assigned,
surrendered or declared after December 2, 1861, unless by act or operation of law, or by deed or
conveyance, in writing, subscribed by the party creating, granting, assigning, surrendering or declaring
the same, or by his lawful agent thereunto authorized in writing.

4
1. Every contract for the leasing for a longer period than 1 year, or for the sale of any lands, or any
interest in lands, shall be void unless the contract, or
[Headnote 1]
1. Two separate written documents may be construed together to determine if they meet
the requirements of the statute of frauds. Separate writings may be sufficiently connected by
internal evidence without any express words of reference of one to the other. The fact that
they refer to the same transaction may appear from the character of the subject matter and
nature of the terms.
In Bowker v. Goodwin, 7 Nev. 135 (1871), where two instruments were executed together
as one transaction, this court held that they constituted but one instrument or contract,
although written on different pieces of paper.
[Headnote 2]
2. The memorandum written by respondent Dan Wheeler recites the property description
as Miller and Concord. The Butler version describes the property as 1117 Miller and
Concord. Respondents contend their own description is inadequate and appellant's is
erroneous and, therefore, the contract is unenforceable. We do not agree.
Construing both handwritten documents together, the property description is adequate to
satisfy NRS 111.250 and NRS 111.210. Wainwright v. Dunseath, 46 Nev. 361, 211 P. 1104
(1923); Roberts v. Hummel, 69 Nev. 154, 160, 243 P.2d 248 (1952). In DeRemer v.
Anderson 41 Nev. 287, 294, 169 P.2d 737 (1918), this court wrote . . . where there is a
description of some sort, which . . . may be made intelligibly definite by evidence aliunde,
parol evidence may be introduced to identify the land or premises in the contemplation of the
makers of the instrument. . . . Cf. Ray v. Robertson, 55 Nev. 397, 36 P.2d 76 (1934).
[Headnote 3]
3. The handwritten agreements, when construed together, are not vague, indefinite and
uncertain and they are sufficient to create an interest in the real property. The amounts due
and the rate of payment are clear enough. Ambiguity of the writing and supplementary details
of an agreement may be shown by parol evidence. Stanley v. Levy & Zentner Co., 60 Nev.
432, 446, 112 P.2d 1047 (1941). In Haspray v. Pasarelli, 79 Nev. 203, 208, 380 P.2d 919
(1963), where all of the essential terms of the oral agreement could be found in the two
written documents, this court said If they were intended by the parties to constitute one
transaction appellants should have been permitted to present evidence to show this and
also to explain the differences . . . and the fact that {it) is an unsigned document does not
preclude the admission of parol evidence. . . ."
____________________
some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the
party by whom the lease or sale is to be made.
2. Every instrument required to be subscribed by any person under subsection 1 may be subscribed
by the agent of the party lawfully authorized.
one transaction appellants should have been permitted to present evidence to show this and
also to explain the differences . . . and the fact that (it) is an unsigned document does not
preclude the admission of parol evidence. . . .
[Headnote 4]
4. Butler's contention that the documents are subscribed by the party by whom the lease
or sale is to be made is well taken. The Wheeler version is written totally in Dan Wheeler's
handwriting. His signature is located in the middle of the body of the documents where it
recites Leasor Francis O. Wheeler. Aaron Butler signed at the bottom of the document.
In common law, it has been held that subscribed means signed without respect to
whether the signature is at the bottom, in the middle, or at the beginning of the instrument.
Roberts v. Phillips, 4 El. & Bl. 450, 30 Eng. Law & Eq. 147 (1855).
Here, these memoranda meet the statutory requirement that they be subscribed. Radke v.
Brenon, 134 N.W.2d 887 (Minn. 1965). California Canneries Co. v. Scatena, 49 P. 462 (Cal.
1897). Cf. J. D. Loizeaux Lumber Company v. Davis, 124 A.2d 593 (N.J. 1956).
There remain in this case genuine and material issues of fact to be resolved. This matter is
reversed and remanded for further proceedings in the district court.
____________
96 Nev. 936, 936 (1980) Carr v. State
JAMES ARNOLD CARR, Appellant, v. THE STATE
No. 12311
JAMES ARNOLD CARR, Appellant, v. THE STATE
No. 12406
December 30, 1980 620 P.2d 869
Appeal from judgments of conviction, and adjudications as an habitual criminal in both
12311 and 12406. Eighth Judicial District Court, Clark County, Robert G. Legakes, Judge.
Defendant was convicted in the district court on two charges of burglary and he appealed.
The Supreme Court, Mowbray, C. J., held that: {1) officers had probable cause to arrest
defendant; {2) corroborating evidence was not necessary to support the conviction even
though defendant's fingerprint was not found at the point of entry; {3) use of the same
prior convictions to twice adjudicate one as an habitual criminal does not constitute
double jeopardy; and {4) it was not error to give Allen instruction as part of the initial
instruction.
96 Nev. 936, 937 (1980) Carr v. State
C. J., held that: (1) officers had probable cause to arrest defendant; (2) corroborating evidence
was not necessary to support the conviction even though defendant's fingerprint was not
found at the point of entry; (3) use of the same prior convictions to twice adjudicate one as an
habitual criminal does not constitute double jeopardy; and (4) it was not error to give Allen
instruction as part of the initial instruction.
Affirmed.
Morgan D. Harris, Public Defender, Clark County, in No. 12311, Walter K. Norwood, Las
Vegas, in No. 12406, for Appellant.
Richard H. Bryan, Attorney General, Carson City, and Robert J. Miller, District Attorney,
1. Arrest.
Police officers who stopped defendant some three to four blocks from the reported burglary in an area
where 20 daytime burglaries had occurred in the last month and a half and who observed that he matched
descriptions given by a prior burglary victim, including matters of race, height, weight, age, and a hairy
mole on the face had probable cause to arrest defendant.
2. Burglary.
Even though fingerprint found on article in burgled house was not found at the point of entry,
corroborating evidence was not necessary to support a burglary conviction.
3. Criminal Law.
Defendant was not improperly judged an habitual criminal because of state's failure to prove beyond a
reasonable doubt that each prior conviction used to enhance a sentence did not arise out of the same act or
occurrence. NRS 207.010.
4. Criminal Law.
Convictions and commissions of prior offenses used to establish defendant as an habitual criminal need
not occur in any particular sequence. NRS 207.010.
5. Criminal Law.
Use of same prior conviction to twice adjudicate one as an habitual criminal does not constitute double
jeopardy as the habitual criminal statute does not recharge a defendant with a substantive crime but merely
allows an averment of fact that goes to punishment. NRS 207.010.
6. Criminal Law.
Allen charge is appropriate as long as it stresses that each juror must conscientiously adhere to his own
honest opinion.
7. Criminal Law.
Trial court did not improperly instruct the jury by reading the Allen charge as an initial instruction.
96 Nev. 936, 938 (1980) Carr v. State
OPINION
This is a consolidation of two cases: in each, a jury convicted James Arnold Carr of
burglary. NRS 205.060. After each conviction, in separate hearings, appellant was adjudged
an habitual criminal and sentenced to concurrent life sentences in the Nevada State
Penitentiary with possibility of parole. NRS 207.010.
Appellant asserts the following identical errors in both cases: (1) probable cause did not
exist to arrest him, and, therefore, a fingerprint exemplar should have been suppressed; (2)
fingerprint evidence without any corroboration is insufficient to support appellant's
conviction; (3) appellant was improperly adjudged an habitual criminal. Appellant further
asserts that in No. 12311 the trial court gave an improper Allen instruction, and in No.
12406 improper jury instructions were given.
THE FACTS
Appellant was arrested on February 20, 1979, by Las Vegas Metropolitan Police Officers
Reusch and Keltner who were responding to a reported burglary. A fingerprint exemplar
taken at appellant's booking connected him to the two burglaries for which he was convicted.
After each conviction, and in a separate proceeding, appellant was adjudged an habitual
criminal; the identical three priors were used in each proceeding.
THE PROBABLE CAUSE TO ARREST
[Headnote 1]
Stopped three to four blocks from the reported burglary on February 20, 1979, and in an
area where twenty daytime burglaries had occurred since January of the same year, appellant
matched detailed descriptions known to Officer Reusch which had been given previously by a
burglary victim and a burglary witness: a light colored black man, five foot seven to five foot
eight, one hundred and fifty pounds, medium build and in his twenties; appellant fit the above
description down to a hairy mole on his face. Cranford v. State, 95 Nev. 471, 596 P.2d 489
(1979); Washington v. State, 94 Nev. 181, 576 P.2d 1126 (1978); Singleton v. State, 87 Nev.
53, 482 P.2d 288 (1971); Nootenboom v. State, 82 Nev. 329, 418 P.2d 490 (1966); Whitley v.
State, 79 Nev. 406, 386 P.2d 93 (1963). Admission of the fingerprint exemplar was,
therefore, proper. Davis v. Mississippi, 394 U.S. 721 {1969); People v. Flores, 524 P.2d 353
{Cal.
96 Nev. 936, 939 (1980) Carr v. State
Mississippi, 394 U.S. 721 (1969); People v. Flores, 524 P.2d 353 (Cal. 1974). The issue of
probable cause having been fully litigated in No. 12311, and appellant having offered no new
facts justifying a second determination in front of the same judge in No. 12406, his
contention of a denial of due process is without merit.
THE FINGERPRINT EVIDENCE
[Headnote 2]
In each case, appellant's fingerprint was found on an article in the burgled house. He
asserts that unless the fingerprint was found at a point of entry, corroborating evidence is
necessary to support a conviction. This court has never so held. When fingerprints of the
defendant are found where the crime was committed, and circumstances rule out the
possibility that they might have been imprinted at a different time than when the crime
occurred, a conviction is warranted. Harvey v. People, 495 P.2d 204 (Colo. 1972).
Fingerprints are the strongest evidence of identity, and . . . ordinarily sufficient alone to
identify the defendant. Reed v. State, 95 Nev. 190, 194, 591 P.2d 274, 276 (1979), quoting
People v. Gardner, 457 P.2d 575, 579 (Cal. 1969). The evidence at trial showed that the
appellant's fingerprints were found on objects inside the homes of the victims. Since the
fingerprints alone are sufficient to identify appellant, the trial court was not required to
instruct the jury that fingerprint evidence must be accompanied by corroborating evidence.
ADJUDICATION AS AN HABITUAL CRIMINAL
[Headnotes 3, 4]
Appellant asserts the state must prove beyond a reasonable doubt that each prior
conviction used to enhance a sentence did not arise out of the same act or occurrence. Under
NRS 207.010, the state must prove beyond a reasonable doubt: (1) the identity of the person;
and (2) the conviction of prior felonies. Howard v. State, 83 Nev. 53, 422 P.2d 548 (1967);
Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966). Nothing in the record suggests
appellant was improperly adjudged an habitual criminal. Furthermore, in accord with the
majority rule, this state requires that all prior convictions used to enhance a sentence must
have preceded the primary offense. NRS 207.010. However, our statute does not require that
the convictions and commissions of prior offenses occur in any particular sequence.
96 Nev. 936, 940 (1980) Carr v. State
[Headnote 5]
Appellant also suggests that the same prior convictions may not be used twice to
adjudicate one as an habitual criminal claiming such use constitutes double jeopardy. NRS
207.010 however does not recharge a defendant with a substantive crime; it merely allows an
averment of a fact that goes to punishment. Hollander v. State, supra. Use of the same
convictions does not violate the legislative intent behind NRS 207.010. See Wingo v. Ringo,
408 S.W.2d 469 (Ky. 1966).
THE ALLEN INSTRUCTION
[Headnotes 6, 7]
Appellant claims the giving of the Allen charge constituted reversible error. An Allen
charge is appropriate as long as it stresses that each juror must conscientiously adhere to his
own honest opinion. Basurto v. State, 86 Nev. 567, 472 P.2d 339 (1970). We have previously
held that the Allen charge may be given either as an initial instruction or as a supplemental
one. Redeford v. State, 93 Nev. 649, 651 n.1, 572 P.2d 219, 219-220 n.1 (1977); Azbill v.
State, 88 Nev. 240, 495 P.2d 1064 (1972). The trial judge did not improperly instruct the jury
by reading the charge as an initial instruction.
For the above reasons we affirm.
Gunderson, Manoukian, and Batjer, JJ., and Fondi, D. J.,
1
concur.
____________________

