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98 Nev.

1, 1 (1982)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
VOLUME 98
____________
98 Nev. 1, 1 (1982) McMichael v. State
JOHN WILLIAM McMICHAEL, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 12880
January 6, 1982 638 P.2d 402
Appeal from judgment of conviction. Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Defendant was convicted in the district court of sexual assault and he appealed. The
Supreme Court held that: (1) in view of overwhelming physical and oral evidence, trial court
did not err prejudicially in not permitting defense to cross-examine victim regarding sexual
intercourse with her boyfriend just prior to time of alleged rape, and (2) it was error to admit
testimony of another woman who allegedly had been raped by defendant, where defendant
had been tried for the offense and acquitted, but since victim's testimony, medical evidence of
her sexual assault and physical evidence created an overwhelming inference of guilt, the error
in admitting evidence of the prior conduct was harmless.
Affirmed.
98 Nev. 1, 2 (1982) McMichael v. State
Morgan D. Harris, Public Defender, Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
Clark County for Respondent.
1. Criminal Law.
In prosecution for sexual assault, in view of overwhelming physical and oral evidence, trial court did not
err prejudicially in not permitting defense to cross-examine victim regarding sexual intercourse with her
boyfriend just prior to time of alleged rape.
2. Criminal Law.
In prosecution for sexual assault, it was error to admit testimony of another woman who allegedly had
been raped by defendant, where defendant had been tried for the offense and acquitted, but since victim's
testimony, medical evidence of her sexual assault and physical evidence created an overwhelming inference
of guilt, the error in admitting evidence of the prior conduct was harmless.
3. Criminal Law.
Evidence of accused's prior criminal conduct presents great danger of prejudice and is only admissible
where its prejudice is outweighed by its relevance to a material issue other than accused's bad character or
criminal propensities.
4. Criminal Law.
Supreme Court will not reverse judgment unless error has affected substantial rights of accused.
OPINION
Per Curiam:
A jury found John William McMichael guilty of six counts of sexual assault. He seeks
reversal claiming that the district judge erred in not permitting him to cross examine the
victim regarding sexual intercourse with her boy friend and in receiving in evidence the
testimony of another woman who had also been allegedly raped by McMichael.
THE FACTS
On the night of the crime, the victim believing she had missed her bus, accepted a ride
from a stranger who offered to drive her home. His car was a red Mustang with an out of state
license, no rear window, holes in the roof and bore a sign on the dash that read, gas, grass or
ass--nobody rides free. The driver did not take the victim home. Instead, he grabbed her by
the hair, forced her to the floor and ordered her to remove her clothing. He drove to a
secluded area and raped her, including forcible anal and oral intercourse. During the act of
oral sex, the victim vomited in the stranger's lap.
98 Nev. 1, 3 (1982) McMichael v. State
the victim vomited in the stranger's lap. After completion of the assaults, the stranger released
the victim. She immediately called the police and gave them a description of her assailant
who was soon apprehended in the vicinity driving the Mustang which bore all the distinctive
features described above. The victim positively identified the stranger as her assailant,
McMichael the appellant herein. McMichael had what appeared to be vomit on his trousers;
pubic and head hairs similar to the victim's were found on McMichael's body. A medical
examination of the victim revealed a reddening about the entrance to the vagina, multiple
punctuate hemorrhages on her cervix, tears around her rectum, and sperm and acid
phosphatase, a chemical found in semen, in both her vagina and rectum.
McMichael's principal defense was that he had a vasectomy; that his semen contained no
sperm. McMichael's stepfather also testified that on the night of the rape he was staying in
McMichael's apartment; that he met a woman there by the name of Rose, the victim's name,
whom McMichael drove to her home.
The State in rebuttal, urging that the consent of the victim was in issue, offered the
testimony of another woman whom McMichael had allegedly raped under similar
circumstances three years earlier. The district judge admitted the testimony over McMichael's
objection.
THE VICTIM'S PRIOR SEXUAL CONDUCT
[Headnote 1]
McMichael claims the district judge committed reversible error in not permitting him to
question the victim regarding sexual intercourse with her boy friend just prior to the rape.
Since he had a vasectomy, McMichael wished to prove that it was the boy friend's sperm, not
his, that was found in the victim's vagina and rectum. The district court denied McMichael's
request. There was ample evidence, other than that relating to the presence of the sperm, that
sexual assaults had occurred. Under the facts presented in this case, where the evidence both
physical and oral, is so overwhelming, we cannot hold that the court erred prejudicially in its
ruling.
EVIDENCE OF THE PRIOR RAPE
[Headnote 2]
On rebuttal, the State introduced the testimony of another woman who had allegedly been
raped by McMichael under similar circumstances. McMichael had been tried for the offense
and acquitted.
98 Nev. 1, 4 (1982) McMichael v. State
offense and acquitted. It was error to admit the woman's testimony in this case. See State v.
Little, 350 P.2d 756 (Ariz. 1960); State v. Wakefield, 278 N. W. 2d 307 (Minn. 1979); State
v. Kerwin, 340 A.2d 45 (Vt. 1975).
[Headnote 3]
Evidence of an accused's prior criminal conduct presents a great danger of prejudice, and
is only admissible where its prejudice is outweighed by its relevance to a material issue other
than the accused's bad character or criminal propensities. McMichael v. State, 94 Nev. 184,
577 P.2d 398 (1978). The prejudice is compounded when the accused was previously tried
and acquitted of a crime, evidence of which is offered at a later trial for a different crime. It is
unfair for the state, having once presented its evidence and failed to obtain a conviction, to
bring in the same evidence at a later trial. Although we do not hold that the introduction of
such evidence violates the double jeopardy clause of the fifth amendment
1
, we do hold that
the considerations of fair play underlying the double jeopardy principle militate strongly
against the evidence's admissibility.
[Headnote 4]
However, this court will not reverse a judgment unless the error has affected the
substantial rights of the accused. Where the evidence of guilt is great as in the instant case
error will be deemed harmless. Jacobs v. State, 91 Nev. 155, 532 P.2d 1034 (1975); State v.
Skaug, 63 Nev. 59, 161 P.2d 708 (1945). Here, the victim's testimony, the medical evidence
of her sexual assault, and the physical evidence, created an overwhelming inference of guilt.
Therefore, we find that the error in admitting the evidence of appellant's prior conduct was
harmless.
Appellant's other assignments of error are without merit.
We affirm the judgment of conviction.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

1
But see Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972); Stuart v. State, 561 S. W. 2d 181
(Tex.Crim.App. 1978).

2
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable Cameron M. Batjer, who voluntarily disqualified himself in this case. Nev. Const., art. 6, 19; SCR
10.
____________
98 Nev. 5, 5 (1982) Boren v. City of North Las Vegas
IRVING BOREN and DIVERSIFIED CAPITAL CORPORATION, a Delaware Corporation,
Appellants, v. CITY OF NORTH LAS VEGAS, NEVADA, a
Municipal Corporation, Respondent.
No. 12085
January 6, 1982 638 P.2d 404
Appeal from an order denying a motion to dismiss for want of prosecution, Second
Judicial District Court, Washoe County; Grant L. Bowen, Judge.
The Supreme Court held that period during which parties were prevented from bringing
action to trial by reason of stay order was not to be counted in determining whether five-year
period of rule governing dismissals for failure to prosecute had elapsed.
Affirmed.
Chubb & Silverman, Sparks, for Appellants.
George E. Franklin, City Attorney, North Las Vegas, for Respondent.
Pretrial Procedure.
Period during which parties were prevented from bringing action to trial by reason of stay order was not
to be counted in determining whether five-year period of rule governing dismissals for failure to prosecute
had elapsed. NRCP 41(e).
OPINION
Per Curiam:
The sole issue we consider in this case is whether an action must be dismissed if it was not
brought to trial within five years because of a court order staying proceedings.
The action in the case before us was not brought to trial within the five-year period
specified in Nevada Rule of Civil Procedure 41(e). Appellant moved to dismiss the action for
want of prosecution. The trial court denied the motion. Appellant claims that dismissal is
mandatory notwithstanding the fact that proceedings had been stayed for more than four years
immediately preceding the motion to dismiss.
We agree with the decision of the trial court. For a court to prohibit the parties from going
to trial and then to dismiss their action for failure to bring it to trial is so obviously unfair and
unjust as to be unarguable.
98 Nev. 5, 6 (1982) Boren v. City of North Las Vegas
unjust as to be unarguable. Appellants agree, but contend that the city as plaintiff had some
kind of duty of diligence in seeking vacation of the stay order. The city did move to have the
stay order vacated and this was opposed by appellant. We consider this immaterial, however,
for we would be hard-pressed to formulate a rule describing the degree of diligence required
under such circumstances. Instead we adopt the following rule: Any period during which the
parties are prevented from bringing an action to trial by reason of a stay order shall not be
computed in determining the five-year period of Rule 41(e).
Affirmed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 6, 6 (1982) Maley v. State Bar of Nevada
MICHAEL F. MALEY, Appellant, v. STATE
BAR OF NEVADA, Respondent.
No. 13612
January 15, 1982 639 P.2d 68
ORDER OF DISBARMENT
Pursuant to SCR 102(1) and 105(3), the recommendation of the State Bar of Nevada
Southern Disciplinary Board is affirmed.
1
Accordingly, it is hereby
ORDERED that Michael F. Maley is disbarred and prohibited from the further practice of
law in Nevada, and that the name of Michael F. Maley be stricken from the rolls of attorneys
licensed to practice in Nevada. We further
ORDER that Michael F. Maley shall pay to the State Bar of Nevada the costs incurred as a
result of the disciplinary proceedings instituted in this matter.
____________________

1
The recommendation of disbarment was automatically appealed to this court pursuant to SCR 105(3)(b). On
December 7, 1981, Maley was ordered to show cause why the appeal should not be dismissed as abandoned. No
response to our order was filed by Maley. Thus, on December 23, 1981, the appeal was dismissed. Nevertheless,
the present order of disbarment follows our independent review of the record of disbarment proceedings below.
____________
98 Nev. 7, 7 (1982) A. P. Ross Enter. v. Hynds Plumbing
A. P. ROSS ENTERPRISES, INC., ILLINI CONSTRUCTION, INC., Joseph T. Moretti,
Renate Caithamer, Keith Maring, Herbert Champagne and Irving Adams, Individually, and as
Limited Partners of Hotspurs Associates, A Limited Partnership, Robert Marsico, Andrew
Anka, Douglas Buffone, Stephen Lombardi, Jr., and Martin Gutilla, Individually and as
General Partners of Hotspurs Associates, HOTSPURS ASSOCIATES, A Limited
Partnership, Charles J. LaCreco, dba SUNSET CONSTRUCTION COMPANY, and
HOTSPURS OF LAS VEGAS, INC., a Corporation, Appellants, v. HYNDS PLUMBING &
HEATING COMPANY, Respondent.
No. 12196
January 28, 1982 639 P.2d 526
Appeal from district court judgment in favor of plaintiff in an action for damages secured
by a mechanic's lien; Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
The Supreme Court, held that issue of validity of mechanic's lien was foreclosed, where
plaintiff had been denied significant information and discovery on premise that lien would
not be challenged and was led to believe, on receiving defendants' pretrial statement, that it
would not be required to establish procedures followed in effecting the lien; thus it would
have been unjust to depart from pretrial statements and force major new issue of validity of
the lien upon plaintiff.
Affirmed.
[Rehearing denied May 27, 1982]
Morse-Foley, Las Vegas, for Appellants.
Jones & Holt, Las Vegas, for Respondent.
1. Pretrial Procedure.
Issue of validity of mechanic's lien was foreclosed, where plaintiff had been denied significant
information and discovery on premise that lien would not be challenged and was led to believe, on
receiving defendants' pretrial statement, that it would not be required to establish procedures followed in
effecting the lien; thus it would have been unjust to depart from pretrial statements and force major new
issue of validity of the lien upon plaintiff. NRCP 16.
2. Appeal and Error; Mechanics' Liens.
Award for lost profits secured by mechanic's lien was improper, but error was harmless, where verdict
was presently secured by supersedeas bond and the mechanic's lien was no longer implicated in the award.
NRS 99.040, 108.237.
98 Nev. 7, 8 (1982) A. P. Ross Enter. v. Hynds Plumbing
OPINION
Per Curiam:
Hynds Plumbing & Heating Company, a plumbing subcontractor, recovered judgment
against two general contractors and a number of property owners for certain labor and
materials furnished to the property. Hynds was awarded a total of $33,980.35 for breach of
contract and for the reasonable value of labor and materials furnished. The breach of contract
award included compensation for lost profits and for prejudgment interest. In addition, the
judgment established the existence of a mechanic's lien in favor of Hynds and included an
award of attorneys' fees thereunder. The entire amount of damages was secured by the
mechanic's lien.
THE MECHANIC'S LIEN
Appellants first challenge the validity of the mechanic's lien since they claim that
respondent did not follow appropriate procedure in perfecting the lien. We do not find it
necessary to discuss the propriety of respondent's procedure in perfecting the lien since
consideration of the issue was waived by appellants.
During discovery respondents requested documents and other information concerning the
personal assets of the property owners. Appellants twice refused to produce the information
on the ground that the mechanic's lien was responsible for any liability and that the lien was
not in dispute before this court. Appellants also submitted a pre-trial statement very similar
to that submitted by respondent. Both parties indicated that the legal and factual issues in
dispute concerned breach of contract and monies due respondent. It was not until trial that
appellants attempted to challenge the validity of the lien. Although the court apparently
admitted some evidence in this regard, it indicated that the issue was foreclosed by the
pre-trial statements.
Appellants challenge the court's ruling on the grounds that their behavior did not constitute
waiver and that even if they had waived the issue, justice mandated disregard of the pre-trial
statements. We disagree with both contentions. A major objective of pre-trial procedure is to
eliminate secrets and surprises at trial. . . . Crist v. Goody, 507 P.2d 478 (Colo.App. 1972).
Under the facts of this case, the purpose of adhering to pre-trial procedure would have been
thwarted had the court allowed introduction of a new issue. Respondent had been denied
significant information in discovery on the premise that the lien would not be challenged.
98 Nev. 7, 9 (1982) A. P. Ross Enter. v. Hynds Plumbing
the lien would not be challenged. Moreover, respondent was led to believe, on receiving
appellants' pre-trial statement, that it would not be required to establish the procedures
followed in effecting the lien. It would have been unfair at trial to force respondent to provide
evidence on an entirely unexpected issue.
1

[Headnote 1]
It is true as appellants claim that the trial court may depart from its pre-trial order to
prevent injustice. NRCP 16. Absent a manifest abuse of discretion, however, the court's
refusal to do so should be upheld. Tillotson v. Abbott, 472 P.2d 240, 244 (Kan. 1970). In the
case before us, appellants were in no way prejudiced by an unfair pre-trial order.
2
Appellants
had clearly specified their view of the contested matters and were in essential agreement with
respondent. It would, however, have been unjust to depart from the pre-trial statements and
force a major new issue upon the respondent. The court therefore properly ruled that the issue
of the validity of the lien had been foreclosed.
AWARD FOR ATTORNEYS' FEES AND
PREJUDGMENT INTEREST
Appellants challenge the award for attorneys' fees and the award for prejudgment interest
on the sole premise that the mechanic's lien was invalid. Appellants concede that NRS
108.237 authorizes the payment of attorneys' fees and prejudgment interest in actions on
mechanic's liens. Since we have concluded that the court properly affirmed the existence of a
mechanic's lien, the award for both attorneys' fees and prejudgment interest must
stand.3
____________________

1
Authority from other jurisdictions supports this conclusion. See United Bonding Ins. Co. v. Castle, 444 P.2d
454, 457 (Alas. 1968) (a bonding company's response to an interrogatory that it had furnished a bond precluded
it from challenging the validity of the bond at trial); American Nat. Rent-a-Car, Inc. v. McNally, 445 P.2d 91,
95-96 (Ariz.App. 1968) (in the absence of a formal pre-trial order, parties may be bound by the record of the
pre-trial conference); Batson v. Strehlow, 441 P.2d 101 (Cal. 1968) (pre-trial statement may be binding on the
parties when the statements are adopted by the trial court and made part of the order).

2
Appellants rely on cases which are not on point. See Plastino v. Mills, 236 F.2d 32 (9th Cir. 1956) (pre-trial
order prepared by attorneys was so vague that trial court was not obliged to follow it); Fruehauf Trailer Div. v.
Thronton, 366 N.E.2d 21 (Ind. App. 1977) (parties were released from pre-trial order since there was no record
of a pre-trial conference and the order was not entered until the day of the trial); Pacific Indem. Co. v. Broward
County, 465 F.2d 99 (5th Cir. 1972) (notice of claim issue was properly considered even though it was omitted
from the pre-trial statement since the parties had raised the issue in an earlier pleading and in a motion to
dismiss).
98 Nev. 7, 10 (1982) A. P. Ross Enter. v. Hynds Plumbing
mechanic's lien, the award for both attorneys' fees and prejudgment interest must stand.
3

BREACH OF CONTRACT
Appellants' claim that respondent failed to support its claim for breach of contract is
without merit. There is ample evidence in the record for the court to have found in favor of
the respondent. We therefore will not disturb the finding of the lower court. See In re Gordon,
40 Nev. 300, 161 P. 717 (1916).
AWARD OF DAMAGES FOR LOST PROFITS
[Headnote 2]
Appellants finally assert that the award for lost profits secured by a mechanic's lien is
improper. We agree. The mechanic's lien statute merely contemplates reimbursement for
materials and labor. That interpretation is consistent with the view that the statute was
designed to secure payment to those who perform labor or furnish material to improve the
property of the owner. Vaughn Materials v. Meadowvale Homes, 84 Nev. 227, 232, 438
P.2d 822, 825 (1968) (Batjer, J., dissenting). Authority from other jurisdictions is in accord.
See Lenslite Co. v. Zocher, 388 P.2d 421 (Ariz. 1964); Texas Bank and Trust Co. v.
Campbell Bros., Inc., 569 S.W.2d 35 (Tex.Ct.App. 1978). Respondent cites no authority to
the contrary.
Despite the court's order to secure the award for lost profits under the mechanic's lien, we
find the error to be harmless. Respondent states, and appellants do not deny, that the verdict is
presently secured by a supersedeas bond. Since the mechanic's lien is no longer implicated in
the award, we see no harm to the appellants.
The judgment of the court is affirmed.
Gunderson, C. J., and Manoukian and Springer, JJ., and Griffin, D. J.,
4
and McKibben, D.
J.,
5
concur.
____________________

3
Even if the lien had not been properly established by the court, respondent would have been entitled to
prejudgment interest under its contract action. See NRS 99.040; State Farm Mut. Auto. v. Christensen, 88 Nev.
160, 494 P.2d 552 (1972).

4
The Governor designated Honorable Michael R. Griffin, District Judge of the First Judicial District, to sit in
this case in place of The Honorable John Mowbray, who voluntarily recused himself. Nev. Const., art. 6, 4.

5
The Governor designated Honorable Howard D. McKibben, District Judge of the Ninth Judicial District, to
sit in this case in place of The Honorable Cameron Batjer. Nev. Const., art. 6, 4.
____________
98 Nev. 11, 11 (1982) Long v. Towne
HELEN LONG and RAY LONG, Appellants, v. DOROTHY A. TOWNE and STEAMBOAT
MOBILE HOMEOWNERS ASSOCIATION, Respondents.
No. 12849
January 28, 1982 639 P.2d 528
Appeal from summary judgment, Second Judicial District Court, Washoe County; Grant
L. Bowen, Judge.
Purchasers of mobile home lot brought an action against vendor and mobile home owners
association seeking to set aside a lien foreclosure sale conducted in order to recover the
amount of past-due assessments assessed by association. The district court granted summary
judgment for defendants, and purchasers appealed. The Supreme Court held that: (1)
constructive fraud was not committed in holding a lien foreclosure sale where purchasers
reposed no special confidence in vendor or in homeowners' association; (2) allegation that the
price paid at the sale was inadequate was not sufficient to justify setting aside the sale where
there was no showing of fraud, unfairness or oppression; and (3) the sale of purchasers' lot
was not a forfeiture where it was conducted under authority of association's declaration of
covenants, conditions and restrictions and in compliance with the governing statute, and
where purchasers had actual notice of the sale and received the excess of the sale price over
the amount of association's lien and costs.
Affirmed.
Paul A. Richards, Reno, for Appellants.
Woodburn, Wedge, Blakey & Jeppson, by Suellen E. Fulstone and William E. Peterson,
Reno, for Respondents.
1. Fraud.
Constructive fraud is the breach of some legal or equitable duty which, irrespective of moral guilt, the
law declares fraudulent because of its tendency to deceive others or to violate confidence; constructive
fraud is characterized by a breach of duty arising out of a fiduciary or confidential relationship.
2. Fraud.
Vendor of mobile home lot and mobile home owners association did not commit constructive fraud in
holding lien foreclosure sale of purchasers' lot for failure to pay association's monthly assessments where
purchasers reposed no special confidence in vendor or in homeowners association.
3. Landlord and Tenant.
Allegation that price paid at lien foreclosure sale of lot in a mobile home park was inadequate
was not sufficient to justify setting aside the sale where there was no showing of
fraud, unfairness or oppression.
98 Nev. 11, 12 (1982) Long v. Towne
mobile home park was inadequate was not sufficient to justify setting aside the sale where there was no
showing of fraud, unfairness or oppression.
4. Landlord and Tenant.
Lien foreclosure sale of mobile home lot conducted to recover amount of past due assessments assessed
by mobile home owners association was not a forfeiture where sale was conducted under authority of
association's declaration of covenants, conditions and restrictions, and in compliance with statute, and
where purchasers had notice of the sale and received excess of sale price over amount of association's lien
and costs. NRS 107.080.
OPINION
Per Curiam:
Appellants Helen and Ray Long purchased a lot in Steamboat Springs Estates, a mobile
home park, from respondent Dorothy A. Towne.
1
When they signed the contract of sale, the
Longs received a copy of the Declaration of Covenants, Conditions and Restrictions
(CC&Rs). Among other things, the CC&Rs established the Steamboat Mobile Homeowners
Association (the Association), respondent herein, and gave the Association authority to assess
and collect fees. The Association was also given authority to file a lien on a member's
property for failure to pay the assessment and to enforce the lien by a foreclosure sale.
2

Mrs. Long repeatedly refused to pay the monthly assessment of $10.00. In January 1978,
the Association filed a lien against the Longs' property for the amount of the past due
assessments. Because the assessments remained unpaid, on March 8, 1978, the Association
served upon Mrs. Long a notice of default and election to sell. Four months later, on July 17,
1978, the Association served a notice of sale. The sale was conducted on August 17, 1978,
and Towne purchased the property for $3,000.00.
3

On September 15, 1978, the Longs filed this lawsuit seeking to set aside the lien
foreclosure sale. The district court granted summary judgment in respondents' favor. In this
appeal, the Longs do not dispute the fact that all notices to them were properly given and that
the sale was properly conducted. They contend that Mrs. Long was confused and that she
thought that by paying off the deed of trust to Towne, she had also satisfied the Association's
lien.
____________________

1
The Longs are separated and Mr. Long never resided on the property.

2
Nevada law expressly permits enforcement of assessment liens by sale by the organization. NRS 278A.150;
278A.160; 107.030; 107.080.

3
On June 29, 1978, Mrs Long had paid Towne in full for the lot.
98 Nev. 11, 13 (1982) Long v. Towne
[Headnote 1]
1. The Longs first contend that respondents Towne and the Association committed
constructive fraud in holding the lien foreclosure sale. Constructive fraud is the breach of
some legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent
because of its tendency to deceive others or to violate confidence. Sec. Nat. Bank v. Peters,
Writer & Christensen, Inc., 569 P.2d 875 (Colo.App. 1977); Loucks v. McCormick, 424 P.2d
555 (Kan. 1967); Braselton v. Nicolas & Morris, 557 S.W.2d 187 (Tex.Civ.App. 1977).
Constructive fraud is characterized by a breach of duty arising out of a fiduciary or
confidential relationship. In re Guardianship of Chandos, 504 P. 2d 524 (Ariz.App. 1972). A
confidential or fiduciary relationship exists when one reposes a special confidence in
another so that the latter, in equity and good conscience, is bound to act in good faith and
with due regard to the interests of the one reposing the confidence. Paskvan v. Mesich, 455
P.2d 229 (Alaska 1969); Stevens v. Marco, 305 P.2d 669 (Cal.App. 1956); Ford v. Guarantee
Abstract and Title Co., Inc., 553 P.2d 254 (Kan. 1976).
[Headnote 2]
In this case, the Longs reposed no special confidence in Towne. In fact, Mrs. Long stated
that she did not trust Towne. Moreover, the relationship between the Longs and Towne was
no more than that of vendor-vendee. Generally, no fiduciary obligations exist between a buyer
and seller of property. See Klinger v. Hummel, 464 P.2d 676 (Ariz.App. 1970); Dugan v.
Jones, 615 P.2d 1239 (Utah 1980). The evidence is equally clear that the Longs reposed no
confidence in the Association. Mrs. Long termed her refusal to pay the Association's
assessments an act of rebellion. Furthermore, neither Towne nor the Association
misrepresented or concealed any material fact. The Longs cannot prevail on their constructive
fraud theory.
[Headnote 3]
2. In conjunction with their claim of constructive fraud, the Longs contend that the price
paid at the foreclosure sale was inadequate. Mere inadequacy of price is not sufficient to
justify setting aside a foreclosure sale, absent a showing of fraud, unfairness or oppression.
Turner v. Dewco Services, Inc., 87 Nev. 14, 479 P.2d 462 (1971); Brunzell v. Woodbury, 85
Nev. 29, 449 P.2d 158 (1969); Golden v. Tomiyasu, 79 Nev. 503, 387 P.2d 989 (1963), cert.
denied, 382 U.S. 844 (1965). The Longs have made no such showing in this case.
[Headnote 4]
3. Finally, citing Slobe v. Kirby Stone, Inc., 84 Nev. 700, 447 P.2d 491 {196S); Moore v.
Prindle, S0 Nev. 369, 394 P.2d 352 {1964); and Mosso v. Lee Et Al.,
98 Nev. 11, 14 (1982) Long v. Towne
447 P.2d 491 (1968); Moore v. Prindle, 80 Nev. 369, 394 P.2d 352 (1964); and Mosso v. Lee
Et Al., 53 Nev. 176, 295 P. 776 (1931), the Longs contend that the sale of their lot was a
forfeiture. These cases are clearly distinguishable in that each involved a contract with a
forfeiture clause allowing the seller, upon default, to recover the land and retain all previously
made payments. Here, the lien foreclosure sale was conducted under authority of the CC&Rs
and in compliance with NRS 107.080. The Longs had actual notice of the sale and received
the excess of the sale price over the amount of the Association's lien and costs. There simply
was no forfeiture in this case. In fact, in Moore v. Prindle, supra, this court implied that a lien
foreclosure sale conducted in accordance with NRS 107.080 is an equitable alternative to
forfeiture. 80 Nev. at 377, 394 P.2d at 357.
Affirmed.
____________
98 Nev. 14, 14 (1982) Colley v. State
MICHAEL EUGENE COLLEY, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12464
January 28, 1982 639 P.2d 530
Appeal from conviction of attempted murder and battery with intent to commit sexual
assault with substantial bodily harm. First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
The Supreme Court held that: (1) response by prosecutor to testimony by defendant that he
was with his fiancee on the evening in question, that prosecutor believed that the fiancee was
originally named as one of the alibi witnesses, was not improper; (2) trial court properly
denied defense motion for an order appointing a psychiatrist to examine prosecution witness
who claimed defendant had raped her eight days before the prosecutrix was attacked, even
though her testimony was not substantially corroborated; and (3) trial court properly denied
defense motion to exclude testimony of State's witness that she had been choked and raped by
defendant eight days before the prosecutrix was attacked, because the testimony was relevant
to the issue of defendant's intent and identity, in view of fact that the two attacks occurred a
fraction of a mile away from each other and were only eight days apart.
Affirmed.
William N. Dunseath, Public Defender, Michael B. McDonald, N. Patrick Flanagan, and
Jane McKenna, Deputy Public Defenders, Washoe County, for Appellant.
98 Nev. 14, 15 (1982) Colley v. State
Richard H. Bryan, Attorney General, William A. Maddox, District Attorney, Carson City,
for Respondent.
1. Criminal Law.
Response by prosecutor to testimony by defendant that he was with his fiancee on the evening in
question, that prosecutor believed that the fiancee was originally named as one of the alibi witnesses, was
not improper because it was defendant who injected his fiancee into the testimony as an alibi witness and,
because she was his fiancee, it was far more appropriate that she be called by the defense in corroboration
than by the State.
2. Witnesses.
Trial court, in prosecution for attempted murder and battery with intent to commit sexual assault resulting
in substantial bodily harm, properly denied motion by defendant to appoint a psychiatrist to examine the
victim, because her testimony was amply corroborated, and her emotional state was not subject to serious
attack.
3. Witnesses.
Trial court, in prosecution for attempted murder and battery with intent to commit sexual assault resulting
in substantial bodily harm, properly denied defense motion for an order appointing a psychiatrist to
examine prosecution witness who claimed defendant had raped her eight days before the prosecutrix was
attacked, even though her testimony was not substantially corroborated, because the jury was able to
observe and evaluate witness' emotional condition during her testimony and cross-examination, and
because during questioning by defense counsel, she admitted that she had a drug problem, was seeing a
psychiatrist and had been suicidal, so that defendant suffered no prejudice from the denial of his motion.
4. Criminal Law.
Trial court, in prosecution for attempted murder and battery with intent to commit sexual assault resulting
in substantial bodily harm, properly denied defense motion to exclude testimony of State's witness that she
had been choked and raped by defendant eight days before the prosecutrix was attacked, because the
testimony was relevant to the issue of defendant's intent and identity, in view of fact that the two attacks
occurred a fraction of a mile away from each other and were only eight days apart. NRS 48.045, subd. 2.
5. Homicide; Rape.
Evidence that first, upon stopping car, defendant told victim that he was going to kill her and grabbed her
throat, and that subsequently, after defendant first apologized, he suddenly threw the victim down, followed
her when she ran away and stabbed her several times, during which time victim's pants and underpants
were torn off, supported a verdict of attempted murder for the former and verdict of battery with intent to
commit sexual assault which resulted in substantial injury to the victim with respect to the latter, thereby
supporting conclusion that defendant's motive changed, and justifying a conviction for the two separate
crimes.
6. Criminal Law.
Statute directing jury to choose between a sentence of life with the possibility of parole or life without
such possibility if it finds defendant guilty of a battery with intent to commit sexual assault resulting in
substantial bodily harm did not violate defendant's Sixth Amendment right to counsel on the basis that, in
closing argument, the defense attorney is compelled to argue both innocence and
mitigation, because closing defense argument was based solely on innocence, so that
since jury sentenced defendant to lesser of the two sentence alternatives, no
infirmity could be found from defense counsel's decision not to argue mitigation.
98 Nev. 14, 16 (1982) Colley v. State
the defense attorney is compelled to argue both innocence and mitigation, because closing defense
argument was based solely on innocence, so that since jury sentenced defendant to lesser of the two
sentence alternatives, no infirmity could be found from defense counsel's decision not to argue mitigation.
U.S.C.A.Const. Amend. 6; NRS 200.400, subd. 3.
OPINION
Per Curiam:
Appellant Colley was convicted of attempted murder and battery with intent to commit
sexual assault resulting in substantial bodily harm. On appeal he raises five assignments of
error; none warrants reversal of the conviction.
[Headnote 1]
1. Prosecutorial Comment. Colley gave alibi testimony in his own defense, detailing his
actions on the evening the crime occurred. Colley named several friends whom he claimed
had been with him. One of these was Colley's fiancee, Debra. On cross-examination, the
prosecutor asked Colley where Debra was. Colley responded that he would stand the fifth on
that. Defense counsel objected to the line of questioning as being irrelevant. In response, the
prosecutor stated, I believe that Debra . . . was originally named as one of the alibi
witnesses. The defense moved for a mistrial; the motion was denied.
Colley argues that the district court erred in denying the motion for a mistrial because the
prosecutor's statement impermissibly shifted the burden of persuasion to the defendant to
prove his innocence by forcing him to explain why Debra did not testify at trial.
The argument is without merit. Although it is ordinarily impermissible to comment on a
defendant's failure to call a witness, under the circumstances of this case the statement was
justified. It was Colley who injected Debra into the testimony as an alibi witness; and,
because she was his fiancee, it was far more appropriate that she be called by the defense in
corroboration than by the state. The trial court correctly denied the motion for a mistrial. State
v. Kelly, 306 A.2d 58 (N.H. 1973). Cf. Biederstadt v. State, 92 Nev. 80, 545 P.2d 202 (1976).
[Headnotes 2, 3]
2. Denial of Psychiatric Examination of State's Witness. Before trial the district judge
denied a defense motion for an order appointing a psychiatrist to examine both the victim and
Evelena, another prosecution witness who claimed Colley had raped her eight days before
the prosecutrix was attacked.
98 Nev. 14, 17 (1982) Colley v. State
Colley had raped her eight days before the prosecutrix was attacked. The motion was
correctly denied as to the victim. Her testimony was amply corroborated, and her emotional
state was not subject to serious attack. Washington v. State, 96 Nev. 305, 608 P.2d 1101
(1980). Evelena's testimony, however, was not substantially corroborated. Her testimony at
the preliminary hearing warranted speculation by the defense that she was emotionally
unstable. Still, we cannot hold that the trial court abused its discretion in declining to subject
Evelena to a psychiatric examination. Even though such an examination may have been
helpful to the defense, the jury was able to observe and evaluate Evelena's emotional
condition during her testimony on cross-examination. During questioning by defense counsel,
she admitted that she had a drug problem, was seeing a psychiatrist and had been suicidal.
Under these circumstances we do not believe appellant suffered prejudice from the denial of
his motion. Id. at 308, 608 P.2d at 1103.
[Headnote 4]
3. Evidence of the Prior Sexual Assault. Appellant also challenges the denial of his
motion to exclude the testimony of state's witness Evelena that she had been choked and
raped by Colley eight days before the prosecutrix was attacked.
The trial judge correctly determined that this testimony was relevant to the issues of
Colley's intent and identity. The enhanced battery charge required proof that Colley had
intended to assault the victim sexually. Evelena's testimony was relevant in proving Colley's
state of mind. Findley v. State, 94 Nev. 212, 577 P.2d 867 (1978). The two attacks occurred a
fraction of a mile away from each other and were only eight days apart. Under these
circumstances, we find no error in admitting the testimony. NRS 48.045(2).
[Headnote 5]
4. Double Punishment. Appellant claims that he may not be punished both for attempted
murder and for battery with intent to commit sexual assault resulting in great bodily harm.
Colley asserts that both convictions arose out of the same transaction. The record in this case,
however, establishes that two distinct crimes were committed, each arising out of a separate
transaction. First, upon stopping the car, Colley told the victim that he was going to kill her
and grabbed her throat. This evidence supports a verdict of attempted murder. Following this
episode the victim broke away and got out of the car, and Colley apparently apologized to
her. Thereafter he suddenly threw the victim down, saying You're so pretty. They
struggled; the victim ran away.
98 Nev. 14, 18 (1982) Colley v. State
struggled; the victim ran away. Colley then followed her and stabbed her several times.
During this second attack, the victim's pants and underpants were torn off. The attack
supports a verdict of battery with intent to commit sexual assault which resulted in substantial
injury to the victim. The evidence in the record supports the conclusion that Colley's motive
changed, justifying a conviction for the two separate crimes. See Litteral v. State, 97 Nev.
503, 634 P.2d 1226 (1981); Franko v. State, 94 Nev. 610, 584 P.2d 678 (1978).
[Headnote 6]
5. Sixth Amendment Violation. Colley attacks NRS 200.400(3), which directs the jury to
choose between a sentence of life with the possibility of parole or life without such
possibility, if it finds the defendant guilty of a battery with the intent to commit sexual assault
resulting in substantial bodily harm. It is argued that this statute violates the sixth amendment
right to counsel because, in closing argument, the defense attorney is compelled to argue both
innocence and mitigation. The defect in this argument is that Colley was not prejudiced. His
conviction remains unassailable because the closing defense argument was based solely on
innocence. Since the jury sentenced Colley to the lesser of the two sentence alternatives, no
infirmity can be found from defense counsel's decision not to argue mitigation.
The judgments of conviction are affirmed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Chief justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 18, 18 (1982) Aguilar v. State
JOSE JAIME AGUILAR, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12661
January 28, 1982 639 P.2d 533
Appeal from a judgment following a jury verdict of first degree murder and a sentence of
life without possibility of parole. Seventh Judicial District Court, Lincoln County; Merlyn H.
Hoyt, Judge.
The Supreme Court held that: (1) the prosecutor's incorrect reference to the defendant's
term in prison did not mandate reversal; {2) reference by a prosecution witness to
polygraph tests which were given to other suspects in the case did not constitute
reversible error; {3) the trial court properly refused to admit evidence of an exculpatory
letter written by the defendant after the crime was committed; {4) scientific evidence and
testimony of a forensic odontologist relating to identification of defendant's bite mark on
victim's body was properly admitted; and {5) the trial court did not abuse its discretion in
admitting photographs of the victim's body.
98 Nev. 18, 19 (1982) Aguilar v. State
reference to the defendant's term in prison did not mandate reversal; (2) reference by a
prosecution witness to polygraph tests which were given to other suspects in the case did not
constitute reversible error; (3) the trial court properly refused to admit evidence of an
exculpatory letter written by the defendant after the crime was committed; (4) scientific
evidence and testimony of a forensic odontologist relating to identification of defendant's bite
mark on victim's body was properly admitted; and (5) the trial court did not abuse its
discretion in admitting photographs of the victim's body.
Affirmed.
J. Gregory Damm, State Public Defender, and Robert Bork, Deputy Public Defender,
Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City; John McGimsey, District Attorney,
Lincoln County, for Respondent.
1. Criminal Law.
In murder prosecution, erroneous statement by prosecutor to jury that life in prison amounted to 15 years
did not mandate reversal of conviction where trial court instructed jury to disregard statement and
subsequently instructed jury regarding law applicable to appropriate penalties.
2. Criminal Law.
Evidence of polygraph test is admissible in Nevada only if both parties have signed a written stipulation
to that effect.
3. Criminal Law.
In murder prosecution, reference by prosecution witness to polygraph tests which were given to other
suspects in case was not reversible error where testimony was not intended either to corroborate or impeach
testimony of another witness, but merely to demonstrate investigative methods which were used by sheriff's
department, and defense counsel had opened up subject by suggesting that investigation had incorrectly
focused on defendant instead of other subjects.
4. Criminal Law.
In murder prosecution, trial court properly refused to admit evidence of exculpatory letter written by
defendant after crime was committed in that letter was hearsay, it was not offered to rebut charge of recent
fabrication or improper motive or influence and letter was particularly untrustworthy. NRS 51.035.
5. Criminal Law.
In murder prosecution, defense counsel waived issue of whether trial court incorrectly admitted certain
scientific evidence and testimony of forensic odontologist relating to identification of defendant's bite mark
on victim's body when expert was asked his opinion as to whose bite mark appeared and expert testified
without objection that mark was that of defendant's teeth.
6. Criminal Law.
In murder prosecution, trial court did not abuse its discretion in admitting photographs showing
bullet wounds in various parts of victim's body where evidence of wounds was
relevant to cause of death and premeditation.
98 Nev. 18, 20 (1982) Aguilar v. State
admitting photographs showing bullet wounds in various parts of victim's body where evidence of wounds
was relevant to cause of death and premeditation.
OPINION
Per Curiam:
Aguilar appeals from a conviction of murder in the first degree and a consequent sentence
of life imprisonment without possibility of parole. Five assignments of error are considered
and rejected; we affirm.
I.
[Headnote 1]
The first assignment of error relates to a comment by the prosecutor at the commencement
of the penalty phase. The prosecutor stated to the jury: Life in prison in our state is fifteen
years so, if you impose the penalty of life in prison without the possibility of parole, the
defendant will serve fifteen years in prison.
Defense counsel objected on the ground that the prosecutor had incorrectly stated the law.
The court instructed the jury to ignore the statement and advised that they would later be
properly instructed in the relevant law. The court subsequently instructed the jury regarding
the law applicable to the appropriate penalties. Since the judge corrected the misstatement,
we cannot conclude that the jury was in any way misled. We, therefore, refuse to reverse on
this ground.
II.
The second assignment of error concerns reference by a prosecution witness to polygraph
tests which were given to other suspects in the case. Aguilar's defense rested in part on the
fact that there had initially been suspects other than himself. On cross-examination of the
Lincoln County Sheriff, defense counsel raised the issue of other possible suspects. On
redirect examination, the following exchange occurred between the prosecutor and the
sheriff:
Q. After investigating all these other suspects . . . are you satisfied that they didn't
commit the crime?
A. Yes, I am because of some polygraphs we had run and also. . . .
Defense counsel objected to the answer, and out of the presence of the jury, moved for a
mistrial. The trial court denied the motion and admonished the jury to ignore the witness's
answer.
98 Nev. 18, 21 (1982) Aguilar v. State
Aguilar claims that reversible error was committed by the reference to the polygraphs. He
asserts that the effect of the statement was to exonerate other suspects and to create the
inference either that Aguilar had refused to submit to a polygraph or that he had taken one
and failed it.
[Headnotes 2, 3]
It is true, as appellant states, that evidence of a polygraph test is admissible in Nevada only
if both parties have signed a written stipulation to that effect. Corbett v. State, 94 Nev. 643,
584 P.2d 704 (1978). The issue of admissibility, however, relates to the use of polygraph
evidence to impeach or corroborate the testimony of a witness. Id. at 646, 584 P.2d at 706.
In the immediate situation, the comment did not directly impugn the defendant's testimony or
establish his guilt. The evidence came in through inadvertence. It was not specifically
intended either to corroborate or impeach the testimony of another witness, but merely to
demonstrate investigative methods which were used by the sheriff's department. Defense
counsel had opened up the subject by suggesting that the investigation had incorrectly
focused on the defendant instead of other suspects. The question on redirect examination was
aimed at establishing the thoroughness of the investigation; and the form of the prosecutor's
question does not suggest that he was soliciting an improper answer. We therefore conclude
that the answer does not constitute reversible error.
III.
[Headnote 4]
The third assignment of error, also without merit, is that the court erred in refusing to
admit evidence of an exculpatory letter written by the defendant after the crime was
committed. The letter was hearsay evidence; it was not offered to rebut a charge of recent
fabrication or improper motive or influence. See NRS 51.035. Furthermore, it does not fall
within any recognized exception to the hearsay rule. Finally, the evidence is particularly
untrustworthy since the motive to lie would already have attached at the time the letter was
written.
IV.
[Headnote 5]
The fourth claim of error is that the court incorrectly admitted certain scientific evidence
and testimony of a forensic odontologist relating to identification of Aguilar's bite mark on
the victim's body. We reject this assignment since it was waived by defense counsel at trial.
The expert was asked his opinion as to whose bite mark appeared on the victim's body. He
testified without objection that the mark was that of Aguilar's teeth.
98 Nev. 18, 22 (1982) Aguilar v. State
without objection that the mark was that of Aguilar's teeth. Further support for the expert's
opinion was given in the form of a video tape admitted into evidence by stipulation of
counsel. The defense cannot be heard now to complain that admission of the expert's
experimental technique was reversible error.
V.
[Headnote 6]
The final assignment of error concerns photographic evidence which Aguilar claims was
inflammatory and prejudicial. Photographs show bullet wounds in various parts of the body.
The evidence of the wounds is relevant to at least two issues, the cause of death and also
premeditation. The admission of such evidence resides in the sound discretion of the trial
court. Turpen v. State, 94 Nev. 576, 583 P.2d 1083 (1978), cert. denied, 439 U.S. 968 (1978).
We cannot say that the trial court abused its discretion in admitting the photographs.
The judgment of conviction and the sentence are affirmed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 22, 22 (1982) Constancio v. State
PETER JOSEPH CONSTANCIO, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 12396
January 28, 1982 639 P.2d 547
Appeal from judgment of conviction, upon a jury verdict. Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
Defendant was convicted in the district court of rape and infamous crime against nature,
and he appealed. The Supreme Court held that: (1) rape statute which protected only females
did not violate equal protection clause; (2) testimony of defendant's former wife concerning
defendant's sexual behavior during marriage was admissible in prosecution for rape despite
claim of spousal privilege since privilege was limited to expressions intended by one spouse
to convey meaning or message to other; and (3) trial court did not abuse its discretion in
imposing consecutive rather than concurrent sentences upon defendant.
98 Nev. 22, 23 (1982) Constancio v. State
imposing consecutive rather than concurrent sentences upon defendant.
Affirmed.
[Rehearing denied April 28, 1982]
Michael R. Zervas, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Failure of police to apprehend and arraign defendant for almost one year after incident upon which
charges of rape and infamous crime against nature were based did not violate defendant's rights where trial
court record failed to reflect prejudice to defendant occasioned by delay. NRS 201.190; 200.363
(Repealed).
2. Constitutional Law; Rape.
Former rape statute which protected only females from forcible rape did not violate equal protection
clause. NRS 200.363 (Repealed); U.S.C.A.Const. Amend. 14.
3. Witnesses.
Testimony of defendant's former wife concerning defendant's sexual behavior during marriage was
admissible in prosecution for rape despite claim of spousal privilege since privilege was limited to
expressions intended by one spouse to convey meaning or message to other. NRS 49.295, subd. 1(b).
4. Criminal Law.
In prosecution for rape, any error in admission of medical journal article would not be considered by
Supreme Court where article was not included in record on appeal.
5. Criminal Law.
Trial court did not abuse its discretion in imposing consecutive rather than concurrent sentences upon
defendant convicted of rape and infamous crime against nature where sentence was within statutory limits
and there was no claim that court relied upon improper evidence.
OPINION
Per Curiam:
Appellant was convicted, upon a jury verdict, of rape (former NRS 200.363) and of two
counts of the infamous crime against nature (NRS 201.190 as it then read; See 1977 Nev.
States. ch. 598, 17, at 1632). He was acquitted of a charge of first degree kidnapping (NRS
200.310).
[Headnote 1]
1. Appellant first contends that his rights were violated by the failure of the police to
apprehend and arraign him for almost a year after the May, 1977 incident upon which the
charges were based.
98 Nev. 22, 24 (1982) Constancio v. State
charges were based. To the extent that this issue has not previously been determined by our
ruling on appellant's appeal of a pretrial petition for habeas corpus in Constancio v. Sheriff,
No. 11091 (Unpublished Order, Sept. 29, 1978), see Theriault v. State, 92 Nev. 185, 547 P.2d
668 (1976), we find that the trial court record fails to reflect prejudice to appellant occasioned
by the delay. See United States v. Lovasco, 431 U.S. 783 (1977). Appellant's claim that the
district court erred by not granting his motion to dismiss for failure to bring him to trial
within sixty days similarly been considered and rejected by this court, Constancio v. Sheriff
No. 11813 (Unpublished Order, July 30, 1979), and will not be reconsidered here. Theriault
v. State, supra.
[Headnote 2]
2. Appellant also contends that the applicable provision of former NRS 200.363 violated
the equal protection clause of the fourteenth amendment because it protected only females,
and not males, from forcible rape.
1
We disagree.
The Supreme Court has recently held that a California statutory rape law punishing sexual
intercourse with a female, but not a male, under 18 and not the wife of the perpetrator, did not
violate the equal protection clause. Michael M. v. Sonoma County Superior Court, 450 U.S.
464 (1981). The Court noted that young men and young women are not similarly situated
with respect to the problems and the risks of sexual intercourse. Only women may become
pregnant, and they suffer disproportionately the profound physical, emotional, and
psychological consequences of sexual activity. Id. at 471. See also Olson v. State, 95 Nev. 1,
3, 588 P.2d 1018, 1019 (1979). While the Court also noted the particular problems associated
with teenage pregnancies, the basic justification for a gender based statute for the protection
of females is equally applicable to a forcible rape statute. In short, the fact that the legislature
could have chosen, as it now does, see NRS 200.364 to 200.375, to protect both male and
female victims of sexual assault, did not preclude it from once protecting females alone. See
450 U.S. at 473-74.
[Headnote 3]
3. A former wife of appellant was permitted to testify, over objection, that during their
marriage appellant had often had difficulty achieving an erection. Appellant objected to the
admission of this testimony, on the theory that sexual behavior during marriage should be
classified as communication protected by the spousal privilege, citing State v. Robbins,
213 P.2d 310 {Wash.
____________________

1
NRS 200.363 then provided that Forcible rape is the carnal knowledge of a female against her will. 1973
Nev. Stats. ch. 798, 7, at 1805, repealed 1977 Nev. Stats. ch. 598, 29, at 1635.
98 Nev. 22, 25 (1982) Constancio v. State
admission of this testimony, on the theory that sexual behavior during marriage should be
classified as communication protected by the spousal privilege, citing State v. Robbins, 213
P.2d 310 (Wash. 1950), in which the court concluded that all facts known to a spouse because
of the marital relation should be within the privilege. We are not inclined to so extend the
meaning of communication.
The applicable statute provides that [n]either a husband nor a wife can be examined,
during the marriage or afterwards, without the consent of the other, as to any communication
made by one to the other during marriage. NRS 49.295(1)(b). We have previously held that
this privilege is intended to protect confidential communications between spouses.
Deutscher v. State, 95 Nev. 669, 683, 601 P.2d 407, 416 (1979). Webster's Third New
International Dictionary, at 460 (1976 ed.), defines communicate as to make known:
inform a person of: convey the knowledge or information of. We agree that under a statute
such as ours, the privilege should be limited to expressions intended by one spouse to
convey a meaning or message to the other. McCormick, Evidence 79, at 163 (2d ed. E.
Cleary 1972). See, e.g. Posner v. New York Life Ins. Co., 106 P.2d 488 (Ariz. 1940); Tanzola
v. De Rita, 285 P.2d 897 (Cal. 1955). We therefore conclude that the trial court was correct in
its decision to overrule appellant's objection.
2

[Headnote 4]
4. Appellant also complains of the admission into evidence of a particular article
published in a medical journal. However, the article has not been included in the record on
appeal. We therefore do not consider this assignment of error. Coffman v. State, 93 Nev. 32,
559 P.2d 828 (1977); see Powers v. Johnson, 92 Nev. 609, 555 P.2d 1235 (1976).
[Headnote 5]
5. Finally, appellant contends that it was an abuse of discretion for the court below to
impose consecutive, rather than concurrent, sentences upon him. Where, as here, the sentence
is within the statutory limits and there is no claim that the court has relied upon improper
evidence, we have consistently refrained from interfering with the trial court's imposition of
sentence. E.g., Renard v. State, 94 Nev. 368, 580 P.2d 470 (1978), cert. denied 440 U.S. 982
(1979); Lloyd v. State, 94 Nev. 167, 576 P.2d 740 (1978). We perceive no reversible error.
Cf. Woods v. State, 94 Nev. 435, 581 P.2d 444 (1978).
____________________

2
We note that appellant lodged no objection pursuant to NRS 48.035(1).
98 Nev. 22, 26 (1982) Constancio v. State
The judgment of conviction and sentence are accordingly affirmed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
The Chief Justice has designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable Cameron M. Batjer, Justice, retired. Nev. Const., art. 6, 19(1)(c); SCR 10.
____________
98 Nev. 26, 26 (1982) Wallaker v. Wallaker
DUANE J. WALLAKER, Appellant, v. DOROTHY
WALLAKER, Respondent.
No. 11445
January 28, 1982 639 P.2d 550
Appeal from judgment, Eighth Judicial District Court, Clark County; George E. Marshall,
Judge.
Action was filed by former husband to reform property settlement agreement as to alimony
payments. The district court ruled that court lacked jurisdiction to modify property settlement,
and appeal was taken. The Supreme Court held that even though trial court could not have
modified divorce decree, it was not precluded from granting reformation of the property
settlement agreement which was neither merged nor incorporated into the divorce decree.
Reversed and remanded.
Wiener, Goldwater & Waldman, Las Vegas, for Appellant.
George E. Graziadei, Las Vegas, for Respondent.
Husband and Wife.
Even though district court could not have modified divorce decree, it did have jurisdiction to reform
property settlement agreement as to alimony payments which were neither merged nor incorporated into the
divorce decree.
OPINION
Per Curiam:
Appellant and respondent were divorced in 1969. The decree of divorce confirmed a
property settlement agreement, and stated that the agreement was not incorporated in this
decree, but shall survive the decree herein granted. Eight years later, appellant filed an
action to reform the property settlement agreement as to alimony payments.
98 Nev. 26, 27 (1982) Wallaker v. Wallaker
appellant filed an action to reform the property settlement agreement as to alimony payments.
The complaint acknowledged that the district court could not modify the divorce decree. See
Rush v. Rush, 82 Nev. 59, 410 P.2d 757 (1966). However, the complaint sought reformation
of the property settlement agreement itself, relying on the contractual theories of fraud and
mutual mistake.
At the conclusion of the trial, the district court declined to rule on the merits of the
complaint for reformation. Instead, the district court ruled that the court lacks jurisdiction to
modify the property settlement. Judgment was entered for respondent, and this appeal
followed.
Because the property settlement agreement was neither merged nor incorporated into the
divorce decree, this action should have been decided on principles of general contract law.
See Renshaw v. Renshaw, 96 Nev. 541, 611 P.2d 1070 (1980). Although the district court
could not have modified the divorce decree, respondent has cited no authority for the
proposition that the district court was precluded from granting reformation of the property
settlement agreement. The district court should have ruled on the merits of appellant's
complaint.
Ordinarily, we would remand this matter for findings and conclusions on the merits of the
reformation action. See, e.g., Noble v. Noble, 86 Nev. 459, 470 P.2d 430 (1970); Pease v.
Taylor, 86 Nev. 195, 467 P.2d 109 (1970). However, we are unable to do so in this case
because the district court judge who heard the case is now deceased. We therefore reverse and
remand for a new trial.
____________
98 Nev. 27, 27 (1982) Lomas v. State
JAMES EDWARD LOMAS, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 11939
January 28, 1982 639 P.2d 551
Appeal from judgment of conviction for mayhem; Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
Defendant was convicted in the district court of robbery with use of a deadly weapon,
battery with use of a deadly weapon, and mayhem, and he appealed from the mayhem
conviction. The Supreme Court held that the trial court committed reversible error in refusing
to give instructions offered by the defense embodying the intent requirement for a mayhem
conviction where no other instruction given informed the jury that malice was required
for a conviction of mayhem, or that an inference of malice required that the disfigurement
was reasonably to be apprehended as the natural and probable consequence of the act,
and the trial court also erred in refusing to give an instruction dealing with the statute
which prohibits conviction of mayhem if the jury finds that the injury inflicted will not
result in any permanent disfiguration of appearance, diminution of vigor or other
permanent injury.
98 Nev. 27, 28 (1982) Lomas v. State
where no other instruction given informed the jury that malice was required for a conviction
of mayhem, or that an inference of malice required that the disfigurement was reasonably to
be apprehended as the natural and probable consequence of the act, and the trial court also
erred in refusing to give an instruction dealing with the statute which prohibits conviction of
mayhem if the jury finds that the injury inflicted will not result in any permanent disfiguration
of appearance, diminution of vigor or other permanent injury.
Reversed and remanded.
William N. Dunseath, Public Defender, and N. Patrick Flanagan, Deputy Public Defender,
Washoe County, for Appellant.
Richard H. Bryan, Attorney General, Carson City, and Calvin R. X. Dunlap, District
Attorney, Washoe County, for Respondent.
Criminal Law; Mayhem.
In prosecution for mayhem, trial court committed reversible error by refusing to give instructions offered
by defense embodying intent requirement for mayhem conviction where no other instruction given
informed jury that malice was required for conviction of mayhem, or that an inference of malice required
that disfigurement was reasonably to be apprehended as the natural and probable consequence of the act,
and trial court also erred in refusing to give an instruction dealing with statute which prohibits conviction
of mayhem if jury finds that injury inflicted will not result in any permanent disfiguration of appearance,
diminution of vigor or other permanent injury. NRS 200.300.
OPINION
Per Curiam:
Lomas was convicted of robbery with use of a deadly weapon, battery with use of a deadly
weapon, and mayhem, for acts arising out of the same robbery. In this appeal he challenges
only the mayhem conviction.
Lomas seized his victim from behind and held a knife to her throat. As she pulled away
from him she was cut in the face. Lomas recaptured the victim, took per purse, and removed
money from it. The victim tried to run away, but after taking the money, Lomas pursued her,
stabbed her in the jaw and kicked her in the face. The state charged Lomas with mayhem on
the basis of the first cut on the victim's face, which occurred prior to his seizure of her purse.
98 Nev. 27, 29 (1982) Lomas v. State
At trial, the district court refused to give instructions offered by the defense embodying the
intent requirement for a mayhem conviction, based upon Ex parte Ralls, 71 Nev. 276, 288
P.2d 450 (1955) and Lamb v. Cree, 86 Nev. 179, 466 P.2d 660 (1970). The state concedes
that the offered instructions were correct statements of the law. The state argues, however,
that the law was adequately covered by other instructions given to the jury. We disagree. No
other instruction given by the trial court informed the jury that malice is required for a
conviction of mayhem, or that an inference of malice required that the disfigurement was
reasonably to be apprehended as the natural and probable consequence of the act. Lamb v.
Cree, 86 Nev. at 182, 466 P.2d at 662, quoting Ex parte Ralls, 71 Nev. at 279, 288 P.2d at
451.
The district court also refused to give an instruction dealing with NRS 200.300, which
prohibits conviction of mayhem if the jury finds that the injury inflicted will not result in any
permanent disfiguration of appearance, diminution of vigor, or other permanent injury.
Whether the victim is disfigured, and whether such disfigurement is permanent, are questions
of fact for the jury. Lamb v. Cree, supra; see Levi v. State, 95 Nev. 746, 602 P.2d 189 (1979).
The record in the present case reveals that the extent of the injury was far from apparent. We
see no justification for the district court's refusal to give an instruction on NRS 200.300.
Appellant's conviction of mayhem is reversed and this case is remanded for a new trial.
1

Reversed and remanded.
____________________

1
This reversal applies only to the mayhem conviction. As mentioned earlier, the convictions for robbery with
use of a deadly weapon, and battery with use of a deadly weapon, have not been challenged.
____________
98 Nev. 30, 30 (1982) McCracken v. Fancy
LARRY O. McCRACKEN, Executive Director STATE OF NEVADA EMPLOYMENT
SECURITY DEPARTMENT, BOARD OF REVIEW OF STATE OF NEVADA
EMPLOYMENT SECURITY DEPARTMENT and STROBECK AND ASSOCIATES, INC.,
Appellants, v. RETA B. FANCY, Respondent.
No. 12678
January 28, 1982 639 P.2d 552
Appeal from order reversing decision of appeals tribunal of Nevada Employment Security
Department, Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge.
Executive Director and Board of Review of the State of Nevada Employment Security
Department and employer appealed from order of the district court reversing decision of the
Department appeals tribunal which denied claim for unemployment benefits. The Supreme
Court held that there was substantial evidence supporting appeals referee's decision that
claimant left her employment voluntarily without good cause, rendering her ineligible for
unemployment benefits, and thus district court erred by substituting its judgment for that of
the administrative department.
Reversed.
John A. Flangas, Reno, for Appellants.
Reta B. Fancy, In Proper Person.
1. Administrative Law and Procedure.
In reviewing an administrative board's decision, Supreme Court, like district court, is limited to record
below and to determination of whether the board acted arbitrarily or capriciously; question is whether
board's decision was based on substantial evidence, and neither Supreme Court nor district court may
substitute its judgment for administrator's determination.
2. Social Security and Public Welfare.
There was substantial evidence supporting appeals referee's decision that claimant left her employment
voluntarily without good cause, rendering her ineligible for unemployment benefits, and thus district court
erred by substituting its judgment for that of the administrative department. NRS 612.380.
OPINION
Per Curiam:
This is an appeal from a district court order reversing a decision of the appeals tribunal of
the Nevada Employment Security Department (NESD). Because we find that the district
court improperly substituted its judgment for that of the administrative department, we
reverse.
98 Nev. 30, 31 (1982) McCracken v. Fancy
court improperly substituted its judgment for that of the administrative department, we
reverse.
On October 8, 1979, respondent Reta B. Fancy voluntarily terminated her employment as
secretary/bookkeeper for a Las Vegas company. Thereafter, she applied for unemployment
compensation benefits. After receiving one check for $67.00, Fancy was informed that she
would receive no further benefits and that she had to return the previously issued check for
$67.00. Appellant Larry O. McCracken, Executive Director of the NESD, had determined
that Fancy had terminated her employment voluntarily without good cause and therefore did
not qualify for unemployment benefits. See NRS 612.380.
Fancy appealed to the NESD's appeals tribunal. A hearing was held in Long Beach,
California, where Fancy had moved, and the tape of the hearing was transmitted to the
appeals tribunal for its decision. Fancy was the only witness at the hearing. She also
introduced into evidence certain letters and documents relating to her unsuccessful attempt to
secure unemployment benefits. After reviewing the evidence, the appeals referee denied
Fancy's claim and held her liable for the overpayment of $67.00. See NRS 612.365.
Fancy then appealed to the NESD's board of review. By a letter dated January 31, 1980,
the board of review declined to review her appeal. See NRS 612.515(1). Fancy sought judicial
review of the administrative decision against her. On April 25, 1980, the district court
reversed the appeals tribunal's decision and ordered that Fancy receive unemployment
compensation. The district court's order stated no reason for the reversal. The NESD has
appealed.
[Headnote 1]
The sole issue on issue on appeal is whether the district court erred by reversing the
appeals referee's decision that Fancy had terminated her employment voluntarily without
good cause and therefore was ineligible for unemployment compensation. In reviewing an
administrative board's decision, this court, like the district court, is limited to the record
below and to the determination of whether the board acted arbitrarily or capriciously. Turk v.
Nevada State Prison, 94 Nev. 101, 575 P.2d 599 (1978); Lellis v. Archie, 89 Nev. 550, 516
P.2d 469 (1973); Barnum v. Williams, 84 Nev. 37, 436 P.2d 219 (1968). The question is
whether the board's decision was based on substantial evidence; neither this court, nor the
district court, may substitute its judgment for the administrator's determination. Varela v. City
of Reno Civil Serv., 97 Nev. 575, 635 P.2d 577 (1981); No. Las Vegas v. Pub. Serv.
Comm'n, 83 Nev. 278, 429 P.2d 66 (1967).
98 Nev. 30, 32 (1982) McCracken v. Fancy
The relevant statutory provision is former NRS 612.380,
1
which provided:
A person is ineligible for benefits for the week in which he has voluntarily left his
last or next to last employment without good cause, if so found by the executive
director, and until he earns remuneration in covered employment equal to or exceeding
his weekly benefit amount in each of 10 weeks. (Emphasis added.)
Despite the fact that Fancy presented all the evidence at the administrative hearing, the
evidence was conflicting at best. She testified that she had been misled about the nature of the
work; that although hired as a secretary/bookkeeper, 95 percent of her work involved
accounting; and that she was losing her secretarial skills and being underpaid. However, the
record also reveals a signed statement in which Fancy, in referring to leaving her Nevada job,
stated:
I originally went to Las Vegas in Oct, 77 when my daughter was very ill, to help
out. I much prefer Southern Calif so decided to return. The decision had nothing to do
with my job. I gave my employer 3 weeks notice of leaving. (Emphasis added.)
[Headnote 2]
In denying Fancy unemployment compensation, the appeals referee stated:
The evidence of this present case is quite clear that the claimant left her employment
to move to another geographical area and to seek work. At the time of her leaving, she
had no firm promise of work nor any prospects of work. Claimant also wanted to move
for personal reasons, she liked the southern California area better.
. . .
It is the opinion of this tribunal that the claimant left work to seek better work, but
she had no firm promise of work at the time of leaving, thus the tribunal concludes that,
the claimant voluntarily quit the work without good cause.
Fancy contends that the appeals referee imposed an arbitrary standard that she must have a
firm offer of employment before she would be considered leaving with good cause. We
disagree.
____________________

1
NRS 612.380 was amended by the 1981 legislature. See 1981 Nev. Stats. ch. 379, 3, p. 690. Former NRS
612.380 was preserved as NRS 612.380(1), and a new subsection 2 was added. The amendment does not affect
the outcome of this case.
98 Nev. 30, 33 (1982) McCracken v. Fancy
Viewing the decision as a whole, it appears that Fancy's failure to have another job offer was
only one factor in the referee's decision. He was also persuaded by the evidence that she
simply wanted to live in California. There is substantial evidence supporting the appeals
referee's decision that Fancy left her employment voluntarily without good cause. It follows
that the district court erred by substituting its judgment for that of the administrative
department.
The district court's order is reversed and the appeals referee's decision is reinstated.
____________
98 Nev. 33, 33 (1982) Investors of Nev. v. Nevada State Bk.
INVESTORS OF NEVADA REALTY, INC., and VERA McCAULEY, Appellants, v.
NEVADA STATE BANK as Executor of the Estate of BOBBIE SKERCE, Deceased,
Respondent.
No. 13211
January 28, 1982 639 P.2d 554
Appeal from order granting summary judgment. Eighth Judicial District Court, Clark
County; J. Charles Thompson, Judge.
Executors of insured under credit life policy sued to recover proceeds, which had been
paid to assuming purchaser of property covered by the insurance. The district court rendered
summary judgment for the estate, and appeal was taken. The Supreme Court held that
payment of the secured indebtedness inured to benefit of the insured's estate in that when
insured sold mobile home she was not relieved of liability and was still liable as surety if
purchasers, who had assumed the obligation failed to pay.
Affirmed.
[Rehearing denied April 9, 1982]
L. Earl Hawley, Las Vegas, for Appellants.
Scotty Gladstone, Las Vegas, for Respondent
Secured Transactions.
Payment of secured indebtedness with proceeds of credit life policy inured to benefit of the insured's
estate rather than to benefit of assuming purchaser of the property in that when the purchaser insured sold
the mobile home she was not relieved of her liability and although purchaser assumed and agreed to pay
creditor the purchaser had not done so, the insured, as surety, was still liable.
98 Nev. 33, 34 (1982) Investors of Nev. v. Nevada State Bk.
OPINION
Per Curiam:
The principal issue presented by this appeal from an order granting summary judgment is
whether payment of a secured indebtedness with the proceeds of a credit life insurance policy
inured to the benefit of the insured's estate or to an assuming purchaser of the property
covered by the insurance. The district court held that payment inured to the benefit of the
estate. We agree.
Bobbie Skerce purchased a mobile home. It was financed by the Nevada State Bank for
approximately $10,000.00. Skerce obtained a fully paid life insurance policy for the amount
of the loan with the Bank as beneficiary. Skerce sold the home for $1,000.00 down to the
appellants, who assumed the $10,000.00 due the Bank. Skerce died. The insurance company
paid the Bank's loan. The Bank, as executor of Skerce's estate, filed this action against
appellants to recover the $10,000.00 for the estate.
When Skerce sold her mobile home, she was not relieved of her liability to the Bank.
Although the purchaser assumed and agreed to pay the Bank, if the purchaser had not done
so, Skerce, as a surety, was still liable. See Twombley v. Wulf, 482 P.2d 166 (Or. 1971).
Whenever a party promises another to pay his debt or perform his obligation to a
third person, as between promisor and promisee, the former becomes the principal
obligor and the latter acquires the privileges of a surety.
Elder, The Law of Suretyship, 2.3, p. 10 (1951).
As the court ruled in Kincaid v. Alderson:
When thus a surety by his death through a valid life insurance policy on his life has
discharged the obligation, this does not discharge the obligation of [those] who are
primarily liable. It would be exactly the same situation as if a surety on an obligation
for any reason decided to pay off the obligation. This would not release the principal
debtor from his obligation, but it would then be transferred to the surety who had
discharged the obligation to release himself as surety. Thus by the death of [surety] and
his life insurance paying this debt it would merely transfer the debt of the principal
obligator to the surety rather than to the creditor. When the debt is thus paid the surety
is subrogated to the rights of the creditor. [Citations omitted.] This payment constitutes
an unjust enrichment of the principal' who must 'reimburse the surety to the extent
of the enrichment.' Restatement of the Law, Security, 104.
98 Nev. 33, 35 (1982) Investors of Nev. v. Nevada State Bk.
of the principal' who must reimburse the surety to the extent of the enrichment.'
Restatement of the Law, Security, 104. Comment on Subsection (2), page 279.
354 S.W.2d 775, 778 (Tenn. 1962). See also Hatley v. Johnston, 143 S.E.2d 260 (N.C. 1965);
Smith v. Castleman, 462 P.2d 135 (N.M. 1969).
The district court properly ruled that the benefit of the insurance proceeds inured to the
estate of Bobbie Skerce. Appellants' remaining assignments of error are meritless. Therefore,
we affirm the judgment of the district court.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable Cameron M. Batjer, Justice. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 35, 35 (1982) Crown Controls Corp. v. Corella
CROWN CONTROLS CORPORATION, Appellant, v. STEVEN J. CORELLA and
NEVADA INDUSTRIAL COMMISSION, Respondents.
No. 13007
January 28, 1982 639 P.2d 555
Appeal from judgment, Second Judicial District Court, Washoe County; Peter I. Breen,
Judge.
Manufacturer appealed from judgment entered by the district court on jury verdict in
products liability action brought by claimant, who suffered injury when power lift stacker
tipped over backwards onto him. The Supreme Court held that: (1) substance of
manufacturer's tendered instruction was stated in instructions given and therefore refusal to
give tendered instruction was not error, and (2) although, under strict liability, manufacturer
is entitled to assume that his product will not be subjected to abnormal and unintended use,
use of product in manner which manufacturer should reasonably anticipate is not misuse or
abuse.
Affirmed.
Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane, Reno, and J. Michael Herr and
Charles J. Faruki, Dayton, Ohio, for Appellant.
98 Nev. 35, 36 (1982) Crown Controls Corp. v. Corella
Samuel T. Bull, Reno, Harkins & Beckett, Carson City, and The Boccardo Law Firm, San
Jose, California, for Respondents.
1. Trial.
It is not error for a trial court to refuse to give instruction when substance of that instruction is adequately
covered by other instructions.
2. Trial.
Substance of manufacturer's tendered instruction that misuse of product includes failure to use it in
accordance with adequate warnings given by manufacturer was stated in instructions given, and thus refusal
to give tendered instruction was not error, where jury was instructed that in order to find for products
liability claimant it had to find that manufacturer's power lift stacker, which had tipped over backward onto
claimant, was being used in manner and for purpose for which it was intended and was not subject of
misuse at time of accident and jury was further instructed that product which bears suitable and adequate
warnings concerning safe manner in which product is to be used and which is safe to use if warning is
followed is not in defective condition.
3. Products Liability.
Although, under strict liability, a manufacturer is entitled to assume that his product will not be subjected
to abnormal and unintended use, use of product in manner which manufacturer should reasonably
anticipate is not misuse or abuse.
OPINION
Per Curiam:
In October of 1979, during the course of his employment, Steven J. Corella was injured
when a power lift stacker, manufactured by appellant herein, tipped over backwards onto him.
Mr. Corella sued appellant, alleging that the stacker was defectively designed and
manufactured and that it did not bear adequate warnings. The action was tried on a strict
liability theory. The jury returned a verdict in favor of Mr. Corella for $640,000. Appellant
moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The
motions were denied. This appeal followed.
Appellant contends that the district court erred by refusing an instruction on misuse
offered by appellant, and by giving an allegedly erroneous instruction on misuse.
[Headnotes 1, 2]
The instruction offered by appellant and refused by the court read as follows: Misuse of a
product includes failure to use it in accordance with adequate warnings given by the
manufacturer. It is not error for a trial court to refuse to give an instruction when the
substance of that instruction is adequately covered by other instructions.
98 Nev. 35, 37 (1982) Crown Controls Corp. v. Corella
covered by other instructions. El Cortez Hotel, Inc. v. Coburn, 87 Nev. 209, 484 P.2d 1089
(1971); Southern Pacific Co. v. Watkins, 83 Nev. 471, 435 P.2d 498 (1967). Despite the
refusal to give the above-quoted instruction, the jury was instructed that in order to find for
respondent, it had to find that the stacker, at the time of the accident, was being used in the
manner and for the purpose for which it was intended and was not the subject of misuse. The
jury was further instructed that a product which bears suitable and adequate warnings
concerning the safe manner in which the product is to be used, and which is safe to use if the
warning is followed, is not in defective condition. The substance of the refused instruction
was, therefore, stated in the instructions given.
1

The instruction given to the jury to which appellant objected read as follows:
Misuse of a product means a use which the designer and manufacturer could not
reasonably foresee. The mere fact that a designer or manufacturer may not intend his
product to be used in a certain way does not mean that using it in that way is a legal
misuse of the product. If a designer and manufacturer should reasonably foresee that the
product may be used in a way other than intended by him, such other use is not a
misuse.
[Headnote 3]
Appellant contends that this instruction states that a manufacturer could be held liable
even if it warned against misuse. Appellant also contends that the instruction ignores the
settled law of this state that a manufacturer cannot be liable for injury resulting from
unintended use. The instruction does not, as appellant contends, instruct as to the
ramifications of misuse despite warnings. Furthermore, although it is true that under strict
liability a manufacturer is entitled to assume that his product will not be subjected to
abnormal and unintended use, it is also true that use of a product in a manner which the
manufacturer should reasonably anticipate is not misuse or abuse. General Electric Co. v.
Bush, 88 Nev. 360, 498 P.2d 366 (1972). The instruction objected to merely repeats this
principle. Error did not, therefore, occur.
We have reviewed appellant's other contentions and have determined that they are without
merit. Accordingly, the judgment below is affirmed.
____________________

1
Because our ruling is based upon the fact that appellant's requested instruction was adequately covered by
other instructions, we express no opinion as to whether the requested instruction alone was a correct and
adequate statement of the law.
____________
98 Nev. 38, 38 (1982) McKenna v. State
PATRICK CHARLES McKENNA, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 12795
January 28, 1982 639 P.2d 557
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Robert
G. Legakes, Judge.
Defendant was convicted before the district court of murder, and he appealed. The
Supreme Court held that admission into evidence of testimony of court-appointed psychiatrist
as to admissions made by defendant during his psychiatric examination was an error of
constitutional proportions requiring reversal and remand in absence of demonstration beyond
a reasonable doubt that such evidence did not contribute to conviction.
Reversed and remanded.
Howard C. Jones, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert Miller, District Attorney and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Admission into evidence of testimony of court-appointed psychiatrist as to admissions made by defendant
during his psychiatric examination was an error of constitutional proportions, and conviction would be
reversed and remanded in absence of State's demonstration beyond a reasonable doubt that evidence did
not contribute to conviction. U.S.C.A.Const. Amends. 5, 14.
OPINION
Per Curiam:
Patrick Charles McKenna appeals from a conviction for murder for which he was
sentenced to death. At issue is whether the trial court erred in permitting a court-appointed
psychiatrist who examined McKenna to testify as to admissions made by McKenna during his
psychiatric examination.
A psychiatrist, Franklin D. Master, M.D., was appointed by the court under NRS 178.415
to inquire into the sanity of McKenna. During the psychiatrist's examination, McKenna
apparently discussed the circumstances surrounding the murder of a cellmate at the Clark
County jail. Over the defendant's objection, the psychiatrist was permitted to testify at trial
that McKenna had admitted he had "exploded and killed J. J. Nobles."
98 Nev. 38, 39 (1982) McKenna v. State
McKenna had admitted he had exploded and killed J. J. Nobles.
We have recently held that statements made by a defendant to a psychiatrist during a court
ordered mental examination may not be used to impeach the defendant's testimony. Esquivel
v. State, 96 Nev. 777, 617 P.2d 587 (1980). In Esquivel we commented, [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 statements may be used
against him. Fair play dictates nothing less. 96 Nev. at 778, 617 P.2d at 587.
We think that the same rationale applies to the case before us. Fair play does indeed dictate
that our trial courts not appoint a psychiatrist to examine an accused and then employ the
confidential contents of the interview to obtain a conviction. We agree with the decision in
Collins v. Auger, 428 F.Supp. 1079 (S.D.Iowa 1977), that the introduction of this kind of
evidence violates the defendant's right to due process.
[I]t is fundamentally unfair to use defendant's incriminating admissions to a psychiatrist
during a psychiatric examination as part of the prosecution's case to establish his guilt.
It is immaterial whether the court ordered examination was at the request of defendant
or the prosecution or whether it was to determine his capacity to aid in his own defense
or his mental condition at the time of the crime. Id. at 1082.
1

Furthermore, it would be impossible to meet the objectives of a court appointed examination
if the defendant knew that his statements could be used to convict him. McKenna's right to
due process guaranteed under the fourteenth amendment was therefore violated by the
introduction of evidence concerning admissions made to a court appointed psychiatrist.
Since admission of this testimony amounted to a violation of federal constitutional rights,
we are obliged to apply the test established in Chapman v. California, 386 U.S. 18 (1966).
This court must be able to declare its belief that the constitutional error complained of was
harmless beyond a reasonable doubt. Id. at 24.
____________________

1
This view is also consistent with the recent United States Supreme Court decision in Estelle v. Smith, 101
S.Ct. 1866 (1981). The Supreme Court held that a defendant's fifth amendment privilege against
self-incrimination was violated by the introduction of testimony concerning admissions made during a court
ordered psychiatric examination. The psychiatrist was permitted to testify to these admissions during the penalty
phase of the trial.
98 Nev. 38, 40 (1982) McKenna v. State
The comments made by McKenna were a primary component of the prosecution's case. In
arguing for admission of the doctor's testimony the prosecutor stated that the testimony was
necessary to obtain a conviction since the remaining case was somewhat tenuous.
2
Applying the Chapman standard, it is within the realm of possibility that, absent the
constitutionally forbidden admissions contained in the psychiatrists' testimony, honest,
fair-minded jurors might have brought in a lesser verdict. Under these circumstances, it is
impossible for us to say that the state has demonstrated, beyond a reasonable doubt, that the
evidence did not contribute to McKenna's conviction. We therefore reverse and remand for
new trial.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

2
The prosecutor's view is supported by the record. The eyewitness testimony relied upon was from two
inmates, felons, who received favorable treatment after giving statements to police. Only one witness, Rossi,
actually testified at trial. Jones committed suicide before the trial and a transcript of his testimony at an earlier
proceeding was read into the record. Jones's testimony was that at 1:30 a.m. he saw McKenna strangle his victim
with his hands for about thirty seconds. The other witness, Rossi, saw a different episode occurring at 3:30 a.m.
and in which McKenna strangled his victim with his arm for some five minutes. The pathology report said death
was caused by ligature with the aid of a piece of cloth or other tying device. There were a number of other
discrepancies. When combined with the unreliable nature of the witnesses and the accessibility of the victim to a
number of other prisoners, these factors form what could very well have been described as a tenuous case.

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 40, 40 (1982) Director, Dep't Prisons v. Blum
DIRECTOR, NEVADA DEPARTMENT OF PRISONS, v.
CHESTER LEE BLUM, Respondent.
No. 13103
January 28, 1982 639 P.2d 559
Appeal from order granting writ of habeas corpus. First Judicial District Court, Carson
City; Michael E. Fondi, Judge.
Director of State Department of Prisons appealed from an order of the district court
granting prisoner's writ of habeas corpus and discharging him from any custody occasioned
by the filing of a detainer against him. The Supreme Court held that the detainer was
invalid, where there was no indication that request for detainer was made by the
executive authority of the demanding state.
98 Nev. 40, 41 (1982) Director, Dep't Prisons v. Blum
that the detainer was invalid, where there was no indication that request for detainer was
made by the executive authority of the demanding state.
Affirmed.
Richard H. Bryan, Attorney General, and Brooke A. Nielsen, Deputy Attorney General,
Carson City, for Appellant.
John L. Conner, Reno, for Respondent.
Extradition and Detainers.
Detainer was invalid, where there was no indication that request for detainer was made by the executive
authority of the demanding state. NRS 179.179, subd. 1.
OPINION
Per Curiam:
This is an appeal from an order of the district court granting a writ of habeas corpus and
discharging respondent, a prisoner in the Nevada State Prison, from any custody occasioned
by the filing of a detainer against him by the state of Illinois. The district court ruled that the
Agreement on Detainers, NRS 178.620 art. IV(a), is invalid insofar as it permits a detainer to
be lodged against a prisoner held in Nevada without a request from the executive authority of
the demanding state.
In Cuyler v. Adams, 449 U.S. 433 (1981), the Supreme Court held that the Agreement on
Detainers preserves to a prisoner the procedural safeguards granted by the Uniform Criminal
Extradition Act, NRS 179.177 et seq., except those expressly withheld by the Agreement on
Detainers itself. 449 U.S. at 447.
The Agreement on Detainers expressly dispenses with the requirement of the Extradition
Act that the governor of the sending state affirmatively approve the action requested by the
demanding state. NRS 178.620 art. IV(d); 179.179(1); 179.183. However, the Agreement on
Detainers does not expressly dispense with the requirement of the Extradition Act that the
request for extradition, or the filing of a detainer, be authorized by the executive authority
of the demanding state. NRS 179.179(1); 179.183. Under the holding in Cuyler v. Adams,
supra, the request for a detainer must be made by the executive authority of the demanding
state.
1
There is no indication in the record of this case that the request for a detainer against
respondent Blum complied with this requirement.
____________________

1
The executive authority of a state is the governor or a person performing the functions of the governor.
NRS 179.179(1).
98 Nev. 40, 42 (1982) Director, Dep't Prisons v. Blum
respondent Blum complied with this requirement. The district court was therefore correct in
ruling that the detainer was invalid.
Affirmed.
____________
98 Nev. 42, 42 (1982) Laird v. State of Nev. Pub. Emp. Ret. Bd.
EARL T. LAIRD, DONALD A. WEST, DENNIS O. BARRY, GARTH F. DULL, DONALD
E. QUILICI, CHARLES ELGES, et al., Appellants, v. STATE OF NEVADA PUBLIC
EMPLOYEES RETIREMENT BOARD, Respondent.
No. 13300
January 28, 1982 639 P.2d 1171
Appeal from order granting summary judgment. First Judicial District Court, Carson City;
Michael E. Fondi, Judge.
State employees sought free military service credit under the Public Employees Retirement
System. The Public Employees Retirement Board ruled that they were not entitled to credit.
The district court affirmed. Appeal was taken. The Supreme Court held that since new statute
focuses specially on military service credit and is more recently enacted than the previous two
statutes, it governed disposition of the claim and prohibited the giving of credit.
Affirmed.
[Rehearing denied May 17, 1982]
Smith & Gamble, Ltd., Carson City, for Appellants.
Richard H. Bryan, Attorney General, and William E. Isaeff, Deputy Attorney General,
Carson City, for Respondent.
1. Statutes.
Where a general and special statute, each relating to same subject, are in conflict and they cannot be read
together, special statute controls.
2. Statutes.
When statutes are in conflict, one more recent in time controls over provisions of an earlier enactment.
3. Officers and Public Employees.
Since one statute focused specifically on military service credit and was more recently enacted than the
previous two statutes governing military service credit, it governed the disposition of claim for free military
service credit under the Public Employees Retirement System and denied giving of credit. NRS 286.300,
subd. 4, 286.500, 418.010, 418.020; St. 1953, c. 125, 4.
98 Nev. 42, 43 (1982) Laird v. State of Nev. Pub. Emp. Ret. Bd.
4. Officers and Public Employees.
Repeal of statute governing computation of military service credit under the Public Employees
Retirement System and the concurrent enactment of a new statute governing computation of credit
established that the legislature did not intend to revive 1941 enactment as far as Public Employees
Retirement System was concerned. NRS 286.300, subd. 4, 286.500, 418.010, 418.020; 38 U.S.C.A.
2021 et seq.
5. Appeal and Error.
In proceeding to seek free military service credit under the Public Employees Retirement System,
appellants failed to preserve for review claim for relief predicated on Vietnam Era Veterans Readjustment
Assistance Act where issues were raised for first time on appeal. 38 U.S.C.A. 2021 et seq.
OPINION
Per Curiam:
The appellants, employees of the State of Nevada, seek free military service credit under
the Public Employees Retirement System. The Public Employees Retirement Board ruled that
they were not entitled to free credit and the district court affirmed. We agree.
THE FACTS
Appellants are state employees who left public employment in the mid to late 1950's and
early 1960's to serve in the armed forces of the United States. All of them returned to state
employment after their discharge.
Appellants predicate their claims for free credit upon 1941 Nev. Stats. chap. 34, 1-2, at
37-39, codified as NRS 418.0101 and NRS 418.020.
2
Chapter 34 was a general statute
covering the reemployment of returning veterans.
____________________

1
418.010 Reemployment of persons who enlist or are inducted into military service.
1. Any person who enlists in or is inducted into the military service of the United States, and in order
to perform such training and service has left or leaves a position, other than a temporary position, in
which the status of seniority is not recognized by the employer . . . shall be restored to his position as
provided in subsections 2, 3 and 4.
* * * * * *
3. If the position was as an appointive officer or as an employee in any department, commission or
agency of the State of Nevada, or in the employ of any county or political subdivision of the State of
Nevada, or in the employ of any city, town or irrigation district within the State of Nevada, the employer
shall restore the person to the position or to a position of like seniority, status and pay, unless the
employer's circumstances have so changed as to make it impossible or unreasonable so to do.

2
418.020 Rights and privileges of persons restored to positions. Any person who is restored to a position in
accordance with the provisions of subsection 2 or 3 of NRS 418.010 shall:
98 Nev. 42, 44 (1982) Laird v. State of Nev. Pub. Emp. Ret. Bd.
the reemployment of returning veterans. It required Nevada employers, both public and
private, to restore a former employee, who left to enter military service, to his previous
position without loss of seniority.
The Board and the lower court ruled, however, that appellants' claims for free military
service credit are governed by specific statutes found in the Public Employees Retirement
Act, NRS 286.300(4).
3

THE LEGISLATIVE HISTORY
In 1947 the Legislature created the Public Employees Retirement System of Nevada. It
also granted military service credit to members of the created system who left their
employment to serve in the armed forces. From 1947 to 1953 the Act provided for free credit
in the Retirement System where the service accrued after September 15, 1940.
4

Later, effective July 1, 1953, the Legislature limited free military credit in the Public
Employees Retirement System to persons who had served in the armed forces during
designated periods of war or armed conflict, providing the employee had returned to the
employ of a Nevada public employer for five years of contributory membership service. The
wartime service periods were specified as including September 15, 1940 to December 31,
1946 and June 27, 1950 until the end of the then ongoing Korean conflict.
5
The policy was
reviewed by our Legislature four more times between 1953 and 1975.
____________________
1. Be considered as having been on furlough or leave of absence during his period of training and service in
the military service of the United States.
2. Be restored to his position without loss of seniority.
3. Be entitled to participate in insurance or other benefits offered by the employer pursuant to established
rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time
such person was inducted or enlisted in the military service of the United States, or in effect at the time such
person was called from his employment under the provisions of this chapter herein referred to.
4. Not be discharged from such position without cause within 1 year after such restoration.

3
286.300(4).
Any member who has at least 5 years of contributing creditable service may purchase up to 5 years of
military service regardless of when served if that service is no longer credited in the military retirement
system. To validate military service, the member must provide certification of the inclusive dates of
active military service performed, pay the system's actuary for the computation of cost, and pay the full
actuarial cost as determined by the actuary.

4
See 1947 Nev. Stats. chap. 181, 17(2), at 632.

5
See 1953 Nev. Stats. chap. 125, 4, at 131-132.
98 Nev. 42, 45 (1982) Laird v. State of Nev. Pub. Emp. Ret. Bd.
The policy was reviewed by our Legislature four more times between 1953 and 1975. In
each instance (1959, 1961, 1967 and 1969), the Legislature continued its policy of restricting
free military service credit to veterans of wartime service only, merely adding new specific
time periods for World War I, the end of the Korean conflict (January 31, 1955) and the
Vietnam war (August 4, 1964 until the President of the United States declared hostilities
terminated).
6
None of the appellants' military service fell within any of the specified
statutory periods except part of appellant Quilici's service, for which he has been given credit.
The last legislative review occurred in 1975 when the Legislature repealed in its entirety
the existing provisions of NRS 286.500 which contained the free military service credit
provision of the Public Employees Retirement Act. At that time the Legislature adopted the
language now found at NRS 286.300(4) supra, which authorizes any public employee
participating in the Public Employees Retirement System to purchase his or her military
service credit (up to five years) at its actuarial cost.
[Headnote 1]
While both the general veteran statutes (NRS 418.010 and 418.020) and the subsequent
public employee retirement statute (currently NRS 286.300(4)) are related to the same
subject, we hold that NRS 286.300(4) is controlling in the instant case. Where a general and a
special statute, each relating to the same subject, are in conflict and they cannot be read
together, the special statute controls. See Western Realty Co. v. City of Reno, 63 Nev. 330,
172 P.2d 158 (1946); Ronnow v. City of Las Vegas, 57 Nev. 332, 65 P.2d 133 (1937); State
ex rel. Nevada Tax Commission v. Boerlin, 38 Nev. 39, 144 P. 738 (1914).
[Headnote 2]
Additionally, when statutes are in conflict, the one more recent in time controls over the
provisions of an earlier enactment. See Marschall v. City of Carson, 86 Nev. 107, 464 P.2d
494 (1970); State ex rel. Nevada Douglass Gold Mines, Inc. v. District Court, 51 Nev. 330,
275 P. 1 (1929); Thorpe v. Schooling, 7 Nev. 15 (1871).
[Headnote 3]
Since NRS 286.300(4) focuses specifically on military service credit and is more recently
enacted than the previous two statutes, it governs the disposition of appellants' claims
herein.
____________________

6
See 1959 Nev. Stats. chap. 142, 5, at 162; 1961 Nev. Stats. chap. 47, 1, at 54; 1967 Nev. Stats. chap.
138, 1, at 216; 1969 Nev. Stats. chap. 482, 4, at 856.
98 Nev. 42, 46 (1982) Laird v. State of Nev. Pub. Emp. Ret. Bd.
credit and is more recently enacted than the previous two statutes, it governs the disposition
of appellants' claims herein.
Appellants argue that since the 1975 Legislature repealed NRS 286.500, the previously
enacted general statutes (NRS 418.010 and 418.020) prevail. We do not agree. With the
repeal of NRS 286.500, the Legislature in the same bill amended NRS 286.300 by providing
in paragraph 3 (now paragraph 4) that any member of the Public Employees Retirement
System who has at least five years of contributory creditable service may purchase up to five
years of military service credit regardless of when served, so long as such service is no longer
still credited in a military retirement system.
7

Under the common law rules of interpretation, the repeal of a repealing statute operates
to revive the original enactment where the repeal of the repealing statute is accomplished
by express provision without additional legislation upon the subject matter. However,
where the repeal of the repealing statute is achieved by specific provision or by
implication with new additional legislation on the subject matter, the original legislation
is revived only to the extent to which it is consistent with the new legislation.'
Sutherland, Statutory Construction (Sands Ed.) 23.31, at 276. (Citations omitted;
emphasis added.)
[Headnote 4]
We hold that the repeal of NRS 286.500 and the concurrent enactment of NRS 286.300(3)
(now 286.300(4)), establishes that the Legislature did not intend to revive the 1941 enactment
as far as the Public Employees Retirement System is concerned.
[Headnote 5]
Finally, and for the first time on appeal, appellants assert a new claim for relief predicated
on the Vietnam Era Veterans Readjustment Assistance Act, 38 U.S.C. 2021, et seq. (1976).
We shall not entertain issues raised for the first time on appeal. See Cooke v. American Sav.
& Loan Assn., 97 Nev. 294, 630 P.2d 253 (1981); International Industries, Inc. v. United
Mortgage Co., 96 Nev. 150, 153-54, 606 P.2d 163, 165 (1980); Central Bank v. Baldwin, 94
Nev. 581, 583 P.2d 1087 (1978); Penrose v. O'Hara, 92 Nev. 685, 557 P.2d 276 (1976);
Young Electric Sign Co. v. Erwin Electric Co., 86 Nev. 822, 828, 477 P.2d 864, 868 (1970);
Clark County v. State, 65 Nev. 490, 506, 199 P.2d 137, 144 (1948).
____________________

7
See 1975 Nev. Stats. chap. 575, 30, 88, at 1035-37, 1067.
98 Nev. 42, 47 (1982) Laird v. State of Nev. Pub. Emp. Ret. Bd.
We conclude therefore that the appellants' reliance on the provision of NRS 418.010 and
NRS 418.020 has been misplaced; that the governing statute in the instant case is NRS
286.300(4).
We affirm the judgment of the district court.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
8
concur.
____________________

8
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable Cameron M. Batjer, Justice, Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 47, 47 (1982) Hyler v. State
ARNOLD HYLER, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 12858
January 28, 1982 639 P.2d 560
Appeal from order of revocation of probation and imposition of sentence. Eighth Judicial
District Court, Clark County; Paul S. Goldman, Judge.
The Supreme Court held that where probationer could not confront his probation officer
because officer was not called as witness, but information supplied by officer in probation
violation report was used as substantial basis for finding probable cause of probation
violations, minimal procedural safeguards for revocation proceedings were violated.
Reversed.
Goodman, Oshins, Brown & Singer, Chartered, and William B. Terry, Las Vegas, for
Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
James Tufteland and Vince Consul, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Full panoply of constitutional protections afforded defendants in criminal proceedings does not apply to
probation revocation proceedings.
2. Criminal Law.
Trial courts are vested with broad discretion in probation revocation proceedings.
98 Nev. 47, 48 (1982) Hyler v. State
3. Criminal Law.
Where probationer could not confront his probation officer because officer was not called as witness, but
information supplied by officer in probation violation report was used as substantial basis for finding
probable cause of probation violations, minimal procedural safeguards for revocation proceedings were
violated.
OPINION
Per Curiam:
Appellant Arnold Hyler seeks reversal of the district court's order revoking his probation.
In August of 1978 Hyler was found guilty of the sale of a controlled substance (NRS
453.321) and was given a 20-year suspended sentence with a probation period of five years.
His probation was subject to the standard rules and conditions of the Department of Parole
and Probation (hereinafter Department). Among other provisions, Hyler was required to
notify the Department of any contemplated change in residence, refrain from associating with
persons of bad reputation, cooperate with the Department and comply with all laws while
conducting himself as a good citizen. Hyler was arrested by the Las Vegas Metropolitan
Police in February, 1980, on charges of pandering, living with a prostitute and living from the
earnings of a prostitute; charges never formally filed. The Department charged Hyler with
violations of each of the probation conditions noted above. After a preliminary inquiry, the
hearing officer used a probation violation report to augment the testimony obtained at the
hearing. The report was used without appellant's knowledge. Hyler's probation officer, the
author of the report, did not testify at the preliminary inquiry. The report was also submitted
to the district court to supplement the hearing officer's findings.
Following the preliminary inquiry, Hyler was bound over to the district court for a
revocation hearing for violation of the residency, association and cooperation terms of his
probation. The trial court found violations of the laws and conduct, residency and cooperation
terms.
Among his numerous claims, Hyler alleges that the use of the probation violation report at
the preliminary inquiry departs from the procedural due process precepts of Gagnon v.
Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972); and Anaya v.
State, 96 Nev. 119, 606 P.2d 156 (1980).
[Headnotes 1, 2]
We recognize that the full panoply of constitutional protections afforded defendants in
criminal proceedings does not apply to probation revocation proceedings.
98 Nev. 47, 49 (1982) Hyler v. State
apply to probation revocation proceedings. Morrissey, 408 U.S. at 480; Anaya, 96 Nev. at
122, 606 P.2d at 157. And we acknowledge that trial courts are vested with broad discretion
in probation revocation proceedings. See Lewis v. State, 90 Nev. 436, 529 P.2d 796 (1974).
[Headnote 3]
However, minimal procedural safeguards for revocation proceedings were mandated in
Morrissey and Scarpelli and codified, in part, in NRS 176.216-218. NRS 176.217(2)(d)
demands that a probationer be permitted to [c]onfront and question any person who has
given adverse information on which a revocation of his probation may be based. . . . Hyler's
probation officer did not testify at the preliminary inquiry, nor was the violation report
introduced as evidence in that proceeding. We will not presume that Hyler was aware that the
violation report would serve as a basis of the hearing officer's findings. Hyler could not
confront his probation officer because the officer was not called as a witness, yet the
information supplied by the officer in the violation report was used as a substantial basis for
finding probable cause of probation violations. We conclude that such a procedure is contrary
to the pronouncements in Morrissey, Scarpelli, and Anaya, supra, as well as NRS 176.217.
In the context of this case, we find appellant's other contentions are without merit.
We reverse the trial court's order revoking probation.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 50, 50 (1982) General Scientific Lab. v. Brimer
GENERAL SCIENTIFIC LABORATORIES, INC., Appellant, v. C. M. BRIMER and JOHN
QUIRK, Co-Executors of the Estate of J. W. Von Brimer and the ESTATE OF J. W. VON
BRIMER, Respondents.
No. 12809
January 28, 1982 639 P.2d 1174
Appeal from an order granting summary judgment. Eighth Judicial District Court, Clark
County; Robert G. Legakes, Judge.
Creditor appealed from an order of the district court dismissing its action on a claim
against an estate. The Supreme Court held that where creditor's claim was filed with estate in
1971 after notice to creditors was filed and posted but not published and estate rejected claim
in 1979, creditor's action against estate was not barred by statute of limitations.
Reversed in part and remanded.
Johnson, Pilkington & Reynolds, Las Vegas, for Appellant.
Foley Brothers, Las Vegas, for Respondent.
Executors and Administrators.
Where creditor's claim was filed with estate in 1971 after notice to creditors was filed and posted but not
published and estate rejected claim in 1979, creditor's action against estate was not barred by statute of
limitations. NRS 147.040, subd. 1, 147.090.
OPINION
Per Curiam:
This is an appeal from a summary judgment in favor of respondents. The district court
determined that an action by General Scientific Laboratories, Inc., (GSL) against the Von
Brimer estate was barred by the statute of limitations.
The following chronology is helpful in understanding this case: On March 26, 1971, J. W.
Von Brimer died. On July 30, 1971, the deceased's will was admitted to probate. On
November 18, 1971, a notice to creditors was filed and posted, but not published. On
December 15, 1971, GSL filed a creditor's claim. The claim filed on this date was, as such,
never rejected; and nothing further which was material to this case occurred until January 28,
1979, when an amended notice to creditors was published. On April 5, 1979, GSL filed
eleven creditor's claims. Ten of the claims were new, and one was a restatement of the claim
filed December 15, 1971.
98 Nev. 50, 51 (1982) General Scientific Lab. v. Brimer
claim filed December 15, 1971. Shortly thereafter the estate's executors rejected all GSL
claims, and GSL filed suit on the eleven creditor's claims. The trial court ruled that all claims
were barred by the statute of limitations.
We cannot agree with the trial court's determination. The question concerning the 1971
claim was answered in Brown v. Eiguren, 97 Nev. 251, 628 P.2d 299 (1981). We there held
that filing a creditor's claim with the estate tolls the running of the statute of limitations until
the claim has been rejected so long as the claim was filed within the 90 days required by NRS
147.040(1) and prior to the running of the general limitation period.
1
Since GSL complied
with these prerequisites for the estate claim of December 15, 1971, the action on that claim is
not barred by the statute of limitations. The trial court therefore erred in dismissing this
portion of the law suit. We are, however, unable to determine from the record when the other
ten claims for relief accrued; we thus do not decide whether they are barred by the statute of
limitations.
2

The judgment dismissing the action based on the 1971 claim is reversed and remanded for
further proceedings. The matter of the other ten claims is remanded to the trial court to
determine when each accrued for purposes of the statute of limitations.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

1
NRS 147.090 provides as follows:
NRS 147.090 Effect of statute of limitations. No claim which is barred by the statute of limitations
shall be allowed or approved by the executor or administrator, or by the judge. When a claim is presented
to a judge for his allowance or approval, he may, in his discretion, examine the claimant and others on
oath and hear any legal evidence touching the validity of the claim. No claim, which has been allowed, is
affected by the statute of limitations, pending the administration of the estate.

2
Notice to creditors was first published on January 28, 1979. The eleven claims filed on April 5, 1979, were,
then, properly filed within 90 days after the first publication as required by NRS 147.040.

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer, Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 52, 52 (1982) Slobodian v. State
ROBERT ALLAN SLOBODIAN, aka BOBBY BRAZIL, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 13224
January 28, 1982 639 P.2d 561
Appeal from judgment of conviction of statutory sexual seduction, NRS 200.364(3). First
Judicial District Court, Carson City, Michael E. Fondi, Judge.
The Supreme Court, Mowbray, J., held that instruction that statutory sexual seduction was
a necessarily included offense of sexual assault, with which defendant had been charged, was
reversibly erroneous.
Reversed.
John C. DeGraff, Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City; William A. Maddox, District Attorney,
Carson City; Robert B. Walker, Deputy District Attorney, Carson City, for Respondent.
Criminal Law; Rape.
In prosecution for sexual assault, instruction that statutory sexual seduction was a necessarily included
offense of sexual assault was reversibly erroneous in that crime of statutory sexual seduction requires a
victim under the age of 16 while age of victim is irrelevant to crime of sexual assault, and thus statutory
sexual seduction would not necessarily be committed each time a sexual assault was committed. NRS
200.364, subd. 3, 200.366, subd. 1.
OPINION
By the Court, Mowbray, J.:
Appellant challenges his conviction for statutory sexual seduction, claiming that the jury
was improperly instructed that statutory sexual seduction is a necessarily included offense of
sexual assault. We agree and reverse.
THE FACTS
Appellant was tried on a two-count information. The first count charged kidnapping (NRS
200.310), and the second count charged sexual assault (NRS 200.366). The information did
not charge appellant with statutory sexual seduction (NRS 200.364(3)), and the prosecutor
told appellant before trial that he would not seek a conviction for statutory sexual assault.
98 Nev. 52, 53 (1982) Slobodian v. State
At the close of testimony, the district judge, sua sponte, instructed the jury over appellant's
objection that statutory sexual seduction is a lesser included offense of sexual assault. The
jury found appellant not guilty of the charged offenses: sexual assault and kidnapping, but
convicted him of statutory sexual seduction.
THE PROPRIETY OF THE INSTRUCTION
NRS 175.501 permits a defendant to be convicted of an offense necessarily included in
the offense charged. . . . In Lisby v. State, 82 Nev. 183, 187, 414 P.2d 592, 594 (1966), this
court stated that, to determine whether an offense is necessarily included in the offense
charged, the test is whether the offense charged cannot be committed without committing the
lesser offense. The instant case does not meet the test: the crime of statutory sexual
seduction requires a victim under the age of sixteen,
1
while the age of the victim is irrelevant
to the crime of sexual assault.
2
Therefore, the giving of the instruction was error, and the
conviction must be reversed. See McKinnon v. State, 96 Nev. 821, 618 P.2d 1222 (1980);
State v. Carter, 79 Nev. 146, 379 P.2d 945 (1963).
The state relies on decisions of this court which stated that whether one crime is a lesser
included offense of another depends on the circumstances of each case. Dicus v. District
Court, 97 Nev. 273, 625 P.2d 1175 (1981) (battery with the use of a deadly weapon may be a
lesser included offense of attempted murder); Graves v. Young, 82 Nev. 433, 420 P.2d 618
(1966) (assault with intent to kill may be a lesser included offense of attempted murder).
However, those decisions are not applicable in the instant case. Dicus and Graves each
involved a lesser crime that was so closely related to the charged offense that it was necessary
for the prosecutor to prove the lesser offense in order to prove the greater. In contrast, in the
instant case, the prosecutor was not required to show the victim's age in order to show that a
sexual assault occurred.
____________________

1
NRS 200.364(3) states:
Statutory sexual seduction' means ordinary sexual intercourse, anal intercourse, cunnilingus or
fellatio committed by a person 18 years of age or older with a consenting person under the age of 16
years.

2
NRS 200.366(1) defines sexual assault:
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. . . .
98 Nev. 52, 54 (1982) Slobodian v. State
occurred. Moreover, Dicus and Graves arose in procedural contexts that did not present the
problems of notice to the defendant that the instant case poses.
When the issue of lesser included offenses arises because a defendant claims that the lesser
offense was not properly charged, serious problems of notice and fairness arise. This court
has stated that an indictment or information must be definite enough to prevent the
prosecutor from changing the theory of the case, and it must inform the accused of the charge
he is required to meet. Husney v. O'Donnell, 95 Nev. 467, 469, 596 P.2d 230, 231 (1979).
In the instant case the information did not charge statutory sexual seduction, but sexual
assault. Although the information did mention the victim's age, it did not give notice to the
defendant that he would face the charge of statutory sexual seduction; indeed, the defendant
was specifically assured he would not be held to answer such charges. The defendant met the
charge of sexual assault by claiming consent, and testified to consensual sexual intercourse
with the victim. Only after giving this testimony was the defendant informed that he faced a
conviction for statutory sexual seduction.
We hold that the giving of the contested instruction was error in this case. The judgment of
conviction is accordingly reversed.
Gunderson, C. J., and Manoukian and Springer, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable Cameron M. Batjer, Justice. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 54, 54 (1982) Gidney v. Merrian
JOHN A. GIDNEY, Receiver of NEVADA VENTURES LEASING COMPANY, a Nevada
Limited Partnership, Appellant, v. HERBERT A. MERRIAN, Respondent.
No. 12004
January 28, 1982 639 P.2d 536
Appeal from judgment, Eighth Judicial District Court, Clark County; George E. Marshall,
Judge.
Appeal was taken from a judgment of the district court awarding compensatory and
punitive damages for the wrongful repossession of a vehicle. The Supreme Court, Zenoff, Sr.
J., held that award of punitive damages would not be sustained against corporation in
receivership where there was no evidence of reason for and circumstances surrounding
receivership, and thus cause would be remanded for reevaluation of punitive damage
award in light of such circumstances.
98 Nev. 54, 55 (1982) Gidney v. Merrian
Sr. J., held that award of punitive damages would not be sustained against corporation in
receivership where there was no evidence of reason for and circumstances surrounding
receivership, and thus cause would be remanded for reevaluation of punitive damage award in
light of such circumstances.
Affirmed in part; reversed in part and remanded for further proceedings.
Paul J. Williams, Reno, for Appellant.
Rickdall & Shulman, Las Vegas, for Respondent.
1. Appeal and Error.
Supreme Court will not disturb determination by lower court when it is supported by substantial
evidence.
2. Appeal and Error; Corporations.
In action for wrongful repossession of vehicle, award of punitive damages would not be sustained against
corporation in receivership where there was no evidence of reason for and circumstances surrounding
receivership, and thus cause would be remanded for reevaluation of punitive damage award in light of such
circumstances.
OPINION
By the Court, Zenoff, Sr. J.:
1

This is an appeal from a judgment awarding respondent $1,140.00 in general and special
damages, and $22,500.00 in punitive damages, for the wrongful repossession of respondent's
vehicle.
Appellant raises numerous contentions, including: (1) that the court erred in determining
that appellant wrongfully repossessed the car; (2) that the court erred in determining that
appellant made fraudulent demands upon respondent; (3) that the court erred in finding no
evidence that appellant ever acquired the rights of an assignee to the car; (4) that the award of
punitive damages was excessive and without support; and (5) that punitive damages cannot
be awarded against a corporation in receivership.
[Headnote 1]
The record clearly supports the finding of wrongful repossession and of fraudulent
behavior on the part of appellant. It is well established that we will not disturb a
determination by the lower court when it is supported, as here, by substantial evidence.
____________________

1
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron M. Batjer, Justice, retired. Nev. Const., art. 6, 19(1)(c); SCR 10.
98 Nev. 54, 56 (1982) Gidney v. Merrian
lower court when it is supported, as here, by substantial evidence. Clark Co. Sports v. City of
Las Vegas, 96 Nev. 167, 606 P.2d 171 (1980); Sievers v. Diversified Mtg. Investors, 95 Nev.
811, 603 P.2d 270 (1979). Furthermore, appellant's contention that the court erred in finding
no evidence of proper assignment is without merit.
[Headnote 2]
On the issue of punitive damages, however, we are concerned that the award of
$22,500.00, almost twenty times the amount of the compensatory damages, may work an
injustice under the particular circumstances of this case. From the record, it appears that the
responsible entity, a limited partnership, is in the hands of a receiver. The record does not
reflect the reason for, or the circumstances of, that receivership.
In Lane v. Schilling, 279 P. 267 (Or. 1929), the supreme court of Oregon refused to uphold
an award of punitive damages against a bank in receivership. The court noted, id. at 269:
The effect of allowing the plaintiff to recover punitive damages in this case would be
to compel bona fide creditors and innocent depositors to pay not only the claim of
plaintiff, not only his reasonable proportion of the assets of the bank, but, in addition to
that, a sum of money as exemplary damages to which he is not entitled as a matter of
right and compensation, and thereby fine and punish other creditors, and make plaintiff
a preferred creditor beyond the extent of his actual damages.
The Oregon court noted that the situation of the receiver was analogous to that of the
administrator of an estate, and suggested that to award punitive damages against either would
be to impose vicarious punishment. Id. at 270.
We have similarly emphasized that a plaintiff is never entitled to punitive damages as a
matter of right. Nevada Cement Co. v. Lemler, 89 Nev. 447, 451, 514 P.2d 1180, 1182
(1973). And in Allen v. Anderson, 93 Nev. 204, 562 P.2d 487 (1977), we refused to read
Nevada's survival statute so as to authorize an award of punitive damages against the estate of
a deceased tort-feasor, reasoning that since the deceased tort-feasor can in no way be
punished by the award of punitive damages, there is no reason for allowing such damages to
be assessed. Id. at 208, 562 P.2d at 489-90.
While we recognize that there are no objective standards by which the monetary amount
[of a punitive damage award] can be calculated, Caple v. Raynel Campers, Inc., 90 Nev.
341, 344, 526 P.2d 334, 336-37 (1974), we have also pointed out that equitable factors
should be taken into account. See, e.g., Nevada Cement v. Lemler, supra {remand for
reevaluation).
98 Nev. 54, 57 (1982) Gidney v. Merrian
equitable factors should be taken into account. See, e.g., Nevada Cement v. Lemler, supra
(remand for reevaluation). We are of the view that the case must be remanded for such further
proceedings as the trial court may find necessary to inform itself of the reason for and the
circumstances surrounding the receivership, and for a subsequent reevaluation of the punitive
damage award in light of such circumstances.
The judgment insofar as it awards compensatory damages to respondent is affirmed.
Insofar as it awards punitive damages to respondent, it is reversed and remanded for further
proceedings consistent with this opinion.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., concur.
____________
98 Nev. 57, 57 (1982) Board of Co. Comm'rs v. Cirac
BOARD OF COUNTY COMMISSIONERS OF LANDER COUNTY, BERT T.
GANDOLFO, LOUIS LEMAIRE and NYLE LESHIKAR, Members of the Board, and
EMMA F. GANDOLFO, The Duly-Elected and Acting County Clerk of Lander County and
Clerk of the Board, Appellants, v. DON L. CIRAC, Individually and on Behalf of the Citizens
and Taxpayers of Lander County, Respondents. ANDREA BURTON, Intervenor.
No. 12248
January 28, 1982 639 P.2d 538
Appeal from partial summary judgment. Third Judicial District Court, Lander County;
Frank B. Gregory, Senior District Judge.
Appeal was taken from a judgment of the district court which imposed liability on county
commissioners for damages in the form of attorney fees incurred by taxpayer in an injunction
proceeding which successfully challenged the official action of the commissioners in granting
a removal petition. The Supreme Court, Zenoff, Sr. J., held that county commissioners, who
complied with statute requiring that they inquire into and determine sufficiency of removal
petition and validity of signatures, could not be held liable for damages in form of attorney
fees where they erroneously granted the petition and ordered the matter placed on the general
election ballot.
Reversed and remanded.
98 Nev. 57, 58 (1982) Board of Co. Comm'rs v. Cirac
George G. Holden, District Attorney, and Hy T. Forgeron, Deputy District Attorney,
Lander County, for Appellants.
Woodburn, Wedge, Blakey & Jeppson, and Suellen Fulstone, Reno, for Respondents.
Johnson, Belaustegui & Robison, Reno, for Intervenor.
1. Injunction.
Attorney fees may be awarded as damages in a suit for injunctive relief when properly pleaded and
proved.
2. Officers and Public Employees.
Where an officer is invested with discretion and is empowered to exercise his judgment in matters
brought before him he is sometimes called a quasi-judicial officer, and where so acting he is usually given
immunity from liability to persons who may be injured as result of an erroneous decision, provided the acts
complained of are done within scope of officer's authority, and without wilfulness, malice, or corruption.
3. Counties.
County commissioners, who complied with statute requiring that they inquire into and determine
sufficiency of removal petition and validity of signatures, could not be held liable for damages in form of
attorney fees where they erroneously granted the petition and ordered the matter placed on the general
election ballot.
OPINION
By the Court, Zenoff, Sr. J.:
1

On August 17, 1978, a petition was presented to the clerk of the board of county
commissioners of Lander County with the signatures of 931 persons, seeking an election on
the question of the removal of the county seat from Austin to Battle Mountain.
2
The board of
county commissioners, pursuant to a statutory mandate that it meet and inquire into and
determine the sufficiency of the petition and the validity of the signatures thereto, NRS
243.470(1),
3
found that sufficient valid signatures appeared to grant the petition, and ordered
the matter placed on the November 7, 197S, general election ballot.
____________________

1
The Chief Justice has designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable Cameron M. Batjer, Justice, retired. Nev. Const., art. 6, 19(1)(c); SCR 10.

2
A later petition was allowed by the board and found valid in a separate district court proceeding, upheld by
this Court in Cirac v. Lander County, 95 Nev. 723, 602 P.2d 1012 (1979), and the county seat has now been so
removed.

3
NRS 243.470(1) provides:
1. At the time specified in the notice, the board of county commissioners shall meet and inquire into
and determine the sufficiency
98 Nev. 57, 59 (1982) Board of Co. Comm'rs v. Cirac
placed on the November 7, 1978, general election ballot. Respondent Cirac filed a taxpayer's
suit for injunctive relief and damages. After an evidentiary hearing, the court below granted
the injunction, on the ground that under the applicable statute there were not in fact sufficient
valid signatures on the petition.
4
Appeal of that issue was dismissed, on the ground that the
matter had become moot. Thereafter, Cirac sought, as damages, attorneys' fees incurred in the
injunction proceedings. The court below determined that despite the fact that Cirac's
challenge was to the official action of the commissioners, they were liable for such damages.
Under the circumstances presented here, we must disagree.
[Headnote 1]
We have previously held that attorneys' fees may be awarded as damages in a suit for
injunctive relief when properly pleaded and proved. American Fed. Musicians v. Reno's
Riverside, 86 Nev. 695, 475 P.2d 221 (1970); McIntosh v. Knox, 40 Nev. 403, 165 P. 337
(1917). Cf City of Las Vegas v. Cragin Industries, 86 Nev. 933, 478 P.2d 585 (1970) (not
sought or awarded as damages). The question presented here, however, is whether these
county officials should be subject to such liability for their official action in approving the
removal petition and ordering the question set for election.
[Headnote 2]
The question of the liability of county officials is usually considered by the courts in terms
of whether the acts in question are regarded as discretionary,' or quasi-judicial,' in
character, requiring personal deliberation, decision and judgment, [or] merely ministerial,'
amounting only to an obedience to orders, or the performance of a duty in which the officer is
left no choice of his own. W. Prosser, Law of Torts 132, at 988-89 (4th ed. 1971). As the
matter has been articulated: Where an officer is invested with discretion and is empowered
to exercise his judgment in matters brought before him he is sometimes called a
quasi-judicial officer, and where so acting he is usually given immunity from liability to
persons who may be injured as the result of an erroneous decision, provided the acts
complained of are done within the scope of the officer's authority, and without wilfulness,
malice, or corruption.
____________________
of the petition [for removal of a county seat] and the validity of the signatures thereto, and if sufficient
and signed by the required number the board shall make an order directing that the proposition to remove
the county seat to the place named in the petition be submitted to a vote of the qualified electors of the
county at the next general election, if the same is to occur within 6 months of the time of filing the
petition; otherwise at a special election to be called for that purpose at any time not less than 4 months
nor more than 6 months from the date of filing the petition with the clerk of the board.

4
NRS 243.465 provides, in pertinent part, that a removal petition must be signed by qualified electors of the
county, who are also taxpayers of the county as appears by the last real or personal property assessment roll,
equal in number to at least 60 percent of the legal votes cast at the last preceding general election in the county.
98 Nev. 57, 60 (1982) Board of Co. Comm'rs v. Cirac
Where an officer is invested with discretion and is empowered to exercise his
judgment in matters brought before him he is sometimes called a quasi-judicial officer,
and where so acting he is usually given immunity from liability to persons who may be
injured as the result of an erroneous decision, provided the acts complained of are done
within the scope of the officer's authority, and without wilfulness, malice, or corruption.
Allen v. Miller, 6 N. W.2d 594, 598 (Neb. 1942).
[Headnote 3]
In this case, the county commissioners were instructed by statute to inquire into and
determine the sufficiency of the petition and validity of the signatures. They were called
upon to apply provisions of the relevant statutes to the petitions before them. Courts which
have considered the liability of county commissioners for similar decisions, such as whether
to allow particular claims against the county under applicable laws, have concluded that there
should be no personal liability because of mere errors of judgment, Beadle v. Harmon, 265
N. W. 18, 21 (Neb. 1936), so long as the commissioners act in good faith. See also Welch v.
Kent,153 S.W.2d 284 (Tex.Civ.App. 1941).
In Garden City, G. & N. R. Co. v. Nation, 109 P.772 (Kan. 1910), the court refused to
award costs and attorneys' fees to a successful petitioner for a writ of mandate directed to the
state auditor. The court explained that [t]he duty of the state auditor in passing upon the
question presented in the original case, as to whether the municipal bonds in question should
be registered in his office, involves the decision of a judicial question. His action in deciding
the same is quasi-judicial. The performance of his duty involves the exercise of judgment,
and in the absence of any suggestion of malice, oppression in office, or willful misconduct, he
is not individually responsible. Id. at 773. See also Allen v. Miller, supra.
In this case, respondent Cirac has not alleged, nor does he now claim that there was
evidence of, any bad faith, or corrupt motivation, or any conduct more reprehensible than an
erroneous determination that certain signatures should be allowed. We agree with the
commentator who has suggested that it would be manifestly unfair [t]o ask a man to give his
honest opinion and then impose liability on him for error. R. Gray, Private Wrongs of Public
Servants, 47 Cal.L.Rev. 303, 323 (1959).
The judgment imposing liability upon the county commissioners for damages in the form
of attorneys' fees is reversed, and the case is remanded for the entry of judgment
consistent with this opinion.
98 Nev. 57, 61 (1982) Board of Co. Comm'rs v. Cirac
and the case is remanded for the entry of judgment consistent with this opinion.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., concur.
____________
98 Nev. 61, 61 (1982) Shupe v. Ham
LEWIS H. SHUPE, Executor of the Estate of Doris Ham
Shupe, Appellant, v. A. W. HAM, Jr., Respondent.
No. 12324
January 28, 1982 639 P.2d 540
Appeal from judgments; Eighth Judicial District Court, Clark County; Llewellyn A.
Young, Judge.
In a suit for breach of fiduciary duty by purchasing real property held in trust for plaintiff,
plaintiff appealed from adverse judgments of the district court. The Supreme Court, Howard
D. McKibben, D. J., held that: (1) where a fiduciary acquired title to trust property from
beneficiary with her knowledge and consent and for consideration, commencement of
three-year limitation of actions for breach of fiduciary duty was not delayed until express and
unequivocal termination of the trust by trustee nor until beneficiary learned of any breach of
trust, but, rather, limitation period began to run when beneficiary knew or reasonably should
have known facts giving rise to alleged breach of fiduciary duty; and (2) alleged beneficiary
was not, on alleged trustee's exercise of option to purchase from beneficiary, entitled to
receive rent between time that alleged trustee as tenant tendered $1,000,000 to exercise
option and time that alleged beneficiary executed deed to the property to him; but (3) it is
inequitable to allow purchaser of realty beneficial enjoyment of property and use of purchase
money to detriment of vendor, absent compelling equity, and where alleged trustee who as
tenant exercised option to purchase enjoyed possession of property during period in question
and paid no rent and had full use of option money during such period, alleged trust
beneficiary as vendor was entitled to interest on purchase money.
Affirmed in part; reversed in part and remanded.
[Rehearing denied May 28, 1982]
Lionel Sawyer & Collins, and Charles McCrea, Las Vegas, for Appellant.
Dickerson, Miles, Pico, Mitchell & Wagner, Las Vegas, for Respondent.
98 Nev. 61, 62 (1982) Shupe v. Ham
1. Limitation of Actions.
Breach of fiduciary duty is fraud to which three-year statute of limitations is applicable. NRS 11.190,
11.190, subd. 3(d).
2. Limitation of Actions.
Where fiduciary acquired title to trust property from beneficiary with her knowledge and consent and for
consideration, commencement of three-year limitation of actions for breach of fiduciary duty was not
delayed until express and unequivocal termination of the trust by trustee nor until beneficiary learned of
any breach of trust, but, rather, limitation period began to run when beneficiary knew or reasonably should
have known facts giving rise to alleged breach of fiduciary duty. NRS 11.190, 11.190, subd. 3(d).
3. Landlord and Tenant.
Owner of realty was not entitled to receive rent between time that her alleged trustee as tenant tendered
$1,000,000 to her to exercise option to purchase and time that she executed deed to the property to him.
4. Landlord and Tenant.
It is inequitable to allow purchaser of realty beneficial enjoyment of property and use of purchase money
to detriment of vendor, absent compelling equity, and where tenant who exercised option to purchase
enjoyed possession of property during period in question and paid no rent and had full use of option money
during such period, vendor was entitled to interest on purchase money.
OPINION
By the Court, McKibben, D. J.:
1

Appellant Doris Ham Shupe brought suit against the respondent, her former husband, A.
W. Ham, Jr., contending that Ham breached his fiduciary duty to Shupe by purchasing real
property which he held in trust for her. After a trial before an advisory jury, the district court
entered judgment for respondent, which judgment was consistent with the advisory verdicts.
This appeal followed.
The parties' twenty year marriage ended in divorce on August 9, 1962. Under a property
settlement agreement, appellant received an interest in the following property which is
relevant to this action:
A. One-third of the net profits from the sale or lease of Lots 1-5, Block 19, Clark's
Las Vegas Town Site in the City of Las Vegas (hereafter the Four Queens property);
B.
____________________

1
The Governor designated the Honorable Howard D. McKibben, Judge of the Ninth Judicial District Court,
to sit in the place of The Honorable Cameron M. Batjer. Nev. Const., art, 6, 4.
98 Nev. 61, 63 (1982) Shupe v. Ham
B. An undivided one-half interest in Lots 1 and 2, Block 14, Clark's Las Vegas
Town Site (hereafter the California Club property); and
C. An undivided one-half interest in thirty percent of the proceeds from
approximately 70 acres of property located on the corner of Maryland Parkway and
Sahara Avenue (hereafter the Maryland-Sahara property).
Under the settlement agreement, Ham retained legal title to the above properties.
On December 4, 1962, appellant executed a general power of attorney appointing
respondent as her attorney-in-fact and granting him broad powers over her properties. This
power of attorney was revoked June 14, 1973. On January 1, 1963, appellant executed a
private trust agreement into which the above described properties and others were placed.
Respondent was named as sole trustee of the trust. The present dispute involves two
transactions between Shupe and Ham. The first occurred on December 4, 1962, when Ham
purchased Shupe's interest in the Four Queens property for $5,000.00, and an agreement to
serve as trustee under the January 1, 1963, trust without compensation. The second
transaction occurred on August 12, 1969, when Shupe entered into a lease option agreement
with Ham on the California Club and Maryland-Sahara properties. The lease was for a term
of 99 years with rental of $7,500.00 per month and an option to purchase Shupe's interest for
$1,000,000.00. In June 1973, Ham executed a trust for the benefit of his children into which
he conveyed his interest in the California Club and Maryland-Sahara properties. During July
1973, appellant filed her complaint against respondent to set aside the conveyance of the Four
Queens property. Appellant amended her complaint on July 12, 1974, and sought to set aside
the lease option agreement on the California Club and Maryland-Sahara properties. That
portion of the complaint relating to the lease option agreement was dismissed in November
1975 for failure to join indispensable parties (the parties' children, who were beneficiaries
under the Ham trust). Thereafter, on March 16, 1976, in a separate action, appellant filed a
cross-claim against Ham seeking money damages arising from the lease option agreement.
On November 22, 1976, appellant's amended complaint and cross-claim were consolidated
for trial. On February 16, 1977, the district court granted summary judgment in favor of Ham
on his counter-motion for partial summary judgment and against Shupe on her claim that she
was entitled to receive either rental or interest on the California Club and Maryland-Sahara
properties under the terms of the lease option agreement between the time Ham exercised
his right to purchase the property and the time Shupe tendered the deed to the property
to Ham.
98 Nev. 61, 64 (1982) Shupe v. Ham
lease option agreement between the time Ham exercised his right to purchase the property
and the time Shupe tendered the deed to the property to Ham.
The district court found that appellant's complaint and cross-claim were barred by the
statute of limitations. That finding is supported by substantial evidence and is dispositive of
the principal issues on appeal.
[Headnote 1]
A breach of fiduciary duty is a fraud giving rise to the application of the three year statute
of limitations. NRS 11.190(3)(d).
2

[Headnote 2]
Respondent cites Davidson v. Streeter, 68 Nev. 427, 234 P.2d 793 (1951), and Levy v.
Ryland, 32 Nev. 460, 109 P. 905 (1910) for the proposition that the statute of limitations does
not commence running until the trust is expressly and unequivocally terminated by the
trustee. Both Davidson and Levy are inapposite as they involved resulting trusts. In those
cases, the trustee held the property at all times for the benefit of the beneficiary, consistent
with the trust and the intendments of the parties. Here, as distinguished from Davidson and
Levy, the fiduciary (Ham) acquired title to the trust property from his beneficiary (Shupe)
with her knowledge and consent and for consideration.
3

In 1962 and in 1969, Ham acquired his interest in the properties under documents which
were signed by Shupe. The conveyance of the Four Queens property and the execution of the
lease option agreement on the California Club and Maryland-Sahara properties by Shupe
were inconsistent with the continuation of any trust and terminated any trust as to the property
conveyed. Nevertheless, appellant argues that the statute of limitations does not commence
running until appellant learned of any breach of trust by Ham.
____________________

2
NRS 11.190 provides in pertinent 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 facts constituting the fraud or
mistake.

3
Appellant was represented by independent counsel different from her present counsel during all of the
transactions in question.
98 Nev. 61, 65 (1982) Shupe v. Ham
of any breach of trust by Ham. However, the district court correctly held that the statute of
limitations began to run when the appellant knew or reasonably should have known facts
giving rise to respondent's alleged breach of fiduciary duty. This is consistent with this court's
holdings in Millspaugh v. Millspaugh, 96 Nev. 446, 611 P.2d 201 (1980), and Allen v. Webb,
87 Nev. 261, 485 P.2d 677 (1971); see also Hobart v. Hobart Estate Co., 159 P.2d 958 (Cal.
1945).
On the issue of knowledge, the trial court, with an advisory jury, heard the conflicting
evidence and made its findings and determination that the appellant had knowledge or that a
reasonable person should have had knowledge of any alleged fraud of respondent in
connection with respondent Ham's interest in and the value of the Four Queens property no
later than January 1, 1966, and on August 12, 1969, as to the California Club and
Maryland-Sahara properties. Where there is substantial evidence to support the trial court's
rulings, even if there is a conflict in the evidence, the trial court's conclusions will not be
disturbed on appeal. Alrich v. Bailey, 97 Nev. 342, 630 P.2d 262 (1981); Blanchard v.
Nevada State Welfare Dep't, 91 Nev. 749, 542 P.2d 737 (1975); Sala & Ruthe Realty, Inc. v.
Deneen, 89 Nev. 98, 507 P.2d 140 (1973). Here, the record reflects that during or prior to
1965, Shupe told one of her children that Ham was the landlord of the Four Queens property.
At that time, she had sufficient knowledge to know that Ham was collecting rent on the
property and that she would have been entitled to one-third of that rent if she had not
conveyed the Four Queens property to Ham on December 4, 1962. However, she waited for
almost eight years, until July 17, 1973, to file her lawsuit. The evidence also shows that
Shupe did not enter into the lease option agreement on the California Club and
Maryland-Sahara properties until after she had been advised by Ham that even though the
California Club property was in bankruptcy she should retain her interest in the property and
until after she had received independent legal advice from the attorney who represented her at
that time and independent business advice from a banker. Therefore, the evidence supports
the conclusion of the trial court that Shupe, on August 12, 1969, had sufficient facts to cause
a reasonable person to inquire, and, in fact, she did inquire, as to the fairness of the lease
option agreement and was satisfied that it was in her best interest to enter into the lease option
agreement at that time.
The trial record contains substantial evidence to support the findings of the trier of fact
that the three year statute of limitations had run as to both properties prior to commencement
of suit and those findings will not be disturbed on appeal.
98 Nev. 61, 66 (1982) Shupe v. Ham
[Headnotes 3, 4]
The final issue raised in this appeal to be considered is whether the appellant is entitled to
receive either rental or interest on the California Club and Maryland-Sahara properties under
the terms of the lease option agreement between the time Ham attempted to exercise the
option to purchase the property and the date Shupe tendered the deed to the property to him.
On April 1, 1974, Ham notified Shupe of his intention to exercise the option on the California
Club and Maryland-Sahara properties. Shupe refused the tender because her suit to rescind
the contract on the subject property was pending. On February 24, 1975, Shupe quit-claimed
her interest in the properties to Ham and accepted the tender of $1,000,000.00. Shupe first
contends that she is entitled to the rental payments on the property under the terms of the
lease agreement for that period of time. While the courts are not in harmony on this issue, a
majority of the courts hold that upon exercise of the option, the landlord-tenant relationship is
terminated and the tenant is in possession as vendee. These courts do not allow the lessor to
recover rent after the option to purchase is exercised absent an express provision therefor.
United States v. Bethlehem Steel Company, 215 F.Supp. 62 (D.Md. 1962); Cities Service Oil
Co. v. Viering, 89 N.E.2d 392 (Ill. 1949); Moore v. Maes, 52 S.E.2d 204 (S.C. 1949).
Further, in Summa Corp. v. Richardson, 93 Nev. 228, 564 P.2d 181 (1977), this court stated:
Upon the exercise of the option, the landlord-tenant relationship of the parties was
converted to that of vendor-vendee. 1 American Law property, 3.84 at 363 (1952).
After exercise, respondents can not avail themselves of breaches of covenants in the
lease to work a forfeiture of the option. (Citations omitted.) Id. at 235, 564 P.2d at 185.
Therefore, we conclude that Shupe was not entitled to receive rent between the time Ham
tendered the $1,000,000.00 to exercise the option to purchase (April 1, 1974) and the time
Shupe executed the deed to the property (February 24, 1975).
Alternatively, Shupe asserts that she is entitled to interest payments on the purchase
money. The authorities are also divided on this issue. One view is that the purchaser in
possession is liable for interest on the purchase price from the date it is due even though the
contract is not completed at the time fixed for completion and even though the delay is caused
by the seller. See Tri State Mall Associates v. A.A.R. Realty Corp., 298 A.2d 368 (Del.Ch.
1972); Wilcox v. Commonwealth Realty & Trust Co.,
98 Nev. 61, 67 (1982) Shupe v. Ham
& Trust Co., 227 N.W. 678 (Mich. 1929); Sladkin v. Greene, 59 A.2d 105 (Pa. 1948);
Kubnick v. Bohne, 202 N.W.2d 400 (Wis. 1972). Other courts disallow interest if a purchaser
made a tender sufficient to entitle him to specific performance, Brewster Cooperative Grow.
v. Brewster Orch. Corp., 150 P.2d 847 (Wash. 1944), or where the seller was able to perform
but wilfully refused to do so. Wood v. Howland, 101 N.W. 756 (Iowa 1904).
Respondent was in possession of the property during the period in question. Respondent
paid no rent on the property and had the full use of the option money during that period. It is
inequitable to allow the purchaser the beneficial enjoyment of the property and the use of the
purchase money to the detriment of the vendor absent a more compelling equity than exists in
this case.
Accordingly, the judgment of the district court is affirmed except that the order of the
district court granting summary judgment to respondent on the issue of interest on the
purchase money is reversed.
Therefore, this matter is remanded to the district court with instructions to enter an order
setting aside the summary judgment on respondent's counter-motion for partial summary
judgment on the issue of interest payments and for further proceedings in the district court to
conclude the matter relative to the payment of interest consistent with this opinion.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., concur.
____________
98 Nev. 67, 67 (1982) D & C Builders v. Cullinane
D & C BUILDERS and the NEVADA INDUSTRIAL COMMISSION, Appellants, v. KORY
CULLINANE, Respondent.
No. 12871
January 28, 1982 639 P.2d 544
Appeal from judgment granting respondent's claim to industrial insurance benefits, Eighth
Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Employer and the Nevada Industrial Commission appealed from decision of the district
court which reversed decision of appeals officer and granted employee's claim for industrial
insurance benefits. The Supreme Court, Manoukian, J., held that employee, who left
employer's construction site for extended lunch break during which he planned to purchase
special staples needed for the construction project and visit a friend, was on a bona fide
business errand when he was seriously injured when his motorcycle collided with an
automobile before he reached the store and thus was entitled to industrial benefits.
98 Nev. 67, 68 (1982) D & C Builders v. Cullinane
extended lunch break during which he planned to purchase special staples needed for the
construction project and visit a friend, was on a bona fide business errand when he was
seriously injured when his motorcycle collided with an automobile before he reached the
store and thus was entitled to industrial benefits.
Affirmed.
Reid & Alverson, Las Vegas, Claude Zobell, Las Vegas, for Appellant D & C Builders.
Frank A. King, Las Vegas, for Appellant Nevada Industrial Commission.
Bernstein & Piazza, Las Vegas, for Respondent.
1. Administrative Law and Procedure.
Administrative Procedure Act limits on scope of review of an appeals officer's decision by district court
also binds the Supreme Court when reviewing district court action taken on an administrative decision.
NRS 233B.140, subd. 5.
2. Workers' Compensation.
Proper test for determining compensability of injury sustained by an employee who has embarked on a
trip off employer's premises for both business and personal reasons requires only that business nature of the
excursion be bona fide.
3. Workers' Compensation.
Employee, who left employer's construction site for extended lunch break during which he planned to
purchase special staples needed for the construction project and visit a friend, was on a bona fide business
errand when he was seriously injured when his motorcycle collided with an automobile before he reached
the store and thus was entitled to industrial benefits.
OPINION
By the Court, Manoukian, J.:
Appellants appeal from the decision of the district court which granted respondent's
claim for industrial insurance benefits and reversed the decision of the appeals officer.
Appellants contend that the district court exceeded its proper scope of review. We disagree
and affirm the lower court's decision.
Respondent Kory Cullinane was an employee of appellant, D & C Builders. On May 25,
1979, he left his employer's construction site in North Las Vegas with his brother. According
to respondent, he planned to purchase special staples needed for the construction project and
visit a friend during an extended lunch break. Respondent testified that after picking up his
motorcycle at his house, he traveled enroute to K-Mart, where he intended to pick up the
staples for work.
98 Nev. 67, 69 (1982) D & C Builders v. Cullinane
up his motorcycle at his house, he traveled enroute to K-Mart, where he intended to pick up
the staples for work. Before he reached the store, he was seriously injured in a collision with
an automobile.
The Nevada Industrial Commission initially denied respondent's claim. A hearing officer
reversed the NIC's decision, and appellant D & C Builders appealed that decision to an
appeals officer. The appeals officer reversed the hearing officer's decision and denied
respondent's claim, finding that respondent was not within the scope and course of his
employment when injured because his primary purpose in taking the motorcycle trip was to
visit his friend. The business errand--to obtain the staples--was determined to be incidental to
the dominant, personal purpose of the excursion.
Respondent petitioned the district court for review. The district court reversed the appeals
officer's decision and granted respondent's claim to industrial benefits. This appeal ensued.
[Headnote 1]
The relevant portion of the Administrative Procedure Act (APA), NRS 233B.140(5),
1
imposes limits on the scope of review of an appeals officer's decision by the district court. We
are bound by the same limitations when reviewing district court action taken on an
administrative decision. No. Las Vegas v. Pub. Serv. Comm'n, 83 Nev. 278, 429 P.2d 66
(1967). We turn to determine the propriety of the trial court's action in light of these
standards.
Marks v. Gray, 167 N.E. 181 (N.Y. 1920), is the seminal case involving compensability of
injury sustained by an employee who has embarked on a trip off the employer's premises for
both business and personal reasons--the so-called dual purpose doctrine. Judge Cardozo
applied a formula in the Marks case, referred to in contemporary case law and
commentary as the "concurrent purpose" test:
____________________

1
NRS 233B.140(5) provides:
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:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Made upon unlawful procedure;
(d) Affected by other error of law;
(e) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record;
or
(f) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of
discretion.
98 Nev. 67, 70 (1982) D & C Builders v. Cullinane
case, referred to in contemporary case law and commentary as the concurrent purpose test:
We do not say that service to the employer must be the sole cause of the journey, but at
least it must be a concurrent cause. To establish liability, the inference must be
permissible that the trip would have been made though the private errand had been
canceled . . . . The test in brief is this: If the work of the employee creates the necessity
for travel, he is in the course of his employment, though he is serving at the same time
some purpose of his own . . . . If, however, the work has had no part in creating the
necessity for travel, if the journey would have gone forward though the business errand
had been dropped, and would have been canceled upon failure of the private purpose,
though the business errand was undone, the travel is then personal, and personal the
risk.
Id. at 182-83.
2

The dual purpose doctrine has been interpreted by many jurisdictions to invoke a weighing
of the business and personal motivations for the trip to determine the primary or
dominant purpose of the excursion. Courts and commentators have cautioned against this
approach. See Cook v. Highway Casualty Co., 82 So.2d 679 (Fla. 1955); Downs v. Durbin
Corp., 416 S.W.2d 242 (Mo.App. 1967); 1 A. Larson, Workmen's Compensation Law,
18.13 (1978). We believe that such weighing of purposes imposes a rigidity not contemplated
by the Marks decision. Moreover, we find such weighing to be contrary to the remedial nature
of workmen's compensation law. See Cook, supra, at 682.
[Headnote 2]
We have not previously addressed the conflict between the dominant purpose or
concurrent purpose tests derived from Marks, supra, nor have we made a choice between
them. However, we believe that the proper test should require only that the business nature of
an excursion be bona fide. This approach is more consistent with the remedial purposes of
our workmen's compensation act than either the concurrent purpose or the primary
purpose tests. This rule will nonetheless leave the broad discretion of the administrative
tribunals and officers relatively unfettered.
____________________

2
Professor Larson notes the following caveat:[I]t is not necessary, under this formula, that, on failure of the
personal motive, the business trip would have been taken by this particular employee at this particular time. It is
enough that someone sometime would have had to take the trip to carry out the business mission. 1 A. Larson,
Workmen's Compensation Law, 18.13 (1978) (Citing Gingell v. Walters Contracting Corp., 303 S.W.2d 683
(Mo.App. 1957)). (Emphasis in original.)
98 Nev. 67, 71 (1982) D & C Builders v. Cullinane
and officers relatively unfettered. To determine the business legitimacy or bona fides of a trip,
we must review the evidence before the trial court when it made its determination to overturn
the appeals officer's decision.
Although appellants contend that the trial court substituted its judgment for that of the
appeals officer, our review of the record demonstrates that the appeals officer's decision was
based largely on inference as to respondent's intent and was grounded on the misapprehension
that a dominant personal motive for the trip would bar recovery. There was no testimony to
controvert respondent's claims that he undertook the trip with a dual purpose--to obtain
staples and see a girlfriend; that he would not have gone to see the friend if the business
errand was unnecessary; and that he was enroute to the K-Mart to purchase staples when the
accident occurred. The need for staples was corroborated by the respondent's father, who
supervised the work at the job site. It was also clear from the employer's testimony that
respondent and his co-workers were responsible for procuring supplies for the job, and often
did so at various stores in the Las Vegas area.
[Headnote 3]
Administrative or adjudicative tribunals are permitted to make findings of fact based on
reasonable inferences supported by the evidence, Heidtman v. Nevada Industrial
Commission, 78 Nev. 25, 368 P.2d 763 (1962). Here, however, the inference that respondent
was outside the scope of his employment was not justified by the evidence. Even if we chose
to subscribe to the restrictive dominant purpose rule, the fact that respondent chose the
particular K-Mart because it was closest to his own and his friend's home does not support an
inference that he intended the trip to be primarily personal: combining personal with business
purposes, in our view, does not necessarily alter the business character of the trip. Marks,
supra. The record is devoid of any evidence suggesting that respondent was not at the time of
the collision intent on accomplishing a task within the scope of his employment and of
benefit to his employer. Compare, National Convenience Stores v. Fantauzzi, 94 Nev. 655,
659, 584 P.2d 689, 692 (1978) (vicarious liability imposed under special errand exception to
going and coming rule).
We believe that the facts of this case would support an award under either the concurrent
purpose or primary purpose tests derived from Marks, supra, as well as under the bona fide
business purpose test we adopt today. We hold that recovery will be allowed where, as here,
the employee was on a bona fide business errand when the incident giving rise to the claim
occurred. See e.g., Kaplan v. Alpha Epsilon Phi Sorority, 42 N.W.2d 342 {Minn.
98 Nev. 67, 72 (1982) D & C Builders v. Cullinane
N.W.2d 342 (Minn. 1950). This is so, even though the record is clear that respondent was
simultaneously pursuing his own interest. See Blesy v. United States, 443 F. Supp. 358 (W.D.
N.Y. 1978).
The district court did not exceed the proper scope of review. The appeals officer's decision
was clearly erroneous in view of the reliable, probative and substantial evidence on the whole
record. NRS 233B.140(5).
We affirm the judgment of the trial court.
Gunderson, C. J., and Springer and Mowbray, JJ., and Zenoff, Sr. J.
3
concur.
____________________

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable Cameron M. Batjer, who voluntarily disqualified himself in this case. Nev. Const., art. 6, 19; SCR
10.
____________
98 Nev. 72, 72 (1982) McKinnon v. Cantarutti-Althuizen
DAVID G. McKINNON, dba BLUE STARR AUTO PAINT & REPAIR, Appellant, v.
CANTARUTTI-ALTHUIZEN, A Joint Venture, Respondent.
No. 12478
January 29, 1982 639 P.2d 563
Appeal from an order for remittitur or, alternatively, a new trial following a jury verdict in
favor of defendant-counterclaimant. Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Landlord brought action for unlawful detainer and tenant counterclaimed for damages for
landlord's unlawfully changing locks on premises. The district court entered judgment for
tenant but later entered an order for remittitur or, alternatively, a new trial. Tenant appealed.
The Supreme Court, Springer, J., held that where tenant brought counterclaim against
landlord, who had commenced action for unlawful detainer, for damages for unlawfully
changing locks on premises but did not bring claim for forcible entry or forcible or unlawful
detainer, tenant was not entitled to treble damages.
Affirmed.
Walther, Key, Maupin, Oats, Cox, Lee & Klaich, Reno, for Appellant.
Manoukian, Scarpello & Alling, and W. F. Bill Huss, Carson City, for Respondent.
98 Nev. 72, 73 (1982) McKinnon v. Cantarutti-Althuizen
Landlord and Tenant.
Where tenant brought counterclaim against landlord, who had commenced action for unlawful detainer,
for damages for unlawfully changing locks on premises but did not bring claim for forcible entry or
forcible or unlawful detainer, tenant was not entitled to treble damages. NRS 40.360.
OPINION
By the Court, Springer, J.:
This matter comes before us on the appeal of McKinnon and the cross-appeal of
Cantarutti-Althuizen.
Cantarutti commenced the action by suing its tenant McKinnon for unlawful detainer.
McKinnon counterclaimed on the basis that Cantarutti had unlawfully changed the locks on
the premises. McKinnon claimed that this act constituted unlawful eviction, and that he
was therefore entitled to actual damages and treble damages pursuant to NRS 40.360.
A jury rendered a verdict against Cantarutti on Cantarutti's complaint and in favor of
McKinnon on McKinnon's counterclaim. Damages were assessed in the amount of $15,000.
The jury also found on a special interrogatory that Cantarutti had committed acts constituting
forcible detainer. The trial court entered judgment on the verdict in favor of McKinnon for
$15,000 and trebled that amount on the basis of NRS 40.360.
Cantarutti moved for judgment notwithstanding the verdict or, in the alternative, for a new
trial. In ruling on these motions the trial court concluded that it had erred in giving its
instruction on forcible detainer and the related special interrogatory. The court therefore
determined it was error to have entered judgment for treble damages. The court concluded,
however, that it would not disturb the general verdict for $15,000. McKinnon was ordered
either to accept the $15,000 general verdict or to agree to a new trial.
We affirm the trial court's findings and conclusions. NRS 40.360 requires assessment of
treble damages only in cases of forcible entry or forcible or unlawful detainer.
1
These causes
of action are all possessory in nature.
____________________

1
NRS 40.360 provides in pertinent part:
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
98 Nev. 72, 74 (1982) McKinnon v. Cantarutti-Althuizen
action are all possessory in nature. Their objective is to reinstitute possession of property
where one has wrongfully been excluded.
2
McKinnon did not allege any of these actions in
his counterclaim. He merely sued for damages on the claim that he had unlawfully been
denied access to the premises. Moreover, it was conceded that, at the time McKinnon filed
the counterclaim, he no longer wished to resume possession of the former leasehold.
McKinnon simply wanted damages. The action was therefore not a detainer action.
McKinnon suggests, and we find, no other basis for trebling the damages award. In
accordance with our firmly established principle not to extend by implication penalties or
forfeitures, we decline McKinnon's request to reinstate the treble damages order. See Hoopes
v. Meyer, 1 Nev. 433 (1865).
The order for remittitur or, alternatively, a new trial is accordingly affirmed.
Gunderson, C. J., and Mowbray, J., and McDaniel, D. J.,
3
and Zenoff, Sr. J.,
4
concur.
____________________
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. (Emphasis
supplied.)