1
The Governor commissioned The Honorable Michael E. Fondi, District Judge, to sit in this case in place of
Justice Gordon Thompson, Nev. Const. art. 6, 4.
____________
96 Nev. 941, 941 (1980) Painter v. Anderson
CHARLES PAINTER and MELVIN E. LOWELL, Appellants, v. RONALD N. ANDERSON
and PATRICIA M. ANDERSON; ELWOOD M. BAKER and ELIZABETH M. BAKER;
BILLY DON BARBER and SUSAN BARBER; DENNIS R. DONNELLY and ARLENE
DONNELLY; WILLIAM A. FISHER and JANE K. FISHER; JAMES A. HELLESO and
JEANNE S. HELLESO; CLAUDE FOREMAN and BONNIE FOREMAN; ROBERT D.
HILLIARD and RUTH E. HILLIARD; GERALD E. PARR and ROBERT K. PARR;
HERMAN L. PIERCE and SUSAN A. PIERCE; and CHIEFTAN MANOR WATER USERS
ASSOCIATIONS, a Nevada Corporation, Respondents.
No. 11512
December 30, 1980 620 P.2d 1254
Appeal from a judgment entered upon a decision of the court sitting without a jury, Eighth
Judicial District Court, Clark County; J. Charles Thompson, Judge.
Association of water users and individual purchasers, members of the association, brought
a contract and misrepresentation action against vendors of lots in a subdivision. The district
court determined that one of the vendors had made significant misrepresentations to the
individual members of the association, which had resulted in measureable damages to the
association and vendor appealed. The Supreme Court held that: (1) where water users
association held legal title to the well and water system of the subdivision, it was a real party
in interest, and (2) where vendor was not misled as to the nature of the action against him by
the association's role as a real party in interest, where further action by individual members of
the association was barred by the doctrine of res judicata, and where the association could not
sue him for any other damages, trial court did not err in allowing association to proceed as
real party in interest.
Affirmed.
R. Paul Sorenson, Las Vegas, for Appellants.
Hilbrecht, Jones, Schreck & Bernhard, Las Vegas, for Respondents.
1. Parties.
Real party in interest possesses the right to enforce the claim and has a significant interest in the
litigation. NRCP 17(a).
2. Associations.
Where water users' association held legal title to the well and water system of the subdivision, it was a
real party in interest in a contract and misrepresentation action against vendor of lots sold to individual
members of the association. NRCP 17(a).
3. Associations.
Where vendor of lots to members of water users' association was not misled as to the nature of the action
against him by the association's role as a real party in interest, where further action by individual members
of the association was barred by the doctrine of res judicata, and where the association could not sue him
for any other damages, trial court did not err in allowing association of water users to proceed as real
party in interest in contract and misrepresentation action against vendor. NRCP 17(a).
OPINION
Per Curiam:
This appeal is in a contract and misrepresentation action in which the district court, sitting
without a jury, determined that significant misrepresentations had been made by one of the
defendants (Mr. Charles Painter) to the individual plaintiffs, resulting in measurable damages
to the plaintiff Association, i.e., the Chieftan Manor Waters Users Association. Charles
Painter, one of the defendants below,
1
is the sole appellant herein. The plaintiffs below,
respondents herein, included individual purchasers from Mr. Painter of lots in a subdivision,
i.e., Chieftan Manor, and of shares in an affiliated, non-profit Nevada corporation, i.e., a
water users association (Chieftan Manor Water Users Association, hereinafter the
Association), and the Association itself.
2

Mr. Painter appeals the trial court's finding that his misrepresentations damaged the
Association rather than its individual members
3
and from the court's judgment that he must
pay the Association $9,890.70 in general damages. Specifically, Painter contends that the
Association was not a real party in interest in this matter4 and, therefore, that the award
of a judgment and damages to it was improper.
____________________

1
Melvin Lowell was the other named defendant but he was dismissed from the action by the court below
when no evidence was presented to support the plaintiffs' claims against him.

2
Technically the only respondent herein is the Association. The district court dismissed all of the individually
named plaintiffs from the case at the close of the trial below and none of them has appealed from his judgment in
this regard.

3
The particular findings of fact which the appellant contends were invalid are the following:
17. The ASSOCIATION, as the owner of the well and water system and as the entity charged with
the responsibility of operating and maintaining the well and water system, was exposed to liability by
reason of defendant PAINTER's false misrepresentations [to the individual plaintiffs].
18. It is the ASSOCIATION which must effect the necessary repairs to
Painter contends that the Association was not a real party in interest in this matter
4
and,
therefore, that the award of a judgment and damages to it was improper. We disagree and
therefore affirm.
THE REAL PARTY IN INTEREST
[Headnote 1]
The concept real party in interest under NRCP 17(a) means that an action shall be
brought by a party who possesses the right to enforce the claim and who has a significant
interest in the litigation. Virginia Electric & Power Co. v. Westinghouse Elect. Corp., 485
F.2d 78, 83 (4th Cir. 1973), cert. denied, 415 U.S. 935 (1974). The purpose of the rule is
to enable the defendant to avail himself of evidence and defenses that the defendant has
against the real party in interest, and to assure him finality of the judgment, and that he
will be protected against another suit brought by the real party at interest on the same
matter.
Celanese Corp. of America v. John Clark Industries, 214 F.2d 551, 556 (5th Cir. 1954).
[Headnote 2]
In the instant case, the Association holds legal title to the water system of the Chieftan
Manor subdivision. It is charged in its articles of incorporation with the duty of supplying
water to the development.
____________________
correct the inadequacies in the water system and bring the water system up to the standards represented
by defendant PAINTER.
19. It is the ASSOCIATION's well and water system which was misrepresented by defendant
PAINTER when defendant PAINTER was in complete control of the ASSOCIATION, and the
ASSOCIATION must find the financial resources to upgrade the water system.
20. The damage resulting from defendant PAINTER's misrepresentations concerning the
ASSOCIATION's well and water system, which must be borne by the ASSOCIATION, are as follows:
A. Five-horse pump...................................................................................... $1,830.00
B. Engineering reports of Baughman & Turner, Inc................................... 750.00
C. Miscellaneous bills................................................................................. 225.00
D. Water well services (Upgrading of well system).................................... 7,085.70

________

$9,890.70

4
NRCP 17(a) provides in pertinent part that, [e]very action shall be prosecuted in the name of the real party
in interest. This language is taken from and identical to a similar provision in Rule 17(a) of the Federal Rules of
Civil Procedure, i.e., [e]very action shall be prosecuted in the name of the real party in interest.
Because the language in NRCP 17(a) concerning the concept real party in interest is identical to that found
in FRCP 17(a), and because few, if any, Nevada cases have construed the concept, federal court case law
construing the motion is considered to be authoritative.
to the development. The Association's legal title to the well and water system is sufficient to
make it a real party in interest. Smith v. Logan, 18 Nev. 149, 1 P. 678 (1883).
[Headnote 3]
The appellant was not misled as to the nature of the action against him: his defense was
that he had made no misrepresentations either to the individual plaintiffs or to the
Association. There is no indication that any other plaintiffs exist who have any interest in the
subject matter of the action. The individual plaintiffs have been dismissed from the suit, and
they have not appealed that dismissal, so any further action by them would be barred by the
doctrine of res judicata. Finally, since judgment for the entire cost of bringing the water
system into conformity with Painter's representations has been rendered for the Association,
there is no indication that the Association could sue for any other damages. Therefore, the
judgment of the district court is affirmed.
____________
96 Nev. 944, 944 (1980) Selsnick v. Horton
FRANCES SELSNICK, Appellant, v. RICHARD
HORTON, Respondent.
No. 10779
December 30, 1980 620 P.2d 1256
Appeal from order granting a new trial, Second Judicial District Court, Washoe County;
William N. Forman, Judge.
Client brought action for malpractice against attorney. The district court granted attorney's
postjudgment motion for a new trial after jury verdict for client and granted attorney's motion
for partial summary judgment, and client appealed. The Supreme Court, Mowbray, C. J., held
that: (1) client's malpractice action against attorney was premised solely upon ordinary
negligence, and therefore it was error for the trial court to instruct jury as to an award for
mental anguish, as no damages for mental anguish or emotional distress may be recovered
absent proof of extreme and outrageous conduct causing such anguish or distress, and (2)
question whether attorney's conduct in not pursuing an appeal or not applying for relief from
a default judgment fell below that of a reasonable attorney was an issue of fact which should
have been resolved at trial, thus the trial court erred in granting attorney's motion for partial
summary judgment.
Affirmed in part; reversed in part.
Gunderson, J., concurred and dissented.
Douglas G. Lohse, Reno, for Appellant.
Vargas, Bartlett & Dixon, and John C. Renshaw, Reno, for Respondent.
1. Damages.
Where client's malpractice action against attorney was premised solely upon ordinary negligence, it was
error for the trial court to instruct jury as to an award for mental anguish, as no damages for mental anguish
or emotional distress may be recovered absent proof of extreme and outrageous conduct causing such
anguish or distress.
2. Judgment.
Summary judgment is properly granted only where there is no genuine issue as to any material fact.
NRCP 56(c).
3. Judgment.
In malpractice action by client against attorney, question whether attorney's conduct in not pursuing an
appeal or not applying for relief from a default judgment fell below that of a reasonable attorney was
material issue of fact precluding partial summary judgment. NRCP 56(c), 60.
OPINION
THE FACTS
Appellant Frances Selsnick commenced an action for legal malpractice against Attorney
Richard Horton. Appellant's claims of negligence were based upon three grounds: (1)
respondent Horton's failure to prosecute an appeal of a summary judgment granted in favor of
First Commercial Title; (2) Horton's dismissal, without prejudice, of a claim against Union
Federal; and (3) Horton's advice to appellant to release certain funds pursuant to a stipulation.
A jury awarded appellant $52,126.80. A postjudgment motion for new trial was granted
primarily on the grounds that a jury instruction was given which, in the view of the district
court, improperly allowed compensation for mental anguish. Appellant appeals from the
order granting the motion for a new trial, and the district court's order granting a partial
summary judgment against appellant on her claim predicated upon Horton's failure to
prosecute the appeal against First Commercial Title.
THE MOTION FOR A NEW TRIAL
[Headnote 1]
Part of the instruction regarding damages read: Such sum to plaintiff as may reasonably
compensate plaintiff for any mental anguish, anxiety, or suffering caused by defendant's
actions."
mental anguish, anxiety, or suffering caused by defendant's actions. It was error for the trial
court to so instruct. Appellant's suit was premised solely upon ordinary negligence; she did
not allege nor attempt to prove extreme and outrageous conduct causing such anguish or
distress. Absent such proof, appellant may not recover damages for mental anguish or
emotional distress. McKissick v. Schroeder, 235 N.W.2d 686 (Wis. 1975); Alcorn v. Anbro
Engineering, Inc., 468 P.2d 216 (Cal. 1970); Restatement (Second) of Torts 46(1) (1965).
Cases cited in the dissent for the opposite proposition involve situations allowing an
additional element of damage because of the presence of physical injury. Babcock & Wilcox
Co. v. Nolton, 58 Nev. 133, 71 P.2d 1051 (1937); see also Burrus v. N.-C.-O. Ry. Co., 38
Nev. 156, 145 P. 926 (1914); Barnes v. W.U. Tel. Co., 24 Nev. 125, 50 P. 438 (1897). In the
Burrus case, this court merely recognized the rule that, in special cases involving peculiarly
personal subject matters, mental anguish may be a foreseeable damage resulting from breach
of contract. See Crisci v. Security Insurance Co. of New Haven, Conn., 426 P.2d 173 (Cal.
1967); Chelini v. Nieri, 196 P.2d 915 (Cal. 1948). Because this case, as presented below, did
not warrant a jury instruction on mental anguish, the trial court properly granted respondent
his motion for a new trial.
THE PARTIAL SUMMARY JUDGMENT
[Headnotes 2, 3]
The trial court granted respondent's motion for partial summary judgment against appellant
on her claim predicated upon Horton's failure to prosecute an appeal against First
Commercial Title. NRCP 56(c) allows for summary judgment only where there is no genuine
issue as to any material fact. Whether Horton's conduct in not pursuing the appeal or not
applying for relief from the default judgment, NRCP 60, fell below that of a reasonable
attorney is an issue of fact which should have been resolved at trial. Therefore, the trial court
erred in granting respondent's motion.
For the above reasons, we affirm the order granting respondent's motion for a new trial,
and reverse the order granting respondent partial summary judgment.
Thompson, Manoukian, and Batjer, JJ., concur.
Gunderson, J., concurring and dissenting:
The appellant, Dr. Selsnick, contends the trial court erred, inter alia, by granting partial
summary judgment in favor of respondent Horton. Thereby, the court precluded Dr. Selsnick
from introducing evidence at trial on allegations that attorney Horton failed to prosecute
the appeal he had been hired to process in her behalf; that for several months Horton
repeatedly lied to her, saying her appeal remained viable; that Horton in fact acquiesced
in dismissal of her appeal without informing her or obtaining her consent; and that
Horton's actions constituted not only negligence, but extreme and outrageous conduct.
from introducing evidence at trial on allegations that attorney Horton failed to prosecute the
appeal he had been hired to process in her behalf; that for several months Horton repeatedly
lied to her, saying her appeal remained viable; that Horton in fact acquiesced in dismissal of
her appeal without informing her or obtaining her consent; and that Horton's actions
constituted not only negligence, but extreme and outrageous conduct. By thus rendering
summary judgment, the trial court determined that Mr. Horton's misconduct could not, as a
matter of law, give rise to a cause of action or, in the alternative, that such misconduct did not
damage Dr. Selsnick in any measureable way.
Therefore, the majority's assertion that Dr. Selsnick did not allege nor attempt to prove
extreme and outrageous conduct causing anguish or distress is only correct because the trial
court, by summary judgment, precluded such proof.
Even without her claim for outrageous conduct being fully and properly presented, Dr.
Selsnick apparently satisfied the jury that Mr. Horton's actions warranted a verdict in her
favor. I respectfully submit that this verdict, entered upon Dr. Selsnick's other claims against
Mr. Horton, should be upheld, and that no further delay should be indulged in allowing her
recovery as to the sum of $52,126.80.
It appears from the record that on or about March 28, 1972, Dr. Selsnick employed Mr.
Horton to file an appeal of a default summary judgment entered against her and in favor of
First Commercial Title Company (the builder's control) in an ongoing contractual dispute
centered on the construction of the doctor's home. Mr. Horton took a retainer of $500.00 and,
on April 10, filed a notice of appeal. In the ensuing two months, Horton neither docketed the
record on appeal, nor sought an extension of time to do so. On August 18, 1972, this court
granted an unopposed motion by First Commercial Title to dismiss the appeal on grounds that
it had been abandoned.
The record further reflects that while these events were occurring, up to and including
December 4, 1972, Horton repeatedly told Dr. Selsnick that her appeal was pending and all
was in order. In November of 1972, Dr. Selsnick personally called this court to inquire about
the status of her appeal and learned it had been dismissed.
1
On December 5, 1972, Dr.