2
NRS 40.360 provides that the judgment in favor of a plaintiff in a forcible entry or detainer action shall be
for restitution of the premises:
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.
(Emphasis supplied.)

3
The Governor designated Honorable Joseph O. McDaniel, District Judge of the Fourth Judicial District, to
sit in this case in place of The Honorable Noel Manoukian who voluntarily recused himself. Nev. Const., art. 6,
4.

4
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 75, 75 (1982) State v. Phillips
STATE BAR OF NEVADA, Petitioner, v. IRVING
RUSSELL PHILLIPS, Respondent.
No. 13782
February 1, 1982 639 P.2d 565
ORDER GRANTING PETITION
The State Bar of Nevada petitions this court to impose the stated form of discipline
contained in the conditional plea of guilty tendered by Irving Russell Phillips, Attorney at
Law. The conditional plea has been approved by five members of the Southern Disciplinary
Board. SCR 113(1).
Good cause appearing, the conditional plea is approved and the petition is granted.
Accordingly, we
ORDER that Irving Russell Phillips, Attorney at Law, be suspended from the practice of
law for a period of five years, and that at the conclusion of the five year period Irving Russell
Phillips may petition this court for reinstatement. It is further
ORDERED that Irving Russell Phillips make restitution to the State Bar of Nevada, for
distribution to the individuals named in the conditional plea of guilty, in the amount of
$5,139.25.
____________
98 Nev. 75, 75 (1982) Doane v. State
JOHN EUGENE DOANE, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12331
February 3, 1982 639 P.2d 1175
Appeal from judgment of conviction and sentences following guilty pleas, Eighth Judicial
District Court, Clark County; Howard D. McKibben, Judge.
Defendant was convicted in the district court of kidnapping, mayhem, attempted murder,
robbery, multiple counts of sexual assault with substantial bodily harm, and employing use of
a deadly weapon, and he appealed. The Supreme Court, Gunderson, C. J., held that where
prosecutor breached negotiated plea bargain requiring state to stand silent at time of
sentencing, district court erred when it denied defendant's motion to withdraw his guilty
pleas and, instead, vacated judgment and assigned case for resentencing, but withdrawal
of defendant's guilty pleas was not warranted; rather, imposition of sentence consistent
with district judge's original pronouncement, made prior to breach of plea bargain
agreement, restored defendant to position he would have enjoyed but for the breach.
98 Nev. 75, 76 (1982) Doane v. State
withdraw his guilty pleas and, instead, vacated judgment and assigned case for resentencing,
but withdrawal of defendant's guilty pleas was not warranted; rather, imposition of sentence
consistent with district judge's original pronouncement, made prior to breach of plea bargain
agreement, restored defendant to position he would have enjoyed but for the breach.
Reversed and remanded.
Morgan D. Harris, Public Defender, and William P. Henry, Deputy Public Defender,
Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland and Booker T. Evans, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Where state has agreed to stand mute at time of sentencing, it may not be allowed to violate plea bargain
agreement to detriment of defendant.
2. Criminal Law.
When state breaches agreement to stand mute at time of sentencing, defendant's rights can be protected
either by permitting withdrawal of negotiated plea or by resentencing before judge untainted by violation.
3. Criminal Law.
Where prosecutor breached negotiated plea bargain requiring state to stand silent at time of sentencing,
district court erred when it denied defendant's motion to withdraw his guilty pleas and, instead, vacated
judgment and assigned case for resentencing; however, withdrawal of defendant's guilty pleas was not
warranted; rather, imposition of sentence consistent with district judge's original pronouncement, made
prior to breach of plea bargain agreement, restored defendant to position he would have enjoyed but for the
breach.
OPINION
By the Court, Gunderson, C. J.:
In addition to counts of kidnapping, mayhem, attempted murder and robbery, the State
charged appellant with multiple counts of sexual assault with substantial bodily harm,
employing use of a deadly weapon. In return for negotiated pleas of guilty to all counts, the
State agreed to limit its remarks about sentencing to an agreed-upon statement made at the
entry of the pleas. The State was to stand silent at the time of sentencing.
98 Nev. 75, 77 (1982) Doane v. State
NRS 176.035(1) provides that multiple sentences shall run concurrently unless otherwise
specified. Without specifying that the sentences were to run consecutively, the district court
judge pronounced the maximum sentence permissible by law on each and every count.
Immediately after the court articulated these sentences, the prosecutor inquired whether the
sentences should run consecutively. The court then replied that consecutive sentences would
be appropriate, and so ordered.
1

The parties have stipulated that the prosecutor's comment constituted a breach of the
negotiated plea bargain. Based on such breach, appellant moved to set aside his guilty pleas,
but the district court denied appellant's motion. Instead, the district court vacated its original
sentence, sealed the record relevant to the sentencing, and assigned the case to another judge
who rendered sentence. As a result, appellant would receive a term of punishment more than
double the concurrent sentences originally imposed. On appeal, the sole issue is whether the
district court erred when it denied appellant's motion to withdraw his guilty pleas and,
instead, vacated the judgment and assigned the case for resentencing.
[Headnotes 1-3]
Where the State has agreed to stand mute at the time of sentencing, it may not be allowed
to violate the plea bargain agreement to the detriment of defendant. Commonly, when a
breach occurs, a defendant's rights can be protected either by permitting withdrawal of the
negotiated plea or by resentencing before a judge untainted by the violation. Santobello v.
New York, 404 U.S. 257, 92 S.Ct. 495 (1971). However, in the peculiar facts of this case, the
remedy fashioned by the district court gave the State more than the bargain to which it is
entitled. Not satisfied with sentences already pronounced, the State was allowed to interfere
with the sentence, and thereby to gain another opportunity for increased sentences. This, we
believe, cannot be permitted.
On the other hand, we think withdrawal of appellant's guilty pleas would not be the
warranted remedy. In the instant case, the primary witness is now dead by the device of
another, and it is probable that the State could no longer prosecute. To allow appellant to
withdraw his guilty pleas would place the prosecution in an untenable position.
____________________

1
The prosecutor asked, Your honor, are all the sentences on all the counts consecutive? The court
answered, I think that would be appropriate in this case.
98 Nev. 75, 78 (1982) Doane v. State
Withdrawal of guilty pleas typically is allowed to restore the accused to a position he
enjoyed prior to the breached agreement, because breach has denied him the benefit for which
he bargained. See Cook v. Warden, 91 Nev. 636, 541 P.2d 642 (1975). Such a result is not
required where the accused can be assured the full benefit of the bargain. Here, the sentencing
judge had articulated an operable sentence before any interference by the State. Thus, in this
factual situation, imposition of the original sentence will restore appellant to the position he
would have enjoyed but for the breach.
Accordingly, we reverse and remand for the formal imposition of sentence consistent with
the Honorable Michael Wendell's original pronouncement, made prior to breach of the plea
bargain agreement.
Manoukian, Springer, and Mowbray, JJ., and O'Donnell, D. J.,
2
concur.
____________________

2
The Governor designated the Honorable Thomas J. O'Donnell, District judge of the Eighth Judicial District,
to sit in this case in place of The Honorable Cameron Batjer. Nev. Const., art. 6, 4.
____________
98 Nev. 78, 78 (1982) Hickson v. State
THOMAS FRANCIS HICKSON, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 12637
February 25, 1982 640 P.2d 921
Appeal from judgment of conviction of robbery and attempted robbery, Second Judicial
District Court, Washoe County, John E. Gabrielli, Judge.
The Supreme Court held that evidence was sufficient to support finding that defendant was
guilty of general intent crime of robbery.
Affirmed.
William N. Dunseath, Public Defender; N. Patrick Flanagan, Deputy public Defender,
Washoe County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney,
Edward B. Horn, Deputy District Attorney, Washoe County, for Respondent.
Robbery.
Evidence was sufficient to support finding that defendant was guilty of general intent crime of robbery.
98 Nev. 78, 79 (1982) Hickson v. State
OPINION
Per Curiam:
Appellant was tried and convicted by a jury on an information alleging two separate
incidents of criminal conduct involving two victims. Evidence was adduced at the trial that
would indicate that appellant was drinking prior to the incidents. The degree of intoxication
was a disputed issue at the trial.
Appellant's trial occurred several weeks before our decision in Turner v. State, 96 Nev.
164, 605 P.2d 1140 (1980) but after the early decision of State v. Sala, 63 Nev. 270, 169 P.2d
524 (1946). Both Sala and Turner construed NRS 200.380
1
and held that the specific intent
to permanently deprive the victim of his property is an element of the crime of robbery. We
held in Litteral v. State, 97 Nev. 503, 634 P.2d 1226 (1981) that the holdings of Sala and
Turner were misconstructions of the robbery statute.
In the instant case, Hickson requested an instruction on specific intent as defined in Sala.
The court instructed the jury, over appellant's objection, on the elements of robbery as defined
by NRS 200.380 and as approved in Litteral. The issue presented on appeal is whether the
overruling decision of Litteral applies to appellant's case.
Litteral was not a determination of whether tainted evidence is admissible (e.g., Stovall
v. Denno, 388 U.S. 293 (1967)) or a procedural reform which had an impact on the integrity
of the fact-finding process (e.g., Witherspoon v. Illinois, 391 U.S. 510 (1968)). We merely
concluded in Litteral that NRS 200.380 had defined robbery as a general intent crime from
the time of its passage in 1911. Thus, retroactivity of Litteral is not at issue here. We must
simply determine whether the acts for which Hickson was convicted were proscribed by the
statute as originally defined by the legislature. See People v. Mutch, 4S2 P.2d 633 {Cal.
____________________

1
NRS 200.380:
Robbery: Definition; penalty.
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.
98 Nev. 78, 80 (1982) Hickson v. State
Mutch, 482 P.2d 633 (Cal. 1971).
2
Because Sala and Turner erroneously added an element
to be proved by the state, the conviction will be affirmed if sufficient evidence has been
adduced to support a finding that appellant was guilty of the general intent crime of robbery
as defined by NRS 200.380.
Here, we conclude, for the foregoing reasons, that the jury was properly instructed as to the
elements of the crime and that sufficient evidence was presented to show that the acts for
which Hickson was convicted were proscribed by NRS 200.380.
Other issues raised by appellant are without merit.
Affirmed.
____________________

2
Mutch analyzed the effect of an overruling decision which reversed a series of decisions which the
California Supreme Court found to be misconstructions of the California kidnapping statute. The court held that
the overruling decision . . . did not overturn a judge-made rule of common law; rather, we recognized a
statutory rule which the legislature adopted in 1951 but to which courts had not previously given appropriate
effect. People v. Mutch, 482 P.2d at 636.
____________
98 Nev. 80, 80 (1982) Rockwell v. Rockwell
BRIGITT ROCKWELL, Appellant, v. NORMAN
M. ROCKWELL, Respondent.
No. 13334
February 25, 1982 640 P.2d 1318
Appeal from judgment, Fourth Judicial District Court, Elko County; Joseph O. McDaniel,
Judge.
Appeal was taken from a judgment of the district court dissolving parties' marriage. The
Supreme Court held that failure of respondent to file an answering brief was treated as a
confession of error.
Reversed and remanded.
A. Grant Gerber, Elko, for Appellant.
Norman M. Rockwell, in proper person.
Divorce.
Failure of husband to file an answering brief entitled wife to granting of her motion to treat such failure as
a confession of error. NRAP 31(c).
OPINION
Per Curiam:
On November 5, 1981, this court issued an order giving respondent thirty days in which to
engage counsel and sixty days in which to submit his answering brief.
98 Nev. 80, 81 (1982) Rockwell v. Rockwell
days in which to submit his answering brief. We informed respondent that failure to submit
such a brief might result in our finding a confession of error under NRAP 31(c).
No response to the order followed, and no answering brief has been filed. On January 18,
1982, appellant filed a second motion requesting us to treat respondent's failure to file a brief
as a confession of error. The motion is unopposed.
Cause appearing, we grant appellant's motion for a finding of confession of error under
NRAP 31(c). See Knapp v. Lemieux, 97 Nev. 450, 634 P.2d 454 (1981). The judgment is
reversed insofar as it is based upon findings of fact and conclusions of law concerning
appellant's alleged fraudulent intent in entering into the marriage. This case is remanded for a
redistribution of the parties' property.
1

Reversed and remanded.
____________________

1
That portion of the judgment which dissolves the marriage of the parties has not been challenged in this
appeal, and shall not be affected by this opinion.
____________
98 Nev. 81, 81 (1982) Ewing v. State
TERRI LYNN EWING, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12835
February 25, 1982 640 P.2d 922
Appeal from a judgment of commitment, Ninth Judicial District Court, Douglas County;
Howard D. McKibben, Judge.
In delinquency proceedings based upon violation of defendant's probation, the district
court entered judgment of commitment to State Girls Training Center, and defendant
appealed. The Supreme Court held that juvenile court's commitment of defendant and its
exercise of jurisdiction over her were not authorized under Juvenile Court Act.
Reversed.
J. Gregory Damm, State Public Defender, Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Michael S. Rowe, District Attorney,
Douglas County, for Respondent.
1. Infants.
Commitment to State Girls Training Center could be reversed solely because defendant was 1S
at time she was sent to Center and thus was too old to be sent there.
98 Nev. 81, 82 (1982) Ewing v. State
solely because defendant was 18 at time she was sent to Center and thus was too old to be sent there. NRS
210.580.
2. Infants.
Adjudication that defendant was child in need of supervision was invalid where apparently based on
isolated incident of disobedience, where no allegation was made that she was in need of care or
rehabilitation and where she was adjudicated to be both child in need of supervision and delinquent. NRS
62.040, subd. 1(b).
3. Infants.
Where defendant was invalidly adjudicated a child in need of supervision, district court had no authority
to put her on probation for nondelinquent act.
4. Infants.
Where petition did not state that juvenile defendant was being charged with delinquency under statute,
reversal of adjudication of delinquency was required. NRS 62.040, subd. 1(c)(2).
5. Infants.
Where defendant never committed delinquent act, she was not child under Juvenile Court Act after her
18th birthday when proceedings adjudging her delinquent based on admitted violation of probation
occurred. NRS 62.020, subd. 2, 62.070.
OPINION
Per Curiam:
This is an appeal from a judgment of commitment to the Nevada Girls Training Center
(NGTC). Appellant contends that the confinement of status offenders with juveniles
convicted of criminal acts is unconstitutional. State ex rel. Harris v. Calendine, 233 S.E.2d
318 (W.Va. 1977). Because we hold that appellant's commitment was unlawful under the
laws of this state, we need not reach the constitutional issue.
[Headnote 1]
The juvenile court's commitment of appellant, and its exercise of jurisdiction over her
were not authorized under the Juvenile Court Act, NRS Chapter 62.
1

[Headnote 2]
Appellant was adjudicated a child in need of supervision (CHINS) three months before her
eighteenth birthday. This adjudication was invalid on several grounds. It was based on a
petition that did not allege appellant habitually disobeyed reasonable parental demands;
but was apparently based on an isolated incident of disobedience.2 Neither was an
allegation made that appellant was in need of care or rehabilitation.
____________________

1
Although we are compelled to analyze this case in some depth to resolve what we perceive to be a
substantial jurisdictional issue, the commitment could be reversed solely because appellant was eighteen at the
time she was sent to NGTC, and thus was too old to be sent there. NRS 210.580.
98 Nev. 81, 83 (1982) Ewing v. State
petition that did not allege appellant habitually disobeyed reasonable parental demands; but
was apparently based on an isolated incident of disobedience.
2
Neither was an allegation
made that appellant was in need of care or rehabilitation. See A Minor v. Juvenile Division,
97 Nev. 281, 630 P.2d 245 (1981).
Most importantly, appellant was adjudicated to be both a CHINS and a delinquent in
contravention of NRS 62.040(1)(b).
3
The order admitting appellant to probation stated that
she is charged with the offense of beyond parental control a felony, gross misdemeanor, or a
misdemeanor . . . .
This entanglement of charges, weaving bits and pieces of delinquency, status offense
and violation of the criminal law, brings about a level of confusion which renders it
impossible to sustain any kind of consequent adjudication. Most certainly there is not to
be found any jurisdictional basis for a CHINS adjudication.
A Minor v. Juvenile Division, 97 Nev. 291, 630 P.2d at 251.
[Headnotes 3, 4]
Because appellant was invalidly adjudicated a CHINS, the court had no authority to put
her on probation for a nondelinquent act. The order of commitment on appeal before us stems
from a subsequent adjudication of delinquency based upon an admitted violation of
appellant's probation.
4
In the absence of a justification for imposing probation in the first
instance, the court had no basis for bootstrapping appellant into delinquent status.
[Headnote 5]
The record indicates that the judge believed that he had jurisdiction over appellant until
she reaches 21 years.
5
Because we hold that the appellant never committed a delinquent act,
she
____________________

2
The petition alleged that appellant was beyond parental control because on or about the 3rd day of
December, 1979 . . . she refuses to obey the reasonable and proper demands of her parents.

3
At the time appellant was found to be a CHINS, this statute provided that CHINS shall not be considered a
delinquent. It was amended during the 1981 Session to read must not be considered a delinquent. 1981 Nev.
Stats. ch. 774 1, p. 2019. (Emphasis added.)

4
The petition did not state that appellant was being charged with delinquency under NRS 62.040(1)(c)(2).
That defect alone requires a reversal of the adjudication of delinquency. A Minor, supra.

5
The disposition will range from sending her to Caliente, which I can still do unless she's 21 and which I
may do that . . . .
98 Nev. 81, 84 (1982) Ewing v. State
was not a child under the Juvenile Court Act after her 18th birthday when the proceedings
below occurred. NRS 62.020(2). Thus, the provisions of NRS 62.070, allowing the extension
of juvenile court jurisdiction over any child until the child reaches 21, do not apply.
Accordingly, we reverse the commitment and order the adjudication of delinquency
vacated.
____________
98 Nev. 84, 84 (1982) Director, Dep't Prisons v. Arndt
DIRECTOR, NEVADA DEPARTMENT OF PRISONS,
Appellant, v. DWAYNE ARNDT, Respondent.
No. 13009
February 26, 1982 640 P.2d 1318
Appeal from order granting petition for Writ of Habeas Corpus. First Judicial District
Court, Carson City; Michael R. Griffin, Judge.
Director of Department of Prisons appealed from an order of the district court granting
prisoner's petition for a writ of habeas corpus challenging prison disciplinary hearing on basis
that he was denied due process at the hearing since he was not provided with counsel. The
Supreme Court held that prisoner's habeas corpus petition was premature and should have
been denied where prisoner was under no additional restraint or custody as a result of the
disciplinary hearing at time his petition was heard.
Reversed.
Richard H. Bryan, Attorney General, and Ernest Adler, Deputy Attorney General, Carson
City, for Appellant.
J. Gregory Damm, State Public Defender, and Michael K. Powell, Special Deputy State
Public Defender, Carson City, for Respondent.
Habeas Corpus.
Prisoner's habeas corpus petition challenging prison disciplinary hearing by alleging that he was denied
due process since he was not provided with counsel was premature where prisoner was under no additional
restraint or custody as result of disciplinary hearing at time petition was heard. NRS 34.360.
OPINION
Per Curiam:
Respondent-Inmate Dwayne Arndt was charged with violating the Prison Code of Penal
Discipline for stabbing another inmate while incarcerated at Northern Nevada Correctional
Center {Medium Security).
98 Nev. 84, 85 (1982) Director, Dep't Prisons v. Arndt
inmate while incarcerated at Northern Nevada Correctional Center (Medium Security).
At the prison disciplinary hearing, Arndt requested but was not provided an attorney.
Inmate-substitute counsel was provided. Respondent was found guilty of the violation,
transferred from the medium security facility to maximum security at the Nevada State
Prison, sentenced to 15 days punitive segregation and referred to the Parole Board for
possible revocation of statutory good time credits.
Respondent challenged the disciplinary proceeding by filing a petition for writ of habeas
corpus in district court, alleging that he was not given adequate notice of the charges and that
he was denied due process at the hearing because he was not provided with counsel.
Respondent sought a return from maximum to medium security facility and expungement of
the hearing results from his record.
The district court found that although notice was adequate, the failure to provide Arndt
with counsel at the hearing deprived respondent of due process. The court ordered the hearing
results expunged from Arndt's record. On appeal, the state contends that respondent's claim
was not cognizable under the habeas corpus relief statute (NRS. 34.360) and that the hearing
procedures comported with due process requirements.
The instant record indicates that Arndt is currently under no additional restraint or custody
as a result of the disciplinary hearing. By the time his petition was heard by the district court,
he had already been returned to the medium security prison. There is no evidence that any of
his good time credits have been revoked in consequence of the proceeding.
1
Arguably, Arndt
faces a threatened loss of good time credits, but at best this loss is speculative.
We have noted that habeas corpus relief is available to allow the presentation of questions
of law that cannot otherwise be reviewed, or that are so important as to render ordinary
procedure inadequate and justify the extraordinary remedy.State ex rel. Orsborn v. Fogliani,
82 Nev. 300, 417 P.2d 148 (1966). Specifically, the writ has been deemed appropriate for
petitioners testing the constitutionality of an ordinance while on bail (Ex parte Philipie, 82
Nev. 215, 414 P.2d 949 (1966)), challenging sufficiency of probable cause for trial while on
bail (Jacobson v. State, 89 Nev. 197, 510 P.2d 856 (1973)) and testing the legality of a parole
board's order to hold for extradition {Roberts v. Hocker, S5 Nev. 390
____________________

1
We express no opinion on our disposition of this case if Arndt were still confined to maximum security
prison as a result of the discipline proceeding, or if good time credits had actually been forfeited.
98 Nev. 84, 86 (1982) Director, Dep't Prisons v. Arndt
(Roberts v. Hocker, 85 Nev. 390, 456 P.2d 425 (1969)). Nonetheless, we have consistently
held that use of the extraordinary writ is warranted only to challenge present custody or
restraint and the legality of that confinement. Rogers v. Warden, 84 Nev. 539, 445 P.2d 28
(1968); Rainsberger v. Leypoldt, 77 Nev. 399, 365 P.2d 489 (1961), cert. denied, 368 U.S.
516 (1962); Ex parte Sheply, 66 Nev. 33, 202 P.2d 882 (1949).
The threat of future restraint will not provide a basis for habeas corpus remedy; the
detention must be presently unlawful. Sheply, supra at 41, 202 P.2d at 886. See also Ex parte
Current, 76 Nev. 41, 348 P.2d 470 (1960). Arndt's petition, then, was premature, and should
have been denied by the trial court.
2

Our conclusion that habeas relief was unavailable to Arndt makes unnecessary any
consideration of his attack on the constitutionality of the disciplinary hearing procedures, in
particular, the state's failure to grant him the assistance of counsel. It is well settled that this
court will not address constitutional issues unless these are requisite to the disposition of a
case. See Spears v. Spears, 95 Nev. 416, 596 P.2d 210 (1979); Union Pacific Railroad v.
Adams, 77 Nev. 282, 362 P.2d 450 (1961).
We reverse the order of the district court granting the writ and expunging the results of the
disciplinary hearing from respondent's record.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

2
We recognize that the federal position is contrary to that taken by this court in Sheply and similar cases. See
e. g., Preiser v. Rodriquez, 411 U.S. 475 (1973), in which the Supreme Court acknowledged the appropriateness
of the federal habeas corpus remedy to challenge future confinement. We find no compelling reason, here,
however, to apply the federal approach. Note also that in Preiser, the petitioner had suffered actual forfeiture of
good time credits--his loss, therefore, was not speculative.

3
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 87, 87 (1982) Howard v. District Court
GEORGE T. HOWARD; ART DRAPERY STUDIOS, INC., and MARTIN STERN, Jr.,
A.I.A. ARCHITECT, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, Respondent.
No. 13322
February 26, 1982 640 P.2d 1320
Original proceeding in prohibition was brought challenging the district court's refusal to
grant summary judgment in a stagehand's suit for personal injuries sustained in a fall down
the shaft of a revolving stage lift against the stage design consultant, the project architect, and
the contractor. The Supreme Court held that complaint of stagehand, who was injured when
he fell down shaft of revolving stage lift, against stage design consultant, project architect,
and stage lift contractor was barred by Industrial Insurance Act where, even though stagehand
was not employed in same capacity nor in same line of work as others and even though work
on stage lift was completed before stagehand was injured, parties were coemployees.
Writ granted.
Cromer, Barker, Michaelson, Gillock & Rawlings, and Dickerson, Miles, Pico & Mitchell,
Las Vegas, for Petitioners.
Galatz, Earl & Biggar, Las Vegas, for Respondent.
Workers' Compensation.
Complaint of stagehand, who was injured when he fell down shaft of revolving stage lift, against stage
design consultant, project architect, and stage lift contractor was barred by Industrial Insurance Act where,
even though stagehand was not employed in same capacity nor in same line of work as others and even
though work on stage lift was completed before stagehand was injured, parties were coemployees. NRS
616.085, 616.560.
OPINION
Per Curiam:
This original proceeding in prohibition challenges the district court's refusal to grant
summary judgment on the ground that respondent court lacks jurisdiction to proceed with
plaintiff's common law action. Petitioners contend that the Nevada Industrial Insurance Act
(NIIA) provides plaintiff's full and exclusive remedy, and that, therefore, respondent court is
without jurisdiction.
98 Nev. 87, 88 (1982) Howard v. District Court
The parties stipulated to the following facts: On April 9, 1979, Henry C. Post (the plaintiff
below and real party in interest herein) was employed by the MGM Grand Hotel as a
stagehand and was injured during the course and scope of his employment when he fell down
the shaft of a revolving stagelift at the MGM. Post was awarded compensation by the Nevada
Industrial Commission, but thereafter commenced the present action for recovery of damages
for personal injuries from petitioners. At the time of the accident all petitioners were
employed by MGM pursuant to separate contracts, MGM being the principal contractor.
Petitioner Howard was employed as the lighting and stage design consultant; petitioner Stern
was employed as project architect for the construction of the entire MGM Grand Hotel; and
petitioner Art Drapery Studios was retained for the construction of the stagelift.
Petitioners moved for summary judgment in the district court contending: (1) that the
action was barred by the NIIA; (2) that petitioner Art Drapery could not be held liable to
plaintiff because the stagelift was constructed according to MGM's designs and
specifications; and (3) that petitioner Stern did not have any responsibility with respect to the
design, construction or installation of the stagelift. The motions were denied and this petition
for a writ of prohibition followed.
1
Prohibition is an appropriate remedy. See Stolte, Inc. v.
District Court, 89 Nev. 257, 510 P.2d 870 (1973).
The sole issue presented by this petition is whether Post's common law action is barred by
the NIIA, NRS ch. 616.
2
Under NRS 616.560, employers and those "in the same employ"
are relieved from liability for recovery of damages for personal injuries.
____________________

1
Post has filed an answer on behalf of the respondent court.

2
NRS 616.370 provides in pertinent part:
1. The rights and remedies provided in this chapter for an employee on account of an injury by
accident sustained arising out of and in the course of the employment shall be exclusive, except as
otherwise provided in this chapter, of all other rights and remedies of the employee, his personal or legal
representatives, dependents or next of kin, at common law or otherwise, on account of such injury.
(Emphasis added.)
NRS 616.560 provides in pertinent part:
1. When an employee coming under the provisions of this chapter receives an injury for which
compensation is payable under this chapter and which injury was caused under circumstances creating a
legal liability in some person, other than the employer or a person in the same employ, to pay damages in
respect thereof:
(a) the injured employee, . . ., may take proceedings against that person to recover damages. . . .
(Emphasis added.)
NRS 616.055 provides in pertinent part:
Employee and workman are used interchangeably in this
98 Nev. 87, 89 (1982) Howard v. District Court
Under NRS 616.560, employers and those in the same employ are relieved from liability
for recovery of damages for personal injuries. Aragonez v. Taylor Steel Co., 85 Nev. 718, 462
P.2d 754 (1969). Thus, it is necessary to determine whether petitioners and Post were in the
same employ within the meaning of NRS 616.560.
Petitioners contend that they were in the same employ as Post because they were employed
directly by the same employer. Furthermore, they argue that because MGM directly, and
through its agent, retained sufficient supervisory control over its construction project, see
Simon Service v. Mitchell, 73 Nev. 9, 307 P.2d 110 (1957), MGM was the principal
contractor or employer of petitioners and Post. Under NRS 616.085, subcontractors and their
employees are deemed to be employees of the principal contractor. As such, petitioners
contend they were in the same employ as Post under NRS 616.560 and Post is barred from
bringing suit against petitioners.
Post does not dispute the fact that MGM was the principal contractor or employer. Rather,
he contends that on the facts of this case, where workmen and stagehands are not working
together at the same time on the same jobsite when the accident occurs, the statutory
immunity for coemployees granted by NRS 616.560 should not apply. Additionally, Post
argues that the past Nevada cases in this area are factually distinct,
3
and we should therefore
construe the phrase in the same employ to mean in the same line of work. However, this
interpretation is too narrow in light of our recent holding in Noland v. Westinghouse Elec.
Corp., 97 Nev. 268, 628 P.2d 1123 (1981).
In Noland, the plaintiff had brought suit in district court to recover damages for injuries he
sustained on a construction project as a result of an elevator free-fall during the building of
the Jockey Club in Las Vegas. A subcontractor had employed
____________________
chapter and mean every person in the service of an employer under any appointment or contract of
hire. . . .
NRS 616.085 provides:
Subcontractors and their employees shall be deemed to be employees of the principal contractor.
NRS 616.115 provides:
Subcontractors shall include independent contractors.

3
See, e.g., Hosvepian v. Hilton Hotels Corp., 94 Nev. 768, 587 P.2d 1313 (1978); Antonini v. Hanna
Industries, 94 Nev. 12, 573 P.2d 1184 (1978); Stolte, Inc. v. District Court, 89 Nev. 257, 510 P.2d 870 (1973);
Aragonez v. Taylor Steel Co., 85 Nev. 718, 462 P.2d 754 (1969); Simon Service v. Mitchell, 73 Nev. 9, 307
P.2d 110 (1957).
98 Nev. 87, 90 (1982) Howard v. District Court
the plaintiff. Westinghouse, the defendant, had manufactured and installed the elevator
pursuant to a subcontract with the general contractor. The district court granted summary
judgment in favor of Westinghouse. On appeal, Noland contended: (1) that a question of fact
remained as to whether Westinghouse was a fellow servant under NRS 616.085; and (2) that
the dual capacity doctrine should be adopted which would allow a products liability claim
against Westinghouse because Westinghouse was not acting merely as any other
subcontractor, but was also the manufacturer, seller, supplier, installer and maintainer of the
elevator equipment. This court found that Noland and Westinghouse were coemployees under
NRS 616.085, and rejected the dual capacity doctrine. This court stated:
We perceive no valid reason to deny Westinghouse, as the statutory coemployee of
appellant, the immunity afforded by NIIA, merely because it might have been serving
the general contractor in a capacity different than that of the appellant who was injured.
Id. at 269, 628 P.2d at 1124.
Applying Noland to the present case, the fact that Post and petitioners were not employed
by MGM in the same capacity, nor in the same line of work, is no reason to deny
petitioners immunity under NRS 616.560 as coemployees. Furthermore, the petitioners' status
as coemployees with Post is not affected by the fact that the work on the stagelift was
completed before Post was injured. At the time of Post's accident, petitioners were still in the
process of completing their work under their respective contracts with MGM.
We hold that as a matter of law, petitioners and Post were in the same employ within the
meaning of NRS 616.560. Post's recovery is therefore limited to the compensation provided
by the NIIA, and the respondent court is without jurisdiction to proceed with his common law
suit. A writ of prohibition shall issue in accordance with this opinion.
____________
98 Nev. 91, 91 (1982) Morrell v. Edwards
EVALYN MORRELL dba MORRELL REALTY, FRED L. ZAJAC, Jr. and MARILYN R.
ZAJAC, Appellants, v. GENE V. EDWARDS and MAXINE EDWARDS, Respondents.
No. 13384
February 26, 1982 640 P.2d 1322
Appeal from judgment. Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Appeal was taken from an amended judgment of the district court which denied specific
performance of a contract for the sale of residential real property. The Supreme Court held
that: (1) appeal from amended judgment was untimely even though filed within 30 days of
date of amended judgment where amended judgment was directed solely at striking out award
of costs and did not affect legal rights and obligations of parties as they related to substance
of original judgment and subject matter of appeal, and (2) where motion to alter or amend
judgment by striking award of costs was not filed until 27 days after service of notice of entry
of judgment, service of motion did not toll time for appeal.
Appeal dismissed.
Harding & Dawson, Las Vegas, for Appellants.
Skupa & Mainor, Las Vegas, for Respondents.
1. Appeal and Error.
Test for determining whether appeal is properly taken from amended judgment rather than judgment
originally entered depends upon whether amendment disturbed or revised legal rights and obligation which
prior judgment had plainly and properly settled with finality.
2. Appeal and Error.
Appeal from amended judgment was untimely even though filed within 30 days of date of amended
judgment where amended judgment was directed solely at striking out award of costs and did not affect
legal rights and obligations of parties as they related to substance of original judgment and subject matter
of appeal. NRAP 4(a).
3. Appeal and Error.
If motion to alter or amend judgment is not served within ten days after service of written notice of entry
of judgment, time for appeal is not tolled. NRAP 4(a); NRCP 59(e).
4. Appeal and Error.
Where motion to alter or amend judgment by striking award of costs was not filed until 27 days after
service of notice of entry of judgment, service of motion did not toll time for appeal. NRAP 4(a); NRCP
59(e).
98 Nev. 91, 92 (1982) Morrell v. Edwards
5. Appeal and Error; Judgment.
Motion to amend judgment by striking award of costs was untimely when served 27 days after service of
notice of entry of judgment even though memorandum of costs had not been served within five days after
entry of judgment where, when memorandum of costs was not filed, motion to amend judgment could have
been made within time limits, and thus notice of appeal filed after entry of amended judgment which did
not affect merits of judgment was untimely. NRAP 4(a); NRCP 59(e).
OPINION
Per Curiam:
Appellants filed a suit seeking specific performance of a contract to sell residential real
property or in the alternative for damages. The district court determined that appellants had
not complied with conditions precedent to respondents' obligations to perform under the
contract. Judgment for respondents denying specific performance or damages, and awarding
to respondents three hundred ninety-one dollars and fifteen cents ($391.15) for costs, was
entered on February 4, 1981. Notice of entry of judgment was served upon appellants on
February 6, 1981. Twenty-eight days after the judgment was entered, on March 4, 1981,
respondents filed their memorandum of costs. On March 5, 1981, appellants moved to amend
the judgment by striking the award of costs because the memorandum was not filed within
five days after the judgment was entered as required by NRS 18.110. On March 25, 1981, the
district court issued an order amending the judgment by striking the award of costs. On April
23, 1981, appellants filed their notice of appeal, appealing from the judgment of February 2,
1981, as amended by the order of March 25, 1981. On appeal, appellants challenge the
finding of the district court that they were required to comply with the conditions precedent.
We are of the opinion that jurisdiction over the appeal has not vested in this court because
the notice of appeal was not filed within the time limits of NRAP 4(a).
[Headnotes 1, 2]
The test for determining whether an appeal is properly taken from an amended judgment
rather than the judgment originally entered depends upon whether the amendment disturbed
or revised legal rights and obligations which the prior judgment had plainly and properly
settled with finality. F.T.C. v. Minneapolis-Honeywell Co., 344 U.S. 206 (1952); Cornist v.
Richland Parish School Board, 479 F.2d 37 (5th Cir. 1973). Here the amendment was
directed solely at striking out the award of costs. It did not affect the legal rights and
obligations of the parties as they related to the contract, which is the substance of the original
judgment and the subject matter of this appeal.
98 Nev. 91, 93 (1982) Morrell v. Edwards
the original judgment and the subject matter of this appeal. Consequently, the amendment has
no significance in determining the timeliness of the appeal. Radich v. Fairbanks Builders,
Inc., 399 P.2d 215 (Alaska 1965); Southeastern Fid. Ins. Co. v. Stevens, 240 So.2d 933
(Fla.App. 1976); National Bond & Investment Co. v. Nash Sales Co., 205 N.W. 910 (Wis.
1925).
[Headnotes 3, 4]
Appellants alternatively argue that the motion to strike the award of costs should be treated
as a motion to alter or amend judgment under NRCP 59(e). Such a motion will toll the time
for appeal; however, it must be timely made. NRAP 4(a). If it is not served within ten days
after service of written notice of entry of the judgment, the time for appeal is not tolled.
Culinary Workers v. Haugen, 76 Nev. 424, 357 P.2d 113 (1960); see Browder v. Director, Ill.
Dept. of Corrections, 434 U.S. 257 (1978); Sonnenblick-Goldman Corp. v. Nowalk, 420 F.2d
858 (3rd Cir. 1970); cf. Oelsner v. Charles C. Meek Lumber Co., 92 Nev. 576, 555 P.2d 217
(1976) (district court without jurisdiction to consider untimely NRCP 59(e) motion). Here the
motion was not filed until twenty-seven days after the service of notice of entry of the
judgment. Consequently it was not served within the time limits required by NRCP 59(e).
[Headnote 5]
Appellants argue that they could not have determined the propriety of the judgment, or the
procedures to be followed, until the memorandum of costs was served. In such circumstances,
they argue that the motion should not be considered untimely. Appellants' argument is not
persuasive. When the memorandum of costs had not been served within five days after the
entry of judgment, the grounds for appellants' motion existed. If appellants had moved at that
time to alter or amend the judgment, the motion would have been within the time limits of
NRCP 59(e). Furthermore, the motion, as previously noted, did not affect the merits of the
judgment from which appellants now seek to appeal. As such, appellants could have
immediately appealed the merits of the original judgment, and during the pendency of the
appeal, could have moved to retax and settle costs once the memorandum of costs was
served. See Bongiovi v. Bongiovi, 94 Nev. 321, 579 P.2d 1246 (1978) (district court retains
jurisdiction over matters collateral to and independent from that part of case taken up on
appeal).
Other arguments being without merit, and finding no jurisdiction vested in this court, we
ORDER this appeal dismissed.
____________
98 Nev. 94, 94 (1982) Local Gov't Emp. v. General Sales
LOCAL GOVERNMENT EMPLOYEE-MANAGEMENT RELATIONS BOARD, CITY OF
LAS VEGAS, and LAS VEGAS CITY EMPLOYEES PROTECTIVE AND BENEFIT
ASSOCIATION, INC., Appellants, v. GENERAL SALES DRIVERS, DELIVERY
DRIVERS AND HELPERS, TEAMSTERS LOCAL UNION NO. 14 of the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, Respondents.
No. 12537
March 3, 1982 641 P.2d 478
Appeal from order of the district court reversing decision and order of Local Government
Employee-Management Relations Board. Eighth Judicial District Court, Clark County;
Joseph S. Pavlikowski, Judge.
The Supreme Court held that: (1) provisions of the Local Government
Employee-Management Relations Act did not require the local board to carve out a majority
of the members of the existing bargaining unit into a separate unit with different
organizational representation whenever a community of interest in such a proposed unit could
be shown, and (2) decision of Local Government Employee-Management Relations Board
that, given history of successful representation and negotiations on behalf of city's employees,
including a recently concluded three-year agreement on behalf of blue-collar and white-collar
workers, it was not necessary to carve out a majority of the members of the existing unit into
a separate blue-collar unit with different organizational representation was within the
statutory discretion of the local board and was neither erroneous, arbitrary, nor capricious.
Reversed; decision and order of Board reinstated.
Galane & Jimmerson, Las Vegas; Richard H. Bryan, Attorney General, Carson City,
Robert N. Peccole, Deputy Attorney General; and George F. Ogilvie, City Attorney, Las
Vegas, for Appellants.
Gang & Berkley, Las Vegas, for Respondents.
1. Labor Relations.
Provisions of the Local Government Employee-Management Relations Act did not require the local
board to carve out a majority of the members of the existing bargaining unit into a separate unit with
different organizational representation whenever a community of interest in such a
proposed unit could be shown.
98 Nev. 94, 95 (1982) Local Gov't Emp. v. General Sales
with different organizational representation whenever a community of interest in such a proposed unit
could be shown. NRS 233B.140, subds. 5, 5(a), (b), 288.110, subd. 2, 288.160, subd. 4, 288.170.
2. Labor Relations.
Decision of the Local Government Employee-Management Relations Board that, given history of
successful representation and negotiations on behalf of city's employees, including a recently concluded
three-year agreement on behalf of blue-collar and white-collar workers, it was not necessary to carve out a
majority of the members of the existing unit into a separate blue-collar unit with different organizational
representation was within the statutory discretion of the local board and was neither erroneous, arbitrary,
nor capricious. NRS 233B.140, subds. 5, 5(a), (b), 288.110, subd. 2, 288.160, subd. 4, 288.170.
3. Labor Relations.
Great deference should be given to the interpretation of the local board when it is within the language of
the Local Government Employee-Management Relations Act. NRS 233B.140, subds. 5, 5(a), (b),
288.110, subd. 2, 288.160, subd. 4, 288.170.
4. Labor Relations.
It is not the function of the reviewing court to substitute its judgment for that of the local board when
acting within its statutory authority, pass on the credibility of witnesses, nor weigh the evidence presented
to the local board; the function of the reviewing court is merely to ascertain whether the findings of the
local board are supported by substantial evidence or whether its decisions are, on the contrary, clearly
erroneous, arbitrary or capricious. NRS 233B.140, subds. 5, 5(a), (b), 288.110, subd. 2.
OPINION
Per Curiam:
This is an appeal from an order of the district court reversing a decision and order of the
Local Government Employee-Management Relations Board (EMRB). The EMRB concluded,
after conducting hearings and taking evidence, that a request to carve out a bargaining unit
from an existing unit of employees of the City of Las Vegas was not warranted. The district
court overruled the board, concluding that the board was required by the Local Government
Employee-Management Relations Act, NRS Ch. 288, to carve out a bargaining unit whenever
a sufficient showing was made of a community of interest in such a proposed unit. We
disagree, and reinstate the decision and order of the board.
In January, 1977, a local union affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Las Vegas (Teamsters) sought recognition from
the City of Las Vegas {City) as the collective bargaining representative for certain of its
employees in designated "blue collar" job classifications.
98 Nev. 94, 96 (1982) Local Gov't Emp. v. General Sales
from the City of Las Vegas (City) as the collective bargaining representative for certain of its
employees in designated blue collar job classifications. The Teamsters based their request
upon signed authorization cards, which they claimed represented a majority of the workers in
a proposed blue collar bargaining unit. At the time of the Teamsters' request, there was in
effect a collective bargaining agreement between the City and the Las Vegas City Employees'
Protective and Benefit Association (CEA), recognizing the CEA as the exclusive
representative of all City employees except department heads, administrative and confidential
employees, and firemen.
The City denied the Teamsters' request for recognition, relying primarily upon their
previous contractual recognition of CEA as exclusive bargaining agent of the employees
whom the Teamsters sought to represent. The Teamsters appealed the City's determination to
the EMRB. The board decided that the City had properly denied the Teamsters' request for
recognition. The EMRB found [a]lthough there may or may not be a community of interest
among blue collar workers there is a greater and overriding community of interest among all
the non-uniformed employees of the City. The board therefore declined to designate the
blue collar workers as a separate bargaining unit and accordingly denied the Teamsters'
request to hold a representation election in such a unit.
The Teamsters petitioned the district court for review, arguing that the board's ruling
should be reversed because it had violated statutory provisions, or was in excess of the
board's statutory authority, NRS 233B.140(5)(a) and (b),
1
by refusing to make a unit
determination based solely upon a showing of a community of interest among the blue collar
workers. The district court agreed, reversing the order of the board and further ordering that a
representative election be held among the blue collar workers. In our view, the position taken
by the district court ignored the appropriate role taken by the EMRB in the interpretation and
administration of the act.
When the legislature adopted a statutory scheme for public employee collective
bargaining in 1969, it provided that "[t]he board may hear and determine any complaint
arising out of the interpretation of, or performance under, the provisions of this chapter
by any local government employer, local government employee or employee
organization."
____________________

1
NRS 233B.140(5) provides, in pertinent part, that:
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 reverse or modify the decision if substantial rights of the appellant
have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
(a) In violation of . . . statutory provisions;
(b) In excess of the statutory authority of the agency . . . .
98 Nev. 94, 97 (1982) Local Gov't Emp. v. General Sales
employee collective bargaining in 1969, it provided that [t]he board may hear and determine
any complaint arising out of the interpretation of, or performance under, the provisions of this
chapter by any local government employer, local government employee or employee
organization. NRS 288.110(2). As this court held in Clark County School District v. Local
Government Employee-Management Relations Board, 90 Nev. 442, 446, 530 P.2d 114, 117
(1974): Unless the board should act arbitrarily, unreasonably or capriciously beyond
administrative boundaries the courts must give credence to the findings of the board. An
agency charged with the duty of administering an act is impliedly clothed with power to
construe it as a necessary precedent to administrative action.
[Headnote 1]
In this case, the board's jurisdiction to determine the appropriate bargaining unit, invoked
by the Teamsters by virtue of their appeal, is contained in the language of NRS 288.160(4).
This statute provides: If an employee organization is aggrieved by the refusal or withdrawal
of recognition [by the local government employer] . . . the aggrieved employee organization
may appeal to the board. If the board in good faith doubts whether any employee organization
is supported by a majority of the local government employees in a particular bargaining unit,
it may conduct an election by secret ballot upon the question. (Emphasis added.) Contrary to
the position urged by the Teamsters, nothing in the statute specifies that the particular unit
must be defined as any unit for which a community of interest can be shown.
The Teamsters point to NRS 288.170, which provides for an initial determination of
appropriate bargaining units by a local government employer, after consultation with
recognized employee organizations, and further provides that for such an employer, and for
the board on appeal, [t]he primary criterion for such determination shall be community of
interest among the employees concerned. (Emphasis added.) The board's decision clearly
reflects its conclusion that the employees concerned were not only the members of the
bargaining unit which the Teamsters sought to carve out, but all of the employees who would
be affected by such a split in bargaining representation.
[Headnote 2]
We are unable to conclude that such an interpretation was beyond the statutory authority of
the EMRB. The board had before it a request for severance of a unit which would "carve
out" a majority of the members of the existing unit, into a separate unit with different
organizational representation.
98 Nev. 94, 98 (1982) Local Gov't Emp. v. General Sales
before it a request for severance of a unit which would carve out a majority of the members
of the existing unit, into a separate unit with different organizational representation. It also
had before it evidence of a history of successful representation and negotiation on behalf of
the City's employees, including a recently concluded three-year agreement on behalf of blue
collar and white collar workers; testimony that the same civil service rules applied to all
members of the existing unit and provided for interchange of blue collar and white collar
employees upon merit qualification; and testimony from blue collar workers who had
participated on the CEA negotiating team or were executive officers in the association,
indicating their perceived community of interest with City employees generally. Further
testimony indicated that the Teamsters' organizational effort coincided with a temporary
period of concern among workers occasioned by a City job study.
[Headnote 3]
We are loathe to commit the board, which has been charged by the legislature with the
duty to administer the act regulating public employee collective bargaining in this state, to
any particular policy course not clearly dictated by the terms of the statute itself.
2
As we
have previously held with regard to the EMRB, great deference should be given to the
agency's interpretation when it is within the language of the statute. Clark Co. Sch. Dist. v.
Local Gov't, supra, 90 Nev. at 446, 530 P.2d at 117.
[Headnote 4]
As we have often held, neither the trial court, nor this court, may substitute its judgment
for that of an administrative agency acting within its statutory authority. E.g., North Las
Vegas v. Pub. Serv. Comm'n, 83 Nev. 278, 429 P.2d 66 (1967). It is not our function to pass
on the credibility of witnesses, or to weigh the evidence presented to the agency, but merely
to ascertain whether the board's findings are supported by substantial evidence, or whether its
decisions are, on the contrary, clearly erroneous, arbitrary or capricious. See, Gandy v. State
ex rel. Div. Investigation, 96 Nev. 281, 607 P.2d 581 (1980); PSC v. Continental Tel. Co., 94
Nev. 344, 580 P.2d. 467 (1978); Urban Renewal Agcy. v. Iacometti, 79 Nev. 113, 379 P.2d.
466 (1963).
____________________

2
For the importance of unit determination in the public sector, see, e.g., E. Rock, The Appropriate Unit
Question in the Public Service: The Problem of Proliferation, 67 Mich. L. Rev. 1001, 1001 (1969).
98 Nev. 94, 99 (1982) Local Gov't Emp. v. General Sales
The board in this case acted within it statutory discretion, upon findings supported by
substantial evidence. We therefore uphold the decision of the Local Government
Employee-Management Relations Board and reverse the order of the district court.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19(1)(c), SCR 10.
____________
98 Nev. 99, 99 (1982) Spencer v. Harrah's Inc.
ANNA K. SPENCER, Appellant, v. HARRAH'S INCORPORATED; NEVADA
INDUSTRIAL COMMISSION, Respondent.
No. 12710
March 3, 1982 641 P.2d 481
Appeal from judgment of the district court, Second Judicial District Court, Washoe
County; William N. Forman, Judge.
Employer appealed from a decision of the appeals officer awarding employee's widow
workers' compensation benefits. The district court reversed, and widow appealed. The
Supreme Court held that where employee's death did not result substantially from his
employment, but instead from other infirmities in combination with his preexisting heart
disorder, and employee's debilitated state was not occasioned by his employment, but was of
a type likely to occur at any time, anywhere, employee's widow was not entitled to workers'
compensation death benefits.
Affirmed.
Goedert & Van Walraven, Reno, For Appellant.
Vargas & Bartlett, Reno, for Respondent Harrah's Incorporated.
Robert Gibb, Carson City, for Respondent Nevada Industrial Commission.
1. Workers' Compensation.
Preexisting illness normally will not bar a workers' compensation claim if the employment
aggravates, accelerates or combines with the disease process to trigger disability or
death.
98 Nev. 99, 100 (1982) Spencer v. Harrah's Inc.
claim if the employment aggravates, accelerates or combines with the disease process to trigger disability
or death.
2. Worker's Compensation.
Where employee's death did not result substantially from his employment, but instead from other
infirmities in combination with his preexisting heart disorder, and employee's debilitated state was not
occasioned by his employment, but was of a type likely to occur at any time, anywhere, employee's widow
was not entitled to workers' compensation death benefits.
OPINION
Per Curiam:
Appellant, Anna K. Spencer, appeals from judgment of the district court, denying her
claim for worker's compensation death benefits. Anna's husband, John A. Spencer, was
employed as a parts runner by Harrah's Incorporated from 1972 until his death in 1977. He
had been a victim of severe heart disease for several years prior to his employment with
Harrah's. In June, 1977, while selling car parts at a Harrah's sponsored swap meet, Mr.
Spencer suffered a heart attack and died. His wife sought recovery of worker's compensation
death benefits pursuant to NRS 616.615.
The Hearings Examiner for the Nevada Industrial Commission (NIC) denied appellant's
claim, finding that because Mr. Spencer's death was caused by myocardial infraction and
coronary arteriosclerosis, his death was not a compensable injury. NRS 616.110(2).
1
This
decision was affirmed on review by the Commissioners. An Appeals Officer reversed the
decision of the NIC, finding that the hot and windy weather and Mr. Spencer's activities at the
swap meet aggravated his heart condition and thereby rendered his death compensable under
the worker's compensation scheme. Harrah's filed a petition for review in the district court
pursuant to NRS 233B.140. Although the district court judge also found a causal relationship
between John Spencer's work at the swap meet and his heart attack, he determined that
NRS 616.110{2) precluded recovery under the facts of this case.
____________________

1
NRS 616.110 provides:
1. Injury and personal injury means a sudden and tangible happening of a traumatic nature,
producing an immediate or prompt result, and resulting from external force, including injuries to artificial
members . . . .
2. For the purposes of this chapter, coronary thrombosis, coronary occlusion, or any other ailment or
disorder of the heart, and any death or disability ensuing therefrom, shall not be deemed to be an injury
by accident sustained arising out of and in the course of the employment.
98 Nev. 99, 101 (1982) Spencer v. Harrah's Inc.
heart attack, he determined that NRS 616.110(2) precluded recovery under the facts of this
case. We agree with the trial court's determination and affirm.
[Headnote 1]
Appellant contends that heat exhaustion and dehydration which Mr. Spencer evidently
suffered at the swap meet precipitated his heart attack. According to appellant, these events
constitute an injury
2
by accident
3
sustained in the course of Mr. Spencer's employment,
4
and thus render his death compensable despite the fact that the actual cause of death was
Mr. Spencer's long-standing heart condition. See NRS 616.270. We recognize that preexisting
illness normally will not bar a claim if the employment aggravates, accelerates or combines
with the disease process to trigger disability or death. Nevada Industrial Commission v.
O'Hare, 76 Nev. 107, 349 P.2d 1058 (1960), 1 Larson Workmen's Compensation Law,
12.20 (1978). We also recognize the humanitarian motive behind the enactment of the
worker's compensation scheme, which compels a liberal construction in favor of claimants.
Nevada Industrial Commission v. Peck, 69 Nev. 1, 239 P.2d 244 (1952); Nevada Industrial
Commission v. Adair, 67 Nev. 259, 217 P.2d 348 (1950). And indeed, as appellant indicates,
courts in other jurisdictions have granted worker's compensation claims under like
circumstances. See e.g., Johns-Manville Corp. v. Industrial Commission, 326 N.E.2d 389 (Ill.
1975); Eslinger v. Miller Bros. Co., 315 S. W.2d 261 (Tenn. 1958).
The courts in these jurisdictions, however, were not faced with a statute akin to NRS
616.110(2). We find the provisions of NRS 616.110(2) clear and unambiguous. We are not
empowered, therefore, to go beyond the face of the statute to lend it a construction contrary to
its clear meaning. Cirac v. Lander Co., 95 Nev. 723, 729, 602 P.2d 1012, 1015 (1979); State
ex rel.
____________________

2
See Note 1, supra, for the statutory definition of injury.

3
NRS 616.020 defines accident:
Accident means an unexpected or unforeseen event happening suddenly and violently, with or
without human fault, and producing at the time objective symptoms of an injury.

4
NRS 616.270(1) provides:
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.
98 Nev. 99, 102 (1982) Spencer v. Harrah's Inc.
Hess v. Washoe County, 6 Nev. 104, 107 (1870). Nor is it within our province to question the
wisdom of this statute, although we may be sympathetic to appellant's claim. State v.
Corinblit, 72 Nev. 202, 298 P.2d 470 (1956).
[Headnote 2]
Certainly, there is evidence that the conditions of heat exhaustion and dehydration, which
Mr. Spencer allowed to develop while participating in his employer's swap meet, aggravated
his preexisting heart condition on that day. It is clear, however, that where, as here, death
does not result substantially from employment, but instead from other infirmities in
combination with a preexisting heart disorder, NRS 616.110(2) precludes recovery. Mr.
Spencer's debilitated state was not occasioned by his employment. Rather, the debilitated
state which developed on the day of Mr. Spencer's death was of a type likely to occur at any
time, anywhere.
This conclusion makes it unnecessary for us to determine whether heat exhaustion and
dehydration are injuries or accidents within the meaning of NRS 616.110(1) and
616.020, and whether we should modify our holding in Smith v. Garside, 76 Nev. 377, 355
P.2d 849 (1960).
5

The judgment of the district court is affirmed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Guy, D. J.,
6
concur.
____________________

5
In Garside we determined that exposure to cold temperature in the workplace, which resulted in employee's
serious illness, was neither an injury nor accident within the statutory definitions.

6
The Governor designated the Honorable Addeliar D. Guy, Judge of the Eighth Judicial District, to sit in the
place of The Honorable Cameron M. Batjer, Justice. Nev. Const., art 6 4.
____________
98 Nev. 103, 103 (1982) Turner v. State
ROBERT TURNER, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 12986
March 11, 1982 641 P.2d 1062
Appeal from conviction of first degree murder, Eighth Judicial District Court, Clark
County; Paul S. Goldman, Judge.
After conviction by jury of first degree murder, the Supreme Court, 96 Nev. 164, 605 P.2d
1140 (1980), reversed. On retrial, the district court entered judgment on jury verdict finding
defendant guilty of first degree murder, and he appealed. The Supreme Court, Manoukian, J.,
held that: (1) testimony by defendant at his first trial in which defendant described his flight
from scene of shooting and his efforts to destroy or sell guns used in incident had probative
value in demonstrating consciousness of guilt or wrongful conduct and was therefore
admissible at second trial, even though balance of the prior testimony was largely supportive
of defendant's self-defense theory, and (2) defendant, who failed to object at trial to error by
trial court in instructing jury that the burden of proving circumstances which justify the use
of force upon another is upon the defendant, demonstrated neither cause nor prejudice from
the error, therefore, failure to object to trial precluded reversal on that ground.
Affirmed.
Richard C. Maurer, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
Ronald C. Bloxham and James N. Tufteland, Deputy District Attorneys, Las Vegas, for
Respondent.
1. Criminal Law.
A defendant's Fifth Amendment privilege is not per se violated by the introduction of testimony from a
trial or hearing on the same offense. U.S.C.A.Const. Amend. 5.
2. Criminal Law.
If otherwise admissible, a defendant's prior testimony may be introduced at a second trial as part of the
state's case-in-chief. U.S.C.A.Const. Amend. 5.
3. Criminal Law.
A defendant's conduct, such as flight from a scene of the crime, generally is considered a party admission,
and will be admitted if the actions have probative value.
4. Criminal Law.
Testimony by defendant at his first trial for first degree murder, in which defendant described his
flight from the scene of the shooting and his efforts to destroy or sell the guns used in
the incident had probative value in demonstrating consciousness of guilt or wrongful
conduct, and was therefore admissible at second trial, even though balance of the
prior testimony was largely supportive of defendant's self-defense theory at trial.
98 Nev. 103, 104 (1982) Turner v. State
in which defendant described his flight from the scene of the shooting and his efforts to destroy or sell the
guns used in the incident had probative value in demonstrating consciousness of guilt or wrongful conduct,
and was therefore admissible at second trial, even though balance of the prior testimony was largely
supportive of defendant's self-defense theory at trial.
5. Criminal Law.
Instruction in prosecution for first degree murder that the burden of proving circumstances which justify
the use of force upon another is upon the defendant, was improper because it could have misled the jury
into believing that the defendant had burden of proving self-defense.
6. Criminal Law.
Failure to object to an instruction at trial precludes appellate review unless appellant sufficiently
demonstrates cause for failure to object and prejudice to substantial rights of the defendant.
7. Criminal Law.
Defendant, who failed to object at trial to error of trial court in instructing jury that the burden of
proving circumstances which justify the use of force upon another is upon the defendant, demonstrated
neither cause nor prejudice from the error, therefore, failure to object to trial precluded reversal on that
ground.
8. Criminal Law.
Supreme Court will abstain from addressing moot issues and issues in the abstract.
9. Criminal Law.
Trial court's refusal to consent to waiver by defendant of a jury trial defeated his claim that he should
have been allowed to waive a jury trial. NRS 175.011.
OPINION
By the Court, Manoukian, J.:
In 1977, appellant, Robert Turner, was charged with and convicted by jury of the first
degree murder of Joe Hicks. He was sentenced to life imprisonment without the possibility of
parole. Turner appealed that conviction and we reversed on a ground not relevant to the
instant appeal. Turner v. State, 96 Nev. 164, 605 P.2d 1140 (1980).
1

In 1980, Turner was retried by another jury. During that trial, the prosecution introduced a
statement which Turner made to the police shortly after his arrest, in which he admitted
shooting Hicks, but claimed he acted in self-defense. Turner did not testify during the second
trial and, over objection, his testimony in the first trial was also admitted as part of the state's
case-in-chief.
____________________

1
Turner was subsequently overruled by our decision in Litteral v. State, 97 Nev. 503, 634 P.2d 1226 (1981).
98 Nev. 103, 105 (1982) Turner v. State
Turner's prior testimony was exculpatory in nature. Part of the testimony concerned
Turner's flight to Los Angeles immediately after the shooting and his destruction and sale of
the guns used in the incident. That testimony also described the altercation with Hicks over a
cocaine transaction which resulted in the shooting. Although there were some internal
inconsistencies in the prior testimony, appellant's claim was clearly that Hicks had either
drawn a gun first or was in the process of drawing it when Turner shot him. However, an
eyewitness to the events leading up to the shooting (but not to the shooting itself) was
emphatic that appellant, and not the victim, Hicks, had initially pulled a gun.
The second jury found appellant guilty of first degree murder and after a penalty hearing,
again imposed life imprisonment without possibility of parole.
Appellant contends that the trial court committed reversible error by admitting into
evidence his former trial testimony and giving an impermissible instruction on self-defense.
We find no error warranting reversal and affirm the lower court's decision.
1. Former Testimony.
Appellant contends that the use of testimony from his former trial in which he waived his
Fifth Amendment privilege, violated that constitutional privilege in the second trial because
there was no basis on which to admit the evidence in the prosecution's case-in-chief.
2

[Headnote 1]
A defendant's Fifth Amendment privilege is not per se violated by the introduction of
testimony from a trial or hearing on the same offense. In Edmonds v. United States, 273 F.2d
108 (D.C.Cir. 1959), cert. denied, 362 U.S. 977 (1960), the court concluded that a defendant's
refusal to take the stand at a second trial does not preclude the use of his testimony given at
the first trial, if the evidence is otherwise admissible. Id. at 113.
In Ledford v. State, 84 Nev. 342, 440 P.2d 902 (1968), we adopted the Edmonds rule. We
concluded that the prior testimony challenged in that case was otherwise admissible as
proper rebuttal evidence. We expressly reserved an opinion as to whether the evidence could
have been offered as part of the prosecution's case-in-chief. Id. at 344, n. 1, 440 P.2d at 903.
____________________

2
Appellant has incidentally claimed that error occurred in the state's use of the victim's sister to read
appellant's prior testimony and to demonstrate physical acts of role playing that Turner performed at the first
trial. Although we do not condone such use, appellant has failed to cite any relevant authority for his position or
to demonstrate prejudice. In the posture of the instant case, we, therefore, consider the claim meritless.
98 Nev. 103, 106 (1982) Turner v. State
[Headnote 2]
In Edmonds, supra, the court determined that it was proper to admit, as part of the
prosecution's case-in-chief, prior testimony given by the defendant which constituted an
admission.
[H]aving voluntarily gone on the witness stand in her own behalf on the former trial,
and there made statements against her interest, it was entirely competent for the state,
on the second trial, to prove those statements as admissions voluntarily made.
Admissions made under such circumstances may be proven in the same manner and for
the same reasons that admissions made out of court may be proven.
Id. at 113 (quoting Rafferty v. State, 16 S.W. 728, 730 (Tenn. 1891)). We find no reason to
depart from this Edmonds pronouncement and conclude that, if otherwise admissible, a
defendant's prior testimony may be introduced at a second trial as part of the state's
case-in-chief.
Appellant contends, however, that the prior testimony was neither an admission nor a prior
inconsistent exculpatory statement, the bases on which it was offered at the second trial.
NRS 51.035(3)(a) defines an admission as a party's own statement offered against him at
trial and provides that admissions are non-hearsay. Turner's prior testimony was clearly
offered against him at the second trial; it was an admission. But all evidence, including
admissions, must be relevant to be admissible. NRS 48.025. It appears to us that appellant's
essential argument is that the prior testimony was irrelevant, because it was not inconsistent
with Turner's claim of self-defense.
[Headnotes 3, 4]
In Beasley v. State, 81 Nev. 431, 404 P.2d 911 (1965), we determined that a party's
admission is relevant, and admissible, if at trial, it is inconsistent with the contention of the
party who made the statement. Id. at 450, 404 P.2d at 922. The prior testimony in the instant
case included appellant's description of his flight from the scene of the shooting to Los
Angeles and his efforts to destroy or sell the guns used in the incident. A defendant's conduct,
such as flight from a scene of the crime, generally is considered a party admission, and will
be admitted if the actions have probative value. See e.g., State v. Townsend, 439 P.2d 70
(Kan. 1968); McCormick's Law of Evidence, 271 (E. Cleary, 2d ed. 1972). We must view
such evidence with caution. See e.g., Wong Sun v. United States, 371 U.S. 471, 483, n. 10
(1963); Bailey v. United States, 416 F.2d 1110, 1115 (D.C.Cir. 1969). Nonetheless, we
believe that appellant's description of his actions in this case had probative value in
demonstrating consciousness of guilt or wrongful conduct. Cf. Matthews v. State, 94 Nev.
179, 576 P.2d 1125 {197S); Theriault v. State, 92 Nev. 1S5
98 Nev. 103, 107 (1982) Turner v. State
description of his actions in this case had probative value in demonstrating consciousness of
guilt or wrongful conduct. Cf. Matthews v. State, 94 Nev. 179, 576 P.2d 1125 (1978);
Theriault v. State, 92 Nev. 185, 547 P.2d 668 (1976) (jury instruction on flight proper when
evidence supports inference of intent to avoid arrest). Such conduct is inconsistent with
appellant's plea of not guilty and claim of self-defense. See Beasley, supra. This part of
Turner's prior testimony was clearly a relevant admission and was properly admitted as part
of the state's case-in-chief.
The balance of the prior testimony concerned the alleged altercation between the victim,
Hicks, and Turner, preceding the shooting of Hicks. Although this testimony was largely
supportive of Turner's theory of self-defense at trial, we have stated that it is proper to admit
an exculpatory statement as an admission if it tends to establish guilt. Geer v. State, 92 Nev.
221, 548 P.2d 946 (1976). Here, as in Geer, the exculpatory testimony placed the defendant at
the scene, established that an altercation occurred and that the defendant inflicted harm to the
victim, facts which, we conclude, tend to establish guilt.
Thus, we determine that the entire text of Turner's prior testimony was properly admitted
on retrial.
2. The Self-Defense Instruction.
Appellant argues that the giving of jury instruction No. 25 was error, and that counsel's
failure to object at trial should not preclude reversal on this ground. The instruction reads:
Upon a trial of a charge of murder, it is a defense that the homicide was justifiable.
The burden of proving circumstances which justify the use of force upon another is
upon the defendant, but the defendant need not prove such circumstances beyond a
reasonable doubt, but such circumstances must be sufficient to raise a reasonable doubt.
[Headnote 5]
Appellant is correct in his assertion that the instruction was improper. See St. Pierre v.
State, 96 Nev. 887, 620 P.2d 1240 (1980); Kelso v. State, 95 Nev. 37, 588 P.2d. 1035, cert.
denied, 442 U.S. 921 (1979). Both Kelso and St. Pierre established that virtually identical
instructions were impermissible because they could mislead the jury into believing that a
defendant claiming self-defense has the burden of proving that defense by a preponderance of
evidence. See also Mullaney v. Wilbur, 421 U.S. 684 (1975).
[Headnotes 6, 7]
Failure to object to an instruction at trial precludes appellate review unless appellant
sufficiently demonstrates "cause" for failure to object and "prejudice" to substantial
rights of the defendant.
98 Nev. 103, 108 (1982) Turner v. State
review unless appellant sufficiently demonstrates cause for failure to object and prejudice
to substantial rights of the defendant. St Pierre, supra at 891, 620 P.2d at 1243. See also
Wainwright v. Sykes, 433 U.S. 72 (1977), and Francis v. Henderson, 425 U.S. 536 (1976).
3
Our review of the record and appellate briefs indicates that appellant has demonstrated
neither cause nor prejudice from the error; thus, we will not reverse on this ground.
[Headnotes 8, 9]
Appellant's remaining claims are without merit.
4

The judgment of conviction is affirmed.
Gunderson, C. J., and Springer and Mowbray, JJ., and Zenoff, Sr. J.,
5
concur.
____________________

3
In Hankerson v. North Carolina, 432 U.S. 233, 244, n. 8 (1977), the Supreme Court indicated that failure to
object to a jury instruction that requires a defendant to prove an element of the crime may be held as a waiver of
any claim of error.

4
Appellant claims that it is untenable to permit a defendant whose original conviction and sentence have
been overturned to be given an enhanced punishment on retrial for the same offense. Turner's argument is both
moot and in the abstract--he received the identical sentence on retrial. We will abstain from addressing issues so
postured. See Miller v. West, 88 Nev. 105, 493 P.2d 1332, cert. denied, 409 U.S. 966 (1972). Appellant's
contention that he should have been allowed to waive a jury trial also fails for mootness. Although the state
consented to the waiver, appellant has failed to address the fact that the trial court declined to grant its consent to
appellant's waiver of a jury trial. Even if we determined that appellant could waive a jury trial, the trial court's
refusal to consent to the waiver defeats appellant's claim. See NRS 175.011.

5
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art 6, 19.
____________
98 Nev. 109, 109 (1982) Bell v. Alpha Tau Omega
WILLIAM RODNEY BELL, WILLIAM BELL and ARLENE BELL, Appellants, v. ALPHA
TAU OMEGA FRATERNITY, ETA EPSILSON CHAPTER, A Non-Profit Corporation;
NEVADA DELTA IOTA BUILDING ASSOCIATION, A Non-Profit Corporation;
UNIVERSITY OF NEVADA, RENO; INTERFRATERNITY
COUNCIL, Respondents.
No. 11500
March 17, 1982 642 P.2d 161
Appeal from judgment for defendants upon a jury verdict. Second Judicial District Court,
Washoe County; James J. Guinan, Judge.
Minor and his parents sued fraternity, its building association, another building
association, and the interfraternity council of a university to recover damages for injuries
minor allegedly sustained when he fell off roof of fraternity house after becoming drunk. The
district court entered judgment in favor of defendants. Appeal was taken. The Supreme Court,
Springer, J., held that: (1) violation of statute making it criminal offense knowingly to furnish
liquor or intentionally to make liquor available to persons under 21 is not negligence per se;
(2) it was not error to refuse to give willful misconduct instructions; and (3) plaintiffs waived
on appeal issue that it was error to give instruction regarding legality of parents' providing
alcohol to child.
Affirmed.
Bergmann & Mollath, Reno, for Appellants.
Johnson, Belaustegui & Robison; Wait, Shamberger, Georgeson, McQuaid & Thompson;
Hibbs & Newton; Reno, for Respondents.
1. Intoxicating Liquors.
Absent evidence of legislative intent to impose civil liability, violation of statute making it criminal
offense to knowingly furnish liquor or intentionally to make liquor available to persons under 21 is not
negligence per se. NRS 202.055.
2. Negligence.
In action against fraternity, its building association, and university interfraternity council to recover
damages for injuries allegedly sustained by plaintiff when he fell off roof of fraternity house, it was proper
to refuse to give willful misconduct instructions in light of circumstances in which the plaintiff, 19 years
old, went with his fraternity brothers to buy a keg of beer in which he shared generously, got drunk and
then fell of the fraternity house roof.
98 Nev. 109, 110 (1982) Bell v. Alpha Tau Omega
3. Appeal and Error.
In action to recover damages for injuries which plaintiff allegedly sustained when he fell off roof of
fraternity house after becoming drunk at fraternity party, plaintiffs waived issue on appeal of alleged error
in refusal to give instruction regarding legality of parents' providing alcohol to child where there was no
indication of any objection in the trial record; nevertheless, even assuming that the plaintiff parents were
entitled to an instruction on the exemption of parents from criminal liability, the omission of the instruction
did not affect their substantial rights. NRS 178.598, 202.055.
OPINION
By the Court, Springer, J.:
1

Appellants, William Rodney Bell and his parents William and Arlene Bell, sued Alpha
Tau Omega fraternity (ATO), its building association, Delta Iota Building Association, and
the Interfraternity Council of the University of Nevada, Reno. Suit arose out of injuries
sustained by Rodney Bell when he fell off the roof of the ATO house.
The facts surrounding the fall are as follows: March 21, 1976 was initiation day at the
ATO house. Rodney was an initiate; he was nineteen at the time. The formal initiation took
place between 4:00 p.m. and 6:00 p.m. After the initiation Rodney joined other fraternity
members in picking up a keg of beer. While doing this Rodney drank four or five beers. After
dinner Rodney joined in drinking from the keg and imbibed a little wine on his own. By
11:00 p.m. he was drunk. In this condition he proceeded to up-end beds, throw books, clothes
and papers about the fraternity house and otherwise act up. This all led to Rodney's disastrous
attempt to enter one of his brother's rooms via the steeply-pitched ATO roof.
Rodney and a friend started up one side of the roof. He started to slip on his initial ascent
and advised a companion in the venture that he was removing his shoes in order to get a
better traction. Rodney proceeded up and over the top ridge and started his descent to the
gabled window of the room which he intended to enter. His companion warned him not to get
too close to the edge of the roof as he might slip and fall. Thereafter the companion saw
Rodney fall from the roof.
This appeal follows a jury verdict in favor of defendants below. Appellants allege that the
trial court erroneously instructed the jury in several respects.
____________________

1
By assignment of the Chief Justice, Justice Charles E. Springer is participating in the decision of this appeal
in the place and stead of Justice Noel E. Manoukian, who voluntarily disqualified himself subsequent to oral
argument.
98 Nev. 109, 111 (1982) Bell v. Alpha Tau Omega
ASSIGNMENTS OF ERROR
[Headnote 1]
1. Refusal to Give Instruction that Furnishing Alcohol was Negligence Per Se. The Bells
requested an instruction that violation of NRS 202.055,
2
if the proximate cause of Rodney's
injuries, constitutes negligence as a matter of law. The statute makes it a criminal offense
knowingly to furnish liquor or intentionally to make liquor available to persons under
twenty-one.
This court held in Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969),
that a related statute, NRS 202.100,
3
prohibiting service of intoxicants to a person who is
drunk, did not impose civil liability and that violation of the statute was not negligence per se.
The rationale behind the Hamm decision is that the purpose of the statute was to regulate the
selling of intoxicants and not to enlarge civil remedies.
NRS 202.055 is likewise part of the statutory scheme regulating the sale of tobacco and
intoxicating liquor to minors and drunkards. It would be inconsistent with our previous
decision and legally unsound for us to hold that violation of this statute by furnishing beer to
an adult under twenty-one years of age constituted negligence as a matter of law. We adhere
to our view that absent evidence of legislative intent to impose civil liability we shall not
conclude that a violation of a statute is negligence per se.
____________________

2
NRS 202.055 provides as follows:
NRS 202.055 Sales, furnishing of intoxicating liquor to minors; aiding minor to purchase, procure
intoxicating liquor; intoxicating liquor defined.
1. Every person who knowingly:
(a) Sells, gives or otherwise furnishes intoxicating liquors to any person under the age of 21 years; or
(b) Leaves or deposits any intoxicating liquors in any place with the intent that the same shall be
procured by any person under the age of 21 years; or
(c) Furnishes, gives, or causes to be given any money or thing of value to any person under the age of
21 years with the knowledge that the money or thing of value is to be used by the person under the age of
21 years to purchase or procure any intoxicating liquor, is guilty of a misdemeanor.
2. Paragraph (a) of subsection 1 does not apply to a parent, guardian or physician of the person under
the age of 21 years.
3. As used in this section, intoxicating liquor means beer, wine, gin, whiskey, cordials, ethyl
alcohol or rum, and every liquid or solid, patented or not, containing one-half of 1 percent or more of
alcohol by volume and which is used for beverage purposes.

3
NRS 202.100 has since been repealed by the legislature. 1973 Nev. Stats. ch. 604, 8, at 1062.
98 Nev. 109, 112 (1982) Bell v. Alpha Tau Omega
[Headnote 2]
2. Refusal to Give Willful Misconduct Instructions. Willful misconduct requires a
consciousness that one's conduct will very probably result in injury. We have here an adult,
nineteen years old; he went with his fraternity brothers to buy a keg of beer in which he
shared generously. He got drunk and fell off the fraternity house roof. It is hard to find that
any defendant acted in a manner that naturally or probably would cause Rodney to get drunk
and fall off the roof. Cf. Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414, 633 P.2d 1220
(1981) (knowing sale of alcoholic beverages to minors in violation of the law did not amount
to willful or wanton misconduct). The trial judge was correct in refusing this instruction.
[Headnote 3]
3. Refusal to Give Instruction Regarding Legality of Parents' Providing Alcohol to Child.
During trial, defense counsel emphasized that Rodney's parents had served him alcohol and
had otherwise condoned his drinking. NRS 202.055 exempts parents from criminal liability
for furnishing alcohol. The Bells claim they were prejudiced by the court's refusal to instruct
the jury that they were not acting illegally in serving alcohol to their son. We think the
evidence is wholly immaterial since parental misconduct was not in issue. Rodney was not a
child and his parents owed no duty to protect him from his decision to drink. It, therefore,
may have been error for counsel to comment on irrelevant information concerning the Bells'
attitude toward drinking. Appellants' counsel should have objected both to the line of
questioning and to the comments in closing argument. There is no indication of any objection
in the record. It therefore appears that appellants have waived their right to object.
Nevertheless, even assuming that the Bells were entitled to an instruction on the exemption of
parents from criminal liability, we cannot see that the omission of the instruction affected
their substantial rights. See NRS 178.598.
Appellants' remaining contentions are also without merit. This case is affirmed.
Gunderson, C. J., and Mowbray and Batjer, JJ.,
4
and Mendoza, D. J.,
5
concur.
____________________

4
The Chief Justice has designated The Honorable Cameron Batjer as justice pro tempore. SCR 11.

5
The Governor designated the Honorable John F. Mendoza, Judge of the Eighth Judicial District Court, to sit
in the place of The Honorable Gordon Thompson, Justice. Nev. Const., art 6 4.
____________
98 Nev. 113, 113 (1982) Daniel v. Hilton Hotels Corp.
DANIEL, MANN, JOHNSON & MENDENHALL, Appellant, v. HILTON HOTELS
CORPORATION, dba LAS VEGAS HILTON, Respondent.
No. 12190
March 29, 1982 642 P.2d 1086
Appeal from a judgment entered upon a jury verdict for breach of contract, Eighth Judicial
District Court, Clark County; James A. Brennan, Judge.
Surveyor brought action against owner seeking to collect damages for breach of contract
whereunder surveyor promised to perform all survey work and reports pertaining to
construction of addition to owner's existing hotel and casino. The district court entered
judgment for owner, and surveyor appealed. The Supreme Court held that: (1) court properly
instructed jury that surveyor's liability was founded upon implied duty to perform in
workmanlike manner; (2) expert testimony was not required to prove breach of duty; (3) trial
court did err by not submitting to jury issue of whether loss of profits was reasonably
foreseeable; and (4) there was no error in award of interest on damages for remedial work.
Affirmed in part; reversed in part and remanded for further proceedings.
Dickerson, Miles & Pico, Las Vegas; Morris, Polich & Purdy, and Jeffrey S. Barron, Los
Angeles, for Appellant.
Lionel Sawyer & Collins, and Steve Morris, Las Vegas, for Respondent.
1. Contracts.
In surveyor's breach of contract action against owner, it was sufficient to instruct jury that surveyor who
promised to perform survey work and reports pertaining to construction of 600-room addition to hotel and
casino had an implied duty to perform in workmanlike manner.
2. Negligence.
Standard of care must be determined by expert testimony unless conduct involved is within common
knowledge of lay persons.
3. Contracts.
Where service rendered does not involve esoteric knowledge or uncertainty that calls for professional's
judgment, it is not beyond knowledge of jury to determine adequacy of performance.
4. Contracts.
In surveyor's action against owner for breach of contract under which surveyor agreed to perform survey
work and reports pertaining to construction of addition to hotel and casino, expert testimony was not
required to prove breach of owner's duty.
98 Nev. 113, 114 (1982) Daniel v. Hilton Hotels Corp.
5. Damages.
In surveyor's action against owner for breach of contract whereunder surveyor agreed to perform survey
work and reports pertaining to construction of addition to existing hotel and casino, trial court erred by not
submitting to jury issue of whether loss of profits was reasonably foreseeable.
6. Interest.
In surveyor's action against owner for breach of contract for survey work, there was no error in award of
interest on damages for remedial work. NRS 99.040, subd. 1.
OPINION
Per Curiam:
Appellant and respondent entered into a written contract whereby appellant promised to
perform all survey work and reports pertaining to the construction of a six hundred room
addition to respondent's existing hotel and casino. Respondent agreed to compensate
appellant for these services on a time-and-materials basis. It was the responsibility of
appellant to pinpoint the location of caissons which were to constitute the major foundational
support for the structure and elevator shaft. After the caissons were drilled, it was discovered
that several had been misplaced. Remedial work resulted in several days' delay in the final
completion of the addition. Respondent brought suit for breach of contact and obtained a
judgment in its favor with an award of damages of approximately one million dollars.
Appellant cites numerous errors at trial, including: (1) the court's instruction of the jury on
implied warranty to perform in a workmanlike manner; (2) the court's failure to instruct the
jury regarding expert testimony and regarding the foreseeability of damages for lost profits;
and (3) the court's award of prejudgment interest.
[Headnote 1]
It is appellant's main contention that the district court erred when it instructed the jury that
appellant's liability was founded upon an implied duty to perform in a workmanlike manner.
It is urged by appellant that the proper standard by which the jury should have measured
appellant's conduct is the duty to perform as an ordinarily skillful surveyor under similar
circumstances. In our view, it is sufficient to instruct the jury that appellant had an implied
duty to perform in a workmanlike manner. It is clear from the nature of the work that, had the
work been done in a workmanlike manner, the caissons would not have been misplaced.
98 Nev. 113, 115 (1982) Daniel v. Hilton Hotels Corp.
would not have been misplaced. See Broyles v. Brown Engineering Co., 151 So.2d 767 (Ala.
1963). Appellant was provided plans and specifications that reflected the location and
dimensions of the caissons. The survey emanated from existing, fixed monuments, the
accuracy of which is not in doubt. There is nothing in the record to indicate that the survey
required complex calculations or necessitated the reliance upon untrustworthy data such that
accuracy could not be expected from performance done in a workmanlike manner.
[Headnotes 2-4]
We also disagree with appellant's contention that expert testimony is required to prove the
breach of duty. It is well settled that the standard of care must be determined by expert
testimony unless the conduct involved is within the common knowledge of laypersons. Bialer
v. St. Mary's Hospital, 83 Nev. 241 (1967). Where, as in the instant case, the service rendered
does not involve esoteric knowledge or uncertainty that calls for the professional's judgment,
it is not beyond the knowledge of the jury to determine the adequacy of the performance. See
Aetna Insurance Co. v. Hellmuth, Obata Kassabaum, Inc., 392 F.2d 472, 478 (8th Cir. 1968).
[Headnote 5]
It is appellant's third claim that the trial court erred by not submitting to the jury the issue
of whether the loss of profits was reasonably foreseeable.
1
We must agree. There can be no
recovery for damages that are not reasonably foreseeable at the time of the contract. General
Elec. Supply v. Mt. Wheeler Power, 94 Nev. 766, 587 P.2d 1312 (1978); MacKay v. Western
U. Tel. Co., 16 Nev. 222 (1881). Ordinarily, this presents a factual issue to be determined by
the trier of fact. Traylor v. Henkels & McCoy, Inc., 585 P.2d 970 (Idaho 1978). Only if it can
be said that the damages are the direct or natural result of the breach can they be presumed
foreseeable as a matter of law.
____________________

1
The jury was read the following instruction:
If you find that the plaintiff is entitled to damages for the delay in the opening of the Hilton 600-room
addition, then you may award the Hilton the lost profits which are attributable to such delay. Lost profits
are an appropriate measure of damages so long as the evidence provides a basis for determining, with
reasonable certainty, what the profits would have been had the contract not been breached.
Although a degree of uncertainty may be present in fixing damages for lost profits, this does not
destroy the right to recover them. The rule against the recovery of uncertain damages is directed against
uncertainty as to the existence of damage as opposed to the amount of them.
98 Nev. 113, 116 (1982) Daniel v. Hilton Hotels Corp.
the breach can they be presumed foreseeable as a matter of law. See Hoag v. Jenan, 195 P.2d
451 (Cal.Ct.App. 1948); Johnson v. Utile, 86 Nev. 593, 472 P.2d 335 (1970). See also
Restatement (Second) of Contracts, section 351, comment b (1981).
Respondent contends the loss of profits caused by the delayed opening of the addition was
a direct or natural result of appellant's breach because the contract involved work essential to
the construction of an addition to an operating hotel and casino. Respondent misplaces its
reliance upon Hoag v. Jenan, supra. In Hoag, the plaintiff contracted for the construction of
needed additional space for his existing repair shop. Damages for the loss of profits from
delay in completion of the addition were recoverable as the direct result of the breach because
a completion date was specified in the contract for the purpose of preventing such loss. Id. at
456. Respondent concedes that neither appellant's contract to perform the survey work, nor
the general conditions and specifications of the construction project as a whole, contain a
completion date for the addition. In our view, it cannot be said as a matter of law that the loss
of profits flow foreseeably from the breach of a construction contract where, as here, there is
no evidence of a contemplated completion date at the time of the contract. Therefore, failure
to submit to the jury the issue of foreseeability of lost profits is reversible error.
The final issue to be considered is whether the district court erred in awarding
prejudgment interest. The district court awarded prejudgment interest on damages claimed for
the remedial work and for the loss of profits occasioned by the delay. NRS 99.040(1)
provides that interest shall be allowed upon all money from the time it becomes due, upon
contracts, express or implied, other than book accounts.
2
The interest awarded upon the
damages for remedial work fits within our construction of the statute in Paradise Homes v.
Central Surety, 84 Nev. 109, 437 P.2d 78 (1968). Therefore, there is no error in the award of
interest on damages for the remedial work.
____________________

2
NRS 99.040(1) provides as follows:
99.040 Interest rate when no express written contract. When there is no express contract in writing
fixing a different rate of interest, interest shall be allowed at the rate of 8 percent per annum upon all
money from the time it becomes due, in the following cases:
1. Upon contracts, express or implied, other than book accounts.
The statute was amended effective July 1, 1981 to increase the statutory rate to 12 percent per annum and
change shall be allowed to must be allowed. The amended statute does not affect the instant case. See ch.
739, 1981 Nev. Stat. 1858.
98 Nev. 113, 117 (1982) Daniel v. Hilton Hotels Corp.
work. In view of our decision that the issue regarding lost profits must be submitted to the
jury, we need not consider the appropriateness of prejudgment interest on the damages for
lost profits. Accordingly, the judgment of the district court is affirmed insofar as it awards
damages to respondent for costs, remedial work and the interest thereupon. Insofar as it
awards damages for lost profits, including interest, judgment is reversed and remanded to the
district court for further proceedings consistent with this opinion. Other issues raised by
appellant are without merit and need not be considered.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff. Sr. J.,
3
concur.
____________________

3
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 117, 117 (1982) School of Theology v. Faith Communications
SCHOOL OF THEOLOGY AT CLAREMONT; REX HUMBARD FOUNDATION;
AMERICAN BIBLE SOCIETY and THE PACIFIC AND SOUTHWEST ANNUAL
CONFERENCE OF THE UNITED METHODIST CHURCH, Appellants, and
UNIVERSITY UNITED METHODIST CHURCH, Co-Appellant, v. FAITH
COMMUNICATIONS CORPORATION, and GORDON MICHALSON, Executor of the
ESTATE OF LESTER M. BALKINS, Deceased, Respondents.
No. 13088
March 29, 1982 642 P.2d 590
Appeal from trial court order awarding bequest to Faith Communications, Eighth Judicial
District Court, Clark County; J. Charles Thompson, Judge.
The Supreme Court held that bequest in will to nonprofit corporation in which testator and
his attorney were both interested in amount equal to amount that would be awarded as full
and customary compensation for legal services in probate of testator's estate was not gift
conditional upon attorney's representing estate without charging it since commentary in
bequest appeared merely to state testator's inducement for making the bequest.
Affirmed.
98 Nev. 117, 118 (1982) School of Theology v. Faith Communications
Foley Brothers, Las Vegas, for Appellants.
Hilbrecht, Jones, Schreck & Bernhard, Las Vegas, for Co-Appellant.
Allen & Bigelow, Las Vegas, for Respondent Faith Communications Corp.
Lionel Sawyer & Collins, Las Vegas, for Respondent Gordon Michalson, Executor of the
Estate of Lester M. Balkins.
Wills.
Bequest in will to nonprofit corporation in which testator and his attorney were both interested in amount
equal to amount that would be awarded as full and customary compensation for legal services in probate of
testator's estate was not gift conditional upon attorney's representing estate without charging it since
commentary in bequest appeared merely to state testator's inducement for making the bequest.
OPINION
Per Curiam:
This is an appeal from the trial court's award of a testamentary bequest to respondent,
Faith Communications, in an amount equal to five percent of the gross amount of the Lester
M. Balkins' estate, or approximately $133,000. The value of the estate is estimated to be in
excess of $2,500,000. Faith Communications, and appellants and co-appellant, are religious
entities specified in the will as residual beneficiaries and beneficiaries of principal and
income from charitable remainder annuity trusts upon the death of the life beneficiaries.
Paragraph 8 of the will, and the one prompting this litigation provides:
My good friend and attorney, JOHN A. TAYLOR, has told me that he will act,
without charge, as the attorney for my estate in the probate of this Will, and I encourage
my Executors to retain him in that capacity. Because of his long friendship and
generosity, I have determined that I will make a gift to an organization in which we are
both interested, FAITH COMMUNICATIONS CORPORATION. Therefore, I hereby
give FAITH COMMUNICATIONS CORPORATION, a Nevada non-profit
corporation, also known as KILA-FM, Henderson, Nevada, an amount equal to the
amount that would be awarded by the Court as full, ordinary and customary
compensation for legal services in the probate of an estate equal in size to this
estate at the time of my death.
98 Nev. 117, 119 (1982) School of Theology v. Faith Communications
legal services in the probate of an estate equal in size to this estate at the time of my
death.
John Taylor, now deceased, did gratuitously provide legal services in initial probate
proceedings, but, anticipating his participation as a witness in estate litigation, he engaged,
with district court approval, the law firm of Lionel Sawyer & Collins to serve as co-counsel.
Appellants appeal from the district court determination that Balkins made an absolute
bequest to Faith Communications. They contend that the language in Paragraph 8 establishes
a conditional gift; no gift would be made if John Taylor did not serve without charging the
estate. According to appellants, the gift in question should reflect only an amount equal to the
reasonable value of fees for legal services actually donated by John Taylor to the estate. We
disagree.
Paragraph 8 clearly provides that John Taylor's services were not a condition to the
gift--Balkins only encouraged his executors to use Taylor as counsel. To establish a
condition, the will must employ language which clearly indicates a purpose to limit its
operation. In re Moulton's Estate, 1 Cal.Rptr. 407 (Cal.App. 1960). See also, Soady v. First
National Bank, 82 Nev. 97, 411 P.2d 482 (1966); In re Desmond's Estate, 35 Cal.Rptr. 737
(Cal.App. 1963).
In the case of In re Trybom's Will, 13 N.E.2d 596 (N.Y.App. 1938), a bequest was made
in consideration of services to be rendered. Such language is far more indicative of a
conditional gift than that found in Paragraph 8 Balkins' will, yet the Trybom court declined to
find that the provision established a condition precedent to the gift. The cases just cited
clearly underscore a preference for construing ambiguity in favor of finding a gift to be
absolute, rather than conditional. The commentary in Paragraph 8 appears merely to state
Balkins' inducement for making the bequest, which will not render a gift conditional. See In
re Moulton's Estate, supra.
Appellants' other issues are without merit. We affirm the order of the trial court.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 120, 120 (1982) Tracy v. Capozzi
JEROME A. TRACY and VELMA D. TRACY, Husband and Wife, Appellants and
Cross-Respondents, v. RALPH CAPOZZI and PAULA CAPOZZI, Husband and Wife,
Respondents and Cross-Appellants.
No. 12825
March 29, 1982 642 P.2d 591
Appeal and cross-appeal from judgment dissolving preliminary injunction and awarding
damages to respondents/cross-appellants, Second Judicial District Court, Washoe County;
John E. Gabrielli, Judge.
Property owners filed a complaint seeking injunctive relief, alleging that defendants were
about to build a home in violation of subdivision's restrictive covenant. The district court
entered a judgment dissolving the preliminary injunction granted plaintiffs and awarding
damages to defendants, and an appeal and cross-appeal were taken. The Supreme Court,
Manoukian, J., held that; (1) where respective violations of plaintiffs and defendants, relating
to the procedure for obtaining building plan approval, were identical, no justification existed
for applying an exception to the unclean hands doctrine; plaintiffs could not seek to enjoin
the house construction of defendants, based on a violation of the self-same covenant that
plaintiffs themselves had previously violated, and (2) in respect to the wrongful issuance of a
restraining order or preliminary injunction, an award of damages in excess of the bond will
not be sanctioned where the restraint was obtained in good faith and the restrained or
enjoined parties failed to protect themselves from an inadequate bond with the means
available to them.
Affirmed.
Vargas & Bartlett and Phillip W. Bartlett, Reno, For Appellants and Cross-Respondents.
Hoy, Miller & Murphy, Chartered, Reno, for Respondents and Cross-Appellants.
1. Equity.
Litigant seeking equity must come with clean hands.
2. Injunction.
Courts will usually deny injunctive relief if the complainant has violated the same restrictive covenant he
seeks to enforce against defendant, but an exception to this rule is recognized if the complainant's violation
is insignificant, whereas defendant's infraction is substantial.
98 Nev. 120, 121 (1982) Tracy v. Capozzi
3. Equity.
Where the respective violations of plaintiffs and defendants, relating to the procedure for obtaining
building plan approval, were identical, no justification existed for applying an exception to unclean
hands doctrine; plaintiffs could not seek to enjoin the house construction of defendants, based on a
violation of the self-same covenant that plaintiffs themselves had previously violated.
4. Injunction.
Injunctive restraints are wrongful and recovery on the bond permissible, if such restraints are later
dissolved, regardless of the good or bad faith of complainant in seeking the restraint.
5. Injunction.
In respect to the wrongful issuance of a restraining order or preliminary injunction, an award of damages
in excess of the bond will not be sanctioned where the restraint was obtained in good faith and the
restrained or enjoined parties failed to protect themselves from an inadequate bond with the means
available to them. NRCP 65(c).
OPINION
By the Court, Manoukian, J.:
This case is an appeal and cross-appeal from the trial court's judgment dissolving a
preliminary injunction and awarding damages to respondents and cross-appellants. Appellants
and cross-respondents, the Tracys (hereinafter appellants), contend that the trial court erred
in its determination that appellants' own violation of the relevant restrictive covenant
precluded their obtaining equitable relief for a like breach by respondents and
cross-appellants, the Capozzis (hereinafter respondents). Respondents, in their
cross-appeal, assert that the trial court erred in limiting the award of damages to respondents
to the amount of the security bond posted by appellants. Finding no error, we affirm the lower
court's decision in its entirety.
In October 1977, appellants filed a complaint seeking injunctive relief, alleging that
respondents were about to build a home in the Frost Ranches Subdivision, in violation of the
applicable Declaration of Covenants, Restrictions, Easements and Reservations. Appellants
alleged, inter alia, that respondents had not obtained written approval of two of the three
members of the subdivision's Architectural Committee as required by the Declaration of
Covenants, Paragraph 12(a).
The trial court, without notice, issued a temporary restraining order based on appellants'
verified complaint, restraining respondents from further excavation and construction and
imposing a $1,000 security bond to be furnished by appellants.
98 Nev. 120, 122 (1982) Tracy v. Capozzi
Following a contested hearing in November 1977, a preliminary injunction was issued, and
the court increased the security bond to $5,000. Respondents filed a Motion to Dissolve the
Preliminary Injunction in December 1977, which was denied, after a hearing, in March 1978.
At no time did respondents move for an additional increase in the security bond.
Following a trial on the merits, in June 1978, the trial judge entered an order dissolving the
preliminary injunction. The court found that although only one Architectural Committee
member signed the respondents' building plans, the general practice was to construct with
only that one member's written approval. In addition, the court found that another Committee
member had orally approved the plan. The court noted that appellants had never received
written approval for their house which had been moved, already constructed, to the
subdivision, in violation of both Paragraph 12 and 15
1
of the Declaration of Covenants. The
trial court concluded that such violations precluded the injunctive relief requested by
appellants.
Respondents substantially completed construction in March of 1979 and in April filed a
motion for damages of $128,632 resulting from increased construction and loan interest costs.
The district court granted respondents' motion only to the extent of the $5,000 security posted
by appellants with the court, to apply to respondents' court costs and attorney's fees. This
award was predicated on Paragraph 32 of the Declaration of Covenants, which provides that
the prevailing party in an action to enforce the restrictions shall be entitled to recover
attorney's fees. Although the court recognized that respondents' damages exceeded the bond,
it refused an additional award because it determined that the preliminary injunction was
obtained in good faith.
1. Breach of Covenants.
2

Paragraph 12(a) of the Declaration of Covenants, in relevant part, provides:
No . . . structure shall be commenced, erected, placed or altered on any lot . . . until
. . . the building plans and specifications . . . have been submitted to and approved in
writing . . . by an Architectural Committee composed of KARL S.
____________________

1
Paragraph 15 prohibits moving a previously constructed house onto a subdivision lot.

2
At oral argument, it was disclosed that the Tracys have sold their Frost Ranch home. Although this
occurrence arguably renders moot the issue concerning the dissolution of the preliminary injunction, we find that
issue inextricably tied to the remaining issue concerning damages. The latter issue (the cross-appeal) being
clearly justiciable, we deem it necessary to address both the appeal and cross-appeal in this opinion.
98 Nev. 120, 123 (1982) Tracy v. Capozzi
writing . . . by an Architectural Committee composed of KARL S. BAKER, O. FRANK
STOCK, and A REPRESENTATIVE OF MURRAY-McCORMICK
ENVIRONMENTAL GROUP OF NEVADA, or any two of them or a committee of at
least two persons appointed by them . . . .
[Headnotes 1, 2]
It is uncontroverted that only one member of the Committee (Frank Stock) actually signed
respondents' plans. Appellants contend that the single signature was a clear violation of the
covenant and an appropriate basis for granting injunctive relief. They claim that their own
failure to procure signatures of two committee members before construction on their lot did
not constitute a waiver of their right to enjoin respondents' construction.
3
Several factors
militate against appellants' contentions. The decision below was not based on a theory of
waiver, but on the well-established defense to equitable claims that litigants seeking equity
must come with clean hands. Courts will usually deny injunctive relief if the complainant
has violated the same restrictive covenant he seeks to enforce against a defendant. See
Houston Petroleum Co. v. Automotive Products Credit, 87 A.2d 319 (N.J. 1952);
Vandershoot v. Kocher, 72 N.Y.S.2d 121 (Supr.Ct. 1947); Reading v. Keller, 406 P.2d 634
(Wash. 1965); 5 R. Powell, The Law of Real Property, 679 (1981); cf. Gladstone v.
Gregory, 95 Nev. 474, 596 P.2d 491 (1979) (right to enforce one restrictive covenant not lost
by acquiescence in the violation of another).
[Headnote 3]
An exception to this rule is recognized if the complainant's violation is insignificant, but
defendant's infraction is substantial. See Reading v. Keller, supra at 636, and Powell, supra.
In the instant case, the violations of plaintiffs and defendants, relating to the procedure of
obtaining building plan approval, were identical. We find no justification for applying the
exception to the unclean hands doctrine under the circumstances of this case. Appellants
cannot seek to enjoin respondents, based on a violation of the self-same covenant they
previously violated. The trial court properly dissolved the preliminary injunction.
4
2.
____________________

3
Paragraph 30 of the Declaration of Covenants provides that delay or failure to exercise any right shall not
constitute a waiver nor shall waiver be predicated on any course of conduct.

4
We find that the alternative argument of respondentsthat the general practice was to obtain the signature
of only one Committee member and oral approval of anotherto have considerable merit, but in light of our
98 Nev. 120, 124 (1982) Tracy v. Capozzi
2. Limitation of Damages.
The district court refused to award damages (other than attorney's fees) to respondents
because it found the preliminary injunction was obtained in good faith, and thus was not
wrongful under NRCP 65(c).
5
Attorney's fees to the extent of the bond were awarded, as
required under the Declaration of Covenants. Appellants' good faith in pursuing injunctive
relief is not disputed by respondents, nor do appellants contest on appeal the propriety of the
award below, assuming the dissolution of the injunction was proper.
[Headnote 4]
Preliminarily, we note that our position has been and remains that injunctive restraints are
wrongful and recovery on the bond permissible, if such restraints are later
dissolved--regardless of the good or bad faith of the complainant in seeking the restraint. See,
e.g., Aetna Casualty and Surety Co. v. Bell, 95 Nev. 822, 603 P.2d 692 (1979); Artistic
Hairdressers, Inc. v. Levy, 87 Nev. 313, 486 P.2d 482 (1971); Glens Falls Insurance Co. v.
First National Bank, 83 Nev. 196, 427 P.2d 1 (1967). Thus, we would dispute the trial court's
initial determination that the injunction was not wrongfully granted.
Nonetheless, since an award for attorney's fees was made in the amount of the bond, the
crucial issue confronting us is not whether recovery for damages against the bond is
permissible, but whether such recovery may exceed the limits of the bond, as respondents
would have us rule.
The rationale underlying respondents' view is that the application for a temporary
restraining order is usually made ex parte; the amount of security for the defendant's
protection often is arbitrarily set, and may be, at best, an estimate by the court based upon
opinion or ex parte representations by the complainant or his counsel. This minority view
holds that when the bond proves inadequate, the complainant is the logical party to respond to
damages because he caused the injury by initiating the restraint. See Smith v. Coronado
Foothills Estates Homeowner's Association, 571 P.2d 66S {Ariz.
____________________
disposition above, we need not determine if the alternative argument provided a sufficient basis for the trial
court's decision.

5
NRCP 65(c) provides, in part:
No restraining order or preliminary injunction shall issue except upon the giving of security by the
applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be
incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.
(Emphasis added.)
98 Nev. 120, 125 (1982) Tracy v. Capozzi
Estates Homeowner's Association, 571 P.2d 668 (Ariz. 1977). See also Howard D. Johnson
Co. v. Parkside Development Corp., 348 N.E.2d 656 (Ind.App. 1976); Johnson v. McMahan,
40 S.W.2d 920 (Tex.Civ.App. 1931).
The majority rule, however, limits recovery to the amount of the bond, absent a showing
that the complainant obtained the temporary restraining order or preliminary injunction
maliciously or in bad faith. See, e.g., Egge v. Lane County, 556 P.2d 1372 (Or. 1976);
Venegas v. United Farm Workers Union, 552 P.2d 210 (Wash.App. 1976); Weber v.
Johnston Fuel Lines, Inc., 540 P.2d 535 (Wyo. 1975). A similar position is adopted by the
federal courts. See, e.g., Buddy Systems, Inc. v. Exer-Genie, Inc., 545 F.2d 1164 (9th Cir.
1976), cert. denied, 431 U.S. 903 (1977); United Motor Service v. Tropic-Aire, Inc., 57 F.2d
479 (8th Cir. 1932); J. Moore Federal Practice, 65.10[1] (2d ed. 1980).
The minority view, espoused by respondents, undeniably has common sense appeal: it
insures an adequate award of damages resulting from wrongful restraint assessed against the
one who made the mistake, albeit in good faith. However, we find the majority view more
compatible with public policy encouraging ready access to our courts. On balance, we find
this public policy principle outweighs our concern for defendants facing inadequate bonds at
the termination of a wrongful restraint. We must zealously protect the good faith pursuit of
legal and equitable remedies from the deterrent certain to be posed by unknown liability for
mistake. See United Construction Workers v. H. O. Canfield Co., 116 A.2d 914
(Conn.Super.Ct. 1955).
[Headnote 5]
Under the rule we adopt today, the defendant is not without recourse in the event the bond
proves to be inadequate during the restraint and continuing litigation; he may move for an
increase in the bond. Respondents in the instant case failed to so protect themselves. There is
substantial evidence that, at all relevant times, respondents were aware of the rapidly
escalating construction and mortgage costs and had ample opportunity in which to move for
an increase in the bond. Appellants would then have had the opportunity to assess the risks of
pursuing their equitable claim. See Venegas, supra, at 211-213. We will not sanction an
award of damages in excess of the bond where, as here, appellants obtained the restraint in
good faith and the respondents failed to protect themselves from an inadequate bond with the
means available to them.
98 Nev. 120, 126 (1982) Tracy v. Capozzi
The parties' remaining claims are either without merit or need not be reached. We affirm
the trial court's determinations concerning both the appeal and the cross-appeal.
Gunderson, C. J., and Springer and Mowbray, JJ., and Zenoff, Sr. J.,
6
concur.
____________________

6
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 126, 126 (1982) Morgan v. State
CLARENCE EDWARD MORGAN, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 13005
CLARENCE EDWARD MORGAN, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 13006
March 29, 1982 642 P.2d 595
Appeals from order denying petition for post-conviction relief, Eighth Judicial District
Court, Clark County, Joseph S. Pavlikowski, Judge.
The Supreme Court held that despite defendant's allegation of indigency, district court
failed to appoint counsel to represent him and made no finding as to his indigency, requiring
reversal of the order.
Reversed and remanded.
J. Gregory Damm, State Public Defender, and Michael K. Powell, Special Deputy Public
Defender, Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Where, despite defendant's allegation of indigency made in conjunction with his petition for
post-conviction relief, district court failed to appoint counsel to represent him and made no finding as to his
indigency, reversal of order denying the petition was required. NRS 177.345, subd. 1.
98 Nev. 126, 127 (1982) Morgan v. State
OPINION
Per Curiam:
On January 16, 1979, Clarence Edward Morgan pleaded guilty to two counts of selling a
controlled substance for which he received a twelve-year sentence and a ten-year sentence, to
run consecutively in the Nevada State Prison. Morgan has filed two appeals, one for each
conviction, challenging the denial of his petition for post-conviction relief. Cause appearing,
these appeals are hereby consolidated for review by this court. NRAP 3(b).
On July 2, 1980, Morgan filed, in proper person, a petition for post-conviction relief. In
conjunction with his petition, Morgan alleged that he was an indigent person, financially
unable to pay or provide security for the payment of official fees and the costs of retaining
counsel. . . . Morgan requested that he be granted leave to proceed in forma pauperis and
that counsel be appointed to assist and represent [him] in the prosecution of the petition.
The matter came before the district court on July 29, 1980, and the court summarily denied
Morgan's petition. No counsel was appointed to represent him at this proceeding, and no one
appeared on his behalf. Morgan was not present because he was in prison at the time.
Morgan contends on appeal, inter alia, that the district court erred in summarily denying
his petition without appointing counsel to represent him.
1
NRS 177.345(1) provides:
(1) The petition may allege that petitioner is unable to pay the costs of the
proceeding or to employ counsel. If the court is satisfied that the allegation is true, it
shall appoint counsel for him within 10 days of the filing of the petition. (Emphasis
added.)
Despite Morgan's allegation of indigency, the district court failed to appoint counsel to
represent him. Further, the district court made no finding as to Morgan's indigency.
2

Accordingly, we reverse the district court's order denying Morgan's petition for
post-conviction relief.
____________________

1
The state, in its answering brief, did not respond to this contention.

2
We note that after the district court denied Morgan's petition for post-conviction relief, Morgan moved for
appointment of counsel to pursue this appeal. He again alleged that he was indigent and financially unable to
retain private counsel. The district court apparently was satisfied that Morgan was indigent, as it granted his
motion and appointed counsel to prepare this appeal.
98 Nev. 126, 128 (1982) Morgan v. State
Morgan's petition for post-conviction relief. We remand for further proceedings, including the
appointment of counsel in accordance with NRS 177.345(1).
____________
98 Nev. 128, 128 (1982) Carlisle v. State
KENNETH WAYNE CARLISLE, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12753
March 29, 1982 642 P.2d 596
Appeal from convictions of sexual assault with the use of a deadly weapon, possession of
a short-barreled shotgun, possession of a controlled substance, and coercion. Eighth Judicial
District Court, Clark County; Paul S. Goldman, Judge.
The Supreme Court held that: (1) physical evidence recovered from defendant's van was
admissible even if warrantless search of the van was illegal; (2) coercion statute was not
unconstitutionally vague; and (3) defendant's conduct fell squarely within prohibition of
coercion statute.
Affirmed.
Morgan D. Harris, Public Defender, and Victor John Austin, Deputy Public Defender,
Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Even if warrantless search of defendant's van was illegal, physical evidence recovered would still have
been admissible since police had arranged to tow the van and would have been justified in conducting an
inventory which inevitably would have revealed the evidence.
2. Constitutional Law.
Due process clause of the Fourteenth Amendment 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 context of the
entire statutory provision. U.S.C.A.Const. Amend. 14.
3. Disorderly Conduct.
Words used in coercion statute adequately defined a proscribed course of conduct for which a perpetrator
may be punished and thus was not unconstitutionally vague. NRS 207.190, subd. 1(c); U.S.C.A.Const.
Amend. 14.
98 Nev. 128, 129 (1982) Carlisle v. State
4. Constitutional Law.
Constitutionality of a statute will not be decided upon a supposed or hypothetical case which might arise
thereunder.
5. Disorderly Conduct.
Defendant's conduct in forcing one rape victim to aid him by holding leg of another victim while he raped
the other victim fell squarely within prohibition of coercion statute. NRS 207.190, subd. 1(c).
OPINION
Per Curiam:
A jury convicted appellant of sexual assault with the use of a deadly weapon (three
counts), possession of a short-barreled shotgun, possession of a controlled substance, and
coercion. On appeal, appellant makes numerous assignments of error, only two of which we
deem worthy of discussion.
Appellant's conviction was based primarily upon the testimony of the victims, three
teenage girls, who had been hitchhiking from Pennsylvania to Los Angeles. On September 8,
1979, appellant picked up the girls near Denver, Colorado, and offered them a ride to Los
Angeles. The next day, near Jean, Nevada, appellant drove his van off the highway and into
the desert. Thereafter, he pointed a shotgun at the girls and ordered them to undress. Being
frightened, the girls complied. Appellant then proceeded to sexually assault all three girls. At
one point, appellant ordered one of the girls to hold her friend's leg down to enable him to
secure penetration. Following the assault, appellant left the girls in the desert.
Sometime later, an ambulance driver, returning from an accident, observed the girls
walking along the roadside. He stopped and offered to help them. The girls told him of their
experience, described appellant and his van, and stated that the van contained a shotgun and
some explosives. The driver relayed this information to the police. Soon thereafter, the police
stopped the van and arrested appellant. An officer searched the van, discovering a sawed-off
shotgun, some firecrackers, and a bag containing marijuana.
[Headnote 1]
Appellant first contends that the district court erred by denying his motion to suppress the
sawed-off shotgun and marijuana which the police had removed from appellant's van. Even
assuming, arguendo, that the warrantless search of appellant's van was illegal, the physical
evidence recovered would still be admissible. We have held that evidence obtained as a result
of information derived from an unlawful search or other illegal police conduct is not
inadmissible where the normal course of police investigation would, in any case, even
absent the illicit conduct, have inevitably led to such evidence.
98 Nev. 128, 130 (1982) Carlisle v. State
result of information derived from an unlawful search or other illegal police conduct is not
inadmissible where the normal course of police investigation would, in any case, even absent
the illicit conduct, have inevitably led to such evidence. Clough v. State, 92 Nev. 603, 555
P.2d 840 (1976); Yeoman v. State, 92 Nev. 368, 550 P.2d 1273 (1976); see also Shum v.
State, 97 Nev. 15, 621 P.2d 1114 (1981). Here, the police had arranged to tow appellant's
vehicle and would have been justified in conducting an inventory. During this inventory, the
police inevitably would have found the shotgun and marijuana. The district court did not err
in denying the motion to suppress.
1

Appellant next contends that the coercion statute under which he was convicted is vague
and overbroad. NRS 207.190 provides in pertinent part:
1. It is unlawful for any person, with intent to compel another to do or abstain from
doing an act which such other person has a right to do or abstain from doing, to:
. . .
(c) Attempt to intimidate such person by threats or force.
Appellant's conviction of coercion was based on the fact that he forced one victim to aid him
by holding the leg of another victim while he raped the other victim.
[Headnotes 2, 3]
In Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975), this court outlined the test
for vagueness as follows:
The doctrine that a statute is void for vagueness is predicated upon its repugnancy to the
due process clause of the Fourteenth Amendment to the United States Constitution. The
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. [Citations omitted.]
Id. at 762, 542 P.2d at 1400. See also Wilmeth v. State, 96 Nev. 403, 610 P.2d 735 (1980);
Fields v. Sheriff, 93 Nev. 640, 572 P.2d 213 (1977). Under this test, we are satisfied that the
words used in NRS 207.190{1){c) adequately define a proscribed course of conduct for
which a perpetrator may be punished.
____________________

1
In addition to the doctrine of inevitable discovery, the district court also relied on protection of public
safety, see Cady v. Dombrowski, 413 U.S. 433 (1973), and search incident to lawful arrest, see Chimel v.
California, 395 U.S. 752 (1969), as grounds for denying the motion. Because we conclude that the ruling was
justifiable on the basis of inevitable discovery, we need not rule on the other grounds.
98 Nev. 128, 131 (1982) Carlisle v. State
used in NRS 207.190(1)(c) adequately define a proscribed course of conduct for which a
perpetrator may be punished. See Rose v. Locke, 423 U.S. 48 (1975).
[Headnotes 4, 5]
Appellant's overbreadth argument is equally without merit. In challenging the statute as
overbroad, appellant invents four hypothetical situations in which he contends the statute
could be applied to proscribe constitutionally protected behavior. However, this court will not
decide the constitutionality of a statute based upon a supposed or hypothetical case which
might arise thereunder. Jones v. State, 85 Nev. 411, 456 P.2d 429 (1969). Appellant's conduct
falls squarely within the prohibition of NRS 207.190(1)(c).
We have considered the other contentions raised by appellant and find them to be
without merit.
Affirmed.
____________
98 Nev. 131, 131 (1982) Nevada Indus. Comm'n v. Taylor
NEVADA INDUSTRIAL COMMISSION, Appellant, v.
STEPHEN L. TAYLOR, Respondent.
No. 12757
March 29, 1982 642 P.2d 598
This is an appeal from an order reversing and remanding a decision of the Industrial
Commission's Appeals Officer, First Judicial District Court, Carson City; Michael E. Fondi,
Judge.
In proceeding in review of Industrial Commission's appeals officer's order requiring that
claimant's temporary total disability benefits cease on date on which he was released to return
to employment by his treating physician, the district court set aside appeals officer's decision
and ordered payment of such benefits for period commencing when claimant voluntarily
ceased work on basis of his assertion that his prior injury prevented adequate job
performance, and Commission appealed. The Supreme Court held that claimant's right to
temporary total disability benefits ceased in June when he was released to return to
employment by treating physician, and ordering payment of such benefits for period
commencing in September when claimant voluntarily ceased working was error, absent any
determination by competent medical authority contrary to the treating physician's
determination.
Reversed.
98 Nev. 131, 132 (1982) Nevada Indus. Comm'n v. Taylor
Raymond Badger, General Counsel, Nevada Industrial Commission, Carson City, for
Appellant.
Smith & Gamble, Carson City, for Respondent.
Workers' Compensation.
Claimant's right to temporary total disability benefits ceased in June when he was released to return to
employment by his treating physician; ordering payment of such benefits for period commencing in
September when claimant voluntarily ceased work on basis of his assertion that his prior injury prevented
adequate job performance was error, absent any determination by competent medical authority contrary to
that of the treating physician. NRS 616.585, subd. 3.
OPINION
Per Curiam:
The Nevada Industrial Commission appeals from a district court order setting aside a
decision of its appeals officer. The appeals officer ordered that temporary total disability
compensation for respondent Taylor should cease as of June 12, 1978, the date at which he
was released to return to employment by his treating physician. Taylor had returned to work
on June 12, 1978, but voluntarily ceased to work on September 10, 1978. He claimed that his
prior injury prevented adequate job performance.
NRS 616.585(3) provides: For purposes of temporary total disability benefits under this
section, the period of temporary total disability shall cease when any competent medical
authority determines such employee is capable of any gainful employment. On June 12,
1978, Taylor was released for work by his physician. It cannot be doubted that this
constituted a determination by competent medical authority that Taylor was capable of
gainful employment. Accordingly, temporary total disability for Taylor must cease as of that
date.
The appeals officer properly disallowed temporary disability compensation for the period
of time following September 10, 1978. The trial court nonetheless held that in view of the
evidence the administrative decision was in some respects clearly erroneous; it therefore
ordered temporary total disability benefits to be paid for the period from September 10, 1978
through January 9, 1979. We are at a loss to discover in what respects the decision was
clearly erroneous. There was no competent medical authority contrary to that of Taylor's
doctor. Under such circumstances the commission was mandated by NRS 616.585 to cease
temporary total disability payments after June 12, 197S until competent medical
authority determined to the contrary.
98 Nev. 131, 133 (1982) Nevada Indus. Comm'n v. Taylor
616.585 to cease temporary total disability payments after June 12, 1978 until competent
medical authority determined to the contrary. The court erred in setting aside the order of the
appeals officer and in awarding attorney's fees.
1
This matter is reversed and remanded to the
district court for appropriate action consistent with this opinion.
____________________

1
Appellant does not challenge that part of the district court order requiring re-evaluation of Taylor's
permanent disability rating.
____________
98 Nev. 133, 133 (1982) Kellen v. District Court
MARVELL LEE KELLEN, SIERRA PAINTING, INC., Petitioners, v. SECOND JUDICIAL
DISTRICT COURT of the STATE OF NEVADA, in and for the
County of Washoe, Department No. 6, Respondent. WILLIAM B. MOORE,
Real Party in Interest.
No. 13701
March 29, 1982 642 P.2d 600
In mandamus proceeding, employer and co-employee of plaintiff, who brought action to
recover for injuries allegedly sustained in automobile accident, sought to have district court
required to grant employer's and co-employee's motion for summary judgment on defendant's
third-party complaint seeking contribution from employer and co-employee. The Supreme
Court held that provisions of Industrial Insurance Act insulated employer and co-employee
from liability by way of contribution or equitable indemnity, despite the asserted existence of
independent duty consisting of duty to the public to exercise ordinary care to avoid injury to
other drivers.
Petition granted.
Sala, McAuliffe, Hill & White, and William E. Bernard, Reno, for Petitioners.
Wait, Shamberger, Georgeson, McQuaid & Thompson, Fray & Benson, Reno, and Prince,
Yeates & Geldzahler, Salt Lake City, for Respondent.
1. Workers' Compensation.
Absent independent duty owed to a third party, provisions of the Industrial Insurance Act insulate
employers and co-employees, not only from liability to employees, but also from liability by way of
indemnity to a third party. NRS 616.010 et seq.
98 Nev. 133, 134 (1982) Kellen v. District Court
2. Workers' Compensation.
Provisions of Industrial Insurance Act insulated employer and co-employee of plaintiff, who brought
action to recover for injuries allegedly sustained in automobile accident, from liability to defendant by way
of contribution or equitable indemnity, despite the asserted existence of independent duty consisting of
duty to the public to exercise ordinary care to avoid injury to other drivers. NRS 616.010 et seq.
3. Contribution.
Defendant, against whom recovery was sought for injuries allegedly sustained by plaintiff in automobile
accident, could not recover contribution from plaintiff's employer and co-employee on theory that their
negligence contributed to plaintiff's injuries and that it would be unjust for defendant to bear full
responsibility to plaintiff. NRS 616.010 et seq.
OPINION
Per Curiam:
In this mandamus proceeding petitioners contend that the district court should be required
to grant petitioners' motion for summary judgment. See NRAP 3A(b)(5).
Petitioners are named as defendants in a third-party complaint filed by William B. Moore,
the real party in interest. Moore is the defendant in an action in the district court in which the
plaintiff is seeking recovery for injuries allegedly sustained in an automobile accident. The
third-party complaint seeks contribution from petitioners for whatever recovery the plaintiff
may be awarded. Contending that they are the employer and the co-employee of the plaintiff,
petitioners moved for summary judgment on the ground that they could not be held liable for
contribution or equitable indemnity. The motion was denied and this petition followed.
[Headnote 1]
Absent an independent duty owed to a third party, employers and co-employees are
insulated by the provisions of the Nevada Industrial Insurance Act (NRS 616.010 et seq.), not
only from liability to employees, but also from liability by way of indemnity to a third party.
Outboard Marine Corp. v. Schupbach, 93 Nev. 158, 561 P.2d 450 (1977).
[Headnotes 2, 3]
Moore argues that an independent duty exists here, namely, the duty to the public to
exercise ordinary care to avoid injury to other drivers. We disagree. The independent duty
referred to in Outboard Marine is not such an abstract duty as Moore argues. Furthermore, if
that duty results, in reality, from a duty and resultant liability of the employer to the
employee, then that liability is exactly the type which the Act extinguishes.
98 Nev. 133, 135 (1982) Kellen v. District Court
then that liability is exactly the type which the Act extinguishes. See Santisteven v. Dow
Chemical Company, 506 F.2d 1216 (9th Cir. 1974).
1

Accordingly, we order issuance of a writ of mandamus compelling the district court to
vacate its order denying the motion for summary judgment, and to enter an order granting
said motion.
Petition granted.
2

____________________

1
Moore argues that petitioners' negligence contributed to plaintiff's injuries, and that it is therefore unjust for
Moore to bear full responsibility to the plaintiff. The argument is without merit for the reasons stated in
Santisteven v. Dow Chemical Company, 362 F.Supp. 646 (D.Nev. 1973).

2
Justice Noel Manoukian voluntarily disqualified himself from the consideration of this case.
____________
98 Nev. 135, 135 (1982) LaPena v. State
FRANK RALPH LaPENA, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 10009
April 13, 1982 643 P.2d 244
Appeal from judgment of conviction of robbery with the use of a deadly weapon and
murder of the first degree after a jury trial. Eighth Judicial District Court, Clark County; J.
Charles Thompson, Judge.
The Supreme Court, Springer, J., held that convictions would be reversed where
prosecution's case depended substantially upon out-of-court statements and preliminary
examination testimony obtained from purported accomplice who testified pursuant to
executory conditional plea bargain.
Reversed and remanded.
Manoukian, J., dissented.
Wiener, Goldwater, Waldman & Gordon, Ltd.; Richard A. Wright, Las Vegas, for
Appellant.
Richard Bryan, Attorney General; Robert J. Miller, District Attorney, Las Vegas, for
Respondent.
Criminal Law.
Convictions of robbery and first degree murder would be reversed where prosecution's case depended
substantially upon out-of-court statements and preliminary examination testimony obtained from
purported accomplice who testified pursuant to executory conditional plea bargain.
98 Nev. 135, 136 (1982) LaPena v. State
from purported accomplice who testified pursuant to executory conditional plea bargain.
OPINION
By the Court, Springer, J.:
Frank LaPena has appealed from convictions of robbery and first degree murder. The
convictions are reversed because the prosecution's case depended substantially upon
out-of-court statements and preliminary examination testimony obtained from a purported
accomplice, Jerry Weakland, who testified pursuant to an executory conditional plea bargain.
Weakland was apprehended for the robbery and murder of Hilda Kraus. He ultimately
admitted that he had robbed the woman and killed her. At the time of Weakland's preliminary
examination, he agreed to cooperate with the prosecution by implicating appellant LaPena. In
exchange for his testimony that LaPena had contracted with him for the murder, Weakland
was to be allowed to plead guilty to second degree murder and receive a sentence of five
years to life imprisonment. Under the agreement, robbery and all other charges were to be
dropped, including charges unrelated to the subject incident.
Weakland testified at LaPena's preliminary examination, incriminating LaPena in
accordance with his previous statements to prosecuting officials. Thereafter the state kept its
bargain. Weakland pleaded guilty to second degree murder and received the promised
sentence. All other charges were dismissed.
Weakland was subsequently called to testify at LaPena's trial. He stated under oath that his
testimony at LaPena's preliminary examination and his prior statements to the prosecution
were untrue; he said that he had incriminated LaPena under pressure from the police to do so.
Weakland refused to testify any further concerning LaPena's alleged involvement in the
robbery and murder. The trial court later admitted into evidence Weakland's prior testimony
and his previous written and videotaped statements to police officials.
The trial court committed reversible error by admitting into evidence Weakland's
statements incriminating LaPena. The admission into evidence violated the rule established in
Franklin v. State, 94 Nev. 220, 577 P.2d 860 (1978) and reaffirmed in Burns v. State, 96 Nev.
802, 618 P.2d 881 (1980). In those decisions we disapproved the practice of withholding the
benefits of a plea bargain or promise of leniency until after a purported accomplice had
testified in a particular manner.
98 Nev. 135, 137 (1982) LaPena v. State
a plea bargain or promise of leniency until after a purported accomplice had testified in a
particular manner. We see no meaningful distinction between the facts of this case and
Franklin. The prosecution did not permit Weakland to reap the benefit of his bargain until
after he had incriminated LaPena at the preliminary examination. The plea bargain was
thereby used to induce cooperation. At trial Weakland said as much, claiming to have been
coerced into making the incriminating statements. Since the prosecution relied substantially
on Weakland's incriminating statements in developing its case against LaPena, we cannot find
the improper admission of evidence harmless beyond a reasonable doubt. See Burns, supra.
Accordingly, the judgment of conviction is reversed.
Gunderson, C. J., Mowbray, J., and Zenoff, Sr. J.,
1
concur.
Manoukian, J., dissenting:
I cannot agree with the majority that the trial court committed reversible error by
admitting into evidence Weakland's statements incriminating LaPena. My bases for
disagreement are clearly set forth in my separate opinions in Franklin v. State, 94 Nev. 220,
227, 577 P.2d 860, 864 (1978) (Manoukian, J., dissenting, with Mowbray, J.) and Burns v.
State, 96 Nev. 802, 806, 618 P.2d 881, 884 (1980) (Manoukian, J., concurring).
I would affirm the judgment of conviction.
____________________

1
The Chief Justice designated Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer, Nev. Const., art. 6 19; SCR 10.
____________
98 Nev. 138, 138 (1982) Shockey v. Harden Insurance Agency
H. CARL SHOCKEY and HELEN SHOCKEY, Appellants, v. HARDEN INSURANCE
AGENCY, INC., Respondent.
No. 12372
April 20, 1982 643 P.2d 849
Appeal from an order granting respondent's motion for summary judgment, Eighth Judicial
District Court, Clark County; Robert G. Legakes, Judge.
Corporation brought action to require return of stock certificate. The district court granted
corporation's motion for summary judgment and purchasers appealed. The Supreme Court
held that factual issues existed as to the agreed-upon method of payment for the stock and as
to the means by which the purchaser acquired the stock certificate.
Reversed and remanded.
John Peter Lee, Vincent Ochoa, Richard McKnight and James C. Mahan, Las Vegas, for
Appellants.
Rogers, Monsey, Woodbury and Berggreen, and Douglas G. Crosby, Las Vegas, for
Respondent.
Judgment.
Dispute as to the agreed-upon method of payment for stock purchase and dispute as to whether stock
certificate was delivered to purchaser or whether he illegally removed it from the corporate books created
issues of fact rendering summary judgment inappropriate in action brought to require return of stock
certificate.
OPINION
Per Curiam:
The district court granted respondent, Harden Insurance Agency's, motion for summary
judgment, and ordered appellants Carl and Helen Shockey to return a stock certificate for 720
shares of Harden Insurance Agency stock. The Shockeys contend there are genuine issues of
material fact which render the district court's order of summary judgment inappropriate.
In April of 1972, Carl Shockey began his employment as vice-president of Harden
Insurance Agency. In negotiations leading to Shockey's employment, Max Harden, president
of Harden Insurance Agency, sent the following letter, dated March 29, 1972: .
98 Nev. 138, 139 (1982) Shockey v. Harden Insurance Agency
. . . We will allow you the option of purchasing 30% of the stock in Harden Insurance
Agency, Inc., at a figure of approximately $40,000 to be paid in any manner you may
work out with me, at no interest if you so desire. You may sign a note to the Corporation
for same designating the length of time and amounts same is to be paid.
You will be requested to sign an agreement that in the event of your wishing to sell
your stock you will sell it back to the Corporation and the price will be based on the past
three year averaging of sale.
In December of 1972, Max Harden issued 720 shares of corporate stock to Carl Shockey,
without executing a written agreement reflecting the financial terms of the sale. The record
reflects that from April 1, 1972 until August of 1976, no written agreement regarding the
method of payment for the stock purchase was perfected. The only document exchanged by
the parties was the letter of March 29, 1972, which stated the method of payment for the
stock purchase would be worked out between the parties.
On June 11, 1976, Shockey informed Harden that he wanted to resign from the Board of
Directors and sell his shares of stock back to the corporation. Upon realizing the parties had
not executed an agreement, Harden presented Shockey with a written agreement, pre-dated
April 1, 1972. The agreement provided that the corporation would issue 30% of the unissued
outstanding capital stock to Shockey in exchange for a promissory note for the purchase price
of the stock. Shockey signed the written agreement in August of 1976.
Next, Harden requested Shockey to sign a promissory note to secure payment of the 720
shares of stock. Shockey refused to sign the note, claiming it did not reflect the terms of an
alleged oral agreement between the parties. On August 28, 1976, Harden terminated
Shockey's employment with Harden Insurance Agency.
Shockey contends that parties entered into an oral agreement whereby the purchase price
of the stock would be paid for out of the dividends flowing from the ownership of said stock.
Harden, on the other hand, avers that Shockey was obligated to pay for the stock pursuant to
an unexecuted promissory note.
It is well-established that the presence of genuine issues of material fact will preclude
summary judgment. In determining the propriety of a summary judgment, the evidence is to
be viewed in a light most favorable to the party against whom such summary judgment was
rendered.
98 Nev. 138, 140 (1982) Shockey v. Harden Insurance Agency
such summary judgment was rendered. Parman v. Petricciani, 70 Nev. 427, 272 P.2d 492
(1954); Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963).
Here, the parties ultimately entered into a written agreement which called for the
simultaneous execution of a promissory note.
1
Because the parties were in dispute as to the
method of payment for the stock purchase, the promissory note was never executed.
Consequently, there exists a genuine issue of material fact regarding the method of payment
the parties intended to place upon the stock purchase.
Finally, the parties are in dispute as to how Shockey obtained possession of the Harden
Insurance Agency stock certificate. Shockey claims the stock certificate was delivered to him
by Harden. In contrast, Harden contends the stock certificate was illegally removed from the
corporate books by Shockey. Again, a material issue of fact remains which renders summary
judgment inappropriate.
Accordingly, we reverse the district court's order granting respondent's motion for
summary judgment. We remand for further proceedings not inconsistent with this opinion.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

1
Paragraph 2 of the parties' agreement states:
The purchase price for said stock shall be determined as follows: the value of the agency as reflected in
its financial statement of December 31, 1971 and said promissory note shall be as set forth in Exhibit A
attached hereto and shall be signed simultaneously with this agreement.