____________________

1
In a subsequent phone conversation with the Chief Justice, Dr. Selsnick queried, just what goes on here? I
pay an attorney $500.00 to file an appeal, and now you tell me it's not there any longer. And, Mr. Horton tells
me it is. What's going on in this city? Am I crazy or is the city crazy or is it the legal profession?
On December 5, 1972, Dr. Selsnick finally managed to confront Mr. Horton personally
and told him, Mr. Horton, I know that the appeal is no longer before the Supreme Court. . .
What do we do? Mr. Horton made no response at all for a few moments and then told Dr.
Selsnick, I give ulcers, I don't get ulcers.
These facts are obviously sufficient to support a finding of liability against Mr. Horton,
whether on grounds of ordinary negligence, or grounds of outrageous or willful misconduct.
2

By signing and filing Dr. Selsnick's appeal as he did on April 10, 1972, Mr. Horton
indicated that he believed there were good grounds to support it. NRCP 11. In dismissing the
appeal for a want of perfection on August 18, 1972, this court did not determine that the
appeal was frivolous or that it had been processed for purposes of delay, nor did this court
impose damages for delay on Dr. Selsnick. NRAP 38. Mr. Horton did not seek a voluntary
dismissal of the appeal under NRAP 42 nor did he ever express any reservations about the
merits of the appeal to Dr. Selsnick. Permissible inferences from this court's action, and Mr.
Horton's inaction, are that although the appeal did not lack merit, Mr. Horton inexcusably
failed to perfect it and to prevent its dismissal.
3

Also, the record shows Mr. Horton acted outrageously by repeatedly lying to Dr. Selsnick,
saying her appeal was still pending when he knew it had been dismissed, without his having
registered any opposition. If he had acted properly, or allowed Dr. Selsnick to do so, the
appeal Mr. Horton has certified to be valid could have been preserved.
A trial judge should exercise great care in granting motions for summary judgment. Short,
cited above; McColl v. Scherer, 73 Nev. 226, 231-232, 315 P.2d 807 (1957). Rule 56 of the
NRCP4 authorizes summary judgment only where the moving party is entitled to
judgment as a matter of law, where it is quite clear what the truth is, and where no
genuine issue remains for trial.
____________________

2
In deciding the propriety of a trial court's granting of a summary judgment all evidence favorable to the
party against whom the summary judgment was rendered is accepted as true. Short v. Hotel Riviera, Inc., 79
Nev. 94, 378 P.2d 979 (1963); Potter v. Mutual Benefit Life Ins. Co., 93 Nev. 90, 560 P.2d 914 (1977); Bowyer
v. Davidson, 94 Nev. 718, 584 P.2d 686 (1978). Accordingly, all evidence which Dr. Selsnick would have
offered against Mr. Horton at the trial below, had she been permitted to do so, is accepted as true for purposes of
this opinion.