2
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case. Nev. Const.,
art. 6 19; SCR 10.
____________
98 Nev. 140, 140 (1982) Burleigh v. State Bar of Nevada
PETER H. BURLEIGH, Appellant, v. STATE BAR
OF NEVADA, Respondent.
No. 12989
April 28, 1982 643 P.2d 1201
Appeal from decision of hearing panel, Southern Disciplinary Board of the State Bar of
Nevada.
In disciplinary proceedings, the Supreme Court, Zenoff, Senior Justice, held that: (1)
disciplinary proceedings conducted by hearing panel were not inconsistent with due process
because of potential for recovery by state bar of fines and costs; {2) rule which allowed
Supreme Court to temporarily suspend license to practice law without presuspension
hearing is not unconstitutional; {3) hearing prior to temporary suspension of license to
practice law is properly dispensed with, in view of charges of conspiracy to commit
murder; and {4) charges of conspiracy to commit murder, failure to disclose such
involvement and violation of terms of temporary suspension involve misconduct
warranting disbarment, public reprimand, fine and assessment of costs.
98 Nev. 140, 141 (1982) Burleigh v. State Bar of Nevada
(2) rule which allowed Supreme Court to temporarily suspend license to practice law without
presuspension hearing is not unconstitutional; (3) hearing prior to temporary suspension of
license to practice law is properly dispensed with, in view of charges of conspiracy to commit
murder; and (4) charges of conspiracy to commit murder, failure to disclose such involvement
and violation of terms of temporary suspension involve misconduct warranting disbarment,
public reprimand, fine and assessment of costs.
Disbarment, public reprimand, fine and assessment of costs ordered in accordance
with recommendations.
Goodman, Oshins, Brown & Singer, Chartered, and William B. Terry and Martin J.
Kravitz, Las Vegas, for Appellant.
Ralph B. Peterson, Reno, for Respondent.
1. Constitutional Law.
Individual members of disciplinary board had no personal financial stake in outcome of their
deliberations and no executive responsibilities for finances of state bar which would be inconsistent with
due process requirements for disciplinary proceedings, despite potential for recovery by bar of fines and
costs. SCR 86, 103(1), (3); U.S.C.A.Const.Amend. 14.
2. Constitutional Law.
To determine appropriate procedure under due process standards, court must consider: private interest
affected; risk of erroneous deprivation by procedures used; and government interest to be protected in light
of fiscal and administrative burdens imposed by additional procedural safeguards. U.S.C.A.Const.Amend.
14.
3. Constitutional Law.
Practice of a profession is valuable property right, of which one cannot be arbitrarily deprived.
U.S.C.A.Const.Amend. 14.
4. Constitutional Law.
State cannot exclude person from practice of law without due process of law. U.S.C.A.Const.Amend. 14.
5. Attorney and Client.
Rule allowing Supreme Court to temporarily suspend license to practice law without presuspension
hearing is not unconstitutional, since risk of erroneous deprivation is minimized by rules entitling
temporarily suspended attorney to continue his existing practice for circumscribed time and allowing him
to obtain immediate hearing and prompt resolution of the matter, and rule permits court to order only
temporary suspension if there are affidavits to support allegation that attorney is causing great harm by
his actions. SCR 102(4), (4)(c), (d); U.S.C.A.Const.Amend. 14.
6. Attorney and Client.
Hearing prior to temporary suspension of license to practice law is properly dispensed with, in view of
charges of conspiracy to commit murder; criminal conviction is not necessary prerequisite to temporary
suspension. SCR 102(4).
98 Nev. 140, 142 (1982) Burleigh v. State Bar of Nevada
7. Attorney and Client.
Charges of conspiracy to commit murder, failure to disclose such involvement and violation of terms of
temporary suspension involve misconduct warranting disbarment, public reprimand, fine and assessment of
costs. Code of Prof. Resp., DR1-102(A)(3, 4, 6); SCR 102(4).
OPINION
By the Court, Zenoff, Sr. J.:
1

This case is an automatic appeal, pursuant to SCR 105(3)(b), of a decision by a hearing
panel of the State Bar of Nevada, Southern Nevada Disciplinary Board, recommending that
Peter H. Burleigh be disbarred, publicly reprimanded, fined and assessed the costs of the
disciplinary proceedings against him.
Burleigh contends that his due process rights were violated because respondent had a
pecuniary interest in finding grounds for discipline, and that SCR 102(4) impermissibly
allowed this court to suspend his license temporarily without a presuspension hearing. We
disagree, and adopt the hearing panel's findings and recommendations.
Burleigh is an attorney licensed to practice law in Nevada. In 1978 he was indicted by the
Clark County Grand Jury for conspiracy to commit murder and conspiracy to commit arson.
In June, 1979, the Southern Nevada Disciplinary Board of the State Bar of Nevada, through
its chairman, petitioned this court for a temporary suspension of appellant's license to
practice, pursuant to SCR 102(4).
2
We granted the petition. The criminal charges were
subsequently dismissed, and the temporary suspension was dissolved by order of this court in
July, 1980.
3
On August 5, 19S0, Bar counsel, acting as prosecutor pursuant to SCR
104{1){c), filed an amended complaint accusing appellant of unethical conduct in three
causes of action: conspiracy to murder his former wife, conspiracy to burn an attorney's
office, and violation of the terms of the temporary suspension.
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.

2
SCR 102(4)(a) provides in pertinent part:
On the petition of a disciplinary board, signed by its chairman or vice chairman, supported by an
affidavit alleging facts personally known to the affiant which shows that an attorney appears to be causing
great harm by misappropriating funds to his own use, or by other clearly identified acts, the supreme
court may issue an order, with notice as the court may prescribe, imposing temporary conditions of
probation on the attorney, temporarily suspend him, or both. . . .

3
No question is raised in this appeal regarding the propriety of State Bar proceedings after dismissal of the
criminal charges.
98 Nev. 140, 143 (1982) Burleigh v. State Bar of Nevada
On August 5, 1980, Bar counsel, acting as prosecutor pursuant to SCR 104(1)(c), filed an
amended complaint accusing appellant of unethical conduct in three causes of action:
conspiracy to murder his former wife, conspiracy to burn an attorney's office, and violation of
the terms of the temporary suspension.
Appellant denied the charges, and hearings were held before a hearing panel of the
Southern Nevada Disciplinary Board to determine whether discipline was justified. On
November 14, 1980, the panel rendered its formal decision, finding that Burleigh had violated
Disciplinary Rules DR 1-102(A) (3), (4) and (6) of the American Bar Association Code of
Professional Responsibility,
4
by participation and involvement in a plot to kill his former
wife, and his failure to disclose such involvement. The panel recommended disbarment and
assessment of costs of the proceedings. Burleigh was also found to have violated the terms of
his temporary suspension, and the panel recommended that he be fined $500 and publicly
reprimanded. The panel found that the State Bar had failed to prove by clear and convincing
evidence that appellant had conspired to commit arson, and exonerated Burleigh of this
charge.
Appellant's first contention is that he was denied the opportunity to have a fair and
impartial hearing because the State Bar is authorized to impose and collect fines and costs
from an attorney only if he is found by a hearing panel to have engaged in misconduct. See
SCR 102(6), SCR 120(1). We find appellant's reliance upon Tumey v. Ohio, 273 U.S. 510
(1927), Ward v. Village of Monroeville, 409 U.S. 57 (1972), and Gibson v. Berryhill, 411
U.S. 564 (1973), to be misplaced. None of these cases dealt with the situation presented here,
in which the members of the adjudicating body have neither an individual financial interest in
the outcome of the disciplinary proceedings before them, nor any direct responsibility for the
financial condition of the State Bar, which is the recipient of any fines and costs which may
be levied as a result of such proceedings.
In Tumey, the Court found statutes allowing a conviction by a mayor whose salary was
paid in part out of fees and costs levied by him in adjudicatory proceedings, and who as
chief executive officer was responsible for the financial welfare of the village to which the
fines were paid, violated constitutional standards.
____________________

4
DR 1-102 provides, in pertinent part:
(A) A lawyer shall not:
. . .
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
. . .
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
98 Nev. 140, 144 (1982) Burleigh v. State Bar of Nevada
levied by him in adjudicatory proceedings, and who as chief executive officer was responsible
for the financial welfare of the village to which the fines were paid, violated constitutional
standards. The Court concluded:
Every procedure which would offer a possible temptation to the average man as a judge
to forget the burden of proof required to convict the defendant, or which might lead him
not to hold the balance nice, clear and true between the state and the accused, denies the
latter due process of law.
273 U.S. at 532. The Court in Ward v. City of Monroeville, supra, found that even in the
absence of any individual financial interest in levying fees and costs, a mayor's executive
responsibilities for village finances may make him partisan to maintain the high level of
contribution from the mayor's court, 409 U.S. at 60, and thus render adjudication by him
inconsistent with due process standards. These principles were held applicable to an
administrative license revocation in Gibson v. Berryhill, supra. The Court upheld the trial
court's determination that, on the facts presented, individual members of the Alabama Board
of Optometry had a personal financial stake in the outcome of their deliberations with regard
to the licensing of corporation employees with whom they were in competition.
[Headnote 1]
In this case, the adjudication was conducted by seven members of a hearing panel, chosen
from among twenty-one members of the Southern Nevada Disciplinary Board. SCR 103(1).
The rules provide that disciplinary board members are to receive no compensation for their
services. SCR 103(3). The rules further specifically provide, SCR 103(1), that no member of
the disciplinary board may be a member of the board of governors of the State Bar of Nevada,
the group responsible for the financial condition of the Bar. SCR 86. There is therefore no
basis for a conclusion that the individual panel members had a personal financial stake in the
outcome of their deliberations, or that the members had executive responsibilities for the
finances of the Bar which would be inconsistent with the due process requirements of Tumey
and Ward.
Here, the disciplinary board has no function except to adjudicate and make
recommendations regarding matters of bar discipline. The situation in this case is, therefore,
comparable to that in Dugan v. Ohio, 277 U.S. 61 (1928), in which the Court refused to
invalidate mayor's court proceedings when the mayor's salary was not dependent on fines,
and where the mayor, as such, had only adjudicative, and not executive, responsibilities.
98 Nev. 140, 145 (1982) Burleigh v. State Bar of Nevada
the mayor's salary was not dependent on fines, and where the mayor, as such, had only
adjudicative, and not executive, responsibilities. Here the only connection between members
of the board and the State Bar is the requirement that the eighteen attorney members be
members of the Bar. SCR 103(1). We note that courts have often held that mere membership
in a professional organization which has responsibility for prosecution, under peer
disciplinary procedures, does not disqualify a judge or other adjudicator from hearing a
disciplinary or licensing matter. E.g., Ex Parte Alabama State Bar Ass'n, 8 So. 768 (Ala.
1891); State Board of Dental Examiners v. Miller, 8 P.2d 699 (Colo. 1932); State v.
Churchwell, 195 So.2d 599 (Fla.App. 1967); State v. Rhodes, 131 N.W.2d 118 (Neb. 1964).
We therefore conclude that the disciplinary proceedings conducted by the hearing panel
were not inconsistent with due process because of the potential for recovery by the State Bar
of fines and costs.
Appellant also contends that SCR 102(4) is unconstitutional on its face and as applied to
him because his temporary suspension was imposed without a prior hearing. He argues that
the resultant infringement of due process should negate any technical violations of the
suspension order.
[Headnote 2]
The Supreme Court has emphasized that due process is flexible and calls for such
procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S.
471, 481 (1972). To determine appropriate procedure, we must consider: (1) the private
interest affected; (2) the risk of erroneous deprivation by the procedures used; and (3) the
government interest to be protected in light of the fiscal and administrative burdens imposed
by additional procedural safeguards. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
[Headnotes 3-5]
The practice of a profession is, without question, a valuable property right, of which one
cannot be arbitrarily deprived. State v. Medical Examiners, 68 Nev. 455, 235 P.2d 327
(1951). A state cannot exclude a person from the practice of law without due process of law,
as respondent readily concedes. Schware v. Board of Bar Examiners, 353 U.S. 232 (1957). In
this instance, however, the risk of erroneous deprivation is minimized by the provisions of
SCR 102(4)(c) and (d). Under these rules, a temporarily suspended attorney is entitled to
continue his existing practice for a circumscribed time and may obtain an immediate
hearing and prompt resolution of the matter.
98 Nev. 140, 146 (1982) Burleigh v. State Bar of Nevada
matter. The government public interest element is evident. The rule on its face only permits
this court to order temporary suspension if there are affidavits to support allegations that an
attorney is causing great harm by his actions; i.e., temporary suspension prior to a hearing
is only warranted if exigent circumstances exist. Cf. State ex rel. Sweikert v. Briare, 94
Nev. 752, 588 P.2d 542 (1978).
[Headnote 6]
We therefore conclude that the rule is not unconstitutional on its face. We also are
persuaded that sufficient exigent circumstances existed in this case to justify dispensing with
a presuspension hearing.
[Headnote 7]
Appellant stood charged, by grand jury indictment, with conspiracy to commit murder and
arson. Conviction of similar charges has been held to warrant summary suspension or
disbarment, prior to appellate review. E.g., In re Stoner, 507 F.Supp. 490 (N.D.Ga. 1980);
Mitchell v. Association of Bar of City of N.Y., 351 N.E.2d 743 (N.Y. 1976). We do not
believe, however, that a criminal conviction is a necessary prerequisite to the temporary
suspension imposed here. In Stoner and Mitchell the courts emphatically addressed the
importance of protecting the public through bar discipline and the resulting detrimental effect
on public confidence in the legal profession if the court failed summarily to suspend the
attorneys. Murder and arson are serious charges involving moral turpitude. We have held that
an attempt or conspiracy to commit a crime demonstrates moral turpitude to a like degree as
the commission of the crime itself. In re Wright, 69 Nev. 259, 265, 248 P.2d 1080, 1083
(1952). Discipline is appropriately imposed for acts involving moral turpitude, whether or not
they relate to conduct by an attorney in his professional capacity. In re Bogart, 511 P.2d 1167
(Cal. 1973). We believe that appellant's continued practice with serious charges leveled
against him would erode public confidence in the legal profession and that the facts presented
sufficient exigent circumstances to warrant summary suspension.
Accordingly, we order that Peter H. Burleigh be, and he hereby is, disbarred from the
practice of law in the State of Nevada.
It is further ordered that he be publicly reprimanded for his conduct in violating the
attorney disciplinary rules.
It is further ordered that he pay to the State Bar of Nevada a $500 fine for his violation of
our temporary suspension order, together with the costs incurred in connection with his
proceedings before the disciplinary committee.
98 Nev. 140, 147 (1982) Burleigh v. State Bar of Nevada
together with the costs incurred in connection with his proceedings before the disciplinary
committee.
Gunderson, C. J., and Springer and Mowbray, JJ., concur.
Manoukian, J., concurring:
The majority opinion, in which I concur, is a modification of a draft which I previously
distributed and which reached the identical result. The only difference I perceive is that the
majority seems now to be unnecessarily preoccupied with a discussion of executive
responsibility for State Bar finances.
The disciplinary panel's purported pecuniary interest in the proceedings, if existent, is
remote and insubstantial. I believe that the majority opinion inappropriately suggests that any
executive function or responsibility for the State Bar finances would automatically preclude
participation in bar disciplinary matters.
1
For example, the majority states that executive
responsibility for the finances of the Bar. . . would be inconsistent with the due process
requirements of Tumey and Ward. Not only is that conclusion unnecessary for the resolution
of this case, in which the hearing panel has no executive functions, it overlooks and
improperly circumvents the Supreme Court's careful analysis of the directness and
substantiality of the financial interest in those cases in which executive responsibility and
institutional gain are at issue. See Ward v. Village of Monroeville, 409 U.S. 57 (1972).
Of course, active participation in bar disciplinary matters by one with executive
responsibility for bar finances would necessarily require close scrutiny of the temptation to
partiality. However, [t]he mere union of executive power and the judicial power in [an
adjudicator] cannot be said to violate due process of law. Tumey v. Ohio, 273 U.S. 510, 534
(1927). The Supreme Court has looked to many factors, including the substantiality of the
adjudicator's purported interest in the outcome of the proceeding and the institutional
arrangements for distributing any remuneration obtained. See Marshall v. Jerrico, 446 U.S.
238 (1980); Ward v. Village of Monroeville, supra. See also, Tumey v. Ohio, supra. I do not
read the pertinent Supreme Court cases as precedent for finding, as the majority opinion
implies, that the prospect of institutional gain from adjudicative proceedings per se bars the
participation of one who may have some responsibility for the financial integrity of the
institution.
____________________

1
Contrary to the majority's statement, SCR 103(10) expressly provides that members of the State Bar's board
of governors are also ex-officio members of the disciplinary panels, albeit without the right to vote or to receive
remuneration for costs incurred by their participation.
98 Nev. 140, 148 (1982) Burleigh v. State Bar of Nevada
from adjudicative proceedings per se bars the participation of one who may have some
responsibility for the financial integrity of the institution.
____________
98 Nev. 148, 148 (1982) Duke v. Duke
FORREST A. DUKE, Appellant, v. DICKSIE
L. DUKE, Respondent.
No. 13685
April 28, 1982 643 P.2d 1205
Appeal from order denying motion to modify divorce decree, Eighth Judicial District
Court, Clark County; Carl J. Christensen, Judge.
Former wife brought action seeking to recover previously awarded share of former
husband's military retirement pay. The district court entered judgment denying former
husband's motion to modify the decree, and former husband appealed. The Supreme Court
held that the United States Supreme Court decision holding that military retirement benefits
are not divisible as community property in state court divorce decrees did not apply
retroactively to invalidate, or otherwise render unenforceable, prior valid unappealed state
court divorce decree awarding, as community property, 35 percent of military retirement pay
to former wife; the Supreme Court decision did not alter res judicata consequences of the
divorce decree, which was final before the Supreme Court decision was filed.
Affirmed.
Greenman, Goldberg & Raby, Las Vegas, for Appellant.
Rogers, Monsey, Woodbury, Brown & Berggreen, and Bruce M. Judd, Las Vegas, for
Respondent.
Courts.
The United States Supreme Court decision holding that military retirement benefits are not divisible as
community property in state court divorce decrees did not apply retroactively to invalidate, or otherwise
render unenforceable, prior valid unappealed state court divorce decree awarding, as community property,
35 percent of military retirement pay to former wife; the Supreme Court decision did not alter res judicata
consequences of the divorce decree, which was final before the Supreme Court decision was filed.
OPINION
Per Curiam:
The issue presented by this appeal is whether McCarty v. McCarty, 453 U.S. 210, 101
S.Ct.
98 Nev. 148, 149 (1982) Duke v. Duke
McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), should be given retroactive
effect so as to disrupt a final, unappealed divorce decree.
The relevant facts are undisputed. On July 18, 1980, the district court entered a decree of
divorce which awarded 35 percent of appellant Forrest Duke's military retirement pay to
respondent Dicksie Duke as community property.
1
The court ordered Forrest to execute a
permanent allotment with the United States Air Force, specifying that Dicksie's 35 percent
share be sent directly to her. Forrest failed to execute a permanent allotment as ordered.
On June 5, 1981, Dicksie filed a motion for judgment of arrearages, seeking to recover
her share of Forrest's military retirement benefits which he had failed to pay her. Forrest
opposed Dicksie's motion and filed a counter-motion to modify the divorce decree
contending, inter alia, that, in view of McCarty, the district court lacked power to enforce the
portion of the decree which awarded Dicksie a share of his retirement pay. The district court
denied Forrest's motion to modify, and Forrest has appealed.
In McCarty, the United States Supreme Court held that military retirement benefits are not
divisible as community property in state court divorce decrees. Nothing in McCarty, however,
suggests that the Supreme Court intended its decision to apply retroactively to invalidate, or
otherwise render unenforceable, prior valid and unappealed state court decrees. A clear
majority of courts have held that McCarty does not alter the res judicata consequences of a
divorce decree which was final before McCarty was filed. E.g., Erspan v. Badgett, 659 F.2d
26 (5th Cir. 1981); In re Marriage of Fellers, 178 Cal.Rptr. 35 (Ct.App. 1981); In re Marriage
of Sheldon, 177 Cal.Rptr. 380 (Ct.App. 1981). We are persuaded by the rationale of these
cases. Accordingly, we hold that the district court did not err by denying Forrest's motion to
modify.
Other contentions have been considered and found to be without merit.
Affirmed.
____________________

1
Forrest did not appeal from the divorce decree.
____________
98 Nev. 150, 150 (1982) City of Las Vegas v. Sunward Sales, Inc.
CITY OF LAS VEGAS, A Municipal Corporation; and JERRY CAHILL in His Official
Capacity as Director of the Department of Business Activity for the City of Las Vegas,
Appellants, v. SUNWARD SALES, INC., Respondent.
No. 13664
April 28, 1982 643 P.2d 1207
Appeal from order granting a writ of mandamus, Eighth Judicial District Court, Clark
County, Paul S. Goldman, Judge.
The district court obtained an order granting a writ of mandamus to applicant for a
business license, and city and its director of business activity appealed. The Supreme Court
held that where a new ordinance governing licensing of timeshare businesses was adopted
subsequent to application to obtain a license, but prior to order granting applicant a writ of
mandamus to compel city and its director of business activity to grant a license, and all parties
agreed that applicant was not entitled to a business license and was required to comply with
new ordinance if he wished to obtain a license, it was necessary for the Supreme Court to
dispose of the entire proceeding, not merely the appeal, and to reverse the order granting the
writ and remand with instructions to dismiss the proceedings below.
Reversed and remanded with instructions.
George F. Ogilvie, City Attorney; Janson F. Stewart, Chief Deputy City Attorney, Las
Vegas, for Appellants.
Bilbray & Gibbons, Las Vegas, for Respondent.
Mandamus.
Where a new ordinance governing licensing of timeshare businesses was adopted subsequent to
application to obtain a license, but prior to order granting applicant a writ of mandamus to compel city and
its director of business activity to grant a license, and all parties agreed that applicant was not entitled to a
business license and was required to comply with new ordinance if he wished to obtain a license, it was
necessary for the Supreme Court to dispose of the entire proceeding, not merely the appeal, and to reverse
the order granting the writ and remand with instructions to dismiss the proceedings below.
OPINION
Per Curiam:
Respondent has moved this court to dismiss this appeal on the ground that the issues
presented are moot.
98 Nev. 150, 151 (1982) City of Las Vegas v. Sunward Sales, Inc.
the ground that the issues presented are moot. On August 6, 1981, respondent Sunward Sales
filed an application with the Las Vegas Department of Business Activity seeking to obtain a
license to engage in the business of selling timeshares in vacation dwelling units. Shortly
after respondent filed its application, a new ordinance governing the licensing of timeshare
businesses was introduced to the Las Vegas Board of Commissioners. Respondent's
application for a business license was held in abeyance by the Department of Business
Activity pending the adoption of this new ordinance.
Thereafter, on October 6, 1981, respondent filed a petition for a writ of mandamus in
district court seeking to compel appellants to grant a license. On October 12, 1981, the
director of the Department of Business Activity notified respondent that the application for a
license was denied because the new ordinance was due for adoption on October 21, 1981, and
because the ordinance contained a comprehensive set of regulations for this type of business.
The hearing in district court on the petition was held on October 20, 1981; the new
ordinance was adopted on October 21, 1981; and the district court's order granting
respondent's writ, and compelling the city to issue a license to respondent under the former
ordinance, was entered October 22, 1981.
Thereafter, this court issued an order staying the writ of mandamus below pending the
disposition of this appeal.
Respondent contends in its motion to dismiss this appeal that the issues presented are moot
because of the adoption of the new timeshare ordinance, Las Vegas Municipal Code ch. 47,
Title V (October 21, 1981). Appellants agree that this matter is now moot. The parties
disagree, however, as to the appropriate remedy. Respondent contends that this court should
simply dismiss this appeal, while appellants contend that the district court's writ must be
summarily reversed.
A dismissal of this appeal would leave the district court's writ of mandamus in full force.
All parties agree that respondent is not presently entitled to a business license. Indeed,
respondent specifically concedes that it must comply with the new ordinance if it wishes to
obtain a business license.
1
Under these circumstances, we must dispose for the entire
proceeding, not merely the appeal. See La Salle Nat. Bank v. City of Chicago, 121 N.E.2d
486 (Ill. 1954); see also Miller v. West, 88 Nev. 105, 493 P.2d 1332 (1972). Accordingly, we
reverse the order of the district court granting a writ of mandamus and awarding attorney
fees, and we remand with instructions to dismiss the proceedings below.
____________________

1
The new ordinance requires all persons, whether or not formerly licensed, to comply with the new scheme of
regulations. Respondent has not challenged this requirement.
98 Nev. 150, 152 (1982) City of Las Vegas v. Sunward Sales, Inc.
order of the district court granting a writ of mandamus and awarding attorney fees, and we
remand with instructions to dismiss the proceedings below.
Reversed and remanded.
____________
98 Nev. 152, 152 (1982) Bell v. Machado
EULA M. BELL, Appellant, v. JOSE MACHADO and DOLORES MACHADO, dba
SANDMAN MOTEL, Respondents.
No. 13206
April 28, 1982 643 P.2d 1208
Appeal from order dismissing complaint under NRCP 41(b), Second Judicial District
Court, Washoe County; John W. Barrett, Judge.
Motel guest appealed from an order of the district court dismissing her complaint for
personal injuries against motel owner. The Supreme Court held that trial court erred in
dismissing complaint where trial court weighed evidence.
Reversed and remanded.
[Rehearing denied October 5, 1982]
David Hamilton, Reno, for Appellant.
Vargas & Bartlett, by Phillip W. Bartlett, Reno, for Respondents.
Innkeepers.
In action by motel guest against motel owners for injuries sustained when guest fell over portable heater
and cut her leg, trial court erred in granting motion for involuntary dismissal since trial court weighed
evidence to conclude that heater did not have sharp edge. NRCP 41(b).
OPINION
Per Curiam:
Eula M. Bell has appealed from an order dismissing her complaint after the close of her
case pursuant to NRCP 41(b). The complaint alleged that respondents were negligent in
placing a portable heater in Bell's motel room which injured her when she attempted
unsuccessfully to step over the heater and instead fell against it, cutting her leg on a sharp
corner.
98 Nev. 152, 153 (1982) Bell v. Machado
Although there was conflicting testimony presented during the case in chief as to whether
the corner of the heater was unduly sharp, the judge stated in granting the motion that he
seriously doubted that the heater had a sharp edge and that the edge of the heater was the
cause of Bell's injury. In reaching that conclusion the judge weighed the evidence, which is
inappropriate when considering a motion under NRCP 41(b).
We have repeatedly stated that a motion for involuntary dismissal admits the truth of
plaintiff's evidence and all inferences that reasonably can be drawn therefrom, and the
evidence must be interpreted in the light most favorable to plaintiff. Baley & Selover v. All
Amer. Van, 97 Nev. 370, 373, 632 P.2d 723, 724 (1981).
This case is reversed and remanded for a new trial.
____________
98 Nev. 153, 153 (1982) Board Clark Co. Comm'rs v. Excite Corp.
THE BOARD OF CLARK COUNTY COMMISSIONERS OF CLARK COUNTY,
NEVADA, SAM BOWLER, THALIA DONDERO, MANUEL CORTEZ, DAVID
CANTER, RICHARD RONZONE, JACK PETTITI and ROBERT BROADBENT, as
Members of
the Board of Clark County Commissioners, JOHN McCARTHY, Sheriff, JERE VANEK,
Assistant Sheriff and JOHN VORNSAND, Zoning Administrator of the Clark County Zoning
Division, Appellants, v. EXCITE CORPORATION dba
THE PARADISE CENTER, Respondent.
No. 12915
April 28, 1982 643 P.2d 1209
Appeal from judgment granting injunctive relief from enforcement of certain licensing and
zoning ordinances, and granting a writ of mandamus, Eighth Judicial District Court, Clark
County; Paul S. Goldman, Judge.
Appeal was taken from a judgment of the district court which granted injunctive relief
from enforcement of certain licensing and zoning ordinances, and granted a writ of
mandamus. The Supreme Court, Zenoff, Senior Justice, assigned, held that where applicant,
which obtained temporary restraining order prohibiting enforcement of previous licensing and
zoning scheme which was subsequently found unconstitutional, did not begin operation of its
bookstore until after effective date of new zoning ordinance establishing special permit
requirements for certain defined "adult uses," its bookstore did not constitute a valid
nonconforming use so as to be exempt from new ordinance's requirements.
98 Nev. 153, 154 (1982) Board Clark Co. Comm'rs v. Excite Corp.
effective date of new zoning ordinance establishing special permit requirements for certain
defined adult uses, its bookstore did not constitute a valid nonconforming use so as to be
exempt from new ordinance's requirements.
Affirmed in part; reversed and remanded in part.
[Rehearing denied July 30, 1982]
Robert J. Miller, District Attorney, S. Mahlon Edwards, Deputy District Attorney, Las
Vegas, for Appellants.
Alan B. Andrews, Las Vegas, for Respondent.
1. Zoning and Planning.
Where applicant, which obtained temporary restraining order prohibiting enforcement of previous
licensing and zoning scheme which was subsequently found unconstitutional, did not begin operation of its
bookstore until after effective date of new zoning ordinance establishing special permit requirements for
certain defined adult uses, its bookstore did not constitute a valid nonconforming use so as to be exempt
from new ordinance's requirements.
2. Zoning and Planning.
Unequivocal intent to use the property in a particular way cannot substitute for actual use at the time the
zoning ordinance is enacted so as to establish a valid nonconforming use.
OPINION
By the Court, Zenoff, Sr. J.:
1

On September 20, 1979, Excite Corporation, plaintiff below, sought a permit to operate a
bookstore at 4034 Paradise Road, in Clark County, pursuant to the general business license
provisions of Clark County Code Chapter 6.04. The Clark County Licensing Bureau informed
plaintiff that it must first obtain zoning approval, including a conditional use permit as
required of bookstores by Clark County Code 29.66.020(N),
2
through procedures set forth
in Code 29.66.010(A).
Plaintiff refused to submit its application for a conditional use permit, and instead filed
suit in district court on September 24, 1979, seeking declaratory and injunctive relief, on
constitutional grounds, from the enforcement of the licensing and zoning provisions
mentioned above. Plaintiff also alleged in its complaint that it desired to operate an adult
film "arcade" at the same address, noting that Clark County Code Chapter 6.95 purported
to regulate the licensing of theaters, including "Adult Picture Arcades," and sought similar
injunctive relief on constitutional grounds from the enforcement of this portion of the
code.
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19(1)(c), SCR 10.

2
Subsection (N) is the applicable subsection designation in effect in 1979. See, Clark County, Nev. Ord. 609
2 (1979).
98 Nev. 153, 155 (1982) Board Clark Co. Comm'rs v. Excite Corp.
complaint that it desired to operate an adult film arcade at the same address, noting that
Clark County Code Chapter 6.95 purported to regulate the licensing of theaters, including
Adult Picture Arcades, and sought similar injunctive relief on constitutional grounds from
the enforcement of this portion of the code.
On October 2, 1979, plaintiff successfully sought a temporary restraining order prohibiting
enforcement of the licensing and zoning ordinances mentioned above. On the same date, the
Board of County Commissioners of Clark County enacted a zoning ordinance regulating the
location of, and establishing special permit requirements for, certain defined adult uses.
Clark County Code 29.49.010 et seq. became effective October 16, 1979. On November 6,
plaintiff opened for business pursuant to the temporary restraining order.
Thereafter, plaintiff sought leave to amend its complaint to seek a writ of mandamus,
based upon its discovery that a conditional use permit had been issued in 1963 to the Paradise
Shopping Center for a market and retail store shopping area. Plaintiff contended that it was
entitled, on the basis of this permit, to a summary sign-off of all zoning requirements by the
zoning administrator, since it was operating a retail store in the Paradise Shopping Center.
The district court granted leave to amend, but specified that the amendment was not to relate
back to the date the complaint was filed.
On June 26, 1980, the court handed down its decision and order, granting plaintiff the
relief it had sought. The court concluded that the licensing scheme in effect at the time of
plaintiff's license application in September, 1979, and from which it had sought injunctive
relief, was invalid for failure to specify precise and objective standards, failure to provide for
a prompt hearing, and failure to require a set time period for a ruling on a license request. The
court accordingly granted plaintiff injunctive relief from enforcement of Code 6.04.010 et
seq., 29.66.020(N), 29.66.010(A), and 6.95.010 et seq. The court then held that Clark County
Code Chapter 29.49 did not apply to plaintiff. While acknowledging that plaintiff had not
directly sought relief from the operation of Chapter 29.49, the court specifically granted the
writ of mandamus to compel the zoning administrator to sign-off' the zoning requirements
of 29.49 and 29.66.020(N).
Counsel for appellants has wisely conceded the unconstitutionality of the licensing and
zoning scheme challenged by respondent. See North Nevada Co. v. Menicucci, 96 Nev. 533,
611 P.2d 1068 (1980); Talk of the Town v. City of Las Vegas, 92 Nev. 466, 553 P.2d 959
(1976). We note that respondent has not challenged the constitutionality of the licensing
and zoning scheme reflected in Clark County Code Chapter 29.49.
98 Nev. 153, 156 (1982) Board Clark Co. Comm'rs v. Excite Corp.
not challenged the constitutionality of the licensing and zoning scheme reflected in Clark
County Code Chapter 29.49. See Young v. American Mini Theatres, 427 U.S. 50 (1976).
Therefore, as the court below correctly perceived, the central and dispositive issue is whether
respondent is entitled to be licensed, or to operate without a license, because it first submitted
an application, and then filed its complaint for injunctive relief, when the licensing scheme
concluded to be unconstitutional was in effect, or whether, as the appellants contend, Chapter
29.49 is applicable. The district court ruled that Chapter 29.49 did not apply to petitioner,
primarily on the authority of our decision in North Nevada Co. v. Menicucci, 96 Nev. 533,
611 P.2d 1068 (1980). This reliance was misplaced.
In North Nevada a new zoning ordinance related to location of regulated uses, including
adult book stores, became effective July 1, 1977. It was applicable only to regulated uses
established thereafter. 96 Nev. at 536, 611 P.2d at 1070. We held that because the applicant
was operating and had fully complied with the applicable fire and building codes by June 17,
1977, it was entitled to open and therefore was operating legally, albeit without a license
prior to July 1, and the new ordinance could not be applied retroactively to close the
bookstore. Id.
[Headnote 1]
In this case, Clark County Code 29.49.070 similarly provided that the chapter would not
apply to nonconforming uses if they had fully complied with applicable building fire and
licensing codes, as well as effective zoning codes, when said use commenced. Unlike the
bookstore in North Nevada, the applicant in this case did not begin operation until three
weeks after the effective date of the new zoning ordinance. At oral argument counsel for
respondent informed the court that the delay was occasioned by the need to obtain building
and fire code approval. Thus it appears that respondent was neither actually open, nor entitled
to open, before that date.
[Headnote 2]
As we have previously held, unequivocal intent to use the property in a particular way
cannot substitute for actual use at the time a zoning ordinance is enacted, so as to establish a
valid nonconforming use. Pederson v. County of Ormsby, 86 Nev. 895, 478 P.2d 152 (1970).
Respondent's contention that the conditional use permit issued to the Paradise Shopping
Center in 1963 runs with the land cannot establish more than compliance with prior zoning
regulations. It cannot convert intended use into actual use or establish compliance with the
remaining requirements for qualification as a nonconforming use.
98 Nev. 153, 157 (1982) Board Clark Co. Comm'rs v. Excite Corp.
intended use into actual use or establish compliance with the remaining requirements for
qualification as a nonconforming use.
Finally, Williams v. Griffin, 91 Nev. 743, 542 P.2d 732 (1975), cited by the court below,
does not apply to the facts of the instant case. In Williams we upheld the decision of an
administrative agency to deny a permit when the proposed use would conflict with a pending,
but not yet enacted, zoning ordinance. See also Kings Castle v. Washoe Co. Bd. Comm'rs, 88
Nev. 557, 502 P.2d 103 (1972). The acceleration of the effective date of the zoning ordinance
was upheld on the ground of the property owner's actual or constructive knowledge of the
pending change. In this case, of course, there was no question of acceleration, because the
zoning ordinance had already gone into effect. Moreover, it affirmatively appears that
respondent had actual knowledge of the pending ordinance at the time it filed its complaint on
September 24, 1979.
Insofar as the judgment of the district court granted an injunction against enforcement
against respondent of the previous licensing and zoning scheme embodied in former Clark
County Code Chapter 6.04, 29.66.020(N) and 29.66.010(A), and Chapter 6.95, the
judgment is affirmed. Insofar as it granted a writ of mandamus to compel the Clark County
zoning administrator to certify respondent's compliance with the applicable provisions of
Clark County Code Chapter 29.49, however, the judgment is reversed and remanded.
Respondent is entitled to no more than the opportunity to show that it was in compliance with
the valid and applicable codes at the time it commenced operations.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., concur.
____________
98 Nev. 158, 158 (1982) Emerson v. State
JANET LEE EMERSON, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 12562
April 28, 1982 643 P.2d 1212
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; J.
Charles Thompson, Judge.
Defendant was convicted before the district court of forgery, and she appealed. The
Supreme Court, Zenoff, Senior Justice, held that: (1) trial court's failure to give any
instructions on proper weight to be accorded testimony regarding defendant's reputation for
honesty constituted prejudicial error in view of fact that defendant admitted committing acts
with which she was charged, but defended herself on ground that she lacked specific intent to
damage or defraud, an element of crime of forgery, thus placing defendant's character into
issue, and in view of fact that State's evidence in this regard was not strong; (2) prosecutor's
comments, during final presentation to jury, upon defendant's failure to call her husband as a
witness were improper; (3) prosecutor's comment in closing argument suggesting that it was
defendant's burden to produce proof by explaining absence of witnesses or come up with
something was clearly inaccurate and improper; and (4) prosecutor's comments, which came
very close to suggesting his personal belief in defendant's guilt, rather than arguing evidence
and inferences, were clearly inappropriate.
Reversed and remanded.
Morgan D. Harris, Public Defender and Terrence M. Jackson, Deputy Public Defender,
Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
In prosecution for forgery, trial court's failure to give any instructions on proper weight to be accorded
testimony regarding defendant's reputation for honesty constituted prejudicial error in view of fact that
defendant admitted committing acts with which she was charged, but defended herself on ground that she
lacked specific intent to damage or defraud, an element of crime of forgery, thus placing defendant's
character into issue, and in view of fact that State's evidence in this regard was not strong. NRS 48.045,
subd. 1(a), 205.090.
2. Criminal Law.
In prosecution for forgery, prosecutor's comments, during final presentation to jury, upon
defendant's failure to call her husband as a witness were improper.
98 Nev. 158, 159 (1982) Emerson v. State
presentation to jury, upon defendant's failure to call her husband as a witness were improper. NRS
49.295, 49.405, subd. 1, 205.090.
3. Criminal Law.
Prosecutor's comment in closing argument in prosecution for forgery suggesting that it was defendant's
burden to produce proof by explaining absence of witnesses or come up with something was clearly
inaccurate and improper. NRS 205.090.
4. Criminal Law.
Prosecutor's comments, which came very close to suggesting his personal belief in defendant's guilt rather
than arguing evidence and inferences, were clearly inappropriate. NRS 205.090.
5. Criminal Law.
A prosecutor does not appropriately offer his personal opinion as to guilt of accused.
OPINION
By the Court, Zenoff, Sr. J.:
1

Appellant Janet Emerson was convicted of forgery (NRS 205.090), upon a jury verdict.
She contends that the judgment of conviction should be reversed on the basis of (1) the
failure of the trial court to give the jury any instruction regarding evidence of her good
character, and (2) prosecutorial misconduct. We agree.
At trial, the state presented the testimony of Mr. Clay Sims, an elderly resident of Clark
County, to the effect that in October, 1977, he had been called by his bank with an inquiry
about one of his checks. At that point, he testified, he noticed that his check book was
missing. The last time he remembered seeing it was at a grocery store near his home in Las
Vegas. At the bank, he confirmed that the signature and writing on the check were not his. He
testified that they were not made on his authorization or behalf. A bank teller identified the
same check as one she cashed at a drive-in window without seeing the presenter. A
handwriting expert identified the writing on the check, other than the signature, as that of the
person writing an exemplar under the name Janet Emerson.
The state's final witness was Officer Dunlop of the police forgery detail. He testified that
the defendant came in, was informed of and waived her rights, and admitted filling in her
name as payee, $375 as the amount of the check, for stereo on the purpose line, and her
endorsement. According to his testimony, she said that she had received the check in
payment for a TV from a subject. She gave a vague description of the subject, stated she
knew him but not by full name; that he frequented bars on the Boulder Highway and that
he had signed the maker's signature on the check and gave the check to her to fill in and
take [sic] the TV and left."
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19(1)(c), SCR 10.
98 Nev. 158, 160 (1982) Emerson v. State
the subject, stated she knew him but not by full name; that he frequented bars on the Boulder
Highway and that he had signed the maker's signature on the check and gave the check to her
to fill in and take [sic] the TV and left.
Officer Dunlop gave contradictory testimony regarding whether the defendant had
identified the payer as Mr. Sims, by no name, or by first name only. At one point, the
officer testified that she did indicate that the maker's signature of Clay Sims was made out in
her presence by another person whom she knew not to be Clay Sims. On
cross-examination, he testified that the conversation had taken place about one year earlier,
and that he did not take any notes. The officer was also permitted to testify, over objection,
that after he told her to try to find this other individual, the defendant never contacted him
again.
The defense was that Janet Emerson had no intent to defraud. She testified that in October,
1977, she and her husband had driven to Las Vegas from Pahrump, and had run into an
acquaintance they knew as Wayne in a shopping center parking lot. She testified that he had
asked them for help in cashing a check because he did not have proper identification. Janet
further testified that her husband had called his mother, who had worked in a bank, to ask
about cashing the check, which had no named payee, and that her mother-in-law had said to
fill in her own name and endorse the check. Janet testified that the check was already signed,
but that she had filled in the rest from Wayne's instructions, including the amount of $375 and
stereo. She then testified she went to the bank and cashed the check. She testified that after
her conversation with Officer Dunlop, she went to the apartment complex where they had
known Wayne, but that their mutual acquaintance had moved.
The defense called appellant's mother-in-law who substantially corroborated Janet's
testimony regarding the phone call. According to the witness, her son said a friend had a
check and he couldn't get it cashed because he didn't have I.D. I asked him the amount. It was
quite sizeable, around 350, 400 dollars, and I told him, well, Janet has I.D. Have him endorse
it over to her and take it over to the bank. She also testified that I asked him who the check
was made out to, and he said it was blank. I said, Well, just have him write Janet's name in'.
Finally, Janet's mother-in-law, a fellow worker, and her supervisor testified positively
regarding Janet's reputation for honesty.
98 Nev. 158, 161 (1982) Emerson v. State
On rebuttal, the state recalled Janet's mother-in-law and asked one question: Where is
your son James today? Officer Dunlop was also recalled, who testified that Janet did not
mention meeting Wayne in a parking lot, and that the only story I was told by her was he
had purchased a TV from her. He also testified that the defendant told him the check was
given to her in blank with the marker's signature only on the check. The defense recalled
Janet Emerson, who denied saying anything about a TV set to Officer Dunlop, and further
testified that she had not given him all the details of the incident because she felt insecure
with him.
1. Defense counsel submitted to the trial court four alternative instructions dealing with
the proper weight to be accorded evidence of a defendant's good character. All four were
refused by the trial court, which did not offer any instruction regarding the evaluation of good
character evidence.
NRS 48.045(1)(a) provides that although the basic rule is that [e]vidence of a person's
character or trait of his character is not admissible for the purpose of proving that he acted in
conformity therewith on a particular occasion, a specific exception is made for [e]vidence
of his character or a trait of his character offered by an accused, and similar evidence offered
by the prosecution to rebut such evidence.
This Court has recently quoted with approval:
It has long been the rule that it is the duty of the trial judge to instruct the jury in
substance that reputation of the defendant's good character, when put in evidence, is a
fact which they should consider with the other facts in the case and which, when so
considered, may, like other facts, generate a reasonable doubt which would justify
acquittal.
Beddow v. State, 93 Nev. 619, 625, 572 P.2d 526, 529 (1977), quoting United States v.
Frischling, 160 F.2d 370, 370 (3d Cir. 1947). The Court in Frischling held that it was
reversible error to refuse to instruct the jury: Good character, when considered in connection
with other evidence in the case, may generate a reasonable doubt sufficient to justify you in
acquitting the defendant. 160 F.2d at 370.
The state argues on appeal that the instructions were properly refused because they
incorrectly stated the law because they would have required the jury to acquit the defendant
if they found she had good character. It is difficult to read this in any of the offered
instructions, each of which simply states either that such evidence may be sufficient by itself
to raise a reasonable doubt, or that the jury may draw an inference, or think it improbable
that a defendant of such character would commit the crime.
98 Nev. 158, 162 (1982) Emerson v. State
or think it improbable that a defendant of such character would commit the crime.
In any case, it has been held that in the absence of any acceptable instruction regarding
good character, it is incumbent upon [the state] to suggest a revision. State v. Allen, 574
P.2d 1182, 1187 (Wash. 1978). The court in United States v. Frischling, supra, 160 F.2d at
370, 371, stressed that the error was in the trial judge's failure although specifically required
to do so, to give [the jury] any guidance as to what part that fact [of good character] could
play in their consideration of the defendant's guilt. (Emphasis added.) The court noted, A
jury who were not told that the defendant's reputation for good character when considered in
light of the other evidence might be permitted to raise the sort of doubt in their minds which
would justify acquittal, might well regard evidence of such reputation as wholly irrelevant to
the specific issue of guilt committed to them and consequently give it no consideration
whatsoever. Id. at 371.
[Headnote 1]
The prejudice resulting from failure to give such an instruction is apparent in the particular
circumstances of this case. An element of the crime of forgery is the specific intent to
damage or defraud. NRS 205.090. As noted by defense counsel to the jury, appellant
admitted committing the acts with which she was charged; her defense was that she lacked
this specific intent. The state's evidence in this regard was not strong. In these circumstances,
clarification of the proper weight to be accorded testimony regarding defendant's reputation
for honesty may well have affected the verdict, and we cannot regard the error as harmless.
2. Appellant has also raised a number of issues regarding the prosecutor's conduct of the
trial. First, appellant contends that it was improper and highly prejudicial for the prosecutor to
comment upon the defendant's failure to call her husband as a witness.
The marital privilege is defined in NRS 49.295, which provides that a husband cannot be
examined as a witness for or against his wife without her consent. Our statutes further
explicitly provide that the claim of a privilege is not a proper subject of comment by judge
or counsel, and that [n]o inference may be drawn therefrom. NRS 49.405(1).
In this case, the prosecutor, on rebuttal, called the defendant's mother-in-law for the sole
purpose of asking her: Where is your son James today? The inference was clear. In his final
presentation to the jury, the prosecutor argued: Ladies and gentlemen of the jury, if this
were a case in which you were charged with this crime and this was your defense, your
defense was that your husband James duped you or your defense was that there was
some mistake made by your husband James, what would you do?
98 Nev. 158, 163 (1982) Emerson v. State
Ladies and gentlemen of the jury, if this were a case in which you were charged with
this crime and this was your defense, your defense was that your husband James duped
you or your defense was that there was some mistake made by your husband James, what
would you do? Would you subpoena James? Would you exercise your power as an
officer of the Court which is what Mr. Jackson is and bring James into Court, put him on
that witness stand and have him tell you where he is, what happened on that day, and
how he did or did not dupe this young lady?
[Headnote 2]
Defense counsel objected on several grounds, though without raising the privilege issue in
front of the jury. The court stated that it was permissible for an attorney to argue that the
other attorney has the right to subpoena witnesses and didn't. The court then instructed the
prosecutor to go on to another subject, after which the prosecutor stated to the jury: it
should be obvious that James should have been here or his absence should have been
explained. The court did orally instruct the jury at that point that there is no burden upon
the defendant to explain the absence of a witness. At the conclusion of the prosecutor's
rebuttal, defense counsel requested a mistrial.
Although the defense counsel's objections were not couched in the language of privilege, it
has been held improper for the prosecutor to force invocation of the privilege in front of the
jury. See State v. Levy, 160 N.W.2d 460 (Iowa 1968); see also NRS 49.405(2). The
comments of the prosecutor were clearly improper. See State v. Levy, supra; Commonwealth
v. Moore, 309 A.2d 569 (Pa. 1973); State v. Torres, 554 P.2d 1069 (Wash.App. 1976).
Compare People v. Coleman, 459 P.2d 248 (Cal. 1969) (proper to comment after evidence
code changed to abolish defendant's privilege).
[Headnote 3]
Appellant also complains that although admonished a number of times, the prosecutor
continued in closing argument to suggest that it was the defendant's burden to produce proof
by explaining the absence of witnesses or come up with something. This implication is, of
course, clearly inaccurate. See Mullaney v. Wilbur, 421 U.S. 684 (1975); In re Winship, 397
U.S. 358 (1970).
[Headnotes 4, 5]
Finally we note that the prosecutor did make several comments which came very close to
suggesting his personal belief in defendant's guilt, rather than arguing evidence and
inferences.
98 Nev. 158, 164 (1982) Emerson v. State
defendant's guilt, rather than arguing evidence and inferences. A prosecutor does not
appropriately offer his personal opinion as to the guilt or the character of the accused.
Pacheco v. State, 82 Nev. 172, 414 P.2d 100 (1966).
We believe it is apt to recall the expression of the United States Supreme Court in Berger
v. United States, 295 U.S. 78, 88 (1935), quoted by us some twenty years ago in Garner v.
State, 78 Nev. 366, 370, 374 P.2d 525, 528 (1962):
The United States Attorney is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as compelling
as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution
is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar
and very definite sense the servant of the law, the twofold aim of which is that guilt shall
not escape or innocence suffer. He may prosecute with earnestness and vigor--indeed, he
should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.
It is as much his duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one. See also State
v. Rodriguez, 31 Nev. 342, 347, 102 P. 863.
We reject the state's argument that the accumulation of improper suggestions and remarks
should, in the context of this case, be viewed as harmless. As we have previously observed:
In close cases of this character where counsel's argument to the jury by virtue of the
uncertain state of the evidence is magnified in importance, the importance of avoiding undue
appeals to sympathy, passion and prejudice are likewise magnified. State v. Kassabian, 69
Nev. 146, 148, 243 P.2d 264, 265 (1952).
We accordingly reverse the judgment of conviction and remand this case for a new trial.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., concur.
____________
98 Nev. 165, 165 (1982) Nationwide Mut. Ins. v. Maurigi
NATIONWIDE MUTUAL INSURANCE COMPANY and EDMOND G. PSALTIS,
Appellants, v. JEANETTE A. MAURIGI, Respondent.
No. 12904
April 28, 1982 643 P.2d 1216
Appeal from judgment against insurer, Second Judicial District Court, Washoe County;
Roy L. Torvinen, Judge.
Injured pedestrian brought action against offending driver and such driver's no-fault
insurer. The district court determined that insurer was liable to pedestrian on her claim for
basic reparation benefits, and insurer and driver appealed. The Supreme Court held that
pedestrian was not barred from claiming basic reparation benefits on ground she had failed to
insure vehicle owned by her as required by no-fault statute.
Affirmed.
Cromer, Barker, Michaelson, Gillock & Rawlings, Reno, for Appellants.
Durney, Guinan & Brennan, Reno, for Respondent.
Insurance.
Injured pedestrian, who sought recovery against offending driver and such driver's no-fault insurer under
alternative victim-compensation plan created by no-fault insurance statute, was not barred from claiming
basic reparation benefits because she had failed to insure vehicle owned by her as required by such statute.
NRS 698.190, 698.250, subds. 1, 2, 698.260, subds. 2, 3, 698.280, 698.340, 698.380, subd. 4; NRS
698.190, subd. 1 (Repealed).
OPINION
Per Curiam:
Respondent, while a pedestrian, was struck and injured by a vehicle driven by appellant
Psaltis in Reno on December 6, 1978. The driver was insured pursuant to NRS Chapter 698,
the no fault insurance act then in effect. Respondent was also the owner of a vehicle
registered in the state of Nevada, which did not have the insurance required by Chapter 698.
The court below determined that appellant insurer was liable to respondent on her claim for
basic reparation benefits. On appeal, the insurer and driver contend that respondent is barred
from claiming basic reparation benefits under former Chapter 698 because she had failed to
insure a vehicle owned by her as required by the statute.
98 Nev. 165, 166 (1982) Nationwide Mut. Ins. v. Maurigi
because she had failed to insure a vehicle owned by her as required by the statute.
Former NRS 698.190(1) required every owner of a motor vehicle registered in this state to
provide, by a contract of insurance or by qualifying as a self-insurer, security for the payment
of basic reparation benefits and for payment of tort liability arising from the maintenance or
use of the motor vehicle. The act also provided, former NRS 698.260(2), that [a]ny person
who sustains an injury and is not an operator or occupant of a motor vehicle shall claim basic
reparation benefits from insurers in the following order of priority: (a) His insurer. (b) The
insurer of the owner of the motor vehicle. (c) The insurer of the operator of the motor
vehicle. The statute provided that [b]asic reparation benefits shall be paid without regard to
fault, and without regard to immunity from liability or suit which might otherwise be
applicable. NRS 698.250(1) and (2). Furthermore, NRS 698.260(3) specifically provided for
priority of recovery by a pedestrian (that is, one who was not an operator or occupant of a
vehicle) who was injured by two or more motor vehicles and was not covered by basic
reparation insurance. Finally, the act specifically listed persons disqualified from basic or
added reparation benefits. NRS 698.340. Persons failing to comply with the requirements of
NRS 698.190 were not included on this list, although they were expressly excluded from
participation in the assigned claims plan. NRS 698.380(4).
The district court concluded that under this legislative scheme respondent was entitled to
claim basic reparation benefits from the insurer of the driver. We agree.
Respondent relies here, as he did below, upon Surman v. Griebel, 439 F.Supp. 1118
(D.Nev. 1977), followed in Laughlin v. Hydro Search, Inc., 96 Nev. 872, 620 P.2d 373
(1980). These cases were predicated upon an analysis of NRS 698.280, which abolished tort
liability with certain specified exceptions. In this case, the interpretation of the tort abolition
provision is not at issue. Instead, respondent sought recovery under the alternative
victim-compensation plan created by the no-fault insurance statute. See Hagains v.
Government Emp. Ins. Co., 376 A.2d 224 (N.J.Super. 1977).
The policy argument for denying basic reparation benefits protection to pedestrians is not
of the same force as that for denying the protection to an uninsured motorist; the fact that a
pedestrian owns an uninsured automobile is unrelated to the accident or injuries for which
compensation is sought. That the legislature was not concerned with the maintenance of
insurance for such persons is reflected in the specific provisions for recovery by uninsured
pedestrians in NRS 69S.260{3).
98 Nev. 165, 167 (1982) Nationwide Mut. Ins. v. Maurigi
legislature was not concerned with the maintenance of insurance for such persons is reflected
in the specific provisions for recovery by uninsured pedestrians in NRS 698.260(3).
We affirm the judgment of the district court.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19(1)(c), SCR 10.
____________
98 Nev. 167, 167 (1982) Simmons v. Trivelpiece
KATHRYN SIMMONS, Individually and as Executrix Under the Will of WILLIAM LYON,
Appellant, v. MARGARET TRIVELPIECE, Respondent.
No. 12600
April 28, 1982 643 P.2d 1219
Appeal from judgment dismissing plaintiff's complaint, Second Judicial District Court,
Washoe County; John W. Barrett, Judge.
Suit was instituted to impose a trust upon certain real property. The district court granted
defendant's motion to dismiss on basis of running of limitations, and plaintiff appealed. The
Supreme Court held that the statute which operates to toll the period of limitations for when a
prospective defendant is absent from the state does not apply when the absent defendant is
otherwise subject to service of process regardless of whether the action is in personam or in
rem.
Affirmed.
John L. Shadek, Incline Village, for Appellant.
Richard W. Young, Reno, for Respondent.
Limitation of Actions.
The statute which operates to toll the period of limitations for the time of a prospective defendant's
absence from the state does not apply when the absent defendant is otherwise subject to service of process
regardless of whether the action is in personam or in rem; overruling Robinson v. Imperial Silver Mining
Co., 5 Nev. 55. NRS 11.300.
98 Nev. 167, 168 (1982) Simmons v. Trivelpiece
OPINION
Per Curiam:
Appellant Kathryn Simmons brought suit in 1979 against her sister, Margaret Trivelpiece,
seeking on various theories to impose a trust upon certain real property located in Reno,
Nevada, and deeded to Trivelpiece by the parties' parents in 1954. Trivelpiece had resided in
California since 1933, and service was effected upon her there, apparently pursuant to NRCP
4(e)(2). Appellant asserted five causes of action, three as executrix of her father's estate
(under an unprobated will), and two in her individual capacity, for imposition of a
constructive trust, or alternatively for finding a resulting trust or an express trust, upon the
property. Trivelpiece filed a motion to dismiss appellant's complaint for failure to state a
claim, NRCP 12(b)(5), on the basis of the applicable statutes of limitations. Appellant's
primary response was that the running of the statutes of limitations was tolled for the entire
period because of the defendant's residence in California and consequent absence from the
state of Nevada. The court below granted defendant's motion to dismiss.
Appellant asserts that through the operation of NRS 11.300, defendant, a resident of
California, could not invoke the protection of the applicable statutes of limitations. That
statute provides:
If, when the cause of action shall accrue against a person, he be out of the state, the
action may be commenced within the time herein limited after his return to the state; and
if after the cause of action shall have accrued he depart the state, the time of his absence
shall not be part of the time prescribed for commencement of the action.
As was ably pointed out by the court below, the initial approach of this Court to the
interpretation of this provision was one of literal application. The statute was held to apply to
any absence of a prospective defendant from the jurisdiction, whether the action was in
personam, Todman v. Purdy, 5 Nev. 238 (1869), or in rem, Robinson v. Imperial Silver
Mining Co., 5 Nev. 44 (1869). Since 1962, this stance has been eroded by a series of cases
which have held, in various contexts, that the tolling statute does not apply when the absent
defendant is otherwise subject to service of process. Cal-Farm Insurance v. Oliver, 78 Nev.
479, 375 P.2d 857 (1962); Bank of Nevada v. Friedman, 82 Nev. 417, 420 P.2d 1 (1966);
Havas v. Long, 85 Nev. 260, 454 P.2d 30 (1969); Brown v. Vonsild, 91 Nev. 646, 541 P.2d
528 (1975).
98 Nev. 167, 169 (1982) Simmons v. Trivelpiece
Appellant urges us not to extend the logic of the latter opinions to a case involving real
property, arguing that there is no basis for altering our 1869 holding in Robinson v. Imperial
Silver Mining Co., supra, because there has been no expansion in the area of in rem
jurisdiction comparable to that which has taken place in the area of personal jurisdiction. This
argument ignores the basic rationale of Robinson, which was that the statute contains no basis
for a distinction between personal actions and actions involving real property in its
application. We continue to find that analysis of the statute persuasive. To except actions
involving real property from the modern interpretation of the statute's application has no basis
in logic or policy. We therefore overrule our holding in Robinson to the extent that it required
application of the tolling statute where an absent defendant was nevertheless subject to
service of process.
With respect to her remaining contentions, we find that appellant has failed to demonstrate
prejudicial error properly preserved for appellate review.
Affirmed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19(1)(c), SCR 10.
____________
98 Nev. 169, 169 (1982) Las Vegas Auto Leasing v. Davis
LAS VEGAS AUTO LEASING, INC., Appellant, v. RAYMOND DAVIS and JAMES E.
DAVIS, dba DESERT AUTO WRECKING, Respondents.
No. 12409
April 28, 1982 643 P.2d 1217
Appeal from judgment of involuntary dismissal and motion to vacate judgment, Eighth
Judicial District Court, Clark County; Keith C. Hayes and Addeliar D. Guy, Judges.
Plaintiff brought suit seeking deficiency judgment. The district court dismissed suit on
ground that plaintiff failed to provide required notice, and plaintiff appealed. The Supreme
Court held that contract was intended as a security agreement, and therefore, plaintiff was not
entitled to deficiency, having failed to provide notice required before vehicle repossessed
pursuant to security agreement may be sold.
98 Nev. 169, 170 (1982) Las Vegas Auto Leasing v. Davis
failed to provide notice required before vehicle repossessed pursuant to security agreement
may be sold.
Affirmed.
Reid & Alverson, Las Vegas, for Appellant.
Stanley W. Pierce, Las Vegas, for Respondents.
1. Secured Transactions.
Whether contract is security agreement or lease is determined by intention of parties as indicated by facts
of case.
2. Secured Transactions.
While contract in which plaintiff purported to lease motorcoach vehicle to defendants expressly
provided that there was no right to purchase, contract was intended as a security agreement, where its effect
was to require defendants to purchase vehicle for sum stated in contract, and therefore, plaintiff was not
entitled to deficiency, having failed to provide notice required before vehicle repossessed pursuant to
security agreement may be sold. NRS 482.516.
OPINION
Per Curiam:
Appellant and respondents entered into a written contract in which appellant purported to
lease a motorcoach vehicle to respondents. Appellant repossessed the vehicle following
respondents' default on the payments required by the agreement. Pursuant to the terms of the
contract, appellant sold the vehicle for the wholesale price, leaving a deficiency equal to the
difference between the sale price and respondents' maximum liability as stated in the contract.
Appellant brought suit in district court seeking a deficiency judgment. The district court
dismissed the suit pursuant to NRCP 41(b) on the ground that the appellant failed to provide
the notice required by NRS 482.516.
1
NRS 482.516 requires specific notice before a vehicle
repossessed pursuant to a security agreement may be sold.
____________________

1
NRS 482.516 provides, in pertinent part, as follows:
1. Any provision in any security agreement for the sale of a vehicle to the contrary notwithstanding,
at least 10 days' written notice of intent to sell a repossessed vehicle must be given to all persons liable on
the security agreement. The notice shall be given in person or shall be sent by mail directed to the address
of the persons shown on the security agreement, unless such persons have notified the holder in writing of
a different address.
. . .
3. During the period provided under the notice, the person or persons liable on the security
agreement may pay in full the indebtedness evidenced by the security agreement. Such persons shall be
liable for any deficiency after sale of the repossessed vehicle only if the notice prescribed by this section
is given within 60 days of repossession. . . .
98 Nev. 169, 171 (1982) Las Vegas Auto Leasing v. Davis
The sole issue raised on appeal is whether the district court erred in finding the purported
lease to be a security agreement such that the provisions of NRS 482.516 are applicable.
[Headnotes 1, 2]
Whether the contract is a security agreement or a lease is determined by the intention of
the parties as indicated by the facts of the case. U C Leasing, Inc. v. Laughlin, 96 Nev. 157,
606 P.2d 167 (1980). Appellant contends that the lack of an option or other right to purchase
the vehicle demonstrates that the agreement is not intended as an instrument for security. We
disagree. While the agreement expressly provides that there is no right to purchase, its effect
is to require respondents to purchase the vehicle for a sum stated in the contract. According to
the terms of the purported lease, a portion of each monthly payment is designated sales tax
and another portion is credited towards the stated original value of the vehicle. The difference
between the credited sums and the original value is specified as lessee's maximum liability.
Upon expiration or termination of the lease, the agreement requires that the lessor shall sell
the vehicle for the best wholesale price, and the lessee remains liable for the difference
between the sale price and the stated maximum liability.
There are other terms of the purported lease which indicate that a security agreement
was intended by the parties. According to the agreement, the lessee bears the risk of loss, theft
or damage and such loss does not relieve him of his payment obligation. The lessee is
required to insure against such loss, theft or damage and to indemnify the lessor for any
liability. Furthermore, the lessee is required to pay all charges, fees and taxes associated with
the use or ownership of the vehicle and appellant disclaims all warranties. See U C Leasing,
Inc., supra. Accordingly, we hold the district court did not err in finding the contract to be
intended as a security agreement. The judgment of the district court is affirmed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

2
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19(1)(c), SCR 10.
____________
98 Nev. 172, 172 (1982) Havas v. Hughes Estate, Summa Corp.
VICTOR HAVAS, Appellant, v. HUGHES ESTATE, SUMMA CORPORATION dba
DESERT INN HOTEL, Respondents.
No. 13046
April 30, 1982 643 P.2d 1220
Appeal from summary judgment, Eighth Judicial District Court, Clark County; William P.
Beko, Judge.
Action was brought against hotel for slander by comedian. The district court entered
summary judgment for hotel, and plaintiff appealed. The Supreme Court held that issue of
material fact existed on question of hotel's direct liability, even if comedian was independent
contractor, for hiring comedian hotel knew or should have known would make defamatory
statements, precluding summary judgment.
Reversed and remanded.
C. A. Jack Nelson, Las Vegas, and Harold M. Hecht, Las Vegas, for Appellant.
Cromer, Barker, Michaelson, Gillock & Rawlings, and John E. Gormley, Las Vegas, for
Respondents.
1. Appeal and Error; Judgment.
Rule providing that sworn or certified copies of all papers referred to in affidavit on motion for summary
judgment shall be attached thereto or served therewith is mandatory, and district court's reliance upon
affidavit which does not comply with rule may constitute reversible error. NRCP 56(e).
2. Judgment.
In action against hotel for slander by comedian, issue of material fact existed on question of hotel's direct
liability, even if comedian was independent contractor, for hiring comedian hotel knew or should have
known would made defamatory statements, precluding summary judgment.
OPINION
Per Curiam:
This is an appeal from a summary judgment entered in favor of respondents. Appellant's
complaint alleged that he was slandered by a comedian during a performance at respondent
hotel, and that the comedian was either an agent, employee or independent contractor of the
hotel. Appellant also alleged that in employing the comedian, respondents knew or should
have known that the comedian would make false and slanderous statements.
98 Nev. 172, 173 (1982) Havas v. Hughes Estate, Summa Corp.
Respondents' motion for summary judgment was based upon the grounds that the
comedian was an independent contractor whose acts did not make respondents liable, and that
even if the comedian was an employee of respondents, the corporate respondent was not
liable for slander by the comedian because the corporation did not authorize the comedian's
remarks. The motion was supported by the affidavit of Walter Kane, respondents' director of
entertainment. The affidavit referred to a contract for musical services, and discussed
various terms of the contract. The motion stated that the written contract was attached as an
exhibit, but the contract was in fact not attached to the motion.
In response to the summary judgment motion, appellant requested a continuance.
Appellant pointed out that the written contract had not been attached to respondents' motion
for summary judgment, and that the Kane affidavit was conclusory, inadmissible and a
violation of NRCP 56(e). Appellant argued that he must have a copy of the contract . . . to
determine the facts as set forth by the affidavit of Walter Kane. Appellant requested a
continuance of the summary judgment proceeding in order to conduct discovery. In
opposition to the continuance, respondents failed to explain why the written contract was not
attached to the motion for summary judgment.
The district court denied appellant's request for a continuance, and granted respondents'
motion for summary judgment.
1
No reasons for the summary judgment were specified by the
district court.
[Headnote 1]
NRCP 56(e) provides that sworn or certified copies of all papers referred to in an affidavit
shall be attached thereto or served therewith. The rule is mandatory, and a district court's
reliance upon an affidavit which does not comply with the rule may constitute reversible
error. See Daugherty v. Wabash Life Ins. Co., 87 Nev. 32, 482 P.2d 814 (1971); cf. State of
Washington v. Maricopa County, 143 F.2d 871 (9th Cir. 1944) (Fed.R.Civ.P. 56(e)).
[Headnote 2]
In addition to the irregularity of the Kane affidavit under NRCP 56(e), the affidavit fails to
establish as a matter of law that respondents have no liability to appellant. As mentioned
earlier, appellant's complaint alleged that when respondents employed the comedian,
respondents knew or should have known that the comedian would make defamatory
statements.
____________________

1
Appellant's action against the comedian is still pending in district court. The judgment in favor of
respondents was certified pursuant to NRCP 54(b).
98 Nev. 172, 174 (1982) Havas v. Hughes Estate, Summa Corp.
known that the comedian would make defamatory statements. Counsel for respondents has
acknowledged that this theory of respondents' direct liability, separate and apart from theories
relying upon respondeat superior, was not addressed in respondents' motion for summary
judgment. Indeed, the Kane affidavit contains nothing whatsoever dealing with this theory.
NRCP 56(c).
For the reasons discussed above, the district court erred by granting summary judgment to
respondents. Accordingly, we reverse the summary judgment, and remand for further
proceedings.
Gunderson, C. J., and Manoukian, Springer, and Steffen, JJ., and Young, D. J.,
2
concur.
____________________

2
The Honorable Llewellyn A. Young, Judge of the Sixth Judicial District Court, was designated by the
Governor to sit in place of Justice John Mowbray, who voluntarily disqualified himself. Nev. Const., art. 6, 4.
____________
98 Nev. 174, 174 (1982) Nevada Bd. Osteopathic Med. v. Graham
NEVADA BOARD OF OSTEOPATHIC MEDICINE; O. W. WHITE, D.O.; T. C.
McCLEARY, D.O.; O. W. SHELKSOHN, D.O.; TED D'AMICO, D.O.; and RUTH
ARMSTRONG, As Members of the Nevada Board of Osteopathic Medicine, Appellants, v.
FRANK GRAHAM, D.O., Respondent.
No. 13410
April 30, 1982 643 P.2d 1222
Appeal from order reversing a decision of the Nevada Board of Osteopathic Medicine.
Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
Appeal was taken from order of the district court reversing decision of Board of
Osteopathic Medicine to revoke physician's license for gross malpractice. The Supreme Court
held that: (1) because physician was deprived of his fundamental rights of due process of law,
Board's ruling was invalid, and (2) there was no statutory authority for award of fees to
physician.
Affirmed as modified.
Richard H. Bryan, Attorney General, Carson City; Robert N. Peccole, Chief Deputy
Attorney General, Las Vegas, for Appellants.
Richard D. Weisbart, Las Vegas, for Respondent.
98 Nev. 174, 175 (1982) Nevada Bd. Osteopathic Med. v. Graham
1. Constitutional Law.
Physician whose license was revoked for gross malpractice was deprived of his fundamental rights of due
process of law where Board of Osteopathic Medicine denied physician's rights to notice of hearing, to be
represented by counsel and right to call and examine witnesses. NRS 18.010, 233B.121 subds. 1, 3,
233B.123, subd. 4; Const.Art. 6, 19, subd. 1(c); SCR 10.
2. Costs.
Attorney fees may not be awarded in absence of statute, rule or contract granting them.
3. Physicians and Surgeons.
There was no statutory authority for award of fees to physician who successfully challenged revocation of
his license by Board of Osteopathic Medicine.
OPINION
Per Curiam:
The Nevada Board of Osteopathic Medicine issued a formal complaint against Frank
Graham alleging unprofessional conduct and gross malpractice. The Board conducted a
hearing on the complaint on July 17, 1979. Graham was present with counsel. At the
conclusion of the hearing it was agreed that two physicians would examine Graham relative
to his medical competency. This was done. The Board met on August 9, 1979 to consider the
results of the examination. The Board further considered newspaper reports concerning
Graham and two additional complaints that had been filed against Graham since the July
meeting. Neither Graham nor his counsel was present. At the conclusion of the meeting, the
Board voted to revoke Graham's license for gross malpractice.
[Headnote 1]
Graham appealed the Board's ruling to the district court. The court below found, among
other things, that at the August 1979 hearing Graham had been denied his statutory rights to
notice of the hearing (NRS 233B.121(1)); to be represented by counsel (NRS 233B.121(3));
the right to call and examine witnesses (NRS 233B.123(4)). The court concluded that because
Graham was deprived of his fundamental rights of due process of law, the Board's ruling was
invalid. We agree.
[Headnotes 2, 3]
The district court also awarded Graham $1,500.00 attorney's fees. This was improper. The
settled rule is that attorney's fees may not be awarded in the absence of a statute, rule or
contract granting them. State ex rel. List v. Courtesy Motors, 95 Nev. 103, 590 P.2d 163
(1979). NRS 18.010 only applies to actions for money damages.
98 Nev. 174, 176 (1982) Nevada Bd. Osteopathic Med. v. Graham
for money damages. International Industries v. United Mortgage Co., 96 Nev. 150, 157, 606
P.2d 163, 167 (1980). There is no statutory authority for the award of the fees.
We affirm the judgment below except as to the award of the attorney's fees, which we
reverse.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable Cameron M. Batjer, Justice, retired. Nev. Const., art. 6, 19(1)(c); SCR 10.
____________
98 Nev. 176, 176 (1982) State v. Baliotis
THE STATE OF NEVADA, Appellant, v. DONALD
G. BALIOTIS, Respondent.
No. 12897
April 30, 1982 643 P.2d 1223
Appeal from order granting post-conviction relief. Second Judicial District Court, Washoe
County; John E. Gabrielli, Judge.
State appealed from an order of the district court which granted respondent
post-conviction relief by setting aside his guilty plea to a 1969 charge of manufacture and
possession of dynamite machine. The Supreme Court held that respondent, who had been
discharged from probation in 1972, was not under sentence, within meaning of statute
permitting any person convicted of a crime and under sentence of death or imprisonment to
apply for post-conviction relief, at time he petitioned for post-conviction relief in 1978 in
order to have his guilty plea to a 1969 charge of manufacture and possession of dynamite
machine set aside.
Reversed and remanded.
Richard H. Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney,
and Edward B. Horn, Deputy District Attorney, Washoe County, for Appellant.
Jerome M. Polaha, Reno, for Respondent.
Criminal Law.
Respondent, who had been discharged from probation in 1972, was not under sentence, within meaning
of statute permitting any person convicted of a crime and under sentence of death or
imprisonment to apply for post-conviction relief, at time he petitioned for
post-conviction relief in 197S in order to have his guilty plea to a 1969 charge of
manufacture and possession of dynamite machine set aside.
98 Nev. 176, 177 (1982) State v. Baliotis
person convicted of a crime and under sentence of death or imprisonment to apply for post-conviction
relief, at time he petitioned for post-conviction relief in 1978 in order to have his guilty plea to a 1969
charge of manufacture and possession of dynamite machine set aside. NRS 177.315, subd. 1.
OPINION
Per Curiam:
The state has appealed from the district court's order granting respondent, Baliotis,
post-conviction relief by setting aside his plea of guilty to a 1969 charge of manufacture and
possession of a dynamite machine. The state contends, inter alia, that post-conviction relief
was unavailable to Baliotis pursuant to NRS 177.315. We agree.
There is evidence that during the 1969 plea negotiations, Baliotis inquired whether a
felony conviction would interfere with his right to own a firearm, which he believed he would
need for his work as a private investigator. Apparently relying on the assurances of the
District Attorney and his own counsel that no disability would follow successful termination
of probation, Baliotis pled guilty to the one count. Additional charges were dismissed.
Baliotis served a period of probation without incident outside of Nevada and was honorably
discharged from probation in 1972 by the sentencing judge, the Honorable Emile Gezelin,
now deceased.
In 1973, Baliotis purchased and registered a firearm in Nevada and pursued his profession
as a private investigator. He was arrested in 1977 pursuant to a federal indictment as an
ex-felon in possession of a firearm. 18 U.S.C. 922(h)(1); 924 (1968). That indictment was
dismissed on condition that Baliotis not purchase another firearm.
Baliotis petitioned for post-conviction relief in 1978, pursuant to NRS 177.315, in order to
have his guilty plea set aside as involuntary. He contended that his inability to lawfully
purchase a weapon had injured him in his capacity as a private investigator, and that his guilty
plea was based on misinformation concerning that disability supplied to him by both his own
and the prosecuting attorney. The trial judge, the Honorable John E. Gabrielli, granted the
requested relief. Although the state contests the propriety of the trial court's action on
substantive grounds, we need only address the applicability of NRS 177.315, which is
dispositive of this appeal.
NRS 177.315(1) provides:
Any person convicted of a crime and under sentence of death or imprisonment in the
state prison who claims that the conviction was obtained, or that the sentence was
imposed, in violation of the Constitution of the United States or the constitution of
this state may, without paying a filing fee, apply for post-conviction relief from the
conviction or sentence.
98 Nev. 176, 178 (1982) State v. Baliotis
the conviction was obtained, or that the sentence was imposed, in violation of the
Constitution of the United States or the constitution of this state may, without paying a
filing fee, apply for post-conviction relief from the conviction or sentence.
Appellant argues that the trial court erred in granting respondent's petition because
respondent's probation had already been satisfied and he was no longer under sentence by
the state as required by NRS 177.315(1).
We have interpreted the term under sentence as requiring, at minimum, some form of
constructive restraint or supervision. [T]he provision under sentence' means that the
petitioner must at the time he files his writ for habeas relief [pursuant to NRS 177.315] be
subject to Nevada authority, whether as one physically confined or under supervision as a
probationer or parolee or otherwise restrained of liberty. Dixon v. Warden, 85 Nev. 703,
704-5, 462 P.2d 753, 754 (1969). In Dixon we determined that NRS 177.315 did not permit a
petitioner incarcerated in federal prison to challenge a 1954 Nevada conviction.
We find no reason to depart from our ruling in Dixon. At the time he petitioned for
post-conviction relief, Baliotis was not subject to any actual or constructive restraint or
supervision. The post-conviction remedy provided by NRS 177.315 is not available to
respondent under the facts presented by this case.
The order granting respondent's petition for post-conviction relief is reversed and the case
remanded for reinstatement of the guilty plea and judgment of conviction.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 179, 179 (1982) Coats v. State
DONALD KEITH COATS, LOREN BERNARD CUNNINGHAM and MICHAEL ROBERT
WOYCKE, Appellants, v. THE STATE OF NEVADA, Respondent.
No. 12556
April 30, 1982 643 P.2d 1225
Appeal from judgment of conviction by jury for three counts each of robbery with the use
of a deadly weapon, Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge.
The Supreme Court held that: (1) in prosecution for robbery with use of a deadly weapon,
district court did not err when it failed to instruct jury sua sponte on element of specific
intent; (2) photographic lineup at which robbery victim identified three defendants from nine
photographs as perpetrators of the crime was not impermissibly suggestive and their due
process rights were not violated by their identifications at trial, which was predicated on
victim's eyewitness observations during the course of the robbery; and (3) police detective's
testimony to effect that he obtained pictures of defendants used in photographic lineup from
homicide division of police department did not prejudice defendants.
Affirmed.
Smith & Maurer, Las Vegas, for Appellant Coats.
Frank J. Cremen, Las Vegas, for Appellant Cunningham.
Gerald Hardcastle, Las Vegas, for Appellant Woycke.
Richard Bryan, Attorney General, Carson City; Robert Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
In prosecution for robbery with use of a deadly weapon, district court did not err when it failed to instruct
jury sua sponte on element of specific intent.
2. Constitutional Law.
Photographic lineup at which robbery victim identified three defendants from nine photographs as
perpetrators of the crime was not impermissibly suggestive and their due process rights were not violated
by their identifications at trial, which was predicated on victim's eyewitness observation during the course
of the robbery. U.S.C.A.Const. Amend. 14.
3. Criminal Law.
Evidence of prior criminal activity may be admitted only for limited purposes, and then only if its
prejudicial effect is outweighed by its probative value.
98 Nev. 179, 180 (1982) Coats v. State
4. Criminal Law.
Police detective's testimony to effect that he obtained pictures of defendants used in photographic lineup
from homicide division of police department did not prejudice defendants, who were prosecuted on
robbery charges.
OPINION
Per Curiam:
The appellants were tried before a jury on three counts each of robbery with the use of a
deadly weapon. They were found guilty on all counts.
[Headnote 1]
Appellants contend the district court erred when it failed to instruct the jury sua sponte
that to be convicted of robbery the defendants had to have specific intent to deprive the
owners permanently of their property.
In Litteral v. State, 97 Nev. 503, 634 P.2d 1226 (1981), this court held that the crime of
robbery as defined in NRS 200.380, represents a general intent crime. Accordingly, proof of
specific intent is not required in order to establish the crime of robbery. In the instant case, the
district court instructed the jury on the crime of robbery, by following the statutory definition
as set forth in NRS 200.380.
1
The district judge did not err in failing to instruct sua sponte
the jury on the element of specific intent.
[Headnote 2]
Next, appellants submit that the photographic lineup was impermissibly suggestive and a
denial of their due process rights. The applicable due process standard regarding photographic
lineups was enunciated in Simmons v. United States, 390 U.S 377, 384 (1968), wherein the
court held: . . .
____________________

1
NRS 200.380 states:
Robbery: Definition; penalty.
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 of 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.
98 Nev. 179, 181 (1982) Coats v. State
[C]onvictions based on eyewitness identification at trial following a pretrial identification by
photograph will be set aside on that ground only if the photographic identification procedure
was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification. See also Thompson v. State, 85 Nev. 134, 451 P.2d 704 (1969), cert.
denied 396 U.S. 893 (1969).
In the case at bar, one of the robbery victims viewed a photographic lineup consisting of
nine photographs, three of which were of the appellants. After viewing the lineup, the robbery
victim identified appellants as the perpetrators of the crime. The record reflects that
identification of the appellants at trial was predicated on the victim's eyewitness observations
during the course of the robbery. We conclude the photographic lineup was not impermissibly
suggestive and appellant's due process rights were not violated.
Finally, appellants contend that testimony of a police officer witness was so prejudicial as
to render the trial unfair. Appellants submit that evidence of criminal activity unrelated to the
offense charged was erroneously admitted through the testimony of Detective Mings of the
Metropolitan Police Department.
[Headnote 3]
Evidence of prior criminal activity may be admitted only for limited purposes, and then
only if its prejudicial effect is outweighed by its probative value. Founts v. State, 87 Nev.
165, 483 P.2d 654 (1971). In Founts v. State, supra, this court held the rule proscribing the
introduction of previous offense testimony was not violated where the prosecution repeatedly
referred to the unusual and unfortunate nature of a prior meeting between the victim and
defendant. Likewise, in Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975), where a police
officer witness testified that he had arrested appellant on another incident and the trial court
offered to admonish the jury and give a limiting instruction, this court held that no damaging
previous-offense testimony was introduced.
[Headnote 4]
Here, Detective Mings testified without objection that he obtained the photographs of
appellants used in the photographic lineup from the homicide division of the Las Vegas
Police Department. However, after an offer of proof, two of the three defense counsel
objected to Mings' testimony. The district court overruled counsels' objections and allowed
Detective Mings to explain why a physical lineup was not conducted and how he obtained
the photographs of appellants.
98 Nev. 179, 182 (1982) Coats v. State
Detective Mings to explain why a physical lineup was not conducted and how he obtained the
photographs of appellants.
Detective Mings testified as follows:
Q. All right, Officer Mings. There was no physical lineup here, is that correct?
A. That's correct.
Q. And could you tell us why you did not have a physical lineup in this instance and
how you arrived at this photographic lineup?
A. Mr. Cummins called me and advised me that there were three subjects in custody
by the name of Killer, Diller, and Ace. At which time I proceeded to the Homicide
Detail and obtained photos of three subjects and held a photographic lineup because the
three subjects in custody were not in custody in my jurisdiction.
Prior to Detective Mings' testimony, the district court offered to admonish the jury and
give a limiting instruction, advising the jury that the Homicide Division investigates crimes
other than homicide. Two of the three defense counsel for appellants rejected the court's offer
because they felt an admonishment would only serve to highlight a remark that may have
gone unnoticed by the jury.
In our view, reference to the homicide division is too tenuous to have prejudiced
appellants in the factual context of this case. See Reese v. State, 95 Nev. 419, 596 P.2d 212
(1979). Here, as in Founts and Geary, no damaging previous-offense testimony was
introduced, and the rule proscribing introduction of such evidence was not violated.
The judgment of the district court is affirmed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, 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 The
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 183, 183 (1982) Weston v. County of Lincoln
W. DAVID WESTON, Appellant, v. COUNTY OF LINCOLN and RUDY LISTER,
LINCOLN COUNTY TREASURER, Respondents.
No. 12410
April 30, 1982 643 P.2d 1227
Appeal from an order granting respondents' motion for summary judgment and denying
injunctive relief, Seventh Judicial District Court, Lincoln County; Merlyn H. Hoyt, Judge.
After property taxes on patented mining claims became delinquent, a tax deed to the
property was issued to county treasurer. Two days after issuance of the tax deed and before
the county gave notice of intent to sell the property at public auction, the plaintiff, who held
the principal interest in the mining claims, tendered full payment of the delinquent taxes. The
county refused to accept the tendered sum, whereupon plaintiff filed a lis pendens on the
property and sought injunctive relief. The district court denied injunctive relief and granted
the county's motion for summary judgment, and plaintiff appealed. The Supreme Court held
that NRS 517.410, which authorizes a county that has acquired title to a patented mining
claim through operation of the revenue laws to grant an applicant the right to enter and
explore the property, does not bar the former owner of a patented mining claim, or any person
designated in reconveyance statute, from exercising its right of reconveyance, provided by
NRS 361.585(3), until the county to which the tax deed issued exercises its authority pursuant
to NRS 517.410.
Reversed and remanded.
W. David Weston, in pro per, Salt Lake City, for Appellant.
John S. McGimsey, District Attorney, Lincoln County, for Respondents.
1. Statutes.
It is the Supreme Court's obligation to construe statutory provisions in such a manner as to render them
compatible whenever possible.
2. Taxation.
NRS 517.410, which authorizes a county that has acquired title to a patented mining claim through
operation of the revenue laws to grant an applicant the right to enter and explore the property, does not bar
the former owner of a patented mining claim, or any person designated in reconveyance statute,
from exercising its right of reconveyance, provided by NRS 361.5S5{3), until the
county to which the tax deed issued exercises its authority pursuant to NRS 517.410.
98 Nev. 183, 184 (1982) Weston v. County of Lincoln
designated in reconveyance statute, from exercising its right of reconveyance, provided by NRS
361.585(3), until the county to which the tax deed issued exercises its authority pursuant to NRS
517.410. NRS 361.585, subd. 3, 517.410.
OPINION
Per Curiam:
Appellant held the principal interest in ten patented mining claims located in Lincoln
County, Nevada. After the property taxes on the patented mining claims became delinquent, a
tax deed to the property was issued to the Lincoln County Treasurer in accordance with our
revenue laws.
1
Two days after the issuance of the tax deed and before Lincoln County gave
notice of intent to sell the property at public auction, appellant tendered full payment of the
delinquent taxes, penalties and interest pursuant to NRS 361.585(3).
2
The Lincoln County
Treasurer refused to accept the tendered sums, whereupon appellant filed a lis pendens on the
property and sought injunctive relief. The district court denied injunctive relief and granted
respondents' motion for summary judgment.
On appeal, the main issue is whether the district court erred in finding that NRS
361.585(3) does not apply to patented mining claims. We think the district court erred.
NRS 361.585(3) is expressly applicable to any property held in trust by the county
treasurer by virtue of a deed issued pursuant to our revenue laws.
____________________

1
Where delinquent taxes are not paid within a certain period, our revenue laws mandate that a tax certificate
issue to the county treasurer to hold the property subject to redemption within two years. If the property is not
redeemed within the two-year period, a tax deed to the property is issued to the county treasurer, in trust, for the
use and benefit of the county and state. See NRS 361.565 and NRS 361.585.

2
NRS 361.585(3) provides in pertinent part as follows:
3. Notwithstanding the provisions of NRS 361.595 or 361.603, at any time during the 90-day period
specified in NRS 361.603, or before the public notice of sale by a county treasurer, pursuant to NRS
361.595, of any property held in trust by him by virtue of any deed made pursuant to the provisions of
this chapter, any person or persons specified in subsection 4 is entitled to have such property reconveyed
upon payment to the county treasurer of an amount equal to the taxes accrued, together with any costs,
penalties and interest legally chargeable against such property. A reconveyance shall not be made after
expiration of the 90-day period specified in NRS 361.603 or after commencement of posting or
publication of public notice pursuant to NRS 361.595.
It is not disputed that appellant qualifies as a person specified under subsection 4.
98 Nev. 183, 185 (1982) Weston v. County of Lincoln
held in trust by the county treasurer by virtue of a deed issued pursuant to our revenue laws.
Moreover, all laws relevant to the enforcement and collection of taxes and accrued penalties
are adopted by reference to patented mining claims. See NRS 362.220.
We disagree with respondents' contention and the conclusion of attorney general opinion
number seventeen, relied upon by the district court, that NRS 361.585(3) is not applicable to
patented mining claims because of conflict with NRS 517.410 and NRS 517.420.
3
NRS
517.410 authorizes a county that has acquired title to a patented mining claim through
operation of the revenue laws to grant an applicant the right to enter and explore the property.
Additionally, applicant is authorized by NRS 517.420 to pay the delinquent taxes, penalties,
costs and interest and thereby acquire title.
[Headnotes 1, 2]
It is our obligation to construe statutory provisions in such a manner as to render them
compatible whenever possible. State of Nevada v. Rosenthal, 93 Nev. 36, 559 P.2d 830
(1977). In view of this principle we conclude NRS 517.410 does not bar the former owner of
patented mining claims, or any person designated in the reconveyance statute, from exercising
his right of reconveyance provided by NRS 361.585(3) until the county to which the tax deed
issued exercises its authority pursuant to NRS 517.410. This construction places the statutes
in complete harmony. Under NRS 361.585(3) the right of reconveyance continues only so
long as the county does not take the steps prescribed by law to sell or otherwise convey the
property. Once such action is commenced, the right to reacquire title is lost. Where the
property sought to be reacquired is a patented mining claim, NRS 517.410 simply authorizes
the county to take certain action in addition to that prescribed by NRS 361.585(3).
____________________

3
NRS 517.410 provides, in pertinent part, as follows:
1. Upon receipt of an affidavit and petition as required by NRS 517.390, the board of county
commissioners, by an order appearing in its minutes, may give such petitioner permission to enter upon
any such claim or claims and explore the same for valuable minerals for a period of 6 months without any
charge therefor.
NRS 517.420 provides, in pertinent part, as follows:
1. At the expiration of 6 months, or sooner if the petitioner so desires, the county treasurer shall make
and execute a deed conveying the title of the county to such claim or claims to the petitioner for the sum
for which the property became the property of the county.
98 Nev. 183, 186 (1982) Weston v. County of Lincoln
Accordingly, we reverse the order granting summary judgment and remand to the district
court for proceedings consistent with this opinion. In view of our opinion, the other issues
raised on appeal need not be addressed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
4
concur.
____________________

4
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19(c), SCR 10.
____________
98 Nev. 186, 186 (1982) Horvath v. Burt
ANN HORVATH, Appellant, v. JERALD BURT, Respondent.
No. 13076
April 30, 1982 643 P.2d 1229
Appeal from jury verdict for respondent and denial of appellant's motion for a new trial.
Second Judicial District Court, Washoe County; William H. Forman, Judge.
Tenant brought action against landlord for personal injuries sustained during her escape
from an apartment fire which was caused by defective wiring. The district court entered
judgment for landlord and denied tenant's motion for new trial based on trial court's error in
instructing jury on contributory negligence, and tenant appealed. The Supreme Court,
Springer, J., held that failure of 64-year-old woman to hang onto upper story windowsill to
await assistance in escaping from apartment fire did not constitute negligence contributing to
injuries when she fell or jumped from windowsill.
Reversed.
Mowbray, J., dissented.
Gordon W. Rice and Goedert & Walraven, Reno, for Appellant.
Sala, McAuliffe, Hill & White, Reno, for Respondents.
1. Negligence.
Ordinarily, existence of contributory negligence is question of fact; it becomes question of law when
evidence will support no other inference.
98 Nev. 186, 187 (1982) Horvath v. Burt
2. Negligence.
Failure of 64-year-old woman to hang onto upper story windowsill to await assistance in escaping from
apartment fire caused by defective wiring did not constitute negligence contributing to injuries when she
fell or jumped from windowsill.
3. Landlord and Tenant.
Risk of harm contemplated in statute imposing duty on landlords to maintain electrical wiring and
equipment of dwelling unit in safe condition included injury resulting from attempt to escape fire. NRS
118A.290.
4. Electricity.
Electricity is highly dangerous force, and risks involved in its use may place duty of inspection upon
party having control of premises.
5. Landlord and Tenant.
Landlord was not relieved of statutory duty to maintain electrical wiring and equipment of dwelling unit
in safe condition by location of wiring in inconvenient place under building where landlord was aware of
dangerous condition in that tenants had made numerous complaints concerning frequent power outages and
blown fuses. NRS 118A.290.
OPINION
By the Court, Springer, J.:
Appellant Ann Horvath sought damages from her former landlord Jerald Burt for injuries
sustained during a fire in the apartment house where she lived. After a jury verdict in favor of
the landlord, Horvath moved for a new trial. The motion was denied. Horvath appeals from
the jury verdict and the order denying her motion for a new trial.
Horvath urges that several errors were committed by the trial court. Because we conclude
that the trial court committed reversible error by instructing the jury on contributory
negligence, we need not consider the other issues presented.
[Headnote 1]
Ordinarily, the existence of contributory negligence is a question of fact; it becomes a
question of law when the evidence will support no other inference. Wagon Wheel v.
Mavrogan, 78 Nev. 126, 369 P.2d 688 (1962). An examination of the record reveals no
evidence to justify a finding of contributory negligence.
[Headnote 2]
Horvath, a woman of 64 years, was awakened in the middle of the night by shouts of
warning. She opened the door to the hall and found it to be filled with smoke. A witness
testified that there was a terrific amount of flame which permitted "no way of going
downstairs at all."
98 Nev. 186, 188 (1982) Horvath v. Burt
no way of going downstairs at all. Trapped, Horvath broke an outside window and
positioned herself outside the building by hanging from the sill with her feet touching an
inclined, roof-like projection immediately below her. She subsequently jumped or fell,
seriously injuring herself.
Respondent claims that the facts establish that Horvath's negligence contributed to her
injuries. This contention is based on the testimony of a police officer who assisted at the fire.
Respondent argues that the police officer had told Horvath to wait, and that had she done so,
she would have been rescued without injury. Respondent's position, apparently, is that
Horvath had a duty to hold onto the wet sill a little longer than she did.
An examination of Officer Cordella's testimony does not support any inference of
negligence on the part of Mrs. Horvath. Cordella never identified Horvath; furthermore, there
is no indication that he specifically warned her or that, if warned, she heard the warning.
Cordella testified that he saw some people in the window of the northeast corner of the
building. The building was engulfed in fire, and the people in the window were screaming for
help. Cordella yelled to the people to wait for help since the fire department was nearby. He
then ran to another part of the yard, and in five or ten seconds, he returned with a ladder
which he used to help people exit. It was only after returning with the ladder that he noticed a
woman lying on the ground. The foregoing testimony at best merely indicates that Cordella
had the good fortune to find a ladder; and that discovery, coupled with his quick response,
prevented others in the building from having to jump or fall.
Under the circumstances of this case, we cannot find that the giving of an instruction on
contributory negligence was harmless. There is certainly evidence in this case from which a
jury could reasonably have concluded that respondent's failure to inspect the wiring was
either common law negligence or negligence per se. We must therefore conclude that
appellant was prejudiced by the giving of the improper instruction.
[Headnotes 3-5]
NRS 118A.290 imposes a duty on landlords to maintain the electrical wiring and
equipment of a dwelling unit in safe condition.
1
The statute was clearly designed to protect a
class of persons which included appellant; and the injury resulting from an attempt to escape
the fire may reasonably be said to fall within the risk of harm contemplated in the statute. See
W. Prosser, Law of Torts 200 {4th ed.
____________________

1
NRS 118A.290 Habitability of dwelling unit.
1. The landlord shall at all times during the tenancy maintain the
98 Nev. 186, 189 (1982) Horvath v. Burt
Law of Torts 200 (4th ed. 1971). Respondent claims that he was under no duty to inspect or
repair the wiring since it was located in an inconvenient place under the building. We do not
find this argument persuasive. Respondent was aware that the wiring in the lower portion of
the building was approximately seventy-five years old. That fact alone may be sufficient to
infer that respondent had notice. Electricity is a highly dangerous force, and the risks involved
in its use may place a duty of inspection upon the party having control of the premises. Cutler
v. P.S.P.M. Co., 34 Nev. 45 (1911).
2
Moreover, the age of the wiring in the immediate case
underscores the importance of inspection. Cf. Leavitt v. Glick Realty Corp., 285 N.E.2d 786
(Mass. 1972) (failure to inspect electrical wiring over a period of twenty-seven years held
evidence of negligence). There was, however, even more direct evidence that respondent was
aware of the dangerous condition. The tenants had made numerous complaints to the
management concerning frequent power outages and blown fuses. Respondent conceded at
trial that he was aware of at least some of these complaints. To say that under these facts
respondent was relieved of his legal duty merely because it would be inconvenient to inspect
or repair the wiring would be to vitiate the objective of the statute.
Since appellant may reasonably argue that a different result might have obtained in the
absence of the erroneous instruction, reversal is warranted. See Driscoll v. Erreguible, 87
Nev. 97, 102, 482 P.2d 291, 295 (1971).
The judgment of the trial court and order denying appellant's motion for a new trial are
therefore reversed.
____________________
dwelling unit in a habitable condition. A dwelling unit is not habitable if it substantially lacks:
* * *
(e) Electrical lighting, outlets, wiring and electrical equipment which conformed to applicable law
when installed and are maintained in good working order.

2
In Cutler, a decision which was essentially contemporaneous with the time of the electrical wiring in the
immediate case, this court said,
We can see no error in submitting to the jury, as a matter of law, the duty of defendants, owning or
controlling an electric wire dangerous to life and limb, [to make] an inspection as to the safety of said
wire in this age . . . where this newly discovered, life-destroying element is conveyed . . . into dwellings .
. .
it is both just and right that corporations and individuals . . . having control of wires conducting
electricity . . . should be compelled at all times to thoroughly and frequently inspect the wires, to the end
that they may at all times, in so far as it is within the reasonable power of man, render them safe. . . .
Id. at 62-63.
98 Nev. 186, 190 (1982) Horvath v. Burt
Gunderson, C. J., Manoukian, J., and Zenoff, Sr. J.,
3
concur.
Mowbray, J., dissenting:
Respectfully, I dissent. Horvath seeks reversal principally on the grounds that the district
judge erred in instructing the jury on (1) the landlord's duty to repair the premises and (2) in
giving the jury a contributory negligence instruction. In my opinion, the court did not commit
reversible error.
1. Horvath claimed that a landlord's liability for injuries sustained by tenants due to
defects in the leased premises should be predicated on strict liability rather than negligence.
The trial judge rejected the strict liability theory and instructed the jury that the landlord's
liability was predicated on negligence. It is the rule that liability is imposed only when the
landlord has notice of the defect and an opportunity to correct it, or failed to exercise ordinary
care in inspecting for defects. Morris v. Oney, 32 Cal.Rptr. 88 (Ct.App. 1963); Henderson v.
W. C. Haas Realty Management, Inc., 561 S.W.2d 382 (Mo.App. 1977); Sheehan v. 535
North Water Street, 67 N.W.2d 273 (Wis. 1954). The court properly instructed the jury on the
duty to repair.
2. As the majority opinion points out, the existence of contributory negligence is a
question of fact. It becomes a question of law only when the evidence will support no other
inference. Wagon Wheel v. Mavrogan, 78 Nev. 126, 128, 369 P.2d 688 (1962); Carter v. City
of Fallon, 54 Nev. 195, 201, 11 P.2d 817 (1932).
Officer Cordella testified that he arrived early at the scene of the fire and shouted to the
tenants in the upper story windows not to jump because the fire trucks were only a half a
block away. When he returned seconds later with a ladder, the other tenants were rescued
safely, but Horvath had already jumped.
1
He did not at the time identify Horvath but she
apparently was the only tenant who jumped.
____________________

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer. Nev. Const., art. 6 19; SCR 10.

1
Officer Cordella testified as follows:
MR. HILL: Okay. When you ran towards the home, did you have an opportunity to observe some
people in the window on the northeast corner of the building?
OFFICER CORDELLA: I did.
MR. HILL: Okay. And did you shout any instruction to those people in the windows?
OFFICER CORDELLA: Upon my arrival, I noted the entire structure to be engulfed. The people in
the corner of the building were screaming for help and--
MR. HILL: What did you tell them?
OFFICER CORDELLA: I advised to the best of my memory--I didn't make any notes at the time--for
the people to wait, we were
98 Nev. 186, 191 (1982) Horvath v. Burt
He did not at the time identify Horvath but she apparently was the only tenant who jumped.
Horvath testified that while she was still standing in her apartment she saw an officer go by
looking for a ladder and that she knew that if she jumped she would be injured.
The issue is not, as the majority opinion frames it, whether the evidence clearly shows that
Officer Cordella positively identified Horvath in the window, or specifically warned her not
to jump. The issue is whether the evidence could support a reasonable inference in the mind
of a juror that Horvath, having been warned, jumped unnecessarily and thus contributed to
her own injuries. The evidence supports such an inference.
The district court adequately instructed the jury that one in imminent peril is not held to
the same standard of reasonable care as one acting under normal conditions.
2
The fact that
Horvath was frightened and under great stress does not make the giving of the contributory
negligence instruction erroneous.
3
Horvath has suffered a tragic accident.
____________________
going to get help, that the Fire Department was less than half a block away.
MR. HILL: And what did you do after that?
OFFICER CORDELLA: I headed towards the rear of the building looking for a ladder or something
for the people to exit the building with.
MR. HILL: And did you, in fact, find a ladder?
OFFICER CORDELLA: Yes, I did.
MR. HILL: And did you return with it to that scene?
OFFICER CORDELLA: I found a ladder laying in the back on the grass. I picked it up, ran towards
the front, leaned it up against the building and people began coming down.
MR. HILL: And how long did it take you to get from the area where the people were yelling for help
to the back part of the building and back up in front?
OFFICER CORDELLA: Close estimate of five to ten seconds.
MR. HILL: And at that time did you happen to notice an older woman on the ground at that time?
OFFICER CORDELLA: I believe while going through, I did not, but upon coming back with the
ladder, I did.
MR. HILL: So if I understand your testimony, she was not on the ground when you yelled up that
help was coming. Ten seconds later you returned with the ladder and at that time she was on the ground.
OFFICER CORDELLA: Yes.

2
Instruction No. 16:
Where one without fault of his own is placed in a position of great mental stress or sudden
emergency, the same degree of judgment and care is not required of him as is required of one who is
acting under normal conditions. The test to be applied is whether or not the person in such a position of
great mental stress or sudden emergency did or attempted to do what a reasonably careful person would
have done under the same or similar circumstances.

3
It appears that the jury's verdict was predicated on a finding that the landlord was not negligent, not on a
finding of contributory negligence.
98 Nev. 186, 192 (1982) Horvath v. Burt
Horvath has suffered a tragic accident. However, she was given a fair opportunity to
present her case to a jury. The jury found against her. No reversible error occurred at the trial.
I would affirm the judgment of the district court.
____________________
Just prior to reaching the defense verdict, the jury requested additional instructions defining reasonable
inspection. This suggests that the jury was more concerned with the landlord's duty than with Horvath's
contributory negligence.
____________
98 Nev. 192, 192 (1982) Wilkie v. State
ROBERT JAMES WILKIE, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 13518
May 6, 1982 644 P.2d 508
Appeal from judgment of conviction upon a jury verdict. Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
Defendant was convicted before the district court of second degree murder, and he
appealed. The Supreme Court held that although defendant, who was representing himself,
was confined in a maximum security cell, without access to a law library, his constitutional
rights were not violated; his confinement was directly caused by his own behavior as an
escapist and an admitted security risk, and he had two appointed standby attorneys, with
whom he refused to discuss his defense.
Affirmed.
Morgan D. Harris, Public Defender, and Robert D. Larsen, Assistant Public Defender,
Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Constitutional right of self-representation includes the right of access to an adequate law library.
2. Prisons.
Although defendant, who was representing himself, was confined in a maximum security cell, without
access to a law library, his constitutional rights were not violated; his confinement was directly caused by
his own behavior as an escapist and an admitted security risk, and he had two appointed standby
attorneys, with whom he refused to discuss his defense.
98 Nev. 192, 193 (1982) Wilkie v. State
risk, and he had two appointed standby attorneys, with whom he refused to discuss his defense.
3. Criminal Law.
Murder defendant was not entitled to a declaration of mistrial after detective referred in his testimony to
another homicide investigation, where the reference to the other homicide was an innocent, reasonable
response by the detective to a direct question asked him on cross-examination by defense counsel, and
where it was not an effort to prejudice defendant's case.
4. Criminal Law.
Defendant was not prejudiced when the district judge, at the close of the defense case, asked the
prosecuting attorney if he had any rebuttal and then laughed; the judge immediately explained that he was
only laughing at himself for asking the question since the defense had offered no witnesses, and he then
instructed the jury not to draw any inferences from his laughter.
OPINION
Per Curiam:
Appellant Robert James Wilkie was convicted by a jury of second degree murder. His
principal contention on appeal is that the conditions of his pretrial incarceration prevented
him from using the law library, thereby violating his right to conduct his own defense. He
also argues that the district court erroneously admitted evidence that he was under
investigation for a separate homicide, and that the judge's demeanor at the close of the
defense's case prejudiced him. Finding no error, we affirm the conviction.
THE FACTS
The homicide victim, Charles L. Young, was found strangled with a necktie in his hotel
room. Appellant was registered at the same hotel, the Union Plaza. The day following the
homicide, appellant sold Young's watch to a pawnshop, using as identification two cards
bearing Young's name. Appellant was arrested for the murder.
Appellant escaped from custody and was apprehended in California. After his return to
Nevada, appellant moved to represent himself. The district judge advised appellant that his
access to legal materials would be restricted, but granted the motion. The judge appointed the
Public Defender's office as standby counsel. Later, the Public Defender's office withdrew and
private counsel was appointed.
Appellant escaped two more times, and was placed in a maximum security cell, where he
remained until trial. He was kept in his cell twenty-three hours a day, and his commissary,
telephone and visitation privileges were restricted.
98 Nev. 192, 194 (1982) Wilkie v. State
in his cell twenty-three hours a day, and his commissary, telephone and visitation privileges
were restricted. He was not permitted to use the law library, except for one two-hour visit. He
complained to the district court on several occasions concerning the conditions of his
incarceration. However, he refused to discuss the case with his appointed standby counsel.
Appellant went to trial and was convicted. This appeal followed.
APPELLANT'S CONSTITUTIONAL CLAIM
[Headnote 1]
Appellant's right to represent himself is guaranteed by the United States Constitution.
Faretta v. California, 422 U.S. 806 (1975). This court has held that the right of
self-representation includes a right of access to an adequate law library. Wolfe v. State, 95
Nev. 240, 591 P.2d 1155 (1979). See also Bounds v. Smith, 430 U.S. 817 (1977).
[Headnote 2]
Appellant argues that his confinement in a maximum security cell, without access to a law
library, violated his rights under Faretta and Wolfe. However, appellant's confinement was
directly caused by his own behavior as an escapist and an admitted security risk. He does not
argue that he was unreasonably confined, but contends that, because he was representing
himself, special arrangements should have been made to permit him to use the law library.
Wolfe and Faretta guarantee no such special privileges to defendants who represent
themselves. See State v. Yanich, 516 P.2d 308 (Ariz. 1973); Ferrel v. Superior Court, 576
P.2d 93 (Cal. 1978). Moreover, appellant had two appointed standby attorneys, with whom he
refused to discuss his defense. It is likely that, had he enlisted their aid, his standby attorneys
could have provided him with legal materials. Cf. Hollis v. State, 95 Nev. 664, 601 P.2d 62
(1979) (provision of law books to defendant by standby counsel satisfies requirements of
Wolfe). See also, People v. Rice, 579 P.2d 647 (Colo.App. 1978).
We conclude that confining appellant in a maximum security cell did not violate his
constitutional rights.
OTHER ASSIGNMENTS OF ERROR
[Headnote 3]
Appellant also argues that the district court should have declared a mistrial after Detective
Plasse of the Santa Monica Police Department referred in his testimony to a homicide
investigation in Santa Monica.
98 Nev. 192, 195 (1982) Wilkie v. State
investigation in Santa Monica. Appellant contends that the reference raised the inference that
he was suspected of the Santa Monica killing, and was prejudicial.
The state called Plasse as a witness and asked him to describe an interview he had with
appellant in California, in which appellant made certain admissions. On cross-examination,
appellant's counsel directed Plasse to read a portion of his written report, which was prepared
after the interview. The report mentioned the Santa Monica homicide.
The district judge, who was able to observe the witness's testimony, concluded that the
reference was an innocent, reasonable response to a direct question asked by appellant's
counsel, and that it was not an effort to prejudice appellant's case. The judge therefore denied
the motion for a mistrial. We perceive no abuse of discretion. See Leaders v. State, 92 Nev.
250, 548 P.2d 1374 (1976).
[Headnote 4]
Finally, appellant claims he was prejudiced when the district judge, at the close of the
defense case, asked the prosecuting attorney if he had any rebuttal, and then unfortunately
laughed. Although a trial judge should avoid ill-timed laughter, we perceive no prejudice. The
district judge immediately explained that he was only laughing at himself for asking the
question since the defense had offered no witnesses, and instructed the jury not to draw any
inferences from his laughter. Cf. Vinci v. United States, 159 F.2d 777 (D.C.Cir. 1946);
People v. Franklin, 56 Cal.App.3d 18 (1976). Appellant did not object or move for a mistrial.
Under the circumstances, we hold that reversal is not warranted.
The judgment of conviction is affirmed.
____________
98 Nev. 196, 196 (1982) George v. State
JACK LLOYD GEORGE, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 12436
May 7, 1982 644 P.2d 510
Appeal from judgment of conviction on a jury verdict. Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
Defendant was convicted before the district court of first degree murder, and he appealed.
The Supreme Court, Mowbray, J., held that prosecutor's comments during closing argument
on defendant's failure to call his wife as a material witness constituted prejudicial error
warranting reversal and new trial.
Reversed and remanded.
James O. Porter, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
Clark County, for Respondent.
Criminal Law.
Prosecutor's comments during closing argument on defendant's failure to call his wife as a material
witness constituted prejudicial error warranting reversal and new trial. NRS 49.295, 49.405; N.M.
Rules of Evid., Rules 505(b)(1), 513(a).
OPINION
By the Court, Mowbray, J.:
The principal issue presented is whether it is permissible for a prosecutor to comment on a
defendant's failure to call his wife as a material witness. We hold that it is not permissible and
therefore we reverse and remand for a new trial.
THE FACTS
A jury found the appellant, Jack Lloyd George, guilty of the first degree murder of David
Stanton. At trial, Robert Land testified that he, George, and George's wife, went looking for
Stanton because Stanton had failed to return money previously given to him to buy drugs.
When the trio found Stanton they decided to take him into the desert for a beating. Land
claimed that Stanton attempted to escape. Land admitted shooting and killing Stanton at
George's insistence.
98 Nev. 196, 197 (1982) George v. State
George, on the other hand, testified that while he and his wife were in the company of
Land they did not intend to kidnap Stanton; that it was Land who physically forced Stanton
into the car. George stated that he went along because he was fearful of Land who he said had
become violent. George denied any complicity in the actual killing. George's wife did not
testify.
THE PROSECUTOR'S COMMENTS TO THE JURY
During closing argument counsel for the State made the following comments:
One point I want to make to you is there is the absence in this trial of testimony of
the defendant's wife, Toni George. Under the law, and under our rules of evidence I
cannot call Toni George to the stand as a witness. The defendant, however, has the right
to call his wife to the stand. The law provides that you may presume that when a
witness is technically available to one of the parties in a case, and that witness is not
available to the other party, that when the party to whom that witness is available does
not call that witness, that that witness's testimony would be unfavorable to him.
The State could not present to you the testimony of Toni George, and therefore we
could not play the videotape of her statement either.
George suggests that the comments violated the Nevada statute on the spousal privilege
and he seeks a new trial as a result of the prejudicial misconduct. NRS 49.295 is
unambiguous. It provides:
1(a) A husband cannot be examined as a witness for or against his wife without her
consent, nor a wife for or against her husband without his consent.
NRS 49.405 is clear in its mandate that neither the court nor counsel may comment on the
claim of the privilege or suggest any inference therefrom.
1
Emerson v. State, 98 Nev. 158,
643 P.2d 1212 (1982).
The State argues that since the privilege was not exercised, the prosecutor was free to
make the comments. We do not agree. As the court stated in State v. Frank, 589 P.2d 1047
(N.M. 1979) at page 1050: We do not regard it as necessary for a husband or wife to go
upon the stand and there affirmatively "exercise" the privilege not to testify.
____________________

1
NRS 49.405 provides:
1. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a
proper subject of comment by judge or counsel. No inference may be drawn therefrom.
98 Nev. 196, 198 (1982) George v. State
We do not regard it as necessary for a husband or wife to go upon the stand and there
affirmatively exercise the privilege not to testify. The decision of a husband in a case
like the present one not to call his wife as a witness is a sufficient exercise of the
privilege to justify invocation of the statutory protection.
2

The reason for the rule is well set forth in Daniels v. Beeson, 312 So.2d 441, 443 (Miss.
1975).
If the failure of the husband to call his wife as a witness in his behalf is to be
construed as testimony, or as a circumstance against him, his privilege and option in the
matter would be annulled, and he would be compelled, in all cases, to introduce her, or
run the hazard of being convicted on a constrained, implied confession or admission, or
to make explanations for not introducing her which might involve the sacred privacy of
domestic life.
We conclude, therefore, that the prosecutor's comments constituted prejudicial error
requiring reversal and a remand for a new trial.
3

Remaining assignments of error have been considered and found meritless.
Gunderson, C. J., Manoukian and Springer, JJ., and Zenoff, Sr. J.,
4
concur.
____________________

2
The relevant New Mexico statutes parallel the Nevada statutes.
N.M.R. Evid. 505(b)(1), N.M.S.A. 1978 provides:
An accused spouse in a criminal proceeding has a privilege to prevent the other spouse from testifying
against the accused.
N.M.R. Evid. 513(a), N.M.S.A. 1978 provides:
The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper
subject of comment by judge or counsel. No inference may be drawn therefrom.

3
The State has relied heavily on People v. Coleman, 459 P.2d 248 (Calif. 1969). However, in California the
witness has the sole privilege not to testify against his or her spouse. California Evidence Code 970 provides:
Privilege not to testify against spouse.
Except as otherwise provided by statute, a married person has a privilege not to testify against his
spouse in any proceeding.

4
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable Cameron M. Batjer, Justice, retired. Nev. Const., art. 6, 19(1)(c); SCR 10.
____________
98 Nev. 199, 199 (1982) Staschel v. Weaver Brothers, Ltd.
CHARLES G. STASCHEL, Appellant, v. WEAVER
BROTHERS, Ltd., Respondent.
No. 13070
May 7, 1982 644 P.2d 512
Appeal from order denying relief from judgment. First Judicial District Court, Carson
City; Michael E. Fondi, Judge.
Appeal was taken from order of the district court denying motion to set aside default
judgment. The Supreme Court, Mowbray, J., held that defendant was entitled to relief from
default which resulted from attorney misconduct.
Reversed and remanded.
[Reporter's note: This opinion was recalled December 20, 1982; see 98 Nev. 559, 655 P.2d
518 (1982)]
Gunderson, C. J., dissented.
James Shields Beasley, Reno, for Appellant.
Smith and Gamble, Ltd., and Wayne S. Chimarusti, Carson City, for Respondent.
1. Appeal and Error; Judgment.
Granting or denying of motion to vacate default rests in the sound discretion of the district court, and its
order will not be disturbed unless an abuse of discretion clearly appears.
2. Judgment.
Though the law ordinarily charges client with the unexcusable neglect of his attorney and gives him
redress against his counsel, clients have been given relief from default when attorney's failure to represent
the client amounts to misconduct.
3. Judgment.
Defendant was entitled to have default judgment set aside where, after attorney entered appearance for
defendant by filing answer and counterclaim, he did nothing but ignore the court's orders, which led to
entry of default judgment.
OPINION
By the Court, Mowbray, J.:
This is an appeal from an order denying a motion to set aside a default judgment.
Respondent filed this action against appellant in the First Judicial District Court on April 3,
1979. Service of process was effected by leaving the summons and complaint at appellant's
place of business. A local attorney filed an answer and counterclaim. On July 2, 1979,
respondent served that attorney with a request for interrogatories. They were never answered.
98 Nev. 199, 200 (1982) Staschel v. Weaver Brothers, Ltd.
Respondent moved the court on September 18, 1979 for an order directing the filing of the
answers. The court granted the order; it was served on the same attorney and ignored. A
default judgment was entered on November 8, 1979 and a hearing on damages set for
November 21, 1979. Although served with notice, appellant's attorney did not attend the
hearing and the court finally entered a default judgment in favor of respondent and against
appellant for $255,254.71.
Appellant was in Montana at the time the case was filed. He returned periodically to
Carson City and he was advised by his attorney that the case was going smoothly. Appellant
learned from the Sheriff's Office of the default judgment and upon confronting his attorney
was advised that the attorney was giving up the practice of law.
1
Appellant then sought
present counsel and filed the instant motion to set aside the default judgment.
[Headnote 1]
The rule is well established that the granting or denying of a motion to vacate a default
rests in the sound discretion of the district court. The order will not be disturbed unless an
abuse of discretion clearly appears. Fagin v. Fagin, 91 Nev. 794, 544 P.2d 415 (1975); Bryant
v. Gibbs, 69 Nev. 167, 243 P.2d 1050 (1952).
[Headnote 2]
Although the law ordinarily charges the client with the unexcusable neglect of his attorney
and gives him redress against his counsel, courts have given clients relief from a default when
the attorney's failure to represent the client amounts to misconduct. Daley v. County of Butte,
227 Cal.App.2d 380, 391-92, 38 Cal.Rptr. 693, 700 (1964). Here the attorney, by affidavit,
swore that he had no authority to represent the appellant. As the court said in Orange Empire
National Bank v. Kirk:
Thus, where a client is unknowingly deprived of effective representation by
counsel's failure to serve process, to appear at the pretrial conference, to communicate
with the court, client, and other counsel, and the action is dismissed by reason of the
attorney's misrepresentation, the client will not be charged with responsibility for the
misconduct of nominal counsel of record, providing the client acts with due diligence in
moving for relief after discovery of the attorney's neglect, and the opposing party's
rights will not be prejudiced nor suffer injustice as a result of the granting of relief.
____________________

1
The attorney has since been publicly reprimanded for dereliction of duty to a client in an unrelated matter.
98 Nev. 199, 201 (1982) Staschel v. Weaver Brothers, Ltd.
will not be prejudiced nor suffer injustice as a result of the granting of relief.
66 Cal.Rptr. 240, 244 (Ct.App. 1968).
[Headnote 3]
In the instant case, the attorney entered an appearance for the appellant by filing an answer
and counterclaim to respondent's claim. Thereafter, he did nothing but ignore the court's
orders which led to the entry of the default judgment. To characterize the attorney's failure to
represent his client as inexcusable neglect would be charitable but hardly candid. His
dereliction of the professional obligations owed appellant constituted actual misconduct.
Under the facts presented, we believe appellant should have his day in court. As the United
States Court of Appeals, District of Columbia said in Jackson v. Washington Monthly Co.:
We are constrained to conclude this appeal on a note of caution. Trial-court
dismissal of a lawsuit never heard on its merits is a drastic step, normally to be taken
only after unfruitful resort to lesser sanctions. [Citations omitted.] . . . Dismissals for
misconduct attributable to lawyers and in no wise to their clients invariably penalize the
innocent and may let the guilty off scot-free. That curious treatment strikes us as both
anomalous and self-defeating. [Citations omitted.] When the client has not personally
misbehaved and his opponent in the litigation has not been harmed, the interests of
justice are better served by an exercise of discretion in favor of appropriate action
against the lawyer as the medium for vindication of the judicial process and protection
of the citizenry from future imposition. [Citations omitted.] Public confidence in the
legal system is not enhanced when one component punishes blameless litigants for the
misdoings of another component of the system; to laymen unfamiliar with the
fundamentals of agency law, that can only convey the erroneous impression that
lawyers protect other lawyers at the expense of everyone else.
569 F.2d 119, 123-124, (D.C.Cir. 1977).
Accordingly, we reverse and remand the case for a trial on the merits.
Manoukian and Springer, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

2
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable Cameron M. Batjer, Justice, retired. Nev. Const., art 6, 19(1)(c); SCR 10.
98 Nev. 199, 202 (1982) Staschel v. Weaver Brothers, Ltd.
Gunderson, C. J., dissenting:
I respectfully dissent.
In my view, the district court could properly determine, as it apparently did, that appellant
Staschel had failed to prove mistake, inadvertence, surprise or excusable neglect. NRCP
60(b). The record in this matter, including affidavits supporting appellant's motion for relief
from the judgment, is quite extensive. From the record, disparate inferences may be drawn
concerning the extent of appellant's knowledge, diligence or lack of it, and culpability in
allowing the judgment to be entered. The district court evidently simply was not satisfied that
appellant's predicament arose solely from clear misconduct on the part of his counsel.
In my opinion, this Court should not re-weigh the evidence, draw different inferences, and
substitute its judgment for that of the district court on factual issues which were that court's
province to consider--and as to which the appellant, as moving party, had the burden of proof.
____________
98 Nev. 202, 202 (1982) Robinson v. State
GEORGE ROBINSON, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 13306
May 7, 1982 644 P.2d 514
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Robert
G. Legakes, Judge.
Defendant was convicted in the district court of three counts of robbery with the use of a
deadly weapon, and he appealed. The Supreme Court held that admission of testimony,
during prosecution's case in chief, concerning admissions made by defendant during plea
negotiations was improper, and constituted reversible error.
Reversed and remanded.
Morgan D. Harris, Public Defender, and Gary H. Lieberman, Deputy Public Defender,
Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
98 Nev. 202, 203 (1982) Robinson v. State
Criminal Law.
Admission of testimony, during prosecution's case in chief, concerning admissions made by defendant
during plea negotiations was improper, and constituted reversible error, because prosecutor intentionally
elicited such statutorily prohibited testimony and then remarked upon it three times during his closing
argument, and because the nature of the evidence was such that it was probably foremost in minds of jurors
when they voted for conviction. NRS 48.125, subd. 1.
OPINION
Per Curiam:
Appellant was convicted by a jury of three counts of robbery with the use of a deadly
weapon. During the prosecution's case in chief, testimony was elicited from a police detective
concerning admissions made by appellant during plea negotiations. Such testimony is
inadmissible. NRS 48.125(1).
1

In Mann v. State, 96 Nev. 62, 65, 605 P.2d 209, 210 (1980), this court noted that NRS
48.125(1) was a legislative declaration of a . . . public policy favoring the candid and honest
negotiations necessary for the successful operation of our plea bargaining system. . . .
In the present case the evidence against appellant was quite strong. However, the quantity
and character of the error, and the gravity of the resulting harm, were substantial. The
prosecutor intentionally elicited the prohibited testimony. He then remarked upon it three
times during his closing argument. The nature of the evidence was such that it was probably
foremost in the minds of the jurors when they voted for conviction. It would therefore be
inconsistent with 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,
Weakland v. State, 96 Nev. 699, 701, 615 P.2d 252, 254 (1980), to hold that the admission of
the prohibited testimony was harmless error.
Other contentions need not be considered, as we reverse and remand for a new trial.
____________________

1
NRS 48.125(1) provides, in part, that:
[e]vidence . . . 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.
____________
98 Nev. 204, 204 (1982) Jiminez v. State, Dep't of Prisons
VINCENT JIMINEZ, Appellant, v. THE STATE OF NEVADA, NEVADA DEPARTMENT
OF PRISONS, An Agency of the STATE OF NEVADA, DOES
I through V, inclusive, and DOE CORPORATIONS I through V, inclusive, Respondents.
No. 13298
May 12, 1982 644 P.2d 1023
Appeal from dismissal of complaint, First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
Prisoner sought reversal of order entered by the district court dismissing his personal
injury complaint for failure to comply with statute of limitations. The Supreme Court held
that amendment to prisoner's complaint, adding State as party, related back to filing of
complaint and therefore prisoner complied with two-year statute of limitations.
Reversed.
Pomeranz & Crockett, Las Vegas, For Appellant.
Richard H. Bryan, Attorney General, and Ernest E. Adler, Deputy Attorney General,
Carson City, for Respondents.
1. Limitation of Actions.
To extent that one-year statute of limitations for actions or claims against state not arising out of contract
depends on invalid claims notice provision requiring every claim against state to be presented to ex officio
clerk of State Board of Examiners within six months for commencement of limitation period, such portion
of statute of limitations is invalid. NRS 11.190, subd. 5(c), 41.036, 41.036, subd. 2.
2. Statutes.
Constitutionally objectionable portion of one-year statute of limitations or actions or claims against state
not arising out of contract, which portion depended upon invalid claims notice provision requiring every
claim against state to be presented to ex officio clerk of State Board of Examiners within six months, was
not severable where remaining provision would effectively impose shorter period between injury and
expiration of limitation period than existed with invalid claims notice provision, and such shortening of
time could not be presumed consistent with intent of legislature to put governmental units and agencies on
equal footing with private tort-feasors, and thus entire one-year statute of limitations for tort claims against
state was invalid. NRS 11.190, subd. 5(c), 41.031, 41.036, 41.036, subd. 2.
3. Limitation of Actions.
Amendment to prisoner's complaint, adding state as party to his action for personal injuries sustained
when steel plate fell on him at prison, related back to original filing date, and therefore prisoner complied
with two-year statute of limitations, where failure to name state in original complaint was not
conscious election but mistake in nomenclature, and state was served with original
complaint.
98 Nev. 204, 205 (1982) Jiminez v. State, Dep't of Prisons
state in original complaint was not conscious election but mistake in nomenclature, and state was served
with original complaint. NRS 11.190, subd. 4(e).
OPINION
Per Curiam:
Appellant, Vincent Jiminez, seeks reversal of an order dismissing his personal injury
complaint for failure to comply with the statute of limitations. We reverse the order of
dismissal and remand for further proceedings.
Jiminez, an inmate at the Nevada Department of Prisons in Carson City, was injured by a
steel plate which fell on him at the prison on September 1, 1976. On August 24, 1978,
appellant filed a complaint against:
NEVADA DEPARTMENT OF PRISONS, an Agency of THE STATE OF NEVADA,
DOES I through V inclusive and DOE CORPORATIONS I through V inclusive,
Defendants.
The state was served on September 13, 1978. Respondent Nevada Department of Prisons
(hereinafter Department) moved pursuant to NRCP 12(b)(1) to dismiss the complaint for
failure to name the State of Nevada as a party and consequent failure to invoke the subject
matter jurisdiction of the court. See NRS 41.031, NRS 41.0337.
Following dismissal without prejudice, appellant filed an amended complaint naming the
State of Nevada as a party on January 11, 1979. Respondents subsequently filed a motion to
dismiss, and the district court granted the motion, finding that appellant had not complied
with the one-year statute of limitations for claims against the state, NRS 11.190(5)(c). The
district court also determined that assuming the one-year limitation period was inapplicable,
appellant still had failed to file a complaint within the standard two-year limitation period of
NRS 11.190 (4)(e), because the amendment did not relate back to the original complaint.
NRCP 15(c).
There is no dispute that the original complaint was filed well after the limitation period
imposed by NRS 11.190(5)(c) and 41.036.
1
Nonetheless, we agree with appellant that the
effect of our decision in Turner v. Staggs, S9 Nev. 230, 510 P.2d S79, cert. denied 414 U.S.
1079 {1973), was to overturn the one year limitation period of NRS 11.190{5){c).2
____________________

1
NRS 41.036(2) provides in part:
Every . . . claim [not arising out of contract] against the state or any of its agencies shall be presented
to the ex officio clerk of the state board of examiners within 6 months. . . . He shall within 10 days
deliver a copy of the claim to the risk management division of
98 Nev. 204, 206 (1982) Jiminez v. State, Dep't of Prisons
our decision in Turner v. Staggs, 89 Nev. 230, 510 P.2d 879, cert. denied 414 U.S. 1079
(1973), was to overturn the one year limitation period of NRS 11.190(5)(c).
2

[Headnote 1]
In Turner, we declared unconstitutional, on equal protection grounds, a statutory provision
requiring plaintiffs injured by governmental tortfeasors (but not other plaintiffs) to give notice
of a claim within six months of the incident as a condition precedent to bringing suit. That
decision invalidated the notice of claims provision of NRS 41.036.
3
Although Turner is
silent concerning the issue of disparate statutes of limitations, NRS 11.190(5)(c) depends, at
least in part, on the invalid claims notice provision for commencement of the one-year
limitation period. That portion of NRS 11.190(5)(c) referring to NRS 41.036 is likewise
invalid.
[Headnote 2]
We conclude that the constitutionally unobjectionable portion of NRS 11.190(5)(c) is not
severable from that part which was invalidated by our decision in Turner. See County of
Clark v. City of Las Vegas, 92 Nev. 323, 550 P.2d 779 (1976). The offensive portion of NRS
11.190(5)(c) relating to the notice of claims provision could be excised and the remainder of
the statute given legal effect. However, the remaining provision would effectively impose a
shorter period between injury and expiration of the limitation period than existed with
the invalid claims notice provision.
____________________
the department of administration, and refer the claim to the appropriate state agency, office or officer for
investigation and report of findings to the board. No action may be brought unless the board refuses to
approve or fails within 90 days to act upon the claim.
NRS 11.190 provides in part:
Actions other than those for recovery of real property . . . can only be commenced as follows:
. . .
5. Within 1 year:
. . .
(c) Actions or claims against the state not arising out of contract, after rejection by the state board of
examiners or the expiration of the time limited for their failure to act by subsection 2 of NRS 41.036.

2
NRS 11.190(5)(c) and 41.036(2) were amended in 1981 abolishing the notice of claims provision and the
one year statute of limitations for personal injury claims against the state. NRS 11.190(4)(e) now provides for a
two year limitation period to be imposed on claimants suing any tortfeasor for personal injury. The retroactivity
of this amendment was not raised on appeal. We decline to address that issue sua sponte, and find it unnecessary
to do so in light of our disposition of this case.

3
Although our ruling in Turner specifically concerned NRS 244.245 and 244.250--claim statutes relating to
actions against a county--that decision clearly had the effect of overturning other governmental claims statutes as
well. See NRS 41.031, 41.036.
98 Nev. 204, 207 (1982) Jiminez v. State, Dep't of Prisons
effectively impose a shorter period between injury and expiration of the limitation period than
existed with the invalid claims notice provision. We will not presume that shortening the time
available to bring a claim is consistent with the intent of the legislature in enacting NRS
41.031to waive the immunity of governmental units and agencies from liability for
injuries caused by their negligent conduct, thus putting them on equal footing with private
tort-feasors. Turner v. Staggs, supra at 235, 510 P.2d at 882.
The effect of Turner is, as appellant argues, to overturn the one-year statute of limitations
for tort claims against the state. Thus, the standard two-year tort statute of limitations is
applicable. NRS 11.190(4)(e)
We need not decide whether the caption in the original complaint properly named the state
as a party.
[Headnote 3]
In any event, we are persuaded that the amended complaint should relate back to the
original filing date. Where, as here, the failure to name the state in the original complaint was
not a conscious election, but a mistake in nomenclature, we have allowed amendments to
relate back to the original complaint when the proper defendant: (1) had actual notice of
institution of the action; (2) knew that it was the proper defendant in the action; and (3) was
not misled to its prejudice. Servatius v. United Resort Hotels, Inc., 85 Nev. 371, 373, 455
P.2d 621, 622-23 (1969). See also, Goodrich v. England, 262 F.2d 298 (9th Cir. 1958). Each
of these criteria is met in the instant case. We find particularly compelling the fact that the
state was served with the original complaint. Compare Garvey v. Clark County, 91 Nev. 127,
532 P.2d 269 (1975).
The amended complaint related back to the filing of the original complaint and, therefore,
Jiminez complied with the two-year statute of limitations of NRS 11.190(4)(e).
The complaint should not have been dismissed. We reverse the trial court's order and
remand the case for further proceedings.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
4
concur.
____________________

4
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 208, 208 (1982) Hardin v. District Court
KAMALA HARDIN, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, and THE
HONORABLE GRANT BOWEN, District Judge, Respondents.
No. 14030
May 12, 1982 644 P.2d 1025
Defendant filed original petition for writ of mandamus or, in the alternative, a writ of
prohibition, contending that forgery count of information did not state public offense against
her. The Supreme Court held that it would not rule on defendant's challenge to forgery count
where defendant's trial would not be terminated even if requested writ was issued.
Petition denied.
Paul D. Elcano, Jr., Reno, for Petitioner.
Calvin R. X. Dunlap, District Attorney, and Edwin Basl, Deputy District Attorney, Washoe
County, for Respondents.
1. Prohibition.
Prohibition is appropriate means of challenging denial of habeas petition grounded upon claim that
indictment or information does not state a public offense.
2. Mandamus.
Where defendant, who sought writ of mandamus or, in the alternative, a writ of prohibition on ground
that forgery count of information did not state public offense against her, challenged information only as it
related to forgery count, and defendant's trial would not be terminated if Supreme Court were to issue
requested writ, Court would not rule on defendant's challenge to forgery count.
OPINION
Per Curiam:
Petitioner Kamala Hardin was charged by information with grand larceny, possession of
stolen property, and forgery. Thereafter, Hardin filed a pretrial petition for a writ of habeas
corpus. The district court granted Hardin habeas relief as to the grand larceny count, but
denied such relief as to the possession of stolen property and forgery counts. In this original
petition for a writ of mandamus or, in the alternative, a writ of prohibition, Hardin contends
that the forgery count does not state a public offense against her. Specifically, Hardin argues
that she cannot be convicted of forgery because she signed her true name to the
document in question.1
98 Nev. 208, 209 (1982) Hardin v. District Court
that she cannot be convicted of forgery because she signed her true name to the document in
question.
1

[Headnotes 1, 2]
Prohibition is the appropriate means of challenging the denial of a habeas petition
grounded upon the claim that the indictment or information does not state a public offense.
Lane v. Torvinen, 97 Nev. 121, 624 P.2d 1385 (1981); 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. District Court, 75 Nev. 465, 345
P.2d 766 (1959). In the cited cases, however, the petitioner challenged the indictment or
information in its entirety. That is not the situation here. Hardin challenges the information
only as it relates to the forgery count. The trial on the possession of stolen property count will
not be affected by any action we take in this proceeding.
In Moore v. District Court, 96 Nev. 415, 610 P.2d 188 (1980), we held that a writ of
mandamus would not issue to compel entry of partial summary judgment, since such relief
would not dispose of the entire controversy. Although Moore arose in the civil setting, we
believe its rationale is equally applicable in this case. Hardin's trial would not be terminated
even if we were to issue the requested writ. Accordingly, in the exercise of our discretion, we
decline to rule at this time on Hardin's challenge to the forgery count.
Petition denied.
____________________

1
Hardin does not challenge that portion of the information charging her with possession of stolen property.
____________
98 Nev. 210, 210 (1982) Cord v. Cord
VIRGINIA KIRK CORD, Appellant, v. CHARLES E. CORD and EDWARD D. NEUHOFF,
Co-Executors of The Estate of E. L. CORD, aka ERRETT L. CORD, aka ERRETT
LOBBAN CORD, Deceased, and Individually, Respondents.
No. 13040
May 12, 1982 644 P.2d 1026
Appeal from judgment of the Second Judicial District Court, Washoe County; James J.
Guinan, Judge.
Widow appealed from a judgment of the district court which declared all assets from estate
of decedent to be separate property. The Supreme Court held that: (1) where Supreme Court's
decision on first appeal between parties was premised upon the parties' involvement in a
post-nuptial agreement, and where Court considered only evidence relating to decedent's
financial activity from 1937 to 1953 when it found that decedent had devoted great time and
energy to management of his wealth whereas financial matters at issue in instant appeal, as
well as factual circumstances surrounding them, involved years 1953 to 1974, doctrine of law
of the case was not violated by lower court in its ruling that decedent expended only minimal
time and effort in supervision and investment of his separate property during years 1953 to
1974, and (2) where decedent never made a conscious choice to use his separate property,
rather than available community property, to pay community expenses, since decedent's
expenditures for community expenses were made while operating under erroneous
assumption that parties' post-nuptial agreement was valid and that all his funds were his
separate property, decedent's separate property was entitled to reimbursement for
expenditures for community expenses after community assets were exhausted.
Affirmed.
[Rehearing denied December 16, 1982]
Nada Novakovich, Reno, for Appellant.
Bradley & Drendel, Reno, For Respondents.
1. Appeal and Error; Courts.
A principle or rule of law enunciated by an appellate court which is necessary to the decision becomes
the law of the case and must be followed throughout its subsequent progress both in the lower court and
upon subsequent appeal.
2. Appeal and Error.
The law of the first appeal is the law of the case on all subsequent appeals in which the facts are
substantially the same.
98 Nev. 210, 211 (1982) Cord v. Cord
3. Appeal and Error.
Where Supreme Court's decision on first appeal between parties was premised upon the parties'
involvement in a post-nuptial agreement, and where Court considered only evidence relating to decedent's
financial activity from 1937 to 1953 when it found that decedent had devoted great time and energy to
management of his wealth whereas financial matters at issue in instant appeal, as well as factual
circumstances surrounding them, involved years 1953 to 1974, doctrine of law of the case was not violated
by lower court in its ruling that decedent expended only minimal time and effort in supervision and
investment of his separate property during years 1953 to 1974.
4. Husband and Wife.
Where a decedent had made a conscious choice to use his separate property, rather than available
community property, to pay community expenses, such use of his separate property would constitute a gift
to community for which reimbursement could not be claimed.
5. Husband and Wife.
Where decedent never made a conscious choice to use his separate property, rather than available
community property, to pay community expenses, since decedent's expenditures for community expenses
were made while operating under erroneous assumption that parties' post-nuptial agreement was valid and
that all his funds were his separate property, decedent's separate property was entitled to reimbursement for
expenditures for community expenses after community assets were exhausted.
6. Husband and Wife.
Rents and profits from a spouse's separate property constitute separate property.
7. Husband and Wife.
All property acquired after marriage is presumed to be community property; such presumption may be
rebutted by clear and convincing evidence.
8. Husband and Wife.
There must be an apportionment of any increment in value between separate estate of owner and
community, unless increment is due solely to a natural enhancement of the property or minimal effort by
the owner.
OPINION
Per Curiam:
Virginia Cord appeals from a judgment declaring all assets from the estate of E. L. Cord to
be separate property. This represents the second appeal between the parties.
In the initial case of Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978), we held a
post-nuptial agreement between Mr. and Mrs. E. L. Cord invalid. We reversed and remanded
the case for the district court to determine whether any of E. L. Cord's estate should be
apportioned as community property.
On remand, the parties stipulated that from 1937 to 1953, 11.6 percent of E. L. Cord's
separate holdings constituted community property.
98 Nev. 210, 212 (1982) Cord v. Cord
11.6 percent of E. L. Cord's separate holdings constituted community property. The parties
entered into this stipulation based on footnote number four in Cord v. Neuhoff, 94 Nev. 21,
573 P.2d 1170 (1978).
1
Consequently, the scope of trial was confined to the financial and
business activity of E. L. Cord from 1953 until his death in 1974.
During the two-week non-jury trial, several expert witnesses testified on the various
accounting procedures they used in apportioning E. L. Cord's estate. Appellant's expert
witnesses testified that under their formulas, 79.37 percent of E. L. Cord's separate estate
should be allocated to the community. In contrast, the respondents' expert witnesses
ultimately concluded that there was no community property at E. L. Cord's death in 1974.
The district court held that the accounting methods and evidence presented by the
respondents was more credible than the evidence presented by appellant. The lower court
dismissed appellant's action and held all assets of E. L. Cord to be separate property. We
affirm.
The district court found that E. L. Cord expended only minimal time and effort in the
supervision and investment of his separate property during the years 1953 to 1974.
Appellant contends that in so ruling, the lower court failed to follow the law of the case as
mandated in Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978).
In Cord v. Neuhoff, supra, this court noted, there is no suggestion that the increased value
of Errett's estate was due to a natural enhancement, or that he expended only minimal effort.
The evidence is otherwise and establishes that he devoted great time and energy to the
management of his wealth."
____________________

1 4
The financial records before the court, 1937 to 1953, are revealing in this regard. A year-by-year Pereira
analysis discloses that between 1937 and 1946, Virginia acquired no community property, because the yearly
income generated by the preceding year's net worth was always less than 7 percent. In 1947, however, income
exceeded 7 percent, thus generating community income which, when decreased by 1947 community expenses,
constituted 3.5 percent of the 1947 year-end net worth. Again in 1948, the income generated by the 96.5 percent
of the corpus remaining separate property exceeded a normal 7 percent return, resulting in an allocation of the
excess to the community estate. This excess, when added to the income directly generated by the 3.5 percent of
the corpus constituting community property and decreased by 1948 expenses, increased the community interest
in the entire corpus to approximately 15.8 percent. In all years between 1949 and 1952, community expenses
exceeded community income, thus causing a decrease in residual community holdings. Thus on December 31,
1952, approximately 11.6 percent of the holdings constituted community property. Cord v. Neuhoff, 94 Nev.
21, 27, 573 P.2d 1170, 1174 (1978) (emphasis in original).
98 Nev. 210, 213 (1982) Cord v. Cord
wealth. In the initial Cord case, the only evidence presented was the post-nuptial contract
and financial records of E. L. Cord from 1937 to 1953. Thus, this court did not consider any
evidence regarding the status of E. L. Cord's separate wealth or the time, effort and skill he
used in amassing it from 1953 to 1974.
[Headnotes 1, 2]
A principle or rule of law enunciated by an appellant court which is necessary to the
decision, becomes the law of the case and must be followed throughout its subsequent
progress both in the lower court and upon subsequent appeal. The law of the first appeal is
the law of the case on all subsequent appeals in which the facts are substantially the same.
LoBue v. State ex rel. Dept. Hwys., 92 Nev. 529, 554 P.2d 258 (1976); see also Walker v.
State, 85 Nev. 337, 455 P.2d 34 (1969); and State v. Loveless, 62 Nev. 312, 150 P.2d 1015
(1944).
[Headnote 3]
In the instant case, appellant erroneously concludes that the law and facts presented in her
first appeal are substantially the same as those presented herein. In Cord v. Neuhoff, supra,
our decision was premised upon the parties involvement in a post-nuptial agreement.
Moreover, this court only considered evidence relating to E. L. Cord's financial activity from
1937 to 1953. Here, the financial matters at issue, as well as the factual circumstances
surrounding them, involve the years 1953 to 1974. We conclude the doctrine of law of the
case was not violated by the lower court under the circumstances presented herein.
Next, appellant suggests the lower court erred in finding that the separate property of E. L.
Cord was entitled to reimbursement for expenditures for community expenses after
community assets were exhausted.
Appellant relies on the California Supreme Court case of See v. See, 64 Cal.2d 778, 51
Cal.Rptr. 888, 415 P.2d 776 (1966), wherein the court held: [A] husband who elects to use
his separate property instead of community property to meet community expenses cannot
claim reimbursement. In the absence of an agreement to the contrary, the use of his separate
property by a husband for community purposes is a gift to the community. The facts in See
v. See, supra, reflect that the plaintiff husband made a conscious election to spend his
separate wealth on community expenses and was guilty of commingling his separate funds
with community funds.
The facts in the instant case are more akin to those found in Beam v. Bank of America, 6
Cal.3d 12, 9S Cal.Rptr.
98 Nev. 210, 214 (1982) Cord v. Cord
Beam v. Bank of America, 6 Cal.3d 12, 98 Cal.Rptr. 137, 490 P.2d 257 (1971). In Beam v.
Bank of America, supra, the plaintiff husband assumed during the course of marriage that all
his funds were his separate property. The evidence reflected that Mr. Beam did not make a
conscious choice to spend his separate property on community expenses. The court in Beam
distinguished See v. See, supra, and noted:
In the instant case, of course, Mr. Beam made no conscious choice to spend his separate
property, rather than the imputed community property on the family's living
expenses. Only by means of a formula now applied by the court do we divide Mr.
Beam's income into theoretical community and separate portions; Beam could
hardly draw upon a fictionalized separate source to pay family expenses. Thus our
decision in See is simply not in point.
Beam v. Bank of America, 6 Cal.3d 12, 98 Cal. Rptr. 137, 144, 490 P.2d 257, 264 (1971).
Here, E. L. Cord's expenditures for community expenses were made while operating under
the assumption that the parties' post-nuptial agreement was valid, and all his funds were his
separate property. Consequently, E. L. Cord never made a conscious choice to spend his
separate property on community expenses which exceeded community assets.
[Headnotes 4, 5]
If E. L. Cord had made a conscious choice to use his separate property, rather than
available community property, to pay community expenses, such use of his separate property
would have constituted a gift to the community for which reimbursement could not be
claimed. See See v. See, 64 Cal.2d 778, 51 Cal. Rptr. 888, 415 P.2d 776 (1966). The record
clearly establishes, however, that E. L. Cord assumed through the years 1953 until his death
in 1974 that all of his funds were his separate property. He did not consciously elect to pay
for community expenses out of income which is now deemed separate in character.
The standard enunciated in Beam v. Bank of America, 6 Cal.3d 12, 98 Cal.Rptr. 137, 490
P.2d 257 (1971) supports the district court's ruling requiring reimbursement to E. L. Cord's
separate estate for expenditures on family living expenses in years when community assets
were exhausted.
[Headnotes 6, 7]
Under the law, rents and profits from a spouse's separate property constitute separate
property.
98 Nev. 210, 215 (1982) Cord v. Cord
property constitute separate property. However, all property acquired after marriage is
presumed to be community property. This presumption may be rebutted by clear and
convincing evidence. Kelly v. Kelly, 86 Nev. 301, 468 P.2d 359 (1970).
[Headnote 8]
It is well settled that there must be an apportionment of any increment in value between
the separate estate of the owner and the community, unless the increment is due solely to a
natural enhancement of the property or minimal effort by the owner. Pereira v. Pereira, 156
Cal. 1, 103 P. 488 (1909); Johnson v. Johnson, 89 Nev. 244, 510 P.2d 625 (1973); Cord v.
Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978). In the instant case, the district court found that
E. L. Cord did not take an active part in any business he invested in or expend any time,
energy or skill in managing real property he owned. The court also found that any increase in
value of his separate property was attributable to other managers or general economic
conditions.
The record reflects that from 1953 to E. L. Cord's death in 1974, many of Cord's assets
increased in value due to natural enhancement and escalating real estate values. During this
time period, E. L. Cord's health noticeably declined. Consequently, he delegated substantial
authority to his son Charles, who acted as general manager for a number of Cord businesses.
Respondents presented several fact witnesses who testified about E. L. Cord's work habits
and declining health. Many of these same witnesses testified that Cord's assets increased in
value due to substantial holdings in raw land, inflationary factors, and natural enhancement.
Appellant called only one fact witness, who had sporadic contact with E. L. Cord. He
testified that Cord made all final decisions regarding his various business interests until his
death in 1974.
Both parties introduced expert testimony in the area of accounting. The experts for
respondents and appellant based their formulations on the year-by-year apportionment
method enunciated in Pereira v. Pereira, 156 Cal. 1, 103 P. 488 (1909). Although the expert
accounting witnesses for both parties testified that they utilized the Pereira apportionment
method, their particular accounting formulas resulted in vastly different findings.
The district court was presented with extremely conflicting evidence involving both
factual and accounting issues. Where a trial court, sitting without a jury, has made a
determination upon the basis of conflicting evidence, that determination should not be
disturbed on appeal if it is supported by substantial evidence."
98 Nev. 210, 216 (1982) Cord v. Cord
should not be disturbed on appeal if it is supported by substantial evidence. Fletcher v.
Fletcher, 89 Nev. 540, 516 P.2d 103 (1973); see also Ormachea v. Ormachea, 67 Nev. 273,
217 P.2d 355 (1950). Thus, the record must reveal that the judgment was clearly erroneous
and not based upon substantial evidence before the district court will be reversed. Fletcher v.
Fletcher, 89 Nev. 540, 516 P.2d 103 (1973).
We cannot say from this record that the trial court erred in determining that the position
propounded by appellant was not adequately proved to the satisfaction of the court.
Appellant's other points of error being without merit, we affirm.
Gunderson, C. J. Manoukian and Springer, JJ., Zenoff, Sr. J.,
2
and Mendoza,
D. J.,
3
concur.
____________________

2
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in place of The Honorable
Cameron Batjer, Justice. Nev. Const., art. 6, 19; SCR 10.

3
The Governor designated the Honorable John F. Mendoza, District Judge of the Eighth Judicial District, to
sit in this case in place of The Honorable John Mowbray, Justice, who voluntarily disqualified himself. Nev.
Const., art. 6, 4.
____________
98 Nev. 216, 216 (1982) Rasmussen v. Thomas
WALTER L. RASMUSSEN and BEATRICE L. RASMUSSEN, Appellants, v. CLARENCE
R. THOMAS, BETTY J. THOMAS, TERRY K. THOMAS and
RICHARD F. THOMAS, Respondents.
No. 12991
May 12, 1982 644 P.2d 1030
Appeal from judgment, Eighth Judicial District Court, Clark County; Stephen L. Huffaker,
Judge.
An appeal was taken from a judgment of the district court dissolving a partnership and
awarding to respondents a return of their capital contributions to the partnership enterprise,
attorney fees and the rental value of real property owned by the parties as tenants in common.
The Supreme Court held that: (1) returning to respondents their capital contributions without
first requiring an accounting or settlement of the partnership affairs constituted reversible
error; (2) co-tenants were not liable to the other co-tenants for rent or for use of the leased
premises; and (3) trial court did not abuse its discretion in awarding partial attorney fees to
respondents because the action arose partly out of the partition of real property.
98 Nev. 216, 217 (1982) Rasmussen v. Thomas
awarding partial attorney fees to respondents because the action arose partly out of the
partition of real property.
Affirmed in part; reversed and remanded in part.
Wanderer and Wanderer, Las Vegas, for Appellants.
John Peter Lee and James C. Mahan; Johnson, Pilkington & Reynolds; and Callister &
Reynolds, Las Vegas, for Respondents.
1. Partnership.
Returning to respondents their capital contributions without first requiring an accounting or settlement of
the partnership affairs constituted reversible error; without an accounting of the partnership affairs
ascertaining what surplus, if any, remained after discharging liabilities, and collecting assets, an accurate
money judgment award, returning to respondents their interest in the partnership, could not be rendered.
2. Partnership.
Ordinarily, actions between partners with respect to partnership business are not maintainable until there
has been an accounting or settlement of the partnership affairs.
3. Partnership.
Upon dissolution of partnership, respondents were entitled to the value of their respective shares in the
partnership business, not to a return of capital invested. NRS 87.380, subd. 1.
4. Tenancy in Common.
Co-tenants were not liable to the other co-tenants for rent or for use of the leased premises.
5. Tenancy in Common.
In the absence of an agreement to pay or ouster by the co-tenant in possession, a tenant in common who
occupies all or more than his proportionate share of the common premises is not liable, because of such
occupancy alone, to his co-tenants for rent or the use and occupation of the premises.
6. Tenancy in Common.
Since each co-tenant has a right to occupy the common property, it follows that, in the absence of an
agreement to the contrary, one of them cannot collect rent from another for having exercised that right.
7. Partition.
Allowance of attorney fees under statute pertaining to partition actions is generally determined by
whether the services rendered by counsel were for the common benefit of all parties, and whether all parties
benefited from the service of counsel. NRS 39.480.
8. Partition.
Allowance of attorney fees in a partition action is a matter for the exercise of trial court's discretion.
NRS 39.480.
9. Attorney and Client; Partition.
Trial court did not abuse its discretion in awarding partial attorney fees to respondents because the action
arose partly out of the partition of real property; furthermore, the court was not precluded
from awarding attorney fees as charges against the common fund by the fact that the
partition proceedings were not of an adversary nature.
98 Nev. 216, 218 (1982) Rasmussen v. Thomas
partition of real property; furthermore, the court was not precluded from awarding attorney fees as charges
against the common fund by the fact that the partition proceedings were not of an adversary nature. NRS
39.480.
OPINION
Per Curiam:
Walter L. Rasmussen and Beatrice L. Rasmussen appeal from a judgment of the district
court dissolving a partnership and awarding to respondents a return of their capital
contributions to the partnership enterprise, attorney fees, and the rental value of the real
property owned by the parties as tenants in common.
We find no error in the district court's finding of the existence of the partnership
relationship
1
but disagree with its attempt to distribute partnership assets without requiring a
proper accounting among the parties. Further, we disagree with the district court's award of
rent but find no error in the award of attorney fees.
Return of Capital Contributions
The trial court awarded Richard Thomas $23,165.35 after deductions for salary draws and
taxes paid by the partnership business. A similar award was made to Clarence Thomas in the
sum of $16,379.28. The figures were taken from the partnership tax returns which were
understood to reflect accurately the individual partners' shares in annual profits.
[Headnotes 1, 2]
Appellants contend that the trial court committed reversible error in returning to
respondents their capital contributions without first requiring an accounting or settlement of
the partnership affairs. We agree. Ordinarily, actions between partners with respect to
partnership business are not maintainable until there has been an accounting or settlement of
the partnership affairs. See Clark v. Edris, 585 P.2d 264 (Ariz.App. 1978); Lau v. Valu-Bilt
Homes, Ltd., 582 P.2d 195, 200 (Hawaii 1978); Ewing v. Owens, 441 P.2d 964, 966 (Okla.
1968).
[Headnote 3]
Upon dissolution, the respondents in this case were entitled to the value of their
respective shares in the partnership business, not to a return of capital invested.
____________________

1
Appellants contend that the finding of the existence of a partnership relationship is not supported by
substantial evidence; that even if a partnership did exist the partnership agreement was not supported by
consideration; and that respondent Clarence Thomas was not a partner because he had no management rights.
We reject all three contentions.
98 Nev. 216, 219 (1982) Rasmussen v. Thomas
to the value of their respective shares in the partnership business, not to a return of capital
invested. See NRS 87.380(1);
2
Ewing v. Owens, supra. Respondents made no allegations of
fraud or misrepresentation on appellant Walter Rasmussen's part which would give rise to
further recovery under NRS 87.390.
3
Furthermore, no proof was presented showing any
special damage to the partnership business or to respondents through Rasmussen's actions.
See e.g., De Rigne v. Hart, 270 P. 1013 (Cal.App. 1928). Without an accounting of the
partnership affairs, ascertaining what surplus, if any, remained after discharging liabilities and
collecting assets, an accurate money judgment award, returning to respondents Clarence and
Richard Thomas their interest in the partnership, could not be rendered. It is impossible to
determine, from the record, whether the figures listed on the partnership tax returns
represented the partners' net share in the business.
This portion of the judgment is reversed and remanded for the trial court to determine,
after an accounting, the value of Clarence's and Richard's interest in the partnership consistent
with this opinion and NRS 87.380(1), and to enter judgment accordingly.
The Award of Additional Rent
The trial court awarded each of the respondents $6,624, plus interest, for the reasonable
rental value of the real property on which the business was located from January, 1974, to the
date of judgment, August, 1980.
4
Additionally, each respondent
____________________

2
NRS 87.380(1) provides that when dissolution is caused in a way other than in contravention of the
partnership agreement, each partner is entitled, as against his copartners, unless otherwise agreed, to have the
partnership property first applied to the discharge of the firm liabilities and the surplus applied to payment in
cash of the net amount owing the respective partners. When dissolution is caused in contravention of the
partnership agreement, i.e., wrongful dissolution, each innocent party is entitled, in addition to the foregoing, to
damages for breach of the agreement as against each guilty party. NRS 87.380(2). Our review of the record
indicates that the primary cause of the dissolution in this case was the was to receive $129 per misconduct
of appellant Walter Rasmussen, see NRS 87.320(1)(d), and thus NRS 87.380(1) governs the rights of the
respondent partners.

3
NRS 87.390(1) provides that where a partnership is rescinded on the ground of fraud or misrepresentation,
the party entitled to rescind is, without prejudice to any other right, entitled to a lien on or right of retention of
the surplus of the partnership property, after satisfying the partnership liabilities to third persons, for any sum of
money paid by him for the purchase of an interest in the partnership and for any capital or advances
contributed by him.

4
The real property was owned by appellants and respondents as tenants in common. It was not a partnership
asset. Pursuant to respondents'
98 Nev. 216, 220 (1982) Rasmussen v. Thomas
was to receive $129 per month for rent until the property was sold. The trial judge reasoned
that:
[I]mplicit in the agreement between the parties that the partnership would make only
the payments on the note, in lieu of rent, was the covenant that the partnership would
continue in existence, a covenant which Rasmussen breached by his intentional actions.
By virtue of his breach, Rasmussen has been allowed the full use and profit from the
realty and he must account to the other parties for reasonable rent.
[Headnote 4]
Appellants contend, inter alia, that since they were co-tenants, they were not liable to the
other co-tenants for rent or for the use of the premises. We agree.
[Headnotes 5, 6]
In the absence of an agreement to pay, or ouster by the co-tenant in possession, a tenant in
common who occupies all or more than his proportionate share of the common premises is
not liable, because of such occupancy alone, to his co-tenants for rent or the use and
occupation of the premises. Lanigir v. Arden, 85 Nev. 79, 81, 450 P.2d 148, 149 (1969).
Since each tenant has a right to occupy the common property, it follows that, in the absence
of an agreement to the contrary, one of them cannot collect rent from another for having
exercised that right.
In the instant case, appellants and respondents orally agreed, when they purchased the
property as tenants in common, that the partnership enterprise could use the property and pay
the mortgage installments, taxes and insurance in lieu of rent. No showing was made at trial
that appellants effected an ouster or exclusion of the other co-tenants. There was never a
demand made by any of the respondents for additional rent from appellants.
That the trial judge's reasoning in awarding additional rent was erroneous is evident in the
fact that the property was purchased before respondent Clarence Thomas became a partner.
Clarence testified that as long as [the business] kept the payments up to pay for the land and
taxes, it could operate there, and that he was trying to help [his] children along.
Respondent Richard Thomas remained a partner until December, 1978.
____________________
request for partition, the district court ordered the property to be sold, the proceeds distributed equally, and
awarded each of the respondents the rental value of the property.
98 Nev. 216, 221 (1982) Rasmussen v. Thomas
Thus, the award of additional rent to respondents as far back as 1974 was clearly erroneous.
We conclude that it was error to award respondents additional rent in the face of a contrary
agreement among all the co-tenants.
5
This portion of the trial court's judgment is reversed.
Attorney Fees
The trial court, pursuant to the stipulation of the parties to partition the real property,
ordered that the property be sold. The trial court awarded partial attorney fees to respondents
based on NRS 39.480,
6
since the action arose partly out of the partition of real property.
Respondents Clarence and Betty Thomas were awarded $1,000, and respondents Richard and
Terry Thomas were each awarded $750. The fees were to be paid from the proceeds of the
partition sale.
[Headnotes 7, 8]
Appellants contend that it was error to award attorney fees under NRS 39.480, since the
parties stipulated to the issue of partitioning the real property and it wasn't thus a matter
before the court. However, the allowance of attorney fees under NRS 39.480 is generally
determined by whether the services rendered by counsel were for the common benefit of all
parties, and whether all parties benefited from the service of counsel. See Weaver v. Laub,
574 P.2d 609, 614 (Okla. 1978); 59 Am.Jur.2d Partition 133-138 (1971). Additionally, the
allowance of attorney fees in a partition action is a matter for the exercise of the trial court's
discretion. In re Parr's Estate, 287 P.2d 906 (Okla. 1955).
____________________

5
We reject respondents' contention that the lower court properly awarded reasonable rent because the parties'
oral lease was void under NRS 111.210.

6
NRS 39.480 provides:
The costs of partition, fees of masters and other disbursements and also, in the discretion of the court,
reasonable counsel fees expended by the parties for the common benefit, shall be paid by the parties
respectively entitled to share in the lands divided, in proportion to their respective interests therein, and
may be included and specified in the judgment. In that case there shall be a lien on the several shares, and
the judgment may be enforced by execution against such shares and against other property held by the
respective parties. When, however, litigation arises between some of the parties only, the court may
require the expenses of such litigation to be paid by the parties thereto, or any of them. (Emphasis added.)
98 Nev. 216, 222 (1982) Rasmussen v. Thomas
[Headnote 9]
In this case, the respondents' attorneys prepared the complaints and cross complaints
seeking partition and instituted the action. The trial court ordered only a partial award because
the action also involved a partnership dispute. Further, the trial court was not precluded from
awarding attorney fees as charges against the common fund by the fact that the partition
proceedings were not of an adversary nature. Weaver v. Laub, supra; 59 Am.Jur.2d Partition
137 (1971). Thus, we conclude that the trial court did not abuse its discretion by awarding
such fees.
We affirm that part of the district court's judgment finding the existence of a partnership
and awarding attorney fees to respondents. We reverse that part of the district court's
judgment awarding respondents a return of their capital contributions; we remand for the trial
court to determine, after an accounting, the value of the interests of Clarence and Richard
Thomas in the partnership and to enter judgment accordingly. Finally, that part of the district
court's judgment awarding rent to respondents is reversed.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
7
concur.
____________________

7
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 222, 222 (1982) Chaffee v. Smith
KYOKO CHAFFEE, Individually and as Guardian ad Litem of CHRISTINE CHAFFEE, A
Minor, and KENNETH CHAFFEE, A Minor, Appellant, v. FRANKLIN N. SMITH, dba
COULTHARD AND SMITH, Respondent.
No. 12830
May 27, 1982 645 P.2d 966
Appeal from order granting summary judgment, Eighth Judicial District Court, Clark
County; Merlyn H. Hoyt, Judge.
Complainant, who had obtained judgment against airline training academy in underlying
wrongful death action, brought action against academy's former attorney for malpractice in
his dealings with academy. The district court entered order granting attorney's motion for
summary judgment and other related orders, and complainant appealed.
98 Nev. 222, 223 (1982) Chaffee v. Smith
orders, and complainant appealed. The Supreme Court held that public policy does not permit
enforcement of a legal malpractice action which has been transferred by assignment or by
levy and execution sale but was never pursued by original client.
Affirmed.
Rogers, Monsey, Woodbury & Berggreen and Douglas G. Crosby, Las Vegas; Ned Good
and Ian Herzog, Los Angeles, for Appellant.
Dickerson, Miles & Pico, Las Vegas, for Respondent.
1. Assignments; Execution.
Public policy does not permit enforcement of legal malpractice action which has been transferred by
assignment or by levy and execution sale but was never pursued by original client.
2. Attorney and Client.
Decision as to whether to bring malpractice action against attorney is one peculiarly vested in client.
OPINION
Per Curiam:
Appellant has appealed from an order granting respondent's motion for summary judgment
and related orders.
In an underlying wrongful death action, appellant obtained a judgment against Airline
Training Academy (ATA). Respondent originally represented both ATA and its insurer,
Airway Underwriters. Alleging lack of cooperation by ATA, respondent withdrew as counsel
for ATA. Thereafter, on behalf of Airway Underwriters, he obtained a default judgment
against ATA, resulting in forfeiture of insurance coverage. In the instant action, appellant has
sued respondent, ATA's former attorney, for malpractice in his dealings with ATA.
Appellant contends, inter alia, that the trial court erred in its determination that a lack of
privity with the original attorney-client relationship precluded her suing her opposing party's
attorney (respondent) for malpractice. Appellant claims that she acquired the cause of action
against respondent by levy and execution sale of ATA's property.
[Headnotes 1, 2]
Here, however, the transferred interest involves a previously unasserted claim. As a matter
of public policy, we cannot permit enforcement of a legal malpractice action which has been
transferred by assignment or by levy and execution sale, but which was never pursued by
the original client.
98 Nev. 222, 224 (1982) Chaffee v. Smith
transferred by assignment or by levy and execution sale, but which was never pursued by the
original client. See Goodley v. Wank & Wank, Inc., 133 Cal.Rptr. 83 (Cal.App. 1976);
Christison v. Jones, 405 N.E.2d 8 (Ill.App. 1980). The decision as to whether to bring a
malpractice action against an attorney is one peculiarly vested in the client. See Christison,
supra at 11. We reserve opinion on the question as to whether previously asserted legal
malpractice actions are transferable. See Goodly, supra; Collins v. Fitzwater, 560 P.2d 1074
(Ore. 1977).
The public policy issue is dispositive of this appeal. Therefore, we need not consider
appellant's remaining contentions.
1

The summary judgment is affirmed.
____________________

1
We express no opinion regarding the propriety of respondent's conduct.
____________
98 Nev. 224, 224 (1982) Mannon v. State
ROBERT MANNON, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 13110
May 27, 1982 645 P.2d 433
Appeal from judgment of conviction, Fifth Judicial District Court, Nye County; William
P. Beko, Judge.
Defendant was convicted before the district court of furnishing marijuana to both his son
and son of his girl friend, and he appealed. The Supreme Court held that: (1) girl friend's
testimony that she was one who furnished marijuana to boys did not constitute newly
discovered evidence since defense counsel had timely knowledge of its existence, but (2)
defense attorney's conflicting duties after she was informed that girl friend had furnished
marijuana to boys but was asked not to tell denied defendant his Sixth Amendment right to
effective assistance of counsel.
Reversed and remanded.
J. Gregory Damm, Public Defender, Carson City, for Appellant.
Richard H. Bryan, Attorney general, Carson City, and Peter L. Knight, District Attorney,
Nye County, for Respondent.
1. Criminal Law.
Testimony by defendant's girl friend in which she admitted that she had been one who furnished
marijuana to boys did not constitute newly discovered evidence that entitled defendant to a
new trial where defense counsel had been given this information on night of first trial
day but was asked "not to tell" because girl friend was afraid defendant would be
angry with her for her disclosure.
98 Nev. 224, 225 (1982) Mannon v. State
newly discovered evidence that entitled defendant to a new trial where defense counsel had been given this
information on night of first trial day but was asked not to tell because girl friend was afraid defendant
would be angry with her for her disclosure. NRS 176.515.
2. Criminal Law.
Conflicting duties of trial counsel, who on night of first trial day was told by defendant's girl friend that
she had furnished marijuana in question to boys but who was asked not to tell, and who remained silent
until after trial, denied defendant his Sixth Amendment right to effective assistance of counsel.
U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Upon learning of defendant's girl friend's involvement in furnishing of marijuana, defense counsel was
presented with conflict between her obligation to protect confidentiality of statement and her obligation to
defend defendant vigorously and completely, and thus counsel was under ethical obligation to inform court
immediately that conflict had arisen which necessitated her withdrawal. NRS 175.383; ABA Code of
Prof.Resp., EC 5-15; DR 5-105.
4. Criminal Law.
Where actual conflict of interest prohibited defense attorney from providing defendant with adequate
assistance, no showing of actual prejudice was necessary to mandate reversal of defendant's conviction.
U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
Appellant was charged with furnishing marijuana to both his son and the son of his
girlfriend Lois Aguirre. NRS 453.321(2). At trial, Mannon was represented by an attorney
who had been appointed to represent Aguirre in another court on an unrelated charge.
1
On
the night of the first trial day, Aguirre called this attorney and admitted that she had been the
one who had furnished the marijuana to the boys. During the conversation, Aguirre asked the
attorney not to tell because she was afraid Mannon would be angry with her for her
disclosure. The attorney remained silent and, at the conclusion of the trial the next day, the
jury found Mannon guilty.
[Headnote 1]
Before sentencing, counsel made a motion for a new trial based on newly discovered
evidence. NRS 176.515. Aguirre testified to the above facts at the hearing on the motion after
waiving relevant privileges.
2
The motion was subsequently, and correctly, denied. Aguirre's
testimony did not constitute newly discovered evidence within the meaning of the statute
since counsel had timely knowledge of its existence.
____________________

1
Mannon is represented by a different attorney in this appeal.

2
At the conclusion of her testimony Aguirre was taken into custody.
98 Nev. 224, 226 (1982) Mannon v. State
counsel had timely knowledge of its existence. Burton v. State, 84 Nev. 191, 437 P.2d 861
(1968); See McLemore v. State, 94 Nev. 237, 577 P.2d 871 (1978).
[Headnote 2]
Mannon now argues that his trial attorney's conflicting duties operated to deny him his
sixth amendment right to effective assistance of counsel. We agree.
[Headnote 3]
Upon learning of Aguirre's involvement, counsel was presented with a conflict between
her obligation to protect the confidentiality of Aguirre's statement and her obligation to
defend Mannon vigorously and completely. Counsel was under an ethical obligation to
inform the court immediately that a conflict had arisen which necessitated her withdrawal.
ABA Code of Professional Responsibility, DR 5-105, EC 5-15 (1976). See NRS 175.383.
Had counsel withdrawn from Mannon's case, Aguirre may well have repeated her admission
to Mannon's subsequent attorney, who would have had no duty to withhold the information
from the court.
[Headnote 4]
The above facts demonstrate that an actual conflict of interest prohibited Mannon's
attorney from providing him with adequate assistance. As a result, no showing of actual
prejudice is necessary to mandate reversal. Cuyler v. Sullivan, 446 U.S. 335 (1980); see
Harvey v. State, 96 Nev. 850, 619 P.2d 1214 (1980).
This case is reversed and remanded for a new trial.
____________
98 Nev. 226, 226 (1982) Schulman v. Bongberg-Whitney Elec., Inc.
ALBERT SCHULMAN dba SCHULMAN MEATS AND PROVISIONS, Appellant, v.
BONGBERG-WHITNEY ELECTRIC, INC., Respondent.
No. 13378
May 27, 1982 645 P.2d 434
Appeal from order denying appellant's motion to set aside a default judgment. Eighth
Judicial District Court, Clark County; Paul S. Goldman, Judge,
In action for breach of contract, the district court sua sponte entered default judgment
against defendant and subsequently denied motion to set aside default judgment, and
defendant appealed. The Supreme Court held that where defendant's attorney failed to
appear for trial of action for breach of contract, attorney's failure to appear was due to
innocent mistake and no bad faith or intent to delay proceedings was shown, and where
defendant applied promptly for relief and plaintiff neither moved for default judgment nor
opposed motion to set aside default, district court abused its discretion by refusing to set
aside default judgment.
98 Nev. 226, 227 (1982) Schulman v. Bongberg-Whitney Elec., Inc.
attorney failed to appear for trial of action for breach of contract, attorney's failure to appear
was due to innocent mistake and no bad faith or intent to delay proceedings was shown, and
where defendant applied promptly for relief and plaintiff neither moved for default judgment
nor opposed motion to set aside default, district court abused its discretion by refusing to set
aside default judgment.
Reversed and remanded.
David Goldwater, Las Vegas, for Appellant.
Lionel Sawyer & Collins, and Robert M. Buckalew, Las Vegas, for Respondent.
1. Judgment.
Cases should be heard on the merits whenever possible.
2. Judgment.
Decision to grant or deny motion to set aside default judgment rests with the sound discretion of trial
court, and that discretion must not be arbitrary or cavalier but must be exercised within guidelines
established by Supreme Court.
3. Judgment.
Where defendant's attorney failed to appear for trial of action for breach of contract, attorney's failure to
appear was due to innocent mistake and no bad faith or intent to delay proceedings was shown, and where
defendant applied promptly for relief and plaintiff neither moved for default judgment nor opposed motion
to set it aside, district court abused its discretion by refusing to set aside default judgment. NRCP
60(b)(1).
OPINION
Per Curiam:
In this appeal we must decide whether the district court abused its discretion by refusing to
set aside a default judgment entered after appellant's attorney failed to appear for trial. We
conclude that under the facts presented the district court did abuse its discretion. We reverse
the judgment and remand for a trial on the merits.
THE FACTS
Respondent filed a complaint in the district court claiming damages for breach of contract.
Appellant's counsel failed to appear for trial. The district judge, sua sponte, entered a default
judgment against appellant.
Nine days later appellant moved to set aside the judgment. NRCP 60(b)(1). In support of
the motion, appellant's counsel submitted his own affidavit and that of his secretary.
98 Nev. 226, 228 (1982) Schulman v. Bongberg-Whitney Elec., Inc.
submitted his own affidavit and that of his secretary. The affidavits stated that the attorney
had failed to appear for trial because he believed the trial had been reset. Respondent did not
oppose the motion. Nevertheless, the district court refused to set aside the default judgment.
This appeal followed.
THE DEFAULT JUDGMENT
[Headnote 1]
It is the policy of this state that cases be heard on the merits, whenever possible. Hotel Last
Frontier v. Frontier Properties, 79 Nev. 150, 380 P.2d 293 (1963).
[Headnote 2]
The decision to grant or deny a motion to set aside a default judgment rests with the sound
discretion of the trial court. Fagin v. Fagin, 91 Nev. 794, 544 P.2d 415 (1975); Bryant v.
Gibbs, 69 Nev. 167, 243 P.2d 1050 (1952). That discretion must not be arbitrary or cavalier;
it must be exercised within the guidelines established by this court. In Hotel Last Frontier,
supra, this court laid down the guidelines governing the exercise of the district court's
discretion when a motion to set aside a default is made pursuant to NRCP 60(b)(1):
(1) The showing required by NRCP 60(b)(1), formerly NCL 8640, of mistake,
inadvertence, surprise, or excusable neglect, singly, or in combination, must, of course
be made . . . What facts will establish the existence of one or more of the specified
conditions is largely discretionary. Yet, guides have been declared. Prompt application
to remove the judgment is a persuasive factor . . . .[L]ikewise, the absence of an intent
to delay proceedings. . . . The lack of knowledge of the party or counsel as to
procedural requirements has been given weight. . . . Good faith is significant. . . . (2)
The showing required by case precedent that a meritorious defense exist to the claim
for relief asserted, also must be made.
* * *
(3) Finally we mention, as a proper guide to the exercise of discretion, the basic
underlying policy to have each case decided upon its merits. In the normal course of
events, justice is best served by such a policy. Because of this policy, the general
observation may be made that an appellate court is more likely to affirm a lower court
ruling setting aside a default judgment than it is to affirm a refusal to do so. In the
former case a trial upon the merits is assured, whereas in the latter it is denied forever.
79 Nev. at 154-56, 380 P.2d at 294-95.
98 Nev. 226, 229 (1982) Schulman v. Bongberg-Whitney Elec., Inc.
[Headnote 3]
Appellant has met the showing required by NRCP 60(b)(1). The attorney's failure to
appear was due to an innocent mistake. No bad faith or intent to delay the proceedings was
shown. Appellant applied promptly for relief. The Answer filed in the district court stated a
meritorious defense. In addition, we cannot ignore the fact that respondent neither moved for
the default judgment in the district court nor opposed appellant's motion to set it aside.
We hold that the district court abused its discretion by refusing to set aside the default
judgment. Accordingly, we reverse the judgment, and we remand the case for trial on the
merits.
____________
98 Nev. 229, 229 (1982) Temora Trading Co. v. Perry
TEMORA TRADING COMPANY, LTD., A Purported Trust, Appellant, v. WALLACE
PERRY, as Trustee of the Estate of Boyd James O'Donnell and Joan O'Donnell, Bankrupts,
Respondent.
No. 13531
May 27, 1982 645 P.2d 436
Appeal from order striking defendant's answer, entering a default judgment, and awarding
summary judgment. Fourth Judicial District Court, Elko County; Joseph O. McDaniel, Judge.
Defendant appealed from an order of the district court entering a default judgment against
it in action to quiet title. The Supreme Court held that corporate defendant's obstructing
discovery, being not responsive to certain interrogatories, and failing to have its officers
appear for depositions warranted dismissal where court had ordered corporation to produce its
officers for depositions.
Affirmed
[Rehearing denied November 22, 1982]
Wilson, Wilson and Barrows, Ltd., Elko; Terry & Winter, Carson City; and Moneymaker &
Morrison, Los Angeles, California, for Appellant.
Goicoechea, DiGrazia & Marvel, Elko; Russell Piccoli, Phoenix, Arizona, for
Respondent.
1. Pretrial Procedure.
Sanction of dismissal or default may be imposed only in cases of willful noncompliance of court's orders.
NRCP 37(b).
98 Nev. 229, 230 (1982) Temora Trading Co. v. Perry
2. Pretrial Procedure.
In action to quiet title, corporate defendant's obstructing discovery, being not responsive to certain
interrogatories, and failing to have its officers appear for depositions warranted dismissal where court had
ordered corporation to produce its officers for depositions. NRCP 37(b).
3. Cancellation of Instruments; Deeds.
Transfer of property to fictitious person is complete nullity, transferring no title; action to avoid such
transfer is not subject to statute of limitations.
OPINION
Per Curiam:
Respondent Wallace Perry, as Trustee of the Estate of Boyd James O'Donnell and Joan
O'Donnell, Bankrupts, commenced this action in the district court to quiet title to certain
property located in Elko County.
The district judge, after finding that appellant-defendant Temora Trading Company, Ltd.
had willfully failed to comply with the court's discovery orders, struck Temora's answer.
NRCP 37(b). Summary judgment was entered in favor of the Trustee. This appeal followed.
THE FACTS
O'Donnell filed for bankruptcy in Arizona. Respondent Perry was named trustee in the
bankruptcy proceedings. Although O'Donnell was adjudicated bankrupt, he was denied a
bankruptcy discharge. Just prior to filing his petition for bankruptcy, O'Donnell transferred
valuable real estate holdings to a James Gleason, who allegedly transferred the property to
Temora.
Discovery was protracted and bitterly fought. Eventually, Perry noticed the depositions of
three of Temora's officers in the Bahamas. At the time set for their depositions their local
attorney appeared and stated that they would not be deposed without an order from a
Bahamian court. Perry obtained an order from the district court in Elko compelling Temora to
produce its officers. The order was served on Temora's counsel in Elko. The officers still
refused to comply.
Thereafter, the district court struck Temora's answer and entered a default judgment
against Temora. Temora argues that the district court abused its discretion by granting a
default judgment as a sanction for failure to honor the court's orders. Temora also suggests
that Perry's complaint fails to state a cause of action because it appears on the face of the
complaint that the cause is barred by the statute of limitations. We reject Temora's
contentions and we affirm the default judgment.
98 Nev. 229, 231 (1982) Temora Trading Co. v. Perry
THE DEFAULT JUDGMENT
NRCP 37(b) empowers the district court with a broad range of sanctions that may be
invoked when parties fail to comply with discovery orders. The court may strike all or part of
a party's pleadings, and enter a default judgment.
[Headnotes 1, 2]
The sanction of dismissal or default may be imposed only in cases of willful
noncompliance of the court's orders. Finkelman v. Clover Jewelers Boulevard, Inc., 91 Nev.
146, 532 P.2d 608 (1975). The district judge in the instant case found that Temora's failure to
comply was willful. That finding is supported by substantial evidence, including Temora's
history of obstructing discovery, as well as the failure of Temora's officers to appear for their
depositions.
1

In Skeen v. Valley Bank of Nevada, 89 Nev. 301, 511 P.2d 1053 (1973), this court held:
Default judgments will be upheld where the normal adversary process has been halted
due to an unresponsive party, because diligent parties are entitled to be protected
against interminable delay and uncertainty as to their legal rights. 89 Nev. at 303, 511
P.2d at 1054.
THE STATUTE OF LIMITATIONS
Temora argues that even if the district court did not err in striking its answer, it was error
to grant a default judgment. Temora's contention is that Perry's complaint failed to state a
cause of action because it did not plead facts showing that the statute of limitations was
tolled. See Kellar v. Snowden, 87 Nev. 4SS, 4S9 P.2d 90 {1971); Bank of Nevada v.
____________________

1
Temora was not responsive to certain interrogatories. In response to interrogatories 8 and 9, counsel for
Temora, Mr. Moneymaker, stated that James Gleasonaddress unknown formed Temora and contributed all
its property. The Nassau attorney who formed Temora, Mr. Ralph Seligman, in his deposition testified to the
contrary:
MR. MONEYMAKER: All right. Now I take it--has Mr. Gleason or Temora Trading Company
waived the attorney-client privilege of confidentiality imposed upon you under Bahamian law?
THE WITNESS: There is no attorney-client privilege between myself and Temora. As far as Mr.
Gleason is concerned, I am satisfied the gentleman does not exist.
MR. MONEYMAKER: All right. I take it, what you are telling me is that James Gleason, to your
knowledge, has not waived the privilege?
THE WITNESS: Mr. James Gleason, to my knowledge, does not exist, and therefore there is no
privilege to waive.
MR. MONEYMAKER: I take it
THE WITNESS: I am satisfied that I was duped as an instrument of fraud, and this is the reason I
have sworn my affidavit.
98 Nev. 229, 232 (1982) Temora Trading Co. v. Perry
Nev. 488, 489 P.2d 90 (1971); Bank of Nevada v. Friedman, 82 Nev. 417, 420 P.2d 1 (1966).
[Headnote 3]
However, Perry alleged in his complaint that Gleason was a fictitious person. When the
answer was stricken, all of Perry's allegations were taken as true. A transfer of property to a
fictitious person is a complete nullity, transferring no title. An action to avoid such a transfer
is not subject to the statute of limitations. Gayle v. Jones, 63 F.Supp. 481 (W.D.La. 1945);
Houghton v. Houghton, 116 So. 493 (La. 1928).
RES JUDICATA
Finally, Temora suggests that Perry's complaint is barred by the doctrines of res judicata
and collateral estoppel. These were affirmative defenses included in Temora's answer. The
defenses were stricken with the answer.
The judgment is affirmed.
____________
98 Nev. 232, 232 (1982) Weaver Brothers, Ltd. v. Misskelley
WEAVER BROTHERS, LTD., Appellant, v. LES MISSKELLEY, aka ROY LESTER
MISSKELLEY, dba LES MISSKELLEY COMPANY, Respondent.
No. 12938
May 27, 1982 645 P.2d 438
Appeal from order granting new trial, First Judicial District Court, Carson City; Frank B.
Gregory, Senior Judge.
Action was brought to recover damages for alleged breach of construction contract. The
jury returned a verdict for plaintiff. The district court granted new trial, and plaintiff appealed.
The Supreme Court held that: (1) district court, in deciding motion for judgment n.o.v., erred
by considering juror affidavits, and (2) district court erred by granting new trial on ground
that jury had disregarded its instructions regarding prevention of performance.
Reversed.
Wayne S. Chimarusti, Carson City, for Appellant.
Maurice J. Sullivan, Reno, for Respondent.
1. Judgment.
District court, in deciding motion for judgment n.o.v., erred by considering juror affidavits.
98 Nev. 232, 233 (1982) Weaver Brothers, Ltd. v. Misskelley
2. Trial.
Generally, jurors will not be permitted to impeach their own verdict.
3. Appeal and Error.
Plaintiff did not waive its objection to consideration of defendants' juror affidavit by submitting one of its
own, where plaintiff consistently maintained that consideration of affidavits was improper and merely
submitted affidavit supporting its position as means of protecting itself in case judge considered affidavits
submitted by defendant.
4. New Trial.
In determining propriety of granting of new trial for reason of [m]anifest disregard by the jury of the
instructions of the court, question is whether court is able to declare that had jurors properly applied
instructions of court, it would have been impossible for them to reach verdict which they reached. NRCP
59(a)(5).
5. New Trial.
In action to recover damages for alleged breach of construction contract, district court erred by granting
new trial on ground that jury had disregarded its instructions regarding prevention of performance, where
jury may well have found that plaintiff's failure to file financial statement was minor breach which did not
prevent or affect defendant's ability to perform because it was ignored by parties, and jury may have further
concluded that defendant's failure to supervise subcontractor properly was breach of sufficient magnitude
to warrant his dismissal and termination of contract. NRCP 59(a)(5).
OPINION
Per Curiam:
This action was commenced by appellant Weaver Brothers, Ltd. (Weaver) to recover
damages for an alleged breach of a construction contract by respondent Les Misskelley. The
jury returned a verdict for Weaver. Misskelley timely moved for a judgment n.o.v. or, in the
alternative, for a new trial. The district court denied the motion for judgment n.o.v. but
granted a new trial because it believed the jury had disregarded the instructions. This appeal
by Weaver challenges that ruling.
[Headnotes 1, 2]
Weaver first contends that the district court erred by considering juror affidavits in
deciding the motion. We agree. This court has long held that, as a general rule, jurors will not
be permitted to impeach their own verdict.
1
Close v. Flanary, 77 Nev. 87, 113-114, 360 P.2d
259, 273 (1961); So. Nev. M. Co. v. Holmes M. Co., 27 Nev. 107, 145-147, 73 P. 759, 762
(1903); see Kaltenborn v. Bakerink, 80 Nev. 16, 388 P.2d 572 (1964). Other courts have
specifically held juror affidavits inadmissible to show that the jurors misunderstood the
judge's instructions.
____________________

1
We have recognized a limited exception to this rule, not applicable here, where the affidavits are offered to
show intentional concealment of actual bias or prejudice by jurors during voir dire examination. McNally v.
Walkowski, 85 Nev. 696, 462 P.2d 1016 (1969).
98 Nev. 232, 234 (1982) Weaver Brothers, Ltd. v. Misskelley
to show that the jurors misunderstood the judge's instructions. Santilli v. Pueblo, 521 P.2d
170 (Colo. 1974); see also Horn v. Sturm, 408 P.2d 541 (Okla. 1965); Gardner v. Malone,
376 P.2d 651, 654 (Wash. 1962).
[Headnote 3]
Misskelley insists, however, that Weaver waived its objection to consideration of
Misskelley's juror affidavit by submitting one of its own. We disagree. Weaver consistently
maintained, both in its written authorities and at the hearing below, that consideration of the
affidavits was improper. Weaver merely submitted the juror affidavit supporting its position
as a means of protecting itself in case the judge considered the affidavit submitted by
Misskelley. The district court erred by considering the affidavits, and we decline to consider
them in deciding whether a new trial was properly granted.
[Headnote 4]
The main issue presented is whether the district court erred by granting a new trial on the
ground that the jury had disregarded its instructions regarding prevention of performance. A
new trial may be granted if there has been a [m]anifest disregard by the jury of the
instructions of the court. NRCP 59(a)(5). In determining the propriety of the granting of a
new trial under NRCP 59(a)(5), the question is whether we are able to declare that, had the
jurors properly applied the instructions of the court, it would have been impossible for them
to reach the verdict which they reached. Fox v. Cusick, 91 Nev. 218, 533 P.2d 466 (1975);
see also Groomes v. Fox, 96 Nev. 457, 611 P.2d 208 (1980); Eikelberger v. Tolotti, 94 Nev.
58, 574 P.2d 277 (1978); Price v. Sinnott, 85 Nev. 600, 460 P.2d 837 (1969).
The record reveals that Misskelley was supervising contractor in charge of construction of
Weaver's manufacturing facility in Carson City. Misskelley had the proper contractor's
license, but his bid limit was $50,000--too low to permit him to construct Weaver's building.
Thereafter, Misskelley petitioned the Nevada State Board of Contractors for a one-time
increase in his bid limit to $1,000,000. The board denied Misskelley's application on August
15, 1978. Subsequently, however, the board indicated its willingness to grant a one-time
increase if Weaver filed an acceptable indemnification agreement and financial statement.
Weaver filed the indemnification agreement, but neglected to submit a financial statement.
As a result, no increase in the bid limit was granted. The evidence indicates, however, that
both parties ignored the absence of an increased limit.
Meanwhile, Misskelley hired a subcontractor to clear the property and prepare the dirt pad
upon which the building was to be constructed.
98 Nev. 232, 235 (1982) Weaver Brothers, Ltd. v. Misskelley
to be constructed. Weaver presented evidence that Misskelley did not properly supervise the
subcontractor. According to Weaver, there was a delay in the excavation and the
specifications were not being followed. On December 18, 1978, Weaver fired Misskelley.
[Headnote 5]
In concluding that his jury instructions regarding prevention of performance had been
misapplied, the district judge apparently reasoned that, by failing to file a financial statement
and by terminating Misskelley's employment, Weaver had prevented Misskelley's
performance. We do not believe, however, that the evidence presented mandated this
conclusion. The jury may well have found that Weaver's failure to file a financial statement
was a minor breach which did not prevent or affect Misskelley's ability to perform because it
was ignored by the parties.
2
The jury may have further concluded that Misskelley's failure to
supervise the subcontractor properly was a breach of sufficient magnitude to warrant his
dismissal and termination of the contract. Therefore, we are unable to declare that it was
impossible for the jury, correctly applying the instructions, to have reached the verdict which
they reached.
The order granting a new trial is reversed and the verdict of the jury is reinstated.
____________________

2
In addition, there is no evidence in the record that the board of contractors or the city interfered with
Misskelley's performance because of the bid limit.
____________
98 Nev. 235, 235 (1982) French v. State
ANTHONY RAY FRENCH, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12820
DANIEL ROY REZIN, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 13039
May 27, 1982 645 P.2d 440
Appeals from judgments of conviction, adjudications of habitual criminality, and
sentences. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Following their felony convictions in the district court defendants were adjudged habitual
criminals and sentenced to ten years' imprisonment, and they appealed. The Supreme Court
held that district court has jurisdiction to dismiss habitual criminal count in information at
any time prior to sentencing.
98 Nev. 235, 236 (1982) French v. State
Court held that district court has jurisdiction to dismiss habitual criminal count in information
at any time prior to sentencing.
Convictions affirmed; adjudications of habitual criminality vacated and cases
remanded for resentencing.
J. Gregory Damm, State Public Defender, for Appellant Anthony Ray French.
Stephen R. Wassner, Zephyr Cove, for Appellant Daniel Roy Rezin.
Richard H. Bryan, Attorney General, Richard E. Thornley and Brooke A. Nielsen, Deputy
Attorneys General, Carson City, for Respondent.
Criminal Law.
Under statute, district court has jurisdiction to dismiss habitual criminal count in an information at any
time prior to sentencing. NRS 207.010, 207.010, subd. 4.
OPINION
Per Curiam:
The issue presented in these consolidated appeals is whether a district judge has discretion
to dismiss a habitual criminal count in an information at any time prior to sentencing. NRS
207.010. We hold that the court has such discretion.
Appellants were each convicted in the district court of a felony. Each had been convicted
of two prior felonies. Each was adjudged a habitual criminal under NRS 207.010, and
sentenced to ten years imprisonment. At the time of sentencing in each case, the district judge
stated that he did not have discretion to dismiss the count of the information charging
habitual criminality.
Appellants seek resentencing on the grounds that the district judge mistakenly failed to
exercise discretion given to him by NRS 207.010(4).
1
The state contends that the district
court had no discretion to dismiss the habitual criminal counts once two prior offenses had
been proved. We agree with appellants' argument, and we remand the case for resentencing.
NRS 207.010(4)reads:
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.
____________________

1
French also appeals from his conviction on the escape charge, claiming a violation of his right to a trial
within sixty days under NRS 178.556. His contention is meritless and we affirm the conviction.
98 Nev. 235, 237 (1982) French v. State
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. (Emphasis added.)
The statute contains no express limitation on the discretion conferred by subsection 4. The
purpose of the subsection, as revealed by the legislative history, is to permit a judge to
dismiss a count under NRS 207.010 when the prior offenses are stale or trivial, or in other
circumstances where an adjudication of habitual criminality would not serve the purposes of
the statute or the interests of justice. See also Dotson v. State, 80 Nev. 42, 389 P.2d 77
(1964).
We hold that a district judge has discretion to dismiss a count under NRS 207.010 at any
time before sentencing. Because the district judge in the instant cases failed to exercise the
discretion conferred on him by law, we affirm the convictions, but we vacate the
adjudications of habitual criminality and the sentences imposed thereon. We remand the cases
to the district court for resentencing in accordance with this opinion. We of course express no
opinion as to the sentences to be imposed on remand as that decision rests with the trial
judge.
____________
98 Nev. 237, 237 (1982) Kartheiser v. Hawkins
JAMES KARTHEISER, RENEE CASELLI and JOHN CASELLI, Appellants/Respondents,
v. DARYL B. HAWKINS, Respondent/Appellant.
No. 13190
June 3, 1982 645 P.2d 967
Appeal and cross-appeal from judgment quieting title to certain realty. Eighth Judicial
District Court, Carl J. Christensen, Judge.
Creditor of deed grantor brought action against grantees to quiet title to two residences
which were subject of transfer. The district court granted a judgment of quiet title to
properties to creditor subject to the two $8,000 deeds of trust held by grantees. Grantees
appealed. Creditor cross-appealed, claiming court erred in finding there was $8,000 due on
each of deeds of trust. The Supreme Court held that: (1) evidence was sufficient to support
finding that there was $8,000 due on each of two deeds of trust on property in question, and
(2) evidence of intentions of grantor and grantees was sufficient to support finding that when
grantor delivered quit claim deeds to grantees contemporaneously with delivery of deeds of
trust, it was only for additional purpose of securing grantees' $S,000 interest in each of
the properties, and not to surrender grantor's equity in properties; thus, subsequent
sheriff's sale of properties to grantor's creditor was proper in that grantor had equity in
properties at time of sale.
98 Nev. 237, 238 (1982) Kartheiser v. Hawkins
contemporaneously with delivery of deeds of trust, it was only for additional purpose of
securing grantees' $8,000 interest in each of the properties, and not to surrender grantor's
equity in properties; thus, subsequent sheriff's sale of properties to grantor's creditor was
proper in that grantor had equity in properties at time of sale.
Affirmed
Embry & Shaner, Ltd. Las Vegas, for Appellants.
Gordon L. Hawkins, Las Vegas, for Respondent.
1. Quieting Title.
In quiet title action, evidence was sufficient to support finding that there was $8,000 due on each of two
deeds of trust on property in question.
2. Deeds.
Intentions of parties to granting of deed are determined from all the circumstances surrounding the
transaction.
3. Mortgages.
In quiet title action, evidence of intentions of deed grantor and grantees was sufficient to support finding
that when grantor delivered quit claim deeds to grantees contemporaneously with delivery of deeds of trust,
it was only for additional purpose of securing grantees' $8,000 interest in each of the properties, and not to
surrender grantor's equity in properties; thus, subsequent sheriff's sale of properties to grantor's creditor was
proper in that grantor had equity in properties at time of sale.
OPINION
Per Curiam:
The respondent, Daryl B. Hawkins, commenced this action to quiet title to two residences
held in the name of Robert Durfee, not a party to this action.
The residences were acquired as part of a joint venture agreement between Durfee and the
appellants who contributed $10,000 to the properties.
Durfee, who became pressed by his creditors, decided to leave the country. Before doing
so, however, he gave the appellants two $8,000.00 deeds of trust covering each residence and
a quit claim deed to each of the properties.
Respondent Hawkins who had previously acquired a judgment against Durfee levied on
both residences and obtained a Sheriff's deed to each of the properties. Hawkins then
commenced the instant action to quiet title to the properties. Appellants answered that they
were mortgagees in possession and counter-claimed for an accounting of the rents
collected by Hawkins.
98 Nev. 237, 239 (1982) Kartheiser v. Hawkins
counter-claimed for an accounting of the rents collected by Hawkins.
The district judge ruled that appellants had an $8,000.00 security interest in each property,
as reflected in the recorded deeds of trust (the quit claim deeds were never recorded); that
Durfee owned the remaining equity in the residences. The court granted a judgment of quiet
title to the properties to Hawkins subject to the two $8,000.00 deeds of trust held by
appellants.
[Headnote 1]
The appellants' principal argument on appeal is that at the time of the Sheriff's sale of the
properties to Hawkins, Durfee had no equity in the properties as he had quit claimed his
interest in the properties to the appellants when he delivered to the appellants the two
$8,000.00 deeds of trust.
1

[Headnotes 2, 3]
The district judge found that when Durfee delivered the quit claim deeds to the appellants
contemporaneously with the delivery of the deeds of trust, it was only for the additional
purpose of securing the appellants' $8,000.00 interest in each of the properties. A deed
absolute on its face may be shown to be a mortgage in equity. . . . In such cases the form of
the transaction will be disregarded and its substance and the intention of the parties at the
time will control. Robinson v. Durston, 83 Nev. 337, 339, 432 P.2d 75, 76 (1967). The
intentions of the parties are determined from all the circumstances surrounding the
transaction. Rizo v. Macbeth, 398 P.2d 209 (Alaska 1965). The appellants chose to record the
deeds of trust rather than the quit claim deeds; they filed notice of breach under the deeds of
trust and commenced foreclosure proceedings. Appellants alleged in their answer that they
were mortgagees in possession. The record supports the judge's finding.
Remaining assignments of error have been considered and found meritless. The judgment
of the district court is affirmed.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

1
Hawkins has cross-appealed, claiming the court erred in finding there was $8,000.00 due on each of the
deeds of trust. Substantial evidence supports the court's finding that the sums were due.

2
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable Cameron M. Batjer, Justice, retired. Nev. Const., art. 6, 19(1)(c); SCR 10.
____________
98 Nev. 240, 240 (1982) Montgomery v. Royal Motel
HELEN MONTGOMERY and KENNETH MONTGOMERY, Appellants, v.
ROYAL MOTEL, Respondent.
No. 12884
June 3, 1982 645 P.2d 968
Appeal from grant of summary judgment. Eighth Judicial District Court, Clark County;
Carl J. Christensen, Judge.
Motel renters who were assaulted and robbed by unknown assailant in their room brought
action against motel to recover damages. The district court entered judgment. Appeal was
taken. The Supreme Court, Manoukian, J., held that motel met required standard of conduct
in protecting its guests from criminal acts of third parties by complying with ordinance
requiring deadbolt locks but not self-locking doors.
Affirmed.
[Rehearing granted and this opinion recalled February 16, 1983; appeal dismissed March
18, 1983]
Richard W. Myers, Las vegas, for Appellants.
Rose, Edwards, Hunt & Pearson, Las Vegas, for Respondent.
1. Negligence.
Standard of conduct defined by a legislative enactment is usually minimum standard and special
circumstances may support finding of negligence, despite compliance, if reasonable person would have
taken additional precautions but when facts pose a normal situation, within that contemplated by
enactment, it may be found, and can be ruled as matter of law, that actor has done his full duty by
complying with statute.
2. Innkeepers.
Renters of motel room failed to present facts which would indicate special circumstances requiring
affirmative action on part of motel beyond ordinance requiring deadbolt locks, and thus, renters could not
recover from motel when they were assaulted and robbed by an unknown assailant in their motel room
particularly since renters failed to present sufficient and specific facts that owner could reasonably have
foreseen or anticipated the criminal conduct in question.
OPINION
By the Court, Manoukian, J.:
On January 10, 1978, Appellants Helen and Kenneth Montgomery rented a room at
respondent Royal Motel, a fourteen unit building in Las Vegas. On February 1, the
Montgomerys had just returned to their motel room when they were assaulted and robbed by
an unknown assailant.
98 Nev. 240, 241 (1982) Montgomery v. Royal Motel
and robbed by an unknown assailant. The door to their room was not self-locking, but was
equipped with an operable deadbolt latch. The door was not locked when the assault
occurred, although the Montgomerys customarily locked the door immediately upon entry.
The trial court granted respondent's motion for summary judgment upon respondent's
presentation of evidence of a Las Vegas municipal ordinance, 4-10-2, Housing Security
Standards, which the trial court found set the applicable standard of conduct for the motel
proprietors. The ordinance requires deadbolt locks, but not self-locking doors at units such as
those at respondent's motel.
1

The main issue confronting us is whether the trial court erred in its determination that, as a
matter of law, respondent motel met the required standard of conduct in protecting its guests
from criminal acts of third parties by complying with the ordinance.
The ordinance applies to all residential type buildings and Section 1 clearly applies to
motels with individual entrances such as the Royal. Appellants contend, however, that the
ordinance establishes only a minimum standard of conduct and that reasonably prudent
conduct might require additional precautions under the circumstances (i.e., a self-locking
door), raising a question of fact for the jury.
Courts are reluctant to grant summary judgment in negligence cases because the issue of
the reasonableness of a defendant's conduct or standard of conduct is usually a question of
fact for the jury. Thomas v. Bokelman, 86 Nev. 10, 462 P.2d 1020 (1970); Pickering v. State,
557 P.2d 125 (Hawaii 1976). Nonetheless, when plaintiff as a matter of law cannot recover,
defendant is entitled to a summary judgment. Thomas v. Bokelman, supra at 13, 462 P.2d at
1022. Although we sympathize with appellants' plight, we find that summary judgment was
appropriate in this case.
____________________

1
The ordinance, 4-10-2, Housing Security Standards, reads in pertinent part:
(A) The following requirements shall apply to all residential type buildings including those existing,
those new and those to be constructed in order to provide the maximum possible security from criminal
actions to the permanent and transient occupants thereof, and to their possessions.
1. Dwellings, single housing units. These requirements shall apply to all housing unitsdetached,
attached to or within a buildinghaving individual entrances immediately accessible from the outside
without other intervening entrance doors.
. . .
(b) Dead bolts openable without key from the inside shall be provided on all housing unit entrance
doors.
98 Nev. 240, 242 (1982) Montgomery v. Royal Motel
The Restatement (Second) of Torts (1965), 285 states that the standard of conduct may
be established by a legislative enactment or administrative regulation; 286 suggests that the
court as a matter of law can adopt a legislative enactment as the standard of conduct if
various criteria are met.
2

[Headnote 1]
We recognize that the standard of conduct defined by a legislative enactment is usually a
minimum standard and that special circumstances may support a finding of negligence,
despite compliance, if a reasonable person would have taken additional precautions. See
Pickering v. State, supra; Jones v. Hittle Service, Inc., 549 P.2d 1383 (Kan. 1976);
Restatement (Second) Torts, 288C (1965).
3
But when the facts pose a normal situation,
within that contemplated by the enactment, it may be found, and can be ruled as a matter of
law, that the actor has done his full duty by complying with the statute. . . . Prosser on Torts,
36 (4th ed. 1971). See also, Jones v. Hittle, supra.
[Headnote 2]
In the affidavits in opposition to the motion for summary judgment, the Montgomerys
failed to present facts which would indicate that the case posed special circumstances
requiring affirmative action beyond the requirements of the ordinance.
____________________

2
The Restatement view permits adopting a legislative enactment if the purpose of the act is exclusively or in
part:
(a) to protect a class of persons which includes the one whose interest is invaded, and
(b) to protect the particular interest which is invaded, and
(c) to protect that interest against the kind of harm which has resulted, and
(d) to protect that interest against the particular hazard from which the harm results.
Restatement (Second)Torts, 286 (1965).
We are satisfied that the ordinance meets the suggested criteria of 286.

3
The comment to 288C is illustrative:
a. Where a statute, ordinance or regulation is found to define a standard of conduct for the purposes
of negligence actions, as stated in 285 and 286, the standard defined is normally a minimum standard,
applicable to the ordinary situations contemplated by the legislation.
. . .
Where there are no . . . special circumstances, the minimum standard prescribed by the legislation or
regulation may be accepted by the triers of fact, or by the court as a matter of law, as sufficient for the
occasion; but if for any reason a reasonable man would take additional precautions, the provision does
not preclude a finding that the actor should do so.
98 Nev. 240, 243 (1982) Montgomery v. Royal Motel
ordinance. So far as appears, the proprietor had no reason to suspect that an attacker was near
the premises, there was no showing of a history of prior similar incidents, nor were the
Montgomerys deceived by the door's appearance. Compare, Peterson v. Salt River
Agricultural Improvement Power District, 391 P.2d 567 (Ariz. 1964); Potter v. Battle Creek
Gas Co., 185 N.W.2d 37 (Mich. 1970).
Finally, courts have repeatedly held that when a criminal act is precipitous, an owner will
not be liable for injuries to invitees since the act constitutes an unforeseeable intervening
force. See, e.g, Thomas v. Bokelman, supra; Totten v. More Oakland Residential Housing,
Inc., 134 Cal.Rptr. 29 (Cal.App. 1977); Brewer v. Roosevelt Motor Lodge, 295 A.2d 647
(Me. 1972). Compare, Kline v. 1500 Massachusetts Avenue Apartment Corp., 439 F.2d 477
(D.C.Cir. 1970); Garzilli v. Howard Johnson's Motor Lodges, Inc., 419 F.Supp. 1210
(E.D.N.Y. 1976); O'Hara v. Western Seven Trees Corp. Intercoast Management, 142
Cal.Rptr. 487 (Cal.App. 1978). Here, appellants failed to present sufficient and specific facts
that respondent could reasonably foresee or anticipate the criminal conduct in question, and
the probability of injury resulting therefrom. See NRCP 56(e).
We affirm the judgment below.
Gunderson, C. J., and Springer and Mowbray, JJ., and Zenoff, Sr. J.,
4
concur.
____________________

4
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 243, 243 (1982) Turner v. State
ROOSEVELT TURNER, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 12430
June 3, 1982 645 P.2d 971
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Defendant was convicted in the district court of robbery, kidnapping, and battery with
intent to commit robbery, each with use of a deadly weapon, and he appealed. The Supreme
Court held that: (1) evidence was sufficient to find defendant guilty of first degree kidnapping
as a separate associated offense, and (2) error in admitting statement in violation of
defendant's right to remain silent was harmless beyond a reasonable doubt.
98 Nev. 243, 244 (1982) Turner v. State
defendant's right to remain silent was harmless beyond a reasonable doubt.
Affirmed.
Manos & Cherry, and Mark Bailus, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney;
James Tufteland, and Randy Pike, Deputy District Attorneys, Clark County, for Respondent.
1. Kidnapping.
Separate conviction of kidnapping will lie if movement of victims is not incidental to associated offense
and there is a substantially increased risk of harm beyond that necessarily present in the associated offense.
NRS 200.310, subd. 1.
2. Kidnapping.
Whether movement of victim is incidental to associated offense and whether it increased the risk of harm
to the victims, so that separate conviction of kidnapping will lie, are questions of fact to be determined by
the trier of fact in all but the clearest cases. NRS 200.310, subd. 1.
3. Kidnapping.
Evidence was sufficient to sustain conviction for first degree kidnapping as a separate associated offense
in case in which, during robbery, victims were moved to various rooms throughout residence and
physically harmed. NRS 200.310, subd. 1.
4. Criminal Law.
Not every constitutional error mandates reversal; where independent evidence of guilt is overwhelming,
improperly admitted evidence is harmless error and resulting conviction will not be reversed.
5. Criminal Law.
Error in admitting defendant's inculpatory statement, made in conversation with police officer which
continued after defendant informed officer that he didn't want to talk about it, was harmless since
defendant was positively identified by both victims as one of their assailants. U.S.C.A.Const. Amend. 5.
OPINION
Per Curiam:
Following a jury trial, appellant Roosevelt Turner was convicted of two counts of robbery,
two counts of kidnapping, and two counts of battery with the intent to commit robbery, each
with the use of a deadly weapon.
One night, at approximately 11:30 p.m., the two victims were forced, at gunpoint, to admit
appellant and his cohort into their apartment. They were later joined by a third intruder.
During the lengthy ordeal which followed, the victims were tied, threatened with death,
moved to various rooms throughout the residence, and physically harmed.
98 Nev. 243, 245 (1982) Turner v. State
throughout the residence, and physically harmed. Under coercion, the victims revealed the
location of their money and jewelry. Appellant and his companions left the premises only
after coercing a promise from one of the victims to obtain more money.
On appeal, appellant contends it was error to find him guilty of first degree kidnaping as a
separate associated offense. See NRS 200.310(1).
1
We disagree.
[Headnotes 1-3]
A separate conviction of kidnaping will lie if the movement of the victims is not incidental
to the associated offense and there is a substantially increased risk of harm beyond that
necessarily present in the associated offense. Wright v. State, 94 Nev. 415, 581 P.2d 442
(1978). Whether the movement of the victims is incidental to the associated offense and
whether it 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. Sheriff v. Medberry, 96 Nev. 202, 606 P.2d 181
(1980). In the case at bar, the evidence does not warrant interference with the jury's
determination.
We also disagree with appellant's claim that it was prejudicial error to admit into evidence
his inculpatory statement suggesting his presence at the crimes.
While at the police station to retrieve his property, appellant was interviewed by the police
officer connected with the investigation of the crimes.
2
During this interview, and before the
statement was made, appellant informed the officer that he didn't want to talk about it.
____________________

1
NRS 200.310(1)(1959)(amended July 1, 1979) in pertinent part, reads as follows:
200.310 1. 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 the purpose of committing extortion or robbery upon
or from such individual, . . . shall be deemed guilty of kidnaping in the first degree.

2
At trial, the officer testified as follows:
Question. And what was it specifically that you asked or stated to him that prompted his response that
you have given us, as near to the exact words as you can tell us?
Answer. I told him, I says, If you get up there before the jury and they identify you as the person
that stuck that gun up her and says, see how this goes off, I told him, they will hang you.
Question. And that's as near as you can tell what your words to him were?
Answer. Yes, sir.
Question. And what was his response to that?
Answer. It was Will.
98 Nev. 243, 246 (1982) Turner v. State
[Headnote 4]
The respondent concedes that the officer's continued conversation with appellant is a
violation of appellant's constitutional right to remain silent. Nevertheless, not every
constitutional error mandates reversal. Chapman v. California, 386 U.S. 18 (1967). Where the
independent evidence of guilt is overwhelming, the improperly admitted evidence is harmless
error and the resulting conviction will not be reversed. Accord Chapman v. California, supra.
See Corbin v. State, 97 Nev. 245, 627 P.2d 862 (1981).
[Headnote 5]
In the instant case, appellant was positively identified by both victims as one of their
assailants. The case against appellant does not rest solely upon circumstantial evidence, but is
predicated upon the testimony of eyewitnesses to the crimes. See Corbin v. State, supra.
Accordingly, the error was harmless beyond a reasonable doubt.
The numerous other issues raised on appeal have been considered and are without merit or
fail to demonstrate prejudicial error.
The judgment of the district court is affirmed.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to participate in this case,
pursuant to Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 246, 246 (1982) Hendricks v. Perkins
JOHN HENDRICKS and HELEN HENDRICKS, Appellants,
v. CLYDE PERKINS, Respondent.
No. 12489
June 3, 1982 645 P.2d 973
Appeal from a judgment quieting title to real property, Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
Appeal was taken from a judgment of the district court quieting title to defendant to
undivided one-half interest in real property. The Supreme Court held that: (1) there was
substantial evidence that defendant, claiming through his parents, was the legal owner of an
undivided one-half interest in the land in question, although the quit claim deed executed
from the last recorded titleholder to the parents was lost, and {2) where the first clause in
the deed established the parties' intent to convey an undivided one-half interest in the
water rights appurtenant to the interest in land conveyed, a subsequent clause in the
deed conveying all water rights as adjudicated by the state engineer was limited to the
extent of the water rights initially conveyed in the deed.
98 Nev. 246, 247 (1982) Hendricks v. Perkins
question, although the quit claim deed executed from the last recorded titleholder to the
parents was lost, and (2) where the first clause in the deed established the parties' intent to
convey an undivided one-half interest in the water rights appurtenant to the interest in land
conveyed, a subsequent clause in the deed conveying all water rights as adjudicated by the
state engineer was limited to the extent of the water rights initially conveyed in the deed.
Affirmed.
Deaner & Deaner, and Michael A. Davis, Las Vegas, for Appellants.
Jones, Jones, Bell, Close & Brown, Las Vegas, for Respondent.
1. Appeal and Error.
Before the district court will be reversed, the record must reveal that its judgment was clearly erroneous
and not based upon substantial evidence.
2. Quieting Title.
There was substantial evidence in quiet title action that defendant, claiming through his parents, was the
legal owner of an undivided one-half interest in the land in question, although the quit claim deed executed
from the last recorded titleholder to the parents was lost; the record showed the consideration that the
parents paid for the land, that the parents had paid taxes on the land through 1972 and that the defendant
had paid the taxes thereafter, and that the defendant and his parents had continually exercised acts of
ownership over the land.
3. Waters and Water Courses.
Where the first clause in a deed established the parties' intent to convey an undivided one-half interest in
the water rights appurtenant to the interest in land conveyed, a subsequent clause in the deed conveying all
water rights as adjudicated by the state engineer was limited to the extent of the water rights initially
conveyed in the deed.
OPINION
Per Curiam:
Appellants, John and Helen Hendricks, challenge a judgment quieting title to Government
Lots 2 and 3 in Moapa, Nevada, in favor of respondent, Clyde Perkins. Appellants contend
the court erred in finding respondent is the owner of an undivided one-half interest in the land
and water rights at issue.
In February of 1954, appellants purchased an undivided one-half interest in Government
Lots 2 and 3, containing 80 acres more or less," from Frank Perkins.1 The record reflects
appellants were advised, at the time of sale, that respondent's father, Joe Perkins, owned
the other one-half interest in the S0-acre parcel now in question.
98 Nev. 246, 248 (1982) Hendricks v. Perkins
more or less, from Frank Perkins.
1
The record reflects appellants were advised, at the time
of sale, that respondent's father, Joe Perkins, owned the other one-half interest in the 80-acre
parcel now in question.
Respondent's interest in the property at issue dates back to 1918, when his parents, Joe and
Kathryn Perkins, originally purchased an undivided one-half interest in Government Lots 2
and 3, from George S. Auerbach. The record establishes that Auerbach was paid a total of
$800 in exchange for a quit claim deed to the property. However, the Perkinses failed to
record the quit claim deed allegedly executed by the parties. Consequently, George Auerbach
is the last recorded titleholder to the property in question.
Respondent contends the original quit claim deed executed by Auerbach and his parents
has been lost. At trial, respondent introduced a copy of the quit claim deed which recited the
parties' names and described the land in question. The quit claim deed produced by
respondent was not signed or recorded by the parties; it was merely a copy of the original
deed which was allegedly lost.
In Langworthy v. Coleman, 18 Nev. 440 (1884), this court held that a deed is the best
evidence of a conveyance of property, but if testimony is admitted relating to the existence of
such a deed, it cannot be said there was no evidence of a conveyance of the title to the grantee
by the grantor. Likewise, in Miami Holding Corporation v. Matthews, 311 So.2d 802
(Fla.Dist.Ct.App. 1975), the court held that where a deed has been lost and its contents
established, it will be presumed that it was executed in conformity with all the requirements
of the law.
Here, there is substantial evidence in the record that respondent is the legal owner of an
undivided one-half interest in Government Lots 2 and 3. Respondent introduced evidence that
his parents paid George Auerbach $800 in consideration for the land in question. Moreover,
respondent's parents paid taxes on the property from 1920 through 1972; thereafter
respondent paid the taxes. The record also establishes that respondent and his parents
continually exercised acts of ownership over the property from 1918 until present.
[Headnotes 1, 2]
Before the district court will be reversed, the record must reveal that the judgment was
clearly erroneous and not based upon substantial evidence.
____________________

1
Originally, Kathryn and Joe Perkins, respondent's parents, owned the entire 80-acre parcel. In 1946, the
Perkinses sold an undivided one-half interest in the land to their nephew Frank Perkins.
98 Nev. 246, 249 (1982) Hendricks v. Perkins
upon substantial evidence. Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 105 (1973). The record
does not establish the district court erred in finding respondent is the owner of an undivided
one-half interest in Government Lots 2 and 3.
Next, appellants contend the district court erred in granting respondent an undivided
one-half interest in the water rights of Government Lots 2 and 3. Appellants claim an absolute
right to all the water affecting the property, pursuant to their land sales agreement with Frank
Perkins, and an adjudication of water rights issued by the State Engineer.
In essence, appellants contend Joe and Kathryn Perkins conveyed all of their water rights
in Government Lots 2 and 3, when they sold an undivided one-half interest in the property to
Frank Perkins in 1946. Appellants claim Frank Perkins, in turn, transferred all of the water
rights to them when they purchased the property in 1954.
The deed transferring an undivided one-half interest in the property from Joe and Kathryn
Perkins to Frank Perkins, provides in pertinent part:
All the lots 4 and 5 of the North West Quarter (1/4) and Lot 6 of the South West
Quarter (1/4) and the South East Quarter (1/4) of the North East Quarter of Section 6,
containing one hundred and eight and thirty two hundredths (108.32) acres also an
undivided one half interest in Lots 2 and 3 in said section 6, all in Township 15 S. R. 66
E., M.D.B. & M. together with all water and water rights heretofor and now
appurtenant to said above described lands. . . .
Also all water rights as adjudicated by the State Engineer of Nevada in the 10th
Judicial Court of the State of Nevada, Clark County, Nevada dated March 24th 1920.
Here, the first clause in the Joseph Perkins to Frank Perkins deed clearly conveys an
undivided one-half interest in the water rights of Government Lots 2 and 3. It is the reference
to the adjudication of water rights by the State Engineer, upon which appellants rely in
claiming exclusive title to all the water rights.
In Fogus v. Ward, 10 Nev. 269 (1875), this court was faced with a similar problem in
construing a deed relating to water rights. The facts in Fogus reflect that the deed in question
granted an undivided one-half interest in a certain ditch and flume. The last clause of the
deed stated, and all the water of said Truckee River which may or can be led or conveyed
through said ditch and flume. On appeal, this court concluded the grantor specifically
limited the deed to an undivided one-half of the property and water privileges. The court
noted: "[W]e think the first clause in the premises of the deed clearly indicates the
intention of the parties thereto, and that the subsequent general clause must be
interpreted as limiting the extent of the grant to its specific and particular description."
98 Nev. 246, 250 (1982) Hendricks v. Perkins
[W]e think the first clause in the premises of the deed clearly indicates the intention of the
parties thereto, and that the subsequent general clause must be interpreted as limiting the
extent of the grant to its specific and particular description.
[Headnote 3]
In the instant case, the first clause in the deed clearly establishes the parties' intent to
convey an undivided one-half interest in the water rights appurtenant to the land in question.
Thus, the subsequent clause in the deed referring to water rights adjudicated by the State
Engineer is limited to the extent of the water rights initially conveyed in the deed.
Accordingly, we affirm the judgment of the district court.
Gunderson, C. J., Manoukian, Springer, and Mowbray, 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.
____________
98 Nev. 250, 250 (1982) Yoscovitch v. Wasson
SANDRA ANN YOSCOVITCH, Appellant, v. DUANE WASSON, Individually;
CAROLYN C. JARA and JOHN JOSEPH JARA, Individually and dba
7-11 MARKET, Respondents.
No. 12561
June 3, 1982 645 P.2d 975
Appeal from judgment dismissing appellant's action with prejudice, Second Judicial
District Court, Washoe County; John W. Barrett, Judge.
Motorcycle passenger, who allegedly was injured when motorcycle collided with
automobile, brought action to recover against minor driver of automobile and persons who
allegedly had sold alcoholic beverages to driver. The district court granted such persons'
motion to dismiss, and passenger appealed. The Supreme Court held that: (1) passenger could
not recover against such persons on theory that there was causal nexus between the sale of
alcoholic beverages and the collision, and (2) alleged violation of statutes prohibiting sale of
liquor to minors did not give rise to civil liability.
Affirmed.
[Rehearing denied July 30, 1982]
W. H. Tobeler and Seymour H. Patt, Reno, for Appellant.
98 Nev. 250, 251 (1982) Yoscovitch v. Wasson
Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane, and Frann Moore, Reno, for
Respondents.
1. Intoxicating Liquors.
Motorcycle passenger, who allegedly was injured when motorcycle collided with automobile, could not
recover against persons, who sold alcoholic beverages to automobile driver, on theory that there was casual
nexus between such sale and the collision; proximate cause of the injury was to be deemed the driver's
consumption of liquor, rather than its sale.
2. Intoxicating Liquors.
Violation of statutes prohibiting sale of liquor to minors would not be negligence per se, and, thus, an
alleged violation of such statute by persons, who were alleged to have sold liquor to minor driver of
automobile subsequently involved in collision with motorcycle, did not give rise to civil liability. NRS
202.055.
OPINION
Per Curiam:
Appellant, Sandra Ann Yoscovitch, allegedly sustained injuries when the motorcycle on
which she was a passenger collided with an automobile driven by Duane Wasson. Her
complaint alleged that prior to the collision, Wasson, a minor, purchased alcoholic beverages
at a 7-11 market owned by respondents Carolyn and John Jara, and that he thereafter became
intoxicated, ran a stop sign, and caused the collision. Appellant filed suit not only against
Wasson, who failed to answer her complaint, but against respondents. It apparently is
appellant's theory that she can show a causal nexus between the sale of liquor and the later
collision, and that respondents negligently failed to inquire adequately as to Wasson's age.
Respondents filed a motion to dismiss for failure to state a claim upon which relief could be
granted. The district court granted respondents' motion. We affirm the judgment.
[Headnote 1]
In Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969), we held that a
liquor vendor cannot be held responsible to third persons for injury or death due to an
inebriated driver's conduct. The proximate cause of the injury is deemed to be the purchaser's
consumption of liquor, rather than its sale. See Cole v. Rush, 289 P.2d 450 (Cal. 1955); and
Parsons v. Jow, 480 P.2d 396 (Wy. 1971). Here, as in Hamm v. Carson City Nugget, Inc.,
supra, if civil liability is to be imposed upon a vendor who sells liquor to an inebriated
person, or a minor, it should be accomplished by legislative act. See also Mills v. Continental
Parking Corp., 86 Nev. 724, 475 P.2d 673 (1970).
98 Nev. 250, 252 (1982) Yoscovitch v. Wasson
[Headnote 2]
Additionally, appellant contends the district court erred in concluding that she could not
pursue a civil action based on alleged criminal violations of state statutes prohibiting the sale
of liquor to minors.
1
Appellant suggests that respondents' alleged violations of criminal
statutes prohibiting the sale of liquor to minors, render them negligent per se.
In Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969), and in Davies v.
Butler, 95 Nev. 763, 602 P.2d 605 (1979), we specifically rejected the argument that violation
of a penal statute regulating the sale of intoxicating liquor constitutes negligence per se.
Accordingly, we must conclude that an alleged violation of NRS 202.055 and City of Reno
Municipal Code 4.04.240(a) does not give rise to civil liability.
Affirmed.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

1
The statutes at issue provide:
NRS 202.055:
Every person who knowingly sells, gives or otherwise furnishes intoxicating liquors to a person under
the age of 21 years, is guilty of a misdemeanor.
City of Reno municipal Code 4.04.240(a):
It shall be unlawful for any person other than a parent, guardian or physician to sell, deliver or give
away or otherwise furnish any alcoholic beverages to any person under the age of twenty-one years, or
leave or deposit any such alcoholic beverage in any place with the intent that the same shall be procured
by any person under the age of twenty-one years.

2
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to participate in this case,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 253, 253 (1982) NL Industries v. Eisenman Chemical Co.
NL INDUSTRIES, INC.; and THE 25 CORPORATION, INC., Appellants, v. EISENMAN
CHEMICAL COMPANY; and MARVEL-JENKINS RANCHES, a Copartnership Composed
of LOUISE M. MARVEL, THE ESTATE OF ERNEST R. MARVEL, RICHARD T.
MARVEL, MARY (aka MARY O.) MARVEL, THOMAS J. MARVEL, ROSITA (aka
ROSITA P.) MARVEL, JOHN W. MARVEL and WILBURTA MARVEL, Respondents.
No. 13646
June 3, 1982 645 P.2d 976
Appeal from Order Permitting Immediate Occupancy. Fourth Judicial District Court, Elko
County; Joseph O. McDaniel, Judge.
Owner of mineral lease appealed from judgment of the district court which granted mining
company exclusive and immediate possession of the property. The Supreme Court,
Manoukian, J., held that: (1) holding of mineral reserves is a mining use, and (2) immediate
extraction and production of mineral resources is not a more necessary public use than the
holding of ore in reserve for future mining so as to permit one intending immediate extraction
to condemn a mineral interest held by a company intending to hold the ore in reserve for
future mining.
Reversed.
[Rehearing denied August 17, 1982]
Hill, Cassas, deLipkau & Erwin, Reno; Marshall, Bratter, Greene, Allison & Tucker, and
Richard L. Bond, New York, New York, for Appellant NL Industries, Inc.
C. E. Horton, Ely; Davis, Graham & Stubbs and Neil Peck, Denver, Colorado, for
Appellant The 25 Corporation, Inc.
Hoy & Miller, Chartered, Elko; Van Cott, Bagley, Cornwall & McCarthy and E. Scott
Savage, Salt Lake City, Utah, for Respondent Eisenman Chemical Company.
John E. Marvel, Elko; F. Alan Fletcher, Salt Lake City, Utah, for Respondent
Marvel-Jenkins Ranches.
Smith & Gamble, Carson City; Evans, Kitchel & Jenckes, Phoenix, Arizona, for Amici
Curiae Phelps Dodge Corp.; ASARCO, Inc.; Sunshine Mining Co.; Milchem, Inc.; Noranda
Exploration, Inc.; and Genstar Cement and Lime Co.
98 Nev. 253, 254 (1982) NL Industries v. Eisenman Chemical Co.
Durney, Guinan & Brennan, Reno, for Amicus Curiae Dresser Industries, Inc.
Vargas & Bartlett, and Robert W. Marshall, Reno, for Amicus Curiae Duval Corp.
Ross P. Eardley, Elko, for Amici Curiae Bullion Monarch Company, and Metals
Incorporated.
Charles M. McGee, Reno, for Amicus Curiae Western Gas, Oil & Mining, Ltd.
1. Eminent Domain.
Without a right on the part of the mining company to condemn, there could be no right to immediate
occupancy.
2. Eminent Domain.
Holding of mineral reserves is a mining use for purposes of mining company's power of eminent domain.
NRS 37.030, subd. 3.
3. Eminent Domain.
Immediate extraction and production of mineral resources is not a more necessary public use than holding
ore in reserve for future mining so as to give a mining company which intends immediate extraction to take
a mineral deposit by eminent domain from a mining company which is holding the ore in reserve. NRS
37.030, subd. 3.
4. Eminent Domain.
Nevada's eminent domain statutes do not authorize condemnation of property for mining purposes when
such property is already devoted to a legitimate mining purpose and the condemnor's proposed activities
would extinguish or seriously interfere with condemnee's mining use.
5. Eminent Domain.
Mining, being of paramount interest, is a public use and the power of eminent domain can be exercised
on behalf of that industry. NRS 37.010, subd. 6.
6. Eminent Domain.
If a mining company were to purchase and hold land for a nonmining, nonpublic purpose, there would be
no justification for exempting the property from condemnation by another mining company simply because
the current owner was a mining entity. NRS 37.010, subd. 6.
7. Eminent Domain
Condemnation of property already appropriated for public use is permitted if a more necessary public use
is contemplated by the condemnor. NRS 37.030, subd. 3.
8. Eminent Domain.
Condemnation is not permitted when the condemnee's actual or contemplated public use is the same as
that proposed by the condemnor and the proposed use will defeat or seriously interfere with the
condemnee's use. NRS 37.030, subd. 3.
9. Statutes.
Court will not construe statutes in a manner which will bring about unreasonable result or result contrary
to the legislature's purpose.
98 Nev. 253, 255 (1982) NL Industries v. Eisenman Chemical Co.
OPINION
By the Court, Manoukian, J.:
Appellants NL Industries and The 25 Corporation,
1
appeal from a district court order
granting respondent Eisenman Chemical Company exclusive and immediate occupancy of a
portion of disputed mining property near Carlin, Nevada. The order grants respondent
Eisenman the right to extract and sell barite ore from the property and to use its surface areas
to complete extraction from a nearly exhausted claim. The district court issued the order
pursuant to NRS 37.100, which provides for immediate occupancy pending judgment in a
condemnation proceeding if the equities favor the plaintiff and if the relative damages which
may accrue indicate a need for immediate relief.
Appellants contend that the order was improper in this case. They allege, inter alia, that
because the disputed property was already appropriated for mining use and Eisenman's
proposed action would destroy that use, condemnation of mineral deposits was impermissible
and therefore, immediate occupancy was improperly granted. Under the circumstances
revealed by the record now before us, we agree with appellants' contention.
NL and Eisenman are competitors in the barite mining industry. Since 1973, Eisenman has
actively mined and processed barite from property known as the Lakes No. 1 unpatented lode
mining claim (hereinafter Claim).
Since 1964, The 25 Corporation, through predecessors in interest, has owned the fee
interest in the surface estate of a large cattle ranch in northeastern Nevada. The mineral rights
to The 25 Corporation's ranch are shared between The 25 Corporation and respondent
Marvel-Jenkins, each owning a 50 percent undivided interest. The 25 Corporation has the
exclusive right to lease the mineral rights and did so lease eight sections of land known as the
Lakes Property (hereinafter Property) in October 1980 to NL. NL had held contractual
rights to prospect for minerals on the ranch since 1979. The Property includes and surrounds
the smaller Claim area. The NL lease will terminate in 10 years if no minerals from the
Property have been put into commercial production by that time. The Marvel-Jenkins 50
percent interest is subject to defeasance {reverting to The 25 Corporation) if minerals are
not produced by mid-19S4.
____________________

1
Marvel-Jenkins Ranches, a co-partnership and owner of an undivided 50 percent interest in the mineral
rights on the disputed property, originally joined this action as a co-appellant. Marvel-Jenkins has since
withdrawn its appeal, having settled with Eisenman and adopted the position of co-respondent.
98 Nev. 253, 256 (1982) NL Industries v. Eisenman Chemical Co.
defeasance (reverting to The 25 Corporation) if minerals are not produced by mid-1984.
[Headnote 1]
In its complaint, Eisenman alleges that under theories of reformation, equitable estoppel
and adverse possession, it owns a 75 percent undivided mineral interest in the Claim,
including extralateral and appurtenant rights, and seeks to condemn the remaining 25 percent.
2
Alternatively, Eisenman seeks to condemn all of appellants' interest in the Claim (including
extralateral/appurtenant rights) if it is determined that Eisenman does not otherwise own a 75
percent interest. Eisenman also alleges that the lease between NL and The 25 Corporation
should be abrogated, because the two corporations were engaged in a conspiracy to deprive
Eisenman of the lease and the Marvel-Jenkins group of their 50 percent interest in the
Property's mineral rights. The only part of the complaint relevant to this appeal concerns
Eisenman's alleged right to condemn the mineral interest in the Property. Without a right to
condemn, there can be no right to immediate occupancy. Shaklee v. District Court, 636 P.2d
715 (Colo. 1981).
The Property contains an estimated eight million tons of barite ore, worth approximately
$40,000,000. The immediate occupancy order grants Eisenman the right to extract
approximately 190,000 tons of ore on the Property outside the Claim. The order also grants
Eisenman exclusive access to surface areas on the Property to conduct ancillary mining
activities to extract the ore that remains within the Claim's vertical boundaries.
Based on testimony and other evidence presented at the hearing on the immediate
occupancy order below, the district court made two findings pertinent to this appeal: (1)that
appellant NL had no plans to mine the Property immediately, but was holding the barite in
reserve for up to ten years (the initial lease period); and (2) that respondent Eisenman had a
comprehensive mining plan calling for immediate extraction of the disputed ore.
The district court based its decision to grant the order permitting immediate occupancy on
its conclusion that the holding of mineral reserves is a mining use, but the development and
mining of mineral rights or a mineral deposit is a more necessary public use."3
[Headnotes 2-4]
____________________

2
Eisenman's complaint included causes of action alleging that Eisenman owns a 75 percent interest in the
Claim through record chain of title. In an order granting partial summary judgment, the district court appears to
have resolved these causes of action in favor of appellants.
98 Nev. 253, 257 (1982) NL Industries v. Eisenman Chemical Co.
and mining of mineral rights or a mineral deposit is a more necessary public use.
3

[Headnotes 2-4]
We agree that the holding of mineral reserves is a mining use, but we reject the lower
court's determination that immediate extraction and production of mineral resources is a more
necessary public use than holding ore in reserve for future mining. It is beyond question that
Eisenman's proposed use, extraction of barite ore, will entirely destroy NL's intended use,
namely, to maintain a reserve of barite for future production. Nevada's eminent domain
statutes do not authorize condemnation of property for mining purposes when such property
is already devoted to a legitimate mining purpose and the condemnor's proposed activities
would extinguish or seriously interfere with the condemnee's mining use.
[Headnote 5]
It is well established in this state that mining, being of paramount interest, is a public use
and that the power of eminent domain can be exercised on behalf of that industry. NRS
37.010(6).
4
See also, State ex rel. Standard Slag Co. v. District Court, 62 Nev. 113, 143 P.2d
467 (1943); Goldfield Consolidated Milling & Transportation Co. v. Old Sandstorm Annex
Gold Mining Co., 38 Nev. 426, 150 P.313 (1915); Dayton Gold & Silver Mining Co. v.
____________________

3
NRS 37.030(3) provides that property already appropriated to a public use may be condemned but such
property shall not be taken unless for a more necessary public use than that to which it has been already
appropriated.

4
NRS 37.010 enumerates the public uses for which the right of eminent domain may be exercised, including:
6. Mining, smelting and related activities. Mining, smelting and related activities as follows:
(a) Mining and related activities, which are recognized as the paramount interest of this state.
(b) Roads, railroads, tramways, tunnels, ditches, flumes, pipes and dumping places to facilitate the
milling, smelting or other reduction of ores, or the working of mines, and for all mining purposes; outlets,
natural or otherwise, for the deposit or conduct of tailings, refuse, or water from mills, smelters, or other
work for the reduction of ores from mines, mill dams, natural gas or oil pipe lines, tanks or reservoirs;
also an occupancy in common by the owners or possessors of different mines, mills, smelters or other
places for the reduction of ores, or any place for the flow, deposit or conduct of tailings or refuse matter;
also necessary land upon which to erect smelters and to operate the same successfully, including
deposition of fine flue dust, fumes and smoke.
98 Nev. 253, 258 (1982) NL Industries v. Eisenman Chemical Co.
& Silver Mining Co. v. Seawell, 11 Nev. 394 (1876). The circumstances of this case,
however, create an issue of first impression for this court. Despite respondent's contentions to
the contrary, in no case has the right to condemn mineral deposits been at issue. In the
Nevada cases noted above, this court was concerned only with the right to condemn property
to conduct ancillary mining purposes for development of the condemnor's existing mine. And
we are aware of no case from any other jurisdiction which directly addresses the issue
confronting us in this appeal.
[Headnote 6]
We find nothing in Nevada statutes or prior case law that would absolutely preclude
condemnation of property for the purpose of extracting the mineral deposits contained
therein. See Milchem, Inc. v. District Court, 84 Nev. 541, 445 P.2d 148 (1968). Nor do we
find that appellants seriously question this general authority to condemn mineral deposits;
they claim, instead, that Chapter 37 does not authorize one mining company to condemn
another mining company's ore. That argument improperly focuses on the label attached to the
condemnee and condemnor. The essential determinant is the purpose which the condemnee
and condemnor intend for the property. It is conceivable that a mining company might
purchase and hold land for a non-mining, non-public purpose. Under such circumstances, we
see no justification for exempting property from condemnation simply because the owner is a
mining entity. Ultimately, when the allegations of Eisenman's complaint are fully litigated at
trial, perhaps proof will be adduced that NL is not, in fact, holding the property in question
for the purpose of mining. However, the district court found, on the basis of the record as
presently developed, that NL's use of the property was mining-related and therefore, a public
use. The prior public use doctrine is well recognized in the law of eminent domain:
[P]roperty of a private corporation devoted to a public use, although not clothed with a
specific exemption from subsequent condemnation, cannot be taken to be used in the
same manner for the same purpose by a different corporation, even by express
enactment of the legislature.
1 J. Sackman, Nichols' Law Of Eminent Domain, 2.2[9], n. 3 (rev. 3d ed. 1981). See also,
Utah Copper Co. v. Stephen Hayes Estate, Inc., 31 P.2d 624 (Utah 1934), cert. denied 295
U.S. 742 (1935).
98 Nev. 253, 259 (1982) NL Industries v. Eisenman Chemical Co.
[Headnotes 7, 8]
NRS 37.030(3) permits condemnation of property already appropriated for public use if a
more necessary public use is contemplated by the condemnor. That statute, however, cannot
support condemnation when the condemnee's actual or contemplated use is the same as that
proposed by the condemnor, and the proposed use will defeat or seriously interfere with the
condemnee's use. See Standard Slag, supra; Marsh Mining Co. v. Inland Empire Mining &
Milling Co., 165 P. 1128 (Idaho 1916); State ex rel. Butte-Los Angeles Mining Co. v. District
Court, 60 P.2d 380 (Mont. 1936).
Respondents place particular reliance on our decision in Goldfield, supra, in which we
stated that [t]he mere possibility that the land may some time in the future be used by [the
condemnee] for mining purposes will not prevent condemnation. Id. at 446, 150 P. at 319. In
the instant case, however, the record does not show that NL's mining use is a mere
possibility. The condemnee in Goldfield had ceased using the subject property for mining
purposes for some time. Here, NL had leased the property a mere five days before Eisenman
commenced this litigation. The record would not support a finding of abandonment of mining
purpose, nor, of course, did the district court make such a finding.
5

[Headnote 9]
We are also impressed by the public policy considerations which militate against the
district court decision. The record in this case, as well as the briefs of several amici curiae,
support appellants' position that mineral reserves are as important to the welfare of the mining
industry as actual production of ore, particularly for companies that produce industrial
minerals such as barite, which is primarily used to facilitate oil and gas exploration.
Development of barite mining property consumes considerable time and expense. In order to
maintain a continuous and reliable supply of barite of reasonable quality, substantial reserves
are necessary. Were we to adopt the district court's interpretation of NRS 37.030{3), we
would impose uncertainty and instability in an important Nevada industry.
____________________

5
Respondents contend that NL does not intend to mine the property, that it leased the property merely to
withhold barite from competitors and/or to circumvent the Marvel-Jenkins interest in the mineral rights. The
district court's findings do not support these contentions. Those findings accompany an order granting relief
pending final judgment; they are, therefore, interim in nature and may change after full trial on the merits. See
NRS 37.100. If Eisenman ultimately proves that NL does not have a good faith intent to mine the property, it
may be that the property would be subject to condemnation, since NL could not then be said to hold the reserves
for a legitimate mining purpose.
98 Nev. 253, 260 (1982) NL Industries v. Eisenman Chemical Co.
court's interpretation of NRS 37.030(3), we would impose uncertainty and instability in an
important Nevada industry. Such a result would thwart the clear intent of the legislature--to
encourage the development of mining in this state. We will not construe statutes in a manner
which will bring about an unreasonable result, or a result contrary to the legislature's purpose.
Thomas v. State, 88 Nev. 382, 498 P.2d 1314 (1972); Cannon v. Taylor, 87 Nev. 285, 486
P.2d 493 (1971), modified, 88 Nev. 89, 493 P.2d 1313 (1972).
We need not reach the other issues raised by appellants.
6
The district court's decision is
reversed and the order permitting immediate occupancy is vacated.
Gunderson, C. J., and Springer and Mowbray, JJ., and Zenoff, Sr. J.,
7
concur.
____________________

6
We recognize that appellants acknowledge the propriety of condemnation for ancillary mining purposes
necessary to extract ore within the Claim boundaries, if Eisenman proves ownership rights to the Claim at trial,
and if such ancillary use would not defeat NL's own current and anticipated mining uses.

7
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 260, 260 (1982) Real Estate Div. v. Jones
REAL ESTATE DIVISION, DEPARTMENT OF COMMERCE, STATE OF NEVADA,
Appellant, v. ROBERT V. JONES, Respondent.
No. 13154
GERALD RANSDELL and VICKIE L. JONES, Appellants, v. REAL ESTATE DIVISION,
DEPARTMENT OF COMMERCE, STATE OF NEVADA, Respondent.
No. 13551
June 8, 1982 645 P.2d 1371
Consolidated appeals from district court judgments reversing and sustaining decision of
the Nevada Real Estate Advisory Commission, Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Judicial review was sought of decisions of the Nevada Real Estate Advisory Commission.
The district court initially reversed and remanded, and following remand, sustained modified
action of the Commission, and consolidated appeals were taken.
98 Nev. 260, 261 (1982) Real Estate Div. v. Jones
taken. The Supreme Court held that: (1) although licensed salesman may have violated statute
by taking her briefcase containing earnest money check on ten-day family vacation,
suspending her license therefor was abuse of discretion, and (2) since case against the
salesman failed, findings against supervising broker regarding culpability, incompetence or
negligence also failed.
Case No. 13154 affirmed; Case No. 13551 reversed.
Richard H. Bryan, Attorney General, Franklin C. Hoover and Steven F. Stucker, Deputy
Attorneys General, Carson City, for Real Estate Division, Department of Commerce, State of
Nevada.
Gladstone & Stark, Las Vegas, for Robert V. Jones, Gerald Ransdell and Vickie L. Jones.
1. Brokers.
Revocation or suspension of lawfully acquired real estate salesman's or broker's license constitutes abuse
of discretion by the disciplining authority unless the record reflects support in the form of sufficient
competent evidence. NRS 645.630.
2. Brokers.
Uncorroborated hearsay evidence will not warrant revocation or suspension of a lawfully acquired real
estate salesman's or broker's license. NRS 645.630.
3. Brokers.
Although by taking her briefcase containing earnest money check on ten-day family vacation licensed
real estate salesperson may have violated statute requiring a salesman to promptly pay over a deposit to the
broker, it was abuse of discretion to suspend her license where retention of the check was inadvertent.
NRS 645.310, subd. 2, 645.630.
4. Brokers.
Where record did not support disciplinary action taken by Real Estate Advisory Commission against
licensed real estate salesman, findings against licensed broker regarding his culpability, incompetence or
negligence as supervising broker in transaction also failed. NRS 645.630.
OPINION
Per Curiam:
These consolidated appeals stem from a real estate transaction which became the subject
of a disciplinary hearing before the Nevada Real Estate Advisory Commission
(Commission). At the conclusion of the hearing the Commission revoked the real estate
corporate broker's license of Gerald Ransdell and the salesman's licenses of husband and
wife, Robert Jones and Vickie Jones.
98 Nev. 260, 262 (1982) Real Estate Div. v. Jones
Ransdell and the salesman's licenses of husband and wife, Robert Jones and Vickie Jones.
Thereafter, under a petition for review, the district court reversed the Commission's decision
as to Robert Jones and remanded for further consideration the Commission's ruling against
Ransdell and Vickie Jones. The Commission then appealed to this Court for relief from the
district court's decision and order. Upon remand, the Commission modified its initial ruling
and suspended the licenses of Ransdell and Vickie Jones for the period of one year. The latter
parties now urge this Court to reverse the decision of the district court sustaining the modified
action of the Commission. We find ample basis for affirming the district court's initial ruling
as it pertained to Robert Jones, but are compelled to reverse its affirmance of the
Commission's modified decision regarding Ransdell and Vickie Jones.
The distillate of the issues on appeal requires this Court to determine whether the district
court erred: (1) in finding an abuse of discretion on the part of the Commission in its initial
rulings; and (2) in finding substantial evidence in the record to support the Commission's
one-year suspension of the licenses of Ransdell and Vickie Jones.
The operative facts surround a real estate transaction between Capital Development
Corporation (Capital) as purchaser, and Theodore and Mildred Ortiz as sellers of a five acre
parcel of unimproved land situated in Henderson, Nevada. Vickie Jones presented the
purchase offer and a photocopy of a $1,000 earnest money check made payable to the
intended escrow depositary, Fidelity Title Company, to the listing broker, Fidelity Realty
Company.
1
Mrs. Jones was a licensed salesman employed by Mojave Realty and Investment
Company (Mojave Realty). The aforesaid offer was given to Ed St. John, a salesman
employed by Fidelity Realty, who thereafter opened escrow at Fidelity Title Company. The
written offer and acceptance agreement referenced receipt of $1,000 by Capital as earnest
money to be applied against the total purchase price, and the maker of the earnest money
check was also Capital. The escrow instructions referred to the earnest money as being with
the broker and required its deposit into escrow prior to closing. Before escrow opened, Mrs,
Jones inadvertently took the earnest money check with her on vacation. In the meantime,
problems surfaced concerning the transaction and the purchaser decided to cancel
escrow.
____________________

1
There is no relationship between Fidelity Title Company and Fidelity Realty Company.
98 Nev. 260, 263 (1982) Real Estate Div. v. Jones
meantime, problems surfaced concerning the transaction and the purchaser decided to cancel
escrow. When Mrs. Jones returned, her husband, Robert Jones, informed her that the
transaction would not close and secured the return of the earnest money check. Thereafter a
complaint was filed by sellers and the disciplinary hearing ensued.
As a predicate for its revocation of the three licenses of the petitioners below, the
Commission in substance concluded that: (1) Petitioners Robert and Vickie Jones violated
NRS 645.630
2
by concealing their status as agent and principals in the transaction and by
their nondisclosure of the relationship between Capital, the purchaser, and Mojave Realty, the
purchaser's agent;
3
(2) that petitioners Ransdell and Vickie Jones failed, intentionally or
otherwise, to deposit in escrow or with Mojave Realty the $1,000 earnest money payment as
required by NRS 645.3104 and 645.630;5 and {3) that petitioner Ransdell improperly
supervised the Mojave Realty sales personnel.
____________________

2
NRS 645.630 provided in part at the time pertinent to this action:
The commission may suspend, revoke or reissue subject to conditions any license issued under the
provisions of this chapter at any time where the licensee has, by false or fraudulent representation,
obtained a license, or where the licensee, whether or not acting as a licensee, is found to be guilty of:
. . .
4. Acting for more than one party in a transaction without the knowledge of all parties for whom he
acts.
. . .
14. Negligence, or failure to disclose or to ascertain and disclose to any person with whom such
licensee is dealing, any material fact, data or information concerning or relating to the property with
which such licensee is dealing, which such licensee knew.
. . .
16. The claiming or taking by a licensee of any secret or undisclosed amount of compensation,
commission or profit or the failure of a licensee to reveal to the employer of such licensee the full amount
of such licensee's compensation, commission or profit under any agreement authorizing or employing
such licensee to sell, buy or exchange real estate for compensation or commission prior to or coincident
with the signing of such agreement evidencing the meeting of the minds of the contracting parties,
regardless of the form of such agreement, whether evidenced by documents in an escrow or by any other
or different procedure.
. . .

3
All three licensees were corporate officers of Capital Development Corporation, the stock of which was
owned entirely by Robert and Vickie Jones. Mojave Realty and Investment Company was totally owned by
Capital Development Corporation. At the time of the transaction, Robert and Vickie Jones were both real estate
salesmen employed by Mojave Realty.
98 Nev. 260, 264 (1982) Real Estate Div. v. Jones
by NRS 645.310
4
and 645.630;
5
and (3) that petitioner Ransdell improperly supervised the
Mojave Realty sales personnel. The district court determined, upon hearing the petition for
review, that the finding of nondisclosure or concealment was unsupported by substantial
competent evidence and that there was insufficient evidence upon which to revoke the license
of Robert Jones. Additionally, the district court held that error arose by reason of the
Commission's refusal to supply petitioners a copy of the written complaint submitted by Mr.
and Mrs. Ortiz as required by NRS 645.680(4)
6
and by its denial of a continuance of the
hearing under the circumstances. We merely note, without need for further discussion, our
concurrence with the holding of the district court in each of the foregoing particulars. In our
view, however, the entire matter should have been reversed on the record as to all of the
licensees.
[Headnotes 1, 2]
Our task on appeal has been to search the record for a foundation of substantial evidence
upon which to validate the rulings of the Commission. NRS 233B.121(8). It is settled that a
revocation or suspension of a lawfully acquired license constitutes an abuse of discretion by
the disciplining authority unless the record reflects support in the form of sufficient
competent evidence. Uncorroborated hearsay evidence does not measure up to the required
standard. Walker v. City of San Gabriel, 129 P.2d 349 (Cal. 1942); Biegler v. Nevada Real
Est. Div., 95 Nev. 691, 601 P.2d 419 (1979).
____________________

4
NRS 645.310 provided in part at the time pertinent to this action:
1. All deposits accepted by every person, copartnership, corporation or association holding a real
estate broker's license under the provisions of this chapter, which deposits are retained by such real estate
broker pending consummation or termination of the transaction involved, shall be accounted for in the
full amount thereof at the time of the consummation or termination.
2. Every real estate salesman, promptly on receipt by him of a deposit on any transaction in which he
is engaged on behalf of a broker, shall pay over the deposit to the real estate broker.

5
NRS 645.630(7) provided at the time pertinent to this action:
7. Failing, within a reasonable time, to account for or to remit any moneys coming into his possession
which belong to others.

6
NRS 645.680(4) provided at the time pertinent to this action;
4. The licensee shall be given at least 30 days' prior notice in writing by the real estate division of the
date, time and place of the hearing, which notice shall contain an exact statement of the charges filed,
together with a copy of the complaint and copies of any and all communications, reports, affidavits or
depositions in possession of the real estate division relevant to the complaint.
98 Nev. 260, 265 (1982) Real Estate Div. v. Jones
[Headnote 3]
In the instant case, the Commission found that Vickie Jones fraudulently misrepresented
the existence of earnest money and the deposit thereof in trust with Mojave Realty. No
competent evidence supportive of such finding exists in the record. To the contrary, the
sellers and their agent were provided a photocopy of a check made payable to Fidelity Title
Company and were informed via the written offer that it was receipted by the buyer, Capital.
As far as the record reveals, Ed St. John of Fidelity Realty Company informed the title officer
to indicate in the escrow instructions that the earnest money was with the broker. It is clear
that the check made payable to the title company could not have been deposited in Mojave
Realty's trust account and in any event it was to be delivered to Fidelity Title Company prior
to the close of escrow. There is no evidence suggesting the check would have been
dishonored upon presentment. Based upon the aforementioned factual findings of
nondisclosure and fraudulent misrepresentation of earnest money, neither of which have
substantial competent evidential support, the Commission entered conclusions of law against
Vickie Jones regarding, inter alia, false promises, failure to account, nondisclosure and
failure to deal fairly. All are without substantial basis in the record. It is true, of course, that
Vickie Jones may have violated the literal terms of NRS 645.310(2) by taking her briefcase
containing the earnest money check on the ten-day family vacation. It is unrefuted on the
record, however, that the retention of the check by Mrs. Jones was inadvertent. Such human
frailty, in the context of the single incident here presented, did not, therefore, rise to the level
of perfidy, incompetence or negligence which would justify the imposition of either a
revocation or suspension of her license. In short, the record does not reflect evidence of the
kind of conduct described by the Commission's findings of fact and conclusions of law
regarding Vickie Jones. Whether evidence of a substantial nature could have been produced
against her is futile conjecture. The Real Estate Division, having the burden of proof, elected
to content itself with uncorroborated hearsay and inconclusive affidavits. No attempt was
made by the Real Estate Division to have the complaining witnesses or the knowledgeable
salesman for Fidelity Realty Company present at the hearing. The resulting evidence did not
support the exercise of the Commission's discretion in the revocation or suspension of
petitioners' licenses. Walker v. City of San Gabriel, supra.
98 Nev. 260, 266 (1982) Real Estate Div. v. Jones
[Headnote 4]
Since we have ruled that the record does not support the Commissions's action against
Robert and Vickie Jones it follows that the findings against Ransdell regarding his
culpability, incompetence or negligence as supervising broker in the transaction must also
fail. Other issues not specifically addressed in this opinion are deemed to be without merit.
The decision of the Commission both initially and as later modified does not meet the
substantial evidence test. Accordingly, the judgment of the district court is affirmed as to case
number 13154, and reversed as to case number 13551.
____________
98 Nev. 266, 266 (1982) Franklin v. State
ALAN DARRELL FRANKLIN, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 13130
June 15, 1982 646 P.2d 543
Appeal from judgment of conviction; Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Defendant was convicted in the district court of burglary, robbery with use of deadly
weapon and two counts of attempted sexual assault with use of deadly weapon. He appealed.
The Supreme Court, Manoukian, J., held that: (1) trial court's rejection of requested
instruction regarding defendant's failure to testify constituted error; however, error was
harmless, and (2) admission of evidence indicating defendant's refusal to answer question by
police officer constituted error; however, error was harmless.
Affirmed.
Morgan D. Harris, Public Defender, and Terrence M. Jackson, Deputy Public Defender,
Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
James Tufteland and James W. Erbeck, Deputy District Attorneys, Clark County, for
Respondent.
1. Courts.
In cases determining complete retroactivity or prospectivity of new constitutional rules, factors to be
considered are purpose of rule, reliance on prior, contrary law, and effect retroactive application would
have on administration of justice.
98 Nev. 266, 267 (1982) Franklin v. State
2. Courts.
Decision in Carter v. Kentucky requiring courts to honor request for cautionary instructions that
defendant in criminal trial may not be compelled to testify, in order to comport with defendant's privilege
against self-incrimination is applicable to cases pending on direct review when the United States Supreme
Court announced its decision. U.S.C.A.Const. Amend. 5.
3. Criminal Law.
In criminal prosecution which was pending on direct appeal when United States Supreme Court rendered
decision in Carter v. Kentucky requiring courts to honor requests for cautionary instructions in order to
comport with defendant's Fifth Amendment privilege against self-incrimination, trial court committed error
by refusing defendant's requested instruction that it is a constitutional right of defendant in criminal trial
that he may not be compelled to testify; however, error was harmless since competent evidence of
defendant's guilt was overwhelming. U.S.C.A.Const. Amend. 5.
4. Criminal Law
Failure of trial court in criminal prosecution to give requested instruction regarding defendant's Fifth
Amendment privilege against self-incrimination is not reversible error if court determines that it was
harmless beyond reasonable doubt. U.S.C.A.Const. Amend. 5.
5. Criminal Law.
It is constitutionally impermissible to admit evidence of defendant's invocation of his Fifth Amendment
privilege to remain silent. U.S.C.A.Const. Amend. 5.
6. Criminal Law.
In criminal prosecution, trial court erred by denying defendant's motion in limine to exclude statement
indicating his desire not to answer questions about what he did to one of the victims after he forced her to
disrobe and touched her; however, error was harmless where prosecution did not emphasize silence or use
it to overtly foment an adverse inference of guilt in minds of jury, defendant's refusal to answer came in
midst of unbroken chain of voluntary statements, and evidence of defendant's guilt was overwhelming.
U.S.C.A.Const. Amend. 5.
OPINION
By the Court, Manoukian, J.:
A jury convicted the appellant, Alan Darrell Franklin, of burglary, robbery with use of a
deadly weapon and two counts of attempted sexual assault with use of a deadly weapon.
Franklin seeks reversal on several grounds. We address two of appellant's assignments of
error: (1) the trial court's rejection of appellant's requested instruction regarding a defendant's
failure to testify, and (2) the admission of evidence indicating appellant's refusal to answer a
question by a police officer. We determine that although the trial court erred in both
instances, the errors were harmless beyond a reasonable doubt and do not warrant
reversal of the conviction.
98 Nev. 266, 268 (1982) Franklin v. State
the errors were harmless beyond a reasonable doubt and do not warrant reversal of the
conviction.
According to the testimony of prosecution witnesses, in the early morning hours of
February 6, 1980, two women, Cathy and Vivian, were opening a Las Vegas store for
business. Franklin entered the store and threatened both women with a butcher knife, ordering
them into an office. Franklin forced one of the women, Vivian, to open the store's cash
register, from which he took bills and a roll of quarters. Appellant took Vivian into a
storeroom and, according to Vivian, forcefully removed her blouse, pulled down her slacks
and underwear and penetrated her vagina with his finger. Vivian also testified that Franklin at
least partially penetrated her with his penis.
The other woman, Cathy, called the police, who arrived while Franklin was still in the
storeroom. According to the first officer at the scene, Vivian emerged from the storeroom
upset and only partially clothed. The police recovered currency and a roll of quarters from
Franklin's pockets.
Franklin was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
One officer testified that Franklin said, I'm so stupid, I don't know why I tried it. Later that
morning, after again receiving a Miranda warning, Franklin was interviewed by a Henderson
Police Department detective, to whom Franklin admitted that he had had a knife, forced the
women to give him the money, told Vivian to take off her clothes, and touched her. When
asked what he did to her, he replied, Well, I'd rather not say at this time. The detective
ceased this particular inquiry, but continued the interview.
1. The Cautionary Jury Instruction.
The major issue on appeal is whether the trial court committed reversible error by refusing
the following jury instruction requested by appellant:
It is a constitutional right of a defendant in a criminal trial that he may not be
compelled to testify. You must not draw any inference from the fact that he does not
testify. Further, you must neither discuss this matter nor permit it to enter into your
deliberations in any way.
1
The recent Supreme Court decision of Carter v. Kentucky,
450 U.S. 2SS {19S1), requires courts to honor requests for such cautionary
instructions, in order to comport with a defendant's Fifth Amendment privilege
against self-incrimination.
____________________

1
Appellant's counsel expressly declined a related instruction, which, if requested, must be given pursuant to
NRS 175.181. The statutory instruction provides:
[I]n accordance with a right guaranteed by the constitution, no person can be compelled in a criminal
action to be a witness against himself.
98 Nev. 266, 269 (1982) Franklin v. State
The recent Supreme Court decision of Carter v. Kentucky, 450 U.S. 288 (1981), requires
courts to honor requests for such cautionary instructions, in order to comport with a
defendant's Fifth Amendment privilege against self-incrimination. Respondent concedes that
the trial court's refusal of the requested instruction constitutes error under Carter. The state
claims, however, that the Carter decision should not be applied retroactively to this case. The
Carter decision is silent as to its retroactive application.
[Headnote 1]
We are concerned here only with partial retroactivity; Franklin's judgment of conviction
was not final at the time the Carter rule was announced in March 1981. Although the practice
is not universal, the Supreme Court has noted that generally, a new rule is applicable to cases
pending on direct review when the rule is announced. Linkletter v. Walker, 381 U.S. 618, 627
(1965). But see, Stovall v. Denno, 388 U.S. 293 (1967).
2

In Tehan v. United States, 382 U.S. 406 (1966), the Court was required to determine the
retroactivity of the rule established in Griffin v. California, 380 U.S. 609 (1965): adverse
comment by a prosecutor or judge upon a defendant's failure to testify violates the Fifth
Amendment privilege against self-incrimination. The Tehan Court determined that on
balance, retroactivity of the Griffin rule to cases in which the judgment was final on the date
of Griffin's issuance was not warranted. The Court noted, however, that the question in Tehan
was not pure prospectivity of Griffin, [n]or [was] there any question of the applicability
of the Griffin rule to cases still pending on direct review at the time it was announced. Id. at
409, n. 3 (emphasis added).
[Headnotes 2, 3]
In Griffin, the Court anticipated and reserved the related constitutional question raised by
Carter. Griffin, supra at 615, n. 6. The Carter decision makes clear that both the Griffin and
Carter rulings serve the same purpose and support the same proposition--that a defendant
cannot be penalized for the exercise of his constitutional right not to testify.
____________________

2
In cases determining complete retroactivity or prospectivity of new constitutional rules, the Supreme Court
has consistently considered three factors: (1) the purpose of the rule; (2) the reliance on prior, contrary law; and
(3) the effect retroactive application would have on the administration of justice. See Tehan v. United States, 382
U.S. 406 (1966). We have adopted the same analysis to determine the retroactivity of new Supreme Court
rulings in which retroactive effect has been left undecided. See Hatley v. State, 97 Nev. 360, 630 P.2d 1225
(1981).
98 Nev. 266, 270 (1982) Franklin v. State
exercise of his constitutional right not to testify. Carter, supra at 301. We are satisfied that the
Carter decision warrants that same retroactive effect given the analogous Griffin rule; Carter
is applicable to cases pending on direct review when the Supreme Court announced its
decision.
3
Therefore, the trial court committed error by refusing defendant's requested
instruction.
However, we reject appellant's contention that Carter requires automatic reversal for such
error. The Carter Court expressly declined to address the question of automatic reversal
because the state had failed to raise the harmless error argument below. Id. at 304. The Court
noted only that it was arguable that refusal to give such a requested instruction could never
be harmless. Id. (citing Bruno v. United States, 308 U.S. 287 (1939)).
In Chapman v. California, 386 U.S. 18 (1967), the Court determined that the violation of
the Griffin rule would be governed by the harmless error standard.
[Headnote 4]
The Chapman Court concluded that protecting the defendant's Fifth Amendment privilege
is a consideration of a different order from those concerns underlying other constitutional
decisions which have mandated automatic reversal. See Gideon v. Wainwright, 372 U.S. 335
(1963), (indigent's right to counsel); Payne v. Arkansas, 356 U.S. 560 (1958), (coerced
confessions). In these instances, there is a clear danger of convicting the innocent. . . . By
contrast, the Fifth Amendment's privilege against self-incrimination is not an adjunct to the
ascertainment of truth. Tehan, supra at 416. We have already noted the analogous
relationship between the Griffin and Carter holdings; we see no justification for applying a
different standard of review to the rule announced in Carter. We join several other
jurisdictions
4
which have determined that Carter did not abrogate the Chapman test: the
error is not reversible if the court determines that it was harmless beyond a reasonable doubt.
____________________

3
Several other jurisdictions have, without comment, applied Carter to cases pending on direct review at the
time Carter was announced. See, e.g., People v. Silver, 175 Cal.Rptr. 483 (Cal.App. 1981); People v. Crawford,
632 P.2d 626 (Colo.App. 1981).