3
An attorney expressly and explicitly instructed by his client to follow a certain course of action in the
conduct of litigation is under the duty of doing so if he remains in the suit at all, and accordingly he may be held
liable for damages resulting from his failure to do so. 45 ALR2d AttorneysNegligenceLiability 3[c]
(1956). Negligence of an attorney in failing to take proper steps to protect his client's right of appeal or review
has been held actionable . . . where, as a result, the right of appeal was lost. Id. 21[a].
NRCP
4
authorizes summary judgment only where the moving party is entitled to judgment
as a matter of law, where it is quite clear what the truth is, and where no genuine issue
remains for trial. Short, cited above; Bader Enterprises, Inc. v. Becker, 95 Nev. 807, 809, 603
P.2d 268 (1979); Lipshie v. Tracy Investment Co., 93 Nev. 370, 375, 566 P.2d 819 (1977);
Nevada Land & Mtge. v. Hidden Wells, 83 Nev. 501, 506, 435 P.2d 198 (1967). A litigant
has a right to trial where there is the slightest doubt as to the facts. Short, cited above.
As the majority appear to realize, it is widely recognized that an attorney may be held
liable for the failure to take or perfect an appeal if a trial shows an appeal would have resulted
favorably to the client. Moreover, in circumstances analogous to those before us, it has been
held that an action lies even without a showing that the appeal would have been won. Welder
v. Mercer, 448 S.W.2d 952 (Ark. 1970) (failure to perfect appeal by missing deadline for
filing of transcripts in will contest constituted a gross dereliction of duty for which the
attorney was liable).
In the instant matter, Dr. Selsnick was ready to present evidence to establish that her
appeal of the default summary judgment in favor of First Commercial Title would likely have
been successful. She had several expert witnesses ready to testify to that effect.
5
During the
trial, when Dr. Selsnick's counsel unsuccessfully sought to have the court reverse its earlier
grant of a summary judgment, Mr. Horton's counsel stipulated that these individuals would
present such evidence.
The trial court's conclusion that Mr. Horton's conduct had not damaged Dr. Selsnick was
error for other reasons. Obviously, she had been damaged to the extent of the $500.00 Horton
accepted to prosecute her appeal. She also had been damaged to the extent that she had to
expend her own time seeking another attorney to reopen the dismissal and, when she had no
success in this endeavor, using her own time and energies attempting to reinstate her appeal.
I also question our brother Mowbray's assertions that in an action premised upon
negligence, [i]t is established that one may not recover damages for mental anguish or
emotional distress alone absent extreme and outrageous conduct causing such anguish or
distress."
____________________

4
NRCP 56(c) in pertinent part reads:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of law.

5
Three attorneys (Mr. Charles Springer, Mr. Robert Robertson, and Mr. Gary Backus) were all willing to
testify to that effect.
such anguish or distress. He supports this statement by a string of authorities from other
jurisdictions.
Our brother attempts to distinguish a viable precedent of this court which holds to the
contrary. See Babcock R. Wilcox Co. v. Nolton, 58 Nev. 133, 71 P.2d 1051 (1937). In Nolton
the defendant corporation contended that the trial court had erred in proffering the jury an
instruction on mental anguish.
6
This court rejected the defendant's contention and declared
the instruction to have been properly phrased and given. In doing so we declared that,
recovery of damages may be had for mental pain, disassociated from bodily suffering in
damage cases growing out of contract, is the settled law of this state. Id., 148. This court
went on to say:
Johnson v. Wells, Fargo & Co., insofar as it holds that mental pain, as distinct from
bodily pain, is not the subject of compensation in a case where the injury is the result of
negligence, is expressly overruled.
The instruction is not objectionable in including mental pain as an element of
damages for which compensation could be allowed. If appellant wished a more specific
instruction in that respect, he should have requested it.
Id., at 148.
The similarity between the damages instruction approved in Nolton and the one contested
herein is striking. And, in the instant matter as in Nolton, the defendant did not suggest an
alternative instruction, even though the court asked if he wished to do so.
Our brother Mowbray says Nolton is distinguishable from the instant case because the
former involved, not only mental anguish, but an additional element of damage, i.e.
physical injury. He has failed to tell us, however, why that distinction should be controlling.
And, it should be noted that, in other factual situations involving breach of contract, mental
anguish has been accepted as an element of damage without any allegation of direct physical
injury. See e.g. Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966); Fisher v.
Executive Fund Life Ins. Co., 88 Nev. 704, 504 P.2d 700 (1972).
This court should reverse the trial court's order granting Mr. Horton a new trial. In any
event, of course, the trial court's entry of a summary judgment constituted prejudicial
error, and inasmuch as my brethren hold that this case must be fully re-tried, I presume
they also contemplate that the district court will allow whatever amendment of the
pleadings may be necessary, so Dr.
____________________

6
In pertinent part the contested instruction read, [i]n assessing damages, if you find the plaintiffs entitled to
recover damages, you should take into consideration the following elements, in the event any of them are found
to exist, and allow adequate compensation therefor.* * * . . . (9) [m]ental pain and suffering by Marguerite
Nolton, if any. * * *
entry of a summary judgment constituted prejudicial error, and inasmuch as my brethren hold
that this case must be fully re-tried, I presume they also contemplate that the district court will
allow whatever amendment of the pleadings may be necessary, so Dr. Selsnick's case can be
fully presented. Id.
____________
96 Nev. 951, 951 (1980) Dorsey v. State
MICHAEL DEWAYNE DORSEY, Appellant, v. THE
No. 12073
December 30, 1980 620 P.2d 1261
Appeal from judgment of conviction. Eighth Judicial District Court, Clark County; J.
Defendant was convicted in the district court of arson, and he appealed. The Supreme
Court, Mowbray, C. J., held that: (1) testimony of defendant's admission against interest did
not violate hearsay rule; (2) error in admission of prior bad acts of defendant was harmless;
(3) trial court did not err in excluding evidence of other arsons in same vicinity; and (4)
verdict was supported by substantial evidence.
Affirmed.
Richard H. Bryan, Attorney General, Carson City, and Robert J. Miller, District Attorney,
1. Witnesses.
Witness' prior statement, which was inconsistent with her trial testimony, that defendant said he had
burned down victim's residence and was going to burn it down again, was admissible under exception to
hearsay rule, in prosecution for arson. NRS 51.035, subd. 3(a), 51.365.
2. Criminal Law.
Evidence of prior act of misconduct is admissible as proof of plan if evidence tends to prove defendant's
commission of charged crime by showing that defendant planned to commit it. NRS 48.045, subd. 2.
3. Criminal Law.
Trial court did not abuse its discretion in determining that probative value of evidence linking defendant
to earlier fire, in prosecution for arson, outweighed prejudicial effect. NRS 48.045, subd. 2.
4. Criminal Law.
Admission into evidence of incident when defendant took money from victim's purse and plea of guilty to
making harrassing phone calls to victim were not relevant to charge of arson, but since
evidence against defendant was overwhelming, error in their admission was
harmless.
victim were not relevant to charge of arson, but since evidence against defendant was overwhelming, error
in their admission was harmless. NRS 48.045, subd. 2.
5. Criminal Law.
Trial court did not err in refusing to allow defendant to introduce evidence of other arsons in same
vicinity which occurred in the prior year, in prosecution for arson. NRS 205.010.
6. Arson.
Evidence that defendant was seen one-half hour after fire bombing inspecting container thrown against
residence, that he moved the container at that time to where it was found by arson inspectors, and that
testimony of alibi witnesses differed regarding crucial time periods, sustained conviction of arson. NRS
205.010.
OPINION
A jury found Michael Dewayne Dorsey guilty of arson. NRS 205.010. He was sentenced to
fifteen years in the Nevada State Penitentiary.
Appellant specifies a number of errors: (1) hearsay evidence was improperly introduced;
(2) evidence of prior bad acts was improperly introduced; (3) possibly exculpatory evidence
of other arsons in the area was excluded; (4) the verdict is not supported by substantial
evidence. We disagree and affirm.
THE FACTS
Late in the evening of November 25, 1977, a molotov cocktail type device was thrown
against the home of Cleveland Powe. The bomb landed below the bedroom window of his
daughters, Andrea and Jacqueline, who were both home at the time. Alerted by Jacqueline,
the elder Powe extinguished the flames; he then hid behind the drapes of the window and
waited to see if the arsonist would return. Approximately one half [C249 SECTION 3 OF 6
VV7 SIZE 166.6 CLC 167] hour later appellant approached the Powe home and inspected the
device. When confronted by Powe, appellant fled. He was charged by way of an information
with the arson.
The state introduced, over objection, evidence which connected appellant with a number
of prior inculpatory acts. These acts arose after the end of a relationship between appellant
and Andrea Powe. They included an incident when appellant took ten dollars from Andrea
Powe's purse in October, 1976, and his plea of guilty to making harassing phone calls in late
1976 and early 1977, to the Powe residence.
late 1976 and early 1977, to the Powe residence. Hearsay evidence also implicated the
appellant in an April, 1977, fire at the Powe's residence. Appellant offered a number of alibi
witnesses who testified as to appellant's whereabouts the night of the November firebombing.
THE HEARSAY EVIDENCE
A long-time friend of appellant, Glenda Pinckney, testified that in May, 1977, she asked
appellant whether he burned down the Powe house in April, 1977. He replied: I'm not
saying. Two witnesses, Jacqueline Powe and Wilma Harris, testified that Pinckney told them
appellant actually said he had burned down the Powe house and he was going to burn it down
again. This evidence was introduced as the prior inconsistent statement of Pinckney.
[Headnote 1]
To be admissible, both appellant's and Pinckney's statements must be excepted from the
hearsay rule. NRS 51.365. Either version of what appellant said is admissible. Maginnis v.
State, 93 Nev. 173, 561 P.2d 922 (1977); Fish v. State, 92 Nev. 272, 549 P.2d 338 (1976);
NRS 51.035(3)(a). A prior inconsistent statement of a witness need not be given under oath to
be admissible as substantive evidence in this state; in this respect, we differ from Fed. R.
Evid. 801(d)(1) after which NRS 51.035(2)(a) is patterned. See Bein, Prior Inconsistent
Statements: The Hearsay Rule, 801 (d)(1)(A) and 803(24), 26 U.C.L.A. L. Rev. 967, 968, n.2
(1979). Therefore, the testimonies did not violate the hearsay rule.
THE PRIOR INCULPATORY ACTS
[Headnotes 2, 3]
Appellant argues that even if admissible as non hearsay, evidence linking him to the April
fire must be excluded under NRS 48.045(2)
1
. However, evidence of a prior act of
misconduct is admissible under the plan exception of this statute; the evidence must . . . tend
to prove the defendant's commission of the charged crime by showing that the defendant
planned to commit it. Cirillo v. State, 96 Nev. 489, 492, 611 P.2d 1093, 1095 {19S0).
____________________