4
See People v. Silver, supra; Parker v. State, 425 N.E.2d 628 (Ind. 1981); Richardson v. State, 402 So.2d
848 (Miss. 1981), for examples of jurisdictions which have adopted the harmless error standard for the Carter
rule. However, in People v. Crawford, supra; Mosley v. State, 402 So.2d 559 (Fla.App. 1981) and Brown v.
State, 617 S.W.2d 234 (Tex.Cr.App. 1981), the courts determined that Carter required automatic reversal for a
trial court's refusal to give the requested instruction.
98 Nev. 266, 271 (1982) Franklin v. State
In the instant case, based on the victims' testimony, police accounts, the appellant's own
admissions and the physical evidence presented at trial, we find that competent evidence of
appellant's guilt was overwhelming. Failure to give the requested cautionary instruction likely
had minimal, if any, impact on the jury's decision, and we conclude the error was harmless
beyond a reasonable doubt.
2. Testimony Regarding Appellant's Refusal to Respond to Police Interrogation.
Appellant was twice given his Miranda warnings, once just after police arrived at the
scene and again at the police station. On both occasions, he indicated his willingness to
discuss the incident without an attorney. Appellant contends that the trial court committed
reversible error by admitting defendant's statement indicating his desire not to answer
questions about what he did to Vivian after he forced her to disrobe and touched her.
[Headnotes 5, 6]
We agree that the trial court erred by denying Franklin's motion in limine to exclude the
statement. It is constitutionally impermissible to admit evidence of a defendant's invocation
of his Fifth Amendment privilege to remain silent. Michigan v. Mosley, 423 U.S. 96 (1975);
Miranda, supra at 468, n. 37. See also, Bernier v. State, 96 Nev. 670, 614 P.2d 1079 (1980);
Vipperman v. State, 92 Nev. 213, 547 P.2d 682 (1976).
We believe, however, that this issue is also governed by the harmless error standard. See
e.g., Shepp v. State, 87 Nev. 179, 484 P.2d 563 (1976); Bernier and Vipperman, supra.
Several factors support a finding that the error was harmless beyond a reasonable doubt. The
prosecution did not emphasize the silence or use it to overtly foment an adverse inference of
guilt in the minds of the jury. See Shepp, supra. Appellant's refusal to answer came in the
midst of an unbroken chain of voluntary statements. See State v. Walker, 235 N.W.2d 810
(Minn. 1975), cert. denied, 426 U.S. 950 (1976). Finally, as we have already determined,
other evidence of appellant's guilt was overwhelming; the reference to his silence on one
question likely had little impact on the jury. The jury found appellant guilty of attempted
sexual assault, not sexual assault. That finding could reasonably be based on Franklin's
statements to the detective prior to his refusal to answer the one specific question. The jury
apparently did not infer from Franklin's silence any more wrongdoing than that to which he
voluntarily admitted.
We conclude that the error in admitting evidence of appellant's silence was harmless
beyond a reasonable doubt.
98 Nev. 266, 272 (1982) Franklin v. State
We decline to address appellant's remaining assignments of error, which we find to be
without merit.
Gunderson, C. J., and Springer and Mowbray, JJ., and Zenoff, Sr. J.,
5
concur.
____________________

5
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 272, 272 (1982) Curtis D. v. State
CURTIS D., A Minor, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 13054
June 15, 1982 646 P.2d 547
Appeal from an adjudication of delinquency and order of commitment, Eighth Judicial
District Court, Clark County; John F. Mendoza, Judge.
Appeal was taken from the district court which adjudicated appellant a delinquent and
ordered him committed to youth training center. The Supreme Court held that: (1) evidence
supported determination that movement of victim substantially increased risk of harm to her,
and thus a separate charge of first degree kidnaping was proper, and (2) juvenile's presence,
together with the other circumstances, both during and after kidnaping, was sufficient to
support an inference that he was a party to the offense.
Affirmed.
Morgan D. Harris, Public Defender, and Victor John Austin, Deputy Public Defender,
Clark County, for Appellant.
Richard Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and D.
Thomas Ferraro, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
A separate charge of first degree kidnaping is proper if the movement of the victim is not merely
incidental to the associated offense and it results in substantially increased risk of harm. NRS 200.310,
subd. 1.
2. Kidnaping.
Whether the movement of kidnaping victim is incidental to the associated offense and whether the risk of
harm was substantially increased thereby are questions of fact to be determined by the trier of fact in all but
the clearest cases. NRS 200.310, subd. 1.
98 Nev. 272, 273 (1982) Curtis D. v. State
3. Criminal Law.
Evidence that victim was abandoned, unconscious, on isolated perimeter of the desert as dark approached
supported determination that movement of victim substantially increased risk of harm to her, and thus a
separate charge of first degree kidnaping was proper. NRS 200.310, subd. 1.
4. Kidnaping.
Juvenile's presence, together with other circumstances, both during and after kidnaping, was sufficient to
support an inference that he was a party to the offense. NRS 200.310, subd. 1.
OPINION
Per Curiam:
Following a contested hearing before a juvenile referee, appellant was found guilty of
misdemeanor battery and first degree kidnaping for the perpetration of these crimes upon a
thirteen-year-old female.
1
The district court adopted the referee's findings, adjudicated
appellant a delinquent and ordered him committed to the Nevada Youth Training Center at
Elko, Nevada.
On the afternoon of the assault, the victim was walking alone on a Las Vegas residential
street. A pick-up truck, occupied by appellant and two other juvenile males, stopped beside
her. In response to a query by appellant, the victim approached the truck, whereupon the
driver and the other juvenile force her into the cab of the vehicle.
The victim was then transported a short distance into the desert where she was taken from
the truck. While one of his companions held her, appellant and the other youth cut her on the
face, arms and stomach. The assault ended when the victim was pushed and struck her head
on a rock. The blow rendered her unconscious. When she regained consciousness the day was
becoming dark and the truck was gone.
On appeal, appellant contends that the circumstances do not support a separate charge of
first degree kidnaping and there is insufficient evidence to establish his complicity in that
crime. We disagree.
____________________

1
NRS 200.481(2)(a) (1977)(amended 1979 and 1981) provides:
2. Any person convicted of a battery, other than a battery committed by an adult upon a child which
constitutes child abuse, shall be punished:
(a) If the battery is not committed with a deadly weapon, and no substantial bodily harm to the victim
results, for a misdemeanor.
NRS 200.310(1) provides in pertinent part:
1. . . . [E]very person who leads, takes, entices, or carries away or detains any minor . . . with the
intent to hold such minor to unlawful service, or perpetrate upon the person of such minor any unlawful
act is guilty of kidnaping in the first degree.
98 Nev. 272, 274 (1982) Curtis D. v. State
[Headnotes 1, 2]
A separate charge of first degree kidnaping is proper if the movement of the victim is not
merely incidental to the associated offense and it results in substantially increased risk of
harm. Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978). Whether the movement of the
victim is incidental to the associated offense and whether the risk of harm is substantially
increased thereby are questions of fact to be determined by the trier of fact in all but the
clearest cases. Sheriff v. Medberry, 96 Nev. 202, 606 P.2d 181 (1980).
[Headnote 3]
Ordinarily, movement of the victim in the commission of a battery is not incidental to that
offense. Moreover, in the instant case, it is uncontroverted that the victim was abandoned,
unconscious, on the isolated perimeter of the desert as dark approached. Such evidence
supports the determination that the movement of the victim substantially increased the risk of
harm to her. A separate charge of first degree kidnaping is proper.
[Headnote 4]
Similarly, the record supports appellant's complicity in the kidnaping. The mere presence
of appellant at the time his companions forced the victim into the truck is not sufficient to
make him an accessory and therefore a principal under NRS 195.020.
2
However, it was
appellant's query that induced the victim to approach the truck. She was detained in the cab
by appellant and one companion while the other drove into the desert. Appellant was not
merely present, he was an active participant in her forcible transportation and the events that
followed. His presence, together with the other circumstances, both during and after the
kidnaping, is sufficient to support an inference that he was a party to the offense. See Baker v.
Sheriff, 93 Nev. 11, 558 P.2d 629 (1977); Robertson v. Sheriff, 85 Nev. 681, 462 P.2d 528
(1969).
The other claims of error raised by appellant fail to demonstrate prejudicial error or are
without merit. Accordingly, we affirm the adjudication of delinquency and commitment
order of the district court.
____________________

2
NRS 195.020 provides in pertinent part:
195.020 Who are principals. Every person concerned in the commission of a felony, gross
misdemeanor or misdemeanor, whether he directly commits the act constituting the offense, or aids or
abets in its commission, and whether present or absent; and every person who, directly or indirectly,
counsels, encourages, hires, commands, induces or otherwise procures another to commit a felony, gross
misdemeanor or misdemeanor is a principal, and shall be proceeded against and punished as such.
98 Nev. 272, 275 (1982) Curtis D. v. State
affirm the adjudication of delinquency and commitment order of the district court.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to participate in this case,
pursuant to Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 275, 275 (1982) Las Vegas Valley Water v. Curtis Park
LAS VEGAS VALLEY WATER DISTRICT, THE OFFICE OF THE STATE ENGINEER
OF THE STATE OF NEVADA, and ROLAND D. WESTERGARD, State Engineer,
Division of Water Resources, Appellants, v. CURTIS PARK MANOR WATER
USERS ASSOCIATION, Respondent.
No. 13159
June 15, 1982 646 P.2d 549
Appeal from judgment granting equitable relief, Eighth Judicial District Court, Clark
County; Joseph S. Pavlikowski, Judge.
Appeal was taken from judgment of the district court granting equitable relief with respect
to State Engineer's decision to revoke temporary well permits. The Supreme Court held that:
(1) abuse of discretion provided the only grounds for reversal of the Engineer's decision, and
(2) district court was without authority to grant equitable relief since adequate remedy existed
at law through limited judicial review for abuse of discretion.
Reversed and remanded.
Robert J. Miller, District Attorney, and Susan L. Johnson, Deputy District Attorney, Clark
County, for Appellant Las Vegas Valley Water District.
Richard H. Bryan, Attorney General, and George Campbell, Deputy Attorney General,
Carson City; and Beckley, Singleton, DeLanoy & Jemison, Chartered, and Mark C. Scott, Jr.,
Las Vegas, for Appellant Roland D. Westergard, State Engineer, Division of Water
Resources.
Nitz & Schofield, Las Vegas, for Respondent.
98 Nev. 275, 276 (1982) Las Vegas Valley Water v. Curtis Park
1. Waters and Water Courses.
In light of the discretionary nature of the State Engineer's action in revoking temporary well permits,
abuse of discretion provided the only grounds for reversal of the Engineer's decision. NRS 534.120,
534.120, subd. 3(a).
2. Equity.
District court was without authority to grant equitable relief with respect to State Engineer's revocation of
temporary well permits, since adequate remedy existed at law through limited judicial review for abuse of
discretion. NRS 233B.140, subd. 5, 533.450.
OPINION
Per Curiam:
In this appeal we are asked to determine whether the district court erred in granting
equitable relief to respondent.
Curtis Park Manor is a subdivision of approximately 257 half-acre lots in Northwest Las
Vegas. In 1957, 1958 and 1960, Alfred Swartz, as president of Curtis Park Manor Water
Users Association (hereinafter Association), received three temporary well permits to serve
a total of 145 lots in the subdivision. The subdivision has relied on these three private wells
for its water since the first homes were constructed over 20 years ago.
Each permit contained the express provision that this permit . . . is further subject to
revocation when water is available from the Las Vegas Water District. . . . These permits
were issued pursuant to NRS 534.120, which allows the State Engineer to grant temporary
permits to appropriate ground water, subject to revocation when water can be furnished by
an entity such as a water district. . . .
In 1976, Mr. Swartz, who had maintained the water system until that time and to whom
users had paid a monthly fee, sold his interest in the system to the Association.
Also in 1976, the completion of a pipeline in Michael Way, adjacent to Curtis Park,
enabled the Water District to serve Curtis Park. In August 1976, appellant State Engineer
notified Curtis Park homeowners that pursuant to NRS 534.120, their permits were subject to
revocation, since appellant Water District could now serve the subdivision. A follow-up letter
notified the Association of the state's intent to revoke and requested that the Association
submit its planned procedures for conversion to the District source or other alternative
measures. In January 1977 the State Engineer issued an order revoking the three permits
effective April 11, 1977.
The Association's search for purchasable permanent water rights proved unsuccessful,
and their application for permanent permits was denied after a hearing.1 In February
1977, the Association filed a petition for review of the Engineer's decision to revoke the
temporary permits in district court, seeking: {1) reinstatement of the revoked permits, {2)
a stay in the execution of the Engineer's order until permanent water rights could be
purchased or {3) a review of the Engineer's order under NRS 533.450.
98 Nev. 275, 277 (1982) Las Vegas Valley Water v. Curtis Park
rights proved unsuccessful, and their application for permanent permits was denied after a
hearing.
1
In February 1977, the Association filed a petition for review of the Engineer's
decision to revoke the temporary permits in district court, seeking: (1) reinstatement of the
revoked permits, (2) a stay in the execution of the Engineer's order until permanent water
rights could be purchased or (3) a review of the Engineer's order under NRS 533.450.
The State Engineer counterclaimed, seeking to enjoin Curtis Park from servicing more
than the original 145 lots, if the court cancelled the revocations. That counterclaim indicated
that 169 lots were being served by the wells under the temporary permits. Testimony
subsequently revealed that approximately 257 lots were served by the disputed system. The
Water District intervened as co-defendant in March 1979.
The trial court determined that Curtis Park was entitled to equitable relief,
2
rescinded the
Engineer's January 1977 revocation order, reinstated the permits, made them permanent and
ordered that the new permits allow for appropriation of water sufficient to serve all 257 lots
in the subdivision.
Appellants contend that the district court was without authority to grant equitable relief.
We agree.
Respondent primarily relies on Bailey v. State, 95 Nev. 378, 594 P.2d 734 (1979), and
State Engineer v. American National Insurance Co., 88 Nev. 424, 498 P.2d 1329 (1972). In
both Bailey and American National, the State Engineer, pursuant to the mandatory language
in NRS 533.410, cancelled permits to appropriate water because the permittees had failed to
file the requisite proof of applying the water to beneficial use. The court in both cases
recognized that the statute required the Engineer to summarily cancel the permits.
____________________

1
No appeal was taken from the denial of the application for permanent permits.

2
The trial court primarily based its decision to grant equitable relief on the following findings of facts and
conclusions drawn from those facts: (1) the permits had been granted and the well system had been in use for
more than twenty years; (2) until notified by the Engineer in 1976, the homeowners were not aware that their
permits were revocable; (3) the Association had spent approximately $250,000 in improvements on the well
system, approximately $25,000 of which went toward the acquisition of permanent water rights; (4) the cost of
conversion to Water District sources would be considerable; (5) the Water District would use the same aquifers
to supply water to Curtis Park as Curtis Park now uses for its well system; and (6) there would be no significant
impairment of any existing water rights if Curtis Park continued to appropriate water under the permits and no
other persons would be damaged by such appropriation. These facts were under considerable dispute at the
hearing below.
98 Nev. 275, 278 (1982) Las Vegas Valley Water v. Curtis Park
Engineer to summarily cancel the permits. Nonetheless, [t]his directive to his office does not
. . . affect the power of the district court to grant equitable relief to the permittee when
warranted. American National, supra at 426, 498 P.2d at 1330.
In American National, we suggested that the legislature alleviate the awkward and
unenviable position in which NRS 533.410 places the State Engineer. Id. at 426, 498 P.2d at
1330. Under that statute, he must summarily cancel permanent permits for failure to comply
with filing requirements, yet the district court can reverse his decision and grant equitable
relief. We suggested a legislative change in NRS 533.410, which would give the Engineer
discretion in a permit cancellation. With such a change court reversal would only be
appropriate in the event of an abuse of discretion. Id. at 427, 498 P.2d 1331. (Emphasis
added.)
NRS 534.120, the revocation statute in dispute in this case, is distinguishable from the
statute in Bailey and American National; it clearly does grant the Engineer discretion to
revoke temporary permits. The state engineer may . . . [i]ssue temporary permits to
appropriate ground water . . . which may be revoked. . . . NRS 534.120(3)(a). (Emphasis
added.)
[Headnotes 1, 2]
In light of the discretionary nature of the Engineer's action, abuse of discretion provides
the only grounds for reversal of the Engineer's decision. The district court was without
authority to grant equitable relief, since an adequate remedy exists at law. See American
National, supra. See also, Thrifty Drugs and Markets, Inc. v. Hunter Lake P.T.A., 85 Nev.
162, 451 P.2d 713 (1969).
We decline to rule on whether the record indicates an abuse of discretion by the State
Engineer. The trial court made no determination on that issue. The record before us consists
of a de novo hearing to determine the appropriateness of equitable relief. Such a proceeding is
entirely distinct in scope and purpose from the limited judicial review for abuse of discretion.
See NRS 533.450; NRS 233B.140(5); see also, Revert v. Ray, 95 Nev. 782, 603 P.2d 262
(1979).
The decision of the trial court is reversed and the cause is remanded for further
proceedings in accordance with this opinion.
Gunderson, C. J., Manoukian, Springer, and Mowbray JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 279, 279 (1982) Riesterer v. Dietmeier
BETTY J. RIESTERER, Appellant, v. SARA JANE DIETMEIER and THE ESTATE OF
JOHN E. RIESTERER, Respondents.
No. 13113
June 15, 1982 646 P.2d 551
Appeal from order of the district court denying petition to appoint special administrator.
Eighth Judicial District Court, Clark County; Howard W. Babcock, Judge.
Testator's daughter filed petition for letters of ancillary administration seeking to have will
admitted to probate and widow sought appointment of special administrator. The district
court determined that will was not revoked and widow appealed. The Supreme Court held
that: (1) remarriage to a former spouse is a marriage for purposes of statute providing for
revocation of a will upon marriage, but (2) property settlement entered into by husband and
wife at the time of their divorce was a marriage contract providing for wife, so that
husband's will was not revoked upon their remarriage.
Affirmed.
Thorndal, Backus, Lyles & Maupin and James G. Armstrong, Las Vegas, for Appellant.
Reid & Alverson, Las Vegas, for Respondents.
1. Wills.
Remarriage to a former spouse is a marriage for purposes of statute providing for revocation of a will
following the testator's marriage. NRS 133.110.
2. Wills
Purpose of statute providing for revocation of a will upon marriage is to prevent unintentional
disinheritance of the surviving spouse.
3. Wills.
Property settlement entered into between husband and wife at the time of their divorce was a marriage
contract for purposes of statute calling for revocation of a will upon the testator's marriage unless
provision has been made for the spouse by marriage contract and, upon remarriage of the husband and
wife, husband's will was not revoked. NRS 133.110.
OPINION
Per Curiam:
John and Betty Riesterer were married in 1976. In 1979 John purchased a home in
Henderson in his name. Later in 1979 John and Betty separated, and in consideration of
Betty's release of all claims against his property, John tendered to Betty approximately
$50,000 in cash and real and personal property.
98 Nev. 279, 280 (1982) Riesterer v. Dietmeier
John and Betty separated, and in consideration of Betty's release of all claims against his
property, John tendered to Betty approximately $50,000 in cash and real and personal
property. Subsequently, in July 1979, John executed the will in controversy, leaving his entire
estate with the exception of two small bequests, to his daughter, Sara Jane, and making no
mention of Betty. John and Betty were divorced two weeks later, but remarried in February
1980. John died in April 1980 in Missouri, survived by his wife and daughter. The only
property of value in the estate is the home in Henderson.
Respondent, Sara Jane, filed a Petition for Letters of Ancillary Administration, seeking to
admit the will to probate.
Appellant, Betty, petitioned for appointment of a special administrator on the grounds that
the will was revoked pursuant to NRS 133.110. The trial court determined that the will was
not revoked and denied appellant's petition.
We must determine whether a will, executed by a decedent after making a property
settlement in a divorce action, is revoked upon subsequent remarriage to the former spouse,
pursuant to NRS 133.110.
NRS 133.110 provides:
If a person marries after making a will and the spouse survives the maker, the will is
revoked as to the spouse, unless provision has been made for the spouse by marriage
contract, or unless the spouse is provided for in the will, or in such a way mentioned
therein as to show an intention not to make such provision; and no other evidence to
rebut the presumption of revocation shall be received.
Appellant contends that the will, executed after the property settlement, was revoked by
the subsequent remarriage. Respondents argue that the statute is inapplicable to wills such as
John's, made prior to a remarriage to the former spouse. Respondents also contend that if
NRS 133.110 is applicable, the property settlement should be considered a marriage
contract which, pursuant to the statute, would rebut the presumption of revocation. The trial
court's decision was based on the latter position.
There is some support for respondents' contention that NRS 133.110 is inapplicable to
wills made prior to remarriage to the former spouse. In Leggett v. Estate of Leggett, 88 Nev.
140, 494 P.2d 554 (1972), we were asked to determine the effect of NRS 133.110 on a will
which left nothing to the testator's wife and made only passing reference to her. The testator
had divorced his wife, had agreed to a property settlement and had remarried the same
person after executing the will.
98 Nev. 279, 281 (1982) Riesterer v. Dietmeier
divorced his wife, had agreed to a property settlement and had remarried the same person
after executing the will.
Leggett concluded that the reference to the wife in the will, albeit nominal, was sufficient
to demonstrate the testator's intention not to provide for her, thereby triggering rebuttal of the
presumption of revocation upon remarriage.
[Headnotes 1, 2]
This case does not impel a departure from Leggett as to the applicability of NRS 133.110
to cases involving remarriage to the former spouse. Although such remarriage is undoubtedly
an event of some rarity, we are not convinced that the legislature intended to exclude from
NRS 133.110, wills executed prior to remarriage to the former spouse. The statute's purpose
is to prevent unintentional disinheritance of the surviving spouse. Leggett, supra at 143, 494
P.2d at 558. Certainly, it is conceivable that a surviving former spouse, who has remarried the
testator, could suffer unintentional disinheritance. We note that other courts, faced with
similar pretermitted spouse statutes, have applied the statutes to wills executed prior to
remarriage to the former spouse. See, e.g., Perkins v. Brown, 27 So.2d 521 (Fla. 1946); Estate
of Montoya, 556 P.2d 353 (N.M. 1976). See also, 2 W. Bowe & D. Parker, Page on Wills,
21.91 (rev. ed. 1960).
[Headnote 3]
Even so, in this case, respondent has successfully rebutted the presumption of revocation.
Appellant was the recipient of a property settlement upon her divorce from the testator. A
property settlement is a marriage contract within contemplation of NRS 133.110, and its
existence in this case rebuts the presumption of revocation. Appellant's contention that a
marriage contract is one made exclusively in contemplation of marriage is without merit. In re
Estate of Nelson, 537 P.2d 765 (Wash. 1975), presented the Washington Supreme Court with
analoguous factual circumstances. The Nelson court construed a similar statutory exception to
the presumption of revocationmarriage settlementto include a post-nuptial property
settlement. We are especially persuaded by that part of the Nelson decision which noted that
the purpose of these statutesprevention of unintentional disinheritance of the surviving
spousewould not be served when any separate arrangement exists to indicate that the
decedent wished to keep the will in force and provide specially for the spouse. . . . Whether
the agreement is ante- or post-nuptial it shows that separate provision was made for the
spouse rendering the presumption of intent to revoke inapplicable." Id. at 772 {Emphasis
in original.)
98 Nev. 279, 282 (1982) Riesterer v. Dietmeier
separate provision was made for the spouse rendering the presumption of intent to revoke
inapplicable. Id. at 772 (Emphasis in original.)
The decision of the trial court is affirmed.
Gunderson, C. J. Manoukian, Springer, and Mowbray, JJ. and Zenoff, Sr. J.,
1
concur.
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 282, 282 (1982) Automatic Merchandisers, Inc. v. Ward
AUTOMATIC MERCHANDISERS, INC., Appellant,
v. LURA WARD, Respondent.
No. 12736
June 15, 1982 646 P.2d 553
Appeal from judgment for damages following jury trial. Second Judicial District Court,
Washoe County; Roy L. Torvinen, Judge.
Defendant in personal injury action appealed from judgment of the district court entered in
favor of plaintiff. The Supreme Court held that: (1) plaintiff had not failed to mitigate
damages by declining certain elective surgery, and (2) award of $75,000 in damages was not
excessive.
Affirmed.
Cromer, Barker, Michaelson, Gillock & Rawlings, and Victor Alan Perry, Kenneth Bick,
Reno, for Appellant.
Echeverria and Osborne, Reno, for Respondent.
1. Damages.
Injured person cannot recover for damages which could have been avoided by the exercise of reasonable
care.
2. Damages.
Doctrine of mitigation of damages is applied to preclude recovery for disability which could have been
avoided if the plaintiff had exercised reasonable diligence in seeking medical care, including surgical
treatment.
3. Damages.
Failure of plaintiff to undergo surgery did not show a failure to mitigate damages where surgery was not
consistently recommended prior to trial, where neither the treating physician nor the defendant's expert
witness recommended surgical intervention by the time of trial, as the plaintiff's condition had improved
with conservative treatment, and where surgery was recommended only as an elective procedure.
98 Nev. 282, 283 (1982) Automatic Merchandisers, Inc. v. Ward
4. Damages.
Award of $75,000 to injured plaintiff who suffered injury to the seventh cervical nerve or a protrusion or
herniation of a cervical disc resulting in headaches and considerable recurrent pain in the neck, shoulder,
and arm and who would suffer intermittent pain and consequent curtailment of daily activities for the rest
of his life was not excessive.
OPINION
Per Curiam:
Automatic Merchandisers appeals from a judgment awarding respondent $75,000 in
personal injury damages. Appellant raises several assignments of error, two of which we
address. Appellant contends that the trial court erred: (1) by refusing to instruct the jury on
respondent's obligation to mitigate her damages, and (2) by denying a motion to alter or
amend judgment because the verdict was excessive. Each of the issues being without merit,
we affirm.
In July 1977, respondent, Lura Ward, was a passenger in a vehicle operated by Mrs. Gloria
Correll. The Correll vehicle was struck with considerable force from behind by a van driven
by Robin Graham and owned by appellant, Automatic.
Correll, and subsequently Ward, filed suit against Graham and Automatic. Motions to
consolidate the Ward and Correll actions were denied. Correll received a verdict of $65,000
against Automatic, which was found 100 percent negligent. After the Correll judgment, Ward
moved for and was granted partial summary judgment on the question of liability against
appellant.
At the trial on damages, Ward's treating physician, Dr. Ernest Mack, testified that he
believed she had suffered injury to the seventh cervical nerve or a protrusion or herniation of
the cervical disc, resulting in headaches, and also considerable and recurrent pain in the neck,
shoulder and arm. In his opinion, intermittent pain and consequent curtailment of daily
activities will continue for the rest of Ward's life. Dr. Mack had recommended surgery (a
foraminotomy) to Ward when her condition had not improved some months after the
accident. At that time, Ward declined surgery, and when she became pregnant shortly
thereafter, Dr. Mack advised against an operation. Sometime after May 1979, Ward indicated
to Dr. Mack that she would undergo the surgery. By the time of the trial in January 1980,
Ward had not undergone surgery, but her condition had improved to the point where both Dr.
Mack and Dr. Robert Morelli, the appellant's expert witness, believed surgery was no longer
indicated.
98 Nev. 282, 284 (1982) Automatic Merchandisers, Inc. v. Ward
Appellant contends that the trial court erred in refusing to give two instructions. The first
instruction advised the jury that any award for damages must contemplate the injured person's
obligation to exercise ordinary care to obtain medical treatment. The second refused
instruction would have required the jury to decide when the respondent could have undergone
surgery and to award damages up to that date.
[Headnotes 1, 2]
It is unquestioned that an injured person cannot recover for damages which could have
been avoided by the exercise of reasonable care. See Southern Pacific Transportation Co. v.
Fitzgerald, 94 Nev. 241, 577 P.2d 1234 (1978). The doctrine of mitigation of damages has
been applied to preclude recovery for disability which could have been avoided if the plaintiff
had exercised reasonable diligence in seeking medical care, including surgical treatment. See
e.g., Cline v. United States, 270 F.Supp. 247 (S.D.Fla. 1967); Jancura v. Szwed, 407 A.2d
961 (Conn. 1978); Couture v. Novotny, 211 N.W.2d 172 (Minn. 1973). When there is
evidence that a plaintiff may have failed to exercise the reasonable care required to promote
recovery, it also has been held that the defendant is entitled to an instruction to that effect,
upon request. Jancura v. Szwed, supra.
[Headnote 3]
In the instant case, however, appellant failed to present evidence that respondent's
disinclination to undergo surgery was unreasonable. In the cases relied on by appellant and
cited above, surgery was recommended at the time of trial. Here, surgery was not even
consistently recommended prior to trial, and neither Ward's treating physician nor appellant's
expert witness recommended surgical intervention by the time of trial, since respondent's
condition had improved with conservative treatment. It is undisputed that Ward sought and
received competent medical, albeit non-surgical, treatment. The evidence indicated that the
surgery was recommended only as an elective procedure. No witness refuted Dr. Mack's
conclusion that in light of Ward's improvement, her decision to decline surgery was
appropriate. In the context of the facts and circumstances of this case, it was not error to
refuse the instruction on mitigation of damages.
[Headnote 4]
Appellant also contends that the trial court erred in refusing to grant a new trial because the
jury's $75,000 award was excessive. We have repeatedly expressed our reluctance to
substitute our judgment for that of the trier of fact on the issue of damages. See e.g., Southern
Pacific Co. v. Watkins, 83 Nev. 471, 435 P.2d 49S {1967); Brownfield v. Woolworth Co.,
98 Nev. 282, 285 (1982) Automatic Merchandisers, Inc. v. Ward
435 P.2d 498 (1967); Brownfield v. Woolworth Co., 69 Nev. 294, 248 P.2d 1078 (1952).
[T]he court is not justified in reversing the case or granting a new trial on the ground that the
verdict is excessive, unless it is so flagrantly improper as to indicate passion, prejudice or
corruption in the jury. Watkins, supra at 495, 435 P.2d at 513-514 (quoting Forrester v.
Southern Pacific, 36 Nev. 247, 134 P. 753 (1913)).
The award in this case may be unusually high; however, we do not find it so flagrantly
improper as to suggest jury passion, prejudice or corruption.
Appellant's remaining assignments of error are without merit.
The district court judgment is affirmed.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 285, 285 (1982) Laughlin Recreational v. Zab Dev.
LAUGHLIN RECREATIONAL ENTERPRISES, INC. and DONALD J. LAUGHLIN,
Appellants/Cross-Respondents, v. ZAB DEVELOPMENT CO., INC. and KEITH FLIPPIN,
Respondents/Cross-Appellants.
No. 13392
June 18, 1982 646 P.2d 555
Appeal and cross-appeal from judgment. Eighth Judicial District Court, Clark County;
Addeliar D. Guy, Judge.
Action was brought against contractor alleging failure to complete performance of a
contract to build a hotel and casino on plaintiff's property. The district court entered judgment
in favor of the contractor, and plaintiff appealed. The Supreme Court held that: (1) substantial
evidence supported all the trial court's findings; (2) the contractor was entitled to award of
attorney fees and prejudgment interest; and (3) trial court erred in awarding contractor
prejudgment interest at a rate higher than the statutory rate on amounts owing under the
contract, except to the extent that such amounts were represented by a promissory note, which
provided for a higher rate of interest.
Affirmed as modified.
[Rehearing denied November 22, 1982]
Morris & Wood, Las Vegas, for Appellants/Cross-Respondents.
98 Nev. 285, 286 (1982) Laughlin Recreational v. Zab Dev.
Galatz, Earl & Biggar, Las Vegas, for Respondents/Cross-Appellants.
1. Accord and Satisfaction; Contracts.
In suit against contractor for failure to complete performance of a contract to build a hotel and casino on
plaintiff's property, substantial evidence supported trial court's findings that the parties intended a
cost-plus-profit contract with no maximum price, that the contract was substantially performed, that the
contractor's acceptance of a check marked final payment from plaintiff's bank was not intended to be an
accord and satisfaction, and that all but one of the promissory notes from plaintiff to contractor did not
represent actual debts between the parties.
2. Costs.
Attorney fees may not be awarded in the absence of a statute, rule or contract.
3. Bills and Notes.
Prevailing contractor, in suit for failure to complete performance of a contract to build a hotel and casino
on plaintiff's property, was entitled to award of attorney fees, where the contract and the promissory note
from plaintiff to the contractor provided for an award of attorney fees.
4. Interest.
Prejudgment interest should be awarded in contract actions, regardless of whether the judgment is for a
liquidated or unliquidated sum.
5. Interest.
Prevailing contractor, in suit for failure to complete performance of a contract to build a hotel and casino
on plaintiff's property, was entitled to award of prejudgment interest.
6. Interest.
In the absence of an express, written agreement, the rate of prejudgment interest to be awarded in a
contract action is governed by statute. NRS 99.040.
7. Interest.
Trial court erred in awarding prejudgment interest at a rate higher than the statutory rate on amounts
owing contractor under hotel and casino construction contract, except to the extent that such amounts were
represented by a promissory note, which provided for a higher rate of interest.
OPINION
Per Curiam:
Laughlin Recreational Enterprises, Inc. (Laughlin) appeals from the district court's
judgment awarding damages on a construction contract, plus interest and attorney's fees, to
respondent Zab Development Co., Inc. (Zab). Zab cross-appeals from the district court's
decision cancelling certain promissory notes executed by Laughlin in Zab's favor.
98 Nev. 285, 287 (1982) Laughlin Recreational v. Zab Dev.
THE FACTS
Zab contracted with Laughlin to build a hotel and casino on property owned by Laughlin.
The parties signed a standard AIA form contract, specifying that Laughlin would pay Zab's
costs of construction plus $100,000.00 profit and $80,000.00 overhead, with a maximum cost
to Laughlin of $1,209,600.00. At the same time, the parties signed a separate agreement, and
later they periodically executed various modifications to the contract.
As Laughlin ran short of cash, the parties entered into a series of financial transactions
evidenced by promissory notes from Laughlin to Zab. In addition, Zab loaned Laughlin
$30,000.00 which was not evidenced by a note.
Eventually, Laughlin brought this action against Zab, claiming that the contract had not
been performed. Zab counterclaimed, alleging that the contract was fully performed, and that
money was still owing under the contract. Zab also sought to collect on the promissory notes.
The district judge found that the contract had been substantially performed, and awarded
judgment in favor of Zab. The court also found that the AIA contract was not the complete
agreement of the parties, and that the parties intended a cost-plus-profit contract without any
maximum cost to Laughlin. The court therefore awarded damages to Zab in excess of the
maximum price term in the contract. The court cancelled all but one of the promissory notes,
finding that they did not evidence actual debts.
THE SUFFICIENCY OF THE EVIDENCE
Of the numerous issues raised on appeal, most are challenges to the sufficiency of the
evidence supporting the findings of the district court. Laughlin challenges the findings that
(1) the parties intended a cost-plus-profit contract with no maximum price; (2) the contract
was substantially performed; and (3) the acceptance by Zab from Laughlin's bank of a check
marked final payment was not intended to be an accord and satisfaction. Zab challenges the
court's finding that all but one of the promissory notes did not represent actual debts between
the parties.
[Headnote 1]
We have examined the record, and we find that there is substantial evidence to support all
of the court's findings. We have repeatedly held that where the trial court's findings are
supported by substantial evidence they will not be disturbed on appeal.
98 Nev. 285, 288 (1982) Laughlin Recreational v. Zab Dev.
appeal. Beverly Enterprises v. Globe Lane Corp. 90 Nev. 363, 526 P.2d 1179 (1974); Lawry
v. Devine, 82 Nev. 65, 410 P.2d 761 (1966).
THE AWARD OF ATTORNEY'S FEES
[Headnotes 2, 3]
Attorney's fees may not be awarded in the absence of a statute, rule or contract. State ex
rel. List v. Courtesy Motors, 95 Nev. 103, 590 P.2d 163 (1979). In the instant case the
construction agreement expressly provided for an award of attorney's fees as did the
promissory note. The district court did not err in awarding attorney's fees.
THE AWARD OF PREJUDGMENT INTEREST
The district judge awarded prejudgment interest to Zab on the contract damages, the
promissory note, and the $30,000.00 loan, at a rate of ten percent. Laughlin argues that this
was error, because the damage amounts were unliquidated.
[Headnotes 4, 5]
In Paradise Homes v. Central Surety, 84 Nev. 109, 437 P.2d 78 (1968), this court decided
that prejudgment interest should be awarded in contract actions from the time the sum
became due. It is irrelevant whether the judgment is for a liquidated or unliquidated sum.
Arley v. Liberty Mutual Fire Ins. Co., 85 Nev. 541, 458 P.2d 742 (1969). The court did not
err in awarding prejudgment interest.
[Headnotes 6, 7]
However, in the absence of an express, written agreement, the rate of interest to be
awarded is governed by NRS 99.040. Paradise Homes, supra, 84 Nev. at 116; 437 P.2d at 83.
At the time of the judgment in the instant case, the statute provided for interest at a rate of
eight percent. It was error for the district court to award interest at ten percent on the contract
damages and the $30,000.00 loan. The court's action was correct with respect to the
promissory note, which provided for ten percent interest. Accordingly, the judgment is
modified to provide interest at eight percent on the contract damages and the $30,000.00 loan.
Other assignments of error have been considered and found meritless. As modified, the
judgment is affirmed.
____________
98 Nev. 289, 289 (1982) Bludsworth v. State
CURT BLUDSWORTH, JUDI BLUDSWORTH, Appellants, v. THE STATE OF NEVADA,
Respondent.
No. 13100
June 18, 1982 646 P.2d 558
Appellant Curt Bludsworth appeals from a judgment of conviction for murder in the
second-degree and for child abuse and neglect. Appellant Judi Bludsworth appeals from a
judgment of conviction for child abuse causing serious bodily harm. First Judicial District
Court, Carson City; Howard D. McKibben, Judge.
The Supreme Court, Springer, J., held that: (1) there was ample evidence to support the
criminal convictions; (2) trial court properly admitted evidence that child had sustained a bite
mark on his scrotum prior to day of his fatal injury; and (3) trial court properly refused to
sever the trial on the murder and child abuse charges.
Affirmed.
J. Gregory Damm, State Public Defender, Robert Bork, Deputy Public Defender, Carson
City, for Appellant Judi Bludsworth.
Daniel U. Smith, Belli & Choulos, San Francisco, Gary Logan, Las Vegas, for Appellant
Curt Bludsworth.
Richard H. Bryan, Attorney General, William A. Maddox, District Attorney, Carson City,
for Respondent.
1. Homicide; Infants.
Evidence, including testimony by a number of expert witnesses that child was a victim of battered child
syndrome, plus expert medical testimony of unusual placement and severity of bruises on top of child's
head, contradicting accident theory, supported convictions of child's mother and stepfather of child abuse,
and child abuse and second-degree murder, respectively.
2. Homicide.
Trial court, in prosecution for murder and child abuse, properly admitted evidence that child had
sustained a bite mark on his scrotum prior to the day of his fatal injury, even though it had not been
established that either of the defendants was responsible for prior injuries.
3. Criminal Law.
Trial court properly refused to sever trials of mother and stepfather on murder and child abuse charges,
because they arose out of the same series of acts, and because the evidence was clearly relevant to both the
murder and child abuse charges. NRS 173.115.
98 Nev. 289, 290 (1982) Bludsworth v. State
4. Infants.
Phrase unjustifiable physical pain or mental suffering, in context of statute authorizing criminal
penalties for any adult who willfully causes or permits a child * * * to suffer unjustifiable physical pain or
mental suffering as a result of abuse or neglect, was not unconstitutionally vague as applied to instant
defendants, where state alleged and proved that defendants either struck child on head or permitted him to
be struck, because in light of evidence concerning violence or force used against child and severity of his
injuries, defendants could not claim that they could not have reasonably known their conduct was criminal.
NRS 200.508.
5. Criminal Law.
Criminal statute is unconstitutionally vague only if one cannot reasonably understand that contemplated
conduct is proscribed.
OPINION
By the Court, Springer, J.:
This is a case of child abuse which tragically ended in the death of two-year old Eric
Johnson, the son of appellant Judi Bludsworth and stepson of appellant Curt Bludsworth. Eric
died after sustaining severe head injuries. Following Eric's death, the state instituted criminal
proceedings against the appellants. Curt was convicted by a jury of child abuse and
second-degree murder. Judi was convicted by the same jury of child abuse.
Appellants assert that numerous errors were committed in the trial below. Curt's principal
argument is that the state failed to prove beyond a reasonable doubt that Eric died as a result
of his criminal act. At trial, the defense had claimed that Curt accidentally injured Eric by
dropping him as Eric and he climbed the stairs in the family home. Appellants argue that all
evidence presented at trial was consistent with the theory that Eric's injury was accidental. We
disagree.
[Headnote 1]
There was ample evidence to support the criminal convictions. A number of expert
witnesses testified that Eric was a victim of the battered child syndrome, an accepted
diagnosis signifying serious and persistent physical abuse. The expert opinion that the victim
was a battered child, coupled with some additional proof, has been held sufficient to permit a
jury to conclude that the child's injury occurred at the culpable hands of its parents. People
v. Henson, 349 N.Y.S.2d 657, 665-66 (N.Y. 1973); accord People v. Barnard, 286 N.W.2d
870 (Mich. App. 1979).
Curt was alone with Eric at the time of the fatal injury, and he admitted involvement in
the purported accident.
98 Nev. 289, 291 (1982) Bludsworth v. State
he admitted involvement in the purported accident. In addition to the overwhelming evidence
that Eric was a battered child, there was other important evidence to refute Curt's explanation
of the event. Expert medical testimony, including evidence of the unusual placement and
severity of bruises on the top of Eric's head contradicted the accident theory. The combined
evidence was sufficient to establish the corpus delicti for each criminal conviction.
[Headnote 2]
During the trial, considerable evidence was presented that Eric had sustained numerous
bruises, including a bite mark on his scrotum, prior to the day of his fatal injury.
Appellants claim prejudicial error from the admission of this evidence. Appellants first
assert that expert medical testimony concerning the bite mark was incompetent because it was
based upon inadequate and inconclusive evidence.
The trial court properly admitted expert opinion testimony that the bruise on Eric's scrotum
resulted from a human bite. Prior to the presentation of the evidence to the jury, the court held
an in camera hearing to determine the competence of the evidence. The court found the
expert, a forensic odontologist, to be properly qualified. The expert witness acknowledged the
inherent limitations in his investigation. Because the bite mark was located on pliable tissue,
the expert testified that it was impossible to make an ideal comparison between the bite mark
and a dental impression of either appellant; however, the expert was able to testify, based on a
reasonable dental certainty, that the bruises on Eric's scrotum were caused by human teeth.
The trial court properly concluded that any dispute over the evidence went to its weight and
not its admissibility.
Appellants also erroneously argue that the bite mark evidence and evidence of other
bruises were incompetent because there was no prior establishment, by clear and convincing
evidence, that either Curt or Judi was responsible for each of the prior injuries.
1
Admissibility of the bite mark and other bruise evidence does not depend on connecting
either defendant to the infliction of the injury. It is independent, relevant circumstantial
evidence tending to show that the child was intentionally, rather than accidentally, injured on
the day in question.
____________________

1
With respect to the bite mark, the forensic odontologist testified that although the scrotal tissue was too
pliable to permit a perfect comparison, he was able to determine that the bite mark was not made by Judi; and
while he could not be certain that Curt Bludsworth was responsible for the injury, the expert concluded that
Curt's dentition was consistent with the mark.
98 Nev. 289, 292 (1982) Bludsworth v. State
Proof that a child has experienced injuries in many purported accidents is evidence that the
most recent injury may not have resulted from yet another accident. See Barnard, supra.
[Headnote 3]
Appellants also claim that the trial court committed prejudicial error in refusing to sever
the trials on the murder and child abuse charges.
2
Both appellants base their arguments on
the assumption that certain evidence which was admissible on one count was inadmissible on
the other count. Curt argues that the evidence of prior injuries, if admissible at all, was
admissible only on the child abuse count and was therefore prejudicial on the murder count.
Judi argues the opposite.
We cannot agree with either appellant. The child abuse and murder counts were properly
joined since they arose out of the same series of acts. NRS 173.115 permits joinder in such
instances.
3
The information clearly limited the charge of child abuse to the events occurring
on September 3, 1979, the date of the fatal injury. The trial court repeatedly advised the jury
that the evidence was not admissible to prove separate prior acts of child abuse; it was
admissible only as circumstantial evidence to prove culpability for the events of September 3.
The evidence was clearly relevant to both the murder and child abuse charges. Since both
charges related to the same transaction and since the allegedly prejudicial information was
admissible on both counts, the trial court did not err in refusing to sever the counts.
[Headnotes 4, 5]
Appellants next claim that the Nevada child abuse statute is unconstitutionally vague. Both
appellants were convicted under NRS 200.508, which authorizes criminal penalties for any
adult who willfully causes or permits a child . . . to suffer unjustifiable physical pain or
mental suffering as a result of abuse or neglect. . . . Appellants charge that the phrase
unjustifiable physical pain or mental suffering is unconstitutionally vague.
____________________

2
NRS 174.165 provides that trials on separate counts may be severed if either party would be prejudiced by
joinder.

3
NRS 173.115 provides as follows:
NRS 173.115 Joinder of offenses. Two or more offenses may be charged in the same indictment or
information in a separate count for each offense if the offenses charged, whether felonies or
misdemeanors or both, are:
1. Based on the same act or transaction; or
2. Based on two or more acts or transactions connected together or constituting parts of a common
scheme or plan.
98 Nev. 289, 293 (1982) Bludsworth v. State
Our statute, as applied to these appellants, is clearly constitutional. A criminal statute is
unconstitutionally vague only if one cannot reasonably understand that contemplated conduct
is proscribed. United States v. National Dairy Corp., 372 U.S. 29, 32-33 (1963). The state
alleged and proved that appellants either struck Eric on the head or permitted him to be
struck. In light of the evidence concerning the violence or force used against Eric and the
severity of his injuries, it is untenable for appellants to claim that they could not have
reasonably known their conduct was criminal.
We have considered the other assignments of error presented by appellants and find them
to be without merit.
4
The convictions of both appellants are affirmed.
Gunderson, C. J., and Manoukian, Mowbray, and Steffen, JJ., concur.
____________________

4
Appellant Curt Bludsworth has also questioned whether child abuse might be a lesser included offense of
murder. To determine whether punishment on two charges would constitute double jeopardy, the applicable test
is whether each provision requires proof of a fact which the other does not. Blockburger v. United States, 284
U.S. 299 (1932). See also Litteral v. State, 97 Nev. 503, 634 P.2d 1226 (1981). There is at least one element in
each offense which is not present in the other. Conviction for murder requires, of course, that the victim die.
Conviction for child abuse requires, among other things, that the victim be under the age eighteen. Child abuse
thus is not a lesser included offense of murder.
____________
98 Nev. 293, 293 (1982) Schwob v. Hemsath
CHARLES SCHWOB, ROBERT SCHWOB, COAST-TO-COAST STORE OF MINDEN,
NEVADA, Appellants, v. ROBERT W. HEMSATH, Respondent.
No. 13198
June 23, 1982 646 P.2d 1212
Appeal from final judgment. Ninth judicial District Court, Douglas County; Frank B.
Gregory, Senior Judge.
Appeal was taken from the district court which entered judgment against corporation in
dispute over property. The Supreme Court held that where title to asset in dispute was in
corporation which had never been served with summons in action, and had never appeared as
a defendant, judgment could not be entered against it.
Reversed and remanded with directions.
Smith & Gamble, Carson City, for Appellants.
98 Nev. 293, 294 (1982) Schwob v. Hemsath
Sheerin, O'Reilly, Walsh & Keele, Carson City, for Respondent.
1. Quieting Title.
Where corporation held legal title to property in controversy, a hardware store, and district court ordered
that hardware store be conveyed to the respondent, the corporation was an indispensable party in action.
NRCP 19(a).
2. Appeal and Error; Parties.
Failure to join an indispensable party is fatal to a judgment and may be raised by an appellate court sua
sponte. NRCP 19(a).
3. Parties.
Where title to asset in dispute was in corporation which was an indispensable party but had never been
served with summons in action, and had never appeared as a defendant, judgment could not be entered
against the corporation. NRCP 4(d), 19(a).
OPINION
Per Curiam:
1

[Headnotes 1, 2]
The record before this court indicates that the district court entered judgment against a
corporation, R.N.S., Inc., which was never served with process in the action. Without proper
service of process the district court acquires no jurisdiction over a party. NRCP 4(d);
Brockbank v. District Court, 65 Nev. 781, 201 P.2d 299 (1948); State v. District Court, 51
Nev. 206, 273 P. 659 (1929). Nothing in the record before this court suggests that R.N.S.,
Inc., has ever appeared in the action or subjected itself to the jurisdiction of the court. Cf.
Deros v. Stern, 87 Nev. 148, 483 P.2d 648 (1971). It is undisputed that R.N.S., Inc., holds
legal title to the property in controversy here, a hardware store in Minden. By its judgment,
the district court ordered that the hardware store be conveyed to respondent Hemsath. Thus it
is evident that R.N.S., Inc., is an indispensable party. NRCP 19(a); Johnson v. Johnson, 93
Nev. 655, 572 P.2d 925 (1977); Chiodo v. General Waterworks Corporation, 380 F.2d 860
(10th Cir.), cert. denied, 389 U.S. 1004 (1967). Failure to join an indispensable party is fatal
to a judgment and may be raised by an appellate court sua sponte. Provident Bank v.
Patterson, 390 U.S. 102 (1968); Johnson v. Johnson, supra.
[Headnote 3]
In this case, it is conceded that title to the asset in dispute is in a corporation which has
never been served with summons in the action, and has never appeared as a defendant.
____________________

1
The Honorable Noel E. Manoukian, Justice, voluntarily disqualified himself from the decision of this case.
98 Nev. 293, 295 (1982) Schwob v. Hemsath
the action, and has never appeared as a defendant. See Blum v. Postal Telegraph, 60 F.Supp.
237 (W.D.Pa. 1945) (plaintiff must comply with service of summons requirements to add
party defendant). Accordingly, we reverse the judgment of the district court and remand this
case with directions to allow the respondent the opportunity to join the party, and to grant a
new trial if the party is properly joined. Sandobal v. Armour and Company, 429 F.2d 249 (8th
Cir. 1970); McShan v. Sherrill, 283 F.2d 462 (9th Cir. 1960).
Reversed and remanded.
____________
98 Nev. 295, 295 (1982) Hill v. State
EUGENE CARMEN HILL, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12980
June 25, 1982 647 P.2d 370
Appeal from judgment of conviction of second degree murder following jury trial. Second
Judicial District Court, Washoe County; William N. Forman, Judge.
The Supreme Court held that: (1) an honest, but unreasonable, belief in the necessity of
self-defense does not reduce the offense from murder to manslaughter, and (2) it was not
reversible error to refuse to instruct that prosecution had burden of proving that defendant did
not act in self-defense.
Affirmed.
William N. Dunseath, Public Defender, and Jane G. McKenna, Deputy Public Defender,
Washoe County, for Appellant.
Calvin R. X. Dunlap, District Attorney, and Edward B. Horn and Bruce Laxalt, Deputy
District Attorneys, Washoe County, for Respondent.
1. Homicide.
An honest, but unreasonable, belief in the need for self-defense, does not reduce the degree of the offense
from murder to manslaughter. NRS 200.010, 200.040, 200.050, 200.120, 200.130.
2. Homicide.
Burden of proving absence of justification or excuse for homicide rests with the state. NRS 200.010,
200.040, 200.050, 200.120, 200.130.
3. Criminal Law.
Although it is preferable that the jury be specifically instructed as to state's burden of proof on a
defendant's affirmative defense, it was not reversible error to refuse to instruct that
prosecution had burden of proving that defendant did not act in self-defense where,
as a whole, instructions adequately informed jury that the prosecution's burden of
proof applied to that affirmative defense.
98 Nev. 295, 296 (1982) Hill v. State
to state's burden of proof on a defendant's affirmative defense, it was not reversible error to refuse to
instruct that prosecution had burden of proving that defendant did not act in self-defense where, as a whole,
instructions adequately informed jury that the prosecution's burden of proof applied to that affirmative
defense. NRS 200.010, 200.120, 200.130.
OPINION
Per Curiam:
Appellant has appealed from a judgment of conviction of second degree murder following
a jury verdict. He contends that the trial court erred by refusing to instruct the jury that an
honest, but unreasonable belief in the need for self-defense reduces the degree of the offense
from murder to manslaughter. He also contends that reversible error occurred when the trial
court refused to instruct the jury that the prosecution has the burden of proving that the
defendant did not act in self-defense. We reject both contentions and affirm the conviction.
Appellant was convicted of second degree murder for the January 14, 1980, fatal stabbing
of David Wayne Palmer in a pool hall and bar in Reno. At trial, Hill based his defense largely
on a theory of self-defense. There was testimony, much of it from Hill himself, indicating that
Palmer and his friends had verbally threatened Hill and that Palmer had brandished a pool cue
at him. Other testimony from several eyewitnesses contradicted Hill's theory of self-defense
and suggested that Hill, who was intoxicated at the time, was the perpetrator of and aggressor
in the ensuing fight. No one witnessed the actual stabbing, but when the fight ended, Palmer
collapsed, mortally wounded, and died shortly thereafter from a stab wound to the chest.
The trial judge instructed the jury on the elements of murder, manslaughter and
self-defense. See NRS 200.010, 200.120, 200.130.
[Headnote 1]
NRS 200.120, 200.130 require that in order for homicide to be justified, the defendant's
belief in the necessity of using force in self-defense must be reasonable. Appellant urges us to
adopt the rule espoused in People v. Flannel, 603 P.2d 1 (Cal. 1980). The California Supreme
Court held that if a defendant entertained an honest, but unreasonable, belief in the necessity
of self-defense, at most he could be convicted only of manslaughter, since such a belief is
inconsistent with and negates malice, an element of murder.
98 Nev. 295, 297 (1982) Hill v. State
We reject this imperfect self-defense theory because, unlike California's statutory
scheme, NRS 200.040 and NRS 200.050 provide an express restriction on the situations
giving rise to voluntary manslaughter.
1
As the Arizona Supreme Court stated in State v.
Tuzon, 575 P.2d 1231, 1235 (Ariz. 1978) (interpreting A.R.S. 13-462):
[a] plea of self-defense . . . only seeks to justify a homicide. If the jury had found that it
was unreasonable for the appellant to believe that the victim was shooting at him, then
the homicide simply was not justified. The standard is a reasonable person's belief, not
the unreasonable, even if honest, belief of the accused. [Citation omitted.]
[Headnotes 2, 3]
Finally, the trial court did not commit reversible error by refusing to instruct the jury that
the prosecution has the burden of proving that the defendant did not act in self-defense.
Without doubt, the burden of proving absence of justification or excuse for the homicide
resides with the state. See St. Pierre v. State, 96 Nev. 887, 620 P.2d 1240 (1980), and Kelso
v. State, 95 Nev. 37, 588 P.2d 1035, cert. denied, 442 U.S. 921 (1979). It is preferable that
the jury be specifically instructed as to the state's burden of proof on a defendant's affirmative
defense. However, the trial court gave numerous instructions, which taken as a whole,
adequately informed the jury that the prosecution's burden of proof applied to defendant's
affirmative defense. See People v. Travis, 558 P.2d 579 (Colo. 1976). The instant case is
readily distinguishable from St. Pierre and Kelso, supra, in which a given instruction
impermissibly placed the burden of proving self-defense squarely on the defendant.
We affirm appellant's conviction.
____________________

1
NRS 200.040 provides:
Manslaughter is the unlawful killing of a human being, without malice express or implied, and
without any mixture of deliberation. It must be voluntary, upon a sudden heat of passion, caused by a
provocation apparently sufficient to make the passion irresistible; or, involuntary, in the commission of
an unlawful act, or a lawful act without due caution or circumspection.
NRS 200.050 provides:
In cases of voluntary manslaughter, there must be a serious and highly provoking injury inflicted upon
the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the
person killed to commit a serious personal injury on the person killing.
____________
98 Nev. 298, 298 (1982) Public Serv. Comm'n v. Lear
PUBLIC SERVICE COMMISSION OF NEVADA and SOUTHWEST GAS
CORPORATION, A Nevada Corporation, Appellants, v. JOHN O. LEAR and MARILEE
LEAR, Respondents.
No. 13200
June 25, 1982 646 P.2d 1213
Appeal from order vacating and remanding Public Service Commission decision, Eighth
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Appeal was taken from an order of the district court vacating and remanding a Public
Service Commission decision against gas customers. The Supreme Court held that district
court did not err in vacating and remanding Public Service Commission decision against gas
customers who had claimed that gas bill was in error where Commission relied solely on
evidence of accurate meter reading while refusing even to consider evidence presented by
customers since reliance on gas meter readings was not only reliable means of determining
gas consumption.
Affirmed.
Zev E. Kaplan, Carson City, for Appellant Public Service Commission.
William A. Claerhout and Rochelle Levine Berkley, Las Vegas, for Appellant Southwest
Gas Corp.
Stephen R. Minagil, Las Vegas, for Respondents.
1. Public Utilities.
Neither district court nor Supreme Court may substitute its judgment for that of Public Service
Commission. NRS 704.540, 704.540, subd. 3.
2. Public Utilities.
Supreme Court, like district court, is limited in its review of Public Service Commission's decision to
determination of whether the decision was supported by substantial evidence. NRS 704.540, 704.540,
subd. 3.
3. Gas.
District court did not err in vacating and remanding Public Service Commission decision against gas
customers who had claimed that gas bill was in error where Commission relied solely on evidence of
accurate meter reading while refusing even to consider evidence presented by customers since reliance on
gas meter readings was not only reliable means of determining gas consumption.
98 Nev. 298, 299 (1982) Public Serv. Comm'n v. Lear
OPINION
Per Curiam:
This appeal is taken from a district court order vacating and remanding a Public Service
Commission (PSC) decision against respondents John and Marilee Lear. We affirm.
In February 1979, the Lears received a monthly bill from Southwest Gas Corporation
(Southwest) in the amount of $465.46. This figure allegedly represented the amount of gas
Southwest had furnished the Lears during the billing period of January 19, 1979 to February
20, 1979. Since this bill was much higher than their previous bills, the Lears complained to
Southwest. Not being able to settle their dispute with Southwest, the Lears filed a complaint
with the PSC. After a hearing, the PSC concluded that Southwest had proved it had delivered
at least $465.46 worth of gas to the Lears, and that Southwest was entitled to payment in that
amount.
Thereafter, the Lears filed a complaint in district court seeking judicial review of the PSC's
decision pursuant to NRS 704.540. No new evidence was presented at the district court
hearing. However, after reviewing the pleadings and the transcript of the PSC hearing, the
district court entered an order vacating the PSC's decision in favor of Southwest on the
ground that it was not supported by substantial evidence. The PSC and Southwest have
appealed.
[Headnotes 1, 2]
The sole issue on appeal is whether the district court erred by vacating the PSC's decision
for lack of substantial evidence. Neither the district court, nor this court, may substitute its
judgment for that of the PSC. State PSC v. Zephyr Cove Water Co., 94 Nev. 634, 584 P.2d
698 (1978); No. Las Vegas v. Pub. Serv. Comm'n, 83 Nev. 278, 429 P.2d 66 (1967). The
supreme court, like the district court, is limited in its review to a determination of whether the
PSC's decision was supported by substantial evidence. Id.
1

[Headnote 3]
At the PSC hearing, the Lears presented evidence that their previous and subsequent
monthly gas bills were $31.72 and $2S.S0, respectively.
____________________

1
Citing NRS 704.540(3), the Lears contend, for the first time on appeal, that the district court was not limited
in its review to a determination of whether the PSC's decision was supported by substantial evidence. We do not
find the Lears' construction of NRS 704.540(3) persuasive in view of our holdings in State PSC v. Zephyr Cove
Water Co., supra, and No. Las Vegas v. Pub. Serv. Comm'n, supra, both of which involved actions brought
pursuant to NRS 704.540.
98 Nev. 298, 300 (1982) Public Serv. Comm'n v. Lear
previous and subsequent monthly gas bills were $31.72 and $28.80, respectively. Mrs. Lear
testified that her husband was out of town for 13 days of the billing period in question, and
that his absence affected her style of living so as to reduce the amount of gas usage. She also
testified that they had not used their swimming pool heater, downstairs fireplace, or barbeque
during Mr. Lear's absence. The Lears also presented the testimony of John G. Tryon, an
engineering professor, who stated that based on his examination of photographs of the
swimming pool taken during the billing period, it was his opinion that the pool heater had not
been used, since there was snow surrounding the pool.
Southwest countered with evidence that the Lears' gas meter had been read and reread,
tested and retested. The first test showed that the meter was accurate to .10 percent slow in
favor of the customer. The second test revealed that the meter was .05 percent slow in favor
of the customer. The gas line was checked, and no leaks were found. In its presentation,
Southwest called seven witnesses, all with expertise in the natural gas industry, and all of
whom testified that the meter accurately reflected the amount of gas the company had
delivered to the Lears. The testimony indicated that once the gas passed through the meter,
Southwest could neither control nor explain what use was made of it by the customer.
After hearing the evidence, the PSC entered a decision in favor of Southwest. The district
court apparently viewed the PSC decision as relying solely on evidence of the accurate meter
while refusing even to consider the evidence presented by the Lears. Indeed, the PSC decision
states in part: This Commission has determined that reliance upon accurate meters is the
only viable means of measuring the quantity of gas delivered by a utility to a customer. In
vacating and remanding the decision, the district court stated:
IT IS HEREBY ORDERED that the STATE OF NEVADA, PUBLIC SERVICE
COMMISSION'S position of relying on the testing of the gas meter exclusively is
reasonable for the greatest number of disputed bill cases. However, when the
challenged bill reflects a dollar amount so inconsistent with prior and subsequent gas
usage, as in the instant case, the COMMISSION must consider other evidence.
Therefore, under the circumstances of the instant case, the order of the PUBLIC
SERVICE COMMISSION is unreasonable and not supported by substantial evidence.
This case is remanded to the STATE OF NEVADA, PUBLIC SERVICE
COMMISSION to enter an order not inconsistent with the above.
98 Nev. 298, 301 (1982) Public Serv. Comm'n v. Lear
The district court's conclusion is not unreasonable. While reliance on accurate meters is
certainly a viable means of measuring the amount of gas delivered by a utility to its customer,
we decline to adopt the rule urged by appellants that such reliance is the only viable means of
determining gas consumption.
Affirmed.
2

____________________

2
At oral argument, counsel for the Lears conceded that the district court's order did not mandate a PSC
decision in their favor, but merely remanded the case for consideration of other evidence, presumably the
evidence presented by the Lears at the hearing. We express no opinion as to what the PSC's decision should be
on remand.
____________
98 Nev. 301, 301 (1982) Walport v. Walport
EDWARD E. WALPORT, Appellant, v. ELIZABETH
J. WALPORT, Respondent.
No. 13639
June 25, 1982 646 P.2d 1215
Appeal from order denying motion to modify decree of divorce, Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
Ex-husband appealed from an order of the district court which denied his motion to
modify a decree of divorce. The Supreme Court held that ex-wife's failure to obtain counsel
and to file her brief despite two delays granted by the Supreme Court to allow her to do so,
and despite a warning that failure to comply with the court order might be treated by the court
as a confession of error, warranted a finding of confession of error.
Reversed and remanded.
Robert C. LePome, Las Vegas, for Appellant.
Elizabeth J. Walport, Las Vegas, In Proper Person.
Divorce.
On appeal of order denying motion to modify decree of divorce, respondent's failure to retain counsel and
file answering brief in six-month period, despite Supreme Court's entry of two orders granting her
additional 30 days to obtain counsel and to file brief, and despite warning that failure to comply with court
order might be treated as confession of error, warranted treating respondent's conduct as confession of
error.
98 Nev. 301, 302 (1982) Walport v. Walport
OPINION
Per Curiam:
On January 20, 1982, respondent was granted 30 days in which to obtain counsel, and 60
days in which to file her brief in this matter. Respondent failed to comply with that order. On
April 5, 1982, we entered an order, sua sponte, granting respondent an additional 30 days to
obtain counsel and to file her brief in this matter. Respondent was, at that time, informed that
failure to comply with our order might be treated by the court as a confession of error and
appropriate disposition of the appeal made. Nevertheless, respondent has not filed an
answering brief and, apparently, has not retained counsel.
We choose to treat respondent's conduct as a confession of error. NRAP 31(c); Rockwell
v. Rockwell, 98 Nev. 80, 640 P.2d 1318 (1982). Accordingly, we reverse the order denying
appellant's motion to modify the decree of divorce in this matter, and we remand to the
district court for further proceedings.
____________
98 Nev. 302, 302 (1982) Hardin v. Griffin
CORDELL HARDIN, Petitioner, v. HONORABLE MICHAEL R. GRIFFIN, DISTRICT
JUDGE, FIRST JUDICIAL DISTRICT, DEPARTMENT I, Respondent.
No. 14102
June 25, 1982 646 P.2d 1216
Petition for writ of mandamus or prohibition.
Accused petitioned for writ of mandamus or prohibition challenging a district court order
denying his pretrial petition for writ of habeas corpus. The Supreme Court held that: (1)
pretrial habeas corpus could not be used to challenge admissibility of evidence on
constitutional grounds; (2) the Court would not entertain a petition for writ of mandamus or
prohibition challenging the district court's probable cause determination; and (3) even if
defendant were to prevail on his argument that prior drunk driving convictions could only be
used for enhancement at the time of sentencing on conviction of felony drunk driving, he
would not be entitled to release from custody because he would still have to stand trial on
felony charge and thus, his argument was not the proper subject of a pretrial habeas corpus
petition.
Petition denied.
98 Nev. 302, 303 (1982) Hardin v. Griffin
J. Gregory Damm, Nevada State Public Defender, and Annabelle Whiting Hall, Deputy
State Public Defender, Carson City, for Petitioner.
William Maddox, District Attorney, Carson City, for Respondent.
1. Habeas Corpus.
Pretrial habeas corpus could not be used to challenge admissibility of evidence on constitutional grounds,
but such challenge could be made on motion to suppress evidence, and review of district court's ruling
could be sought following trial and conviction.
2. Mandamus; Prohibition.
Supreme Court would not entertain petition for writ of mandamus or prohibition which challenged district
court's probable cause determination.
3. Habeas Corpus.
In prosecution for felony driving under influence of intoxicating liquors, defendant would not be entitled
to immediate release from custody even if he prevailed on his contention that three prior convictions could
be used solely for sentencing enhancement purposes, rather than as elements of offense, and thus this
contention could not be entertained on pretrial habeas corpus petition; furthermore, defendant would have
plain, speedy and adequate remedy of appeal for any prejudicial error which might occur in use of those
prior convictions.
OPINION
Per Curiam:
This original proceeding in mandamus and prohibition challenges the order of the district
court denying a pretrial petition for writ of habeas corpus. For the reasons set forth below, we
deny the petition for extraordinary relief. NRAP 21(b).
Hardin stands charged with driving under the influence of intoxicating liquors. The
criminal information alleges that this is Hardin's third offense within five years, and that the
offense is therefore a felony under NRS 484.379. At the preliminary hearing on January 12,
1982, evidence of Hardin's two prior convictions was admitted over a defense objection. The
justice of the peace found probable cause to believe that Hardin committed the felony, and
Hardin was bound over to the district court for trial.
The major premise of the habeas corpus petition was that insufficient evidence was
presented at the preliminary hearing because the evidence of Hardin's two prior convictions
was constitutionally infirm.
1
The district court found that records of the prior convictions
were admissible at the preliminary hearing; therefore, the court found that probable
cause existed as to the felony charged.
____________________

1
Specifically, Hardin argued that the records of the prior convictions, both of which were based on guilty or
nolo contendere pleas, did not show sufficient waivers of counsel. Hardin also argued that there was no showing
that the pleas were knowing and voluntary.
98 Nev. 302, 304 (1982) Hardin v. Griffing
of the prior convictions were admissible at the preliminary hearing; therefore, the court found
that probable cause existed as to the felony charged.
[Headnotes 1, 2]
Pretrial habeas corpus may not be used to challenge admissibility of evidence on
constitutional grounds. Cook v. State, 85 Nev. 692, 462 P.2d 523 (1969). Such a challenge
should be made in a motion to suppress evidence, and review of the district court's ruling may
be sought following trial and conviction. Id. In addition, we will not entertain a petition for
writ of mandamus or prohibition which challenges the district court's probable cause
determination. Kussman v. District Court, 96 Nev. 544, 612 P.2d 679 (1980). Therefore, we
decline to review, in this original prohibition and mandamus proceeding, the district court's
pretrial ruling as to admissibility of evidence.
[Headnote 3]
The habeas corpus petition filed in district court also discussed the question of whether the
prior convictions were elements of the offense or were merely to be used for enhancement at
the time of sentencing. The district court ruled that the prior convictions would be used as
substantive proof of the crime charged, and that the prior convictions would not be used
solely for enhancement purposes during sentencing. The present petition challenges that
ruling.
We note that even under Hardin's interpretation of NRS 484.379, and even if Hardin were
to prevail in his argument as to how the prior convictions should be used at trial, Hardin
would not be entitled to immediate release from custody because he would still have to stand
trial on the felony charge. Thus, Hardin's argument was not the proper subject of a pretrial
habeas corpus petition. See NRS 34.360 et seq.; cf. Director, Dep't Prisons v. Arndt, 98 Nev.
84, 640 P.2d 1318 (1982) (habeas corpus warranted only to challenge legality of custody or
restraint).
Furthermore, to the extent that Hardin invites this court to issue a pretrial interpretation of
NRS 484.379, we decline to intervene. Hardin's contention as to how the prior convictions
should be used at trial can be raised on direct appeal if Hardin is convicted. NRS 177.045.
Thus, he will have a plain, speedy and adequate remedy for any prejudicial error which might
occur at trial, and this court will have a complete record upon which to review the issues
presented. See NRS 34.170; 34.330.
The petition is denied.
2

____________________

2
Of course, we express no opinion on the merits of issues raised by Hardin in this petition.
____________
98 Nev. 305, 305 (1982) State v. O'Donnell
The STATE OF NEVADA, Petitioner, v. THE HONORABLE THOMAS J. O'DONNELL,
District Judge, Eighth Judicial District Court of the State of Nevada; and DONALD J.
BOWEN, Defendant, Respondents.
No. 14010
June 25, 1982 646 P.2d 1217
State petitioned for writ of mandamus, challenging district court's order dismissing
criminal complaint against defendant on ground of late filing of transcript of record of
original proceedings. The Supreme Court held that late filing of transcript by justice's court
did not warrant dismissal of underlying criminal charges against defendant.
Petition granted.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Petitioner.
David Abbatangelo, Las Vegas, for Respondents.
Criminal Law.
Late filing of transcript of record of original proceedings against defendant by justice's court on
defendant's appeal of conviction to the district court did not warrant dismissal of underlying criminal
charges against defendant.
OPINION
Per Curiam:
This petition for a writ of mandamus challenges the respondent district court's order
dismissing the criminal complaint against defendant Donald J. Bowen, real party in interest.
1

On January 6, 1982, Bowen was convicted in justice's court of disturbing the peace.
Bowen thereafter appealed his conviction to the district court. On March 1, 1982, the district
judge dismissed the complaint and charges against Bowen, with prejudice, on the ground that
the justice's court had failed to transcribe and transfer the record of the original proceedings
against Bowen within the ten days prescribed by NRS 1S9.030.2 The district judge
reasoned that the district attorney's office had the responsibility to see that Bowen's
appeal proceeded in accordance with the law, and that to ignore the ten-day time limit set
forth in NRS 1S9.030 exhibited a procedural laxity which warranted dismissal of the
charges against the defendant.
____________________

1
We note that respondent did not file an answer against issuance of a writ as ordered by this court. Despite
this dereliction, we review the merits of the petition pursuant to NRS 34.200 and NRS 34.260.
98 Nev. 305, 306 (1982) State v. O'Donnell
against Bowen within the ten days prescribed by NRS 189.030.
2
The district judge reasoned
that the district attorney's office had the responsibility to see that Bowen's appeal proceeded
in accordance with the law, and that to ignore the ten-day time limit set forth in NRS 189.030
exhibited a procedural laxity which warranted dismissal of the charges against the defendant.
In most appeals, the burden is not on the respondent to insure that the record is filed or to
otherwise perfect the appeal. See, e.g., NRAP 12(c); NRS 189.065. We have found no case or
statutory authority to support the reasoning of the district judge that the prosecutor's office
had the responsibility to see that the record on Bowen's appeal was timely filed with the
district court.
We hold that the late filing of the transcript by the justice's court does not warrant
dismissal of the underlying criminal charges against the defendant. Accordingly, we grant the
writ of mandamus and direct the district court to vacate its order dismissing the criminal
complaint and charges against Bowen. The district court shall proceed with the merits of
Bowen's appeal.
____________________

2
NRS 189.030 provides in pertinent part:
1. The justice shall, within 10 days after the notice of appeal is filed, transmit to the clerk of the
district court the transcript of the case, all other papers relating to the case and a certified copy of his
docket. (Emphasis added.)
2. The justice shall give notice to the appellant or his attorney that the transcript and all other papers
relating to the case have been filed with the clerk of the district court.
____________
98 Nev. 307, 307 (1982) Collier v. Legakes
GREGORY ALAN COLLIER, Petitioner, v. THE HONORABLE ROBERT G. LEGAKES,
as District Judge, Eighth Judicial District Court of the State of Nevada, in and for the County
of Clark, Respondent.
No. 13900
THE STATE OF NEVADA, Petitioner, v. THE HONORABLE THOMAS J. O'DONNELL,
District Judge, Eighth Judicial District Court of the State of Nevada, in and for the County of
Clark; BERNICE DIANE CARDARELLI; WILLIAM O'DONNELL; and VICKY
INGEGNERI, Defendants, Respondents.
No. 13914
RUSSELL WAYNE CREW, Petitioner, v. THE HONORABLE ADDELIAR D. GUY, Judge
of the Eighth Judicial District of the State of Nevada, in and for the County of Clark,
Respondent.
No. 13928
June 25, 1982 646 P.2d 1219
Consolidated petitions were filed for writs of mandamus challenging district court orders
granting and denying pretrial motions to disqualify the Clark County district attorney's office
from prosecution of certain criminal proceedings. The Supreme Court denied petitions in two
cases as there was no showing that district judges acted arbitrarily or capriciously in refusing
to disqualify prosecutor and issued writ in one case where disqualification was based solely
on appearance of impropriety.
Petitions denied in No. 13900 and No. 13928. Petition granted in No. 13914.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
James Tufteland, and Daniel M. Seaton, Deputy District Attorneys, Clark County; Morgan D.
Harris, Public Defender, Terrence M. Jackson, Deputy Public Defender, Clark County;
Goodman, Terry, Stein & Quintana, Las Vegas, for Petitioners.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
James Tufteland, and Daniel M. Seaton, Deputy District Attorneys, John J. Momot, David
Abbatangelo, Las Vegas, for Respondent.
98 Nev. 307, 308 (1982) Collier v. Legakes
1. Criminal Law.
Disqualification of a prosecutor's office rests with the sound discretion of the district court and in
exercising that discretion the trial judge should consider all the facts and circumstances and determine
whether the prosecutorial function could be carried out impartially and without breach of any privileged
communication.
2. Criminal Law.
Vicarious disqualification of prosecutor's office may be warranted in extreme cases where the appearance
of unfairness or impropriety is so great that the public trust and confidence in the criminal justice system
could not be maintained without such action, and such an extreme case may exist even where the state has
established an effective screen precluding the individual lawyer's direct or indirect participation in
prosecution.
3. Mandamus.
While mandamus lies to enforce ministerial acts or duties and to require the exercise of discretion, it will
not serve to control the proper exercise of that discretion or to substitute the judgment of a reviewing court
for that of the lower tribunal.
4. Criminal Law.
District judges exercised their discretion and neither defendant demonstrated that the judges acted
arbitrarily or capriciously in refusing to disqualify Clark County prosecutor's office where when one
defendant's case first came to public defender's office the present chief deputy district attorney was then the
chief deputy public defender but was not participating in defendant's prosecution and where, in second
case, a deputy with the district attorney's office had, while in private practice, represented a codefendant at
latter's murder trial, but had not participated in instant defendant's prosecution.
5. Mandamus.
Mandamus would lie where district court did not exercise its discretion in ruling on motion to disqualify
county district attorney's office because chief deputy district attorney had formerly represented defendant
while employed at public defender's office but had disqualified prosecutor's office solely on basis of
appearance of impropriety.
OPINION
Per Curiam:
In these mandamus proceedings, all petitioners challenge orders of the respondent district
court granting of denying pretrial motions to disqualify the Clark County District Attorney's
Office from the prosecution of certain criminal proceedings. We deny the petitions in No.
13900 and No. 13928. We grant the petition in No. 13914.
STATEMENT OF THE FACTS
No. 13900:
Petitioner Collier is charged with murder, robbery with the use of a weapon, and
possession of a firearm by an ex-felon. Collier is represented by the Clark County Public
Defender's Office.
98 Nev. 307, 309 (1982) Collier v. Legakes
Office. When his case first came to the public defender's office, Thomas Leen was the chief
deputy public defender. Thomas Leen now works for the Clark County District Attorney's
Office as chief deputy district attorney, but is not participating in Collier's prosecution.
Collier moved the district court to disqualify the district attorney's office from prosecuting
his case. The district court conducted an evidentiary hearing and thereafter denied Collier's
motion.
No. 13914:
Defendants William O'Donnell, Vicky Ingegneri, and Bernice Cardarelli are charged with
selling a controlled substance and conspiracy to sell a controlled substance. Defendant
O'Donnell is represented by the Clark County Public Defender's Office and defendants
Ingegneri and Cardarelli have each retained private counsel.
Defendant Cardarelli moved the district court to disqualify the Clark County District
Attorney's Office from prosecuting the case on the ground that Thomas Leen had formerly
represented co-defendant O'Donnell while Leen was employed at the Clark County Public
Defender's Office. The district court, without holding an evidentiary hearing, granted
Cardarelli's motion, thereby disqualifying the district attorney's office from prosecuting all
three defendants.
No. 13928:
Petitioner Russell Crew, charged with two counts of murder and two counts of use of a
deadly weapon in the commission of a crime, moved the district court to disqualify the Clark
County District Attorney's Office from prosecuting his case. He contended that a conflict of
interest was present due to Bill Berrett's position with the district attorney's office as a deputy.
Mr. Berrett, a former private practitioner, had represented Crew's co-defendant at the
co-defendant's murder trial. Berrett is not participating in Crew's prosecution, however.
After holding a hearing on the motion, and reviewing the briefs and affidavits submitted in
support of and in opposition to the motion, the district court denied Crew's motion.
DECISION
[Headnotes 1, 2]
The disqualification of a prosecutor's office rests with the sound discretion of the district
court. Tomlin v. State, 81 Nev. 620, 407 P.2d 1020 (1965); Hawkins v. 8th District Court, 67
Nev. 248, 216 P.2d 601 (1950); Trone v. Smith, 621 F.2d 994 {9th Cir.
98 Nev. 307, 310 (1982) Collier v. Legakes
(9th Cir. 1980). In exercising that discretion, the trial judge should consider all the facts and
circumstances and determine whether the prosecutorial function could be carried out
impartially and without breach of any privileged communication. As stated in State v.
Tippecanoe County Court, 432 N.E.2d 1377, 1379 (Ind. 1982):
[E]thical rules require that a lawyer should avoid even the appearance of professional
impropriety and that in certain situations the disqualification of one lawyer within a law
firm means that all members of the firm are also disqualified. Canons 5 and 9, DR
5-105(D). While this principle is strictly enforced in the context of civil actions
conducted by private law firms, it is less strictly applied to government agencies. Where
a lawyer who has represented a criminal defendant on prior occasions is one of the
deputy prosecutors, disqualification of the entire office is not necessarily appropriate.
Individual rather than vicarious disqualification may be the appropriate action,
depending upon the specific facts involved. (Emphasis added.)
Further, we recognize that vicarious disqualification may be warranted in extreme cases
where the appearance of unfairness or impropriety is so great that the public trust and
confidence in our criminal justice system could not be maintained without such action. Such
an extreme case might exist even where the state has established an effective screen
precluding the individual lawyer's direct or indirect participation in the prosecution.
[Headnote 3]
Finally, while mandamus lies to enforce ministerial acts or duties and to require the
exercise of discretion, it will not serve to control the proper exercise of that discretion or to
substitute the judgment of this court for that of the lower tribunal. See Kochendorfer v. Board
of Co. Comm'rs, 93 Nev. 419, 566 P.2d 1131 (1977).
[Headnote 4]
In petition No. 13900, the district judge, after considering the testimonial evidence
presented at the evidentiary hearing, exercised his discretion and denied Collier's motion to
disqualify. Similarly, in petition No. 13928, the district judge, after holding a hearing on
Crew's motion to disqualify and reviewing the briefs and affidavits submitted in support of
and in opposition to the motion, denied Crew's motion. Since the respondent district judges in
both petition No. 13900 and petition No. 13928 exercised their discretion, and since neither
Collier nor Crew has demonstrated that the district judges acted arbitrarily or capriciously in
doing so, mandamus does not lie to challenge the denial of their motions to disqualify.
98 Nev. 307, 311 (1982) Collier v. Legakes
to challenge the denial of their motions to disqualify. Accordingly, we deny the petitions in
No. 13900 and No. 13928.
[Headnote 5]
In petition No. 13914, however, the district judge granted the motion to disqualify without
holding an evidentiary hearing. Additionally, the district judge refused to hear argument from
the district attorney. His ruling was based solely on the appearance of impropriety, rather than
a consideration of all the facts and circumstances. We find, therefore, that the district judge,
in effect, failed to exercise his discretion. Accordingly, we grant a petition for writ of
mandamus in No. 13914. We vacate the order of the district court disqualifying the entire
district attorney's office. The district court shall conduct an evidentiary hearing on defendant
Cardarelli's motion, and after a consideration of all the relevant facts, shall determine whether
the prosecutorial function can be carried out by the Clark County District Attorney's Office
impartially and without breach of any privileged communication.
1

____________________

1
We express no opinion on what the outcome of that hearing should be.
____________
98 Nev. 311, 311 (1982) Golden Nugget, Inc. v. Ham
GOLDEN NUGGET, INC., A Nevada Corporation, Appellant, v. A. W. HAM, Jr., An
Individual, FIRST NATIONAL BANK OF NEVADA, as Trustee Under That Certain Trust
Agreement, Dated June 27, 1973, Wherein A. W. Ham, Jr. is Trustor and Bank of Nevada is
Trustee, and DORIS HAM SHUPE, An Individual, Respondents.
No. 12569
June 25, 1982 646 P.2d 1221
Appeal from judgment for respondent. Eighth Judicial District Court, Clark County; Carl
J. Christensen, Judge.
Corporation brought action against former corporate director to recover for breach of
fiduciary duty. Following remand, 95 Nev. 45, 589 P.2d 173 (1979), the district court ruled
that plaintiff's claim was barred by statute of limitations, and plaintiff appealed. The Supreme
Court held that evidence sustained finding that corporation knew or reasonably should have
known of facts giving rise to its claim the day the corporation circulated a consent statement
seeking stockholder approval of corporation's lease of subject property from the corporate
director, and suit, which was not filed within three years after that date, was barred by
applicable statute of limitations.
98 Nev. 311, 312 (1982) Golden Nugget, Inc. v. Ham
corporate director, and suit, which was not filed within three years after that date, was barred
by applicable statute of limitations.
Affirmed.
Hilbrecht, Jones, Schreck & Bernhard, Las Vegas, and Ronald M. Sohigian, Los Angeles,
for Appellant.
Wiener, Waldman & Gordon, Las Vegas, and Laurence A. Speiser, Las Vegas, For
Respondent A. W. Ham, Jr.
Morse-Foley, Las Vegas, for Respondent First National Bank of Nevada.
1. Fraud; Limitation of Actions.
Three-year statute of limitations is applicable to suit for breach of fiduciary duty, but the statute does not
commence to run until plaintiff knew or reasonably should have known facts giving rise to defendant's
alleged breach of fiduciary duty. NRS 11.190, subd. 3(d).
2. Limitation of Actions.
Where fiduciary relationship exists, facts which would ordinarily require investigation may not excite
suspicion, and statute of limitations governing suit for breach of fiduciary duty may be tolled if fiduciary
fails to fulfill his obligation and also fails to inform the other party of his failure, resulting in fraudulent
concealment. NRS 11.190, subd. 3(d).
3. Limitation of Actions.
Fraudulent concealment must be alleged with particularity, and plaintiff must show the means by which
previously unknown information was acquired within statutory limitations period which led to discovery of
the concealment and underlying breach of fiduciary duty. NRS 11.190, subd. 3(d).
4. Limitation of Actions.
In action for breach of fiduciary duty arising out of corporate director's failure to advise corporation of its
opportunity to lease certain property, evidence sustained finding that corporation knew or reasonably
should have known of facts giving rise to its claim the day the corporation circulated a consent statement
seeking stockholder approval of corporation's lease of subject property from the corporate director, and
suit, which was not filed within three years after that date, was barred by applicable statute of limitations.
NRS 11.190, subd. 3(d).
OPINION
Per Curiam:
Appellant, Golden Nugget, Inc. (GNI), alleges, inter alia, that the trial court erred in
finding that appellant's claim against respondents is barred by the statute of limitations. We
agree with the trial court, and therefore decline to address the several other issues raised
in this appeal.
98 Nev. 311, 313 (1982) Golden Nugget, Inc. v. Ham
agree with the trial court, and therefore decline to address the several other issues raised in
this appeal.
The underlying facts of this case have been discussed in our decision of Golden Nugget,
Inc. v. Ham, 95 Nev. 45, 589 P.2d 173 (1979). In summary, Golden Nugget, Inc. seeks
damages for breach of fiduciary duty by Ham and a declaration that it is the legal owner of an
undivided one-half interest in certain real property presently held in trust by First National
Bank. GNI's action is based on the fact that in 1969, while serving as corporate director and
counsel for GNI, Ham leased from his former wife, Doris Ham Shupe, an undivided one-half
interest in and option to purchase real property on Fremont Street in Las Vegas. At the time
of the lease transaction, GNI had extended its operations to every other lot on Fremont Street
through a series of property acquisitions. GNI asserts that Ham breached his fiduciary duty to
GNI by failing to advise the corporation of its opportunity to lease Shupe's interest in the
property.
In Golden Nugget, supra, we reversed the trial court's order granting respondents' motion
for summary judgment based on the running of the three year statute of limitation. NRS
11.190(3)(d). On remand and after trial on the merits, the trial court again determined that the
action was barred by the statute of limitations. Based on the record now before us, we agree.
[Headnote 1]
GNI filed its cause of action in September 1974. The applicable statute of limitations for
breach of fiduciary duty is the three year period provided by NRS 11.190(3)(d). Shupe v.
Ham, 98 Nev. 61, 639 P.2d 540 (1982). The statute of limitations does not commence to run,
however, until appellant knew or reasonably should have known facts giving rise to
respondent's alleged breach of fiduciary duty. Shupe v. Ham, supra, at 65, 639 P.2d at 542.
The trial court determined that appellant knew or reasonably should have known such facts
by November 10, 1970, the day GNI circulated a consent statement seeking stockholder
approval of the corporation's lease of the subject property from Ham. We find substantial
evidence to support that finding, and will not disturb the trial court's decision on appeal.
There was testimony that prior to the Ham/Shupe lease, Ham apprised the president of
GNI that he intended to lease Shupe's one-half interest in the property. Mathew Grossman
was an independent attorney hired by GNI to prepare the consent statement for the 1970
Ham/GNI lease, but who also drafted certain changes in the Ham/GNI lease related to his
knowledge of the 1969 HamJShupe lease agreement.
98 Nev. 311, 314 (1982) Golden Nugget, Inc. v. Ham
knowledge of the 1969 Ham/Shupe lease agreement. In addition, there was evidence that
Grossman received a letter from Ham describing the Ham/Shupe property settlement
agreement in which Shupe acquired her one-half interest in the subject property and that he
received a copy of the Ham/Shupe 1969 lease prior to November 10, 1979. The consent
statement clearly indicated that Ham had held Shupe's one-half undivided interest in trust
after the property settlement agreement and then had leased that interest in August 1969 for
99 years, at $7,500 per month with an option to purchase for $1,000,000. Grossman reviewed
the entire consent statement with GNI's board of directors prior to its circulation in November
1970.
In Golden Nugget v. Ham, supra, we stated that [m]ere disclosure of a transaction by a
director, without disclosure of the circumstances surrounding the transaction, is not sufficient,
as a matter of law, to commence the running of the statute. Id. at 48, 589 P.2d at 175. We
also determined that as corporate director and counsel, Ham was under a duty not only to
inform GNI of the circumstances of the transaction, but also to advise GNI of its legal rights
regarding the lease from Shupe.
We do not abrogate that holding today. In our prior decision, our concern was whether the
statute of limitations had run as a matter of law. In that case, an issue of material fact was
raised by the affidavit of William Boyd, a GNI director, who asserted that no knowledge of
GNI's opportunity was available until June, 1973. Id. at 48, 589 P.2d at 175. The effect of our
ruling was simply to remand the issue to the court for a full trial on the merits. Not only did
Boyd fail to testify at trial to explain the claim made in the affidavit, but GNI provided no
other evidence to demonstrate what facts it received after November 10, 1970, which led it to
discover that Ham had usurped a corporate opportunity and thereby breached his fiduciary
duty. In short, as respondents argue, the facts available to GNI at the filing of the complaint
appear no different from those it had on November 10, 1970.
[Headnote 2-4]
We recognize that where a fiduciary relationship exists, facts which would ordinarily
require investigation may not excite suspicion. Bennett v. Hibernia Bank, 305 P.2d 20, 33
(Cal. 1956). And the statute of limitations may be tolled if a fiduciary fails to fulfill his
obligations and also fails to inform the other party of his failure, resulting in fraudulent
concealment. Allen v. Webb, 87 Nev. 261, 485 P.2d 677 (1971). However, fraudulent
concealment must be alleged with particularity.
98 Nev. 311, 315 (1982) Golden Nugget, Inc. v. Ham
particularity. The plaintiff must show the means by which previously unknown information
was acquired within the statutory period which led to discovery of the concealment and
underlying breach of fiduciary duty. See Bennett v. Hibernia Bank, supra at 35; Bainbridge v.
Stoner, 106 P.2d 423 (Cal. 1940); Bank of America National Trust and Savings Ass'n v.
Williams, 200 P.2d 151 (Cal.App. 1949). The record before us is devoid of such specific
averments and proof.
We conclude that GNI possessed sufficient facts by November 1970 to cause a reasonable
person to inquire as to the circumstances of the Ham/Shupe lease and GNI's rights thereto.
Therefore, the suit is barred by the limitation period.
We affirm the judgment of the district court.
Gunderson, C. J., Manoukian, Springer, and Steffen, JJ., and McKibben, D. J.,
1
concur.
____________________

1
The Governor designated the Honorable Howard McKibben, judge of the Ninth Judicial District Court, to
sit in the place of The Honorable John Mowbray, Justice, who voluntarily disqualified himself. Nev. Const., art.
6, 4.
____________
98 Nev. 315, 315 (1982) Keresey v. Nevada National Bank
BRADY WILLIAMS KERESEY, Appellant, v. NEVADA NATIONAL BANK, A National
Banking Association, Respondent.
No. 12705
June 25, 1982 646 P.2d 1224
Appeal from a district court order granting summary judgment. Second Judicial District
Court, Washoe County; Peter I. Breen, Judge.
National bank filed complaint seeking declaratory judgment that promissory note,
including interest term, was binding and enforceable against maker. The district court entered
summary judgment in favor of the bank, and appeal was taken. The Supreme Court held that
national banking association situated in Nevada was entitled to charge interest rate in excess
of general usury statute but within allowable limits of Nevada Thrift Companies Act where
terms of loan met requirements of the Thrift Companies Act.
Affirmed.
98 Nev. 315, 316 (1982) Keresey v. Nevada National Bank
Noel Stephen Topol, Reno, For Appellant.
Belford and Semenza, Reno, for Respondent.
1. Banks and Banking.
The phrase any rate of interest, as used in Nevada Thrift Companies Act, fixed interest rate for
purposes of National Banking Act. NRS 99.050, 677.010 et seq., 677.730; 12 U.S.C.A. 85.
2. Banks and Banking.
National banking association situated in Nevada was entitled to charge interest rate in excess of general
usury statute but within allowable limits of Nevada Thrift Companies Act where terms of loan met
requirements of the Thrift Companies Act. NRS 99.050, 677.010 et seq., 677.730; 12 U.S.C.A. 85.
OPINION
Per Curiam:
This is an appeal from a district court order granting summary judgment. The issue
presented is whether a national banking association situated in Nevada may charge an interest
rate in excess of the general usury statute but within the allowable limits of the Nevada Thrift
Companies Act. We conclude that it may.
Respondent Nevada National Bank lent appellant Keresey $12,000 at an annual interest
rate of 20 percent. The loan was secured by a deed of trust. After he had received the
proceeds of the loan, Keresey, through his attorney, notified Nevada National Bank that he
considered the loan usurious and accordingly was not obligated to pay the agreed upon
interest. Nevada National Bank then filed a complaint for declaratory judgment, seeking a
decree that the note, including the interest term, was binding and enforceable against Keresey.
The district court judge granted summary judgment in the bank's favor. Keresey appeals.
Appellant argues that the loan was usurious because the then-existing usury statute
prohibited interest rates in excess of 18 percent per annum.
1
The Nevada Thrift Companies
Act, however, specifically exempted thrift companies from this ceiling under certain
circumstances. NRS 677.730, for example, permitted thrift companies to lend at any rate of
interest if the principal amount was $10,000 or more and the obligation was secured by
collateral with a market value of at least 115 percent of the amount due on the loan.
____________________

1
At the time of the loan in issue, NRS 99.050 provided, in pertinent part: Parties may agree for the payment
of any rate of interest on money due or to become due on any contract which does not exceed the rate of 18
percent per annum. . . . Any agreement of a greater rate of interest than specified in this section is void as to all
interest. 1979 Nev. Stats. 963. The statute was amended in 1981 to permit any [agreed upon] rate of interest.
1981 Nev. Stats. 1593.
98 Nev. 315, 317 (1982) Keresey v. Nevada National Bank
the principal amount was $10,000 or more and the obligation was secured by collateral with a
market value of at least 115 percent of the amount due on the loan. Appellant does not deny
that the terms of the loan met the requirements of the statute; his objection is based on the
premise that respondent was not entitled to lend money under the thrift companies provision.
[Headnotes 1, 2]
The National Banking Act authorizes national banking associations to charge the same
interest rate permissible for banks organized pursuant to state law.
2
The Act has been
interpreted to give national banks a most favored lender status. See Tiffany v. National
Bank of Missouri, 85 U.S. 409 (1873); Commissioner of Small Loans v. First National Bank,
300 A.2d 685 (Md.App. 1973). Thus, where a national bank complies with the statutory
requirements for any loan authorized under state law, it may charge the maximum interest
rate to which another lender would be entitled. Since appellant's loan conformed to the terms
of NRS 677.730, the bank was permitted to charge any rate of interest on which the parties
agreed.
3

Appellant also argues that it is against public policy to permit interest rates which exceed
the general usury statute. This is a matter properly addressed to the legislature and not this
court. By exempting thrift companies from the general interest ceiling, the legislature has
declared its view that there is nothing inherently contrary to public policy to be found in
agreements to pay greater interest rates than those authorized under the general usury statute.
4
The judgment of the district court is affirmed.
____________________

2
Any association may take . . . and charge on any loan or discount made . . . interest at the rate allowed by
the laws of the State . . . where the bank is located . . . and no more, except that where by the laws of any State a
different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations
organized or existing in any such State under this chapter. When no rate is fixed by the laws of the State, . . . the
bank may take . . . a rate not exceeding 7 per centum or 1 per centum in excess of the discount rate on ninety-day
commercial paper in effect at the Federal reserve bank. . . . 12 U.S.C. 85 (1976).

3
Appellant contends that since the applicable statute, NRS 677.730, permits any rate of interest, it does not
specify a rate for purposes of 12 U.S.C. 85; appellant concludes that the interest ceilings provided in 85 must
therefore apply. The phrase any rate of interest, however, is held to fix an interest rate for purposes of the
federal statute. See Daggs v. Phoenix National Bank, 177 U.S. 549 (1900); Hiatt v. San Francisco National
Bank, 361 F.2d 504 (9th Cir. 1966), cert. denied, 385 U.S. 948 (1966), rehearing denied, 385 U.S. 1021 (1967).

4
Our conclusion is supported by the repeal of the 18 percent interest ceiling. See 1981 Nev. Stats. 1593.
98 Nev. 315, 318 (1982) Keresey v. Nevada National Bank
The judgment of the district court is affirmed.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
5
concur.
____________________

5
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 318, 318 (1982) Kennedy v. Kennedy
YVONNE A. KENNEDY, Appellant, v.
JERRY L. KENNEDY, Respondent.
No. 13179
June 25, 1982 646 P.2d 1226
Appeal from order granting judgment for arrearages and modifying divorce decree, Eighth
Judicial District Court, Clark County; Robert G. Legakes, Judge.
Wife brought complaint on California divorce decree for child support arrearages. The
district court entered judgment for arrearages and modified the decree prospectively to reduce
the amount of child support, and wife appealed. The Supreme Court held that: (1) trial court
erred by failing to include interest in the judgment for arrearages, and (2) trial court did not
err by modifying decree prospectively without filing of a formal motion to modify.
Affirmed in part; reversed and remanded in part.
Patrick A. Gaura, Las Vegas, for Appellant.
Speiser & Unger, Las Vegas, for Respondent.
1. Interest.
Under California law, divorced spouse is entitled to interest at legal rate on support arrearages which
have accrued according to terms of decree of marital dissolution.
2. Interest.
In proceeding under California divorce decree for child support arrearages, trial court erred by not
including interest on unpaid support payments since California law entitled divorced spouse to interest at
legal rate.
3. Divorce.
In proceeding on California divorce decree for child support arrearages, trial court did not err by
permitting judgment to be enforced in installment payments.
4. Divorce.
In proceeding on California divorce decree for child support arrearages, trial court did not err
by modifying decree prospectively without filing of a formal motion to modify; trial
court could on its own motion and with adequate notice to parties raise issue of
modification.
98 Nev. 318, 319 (1982) Kennedy v. Kennedy
arrearages, trial court did not err by modifying decree prospectively without filing of a formal motion to
modify; trial court could on its own motion and with adequate notice to parties raise issue of modification.
OPINION
Per Curiam:
Appellant Yvonne Kennedy filed a complaint seeking to establish a California divorce
decree as a Nevada judgment and to recover child support arrearages. After several hearings,
the district court entered an order granting full faith and credit to the California decree,
awarding appellant a judgment for arrearages in the amount of $7,837.00, and modifying the
decree prospectively so as to reduce respondent Jerry Kennedy's child support obligation.
This appeal followed.
[Headnotes 1, 2]
Appellant first contends that the district court erred by failing to include in the judgment
for arrearages interest on the unpaid child support from the date of accrual. The question of
whether a divorced spouse is entitled to interest on unpaid support payments due under a
divorce decree is governed by the law of the state where the decree was rendered. See Slade v.
Slade, 468 P.2d 627 (N.M. 1970); In re Kern's Estate, 147 P.2d 498 (Or. 1944). In California,
a divorced spouse is entitled to interest at the legal rate on support arrearages which have
accrued according to the terms of a decree of marital dissolution. Huellmantel v. Huellmantel,
57 P. 582 (Cal. 1899); In re Marriage of Popenhager, 160 Cal.Rptr. 379 (Ct.App. 1979); In re
Marriage of Hoffee, 131 Cal.Rptr. 637 (Ct.App. 1976). The district court erred by not
including interest on the unpaid support payments, from the date each payment was due, as
part of the judgment for arrearages. Accordingly, this portion of the judgment for arrearages
is reversed and remanded for calculation and inclusion of interest on the unpaid arrearages.
[Headnote 3]
The next issue is whether the district court erred by permitting the judgment for arrearages
to be enforced at the rate of $50.00 per month. In Reed v. Reed, 88 Nev. 329, 497 P.2d 896
(1972), this court held that liquidation of a judgment for arrearages may be scheduled in any
manner the district court deems proper under the circumstances. See also, Chesler v. Chesler,
87 Nev. 335, 486 P.2d 1198 (1971). California law also permits the judge to order that
discharge of a judgment for arrearages be made in installment payments. See Messenger v.
Messenger, 297 P.2d 988 (Cal. 1956). Accordingly, the district court did not err by
permitting installment payments.
98 Nev. 318, 320 (1982) Kennedy v. Kennedy
court did not err by permitting installment payments. Nevertheless, the monthly payment set
by the district court for enforcement of the judgment did not include consideration of past and
future interest on the arrearages. As mentioned above, the judgment should include interest.
Therefore, we vacate the amount set by the district court ($50 per month), and remand for
determination of a payment schedule which will allow for liquidation of arrearages on a
reasonable basis.
[Headnote 4]
Appellant also contends that the district court erred by modifying the decree prospectively
without the filing of a formal motion to modify. Appellant has cited no relevant authority for
the proposition that the district court cannot, on its own motion and with adequate notice to
the parties, raise the issue of modification.
1
This contention is therefore rejected.
Other contentions raised by appellant are without merit.
Affirmed in part; reversed and remanded in part.
____________________

1
Appellant does not contend that she received insufficient notice of the district court's intention to consider
modification, prior to the hearing on that issue. Furthermore, we note that the district court took evidence of
respondent's financial situation, and reduced the support obligation prospectively upon a showing of change in
circumstances.
____________
98 Nev. 320, 320 (1982) Sheriff v. Hamilton
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
KENNETH WESLEY HAMILTON, Respondent.
No. 14073
June 25, 1982 646 P.2d 1227
Appeal from order granting pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; James A. Brennan, Judge.
The district court granted pretrial petition for writ of habeas corpus. On appeal by the
sheriff, the Supreme Court held that in view of testimony of hotel security guard that
approximately 25 minutes after defendant rented room the guard discovered that television set
had been unbolted, taken off stand and removed and that there was no evidence of breaking,
independent evidence that defendant was registered occupant of the room and as such had key
to room was sufficient to corroborate accomplice testimony so as to hold him to answer
burglary charge.
Reversed.
98 Nev. 320, 321 (1982) Sheriff v. Hamilton
Robert J. Miller, District Attorney, Clark County, for Appellant.
Morgan D. Harris, Public Defender, Clark County, for Respondent.
1. Criminal Law.
Corroboration of accomplice testimony is necessary even at preliminary hearing stage.
2. Criminal Law.
Corroborative evidence is sufficient if it tends to connect defendant with commission of the offense.
3. Criminal Law.
In view of testimony of hotel security guard that approximately 25 minutes after defendant rented room
the guard discovered that television set had been unbolted, taken off stand and removed and that there was
no evidence of breaking, independent evidence that defendant was registered occupant of the room and as
such had key to room was sufficient to corroborate accomplice testimony so as to hold defendant to answer
burglary charge.
OPINION
Per Curiam:
Respondent Hamilton was charged, by criminal complaint, with the crime of burglary.
Following a preliminary hearing, Hamilton was held to answer as charged, and an
information was filed against him. Thereafter, he successfully petitioned for a writ of habeas
corpus. The state has appealed.
1

Leslie Hendricks, Hamilton's alleged accomplice in the burglary, was one of the state's
witnesses at the preliminary hearing.
2
She testified that, on the evening in question,
Hamilton requested her help in stealing a television set from the Four Queens Hotel, and she
agreed. About 9:00 p.m. Hamilton and Hendricks entered the Four Queens together, and
Hamilton checked into room 1418. They then entered this room, Hamilton unscrewed the
television set from its stand, and the two carried the set down the stairs. Hendricks remained
at the bottom of the stairs with the television set while Hamilton went to find a taxi. While
Hamilton was away, Hendricks was apprehended by hotel security personnel.
[Headnotes 1, 2]
The only issue presented here is whether the testimony of
____________________

1
The state may appeal from an order granting a pretrial petition for a writ of habeas corpus. NRS 34.380(4).

2
We note that the state fully performed its plea bargain with Hendricks prior to her testimony at the
preliminary hearing.
98 Nev. 320, 322 (1982) Sheriff v. Hamilton
Hendricks was adequately corroborated by the other evidence presented. Corroboration of
accomplice testimony is necessary, even at the preliminary hearing stage. State v. Wyatt, 84
Nev. 731, 448 P.2d 827 (1968); Ex parte Sullivan, 71 Nev. 90, 280 P.2d 965 (1955); In re
Oxley and Mulvaney, 38 Nev. 379, 149 P. 992 (1915). Corroborative evidence is sufficient if
it tends to connect the defendant with the commission of the offense. NRS 175.291(1); see
Sheriff v. Hilliard, 96 Nev. 345, 608 P.2d 1111 (1980); Austin v. State, 87 Nev. 578, 491
P.2d 724 (1971).
[Headnote 3]
In granting Hamilton habeas relief, the district court apparently concluded that Hendricks'
testimony was not sufficiently corroborated.
3
We disagree with this characterization.
Hendricks' testimony was corroborated by independent evidence that Hamilton was the
registered occupant of room 1418. The security guard testified that approximately 25 minutes
after Hamilton rented room 1418, the guard discovered that its television set had been
unbolted, taken off the stand, and removed. The guard also testified that there was no
evidence of a breaking, raising the inference that the perpetrator had used a key to gain entry.
Of course, as the registered occupant, Hamilton had a key to the room.
We conclude that the district court committed substantial error in granting the habeas
petition. Cf. Sheriff v. Provenza, 97 Nev. 346, 630 P.2d 265 (1981) (supreme court will not
overturn granting of pretrial habeas petition for lack of probable cause absent showing of
substantial error). Accordingly, we hereby reverse the order granting Hamilton's petition for a
writ of habeas corpus.
____________________

3
The district court focused on the fact that no one had seen Hamilton enter or leave room 1418 and that the
state did not specifically establish the existence of the television set in room 1418 prior to Hamilton's renting of
that room.
____________
98 Nev. 323, 323 (1982) McKenna v. State
PATRICK CHARLES McKENNA, Appellant, v.
THE STATE OF NEVADA, Respondent
No. 12654
June 25, 1982 647 P.2d 865
Appeal from a judgment of conviction and sentence for attempted escape, possession and
control of a dangerous weapon by an incarcerated person, possession of a firearm by an
ex-felon, and two counts of robbery and use of a deadly weapon in the commission of a crime
following a plea of guilty on the first three charges and a trial by jury on the two armed
robbery charges. Eighth Judicial District Court, Clark County; Robert G. Legakes, Judge.
The Supreme Court, Springer, J., held, inter alia, that possession of a dangerous weapon
by an incarcerated person is a lesser included offense of attempted escape with the use of a
dangerous weapon, but the offense of being an ex-felon in possession of a concealable
firearm is not a lesser included offense.
Reversed in part; affirmed in part.
Kirk B. Lenhard, Las Vegas, for Appellant.
Richard Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, Clark
County, for Respondent.
1. Indictment and Information.
Possession of a dangerous weapon by an incarcerated person is a lesser included offense of attempted
escape with the use of a dangerous weapon, but the offense of being an ex-felon in possession of a
concealable firearm is not a lesser included offense. NRS 202.360, 212.090, subd. 1(a), 212.185.
2. Criminal Law.
Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test for
determining if two offenses or only one has been committed is whether each provision requires proof of a
fact which the other does not.
3. Criminal Law.
Whether a crime is incidental to another offense is generally a question of fact.
4. Criminal Law.
Defendant's robbery convictions, involving his taking guards' uniforms and equipment at gunpoint, were
entirely separate and independent felonies and were not incidental to the primary offense of attempted
escape. NRS 212.090, subd. 1(a).
5. Criminal Law.
Determination whether a crime is incidental to another offense should be made by the trier of fact in all
but the clearest of cases.
98 Nev. 323, 324 (1982) McKenna v. State
OPINION
By the Court, Springer, J.:
The primary issue before us is whether, in this particular case, violations of NRS 212.185
(possession of a dangerous weapon by an incarcerated person) and NRS 202.360 (possession
of a concealable firearm by ex-felon) are lesser offenses included within NRS 212.090(1)(a)
(escape with the use of a dangerous weapon by one charged with or convicted of a felony).
Appellant Patrick McKenna attempted to escape from lawful custody at the Clark County
Jail. McKenna, already an ex-felon, was facing additional felony charges. While attempting to
escape he employed the use of a Smith & Wesson 9-mm semi-automatic weapon.
As a consequence of his actions, McKenna pleaded guilty to attempted escape with the use
of a dangerous weapon and was sentenced to 20 years imprisonment. At the same time he
pleaded guilty to violations of NRS 212.185 and NRS 202.360 and was sentenced separately
for each offense. In pleading guilty to each offense he had reserved the right to argue double
jeopardy at the time of sentencing.
[Headnote 1]
In committing the offense proscribed by NRS 212.090(1)(a),
1
escaping with the use of
a dangerous weapon, McKenna was necessarily an incarcerated person in possession of such
a weapon. See NRS 212.185.
2
The offense of attempted escape with the use of a dangerous
weapon cannot be committed without committing the other offense of possession of a
dangerous weapon by a person who is incarcerated.
____________________

1
NRS 212.090(1) provides as follows:
212.090 Prisoner escaping. Every prisoner confined in a prison or being in the lawful custody of an
officer or other person, who escapes or attempts to escape from such prison or custody, if he is held on a
charge, conviction or sentence of:
1. A felony, shall be punished:
(a) Where a dangerous weapon is used or one or more hostages are taken to facilitate the escape or
attempted escape, or substantial bodily harm results to anyone as a direct result of the escape or
attempted escape, by imprisonment in the state prison for not less than 2 years nor more than 20 years,
and may be further punished by a fine of not more than $20,000. The sentence imposed pursuant to this
paragraph shall run consecutively after any sentence imposed for the original felony, and is not subject to
suspension or the granting of probation.
(b) Where none of the aggravating factors specified in paragraph (a) is present, by imprisonment in
the state prison for not less than 1 year nor more than 10 years, and may be further punished by a fine of
not more than $10,000.

2
NRS 212.185 provides as follows:
212.185 Possession, control of dangerous weapon by incarcerated person prohibited; punishment.
98 Nev. 323, 325 (1982) McKenna v. State
with the use of a dangerous weapon cannot be committed without committing the other
offense of possession of a dangerous weapon by a person who is incarcerated. See Lisby v.
State, 82 Nev. 183, 414 P.2d 592 (1966). No additional fact finding was necessary to satisfy
all of the elements of possession of a dangerous weapon by an incarcerated person. The latter
is therefore a lesser included offense and must be set aside. See Litteral v. State, 97 Nev. 503,
634 P.2d 1226 (1981).
[Headnote 2]
We cannot agree, however, that the offense of being an ex-felon in possession of a
concealable firearm
3
is necessarily included in the offense of attempted escape with a deadly
weapon. This court adopted the Blockburger
4
test in Litteral, supra.
____________________
1. Any person who is incarcerated in the state prison or any county or city jail or other correctional
facility in this state, or is transferred for medical or psychiatric treatment at another institution, or is in
transit to or from such facility, or is in the legal custody of any correctional officer or employee, and who
possesses or has in his custody or control any:
(a) Instrument or weapon of the kind commonly known as a blackjack, slung shot, billy, sand-club,
sandbag or metal knuckles;
(b) Explosive substance, including fixed ammunition, or any incendiary or explosive device;
(c) Dirk, dagger, switchblade knife or sharp instrument;
(d) Pistol, revolver or other firearm;
(e) Device capable of propelling a projectile with sufficient force to cause bodily harm, including but
not limited to a pellet gun, slingshot, blowgun, crossbow or bow and arrow; or
(f) Other similar weapon, instrument or device,
shall be punished by imprisonment in the state prison for not less than 1 nor more than 6 years.
2. For the purposes of this section, incarceration begins upon assignment to a cell or other place
within the correctional facility after completion of the initial booking procedure.

3
NRS 202.360 provides, in pertinent part as follows:
1. The terms pistol, revolver, and firearm capable of being concealed upon the person, as used
in this section, apply to and include all firearms having a barrel less than 12 inches in length.
2. After July 1, 1925, no unnaturalized foreign-born person, and no person who has been convicted
of a felony in the State of Nevada, or 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.
3. Any person who violates the provisions of this section shall be punished by imprisonment in the
state prison for not less than 1 year nor more than 6 years, and may be further punished by a fine of not
more than $5,000.
* * *

4
Blockburger v. United States, 284 U.S. 299 (1932).
98 Nev. 323, 326 (1982) McKenna v. State
supra. Where the same act or transaction constitutes a violation of two distinct statutory
provisions, the test for determining if two offenses or only one has been committed is whether
each provision requires proof of a fact which the other does not.
One of the elements of the attempted escape charge, as stated in the indictment, is that the
attempted escape was perpetrated while McKenna was being held . . . on a felony charge,
to-wit, murder.
The ex-felon in possession of a concealable weapon charge stated that McKenna was a
person having the status of ex-felon stemming from a previous conviction for sexual assault.
Each of the two statutory provisions, then, required proof of a fact which the other did not.
One case required proof that McKenna was held on a felony charge of murder; the other
required proof that McKenna was an ex-felon. Consequently McKenna is guilty of
committing each offense.
In addition to the foregoing offenses, McKenna was charged with two counts of robbery
with the use of a deadly weapon. The robberies arose out of the same course of events as the
attempted escape. The robbery charges were tried to a jury following McKenna's guilty pleas
to the three charges discussed above. The jury found McKenna guilty.
McKenna asks us to set aside the two robbery convictions because, he claims, the
robberies were incidental to the primary offense of attempted escape. In support of his
position, McKenna relies largely upon Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978). In
Wright we held that kidnapping may not be charged as an additional offense to robbery where
movement of the victim was only incidental to robbery and where no increased risk occurred
as a result of the movement. McKenna views his robberies as analogous to the Wright
situation. Wright, however, is easily distinguishable from the present case. Some movement
or confinement of the victim is inherent in almost every robbery. We do not agree that
robbery is in the same sense incidental to an escape attempt.
[Headnotes 3-5]
Whether a crime is incidental to another offense is generally a question of fact. McKenna
took the guards' uniforms and equipment at gun-point. It appears that these robberies were
entirely separate and independent felonies. In any event, such a determination should be made
by the trier of fact in all but the clearest of cases. Sheriff v. Medberry, 96 Nev. 202, 204,
606 P.2d 181, 182 (1980); accord Langford v. State, 95 Nev. 631, 600 P.2d 231 (1979). Since
it would be illogical and inappropriate for us to hold, as a matter of law, that the robberies
were incidental to escape, we do not reverse on this ground.
98 Nev. 323, 327 (1982) McKenna v. State
inappropriate for us to hold, as a matter of law, that the robberies were incidental to escape,
we do not reverse on this ground.
The conviction under NRS 212.185 is reversed. All other convictions are affirmed.
Gunderson, C. J., and Manoukian, Mowbray, and Steffen, JJ., concur.
____________
98 Nev. 327, 327 (1982) Sheriff v. Blasko
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
JOSEPH CHARLES BLASKO, Respondent.
No. 13893
June 25, 1982 647 P.2d 371
Appeal from order granting pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; Addeliar D. Guy, Judge.
The Supreme Court held that: (1) indictment was insufficient to enable defendant to
defend against charge of conspiracy; (2) attempted grand larceny was an offense separate and
distinct from burglary; and (3) evidence was sufficient to establish probable cause.
Affirmed in part; reversed in part.
[Rehearing denied December 16, 1982]
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
Clark County, for Appellant.
Heaton & Wright, Las Vegas, for Respondent.
1. Indictment and Information.
Accusation must include such a description of the acts alleged to have been committed as will enable the
accused to defend against the accusation. NRS 173.075, subd. 1.
2. Indictment and Information.
Indictment which did not specify the place of conspiracy or the means by which the conspiracy was to be
accomplished was not sufficiently definite to enable defendant to defend against the accusation.
3. Criminal Law.
Attempted grand larceny can be an offense separate and distinct from burglary.
4. Criminal Law.
Where burglary count was based on entry into store with intent to commit grand larceny and the
attempted grand larceny charge was based on an alleged attempt to break and enter a vault located inside
the store, the two crimes were separate, the attempt charge was not a lesser
included offense of the burglary charge, and charging the defendant with both crimes
was not an attempt to impose double punishment for the same burglary.
98 Nev. 327, 328 (1982) Sheriff v. Blasko
the store, the two crimes were separate, the attempt charge was not a lesser included offense of the burglary
charge, and charging the defendant with both crimes was not an attempt to impose double punishment for
the same burglary.
5. Criminal Law.
Testimony that police were watching van in which defendant was found because of information that they
had received that a similar van would be equipped with radios to warn persons involved in burglary of any
police activity in the area was not inadmissible hearsay as it was offered not to prove the truth of the matter
asserted but rather to show why the police were observing the van.
6. Criminal Law.
Evidence that police had been informed that a van similar to that in which defendant was observed would
be in the neighborhood of a burglary and would be equipped with radios to warn those participating in
burglary of any police activity, that a scanner which would have enabled the occupant of the van to monitor
the police air waves was found in the van along with a walkie-talkie which had been secretly marked by the
police, and that the three participants who actually did the breaking and entering were apprehended on the
roof of the building was sufficient to establish probable cause to hold defendant on charges of burglary,
attempted grand larceny, possession of burglary tools, and conspiracy to commit burglary.
OPINION
Per Curiam:
The Sheriff of Clark County has appealed from a district court order granting Joseph
Charles Blasko's petition for a writ of habeas corpus.
1

Blasko was charged, by grand jury indictment, with burglary, attempted grand larceny,
possession of burglary tools, and conspiracy to commit burglary. In granting the writ, the
district court found that the state had not adequately pleaded the conspiracy count; that the
attempted grand larceny count was an improper attempt by the state to impose double
punishment for the burglary; and that there was insufficient evidence to establish probable
cause to hold Blasko on any of the counts.
[Headnotes 1, 2]
1. The Sheriff first contends that the district court erred by concluding that the conspiracy
count had been inadequately pleaded. NRS 173.075(1) provides in pertinent part: The
indictment or the information shall be a plain, concise and definite written statement of
the essential facts constituting the offense charged."
____________________

1
Blasko has moved to dismiss this appeal on the ground that the notice of appeal was untimely filed. See
NRS 34.380(4). We note that substantial confusion was created by the existence of two orders granting habeas
relief. Having considered the arguments of the parties, we deny the motion to dismiss. See Ross v. Giacomo, 97
Nev. 550, 635 P.2d 298 (1981).
98 Nev. 327, 329 (1982) Sheriff v. Blasko
indictment or the information shall be a plain, concise and definite written statement of the
essential facts constituting the offense charged. An accusation must include such a
description of the acts alleged to have been committed as will enable the accused to defend
against the accusation. Lane v. Torvinen, 97 Nev. 121, 624 P.2d 1385 (1981); Simpson v.
District Court, 88 Nev. 654, 503 P.2d 1225 (1972). In upholding a conspiracy indictment, we
recently stated:
The gist of the crime of conspiracy is the unlawful agreement or confederation.
[Citation omitted.] Counts II and IV in the present case include allegations as to the
date and place of the conspiracy, the object of the conspiracy, and the means by which
the conspiracy was to be accomplished. The district court properly found that the
conspiracy counts are adequate.
Lane v. Torvinen, supra, 624 P.2d at 1386. Here, by contrast, the indictment does not specify
the place of the conspiracy or the means by which the conspiracy was to be accomplished. We
conclude, as did the district court, that the conspiracy count is not definite enough to enable
Blasko to defend against the accusation. The order granting the petition for a writ of habeas
corpus, as it relates to the conspiracy count, is affirmed.
[Headnotes 3, 4]
2. The Sheriff next contends that the district court erred by granting habeas relief as to the
attempted grand larceny count. In granting the writ, the district court concluded that the
charge of burglary with intent to commit grand larceny necessarily included the attempt to
commit grand larceny. We are not persuaded by the district court's analysis. Attempted grand
larceny can be an offense separate and distinct from burglary. Warden v. Peters, 83 Nev. 298,
429 P.2d 549 (1967). In Peters, this court stated: The attempt [to commit grand larceny] here
was an offense separate and distinct from the burglary and was charged in the information as
such. Id. at 303, 429 P.2d at 552. In this case, as in Peters, the attempted grand larceny was
an offense separate and distinct from the burglary. The burglary count was based on the entry
of Bertha's Gifts and Home Furnishings, with intent to commit grand larceny. The attempted
grand larceny count was based on an alleged attempt to break and enter a vault located inside
Bertha's. The order granting Blasko's habeas petition, as it relates to the attempted grand
larceny count, is reversed.
3. The Sheriff's final contention is that the district court erred by concluding that there was
insufficient evidence to establish probable cause to hold Blasko on any of the counts.
98 Nev. 327, 330 (1982) Sheriff v. Blasko
In Sheriff v. Provenza, 97 Nev. 346, 630 P.2d 265 (1981), we held that, absent a showing of
substantial error on the part of the district court, this court will not overturn the granting of a
pretrial habeas petition for lack of probable cause.
[Headnotes 5, 6]
Our review of the record reveals that the burglary in this case allegedly involved six
participants. The three participants who actually did the breaking and entering were
apprehended on the roof of Bertha's. Two other participants were found driving separate
vehicles in the area of Bertha's. Blasko was apprehended in a white van parked in
Commercial Center near Bertha's. The police were watching the van because of information
they had received that a white van bearing a Superman figure on the side would be equipped
with radios to warn those on the roof of any police activity in the area.
2
During the burglary,
the police observed Frank Cullotta, an alleged participant in the burglary, pull his car up next
to the van and speak into a radio. Later, Cullotta returned and parked next to the van.
3
Following Blasko's arrest, a search warrant was secured and the van was searched. The van
contained a scanner which would have enabled the occupant to monitor the police airwaves.
In addition, the police found a walkie-talkie which they had secretly marked following one of
the videotaped planning sessions at the informant's apartment. Based upon this evidence, we
believe there was clearly probable cause to hold Blasko as a participant in the burglary and
related crimes committed on July 4, 1981. We therefore conclude that the district court
committed substantial error in granting the habeas petition for lack of probable cause.
Accordingly, that portion of the order granting the habeas petition for lack of probable cause
is reversed.
Affirmed in part; reversed in part.
4

____________________

2
Contrary to Blasko's contention, this evidence was not inadmissible hearsay, since it was offered not to
prove the truth of the matter asserted, i.e., that Blasko was performing surveillance for those on the roof, but
rather to show why the police were observing the van. See NRS 51.035.

3
The police were aware of Cullotta because their informant had allowed them to monitor the informant's
apartment with television cameras and microphones. Cullotta was involved in at least two videotaped meetings
in June, 1981, at which the burglary was planned.

4
In view of this disposition we need not address the Sheriff's motion for expedited oral argument filed
March 8, 1982.
____________
98 Nev. 331, 331 (1982) Carter v. State
JAMES LEE CARTER, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12702
June 29, 1982 647 P.2d 374
Appeal from a judgment of conviction following a guilty plea for the crimes of sexual
assault with use of a deadly weapon and robbery with use of a deadly weapon, both upon a
person over sixty-five years of age, Second Judicial District Court, Washoe County; William
N. Forman, Judge.
Defendant pleaded guilty to sexual assault and robbery of a 73-year-old woman with the
use of a knife. The district court imposed consecutive sentences for the aggravating factors of
the use of a deadly weapon and the fact that the victim was over 65 years of age. Defendant
appealed. The Supreme Court held that: (1) the sentencing court may not impose consecutive
enhancement penalties for the use of a deadly weapon and for when the victim is over the age
of 65; (2) due process was not violated merely because statute imposing an additional penalty
when the victim of the crime is over the age 65 does not require knowledge of the victim's
advanced age; and (3) the defendant's right to equal protection was not violated on theory that
the statute distinguishes between perpetrators of crimes against victims over the age of 65 and
those who are younger.
Affirmed in part; reversed in part and remanded.
William N. Dunseath, Public Defender, Michael B. McDonald, and N. Patrick Flanagan,
Deputy Public Defenders, Washoe County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney,
Richard F. Cornell and Edward B. Horn, Deputy District Attorneys, Washoe County, for
Respondent.
1. Statutes.
Where legislative intent of criminal statute is ambiguous, statute must be strictly construed against
imposition of penalty for which it did not provide clear order.
2. Criminal Law.
Sentencing court may not impose consecutive enhancement penalties under statute providing additional
penalty for use of deadly weapon and providing additional penalty when victim is over age of 65 for the
same offense. NRS 193.165, 193.167, 193.167, subd. 1(f).
3. Criminal Law.
Imposition of consecutive additional sentences for sexual assault and robbery of 73-year-old woman for
use of deadly weapon and for fact that victim was over age of 65 was improper. NRS 193.165,
193.167, 193.167, subd. 1(f).
98 Nev. 331, 332 (1982) Carter v. State
4. Constitutional Law; Criminal Law.
Statute providing additional penalty when victim of crime is over age 65 does not deny due process
merely because statute does not require knowledge of victim's advanced age. NRS 193.167;
U.S.C.A.Const. Amends. 5, 14.
5. Constitutional Law; Criminal Law.
Statute providing additional penalty when victim of crime is over age 65 does not violate defendant's
right to equal protection on theory that statute distinguishes between perpetrators of crimes against victims
over 65 years of age and those who are younger. NRS 193.167; U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
Appellant pleaded guilty to the sexual assault and robbery of a seventy-three-year-old
woman with the use of a knife. The district court judge sentenced appellant pursuant to NRS
193.165 and NRS 193.167. Appellant received twenty years for the sexual assault, plus an
enhancement of twenty years for use of a deadly weapon, and an additional twenty years
because his victim was over sixty-five years. The district court ordered the three twenty-year
terms to run consecutively. Appellant was also sentenced to fifteen years for the robbery, plus
an enhancement of fifteen years for the use of a deadly weapon and an additional fifteen years
because of his victim's age. The three fifteen-year sentences were also ordered to run
consecutively to each other. The forty-five-year sentence for robbery and the sixty-year
sentence for sexual assault were ordered to run concurrently. The district court explicitly
stated its understanding that NRS 193.165 and NRS 193.167 required that the enhancement
penalty for use of a deadly weapon and the enhancement penalty for the age of the victim run
consecutively to each other.
On appeal the main issue raised by appellant is whether consecutive sentences for multiple
enhancements are mandated by NRS 193.165 and NRS 193.167. We hold that they are not.
NRS 193.165
1
has been the law in Nevada since 1973. In April of 1979 the legislature
amended NRS 193.165 to preclude the possibility of probation or a suspended sentence
for anyone convicted of the use of a deadly weapon in the commission of the specified
crimes of murder, kidnaping in the first degree, sexual assault or robbery.
____________________

1
NRS 193.165 provides, in pertinent part, as follows:
193.165 Additional penalty when deadly weapon, tear gas used in commission of crime; restriction of
probation.
1. Any person who uses a firearm or other deadly weapon . . . in the commission of a crime shall be
punished by imprisonment in the state prison for a term equal to and in addition to the term of
imprisonment prescribed by statute for such crime. The sentence prescribed by this section shall run
consecutively with the sentence prescribed by statute for such crime.
2. This section does not create any separate offense but provides an additional penalty for the
primary offense, whose imposition is contingent upon the finding of the prescribed fact.
98 Nev. 331, 333 (1982) Carter v. State
April of 1979 the legislature amended NRS 193.165 to preclude the possibility of probation
or a suspended sentence for anyone convicted of the use of a deadly weapon in the
commission of the specified crimes of murder, kidnaping in the first degree, sexual assault or
robbery. At the same time that the legislature considered and strengthened the deterrent effect
of NRS 193.165 by precluding probation or a suspended sentence in the above instances, the
legislature enacted NRS 193.167.
2
The latter statute provides for an additional penalty for
the commission of certain specified crimes against persons sixty-five years of age or older.
NRS 193.167(1)(f) provides that the defendant who commits the specified crime against a
person sixty-five or over shall be imprisoned for a term equal to and in addition to the term
of imprisonment prescribed by statute for the crime. The sentence prescribed by [NRS
193.167] must run consecutively with the sentence prescribed by statute for the crime.
(Emphasis added.) It is clear that the statute requires the enhancement penalty to run
consecutively to the penalty for the primary offense. Whether the legislature intended to
require that the enhancement penalties of NRS 193.165 and NRS 193.167 run consecutively
to each other is unclear. Indeed, it is unclear whether our legislature intended a single
substantive offense to be subject to more than one consecutive enhancement penalty, even as
a matter of judicial discretion.
An examination of the plain meaning of the language of the statutes prove them to be open
to more than one construction. It is the sentence prescribed by statute for the crime to which
the enhancement penalty must be consecutive. Therefore, ambiguity regarding what is meant
by the crime creates ambiguity regarding the mandate of NRS 193.167{1){f).
____________________

2
NRS 193.167 provides as follows:
193.167 Additional penalty when certain crimes committed against person 65 years of age or older.
1. Any person who commits the crime of:
(a) Assault;
(b) Battery;
(c) Kidnaping;
(d) Robbery;
(e) Sexual assault; or
(f) Taking money or property from the person of another,
against any person who is 65 years of age or older shall be punished by imprisonment in the county jail or
state prison, whichever is applicable, for a term equal to and in addition to the term of imprisonment
prescribed by statute for the crime. The sentence prescribed by this section must run consecutively with
the sentence prescribed by statute for the crime.
2. This section does not create any separate offense but provides an additional penalty for the
primary offense, whose imposition is contingent upon the finding of the prescribed fact.
98 Nev. 331, 334 (1982) Carter v. State
ambiguity regarding the mandate of NRS 193.167(1)(f). It is unclear whether the
enhancement statute refers to the sentence imposed for the primary offense only, or to the
sentence imposed for the primary offense plus the sentence imposed for the use of a deadly
weapon. For example, where a crime is committed with the use of a deadly weapon the
sentence prescribed by statute for the crime may be viewed as prescribed by two statutes:
the statute providing a penalty for the primary offense, and the statute providing an enhanced
penalty for the use of a deadly weapon. However, both section two of NRS 193.165 and
section two of NRS 193.167, in identical words, specify that their respective statutes do not
create a separate crime. See Boyle v. Warden, 95 Nev. 888, 603 P.2d 1068 (1979). This
factor, together with the language for the crime lends support to an inference that differs
from the above construction. Alternatively, it may be the intention of the legislature by
reference to the sentence prescribed for the crime that the enhancement can only be
consecutive to the sentence prescribed for the primary offense alone, irrespective of any other
enhancements.
3
Support for either interpretation of the two statutes might emerge from a
review of the statutes' legislative histories.
Only two unequivocal inferences can be drawn from the legislative history of both the
amendment to NRS 193.165 and NRS 193.167. The first is that our legislature was fully
aware of the earlier enhancement statute when it considered and enacted NRS 193.167.
Second, the purpose of the laws is deterrence. See Anderson v. State, 95 Nev. 625, 630, 600
P.2d 241, 244 (1979). See also People v. Van Winkle, 408 N.E.2d 29 (Ill.App. 1980). It
cannot be said, however, that the deterrent purpose of NRS 193.167 is served only if its
penalty is consecutive to the penalty for NRS 193.165. The vulnerability of aged persons to
crime is more acute because of their frailty. Such frailty often makes the use of a deadly
weapon to accomplish the crime unnecessary. Thus, neither inference drawn from the
legislative history of NRS 193.167 and the legislative history of the amendment to NRS
193.165 resolves the inherent ambiguity mentioned above.
[Headnotes 1, 2]
Where the legislative intent of a criminal statute is ambiguous, the statute must be
strictly construed against imposition of a penalty for which it does not provide clear
notice.
____________________

3
We note that one possible interpretation of NRS 163.167(1)(f) would require that the sentence for the
second enhancement be equal to as well as consecutive to the sum of the sentence for the primary offense and
the first enhancement penalty. For example, a defendant who received fifteen years for a robbery and an
additional consecutive fifteen years for the use of the gun would necessarily receive an additional thirty years if
the victim was over sixty-five years of age.
98 Nev. 331, 335 (1982) Carter v. State
ambiguous, the statute must be strictly construed against imposition of a penalty for which it
does not provide clear notice. Anderson v. State, 95 Nev. at 629, 600 P.2d at 243; Sheriff v.
Hanks, 91 Nev. 57, 60, 530 P.2d 1191, 1193 (1975). Therefore, we hold the sentencing court
may not impose consecutive enhancement penalties under NRS 193.165 and NRS 193.167
for the same offense.
[Headnotes 3-5]
Accordingly, because the imposition of the enhanced penalties consecutively to each other,
for both the robbery and the sexual assault, was done with the erroneous belief that the law so
required, we reverse and remand to the district court for resentencing in accordance with this
decision. Appellant's constitutional challenges to the validity of NRS 193.167 have been
considered and are without merit. Due process is not violated merely because the statute does
not require knowledge of the victim's advanced age. See United States v. Balint, 258 U.S.
250, 252 (1922); Lambert v. California, 355 U.S. 225, 228 (1957). Similarly, appellant's
argument to the effect that the accused's right to equal protection is violated, because the
statute distinguishes between perpetrators of crimes against victims over sixty-five years old
and those who are younger, is without merit. Sheriff v. Williams, 96 Nev. 22, 604 P.2d 800
(1980).
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
4
concur.
____________________

4
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 335, 335 (1982) Von Ehrensmann v. Lee
BENEDICT VON EHRENSMANN and SUSAN VON EHRENSMANN, Appellants, v.
EMILY LEE, Respondent.
No. 12854
June 29, 1982 647 P.2d 377
Appeal from judgment denying specific performance and awarding attorneys' fees, Eighth
Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Purchasers brought action for specific performance of oral agreement for purchase of
residential property. The district court denied specific performance and awarded attorney fees,
and purchasers appealed.
98 Nev. 335, 336 (1982) Von Ehrensmann v. Lee
and purchasers appealed. The Supreme Court held that: (1) where deposit of full purchase
price was prerequisite to escrow officer's authority to file papers for sale of residence for
recordation, and purchasers failed to deposit full purchase price as provided in purchase
agreement, action by purchasers for specific performance would not lie, and (2) award of
attorney fees was improper where agreement merely provided that purchasers would pay
reasonable attorney fees to escrow holder in event that escrow holder brought action in
interpleader.
Affirmed in part; reversed in part.
Wanderer & Wanderer, Las Vegas, for Appellants.
Steffen, Simmons & Vannah, Las Vegas, for Respondent.
1. Specific Performance.
Where deposit of full purchase price was prerequisite to escrow officer's authority to file papers for sale
of residence for recordation, and purchasers failed to deposit full purchase price as provided in purchase
agreement, action by purchasers for specific performance would not lie.
2. Costs.
Absent agreement between parties, attorney fees may not be awarded unless by statute or rule.
3. Damages.
Where equitable relief is sought, award of attorney fees is proper if awarded as item of damages.
4. Specific Performance.
In action for specific performance, award of attorney fees was not proper despite contention that it was
awarded as item of damages where district court did not specify award as such and there was no
counterclaim for damages.
5. Specific Performance.
In action for specific performance of oral agreement for purchase of residential property, trial court erred
in awarding attorney fees to vendor where agreement merely provided that purchasers would pay
reasonable attorney fees to escrow holder in event escrow holder brought action in interpleader.
OPINION
Per Curiam:
After preliminary negotiations, appellants and respondent entered into an oral agreement
whereby appellants would purchase respondent's residential property. On April 25, escrow
instructions were executed by the parties, reflecting the agreement and stating the requirement
that appellants must place the escrow in a condition to close within 60 days of the
execution date of the escrow instructions. The instructions did not state a date for possession
of the property.
98 Nev. 335, 337 (1982) Von Ehrensmann v. Lee
On May 1, respondent prepared a memorandum which memorialized the terms of the oral
agreement. Both appellants and respondent signed the memorandum. Subsequently, the
escrow instructions were amended to conform more clearly to the agreement as
memorialized. The amended instructions provide for an increase in the purchase price and
specify a date for possession approximately six weeks after the date by which appellants were
to place the escrow in a condition to close.
Neither the original escrow instructions nor the subsequent document of May 1 indicate a
date for possession of the property.
Appellants failed to deposit the full purchase price within sixty days after the opening of
escrow and respondent immediately cancelled the escrow.
During the sixty-day escrow period appellants made timely application and obtained
preliminary approval for a loan from the Veterans Administration. Appellants tendered the
purchase price when the loan became available, three weeks after respondent had cancelled
the escrow. Respondent refused appellants' tender, whereupon appellants brought suit in
district court seeking specific performance of the agreement. The district court denied the
relief sought and granted respondent attorneys' fees and costs.
[Headnote 1]
1. On appeal, appellants first contend the district court abused its discretion by denying
specific performance. We conclude this contention is without merit.
From our review of the record, we must conclude the decision of the district court is
supported by substantial evidence. The escrow instructions provide that time is the essence of
the agreement and require that the appellants place the escrow in a condition to close within
a date certain. The escrow instructions define the close of escrow as the day papers are
filed for record. The deposit of the full purchase price is a prerequisite to the escrow officer's
authority to file papers for recordation. Therefore, without the deposit of the purchase price,
the escrow is not in a condition to close.
[Headnotes 2-4]
2. Appellants next contend the district court erred when it awarded attorneys' fees to the
respondent.
1
We agree with this contention. Absent an agreement between the parties,
attorneys' fees may not be awarded unless by statute or rule. Sun Realty v. District Court, 91
Nev. 774, 542 P.2d 1072 (1975). See NRS 18.010. Where equitable relief is sought, an award
of attorneys' fees is proper if awarded as an item of damages.
____________________

1
Appellants do not claim as error the award of costs to respondent.
98 Nev. 335, 338 (1982) Von Ehrensmann v. Lee
award of attorneys' fees is proper if awarded as an item of damages. City of Las Vegas v.
Cragin Industries, 86 Nev. 933, 478 P.2d 585 (1970). We decline to conclude that the fees are
awarded as damages where, as here, the district court has not specified the award as such nor
has the respondent counterclaimed for damages. See City of Las Vegas v. Cragin Industries,
cited above.
[Headnote 5]
Furthermore, the award of attorneys' fees to respondent cannot be predicated upon the
agreement between appellants and respondent. The agreement merely provides that appellants
shall pay reasonable attorneys' fees to the escrow holder in the event the escrow holder brings
an action in interpleader. The lawsuit before us does not meet the conditions necessary for an
award of attorneys' fees pursuant to such agreement.
Accordingly, insofar as it awards attorneys' fees to respondent, the judgment is reversed.
Insofar as it awards costs to respondent and denies appellants specific performance, the
judgment is affirmed.
Other issues raised on appeal have been considered and are without merit.
Gunderson, C. J., Manoukian, Springer, and Mowbray, 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 The
Honorable Thomas L. Steffen, Justice, who voluntarily disqualified himself. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 338, 338 (1982) Vincent v. Santa Cruz
VERLA I. VINCENT, RANDALL J. VINCENT, FLIPPEN REALTY and ALFRED B.
FLIPPEN, Appellants, v. WILLIAM SANTA CRUZ and ROBERTA SANTA CRUZ,
Respondents.
No. 13022
June 29, 1982 647 P.2d 379
Appeal from an order granting partial summary judgment, and subsequent award of
damages in favor of respondents, Eighth Judicial District Court, Clark County; Addeliar D.
Guy, Judge.
Purchasers brought action against real estate agent and his employers to recover for breach
of contract for sale of land. The district court entered judgment in favor of purchasers and
real estate agent and his employers appealed.
98 Nev. 338, 339 (1982) Vincent v. Santa Cruz
real estate agent and his employers appealed. The Supreme Court held that: (1) portion of the
contract which violated statutes by placing on the buyers the duty to file the parcel map was
severable from the remainder of the contract, and (2) the agent's employers were properly
held liable.
Affirmed.
Johnson, Pilkington & Reynolds, Las Vegas, for Appellants.
Mills, Galliher, Lukens, Gibson, & Grossman, Las Vegas, for Respondents.
1. Contracts.
Generally, contracts made in contravention of the law do not create a right of action.
2. Contracts.
Where a contract consists of several agreements, one of which is illegal, the illegal portion can be severed
if it does not destroy the symmetry of the contract.
3. Vendor and Purchaser.
Clause in escrow instructions which violated statute by making the buyer responsible for filing the parcel
map was severable from the remainder of the contract for the sale of property and the remainder of the
contract could be enforced. NRS 278.461, 278.590.
4. Vendor and Purchaser.
Where individual was a licensed real estate agent when property was purchased, where property was
listed by his employers and negotiations surrounding the sale were conducted at his employers' offices, and
where employer assisted in preparing some of the documents, the employers could be held liable, along
with the employee, for breach of the contract for sale.
OPINION
Per Curiam:
Respondents, William and Roberta Santa Cruz, entered into a contract with appellants,
Verla and Randall Vincent, to purchase one and one-quarter acres of real property.
1
Originally, the property in question comprised two and one-half acres. However, respondents
and another buyer each purchased one-half of the original parcel, with the understanding that
each parcel would be suitable for building.
The parties' purchase agreement set forth the terms of the sale and in bold print stated:
WHEN PROPERLY COMPLETED THIS IS A BINDING CONTRACT. IF NOT FULLY
UNDERSTOOD, SEEK COMPETENT COUNSEL."
____________________

1
At the time of the sale, Randall Vincent was a licensed real estate agent employed by appellants, Alfred
Flippen and Flippen Realty Company.
98 Nev. 338, 340 (1982) Vincent v. Santa Cruz
FULLY UNDERSTOOD, SEEK COMPETENT COUNSEL. The record reflects the
purchase agreement was properly signed and executed by the parties.
After the parties executed the purchase agreement, appellants prepared escrow instructions
which included the following provision: 39. Buyer to comply with NRS 278.50 [sic] as
required by the County of Clark.
2

Failure to comply with the requirements embodied in NRS 278.461 gives rise to the
application of NRS 278.590, which states in pertinent part:
1. It is unlawful for any person to contract to sell, to sell or to transfer any
subdivision or any part thereof, or land divided pursuant to a parcel map or map of
division into large parcels, until the required map thereof, in full compliance with the
appropriate provisions of NRS 278.010 to 278.630, inclusive, and any local ordinance,
has been recorded in the office of the recorder of the county in which any portion of the
subdivision or land divided is located.
Approximately four months after respondents purchased the property and initiated plans to
build a home, problems arose relating to statutory subdivision requirements. Respondents
were advised by the Planning and Zoning Commission that a parcel map, as required by NRS
278.461, would have to be filed with the county before they could begin construction.
Respondents filed suit against Verla and Randall Vincent, Alfred Flippen, and Flippen
Realty Company for failure to comply with NRS 278.461 and NRS 278.590, and for fraud.
Thereafter, respondents brought a motion for partial summary judgment on their first cause of
action alleging appellants' conduct violated NRS 278.461 and NRS 278.590. The district
court granted respondents' motion for partial summary judgment.
A trial was conducted by the lower court to determine the amount of damages caused by
appellant's failure to comply with NRS 278.461 and NRS 278.590, and to decide the issue of
fraud. At the conclusion of trial, the lower court found the escrow clause inserted by
appellants, requiring respondents to comply with statutory subdivision provisions, violated
NRS 278.461 and NRS 278.590. The court held the parties' purchase agreement represented
a valid, enforceable contract.
____________________

2
According to NRS 278.461, (formerly NRS 278.500):
When parcel map required; exemptions.
1. A person who proposes to divide any land for transfer or development into four or fewer lots shall
file a parcel map in the office of the county recorder, unless this requirement is waived or the provisions
of NRS 278.471 to 278.4725, inclusive, apply.
98 Nev. 338, 341 (1982) Vincent v. Santa Cruz
agreement represented a valid, enforceable contract. Judgment was entered in favor of
respondents against all appellants in the sum of $7,793. Additionally, the court found that
appellants were not liable for fraud.
Appellants contend the lower court erred in finding the contract valid and enforceable. It is
appellants' position that any violation of NRS 278.461 and 278.590 renders the entire contract
void and subject to rescission. Appellants claim the escrow instructions requiring respondents
to comply with NRS 278.461 are an integral part of the parties' contract and cannot be easily
severed.
[Headnotes 1, 2]
Generally, contracts made in contravention of the law do not create a right of action.
Martinez v. Johnson, 61 Nev. 125, 119 P.2d 880 (1941). However, where a contract consists
of several agreements, one of which is illegal, the illegal portion can be severed if it does not
destroy the symmetry of the contract. Forrest Currell Lumber Company v. Thomas, 464 P.2d
891 (N.M. 1970). See also 17A C.J.S. Contracts 299 (1963).
The doctrine of severability was defined in Golberg v. Sanglier, 616 P.2d 1239
(Wash.Ct.App. 1980), as follows:
[i]f the promise sued upon is related to an illegal transaction, but is not illegal in and of
itself, recovery should not be denied, notwithstanding the related illegal transaction, if
the aid of the illegal transaction is not relied upon or required, or if the promise sued
upon is remote from or collateral to the illegal transaction.
Here, the record reflects the parties entered into a valid purchase agreement which
constituted a binding contract exclusive of the escrow instructions. The parties' purchase
agreement did not contain any special instructions relating to the buyers' duty to comply with
NRS 278.461. It was only after the parties executed the binding purchase agreement that
appellants inserted the clause in the escrow instructions which violated NRS 278.461 and
NRS 278.590.
[Headnote 3]
Under the doctrine of severability, we conclude that the clause inserted into the escrow
instructions which violates NRS 278.461 and NRS 278.590 is severable, as it is collateral to
the main transaction.
[Headnote 4]
Finally, appellants Alfred Flippen and Flippen Realty Company contend the lower court
erred in finding them liable based on the actions of Randall Vincent, a Flippen Realty
employee.
98 Nev. 338, 342 (1982) Vincent v. Santa Cruz
on the actions of Randall Vincent, a Flippen Realty employee.
The record reflects Vincent was a licensed real estate agent when respondents purchased
the property in question. The property was listed by Flippen Realty and negotiations
surrounding its sale were conducted at Flippen Realty offices. Additionally, the record
indicates that appellant, Alfred Flippen, assisted in preparing some of the documents
ultimately executed by the parties.
Although the evidence regarding the extent of Alfred Flippen and Flippen Realty's
involvement in the instant matter is in conflict, there is sufficient evidence in the record to
render all appellants liable. Where evidence is conflicting, the lower court's determination of
the credibility of witnesses will not be disturbed on appeal. Kleeman v. Zigtema, 95 Nev.
285, 593 P.2d 468 (1979).
Accordingly, we affirm the district court's order granting respondents' motion for partial
summary judgment. Additionally, we affirm the judgment of the district court awarding
respondents damages, attorneys' fees and costs.
Gunderson, C. J., Manoukian and Springer, JJ., Zenoff, Sr. J.,
3
and Fondi, D. J.,
4
concur.
____________________

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer, Nev. Const., art. 6, 19; SCR 10.

4
The Governor designated the Honorable Michael Fondi, Judge of the First Judicial District Court, to sit in
the place of The Honorable John Mowbray, who was disqualified. Nev. Const., art. 6, 4.
____________
98 Nev. 342, 342 (1982) Lincoln Welding Works, Inc. v. Ramirez
LINCOLN WELDING WORKS, INC., Appellant, v. RICHARD RAMIREZ, dba RICO
PAVING & GRADING COMPANY, Respondent.
No 12361
June 29, 1982 647 P.2d 381
Appeal from order granting respondent's motion for summary judgment, Eighth Judicial
District Court, Clark County; Keith C. Hayes, Judge.
Subcontractor brought suit against general contractor, seeking to recover for expenses
incurred in repairing sheet-piling work, and for damage to a forklift rented by the general
contractor. The district court rendered summary judgment for general contractor, and
subcontractor appealed. The Supreme Court held that: (1) the parties intended to incorporate
the prime contract, including its provision that subcontractors were obligated to bear the
risk of loss until project was formally accepted by sanitation district, into their
subcontract, but {2) a genuine issue of fact existed regarding the alleged damage to
subcontractor's forklift.
98 Nev. 342, 343 (1982) Lincoln Welding Works, Inc. v. Ramirez
prime contract, including its provision that subcontractors were obligated to bear the risk of
loss until project was formally accepted by sanitation district, into their subcontract, but (2) a
genuine issue of fact existed regarding the alleged damage to subcontractor's forklift.
Affirmed in part; reversed and remanded in part.
Foley Brothers, and Paul D. Elcano, Jr., Las Vegas, for Appellant.
Rose, Edwards, Hunt & Pearson, and Pat Fitzgibbons, Las Vegas, for Respondent.
1. Contracts.
Writings which are made a part of the contract by annexation or reference will be so construed, but where
the reference to another writing is made for a particular and specified purpose, such other writing becomes
a part for such specified purpose only.
2. Contracts.
Where reference in a contract to plans and specifications indicates an intention to incorporate them
generally, such reference becomes a part of the contract for all purposes.
3. Contracts.
If plans and specifications are by express terms made a part of the contract, the terms of the plans and
specifications will control with the same force as though incorporated in the very contract itself.
4. Contracts.
Parties intended to incorporate prime contract into subcontract, where the subcontract was a one-page,
short-form document, which by its express terms required subcontractor to furnish work in conformity with
the plans and specifications of prime contract, where subcontractor was acquainted with the plans and
specifications embodied in the voluminous prime contract, and where, in point of fact, subcontractor had to
refer to the prime contract in order to formulate his bid.
5. Contracts.
Generally, one who contracts unqualifiedly to erect a structure for a stipulated price enters into an entire
contract to complete such work and must bear the losses resulting from its accidental destruction or damage
before completion, unless the contract stipulates that he will not be responsible for losses occurring in such
manner.
6. Contracts.
Subcontract pertaining to sheet-piling work, considered in its totality, suggested that the parties bargained
with reference to the prime contract and with the expectation that subcontractor would bear the risk of loss
to its work until formal acceptance by sanitation district; additionally, the subcontract did not contain a
risk-shifting provision absolving subcontractor from bearing the risk of loss until the contract was
completed to the satisfaction of owner and architect.
7. Judgment.
Trial court should not pass upon the credibility of opposing affidavits, unless the evidence tendered by
them is too incredible to be accepted by reasonable minds.
98 Nev. 342, 344 (1982) Lincoln Welding Works, Inc. v. Ramirez
8. Judgment.
As parties' affidavits were in direct conflict on issue whether subcontractor's leased forklift was delivered
to general contractor in good condition and returned in disrepair, and as there was nothing in the record to
suggest that subcontractor's factual allegations regarding the damaged forklift were too incredible to be
accepted by reasonable minds, a genuine issue of fact existed regarding the alleged damage to the forklift,
precluding entry of summary judgment for the general contractor on that issue.
OPINION
Per Curiam:
Appellant Lincoln Welding Works sued respondent Rico Paving & Grading Company,
seeking to recover for expenses incurred in repairing sheet-piling work, and for damages to a
forklift rented by respondent from appellant. On cross-motions for summary judgment, the
district court entered judgment in favor of respondent.
On June 2, 1977, respondent entered into a general contract with the Clark County
Sanitation District to construct sewage lagoons near Mesquite, Nevada. Under the terms of
the general contract, respondent was authorized to subcontract certain portions of the project.
Approximately June 17, 1977, appellant entered into a written subcontract with
respondent, to drive sheet piling at the Mesquite construction site. Appellant completed the
work on February 7, 1978, and was paid $54,162.00 by respondent.
On March 4 and 5, 1978, a flood occurred, causing extensive damage to a portion of the
sheet piling work done by appellant. Shortly thereafter, respondent asked appellant to repair
the damaged sheet piling. Operating under the assumption that it would be compensated for
the additional work, appellant repaired the damages occasioned by the flood.
Upon completion of the repair work, appellant requested payment of $19,108.22.
Respondent refused to compensate appellant for the work, claiming that the prime contract
was incorporated by reference into the subcontract. Under the terms of the prime contract, the
respondent claimed all subcontractors were obligated to bear the risk of loss until the project
was formally accepted by the Sanitation District. The project was not formally accepted by
the District until May 8, 1978.
Additionally, the parties entered into a bare rental agreement, wherein respondent rented a
forklift from appellant for two and one-half weeks, at a cost of $835.90. Five months after
respondent returned the forklift, appellant demanded payment of $1,862.40 for damages
allegedly caused by respondent's misuse of the forklift.
98 Nev. 342, 345 (1982) Lincoln Welding Works, Inc. v. Ramirez
[Headnote 1]
Appellant first contends there was not an incorporation by reference because the
subcontract did not specifically incorporate all the terms of the prime contract. The general
rule regarding incorporation by reference can be stated as follows: [W]ritings which are
made a part of the contract by annexation or reference will be so construed; but where the
reference to another writing is made for a particular and specified purpose, such other writing
becomes a part for such specified purpose only. Orleans M. Co. v. Le Champ M. Co., 52
Nev. 92, 284 P. 307 (1930).
In the instant case, respondent claims that the prime contract was incorporated by
reference pursuant to the following language:
. . . the Sub-Contractor agrees to furnish at his own expense, all the labor and materials
necessary to do and perform in a good and workmanlike manner all the necessary
installation described as follows:
WORK PER PLANS, SPECS., AND ADDEM, #1 DATED 12/2/77 DRIVING SHEET
PILING
$51,300.00
. . . said work to be done and material furnished therefore in conformity with the plans
and specifications for the same prepared by VTN NEVADA-CONSULATING
[CONSULTING] ENGINEERS.
Respondent contends the general reference to the plans and specifications, included in
the prime contract, evidences the parties' intent to incorporate the prime contract by reference.
[Headnotes 2, 3]
Where reference in a contract to plans and specifications indicates an intention to
incorporate them generally, such reference becomes a part of the contract for all purposes.
Moreover, if the plans and specifications are by express terms made a part of the contract,
the terms of the plans and specifications will control with the same force as though
incorporated in the very contract itself. Valley Construction Co. v. City of Calistoga, 72
Cal.App.2d 839, 165 P.2d 521 (1946); see also, Trottier v. M. H. Golden Construction Co.,
105 Cal. App.2d 511, 233 P.2d 675 (1951).
In the instant case, the parties' subcontract was a one-page, short-form document, which by
its express terms, required appellant to furnish work in conformity with the plans and
specifications of the prime contract. The record reflects appellant was acquainted with plans
and specifications embodied in the voluminous prime contract.
98 Nev. 342, 346 (1982) Lincoln Welding Works, Inc. v. Ramirez
the voluminous prime contract. In point of fact, appellant had to refer to the prime contract in
order to formulate his bid.
[Headnote 4]
Under the circumstances presented herein, we conclude that the parties intended to
incorporate the prime contract into the subcontract.
A review of the pertinent provision of the subcontract, reflects that the risk of loss was to
remain with the appellant until formal acceptance of the project by the Sanitation District.
According to subsection two of the subcontract, appellant agreed to do all work in a
first-class and workmanlike manner and to the entire satisfaction of the owner, contractor,
and architect. Subsection five of the agreement goes on to state, to take proper care of all
building materials on the ground. Additionally, section nine of the subcontract states,
Sub-Contractor hereby releases Rico Paving & Grading Co. of all liability on account of any
accidents during performance of work in this contract. The final clause of the parties'
agreement states, the final payment of which the said Contractor will pay to the said
Sub-Contractor, 30 days after final payment by owner provided the Sub-Contractor shall have
completed his work to the full satisfaction of said contractor, owner and architect.
[Headnote 5]
Generally, one who contracts unqualifiedly to erect a structure for a stipulated price
enters into an entire contract to complete such work and must bear the losses resulting from
its accidental destruction or damage before completion, unless the contract stipulates that he
will not be responsible for losses occurring in such manner. Mainland v. Alfred Brown Co.,
85 Nev. 654, 461 P.2d 862 (1969); Collins v. Post, 227 Or. 229, 362 P.2d 325 (1961).
[Headnote 6]
In the instant case, the subcontract, considered in its totality, suggests that the parties
bargained with reference to the prime contract and with the expectation that appellant would
bear the risk of loss to its work, until formal acceptance by the District. Additionally, the
subcontract does not contain a risk shifting provision absolving appellant from bearing the
risk of loss until the contract was completed to the satisfaction of the owner and architect.
In the factually similar case of Collins v. Post, 227 Or. 229, 362 P.2d 325 (1961), the
general contractor in charge of building a state prison, subcontracted with plaintiff to build a
steam tunnel. After completion of the tunnel, but before formal acceptance of the project by
the owner, the steam tunnel was badly damaged.
98 Nev. 342, 347 (1982) Lincoln Welding Works, Inc. v. Ramirez
acceptance of the project by the owner, the steam tunnel was badly damaged. The
subcontractor repaired the damaged tunnel and sued the general contractor for payment. The
court held that the subcontractor bore the risk of loss, and was liable for the reconstruction of
the damaged tunnel.
Under the terms of the parties' agreement in Collins, the subcontractor was obligated to
save harmless the contractor from damages due to the subcontractor's failure to fully
perform. Pursuant to the terms of the prime contract, the general contractor was liable for
damages to the project until formal acceptance by the owner. The court found that under the
terms of the subcontract, as well as the prime contract, which was incorporated by reference,
the subcontractor was liable for accidental damages to his work.
Here, as in Collins v. Post, supra, we conclude the provisions of the parties' agreement
establish that the risk of loss was to remain with appellant until the project was formally
accepted by the District.
Finally, appellant contends the district court erred in granting respondent's motion for
summary judgment on the issue of damages to appellant's forklift.
Appellant contends that it delivered the forklift to respondents in good condition, and that
the fork lift was returned in disrepair. In its affidavit, appellant testified that after respondents
returned the rented forklift, it discovered the forklift was seriously damaged. In support of its
claim for damages, appellant introduced an invoice dated March 22, 1978, which states,
Repair forklift as needed on rental agreement #3280, amount $1,862.41.
The affidavit of Richard Ramirez, owner of Rico Paving & Grading Company, avers that
he was in no way responsible for any damage or negligent in any way which would result in
the damages claimed by the Plaintiff.
In determining the propriety of a summary judgment order, all evidence favorable to the
party against whom such judgment was rendered will be 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). Summary judgment is appropriate only when the moving party
is entitled to judgment as a matter of law and there are no genuine issues of fact remaining for
trial. Bader Enterprises, Inc. v. Becker, 95 Nev. 807, 603 P.2d 268 (1979).
[Headnote 7]
In Short v. Hotel Riviera, Inc., supra, this court noted, a trial court should not pass upon
the credibility of opposing affidavits, unless the evidence tendered by them is too
incredible to be accepted by reasonable minds."
98 Nev. 342, 348 (1982) Lincoln Welding Works, Inc. v. Ramirez
affidavits, unless the evidence tendered by them is too incredible to be accepted by reasonable
minds.
[Headnote 8]
Here, the parties' affidavits are in direct conflict. There is nothing in the record to suggest
appellant's factual allegations regarding the damaged forklift are too incredible to be accepted
by reasonable minds.
Viewing the evidence in a light most favorable to appellant, we find a genuine issue of fact
exists regarding the alleged damage to appellant's forklift.
Accordingly, that part of the district court's summary judgment order relating to the parties'
construction contract is affirmed. That part of the summary judgment order which denies
appellant's claim for damages pursuant to the parties' forklift rental agreement is reversed, and
the case is remanded for further proceedings not inconsistent with this opinion.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6 19; SCR 10.
____________
98 Nev. 348, 348 (1982) Engelmann v. Westergard
GEORGE C. ENGELMANN, APPELLANT, v. ROLAND D. WESTERGARD, State
Engineer, State of Nevada, Respondent, UNION CARBIDE CORPORATION, A New
York Corporation, Respondent in Intervention.
No. 12126
June 29, 1982 647 P.2d 385
Appeal from order dismissing action, Seventh Judicial District Court, White Pine County;
Merlyn H. Hoyt, Judge.
Permittee filed application for judicial review of cancellation of water rights permits by
state engineer. The district court granted state engineer's motion to dismiss, and permittee
appealed. The Supreme Court held that: (1) failure to exercise subject matter jurisdiction was
error; (2) permittee's action was not barred by his failure to exhaust administrative remedies
before state engineer; and (3) permittee's due process rights were not violated on ground that
he did not receive actual notice regarding cancellation of his permits.
Reversed and remanded.
98 Nev. 348, 349 (1982) Engelmann v. Westergard
Johnson, Belaustegui & Robison, Reno, for Appellant.
Richard H. Bryan, Attorney General, and George Campbell, Deputy Attorney General,
Carson City, for Respondent.
Hill, Cassas, de Lipkau and Erwin, Reno, for Respondent in Intervention.
1. Waters and Water Courses.
Failure to exercise subject matter jurisdiction on permittee's application for judicial review of
cancellation of his water rights permits was error, notwithstanding that permits were conditioned upon
compliance with schedule of deadlines for filing various proofs, that state engineer advised permittee by
unclaimed certified letter that his permits were in poor standing and subject to cancellation, and that
permittee's permits were cancelled as mandated by statute approximately 30 days later, where permittee
alleged he did not learn his permits were cancelled for over two years. NRS 533.410.
2. Waters and Water Courses.
Although permit statute provides that water permits shall be cancelled by state engineer when permittee
fails to file proof of application of water to beneficial use, such directive does not affect power of district
court to grant equitable relief to permittee when warranted. NRS 533.410.
3. Waters and Water Courses.
Under statute authorizing state engineer to extend time within which water shall be applied to beneficial
use under permit issued therefore, providing that application for such extension is made within 30 days,
30-day period is that period of time immediately after state engineer advises permittee, by certified mail,
that permit is subject to cancellation. NRS 533.380, subd. 3, 533.390, subd. 2.
4. Administrative Law and Procedure.
Where one has not enjoyed fair opportunity to exhaust administrative process, or where resort to
administrative procedures would be futile, exhaustion of administrative remedies is not required.
5. Administrative Law and Procedure.
Doctrine of exhaustion of remedies does not require one to initiate and participate in proceedings where
administrative agency clearly lacks jurisdiction, or which are vain and futile.
6. Waters and Water Courses.
Permittee's action for judicial review of cancellation of water rights permits was not barred by his failure
to exhaust his administrative remedies before state engineer where record reflected that permittee had no
actual notice that his permits were cancelled until some two years afterwards and therefore it was factually
impossible to apply for extension of time within 30 days after receipt of state engineer's warning letter as
required by statute. NRS 533.080, subd. 3, 533.090, subd. 2, 533.410.
7. Constitutional Law.
Permittee's due process rights were not violated on ground that he did not receive actual notice regarding
cancellation of his water rights permits where state engineer advised permittee by certified letter, which
was later returned unclaimed, that his permits were in poor standing and subject to
cancellation and cancelled permits approximately 30 days later as mandated by
statute.
98 Nev. 348, 350 (1982) Engelmann v. Westergard
poor standing and subject to cancellation and cancelled permits approximately 30 days later as mandated
by statute. NRS 533.410.
OPINION
Per Curiam:
Appellant, George Engelmann, and his wife filed applications 21051 and 21032 with
respondent State Engineer on February 11, 1963. The applications requested water rights
sufficient to irrigate agricultural lands in the Penoyer Valley of Lincoln County. The
applications were granted.
In September of 1965, Engelmann and his wife filed applications 22756 and 22758,
seeking to change the points of diversion of Permits 21051 and 21032. These applications
were also granted.
On September 26, 1972, permits 22756 and 22758 were cancelled by the State Engineer
pursuant to NRS 533.410, for failure to comply with the terms of the permit.
1
Specifically,
Engelmann failed to put the water to a beneficial use as required by statute.
On January 13, 1975, Engelmann filed applications 29144 and 29145 for new water rights
on the same acreage. These two applications were granted on June 6, 1975. Engelmann
received a certified letter from the Division of Water Resources with his two new permits.
The letter stated:
. . . that if the various proofs thereunder, together with any maps which may be
required are not filed in this office prior to the dates set for the filings, the permits will
be subject to cancellation. For your assistance a sheet is enclosed which will advise you
of the requirements to fulfill the terms of your permits.
____________________

1
NRS 533.410 provides:
Cancellation of permit for failure to file proof of application of water to beneficial use, map; notice to
permit holder; extensions of time. Should any holder of a permit from the state engineer fail, prior to the
date set for such filing in his permit, to file with the state engineer proof of application of water to
beneficial use, and the accompanying map, if such map is required, the state engineer shall advise the
holder of the permit, by registered or certified mail, that the same is held for cancellation. Should the
holder, within 30 days after the mailing of such advice, fail to file the required affidavit and map, if such
map is required, or either of them, with the state engineer, the permit shall be canceled and no further
proceedings shall be had thereunder. For good cause shown, upon application made prior to the
expiration of such 30-day period, the state engineer may, in his discretion, grant an extension of time in
which to file the instruments.
98 Nev. 348, 351 (1982) Engelmann v. Westergard
The following message appeared at the bottom of the letter in bold type: PLEASE NOTE
DATES FOR FILING VARIOUS PROOFS.
On January 6, 1976, the State Engineer notified Engelmann by certified mail, that his
permits numbers 29144 and 29145 were in poor standing and subject to cancellation. The
record reflects that the certified letter notifying Engelmann that his permits were subject to
cancellation was returned unclaimed to the Division of Water Resources. The State Engineer
entered an order cancelling permits 29144 and 29145 on February 10, 1976.
Engelmann alleges he did not know his permits were cancelled until March, 1978. On
April 13, 1978, he filed an application for judicial review.
The district court conducted a hearing on May 1, 1979, to consider appellant's motion for
summary judgment, respondent's motion to dismiss and intervenor's motion for summary
judgment. The district court granted respondent's motion to dismiss. This appeal followed.
[Headnote 1]
At the outset, Engelmann contends the district court erred in failing to exercise its subject
matter jurisdiction. We agree.
[Headnote 2]
Although NRS 533.410 provides that water permits shall be cancelled by the State
Engineer when a permittee fails to file proof of application of water to beneficial use, this
directive does not affect the power of the district court to grant equitable relief to a permittee
when warranted. State Engineer v. American National Ins. Co., 88 Nev. 424, 498 P.2d 1329
(1972). See also Donoghue v. T.O.M. Co., 45 Nev. 110, 198 P. 553 (1921).
In Bailey v. State of Nevada, 95 Nev. 378, 594 P.2d 734 (1979), we held a determination
that the State Engineer had correctly cancelled a permit, pursuant to his statutory mandate,
did not affect the power of the district court to grant equitable relief to the permittee when
warranted. See State Engineer v. American National Ins. Co., 88 Nev. 424, 498 P.2d 1329
(1972).
The facts in Bailey are similar to those in the instant case. The appellant in Bailey was
notified at the outset that her permit was conditioned upon compliance with the schedule of
deadlines as set forth in the State Engineer's letter granting her the initial permit. Pursuant to
NRS 533.410, the State Engineer notified Bailey by certified letter that her permit was in poor
standing and subject to cancellation. The State Engineer's certified letter to Bailey was
returned to his office marked "unclaimed."
98 Nev. 348, 352 (1982) Engelmann v. Westergard
unclaimed. Approximately thirty days thereafter, the State Engineer cancelled Bailey's
permit.
Here, the State Engineer advised Engelmann in a letter dated June 6, 1975, that his new
permits were conditioned upon compliance with the schedule of deadlines as set forth in the
letter. On January 6, 1976, the State Engineer advised Engelmann by certified letter that his
permits were in poor standing and subject to cancellation. The record reflects this certified
letter was returned to the State Engineer marked unclaimed. Approximately thirty days
later, Engelmann's permits were cancelled as mandated by NRS 533.410.
We have held that where an aggrieved party had no actual knowledge that his permits were
cancelled until after expiration of the 30-day period within which to comply with the statute,
it was not the intent of the Legislature to preclude judicial review of such an order or
decision. Bailey v. State of Nevada, 95 Nev. 378, 594 P.2d 734 (1979).
In the instant case, Engelmann did not learn his permits were cancelled for over two years.
Appellant's apparent failure to exercise diligence in the protection of his valuable water rights
is a question of fact to be determined by the district court on remand.
Next, Engelmann submits the district court erred when it concluded that his claim was
barred by failing to exhaust his administrative remedies before the State Engineer.
Where a water permit is in poor standing or subject to cancellation, NRS 533.380(3)
provides:
The state engineer shall have authority, for good cause shown, to extend the time
within which construction work shall begin, within which construction work shall be
completed, or water applied to a beneficial use under any permit therefore issued by the
state engineer; but an application for such extension must in all cases be made within
30 days following notice by registered or certified mail that proof of such work is due
as provided for in NRS 533.390 and 533.410.
NRS 533.390(2) provides in pertinent part: For good cause shown, upon application
made prior to the expiration of the 30-day period, the state engineer may, in his discretion,
grant an extension of time in which to file the instruments.
[Headnote 3]
The 30-day period referred to in the statute, is that period of time immediately after the
State Engineer advises a permittee, by certified mail, that their permit is subject to
cancellation.
98 Nev. 348, 353 (1982) Engelmann v. Westergard
Where a permittee fails to file for an extension of time within 30 days after receipt of the
State Engineer's warning letter, . . . the permit shall be cancelled and no further proceedings
shall be had thereunder.
2
(Emphasis added.) Under the terms of NRS 533.390(2), any
administrative remedies Engelmann might have pursued, were no longer viable. The record
reflects that Engelmann had no actual notice that his permits were cancelled until some two
years afterwards. Consequently, it was factually impossible to apply for an extension of time
as provided in NRS 533.380(3) and NRS 533.390(2).
[Headnotes 4, 5]
Where one has not enjoyed a fair opportunity to exhaust the administrative process, or
where resort to administrative procedures would be futile, exhaustion of administrative
remedies is not required. Gardner v. Pierce County Bd. of Com'rs, 27 Wash.App. 241, 617
P.2d 743 (1980); see Craycroft v. Ferrall, 408 F.2d 587 (9th Cir. 1969) (vacated on other
grounds, 397 U.S. 335 (1970)). Additionally, the doctrine of exhaustion of remedies does not
require one to initiate and participate in proceedings where an administrative agency clearly
lacks jurisdiction, or which are vain and futile. See Zylstra v. Piva, 85 Wash. 2d 743, 539
P.2d 823 (1975).
[Headnote 6]
Under the terms of NRS 533.390(2), a request by Engelmann for administrative review,
would have been considered untimely and futile. In view of the circumstances presented
herein, we find the district court erred in concluding that Engelmann's action was barred by
his failure to exhaust his administrative remedies before the State Engineer.
[Headnote 7]
Finally, Engelmann claims that his due process rights were violated because he did not
receive actual notice regarding cancellation of his permits.
____________________

2
NRS 533.390(2) provides:
533.390 Permittee's work progress statements; penalties.
2. Should any person holding a permit from the state engineer fail, prior to the date set for such filing
in his permit, to file with the state engineer proof of commencement of work, or should he fail to file,
within 30 days of the date set prior to which proof of completion of the work must be made, the proof of
completion of work, as provided in this chapter, the state engineer shall, in either case, advise the holder
of the permit, by registered or certified mail, that the same is held for cancellation, and should the holder,
within 30 days after the mailing of such advice, fail to file the required affidavit with the state engineer,
the permit shall be canceled and no further proceedings shall be had thereunder. For good cause shown,
upon application made prior to the expiration of the 30-day period, the state engineer may, in his
discretion, grant an extension of time in which to file the instruments.
98 Nev. 348, 354 (1982) Engelmann v. Westergard
violated because he did not receive actual notice regarding cancellation of his permits.
Appellant's claim is without merit.
In Bailey v. State of Nevada, 95 Nev. 378, 594 P.2d 734 (1979), we held that a permittee's
due process rights were not violated where the State Engineer fully complied with the
directive of NRS 533.410 in sending out an additional notice by certified mail, advising the
permittee that his permit was subject to cancellation.
Accordingly, we reverse the order of the district court dismissing the complaint against
respondent, and we remand this matter to the district court for further proceedings.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer, Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 354, 354 (1982) Allen v. State
MARY FRANCES ALLEN, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12496
June 29, 1982 647 P.2d 389
Appeal from a judgment of conviction of attempted murder in the second-degree after a
jury trial, Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
The Supreme Court, Gunderson, C. J., held that whether interval between beating which
defendant suffered at hands of her boyfriend, which she claimed caused her to lose
consciousness, and injury to boyfriend in shooting was sufficient to constitute an adequate
cooling-off period was an issue of fact for jury; thus, trial court committed reversible error in
refusing to give defendant's requested instruction on attempted voluntary manslaughter.
Reversed and remanded.
Mowbray, J., dissented.
William N. Dunseath, Public Defender; Michael B. McDonald and N. Patrick Flanagan,
Deputy Public Defenders, Washoe County, for Appellant.
98 Nev. 354, 355 (1982) Allen v. State
Richard H. Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney;
and Richard F. Cornell and Edward B. Horn, Deputy District Attorneys, Washoe County, for
Respondent.
1. Homicide.
Voluntary manslaughter consists of a killing which is the result of a sudden, violent and irresistible
impulse of passion; the law requires that the irresistible impulse of passion be caused by a serious and
highly provoking injury, or attempted injury, sufficient to excite such passion in a reasonable person. NRS
200.050.
2. Homicide.
If there is an interval between the provocation and killing sufficient for passion to cool and voice of
reason to be heard, the killing will be punished as murder. NRS 200.060.
3. Homicide.
With regard to voluntary manslaughter, whether the interval between provocation and the killing is
sufficient for passions of a reasonable person to cool is not measured exclusively by any precise time and
what constitutes a sufficient cooling-off period also depends upon magnitude of the provocation and the
degree to which passions are aroused. NRS 200.050.
4. Homicide.
Whether interval between beating which defendant suffered at hands of her boyfriend, which she claimed
caused her to lose consciousness, and injury to boyfriend in shooting was sufficient to constitute an
adequate cooling-off period was an issue of fact for jury; thus, trial court committed reversible error in
refusing to give defendant's requested instruction on attempted voluntary manslaughter. NRS 200.050,
200.060.
OPINION
By the Court, Gunderson, C. J.:
A jury convicted Mary Frances Allen of attempted second-degree murder for shooting her
boyfriend, Roger Griffey. At the time of the shooting, Mary and Roger were transcontinental
truck drivers. Mary had accepted employment as Roger's relief driver hoping to improve a
two-year relationship marked by Roger's violent outbursts of temper. One of their trips took
the couple to Boomtown, a popular Nevada truckstop, where the incident giving rise to this
case occurred.
Upon their arrival, Roger entered Boomtown's casino and commenced to gamble. Mary
protested, became distraught, and began to drink heavily. After a time, Roger decided that
Mary should stop drinking and escorted her back to the truck, where he beat her severely,
breaking her upper dentures. Her face was badly bruised and cut.
98 Nev. 354, 356 (1982) Allen v. State
face was badly bruised and cut. Roger then left Mary in the truck and returned to the casino.
At trial, Mary testified that she was beaten unconscious.
Approximately four or five hours later, the record indicates Mary returned to
consciousness while choking on her dentures, which had become lodged in her throat.
Vomiting and crying, she unsuccessfully attempted suicide with an unloaded shotgun. After
some difficulty, she loaded the gun and accidentally fired a round through the truck window.
The shot aroused friends, sleeping in their truck nearby, who observed Mary's battered face
and agitated condition. Immediately thereafter, the record indicates Mary left the truck, and
walked into the casino where she shot Roger at close range.
On appeal, Mary contends that it is reversible error for the district court to refuse to give to
the jury her requested instruction on attempted voluntary manslaughter. We agree.
[Headnotes 1, 2]
Voluntary manslaughter is defined by NRS 200.050 and NRS 200.060.
1
It consists of a
killing which is the result of a sudden, violent and irresistible impulse of passion. The law
requires that the irresistible impulse of passion be caused by a serious and highly provoking
injury, or attempted injury, sufficient to excite such passion in a reasonable person. If there is
an interval between the provocation and the killing sufficient for the passion to cool and the
voice of reason to be heard, the killing will be punished as murder. NRS 200.060; see
Jackson v. State, 84 Nev. 203, 438 P.2d 795 (1968).
[Headnote 3]
Whether the interval between the provocation and the killing is sufficient for the passions
of a reasonable person to cool is not measured exclusively by any precise time. What
constitutes a sufficient cooling-off period also depends upon the magnitude of the
provocation and the degree to which passions are aroused. People v. Hudson, 390 N.E.2d 5
(Ill.App. 1979).
____________________

1
NRS 200.050 Voluntary manslaughter defined. In cases of voluntary manslaughter, there must be a serious
and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a
reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing.
NRS 200.060 When killing punished as murder. The killing must be the result of that sudden, violent
impulse of passion supposed to be irresistible; for, if there should appear to have been an interval between the
assault or provocation given and the killing, sufficient for the voice of reason and humanity to be heard, the
killing shall be attributed to deliberate revenge and punished as murder.
98 Nev. 354, 357 (1982) Allen v. State
[Headnote 4]
In Jackson, cited above, the killing followed a fist-fight occasioned by the defendant's
objection to the victim dating the defendant's former wife. After being knocked to the ground,
the defendant retrieved a rifle from his automobile, loaded it, and returned to shoot the
victim. In light of all the circumstances the district court correctly concluded that the interval
between the provocation and the killing provided no basis for finding that the defendant was
acting under an irresistible impulse. In the instant case, however, the provocation suffered by
Mary is significantly more egregious than the provocation in Jackson. Moreover, a jury might
well find that Mary, awakening to find herself traumatized by a severe beating, experienced
no lapse of time in a way allowing her sense of outrage to cool and permitting reason to
prevail. Thus, we cannot say, as a matter of law, that she was not acting under the compulsion
of an irresistible impulse of passion when she shot Roger. Whether the interval between the
beating and the injury to Roger is sufficient to constitute an adequate cooling-off period is an
issue of fact properly decided by the jury. State v. Keith, 9 Nev. 15, 19 (1873). Accordingly,
we reverse the judgment and remand to district court for proceedings consistent with this
opinion.
Appellant's other claim of error has been considered and is without merit.
Manoukian and Springer, JJ., and Zenoff, Sr. J.,
2
concur.
Mowbray, J., dissenting:
I respectfully dissent from the majority decision. In my opinion Allen did not present any
evidence that would reduce her crime from attempted murder to attempted manslaughter. A
jury instruction on manslaughter as a lesser included offense of murder was unnecessary, and
inappropriate. Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966).
Allen's evidence showed that the victim had stuck her and knocked her unconscious. After
regaining consciousness she attempted to shoot herself, loaded the shotgun and walked from
the truck to the casino. She located the victim and shot him at close range.
NRS 200.060 states:
When killing punished as murder. The killing must be the result of that sudden,
violent impulse of passion supposed to be irresistible; for, if there should appear to have
been an interval between the assault or provocation given and the killing, sufficient for
the voice of reason and humanity to be heard, the killing shall be attributed to deliberate
revenge and punished as murder.
____________________

2
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case. Nev. Const.,
art. 6, 19; SCR 10.
98 Nev. 354, 358 (1982) Allen v. State
result of that sudden, violent impulse of passion supposed to be irresistible; for, if there
should appear to have been an interval between the assault or provocation given and the
killing, sufficient for the voice of reason and humanity to be heard, the killing shall be
attributed to deliberate revenge and punished as murder.
In the instant case I would hold that the time it took Allen to load a shotgun and locate the
victim precluded, as a matter of law, a finding that the attempted killing was the result of a
sudden impulse of passion as required by our statute. Jackson v. State, 84 Nev. 203, 438 P.2d
795 (1968). I would sustain the district court's decision not to instruct the jury on the law of
voluntary manslaughter, and affirm the conviction.
____________
98 Nev. 358, 358 (1982) Holmby, Inc. v. Dino
HOLMBY, INC., Appellant, v. PAUL DINO and TITLE INSURANCE AND TRUST
COMPANY, Respondents, v. PAUL DINO, Cross-Appellant, v. TITLE INSURANCE AND
TRUST COMPANY, DIANNE TERRACINA and ADA TESSLER, dba SUNSHINE
REALTY, Cross-Respondents.
No. 13089
June 30, 1982 647 P.2d 392
Appeal from an order granting summary judgment and cross-appeals from orders
dismissing cross-complaint and third-party complaint. Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
Suit was instituted by purchaser to compel specific performance of sale and purchase
agreement by vendor. The district court entered summary judgment in favor of vendor, and
appeal was taken. Cross-appeals were taken from orders dismissing cross-complaint and
third-party complaint. The Supreme Court held that purchaser did not have a reasonable time
after deadline provided in sale and purchase agreement wherein time was of the essence to
comply with conditions for extension of escrow and was not entitled to specific performance
from vendor on ground that his compliance with conditions 16 days after deadline constituted
substantial performance.
Affirmed.
98 Nev. 358, 359 (1982) Holmby, Inc. v. Dino
Lionel Sawyer & Collins, Dennis Kennedy, Las Vegas, for Appellant.
Albright, McGimsey & Stoddard; Deaner & Deaner; and Marquis & Haney, Las Vegas,
for Respondent.
1. Vendor and Purchaser.
While offer and acceptance signed by parties with respect to sale and purchase of real estate did not
specifically provide that time was of the essence, where the escrow instructions, which were subsequently
signed, did so specify, sales agreements and escrow instructions, deemed supplementary, were to be read
together so as to provide that time was of the essence in the sale and purchase agreement.
2. Specific Performance; Vendor and Purchaser.
Purchaser did not have a reasonable time after deadline provided in sale and purchase agreement wherein
time was of the essence to comply with conditions for extension of escrow and was not entitled to specific
performance from vendor on ground that his compliance with conditions 16 days after deadline constituted
substantial performance.
3. Vendor and Purchaser.
In the absence of contractual terms to the contrary, undischarged liens will not affect the marketability of
title so long as there are sufficient funds in the escrow account upon its closing to satisfy the encumbrances.
4. Vendor and Purchaser.
Existence of a deed of trust did not excuse purchaser from timely tender of payment, notwithstanding
claim that deed disabled vendor from tendering marketable title, where purchaser would have been under
no jeopardy by tendering payment since escrow instructions specifically directed escrow agent to remove
all encumbrances which purchaser had not agreed to assume and, in addition, vendor would have been able
to tender marketable title because sales agreement provided that a title insurance policy would serve as
evidence of marketable title.
5. Vendor and Purchaser.
Actions of the vendor in representing that encumbrance would be removed, in inquiring as to whether he
would be allowed additional time, if necessary, to remove encumbrance, and in failing to notify purchaser
in advance that escrow had not been extended and that original closing date was in effect did not bear upon
purchaser's duty to comply with terms of sale and purchase agreement and, even if proven, did not make a
case for estoppel or waiver against vendor who made no false or misleading representations.
6. Vendor and Purchaser.
Delay in performance by purchaser was not excused by actions of vendor which did not otherwise bear
upon vendor's duty to comply with terms of sale and purchase agreement and was properly made a basis by
vendor for cancelling escrow upon purchaser's failure to tender timely payment.
98 Nev. 358, 360 (1982) Holmby, Inc. v. Dino
OPINION
Per Curiam:
This appeal follows a summary judgment entered in favor of respondent Dino, seller of
certain real estate, and against appellant Holmby, Inc., the buyer. We affirm the summary
judgment, thereby disposing of the appeal and cross-appeals.
In September of 1976, the parties entered into an agreement concerning the sale and
purchase of two adjacent parcels of land. The agreement specified that escrow was to close on
December 15, 1976, unless the buyer complied with certain conditions necessary to extend
the escrow period. The agreement required Holmby to deposit $2,000.00 for the two parcels
of land by November 16, in order to extend the close of escrow for an additional thirty days.
The agreement provided for a maximum of three thirty-day extensions.
It is undisputed that the escrow agent received neither a check nor a letter of intent to
extend escrow by the November deadline. The escrow agent did, however, receive a check
and a letter of intent on December 1. Ten days later, the escrow agent received an additional
check for $2,000.00 and a letter requesting that the escrow be extended for another thirty
days, until February 16, 1977.
On December 17, Dino, the seller, notified the escrow agent that escrow was cancelled
inasmuch as Holmby had failed to comply with the conditions for extension, and it had also
failed to submit full down payment by December 16. Despite notification of the cancellation
of escrow, Holmby tendered the down payment in February of 1977. When Dino refused
tender, Holmby filed this suit to compel specific performance of the sales agreement.
We first consider whether appellant's payments, if made within a reasonable time, satisfied
the terms of the sales contract. Holmby asserts that by paying the $2,000.00 within sixteen
days of the specified deadline, it substantially complied with the agreement and therefore was
entitled to an extension of escrow. Appellant further claims that tender of the full down
payment in February, 1977, also amounted to substantial performance of the agreement,
entitling Holmby to specific performance.
In support of this contention, appellant first argues that the court erred in concluding that
time was of the essence in the sales agreement. Secondly, Holmby urges that even if time was
of the essence, the doctrine of substantial performance should nonetheless apply.
98 Nev. 358, 361 (1982) Holmby, Inc. v. Dino
[Headnote 1]
We conclude that the district court was correct in determining that time was of the essence
in the sales agreement. The offer and acceptance signed by the parties did not specifically so
provide; however, the escrow instructions, which were subsequently signed, did specify that
time was of the essence. Sales agreements and escrow instructions ordinarily are
supplementary and thus should be read together. King v. Stanley, 197 P.2d 321 (Cal. 1948);
Swanson v. Thurber, 281 P.2d 642 (Cal.App. 1955). Since the sales agreement and escrow
instructions in this case were not inconsistent with each other, the inclusion of the provision
in the escrow instructions was sufficient to make the condition binding on the parties.
[Headnote 2]
We also reject appellant's contention that it was nevertheless entitled to a reasonable
time to tender payment. In R & S Investments v. Howard, 95 Nev. 279, 593 P.2d 53 (1979),
we held that where escrow instructions provide that time is of the essence, purchasers may
not challenge a forfeiture on the ground that they had complied within a reasonable time. The
very nature of an escrow arrangement is to provide for performance at a stated and
unquestionable time. Consequently, the doctrine of substantial performance is not applicable
to this case.
The remaining issues concern an encumbrance on the property which was made known to
the buyer after the execution of the sales document. The encumbrance was an $11,000.00
deed of trust in the name of Gloria Trautz, beneficiary. Holmby asserts that the deed of trust
disabled the seller from marketable title and thus precluded the entry of summary judgment in
favor of the seller.
[Headnote 3]
A majority of courts have held that, in the absence of contractual terms to the contrary,
undischarged liens will not affect the marketability of title so long as there are sufficient
funds in the escrow account upon its closing to satisfy the encumbrances. See, e. g., Sewell v.
Dolby, 237 P.2d 366 (Kan. 1951); Robeson-Marion Development Co. v. Powers Co., 183
S.E.2d 454 (S.C. 1971). Holmby asserts that the general rule is not applicable in this instance
because the Trautz deed contained a future advances clause which would permit the deed to
serve as security for an indefinite amount of money. Holmby therefore claims that by
tendering payment for the property while such an encumbrance still existed, a buyer would
risk financial loss if the encumbrance was greater than the down payment.
98 Nev. 358, 362 (1982) Holmby, Inc. v. Dino
would risk financial loss if the encumbrance was greater than the down payment.
[Headnote 4]
We reject appellant's contention that the existence of the deed of trust excused Holmby
from timely tender of payment. Appellant has directed us to no authority which holds, under
facts similar to this case, that performance would be excused. Moreover, there was
undisputed evidence that the buyer would have been under no jeopardy by tendering payment.
The escrow instructions, for example, specifically directed the escrow agent to remove all
encumbrances which the buyer had not agreed to assume.
1
In addition, there was undisputed
evidence that Dino would have been able to tender marketable title. The sales agreement
provided that a title insurance policy would serve as evidence of marketable title. Dino
presented uncontradicted evidence that he could have delivered an insured title to the buyer in
spite of the trust deed. The buyer was thus amply protected. We therefore conclude that the
existence of the encumbrance did not excuse Holmby's performance.
[Headnote 5]
Holmby finally claims that Dino was foreclosed from cancelling escrow because of certain
actions which Dino had taken. Holmby alleges that Dino represented that the encumbrance
would be removed; that Dino queried as to whether he would be allowed additional time, if
necessary, to remove the encumbrance; and that Dino failed to notify Holmby in advance that
escrow had not been extended and that the original closing date was therefore in effect.
[Headnote 6]
We cannot see how any or all of these actions, even if proven, would make a case for
estoppel or waiver. None of these alleged actions bears upon the buyer's duty to comply with
the terms of the agreement. Dino made no false or misleading representations to Holmby
which would give rise to estoppel; nor did his alleged conduct constitute waiver, an
intentional relinquishment of a known right. Reno Realty v. Hornstein, 72 Nev. 219, 301
P.2d 1051 (1956). We therefore do not conclude that Holmby's delay in performance was
excused by Dino's actions. Cf. Pothast v. Kind, 24 P.2d 771 {Cal.
____________________

1
The escrow instructions provided as follows:
You will find the necessary Deeds, Trust Deeds and other instruments and then pay any
encumbrances you may find against said property, except as set forth above.
Deduct from the amount collected for my account any payment made by you pursuant to these
instructions, together with your charges.
98 Nev. 358, 363 (1982) Holmby, Inc. v. Dino
not conclude that Holmby's delay in performance was excused by Dino's actions. Cf. Pothast
v. Kind, 24 P.2d 771 (Cal. 1933) (seller was not precluded from cancelling escrow upon
buyer's failure to tender timely payment, even though seller had previously attempted to
repudiate the contract).
The trial court properly entered summary judgment; we therefore affirm.
Gunderson, C. J., Manoukian, Springer, and Mowbray, 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 The
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 363, 363 (1982) Carr v. State
JAMES ARNOLD CARR, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 13503
August 27, 1982 649 P.2d 1357
Appeal from order denying post-conviction relief; Eighth Judicial District Court, Clark
County; J. Charles Thompson, Judge.
The Supreme Court held that a United States Supreme Court decision holding that a state
trial judge has a constitutional obligation, upon proper request, to give a no adverse
inference instruction would not be given full retroactive effect to defendant's final judgment
of conviction.
Affirmed.
Morgan D. Harris, Public Defender, and Gary H. Lieberman, Deputy Public Defender,
Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
Courts.
United States Supreme Court decision holding that a state trial judge has a constitutional obligation, upon
proper request, to give a no adverse inference instruction would not be given full retroactive effect to
defendant's final judgment of conviction.
98 Nev. 363, 364 (1982) Carr v. State
OPINION
Per Curiam:
This is an appeal from an order denying appellant's petition for post-conviction relief. NRS
177.315 et seq. The only issue on appeal is whether the case of Carter v. Kentucky, 450 U.S.
288 (1981), should be given full retroactive application to appellant's conviction.
In Franklin v. State, 98 Nev. 266, 646 P.2d 543 (1982), we held that the Carter decision
warrants the same retroactive effect given the analogous rule of Griffin v. California, 380
U.S. 609 (1965). As we noted in Franklin, the Supreme Court has determined that Griffin did
not retroactively apply to cases in which the judgment was final on the date of the Griffin
decision. See Tehan v. Shott, 382 U.S. 406 (1966). Accordingly, we decline to give Carter
full retroactive effect to appellant's final judgment of conviction. We find no error in the
district court's order denying post-conviction relief.
Affirmed.
____________
98 Nev. 364, 364 (1982) Sullivan v. Dairyland Insurance Co.
MIKEL SULLIVAN, Appellant, v. DAIRYLAND
INSURANCE COMPANY, Respondent.
No. 13552
August 27, 1982 649 P.2d 1357
Appeal from summary judgment. Eighth Judicial District Court, Clark County; James A.
Brennan, Judge.
Passenger, whose injuries from automobile accident greatly exceeded driver's automobile
policy liability coverage, sought to recover under both the policy's medical expenses and
liability coverages. The district court granted summary judgment in favor of the insurer, and
the passenger appealed. The Supreme Court held that the passenger could recover under both
coverages, even though the policy contained a setoff clause requiring repayment of benefits
paid under the medical expenses coverage out of any recovery made under the liability
coverage.
Reversed and remanded.
Leavitt, Graves & Leavitt, Las Vegas, for Appellant.
Cromer, Barker, Michaelson, Gillock & Rawlings, and Michael K. Mansfield, Las Vegas,
for Respondent.
98 Nev. 364, 365 (1982) Sullivan v. Dairyland Insurance Co.
1. Insurance.
Setoff clause in automobile policy requiring that insured and insured's passengers agree to repay any
benefits paid under the policy's medical expenses coverage out of any recovery made under the policy's
liability and uninsured motorist coverages only operated to prevent double recovery for the same elements
of damage.
2. Insurance.
An insurance policy is a contract, and is to be enforced according to its terms so as to effectuate the
parties' intent.
3. Insurance.
Ambiguity in the terms of an insurance contract shall be resolved in favor of the insured, and against the
insurer.
4. Insurance.
Insurer desiring to restrict coverage must do so explicitly.
5. Insurance.
Passenger, whose injuries from automobile accident greatly exceeded driver's automobile policy liability
coverage, was entitled to recover under the policy's medical expenses coverage as well as under the policy's
liability coverage, even though the policy contained a setoff clause requiring repayment of benefits paid
under the medical expenses coverage out of any recovery made under the liability coverage.
OPINION
Per Curiam:
Appellant Mikel Sullivan was seriously injured in an automobile accident, while riding as
a passenger. The driver, who negligently caused the accident, was insured by respondent
Dairyland Insurance Company. The driver's policy with Dairyland contained the legal
minimum liability coverage, $15,000.00 per person per accident. It also provided for payment
of up to $5,000.00 in medical expenses, regardless of fault, to the insured and the insured's
passengers. The policy contained a setoff clause which read:
When we pay your medical expenses, you or your legal representative must agree in
writing to repay us out of any damages you recover under the liability or uninsured
motorist insurance of this policy.
[Headnote 1]
Sullivan's damages greatly exceeded $20,000.00. He recovered $15,000.00 under the
liability coverage, and brought this action to recover an additional $5,000.00 for his medical
expenses. Dairyland moved for summary judgment, raising the setoff clause as a defense. The
district court granted Dairyland's motion. We hold that the setoff clause only operates to
prevent double recovery for the same elements of damage, and reverse.
98 Nev. 364, 366 (1982) Sullivan v. Dairyland Insurance Co.
[Headnotes 2-4]
An insurance policy is a contract, and is to be enforced according to its terms so as to
effectuate the parties' intent. State Farm Mutual Automobile Ins. Co. v. Hinkel, 87 Nev. 478,
488 P.2d 1151 (1971); Continental Casualty Co. v. Summerfield, 87 Nev. 127, 482 P.2d 308
(1971). An ambiguity in the terms of an insurance contract shall be resolved in favor of the
insured, and against the insurer. E. G., Harvey's Wagon Wheel, Inc. v. MacSween, 96 Nev.
215, 606 P.2d 1095 (1980); United Services Automobile Ass'n v. Crandall, 95 Nev. 334, 594
P.2d 704 (1979); Home Indemnity Co. v. Desert Palace, Inc., 86 Nev. 234, 468 P.2d 19
(1970). An insurer desiring to restrict coverage must do so explicity. Harvey's Wagon Wheel,
supra.
In Melson v. Illinois National Ins. Co., 274 N.E.2d 664 (Ill.App. 1971), the court in
interpreting a similar clause held that where the total damages incurred by the insured are
greater than the combined coverage, the crediting provision of the medical coverage does not
apply. See Taylor v. State Farm Mutual Automobile Ins. Co., 237 So.2d 690 (La.App. 1970);
Hutchison v. Hartford Accident & Indemnity Co., 312 N.Y.S.2d 789 (1970); Wittig v. United
Services Automobile Association, 300 F.Supp. 679 (N.D.Ind. 1969). The reason for the rule
is that:
[the medical payment crediting provision is] designed only to protect the insurance
company from double exposure for medical payments. Thus it prevents an insured
whose medical expenses have been paid under the Medical Payments Coverage from
collecting for those medical expenses once again. . . . Taylor v. State Farm Mutual
Automobile Ins. Co., supra, at 693.
This interpretation of the coverage is in keeping with the reasonable expectations of an
insured that he will be covered for the insurance he has purchased.
[Headnote 5]
Therefore, we hold that Sullivan is entitled to recover benefits under the medical expense
insurance provision as well as the liability insurance. We reverse the summary judgment and
remand the case to the district court for further proceedings in accordance with this opinion.
____________
98 Nev. 367, 367 (1982) Barnes v. State
CARROLL EUGENE BARNES, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12802
August 27, 1982 649 P.2d 1359
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Defendant was convicted in the district court of robbery with deadly weapon and
possession of firearm by ex-felon, and defendant appealed. The Supreme Court, held that it
was error to deny defendant proper hearing on grievance concerning irreconcilable conflict
with public defender where grievance was brought to attention of trial court well before trial,
but record established that error was harmless.
Affirmed.
Isabel Fleisher, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
It was error to deny defendant proper hearing on grievance concerning irreconcilable conflict with public
defender where grievance was brought to attention of trial court well before trial, but record established
that error was harmless. U.S.C.A. Const. Amend. 6.
OPINION
Per Curiam:
THE FACTS
Appellant was charged with robbery with a deadly weapon and possession of a firearm by
an ex-felon. A public defender was appointed to represent him, but from the time of his first
appearance in court, when he told the court that he refused to talk to his public defender for
various reasons, Barnes expressed extreme dissatisfaction with his attorney. During the
pretrial period, Barnes filed several motions and petitions dealing with his dissatisfaction
with counsel. These matters, although filed well before trial, were not ruled on until a hearing
was held one week before trial in response to Barnes' proper person motion for compliance.
At that hearing, the court recognized that appellant had, in essence, requested another
attorney, and appellant pointed out "I've never had an opportunity to ask for another
attorney."
98 Nev. 367, 368 (1982) Barnes v. State
essence, requested another attorney, and appellant pointed out I've never had an opportunity
to ask for another attorney. The court responded, I hope you can communicate and work
with [your attorney], and I hope [your attorney] can work with you, because that's how you're
going to trial and you're going next Monday.
Before trial, Barnes again told the court that he had never accepted his lawyer. His motion
to proceed in proper person with the assistance of counsel was denied and a trial was held
over Barnes' objection to the entire proceedings. Barnes was convicted of both charges and
sentenced to thirty-six years in prison.
THE CLAIM OF INEFFECTIVE ASSISTANCE
OF COUNSEL
In this appeal, it is argued that Barnes was denied effective assistance of counsel because
he was compelled to undergo trial represented by an attorney with whom he had become
embroiled in an irreconcilable conflict. In so arguing, appellant relies on Brown v. Craven,
424 F.2d 1166 (9th Cir. 1970).
The facts in Brown are similar to those before us in that the conflict between both
appellants and their attorneys were, in each case, brought to the attention of the court well
before trial.
1
Further, both appellants made pretrial motions concerning their representation
which were summarily denied. The lack of communication upon which each Sixth
Amendment claim was made was the result of the appellant's refusal to cooperate with his
attorney.
We agree with the Ninth Circuit Court of Appeals that under such circumstances a trial
judge should take the necessary time and conduct such necessary inquiry as might . . . [ease
the defendant's] dissatisfaction, distrust and concern. Brown v. Craven, supra, at 1170. See
Thomas v. State, 94 Nev. 605, 584 P.2d 674 (1978) (Brown inapplicable because appellant
was given a full opportunity to present objections). Such a hearing would also serve to
facilitate our review when this issue is presented on appeal. See United States v. Hart, 557
F.2d 162 (8th Cir. 1977); United States v. Jones, 512 F.2d 347 (9th Cir. 1975); Gibbons v.
State, 97 Nev. 520, 634 P.2d 1214 (1981).
____________________

1
This case is therefore distinguished from those in which the request for the appointment of new counsel is
made on the eve of trial. See, e.g., United States v. Michelson, 559 F.2d 567 (9th Cir. 1977); United States v.
Young, 482 F.2d 993 (5th Cir. 1973); State v. Reid, 559 P.2d 136 (Ariz. 1976); People v. Walker, 555 P.2d 306
(Cal. 1976); State v. Lopez, 605 P.2d 178 (Mont. 1979); Junior v. State, 91 Nev. 439, 537 P.2d 1204 (1975).
98 Nev. 367, 369 (1982) Barnes v. State
Using Brown v. Craven, supra, as the appropriate standard, the district court's error does
not require reversal. In reversing Brown's conviction, the Ninth Circuit not only found that
insufficient inquiry was made, the court also found that the record before it showed that had
there been adequate communication between the attorney and client, the conviction, if any,
would have been for a much lesser offense. The record before us justifies no such conclusion.
Barnes was identified by a witness as the perpetrator of the crime. When apprehended,
minutes after the robbery, he had in his possession a pistol and small bills with a total value
of $238.00. The victim testified that two hundred and thirty some dollars were stolen. At
the time of his arrest, Barnes also had a green knit cap. The victim testified that she could not
see the robber's face because it was covered by a green ski hat. The evidence adduced at trial
thus indicates that while the district court erred in failing to allow Barnes a proper hearing on
his grievances concerning his counsel, the error was harmless.
Appellant's other assignment of error is without merit.
We affirm the judgment of conviction.
____________
98 Nev. 369, 369 (1982) Locken v. Locken
LAWRENCE LOCKEN, Appellant, v.
HUGH LOCKEN, Respondent.
No. 12315
August 27, 1982 650 P.2d 803
Appeal from judgment declaring constructive trust in land, ordering appellant to convey
land to respondent, and awarding respondent attorney's fees. Sixth Judicial District Court,
Humboldt County; William P. Beko, Judge.
Father brought action against son seeking imposition of constructive trust upon property.
The district court ruled that son held property in constructive trust for benefit of father,
ordered son to convey land to father, and awarded father attorney fees, and son appealed. The
Supreme Court held that: (1) where oral agreement provided that father was to make certain
improvements upon property, and after patent was granted son was to convey the property to
father, but son subsequently refused to convey the property as agreed, imposition of
constructive trust upon the land was appropriate, and (2) trial court erred in awarding father
attorney fees, since statute permits plaintiff to recover fees when he has not recovered
more than $10,000, but record contained substantial evidence establishing market value
of property in question to be in excess of $50,000.
98 Nev. 369, 370 (1982) Locken v. Locken
permits plaintiff to recover fees when he has not recovered more than $10,000, but record
contained substantial evidence establishing market value of property in question to be in
excess of $50,000.
Affirmed in part; reversed in part.
Michael C. Farris, Incline Village; and Peter A. Tomaino, South Lake Tahoe, California,
for Appellant.
Eck, Harkins & Beckett, Carson City, for Respondent.
1. Trusts.
Evidence in action brought by father against son for declaration of constructive trust in land sustained
finding that parties orally agreed that father would make certain improvements upon the property, and after
patent was granted, son would convey the property to father.
2. Trusts.
Statute providing that statute of frauds shall not be construed to prevent any trust from arising or being
extinguished by implication or operation of law permits the imposition of a constructive trust to avert the
type of fraud statute is designed and intended to prevent. NRS 111.205.
3. Trusts.
Where oral agreement provided that father was to make certain improvements upon property, and after
patent was granted, son was to convey the property to father, the statute of frauds was of no impediment to
the imposition of a constructive trust after son refused to convey the property as agreed. NRS 111.205.
4. Trusts.
Constructive trust is a remedial device by which holder of legal title to property is held to be a trustee of
that property for the benefit of another who in good conscience is entitled to it.
5. Trusts.
Constructive trust will arise and affect property acquisitions under circumstances where confidential
relationship exists between parties, retention of legal title to a holder thereof against another would be
inequitable, and the existence of such a trust is essential to the effectuation of justice.
6. Trusts.
Where oral agreement provided that father was to make certain improvements upon property, and after
patent was granted son was to convey the property to father, but son subsequently refused to convey the
property as agreed, imposition of constructive trust upon the land was appropriate, since confidential
relationship existed between father and son, detention of legal title by son would be inequitable, and the
existence of the trust was essential to the effectuation of justice.
7. Equity.
Where oral agreement provided that father was to make certain improvements upon property, and after
patent was granted son was to convey property to father, but son subsequently refused to convey property
as agreed, fact that father had submitted an affidavit accompanying land patent
applications stating that father had "no interest" in property did not preclude
imposition of constructive trust upon the land under the clean-hands doctrine, since
alleged misconduct of father was not directed against son, that conduct, standing
alone, did not amount to unclean hands, public interest could not be restored because
of completed transaction, no serious moral turpitude was involved, son was guilty of
greater moral fault than father, and application of doctrine would permit son to be
unjustly enriched.
98 Nev. 369, 371 (1982) Locken v. Locken
property as agreed, fact that father had submitted an affidavit accompanying land patent applications
stating that father had no interest in property did not preclude imposition of constructive trust upon the
land under the clean-hands doctrine, since alleged misconduct of father was not directed against son, that
conduct, standing alone, did not amount to unclean hands, public interest could not be restored because of
completed transaction, no serious moral turpitude was involved, son was guilty of greater moral fault than
father, and application of doctrine would permit son to be unjustly enriched.
8. Costs.
Nevada adheres to general rule disallowing attorney fees absent a statute, rule or contractual basis for
such an award.
9. Trusts.
In action brought by father against son seeking imposition of constructive trust on property, trial court
erred in awarding father attorney fees, since statute permits plaintiff to recover fees when he has not
recovered more than $10,000, but record contained substantial evidence establishing market value of
property in question to be in excess of $50,000. NRS 18.010.
OPINION
Per Curiam:
This case focuses upon a dispute between a father and son over the ownership of land. In
satisfaction of certain indebtedness owed to the respondent father by a third party, the father
agreed to accept an assignment of two patent applications for separate parcels of land. Since
the Desert Land Act, 43 U.S.C. 321 (1964), prohibited the father from making more than
one entry in his own name, at the suggestion of his son, the parties verbally agreed to place
one of the applications in the son's name. Under this agreement, the father was to make
certain improvements upon the land, and after the patent was granted the son was to convey
the property to his father. The father fulfilled his part of the agreement, expending
considerable time, effort and money on land improvement, yet the son refused to convey the
property as agreed.
The district court ruled that the son held the land in constructive trust for the benefit of his
father, ordered the son to convey the land to his father, and awarded the father attorney's fees.
We affirm that portion of the district court's judgment as it pertains to the conveyance of land
held in constructive trust, but reverse as to the award of attorney's fees.
1. Constructive Trust
[Headnotes 1-3]
Since the record supports the finding by the district court of an oral agreement between the
parties for the conveyance of land, we must first consider whether the imposition of a
constructive trust runs afoul of the statute of frauds.
98 Nev. 369, 372 (1982) Locken v. Locken
land, we must first consider whether the imposition of a constructive trust runs afoul of the
statute of frauds. NRS 111.205 provides in pertinent part:
1. No estate or interest in lands . . . shall be created, granted, assigned, surrendered
or declared . . ., unless by act or operation of law, or by deed or conveyance, in writing.
. . . .
2. Subsection 1 shall not be construed to affect in any manner the power of a
testator in the disposition of his real property by a last will and testament, nor to
prevent any trust from arising or being extinguished by implication or operation of law.
(Emphasis supplied.)
This exception to the statute of frauds, set forth in subsection 2, permits the imposition of a
constructive trust to avert the type of fraud the statute is designed and intended to prevent.
Davidson v. Streeter, 68 Nev. 427, 234 P.2d 793 (1951). Thus, the statute of frauds is of no
impediment to the existence of a constructive trust in the instant action.
[Headnotes 4-6]
A constructive trust is a remedial device by which the holder of legal title to property is
held to be a trustee of that property for the benefit of another who in good conscience is
entitled to it. Danning v. Lum's, Inc., 86 Nev. 868, 871, 478 P.2d 166 (1970). A constructive
trust will arise and affect property acquisitions under circumstances where : (1) a confidential
relationship exists between the parties; (2) retention of legal title by the holder thereof against
another would be inequitable; and (3) the existence of such a trust is essential to the
effectuation of justice. Schmidt v. Merriweather, 82 Nev. 372, 375, 418 P.2d 991 (1966).
Here, each of the aforesaid elements coexist as revealed amply by the evidence of record. A
close familial relationship of trust and confidence existed between the parties at the time of
their agreement, and the son abused that confidential relationship at the expense of his father.
Under such circumstances, it would be manifestly inequitable to judicially countenance
continued retention of legal title to the property in the son. Further, since land is unique, the
creation by law of a constructive trust was necessary to the prevention of a continuing
injustice.
[Headnote 7]
We are unimpressed by appellant's attempt to avoid the equitable imposition of a
constructive trust by invoking the clean-hands doctrine. The son argues that his father should
be denied equitable relief because of the latter's affidavit accompanying the land patent
application stating that the father had "no interest" in that parcel of land to be placed in
the son's name.
98 Nev. 369, 373 (1982) Locken v. Locken
denied equitable relief because of the latter's affidavit accompanying the land patent
application stating that the father had no interest in that parcel of land to be placed in the
son's name. While the doctrine is sound, it does not apply here since the alleged misconduct
was not directed against appellant and did not affect the transaction between the parties.
McKelvie v. Hackney, 360 P.2d 746, 752 (Wash. 1961); High v. Parks, 257 S.E.2d 661, 663,
(N.C.App. 1979). Further, and without condoning respondent's misstatement, such conduct,
standing alone, absent an intent to deceive, does not amount to unclean hands. Xerox Corp. v.
Dennison Mfg. Co., 322 F.Supp. 963 (D.C.N.Y. 1971). In any event, the fact that the property
may have been originally acquired through artifice or some illegal act does not serve as a
basis for denying equitable relief for a subsequent wrong by appellant. Loughran v. Loughran,
292 U.S. 216, 228 (1933), reh'g denied, 292 U.S. 615 (1934).
Even assuming arguendo that the agreement was illegal or against public policy, the rule
that such agreements are not to be enforced by the courts will not be applied in this instance
where: (1) the public interest cannot be restored because of the completed transaction; (2) no
serious moral turpitude is involved; (3) the son is guilty of greater moral fault than the father;
and (4) application of the rule would permit the son to be unjustly enriched at the expense of
his father. Magill v. Lewis, 74 Nev. 381, 333 P.2d 717 (1958). Accordingly, we hold that the
district court's imposition of a constructive trust was correct, and affirm that portion of the
judgment.
2. Attorney's Fees
[Headnotes 8, 9]
We next consider whether it was error for the lower court to award attorney's fees to the
father. Nevada has adhered to the general rule disallowing attorney's fees absent a statute,
rule, or contractual basis for an award of such fees. Consumers League of Nevada v.
Southwest Gas Corp., 94 Nev. 153, 576 P.2d 737 (1978). NRS 18.010 permits the plaintiff to
recover attorney's fees when, as a prevailing party, the plaintiff has not recovered more than
$10,000. Here, the record contains substantial evidence establishing the market value of the
property in question to be in excess of $50,000. Since this value exceeds the statutory
amount, we reverse the order of the district court concerning the allowance of attorney's fees,
and remand with instructions for entering an appropriate judgment in accordance with this
opinion.
____________
98 Nev. 374, 374 (1982) Parsons Drilling, Inc. v. Polar Resources
PARSONS DRILLING, INC., A Nevada Corporation and NORMAN A. PARSONS and
NELDA H. PARSONS, Appellants, v. POLAR RESOURCES COMPANY, A Nevada
Corporation, and C. WARREN HUNT and MALCOLM I. HUNT, Respondents.
No. 12864
August 27, 1982 649 P.2d 1360
Appeal from judgment, Fourth Judicial District Court, Elko County; Joseph O. McDaniel,
Judge.
Seller brought suit against buyer asking for return of rig which was the subject of sale,
requesting cost of repair to rig, three months rental of rig and value of services rendered by
sellers' employees to buyer. The district court ruled in favor of buyer, and seller appealed. The
Supreme Court held that: (1) under contract for sale of seller's drilling rig, return of down
payment was necessary before buyer's relinquishment of rig; (2) where buyer was given
option, in contract, of returning rig and terminating contract, exercise of such contractual
right was not a recision of a contract and, thus, seller could not rely on equitable principles
of recision in asking for rent of rig; and (3) where had seller's debt not been assigned within
45 days of contract date, buyer would have been required to purchase rig, buyer's binding
itself to such restriction constituted detriment necessary to establish consideration for option
of buying or returning rig.
Affirmed.
George G. Holden, Battle Mountain, for Appellants.
Goicoechea, DiGrazia & Marvel, Elko, for Respondents.
1. Sales.
Under contract for sale of seller's drilling rig, return of down payment was necessary before buyer's
relinquishment of rig.
2. Sales.
Where buyer was given option, in contract, of returning rig and terminating contract, exercise of such
contractual right was not a recision of a contract and, thus, seller could not rely on equitable principles of
recision in asking for rent of rig.
3. Sales.
Where contract for sale of drilling rig which gave buyer the option of returning rig and terminating
contract was silent as to buyer's liability for rental payments in event of contract termination, buyer who
returned rig and terminated contract would not be liable to seller for rent.
4. Appeal and Error.
In calculating amount of damages, trial judge is clothed with wide discretion and in absence of
showing of abuse of such discretion its determination will not be disturbed on appeal.
98 Nev. 374, 375 (1982) Parsons Drilling, Inc. v. Polar Resources
wide discretion and in absence of showing of abuse of such discretion its determination will not be
disturbed on appeal.
5. Sales.
In seller's action asking for return of rig, cost of repair to rig, three months rental of rig, and value of
services rendered by seller's employees to buyer, trial court did not abuse discretion in finding that cost of
repairs to rig was $323.39, in permitting recovery for buyer's use of seller's compressor for two months,
and in allowing recovery for missing down-hole hammer or in denying relief for other accessories allegedly
missing.
6. Sales.
Where had seller's debt not been assigned within 45 days of contract date, buyer would have been
required to purchase rig, buyer's binding itself to such restriction constituted detriment necessary to
establish consideration for option of buying or returning rig.
OPINION
Per Curiam:
Appellant, Parsons Drilling, Inc., challenges the trial court's ruling that Parsons remit
respondent Polar Resources Company's downpayment made pursuant to a contract between
the two parties.
On approximately May 25, 1979, both parties entered into a contract of sale for appellants'
drilling rig. Parsons had purchased the rig through Credit Alliance Corporation under a
conditional sales contract.
In accordance with the terms of the parties' contract, Polar gave Parsons a thirteen
thousand dollar deposit in exchange for possessory rights in the rig. The contract specified
that both parties would try to elicit Credit Alliance Corporation's approval of the conditional
sales contract's assignment to Polar. If the assignment was accepted within forty-five days,
Polar would then take over payments under the conditional sales contract and reimburse
Parsons for past payments. Should such assignment not be approved within the time period
set, the contract terms gave Polar the option of either paying an extra forty thousand dollars
and buying the rig or, upon Parsons' remittance of the thirteen thousand dollar deposit,
returning the rig in no worse condition than when received by Polar.
Credit Alliance Corporation did not approve the assignment within forty-five days. More
than forty-five days after contracting, Polar's president personally delivered a letter to Parsons
terminating the parties' contract. Attached to the letter was a proposed settlement regarding
return of the downpayment less an amount representing Polar's use of a compressor owned by
Parsons. Parsons rejected the proposed settlement and refused to return the downpayment or
accept return of the rig.
98 Nev. 374, 376 (1982) Parsons Drilling, Inc. v. Polar Resources
Parsons filed suit on October 5, 1979. In its complaint, Parsons asked for return of the rig.
It also requested the cost of repair to the rig, three months rental of the rig and the value of
services rendered by Parsons' employees to Polar. Parsons, further, wanted return of, or
payment equal to the value of, several accessories to the rig. Finally, Parsons sued for
recovery equal to the value of Polar's use of a compressor owned by Parsons.
The district court ruled in favor of Polar. It ruled that Polar had the right to terminate the
contract and recover the thirteen thousand dollar downpayment, less several ancillary charges
due Parsons by Polar. The district court, further, found that Parsons' refusal to return the
downpayment and refusal to accept return of the rig made its demand for recovery of alleged
losses relating to the rig's use nugatory. It also held that the contract's silence as to Polar's
paying rent for use of the rig during the forty-five day period over which the condition was in
effect rendered Parsons' demand for such rent baseless. Parsons now challenges the district
court's judgment.
[Headnote 1]
Parsons initially takes issue with the lower court's ruling that return of the downpayment
was necessary before Polar's relinquishment of the rig. Parsons contends that return of the rig
in as good condition as delivered was a condition precedent to Parsons' remittance of the
downpayment. The relevant contract terms provide as follows:
If, however, the said assignment is not approved within 45 days hereof, then Polar
may elect either to pay Parsons a further $40,000; or on payment by Parsons to Polar of
$13,000 as reimbursement of the downpayment hereinbefore provided . . . Polar shall
forthwith deliver back to Parsons the [drilling rig and equipment] and in the event of
such return to Parsons, the returned items shall be in no worse condition than when
Polar received them. . . .
As early as 1868 this court stated that [l]anguage, although not a perfect medium of thought
or intention, is yet the most perfect which we possess. . . . If there be no ambiguity apparent,
the words must be taken in their usual and ordinary signification, and the context interpreted
in accordance with grammatical rules. Rankin v. New England M. Co., 4 Nev. 78, 83
(1868). One is hardpressed to glean Parsons' interpretation of the contract from the terms
themselves. The lower court's interpretation of the contract clearly flows from the language of
the contract. Thus, we conclude that Parsons' assertion is meritless.
98 Nev. 374, 377 (1982) Parsons Drilling, Inc. v. Polar Resources
The lower court found that Polar did not owe Parsons rent for Polar's use of the rig.
Parsons contends that it was entitled to such rent, and the lower court's finding was erroneous.
Entitlement to the rent, according to Parsons, is based in Polar's purported recision of the
contract and the equitable tenets associated with recision. (See Mortensen v. Berzell
Investment Company, 429 P.2d 945 (Az. 1967).)
[Headnote 2]
Parsons mistakes Polar's actions, terminating the contract, for a recision. Polar was given
the option, in the contract, of returning the rig and terminating the contract. Exercise of its
contractual right was not a recision of the contract. Thus, Parsons cannot rely on the equitable
principles of recision in asking for rent of the rig.
[Headnote 3]
In the present case the contract was silent as to Polar's liability for rental payments in the
event of contract termination. When parties reduce their contract to writing . . . the
instrument must be treated as containing the whole contract, and parol proof is not admissible
to alter its terms. Gage v. Phillips, 21 Nev. 150, 153 (1891). The terms of the contract did
not provide that Polar would be liable for rent. Parsons cannot now alter those terms to
include a provision for payment of rent. Thus, we conclude that the lower court correctly
found Polar not liable to Parsons for rent.
Parsons takes issue with several of the trial judge's findings as to alleged damages incurred
by it. Among other rulings, the trial court held that the cost of repairs to the rig was $323.39.
The court also permitted recovery for Polar's use of Parsons' compressor for two months. The
trial court, further, allowed recovery for a missing down-hole hammer and denied relief for
other accessories allegedly missing. Parsons argues that these findings were in error.
[Headnotes 4, 5]
This court's inquiry into Parsons' allegations is limited to [determining] whether there is
evidence in the record to support the finding of the trial court. Jensen v. Brooks, 88 Nev.
651, 653, 503 P.2d 1224 (1972). In calculating the amount of damages, a trial judge is
clothed with a wide discretion. In the absence of a showing of an abuse of such discretion its
determination will not be disturbed on review. Bigler v. Richards, 377 P.2d 552, 553 (Colo.
1963). The lower court's findings as to damages are supported by the record before us and do
not evince an abuse of discretion.
98 Nev. 374, 378 (1982) Parsons Drilling, Inc. v. Polar Resources
[Headnote 6]
As previously noted, Polar was given the option of buying or returning the rig should
Parsons' debt not be assigned within forty-five days of the contract date. Parsons contends
that consideration for the option did not exist. Thus, according to Parsons, the contract was
illusory.
Parsons' allegation distills to a conclusion that consideration for the condition in the
contract is independent of consideration for the option. Consideration for the option,
however, emanates from the condition in the contract. Had the assignment occurred within
forty-five days, Polar would be required, under the contract, to purchase the rig. Polar's
binding itself to such a restriction constitutes the detriment necessary to establish
consideration for the option. (See Grant v. White, 439 P.2d 828 (Az. 1968).) We conclude
that Parsons' contention is baseless.
We had considered several other assertions proffered by Parsons and find them without
merit.
Accordingly, we affirm the lower court's judgment.
____________
98 Nev. 378, 378 (1982) Las Vegas Plywood v. D. & D. Enterprises
LAS VEGAS PLYWOOD AND LUMBER, INC., Appellant, v. D & D ENTERPRISES,
Respondent, HIBERNIA NATIONAL BANK IN NEW ORLEANS, Intervenor.
No. 13077
August 27, 1982 649 P.2d 1367
Appeal from summary judgment. Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
Claimant appealed from order of the district court granting summary judgment in a
mechanic's lien foreclosure action in favor of owner and against claimant. The Supreme Court
held that claimant's substantial compliance with notice statute was sufficient to perfect the
mechanic's lien.
Reversed and remanded.
Ordowski & Eads, Las Vegas, for Appellant.
Jolley, Urga & Wirth, and Phillip S. Aurbach, Las Vegas, for Respondent.
Lionel Sawyer & Collins, and Robert M. Buckalew, Las Vegas, for Intervenor.
98 Nev. 378, 379 (1982) Las Vegas Plywood v. D. & D. Enterprises
1. Mechanics' Liens.
Mechanic's lien statutes are remedial in character and should be liberally construed; substantial
compliance with statutory requirements is sufficient to perfect the lien if property owner is not prejudiced.
NRS 108.227, subd. 1.
2. Mechanics' Liens.
Substantial compliance with notice requirements of statute will suffice to perfect a mechanic's lien if
owner receives actual notice and is not prejudiced. NRS 108.227, subd. 1.
3. Mechanics' Liens.
Where claimant complied with notice requirements of mechanic's lien statute in every respect except that
it mistakenly posted the lien at the wrong location, and where owner had actual notice of the lien and was
not prejudiced by claimant's dereliction, as a matter of law, claimant's substantial compliance with the
statute was sufficient to perfect its mechanic's lien. NRS 108.227, subd. 1.
OPINION
Per Curiam:
This is an appeal from an order granting summary judgment in a mechanic's lien
foreclosure action in favor of respondent D & D Enterprises (D & D) and against appellant
Las Vegas Plywood and Lumber, Inc., the lien claimant. The district court held that, because
appellant did not comply with the statutory requirements for service of a mechanic's lien, the
lien was never perfected. Appellant argues that substantial compliance with the statute was
sufficient, where respondent had actual notice of the lien. We agree with appellant and
reverse.
Appellant provided materials as a subcontractor for a construction project on respondent D
& D's land. When the general contractor failed to pay for the materials, appellant recorded a
mechanic's lien on the property. Appellant attempted to serve the lien on respondent by
leaving it with a person of suitable age and discretion at respondent's place of business. When
no suitable person could be found, appellant posted a copy of the lien in a conspicuous place
at respondent's place of business, rather than on the property which was the subject of the
lien, and appellant mailed a copy to respondent. Respondent received actual notice of the
existence of the lien.
Appellant brought this action to foreclose the lien. The district court granted summary
judgment in respondent's favor, ruling that appellant had failed to serve respondent with a
copy of the lien in conformity with the requirements of NRS 108.227(1).
1
[Headnote 1]
[Headnote 1]
____________________

1
NRS 108.227 Service of copy of claim on record owner of property; record owner defined.
1. In addition to the requirements of NRS 108.226, a copy of the claim
98 Nev. 378, 380 (1982) Las Vegas Plywood v. D. & D. Enterprises
[Headnote 1]
This court has repeatedly held that the mechanic's lien statutes are remedial in character
and should be liberally construed; that substantial compliance with the statutory requirements
is sufficient to perfect the lien if the property owner is not prejudiced. Peccole v. Luce &
Goodfellow, Inc., 66 Nev. 360, 212 P.2d 718 (1949); Ferro v. Bargo Mining and Milling Co.,
37 Nev. 139, 140 P. 527 (1914); Malter v. Falcon Mining Co., 18 Nev. 209 (1883). In Malter,
we stated that:
the spirit and purpose of the [mechanic's lien statute] is to do substantial justice to all
parties who may be affected by its provisions; and that courts should avoid unfriendly
strictness and mere technicality. [Citations omitted.] This rule should always be
followed where the objections urged serve only to perplex and embarrass a remedy
intended to be simple and summary, without adding anything to the security of the
parties having an interest in the property sought to be affected.
18 Nev. at 212-213. Cf. Fisher Brothers, Inc. v. Harrah Realty Co., 92 Nev. 65, 545 P.2d 203
(1976) (Complete failure to give the required notice prevents perfection of a mechanic's lien.)
See also Peterman-Donnelly Engineers & Contractors Corp. v. First National Bank of
Arizona, 408 P.2d 841 (Ariz.App. 1965); Watson v. Auburn Iron Works, 318 N.E.2d 508
(Ill.App. 1974); Schubloom v. Donavon and Assoc., 241 N.W.2d 710 (S.D. 1976).
[Headnotes 2, 3]
The purpose of NRS 108.227(1) is to notify the property owner of the lien; therefore,
substantial compliance with the requirements of the statute will suffice if the owner receives
actual notice and is not prejudiced. The district court has discretion to determine whether
there has been substantial compliance with the statute. In the instant case it is undisputed that
appellant complied with the statute in every respect except that appellant mistakenly
posted the lien at the wrong location.
____________________
shall be served upon the record owner of the property within 30 days, in one of the following ways:
(a) By delivering a copy to the owner personally; or
(b) If he is absent from his place of residence, or from his usual place of business, by leaving a copy with
some person of suitable age and discretion at either place, and sending a copy through the mail addressed to the
owner at his place of residence or place of business; or
(c) If such place of residence or business cannot be ascertained, or a person of suitable age or discretion
cannot be found there, then by fixing a copy in a conspicuous place on the property, and also delivering a copy
to a person there residing, if such person can be found, and also sending a copy through the mail addressed to the
owner at the place where the property is situated.
98 Nev. 378, 381 (1982) Las Vegas Plywood v. D. & D. Enterprises
appellant complied with the statute in every respect except that appellant mistakenly posted
the lien at the wrong location. It is also undisputed that respondent had actual notice of the
lien, and that respondent was not prejudiced by appellant's dereliction. On these facts, we
hold that, as a matter of law, appellant's substantial compliance with NRS 108.227(1) was
sufficient to perfect the mechanic's lien. We therefore reverse and remand the case for further
proceedings in accordance with this opinion.
____________
98 Nev. 381, 381 (1982) Bader Enterprises, Inc. v. Olsen
BADER ENTERPRISES, INC., Appellant, v. ARTHUR OLSEN; HELEN L. ROW, aka
HELEN L. OLSEN; PAUL N. MELTZER and HELEN MELTZER, Respondents.
No. 13167
August 27, 1982 649 P.2d 1369
Appeal from order granting motion to dismiss, and subsequent order denying motion to
alter or amend judgment. Eighth Judicial District Court, Clark County; Merlyn H. Hoyt,
Judge.
Foreign corporation brought action seeking to recover purported interest it had in certain
business premises then occupied and maintained by respondents. While litigation was in
process, corporation's charter was revoked by Delaware for nonpayment of its franchise taxes.
Certificate of corporate repeal was issued by proclamation and filed in Delaware by its
Secretary of State as required by Delaware law. Corporation did not file in Nevada a certified
copy of this document, and in 1978 corporation forfeited its authorization to conduct business
in Nevada. As a consequence of corporation's failure to purchase a document, the district
court granted respondents' motion for dismissal, and appeal was taken. The Supreme Court
held that since corporation failed to comply with provisions of statute by not filing certificate
of corporate repeal with Nevada Secretary of State, it was prohibited from maintaining action
in Nevada until such time as full compliance was accomplished.
Affirmed.
Stanley W. Pierce, Las Vegas, for Appellant.
Bilbray, Carelli & Miller, and Jones, Jones, Bell, Close & Brown, Las Vegas, for
Respondents.
98 Nev. 381, 382 (1982) Bader Enterprises, Inc. v. Olsen
1. Corporations.
Corporation was under an obligation to file its certificate of corporate repeal with Nevada Secretary of
State even though it had no duty to file such certificate in Delaware, the state of its incorporation. NRS
80.030, subd. 1.
2. Corporations.
Since Delaware corporation failed to comply with provisions of statute by not filing its certificate of
corporate repeal with Nevada Secretary of State, it could not maintain action to recover purported interest
it had in certain business premises then occupied and maintained by respondents in Nevada until such time
as full compliance was accomplished. NRS 80.030, subd. 1, 80.210, subd. 1.
3. Corporations.
Delaware corporation's right to litigate in Nevada was determined by conjunction of rule providing that
capacity of corporation to sue or be sued shall be determined by law under which it is organized, unless a
statute of state provides to the contrary and statute that does provides to the contrary by placing specific
limitations upon a foreign corporation's capacity to maintain suit within Nevada. NRS 80.030, subd. 1;
NRCP 17(b).
OPINION
Per Curiam:
The essential question on this appeal is whether a foreign corporation can maintain an
action initiated in this State when (1) its corporate status is revoked, (2) it forfeits its
authorization to do business in this State, and (3) it fails to comply with certain statutory
mandates requisite to the maintenance of an action within this State.
In 1971, appellant incorporated in the State of Delaware and qualified to do business in the
State of Nevada. In 1975, appellant filed the instant action seeking to recover a purported
interest it had in certain business premises then occupied and maintained by respondents. In
1977, while the litigation was in process, appellant's corporate charter was revoked by
Delaware for non-payment of its franchise taxes. A certificate of corporate repeal was issued
by proclamation and filed in Delaware by its Secretary of State as required by Delaware law.
Appellant did not file in Nevada a certified copy of this document, and in 1978 appellant
forfeited its authorization to conduct business in this State. As a consequence of appellant's
failure to file such a document, the district court granted respondents' motion for dismissal on
grounds that appellant could no longer maintain the action in Nevada. We affirm that
determination.
98 Nev. 381, 383 (1982) Bader Enterprises, Inc. v. Olsen
The decision of the district court was premised upon the ruling that it was without
jurisdiction under NRS 80.210(1) to permit the maintenance of an action by a foreign
corporation whose corporate charter had lapsed. NRS 80.210(1) sets forth penalties that are to
be imposed for the failure of a foreign corporation to comply with certain statutory requisites.
It provides:
Every corporation which fails or neglects to comply with the provisions of NRS
80.010 to 80.040, inclusive, shall be subject to a fine of not less than $500, to be
recovered in a court of competent jurisdiction, and shall not be allowed to commence,
maintain, or defend any action or proceeding in any court of this state until it shall
have fully complied with the provisions of NRS 80.010 to 80.040, inclusive. (Emphasis
supplied.)
When this action was commenced, appellant's corporate charter was in good standing, but its
continued qualification to do business in Nevada was dependent upon its steadfast
compliance with the terms of NRS 80.030(1) which then provided as follows:
Any foreign corporation qualified to transact business in this state shall, upon the
filing in the place of its creation of any paper, document or instrument amendatory of,
supplemental to, or otherwise related to the instrument of its creation, and which
pursuant to the laws of the place of its creation is to be filed or recorded therein,
forthwith file with the secretary of state of Nevada a copy thereof, certified by the
official with whom the same shall have been filed in the place of its creation, in the
manner prescribed in NRS 80.010 and 80.020.
[Headnote 1]
Notwithstanding the clear import of the above statute, appellant argues that it was under
no obligation to file its certificate of corporate repeal with the Nevada Secretary of State since
it had no duty to file such certificate in Delaware, the State of its incorporation. The argument
is without merit and would, if accepted, subvert the clear wording of the statute and its
underlying policy. The plain language of NRS 80.030(1) places an affirmative duty upon a
foreign corporation to file with the Nevada Secretary of State a certified copy of any
document related to the instrument of the foreign corporation's creation upon the filing in
the place of its creation. Here, the filing of the proclamation noting the repeal of
appellant's corporate charter with the Delaware Secretary of State was mandatory, under
Delaware law, albeit not necessarily the responsibility of appellant.
98 Nev. 381, 384 (1982) Bader Enterprises, Inc. v. Olsen
filing of the proclamation noting the repeal of appellant's corporate charter with the Delaware
Secretary of State was mandatory, under Delaware law, albeit not necessarily the
responsibility of appellant. 8 Del. Code Ann. 512. Accordingly, it was appellant's
obligation, within the meaning of NRS 80.030(1), to file a certified copy of that document
with the Nevada Secretary of State. Such a filing serves to promote the public policy of this
State to alert and protect its citizens in their transactions with defunct foreign corporations. It
also provides the Nevada Secretary of State a needed awareness of the status of such
corporations involved in business transactions or lawsuits within this State.
[Headnote 2]
Since appellant failed to comply with the provisions of NRS 80.030(1) as required, it must
now suffer the consequences of the penalty provision of NRS 80.210(1) which prohibits
noncomplying foreign corporations from maintaining any actions or proceedings in the courts
of this State until such time as full compliance is accomplished.
[Headnote 3]
Appellant also seeks to avoid the consequences of its noncompliance with Nevada's
statutory requirements by invoking the law of the State of Delaware as controlling. The
argument is augmented by several Delaware cases supportive of the proposition that under the
laws of that State, a corporation whose charter has been revoked may nevertheless maintain
its right to litigate to the point of final judgment and execution. Conceding appellant's
characterization of Delaware law is unavailing to its cause before this Court. Appellant's right
to litigate in Nevada is determined by the conjunction of NRCP 17(b) and NRS 80.210(1).
The former rule provides in pertinent part that [t]he capacity of a corporation to sue or be
sued shall be determined by the law under which it is organized, unless a statute of this State
provides to the contrary. As set forth above, NRS 80.210(1) does provide to the contrary by
placing specific limitations upon a foreign corporation's capacity to maintain suit within this
State. In League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 93 Nev. 270, 273,
563 P.2d 582 (1977), we considered the meaning to be accorded the penalty provision of
NRS 80.210(1) forbidding a foreign corporation to maintain . . . any action . . . in any court
of this state . . ., and said:
[The district court] reasoned that the word maintain was meant to apply to a case
commenced by a corporation which had qualified to do business here but which
subsequently became unqualified because of failure to comply with continuing
statutory requirements.
98 Nev. 381, 385 (1982) Bader Enterprises, Inc. v. Olsen
which had qualified to do business here but which subsequently became unqualified
because of failure to comply with continuing statutory requirements. This, we think, is a
proper application of the statutory language and we approve it.
This interpretation governs our ruling in this case. Simply put, appellant failed to comply with
the then-existing and obligatory provisions of NRS 80.030(1), and is now bound by the
penalty provision of NRS 80.210(1) which bars it from maintaining the present suit against
respondents. Other issues not specifically addressed are deemed to be without merit.
Affirmed.
____________
98 Nev. 385, 385 (1982) Trans Western Leasing v. Corrao Constr.
TRANS WESTERN LEASING CORPORATION, A Nevada Corporation, Appellant, v.
CORRAO CONSTRUCTION CO., INC., A Nevada Corporation and LAZOVICH &
LAZOVICH, INC., dba L & L ROOFING, Respondents.
No. 13390
August 27, 1982 649 P.2d 1371
Motion to dismiss appeal as to Respondent Lazovich & Lazovich, Second Judicial District
Court, Washoe County, William N. Forman, Judge.
Contractor sued premises owner for amounts withheld and owner counterclaimed against
the contractor for alleged defects in construction. The contractor filed third-party claim
against subcontractor. Trial of the matter in the district court resulted in verdict in favor of
contractor on complaint and counterclaim. Because judgment was granted in favor of
third-party defendant on indemnification claim, premises owner appealed naming both
contractor and subcontractor as party respondents. On motion by third-party defendant to
dismiss appeal, the Supreme Court held that the indemnity controversy was not at issue on the
appeal.
Motion to dismiss granted.
Glade L. Hall, Reno, for Appellant.
John J. McCune, Michael B. Springer and Timothy E. Rowe, Reno, for Respondent Corrao
Construction Co., Inc.
98 Nev. 385, 386 (1982) Trans Western Leasing v. Corrao Constr.
Erickson, Thorpe, Swainston & Cobb, Reno, for Respondent Lazovich & Lazovich.
Appeal and Error.
Where contractor sued premises owner for money withheld and owner counterclaimed for alleged
defective construction and contractor then filed third-party complaint on indemnification principles against
subcontractor, and after trial contractor prevailed on counterclaim and judgment was thereby granted in
favor of third-party defendant on contractor's third-party complaint for indemnification, indemnity
controversy was not at issue on appeal by owner which named both contractor and third-party defendant as
party respondents, and thus third-party defendant's motion to dismiss appeal as against third-party
defendant would be granted.
OPINION
Per Curiam:
Respondent Lazovich & Lazovich (hereinafter L&L) has moved this court for an order
dismissing the appeal of appellant Trans Western Leasing Corporation (hereinafter TWL) as
against L&L.
Respondent Corrao Construction Co. sued appellant TWL in district court for money
withheld by TWL after completion of construction of TWL's warehouse. TWL thereafter
counterclaimed against Corrao for defective construction. Corrao then filed a third-party
complaint against L&L on indemnification principles only, i.e., for any liability which might
ultimately be established by TWL against Corrao on TWL's counterclaim.
A trial of the matter resulted in a verdict in favor of Corrao on the complaint and on the
counterclaim. Because Corrao prevailed on TWL's counterclaim, judgment was granted in
favor of L&L on Corrao's third-party complaint for indemnification. TWL appealed, naming
both Corrao and L&L as party-respondents. This motion to dismiss followed. The motion has
not been opposed by appellant TWL, but Corrao has filed opposition.
We grant respondent L&L's motion to dismiss this appeal as against L&L. No claim
against L&L was made in district court by appellant TWL. L&L, a third-party defendant
below, was brought into the district court action by a third-party complaint for
indemnification filed by Corrao, who has not appealed. Thus, the indemnity controversy is
not at issue in this appeal. Accordingly, this appeal shall be dismissed as against respondent
L&L.1 See Mitchell v. Mackin, 376 So.2d 6S4 {Ala. 1979); Hutchinson v. Bal Construction,
Inc.,
98 Nev. 385, 387 (1982) Trans Western Leasing v. Corrao Constr.
respondent L&L.
1
See Mitchell v. Mackin, 376 So.2d 684 (Ala. 1979); Hutchinson v. Bal
Construction, Inc., 196 So.2d 71 (La.App. 1967).
____________________

1
Contrary to respondent Corrao's contention, dismissal of respondent L&L from this appeal will not preclude
Corrao from reasserting its indemnification claim against L&L in the event of reversal. No trial on the merits of
Corrao's claim for indemnification was had. The jurors were instructed to decide the indemnification claim only
if they found for TWL on its counterclaim against Corrao. Since the jurors found for Corrao, and against TWL,
they never reached the indemnification question. See Baker v. Texas & Pacific Railway Company, 326 S.W.2d
639 (Tex.Civ.App. 1959); Henger v. Cotton, 316 S.W.2d 719 (Tex. 1958).
____________
98 Nev. 387, 387 (1982) C.R. Fedrick, Inc. v. Nevada Tax Comm'n
C. R. FEDRICK, INC., AND M. M. SUNDT CONSTRUCTION COMPANY, Appellants, v.
NEVADA TAX COMMISSION, Respondent.
No. 12958
August 27, 1982 649 P.2d 1372
Appeal from judgment granting affirmative relief to respondent, Second Judicial District
Court, Washoe County; John W. Barrett, Judge.
Taxpayers appeal from the district court which denied their motion to dismiss tax
deficiency action. The Supreme Court held that taxpayers were entitled to dismissal of action
where the motion to dismiss was filed more than seven years after filing of their petition for
judicial review of the Tax Commission's final decision.
Reversed and remanded.
Breen, Young, Whitehead & Belding, Reno, for Appellants.
Richard H. Bryan, Attorney General, and David M. Norris, Deputy Attorney General,
Carson City, for Respondent.
1. Pretrial Procedure.
Mandatory dismissal requirements of rule of civil procedure may be invoked by party who initiated
action and, upon so doing, district court must grant dismissal absent circumstances coming within
exception specifically contained in rule. NRCP 41(e).
2. Taxation.
Taxpayers were entitled to dismissal of action for tax deficiency where motion to dismiss was filed more
than seven years after filing of their petition for judicial review of the Tax Commission's
final decision.
98 Nev. 387, 388 (1982) C.R. Fedrick, Inc. v. Nevada Tax Comm'n
their petition for judicial review of the Tax Commission's final decision. NRCP 41(e).
OPINION
Per Curiam:
In June of 1970 respondent Nevada Tax Commission (commission) notified appellants
of a tax deficiency. Appellants unsuccessfully appealed to the commission for a
redetermination, and in March of 1972 the commission issued its final decision specifying the
amount of taxes with interest owed by appellants. In April of 1972 appellants petitioned the
district court for judicial review of the commission's final determination. Various preliminary
proceedings ensued until March of 1974 when the district court continued, for an indefinite
period of time, a previously scheduled trial date. No further action was taken by either party
in this matter for a period in excess of five years. In July of 1979 appellants filed a motion to
dismiss the action. The district court denied the motion and entered a default judgment
against them for the amount of the tax deficiency and interest. The district court subsequently
denied appellants' motion to alter or amend that judgment.
We hold that the district court erred in refusing to grant appellants' motion to dismiss and
in entering judgment in favor of the commission. Appellants filed their motion to dismiss
more than seven years after the filing of their petition for judicial review of the commission's
final decision.
1
The matter had never been brought to trial. Dismissal of the action was
sought by appellants under NRCP 41(e), the pertinent part of which provides:
Any action heretofore or hereafter commenced shall be dismissed by the court in
which the same shall have been commenced or to which it may be transferred on
motion of the defendant, after due notice to plaintiff or by the court upon its own
motion, unless such action is brought to trial within five years after the plaintiff has
filed his action, except where the parties have stipulated in writing that the time may be
extended.
This Court has consistently held that absent a written stipulation by the parties extending
the time period, a failure of the parties to bring an action to trial within five years mandates
dismissal under this rule.
____________________

1
Although the parties were denominated petitioner and respondent in the court below, this designation is
insignificant as the parties were postured in adversarial roles similar to plaintiff and defendant.
98 Nev. 387, 389 (1982) C.R. Fedrick, Inc. v. Nevada Tax Comm'n
dismissal under this rule. Thran v. District Court, 79 Nev. 176, 181, 380 P.2d 297 (1963);
Smith v. Garside, 81 Nev. 312, 314, 402 P.2d 246 (1965); Johnson v. Harber, 94 Nev. 524,
526, 582 P.2d 800 (1978). We have likewise held in respect of counterclaims, whether
permissive or compulsory. Great Western Land E Cattle Corp. v. District Court, 86 Nev. 282,
284, 467 P.2d 1019 (1970). We do not hesitate to further advance the salutary purposes of the
rule by extending its application to plaintiffs who seek dismissal of their own complaints.
[Headnotes 1, 2]
The purpose of NRCP 41(e) is to compel an expeditious determination of legitimate
claims. In Sacramento Transp. Co. v. California Reclamation Co., 269 P. 640, 641 (Cal.
1928), the California Supreme Court, in construing a virtually identical provision of its civil
procedure code, said:
[I]n the present case the motion to dismiss is made by the plaintiff beyond the five-year
period of inaction after answer filed.
. . . .
The purpose of section 583 of the Code of Civil Procedure is to compel the parties to
action in the direction of a speedy trial of causes after issue joined. The trial court in the
instant case would have been bound on its own motion to dismiss the action upon
having the facts showing an unwarrantable delay brought to its attention, and the fact
that it was the plaintiff itself who made the motion is immaterial, since the duty of the
court in the premises was mandatory, whether or not a motion to dismiss was made
under said section by either of the parties to the action.
We concur with the reasoning in Sacramento Transp. Co., supra, and hold that the mandatory
dismissal requirements of NRCP 41(e) may be invoked by the party who initiated the action;
and, upon so doing, the district court must grant a dismissal absent circumstances coming
within the exception specifically contained in the rule. Here, the record reflects no such
exception, and accordingly the district court erred in denying appellants' motion to dismiss
and in entering judgment against them.
Since our decision is dispositive of this appeal we decline to consider other issues raised
by the parties. We reverse the district court's judgment in favor of respondent and remand
with instructions to dismiss the action.
Reversed and remanded.
____________
98 Nev. 390, 390 (1982) Summa Corp. v. State Gaming Control Bd.
SUMMA CORPORATION, dba DESERT INN, Appellant, v. STATE GAMING CONTROL
BOARD and NEVADA GAMING COMMISSION, Respondents.
No. 13312
August 27, 1982 649 P.2d 1363
Appeal from order of the district court granting partial summary judgment to respondents;
Eighth Judicial District Court, Clark County, Paul S. Goldman, Judge.
On casino licensee's appeal from partial summary judgment granted to the State Gaming
Control Board and the Nevada Gaming Commission by the district court the Supreme Court
held that statutes requiring the Gaming Commission to charge and collect a quarterly casino
license fee based on a percentage of licensee's assessed gross revenue and determining
measure of gross revenue were properly implemented by Commission regulation under which
the state claimed authority to include irregular markers, unpaid gaming credits instruments,
in a licensee's gross revenue.
Affirmed.
Lionel Sawyer & Collins, and Robert D. Faiss, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General; Patricia Becker, Chief Deputy Attorney General,
Gaming Division, and Dennis V. Gallagher, Deputy Attorney General, Carson City, for
Respondents.
Gaming.
Statutes requiring the Nevada Gaming Commission to charge and collect a quarterly casino license fee
based on a percentage of licensee's assessed gross revenue and determining measure of gross revenue were
properly implemented by Commission regulation under which the state claimed authority to include
irregular markers, unpaid gaming credits instruments, in a licensee's gross revenue. NRS 463.370;
463.0114 (now 463.0161).
OPINION
Per Curiam:
Summa Corporation, dba Desert Inn, appeals from the partial summary judgment granted
to the State Gaming Control Board and the Nevada Gaming Commission.
In June 1979 Summa filed a complaint for declaratory relief pursuant to NRS 30.040 and
463.343, seeking a declaration as to the meaning of NRS 463.0114 and 463.370.
98 Nev. 390, 391 (1982) Summa Corp. v. State Gaming Control Bd.
pursuant to NRS 30.040 and 463.343, seeking a declaration as to the meaning of NRS
463.0114 and 463.370.
NRS 463.0114, which determines the measure of gross revenue of casino licensees,
provides:
Gross revenue means the total of all sums received as winnings less only the total of
all sums paid out as losses by a licensee under a state gaming license during a calendar
quarter.
NRS 463.370 requires the Commission to charge and collect a quarterly license fee based
on a percentage of the licensee's assessed gross revenue.
The Commission adopted Regulation 6.080, establishing a method of computing gross
revenue. It provides that an unpaid gaming credit instrument, or marker, may be excluded
by the licensee in determining gross revenue. That regulation sets out criteria by which a
credit instrument is presumed to be for gaming purposes.
1
The state has claimed authority
under this regulation to include unpaid irregular markers, those taken in violation of the
licensee's internal control systems
2
or agency regulation, in its assessment of gross revenue.
An audit by the Board for the period 1974-1978 prompted this action, when Summa was
informed by the Board that the audit resulted in an assessment which included the face
amount of certain unpaid markers deemed irregular. The district court, in granting partial
summary judgment to the state, upheld Regulation 6.0S0. The court, determined that
irregular markers may be included in the determination of gross revenue if the licensee
fails to rebut the presumption that the markers were issued for non-gaming purposes,
i.e., taken in violation of gaming regulations or the licensee's internal control systems.
____________________

1
Regulation 6.080(2) provides in part:
Treatment of credit instruments in determining gross gaming revenue shall be as follows:
(a) Any marker, IOU, check, hold check, returned check, or other similar credit instrument evidencing
the granting of gaming credit to a patron (hereinafter referred to as gaming credit instrument) may be
excluded by the licensee in determining gross gaming revenue. Any credit instrument taken for purposes
other than gaming credit shall not be so excluded.
(1) A credit instrument not in excess of $2,500 taken at the cage shall be presumed to be a gaming
credit instrument.
(2) A credit instrument in excess of $2,500 taken at the cage shall not be presumed to be a gaming
credit instrument unless the licensee shall have specifically provided for the handling of such items
in systems of internal control submitted pursuant to Reg. 6.050. The presumptions of subparagraphs (1)
and (2) herein are rebuttable.
(3) Any other credit instrument taken in accordance with Reg. 6.260 or the systems of internal control
submitted pursuant to Reg. 6.050 shall be a gaming credit instrument.

2
Reg. 6.050 requires each licensee to establish a plan for administrative and accounting internal control
systems.
98 Nev. 390, 392 (1982) Summa Corp. v. State Gaming Control Bd.
6.080. The court, determined that irregular markers may be included in the determination of
gross revenue if the licensee fails to rebut the presumption that the markers were issued for
non-gaming purposes, i.e., taken in violation of gaming regulations or the licensee's internal
control systems.
Regulation 6.080 serves to implement NRS 463.0114 and 463.370. The regulation
provides an accounting mechanism by which to determine gross revenue. The authority of the
Gaming Commission to enact implementing regulations consistent with the Gaming Control
Act is well established. See NRS 463.145; State v. Rosenthal, 93 Nev. 36, 559 P.2d 830
(1977).
As the district court found, Regulation 6.080 has remained unchallenged for years and the
Commission's action has remained unchanged by subsequent legislative action. Where, as
here, the legislature has had ample time to amend an administrative agency's reasonable
interpretation of a statute, but fails to do so, such acquiescence indicates the interpretation is
consistent with legislative intent. Sierra Pacific Power Co. v. Department of Taxation, 96
Nev. 295, 607 P.2d 1147 (1980).
We affirm the decision of the trial court granting partial summary judgment to
respondents.
____________
98 Nev. 392, 392 (1982) Sheriff v. Jefferson
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
FRANK PHILLIP JEFFERSON, Respondent.
No. 14184
August 27, 1982 649 P.2d 1365
Appeal from order granting in part petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
The Supreme Court held that although acts of violence and intimidation preceded actual
taking of property and may have been primarily intended for another purpose, it was enough
to support robbery charge if the accused, taking advantage of the terrifying situation he
created, fled with victim's property; in the instant case, it was undisputed that the victim,
when her car window was smashed, fled in fear, leaving behind her purse which was gone
when she returned moments later; under the burglary statute and the holding in Norman, such
acts, along with the other evidence adduced a preliminary hearing, were sufficient to support
a robbery charge.
Reversed and remanded.
98 Nev. 392, 393 (1982) Sheriff v. Jefferson
Robert J. Miller, District Attorney, and David P. Schwartz, Deputy District Attorney,
Clark County, for Appellant.
Morgan D. Harris, Public Defender, and Gary H. Lieberman, Deputy Public Defender,
Clark County, for Respondent.
1. Robbery.
Under statute, a taking constitutes robbery even if the taking is fully completed without the victim's
knowledge, if such knowledge is prevented by the use of force or fear. NRS 200.380.
2. Robbery.
Although acts of violence and intimidation preceded actual taking of property and may have been
primarily intended for another purpose, it was enough to support robbery charge if the accused, taking
advantage of the terrifying situation he created, fled with victim's property; in the instant case, it was
undisputed that the victim, when her car window was smashed, fled in fear, leaving behind her purse which
was gone when she returned moments later; under the burglary statute and the holding in Norman, such
acts, along with the other evidence adduced at preliminary hearing, were sufficient to support a robbery
charge. NRS 200.380.
OPINION
Per Curiam:
Appellant Sheriff of Clark County has appealed from a district court order granting in part
respondent Jefferson's pretrial petition for a writ of habeas corpus. We reverse and remand.
The incident giving rise to this case occurred on the afternoon of February 1, 1982. At that
time one Loretta Cloonan was sitting alone in her car in the parking lot of an apartment
complex. A pickup truck carrying two men pulled into the space immediately to her left. One
of the men, whom Cloonan later identified as respondent, exited the pickup truck and tapped
on Cloonan's window, apparently to ask whether she had a light for a cigarette. Cloonan
became afraid, and she locked her car door and began to start the car. She then saw the man
reach into the back of the pickup truck, and immediately thereafter the front left window of
her car was smashed. Fearing for her safety, Cloonan then exited the car on the passenger's
side and fled the scene, leaving her purse on the front seat. When she returned shortly
thereafter with help, her purse was gone, and the pickup truck was leaving the area, carrying
the two men.
Cloonan did not actually see anyone smash her car window, but saw no one other than the
two men in the immediate vicinity of her car when the window was smashed.
Respondent was charged by information with two countsburglary and robberyand
sought in his habeas corpus petition to dismiss both.
98 Nev. 392, 394 (1982) Sheriff v. Jefferson
burglary and robberyand sought in his habeas corpus petition to dismiss both. Respondent
first argued that the evidence adduced at his preliminary hearing did not provide probable
cause to believe that he had committed either offense, as Cloonan had admitted that she did
not see him smash her car window. Respondent next argued that even if there was probable
cause to believe that he had indeed smashed the car window, there was no basis for charging
him with robbery, as the undisputed evidence clearly indicated that Cloonan had left the scene
before the purse was taken. Respondent suggested that at best, the evidence provided a basis
for charging him with larceny.
The district court refused to dismiss both counts, but, in agreement with respondent's
second argument, dismissed the robbery count.
[Headnotes 1, 2]
The district court erred in dismissing the robbery count. Under NRS 200.380,
1
a taking
constitutes robbery even if the taking is fully completed without the victim's knowledge, if
such knowledge is prevented by the use of force or fear. Moreover, although the acts of
violence and intimidation preceded the actual taking of the property, and may have been
primarily intended for another purpose, it is enough to support the robbery charge if the
accused, taking advantage of the terrifying situation he created, fled with the victim's
property. Norman v. Sheriff, 92 Nev. 695, 558 P.2d 541 (1976). In the matter before us it is
undisputed that when Cloonan's car window was smashed, she fled in fear, leaving her purse
behind; and that when she returned moments later, the purse was gone. Under NRS 200.380
and our holding in Norman, these facts, along with the other evidence adduced at the
preliminary hearing, were sufficient to support the robbery charge. Accordingly, we reverse
the order of the district court granting respondent's petition for a writ of habeas corpus as to
the robbery charge.
Reversed and remanded.
____________________

1
NRS 200.380(1) provides:
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.
____________
98 Nev. 395, 395 (1982) Smith v. Smith
LESLIE H. SMITH, Appellant, v. SHARON
KAY SMITH, Respondent.
No. 13977
August 30, 1982 649 P.2d 1374
Appeal from order enforcing property settlement agreement, Eighth Judicial District Court,
Clark County; Addeliar D. Guy, Judge.
Reversed and remanded.
Graves and Potter, Dale H. Haley, Las Vegas, for Appellant.
Rogers, Monsey, Woodbury, Brown & Berggreen, Las Vegas, for Respondent.
OPINION
Per Curiam:
1

This is an appeal arising out of the property distribution in a divorce case. On July 12,
1982, respondent filed a document with this court indicating that she wished to waive the
filing of an answering brief. On July 15, 1982, we ordered respondent to show cause why we
should not treat her waiver as a confession of error. See NRAP 31(c). Respondent has neither
filed a brief nor responded to our order to show cause.
Cause appearing, we elect to treat respondent's conduct as a confession of error. E.g.,
Walport v. Walport, 98 Nev. 301, 646 P.2d 1215 (1982); Rockwell v. Rockwell, 98 Nev. 80,
640 P.2d 1318 (1982).
This case is reversed and remanded to the district court, with instructions to vacate the
order of December 16, 1981.
____________________

1
Justice John Mowbray voluntarily disqualified himself from the consideration of this case.
____________
98 Nev. 396, 396 (1982) McGinnis v. Consolidated Casinos Corp.
MARY ANN McGINNIS and OWEN W. McGINNIS, Appellants, v. CONSOLIDATED
CASINOS CORPORATION, SAHARA-NEVADA CORPORATION, DEL E. WEBB
CORPORATION and DEL E. WEBB HOTEL CO., dba THE MINT HOTEL &
CASINO, Respondents.
No. 12859
September 23, 1982 650 P.2d 806
Appeal from summary judgment, Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
Hotel employee and her husband brought action against hotel for injuries sustained after
employee had completed her shift. On remand, 94 Nev. 640, 584 P.2d 702 (1978), the district
court rendered summary judgment for employer, and plaintiffs appealed. The Supreme Court
held that where Nevada Industrial Commission claim was pending the employee was not
foreclosed from litigating her common law action.
Reversed and remanded.
Stanley W. Pierce, Las Vegas, for Appellants.
Dickerson, Miles, Pico, Mitchell & Wagner, Las Vegas, for Respondents.
1. Workers' Compensation.
Where employee had applied for and was receiving Nevada Industrial Commission benefits but the NIC
had made no final disposition, the employee was not foreclosed from litigating her common law action
against the employers. NRS 616.010 et seq.
2. Appeal and Error.
On appeal, evidence is viewed in a light most favorable to the party against whom summary judgment
was rendered.
3. Judgment.
Material fact issue existed as to whether alleged injury was sustained while plaintiff employee was within
course of scope of her employment, precluding summary judgment for employer, in common law tort
action, that compensation benefits provided exclusive remedy. NRS 616.010 et seq.
OPINION
Per Curiam:
This case has previously been before the court in McGinnis v. Consolidated Casinos
Corp., 94 Nev. 640, 584 P.2d 702 (1978), and the facts underlying the litigation are set forth
in that opinion. In McGinnis, we reversed an order dismissing an amended complaint.
98 Nev. 396, 397 (1982) McGinnis v. Consolidated Casinos Corp.
Following remand to the district court, respondents moved for summary judgment.
Respondents argued that Chapter 616 of the Nevada Revised Statutes provided an exclusive
remedy for an employee against his employer for injuries incurred during the course and
scope of employment; that respondents had complied with Chapter 616; that appellant Mary
Ann McGinnis had qualified for, and was receiving, Nevada Industrial Commission (NIC)
benefits; that because the NIC remedy was exclusive under the facts presented here, the
common law action against respondents was precluded; and that respondents were
consequently entitled to judgment as a matter of law. The district court granted the motion
without explaining its rationale. This appeal ensued.
The case presents two issues for review: (1) whether Mary Ann McGinnis was barred from
pursuing a common law action in negligence against respondents because she has accepted
NIC benefits; and (2) whether the record before the district court disclosed the existence of a
genuine issue of material fact.
[Headnote 1]
Attached to the motion for summary judgment was an affidavit of an NIC claims manager.
The affidavit indicated, in part, that Mary Ann McGinnis had applied for, and was receiving
benefits, but that no final disposition by the NIC had yet been made. Because the NIC claim
was pending, Mary Ann McGinnis was not foreclosed from litigating her common law action
against respondents in district court. See Stevenson v. Kollsman Mineral & Chem., 91 Nev.
529, 539 P.2d 463 (1975); First Nat'l Bk. v. Dist. Ct., 75 Nev. 77, 335 P.2d 79 (1959);
McColl v. Scherer, 73 Nev. 226, 315 P.2d 807 (1957).
1

[Headnotes 2, 3]
With regard to the second issue, we note that the evidence is to be viewed in a light most
favorable to the party against whom summary judgment was rendered.
____________________

1
McColl and First Nat'l Bk. involved the same individual who was injured on the job. The facts of the earlier
case disclose that the employee was receiving monthly compensation both at the time that she filed her
complaint and thereafter. We held in McColl, in part, that filing a claim with the NIC did not bar the employee,
under the theory of election of remedies, from pursuing a common law action.
We issued First Nat'l Bk, two years after our decision in McColl. During the intervening period, the NIC
made a final award, which the employee had accepted. Under these changed circumstances, we held that the
acceptance of a final award of industrial compensation destroyed the employee's common law rights. The
principle that acceptance of a final NIC award precludes an employee from pursuing an action at law was
subsequently applied in Stevenson.
As mentioned above, no final award has been made or accepted by appellant in the present case. Therefore,
under McColl and First Nat'l Bk., appellant's common law remedy has not been barred by an election of
remedies.
98 Nev. 396, 398 (1982) McGinnis v. Consolidated Casinos Corp.
to be viewed in a light most favorable to the party against whom summary judgment was
rendered. Shockey v. Harden Insurance Agency, 98 Nev. 138, 643 P.2d 849 (1982). Our
review of the record indicates that a genuine issue of material fact exists with respect to
whether the alleged injury was sustained while Mary Ann McGinnis was within the course
and scope of her employment. In the absence of clearly established employer immunity,
summary judgment is not justified. Daniels v. Las Vegas Transfer & Stge., 97 Nev. 231, 627
P.2d 400 (1981).
Accordingly, the summary judgment is reversed, and the case is remanded for further
proceedings.
____________
98 Nev. 398, 398 (1982) Vagabond Hotels, Inc. v. Cohen
VAGABOND HOTELS, INC., A California Corporation, and VAGABOND MOTOR
HOTELS, INC., A Nevada Corporation, Appellants and Cross-Respondents, v. ROBERT
COHEN, Respondent and Cross-Appellant.
No. 12883
September 23, 1982 650 P.2d 807
Appeal from judgment and cross-appeal from denial of damage award. Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
Lessees appealed from a judgment of the district court determining that lessee
unreasonably refused to consent to a proposal by lessor to build kitchenettes on a portion of
the property subject to a lease between the two parties, and lessor cross-appealed. The
Supreme Court, Manoukian, J., held that the evidence was sufficient to establish that lessor's
proposed project on the parcel reserved by lessor for his own use would conflict with lessee's
motel operation, and thus the evidence was insufficient to sustain the finding that lessee's
refusal to consent to the proposed use and development of lessor's retained property was
unreasonable under the lease.
Affirmed in part; reversed in part.
David Goldwater, Las Vegas, for Appellants and Cross-Respondents.
Reid & Alverson, Las Vegas, for Respondent and Cross-Appellant.
98 Nev. 398, 399 (1982) Vagabond Hotels, Inc. v. Cohen
Landlord and Tenant.
In action brought by lessor claiming that lessee's refusal to consent to lessor's construction of kitchenette
units on parcel reserved by lessor was unreasonable under lease which prohibited lessor from using his
property in a manner which would compete with lessee's motel trade, and which provided that construction
on lessor's parcel was subject to lessee's consent, evidence was sufficient to establish that lessor's proposed
project would conflict with lessee's motel operation, and thus evidence was insufficient to sustain the
finding that lessee's refusal to consent to the proposed use and development of lessor's retained property
was unreasonable.
OPINION
By the Court, Manoukian, J.:
Appellants and cross-respondents, Vagabond Hotels, Inc. and Vagabond Motor Hotels,
Inc. (hereinafter Vagabond), challenge the trial court's determination that they unreasonably
refused to consent to a proposal by respondent and cross-appellant, Robert Cohen, to build
kitchenettes on a portion of the property subject to a lease between the two parties. In a
cross-appeal, respondent contends that the lower court erred in not granting him damages.
In July 1970, Cohen sublet to Vagabond that portion of the subject property which faces
Las Vegas Boulevard and reserved for his own use an adjoining rear section of the property.
Vagabond constructed a motel on the property.
A clause in the lease agreement prohibited Cohen from using his property in a manner
which would compete with Vagabond's motel trade. In addition, the lease provided that
construction on Cohen's parcel was subject to Vagabond's consent. Such consent could not be
unreasonably withheld.
In October 1975, Cohen requested consent from appellants to construct 68 kitchenette
units on the reserved parcel. Vagabond's president refused consent, concluding that such
construction would violate the conflicting use provision of the lease.
Cohen commenced this action, claiming that the refusal was unreasonable because his
proposed use of the property would not conflict with Vagabond's motel operations. The
district court agreed. The court found that the only productive use of the property was for
multiple unit dwellings, that permanent residents would comprise the only users of the
kitchenettes and that Cohen's proposed units would be used only by tenants who did not
require nearby parking spaces.
98 Nev. 398, 400 (1982) Vagabond Hotels, Inc. v. Cohen
Appellants assert that those findings are erroneous. We recognize that our inquiry is a
limited one and the trial court's determination should not be disturbed on appeal if it is
supported by substantial evidence. See Pace v. Linton, 97 Nev. 103, 625 P.2d 84 (1981);
Soller Corp. v. W. B. C. Development, 96 Nev. 704, 615 P.2d 956 (1980); Jensen v. Brooks,
88 Nev. 651, 503 P.2d 1224 (1972). Our review of the instant record, however, demonstrates
that the district court's findings are without substantial factual support. The evidence plainly
supports Vagabond's contention that Cohen's proposed project would conflict with its motel
operation.
Cohen's basic argument is that he would not be competing in the same economic market as
Vagabond. He contends that vagabond seeks tourist-transient trade, while his 68 kitchenette
units would be rented to permanent residents, with minimum stays of a week. Cohen's pretrial
activities belie this contention. Specifically, the November 5, 1973, Clark County Minutes
reflect that Cohen filed an application for a variance to construct a 68-unit addition to
existing 87-unit motel, and to provide 96 parking spaces where 155 required in an H-1
(limited resort and apartment zone). Cohen's exhibit 5, being the variance issued by the
Clark County Board of Commissioners, further provides that:
Cohen advised that the Vagabond Motel was constructed approximately 2 1/2 years ago
and that this addition is desired to provide extra motel space for guests of the adjacent
Aladdin Hotel.
He further stated that parking will not be a problem and that the request has been
lowered from 96 spaces to 85 spaces. He urged that the Board approve the application
due to limited motel facilities on the Las Vegas strip during the busy tourist seasons.
(Emphasis supplied.)
The record is devoid of any suggestion that Cohen changed his initial intentions, reflected
in his application for variance and his Exhibit 5.
In Addition, loan papers make reference to the Robert Cohen-motel loan. Finally, Cohen
expressed to the County Commission his concern for parking for the proposed addition. His
original application for the variance to construct the 68-unit addition requested that he be
permitted to provide for 96 spaces, rather than the 155 required for a limited resort zone. This
indicates the Cohen believed that his project was properly characterized as a motel and
further supports Vagabond's claim that Cohen was seeking to attract a tourist-transient
clientele. The increased traffic would necessarily traverse the property leased to Vagabond.
98 Nev. 398, 401 (1982) Vagabond Hotels, Inc. v. Cohen
From its inception, Cohen's proposal contemplated the operation of a business which
would seek the tourist trade, and thus compete within the same economic market as
Vagabond, in direct contravention of the terms of the lease. We conclude that the evidence is
insufficient to support the trial court's determination that Vagabond's refusal to consent to the
proposed use and development of Cohen's retained property was unreasonable. Vagabond's
refusal of consent was fair, solid and substantial. . . . Warmack v. Merchants Nat'l Bank of
Fort Smith, 612 S.W.2d 733, 735 (Ark. 1981); Mitchell's, Inc. v. Nelms, 454 S.W.2d 809,
814 (Tex.Civ.App. 1970); Restatement (Second) of Property 15.2 comment g (1976).
Accordingly, we reverse that portion of the district court's ruling. In light of our reversal of
the consent issue, we need not discuss Cohen's cross-appeal on the issue of damages. We
affirm the trial court's denial of damages to Cohen.
Gunderson, C. J., and Springer, Mowbray, and Steffen, JJ., concur.
____________
98 Nev. 401, 401 (1982) Leroy G. v. State
LEROY G., a Minor, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 13567
September 23, 1982 650 P.2d 809
Appeal from order of commitment; Seventh Judicial District Court, White Pine County;
Merlyn H. Hoyt, Judge.
Reversed and remanded.
J. Gregory Damm, Nevada State Public Defender; Robert A. Bork, Chief Deputy Public
Defender; Steven G. McGuire, Deputy Public Defender, Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Johnston, District Attorney,
and Gary D. Fairman, Deputy District Attorney, White Pine County, for Respondent.
OPINION
Per Curiam:
The juvenile division of the Seventh Judicial District Court ordered appellant committed
to the Nevada Youth Training Center at Elko, Nevada, for an indefinite period. This is an
appeal from the order of commitment.
98 Nev. 401, 402 (1982) Leroy G. v. State
Appellant contends that he was denied his right to legal counsel at the factfinding hearing.
See In re Two Minor Children, 95 Nev. 225, 592 P.2d 166 (1979); NRS 62.195(2); see also
In re S., 275 N.E.2d 577 (N.Y. 1971). The state has expressly conceded error on this issue,
and has requested this court to reverse the finding of delinquency and the commitment to the
Youth Training Center.
We reverse the order of commitment, and we remand for further proceedings.
1

____________________

1
Because respondent conceded that the district court's order must be reversed, we have decided this case
without oral argument. NRAP 34(f)(1). Furthermore, because of the reversal on the ground stated, we need not
decide the other issue raised by appellant.
____________
98 Nev. 402, 402 (1982) Goldberg v. Charter Medical Corp.
HELEN GOLDBERG, DAVID GOLDBERG, ANDREA GANZ and PAULA GOLDBERG,
Appellants, v. CHARTER MEDICAL CORPORATION, dba DESERT SPRINGS
HOSPITAL, Respondent.
No. 13709
September 23, 1982 651 P.2d 94
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Wrongful death action was filed. The district court entered summary judgment for
defendant, and appeal was taken. The Supreme Court held that applying rule governing
computation of two-year limitations period set forth in statute, date of death should not have
been included in computing limitations period, and thus complaint was timely filed.
Reversed and remanded.
Sorenson & Doyle, Las Vegas, for Appellants.
Beckley, Singleton, DeLanoy & Jemison, and Sherman B. Mayor, Las Vegas, for
Respondent.
Time.
Applying rule governing computation of two-year limitations period set forth in statute, date of death
should not have been included in computing limitations period, and thus complaint charging wrongful
death was timely filed. NRS 11.190, subd. 4(e); NRCP 6(a).
OPINION
Per Curiam:
This is a wrongful death action in which the district court entered summary judgment for
respondent.
98 Nev. 402, 403 (1982) Goldberg v. Charter Medical Corp.
entered summary judgment for respondent. The district court ruled that the action was barred
by the statute of limitations. We disagree and reverse.
Appellants' decedent died on June 19, 1979. The complaint was filed on June 19, 1981.
Appellants contend, among other things, that the applicable statute of limitations in NRS
11.190(4)(e),
1
and that the two-year limitations period in that statute did not begin to run
until June 20, 1979, the day after decedent's death. Thus, under appellants' calculations, the
complaint was filed on the last day of the limitations period. Respondent contends that the
limitations period began to run on the date of death, and that the complaint was filed one day
late.
In Romaine v. State Farm Mut. Auto. Ins. Co., 87 Nev. 257, 485 P.2d 102 (1971), we held
that NRCP 6(a)
2
governs computation of the two-year limitations period set forth in NRS
11.190(4)(e). See also Rogers v. State, 85 Nev. 361, 455 P.2d 172 (1969). Our decision in
Romaine is directly applicable to the present case, and we perceive no reason to alter or
overrule that decision.
3

Applying NRCP 6(a) to this case, the date of death should not have been included in
computing the limitations period.
____________________

1
NRS 11.190(4)(e) sets forth a two-year limitation on an action to recover damages for injuries to a person
or for the death of a person caused by the wrongful act or neglect of another.

2
NRCP 6(a) provides, in part, as follows:
In computing any period of time prescribed . . . by any applicable statute, the day of the act, event, or
default from which the designated period of time begins to run shall not be included. The last day of the
period so computed shall be included, . . .

3
Respondent relies on NRS 11.200, and argues that the date of death should be included in the limitations
period. That statute provides:
The time in NRS 11.190 shall be deemed to date from the last transaction or the last item charged or last
credit given; and whenever any payment on principal or interest has been or shall be made upon an
existing contract, whether it be a bill of exchange, promissory note or other evidence of indebtedness if
such payment be made after the same shall have become due, the limitation shall commence from the
time the last payment was made.
Respondent argues that in Romaine the statute may simply have been overlooked. However, the statute
appears applicable only to cases involving transactions lasting more than one day. Furthermore, even if we
assume that NRS 11.200 applies to personal injury and wrongful death actions, the statute merely establishes the
date of the act or event forming the basis of the complaint. The statute does not establish the beginning and
ending dates of the limitations period. Rather, as mentioned above, NRCP 6(a) performs that function.
98 Nev. 402, 404 (1982) Goldberg v. Charter Medical Corp.
Consequently, the complaint was filed on the last day of the two-year period. The district
court committed error by ruling otherwise.
We reverse the judgment, and we remand for further proceedings.
____________
98 Nev. 404, 404 (1982) 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, HEBER P. HARDY, Chairman; EVO A. GRANATA and
JANET S. MacDONALD, as Members of the Commission, NEVADA POWER COMPANY,
Respondents.
No. 12862
September 30, 1982 651 P.2d 95
Appeal from judgment. First Judicial District Court, Carson City; Michael R. Griffin,
Judge.
Appeal was taken from a judgment of the district court upholding a decision of the Public
Service Commission. The Supreme Court held that Commission abused its discretion by
denying gas company right to manage natural gas supply in accordance with existing law and
regulation by husbanding gas for higher priority customers, absent direction to contrary from
Commission.
Reversed.
Guild, Hagen & Clark, Reno, and Charles H. McCrea, Sr., Las Vegas, for Appellant.
Zev E. Kaplan, Legal Counsel, Carson City, for Respondents.
1. Public Utilities.
Standard of review of Public Service Commission's decisions upon which determination of Supreme
Court must be based is essentially same as that of district court, i.e., whether Commission's decision was
supported by substantial evidence and was within lawful perimeters of discretion.
2. Public Utilities.
Public Service Commission has undoubted right to regulate service curtailments as part of its general
authority to supervise and regulate. NRS 703.150.
3. Gas.
Absent prior and specific regulation of Public Service Commission concerning curtailment of natural gas,
gas utility can in good faith curtail such supplies in accordance with general order
previously establishing levels of priority. NRS 703.150, 704.010 et seq., 704.040.
98 Nev. 404, 405 (1982) Southwest Gas v. Public Serv. Comm'n
faith curtail such supplies in accordance with general order previously establishing levels of priority. NRS
703.150, 704.010 et seq., 704.040.
4. Gas.
Public Service Commission abused its discretion by denying gas company right to manage natural gas
supply in accordance with existing law and regulations by husbanding gas for higher priority customers,
absent direction to contrary from Commission. NRS 703.150, 704.010 et seq., 704.040.
OPINION
Per Curiam:
Pursuant to the terms of a written agreement appellant Southwest Gas Corporation
(Southwest) was to provide the Nevada Power Company (Nevada Power) with natural
gas to burn as fuel for the generation of electrical power. Subsequent to this agreement the
respondent Public Service Commission of Nevada (Commission), in apparent response to
foreseeable shortages in the supply of natural gas, established certain priorities of service in
its General Order 18 to be followed by suppliers of natural gas, including Southwest. General
Order 18 enumerated levels of service priorities as determined by the end use of the gas.
Complete curtailment at a subordinate level was required prior to any curtailment at a higher
level. Nevada Power consumed natural gas at varying priority levels, including the priority-5
level designated for use as boiler fuel.
Subsequent to the entry of General Order 18, the Federal Power Commission, now known
as the Federal Energy Regulatory Commission (FERC), issued its Opinion 800-B requiring
the El Paso Natural Gas Company (El Paso) to disburse large volumes of gas to certain
East-of-California distributors, including Southwest, which had been unjustly discriminated
against in prior gas distributions. Pursuant to the mandate of Opinion 800-B, El Paso
provided Southwest with 6.4 million Mcf of gas (hereinafter referred to as 800-B gas).
Based upon information supplied by El Paso to the effect that the curtailment of priority-3 gas
was highly probable and priority-2 gas was a distinct possibility during the forthcoming
winter heating season, Southwest determined that it would husband the 800-B gas as a
protective measure to its customers within priority levels 1, 2 & 3. Due to this determination,
Southwest refused to supply Nevada Power with priority-5 gas for use in electrical
generation.
This matter came before the Commission, and it determined, by way of an order and
opinion entitled Docket No. 1511, that even though the husbanding program implemented
by Southwest with respect to the S00-B gas would, under proper circumstances, be both
prudent and laudable, only the Commission was empowered to institute such curtailment
practices.
98 Nev. 404, 406 (1982) Southwest Gas v. Public Serv. Comm'n
even though the husbanding program implemented by Southwest with respect to the 800-B
gas would, under proper circumstances, be both prudent and laudable, only the Commission
was empowered to institute such curtailment practices. The Commission then held that the
curtailment of priority-5 gas by Southwest was unauthorized without prior approval of the
Commission. Southwest filed a petition for judicial review of the Commission's
determination and the district court affirmed Docket No. 1511 in all respects.
Southwest has appealed, contending that the Docket No. 1511 decision unlawfully
infringes upon its internal management prerogatives.
[Headnote 1]
The standard of review upon which our determination must be based, is essentially the
same as that of the district court, i.e., whether the Commission's decision was supported by
substantial evidence and was within lawful perimeters of discretion. State PSC v. Zephyr
Cove Water Co., 94 Nev. 634, 584 P.2d 698 (1978). The parties are in basic agreement as to
the evidence, but rely on competing legal precepts in support of their positions. Southwest
invokes the managerial prerogative doctrine in opposition to the Commission's claim of
exclusive right under legislative grant and FERC Opinion 800-B.
[Headnote 2]
Under Nevada law (NRS 703.150), the Commission is obligated to supervise and regulate
the operation and maintenance of Southwest in accordance with the provisions of NRS ch.
704. The Commission also has an undoubted right to regulate service curtailments as part of
its general authority to supervise and regulate. American Smelting & Refining Co. v. Federal
Power Commission, 494 F.2d 925, 932 (C.A.D.C. 1974), cert. denied 419 U.S. 882. Here,
however, the Commission had not acted with respect to the 800-B gas, and decided against
Southwest on the basis that the latter could not husband the gas as a preservation measure in
favor of high priority users without first receiving permission or authority from the
Commission. We find no statutory basis for the Commission's position.
Pursuant to NRS 704.040, Southwest is required to furnish reasonably adequate service
and facilities. It must do so in conformity with the dictates of General Order 18 which
specified a system of priority distribution of a limited, wasting resource in accordance with
greatest public need. Southwest sought to secure the availability of natural gas to its highest
priority users during peak use periods by storing the 800-B gas. The Commission held that
Southwest's storage program was not logically inconsistent" with the provisions of General
Order 1S but that it represented a significant expansion of the confines of the Order.
98 Nev. 404, 407 (1982) Southwest Gas v. Public Serv. Comm'n
inconsistent with the provisions of General Order 18 but that it represented a significant
expansion of the confines of the Order. Whether Southwest's decision to husband the 800-B
gas exceeded the terms of General Order 18 is, however, not the issue. The question before us
is whether any statute or regulation prohibited Southwest from using its own initiative in
storing the 800-B gas. We have been directed to no such statute or regulation. To the
contrary, it would appear that Southwest responded reasonably to the mandates of NRS
704.040 and General Order 18 by husbanding its 800-B gas in order to assure adequate
supplies to the high priority residential, small and large commercial users who would be most
adversely affected by an interruption of service. Indeed, the Commission observed in its
answering brief on appeal that it is not contending that Southwest was acting in its best
corporate interests when it unilaterally attempted to sequester the . . . 800-B gas. . . .
We quite agree with the district court's conclusion that great respect should be accorded
the Commission's interpretations of its own rules and regulations. And, as previously
observed, we are equally persuaded that the Commission has the power to fully regulate all
curtailment practices by public utilities. It is clear, however, that it has not yet done so, and
under Nevada's statutes, curtailment authority is not specifically granted to the Commission
or denied to the public utilities. Nor has the Commission, by prior rule or regulation, denied
Southwest curtailment authority. Under such circumstances it was well within the
management prerogatives of Southwest to exercise its best judgment regarding the provision
of adequate service to priority end users through husbanding the 800-B gas. See Public
Service Commission of Nevada v. Ely Light & Power Company, 80 Nev. 312, 324, 393 P.2d
305 (1964).
The Commission attempts to support its position by referring us to that portion of the
FERC Opinion No. 800-B that passes jurisdiction to the state Commissions to effectuate a
system of retail distribution of the 800-B gas in accordance with the public interest. It is thus
argued that the Commission had exclusive authority over the disposition of the 800-B gas.
We do not dispute the proposition that the Commission could have determined how the gas
was to be used. It did not. Its standing General Order 18 provided a priority system of
distribution which, under conditions of product shortfall, caused Southwest to use
management initiative in determining its responsibility in the distribution of the 800-B gas.
The Commission simply cannot be heard to say that the only prerogative available to
Southwest was to seek instruction or direction from the Commission before curtailing the
S00-B gas.
98 Nev. 404, 408 (1982) Southwest Gas v. Public Serv. Comm'n
Commission before curtailing the 800-B gas. In spite of the Commission's knowledge of the
continuing, troublesome shortage of natural gas in Southwest's service area and the latter's
statutory responsibility to provide reasonably adequate service in accordance with the
priorities established by General Order 18, the Commission had not seen fit to exercise its
regulatory control over the 800-B gas. In the meantime, Southwest, which was not prohibited
by statute or regulation from managing its newly found supply of gas, proceeded according to
its perception of public need as defined by the Commission. Under these circumstances, we
know of no rule of law which would deny the right of Southwest to initiate a husbanding
program resulting from a good faith and patently reasonable attempt by its management to
fulfill its responsibilities under the law. Public Service Commission of Nevada, id.
If the Commission had set forth, in a prompt and timely fashion, specific guidelines
instructing Southwest how to store or distribute the 800-B gas then, absent an abuse of the
Commission's discretion, Southwest would have been obligated to follow such guidelines.
The record before us, however, does not demonstrate any such directional guidance by the
Commission at the time Southwest received the 800-B gas from El Paso. Absent such
guidelines, it became an appropriate function of the internal management of Southwest to
take prudent and efficient steps to preserve the 800-B gas since it operated under a good faith
belief that such steps were necessary to protect higher priority customers during a
forthcoming period of peak demand.
[Headnote 3]
Our determination herein is not to be construed as meaning that the curtailment of natural
gas supplies is a decision only to be made by the internal management of a gas utility. We
hold only that absent a prior and specific regulation of the Commission concerning the
curtailment of natural gas, a gas utility can, in good faith, curtail such supplies in accordance
with a general order previously establishing levels of priority.
[Headnote 4]
By reason of the foregoing, we hold that the Commission abused its discretion in denying
Southwest the right to manage the 800-B gas supply in accordance with existing law and
regulations, and absent direction to the contrary from the Commission.
The judgment of the district court is reversed.
____________
98 Nev. 409, 409 (1982) Local Joint Exec. Bd. v. Stern
LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS, CULINARY WORKERS UNION,
LOCAL NO. 226 and BARTENDERS UNION, LOCAL NO. 165, Affiliates of Hotel and
Restaurant Employees and Bartenders International Union, AFL-CIO; MUSICIANS UNION
OF LAS VEGAS, LOCAL NO. 369, AF OF M, AFL-CIO; MARION ARRIULA, MARIA
BENITEZ, ANTONIO BIANCO, PAUL BLATT, MAY BLISS, JERRY BROWN,
ROSARIO CASTORINA, RITA COOPER, PATRICIA L. DIHORENZO, BEVERLY A.
EVANS, EVELIO FRAGINALS, ELIZABETH HELLYER, KAY HOLMES, ARNOLD B.
HOWL, WILLIE JAMERSON, BILL KANE, VASILIOS KARAGIOGIS, MARY VIVIAN
KEANE, MARY KIMZEY, JOHNNY R. LAVOIE, IMRE MARO, CALVIN NEELY,
LUCIA NEHRING, HELIODORO R. PILOTZI, SHARON POOL, EDWARD RUTTY,
WILLIAM D. SEAGO, EDITH D. SKAFICA, WILMA SMITH, SYLVIA SNOOK, OSCAR
TADEO, A. VILLALUAZO, MARK WALLS and JOSE C. WASKIAK, Appellants, v.
MARTIN STERN, JR., A.I.A. ARCHITECTS AND ASSOCIATES, TAYLOR
CONSTRUCTION COMPANY, CLARK COUNTY, NEVADA and CALIFORNIA
ELECTRIC CONSTRUCTION COMPANY, Respondents.
No. 13599
September 30, 1982 651 P.2d 637
Appeal from order granting motion to dismiss for failure to state a claim upon which relief
can be granted. Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Hotel employees and their union sued entities involved in the design or construction of the
hotel to recover lost salaries and other employment benefits for the period they were
unemployed due to a fire at the hotel. The district court dismissed for failure to state a claim
upon which relief could be granted. Plaintiffs appealed. The Supreme Court held that: (1)
purely economic loss is not recoverable for negligent interference with economic
expectancies, and (2) the doctrine of strict tort liability was not available for purely economic
loss.
Affirmed.
Galatz, Earl & Biggar, Las Vegas, for Appellants.
Beckley, Singleton, DeLanoy & Jemison, and Alan J. Lefebvre, Thorndal, Backus &
Maupin, Dickerson, Miles, Pico & Mitchell, and Eleissa C. Lavelle, John Peter Lee, Ltd., Las
Vegas, Gibson, Dunn & Crutcher, Lynberg & Nelsen, Los Angeles, California, for
Respondents.
98 Nev. 409, 410 (1982) Local Joint Exec. Bd. v. Stern
& Mitchell, and Eleissa C. Lavelle, John Peter Lee, Ltd., Las Vegas, Gibson, Dunn &
Crutcher, Lynberg & Nelsen, Los Angeles, California, for Respondents.
1. Damages.
Absent privity of contract or injury to person or property, plaintiff may not recover in negligence for
economic loss.
2. Damages.
Purely economic loss is recoverable in action for tortious interference with contractual relations or
prospective economic advantage, but interference must be intentional.
3. Damages.
There could be no recovery for negligent interference with economic expectancies.
4. Products Liability.
Doctrine of strict products liability was not available for purely economic loss, but its application was
limited to personal injury and property damage.
OPINION
Per Curiam:
Appellants sued respondents on negligence and strict liability theories to recover lost
salaries and other employment benefits for the period they were unemployed due to the MGM
hotel fire. The district court granted respondents' motions to dismiss, on the grounds that
appellants had not stated a cause of action to recover economic loss. We affirm.
THE FACTS
This lawsuit arises from the November 1980 fire at the MGM Grand Hotel in Las Vegas,
Nevada. The individual appellants were employees at the time of the fire, and brought this
class action to recover lost salaries and employment benefits for the period they were
unemployed as a result of the fire. The unions also sued to recover union dues lost because of
the fire. Respondents were involved in the design or construction of the hotel. Appellants
sought recovery under both negligence and strict liability theories. The district court granted
respondents' motions to dismiss, on the ground that appellants had not stated a cause of action
to recover economic loss. This appeal followed.
NO RECOVERY IN NEGLIGENCE FOR
ECONOMIC LOSS
[Headnotes 1, 2]
The well established common law rule is that absent privity of contract or an injury to
person or property, a plaintiff may not recover in negligence for economic loss.
98 Nev. 409, 411 (1982) Local Joint Exec. Bd. v. Stern
not recover in negligence for economic loss. Robins Dry Dock & Repair Co. v. Flint, 275
U.S. 303 (1927); Kingston Shipping Co., Inc. v. Roberts, 667 F.2d 34 (11th Cir. 1982); Clark
v. International Harvester Co., 581 P.2d 784 (Idaho 1978); Stevenson v. East Ohio Gas Co.,
73 N.E.2d 200 (OhioApp. 1946); Restatement (Second) of Torts 766C (1979). Purely
economic loss is recoverable in actions for tortious interference with contractual relations or
prospective economic advantage, but the interference must be intentional. Straube v. Larson,
600 P.2d 371 (Or. 1979); Chanay v. Chittenden, 563 P.2d 287 (Ariz. 1977). The primary
purpose of the rule is to shield a defendant from unlimited liability for all of the economic
consequences of a negligent act, particularly in a commercial or professional setting, and thus
to keep the risk of liability reasonably calculable.
[Headnote 3]
A small minority of jurisdictions do permit recovery for negligent interference with
economic expectancies under certain limited circumstances. See, e.g., J'Aire Corp. v.
Gregory, 598 P.2d 60 (Cal. 1979); Keel v. Titan Const. Co., 639 P.2d 1228 (Okla. 1982);
Hawthorne v. Kober Const. Co., Inc., 640 P.2d 467 (Mont. 1982). However, we believe the
tests that have been developed to determine who should recover for negligent interference
with contract or prospective economic advantage are presently inadequate to guide trial courts
to consistent, predictable, and fair results. The foreseeability of economic loss, even when
modified by other factors, is a standard that sweeps too broadly in a professional or
commercial context, portending liability that is socially harmful in its potential scope and
uncertainty. We therefore decline to adopt the minority view allowing such recovery.
STRICT TORT LIABILITY DOES NOT APPLY
TO ECONOMIC LOSS
[Headnote 4]
The doctrine of strict products liability was developed to assist plaintiffs who could not
prove that products which caused physical injury at the point of use had been manufactured
negligently. The doctrine is unavailable for purely economic loss; its application is limited to
personal injury and property damage. Russell v. Ford Motor Co., 575 P.2d 1383 (Or. 1978);
Morrow v. New Moon Homes, Inc., 548 P.2d 279 (Alaska 1976); Seely v. White Motor Co.,
403 P.2d 145 (Cal. 1965) (dicta); Rodrigues v. Campbell Industries, 151 Cal.Rptr. 90
(Cal.App. 1978); Mid Continent Aircraft v. Curry Cty.
98 Nev. 409, 412 (1982) Local Joint Exec. Bd. v. Stern
Spraying Serv., 572 S.W.2d 308 (Tex. 1978); Restatement (Second) of Torts 402A (1965).
As appellants did not allege that respondents engaged in intentionally tortious conduct or
caused them personal injury or property damage, the district court properly dismissed their
complaint. We therefore affirm.
____________
98 Nev. 412, 412 (1982) State of Nevada v. Glusman
STATE OF NEVADA; STATE OF NEVADA GAMING COMMISSION and STATE OF
NEVADA GAMING CONTROL BOARD, Appellants, v. FRED J. GLUSMAN and
INTERNATIONAL DRESS SHOP, INC., Respondents.
No. 12946
FRED J. GLUSMAN and INTERNATIONAL DRESS SHOP, INC., Appellants, v.
STATE OF NEVADA; STATE OF NEVADA GAMING COMMISSION, and
STATE OF NEVADA GAMING CONTROL BOARD, Respondents.
No. 13217
September 30, 1982 651 P.2d 639
Consolidated appeals from order granting a preliminary injunction to respondents (Case
No. 12946), and the order denying appellants' request for declaratory relief (Case No. 13217).
Eighth Judicial District Court, Clark County; Robert G. Legakes, Judge.
Consolidated appeals were taken from orders of the district court in actions involving
constitutional validity of gaming statute. The Supreme Court, Steffen, J., held that: (1) district
court was without jurisdiction to enjoin enforcement of gaming statute, and (2) gaming
statute providing that any person or entity that does business on premises occupied by
specified, licensed gaming establishment may be required to apply for determination of
suitability is constitutional except when compared with effect of statute providing that
applicant is subject to payment of all investigative costs incurred by state during course of its
investigation with respect to suitability; consequently, that part relating to investigative costs
was found to be invalid as excessive use of police power.
Reversed as to Case No. 12946; qualifiedly affirmed as to Case No. 13217.
98 Nev. 412, 413 (1982) State of Nevada v. Glusman
Richard H. Bryan, Attorney General, Patricia W. Becker, Chief Deputy Attorney General,
Carson City; Nikolas L. Mastrangelo, Deputy Attorney General, Clark County, for State of
Nevada, State of Nevada Gaming Commission, and State of Nevada Gaming Control Board.
George E. Graziadei, Scott Michael Cantor, Las Vegas; Shellow, Shellow & Glynn,
Milwaukee, Wisconsin, for Fred J. Glusman, and International Dress Shop, Inc.
Frank W. Daykin, Carson City, for Legislative Commission as Amicus Curiae.
1. Appeal and Error.
It is within inherent discretion of the Supreme Court to consider issues of substantial public importance
which are likely to recur, in spite of any intervening event during pendency of appeal which has rendered
matter moot.
2. Gaming.
For purposes of declaratory judgments provisions of gaming chapter, statutory definition of applicant
includes those who have been ordered to apply for a finding of suitability to occupy same premises as
gaming establishment. NRS 463.0134.
3. Constitutional Law.
Legislature has power to restrict availability of injunctive relief by judiciary in gaming matters.
4. Injunction.
Declaratory judgment provision of gaming chapter effectively deprived district court of jurisdiction to
entertain injunctive relief against implementation by state gaming authorities of gaming statute providing
that business on premises of specified, licensed gaming establishment may be required to apply for a
determination of suitability. NRS 463.0134; NRS 463.160, subd. 8(a) (Repealed).
5. Action.
Since stay of proceedings involving constitutionality of gaming statute was unavailable under declaratory
judgments provision of gaming chapter and since such relief was available under another gaming statute,
plaintiff should have proceeded under latter statute and exhausted administrative remedies. NRS
463.343, subd. 4; NRS 463.160, subd. 8(a) (Repealed).
6. Appeal and Error.
Despite fact that plaintiffs failed to exhaust administrative remedies in challenging constitutionality of
gaming statute, the Supreme Court would consider constitutional issues, which may have remained
submerged through administrative proceeding, where issues had been decided by district court in adversary
posture and were subjected to critical analysis in context of actual controversy and magnitude of issues and
likelihood of their future recurrence justified present judicial determination on the merits. NRS 463.160,
subd. 8(a) (Repealed).
98 Nev. 412, 414 (1982) State of Nevada v. Glusman
7. Administrative Law and Procedure.
It is within discretion of the Supreme Court not to apply exhaustion doctrine especially where issues
relate solely to interpretation or constitutionality of statute.
8. Constitutional Law.
In face of attack, every favorable presumption and intendment will be brought to bear in support of
constitutionality of statute.
9. Constitutional Law.
An act of legislature is presumed to be constitutional and should be so declared unless it appears to be
clearly in contravention of constitutional principles.
10. Constitutional Law; Statutes.
Criterion under which the Supreme Court examines assertion of vagueness of statute is whether statute
either forbids or requires doing of any act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application and equally important in facial challenge for
vagueness is whether statute impinges upon First Amendment freedoms. U.S.C.A.Const. Amend. 1.
11. Statutes.
If statute does not impinge upon First Amendment freedoms, statute may be stricken as unconstitutionally
vague only if it is found to be so in all of its applications. U.S.C.A.Const. Amend. 1.
12. Statutes.
Standard of review of Supreme Court when reviewing constitutionality of statute is less strict under
challenge for vagueness where statute is directed at economic regulations.
13. Gaming.
Gaming statute providing that any person or entity that does business on premises occupied by specified,
licensed gaming business may be required to apply for determination of suitability is not susceptible to
constitutional infirmity for vagueness since it purports to do nothing more than provide basis for
investigation preliminary to determination of suitability. NRS 463.160, subd. 8(a) (Repealed).
14. Constitutional Law.
Generally, overbreadth argument is only available for purpose of challenging validity of statutes which
chill First Amendment rights. U.S.C.A.Const. Amend. 1.
15. Constitutional Law; Gaming.
Gaming statute providing that any person or entity that does business on premises occupied by specified,
licensed gaming establishment may be required to apply for determination of suitability is not
unconstitutionally overbroad, although it was contended that it impermissibly regulated all types of
businesses irrespective of any nexus with gaming, in that none of business owners' First Amendment rights
were impaired by reason of statute. NRS 463.160, subd. 8(a) (Repealed); U.S.C.A.Const. Amend. 1.
16. Constitutional Law.
Type of association protected by First Amendment is that which is related to cherished right of freedom
of speech, namely, freedom to associate for promotion of political and social ideas. U.S.C.A.Const.
Amend. 1.
17. Constitutional Law.
A facial challenge to a statute refers to a claim of invalidity of entire statute and, if successful,
would render it devoid of any valid application.
98 Nev. 412, 415 (1982) State of Nevada v. Glusman
entire statute and, if successful, would render it devoid of any valid application.
18. Gaming.
Gaming statute providing that any person or entity that does business on premises occupied by specified,
licensed gaming establishment may be required to apply for determination of suitability is reasonable
exercise of state's police power to subject businesses sharing premises with certain gaming establishments
to determination of suitability to be thus located. NRS 463.160, subd. 8(a) (Repealed).
19. Gaming.
Combined effect of statute providing that any person or entity that does business on premises occupied by
specified, licensed gaming establishment may be required to apply for determination of suitability, and
statute subjecting applicant to payment of all investigative costs incurred by state during course of its
suitability investigation constitute unreasonable and fundamentally unfair burden on those who are required
to submit to qualifying procedures of challenged statute; consequently, that part of statute assessing cost to
applicants for finding of suitability was invalid and excessive use of police power of state. NRS 463.331,
463.331, subd. 1; NRS 463.160, subd. 8(a) (Repealed).
20. Statutes.
Words of a statute should be construed, if reasonably possible, so as to accommodate statutory purpose.
21. Gaming.
In challenge to constitutionality of gaming statute providing that any person or entity that does business
on premises occupied by specified, licensed gaming establishment may be required to apply for
determination of suitability, district court did not err in construing statutory phrase associated with a
gaming enterprise to include plaintiff's businesses, although they were not assertedly rationally tied to
gaming as statute would be shorn of any meaningful purpose if it were held to apply only to those who
were overtly associated in gaming industry. NRS 463.160, subd. 8(a) (Repealed).
22. Constitutional Law; Gaming.
Legislature had compelling interest in subjecting persons and businesses engaged in commerce and
sharing space with gaming establishments to selective investigation and finding of suitability and such
interest was more than sufficient to sustain statute providing that businesses sharing premises with gaming
establishment may be required to apply for finding of suitability in face of constitutional challenge based
upon invasion of privacy assertions. U.S.C.A.Const. Amend. 1; NRS 463.160, subd. 8(a) (Repealed).
23. Constitutional Law; Gaming.
Claim of businesses that shared space in gaming enterprises that disclosure of financial information in
connection with finding of suitability to share premises violated their right to privacy was unfounded since
any financial information obtained from those businesses in investigative process prior to determination
that they were suitable to be located in gaming establishment was confidential and immune from public
disclosure by law and any invasion of privacy was minimal and therefore constitutionally permissible.
NRS 463.120, subd. 4; NRS 463.160, subd. 8(a) (Repealed); U.S.C.A.Const. Art. 1, 10, cl. 1;
Const. Art. 1, 15.
98 Nev. 412, 416 (1982) State of Nevada v. Glusman
24. Constitutional Law.
Police power concerns of public health, safety and welfare may be invoked where reasonably necessary
to control even contractually vested rights antecedent to regulating legislation without running afoul of
impairment of contracts clause of State and Federal Constitutions. U.S.C.A.Const. Art. 1, 10, cl. 1.
25. Constitutional Law.
Vested rights in given profession or calling may be made subject to licensing or qualification enactments
postdating such rights without running afoul of impairments clause. U.S.C.A.Const. Art. 1, 10, cl. 1.
26. Constitutional Law; Gaming.
Businesses that were required to seek determination of suitability before doing business on premises
occupied by specified, licensed gaming establishment did not suffer any impairment of contracts as result
of gaming statute requiring determination of suitability. NRS 463.160, subd. 8(a) (Repealed);
U.S.C.A.Const. Art. 1, 10, cl. 1.
27. Gaming.
Gaming statute providing that any person or entity that does business on premises occupied by specified,
licensed gaming establishment may be required to apply for determination of suitability did not impair
businesses' right to hold specific employment as finding of unsuitability would not prevent businesses from
engaging in their business but only would affect right to maintain businesses in conjunction with gaming
establishments at particular locations and that was not constitutionally prohibited. NRS 463.160, subd.
8(a) (Repealed).
28. Constitutional Law; Gaming.
Class created by gaming statute providing that any person or entity that does business on premises
occupied by specified, licensed gaming establishment may be required to apply for determination of
suitability was reasonable and necessary to fulfillment of legitimate legislative purpose, and statute did not
discriminate against businesses wishing to share space with gaming establishments. NRS 463.160, subd.
8(a) (Repealed); U.S.C.A.Const. Amend. 14.
OPINION
By the Court, Steffen, J.:
These consolidated appeals stem from issues involving the constitutional validity of
Nevada gaming statute NRS 463.160(8)(a), hereinafter frequently referred to as the statute,
1
and the jurisdiction of the district court to grant injunctive relief against the implementation
thereof by state gaming authorities. After preventing enforcement of the statute through
issuance of a preliminary injunction, the district court determined that the legislation was
constitutional and dissolved the injunction.
____________________