1
NRS 48.045(2):
accident.
1095 (1980). Appellant's inculpatory statement to Pinckney satisfies the evidentiary standard
of Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966). Since the trial judge did not abuse his
discretion in determining that the probative value outweighed the prejudicial effect, the ruling
will not be disturbed on appeal. Seim v. State, 95 Nev. 89, 590 P.2d 1152 (1979).
[Headnote 4]
It was error to admit evidence of the other two prior acts of misconduct. Taking ten dollars
from Andrea Powe's purse over a year before the fire is not relevant to the charge of arson;
testimony indicated the money belonged to appellant. While the harassing phone calls
indicate appellant's illwill toward the Powes, the impermissible effect was to portray
appellant as one likely to commit other offenses. Nester v. State of Nevada, 75 Nev. 41, 334
P.2d 524 (1959). However, since the evidence against appellant was overwhelming, we deem
the error harmless. Coffman v. State, 93 Nev. 32, 559 P.2d 828 (1977); Drummond v. State,
86 Nev. 4, 462 P.2d 1012 (1970).
THE OTHER ARSONS IN THE VICINITY
[Headnote 5]
Appellant attempted to introduce evidence of other arsons in the same vicinity which
occurred in 1976. While it is true that an accused may show that another committed the crime
for which he is tried, more than mere conjecture is required. State v. Larsen, 415 P.2d 685
(Idaho 1966). It was not error for the trial judge to determine the testimony was conjecture.
Compare Case v. State, 555 P.2d 619 (Okla.Crim. 1976), cert. denied, 431 U.S. 965 (1977).
THE SUBSTANTIAL EVIDENCE
[Headnote 6]
Finally, appellant suggests that there is no substantial evidence in the record to support the
jury verdict. We do not agree. The jury is the sole and exclusive judge of the credibility of the
witnesses and the weight to be given their testimonies; a jury verdict will not be overturned if
there is sufficient evidence in the record to substantiate the verdict. King v. State, 87 Nev.
537, 490 P.2d 1054 (1971). Appellant was seen one half hour after the firebombing
inspecting the container thrown against the Powe residence; he moved the container at that
time to where it was found by the arson inspectors. While appellant offered alibi witnesses,
their testimony differed regarding crucial time periods.
offered alibi witnesses, their testimony differed regarding crucial time periods. There is
substantial evidence to support the jury verdict. The judgment of conviction is affirmed.
Gunderson, Manoukian, and Batjer, JJ., and Fondi, D. J.,
2
concur.
____________________

2
The Governor commissioned The Honorable Michael E. Fondi, District Judge, to sit in this case in place of
Justice Gordon Thompson. Nev. Const. art. 6, 4.
____________
96 Nev. 955, 955 (1980) Kaeser v. State
JOHN GEORGE KAESER, Appellant, v. THE STATE
No. 10974
December 30, 1980 620 P.2d 872
Appeal from judgment of conviction; Second Judicial District Court, Washoe County;
Grant L. Bowen, Judge.
Defendant was convicted in the district court of first degree kidnapping, sexual assault,
and burglary and he appealed. The Supreme Court, Thompson, J., held that conduct of the
prosecutor in calling defendant's attorney as a rebuttal witness and in cross-examining
defendant with regard to his alleged preference for oral sex was prejudicial error.
Reversed.
Defender, Washoe County, and Samuel S. Wardle, Carson City, for Appellant.
Calvin R. X. Dunlap, District Attorney, Edward B. Horn and Richard Cornell, Deputy
District Attorneys, Washoe County, for Respondent.
Sixth Amendment guarantees assistance of counsel to defendants in every step of criminal proceedings
against them and is made applicable to the states by the Fourteenth Amendment. U.S.C.A.Const. Amends.
6, 14.
2. Criminal Law.
Mere fact that defense counsel is called to testify, without more, does not establish a material interference
with conduct of defense or deny a fair trial. U.S.C.A.Const. Amends. 6, 14.
3. Witnesses.
Calling defense counsel as a prosecution witness should be avoided whenever possible in view of facts
that defendant is unable to consult with counsel when counsel is on stand as a witness and that it is difficult
for counsel to protect record and at same time keep in mind what questions should be asked himself on
cross-examination.
4. Criminal Law; Witnesses.
Where prosecutor in criminal proceeding sought to rebut defendant's testimony that defendant's wife was
unavailable to testify on behalf of defendant and attorney for defendant's wife was a prosecution witness
and could have been asked about defense efforts to locate defendant's wife, it was prejudicial error for
prosecutor to call defendant's attorney to testify about availability of defendant's wife to testify. Const.
Art. 1, 8; U.S.C.A.Const. Amends. 6, 14.
OPINION
A jury convicted Kaeser of the crimes of first degree kidnapping, sexual assault and
burglary. His appeal tenders two important questions for our resolution. The first concerns the
sixth amendment right to counsel and whether that right was denied Kaeser by the conduct of
the prosecutor in calling Kaeser's attorney as a rebuttal witness. The second question involves
the propriety of the prosecutor's cross-examination of Kaeser with regard to his preference for
oral sex. For reasons hereafter expressed we condemn the prosecutor's tactic in each instance.
We find the errors prejudicial and remand for a new trial.
At approximately 10 o'clock p.m. a fourteen-year-old girl was kidnapped from her bed by a
man claiming to be a volunteer fireman checking out a gas leak. She was threatened with a
small calibre handgun and driven to the Golden Valley area in Washoe County where she was
sexually assaulted. She was returned to her apartment at about 1:30 o'clock a.m. and released
under threats not to tell anyone what had occurred.
The girl described to the police her assailant, his car, numerous items observed in the car
and the route taken to Golden Valley. These descriptions led to the arrest of Kaeser.
Kaeser testified at trial. He did not deny that his car was used in the abduction but asserted
that someone else used it. He stated that he generally left the car unlocked with the keys under
the seat. He asserted that at the time of the crimes he was at home with his wife and that his
wife left the house at 11 o'clock p.m. to visit two friends, Christina Nelms and Laura Riley.
He testified that he called the Nelms' residence about midnight and asked to speak with his
wife. Laura Riley answered the phone. Her testimony corroborated Kaeser's in this regard.
On cross-examination by the prosecutor, Kaeser implied that his wife would support his
alibi if she testified. He also testified that his attorney had been in contract with his wife.
that his attorney had been in contract with his wife. He said that he did not know if she was
available to testify, nor did he know of her whereabouts. The wife did not testify.
The prosecutor called Kaeser's attorney to the stand as the State's first rebuttal witness. The
attorney was not given advance warning that he would be called. Although he expressed
surprise he did not object to taking the stand. The prosecutor asked defense counsel about the
availability of the wife to testify. He answered that he had been in touch with the wife early in
the investigation but that he had not been able to locate her since. The defense attorney also
was asked about the effect of the marital privilege upon an attempt by the prosecutor to call
the wife as a witness. It is reasonably clear from the record that the prosecutor knew how to
locate the wife but did not do so contending that the marital privilege would bar her
testimony. The prosecutor never asked Kaeser whether he would assert that privilege.
During his cross-examination of Kaeser the prosecutor asked several questions regarding
his sexual relations with his wife. Kaeser denied that he was impotent. The prosecutor asked
him if he was only stimulated by oral copulation. Kaeser denied that. The fourteen-year-old
victim had testified that her assailant had forced her to engage in oral sex with him. No effort
was made by the State to prove Kaeser's insinuated sexual preference.
[Headnote 1]
1. The sixth amendment guarantees the assistance of counsel and is made applicable to the
states by the fourteenth amendment. Gideon v. Wainwright, 372 U.S. 335 (1965)
1
. The
Court noted that the guiding hand of counsel is required at every step of the proceedings
against him. Whether this principle is violated when the defendant is deprived of his right to
consult with his counsel for the period of time such counsel is on the stand as a witness is the
question here proffered.
[Headnotes 2, 3]
The issue has been considered by state and federal courts in varying factual contexts. It
appears generally to be agreed that the mere fact counsel is called to testify, without more,
does not establish a material interference with the conduct of the defense or deny a fair trial.
United States v. Hall, 346 F.2d 875 (2d Cir. 1965); United States v. Freeman, 519 F.2d 67
(9th Cir. 1975); State v. Sullivan, 373 P.2d 474 (Wash. 1962). One can envision, however,
that great mischief may result when defense counsel is called as a prosecution witness.
____________________

1
Our State Constitution states that the party accused shall be allowed to appear and defend in person, and
with counsel. Art. 1, 8.
envision, however, that great mischief may result when defense counsel is called as a
prosecution witness. Hanks v. United States, 420 F.2d 412 (10th Cir. 1970). The defendant is
unable to consult with his counsel when counsel is on the stand as a witness. It is most
difficult for counsel to protect the record and at the same time keep in mind what questions
should be asked himself on cross-examination. To be a witness for the prosecution, and at the
same time the counsel for the defendant is an unpleasant and difficult situation which should,
we think, be avoided whenever possible. State v. Reynolds, 564 S.W.2d 874 (Mo. 1978).
[Headnote 4]
In the case at hand the prosecutor used defense counsel's testimony to attack the credibility
of both Kaeser and counsel. Through defense counsel's testimony the prosecutor sought to
rebut Kaeser's testimony that his wife was not available, thus refuting the implication that
Kaeser's wife would support his alibi. Moreover, it appears that the prosecutor's tactic was
unnecessary. The wife's attorney was a witness for the State and could have been asked about
defense efforts to locate her. The inquiry was not made. Had this been done, the prosecutor
easily could have argued to the jury that the wife was available to testify had the defense
desired to call her, and that her absence suggested that she would not have supported Kaeser's
alibi. In these circumstances prejudicial error occurred under the state constitutional provision
guaranteeing the right to appear and defend in person and with counsel. Nev. Const. art. 1,
8; State v. Reynolds, 564 S.W.2d 874 (Mo. 1978); State v. Sullivan, 373 P.2d 474 (Wash.
1962); State v. Livingston, 285 N.E.2d 75 (OhioApp. 1972); People v. Lathrom, 13 Cal.Rptr.
325 (Cal.App. 1961).
2. We deem it unnecessary to discuss other assigned errors.
Reversed and remanded for a new trial.
____________
96 Nev. 959, 959 (1980) Rosenthal v. State ex rel. Gaming Comm'n
FRANK ROSENTHAL, Appellant, v. THE STATE OF NEVADA, ex rel., the NEVADA
GAMING COMMISSION; and NEVADA GAMING CONTROL BOARD, Respondents.
No. 11856
December 31, 1980 620 P.2d 874
Appeal from judgment, Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Gaming employee sought review of Gaming Control Board's and Gaming Commission's
decision denying employee a license. The district court entered judgment against employee,
and he appealed. The Supreme Court, Thompson, J., held that: (1) Gaming Control Act's
provisions, which required that if employee was denied a license because of lack of good
character, honesty or integrity, employer-gaming licensee had to terminate the employment
on notification by registered or certified mail to the licensee of such denial, was infirm, when
applied to gaming employees other than key employees, for want of procedural due process;
(2) where hearing before Board and Commission was focused on employee's suitability to be
licensed as key employee and his right to work in any other capacity has not been at issue, he
could continue to enjoy the benefit of his work permit as a gaming employee; and (3) joint
hearing before Board and Commission was not authorized, but employee was not prejudiced
by the joint hearing.
Affirmed in part; reversed in part.
Goodman, Oshins, Brown & Singer, Chartered, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, and Patricia Becker and Raymond D. Pike, Deputy
Attorneys General, Carson City, for Respondents.
1. Gaming.
Person possessing a work permit as a gaming employee has an existing privilege and is entitled to receive
notice and a hearing before such privilege can be nullified.
2. Constitutional Law; Gaming.
Gaming Control Act's provisions, which required that if an employee was denied a license because of
lack of good character, honesty or integrity, the employer-gaming licensee was to terminate the employee's
employment on notification by registered or certified mail to the licensee of such denial, was infirm, when
applied to gaming employees other than key employees, for want of procedural due process. NRS
463.165, 463.560; U.S.C.A.Const. Amends. 5, 14.
3. Gaming.
Where hearing before Gaming Control Board and Gaming Commission, which denied a license to
gaming employee, was focused on his suitability to be licensed as a key employee and his right to work in
any other capacity had not been at issue, he could continue to enjoy the benefit of his permit as a gaming
employee.
4. Gaming.
Joint hearing before Gaming Control Board and Gaming Commission, which denied a license to gaming
employee as a key employee, was not authorized, but employee was not prejudiced by the joint hearing, in
light of fact that Board and Commission deliberated and voted separately. NRS 463.210, 463.210,
subd. 2, 463.220, subds. 4, 5.
5. Gaming.
Regulatory scheme in effect contemplated that proceedings before Gaming Commission were to be
subsequent to and separate from proceedings before Gaming Control Board. NRS 463.210, 463.210,
subd. 2, 463.220, subds. 4, 5.
OPINION
[Headnote 1]
This case is sequel to State of Nevada v. Rosenthal, 93 Nev. 36, 559 P.2d 830 (1977),
where we noted the distinction between the status of one who seeks to acquire a gaming
license and the status of one who possesses a work permit as a gaming employee. The former
does not have existing privileges, but is attempting to acquire them. The latter does have an
existing privilege and is entitled to receive notice and a hearing before his privilege to work
as a gaming employee can be nullified. In that case we found it permissible for the Gaming
Commission to deny Rosenthal's application to be licensed as a key employee of Argent
Corporation, but impermissible automatically to revoke his work permit as a gaming
employee without prior notice and an opportunity to be heard. The statutes and regulations
then in effect which would allow such automatic revocation could not stand for want of
fairness.
Because of that decision, Rosenthal could no longer direct the Nevada operations of
Argent Corporation since he had been denied a state gaming license. He became Food and
Beverage Director for the Stardust Hotel and later its Entertainment Director for a salary of
$65,000 a year. Believing that Rosenthal, in the mentioned positions, continued to
significantly influence gaming, the Commission deemed Rosenthal still to be a key employee
and once again directed him to submit an application for a gaming license.
The Gaming Control Board and the Gaming Commission, meeting in joint session, denied
Rosenthal a license. In reviewing that decision, the district court found that there was
evidence to support a determination that Rosenthal was a key employee, and not suitable to
be licensed. The court also found that Rosenthal's work permit had expired.
1