1
NRS 463.160(8)(a) is the applicable statute designated in effect in 1980. See NRS 463.167(2).
98 Nev. 412, 417 (1982) State of Nevada v. Glusman
determined that the legislation was constitutional and dissolved the injunction. We qualifiedly
affirm the decision supporting the statute, but hold that the district court was without
jurisdiction to enjoin its enforcement.
Frederick J. Glusman is an officer, director and sole shareholder of International Dress
Shop, Inc. (International). International is engaged in the retail clothing business on the
premises of the Las Vegas Hilton and Stardust hotels under the name of Fredde's Dress
Shops. The International shops at the Hilton and Stardust have operated continuously under
leases dated in 1968 and 1977, respectively.
Pursuant to the recommendation of the Nevada Gaming Control Board (Board), the
Nevada Gaming Commission (Commission) issued an order directing Glusman to apply to
the latter agency for a determination of suitability to be associated with a gaming enterprise.
The statutory authority for the order, NRS 463.160(8)(a), reads as follows:
If the premises of a licensed gaming establishment are directly or indirectly owned or
under the control of the licensee therein, or of any person controlling, controlled by, or
under common control with the licensee, the commission may, upon recommendation
of the board, require the application of any business or person for a determination of
suitability to be associated with a gaming enterprise if the person or business:
(a) Does business on the premises of the licensed gaming establishment.
Glusman responded to the order by filing a complaint for declaratory and injunctive relief
with the district court, asserting constitutional infirmity in the questioned statute. The district
court granted Glusman and International a preliminary injunction from which the State of
Nevada, State of Nevada Gaming Commission and State of Nevada Gaming Control Board
(the State) appealed under Case No. 12946. During the pendency of the latter appeal, the
district court heard the complaint for declaratory relief and held against Glusman and
International, thus prompting the appeal in Case No. 13217. (Hereafter, for purposes of this
opinion, Glusman and International will alternatively be referred to as appellants).
In a major sense, the determination of the issues before us is dictated by the unique setting
of the Nevada gaming industry. The peculiar nature of the gaming industry presents numerous
concerns and problems of control, the resolution of which must be readily available to
cognizant government authorities of this state.
98 Nev. 412, 418 (1982) State of Nevada v. Glusman
of this state. It has been clearly recognized by our earlier decisions that gaming longevity and
vitality, under continuing state authority, are dependent upon effective control mechanisms
which will assure appropriate deference to the health, safety and welfare of the citizenry. It is
in that context that the Nevada Legislature has enacted legislation designed to provide
effective and timely management of the gaming industry. NRS ch. 463.
[Headnote 1]
We turn first to the question of the injunctive relief provided by the district court in Case
No. 12946. Ordinarily this issue would fall prey to the mootness doctrine since the injunction
has been dissolved. It is, however, within the inherent discretion of this Court to consider
issues of substantial public importance which are likely to recur, in spite of any intervening
event during the pendency of an appeal which has rendered the matter moot. In Re M, 473
P.2d 737, 741-743 (Cal. 1970). The instant action poses such an issue and we deem it worthy
of resolution.
[Headnotes 2-4]
Appellants attempt to posture themselves outside the purview of NRS 463.343 (the
declaratory judgments provision of the gaming chapter) by disclaiming the status of
applicant, licensee or person found suitable. This contention is without merit. The statutory
definition of applicant
2
clearly includes those who have been ordered to apply for a
finding of suitability. Having so held, the question then arises as to whether appellants may
nevertheless circumvent the dictates of NRS 463.343 by petitioning the district court under
the Uniform Declaratory Judgments Act, NRS ch. 30, for declaratory relief and a stay of
proceedings. The court below erroneously decided in the affirmative. The power of the
legislature to restrict the availability of injunctive relief by the judiciary in gaming matters is
well established. Gaming Control Bd. v. Dist. Ct., 82 Nev. 38, 409 P.2d 974 (1966). If
appellants' position were to prevail, it would render NRS 463.343 selectively nugatory and
allow effective avoidance of the prohibition against injunctive jurisdiction by the judiciary
within statutorily defined areas of gaming. Accordingly, we hold that NRS 463.343(5)(b)
effectively deprived the district court of jurisdiction to entertain injunctive relief to appellants
and that the granting of such relief was error.
____________________

2
NRS 463.0134 defines applicant as follows:
[A]ny person who has applied for or is about to apply for a state gaming license, manufacturer's license
. . . or finding of suitability under the provision of this chapter. . . .
98 Nev. 412, 419 (1982) State of Nevada v. Glusman
granting of such relief was error. Other issues on this point are defused by our holding and
will not be discussed.
[Headnote 5]
We are asked by the state to sidestep the constitutional issues raised by appellants in Case
No. 13217 in deference to the doctrine of exhaustion of administrative remedies. The
exhaustion doctrine is a salutary one which often fully and finally resolves disputes without
need for litigation. First Am. Title Co. v. State of Nevada, 91 Nev. 804, 543 P.2d 1344
(1975). In the instant case, appellants elected to disregard their administrative remedies under
the apparent assumption that relief would be withheld by the administrative agencies. There is
nothing in the record indicating appellants would have succumbed to a deaf ear had they
sought exemption from a finding of suitability by the Commission. However, convinced of
the unconstitutionality of NRS 463.160(8)(a), appellants opted to refuse any semblance of
cooperation with the gaming authorities. Since we have held that a stay of proceedings was
unavailable under NRS ch. 30, and since such relief was available pursuant to NRS
463.343(4), it follows that appellants should have proceeded under the latter statute and
exhausted their administrative remedies.
[Headnotes 6, 7]
Although we are reluctant to circumvent the exhaustion doctrine, there are compelling
reasons for doing so in this case. The constitutional issues, which may have remained
submerged through an administrative proceeding, have been met and decided by the district
court in an adversary posture and were subjected to critical analysis in the context of an actual
controversy. Further, it is within our discretion not to apply the exhaustion doctrine especially
where the issues relate solely to the interpretation or constitutionality of a statute. Cafferello
v. U.S. Civil Serv. Com'n, 625 F.2d 285 (9th Cir. 1980); Frontier Airlines v. C.A.B., 621 F.2d
369 (10th Cir. 1980); Public Utilities Comm. v. United States, 355 U.S. 534 (1958). Finally
the magnitude of the issues and the likelihood of their future recurrence justify a present
judicial determination on the merits.
[Headnotes 8, 9]
Appellants assert error by the district court in finding NRS 463.160(8)(a) constitutional on
its face and as applied to them. We do not agree. We have long recognized, as a general
principle, that statutes should be construed, if reasonably possible, so as to be in harmony
with the constitution. Copeland v. Woodbury, 17 Nev. 337, 30 P. 1006 (1883); cited with
approval in Milchem Inc. v.
98 Nev. 412, 420 (1982) State of Nevada v. Glusman
in Milchem Inc. v. District Court, 84 Nev. 541, 445 P.2d 148 (1968). In the face of attack,
every favorable presumption and intendment will be brought to bear in support of
constitutionality. As previously held, [a]n act of the legislature is presumed to be
constitutional and should be so declared unless it appears to be clearly in contravention of
constitutional principles. State ex rel. Tidvall v. Eighth Judicial District Court, 91 Nev. 520,
526, 539 P.2d 456, 460 (1975). In the case before us, the statute attacked must be considered
in light of this state's policy regarding the gaming industry as expressed in NRS 463.130(1).
NRS 463.130(1) provides in pertinent part:
(c) Public confidence and trust can only be maintained by strict regulation of all
persons, locations, practices, associations and activities related to the operation of
licensed gaming establishments and the manufacture or distribution of gambling
devices and equipment.
(d) All establishments where gaming is conducted and where gambling devices are
operated, manufacturers, sellers and distributors of certain gambling devices and
equipment in the state shall therefore be licensed, controlled and assisted to protect the
public health, safety, morals, good order and general welfare of the inhabitants of the
state, to foster the stability and success of the gaming industry and to preserve the
competitive economy and policies of free competition of the State of Nevada.
3

As used in this provision, the word establishment is defined as any premises wherein or
whereon any gaming is done.
4

[Headnotes 10-12]
Appellants first contend that NRS 463.160(8)(a) is constitutionally infirm by reason of
vagueness and overbreadth. The criterion under which we examine the assertion of vagueness
is whether the statute either forbids or requires the doing of any act in terms so vague that
men of common intelligence must necessarily guess at its meaning and differ as to its
application. . . . Connally v. General Construction Co., 269 U.S. 385 (1926) cited by this
Court in In re Laiolo, 83 Nev. 186, 426 P.2d 726 (1967). Equally important in a facial
challenge for vagueness is whether the statute impinges upon First Amendment freedoms. If
not, a statute may be stricken as unconstitutionally vague only if it is found to be so in all of
its applications. Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 4S9, 71 L.Ed.2d
362 {19S2).
____________________

3
NRS 463.130 is the applicable statute designated in effect in 1980. See NRS 463.0129.

4
NRS 463.0190 is the applicable statute designated in effect in 1980. See NRS 463.0148.
98 Nev. 412, 421 (1982) State of Nevada v. Glusman
U.S. 489, 71 L.Ed.2d 362 (1982). Further, our standard of review is less strict under a
challenge for vagueness where the statute is directed at economic regulations. Id. at 371.
It is argued that the language of the statute fails to provide clarity of meaning or
application, thereby subjecting those affected by the statute to uncertainty as to what
constitutes acceptable conduct. It is true, of course, that the statute in question does not
attempt to define the type of conduct which would actuate the investigatory machinery of the
statute. Such definition is supplied, however, by reference to NRS 463.170(2).
5
The latter
statute describes with specificity the standards of conduct applicable to a determination of
suitability and, by converse logic, that conduct which is inconsistent with suitability and
which, if suspected, may prompt invocation of the investigation and qualifying aspects of
NRS 463.160(8)(a).
Under the terms of the statute, any person or entity that does business on the premises
occupied by a specified, licensed gaming establishment may be required to apply for a
determination of suitability. The statute is precise. Regulation 1.050(12) of the Commission
defines premises to mean land together with all buildings, improvements and personal
property located thereon. It is clear that the purpose of the statute is to provide a basis for
investigating and qualifying or disqualifying as suitable, persons and businesses who choose
to conduct non-gaming business operations on the premises of a gaming establishment. This
purpose is both legitimate and reasonable. Human experience has shown gaming to be like
quicksilver, and unless controls are complete and resourceful, the industry will be fraught
with conditions of potential threat to its continued existence.
[Headnote 13]
The United States Supreme Court recently sustained a city ordinance challenged for
impermissible vagueness in the case of City of Mesquite v. Aladdin's Castle, Inc.,
____________________

5
NRS 463.170(2) provides:
An application to receive a license or be found suitable shall not be granted unless the commission is
satisfied that the applicant is:
(a) A person of good character, honesty and integrity;
(b) A person whose prior activities, criminal record, if any, reputation, habits and associations do not
pose a threat to the public interest of this state or to the effective regulation and control of gaming, or
create or enhance the dangers of unsuitable, unfair or illegal practices, methods and activities in the
conduct of gaming or the carrying on of the business and financial arrangements incidental thereto; and
(c) In all other respects qualified to be licensed or found suitable consistently with the declared policy
of the state.
98 Nev. 412, 422 (1982) State of Nevada v. Glusman
of City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 71 L.Ed.2d 152 (1982). There the
city ordinance under fire was a licensing ordinance for coin-operated amusement
establishments. The ordinance included a provision directing the chief of police to, inter alia,
investigate an applicant's connections with criminal elements. In reversing the court of
appeals, the high court held:
The Federal Constitution does not preclude a city from giving vague or ambiguous
directions to officials who are authorized to make investigations and recommendations.
There would be no constitutional objection to an ordinance that merely required an
administrative official to review all relevant informational' or to make such
investigation as he deems appropriate' before formulating a [licensing]
recommendation. Id. at 161.
In the instant proceeding, the statute is merely an investigative vehicle for confirming or
dispelling concerns over the suitability of a person or business to conduct business operations
on the same premises as a gaming establishment. The application and implicit investigation in
connection therewith represent the total operative scenario attributable to NRS 463.160(8)(a).
Obviously, the finding of suitability referred to in the statute is analogous to the ultimate
licensing purpose of the city ordinance in Mesquite, and in both instances the eventual critical
determination must result from the evaluation of facts obtained from the investigation and
applied to well-defined criteria requisite to suitability or licensure. Therefore, we hold that the
challenged statute is not susceptible to constitutional infirmity for vagueness since it purports
to do nothing more than provide a basis for an investigation preliminary to a determination of
suitability.
[Headnotes 14-17]
Appellants also contend that the statute is overbroad because it impermissibly regulates all
types of businesses irrespective of any nexus with gaming. Generally, an overbreadth
argument is only available for the purpose of challenging the validity of statutes which chill
First Amendment rights. Anderson v. State, 562 P.2d 351 (Alaska 1977). The Supreme Court
in Moose Lodge No. 107, 407 U.S. 163, 168 stated:
[w]hile the doctrine of overbreadth' has been held . . . to accord standing by reason of
the chilling effect' that a particular law might have upon the exercise of the First
Amendment rights, that doctrine has not been applied to constitutional litigation in
areas other than those relating to the First Amendment.
98 Nev. 412, 423 (1982) State of Nevada v. Glusman
In the case before us, none of appellants' First Amendment rights is impaired by reason of the
questioned statute. Appellants do assert a denial of the First Amendment right to freedom of
association, but such contention lacks merit. The type of association protected by the First
Amendment is that which is related to the cherished right of freedom of speech, namely, the
freedom to associate for the promotion of political and social ideas. Lewitus v. Colwell, 479
F.Supp. 439 (D.C.Md. 1979), citing Bates v. Little Rock, 361 U.S. 516 (1960); Sweezy v.
New Hampshire, 354 U.S. 234 (1957). Accordingly, appellants' argument supporting
constitutional infirmity for overbreadth cannot prevail since appellants failed to demonstrate
that NRS 463.160(8)(a) has any impermissible impact on First Amendment freedoms. The
statute here challenged is constitutional on its face.
6

[Headnote 18]
Appellants maintain that the statute represents an excessive, pervasive and therefore,
unconstitutional exercise of the police power of the state. Appellants concede the vital role of
gaming in the economy of the state and further acknowledge the right of the state to regulate
and control the gaming industry consonant with the health, safety and welfare of the public.
They conclude, however, that since appellants operate dress shops and have no relationship to
gaming, it is an unwarranted and unconstitutional intrusion on private rights to include them
within the penumbra of the statute. It is unquestionably true that there are limitations on the
police power of the state. Not only must the ends and means of the legislative enactment of
the power be reasonable, but the objective of its exercise must be so manifestly in the public
interest as to strongly justify any intrusion on the basic rights of individuals. Goldblatt v.
Town of Hempstead, New York, 369 U.S. 590 (1962). However, appellants erroneously
contend that NRS 463.160(8)(a) extends to all non-gaming businesses throughout the state. It
does not. It applies only to businesses who elect to locate on certain premises shared by a
gaming establishment. We hold that it is a reasonable exercise of the state's police power to
subject businesses sharing premises with certain gaming establishments to a determination of
suitability to be thus located. Having so held, however, does not dispose of the issue
concerning the effect of the legislative scheme as applied to appellants.
Under the Nevada Gaming Control Act, the state is empowered to investigate and impose
heavy sanctions, both civil and criminal, for the violation of Nevada's gaming laws.
____________________

6
A facial challenge to a statute refers to a claim of invalidity of the entire statute and, if successful, would
render it devoid of any valid application. Hoffman Estates v. Flipside, Hoffman Estate, supra.
98 Nev. 412, 424 (1982) State of Nevada v. Glusman
criminal, for the violation of Nevada's gaming laws. The statute in question facilitates the
investigation of such violations or suspected violations by requiring investigatees to submit a
detailed application and supportive information to gaming authorities. A finding of suitability
by the Commission does not, however, constitute a license to participate in gaming. It merely
provides official validation of the applicant's right to continue its non-gaming business on the
premises shared by a gaming enterprise. The finding of suitability thus constitutes a form of
acquittal from whatever suspicions prompted the investigation. It leaves the suitable
business in no better position than its non-gaming neighbors who remain impliedly suitable
until such time as they might be called forward under the statute to justify their continued
suitability. Indeed, an applicant who has survived the suitability process has sustained
losses of time, effort and expense necessitated by the preparation and submission of a detailed
application
7
required by the gaming authorities. More importantly, however, an applicant is
subject to the payment of all investigative costs incurred by the state during the course of its
investigation. NRS 463.331.
[Headnote 19]
The combined effect of NRS 463.160(8)(a) and NRS 463.331(1) constitutes an
unreasonable and fundamentally unfair burden on those who are required to submit to the
qualifying procedures of the challenged statute. If the Commission determines that the
applicant is suitable, this simply means that the applicant is free of gaming involvement or
impact and entitled to continue its non-gaming business on the same premises as a gaming
establishment. The net effect to the non-gaming, suitable business could be financial
decimation. We are thus faced with a situation where non-gaming applicants may be forced to
underwrite their own financial demise even though they are totally free of gaming
involvement. It is one thing to charge investigatory costs to those who are seeking licensure
in the gaming industry; it is altogether different to subject one who, at least ostensibly, has no
relationship to gaming beyond that of sharing space with a gaming enterprise, to potentially
prohibitive costs of investigation as a condition precedent to the continuance of a non-gaming
business. To impose such costs on non-gaming applicants is unreasonable and beyond the
legitimate public purposes of the law. It is an impermissible extension of the police power to
predicate a non-gaming applicant's economic survival upon an ability or willingness to
underwrite the costs of investigation.
____________________

7
The magnitude of the application is illustrated by the following requested information: Personal History
Record (personal, marital, family, military, residence, employment and arrest information); and Invested Capital
Questionnaire (detailed statement of all assets and liabilities).
98 Nev. 412, 425 (1982) State of Nevada v. Glusman
extension of the police power to predicate a non-gaming applicant's economic survival upon
an ability or willingness to underwrite the costs of investigation. There is no essential
symbiosis between NRS 463.160(8)(a) and NRS 463.331(1). The right to investigate under
the former need not depend on the discriminatory subvention of the latter. It is not within the
scope or purpose of gaming control to selectively impose on non-gamers the financial burden
of gaming enforcement.
It is unavailing to argue that since the costs of investigation may be waived by the
Commission
8
no harm may in fact result from the cost assessment potential under NRS
463.331(1). A selective waiver of costs would serve to intensify the arbitrary and
discriminatory effect of the provision. We accordingly hold that the combined effect of the
aforementioned statutes is an unreasonable intrusion on the private rights of appellants and
others similarly situated. See In re Kading, 235 N.W.2d 409 (Wis. 1975). Consequently, we
declare that part of NRS 463.331(1) which assesses costs to applicants for findings of
suitability an invalid and excessive use of the police power of the state.
[Headnotes 20, 21]
Appellants insist that the district court erred in construing the statutory phrase, associated
with a gaming enterprise, to include them since they are assertedly not rationally tied to
gaming. We disagree. The words of a statute should be construed, if reasonably possible, so
as to accommodate the statutory purpose. Malat v. Riddell, 383 U.S. 564 (1966); Cummings
v. City of Las Vegas Municipal Corp., 88 Nev. 479, 499 P.2d 650 (1972). It is manifestly
clear that the statute would be shorn of any meaningful purpose if it were held to apply only
to those who were overtly associated in the gaming industry. Such persons or associates
would require gaming licenses and would be subjected to investigation incidental thereto,
thereby rendering NRS 463.160(8)(a) completely redundant. On the other hand, it poses no
threat to reason to view the phrase associated with in the context of a spatial relationship or
association, i.e., a joining together in the use of the entire space referred to in the statute as
the premises. Such a connotation is consonant with the legislative history of the statute as
contained in the record, and promotes the legitimate purposes of the legislation.
[Headnotes 22, 23]
Appellants next assert that NRS 463.160(8)(a) violates their constitutional right to
privacy.
____________________

8
Gaming Commission Regulation 4.070(8) provides that:
the board may, in its discretion, waive payment of an investigative fee or cost.
98 Nev. 412, 426 (1982) State of Nevada v. Glusman
constitutional right to privacy. We hold, however, that the legislature had a compelling
interest in subjecting persons and businesses engaged in commerce and sharing space with
gaming establishments to selective investigation and a finding of suitability. Such an interest
is more than sufficient to sustain the statute in the face of a constitutional challenge based
upon invasion of privacy assertions. Plante v. Gonzales, 575 F.2d 1119 (5th Cir. 1978). A
person or entity voluntarily situated and doing business within such proximity of gaming
establishments cannot override legitimate government control mechanisms by invoking a
superior right of privacy. To do so would substantially frustrate the state's capacity to regulate
the gaming industry. Furthermore, appellants' claim that disclosure of financial information
violates their right to privacy is also unfounded since any financial information obtained from
appellants in the investigative process is confidential and immune from public disclosure by
law. NRS 463.120(4). Any invasion of appellants' privacy is minimal and therefore
constitutionally permissible. Whalen v. Roe, 429 U.S. 589 (1977).
[Headnotes 24-26]
We next turn to the argument that NRS 463.160(8)(a) impairs appellants' contract rights
without just compensation. This contention immediately fails as to the Stardust shop because
the lease under which appellants maintain their business expressly covers the possibility of a
suitability determination and termination of the lease in the event of denial. In any event, it is
well established that the police power concerns of public health, safety and welfare may be
invoked where reasonably necessary to control even contractually vested rights antecedent to
regulating legislation without running afoul of the impairment of contracts clause of the state
and federal constitutions. Koscot Interplanetary, Inc. v. Draney, 90 Nev. 450, 530 P.2d 108
(1974). It is equally settled that vested rights in a given profession or calling may be made
subject to licensing or qualification enactments post dating such rights without running afoul
of the impairments clause. Collins v. Texas, 233 U.S. 288 (1912). Here appellants enjoy
whatever advantages exist in doing business in juxtaposition with gaming establishments.
That spatial relationship will not be impaired if appellants are operating according to the laws
of this state. We may not presume that a finding of suitability will be denied appellants if
their business is consistent with their representations in this action. We accordingly hold that
appellants have suffered no impairment of contracts as a result of the challenged statute.
98 Nev. 412, 427 (1982) State of Nevada v. Glusman
[Headnote 27]
Appellants' claim that NRS 463.160(8)(a) impairs their right to hold specific employment
is also without merit. A finding of unsuitability by the Commission would not prevent
appellants from engaging in the retail clothing business. It would only affect appellants' right
to maintain their businesses in conjunction with gaming establishments at particular
locations. This is not constitutionally prohibited. Cafeteria and Restaurant Workers Union v.
McElroy, 367 U.S. 886 (1961). Given the apparent extent of appellants' investments in their
long-standing retail businesses, we are not suggesting, however, that appellants' interests are
not substantial. Still, the public welfare far transcends any interest on the part of appellants to
retain their existing locations. We are not unmindful, however, of the obvious differences
between one who seeks and is denied a gaming license and one who, after investing
substantial time and money in business locations held under lease, is thereafter found
unsuitable to continue with such businesses. We trust the state will be equally mindful of
such differences. State of Nevada v. Rosenthal, 93 Nev. 36, 559 P.2d 830 (1977). In any
event, under the worst scenario, appellants would not be foreclosed from continued retail
operations at non-gaming locations, and their existing shops presumably could be sold.
[Headnote 28]
Lastly, appellants complain of a discriminatory application of NRS 463.160(8)(a) in
violation of the equal protection clauses of our state and federal constitutions. Appellants
argue that they have been singled out of a large class and, unlike the remainder of the class,
subjected to a determination of suitability. This argument is unsound. All members of the
class to which the statute is directed are subject to the requirement of a suitability
determination. It is of no constitutional moment that appellants have been ordered to apply
for a determination of suitability whereas others within the class have not. We have
previously upheld the discretionary power of the Commission. State v. Rosenthal, supra.
Gaming control would be intolerably burdened if selective investigation were disallowed. The
statutory scheme provides a basis for requiring suitability determinations when, for whatever
reason, gaming authorities have concern over the activities of those who share space with
gaming establishments. The power to confirm or allay such concerns through selective
investigation and qualification represents an important aspect of control which the legislature
has deemed to be vital to the maintenance of our gaming economy.
98 Nev. 412, 428 (1982) State of Nevada v. Glusman
We hold that the class created by NRS 463.160(8)(a) is reasonable and necessary to the
fulfillment of a legitimate legislative purpose and that the statute does not discriminate
against appellants.
Appellants have attempted to raise issues in their reply brief which were not asserted in the
district court or in their opening brief. These we decline to consider. Phillips v. Mercer, 94
Nev. 279, 579 P.2d 174 (1978); Feldman v. State of Nevada, 96 Nev. 614, 615 P.2d 238
(1980).
Other issues raised on appeal but not discussed in this opinion have been determined to be
without merit.
For the reasons above stated, we affirm as qualified, the decision of the district court in
holding that NRS 463.160(8)(a) is constitutional (Case No. 13217), but we reverse as to the
district court's jurisdiction to enjoin its enforcement (Case No. 12946).
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., concur.
____________
98 Nev. 428, 428 (1982) State v. Barr
THE STATE OF NEVADA, Appellant, v.
DOUGLAS BARR, Jr., Respondent.
No. 14032
September 30, 1982 651 P.2d 649
Appeal from pretrial order granting respondent's motion to suppress evidence, Eighth
Judicial District Court, Clark County; Carl J. Christensen, Judge.
State appealed from an order of the district court granting defendant's motion to suppress
evidence as the product of an illegal search. The Supreme Court held that where police officer
observed through binoculars objects held in defendant's open hand while defendant stood in a
public alleyway, officer was where he had a right to be when he made the observation, and
had first observed defendant with his naked eye from his patrol car on a public street, officer's
use of binoculars to enhance his view did not convert his unobjectionable observation of
defendant into a prohibited search.
Reversed and remanded.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
James Tufteland, Deputy District Attorney, Clark County, for Appellant.
98 Nev. 428, 429 (1982) State v. Barr
Morgan D. Harris, Public Defender, Xavier Gonzales, Deputy Public Defender, Clark
County, for Respondent.
Searches and Seizures.
Where police officer observed through binoculars objects held in defendant's open hand while defendant
stood in a public alleyway, officer was where he had a right to be when he made the observation, and had
first observed defendant with his naked eye from his patrol car on a public street, officer's use of binoculars
to enhance his view did not convert his unobjectionable observation of defendant into a prohibited search.
U.S.C.A.Const. Amend. 4.
OPINION
Per Curiam:
The state has appealed from a district court order granting respondent Barr's motion to
suppress evidence as the product of an illegal search. On June 15, 1982, this court exercised
its discretionary powers under NRS 177.015(2) and entertained this appeal. We reverse and
remand.
The incident giving rise to this case occurred on September 22, 1981. While cruising in his
patrol car, a member of the Las Vegas Metropolitan Police Department observed Barr in a
public alleyway talking to another individual. The officer was familiar with the vicinity and
was aware of previous incidents of drug transactions and slot cheating in the area. The police
officer became suspicious that a drug transaction was underway. He parked his vehicle,
walked back to the alleyway and, with the aid of binoculars, saw Barr display metal slugs to
his companion in his upturned hand. The officer was no more than seventy-five feet from
Barr when he saw the slugs. Barr then entered a casino abutting the alleyway. The officer
followed him, and Barr was arrested for possession of a cheating device. NRS 465.080.
Barr argued in his motion to suppress, and the judge agreed, that such binocular-enhanced
surveillance was an unreasonable search in violation of his Fourth Amendment rights and that
the fruits of that search could not be introduced against him. We disagree.
What a person knowingly exposes to the public is not a subject of Fourth Amendment
protection. Katz v. United States, 389 U.S. 347, 351 (1967); cf. Casey v. State, 87 Nev. 413,
488 P.2d 546 (1971) (open field). This rationale has been applied to public places, or readily
observable private places, despite the use by police of vision-enhancing devices. E.g., United
States v. Minton, 488 F.2d 37 (4th Cir. 1973), cert.
98 Nev. 428, 430 (1982) State v. Barr
denied, 416 U.S. 936 (1974) (view of outside of building and vehicle on private property
from embankment); United States v. Loundmannz, 472 F.2d 1376 (D.C. Cir. 1972), cert.
denied, 410 U.S. 957 (1973) (view of public street from building); United States v. Grimes,
426 F.2d 706 (5th Cir. 1970) (view of loading of automobile from field belonging to another);
People v. Vermouth, 116 Cal.Rptr. 675 (Ct.App. 1974) (view of marijuana from neighbor's
yard); People v. Spinelli, 315 N.E.2d 792 (N.Y. 1974) (view of trucks on private property
from golf course).
In the instant case, the police officer observed objects held in Barr's open hand while Barr
stood in a public alleyway. The officer was where he had a right to be, and had first observed
Barr with his naked eye from his patrol car on a public street. The officer's use of binoculars
to enhance his view did not convert his unobjectionable observation of Barr into a prohibited
search. See United States v. Allen, 633 F.2d 1282, 1290-91 (9th Cir. 1980), modified on other
grounds, 675 F.2d 1373 (9th Cir. 1980), cert. denied, 454 U.S. 833, 102 S.Ct. 133 (1981);
People v. Vermouth, 116 Cal. Rptr. 675 (Ct. App. 1974); State v. Holbron, 648 P.2d 194, 197
(Hawaii 1982).
The order granting the motion to suppress is reversed, and the case is remanded to district
court for further proceedings.
____________
98 Nev. 430, 430 (1982) Sheriff v. Menendez
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
ARTURO MENENDEZ, Respondent.
14028
September 30, 1982 651 P.2d 98
Appeal from an order granting pretrial petition for writ of habeas corpus and dismissing
indictment, Eighth Judicial District Court, Clark County; Robert G. Legakes, Judge.
The state appealed from an order of the district court granting defendant's pretrial petition
for writ of habeas corpus and dismissing an indictment charging drug-related offenses. The
Supreme Court held that evidence that five continuances were obtained was insufficient to
establish that prosecution exhibited conscious indifference toward defendant's rights where
all but two continuances were pursuant to stipulation, last continuance was at defendant's sole
request, and only the first continuance was obtained over defendant's objection.
Reversed and remanded.
98 Nev. 430, 431 (1982) Sheriff v. Menendez
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
Clark County, for Appellant.
Frank J. Cremen, Las Vegas, for Respondent.
1. Criminal Law.
Whether prosecution has displayed conscious indifference toward accused's rights is factual
determination.
2. Criminal Law.
To support finding that prosecution displayed conscious indifference to accused's rights, accused need
not demonstrate that conduct being challenged occurred intentionally or as result of calculated bad faith.
3. Criminal Law.
Evidence that five continuances of preliminary hearing were obtained was insufficient to establish that
prosecution had displayed conscious indifference to defendant's rights such that defendant was entitled to
dismissal of indictment where all but two continuances were pursuant to stipulation, last continuance was
on defendant's sole request, and only the first continuance was obtained by state over defendant's objection.
OPINION
Per Curiam:
Respondent was arrested for alleged drug-related offenses on February 23, 1981. A
preliminary hearing was scheduled immediately, but, as a result of numerous continuances,
no preliminary hearing was ever held.
On February 11, 1982, respondent was indicted on four counts by a grand jury.
Respondent subsequently sought and obtained in district court a permanent writ of habeas
corpus and a dismissal of the indictment. This appeal followed.
Respondent's principal contention in support of his petition to the district court was that
prior to obtaining the indictment against him, the state had exhibited a conscious indifference
toward his rights. Respondent based this contention on the fact that five continuances of the
preliminary hearing were granted.
[Headnotes 1-3]
Whether the prosecution has displayed conscious indifference is a factual determination.
To support such a finding, a defendant need not demonstrate that the conduct being
challenged occurred intentionally or as a result of calculated bad faith. State v. Lamb, 97 Nev.
609, 637 P.2d 1201 (1981). However, the dereliction must be greater than what the record
shows here. Although five continuances were obtained, all but two were pursuant to
stipulation. The last continuance was at respondent's sole request, and only the first
continuance was obtained by the state over respondent's objection.1
98 Nev. 430, 432 (1982) Sheriff v. Menendez
respondent's sole request, and only the first continuance was obtained by the state over
respondent's objection.
1

The record in this case does not support the district court's determination that the
prosecution exhibited a conscious indifference toward respondent's rights. Accordingly, we
reverse the order of the district court granting the pretrial petition for a writ of habeas corpus,
and we remand the case to the district court with directions to reinstate the indictment.
2

____________________

1
Respondent does not contend that the prosecution obtained any of the stipulations through misrepresentation.

2
Respondent cited three additional grounds in support of his habeas corpus petition. Although the district
court did not state on which grounds it relied in dismissing the indictment, we have determined that the
additional grounds are also without merit.
____________
98 Nev. 432, 432 (1982) Ellison v. Armstrong
CLYDE R. ELLISON, Appellant, v. BRYN ARMSTRONG, Chairman, Nevada Parole
Commissioners, Respondent.
No. 13381
September 30, 1982 651 P.2d 99
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 petitioner was not entitled to appointment of counsel at
formal parole revocation hearing, and failure to provide him with attorney did not constitute
violation of his right to due process.
Affirmed.
J. Gregory Damm, State Public Defender, Michael K. Powell, and John C. Lambrose,
Special Deputy Public Defenders, Carson City, for Appellant.
Richard H. Bryan, Attorney General, and Thomas P. Wright, Deputy Attorney General,
Carson City, for Respondent.
Constitutional Law; Pardon and Parole.
Petitioner was not entitled to appointment of counsel at formal parole revocation hearing, and failure to
provide him with attorney did not constitute violation of his right to due process, where petitioner failed to
present colorable claim that he did not commit crime and suffer conviction which served as basis for
revocation proceedings. U.S.C.A.Const. Amend. 14.
98 Nev. 432, 433 (1982) Ellison v. Armstrong
OPINION
Per Curiam:
Appellant was convicted of attempted burglary and possession of burglary tools. While on
parole, appellant was arrested in Texas for burglary and unlawful possession of a weapon. He
subsequently pled guilty to the weapons offense. Parole revocation proceedings were initiated
in Nevada. It is undisputed that prior to the revocation hearing appellant requested
appointment of counsel. However, an attorney was not appointed. At the formal parole
revocation hearing, an inmate substitute counsel appeared on appellant's behalf. Appellant's
parole was thereafter revoked.
Appellant filed a petition for a writ of habeas corpus in the First Judicial District Court.
His primary argument was that he was denied due process because counsel was not
appointed. The petition was denied and this appeal followed.
The principal question presented for review is whether appellant was denied due process
because he was not afforded an attorney at his formal parole revocation hearing. Fairchild v.
Warden, 89 Nev. 524, 516 P.2d 106 (1973) sets forth the applicable principles for
determining whether counsel should be appointed.
1
We noted in that opinion as follows:
In Gagnon v. Scarpelli, 411 U.S. 778 (1973) . . . the United States Supreme Court
held that counsel should be provided if, the probationer . . . makes such a request [for
appointment of counsel], based on a timely and colorable claim (i) that he has not
committed the alleged violation of the conditions upon which he is at liberty; or (ii)
that, even if the violation is a matter of public record or is uncontested, there are
substantial reasons which justified or mitigated the violation and made revocation
inappropriate and that the reasons are complex or otherwise difficult to develop or
present.'
Id. at 525, 516 P.2d at 107.
The position taken by appellant at the formal parole revocation hearing was that he did not
knowingly have the weapon in his possession. Through his inmate counsel substitute,
however, appellant admitted pleading guilty to that offense in Texas. Additionally, a certified
copy of his judgment of conviction was included in the evidence presented to the parole
board. Appellant thus failed to present a colorable claim that he did not commit the crime and
suffer the conviction which served as the basis for the revocation proceedings.
____________________

1
Although Fairchild involved probation revocation, there is no distinction, for due process purposes,
between probation revocation and parole revocation. Hornback v. Warden, 97 Nev. 98, 625 P.2d 83 (1981).
98 Nev. 432, 434 (1982) Ellison v. Armstrong
the basis for the revocation proceedings. Furthermore, a review of the record indicates that
the arguments and contentions made on behalf of appellant at the formal revocation hearing
were neither complex nor difficult to develop. Therefore, pursuant to the principles set forth
in Fairchild, appellant was not entitled to the appointment of counsel under the circumstances
of this case, and the failure to provide appellant with an attorney did not constitute a violation
of his right to due process.
The other contentions raised on appeal have been considered and are without merit or were
not raised below.
The judgment of the district court is affirmed.
____________
98 Nev. 434, 434 (1982) Pasgove v. State
JAMES JOSEPH PASGOVE, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 13135
September 30, 1982 651 P.2d 100
Appeal from judgment of conviction. Eighth Judicial District Court, Clark County; Robert
G. Legakes, Judge.
Defendant was convicted in the district court of first degree kidnapping without the use of
a deadly weapon and robbery with the use of a deadly weapon, and he appealed. The Supreme
Court held that: (1) even if questions concerning the victim's willingness to take polygraph
examination and her responses thereto were error, they were harmless in view of substantial
evidence of defendant's guilt, and (2) testimony of automobile mechanic corroborating
defendant's statement to police that he possessed a knife for the purpose of cutting hoses on
air conditioning unit on his car in order to alleviate overheating was properly stricken as
irrelevant since such fact would not have precluded defendant's use of the same knife as a
weapon in the commission of the crime charged.
Affirmed.
Morgan D. Harris, Public Defender, and Robert H. Thompson, Deputy Public Defender,
Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
James N. Tufteland and Thomas Ferraro, Deputy District Attorneys, Clark County, for
Respondent.
98 Nev. 434, 435 (1982) Pasgove v. State
1. Criminal Law.
Failure to make a timely objection will preclude appellate consideration.
2. Criminal Law.
Even if questions concerning the victim's willingness to take polygraph examination and her responses
thereto were error, they were harmless in view of substantial evidence of defendant's guilt.
3. Criminal Law.
Testimony of automobile mechanic corroborating defendant's statement to police that he possessed a
knife for the purpose of cutting hoses on air conditioning unit on his car in order to alleviate overheating
was properly stricken as irrelevant since such fact would not have precluded defendant's use of the same
knife as a weapon in the commission of the crime charged. NRS 48.025.
OPINION
Per Curiam:
Appellant was convicted of first degree kidnapping without the use of a deadly weapon
and robbery with the use of a deadly weapon. We are asked to reverse the jury's verdict on the
basis of asserted error by the trial judge in rulings concerning two areas of testimony. For
reasons hereinafter specified, we reject appellant's contentions, and affirm the decision below.
At trial, during the course of direct examination, the prosecuting attorney asked the victim
if police officers had inquired as to her willingness to take a polygraph examination. The
victim responded affirmatively, stating she told the officers that she would be willing to do so
if it were necessary. Although defense counsel did not immediately object to the questioning
of the victim in regard to her willingness to take a polygraph examination, he did
subsequently move the court for a dismissal or in the alternative for a mistrial on the grounds
of prejudicial error resulting from the polygraph question. The trial court denied appellant's
motion, but did admonish the jury to disregard the victim's testimony concerning the
polygraph examination. Appellant argues that the prosecutor's polygraph question constitutes
reversible error.
[Headnote 1]
The record reflects an untimely objection by appellant's counsel to the questioning and
testimony of the victim regarding the polygraph examination. We have consistently held that
failure to make a timely objection will preclude appellate consideration. Abram v. State, 95
Nev. 352, 594 P.2d 1143 (1979); Matthews v. State, 94 Nev. 179, 576 P.2d 1125 (1978); and
Wilson v. State, S6 Nev. 320
98 Nev. 434, 436 (1982) Pasgove v. State
Wilson v. State, 86 Nev. 320, 468 P.2d 346 (1970). See also NRS 47.040.
[Headnote 2]
Furthermore, even if the polygraph questions and responses were deemed error, they are
nevertheless harmless. In view of the fact that the record reflects substantial evidence of
appellant's guilt, it is apparent that a conviction would have resulted even if error had not
been committed. Therefore, reversal is not warranted. Sanders v. State, 96 Nev. 341, 609 P.2d
324 (1980); Hendee v. State, 92 Nev. 669, 557 P.2d 275 (1976).
[Headnote 3]
Appellant also asserts as error the striking of testimony by an automobile mechanic who
was familiar with appellant's car. Appellant sought to have the mechanic corroborate
appellant's statement to the police that he possessed a knife for the purpose of cutting the
hoses on the air conditioning unit of his car in order to alleviate overheating. The mechanic
testified that it would be possible to relieve the problem of overheating by cutting either a belt
or a hose. We sustain the decision of the trial court striking this testimony as being irrelevant.
Only evidence which is relevant is admissible. NRS 48.025. Relevant evidence is defined
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.
NRS 48.015. Although the mechanic's testimony may have verified the appellant's statement
as to his reason for possessing the knife, the testimony is not relevant to whether the appellant
committed the crimes charged. Even if the appellant had used the knife to make repairs on his
automobile, that fact would not have precluded his use of the same knife as a weapon in the
commission of the crime charged. Accordingly, the exclusion of the mechanic's testimony
was not error.
Additional issues raised by appellant are without merit and need not be discussed.
The judgment of conviction is affirmed.
____________
98 Nev. 437, 437 (1982) Hughes v. State
KENNETH EDWARD HUGHES, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 13758
October 1, 1982 651 P.2d 102
Appeal from judgment of conviction upon a jury verdict. Sixth Judicial District Court,
Pershing County; Llewellyn A. Young, Judge.
Defendant was convicted in the district court of first degree kidnapping, robbery with
deadly weapon and grand larceny, and he appealed. The Supreme Court held that, although
the trial court erred in limiting defendant's cross-examination of an accomplice regarding the
accomplice's expectations of leniency, the error was harmless beyond a reasonable doubt.
Affirmed.
Thomas E. Perkins, Winnemucca, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Richard A. Wagner, District Attorney,
Pershing County, for Respondent.
1. Witnesses.
Criminal defendant has right to cross-examine accomplice thoroughly as to latter's bias or motives in
testifying, and judge's discretion to limit cross-examination in this area is limited. U.S.C.A.Const. Amend.
6.
2. Witnesses.
Right to cross-examine accomplice thoroughly as to accomplice's bias or motives in testifying
encompasses not only right to inquire about plea bargains or promises of leniency, but also right to ask
witness about his hopes for lenient treatment. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Confrontation clause of Sixth Amendment protects right to cross-examine witnesses extensively
concerning possible bias. U.S.C.A.Const. Amend. 6.
4. Witnesses.
In prosecution for kidnapping, robbery with deadly weapon and grand larceny, trial court erred in
foreclosing cross-examination of accomplice regarding accomplice's expectations of leniency.
U.S.C.A.Const. Amend. 6.
5. Criminal Law.
Although trial court erred in limiting defendant's cross-examination of accomplice regarding accomplice's
expectations of leniency, error was harmless beyond a reasonable doubt given defense counsel's admission
of defendant's guilt of stealing car, prior testimony of another witness which was corroborated in every
essential respect by accomplice's testimony and fact that accomplice's credibility was placed squarely
before jury. U.S.C.A.Const. Amend. 6.
98 Nev. 437, 438 (1982) Hughes v. State
OPINION
Per Curiam:
A jury found Kenneth Edward Hughes guilty of first degree kidnapping, robbery with a
deadly weapon and grand larceny. He seeks a new trial on the grounds that the trial judge
committed reversible error in limiting his cross-examination of an accomplice. We agree that
the court erred in limiting the examination, but we hold that the error was harmless beyond a
reasonable doubt, and therefore affirm.
THE FACTS
The victim of the crime, Elmer R. Morris, testified that he picked up Hughes and another
hitchhiker, Peter John McIntyre, late in the afternoon while traveling from Sparks, Nevada to
Winnemucca. He further testified that after a brief roadside stop, Hughes told him that he was
taking over, showed him a knife, and ordered him into the rear seat. Hughes then drove the
car up a canyon, dropped Morris off, and left with McIntyre, taking the car and approximately
$350.00 from Morris' billfold. Hughes and McIntyre were apprehended in the car the
following day.
McIntyre's testimony at trial essentially corroborated Morris' testimony. On
cross-examination, McIntyre admitted telling an inmate at the county jail that there had been
no robbery or kidnapping, but only a theft of the car. Another inmate testified that McIntyre
had told him that he and Hughes had stolen a vehicle and they had done nothing else they
were charged with. The inmate further testified that McIntyre subsequently had even denied
taking the car, and had said that he was giving evidence for the state to get out of trouble a
little further. McIntyre admitted that he first corroborated Morris' story only after hearing
Morris testify at the preliminary hearing.
At the time of Hughes' trial, McIntyre had been certified a juvenile and transferred to the
juvenile division of the district court. The prosecutor had opposed the certification. Hughes'
counsel attempted to show that McIntyre had changed his story concerning the robbery and
kidnapping in the hope of receiving more favorable treatment as a juvenile. The district judge
did not permit Hughes' counsel to question McIntyre as to whether McIntyre believed he
would avoid imprisonment by his certification as a juvenile. In essence, the judge stated that
because McIntyre might or might not be sent to the Nevada Training Center, which was
equivalent to imprisonment, the question called for a speculative and misleading answer.
98 Nev. 437, 439 (1982) Hughes v. State
called for a speculative and misleading answer. The judge did allow Hughes' counsel to elicit
McIntyre's juvenile status and argue it to the jury, and raised no bar to other questions
concerning bias, motivation or credibility.
THE DISTRICT COURT ERRED IN RESTRICTING
CROSS-EXAMINATION
[Headnotes 1-3]
A criminal defendant has a right to cross-examine an accomplice thoroughly as to the
latter's bias or motives in testifying, and the judge's discretion to limit cross-examination in
this area is limited. Eckert v. State, 96 Nev. 96, 605 P.2d 617 (1980); Bushnell v. State, 95
Nev. 570, 599 P.2d 1038 (1979). See Burr v. Sullivan, 618 F.2d 583 (9th Cir. 1980); United
States v. Bagsby, 489 F.2d 725 (9th Cir. 1973). This right of cross-examination encompasses
not only the right to inquire about plea bargains or promises of leniency, but also the right to
ask the witness about his hopes for lenient treatment. Bushnell v. State, supra. The
confrontation clause of the Sixth Amendment protects the right to cross-examine witnesses
extensively concerning possible bias. Davis v. Alaska, 415 U.S. 308 (1974).
[Headnote 4]
Although the record here provides few nuances, the district judge in the instant case
apparently prevented Hughes' counsel from inquiring into McIntyre's expectations of
leniency. The judge sustained the state's objection to the question concerning the likelihood of
imprisonment only after hearing Hughes' counsel explain his desire to reveal McIntyre's
beliefs about the likelihood of imprisonment. Thus, appellant was not given a full opportunity
to test McIntyre's motives or argue them to the jury, and the jury did not receive the benefit of
a fact which may have colored McIntyre's testimony. See Bushnell v. State, supra. While the
actual probability that McIntyre might suffer incarceration may have been speculative, his
expectations or hopes of leniency in the upcoming juvenile proceeding were relevant to his
motives for testifying, and hence his credibility. The district judge therefore erred in
foreclosing this line of questioning.
THE ERROR WAS HARMLESS
[Headnote 5]
Although the district judge erred in limiting appellant's cross-examination of McIntyre, we
are convinced that the error was harmless beyond a reasonable doubt.
98 Nev. 437, 440 (1982) Hughes v. State
was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967).
Hughes' counsel freely admitted during oral argument that his client was guilty of stealing the
car. Morris testified in detail about Hughes' conduct, and was extensively cross-examined as
to whether he had any motive to fabricate a story to support additional charges of robbery and
kidnapping. McIntyre's testimony corroborated Morris' in every essential respect. Through
McIntyre's multiple prior inconsistent statements, the admission that he corroborated Morris'
story only after the preliminary hearing, and the revelation of his juvenile status, McIntyre's
credibility was placed squarely before the jury. The record in this case leads us to conclude
that the error in restricting appellant's cross-examination of McIntyre was harmless beyond a
reasonable doubt, and does not require reversal. We therefore affirm.
____________
98 Nev. 440, 440 (1982) Jeep Corp. v. District Court
JEEP CORPORATION and AMERICAN MOTORS CORPORATION, Petitioners, v.
SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR
THE COUNTY OF WASHOE AND THE HONORABLE MICHAEL E. FONDI, DISTRICT
JUDGE, Respondents.
No. 14001
October 29, 1982 652 P.2d 1183
Original proceeding for a writ of prohibition or, in the alternative, mandamus.
Defendants in products liability suit sought prohibition or, in the alternative, mandamus to
vacate and expunge the entry of judgment against them. The Supreme Court, Steffen, J., held
that once a stipulation of dismissal had been signed by all the parties and filed, dismissal was
effectuated automatically without the need of judicial sanction or affirmation, and findings of
fact, conclusions of law and judgment for plaintiff issued after the dismissal were void ab
initio, a complete and total nullity without force or effect; trial judge's opinion that one
plaintiff was incompetent did not give court continuing jurisdiction, since no finding of
incompetency or order of guardianship had been entered.
Writ granted.
Erickson, Thorpe, Swainston & Cobb, and Lionel, Sawyer & Collins, Reno, for Petitioners.
98 Nev. 440, 441 (1982) Jeep Corp. v. District Court
Peter C. Neumann, and Bradley & Drendel, Reno, for Respondents.
1. Mandamus; Prohibition.
Neither mandamus nor prohibition is appropriate in face of effective alternative remedies, but each case
must be individually examined, and where circumstances reveal urgency or strong necessity, extraordinary
relief may be granted.
2. Mandamus.
Defendant, against whom judgment had been entered despite filing of stipulation of dismissal, were
entitled to writ of mandamus voiding that judgment, notwithstanding existence of other remedies in
ordinary course of law, since, until such time as judgment and related documents were declared void, they
retained at least a colorable validity which posed threat of continued mischief to defendants.
3. Stipulations.
Once stipulation of dismissal had been signed by all parties and filed, dismissal was effectuated
automatically without the need of judicial sanction or affirmation, and findings of fact, conclusions of law
and judgment for plaintiff issued after dismissal were void ab initio, a complete and total nullity without
force or effect; trial judge's opinion that one plaintiff was incompetent did not give court continuing
jurisdiction, since no finding of incompetency or order of guardianship had been entered. NRCP
41(a)(1), (a)(1)(i), (ii).
OPINION
By the Court, Steffen, J.:
Petitioners, Jeep Corporation and American Motors Corporation (defendants below), seek
prohibition or in the alternative, mandamus to vacate and expunge the entry of judgment filed
by the respondent, The Honorable Michael E. Fondi, District Judge of the respondent Second
Judicial District Court in a products liability action. The judgment was filed after a stipulation
of dismissal had been filed by the parties pursuant to NRCP 41(a)(1)(ii). We conclude that
petitioners are entitled to the relief sought.
The bench trial occurred in January, 1981, and remained under submission until the parties
filed a stipulation of dismissal at 8:40 a.m. on April 20, 1982. On the same date, at 10:20
a.m., respondents filed findings of fact, conclusions of law and judgment in the same action.
The caption of the action below referred to plaintiff William Charles Buckholt (Buckholt) by
his guardian, Patricia A. Buckholt (Patricia). Patricia, as Buckholt's wife, was also a named
plaintiff.
Buckholt sustained grave injuries while riding as a passenger in a 1976 Jeep CJ-5 vehicle
manufactured by petitioners. Patricia was appointed guardian by a Wyoming court but the
guardianship was terminated over a year prior to the trial.
98 Nev. 440, 442 (1982) Jeep Corp. v. District Court
Notwithstanding the serious head injuries suffered by Buckholt,
1
in a deposition taken in
February, 1980, Patricia indicated that Buckholt could understand and handle his own
business affairs. In any event, it is clear that the trial proceeded with all parties and the
respondent district judge being aware of the fact that Buckholt was participating at trial
without appointment of a guardian. It is equally clear that at no time during trial was an issue
raised as to Buckholt's competence. The latter question first arose only after the filing of the
stipulation of dismissal. The respondent district judge has, by affidavit filed in this Court,
opined that Buckholt is incompetent within the meaning of NRCP Rule 17(c).
2
Judge
Fondi further indicated that if, during trial, he had perceived any inadequacy in trial counsel's
representation of Buckholt, he would have appointed a guardian ad litem or issued some other
form of order protecting Buckholt's interests.
Through a series of telephone calls commencing April 13, 1982 and continuing through
the evening of April 19, 1982, counsel for the parties were made aware of the amount of the
judgment Judge Fondi intended to enter in favor of the plaintiffs, and the respondent district
judge was made aware that the parties had settled the case and did not want the respondents
to file findings of fact, conclusions of law and judgment. During these telephone
conversations, Judge Fondi learned that Buckholt's counsel had agreed to a package
settlement with petitioners' counsel which disposed of three cases arising from the same
incident, the subject action included. The fact of the package settlement, coupled with an
unawareness of the terms of settlement in the Buckholt case, caused Judge Fondi to question
whether Buckholt's interests were now being adequately protected. As a result, the respondent
district judge refused to approve or acknowledge the settlement and proceeded to accomplish
the filing of the judgment almost two hours after the parties, by signatures of their respective
counsel, filed the stipulation of dismissal.
[Headnote 1]
The threshold issue before us is whether extraordinary relief is appropriate under the
present posture of this case. Respondents suggest that petitioners have failed to show that
they do not have a plain, speedy and adequate remedy in the ordinary course of law.
____________________

1
The findings of fact filed by respondents indicate Buckholt sustained multiple skull fractures and massive
permanent damage to his brain, right foot and ankle.

2
Since many of the events relevant to this proceeding occurred subsequent to the trial of the underlying
action, we have elected to consider the uncontroverted facts supplied by affidavits and other documents
submitted by the parties in connection with this proceeding.
98 Nev. 440, 443 (1982) Jeep Corp. v. District Court
not have a plain, speedy and adequate remedy in the ordinary course of law. NRS 34.170,
34.330. It is argued that an existing district court order enjoining the further dissemination of
respondents' filings, coupled with avenues of potential relief through motion or by appeal, all
militate against the availability of the relief sought. It is true that neither mandamus or
prohibition is appropriate in the face of effective alternative remedies. Heilig v. Christensen,
91 Nev. 120, 532 P.2d 267 (1975). However, each case must be individually examined, and
where circumstances reveal urgency or strong necessity, extraordinary relief may be granted.
Shelton v. District Court, 64 Nev. 487, 185 P.2d 320 (1947).
[Headnote 2]
Petitioners have demonstrated to our satisfaction that they are entitled to the relief sought.
Until such time as respondents' judgment and related documents are declared void, they retain
at least a colorable validity which poses a threat of continuing mischief to petitioners. Copies
of the judgment have already been circulated, and insofar as the record reveals, the judgment
bears all the earmarks of a final adjudication on the merits. A substantial part of petitioners'
inducement to settle the action has been and continues to be syphoned away by the
respondents' filings in the case. The spectre of further publicity resulting from respondents'
judgment is also real and pressing. It does not evaporate by reason of the substantial adverse
publicity which has already resulted from the untoward action of respondents. We
accordingly hold, under the circumstances here present, that petitioners have shown both an
urgency and necessity of sufficient magnitude to warrant extraordinary relief.
[Headnote 3]
The primary issue posed is whether the stipulation of dismissal is effective. We hold that it
is. In pertinent part, NRCP 41(a)(1) reads as follows:
[a]n action may be dismissed by the plaintiff upon repayment of defendants' filing fees,
without order of the court . . . (ii) by filing a stipulation of dismissal signed by all
parties who have appeared in the action. (Emphasis supplied.)
Once the stipulation has been signed and filed, dismissal is effectuated automatically without
need of judicial sanction or affirmation. First National Bank of Toms River, N. J. v. Marine
City, Inc., 411 F.2d 674 (3rd Cir. 1969). This Court has previously held that the notice of
dismissal under NRCP 41(a)(1)(i) closes the file. There is nothing the defendant can do to
fan the ashes of that action into life and the court has no role to play.
98 Nev. 440, 444 (1982) Jeep Corp. v. District Court
do to fan the ashes of that action into life and the court has no role to play. This is a matter of
right running to the plaintiff and may not be extinguished or circumscribed by adversary or
court. Federal Sav. and Loan Ins. Corp. v. Moss, 88 Nev. 256, 495 P.2d 616 (1972). The
only difference between subsection (i) and subsection (ii) of the rule is that the former is a
unilateral dismissal by plaintiff before issues are joined and the latter is a stipulated dismissal
which may be filed at any time. In neither case may the court intervene or otherwise affect the
dismissal. In both instances, the action is terminated and the court is without further
jurisdiction in the matter. The language of the rule is clear.
Respondents nevertheless seek to avoid the effect of the dismissal by adverting to a
continuing jurisdiction in the action by reason of NRCP 17(c) which, in applicable part, reads
as follows:
The court shall appoint a guardian ad litem for an infant or incompetent person not
otherwise represented in an action or shall make such other order as it deems proper for
the protection of the infant or incompetent person.
It is argued that because the respondent district judge, who took no action sua sponte either
prior to or during trial with respect to competency or guardianship, is of the opinion that
Buckholt is incompetent, respondents retain jurisdiction over Buckholt and must approve any
compromise settlement of the action.
3
Such a position is untenable. The cited rule, by clear
inference, requires the court, ordinarily upon motion of a party or by its own motion, to
provide the protection of a guardian or special order by the time of the commencement of
trial. Under some unusual circumstances, the rule would undoubtedly support the invocation
of such protective measures during trial. It is even conceivable that a rare occasion could
develop where the rule would accommodate, upon motion of a party, some type of protective
order or guardianship after trial and before entry of judgment. It strains the rule beyond
reason, however, to include the present situation whereby respondents, sua sponte, and in
excess of fifteen months after trial, seek to avoid a stipulated dismissal by imposing on the
parties a retroactive, unilateral determination of incompetence.
4
And such determination was
made without a hearing, was contrary to the position of the parties, and was without
evidence of fraud or overreaching on the part of any of the parties or their counsel.
____________________

3
NRS 159.093 does require prior approval by court order of any compromise settlement of a chose in action
by a ward's guardian. In the present action, we have neither a ward nor a guardian.

4
The term determination is used advisedly. It is clear that a mere suspicion or opinion of incompetence,
never acted upon by the district court, would hardly serve as a basis for vitiating the stipulation of dismissal.
98 Nev. 440, 445 (1982) Jeep Corp. v. District Court
position of the parties, and was without evidence of fraud or overreaching on the part of any
of the parties or their counsel. Indeed, for all we know, the settlement prompting the
stipulation of dismissal may be more favorable to Buckholt than the judgment entered by
respondents.
5
In any event, if evidence surfaces which would indicate that the stipulation
was the product of deceit, or was entered into at the calculated detriment of an unadjudicated
incompetent, relief could be afforded through an appropriate proceeding or action.
In summary, since the parties duly signed and filed an effective stipulation of dismissal,
respondents' findings of fact, conclusions of law and judgment are void ab initio, a complete
and total nullity without force or effect. The jurisdiction of the respondents ended with the
filing of the stipulation of dismissal. Accordingly, we order the issuance of a peremptory writ
of mandate compelling respondents to vacate the judgment below and to expunge said
judgment together with related findings of fact and conclusions of law from the records of the
court.
Gunderson, C. J., Manoukian and Springer, JJ., and Zenoff, Sr. J.,
6
concur.
____________________

5
During oral argument, counsel for petitioners represented to this Court that the settlement was, in fact, more
favorable to Buckholt than the judgment.

6
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable John Mowbray, Justice, who voluntarily disqualified himself in this case. Nev. Const., art. 6 19;
SCR 10.
____________
98 Nev. 445, 445 (1982) Trans Western Leasing v. Corrao Constr. Co.
TRANS WESTERN LEASING CORPORATION, a Nevada Corporation, Appellant, v.
CORRAO CONSTRUCTION CO., INC., a Nevada Corporation, Respondent.
No. 13390
October 29, 1982 652 P.2d 1181
Appeal from judgment upon a jury verdict. Second Judicial District Court, Washoe
County; William N. Forman, Judge.
Appeal was taken from a judgment of the district court in favor of contractor in suit to
recover remaining monies due owner under contract for construction of warehouse. The
Supreme Court held that: (1) trial court properly admitted evidence of parties'
communications and perceptions concerning two different sets of roof specifications to aid in
interpretation of ambiguous contract term, and (2) trial court properly refused to take judicial
notice of an "admission" in contractor's superseded complaint which was inconsistent
with allegations in its complaint against owner.
98 Nev. 445, 446 (1982) Trans Western Leasing v. Corrao Constr. Co.
refused to take judicial notice of an admission in contractor's superseded complaint which
was inconsistent with allegations in its complaint against owner.
Affirmed.
Glade L. Hall, Reno, for Appellant.
John J. McCune, Michael B. Springer and Timothy E. Rowe, Reno, for Respondent.
1. Evidence.
Parol evidence is admissible to determine true intent of parties when written instrument is ambiguous.
2. Contracts.
Court may look to circumstances surrounding execution of contract and subsequent acts or declarations
of parties to interpret unclear contract provisions.
3. Evidence.
Where parties had executed standard form of agreement between owner and contractor without indicating
which specifications were meant and where nowhere did executed instrument incorporate of refer to
identifiable specifications, trial court properly admitted evidence of parties' communications and
perceptions concerning two different sets of roof specifications to aid in interpretation of ambiguous
contract term.
4. Evidence.
Trial court improperly concluded that factual allegations in superseded pleadings could not be used in
evidence, however, trial court properly refused to take judicial notice of an admission in contractor's
superseded complaint against owner where the admission was an allegation in an alternative claim for
relief that was inconsistent with the allegations in its complaint against owner. NRCP 8, 61.
OPINION
Per Curiam:
The respondent, Corrao Construction Co., Inc. (Corrao), commenced this action against
appellant, Trans Western Leasing Corporation (TWL), to recover the remaining monies due
under a contract for the construction of a warehouse. TWL counterclaimed, alleging a defect
in the installation of the roof of the warehouse. The case was tried to a jury who found in
favor of Corrao and against TWL on both the complaint and counterclaim. TWL has
appealed, asserting numerous assignments of error that we find meritless. We therefore
affirm.
THE FACTS
TWL contracted with Corrao to build a warehouse. Corrao subcontracted with Lazovich
& Lazovich, Inc., dba L & L Roofing, to install the roof.
98 Nev. 445, 447 (1982) Trans Western Leasing v. Corrao Constr. Co.
subcontracted with Lazovich & Lazovich, Inc., dba L & L Roofing, to install the roof.
Corrao completed the warehouse. TWL withheld final payment, claiming that the
warehouse roof was defective and not completed in accordance with the specifications.
Corrao then sued TWL in district court, alleging that the contract was completed and the
payment was due. Corrao also named L & L Roofing as a party defendant, alleging as an
alternate theory of recovery that the roof was defective.
TWL counterclaimed against Corrao for defective construction of the roof. Corrao then
filed an amended complaint against TWL, and this time sued L & L Roofing as a third party
defendant on indemnity grounds. Judgment was entered in favor of Corrao and against TWL
on both the complaint and the counterclaim. Because Corrao had prevailed, judgment was
entered in favor of L & L Roofing on Corrao's third party complaint. TWL appealed, naming
both Corrao and L & L Roofing as respondents. Because TWL had pressed no claim against L
& L Roofing in the district court, and Corrao did not appeal the judgment on the third party
claim, TWL's appeal as against L & L Roofing was dismissed.
THE PAROL EVIDENCE RULE
[Headnotes 1, 2]
TWL suggests that the district court erred in several respects during trial. Over TWL's
objection, the court admitted evidence of the parties' communications and perceptions
concerning two different sets of roof specifications: the Section 7A Membrane Roofing
specifications, which contemplated the use of Johns-Manville roofing materials, and the
Bird specifications, which were actually used in the construction of the roof. Both sets of
specifications had been considered prior to execution of the contract. TWL argues that the
Section 7A specifications, the John-Manville materials, were integrated into the contract, and
that admission of evidence concerning the Bird specifications therefore violated the parol
evidence rule. Parol evidence is admissible to determine the true intent of the parties when
the written instrument is ambiguous. State ex rel. List v. Courtesy Motors, 95 Nev. 103, 590
P.2d 163 (1979). The Court may look to the circumstances surrounding the execution of the
contract and the subsequent acts or declarations of the parties to interpret unclear contract
provisions. Nevada Refining Co. v. Newton, 88 Nev. 333, 497 P.2d 887 (1972); Holland v.
Crummer Corp., 78 Nev. 1, 368 P.2d 63 (1962).
98 Nev. 445, 448 (1982) Trans Western Leasing v. Corrao Constr. Co.
[Headnote 3]
In the instant case, the parties had executed AIA Document A111, the Standard Form of
Agreement Between Owner and Contractor. In the listing of Contract Documents in Article
16, the parties referred to specifications, without indicating which specifications were
meant. Nowhere does the executed instrument incorporate or refer to identifiable
specifications. There was substantial evidence that the Section 7A specifications were not
intended to be integrated into the contract. Under these circumstances, the district court
properly admitted extrinsic evidence to aid in the interpretation of the ambiguous contract
term.
Further, the evidence was admissible to show that TWL through its representatives had
actual knowledge of the use of the Bird materials throughout the construction of the roof and
that no objection was made to their use, indicating waiver. See Santino v. Glens Falls Ins.
Co., 54 Nev. 127, 9 P.2d 1000 (1932); Kushner v. Home Service Co., 267 P. 555 (Cal.App.
1928).
THE PRIOR PLEADINGS
[Headnote 4]
Appellant next contends that the district court erred by refusing to take judicial notice of
admissions in respondent Corrao's superseded complaint. The district court did err in
concluding that factual allegations in superseded pleadings could not be used in evidence. See
Peters v. Peters, 92 Nev. 687, 557 P.2d 713 (1976); Whittlesea Blue Cab Co. v. McIntosh, 86
Nev. 609, 472 P.2d 356 (1970); Las Vegas Network v. B. Shawcross, 80 Nev. 405, 395 P.2d
520 (1964); Annot., 52 ALR2d 516 (1957).
However, in the instant case, the admission in Corrao's complaint was an allegation in
an alternative claim for relief that was inconsistent with the allegations in respondent's
complaint against TWL. NRCP 8 provides for the assertion of alternative or inconsistent
claims for relief. Inconsistent allegations in alternative claims cannot be used as admissions,
for to do so would defeat the purposes of the liberal pleading provisions of NRCP 8 and
render them a trap for the unwary. Auto Fair, Inc. v. Spiegelman, 92 Nev. 656, 658, 557
P.2d 273, 275 (1976); Continental Insurance Co. of New York v. Sherman, 439 F.2d 1294
(5th Cir. 1971); Parrish v. Atchinson, Topeka and Santa Fe Ry. Co., 152 F.Supp. 158
(S.D.Cal. 1957); Sloan v. Stearns, 290 P.2d 382, 392 (Cal.App. 1955).
98 Nev. 445, 449 (1982) Trans Western Leasing v. Corrao Constr. Co.
Therefore, while the district court may have reasoned incorrectly, the ruling was not in error
and shall not be reversed. See NRCP 61; Ormachea v. Ormachea, 67 Nev. 273, 295, 217 P.2d
355 (1950).
After examining the record in this case, we conclude that appellant's other assertions of
error are without merit.
____________
98 Nev. 449, 449 (1982) Bennett v. Fidelity & Deposit Co.
J. LAMARR BENNETT and ANILDE A. BENNETT, Appellants, v. FIDELITY &
DEPOSIT COMPANY OF MARYLAND, Respondent.
No. 13568
October 29, 1982 652 P.2d 1178
Appeal from judgment, Eighth Judicial District Court, Clark County; Carl J. Chiristensen,
Judge.
Appeal was taken from a judgment of the district court in favor of contractor's surety for
amount retained by owners under construction contract. The Supreme Court held that default
judgment owners obtained against contractor did not foreclose contractor's surety from
collecting, by way of its right of subrogation, amount retained by owners under contract.
Affirmed.
Nitz & Schofield, James H. Walton, Las Vegas, for Appellants.
Jack J. Pursel, Las Vegas, for Respondent.
1. Judgment.
Default judgment owners obtained against contractor did not foreclose contractor's surety from
collecting, by way of its subrogation right, amount retained by owners under contract to be paid after final
inspection and issuance of lien waivers to owners, because default judgment dealt only with contractor's
mechanics' lien and its claims for extras and had nothing whatsoever to do with amount retained by owners
pursuant to contract.
2. Judgment.
Party raising doctrine of res judicata has burden of proving that subject matter in former suit was
identical with that now before court.
3. Judgment.
Default judgment owners obtained against contractor did not foreclose, on basis of res judicata or
collateral estoppel, contractor's surety from collecting, by way of its subrogation right, amount retained
by owners under contract to be paid after final inspection and issuance of lien
waivers to owners, because default judgment against contractor involved only
validity of mechanics' lien and claim for extras, so that there was never a final
judgment on the merits adjudicating the rights of the parties to retained amount.
98 Nev. 449, 450 (1982) Bennett v. Fidelity & Deposit Co.
retained by owners under contract to be paid after final inspection and issuance of lien waivers to owners,
because default judgment against contractor involved only validity of mechanics' lien and claim for extras,
so that there was never a final judgment on the merits adjudicating the rights of the parties to retained
amount.
4. Set-Off and Counterclaim.
Claim must have matured before it will be subject to compulsory counterclaim rule. NRCP 13(a).
5. Set-Off and Counterclaim.
Where not all of lien claims had been satisfied at time of action by owners against contractor, which
disposed of contractor's claim for extras and mechanics' lien, contractor's surety could not have made a
claim to amount retained by owners under the contract, and therefore subsequent action by surety to obtain
the retained amount was not barred by compulsory counterclaim rule. NRCP 13(a).
OPINION
Per Curiam:
This appeal results from a judgment awarding $9,428 to respondent under a construction
contract. We affirm.
In 1975, appellants entered into a contract with Benefield Construction Company, Inc.
(Benefield), wherein Benefield agreed to build a Pizza Inn Restaurant for the sum of $94,280.
The agreement provided for a 10 percent retainage of the contract price ($9,428), to be paid
after final inspection and the issuance of lien waivers to appellants. In addition, respondent
Fidelity & Deposit Company of Maryland (Fidelity) and Benefield entered into a labor and
material payment bond as well as a performance bond. Both of these bonds inured to the
benefit of appellants to assure that all claims for labor and material would be paid and that the
contract would be performed.
By December, Benefield had substantially performed its obligations under the construction
contract. However, a dispute arose between Bennett and Benefield as to the total amount of
the latter's entitlement. Benefield claimed, and appellants denied, that an additional
$22,716.44 was owed for extras. Benefield thereafter filed a mechanic's lien against the
property for the cost of the extras. Several subcontractors also filed mechanic's liens against
appellants' property for sums they insisted were due them but had not been paid by Benefield.
Eventually one of the subcontractors brought an action against Benefield and Bennett
alleging non-payment for goods supplied. Appellants filed their answer together with a third
party complaint against Fidelity. Appellants also cross-claimed against Benefield for
indemnity and to have Benefield's claims for the extras as well as its mechanic's lien declared
to be discharged and released.
98 Nev. 449, 451 (1982) Bennett v. Fidelity & Deposit Co.
Appellants obtained a default judgment against Benefield which disposed of the claim for
extras and the mechanic's lien. In addition, the district court awarded appellants $4,000 in
attorney's fees. Thereafter, Fidelity continued to pay and discharge all lien claims against the
property, the last of which was not satisfied until 1979. After the lien claims were resolved,
and without knowledge of the $4,000 judgment, Fidelity made an offer of judgment in the
amount of $1,878.95 to cover appellants' attorney's fees. The offer was accepted by
appellants. Fidelity paid the $1,878, and then demanded the 10 percent retainage of $9,428
held by appellants. After appellants refused to relinquish the money, Fidelity brought suit to
recover the retained amount. The district court entered judgment against appellants for the
entire amount of the retainage.
On appeal, appellants contend that Fidelity is foreclosed from collecting the retainage by
reason of the default judgment entered against Benefield. It is further argued that any claim
for the 10 percent is barred by the doctrines of res judicata and collateral estoppel and should
have been brought as a compulsory counterclaim in the prior action between the parties.
Appellants' positions are without merit.
[Headnote 1]
Appellants' argument, that the default judgment entered against Benefield adjudicated any
claim that Benefield, and, by right of subrogation, Fidelity, had against appellants for the
retained amount, is not supported by the record. Our review of the record reflects that the
default judgment dealt only with Benefield's mechanic's lien and its claim for $22,000 worth
of extras. The default judgment had nothing whatsoever to do with the amount retained by
appellants pursuant to the written contract. We conclude, therefore, that Fidelity is entitled to
the amount retained by appellants since the subrogation right attaches to retained percentages.
A surety who completes a contract or satisfies the claims of laborers and materialmen has
established a subrogation right to all funds, progress payments, or retained percentages, which
are in the hands of the contractee. Reliance Insurance Co. v. Alaska State Housing
Authority, 323 F.Supp., 1370, 1373 (D.C.Alaska 1971). In addition, if we were to accept
appellants' argument, appellants would be unjustly enriched in that they have already accepted
the completed building without having paid 10 percent of the contract price. Since equitable
principles apply to subrogation, we cannot permit such enrichment. See, May Trucking Co. v.
International Harvester Co., 543 P.2d 1159 (Idaho 1975).
[Headnotes 2, 3]
Appellants also contend that Fidelity's claim for the retained 10 percent is barred by the
doctrines of res judicata and collateral estoppel.
98 Nev. 449, 452 (1982) Bennett v. Fidelity & Deposit Co.
10 percent is barred by the doctrines of res judicata and collateral estoppel. Bernhard v. Bank
of America Nat. Trust & Sav. Ass'n, 122 P.2d 892 (Cal. 1942), is a landmark case on the
doctrine of res judicata. We approved the Bernhard decision for Nevada in the case of
Paradise Palms v. Paradise Homes, 89 Nev. 27, 505 P.2d 596 (1973), cert. denied, 414 U.S.
865 (1973). In the latter case, we held that the Bernhard decision is equally applicable to the
doctrine of collateral estoppel.
In Bernhard, Justice Traynor stated:
In determining the validity of a plea of res judicata three questions are pertinent: Was
the issue decided in the prior adjudication identical with the one presented in the action
in question? Was there a final judgment on the merits? Was the party against whom the
plea is asserted a party or in privity with a party to the prior adjudication?
Here appellants have not satisfied the Bernhard test in that the issue decided in the prior
action is not identical with the issue before this Court. As noted above, the default judgment
against Benefield involved only the validity of the mechanic's lien and the claim for $22,000
worth of extras upon which it was based. There was never a final judgment on the merits
adjudicating the rights of the parties as to the retained amount. The party raising the doctrine
of res judicata has the burden of proving that the subject matter in the former suit was
identical with that now before the court. Sweet v. Sweet, 49 Nev. 254, 243 P. 817 (1926). In
the instant case, appellants have not met the burden, thus Fidelity's claim for the retained 10
percent is not barred by the doctrines of res judicata and collateral estoppel.
[Headnotes 4, 5]
Additionally, at the time Fidelity filed its answer in the former case, its claim for the
retained amount had not matured. Under the terms of the written contract, the final 10 percent
of the contract price would not be paid until all lien claims had been satisfied. At the time of
the prior action, all lien claims had not been satisfied. Therefore, the claim to the retained
amount arose subsequent to the former suit. 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. Round Hill Gen. Improvement v. B-Neva, 96 Nev.
181, 606 P.2d 176 (1980).
Having concluded that any claim for the retained amount had not as yet matured at the
time of the earlier action, we also reject appellants' contention that the present action is barred
by NRCP 13{a).1 The general rule is that a claim must have matured before it will be
subject to the compulsory counter-claim rule.
98 Nev. 449, 453 (1982) Bennett v. Fidelity & Deposit Co.
by NRCP 13(a).
1
The general rule is that a claim must have matured before it will be subject
to the compulsory counter-claim rule. O'Brien v. Scottsdale Discount Corporation, 482 P.2d
473 (Ariz.App. 1971). Accordingly, Fidelity could not have made a claim to the retained
amount in the prior adjudication because not all of the lien claims had been satisfied.
Finally, it is argued that if Fidelity prevails on appeal, appellants should at least be entitled
to offset the $4,000 awarded in attorney's fees in the prior default judgment. Appellants fail to
cite any authority for this position. Therefore, we need not consider appellants' contention.
Plankinton v. Nye County, 95 Nev. 12, 588 P.2d 1025 (1979); Werner v. Shoshone
Coca-Cola Bottling Co., 91 Nev. 286, 535 P.2d 161 (1975). Furthermore, such a contention is
without merit since appellants accepted an offer of judgment in the sum of $1,878.95 from
Fidelity in full settlement of their claim for attorney's fees.
We affirm the lower court's judgment.
____________________

1
NRCP 13(a) provides in pertinent part:
A pleading shall state as a counterclaim any claim which at the time of serving the pleading the
pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject
matter of the opposing party's claim and does not require for its adjudication the presence of third parties
of whom the court cannot acquire jurisdiction.
____________
98 Nev. 453, 453 (1982) Poulos v. District Court
VERA POULOS, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA IN AND FOR THE COUNTY OF CLARK, THE HONORABLE
JUDGE JOHN F. MENDOZA and HENRY LOUIS ROBERTS, Respondents.
No. 14348
October 29, 1982 652 P.2d 1177
Original petition for writ of mandamus.
On petition for writ of mandamus challenging district court's denial of summary judgment,
the Supreme Court held that the petition would be denied, even though the opposition to the
summary judgment had not been supported by any affidavits or other documents where the
court could perceive no substantial issue of public policy or precedential value in the case.
Petition denied.
98 Nev. 453, 454 (1982) Poulos v. District Court
Edwards, Hunt, Pearson & Hale, Las Vegas, for Petitioner.
Galatz, Earl & Biggar, Las Vegas, for Respondents.
1. Mandamus.
Mandamus is an extraordinary remedy, and the decision as to whether a petition will be entertained lies
within the discretion of the Supreme Court.
2. Mandamus.
Burden on mandamus petitioner is a heavy one.
3. Mandamus.
Supreme Court would deny petition for mandamus challenging district court's denial of summary
judgment, even though the opposition to the summary judgment had not been supported with any affidavits
or other documents, where the court could perceive no substantial issue of public policy or precedential
value in the case. NRCP 56.
OPINION
Per Curiam:
This original proceeding in mandamus challenges the district court's order denying
petitioner's motion to dismiss, said motion having apparently been considered as a motion for
summary judgment. See NRCP 12(b). Relying on Dzack v. Marshall, 80 Nev. 345, 393 P.2d
610 (1964), petitioner contends that the district court had a mandatory duty to grant summary
judgment, and that mandamus is appropriate in this case.
Petitioner is a defendant in a personal injury action below. In that action the plaintiff
alleges that he was injured in a traffic accident involving petitioner's son, who was driving
petitioner's car. The plaintiff's theory of liability is that petitioner expressly or impliedly gave
her son permission to drive the car, and that petitioner was negligent in doing so.
In support of her motion to dismiss and for summary judgment, petitioner filed an affidavit
in which she claimed that she neither expressly nor impliedly gave her son permission to
drive the car. Plaintiff opposed the motion, but did not support the opposition with any
affidavits or other documents as required by NRCP 56. The district court denied petitioner's
motion, and this petition followed.
1
We held in Dzack that mandamus is an appropriate
remedy for the review of a district court's denial of summary judgment.
____________________

1
The petition for writ of mandamus was not accompanied by a copy of the district court's order, as required
by NRAP 21(a), and the petition was not accompanied by the affidavit or verification of the party beneficially
interested. See NRS 34.170; State of Nevada v. Wright, 10 Nev. 167 (1875).
98 Nev. 453, 455 (1982) Poulos v. District Court
We held in Dzack that mandamus is an appropriate remedy for the review of a district
court's denial of summary judgment. Our decision in Dzack, however, was never intended to
mean that we would review every denial of summary judgment which came before us.
Indeed, both the majority and the concurring opinions in Dzack referred to the specific and
compelling circumstances of that case, where plaintiff's judicial admissions made it clear that
her claim was a sham, and where the district court simply had no discretion to rule otherwise.
In the years since Dzack we have received an increasing number of petitions arising out of
the summary judgment context. We have consistently attempted to reserve our discretion for
those cases in which there was no question of fact, and in which a clear question of law,
dispositive of the suit, was presented for our review. See Bottorff v. O'Donnell, 96 Nev. 606,
614 P.2d 7 (1980). We have also attempted to limit our discretion to those cases which
presented serious issues of substantial public policy, or which involved important
precedential questions of statewide interest. E.g., Howard v. District Court, 98 Nev. 87, 640
P.2d 1320 (1982) (scope of statutory employer immunity); Lapica v. District Court, 97 Nev.
86, 624 P.2d 1003 (1981) (medical malpractice statute of limitations); Sandler v. District
Court, 96 Nev. 622, 614 P.2d 10 (1980) (collection of gambling debts); Ash Springs Dev. v.
O'Donnell, 95 Nev. 846, 603 P.2d 698 (1979) (statute of limitations in personal injury
action); Manufacturers & Traders Trust v. Dist. Ct., 94 Nev. 551, 583 P.2d 444 (1978) (scope
of deficiency judgment statutes).
[Headnotes 1, 2]
Mandamus is an extraordinary remedy, and the decision as to whether a petition will be
entertained lies within the discretion of this court. Kussman v. District Court, 96 Nev. 544,
612 P.2d 679 (1980). The burden on the petitioner is a heavy one Bottorff v. O'Donnell,
supra. In the context of petitions which challenge denials of summary judgment, we will
continue to exercise our discretion sparingly and to limit the scope of our decision in Dzack.
[Headnote 3]
In the present case, as mentioned above, plaintiff did not support his opposition to
summary judgment with any affidavits or other documents. Under such circumstances, NRCP
56(e) provides that summary judgment, if appropriate, shall be entered against him. The
district court apparently believed that summary judgment simply was not appropriate. We
perceive no substantial issue of public policy or precedential value in this case, and we
perceive no compelling reason why our intervention by way of extraordinary writ is
warranted.
98 Nev. 453, 456 (1982) Poulos v. District Court
our intervention by way of extraordinary writ is warranted. Accordingly, we deny the petition
without ordering an answer from respondents. NRAP 21(b).
Petition denied.
2

____________________

2
Justice John Mowbray voluntarily disqualified himself from the decision in this case.
____________
98 Nev. 456, 456 (1982) County of Washoe v. District Court
COUNTY OF WASHOE, ON RELATION OF ITS OFFICE OF THE DISTRICT
ATTORNEY, NONSUPPORT DIVISION, Petitioner, v. SECOND JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE,
THE HONORABLE ROY L. TORVINEN, District Judge, Respondent, GERHARD HEINZ
WOLFF, Real Party in Interest.
No. 13585
October 29, 1982 652 P.2d 1175
Original petition for mandamus.
District attorney's office sought mandamus to compel the dismissal of an action against it.
The Supreme Court held that district attorney's office was immune from liability for making
negligent misrepresentations in administering its duties of child support enforcement since
representations made were discretionary and within scope of its authority.
Writ granted.
Erickson, Thorpe, Swainston, & Cobb, Reno, for Petitioner.
Stephens, Kosach, Knight & Edwards, Reno, for Respondent.
1. District and Prosecuting Attorneys.
Under doctrine of common law immunity, it is settled that district attorney is immune from damages for
his action and conduct arising from performance of his criminal prosecutorial function.
2. District and Prosecuting Attorneys.
Widely recognized doctrine of common law immunity of district attorneys extends to district attorney in
performance of civil obligations.
3. District and Prosecuting Attorneys.
District attorney's office was immune from liability for making negligent misrepresentations in
administering its duties of child support enforcement since representations made were discretionary and
within scope of its authority. NRS 41.032, 130.010 et seq.
98 Nev. 456, 457 (1982) County of Washoe v. District Court
OPINION
Per Curiam:
Petitioner is the defendant in a civil suit initiated by Gerhard Heinz Wolff, the real party in
interest. In that action, Wolff alleged that the Washoe County District Attorney's Office
brought a nonsupport action against him pursuant to the Uniform Reciprocal Enforcement of
Support Act (URESA), NRS ch. 130. Wolff further alleged that the petitioner provided him
with erroneous advice in administering its duties of child support enforcement under URESA.
This allegedly erroneous advice was the basis for Wolff's suit against petitioner for negligent
misrepresentation. Petitioner sought to dismiss Wolff's action on the ground that it was
immune from suit. Under the circumstances of this particular case, the district court disagreed
and denied the motion. Petitioner now seeks mandamus from this Court compelling the
district court to dismiss the action.
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. Moore v. District Court,
96 Nev. 415, 610 P.2d 188 (1980). In the case before us, we conclude that the right to
dismissal is clear and the writ must issue.
[Headnotes 1, 2]
Under the doctrine of common law immunity, it is settled that a district attorney is immune
from damages for his actions and conduct arising from the performance of his criminal
prosecutorial function. Imbler v. Pachtman, 424 U.S. 409 (1975). We believe that this widely
recognized doctrine of common law immunity also extends to the district attorney in the
performance of his civil obligations. See, Martin Hodas, East Coast Cinematics, Inc. v.
Lindsay, 431 F.Supp. 637 (S.D.N.Y. 1977). The rationale for the adoption of prosecutorial
immunity, as expressed by the Supreme Court, is that harassment by unfounded litigation
would cause a deflection of the prosecutor's energies from his public duties, and the
possibility that he would shade his decisions instead of exercising the independence of
judgment required by his public trust. Imbler v. Pachtman, supra, 424 U.S. at 423. This
rationale applies with equal force to official public duties of a civil nature since the
underlying purpose is to enable the district attorney to perform his duties without fear of suit.
[Headnote 3]
The legislature has codified some aspects of common law immunity in NRS 41.032. This
statute provides in pertinent part: 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:
98 Nev. 456, 458 (1982) County of Washoe v. District Court
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:
1. . . .
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.
In construing this statute, we have held that an action against a political subdivision based
upon the performance or the failure to perform a discretionary function falls within the reach
of the statute and is thus precluded. See, Bruttomesso v. Las Vegas Met. Police, 95 Nev. 151,
591 P.2d 254 (1979); County of Esmeralda v. Grogan, 94 Nev. 723, 587 P.2d 34 (1978); and
LaFever v. City of Sparks, 88 Nev. 282, 496 P.2d 750 (1972). Here we find that the
representations made by the district attorney's office were discretionary and within the scope
of its authority. Therefore, the petitioner is immune from suit.
Accordingly, we order that a peremptory writ of mandate issue requiring the respondent
court to dismiss said action against the petitioner.
____________
98 Nev. 458, 458 (1982) Lane v. State
WILLIAM CHARLES LANE, Jr., Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 14186
October 29, 1982 652 P.2d 1174
Motion for bail pending appeal, Second Judicial District Court, Washoe County; James J.
Guinan, Judge.
Following the denial by the district court of his motion for bail pending appeal, defendant
moved the Supreme Court for bail pending appeal. The Supreme Court held that evidentiary
hearing was required to determine whether there was risk of danger to community or
defendant's flight if defendant was released.
Remanded for bail hearing.
William N. Dunseath, Public Defender, and Jane McKenna, Deputy Public Defender,
Washoe County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney,
Washoe County, for Respondent.
98 Nev. 458, 459 (1982) Lane v. State
1. Bail.
Bail pending appeal may be denied if criminal defendant's release poses risk of flight or danger to
community or if appeal appears frivolous or taken for delay. NRS 178.488, subd. 1.
2. Bail.
Although district court may make determination that appeal is frivolous in ruling on motion for bail
pending appeal, it should exercise due caution when denying bail solely on this ground; determination of
frivolousness approaches province of appellate review and is ultimately question for decision by Supreme
Court.
3. Bail.
Hearing on criminal defendant's application for bail pending appeal would be granted to permit
determination of whether there was risk of danger or flight if defendant was released. NRS 178.488,
subd. 1.
OPINION
Per Curiam:
Appellant has filed a motion for bail pending appeal which respondent has opposed.
Appellant was convicted of one count of embezzlement, NRS 205.300, and sentenced to five
years in the Nevada State Prison on April 2, 1982. He filed a timely notice of appeal from the
judgment. On June 17, 1982, appellant moved the district court for an order granting bail
pending appeal. The court denied the motion, and on July 20, 1982, appellant filed the instant
motion in this court pursuant to NRS 178.488(3).
Because we were unable to determine the factual basis for the district court's denial of bail,
we remanded the matter to the district court on August 16, 1982, for the entry of a new order
setting forth the court's legal reasons for denying bail and the factors in support thereof,
including references to relevant portions of the record. See In re Austin, 86 Nev. 798, 477
P.2d 873 (1970). Under the Austin rule a district court must set forth its reasons for denying
bail in order to enable this court to resolve a subsequent motion for bail pending appeal. In
such a case we do not conduct a separate fact-finding proceeding, but . . . make our
independent judgment on a review of the reasons relied upon by the lower court. 86 Nev. at
802.
On August 23, 1982, the district court filed its order indicating that bail was denied solely
because, in the court's opinion, the appeal was frivolous. The order made no reference to any
risk that appellant would flee the state if granted bail, or to any risk of danger to the
community should appellant be released.
[Headnotes 1-3]
Bail pending appeal may be denied if an appellant's release poses a risk of flight or danger
to the community, In re Austin, supra, or if the appeal appears frivolous or taken for delay,
NRS 17S.4SS{1).
98 Nev. 458, 460 (1982) Lane v. State
supra, or if the appeal appears frivolous or taken for delay, NRS 178.488(1). From a
preliminary examination of the record before us on appeal, we have determined that there are
issues of arguable merit and the appeal is not frivolous.
1
Since the district court thought the
appeal frivolous, we are unable to determine whether its order's silence as to the factors of
risk of danger or flight indicate their absence. We conclude that bail should not be granted or
denied until a hearing is held, at which the district court shall conduct an inquiry into whether
these two factors are present and preclude a granting of bail.
Accordingly, this case is hereby remanded to the Second Judicial District Court, Washoe
County, Honorable James J. Guinan, District Judge, forthwith, for the limited purpose of
conducting a hearing at which the court shall inquire into whether bail pending appeal should
be denied because of a risk of flight or a danger to the community. Should the district court
deny bail, its denial shall be limited to these two factors, and its order shall set forth the facts
in support of its decision, including references to relevant portions of the record. The hearing
and decision shall be expedited, and the record on appeal shall be returned to this court no
later than forty-five (45) days from the date of this order.
____________________

1
Although a district court may make a determination that an appeal is frivolous in ruling on a motion for bail
pending appeal, see NRS 178.488(1); In re Podesto, 544 P.2d 1297 (Cal. 1976), it should exercise due caution
when denying bail solely on this ground. The determination of frivolousness approaches the province of
appellate review, and is ultimately a question for decision by this court. Cf. Sanchez v. State, 85 Nev. 95, 98,
450 P.2d 793, 795 (1969) (only supreme court can determine whether an indigent's appeal is frivolous in order
to decide whether to dismiss or appoint counsel).
____________
98 Nev. 460, 460 (1982) Yosemite Ins. v. State Farm Mut.
YOSEMITE INSURANCE COMPANY, Appellant, v. STATE FARM MUTUAL
AUTOMOBILE INSURANCE and THOMAS KEVIN PURSEL, Respondents.
No. 12996
November 3, 1982 653 P.2d 149
Appeal from summary judgment, Eighth Judicial District Court, Clark County; James A.
Brennan, Judge.
The district court granted summary judgment to insurer of garage customer involved in
automobile accident while test driving automobile for prospective purchase, and thus applied
garage liability insurer's general policy limits to determine proration of settlement payments.
Garage liability insurer appealed.
98 Nev. 460, 461 (1982) Yosemite Ins. v. State Farm Mut.
appealed. The Supreme Court held that: (1) in garage liability insurance policy, variance in
coverage between named and omnibus insureds such as customer did not violate public
policy, and (2) garage customer endorsement that provided that coverage to statutory
minimum was dependent on sufficiency of other valid and collectible insurance was void and
failed to limit coverage for customer.
Affirmed.
Beckley, Singleton, Delanoy & Jemison, J. Mitchell Cobeaga, and B. Alan McKissick, Las
Vegas, for Appellant.
Rose, Edwards, Hunt & Pearson, Las Vegas, for Respondents.
1. Insurance.
In garage liability insurance policy, variance in coverage between named and omnibus insureds, such as
garage customer involved in automobile accident while test driving automobile for prospective purchase,
did not violate public policy.
2. Insurance.
Where garage customer endorsement in garage liability insurance policy that provided that coverage to
statutory minimum was dependent on sufficiency of other valid and collectible insurance, conflicted with
similar other insurance clause in customer's insurance policy, endorsement was void and failed to limit
coverage for omnibus insureds such as customer involved in automobile accident while test driving
automobile for prospective purchase.
OPINION
Per Curiam:
1

Appellant Yosemite Insurance Company (hereinafter Yosemite) contends that the trial
court erred in granting summary judgment to State Farm Mutual Automobile Insurance
(hereinafter State Farm) and applying Yosemite's general policy limits to determine
proration of settlement payments.
In 1977 Thomas Pursel, insured by State Farm, was involved in an automobile accident
while test driving an automobile for prospective purchase. The vehicle was owned by Justin
Enterprises, Inc., dba Justin Auto Sales and Leasing and was insured by Yosemite under a
garage liability insurance policy. That policy provides coverage for bodily injury liability at
$100,000 per person, $300,000 per occurrence and $50,000 in property damage.
____________________

1
This appeal was previously dismissed on the merits in an unpublished order of this court. Upon the request
of respondents' counsel, and with the concurrence of appellant's counsel, we have determined that our decision
should be issued in a published opinion. Accordingly, we hereby issue this opinion in place of our Order
Dismissing Appeal dated May 12, 1982.
98 Nev. 460, 462 (1982) Yosemite Ins. v. State Farm Mut.
person, $300,000 per occurrence and $50,000 in property damage. However, an endorsement,
A375, attached to that policy, limits coverage for garage customers such as Pursel. The
endorsement provides coverage only in the event other insurance is insufficient or unavailable
and then only in an amount equal to the minimum required by Nevada's Motor Vehicle
Insurance Act.
2
NRS Ch. 698, repealed by 1979 Nev. Stats. Ch. 660 9. At the time of the
accident, these statutory minimum limits were $15,000 per person, $30,000 per occurrence
for bodily injury and $5,000 for property damage.
The damages claimed by third parties as a result of the accident totaled $100,254.38. State
Farm and Yosemite contributed to a settlement on a pro rata basis, the latter in accordance
with its garage customer endorsement coverage of $15,000/$30,000/$5,000. State Farm
filed a motion for summary judgment, claiming that Yosemite's garage customer endorsement
was invalid and that Yosemite's higher coverage limits should govern its pro rata share.
____________________

2
Yosemite's garage insurance endorsement A375 states as follows:
LIMITED COVERAGE FOR CERTAIN INSUREDS
This endorsement modifies such insurance as is afforded by the provision of the policy relating to the
following:
GARAGE INSURANCE
In consideration of the reduced rate of premium made applicable to the Garage Liability Insurance, it
is agreed that the garage customers are not insureds with respect to the automobile hazard except in
accordance with the following additional provisions:
1. If there is other valid and collectible insurance, whether primary, excess or contingent, available to
the garage customer and the limits of such insurance are sufficient to pay damages including damages for
care and loss of services because of bodily injury, or property damage up to the amount of the applicable
financial responsibility limit, no damages including damages for care and loss of services because of
bodily injury, or property damage are collectible under this policy.
2. If there is other valid and collectible insurance available to the garage customer, whether primary,
excess or contingent, and the limits of such insurance are sufficient to pay damages including damages
for care and loss of services because of bodily injury, or property damage up to the amount of the
applicable financial responsibility limit, then this insurance shall apply to the excess of damages
including damages for care and loss of services because of bodily injury, or property damage up to such
limit.
3. If there is no other valid and collectible insurance, whether primary, excess or contingent,
available to the garage customer, this insurance shall apply but the amount of damages including damages
for care and loss of services because of bodily injury, or property damage payable under this policy shall
not exceed the applicable financial responsibility limit.
4. As used in this endorsement: applicable financial responsibility limit refers to the applicable
limit of the financial responsibility law of the state where the automobile is principally garaged.
98 Nev. 460, 463 (1982) Yosemite Ins. v. State Farm Mut.
was invalid and that Yosemite's higher coverage limits should govern its pro rata share. The
trial court granted respondents' summary judgment motion.
[Headnote 1]
Contrary to respondents' contention, we determine that variance in coverage between the
named and omnibus insured does not violate public policy. See Neal v. Farmers Insurance
Exchange, 93 Nev. 348, 566 P.2d 81 (1977); Arceneaux v. State Farm Mutual Automobile
Insurance Co., 550 P.2d 87 (Ariz. 1976).
[Headnote 2]
However, we find that the garage customer endorsement in this case fails to effectively
limit coverage for omnibus insureds such as Pursel. The endorsement provides that coverage
to the statutory minimum is entirely dependent on the sufficiency of other valid and
collectible insurance. In Travelers v. Lopez, 93 Nev. 463, 567 P.2d 471 (1977), we declared
such other insurance clauses to be void where, as here, they conflict with similar clauses in
the other policy of insurance. In Travelers, we determined that an insurance company could
not seek to defer or limit its liability on the basis of the availability of other insurance.
Clearly, that is what Yosemite sought to do in its garage customer endorsement. The
endorsement is, therefore, void.
We recognize that other courts have construed similar endorsements to limit coverage to
the statutory minimum although the other insurance language is deemed void. See, e.g.,
Rocky Mountain Fire and Casualty Co. v. All State Insurance Co., 485 P.2d 552 (Ariz. 1971).
We decline to overlook the ambiguity created by the invalid other insurance language in
such a provision and elect to follow our well-established policy of construing ambiguities in
insurance policies against the drafter. See Catania v. State Farm Life Insurance Company, 95
Nev. 532, 598 P.2d 631 (1979).
Affirmed.
Gunderson, C. J., and Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
____________
98 Nev. 464, 464 (1982) State Bar of Nevada v. Schreiber
STATE BAR OF NEVADA, Complainant, v.
DAVID M. SCHREIBER, Respondent.
No. 14300
November 9, 1982 653 P.2d 151
In an attorney disciplinary proceeding, the Supreme Court held that failure to keep clients
advised of progress in their case and to make timely replies to their inquiries and failure to
cooperate in investigations of alleged professional misconduct in violation of applicable
disciplinary rules warrants public reprimand.
Attorney and Client.
Failure to keep clients advised of progress of their case and to make timely replies to their inquiries and
failure to cooperate in investigations of alleged professional misconduct in violation of applicable
disciplinary rules warrants public reprimand. Code of Prof.Resp., DR 1-102(A)(4-6).
ORDER
Pursuant to our order in the appeal of State Bar of Nevada v. Schreiber, No. 14300, 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, Pat
Fitzgibbons, Chairman:
David M. Schreiber, Esquire, 101 Convention Center Drive, No. 1100, Las Vegas, Nevada
89101
In August of 1979 and subsequent thereto, several grievance complaints were made
against you alleging unethical conduct. Copies of these grievances were sent to you with a
request to reply to the allegations. You totally ignored these requests and failed to respond to
those grievances.
The majority of the grievance complaints arose out of your failure to adequately explain to
your clients the services to be rendered and the fees to be charged. You then failed to
communicate with your clients and to keep them advised of the status of their cases.
It cannot be overemphasized that communication with a client is, in many respects, at the
center of all services. The failure to communicate creates the impression of a neglectful
attorney and leads to client discontent, even if the case is competently and expeditiously
handled. This, in turn, brings disrepute upon the attorney and the legal profession as a whole.
98 Nev. 464, 465 (1982) State Bar of Nevada v. Schreiber
It is the ethical duty of an attorney to keep his clients advised of the progress of their case
and to make timely replies to their inquiries, DR 1-102(A)(6). See also 80 ALR 3rd 1240,
Failure to Communicate With Client as Basis for Disciplinary Action Against Attorney.
It is also the duty of an attorney to cooperate in investigations of alleged professional
misconduct, and it is deemed an adverse reflection upon his fitness to practice law, and
conduct prejudicial to the administration of justice when he refuses to answer letters from
disciplinary personnel or otherwise fails to cooperate. DR 1-102(A)(5) and (6). See also In re
Miller, 57 Nev. 93, 59 Pac.2d 9 (1936), and Matter of Cartwright, 282 NW2d 548 (Minn.
1979).
Your conduct in these matters has fallen far below that expected of one admitted to
practice law and brings discredit to our profession. Not only did you fail to communicate with
your clients, but you refused to cooperate with the disciplinary inquiry, which constitutes an
act of misrepresentation and violation of DR 1-102(A)(4).
The foregoing conduct warrants, and you are hereby publicly reprimanded for your actions.
Dated this 9th day of November, 1982.
s/ Patrick J. Fitzgibbons, Jr., Esquire, Chairman, Southern Nevada Disciplinary Board,
214 S. Maryland Parkway, Las Vegas, Nevada 89101
It is so ORDERED.
____________
98 Nev. 465, 465 (1982) Gregory C. v. State
GREGORY C., a Minor, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 13588
November 10, 1982 653 P.2d 152
Appeal from judgment finding appellant to be a child in need of supervision. Eighth
Judicial District Court, Clark County; John F. Mendoza, Judge.
Minor was found to be a child in need of supervision, and appeal was taken from the
district court. The Supreme Court held that minor's written admission that he lied on
everyone and had a bad temper and testimony that he once took his sister's bicycle with
intent of hiding it, rode his sister's bicycle after being told not to do so, used glue stored in
garage after having been told not to bother canned goods in garage and had taken papers from
drawer without his father's permission was insufficient to support a finding of child in need of
supervision.
Reversed.
98 Nev. 465, 466 (1982) Gregory C. v. State
Morgan D. Harris, Public Defender, Victor John Austin and Robert Thompson, Deputy
Public Defenders, Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
James Tufteland and Thomas Ferraro, Deputy District Attorneys, Clark County, for
Respondent.
Infants.
Minor's written admission that he lied on everyone and had a bad temper and testimony that he once
took his sister's bicycle with intent of hiding it, rode his sister's bicycle after being told not to do so, used
glue stored in garage after having been told not to bother canned goods in garage and had taken papers
from drawer without his father's permission was insufficient to support finding of child in need of
supervision. NRS 62.040, 62.040, subd. 1(b).
OPINION
Per Curiam:
A juvenile court referee designated Gregory C. a child in need of supervision (CHINS)
pursuant to NRS 62.040(1)(b). The district court affirmed the referee's finding. Among other
contentions, Gregory argues that the state adduced insufficient evidence at the hearing before
the referee to support a CHINS finding. We agree, and therefore reverse.
THE FACTS
After he appeared of his own accord at Child Haven, a home for youths, fourteen-year-old
Gregory was charged by petition with being a Child in Need or Supervision (CHINS). The
petition did not set forth the specific facts constituting the charge, but stated that between
December 5, 1980 and March 1, 1981, the subject minor has been habitually disobedient and
beyond the control of subject minor's parent(s). . . .
At the hearing on the petition before the juvenile court referee, a March 1, 1981 statement
written by Gregory was received into evidence. In the statement, Gregory admitted that he
lied on everyone and had a bad temper. He also confessed to an incident concerning his
sister's bicycle.
While testifying at the hearing, Gregory admitted that he once took his sister's bicycle with
the intent of hiding it at a friend's house. His father testified that Gregory had ridden his
sister's bicycle after being told not to do so. The father further charged that Gregory had used
glue stored in the garage after having been told don't bother the can goods in the garage and
that Gregory had taken papers from one of his father's drawers without his father's
permission.
98 Nev. 465, 467 (1982) Gregory C. v. State
and that Gregory had taken papers from one of his father's drawers without his father's
permission.
The referee found Gregory to be a Child in Need of Supervision under the provisions of
NRS 62.040(1)(b). Gregory appealed to the district court, which affirmed the referee's order.
Gregory was placed on six months' formal supervision. This appeal followed.
THE EVIDENCE DOES NOT SUPPORT
THE FINDING OF CHINS STATUS
We have held that single or isolated instances of disobedience are inadequate to support a
finding of CHINS status under NRS 62.040(1)(b).
1
See, e.g., Ewing v. State, 98 Nev. 81,
640 P.2d 922 (1982); A Minor v. Juvenile Division, 97 Nev. 281, 630 P.2d 245 (1981).
While the evidence in this case indicates that Gregory and his father have difficulty
communicating, it does not establish that Gregory habitually disobeys the reasonable and
lawful demands of his parents . . . and is unmanageable. Gregory's statement that he has a
bad temper may not support a CHINS finding, as NRS 62.040 does not purport to encompass
matters of temperament. Gregory's admission that he lies on everyone and the incidents
concerning the bicycle, the glue, and the stolen papers do not constitute habitual disobedience
as required by the statute.
Because we conclude that the record lacks sufficient evidence to support a finding of
CHINS status, we need not reach appellant's other contentions.
Reversed.
____________________

1
NRS 62.040(1)(b) defines a child in need of supervision as one who:
(1) Is a child who is subject to compulsory school attendance and is a habitual truant from school;
(2) Habitually disobeys the reasonable and lawful demands of his parents, guardian, or other
custodian, and is unmanageable; or
(3) Deserts, abandons or runs away from his home or usual place of abode,
and is in need of care or rehabilitation.
____________
98 Nev. 467, 467 (1982) Young v. State
STEPHEN YOUNG, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 13174
November 10, 1982 653 P.2d 153
Appeal from judgment of conviction of robbery with the use of a deadly weapon, Second
Judicial District Court, Washoe County; Roy L. Torvinen, Judge.
98 Nev. 467, 468 (1982) Young v. State
The Supreme Court held that denial of defendant's motion to proceed in propria persona
was error under a record indicating that at time defendant made his request he was voluntarily
and intelligently electing to exercise his unqualified right under the Sixth Amendment to
represent himself.
Reversed and remanded.
[Rehearing denied February 8, 1983]
William N. Dunseath, Public Defender, and Jane McKenna, Deputy Public Defender,
Washoe County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney,
Michael L. Mahaffey, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Fact that motion by which defendant sought to represent himself was brought in the alternative, that is,
was based on his desire to either represent himself or retain an attorney he felt was suitable, did not
automatically establish that the motion was not otherwise made voluntarily and knowingly.
2. Criminal Law.
Denial of defendant's motion to proceed in propria persona was error under a record indicating that at
time defendant made his request he was voluntarily and intelligently electing to exercise his unqualified
right under the Sixth Amendment to represent himself. U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
This is an appeal from a conviction, upon a jury verdict, of robbery with a deadly weapon.
Several days before trial, appellant filed a written motion to represent himself at trial. The
motion cited Faretta v. California, 422 U.S. 806 (1975), and was accompanied by the deputy
public defender's request to be relieved as counsel.
A hearing on the motion was held before trial. At the beginning of that hearing appellant's
counsel told the judge Mr. Young desires to represent himself. . . . When asked by the
judge why this was so, appellant replied I want to represent myself or get me an attorney I
feel is suitable.
[Headnote 1]
The district judge, however, denied appellant's motion concluding that, because appellant
had alternatively requested substitute counsel, the waiver was not sufficiently unequivocal.
The fact that the two motions were brought in the alternative does not automatically establish
that the request to proceed in propria persona was not made voluntarily and knowingly. Cf.
Baker v. State, 97 Nev. 634
98 Nev. 467, 469 (1982) Young v. State
propria persona was not made voluntarily and knowingly. Cf. Baker v. State, 97 Nev. 634,
637 P.2d 1217 (1981) (appellant's request that his counsel be dismissed or, alternatively that
he be allowed to represent himself, was timely).
During the trial, the issue arose as to whether appellant had adequately waived his rights
under Miranda v. Arizona, 384 U.S. 436 (1966). In support of the state's position that he had,
the prosecutor called the deputy district attorney who had been present at the Faretta hearing.
The deputy testified that at that hearing appellant indicated just a general understanding of
the charges and a desire to represent himself. In argument, the prosecutor concurred, stating
that the appellant did satisfy the standards under Faretta to represent himself. He is an
intelligent man. I think that is obvious to the court.
We agree. A review of the transcript of the Farretta hearing establishes that when he
asked to represent himself at trial the appellant was voluntarily and intelligently electing to
exercise his unqualified right to do so under the Sixth Amendment. See Faretta v. California,
422 U.S. 806 (1975).
[Headnote 2]
The denial of Young's motion to proceed in propria persona was error and we must,
therefore, reverse and remand for a new trial.
1

Reversed and remanded.
____________________

1
We note that the evidence against appellant was overwhelming. Nevertheless, we will not apply the
doctrine of harmless error because of the Ninth Circuit's opinion in Bittaker v. Enomoto, 587 F.2d 400 (9th Cir.
1978).
____________
98 Nev. 469, 469 (1982) Nevada Industrial Comm'n v. Horn
NEVADA INDUSTRIAL COMMISSION, an Agency of the State of Nevada, Appellant, v.
ROBERT HORN, Respondent.
No. 13540
November 10, 1982 653 P.2d 155
Appeal from district court order reversing administrative ruling, Eighth Judicial District
Court, Clark County; Paul S. Goldman, Judge.
The district court reversed a denial of temporary total disability benefits to the claimant,
and the Industrial Commission appealed. The Supreme Court held that authority was not
vested in the district court in review proceeding to receive new evidence in form of two
letters from rehabilitation counselors and, on basis of that evidence, reverse decision of the
Industrial Commission denying temporary total disability benefits to claimant on ground
that, though he could not perform heavy physical labor, he could perform gainful
sedentary work.
98 Nev. 469, 470 (1982) Nevada Industrial Comm'n v. Horn
and, on basis of that evidence, reverse decision of the Industrial Commission denying
temporary total disability benefits to claimant on ground that, though he could not perform
heavy physical labor, he could perform gainful sedentary work.
Reversed and remanded.
T. Dwight Sper, Las Vegas, for Appellant.
Roy L. Nelson, Las Vegas, for Respondent.
1. Workers' Compensation.
Review by the district court of a decision of Industrial Commission is limited to the record before the
agency. NRS 233B.140, subd. 3.
2. Workers' Compensation.
If the district court determines that additional evidence on the issue of a worker's disability should be
received, the district court should remand the matter to the Industrial Commission for presentation of that
evidence. NRS 233B.140, subd. 3.
3. Workers' Compensation.
Authority was not vested in the district court in review proceeding to receive new evidence in form of
two letters from rehabilitation counselors and, on basis of that evidence, reverse decision of the Industrial
Commission denying temporary total disability benefits to claimant on ground that, though he could not
perform heavy physical labor, he could perform gainful sedentary work. NRS 233B.140, subds. 3-5,
5(d)-(f).
OPINION
Per Curiam:
Respondent injured his back and right knee while working as a utility porter at the
Stardust Hotel in Las Vegas. Thereafter he submitted to psychological and medical
examination, and also underwent knee and back surgery.
On April 12, 1979, the Nevada Industrial Commission (NIC)
1
ruled that respondent
was ineligible to receive temporary total disability benefits during the period of April 13
through September 20, 1979. Respondent unsuccessfully appealed this ruling to the NIC
appeals officer. The basis of the appeals officer's determination was that although respondent
could not perform heavy physical labor, he could perform gainful sedentary work.
Respondent then sought relief in the district court, submitting for the first time two letters
from rehabilitation counselors indicating that respondent was not a suitable candidate for
rehabilitation, and that the NIC was unable to find suitable employment for him.
____________________

1
The Nevada Industrial Commission has since been renamed as the State Industrial Insurance System. See
1981 Nev. Stats. Ch. 616 (effective July 1, 1982).
98 Nev. 469, 471 (1982) Nevada Industrial Comm'n v. Horn
rehabilitation, and that the NIC was unable to find suitable employment for him. These letters
were written almost one year after the NIC appeals officer had rendered his decision.
Appellant moved to strike any reference to matters outside of the record, but the district
court denied appellant's motion. In an order phrased in conclusory terms, the district court
reversed the decision of the NIC appeals officer and ordered payment of benefits to
respondent, on the ground that the decision violated NRS 233B.140(5)(d), (e), and (f).
2
This
appeal followed.
Appellant contends that the district court erred by receiving the new evidence. We agree.
[Headnotes 1, 2]
The district court's review of an administrative decision is limited to the record before the
agency. NRS 233B.140(4); Gandy v. State ex rel. Div. Investigation, 96 Nev. 281, 607 P.2d
581 (1980); Nevada Industrial Comm'n v. Reese, 93 Nev. 115, 560 P.2d 1352 (1977).
Further, under NRS 233B.140(3),
3
it is contemplated that if the district court determines that
additional evidence should be received, the district court should order that such evidence be
presented to the appropriate administrative agency.
____________________

2
NRS 233B.140(5) provides in pertinent part:
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:
. . .
(d) Affected by other error of law;
(e) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record;
or
(f) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of
discretion.
The district court's order did not specify the manner in which the NIC appeals officer's decision was affected
by error of law, clearly erroneous in view of the record, or otherwise arbitrary, capricious, or an abuse of
discretion.

3
NRS 233B.140(3) provides:
If, before the date set for hearing, application is made to the court for leave to present additional
evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that
there were good reasons for failure to present it in the proceeding before the agency, the court may order
that additional evidence be taken before the agency upon conditions determined by the court. The agency
may modify its findings and decision by reason of the additional evidence and shall file that evidence and
any modifications, new findings or decisions with the reviewing court.
98 Nev. 469, 472 (1982) Nevada Industrial Comm'n v. Horn
[Headnote 3]
Respondent argues that the district court apparently determined that the [additional]
evidence was so overwhelming that there was no need to refer the case back to the Appeals
Officer of the NIC. Respondent has cited no direct authority in support of his argument, and
we reject the argument because it is contrary to the clear language of the statute. If the district
court was of the opinion that the new evidence was material, and that there were good reasons
for failure to present the evidence in the proceeding before the agency, the district court
should have remanded the matter to the agency under NRS 233B.140(3). The district court
exceeded the scope of its review by admitting and considering the new evidence.
Accordingly, we reverse the district court's order, and remand with instructions to proceed
in accordance with NRS 233B.140(3).
____________
98 Nev. 472, 472 (1982) City of Reno v. Reno Police Prot. Ass'n
CITY OF RENO, Nevada, a Municipal Corporation, Appellant, v. RENO POLICE
PROTECTIVE ASSOCIATION; RENO FIRE FIGHTERS LOCAL NO. 731, I.A.F.F.,
Respondents.
No. 13735
CITY OF RENO, Nevada, a Municipal Corporation, Appellant, v. THE RENO POLICE
PROTECTIVE ASSOCIATION, and RENO FIRE FIGHTERS, LOCAL 731,
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, Respondents.
No. 13737
November 12, 1982 653 P.2d 156
Consolidated appeal from order granting mandamus and order granting motion to dismiss,
Second Judicial District Court, Washoe County; James J. Guinan, Judge.
Employee-Management Relations Board sought writ of mandamus to compel city to honor
a decision ordering the city to negotiate with the policemen's association concerning
discharge and disciplinary procedures. Mandatory relief was granted by district court and a
consolidated appeal was taken from order granting mandamus and order granting motion to
dismiss city's action for declaratory relief. The Supreme Court held that: (1) under statute
clearly mandating negotiations of discharge and disciplinary procedure,
Employee-Management Relations Board properly found that the statute mandates
negotiations and district court properly granted petition for mandamus compelling city to
comply with Board's decision, despite city's reliance upon its charter as justification for its
refusal to bargain, and {2) statute mandating negotiations prevailed over the city charter
provision.
98 Nev. 472, 473 (1982) City of Reno v. Reno Police Prot. Ass'n
negotiations and district court properly granted petition for mandamus compelling city to
comply with Board's decision, despite city's reliance upon its charter as justification for its
refusal to bargain, and (2) statute mandating negotiations prevailed over the city charter
provision.
Affirmed.
Louis S. Test, City Attorney, and John R. Petty, Assistant City Attorney, Reno, for
Appellant.
Paul H. Lamboley and John N. Schroeder, Reno, for Respondents.
1. Labor Relations; Mandamus.
Under statute clearly mandating negotiations of discharge and disciplinary procedure,
Employee-Management Relations Board properly found that the statute mandates negotiations and district
court properly granted petition for mandamus compelling city to comply with Board's decision, despite
city's reliance upon its charter as justification for its refusal to bargain. NRS 288.101 et seq., 288.110,
288.150, subd. 2; St. 1971, c. 662, 1 et seq. as amended.
2. Municipal Corporations.
Statute mandating negotiations prevailed over city charter provision on which city relied as justification
for its refusal to bargain with policemen's association over terms of labor agreement. NRS 288.010 et
seq., 288.110, 288.150, subd. 2; St. 1971, c. 662, 1 et seq. as amended.
OPINION
Per Curiam:
During the course of collective bargaining by the Reno Police Protective Association
(RPPA) and the City of Reno (City) over the terms of the fiscal year 1980-81 labor
agreement, the City refused to negotiate discharge and disciplinary procedures. As a result,
the RPPA filed a complaint against the City before the Local Government
Employee-Management Relations Board (EMRB) on the ground that the City had failed to
negotiate in good faith concerning mandatory subjects of bargaining pursuant to NRS
288.150(2).
1
The Reno Fire Fighters Local No. 731, I.A.F.F. (Fire Fighters) was permitted,
without objection, to intervene in this proceeding. The City had previously negotiated
discharge and disciplinary procedures with the Fire Fighters but issues remained which are
the subject of the instant action.
____________________

1
NRS 288.150 (2) provides:
The scope of mandatory bargaining is limited to: . . .(i) Discharge and disciplinary procedures.
98 Nev. 472, 474 (1982) City of Reno v. Reno Police Prot. Ass'n
Pursuant to NRS 288.110, the EMRB conducted a hearing to consider the RPPA's charges
against the City.
2
During the hearing, the City took the position that it was justified in
refusing to negotiate these procedures because they were expressly declared to be
non-negotiable under the Reno City Charter.
3
The City invoked the Charter as having
preempted the provisions of NRS ch. 288. The EMRB rejected the City's argument and
concluded that discharge and disciplinary procedures are mandatory subjects of negotiation
under NRS 288.150(2). Furthermore, the EMRB ordered the City to begin bargaining with
the RPPA in regard to these procedures.
The City refused to comply with the EMRB's decision or seek judicial relief so the RPPA
sought a writ of mandamus (Case No. 13735), compelling the City to honor the decision.
Once again, the Fire Fighters moved to intervene, and the lower court granted the motion.
Shortly after the RPPA brought its action for mandamus, the City brought suit against both
the RPPA and the Fire Fighters for declaratory relief (Case No. 13737), on the ground that the
Reno City Charter preempted portions of NRS ch. 288. Both the RPPA and the Fire Fighters
moved to have the City's action dismissed.
In due course, the district court entered orders in the respective cases. In Case No. 13735,
the request for mandamus against the City was granted and in Case No. 13737 the City's
declaratory relief action was dismissed. The City now appeals both of these orders on the sole
ground that the EMRB exceeded its jurisdiction when it interpreted portions of the Reno City
Charter in rendering its decision. Since we do not agree, we affirm the decisions of the district
court.
[Headnote 1]
We have consistently held that [a]n agency charged with the duty of administering an act
is impliedly clothed with power to construe it. . . . Clark Co. Sch. Dist. v. Local Gov't, 90
Nev. 442, 446, 530 P.2d 114 (1974); see also, Oliver v. Spitz, 76 Nev. 5, 348 P.2d 158
(1960). In the present case, after hearing and considering all the evidence, the EMRB merely
deferred to NRS ch. 288, the statute under which it operates. While the EMRB did discuss the
Reno City Charter in its decision, our review of that decision reveals that the board only
did so because the City placed its Charter in issue by relying on it as justification for its
refusal to bargain with the RPPA.
____________________

2
The EMRB was established to
hear and determine any complaint arising out of the interpretation of, or performance under, the
provisions of this chapter by any local government employer, local government employee or employee
association.
NRS 288.110.