On this appeal it is Rosenthal's primary contention that he has the right to work in the
gaming industry, and that this right has been denied without due process of law.
1. Following the Rosenthal decision by this court the 1977 legislature amended the
Gaming Control Act. (The legislature also amended the Act in 1979. All references herein are
to the 1977 enactments.) A portion of the reworded Act, NRS 463.165 and 463.560, provides
that if an employee required to be licensed is denied a license because of lack of good
character, honesty or integrity, the gaming licensee by whom he is employed shall terminate
his employment upon notification by registered or certified mail to the licensee of that action.
[Headnote 2]
Such an automatic revocation of one's privilege to work as a gaming employee in a
capacity other than that of a key employee was condemned by this court in the first Rosenthal
case under statutes and regulations then in effect. In our view NRS 463.165 and 463.560 are
equally infirm for want of procedural due process.
[Headnote 3]
Here, as in the first Rosenthal case, the hearing before the Board and Commission was
focused upon the suitability of Rosenthal to be licensed as a key employee. His right to work
in a capacity other than that of a key employee was not in issue at all. We therefore conclude
that Rosenthal may continue to enjoy a work permit as a gaming employee. As in the first
case, our conclusion shall not be construed to preclude further action by the gaming
authorities to revoke his work permit should they deem such action advisable.
[Headnote 4]
2. Rosenthal interposed objection to the hearing before the Gaming Control Board and the
Gaming Commission in joint session.
____________________

1
The finding that Rosenthal's work permit had expired appears to have been a gratuitous act on the part of the
district court. His work permit could only expire if he failed to work as a gaming employee for a period of 90
days. NRS 463.337(10). The finding is inconsistent with and contradicts the fundamental holding of the court
that Rosenthal was so involved in gaming that he qualified as a key employee.
session. The statutory procedures do not appear to contemplate a hearing before the two
bodies in joint session.
The Gaming Control Board performs an investigatory function, and makes
recommendations to the Gaming Commission. NRS 463.210. If the Board recommends
denial, it should file written reasons for its recommendation with the Commission. NRS
463.210(2). The Commission may deny the application, remand the matter back to the Board
for further investigation, or grant approval. NRS 463.220(4). If the Gaming Commission is
not satisfied that the applicant is qualified for licensing, the Gaming Commission may
conduct a hearing. NRS 463.220(5).
[Headnote 5]
The regulatory scheme appears to contemplate that proceedings before the Commission
shall be subsequent to and separate from proceedings before the Board. However, this record
does not disclose prejudice to Rosenthal by reason of the joint meeting of the two bodies.
Each body deliberated and voted separately. Consequently, we conclude that the fact of a
joint hearing provides no basis for this court to annul the administrative determination.
3. We need not consider other assigned errors.
The judgment of the district court is affirmed in so far as it upholds the decision of the
Nevada Gaming Commission that Rosenthal, as a key employee, is not suitable to be
licensed. That part of the judgment which affirms an automatic revocation of Rosenthal's
work permit is reversed and set aside.
Mowbray, C. J., and Batjer, J., concur.
I am in accord with the views expressed in the majority opinion. However, I wish to add a
note regarding our affirmance of that part of the trial court's grant of declaratory relief to
respondents, which upheld the Nevada Gaming Commission's denial of appellant's
application for a gaming license and our reversal of the determination concerning the work
permit.
The gaming industry is one which is subject to complete and careful control by the state
due to criminal elements commonly involved in the industry. Nevada Tax Comm'n v. Hicks,
73 Nev. 115, 119, 310 P.2d 852, 854 (1957). Thus, individuals desiring to be employed by or
to operate a business in the industry are necessarily required to submit to rigid investigation
and regulation. That degree of scrutiny increases when an individual occupies a key position
in the industry.
Here, the record shows inter alia that Rosenthal appeared at the payoff window of the
racebook when a gaming official questioned the racebook's refusal to pay a wager; that
Rosenthal questioned gaming officials' authority to examine work permits; that he was
observed standing in the casino pit; and that he telephoned gaming officials to complain
about gaming agents and accompanied Stardust employees to United Coin to view a new
type of electronic scoreboard.
questioned the racebook's refusal to pay a wager; that Rosenthal questioned gaming officials'
authority to examine work permits; that he was observed standing in the casino pit; and that
he telephoned gaming officials to complain about gaming agents and accompanied Stardust
employees to United Coin to view a new type of electronic scoreboard. I agree with the
Gaming Commission's determination, as characterized by the majority, that Rosenthal
continued to significantly influence gaming. I too believe that there was cause for the
Commission's summoning of Rosenthal to submit an application for a gaming license and
that there existed evidence to support a determination that Rosenthal was a key employee and
was unsuitable for licensing.
Moreover, in my view, the legislature could properly conclude that a person who cannot
meet the requirements to occupy a key position with an employer, cannot be employed in any
position by that employer and remain divorced from the decisions made in running the
gaming business of that employer. As such, our statutes can be read to prohibit further
employment in any capacity of a person whose application for a license to be employed in a
key position is denied. Nevertheless, although it is convincingly argued that the statutes
themselves provide sufficient notice of the result of a denial of an application and the hearing
for the license is a sufficient hearing for the work permit revocation, I also concur with the
majority that specific notice and an opportunity to be heard are preconditions to revocation of
this existing right. State v. Rosenthal, 93 Nev. at 46, 559 P.2d at 837. See NRS 463.337.
Gunderson, J., concurring in part:
I can agree that NRS 463.165 and 463.560 are infirm for want of procedural due process.
Thus, I can agree that Mr. Rosenthal may continue to enjoy a work permit as a gaming
employee.
I can also agree Nevada's statutory scheme, by which gaming is regulated, contemplates
that proceedings of the Commission shall be subsequent to and separate from proceedings
before the Board. However, this being so, I am unsure how the conduct of joint proceedings,
contrary to the regulatory scheme, may be viewed as harmless error. If I were only able to
grasp that point, I could endorse the majority opinion.
____________

Nevada Reports 1980 (96 Nev.) PDF

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Nevada Reports 1980 (96 Nev.) PDF

Uploaded by

Copyright:

Available Formats

96 Nev.

You might also like