3
1971 Nev. Stat. ch. 662 as amended by 1979 Nev. Stat. ch. 373.
98 Nev. 472, 475 (1982) City of Reno v. Reno Police Prot. Ass'n
review of that decision reveals that the board only did so because the City placed its Charter
in issue by relying on it as justification for its refusal to bargain with the RPPA. The EMRB
did not interpret the Charter. In its determination, it simply rejected the argument proffered by
the City and found the NRS 288.150(2)(i) clearly mandates negotiations of discharge and
disciplinary procedures. Since NRS 288.110 gives the EMRB power to hear and determine
any complaint arising out of the interpretation of the statute, the district court properly
granted respondents' petition for mandamus compelling the City to comply with the EMRB's
decision.
[Headnote 2]
Although appellant phrases the issue on appeal as one of jurisdiction, we believe the
threshold question is whether the Reno City Charter preempts the statute enacted by the
legislature, NRS ch. 288. Where there is a conflict between a general law enacted by the
legislature and a charter provision, the general law is superior to and supersedes the charter
provision. State ex rel. Guthrie v. City of Richmond, 494 P.2d 990, 991 (Wash. 1972). See
also, Pontiac Police Officers Ass'n v. City of Pontiac, 246 N.W.2d 831 (Mich. 1976). We
have also held that allowances provided by the general laws of the state may not, absent a
special dispensation of the legislature, be prohibited by local ordinances. Lamb v. Mirin, 90
Nev. 329, 333, 526 P.2d 80 (1974). Here, no such dispensation has been granted by the
legislature. Accordingly, we conclude that the provisions of NRS 288.150(2)(i) prevail over
the Charter, and therefore the district court properly granted respondents' motion to dismiss
the City's declaratory relief action.
We affirm the orders of the district court.
____________
98 Nev. 476, 476 (1982) Continental Ins. Co. v. Moseley
CONTINENTAL INSURANCE COMPANY, Appellant, v. SISTER RICCARDA
MOSELEY, EXECUTRIX OF THE ESTATE OF AUDRAIN MAVIS-MARIE
OLIVER, Respondent.
No. 13308
THE CONTINENTAL INSURANCE COMPANIES, Appellant, v. JEAN HOOPER
STEVENS and AUDREY OLIVER, Respondents.
No. 13432
November 12, 1982 653 P.2d 158
Consolidated appeal from district court's order denying appellant's motion for substitution
(No. 13432), and order denying appellant's motion to publish notice and declaring appellant's
claim forever barred. (No. 13308). Second Judicial District Court, Washoe County; Grant L
Bowen, Judge (13308); Second Judicial District Court, Washoe County, Peter I. Breen, Judge
(13432).
The Supreme Court held that creditor of estate was not denied due process by use of
summary proceedings for administration of estate where published notice to creditors was
reasonably and sufficiently calculated to provide actual notice and where creditor actually
received notice within prescribed period, albeit on last day for filing claims; thus, creditor's
failure to timely file claim forever barred its claim.
Affirmed.
Semenza and Lutfy, Reno, for Appellant.
Cooke, Roberts & Reese, and Fry, Fry & Ihara, Reno, for Respondents.
Constitutional Law; Executors and Administrators.
Creditor of estate was not denied due process by use of summary proceedings for administration of estate
where published notice to creditors was reasonably and sufficiently calculated to provide actual notice and
where creditor actually received notice within prescribed period, albeit on last day for filing claims; thus,
creditor's failure to timely file claim forever barred its claim. NRS 145.050, 145.060; U.S.C.A.Const.
Amend. 14.
OPINION
Per Curiam:
In August of 1980, Audrain Mavis-Marie Oliver died testate, naming Sister Riccarda
Moseley as executrix. Sister Riccarda Moseley, through her attorney, petitioned for probate
of the will and for summary administration.
98 Nev. 476, 477 (1982) Continental Ins. Co. v. Moseley
Moseley, through her attorney, petitioned for probate of the will and for summary
administration. On September 26, 1980, the district court entered an order admitting the will
to probate, directing the issuance of letters testamentary and ordering summary
administration.
On September 30, 1980, letters testamentary were issued and the notice to creditors was
filed. The notice to creditors was published in the newspaper on October 4, 9 and 14, 1980,
and the proof of publication was filed on October 20, 1980.
At the time of the decedent's death, there was a civil action pending against her which had
been filed by appellant Continental. The action was filed against the decedent under the name
of Audrey Oliver. Appellant received notice of Oliver's death on December 3, 1980, the last
day for filing claims against her estate. However, appellant filed its claim (the subject of the
civil proceeding) against Oliver's estate on December 5, 1980, two days after the time for
filing claims had expired.
Subsequently, on December 9, 1980, appellant filed a motion in the civil proceeding
seeking to substitute respondent Sister Riccarda Moseley for Audrey Oliver. The lower court
denied appellant's motion on the ground that the motion was not timely filed. Appeal No.
13432 is from the denial of this motion.
On January 6, 1981, appellant Continental filed in the probate proceeding a motion to
compel the executrix to publish notice to creditors. The district court entered its order
denying Continental's motion to compel republication and declared appellant's claim forever
barred. Appeal No. 13308 is from this order.
Appellant's primary contention is that the publication of notice to creditors is insufficient
under constitutional standards of procedural due process. Thus, we are asked to reverse the
lower court's decisions in both the civil and probate proceedings. For reasons hereinafter set
forth, we reject appellant's contention, and affirm the decisions below.
In an estate proceeding, if the district court determines that the gross value of the estate
does not exceed $60,000, the court may order summary administration of the estate. NRS
145.040. When summary administration is ordered, as in the present case, notice to creditors
of the appointment of an executor or administrator must be published. NRS 145.050. In
addition, NRS 145.060 requires creditors of the estate to file their claims within 60 days
after the first publication of the notice to creditors. NRS 145.060 further provides: Any
claim which is not filed within the 60 days, shall be barred forever. It was based upon this
latter provision that the district courts denied appellant's motions.
98 Nev. 476, 478 (1982) Continental Ins. Co. v. Moseley
Appellant concedes that the notice to creditors complied with the statutory requirements of
NRS 145.050. Appellant also admits that it received notice of Oliver's death on December 3,
1981, which was the last day to file claims. It is nonetheless contended that mere compliance
with the statutory notice provision does not satisfy the due process requirements of the
constitution. We do not agree.
It is the policy of the law of Nevada with respect to summary administration of estates to
provide an expeditious and comparatively unencumbered means of accomplishing estate
administration. Such a policy is reasonable considering the size of estates within the purview
of NRS ch. 145. It is therefore consistent with the policy of the law governing such estates
that notices to creditors are somewhat circumscribed. If the cost of newspaper publication
exceeds $25, the court is vested with power to authorize some other less costly means of
providing notice.
1
In addition, the nonclaim period is reduced from 90 to 60 days from the
date of first publication of notice and there is no savings provision which would exculpate
creditors who proved lack of notice as provided by the statute.
2
We thus see a balancing of
the interests of a decedent's heirs, devisees and legatees in the summary administration of
their decedent's estates and the interests of creditors and claimants who seek access to the
assets of such an estate.
The leading case on the requirements of due process in giving notice of a pending legal
proceeding is Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). In
Mullane, the following general principle was expressed:
An elementary and fundamental requirement of due process in any proceeding which is
to be accorded finality is notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pending of the action and afford them an opportunity to
present their objections . . .
We conclude that under all the circumstances here present, published notice pursuant to NRS
145.050 was reasonably and sufficiently calculated to provide actual notice to appellant. The
statute is quite clear and specific in regard to notice requirements. Furthermore, appellant did
actually receive notice within the 60 day period, albeit on the last day for filing claims, as
contemplated by the statute.
____________________

1
NRS 145.050(2).

2
In contrast to creditors in estates under summary administration, creditors filing claims in large estates enjoy
a savings provision in the event of a late filing. NRS 147.040(2).
98 Nev. 476, 479 (1982) Continental Ins. Co. v. Moseley
Having concluded that NRS 145.050 does satisfy due process requirements, we now turn
to the lower court's determination that appellant's claim was forever barred under NRS
145.060. The latter statute clearly mandates that all claims be filed within 60 days or be
barred forever. We have previously held that Nevada statutes relating to the filing of claims
are designed to foster the efficient and expedient administration of estates, and where the
statute is plainly written, it should be enforced in accordance with its terms. Gardner Hotel
Sup. v. Estate of Clark, 83 Nev. 388, 432 P.2d 495 (1967). Therefore, the district court did
not err in barring appellant's claim despite the resultant hardship. As we stated in Klosterman
v. Cummings, 86 Nev. 684, 687, 476 P.2d 14 (1970): Whenever the legislature enacts a
statutory bar to an action someone at some time may suffer. We cannot judicially legislate to
alleviate a harsh result occasioned by a legislative enactment.
Accordingly, the orders of the lower courts are affirmed.
Gunderson, C. J., and Manoukian, Mowbray, and Steffen, JJ., and Fondi, D. J.,
3
concur.
____________________

3
The Governor designated the Honorable Michael E. Fondi, District Judge, of the First Judicial District
Court, to sit in the place of The Honorable Charles E. Springer, who voluntarily disqualified himself. Nev.
Const., art. 6, 4.
____________
98 Nev. 479, 479 (1982) Mt. Wheeler Power, Inc. v. Gallagher
MT. WHEELER POWER, INC., a Nevada Corporation, Appellant, v. THOMAS G.
GALLAGHER, DOROTHY S. GALLAGHER, GORDON W. GARRETT, CHRISTINE
GARRETT, and PRODUCERS LIVESTOCK LOAN COMPANY, Respondents.
No. 13073
November 30, 1982 653 P.2d 1212
Appeal from judgment denying claim against individual partners for indebtedness incurred
by debtor-in-possession. Fourth Judicial District Court, Elko County; Howard D. McKibben,
Judge.
Electric company sued general partners of bankrupt company to which it had supplied
electricity, seeking payment for electricity supplied while the bankrupt had been a
debtor-in-possession under Chapter XII of the Bankruptcy Act. The district court entered
judgment denying the claim, and electric company appealed. The Supreme Court held that
electric company's claim should have been included for payment prior to closure of
bankruptcy, but fact that it was not did not defeat electric company's claim against the
nonbankrupt general partners of the bankrupt company.
98 Nev. 479, 480 (1982) Mt. Wheeler Power, Inc. v. Gallagher
closure of bankruptcy, but fact that it was not did not defeat electric company's claim against
the nonbankrupt general partners of the bankrupt company.
Reversed.
Vaughan, Hull & Copenhaver, Ltd. Elko, for Appellant.
Evans & Bilyeu, and Ross P. Eardley, Elko, for Respondents.
1. Bankruptcy.
Electrical service provided debtor-in-possession in case under Chapter XII of the Bankruptcy Act was an
expense of administration which should have been included for payment by secured creditor which
reclaimed debtor's farm property prior to closure of bankruptcy, but fact that it was not did not defeat
electric company's claim against the nonbankrupt general partners of the debtor. Bankr.Act, 401 et seq.,
11 U.S.C. (1976 Ed.) 801 et seq.
2. Bankruptcy.
Unless expressly rejected by debtor-in-possession in case under Chapter XII of the Bankruptcy Act,
executory contracts with electric company for purchase of electric power remained in effect, and where
debtor-in-possession accepted continued performance by electric company, there was implied assumption
of the executory contracts. Bankr.Act, 401 et seq., 11 U.S.C. (1976 Ed.) 801 et seq.
3. Bankruptcy.
Where at time of filing of petition under Chapter XII of the Bankruptcy Act, contracts for purchase of
electric power were to be performed in futuro, electric company had no basis for filing creditor's claim and
the obligation for initiating and completing the process for accomplishing payment of the power charges
belonged to the debtor-in-possession. Bankr.Act, 401 et seq., 11 U.S.C. (1976 Ed.) 801 et seq.
4. Bankruptcy.
When debtor-in-possession elected to convert Chapter XII case into straight bankruptcy, intervention of
bankruptcy constituted a breach of executory agreements with electric company which was supplying
electricity to debtor's farm, thus giving rise to a provable claim. Bankr.Act, 401 et seq., 11 U.S.C. (1976
Ed.) 801 et seq.
5. Assignments.
Assumption of contract by one party does not vitiate the continuing liability of the party from whom the
contract rights and obligations are assumed.
6. Bankruptcy.
Upon debtor's filing of petition in federal Bankruptcy Court pursuant to Chapter XII of the Bankruptcy
Act, debtor-in-possession became legally substituted in the place instead of debtor company, but such
substitution by operation of law did not effectuate a release of nonbankrupt general partners of the debtor
company under executory contracts. Bankr.Act, 401 et seq., 11 U.S.C. (1976 Ed.) 801 et seq.
7. Partnership.
Partners are jointly liable for debts and obligations of the partnership. NRS 87.150.
98 Nev. 479, 481 (1982) Mt. Wheeler Power, Inc. v. Gallagher
8. Bankruptcy.
When concerned with a proceeding under Chapter XII of the Bankruptcy Act, provisions of Chapter XII
will control over conflicting provisions found elsewhere in the Bankruptcy Act. Bankr.Act, 5(j), 401 et
seq., 402, 11 U.S.C. (1976 Ed.) 23(j), 801 et seq., 802.
OPINION
Per Curiam:
In October of 1971 appellant, Mt. Wheeler Power, Inc. (Wheeler Power), entered into a
series of contracts with the predecessor of the Diamond Land and Cattle Company
(Diamond), a general partnership comprised of respondents Thomas and Dorothy Gallagher
and Gordon and Christine Garrett. The agreements were binding upon Diamond as a
successor in interest. Diamond also executed certain contracts of the same type directly with
Wheeler Power. Pursuant to the terms of the contracts, Wheeler Power was to supply
Diamond with the electricity it required in its farming operations. In return, Diamond agreed
to pay for such service. After several years of operation, Diamond filed a petition in the
Federal Bankruptcy Court pursuant to Chapter XII of the Bankruptcy Act.
1
As part of its
reorganization plan, Diamond was to continue its farming operation, and did so as a
debtor-in-possession. At the time, Diamond's property was encumbered by deeds of trust and
chattel mortgages held by respondent Producers Livestock Loan Company (Producers).
Commencing in April, 1978, and continuing throughout the nearly six month period of
Diamond's operation as a debtor-in-possession, Wheeler Power supplied electricity to the
farm. It is for this service that Wheeler Power now seeks recovery.
While operating under the supervision of the bankruptcy court, Diamond filed a motion to
convert the Chapter proceeding into a straight bankruptcy. The bankruptcy court granted the
request and entered its adjudication of bankruptcy. Producers then reclaimed the farm, which
had been security for Diamond's indebtedness, subject only to the payment by Producers of a
third party claim that had been given priority status as an expense of administration.
Unfortunately, no allowance was made to compensate Wheeler Power for its service. Wheeler
Power did not file a claim for administrative expense in the bankruptcy court and Diamond
overlooked securing payment for the power service prior to the reclamation of the farm by
Producers. The bankruptcy court subsequently issued an order closing bankruptcy.
____________________

1
This case is governed by the old Bankruptcy Act 11 U.S.C. 1 et seq. (repealed 1978).
98 Nev. 479, 482 (1982) Mt. Wheeler Power, Inc. v. Gallagher
an order closing bankruptcy. Producers then lawfully proceeded with a sale of the enterprise
for an amount somewhat less than the indebtedness owed by Diamond.
Several months later Diamond sought to reopen the bankruptcy proceeding in order to
recover from Producers the amounts owing for the electrical service. The bankruptcy court
denied Diamond's application for payment to Wheeler Power holding that it no longer had
jurisdiction over the property. There was no appeal of the decision of the bankruptcy court.
Instead, Wheeler Power filed a separate suit in the state district court against the general
partners of Diamond seeking to recover for the power service. In denying relief the district
court held the indebtedness was not incurred by the general partners, but by the
debtor-in-possession who was subject to the control and jurisdiction of the bankruptcy court.
The district court then determined that Wheeler Power could not recover as it failed to perfect
its claim in the appropriate forum. For the reasons hereinafter specified, we must reverse.
[Headnote 1]
Since the electrical service provided to the debtor-in-possession was unquestionably an
expense of administration, as noted by both the bankruptcy court and court below, it could
and undoubtedly should have been included for payment by Producers prior to the closure of
the bankruptcy. The fact that it was not however, does not defeat Wheeler Power's claim
against the nonbankrupt general partners of Diamond.
[Headnotes 2-4]
At the time of the filing of the Chapter XII proceeding, it is clear that the contracts
between Wheeler Power and Diamond were executory in nature. The former was committed
to continue providing electric power and the latter was obligated to pay for such power. After
the Chapter filing, the debtor-in-possession had the responsibility to either accept or reject
these executory contracts with Wheeler Power. Unless expressly rejected, the agreements
remained in effect. Federal's, Inc. v. Edmonton Investment Company, 404 F.Supp. 68
(E.D.Mich. 1975); In re Shoppers Paradise, Inc., 8 B.R. 271 (Bankr.S.D.N.Y. 1980).
2
In any
event, where, as here, the debtor-in-possession accepted continued performance by Wheeler
Power, there was an implied assumption of the executory contracts. Under such
circumstances, the debtor-inpossession assumed both the benefits and the obligations of
these contracts. In re Godwin Bevers Co., Inc.,
____________________

2
Under bankruptcy law, there is no essential difference between a debtor-in-possession and a trustee in
bankruptcy. In re Trigg, 630 F.2d 1370 (10th Cir. 1980).
98 Nev. 479, 483 (1982) Mt. Wheeler Power, Inc. v. Gallagher
possession assumed both the benefits and the obligations of these contracts. In re Godwin
Bevers Co., Inc., 575 F.2d 805 (10th Cir. 1978); In re Trigg, 630 F.2d 1370 (10th Cir. 1980).
Matter of Steelship Corp., 576 F.2d 128 (8th Cir. 1978). Further, since at the time of the
filing of the Chapter XII, the contracts were to be performed in futuro, Wheeler Power had no
basis for filing a creditor's claim and the obligation for initiating and completing the process
for accomplishing payment of the power charges belonged to the debtor-in-possession.
Consolidated Gas Elec. L. & P. Co. v. United Rys. & Elec. Co., 85 F.2d. 799 (4th Cir. 1936);
Federal's Inc. v. Edmonton Investment Company, supra. When Diamond elected to convert
the Chapter proceeding into a straight bankruptcy, the intervention of the bankruptcy
constituted a breach of the executory agreements, thus giving rise to a provable claim.
Consolidated Gas Elec. L. & P. Co. v. United Rys. & Elec. Co., supra. Unfortunately, well in
advance of the deadline for filing creditors' claims established by the bankruptcy court the
latter court granted Producer's motion to reclaim the only asset in the bankruptcy estate. As a
result, when Wheeler Power timely filed its creditor's claim there was nothing left from which
satisfaction of the power charges could be obtained.
[Headnotes 5-8]
Under the circumstances recited above, we see no basis for utilizing the legal fiction
separating the debtor-in-possession from Diamond as a proper rationale for leaving
Wheeler Power without remedy. The law does not require that we do so. Under generally
accepted contract law, the assumption of a contract by one party does not vitiate the
continuing liability of the party from whom the contract rights and obligations are assumed.
Commercial Stand. Ins. Co. of Ft. Worth, Tex. v. Hitson, 388 P.2d 56 (N.M. 1963). It is true
that the debtor-in-possession became legally substituted in the place and stead of Diamond.
However, such substitution by operation of law did not effectuate a release of the
nonbankrupt general partners of Diamond under the executory contracts.
3
In re Tidus, 4 F.2d
558 (D.Del. 1925); Matter of Consolidated Motor Inns, 666 F.2d 189 (5th Cir. 1982). See
also, 11 U.S.C. 23(j) (repealed 1978).4 Equitable considerations are equally compelling in
our decision.
____________________

3
Under Nevada law, partners are jointly liable for debts and obligations of the partnership. NRS 87.150.

4
When concerned with a Chapter XII proceeding, the provisions of Chapter XII will control over conflicting
provisions found elsewhere in the bankruptcy act. 11 U.S.C. 802 (repealed 1978). 11 U.S.C. 23(j)
98 Nev. 479, 484 (1982) Mt. Wheeler Power, Inc. v. Gallagher
Equitable considerations are equally compelling in our decision. By its own admission in
the petition to reopen the bankruptcy proceedings, the debtor-in-possession was, through
inadvertence, responsible for the non-payment of the power bill as an administrative expense.
Notwithstanding the separate identities in law of Diamond and the debtor-in-possession, the
relationship in fact between the two should have assured responsible consideration of the
interests of Wheeler Power. Further, if the debtor-in-possession had properly insisted on
payment of the power bill by Producers, the latter would have increased Diamond's
indebtedness by the same amount, thereby ultimately placing the burden of payment on the
nonbankrupt individual partners of Diamond. Whether Producers would have actually
recovered the amount of the power bill from the Diamond partners through a deficiency
proceeding or otherwise is a non-issue. The point is, the parties against whom the ultimate
right of recapture was at least theoretically available were the individual partners of Diamond.
It is therefore most fitting and equitable, as between Wheeler Power and respondents, that the
latter absorb the cost of the electrical power in question.
We accordingly reverse the judgment of the district court and remand for further
proceedings not inconsistent with this opinion.
____________________
(repealed 1978), specifically has been held not to conflict with the provisions of Chapter XII, See Consolidated
Motor Inns v. BVA Corp., 666 F.2d 189 (5th Cir. 1982); Acme Tool, Inc. v. Flesher, 309 F.2d 636 (10th Cir.
1962).
____________
98 Nev. 484, 484 (1982) Yochum v. Davis
MERRITT K. YOCHUM, Individually, and MERRITT K. YOCHUM and ROSE MARIE
YOCHUM, as the Sole Surviving Directors of TOOL TOTE, INC., a Nevada Corporation,
and MERRITT K. YOCHUM and ROSE MARIE YOCHUM, as the Sole Surviving Officers
of TOOL TOTE, INC., a Nevada Corporation, and MERRITT K. YOCHUM, Who Did
Business as CARSON IRON WORKS, Appellants, v. JANICE ANN DAVIS, Respondent.
No. 13749
November 30, 1982 653 P.2d 1215
Appeal from order denying motion to set aside default and judgment. First Judicial District
Court, Carson City; Michael E. Fondi, Judge.
Wife of deceased stockholder filed a complaint against remaining stockholders for unjust
enrichment, violations of fiduciary duties, and false or material misrepresentations.
98 Nev. 484, 485 (1982) Yochum v. Davis
remaining stockholders for unjust enrichment, violations of fiduciary duties, and false or
material misrepresentations. The district court entered a default judgment in favor or plaintiff
and, from denial of motion to set aside default, defendants appealed. The Supreme Court held
that refusal to set aside default judgment was an abuse of discretion where defendants neither
received actual notice of proceedings prior to entry of default nor demonstrated a serious
disregard of the judicial process, and defendants' promptly filed a responsive pleading with
their motion to set aside the default and alleged the presence of numerous meritorious
defenses.
Reversed with instructions.
David Horton, Carson City, For Appellants.
Sheerin, O'Reilly, Walsh & Keele, Gardnerville, and John P. Davis, Minden, for
Respondent.
1. Judgment.
A party may be relieved from a final judgment on grounds of mistake, inadvertence, surprise, or
excusable neglect if he shows a prompt application to remove the judgment, the absence of an intent to
delay the proceedings, a lack of knowledge of procedural requirements, and good faith. NRCP 60(b)(1).
2. Judgment.
In addition to meeting the statutory requirements for obtaining relief from a default judgment, the moving
party must promptly tender a meritorious defense to the claim for relief. NRCP 60(b)(1).
3. Judgment.
The court considering a motion for relief from a default judgment must give due consideration to the
state's underlying basic policy of resolving the cases on their merits wherever possible. NRCP 60(b)(1).
4. Judgment.
Refusal to set aside default judgment amounted to an abuse of discretion where neither defendant
received actual notice of proceedings prior to entry of default judgment nor demonstrated a serious
disregard of the judicial process, and defendants promptly filed a responsive pleading with their motion to
set aside the default and alleged the presence of numerous meritorious defenses. NRS 78.145; NRCP
60(b)(1).
OPINION
Per Curiam:
Appellants Merritt K. Yochum and Rose Marie Yochum appeal from an order of the
district court denying their motion to set aside a default judgment.
THE FACTS
Respondent Janice Ann Davis' late husband, Bob Railson, paid $5,000 in 1975 for
approximately 100 shares of stock in Tool Tote, Inc.
98 Nev. 484, 486 (1982) Yochum v. Davis
paid $5,000 in 1975 for approximately 100 shares of stock in Tool Tote, Inc. A Buy-Sell
Agreement mandated repurchase by Tool Tote, Inc. of a stockholder's interest upon that
stockholder's death, and provided that if all of the stockholders and Tool Tote, Inc. did not
agree on a valuation of a stockholder's interest within 180 days of that stockholder's death, the
value would be determined through arbitration. Railson acted as an officer of Tool Tote, Inc.
from 1975 until his death in January 1978. Davis inherited Railson's Tool Tote stock.
Rather than seeking arbitration pursuant to the Buy-Sell Agreement, Davis filed a
complaint against the Yochums in July 1980, alleging unjust enrichment, various violations
of fiduciary duties and the making of false or material misrepresentations on various
reports. Personal service of process on the Yochums was attempted. There is conflicting
evidence as to whether the service was legally sufficient. Davis then obtained an order for
service by publication in mid-August. The summons was duly published, but copies of the
summons and complaint were mailed to the Yochums' business address, rather than to their
residence as required by NRCP 4(e)(iii).
The court clerk entered a default against the Yochums. The district court granted Davis'
motion for judgment by default, and awarded her $5,000 plus interest, costs, and attorney's
fees. The district court subsequently denied the Yochums' motion to set aside the default and
the judgment. This appeal followed.
DENIAL OF THE MOTION TO SET ASIDE
THE DEFAULT JUDGMENT
[Headnote 1]
While each case depends upon its own facts, we have established several criteria for
evaluating a district court's exercise of discretion in granting or denying a motion to set aside
a default judgment. Under NRCP 60(b)(1), the district court may relieve a party from a final
judgment on grounds of mistake, inadvertence, surprise, or excusable neglect. We have
held that the presence of the following factors indicates that 60(b)(1) has been satisfied:
(1) a prompt application to remove the judgment;
(2) the absence of an intent to delay the proceedings;
(3) a lack of knowledge of procedural requirements; and
(4) good faith.
Hotel Last Frontier v. Frontier Prop., 79 Nev. 150, 380 P.2d 293 (1963). See Banks v. Heater,
95 Nev. 610, 600 P.2d 245 {1979); Gutenberger v. Continental Thrift and Loan Co.,
98 Nev. 484, 487 (1982) Yochum v. Davis
(1979); Gutenberger v. Continental Thrift and Loan Co., 94 Nev. 173, 576 P.2d 745 (1978);
Fagin v. Fagin, 91 Nev. 794, 544 P.2d 415 (1975); Baumann v. Nevada Colony Corp., 44
Nev. 10, 189 P. 245 (1920); Stretch v. Montezuma Mining Co., 29 Nev. 163 (1906).
[Headnotes 2, 3]
In addition to meeting the statutory requirements, the moving party must promptly tender a
meritorious defense to the claim for relief. Banks v. Heater, supra; Gutenberger v.
Continental Thrift and Loan Co., supra; Fagin v. Fagin, supra; Hotel Last Frontier v. Frontier
Prop., supra. Lastly, the court must give due consideration to the state's underlying basic
policy of resolving cases on their merits wherever possible. Id. As this court noted in Hotel
Last Frontier, an appellate court is more likely to affirm a lower court ruling setting aside a
default judgment than it is to affirm a refusal to do so. In the former case a trial upon the
merits is assured, whereas in the latter it is denied forever. 79 Nev. at 155-56, 380 P.2d at
295 (emphasis in original).
The record does not indicate that appellants received actual notice of the proceedings prior
to entry of the default judgment, or that they believed that service of process had occurred.
Appellants did not demonstrate a serious disregard of the judicial process. Gutenberger v.
Continental Thrift and Loan Co., supra. They promptly filed a responsive pleading with their
motion to set aside the default and judgment. The pleading and its accompanying affidavits
allege the presence of numerous meritorious defenses, including Davis' breach of the
Buy-Sell Agreement, Railson's purchase of one-half of his stock interest from Merritt
Yochum individually, Davis' failure to join Tool Tote, Inc. as a party, and the inapplicability
of NRS 78.145
1
due to the running of the limitations period.
[Headnote 4]
In view of the strong policy favoring resolution of disputes on their merits, and the absence
of any substantial countervailing policy in this case, we hold that the district court abused its
discretion in refusing to set aside the default judgment.
____________________

1
NRS 78.145. False or fraudulent statements by directors and officers; liability.
* * *
2. The liability imposed by this section shall exist in all cases where the contents of any such
certificate, report or notice of any material representation therein shall have been communicated either
directly or indirectly to the person so becoming a creditor or stockholder and he became such creditor or
stockholder upon the faith thereof.
3. No action can be maintained for a cause of action created by this section unless brought within 2
years from the time the certificate, report or public notice shall have been made or given by the officers
or directors of such corporation.
98 Nev. 484, 488 (1982) Yochum v. Davis
its discretion in refusing to set aside the default judgment. See Bruno v. Schoch, 94 Nev. 712,
582 P.2d 796 (1978). We therefore reverse the order of the district court, and direct the
district court to enter an order setting aside the entry of default and the default judgment.
Given our resolution of this appeal, we find no need to consider appellants' other contentions.
Reversed with instructions.
____________
98 Nev. 488, 488 (1982) County of Clark v. Blanchard Constr. Co.
THE COUNTY OF CLARK, Appellant, v. BLANCHARD CONSTRUCTION
COMPANY and EMPIRE ELECTRIC, INC., Respondents.
BLANCHARD CONSTRUCTION COMPANY, Appellant, v.
EMPIRE ELECTRIC, INC., Respondent.
No. 13549
November 30, 1982 653 P.2d 1217
Appeal from judgment affirming arbitration award and ordering payment of attorney's
fees; cross appeal of award of prejudgment interest; Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
County appealed from judgment of the district court which affirmed arbitration award in
dispute between county, contractor and subcontractor, and ordered county to pay attorney fees
of $1,750 each to contractor and subcontractor, and contractor appealed that portion of
judgment awarding prejudgment interest on $884.38 which it owed subcontractor. The
Supreme Court held that: (1) contractor did not waive its right to arbitrate; (2) award of
attorney fees did not represent manifest abuse of discretion; and (3) subcontractor did not act
unreasonably in refusing check for $884.38 tendered by contractor prior to arbitration, and
therefore, doctrine of mitigated damages did not prevent subcontractor from collecting
interest on that amount.
Affirmed.
Robert Miller, District Attorney, Victor W. Priebe, Deputy District Attorney, Clark
County, for Appellant.
Bell, Leavitt & Green and Michael J. Grace, Las Vegas for Appellant-Respondent
Blanchard.
Edwards, Hunt, Pearson & Hale, Las Vegas, for Respondent Empire.
98 Nev. 488, 489 (1982) County of Clark v. Blanchard Constr. Co.
1. Arbitration.
In view of state's policy strongly favoring arbitration where parties have previously agreed to that method
of dispute resolution, waiver of arbitration should not be lightly inferred.
2. Arbitration.
Central issue in determining waiver of right to arbitrate is not whether moving party's actions have been
consistent with arbitration, but rather, whether prejudice would occur to party opposing arbitration.
3. Arbitration.
Where county was unable to show any prejudice which had resulted from compelled arbitration of
dispute concerning who was responsible for furnishing fire alarm equipment in fire station to be
constructed, unable to establish that delay in seeking arbitration by contractor was unreasonable or that
contractor in any way engaged in willful misconduct or acted in bad faith, and contractor's role was
somewhat passive in that it was caught in middle of dispute between county and subcontractor, contractor
did not waive its right to arbitrate by filing answer to subcontractor's complaint against county, by filing
third-party complaint against county, or by responding to interrogatory propounded by subcontractor.
4. Arbitration.
General statute governing award of attorney fees contemplates award of attorney costs following trial or
special proceeding; therefore, that statute could not be applied to justify award of attorney fees incurred
during arbitration. NRS 18.010.
5. Arbitration.
Award of costs and disbursements incurred during arbitration is controlled by specific provisions of
Uniform Arbitration Act. NRS 18.010, subd. 3, 38.015 et seq., 38.125, 38.165.
6. Appeal and Error; Costs.
Award of attorney fees resides within discretion of court, and, in absence of manifest abuse of that
discretion, court's decision on issue will not be overturned.
7. Arbitration.
Where trial court was peculiarly aware of efforts expended in seeking confirmation of arbitration award
in dispute between contractor, subcontractor and county, award of attorney fees to contractor and
subcontractor did not represent manifest abuse of discretion. NRS 18.010, subd. 3, 38.015 et seq.,
38.125, 38.165.
8. Interest.
Where $884.38 check which subcontractor refused contained notation that acceptance of check paid
contractor's account to subcontractor in full on fire station constructed for county, and contractor actually
owed subcontractor additional $4,025, which contractor was seeking to collect from county in arbitration,
subcontractor did not act unreasonably in refusing check; therefore, doctrine of mitigated damages did not
prevent subcontractor from collecting interest on $884.38.
OPINION
Per Curiam:
In May of 1977, Blanchard Construction Company entered into a contract with the County
of Clark to build a fire station.
98 Nev. 488, 490 (1982) County of Clark v. Blanchard Constr. Co.
Shortly thereafter, Blanchard entered into a subcontract with Empire Electric, Inc., to provide
and install electrical equipment. Both contracts contained arbitration provisions.
Sometime during the following September, a dispute arose concerning responsibility for
supplying certain fire alarm equipment. Empire claimed that the County was obliged to
supply the equipment, and the County claimed that responsibility for the equipment lay with
Empire. Blanchard, as general contractor, supplied the equipment and backcharged Empire
for it.
The dispute had ensued for nearly a year when Empire filed a complaint against Blanchard
in district court. The complaint requested relief in the amount of $4,909.38. Of that amount,
$4,025.00 represented the backcharge stemming from the dispute between Empire and Clark
County. The remaining $884.38 was an unrelated charge against Blanchard for services
rendered by Empire. Blanchard answered the complaint and further sought indemnity by
filing a third-party complaint against the County.
In the summer of 1979, approximately one year after the filing of suit, Empire and
Blanchard moved the district court to compel arbitration. The court ordered arbitration.
1

The arbitration panel found that Empire was entitled to the total amount of $4,909.38 and
that Blanchard should be indemnified by Clark County for the amount of $4,025.00.
Blanchard and Empire petitioned the district court for confirmation of the arbitration award
and for the sum of $2,500.00 each in attorney's fees. The district court confirmed the award
and ordered that Blanchard and Empire each receive $1,750.00 in attorney's fees. The court
also awarded interest on the total amount of $4,909.38.
Clark County appeals from the judgment affirming the arbitration award and ordering
payment of attorney's fees. Blanchard appeals that portion of the judgment awarding
prejudgment interest on the $884.38 which it owed Empire.
Waiver of the Right to Arbitrate
Clark County objects to the order confirming the arbitration award on the ground that
Blanchard had waived its right to arbitrate the dispute. The County asserts two primary bases
for finding waiver. The first is that Blanchard waited approximately nine months following
the filing of Empire's complaint before moving for arbitration. The second is that Blanchard
waived its right to arbitrate by actively participating in litigation.
____________________

1
The County appealed that order to this court. We held that an order compelling arbitration is
non-appealable. Clark County v. Empire Electric, Inc., 96 Nev. 18, 604 P.2d 352 (1980).
98 Nev. 488, 491 (1982) County of Clark v. Blanchard Constr. Co.
waived its right to arbitrate by actively participating in litigation. Blanchard assertedly
engaged in active litigation by filing an answer to Empire's complaint, by filing a third-party
complaint against Clark County and by responding to interrogatories propounded by Empire.
[Headnote 1]
We begin with recognition of our state's policy strongly favoring arbitration where the
parties have previously agreed to that method of dispute resolution. See Exber, Inc. v. Sletten
Constr. Co., 92 Nev. 721, 558 P.2d 517 (1976); Lane-Tahoe, Inc. v. Kindred Constr. Co., 91
Nev. 385, 536 P.2d 491 (1975). In view of that policy, we believe that waiver should not be
lightly inferred. Carcich v. Rederi A/B Nordie, 389 F.2d 692 (2d Cir. 1968).
Clark County relies on a line of cases holding that answering to the merits of a claim
constitutes waiver of the right to arbitrate. We have carefully read these authorities and reject
the view that any participation in litigation is inconsistent with arbitration and therefore
tantamount to waiver.
2

[Headnotes 2, 3]
The central issue in determining waiver of the right to arbitrate is not whether the moving
party's actions have been consistent with arbitration, but rather, whether prejudice would
occur to the party opposing arbitration. See, e.g., Carolina Throwing Co. v. S & E Novelty
Corp., 442 F.2d 329 (4th Cir 1971); Carcich v. Rederi A/B Nordie, supra; see also Doers v.
Golden Gate Bridge, Etc., 588 P.2d 1261 (Cal. 1979). In the immediate case, Clark County
was unable to show any prejudice which had resulted from the compelled arbitration. Cf.
Keating v. Superior Court of Alameda County, 645 P.2d 1192, 1205 (Cal. 1982) (the
presence or absence of prejudice is significant). Moreover, Clark County was unable to
establish that the delay in seeking arbitration was unreasonable or that Blanchard in any way
engaged in wilful misconduct or acted in bad faith. In fact, Blanchard's role was somewhat
passive since it was caught in the middle of a dispute between the County and Empire. Under
these circumstances, we cannot say that Blanchard waived its right to arbitrate.
The Award of Attorney's Fees
Clark County next objects to the district court order awarding attorney's fees to Blanchard
and Empire.
____________________

2
In Lane-Tahoe, supra, we stated that answering to the merits of a claim could constitute a waiver. We
disapprove any interpretation of that statement, however, that is inconsistent with the views expressed in this
opinion.
98 Nev. 488, 492 (1982) County of Clark v. Blanchard Constr. Co.
[Headnotes 4, 5]
We agree with the County that NRS 18.010, the general statute governing the award of
attorney's fees, may not be applied to justify an award in this situation. The statute appears to
contemplate the award of attorney's fees following a trial or special proceeding.
3
The
award of costs and disbursements incurred during arbitration is controlled by the specific
provisions of the Uniform Arbitration Act.
There are two applicable provisions in the Uniform Arbitration Act. The first section, NRS
38.125, specifically excludes the award of attorney's fees in the absence of an express
agreement to the contrary among the parties.
4

The second applicable section, NRS 38.165, permits the court to award expenses incurred
in seeking an order confirming, modifying or correcting an arbitration award. Costs of the
application and of the proceedings subsequent thereto, and disbursements may be awarded by
the court. We interpret this provision to mean that the court is permitted to award attorney's
fees only for the effort expended in this case in obtaining an order confirming the arbitration
award and not for any efforts expended prior to that time. See Stein v. Feldmann, 407 N.E.2d
768 (Ill.App. 1980).
[Headnotes 6, 7]
The award of attorney's fees resides within the discretion of the court. Moreover, in the
absence of a manifest abuse of discretion, the court's decision on the issue will not be
overturned. Id. The trial court was peculiarly aware of the efforts expended in seeking
confirmation of the arbitration award. Since we cannot say that the award in this particular
case represents a manifest abuse of discretion, it will not be disturbed.
The Award of Prejudgment Interest
Blanchard appeals from that portion of the award which grants prejudgment interest on
$884.38, a matter which was solely between Blanchard and Empire. Blanchard contends that
since it had tendered a check for $SS4.3S prior to arbitration, Empire was not entitled to
collect interest on that amount.
____________________

3
NRS 18.010(3) states:
18.010 Award of attorney's fees.
. . .
3. In awarding attorney's fees the court may pronounce its decision on such fees at the conclusion of
the trial or special proceeding without written motion and with or without presentation of additional
evidence.
. . .

4
See also School Committee of Boston v. Dever, 395 N.E.2d 900 (Mass.App. 1979). Neither Blanchard nor
Empire has cited any evidence in the record before us of contracts containing specific provisions for attorney's
fees in the event of an arbitrated dispute.
98 Nev. 488, 493 (1982) County of Clark v. Blanchard Constr. Co.
that since it had tendered a check for $884.38 prior to arbitration, Empire was not entitled to
collect interest on that amount.
[Headnote 8]
We disagree since we conclude that Empire did not act unreasonably in refusing the
tendered check. The check which Empire refused contained the following notation:
Acceptance of this check pays our account in full on Firestation No. 21 . . . and is not subject
to audit thereafter. Blanchard, of course, actually owed Empire an additional $4,025.00,
which it was seeking to collect from Clark County in arbitration. For that reason, payment of
the $884.38 would not constitute payment in full. Regardless of whether Empire could have
accepted the conditional check and reserved its rights to pursue further claims, it surely was
under no affirmative duty to do so. Blanchard concedes as much.
We do not think that the doctrine of mitigated damages should prevent Empire from
collecting interest on the $884.38. Endorsement of the check might have produced an
additional controversy concerning Empire's entitlement to the remaining $4,025.00. The
$884.38, by Blanchard's own admission, was not in dispute. Empire did not act unreasonably
in refusing the check and thereby protecting its claim to the $4,025.00. Blanchard could have
avoided this needless appeal merely by submitting to Empire the $884.38 without a condition.
Under circumstances such as these, the wrongdoer should not be allowed to reduce its
damages by seeking refuge under the doctrine of mitigation. See C. McCormick, Handbook
on the Law of Damages, 133-34 (1935).
The judgment of the trial court is affirmed in all respects.
____________
98 Nev. 493, 493 (1982) Goodson v. State
ROBIN ANN GOODSON, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12771
November 30, 1982 654 P.2d 1006
Appeal from district court order denying appellant's motion to strike a portion of the
pre-sentence report and to have the defendant sentenced before another court, Eighth Judicial
District Court, Clark County; Addeliar D. Guy, Judge.
Defendant, who pleaded guilty to possession of cocaine, filed motion to strike a portion of
presentence report and to have sentence imposed by another court. The district court denied
defendant's motion, and defendant appealed.
98 Nev. 493, 494 (1982) Goodson v. State
denied defendant's motion, and defendant appealed. The Supreme Court held that defendant's
sentence for possession of cocaine was improperly prejudiced by the district court's
consideration of the unsupported representation in the presentence report that she was
trafficking in narcotics.
Reversed and remanded.
Morgan D. Harris, Public Defender; Peggy A. Leen, David S. Gibson, and Robert D.
Larsen, Deputy Public Defenders, Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
District court has discretion with regard to imposing sentence on the criminals before it, and such
discretion is not abused by the imposition of sentence in excess of that recommended by the State.
2. Criminal Law.
Defendant's sentence for possession of cocaine was improperly prejudiced by district court's
consideration of the unsupported representation in presentence report that defendant was trafficking in
narcotics.
OPINION
Per Curiam:
Robin Ann Goodson was charged, by way of information, with possession of cocaine, a
controlled substance. In exchange for her guilty plea, the State agreed to recommend
sentencing under the non-adjudication provisions of NRS 453.336.
1
At the time of this
incident, Ms. Goodson was eighteen years of age and had no prior record.
____________________

1
At the relevant time, the pertinent provisions of NRS 453.336 provided:
6. Whenever any person who has not previously been convicted of any offense under the provisions
of NRS 453.011 to 453.551, inclusive, or under any statute of the United States or of any state relating to
narcotic drugs, marihuana or stimulant, depressant or hallucinogenic drugs pleads guilty to or is found
guilty under this section of possession of a controlled substance not for the purpose of sale, the court,
without entering a judgment of guilt and with the consent of the accused, may defer further proceedings
and place him on probation upon terms and conditions.
7. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as
otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person
and dismiss the proceedings against him.
8. Discharge and dismissal under this section shall be without adjudication of guilt and is not a
conviction for purposes of this
98 Nev. 493, 495 (1982) Goodson v. State
A routine pre-sentence report was prepared by the Department of Parole and Probation and
filed with the district court. The following statements were included within this report under
the heading Supplemental Information: Contact with the narcotics division of the Las
Vegas Metropolitan Police Department revealed that in their belief the defendant has been
more than casually involved in the trafficking of controlled substances. They further believe
that this involvement is directly related through her association with her husband.
2
At
sentencing, the district court focused upon this material, read it into the record and indicated
that it was not presently inclined to impose sentence in the manner suggested by the State.
The matter was then continued for one week to allow Ms. Goodson an opportunity to refute
the allegation.
Recognizing the difficulty inherent in proving a negative of this sort, defense counsel
moved to strike the objectionable portion of the pre-sentence report and have Ms. Goodson
sentenced before another court. The motion was heard when the sentencing hearing resumed
and was denied. Although Ms. Goodson insisted that she was not involved in trafficking
narcotics, she presented no additional evidence to that effect. Relying upon the disputed
portion of the pre-sentence report and the circumstances surrounding the offense, the district
court articulated its belief that Ms. Goodson was, in fact, a pusher and sentenced her to two
years in the state penitentiary.
The defendant contends that district court erred when it denied her motion to strike and
have sentence imposed by another court. We agree.
[Headnote 1]
This court recognizes the discretion vested in the district court with regard to imposing
sentence on the criminals before it and has heretofore held that such discretion is not abused
through the imposition of sentence in excess of that recommended by the State. See Renard v.
State, 94 Nev. 368, 580 P.2d 470 (1978); Collins v. State, 88 Nev. 168, 494 P.2d 956 (1972).
However, we have also held that an abuse of discretion will be found when the defendant's
sentence is prejudiced from consideration of information or accusations founded on
impalpable or highly suspect evidence.
____________________
section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime,
including the additional penalties imposed for a second or subsequent convictions under the provisions of
NRS 453.011 to 453.551, inclusive.

2
The pre-sentence report indicated that Ms. Goodson's husband was approximately twenty-four years her
senior. Further, the report concluded that a one-and-one-half-year suspended sentence together with probation
for a period not to exceed two years would be appropriate in light of all the facts and circumstances relative to
this young woman.
98 Nev. 493, 496 (1982) Goodson v. State
consideration of information or accusations founded on impalpable or highly suspect
evidence. Silks v. State, 92 Nev. 91, 545 P.2d 1159 (1976); accord United States v. Weston,
448 F.2d 626 (9th Cir. 1971).
We have previously had occasion to consider the type of representation complained of in
the appeal now before us. In Deveroux v. State, 96 Nev. 388, 610 P.2d 722 (1980), the
defendant was convicted of grand larceny and sentenced to an eight-year prison term. Prior to
sentencing, two vice officers sent an unsolicited letter to the sentencing judge describing Ms.
Deveroux as one of the top five trick roll artists in Clark County. We determined that such
a letter was inappropriate for review by the district court at sentencing, but held that Ms.
Deveroux was not prejudiced thereby because the district court recognized the letter's
impropriety and refused to consider it. Hence, her sentence was not disturbed.
[Headnote 2]
Similarly, the declaration in the case at bar is essentially a bald assertion, unsupported by
any evidence whatsoever. In addition, the instant allegation is even more suspect than the one
in Deveroux because it does not identify any particular officers who believed Ms. Goodson
was trafficking in narcotics. Moreover, unlike Deveroux, the record before us clearly
demonstrates that the district court relied heavily upon this depiction in imposing sentence on
Ms. Goodson. Indeed, the objectional matter was the only information in the record which
could possibly lead the district court to the determination that Ms. Goodson was a pusher.
Considering the facts presented by this appeal, we have no doubt Ms. Goodson's sentence
was improperly prejudiced by the unsupported representation that she was trafficking in
narcotics. Her sentence is hereby vacated and the cause remanded for further proceedings
consistent with this opinion.
____________
98 Nev. 497, 497 (1982) Board of Co. Comm'rs v. C.A.G., Inc.
BOARD OF COUNTY COMMISSIONERS OF CLARK COUNTY, NEVADA, and SAM
BOWLER, ROBERT BROADBENT, DAVID CANTER, MANUEL CORTEZ, THALIA
DONDERO, JACK PETITTI, and RICHARD RONZONE, Constituting the Said
Board; JOHN A. McCARTHY, Sheriff of Clark County, Appellants, v.
C.A.G., INC., dba MAD DOGS, Respondent.
No. 13085
December 9, 1982 654 P.2d 531
Appeal from district court order granting permanent injunction. Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
Suit was instituted to enjoin county from enforcing a zoning regulation against lessee of
restaurant in apartment building and to compel county to grant lessee a conditional use permit
for duration of leasehold. The district court entered order granting permanent injunction, and
county appealed. The Supreme Court held that: (1) conduct of county in erroneously issuing a
business license and health permit to lessee of restaurant in apartment building did not
operate to estop county from enforcing its zoning regulations and, particularly, requirement of
a conditional use permit against lessee given the need to protect the interests of the public as a
whole, and (2) refusal of county to issue a conditional use permit to lessee for duration of
leasehold did not constitute an abuse of county's zoning authority and was not arbitrary and
capricious given evidence that discharge of smoke and grease from restaurant had bothered
persons living near restaurant.
Reversed.
Robert J. Miller, District Attorney, and John F. Whisenhunt, Deputy District Attorney,
Clark County, for Appellants.
George E. Graziadei, Las Vegas, for Respondent.
1. Zoning and Planning.
Conduct of county in erroneously issuing a business license and health permit to lessee of restaurant in
apartment building did not operate to estop county from enforcing its zoning regulations and, particularly,
requirement of a conditional use permit against lessee given the need to protect the interests of the public as
a whole.
2. Zoning and Planning.
Reversal by a district court of a county's disposition of a zoning matter is proper only if the county's
action can be characterized as arbitrary and capricious.
3. Zoning and Planning.
Review of zoning decisions by the district court is limited to the record made before the administrative
tribunal and, in the absence of showing that the agency acted fraudulently or arbitrarily, the
district court may not substitute its opinion for that of the administrative tribunal.
98 Nev. 497, 498 (1982) Board of Co. Comm'rs v. C.A.G., Inc.
showing that the agency acted fraudulently or arbitrarily, the district court may not substitute its opinion for
that of the administrative tribunal.
4. Zoning and Planning.
Refusal of county to issue a conditional use permit to licensee of restaurant in apartment building for
duration of leasehold did not constitute an abuse of county's zoning authority and was not arbitrary and
capricious given evidence that discharge of smoke and grease from restaurant had bothered persons living
near restaurant.
OPINION
Per Curiam:
This is an appeal from a district court order enjoining appellants (hereinafter County)
from enforcing Clark County Code (CCC) 29.30.010
1
against respondent (hereinafter
Mad Dogs). The two dispositive issues in the appeal are whether the County should have
been estopped from enforcing CCC 29.30.010 against Mad Dogs, and whether the County's
policy of issuing conditional use permits to Mad Dogs on a temporary basis constituted an
arbitrary and capricious exercise of its zoning authority. As we have resolved both issues in
the negative, we reverse.
Mad Dogs has operated its restaurant on the ground floor of a certain apartment building in
Las Vegas since April, 1978. Mad Dogs occupies the premises pursuant to a five-year lease
which includes an option to renew for an additional five years.
Before opening its restaurant, Mad Dogs applied for a business license from the County.
As a result of an error on the part of County personnel, a business license was issued to Mad
Dogs even though the restaurant is located within an H-1 zone (limited resort and
apartment), and no conditional use permit had been approved by the County as required under
CCC 29.30.010{D){4).
____________________

1
CCC 29.30.010 provides in pertinent part:
In limited resort and apartment zone H-1, no building or structure shall be erected which is arranged,
intended or designed for other than one or more of the following uses:
(A) Hotels, resort hotels, inns, and motels, . . .,
(B) Accessory buildings and uses customarily incidental to the above uses;
(C) On-premises signs subject to the provisions of Section 29.44.050(J) of this title;
(D) The following uses, upon the issuance of a conditional use permit in each case which permit shall
prescribe conditions as to building site area, materials, dimensions of yards, building setback, provisions
of adequate off-street parking and loading space, and such other matters as may be deemed necessary and
not considered and/or not specified in this title. . .
(4) Restaurants . . .
98 Nev. 497, 499 (1982) Board of Co. Comm'rs v. C.A.G., Inc.
CCC 29.30.010(D)(4). Mad Dogs then spent more than $20,000 in remodeling and
equipment expenses for its business.
2

Several months later, Mad Dogs was cited by the County for failing to obtain a conditional
use permit. Mad Dogs then sought unsuccessfully to obtain such a permit from County.
Thereafter Mad Dogs filed a complaint seeking, among other things, to enjoin County from
enforcing CCC 29.30.010 against Mad Dogs, and to compel the County to grant it a
conditional use permit for the duration of the leasehold.
The parties then entered into a stipulation providing that (1) Mad Dogs would reapply for a
conditional use permit; (2) in order to protect nearby residents, Mad Dogs would install a
smoke filtering system sufficient to filter the smoke and grease generated by its grill; and (3)
the matter could be reviewed by the district court if Mad Dogs were denied the conditional
use permit or failed to comply with the other conditions of the stipulation. In April, 1979, the
district court issued a preliminary injunction substantially embodying the provisions of the
stipulation.
The County subsequently granted Mad Dogs a conditional use permit, but only for a
six-month period. When this period expired, the permit was renewed for an additional
one-year period, conditioned upon Mad Dogs' agreement to refrain from using a grill or
similar device to cook its hotdogs.
After issuing the conditional use permit, the County, believing the matter was settled,
moved the trial court to dissolve the preliminary injunction. Mad Dogs, on the other hand,
was dissatisfied that it had obtained only a temporary conditional use permit, and thus
successfully sought the permanent injunction from which this appeal is taken.
Estoppel
The district court found that Mad Dogs justifiably relied on County's actions in issuing a
business license, noting that Mad Dogs had spent $20,000 for improvements and equipment
for its restaurant after receiving the business license. Consequently, the district court ruled
that the County was estopped from enforcing the zoning regulations against Mad Dogs. The
County disputes the district court's determination, contending that even where a person has
detrimentally relied on illegal or erroneous government action the government should not be
estopped from enforcing its zoning regulations. The County bases this argument on the notion
that the object of such regulations is to protect the public interest, rather than the self-interest
of the governing body or its agents.
____________________

2
Mad Dogs also obtained a health permit from the County in July, 1978.
98 Nev. 497, 500 (1982) Board of Co. Comm'rs v. C.A.G., Inc.
[Headnote 1]
Given the circumstances in this case, we reject the notion that the County's issuance of the
business license and the health permit estops it from enforcing its zoning regulations against
Mad Dogs. Where a public right and the protection of the public are involved, the doctrine of
estoppel is to be invoked only in rare and unusual circumstances, and should not apply where
it would defeat a policy adopted to protect the public. Scanlon v. Faitz, 373 N.E.2d 614
(Ill.App. 1978), aff'd, 389 N.E.2d 571 (Ill. 1979). In this case, it would be unfair and
inequitable to apply estoppel to protect Mad Dogs, because to do so could harm nearby
residents who were powerless to prevent the County's illegal issuance of the permits to Mad
Dogs. On the other hand, Mad Dogs had the opportunity to inform itself of the County's
zoning regulations and the need to obtain a conditional use permit. Compare Scanlon, id.
(building permits were properly revoked where builders failed to comply with ordinance
requiring them to obtain official approval of their subdivision plan). We therefore hold that
the district court erred in ruling that the County was estopped from enforcing its zoning
regulations against Mad Dogs.
Abuse of Discretion
Mad Dogs argued below, and the district court apparently agreed, that the County's failure
to issue a conditional use permit for the duration of Mad Dogs' leasehold constituted an abuse
of the County's zoning authority. Noting that the discharge of smoke and grease from the
restaurant had bothered persons living near the restaurant, the County argues that its issuance
of conditional use permits to Mad Dogs on a temporary basis simply reflects its desire to
ensure that Mad Dogs will minimize the discharge of smoke and grease from its restaurant.
[Headnotes 2, 3]
The district court's reversal of the County's disposition of this matter was proper only if the
County's action can be characterized as arbitrary and capricious. As we stated in State ex rel.
Johns v. Gragson, 89 Nev. 478, 515 P.2d 65 (1973), [t]he review of administrative decisions
by the district court and this court is limited to the record made before the administrative
tribunal, and in the absence of a showing that the agency acted fraudulently or arbitrarily, the
district court may not substitute its opinion for that of the [administrative tribunal].
[Headnote 4]
Here, particularly in light of the complaints from neighbors regarding Mad Dogs'
operation, there is no basis for characterizing the County's policy of granting conditional
use permits on a temporary basis as fraudulent or arbitrary, even if the policy may lead to
future litigation and generate uncertainty for Mad Dogs regarding possible future plans
for its restaurant.
98 Nev. 497, 501 (1982) Board of Co. Comm'rs v. C.A.G., Inc.
regarding Mad Dogs' operation, there is no basis for characterizing the County's policy of
granting conditional use permits on a temporary basis as fraudulent or arbitrary, even if the
policy may lead to future litigation and generate uncertainty for Mad Dogs regarding possible
future plans for its restaurant. Therefore, we hold that the County's disposition of this matter
should not have been overturned as fraudulent or arbitrary.
The judgment of the district court is reversed.
____________
98 Nev. 501, 501 (1982) L & T Corp. v. City of Henderson
L & T CORPORATION dba RAINBOW CLUB & CASINO; RICHARD E. THURMOND;
ARTHUR LIEBERT and JUDITH LIEBERT; CHARLES LIEBERT and TOBIE LIEBERT;
LA MOYNE F. MURRAY; LIEBERT THURMOND PARTNERSHIP and STEPHEN T.
SENDLEIN, Appellants, v. THE CITY OF HENDERSON, NEVADA; LORIN L.
WILLIAMS, Mayor of Henderson, Nevada, PHIL STOUT; J. GARY PRICE; CARLTON D.
LAWRENCE; LORIN L. WILLIAMS and LORNA KESTERSON, Councilmembers of
Henderson, Nevada; ELDORADO, INC.; SAM A. BOYD; WILLIAM S. BOYD and
JOSEPH G. CROWLEY, Respondents.
No. 13115
December 9, 1982 654 P.2d 1015
Appeal from order denying permanent injunction. Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
Objector brought action challenging city council's approval of property owner's petition for
vacation of specified segment of a street. The district court denied objector's petition for a
permanent injunction, and objector appealed. The Supreme Court held that: (1) fact that street
vacation was at the instigation of a private property owner to enable it to use the land vacated
was not ground for declaring vacation void; (2) property owner whose property did not abut
upon portion of street to be vacated did not have standing to challenge a procedurally correct
vacation, in absence of showing that it had suffered a special or peculiar damage differing in
kind from the general public; and (3) fact that private property owner would benefit from
proposed street vacation was not sufficient to constitute such fraud or abuse of discretion
as to authorize the court to interfere in the street vacation.
98 Nev. 501, 502 (1982) L & T Corp. v. City of Henderson
from proposed street vacation was not sufficient to constitute such fraud or abuse of
discretion as to authorize the court to interfere in the street vacation.
Affirmed.
George Rudiak, and Brent A. Larsen, Las Vegas, for Appellants.
Bell, Leavitt & Green, and Boyd, Huff & Brand, Las Vegas, for Respondents.
1. Municipal Corporations.
A street vacation to private interests is not sufficient, per se, to invalidate the governmental action, since
public welfare may be served by placing street lands in the hands of private individuals. NRS 278.480,
subd. 4.
2. Municipal Corporations.
Fact that street vacation was at the instigation of a private property owner to enable it to use the land
vacated was not ground for declaring vacation void.
3. Municipal Corporations.
Any person, whether or not a landowner, has standing to challenge and obtain injunctive relief against a
proposed street vacation when he or she has separate special or peculiar damage differing in kind from the
general public.
4. Municipal Corporations.
Property owner whose property did not abut upon portion of street to be vacated did not have standing to
challenge a procedurally correct vacation, in absence of showing that it had suffered a special or peculiar
damage differing in kind from the general public.
5. Administrative Law and Procedure.
Administrative agencies have inherent authority to reconsider their own decision, since the power to
decide in the first instance carries with it the power to reconsider.
6. Municipal Corporations.
Fact that private property owner would benefit from proposed street vacation was not sufficient to
constitute such fraud or abuse of discretion as to authorize the court to interfere in the street vacation.
OPINION
Per Curiam:
On three separate occasions, the respondent Eldorado, Inc. (Eldorado) petitioned the City
of Henderson to have a portion of Market Street vacated. The Eldorado owns property on
both sides of that portion of the street which it sought to vacate, and desired to develop the
vacated property in conjunction with its own property. After two denials, the Henderson City
Council approved respondents' third petition for vacation of the specified segment of Market
Street. In granting the petition, the city council was persuaded by Eldorado's presentation of
specific plans for a highrise hotel and parking garage which were to be constructed in the
immediate future.
98 Nev. 501, 503 (1982) L & T Corp. v. City of Henderson
council was persuaded by Eldorado's presentation of specific plans for a highrise hotel and
parking garage which were to be constructed in the immediate future. The successful
presentation was in contradistinction to the two earlier submissions which were lacking in
project particulars.
Appellant L & T Corporation dba Rainbow Club (Rainbow Club), who objected to the
Market Street vacation, successfully petitioned the district court for a preliminary injunction
enjoining the respondents from proceeding with the vacation. Thereafter, the district court
denied appellants' petition for a permanent injunction which is the subject of this appeal. We
are in accord with the decision of the district court.
Appellants assert, among other things, that (1) the district court did not apply the proper
legal test in regard to the vacation of a street; (2) the district court erred in concluding that
appellant Rainbow Club did not have standing to contest the vacation; and (3) the district
court erred in concluding that the city council did not abuse its discretion in vacating Market
Street.
We have previously held that [t]he standard to be used by a governing body in
determining the propriety of the vacation of a street is whether the public would be materially
injured by such vacation. NRS 278.480(4).
1
Lied v. County of Clark, 94 Nev. 275, 279, 579
P.2d 171 (1978). Despite our holding in Lied and the clearness of the statute, appellants
contend that NRS 278.480(4) should be construed as requiring a public purpose for vacating a
street; and since the portion of Market Street to be vacated will revert to respondent, a public
purpose has not been served.
[Headnotes 1, 2]
A street vacation to private interest is not sufficient, per se, to invalidate the governmental
action. The public welfare may be served by placing street lands in the hands of private
individuals. City of San Antonio v. Olivares, 505 S.W.2d 526 (Tex. 1974); Clifford v. City of
Cheyenne, 487 P.2d 1325 (Wyo. 1971). The record reflects a basis for concluding that in spite
of Eldorado's ownership of the vacated portion of the street, the public will also be benefited.
The parking garage should alleviate Henderson's parking problems while the hotel has the
potential of stimulating the city's economy. The fact that the vacation was at the instigation of
the Eldorado Club to enable them to use the land vacated is not ground for declaring the
vacation void.
____________________

1
NRS 278.480(4) provides in pertinent part:
[I]f, upon public hearing, the governing body is satisfied that the public will not be materially injured
by the proposed vacation, it shall order the street or easement vacated. The governing body may make the
order conditional, and the order shall become effective only upon the fulfillment of the conditions
prescribed.
98 Nev. 501, 504 (1982) L & T Corp. v. City of Henderson
them to use the land vacated is not ground for declaring the vacation void. Feldman v. City of
Omaha, 166 N.W.2d 421 (Neb. 1969); State ex rel. Burk v. Oklahoma City, 522 P.2d 612
(Okl. 1974). Accordingly, the district court applied the proper legal test when it concluded
that the public would not be materially injured by the vacation of Market Street.
[Headnotes 3, 4]
Appellants next argue that the district court erred in determining that they did not have
standing to challenge the vacation. We disagree. The district court premised its determination
on our holding in Lied v. County of Clark, supra. Lied stands for the general proposition that
a property owner whose property does not abut upon the portion of the street to be vacated,
does not have standing to challenge a procedurally correct vacation. However, an exception to
the general rule is that any person, whether or not a landowner, has standing to challenge and
obtain injunctive relief against a proposed vacation when he or she has suffered special or
peculiar damage differing in kind from the general public. See, Teacher Bldg. Co. v. City of
Las Vegas, 68 Nev. 307, 232 P.2d 119 (1951), and Blanding v. City of Las Vegas, 52 Nev.
52, 280 P. 644 (1929). Here, appellants have not shown such special or peculiar injury. The
claim of special injury due to interference with property access and a diminution in property
value through loss of business is not supported by case law. The vacation of a street requiring
travel by a more circuitous route is not a special injury as long as the landowner still retains
an alternate mode of egress from or ingress to his or her land, even if less convenient.
Blanding v. City of Las Vegas, id. See also, Hoskins v. City of Kirkland, 503 P.2d 1117
(Wash.App. 1972). Furthermore, in Blanding, we determined that the contemplated loss of
customers and business due to a vacation of a street are too remote and speculative to be
considered special legal injuries.
[Headnotes 5, 6]
Finally, appellants contend that there are two instances where the city council abused its
discretion: (1) the council was foreclosed from reconsidering its prior determinations; and (2)
the council should not have granted the petition because the Eldorado would benefit from the
proposed vacation. We believe the record supports the council's decision, and that the city
council acted within the bounds of its discretion. First of all, [a]dministrative agencies have
an inherent authority to reconsider their own decision, since the power to decide in the first
instance carries with it the power to reconsider. Trujillo v. General Electric Co., 621 F.2d
1084, 1086 (10th Cir. 1980).
98 Nev. 501, 505 (1982) L & T Corp. v. City of Henderson
In Eagle Thrifty v. Hunter Lake P. T. A., 85 Nev. 161, 451 P.2d 713 (1969), we concluded
that in the absence of any specific rehearing provision in a city code, the city council has the
authority to rehear successive petitions by the same party. Therefore, the city council did not
abuse its discretion by reconsidering the Eldorado's petition. Secondly, this Court stated in
Blanding v. City of Las Vegas, 52 Nev. 52, 77, 280 p. 644 (1929):
The mere fact that petitioners for the vacation of a street or other persons will be
benefited by such vacation is not sufficient to constitute such fraud or abuse of
discretion as to authorize a court to interfere. And the court will not ordinarily look into
the motives influencing the local authorities.
Based on the foregoing, we perceive no error on the part of the district court.
Other issues not specifically addressed are deemed to be without merit.
Affirmed.
____________
98 Nev. 505, 505 (1982) Hobson v. Bradley & Drendel, Ltd.
R. H. HOBSON and OVERLAND, INC., a Nevada Corporation, Appellants, v. BRADLEY
& DRENDEL, LTD., a Professional Corporation, Respondent.
No. 13438
December 9, 1982 654 P.2d 1017
Appeal from judgment awarding attorney fees, interest thereon, and cost of suit, Second
Judicial District Court, Washoe County; James J. Guinan, Judge.
Attorney sued corporation client and individual client to recover attorney fees. The district
court rendered judgment for the attorney in the amount of $67,500 and clients appealed. The
Supreme Court held that: (1) substantial evidence supported the findings of the trial court,
and (2) the individual could not be held jointly liable with the corporation for the value of
services performed for the corporation where the individual was not an alter ego of the
corporation and did not agree to be obligated personally for those services.
Affirmed in part, reversed in part.
Guild, Hagen & Clark, Ltd., Reno, For Appellants.
Jack Streeter, Reno, for Respondent.
98 Nev. 505, 506 (1982) Hobson v. Bradley & Drendel, Ltd.
1. Appeal and Error.
Findings of fact which are rendered by trial court will not be disturbed where they are supported by
substantial evidence.
2. Attorney and Client.
In action against corporate client and individual client for recovery of attorney fees, substantial evidence
supported trial court's findings that value of attorney's services regarding lease-purchase agreement was
$60,000, that services performed in connection with that transaction were not covered by retainer fee, and
that value of services rendered with regard to divorce was $7,500.
3. Corporations.
Individual could not be held jointly liable with corporation for fees owed to attorney where individual
was not alter ego of corporation and individual did not agree to be obligated personally for services
performed by attorney for corporation.
OPINION
Per Curiam:
This action is for the recovery of attorney fees. John Drendel, a member of respondent law
firm, was the attorney for appellant Overland, Inc., prior to August 22, 1977. Respondent was
to be paid an annual retainer fee to handle the day-to-day legal matters of the corporation.
Respondent also represented appellant R. H. Hobson individually in a contested divorce
action from its inception in October, 1974, through about August of 1977.
Respondent filed suit in 1978 for recovery of attorney fees allegedly owed. The complaint
contended, in part, that respondent represented appellant Hobson in the divorce action for
approximately three years, that respondent had not been paid, and that respondent was
entitled to fees in a specified amount. The complaint also sought recovery of fees in a second
cause of action against appellant Hobson and appellant Overland, Inc., for services allegedly
performed relating to a lease with an option to purchase certain property.
The trial court found, in part, that the value of services rendered for representation in the
divorce action was $7,500; that the value of legal service rendered to both appellants in
negotiating the lease-purchase agreement was $60,000; and that these services were not
included within respondent's retainer fee.
[Headnote 1]
Appellants contend that certain of the findings which were made by the district court were
not supported by sufficient evidence. Findings of fact which are rendered by a trial court will
not be disturbed where they are supported by substantial evidence.
98 Nev. 505, 507 (1982) Hobson v. Bradley & Drendel, Ltd.
not be disturbed where they are supported by substantial evidence. Joseph F. Sanson Inv. v.
Cleland, 97 Nev. 141, 625 P.2d 566 (1981).
[Headnote 2]
A review of the record reveals that there is substantial evidence to support the findings of
the trial court that the value of respondent's services regarding the lease-purchase agreement
was $60,000, and that the services performed in connection with that transaction were not
covered by the retainer fee. Futhermore, there is substantial evidence in the record to support
the finding that the value of the services rendered with regard to the divorce action was
$7,500.
[Headnote 3]
Appellant Hobson also contends that the trial court erred in finding him jointly liable with
appellant Overland, Inc., for the value of services performed in connection with the
lease-purchase agreement. We agree. Respondent did not pursue an alter ego theory against
appellant Hobson, and there was insufficient evidence to support a finding that appellant
Hobson agreed to be obligated personally for the services performed by respondent regarding
the lease-purchase agreement.
Accordingly, we reverse that portion of the judgment holding appellant Hobson
individually liable for the services rendered in connection with the lease-purchase agreement.
In all other respects, the judgment is affirmed.
____________
98 Nev. 507, 507 (1982) Sentry Systems, Inc. v. Guy
SENTRY SYSTEMS, INC., aka DIOGENES SYSTEMS, INC.,
Appellant, v. GORDON M. GUY, Respondent.
No. 13611
December 9, 1982 654 P.2d 1008
Appeal from an order denying a motion for a stay of civil proceedings and order
compelling arbitration; Eighth Judicial District Court, Clark County; Robert G. Legakes,
Judge.
Action was filed for cancellation of written franchise agreement by reason of claimed
misrepresentations and nondisclosures. The district court denied motion for an order
compelling arbitration, and appeal was taken. The Supreme Court held that: (1) although
contract provided that California law governed, contract was subject to Federal Arbitration
Act and federal law in relation thereto and therefore California law did not govern case; {2)
claim of fraud in inducement had to be submitted to arbitration provided for by franchise
agreement; and {3) answer, which included affirmative defense of obligatory arbitration
but did not include express demand for arbitration, did not constitute waiver of right of
arbitration.
98 Nev. 507, 508 (1982) Sentry Systems, Inc. v. Guy
govern case; (2) claim of fraud in inducement had to be submitted to arbitration provided for
by franchise agreement; and (3) answer, which included affirmative defense of obligatory
arbitration but did not include express demand for arbitration, did not constitute waiver of
right of arbitration.
Reversed with instructions.
McDonald, Carano, Wilson, Bergin, Bible, Frankovich & Hicks, and William A. S.
Magrath, II, Reno, for Appellant.
Rickdall & Shulman, Las Vegas, for Respondent.
1. Commerce.
Although written franchise agreement provided that California law governed, where agreement
contemplated interstate commerce on its face and evidenced a transaction involving commerce, contract
was subject to Federal Arbitration Act and federal law in relation thereto, and thus California law did not
govern suit for cancellation of agreement by reason of claimed misrepresentations and nondisclosures. 9
U.S.C.A. 1-14.
2. Arbitration.
Claim of fraud in inducement of written franchise agreement, which provided that any controversy arising
out of contract should be submitted to arbitration, had to be submitted to arbitration. 9 U.S.C.A. 1-14.
3. Arbitration.
Answer which included affirmative defense of obligatory arbitration but did not include express demand
for arbitration did not constitute waiver of right of arbitration in suit for cancellation of franchise agreement
by reason of claimed misrepresentations and nondisclosures. 9 U.S.C.A. 1-14.
OPINION
Per Curiam:
Sentry and Guy are parties to a written franchise agreement which provides that any
controversy arising out of their contract should be submitted to arbitration. Guy filed suit for
cancellation of the agreement by reason of certain claimed misrepresentations and
non-disclosures. Sentry made a written demand for arbitration as provided in the contract and
moved the court for an order compelling arbitration. The motion was denied and Sentry
appeals.
The principal issue in this appeal is whether a claim of fraud in the inducement asserted in
Guy's complaint removes the controversy from the field of arbitration. It is Guy's position that
the contract provides that California law governs and that, therefore, under California law
(Main v. Merrill Lynch, 136 Cal.Rptr.
98 Nev. 507, 509 (1982) Sentry Systems, Inc. v. Guy
Cal.Rptr. 378 (Ct.App. 1977)), where there is an allegation that fraud permeates an
agreement, the issue must be determined judicially and not by arbitration.
[Headnote 1]
California law does not govern this case, however. Because the agreement contemplates
interstate commerce on its face and evidences a transaction involving commerce, the
contract is subject to the Federal Arbitration Act, 9 U.S.C. 1-14, and federal law in relation
thereto.
1

The issue before us is resolved by Prima Paint Corp. v. Flood & Conkling Mfg. Co., 388
U.S. 395 (1967), wherein it was held that a general claim of fraud in the inducement of a
contract is arbitrable but a specific claim of fraud in the inducement of the arbitration clause
itself is for the courts to decide and that this rule--one of national substantive law'--governs
even in the face of a contrary state rule. 388 U.S. at 400, quoting Robert Lawrence Co. v.
Devonshire Fabrics, Inc., 271 F.2d 402, 409 (C.A. 2d Cir. 1959), cert. granted, 362 U.S. 909,
dismissed under Rule 60, 364 U.S. 801 (1960). In Pinkis v. Network Cinema Corp., 512 P.2d
751, 755 (Wash.App. 1973), the Washington Court of Appeals remarked that [t]his decision
is necessary if the federal arbitration act is to have any efficacy at all, noting that [t]he act
was to be as widely effective as possible. See Robert Lawrence Co., supra, 271 F.2d 402,
410 (2nd Cir. 1959), wherein the court noted that,
the parties are entitled to agree, should they desire to do so, that one of the questions for
arbitrators to decide in case the controversy thereafter arises, is whether or not one of
the parties was induced by fraud to make the principal contract. . . .
The issue of fraud seems inextricably enmeshed in the other factual issues of the case. .
. .
____________________

1
9 U.S.C. 2 states in pertinent part:
A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration
a controversy thereafter arising out of such contract or transaction, . . . shall be valid, irrevocable, and
enforceable, save upon grounds as exist at law or in equity for the revocation of any contract.
The Franchise Agreement on its face involves interstate commerce. It contemplates an on-going relationship
conducting business across state lines. Sentry, a California corporation has agreed to train, equip, and license
the prospective franchise buyer and promises extensive follow up and on-going assistance to the franchisee, and
the franchisee has agreed to operate a business in Nevada and to pay royalties to the California corporation in
return for use of the trademark, license and assistance.
98 Nev. 507, 510 (1982) Sentry Systems, Inc. v. Guy
[Headnote 2]
Under the national substantive law mentioned in Prima Paint, there can be no question but
that the controversy of these parties should be submitted to arbitration.
[Headnote 3]
Sentry filed an answer to Guy's complaint. The answer included an affirmative defense of
obligatory arbitration but did not include an express demand for arbitration. Such an answer,
Guy argues, constitutes a waiver of the right of arbitration. Based on our holding in County of
Clark v. Blanchard Construction Co., 98 Nev. 488, 653 P.2d 1217 (1982), we reject this
argument.
For the reasons stated the order of the district court will be reversed with instructions that
the parties are to be ordered to proceed with arbitration in the manner required by the
franchise agreement.
____________
98 Nev. 510, 510 (1982) Mullis v. Nevada National Bank
TOM N. MULLIS, M.D., Individually and on Behalf of Himself and All Other Stockholders
of 221 NORTH VIRGINIA STREET, INC., a Nevada Corporation, dba SILVER SPUR
CASINO, Appellants, v. NEVADA NATIONAL BANK, A National Banking Association,
Respondent.
No. 13642
December 9, 1982 654 P.2d 533
Appeal from summary judgment. Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
In an interpleader action, the district court entered summary judgment in favor of lender,
and borrower appealed. The Supreme Court held that material issue of genuine fact existed as
to whether lender had a security interest in borrower's cash dividends from certain stock used
as collateral for the loan.
Reversed and remanded.
Eric Zubel, Jeffrey N. Samuels; Darrell L. Clark, Las Vegas, for Appellants.
Guild, Hagen & Clark, and C. David Russell, Reno, for Respondent.
1. Judgment.
Material issue of genuine fact existed as to whether lender had a security interest in borrower's cash
dividends from certain stock used as collateral for the loan, precluding summary judgment in favor of
either borrower or lender in interpleader action.
98 Nev. 510, 511 (1982) Mullis v. Nevada National Bank
2. Judgment.
Where there is ambiguity in a written contract and extrinsic evidence is required to ascertain intention of
the parties, summary judgment should not be entered in face of contradictory or conflicting evidence.
OPINION
Per Curiam:
This appeal involves the district court's interpretation of various loan documents.
Summary judgment was entered in favor of the author of the subject documents. Because
substantial factual disputes are both material and apparent, we must reverse.
In March of 1977, appellant Mullis and respondent Nevada National Bank (Bank) entered
into a loan agreement under which the Bank loaned Mullis $2.1 million. This loan was
evidenced by a promissory note secured by Mullis's real and personal assets, including
approximately 867 shares of stock in the Silver Spur Casino (Silver Spur).
In 1979, the Silver Spur declared a dividend from which Mullis received approximately
$85,000. Mullis immediately loaned the $85,000 back to the Silver Spur. Shortly thereafter,
Mullis defaulted in his payments on the promissory note and the loan became delinquent.
Rather than declare a default and demand payment in full, the Bank elected to assist Mullis in
his efforts to sell some of his assets. These efforts, however, proved to be futile.
Thereafter, the Bank advised the Silver Spur that it claimed the right to any dividends
and/or earnings on Mullis's stock by virtue of the Pledge and Security agreement entered into
between the parties as part of the March, 1977 loan transaction. When the Silver Spur decided
to distribute the corporation's retained earnings to its shareholders, it sent a letter to both
Mullis and respondent informing them that the former's share of the distribution was $28,890,
and that the corporation would hold that amount pending distribution instructions from both
parties.
Mullis then filed a complaint against the Silver Spur and its corporate officers and
directors alleging, among other things, that the Silver Spur was indebted to him in the sum of
$85,000 by virtue of the loan of March of 1979, and that he was entitled to the $28,890 as his
share of the distribution of the retained earnings. The Silver Spur did not contest these
allegations and voluntarily deposited the total amount with the clerk of the court.
The Silver Spur responded to the complaint by filing a third party complaint for
interpleader against the Bank on the ground that the Bank had previously made claim to
all funds which were now deposited with the court.
98 Nev. 510, 512 (1982) Mullis v. Nevada National Bank
party complaint for interpleader against the Bank on the ground that the Bank had previously
made claim to all funds which were now deposited with the court. The Bank, in turn,
counterclaimed for the $85,000 claiming that it was entitled to this amount as a dividend
declared by the Silver Spur. Eventually, all the parties to the action entered into a stipulation
whereby appellants' complaint against the Silver Spur would be dismissed as would the
Bank's counterclaim against the Silver Spur. However, the court retained jurisdiction to
determine the rights of the parties to the deposited funds. In the interpleader action, the
district court determined that there existed no genuine issue of fact and, as a matter of law,
the Bank was entitled to the sum of $129,795.75.
1
We reverse.
[Headnote 1]
The constraints applicable to a summary proceeding are well-defined. Trial judges are
admonished to exercise great caution in granting summary judgment. Litigants are not to be
deprived of a trial on the merits if there is the slightest doubt as to the operative facts.
Summary judgment may not be used as a short cut to the resolving of disputes upon facts
material to the determination of the legal rights of the parties. Parman v. Petricciani, 70 Nev.
427, 272 P.2d 492 (1954). The trial court should review the record searchingly for material
issues of fact, the existence of which eliminate the propriety of summary treatment. Further,
pleadings and documentary evidence must be construed in a posture which is most favorable
to the party against whom the motion for summary judgment is directed. Dugan v. First Nat.
Bank In Wichita, 606 P.2d 1009 (Kan. 1980); Short v. Hotel Riviera, Inc., 79 Nev. 94, 378
P.2d 979 (1963). An entry of summary judgment is proper only when there are no issues of
fact and the moving party is entitled to such an expedited judgment as a matter of law. And
the burden of proving the absence of triable facts is upon the moving party. Id.
It is our function on review to determine, in a light most favorable to appellants, whether
factual issues exist. Parman, supra. We may also be required to determine whether the law
has been correctly perceived and applied by the district court. Our review of the record
indicates that a genuine issue of material fact exists with respect to whether the parties
specifically intended to exclude a security interest in the cash dividends derived from the
shares of Silver Spur stock pledged as security.
____________________

1
The funds deposited with the clerk of the court had been deposited in an interest bearing account. By the
time the lower court entered judgment in the interpleader action, the amount had grown to this sum.
98 Nev. 510, 513 (1982) Mullis v. Nevada National Bank
The express language of the loan agreement, coupled with the even more precise language
under paragraph 2 of the Pledge and Security Agreement leave substantial doubt as to
whether the Bank had a security interest in Mullis's cash dividends from the Silver Spur
stock.
2

[Headnote 2]
It would appear to us that the most that could be said in support of respondent's position
regarding the cash dividends from Mullis's Silver Spur stock is that the agreements relating
thereto may be ambiguous. In view of the established rule requiring an agreement to be
construed most strongly against the authoring party, Estwin Corp. v. Prescription Ctr.
Pharmacy, 93 Nev. 251, 563 P.2d 78 (1977), it is clear that no reasonable construction of the
instruments here involved would support a summary conclusion favoring the Bank's
entitlement to the cash dividends. If, as held by the district court, the agreements are clear
and unambiguous, then, in our view, the specific, non-boilerplate language excluding
Mullis's cash dividends from the Bank's security would seem to be dispositive. We
nonetheless conclude that sufficient ambiguity exists to warrant a trial on the merits. Where
there is ambiguity in a written contract and extrinsic evidence is required to ascertain the
intention of the parties summary judgment should not be entered in the face of contradictory
or conflicting evidence. Mobile Acres, Inc. v. Kurata, 508 P.2d 889, 895 (Kan. 1973).
Accordingly, we must reverse the district court's order granting summary judgment to the
Bank. Since our decision is dispositive of this appeal, we decline to consider other issues
raised by the parties. Therefore, we reverse and remand the case for further proceedings in
accordance with this opinion.
____________________

2
It seems clear, absent strong evidence to the contrary, that paragraph 2 entitled Distributions On Collateral;
Subscription Rights applied to all collateral held by the Bank including the Silver Spur stock owned by Mullis.
It seems equally clear that the statement identified by the asterisk at the bottom of page 6, which applied to the
paragraph 2 language referring, inter alia, to stock dividends, was separately bargained for since it was
obviously added to the completed agreement by a different typewriter. The referenced statement is written as an
exception to the enumerated collateral in paragraph 2 and reads as follows: Save and except for any cash
dividends or royalty distributions.
____________
98 Nev. 514, 514 (1982) Private Inv. Licensing Bd. v. Atherley
PRIVATE INVESTIGATOR'S LICENSING BOARD, Appellant, v.
NORMAN ATHERLEY, Respondent.
No. 13659
December 9, 1982 654 P.2d 1019
Appeal from order reversing decision of Private Investigator's Licensing Board, Eighth
Judicial District Court, Clark County; Carl J. Christensen, Judge.
Private Investigator's Licensing Board appealed from an order of the district court
reversing Board's decision denying an application for a process server's license. The Supreme
Court held that: (1) Board's denial was not the result of a contested case, and judicial
review under the Administrative Procedure Act was not available, and (2) Board's
determination that applicant's experience as a security guard was not the equivalent of process
server's experience, and thus that applicant did not have the requisite experience for a license,
was not arbitrary or capricious.
Reversed and remanded.
Richard H. Bryan, Attorney General, Brooke A. Nielsen and Jane W. Nelson, Deputy
Attorneys General, Carson City, for Appellant.
Reid and Alverson, Eric Taylor, Las Vegas, for Respondent.
1. Detectives.
Judicial review under Administrative Procedure Act was not available for applicant for process server's
license since governing statutes did not require notice and opportunity for hearing prior to determination by
Private Investigator's Licensing Board on an application for such license, and thus Board's denial was not
result of a contested case. NRS 233B.032, 233B.127, subd. 1, 233B.130, subd. 1, 648.005 et seq.
2. Detectives.
Determination by Private Investigator's Licensing Board that experience as a security guard by applicant
for process server's license was not equivalent of process server's experience, and thus that applicant did
not have the requisite experience for a license, was not arbitrary or capricious. NRS 648.110, subd. 1(i).
OPINION
Per Curiam:
On February 13, 1981, Norman Atherley filed an application for a process server's license.
He took and passed a written examination, and on April 29, 1981, he appeared for an oral
examination and interview before the Private Investigator's Licensing Board {hereinafter
referred to as the "Board").
98 Nev. 514, 515 (1982) Private Inv. Licensing Bd. v. Atherley
examination and interview before the Private Investigator's Licensing Board (hereinafter
referred to as the Board). The Board determined that Atherley did not have the requisite
experience for a process server's license, and the application was denied. Atherley petitioned
the district court for review of the administrative decision, arguing that the Board abused its
discretion and exercised its discretion in an arbitrary and capricious manner. The district court
agreed, reversed the Board's decision, and ordered the Board to grant a license to Atherley.
This appeal is from the district court's order. We reverse.
We must determine initially whether the district court had jurisdiction in this case.
Pursuant to the Nevada Administrative Procedure Act (NRS Chapter 233B), not every
administrative decision is reviewable. Instead, the district court has jurisdiction to review
only contested cases in licensing matters. NRS 233B.130.
1
A contested case is defined
as a proceeding in which the rights of a party are required by law to be determined after an
opportunity for a hearing. NRS 233B.032;
2
see also NRS 233B.127(1).
3

[Headnote 1]
The procedures relating to process server licenses are contained in NRS Chapter 648. The
statutes do not require notice and an opportunity for hearing prior to the Board's
determination on an application for such a license. Thus, the Board's denial was not the result
of a contested case, and judicial review under the Administrative Procedure Act was not
available. Southwest Gas Corp. v. Public Serv. Comm'n, 92 Nev. 48, 546 P.2d 219 (1976);
see Capitol Hill Restoration Soc., Inc. v. Moore, 410 A.2d 184 (D.C.App. 1979); McAuliffe
v. Carlson, 303 A.2d 746 (Conn. C.P. 1973).
[Headnote 2]
Even if Atherley's petition for review is viewed as a petition for writ of mandamus, the
petition fails on its merits. The issue presented to the Board was whether Atherley's
experience as a security guard qualified as equivalent process server's experience under
NRS 64S.110{1){i).4 The Board determined that Atherley's experience as a security guard
was not the equivalent of process server's experience, and we perceive nothing arbitrary
or capricious in that determination.
____________________

1
NRS 233B.130(1) provides, in part, that
[a]ny party aggrieved by a final decision in a contested case is entitled to judicial review thereof under
this chapter. (Emphasis added.)

2
NRS 233B.032 provides as follows:
Contested case means a proceeding, including but not restricted to rate making and licensing, in
which the legal rights, duties or privileges of a party are required by law to be determined by an agency
after an opportunity for hearing, or in which an administrative penalty may be imposed.

3
NRS 233B.127(1) provides as follows:
When the grant, denial or renewal of a license is required to be preceded by notice and opportunity
for hearing, the provisions of this chapter concerning contested cases apply.
98 Nev. 514, 516 (1982) Private Inv. Licensing Bd. v. Atherley
presented to the Board was whether Atherley's experience as a security guard qualified as
equivalent process server's experience under NRS 648.110(1)(i).
4
The Board determined that
Atherley's experience as a security guard was not the equivalent of process server's
experience, and we perceive nothing arbitrary or capricious in that determination. See
Kochendorfer v. Board of Co. Comm'rs, 93 Nev. 419, 566 P.2d 1131 (1977) (mandamus not
available to control exercise of discretion unless arbitrary or capricious).
Accordingly, we reverse the order of the district court, and we remand with instructions to
dismiss Atherley's petition for review.
Reversed and remanded.
____________________

4
NRS 648.110(1)(i) provides that an applicant for a process server's license must have
at least 2 years' experience as a process server, or the equivalent thereof, as determined by the board.
____________
98 Nev. 516, 516 (1982) Simpson v. O'Donnell
LOYD N. SIMPSON, Petitioner, v. THOMAS J. O'DONNELL, Judge, Eighth Judicial
District Court of the State of Nevada, Respondent.
No. 14207
December 9, 1982 654 P.2d 1020
Husband brought mandamus proceeding challenging order of district court quashing
service of process on wife in divorce action. The Supreme Court held that: (1) because
husband was domiciled in Nevada, Nevada court had jurisdiction to dissolve the marriage; (2)
because wife was domiciled in Georgia, court did not have jurisdiction to adjudicate the
incidences of the parties' marriage; and (3) wife had not made a general appearance.
Writ granted.
John E. Stone, Las Vegas, for Petitioner.
Earl & Earl, Las Vegas, for Respondent.
1. Divorce.
Where husband was domiciled in Nevada, Nevada court had jurisdiction to dissolve marriage, even
though wife was domiciled in Georgia.
2. Divorce.
Before adjudicating the incidence of the parties' marriage, district court was required to obtain in
personam jurisdiction over both husband and wife.
98 Nev. 516, 517 (1982) Simpson v. O'Donnell
3. Divorce.
Where wife was domiciliary of Georgia and did not appear in Nevada divorce proceeding, Nevada court
could not adjudicate wife's right to child custody, child support, or alimony.
4. Appearance.
Fact that wife raised prior Georgia decree as a defense along with a motion to quash service of process in
Nevada divorce action did not amount to a general appearance in Nevada.
OPINION
Per Curiam:
In this mandamus proceeding, petitioner Simpson challenges the order of the district court
quashing service of process on the real party in interest, Gertrud L. Simpson.
On May 7, 1982, Loyd Simpson filed a complaint in district court, against Gertrud
Simpson, seeking a dissolution of his marriage, a custody determination of the parties' minor
children with visitation rights, and an order of child support.
1

Shortly thereafter, Mrs. Simpson, a domiciliary of Georgia, moved the district court for an
order quashing service of process upon her. She alleged that a prior judgment for legal
separation was entered in a Georgia court awarding her $167 per month, per child, for each of
three minor children, and permanent alimony in the sum of $150 per month. She contended
that these prior adjudicated support rights . . . cannot be terminated by a court unless that
court has in personam jurisdiction over the defendant wife. Further, she contended that the
Nevada court did not have personal jurisdiction over her and could not acquire such
jurisdiction under Nevada's long-arm statute, NRS 14.065. The district court granted Mrs.
Simpson's motion, and this petition followed.
[Headnote 1]
Mr. Simpson first contends that the district court at least had jurisdiction to dissolve the
marital status of the parties since he is domiciled in Nevada. We agree. It is well settled that a
divorce proceeding is an in rem proceeding in which a court has jurisdiction to change the
marital status of the parties even when only one party to a marriage is a bona fide resident of
the state in which that court is located. In re Marriage of Rinderknecht, 367 N.E.2d 1128,
1133 (Ind.Ct.App. 1977). See also Estin v. Estin, 334 U.S. 541 (1948). Indeed, Mrs. Simpson
concedes that Nevada courts may grant a divorce if Mr. Simpson has established sufficient
residence in Nevada.
____________________

1
Loyd Simpson offered to give Gertrud Simpson, his wife, custody of their minor children and to pay her
$150 per month in child support.
98 Nev. 516, 518 (1982) Simpson v. O'Donnell
[Headnotes 2, 3]
Before adjudicating the incidences of the parties' marriage, however, the district court is
required to obtain in personam jurisdiction over both Mr. and Mrs. Simpson. Vanderbilt v.
Vanderbilt, 354 U.S. 416 (1957); Estin, supra; Farnham v. Farnham, 80 Nev. 180, 391 P.2d
26 (1964); Summers v. Summers, 69 Nev. 83, 241 P.2d 1097 (1952). The district court did
not have personal jurisdiction over Mrs. Simpson since she is a domiciliary of Georgia and
she did not appear in the divorce proceeding below.
2
Thus, it could not adjudicate Mrs.
Simpson's rights to child custody, child support, and alimony.
[Headnote 4]
We find no merit to Mr. Simpson's contention that Mrs. Simpson entered a general
appearance and thereby subjected herself to the lower court's jurisdiction by raising the prior
Georgia decree as a defense along with her motion to quash. She did not request relief
additional to that necessary to protect her from service of process. See Davis v. District Court,
97 Nev. 332, 629 P.2d 1209 (1981). She merely argued that the district court did not have the
requisite personal jurisdiction over her.
Accordingly, we grant the writ of mandamus and direct the district court to proceed with
that part of petitioner's complaint requesting dissolution of the parties' marriage. For that
limited purpose, the district court shall vacate its order quashing service of process on Mrs.
Simpson.
____________________

2
Petitioner Simpson does not contend that Nevada's long-arm statute, NRS 14.065(2)(e), provides the basis
for personal jurisdiction over Mrs. Simpson, and we express no opinion on this issue.
____________
98 Nev. 518, 518 (1982) Darnell v. State
JAMES J. DARNELL, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 12775
December 9, 1982 654 P.2d 1009
Appeal from denial of petition for writ of habeas corpus, or in the alternative, for
post-conviction relief. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Former police officer, who was convicted of attempted possession of stolen firearms in
connection with purchase of recaptured guns from police informant, appealed from a decision
of the district court denying his petition for writ of habeas corpus or, in the alternative, for
post-conviction relief. The Supreme Court, Manoukian, J., held that where police officer
offered no satisfactory reason for failure to raise common law theory of legal impossibility
in first habeas corpus petition, argument that Supreme Court decision requiring only
intent to commit crime and direct but ineffectual act toward commission of crime for
conviction of attempt represented change in law and, if applied retroactively to him,
would constitute impermissible ex post facto ruling would not be entertained in support
of post-conviction relief.
98 Nev. 518, 519 (1982) Darnell v. State
Court, Manoukian, J., held that where police officer offered no satisfactory reason for failure
to raise common law theory of legal impossibility in first habeas corpus petition, argument
that Supreme Court decision requiring only intent to commit crime and direct but ineffectual
act toward commission of crime for conviction of attempt represented change in law and, if
applied retroactively to him, would constitute impermissible ex post facto ruling would not be
entertained in support of post-conviction relief.
Affirmed.
[Rehearing denied February 24, 1983]
Springer, J., and Gunderson, C. J., dissented.
David Hamilton, Reno, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney,
and Edward B. Horn, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Successive post-conviction applications need not be considered by Supreme Court unless petitioner
satisfactorily demonstrates in latter petition why he failed to raise issue in former application.
2. Criminal Law.
Where police officer, who was convicted of attempted possession of stolen firearms in connection with
purchase of recaptured guns from police informant, offered no satisfactory reason for failure to raise
common law theory of legal impossibility in first habeas corpus petition, argument that Supreme Court
decision requiring only intent to commit crime and direct but ineffectual act toward commission of crime
for conviction of attempt represented change in law and, if applied retroactively to him, would constitute
impermissible ex post facto ruling would not be entertained in support of post-conviction relief. NRS
1.030.
OPINION
By the Court, Manoukian, J.:
Darnell appeals from a denial of his petition for writ of habeas corpus, or in the alternative,
for post-conviction relief.
Appellant, a Reno police officer, was convicted by jury verdict of attempted possession of
stolen firearms, sold to him by a police informant. On direct appeal from that conviction,
Darnell contended that it was legally impossible to commit the crime of attempted possession
of stolen property, when the guns in question were not, in fact, stolen at the time of the
incident, but had been recaptured by police. Darnell v. State, 92 Nev. 680, 558 P.2d 624
(1976). We rejected that contention, finding that [a]n attempt requires only that the appellant
have an intent to commit the crime and that he take a direct but ineffectual act toward
the commission of the crime.
98 Nev. 518, 520 (1982) Darnell v. State
an intent to commit the crime and that he take a direct but ineffectual act toward the
commission of the crime. NRS 208.070. . . . Id. at 682, 558 P.2d at 625-626. In a petition for
rehearing, appellant contended that because the Darnell decision overturned the earlier case
of State v. Charley Lung, 21 Nev. 209, 28 P. 235 (1891),
1
that decision resulted in ex post
facto criminality, in violation of his due process guarantees.
Appellant then sought habeas corpus relief in federal court based, in part, on the ex post
facto considerations. In the federal proceedings, the state claimed that the pertinent language
in State v. Charley Lung was merely obiter dicta. The state reasoned that because the Lung
case was without precedential value, our decision in Darnell v. State had no ex post facto
effect. The United States District Court for Nevada, finding state remedies not exhausted,
transferred the federal file to this court, which we accepted as an original application for writ
of habeas corpus. We determined that Darnell v. State, supra, did not result in ex post facto
criminality and agreed with the state that the language in State v. Charley Lung relating to
legal impossibility was obiter dicta. Appellant again sought federal habeas corpus relief,
contending, for the first time, that if the passage in State v. Charley Lung was merely dicta,
then NRS 1.030 required that the common law be regarded as the law extant prior to Darnell
v. State, when appellant's conduct occurred. The common law recognized legal impossibility
as a defense to an attempted crime. See, e.g., Booth v. State, 398 P.2d 863 (Okla.Cr. 1964).
Thus, appellant contended, State v. Darnell still represented a change in the law, and if
applied retroactively to him, would constitute an impermissible ex post facto ruling. The
United States District Court for Nevada and the Ninth Circuit Court of Appeals dismissed
appellant's petition, finding that the common law precedent argument was a new theory,
resulting in a failure to exhaust state remedies. Appellant now asks us to consider his second
petition for post-conviction relief, based primarily on the common law precedent argument.
[Headnotes 1, 2]
Successive post-conviction applications need not be considered by this court unless the
petitioner satisfactorily demonstrates in the latter petition why he failed to raise the issue in
the former application. Rogers v. Warden, 86 Nev. 359, 468 P.2d 993, cert. denied, 400 U.S.
S46 {1970). See also, Dromiack v. Warden, 96 Nev. 269
____________________

1
In State v. Lung, supra, the court stated:
[A]n attempt to commit a crime can only be made under circumstances which, had the attempt succeeded,
would have constituted the entire substantive offense. . . .
21 Nev. at 213, 28 P. at 236.
98 Nev. 518, 521 (1982) Darnell v. State
P.2d 993, cert. denied, 400 U.S. 846 (1970). See also, Dromiack v. Warden, 96 Nev. 269, 607
P.2d 1145 (1980). Appellant offers no satisfactory reason for failing to raise the common law
precedent theory in the first habeas corpus petition brought before us in 1977. At that time,
the state had already made its argument in federal court that State v. Charley Lung was of no
precedential value, yet appellant made no attempt to file briefs with this court or request oral
argument to support his petition. As we stated in Rogers v. Warden, [c]riminal appeals must
be given finality. Id. at 362, 468 P.2d at 994. The litigation which has ensued since Darnell's
conviction reflects a piecemeal approach to resolving the ex post facto issue; precisely the ill
Rogers v. Warden sought to eliminate. Therefore, we decline to entertain appellant's latest
argument in support of post-conviction relief.
We have also examined appellant's remaining arguments and find them to be without
merit.
We affirm the decision of the trial court.
Steffen and Mowbray, JJ., concur.
Springer, J., with whom Gunderson, C. J., concurs, dissenting:
In my opinion substantial constitutional questions are presented in this appeal. These
issues should be decided and not dismissed on the stated procedural grounds; therefore I
dissent.
____________
98 Nev. 521, 521 (1982) Chubb Pac. Indem. v. Twin Lakes Village
CHUBB PACIFIC INDEMNITY GROUP, CONTINENTAL CASUALTY COMPANY,
FIREMANS FUND INSURANCE COMPANIES, OLD RELIABLE FIRE INSURANCE
COMPANY, ROYAL GLOBE INSURANCE COMPANIES, ZURICH-AMERICAN
INSURANCE COMPANIES, and HARTFORD INSURANCE COMPANY, Appellants, v.
TWIN LAKES VILLAGE, INC., Respondent.
No 13034
December 9, 1982 654 P.2d 530
Appeal from judgment dismissing appellants' complaint without prejudice, Eighth Judicial
District Court, Clark County; Thomas J. O'Donnell, Judge.
Appeal was taken from judgment of the district court dismissing complaint for damages
without prejudice. The Supreme Court held that dismissal on ground that defendant was
involved in bankruptcy proceedings was not appropriate, as stay was adequate relief.
98 Nev. 521, 522 (1982) Chubb Pac. Indem. v. Twin Lakes Village
was involved in bankruptcy proceedings was not appropriate, as stay was adequate relief.
Reversed and remanded with instructions.
Beckley, Singleton, DeLanoy & Jemison, Chartered, and Mark C. Scott, Jr., Las Vegas, for
Appellants.
Jones, Jones, Bell, Close & Brown, Ltd., and Susan Williams Scann; Jolley, Urga & Wirth,
Las Vegas, for Respondents.
Bankruptcy.
Dismissal without prejudice of complaint for damages was not appropriate on ground that defendant was
currently involved in bankruptcy proceedings; appropriate relief was stay until the bankruptcy proceedings
had been competed. Bankr.Act, 301 et seq., 11 U.S.C. (1976 Ed.) 701 et seq.; Rules Bankr.Proc. Rule
11-44(a), 11 U.S.C.A.
OPINION
Per Curiam:
Appellants filed in district court a complaint for damages against respondent. Respondent
thereafter moved to dismiss the complaint on the ground that it was currently involved in
Chapter XI bankruptcy proceedings. The district court granted respondent's motion and
dismissed appellants' complaint without prejudice. This appeal followed. We reverse.
Appellants contend that the district court erred by dismissing their complaint without
prejudice instead of staying their action until the bankruptcy proceedings initiated by
respondent had been completed. We agree. Under Rule 11-44(a) of the Federal Rules of
Bankruptcy Procedure (FRBP), the filing of a bankruptcy petition operates to stay other
proceedings, pending the federal court's determination of the bankruptcy petition.
1
The
purpose underlying FRBP 11-44(a) is to protect the debtor so that he may avoid being
harassed in more than one court at the same time with regard to the same debt. 1A Collier, On
Bankruptcy, 11.02 {14th Ed.
____________________

1
FRBP 11-44(a) provides:
(a) Stay of actions and lien enforcement. A petition filed under Rule 11-6 or 11-7 shall operate as a
stay of the commencement or the continuation of any court or other proceeding against the debtor, or the
enforcement of any judgment against him, or of any act or the commencement or continuation of any
court proceeding to enforce any lien against his property, or of any court proceeding, except a case
pending under Chapter X of the Act, for the purpose of the rehabilitation of the debtor or the liquidation
of his estate. (Emphasis added.)
98 Nev. 521, 523 (1982) Chubb Pac. Indem. v. Twin Lakes Village
On Bankruptcy, 11.02 (14th Ed. 1978). Dismissal of the civil action against the debtor in
state court is not necessary, however, to protect the debtor from harassment and adverse
disposition of his property. Willis v. Gladding Corp., 567 F.2d 630 (5th Cir. 1978). A stay is
adequate. See also Knight & Co. v. Fort Belknap Indian Agency, 612 P.2d 1290 (Mont.
1980).
Accordingly, we reverse the district court's judgment dismissing appellants' complaint
without prejudice. We remand this matter with instructions to the district court to reinstate
appellants' complaint against respondent, subject to the stay pending disposition of the
bankruptcy proceedings.
____________
98 Nev. 523, 523 (1982) Kirkpatrick v. Temme
FRED J. KIRKPATRICK, Appellant, v. EVERETT TEMME and JUDITH TEMME,
Husband and Wife, Respondents.
No. 13572
December 9, 1982 654 P.2d 1011
Appeal from judgment following bench trial. Second Judicial District Court, Washoe
County; John W. Barrett, Judge.
Appeal was taken from judgment of the district court awarding money damages against
contractor on a residential construction project. The Supreme Court, Manoukian, J., held that:
(1) owners are entitled to recover the actual cost of completion following contractor's
abandonment of project or justifiable termination by owners for breach of contract, and
contractor bears burden of proving that the cost was unreasonable or that owner added
construction beyond the contract's specifications, and (2) certain clerical errors in award on
counterclaim were subject to correction.
Affirmed and remanded with instructions.
James Shields Beasley, Reno, for Appellant.
Vargas & Barlett, and Stephen S. Kent, Reno, for Respondents.
1. Damages.
Owners are entitled to recover the actual cost of completion following contractor's abandonment of
project or justifiable termination by owners for breach of contract, and contractor bears burden of proving
that the cost was unreasonable or that owner added construction beyond the contract's specifications.
2. Judgment.
Computational error is a clerical error subject to correction under rule. NRCP 60(a).
98 Nev. 523, 524 (1982) Kirkpatrick v. Temme
3. Judgment.
Where item of award could not be reasonably attributed to exercise of judicial discretion in light of the
evidence otherwise relied on by the trial court, item was subject to correction as clerical error. NRCP
60(a).
OPINION
By the Court, Manoukian, J.:
This is an appeal from a money damage award arising from a residential construction
project. Appellant asks us to review several claims of error. We find it appropriate, however,
to address only one issue: whether the trial court erred in awarding damages based upon the
actual cost of completing the construction, rather than the reasonable cost of completion. We
have determined that it did not and affirm the money damage award.
In June of 1977, respondents Everett and Judith Temme purchased a lot at Incline Village,
Nevada. On July 19, 1978, appellant and respondents entered into a contract for the
construction of a residence on that lot. The contract provided that the cost of construction and
the contractor's fee would not exceed $175,000.00. Construction was to commence on or
before August 25, 1978, and would be completed no later than December 25, 1978.
Nevertheless, excavation on the construction site did not commence until on or about
October 12, 1978. Construction continued into the Spring of 1979. By that time, appellant
had spent substantially all of the construction funds. Following appellant's refusal to complete
the house for the contract price of $175,000.00, respondents terminated him and hired
contractor Del Miller to complete the work. Appellant testified that at his termination, the
house was 80% complete and would have required only $39,200.00 to finish. Respondents
paid Miller $84,333.73 to complete the house. Both the respondents and their architect
testified that the house was completed in accordance with the contract's terms and
specifications.
After a bench trial, the court found, inter alia, that the parties entered into a construction
contract on July 19, 1978, and that the appellant's lack of preparation and diligence was the
sole cause for the construction delays and resultant increase in cost. Respondents were
awarded their actual cost of completion in the amount of $84,333.73.
[Headnote 1]
The sole issue which we address is one of first impression in Nevada.
98 Nev. 523, 525 (1982) Kirkpatrick v. Temme
Nevada. We must decide whether the trial court erred in awarding damages for the
expenditures respondents incurred in completing their residence after justifiably terminating
appellant, without finding the expenditures to be both reasonable and necessary. In the instant
case, the trial judge awarded respondents their actual costs of completion. The respondents
introduced into evidence a list of expenditures actually incurred in completing their residence.
Its admission was clearly limited to evidence that the respondents had, in fact, spent an
additional $84,333.73 to complete their home. No evidence was introduced concerning the
reasonableness of respondents' expenditures.
The general rule for the measure of recovery by an owner for an incomplete performance
by a defaulting contractor has been stated by some authorities as the reasonable cost of
construction and completion in accordance with the contract. Davis v. McCall, 568 P.2d 956
(Alaska 1977); Kennedy v. Reece, 37 Cal.Rptr. 708 (Cal.App. 1964); Johnson v. Flammia,
363 A.2d 1048 (Conn. 1975); Ferris v. Mann, 210 A.2d 121 (R.I. 1965). See also,
Restatement, Contracts 346(1)(a)(i) (1932); McCormick on Damages, 169 at 650 (1935).
The facts in Ferris v. Mann, 210 A.2d 121 (R.I. 1965), are analogous to those now before
this court. The Ferris court held that even though the owner introduced a list showing the
nature and cost of the additional work done by the owner to finish part of the construction, in
absence of any evidence as to the reasonableness of the expenditures, the owner could not
recover for the materials he had installed. Id. at 123. The Rhode Island court stated that [i]t
is a well established principle that one who sues to recover such damages has the burden of
proving the reasonable value of the materials and labor in question. Id. The rationale of the
reasonable cost theory evolved from the concern that an owner would resort to more
expensive methods of completion than specified by the contract and impose the additional
cost on the contractor in a suit for breach of contract.
The courts and writers, however, are divided as to the appropriate standard of damage. A
second line of authority holds that the owner may recover the difference between the contract
price and the actual cost as damages for the cost of completion following a contractor's
breach. See Graham-Hall Sheet Metal Works, Ltd. v. Douglas, 164 P.2d 778 (Cal.App. 1946);
Marcou Const. Co. v. Tinkham Indus. & Dev. Corp., 371 A.2d 1187 (N.H. 1977); Darger v.
Nielsen, 605 P.2d 1223 (Utah 1979). See also, J. Acret, California Construction Law Manual,
2.17 at 58 (1975); accord, Attorneys' Guide to California Construction Contracts &
Disputes, 3.61 {CEB 1976); California Attorneys' Damage Guide, 1.30 {CEB 1974); 17A
C.J.S. Contracts 512{c) at S35 {1963).
98 Nev. 523, 526 (1982) Kirkpatrick v. Temme
Construction Contracts & Disputes, 3.61 (CEB 1976); California Attorneys' Damage Guide,
1.30 (CEB 1974); 17A C.J.S. Contracts 512(c) at 835 (1963). The underlying rationale of
the actual cost theory is consistent with the objective of contractual damages, namely,
awarding the aggrieved party the benefit of the bargain. Assessing damages under the actual
cost method places the nonbreaching party in the same position it would have been in by
full performance. Marcou Const. Co. at 1188; accord 11 Williston on Contracts, Third
Edition, 1363 at 344 (1951).
The Utah Supreme Court addressed the concern that an owner may turn a suit to recover
the cost of completion to an unfair advantage in Darger v. Nielsen, 605 P.2d 1223 (Utah
1979). Darger held that an owner's prima facie case for damages consisted of an allegation
regarding what the contractor was bound to do under the contract; what the contract price was
for those services; what the second contractor had to do to complete in accordance with the
contract; and how much the owner paid to complete the contract. The contractor bore the
burden of proof concerning allegations that the cost was unreasonable or that the owner added
construction beyond the contract specifications. Id. at 1225; cf. Stangl v. Marathon Steel Co.,
554 P.2d 1316 (Utah 1976).
We are in accord with the view expressed in Marcou Const. Co., Darger and other cases
which adopt the actual cost standard of damages for a contractor's breach of contract. It is
both unfair and unrealistic to place the burden of proof on an innocent owner regarding the
reasonableness and necessity of the costs of completion following the contractor's
abandonment of the project or breach of contract.
1
Generally, the contractor, not the owner,
has the expertise in hiring and supervising construction personnel, in obtaining quality
materials at the most favorable prices and in acquiring the permits and variances required by
governmental agencies. These factors were magnified in the instant case, which involved a
wintertime project at Lake Tahoe. Here, by application of the actual cost theory,
respondents will receive the benefit of their bargain; a residence built in conformity with the
contract specifications.
____________________

1
One court has shifted the burden to the owner if the owner wrongfully terminates the contract without a
legally sufficient reason or prevents the contractor from completing the contract. Reitano v. Pennisular Building
Supply Co., 262 So.2d 710 (Fla.App. 1972); 17A C.J.S. Contracts 512(c) at 836 (1963). This is not the case in
the instant proceedings. Here, the trial court found that the delayed commencement date, which was the root of
many of the problems, was occasioned by the contractor's slothfulness.
98 Nev. 523, 527 (1982) Kirkpatrick v. Temme
[Headnote 2]
In its decision, the trial court made a computational error,
2
when determining the amount
of damages awarded to appellant on his counterclaim. This error in computation is a clerical
error under NRCP 60(a) which must be corrected. See Channel 13 of Las Vegas v. Ettlinger,
94 Nev. 578, 583 P.2d 1085 (1978); Marble v. Wright, 77 Nev. 244, 362 P.2d 265 (1961).
[Headnote 3]
Appellant claims a second clerical error in the trial court's decision. Respondents' architect
testified that the owners' request to enlarge the size of certain round windows cost an
additional $1,460.00. Appellant estimated the increased cost at $5,200.00. The trial judge
awarded appellant only $460.00 for this item of damage. Although the record contains
conflicting evidence on the cost of increasing the size of the round windows, the trial court
relied heavily on the architect's cost estimates in awarding appellant damages for the cost of
the extra work he performed. Additionally, there is no evidence in the record that suggests
that the cost of expanding the round windows was, in fact, $460. [A] clerical error is one
which cannot reasonably be attributed to the exercise of judicial consideration or discretion.
Marble v. Wright, 77 Nev. 244, 248, 362 P.2d 265, 267 (1961). Given the lower court's
reliance on the architect's estimates and the absence of any evidence showing that the cost of
expanding the round windows was $460, the award for the extra costs for expanding the
round windows cannot be reasonably attributed to the exercise of judicial discretion. Hence,
relief under NRCP 60(a) is also appropriate for this item of damage.
____________________

2
In its decision, the trial court awarded the following damages to defendant-appellant:
9 Rotation of House (retaining wall, increased height)............................................$7,240.00
Extend Driveway.......................................................................................................... 3,733.00
Add Bathroom--Bedroom 2........................................................................................2,100.00
Add Fireplace--Bedroom 2............................................................................................700.00
Add Exterior Deck--Bedroom 2...................................................................................... 973.00
Change Windows to French Doors-Bedroom 2................................................................ 50.00
Increase Size of Round Windows..................................................................................460.00
Rough-in for Future Wet Bar.......................................................................................... 288.00
Install Additional Water Heater & Pump....................................................................1,394.00
Install Furnace and Water Heater in Crawl Space..........................................................783.00
Add Four Power Outlets in Crawl Space........................................................................ 200.00
Finish Underside of Wood Decks..................................................................................405.00
Install Additional Window in Vista Loft........................................................................320.00

_________

Defendant-Appellant's Total Damages..............................................................$17,646.00
The correct summation of this award is $18,646.00.
98 Nev. 523, 528 (1982) Kirkpatrick v. Temme
Respondents argued that this proceeding should be stayed because appellant had filed a
petition for bankruptcy. We reject this argument.
The remaining assignments of error are without merit or were not properly raised.
Williams v. Zellhoefer, 89 Nev. 579, 580, 517 P.2d 789 (1973); Britz v. Consolidated
Casinos Corp., 87 Nev. 441, 447, 488 P.2d 911, 915 (1971); Young Electric Sign Co. v.
Erwin Electric Co., 86 Nev. 822, 828, 477 P.2d 864 (1970).
The decision and awards of the trial court are affirmed, with the exception of the clerical
errors. This case is remanded to the trial court for an adjustment of those awards consistent
with this opinion.
Gunderson, C. J., and Springer, Mowbray, and Steffen, JJ., concur.
____________
98 Nev. 528, 528 (1982) Summa Corp. v. Greenspun
SUMMA CORPORATION, A Delaware Corporation, Appellant and Cross-Respondent, v.
HERMAN M. GREENSPUN and BARBARA J. GREENSPUN, His Wife, Respondents and
Cross-Appellants.
No. 10412
December 13, 1982 655 P.2d 513
On rehearing; judgment of the trial court affirmed in its entirety; Eighth Judicial District
Court, Clark County; Joseph O. McDaniel, Judge.
Action for slander of title was brought. The district court entered judgment, and appeal
was taken. The Supreme Court, Thompson, J., 96 Nev. 247, 607 P.2d 569 (1980), affirmed in
part. On rehearing, the Supreme Court, James H. Thompson, D. J., sitting by designation,
held that: (1) adverse effect on vendibility of land was not required to be shown to support
action for slander of title; (2) finding that sole stockholder of corporation was corporation's
managing agent was supported by substantial evidence; and (3) award of one million dollars
in punitive damages was not excessive.
Affirmed.
[Petition for rehearing filed December 28, 1982, denied February 16, 1983]
Lionel Sawyer & Collins, Las Vegas; Cromer, Barker & Michaelson, Las Vegas; Vaughan,
Hull & Copenhaver, Elko, for Appellant and Cross-Respondent.
98 Nev. 528, 529 (1982) Summa Corp. v. Greenspun
Denton and Denton, Las Vegas; Jules Yablok, Las Vegas; Bradley & Drendel, Reno, for
Respondent and Cross-Appellant.
Nevada Trial Lawyers Association, Amicus Curiae.
1. Libel and Slander.
Duty violated by recording of deed of trust in violation of oral contract for recission of proposed sale
arose not from oral contract for recission but from duty imposed by tort law against publishing matter
disparaging one's title.
2. Libel and Slander.
To support action for slander of title, it is not necessary to show that vendibility of land was adversely
affected, and proof of other actual damages is sufficient, such as expenses in removing cloud on title.
3. Corporations.
In action against corporation for slander of title, finding that corporation's sole stockholder was its
managing agent was supported by substantial evidence.
4. Libel and Slander.
In action for slander of title based on corporation's filing deed of trust despite oral contract to rescind
proposed sale of land, competent evidence supported finding that corporation's managing agent bore malice
toward plaintiff at time deed of trust was recorded.
5. Corporations.
Subsequent death of corporation's managing agent did not absolve corporation from liability for agent's
actions.
6. Corporations.
Sole stockholder's actions may bind corporation where rights of its creditors are not prejudiced thereby.
7. Libel and Slander.
In action for slander of title, award of punitive damages of one million dollars was not excessive.
OPINION
By the Court, Thompson, D. J.:
1

We granted the petition for rehearing because it appeared that the original opinion filed
herein may have overlooked or misapprehended the nature of the cause of action respondents
asserted and pursued in the trial court and the trial judge's rulings with respect to the relief
sought. The rehearing was granted as to the issue relating to the propriety of an award of
punitive damages and the defendant Summa's liability therefore. With respect to these issues
we alter the views expressed in Summa Corp. v.
____________________

1
The Honorable James H. Thompson, Judge of the Second Judicial District Court, was designated by the
Governor to sit in place of Justice Noel E. Manoukian, who voluntarily disqualified himself. Nev. Const., art. 6,
4.
98 Nev. 528, 530 (1982) Summa Corp. v. Greenspun
Summa Corp. v. Greenspun, 96 Nev. 247, 607 P.2d 569 (1980), and affirm the decision and
judgment of the trial court in its entirety.
I
[Headnote 1]
The 1968 oral contract for rescission was to rescind the proposed sale of a 2,000 acre
parcel and return the conveyancing and security documents. There was no promise sought by
the Greenspuns, and none was given by Summa, that the deed of trust not be recorded. It was
not necessary to bargain for this advantage. It was a legal right already possessed by the
Greenspuns under the common law, the violation of which constituted the tort of slander of
title. Summa's duty not to record arose the instant the sale was rescinded and not because
Summa promised to return the deed of trust. It cannot be seriously contended that since
Summa did not specifically promise not to record, Summa would not be liable if it did so.
The duty not to publish disparaging matter exists independently of the contract. Moreover, if
the proposed sale had been consummated, Summa would have been entitled by law not by
contract, indeed under a duty, to record the deed of trust to impart notice to third persons.
NRS 111.315. Thus, the duty not to publish matter disparaging one's title, a duty which was
violated here, arose not from the oral contract for rescission, but arose from a duty imposed
by the common law, violation of which is a tort.
The complaint as framed is in accord with the law just stated. The complaint is devoid of
any allegation as to an agreement of rescission between the parties or its breach. The
complaint sets forth a cause of action for slander of title and seeks damages for the recording
by the defendant of the alleged void deed of trust. The complaint also prayed that the deed of
trust be declared null and void. The recovery of damages for recording of an alleged
slanderous document without seeking expungement of that document for the public records
would not give the plaintiffs complete relief. The title to the property would be clouded as
long as the document is a public record and its nullity not declared.
It follows that plaintiffs' complaint for a declaration that the deed of trust was a nullity and
void was not a separately stated cause of action. Instead, it was a necessary part of plaintiffs'
claim for relief if the tort of slander of title to property is to afford a meaningful remedy.
The trial judge correctly concluded as a matter of law that the plaintiffs pleaded and
alleged a cause of action for Slander of Title, not a Breach of Contract. the trial judge also
correctly concluded as a matter of law that proof of the oral rescission agreement was
necessary only to establish plaintiffs' right to have the deed of trust expunged from the
public records.
98 Nev. 528, 531 (1982) Summa Corp. v. Greenspun
correctly concluded as a matter of law that proof of the oral rescission agreement was
necessary only to establish plaintiffs' right to have the deed of trust expunged from the public
records. In our previous opinion we misapprehended this prayer for relief as an independent
cause of action stemming from a breach of the oral contract for rescission. We hold that it is
not and that it is concomitant relief along with any recoverable special damages. Therefore an
action for slander of title can be maintained if the plaintiffs have incurred special damages by
reason of the recording of the disparaging document.
II
[Headnote 2]
We turn to the question as to whether there must be a showing that vendibility of the land
must be adversely affected to support an action for slander of title, or whether the proof of
other actual damages is sufficient.
It was said in Potosi Zinc Company v. Mahoney, 36 Nev. 390, 135 P. 1078 (1913), that
maintenance of a slander of title action required a showing of special pecuniary damages. But
this requirement was never addressed in Potosi because there the plaintiff did not ask for any
pecuniary damages. 36 Nev. at 400. Potosi thus does not stand for the proposition that special
pecuniary damages are only those which flow from an impairment of vendibility of the
property.
There is authority that a complaint for slander of title is subject to dismissal if it fails to
allege the loss of a particular pending sale. Burkett v. Griffith, 27 P. 527 (Cal. 1891); Wilson
v. Dubois, 29 N.W. 68 (Minn. 1886); Hubbard v. Scott, 166 P. 33 (Ore. 1917); Shell Oil Co.
v. Howth, 159 S.W.2d 483 (Tex. 1942); McGuinness v. Hargiss, 105 P. 233 (Wash. 1909).
There is also authority that where plaintiff has alleged and shown that a pending sale was
aborted by publication of disparaging matter, special pecuniary damage is established. Ideal
Savings Loan & Building Assn. v. Blumberg, 175 S.W.2d 1015 (Ky. 1943).
The courts have also allowed as the only special damage in slander of title actions the
expense (in addition to taxable costs of suit) of removing the cloud upon a plaintiff's title, and
such has been deemed not a bar to maintaining the action for slander of title.
In Chesebro v. Powers, 44 N.W. 290 (Mich. 1889), plaintiff claimed only damages for the
expense he incurred in bringing and maintaining the action for slander of title, an action in
which a deed and mortgage were declared void, a cloud upon the title was removed, and in
which plaintiff could not be compensated by taxable costs of suit. The Michigan Supreme
Court held the plaintiff entitled to recover as his damages the reasonable outlay incurred
in removing the cloud and that such damage was not a bar to the action.
98 Nev. 528, 532 (1982) Summa Corp. v. Greenspun
held the plaintiff entitled to recover as his damages the reasonable outlay incurred in
removing the cloud and that such damage was not a bar to the action. Other courts have
reached a similar result when the plaintiff did not show a pecuniary damage from impaired
vendibility but could establish expenses incurred in the removing of the cloud from his title.
The Utah Supreme Court in Dowse v. Doris Trust Co., 208 P.2d 956 (Utah 1949), relied
upon Chesebro and held that the trial court acted properly in directing a verdict in favor of the
plaintiff as to expenses and costs as special damages. Paulson v. Kustom Enterprises, Inc.,
483 P.2d 708 (Mont. 1971), held attorneys fees were recoverable as items of special damages
in a slander of title action. More recently the New Mexico Court of Appeals in Den-Gar
Enterprises v. Romero, 611 P.2d 1119 (N.M.Ct.App. 1980), cert. denied, 614 P.2d 545 (N.M.
1980), that the plaintiff incurred special damages in defending against a slander of title and
removal of the cloud upon title.
Arrayed against this trend is the Texas Supreme Court's recent decision in overruling two
Court of Appeals decisions and reaffirming its early holding in Shell Oil Co. v. Howth, supra,
that a plaintiff must plead and prove a pending sale was lost because of the slander of title. A.
H. Belo Corp. v. Sanders, 632 S.W.2d 145 (Tex. 1982).
We believe the rationale of Chesebro, Dowse, Paulson and Den-Gar is based on reason
and recognizes that but for the wrongful act of slander of plaintiff's title, the plaintiff would
not incur any expenses in removing the cloud from his title. Dowse v. Doris Trust, supra, at
959. Furthermore, the Restatement (Second) of Torts, 633(1)(b) (1977) is in accord with
this view. Therefore, the trial court properly concluded that an award of expenses was an
element of special damages and sufficient to establish the tort of slander of title.
III
[Headnote 3]
Summa challenges the trial judge's finding that Howard Hughes was its managing agent in
Nevada. The record reveals that Hughes acted through Robert Maheu and Richard Gray. Gray
was Summa's attorney and also held powers of attorney from both Hughes and Summa.
Through them, Hughes negotiated the 1967 transaction and its revision in 1969 and partial
rescission of the revised terms of sale. From the day Hughes moved to Las Vegas, he
determined and directed the course of Summa's activities and investments within Nevada.
The trial court found that with this set-up, Mr. Hughes had complete control of the Hughes
Nevada Operation. After Hughes departed Las Vegas on Thanksgiving Day in 1970, and
members of Summa's board of directors arrived in Las Vegas soon thereafter, Hughes
continued to exert his influence on Summa's board.
98 Nev. 528, 533 (1982) Summa Corp. v. Greenspun
departed Las Vegas on Thanksgiving Day in 1970, and members of Summa's board of
directors arrived in Las Vegas soon thereafter, Hughes continued to exert his influence on
Summa's board. Summa's general counsel and director, Chester Davis, became the recipient
of the written memos from Hughes. Hughes also approved the Summa board of director's
action to oust Maheu from control of the Hughes Nevada Operation and asked the board to
obtain a full accounting of all funds and property to which Maheu may have had access. That
Hughes was monitoring the events in Las Vegas as they related to the plaintiff is further
shown by the receipt of one of the memos by Davis as late as August 5, 1974, after this
litigation was commenced. We hold that there is substantial evidence in the record to support
the trial judge's finding that Hughes, the sole stockholder of Summa, was the managing agent
of Summa's Hughes Nevada Operation.
IV
Skeels v. Universal C.I.T. Credit Corp., 335 F.2d 846 (3rd Cir. 1964), is urged as being
similar to the case before us and as precluding an award of punitive damages. There, one of
Universal's employees made repeated promises to Skeels that a note would be extended. In
ignorance of these promises others in authority at Universal exercised the corporation's rights
against the defaulting borrower under the loan agreement. The Court of Appeals stated that
there was no indication or suggestion that this was done with knowledge of the agent's
promises to extend credit. The Court of Appeals observed that the doctrine of respondeat
superior may result in corporate liability for what the right hand did in ignorance of the
inconsistent behavior of the left and termed such excusable ignorance, which it found was
an unwarranted predicate for an award of punitive damages.
There was no question in Universal of the authority or actions of its agent's wielding
corporate authority; there were no allegations of ill will, oppression or malice toward the
borrower. Universal had a contractual right to foreclose its security. As contrasted to the
absence of any suggestion of knowledge by Universal's agents, there is evidence in the case
before us that one or more of Summa's directors may have had knowledge of the oral
rescission and the void deed of trust. Director Collier was informed by Gray of the new sales
agreement in 1969 and of the extension of the 1967 note. Gray later corresponded with
Collier and urged Collier not to let Greenspun off the hook on his note. Collier was also
Summa's treasurer and arranged for transmission of funds for the transactions.
98 Nev. 528, 534 (1982) Summa Corp. v. Greenspun
transactions. Summa's officials also had possession of the Second Note which states that it
was in renewal, rearrangement and extension of the 1967 note. Summa also accepted the
Greenspuns' payments of interest on the Second Note. Summa never demanded payments on
the 1967 note. In fact, Summa's director of finance wrote the Greenspuns to confirm the fact
that the Second Note was in force. The Greenspuns' attorneys made several unsuccessful
demands upon Summa for return of the first note and deed of trust. These demands led to
Davis's threats nine months earlier that the land transactions with the Greenspuns would be
used to get at Hank Greenspun and embarrass him. Furthermore, one of Summa's attorneys,
Tom Bell, had also advised Summa that the Second Note was the effective note. The deed of
trust was recorded the same day the board of directors authorized its recording. All this points
to knowledge on the part of some of Summa's officers and directors that Summa's rights in
the matter were as stated in the Second Note. The trial judge, recognizing that some of the
directors may have been less than innocent in the matter, concluded that Director Davis's
investigation as general counsel and the resultant legal opinion created a smoke screen to
make it appear the board of directors was acting in good faith. Nevertheless, the trial judge
found that the board, as a board of directors, never was notified by Hughes or anyone of the
oral rescission and the agreement to return the deed of trust to the Greenspuns. On the state of
this record we find no parallel with Universal, supra.
V
[Headnote 4]
Summa argues that there is no competent evidence to support a finding that Hughes bore
malice toward Greenspun at the time the deed of trust was recorded. Summa also argues that
the trial judge wrongly relied on statements of Hughes and others made long after the
recording. Soon after Summa's Directors Davis and Frank W. Gay arrived in Las Vegas, they
arranged for a telephone call from Hughes to then Governor-elect Paul Laxalt. Also present
were District Attorney George Franklin and Gaming Control Board Chief Frank Johnson.
Franklin testified that Davis said, once they got rid of Mr. Maheu they were going to start on
Mr. Greenspun. This was a very sore spot with their employer, Mr. Hughes, the publicity he
was getting, they were going to start in on Mr. Greenspun over some land transactions that
had been handled by Dick Gray, and even though it embarrassed Mr. Gray. (Emphasis
supplied.) Franklin and Johnson also testified to statements by Davis that we might even end
up owning Hank's newspaper and that if the Las Vegas Sun kept up its publicity "we'll
own the paper."
98 Nev. 528, 535 (1982) Summa Corp. v. Greenspun
and that if the Las Vegas Sun kept up its publicity we'll own the paper. Davis was also
heard to threaten Maheu and Greenspun with jail. These statements alone are sufficient to
justify inferences that the land transactions between the Greenspuns and Hughes were to be
used to get rid of Greenspun, that Hughes was sore because of Greenspun's public
support in his newspaper of Maheu in his fight against being ousted by Davis and Gay, and
that if Greenspun did not desist that they would take over the Las Vegas Sun. During this
time Davis was not only a director of Summa but was also representing his employer, Mr.
Hughes. These statements adequately support the trial judge's finding of Hughes's anger and
hostility toward Greenspun and Davis's expressions of malice being primarily a reflection of
Hughes's feelings. The trial judge found that this animosity continued as Hughes and his
agents were frequently burned by Greenspun in the Las Vegas Sun. The trial judge's finding
does recount statements of animosity by Hughes and Davis subsequent to the recording of the
deed of trust which show that the malice and animosity attributed to Hughes continued
thereafter.
VI
The cause of action pursued and established below by Greenspun was in tort for slander of
title. NRS 42.010 permits in addition to actual damages an award of punitive damages when
the defendant is guilty of oppression, fraud or malice, express or implied. The trial court's
conclusions that express malice motivated Hughes's actions toward Greenspun in allowing
the void deed of trust to be recorded, that Hughes was the managing agent of Summa, that
Hughes benefitted his principal Summa by his actions as managing agent, and that the
malicious acts of Hughes were to be imputed to Summa are all amply supported by the record
before us. We write on a faceless and impersonal record. The trial judge saw and heard the
witnesses, and we pay the usual deference to the weight he gave the evidence and credibility
of the witnesses.
[Headnotes 5, 6]
Summa is a tort-feasor in the case at bar, and the subsequent death of its agent Hughes
does not absolve it from liability for Hughes's actions. See, 19 Am.Jur.2d Corporations
1428 (1965). Moreover, a sole stockholder's actions may bind the corporation where the
rights of its creditors are not prejudiced thereby. See, 18 Am.Jur.2d Corporations 485
(1965).
[Headnote 7]
The trial judge's award of punitive damages was proper.
98 Nev. 528, 536 (1982) Summa Corp. v. Greenspun
While the amount of one million dollars in punitive damages will seem large to most, it is not
large, let alone excessive, in light of Summa's financial net worth adduced at trial.
Judgment of the trial court is affirmed.
Springer, J., Gabrielli, D. J.,
2
Schouweiler, D. J.,
3
and Young, D. J.,
4
concur.
____________________

2
The Honorable John E. Gabrielli, Judge of the Second Judicial District Court, was designated by the
Governor to sit in place of Chief Justice E. M. Gunderson, who voluntarily disqualified himself. Nev. Const., art.
6, 4.

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

4
The Honorable Llewellyn A. Young, Judge of the Sixth Judicial District Court, was designated by the
Governor to sit in place of Justice Cameron M. Batjer, who voluntarily disqualified himself. Nev. Const., art. 6,
4.
____________
98 Nev. 536, 536 (1982) Young Elec. Sign v. State, Dep't Hwys.
YOUNG ELECTRIC SIGN COMPANY, Appellant, v. STATE OF NEVADA,
DEPARTMENT OF HIGHWAYS (AGENT FOR THE UNITED STATES OF
AMERICA), Respondent.
No. 13452
December 15, 1982 654 P.2d 1028
Appeal from an order granting summary judgment, Eighth Judicial District Court, Clark
County; Joseph S. Pavlikowski, Judge.
Owner of outdoor advertising sign, which has been removed and destroyed by Department
of Highways as violating Outdoor Advertising Act, brought damages action against the
Department. The district court granted summary judgment for the Department, and the owner
appealed. The Supreme Court, held that: (1) material fact issue existed whether original
notice was constitutionally valid when sign was removed over two years later and where the
sign, once cut down, no longer constituted a nuisance and should not have been destroyed,
precluding summary judgment, and (2) that sign removal expenses were not recoverable as
costs.
Reversed and remanded.
Mahan & Ellis, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, and Allen D. Gibson, Deputy Attorney General,
Carson City, for Respondent.
98 Nev. 536, 537 (1982) Young Elec. Sign v. State, Dep't Hwys.
1. Highways.
Reasonable regulation of outdoor advertising and classification of signs that violate such regulations as
public nuisances is a legitimate exercise of the state's police power via the Outdoor Advertising Act. NRS
410.220 et seq.
2. Highways.
Power to regulate outdoor advertising and classification of offending signs as public nuisance does not
relieve the state of its obligation to follow proper constitutional procedures, i.e., notice and an opportunity
to be heard, before removing an outdoor advertising sign alleged to violate the Outdoor Advertising Act.
NRS 410.220 et seq., 410.360.
3. Judgment.
Material fact issue existed as to whether original written notice that casino sign violated Outdoor
Advertising Act was constitutionally valid notice when sign was removed over two years later and where
the sign, once cut down, no longer constituted a nuisance and should not have been destroyed by
Department of Highways, precluded summary judgment in owner's damages action. NRS 410.220 et seq.
4. Highways.
Provision of Outdoor Advertising Act giving Department of Highways a right of action against the sign
owner to recover expenses when a sign constituting a nuisance is removed only grants a right to sue and not
a right to recover sign removal expenses as costs in an action for damages brought against the Department
by a sign owner. NRS 18.005 et seq., 410.360.
OPINION
Per Curiam:
On February 1, 1975, appellant erected an electric outdoor advertising sign along Interstate
15, about 1/4 mile south of Jean, Nevada. The sign was built at an alleged cost of
$126,814.00, and advertised a business known as Pop's Casino, located adjacent to the
nearby off-ramp. On February 14, 1975, respondent served appellant with a written notice
that the sign violated provisions of the Nevada Outdoor Advertising Act, NRS 410.220 et
seq., and that the violations rendered the sign a public nuisance subject to summary
abatement if the violations were not corrected within thirty days. See NRS 410.360. Appellant
wrote respondent, disputing the violations and requesting a hearing thereon. No hearing was
held, and except for some informal communication between the parties no action was taken
by either party for approximately two and one-half years. On October 15, 1977, respondent
had the sign removed on a weekend, with no additional written notice to either appellant or
Pop's Casino. The sign was removed intact by cutting through its support struts, and although
it contained electrical equipment salvageable by appellant, it was taken away and
destroyed.
98 Nev. 536, 538 (1982) Young Elec. Sign v. State, Dep't Hwys.
electrical equipment salvageable by appellant, it was taken away and destroyed.
Appellant filed suit in the district court for damages, contending that respondent deprived
appellant of property without due process of law by removing and destroying the sign without
notice and an opportunity to be heard on the issue of whether the sign violated the Act. On
cross-motions for summary judgment the district court found that the sign did violate the Act
and that respondent acted constitutionally in removing and destroying it. Since the abatement
of a nuisance does not generally give rise to a cause of action for damages, the court granted
summary judgment to respondent; this appeal ensued.
[Headnotes 1, 2]
The reasonable regulation of outdoor advertising and the classification of signs that violate
such regulations as public nuisances is a legitimate exercise of the state's police power. City
of Escondido v. Desert Outdoor Advertising, Inc., 505 P.2d 1012 (Cal. 1973); cert. denied,
414 U.S. 828 (1973), disapproved on other, unrelated grounds, San Diego Bldg. Contr. Ass'n
v. City Coun. of San Diego, 529 P.2d 570 (Cal. 1974); see Lawton v. Steele, 152 U.S. 133
(1893); see also Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981) (reasonable regulation
of billboards does not violate First Amendment right of commercial speech). The power to
regulate, however, does not relieve the state of its obligation to follow proper constitutional
procedures, i.e., notice and an opportunity to be heard, before removing an outdoor
advertising sign alleged to be in violation of the Act. See Leppo v. City of Petaluma, 97
Cal.Rptr. 840 (Ct.App. 1971); Bowden v. Davis, 289 P.2d 1100 (Or. 1955).
[Headnotes 3, 4]
The district court found that respondent had acted constitutionally in removing the sign.
Implicit in that finding is a determination that respondent followed proper constitutional
procedures. Our review of the record, however, reveals a triable issue of material fact as to
whether the original written notice, served on appellant in 1975, continued to be a
constitutionally valid notice when the sign was removed well over two years later. We also
perceive a triable issue on the material fact as to whether the sign, once cut down, no longer
constituted a nuisance and should not have been destroyed by respondent.
There being triable issues of material fact, the district court's grant of summary judgment
to respondent was error. See Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963).
98 Nev. 536, 539 (1982) Young Elec. Sign v. State, Dep't Hwys.
Accordingly, the order granting summary judgment is reversed, and the cause remanded for
trial on the merits.
Reversed and remanded.
1

____________________

1
Appellant also appealed from the district court's order denying its motion to retax costs. In the order
granting summary judgment, the court awarded respondent the expenses incurred in removing the sign as costs.
The court did so under the language of NRS 410.360, which gives respondent a right of action against a sign
owner to recover such expenses when a sign constituting a nuisance is removed. In light of our disposition of the
appeal from the order granting summary judgment, it is unnecessary for us to reach this issue. We note, however,
for the guidance of the trial court, that NRS 410.360 only grants a right to sue, not a right to recover the sign
removal expenses as costs in an action for damages brought against respondent by a sign owner. Such expenses
are not recoverable as costs. See NRS 18.005 et seq.
____________
98 Nev. 539, 539 (1982) Anderson v. State
FLOYD ANDERSON, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 13240
December 15, 1982 654 P.2d 1026
Appeal from judgment of conviction of two counts of burglary, Eighth Judicial District
Court, Clark County; Addeliar D. Guy, Judge.
The Supreme Court held that waiver of counsel was not intelligently made.
Reversed and remanded.
Edward M. Bernstein, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Before a waiver of constitutional right to counsel is knowing and intelligent, the defendant should be
made aware of the dangers and disadvantages of self-representation so that the record will establish that he
knows what he is doing and that his choice is made with open eyes.
2. Criminal Law.
Waiver of right to counsel was not knowingly and intelligently made, requiring reversal for new trial,
where defendant apparently was never advised at time of waiver of the dangers and
disadvantages of self-representation and trial judge made no attempt to canvass
defendant to determine validity of his waiver.
98 Nev. 539, 540 (1982) Anderson v. State
was never advised at time of waiver of the dangers and disadvantages of self-representation and trial judge
made no attempt to canvass defendant to determine validity of his waiver.
OPINION
Per Curiam:
Following a jury trial in which he represented himself, Floyd Anderson was found guilty
of two counts of burglary. He now appeals this conviction on the grounds that his waiver of
counsel was not validly made. Specifically, he alleges that the waiver was not made
intelligently and knowingly, that it was not sufficiently unequivocal, and that it was made
under coercion. We agree with appellant that his waiver was not intelligently made and
therefore reverse.
At appellant's arraignment, he was provided with an appointed counsel. Shortly thereafter,
appellant moved the court to appoint new counsel. After a full hearing, it was determined that
no adequate reason existed for the appointment of new counsel. Appellant continued to be
represented by his original counsel.
On the day of trial, before the jury was empaneled appellant renewed his motion for the
appointment of new counsel. The trial judge denied this motion, advising appellant that he
could either proceed to trial with his appointed counsel, or represent himself with his
appointed counsel acting as a legal advisor. Appellant chose to represent himself under the
coercion of the court. He then advised the court that although he needed time to prepare his
defense, he would nevertheless proceed under protest. The matter proceeded to trial without
delay.
[Headnote 1]
In Faretta v. California, 422 U.S. 806 (1975), the Court held that while a criminal
defendant has a constitutional right to waive counsel and represent himself, such a waiver
must be made knowingly and intelligently. Specifically, the Court noted that the defendant
should be made aware of the dangers and disadvantages of self-representation, so that the
record will establish that he knows what he is doing and his choice is made with eyes open.
422 U.S. at 835.
In Cohen v. State, 97 Nev. 166, 625 P.2d 1170 (1981), we added the additional
requirement that the trial judge must make an explicit canvass of a defendant to determine
if his waiver was valid. In particular, we held that this canvass must include an attempt to
make the defendant aware of the nature of the charges, the statutory offenses included within
them, the range of allowable punishments thereunder, possible defenses to the charges and
circumstances in mitigation thereof, and all other facts essential to a broad understanding of
the whole matter."
98 Nev. 539, 541 (1982) Anderson v. State
matter. 97 Nev. at 168 (quoting Garnick v. Miller, 81 Nev. 372, 376, 403 P.2d 850, 853
(1965)).
[Headnote 2]
In the present case, the record indicates that the trial judge made no attempt to canvass
appellant to determine the validity of his waiver under Cohen.
1
Further, it appears that
appellant was never advised at the time of his waiver of the dangers and disadvantages of
self-representation as is required under Faretta. Therefore, the record does not demonstrate
that the waiver was made knowingly and intelligently, and the conviction must be reversed
and remanded for a new trial.
2

____________________

1
The following dialogue took place between the district judge and the appellant:
BY THE COURT: It's my understanding that you do not want the services of the public defender; is
that correct, sir?
BY THE DEFENDANT: Yes, sir.
BY THE COURT: How long have you been incarcerated, Mr. Anderson?
BY THE DEFENDANT: About two months.
BY THE COURT: Do you have any money whatsoever?
BY THE DEFENDANT: No, sir.
BY THE COURT: Can you afford an attorney
BY THE DEFENDANT: No, sir.
BY THE COURT: of your own choice?
BY THE DEFENDANT: No, sir.
BY THE COURT: What are your qualifications in the field of law that gives you enough ability to
represent yourself?
BY THE DEFENDANT: I have none.
BY THE COURT: Have a seat.
(Pause)
BY THE COURT: I will give you a choice, sir: You can either represent yourself or have the public
defender represent you. If you insist upon representing yourself, I will have the public defender stand by
to assist you in anyway that he can.
The choice is now yours to make, sir; we are going to go to trial today.
BY THE DEFENDANT: Under the circumstances, if you please, given by the court, I wish for the
record to reflect that I choose to represent myself under the coercion of the court under the
circumstances.
. . .
I am saying at this time that I am not readyyou knowto go to court to represent myself or even
with a new attorneyI understandbut if the court wishes to insist that I go to court today, well, on with
it, I will go on with it under protest. It is simple, sir.
BY THE COURT: Bring in the jury.
Mr. Anderson, you will represent yourself; and the public defender will be present to assist you in
anyway that he can.
Bring in the jury.

2
In light of our determination that the wavier was not made intelligently and knowingly, we need not address
other contentions raised by appellant with respect to the waiver.
____________
98 Nev. 542, 542 (1982) Continental Insurance Co. v. Hull
CONTINENTAL INSURANCE COMPANY and HOWARD CHRYSLER, Appellants, v.
WILLARD P. HULL and CHARLES JONES, Respondents.
No. 13109
December 15, 1982 654 P.2d 1024
Appeal from order dismissing complaint, Eighth Judicial District Court, Clark County;
James A. Brennan, Judge.
Policy holder and his insurer brought suit, as result of automobile accident, for $1,134.81,
plus attorney's fees and costs of suit. Defendants moved to dismiss complaint and the district
court granted the motion. On appeal by plaintiffs, the Supreme Court held that plaintiffs were
precluded by statute from proceeding to trial until after arbitration, but were not precluded
from filing complaint, and since filing of complaint constituted refusal to arbitrate for
purpose of compelling arbitration, defendants had available to them prescribed procedure for
staying action and compelling arbitration, and, on their proper application, district court
should have stayed action and ordered arbitration, instead of granting motion to dismiss
complaint.
Reversed and remanded.
Johnson, Pilkington & Reynolds, Las Vegas, for Appellants.
Cromer, Barker, Michaelson, Gillock & Rawlings, and Michael K. Mansfield, Las Vegas,
for Respondents.
Arbitration.
Where plaintiff policyholder and his insurer following automobile accident filed complaint seeking
$1,134.81 plus attorney's fees and costs of suit, plaintiffs were precluded by statute from proceeding to trial
until after arbitration, but were not precluded from filing complaint, and since filing of complaint
constituted refusal to arbitrate for purpose of compelling arbitration, defendants had available to them
prescribed procedure for staying action and compelling arbitration, and, on their proper application, district
court should have stayed action and ordered arbitration, instead of granting motion to dismiss complaint.
NRS 38.015-38.205, 38.045, subd. 1, 38.215, 38.215, subd. 1, 38.225.
OPINION
Per Curiam:
This litigation arises from an automobile accident which occurred in Las Vegas, Nevada,
on or about July 24, 1976, involving appellant Howard Chrysler and respondents Willard
Hull and Charles Jones.
98 Nev. 542, 543 (1982) Continental Insurance Co. v. Hull
involving appellant Howard Chrysler and respondents Willard Hull and Charles Jones.
Chrysler was insured by appellant Continental Insurance Company.
Appellants filed their complaint below on June 22, 1978, seeking $1,134.81, plus
attorney's fees and costs of suit. Respondents moved to dismiss the complaint under NRS
38.215 and 38.2251 on the ground that submission of the claim to arbitration was required
prior to filing suit. The district court granted the motion. This appeal followed. Appellants
contend that the district court erred by dismissing the complaint. We agree.
The only question presented by this appeal is whether dismissal is proper in a case falling
within NRS 38.215, when suit is filed before arbitration is sought.
NRS 38.215 expressly states that actions thereunder shall be submitted to arbitration in
accordance with the provisions of NRS 38.015 to 38.205 [the Uniform Arbitration Act],
inclusive. The Uniform Arbitration Act provides for the situation here presented. Where an
issue referable to arbitration is involved in an action or proceeding pending in a court having
proper jurisdiction, the court shall stay the action or proceeding and order arbitration on
application of a party. NRS 38.045.
2
In this case, although appellants were precluded by
NRS 3S.225 from proceeding to trial until after arbitration, the statutes did not preclude
appellants from filing their complaint against respondents.
____________________

1
NRS 38.215(1) provides in pertinent part:
[A]ll civil actions for damages for personal injury, death or property damage arising out of the
ownership, maintenance or use of a motor vehicle, where the cause of action arises in the State of Nevada
and the amount in issue does not exceed $3,000, shall be submitted to arbitration, in accordance with the
provisions of NRS 38.015 to 38.205, inclusive.
NRS 38.225 provides:
No cause of action specified in NRS 38.215 shall be tried until there has been compliance with all the
provisions of NRS 38.215 to 38.245, inclusive.

2
NRS 38.045 provides in pertinent part:
1. On application of a party showing . . . the opposing party's refusal to arbitrate, the court shall order
the parties to proceed with arbitration. . . .
. . .
3. If an issue referable to arbitration . . . is involved in an action or proceeding pending in a court
having jurisdiction to hear applications under subsection 1, the application shall be made therein. . . .
4. Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for
arbitration or an application therefor has been made under this section. . . . When the application is made
in such action or proceeding, the order for arbitration shall include such stay.
98 Nev. 542, 544 (1982) Continental Insurance Co. v. Hull
In this case, although appellants were precluded by NRS 38.225 from proceeding to trial
until after arbitration, the statutes did not preclude appellants from filing their complaint
against respondents. Since the filing of the complaint constituted a refusal to arbitrate for
the purpose of compelling arbitration under NRS 380.045(1), Lane-Tahoe, Inc. v. Kindred
Constr. Co., 91 Nev. 385, 389, 536 P.2d 491, 494 (1975), respondents had available to them a
prescribed procedure for staying the action and compelling arbitration. NRS 38.045. Had
respondents made a proper application, the district court should have stayed the action below
and ordered arbitration. The district court should have denied the motion to dismiss the
complaint. Cf. Chubb Pacific v. Twin Lakes Village, 98 Nev. 521, 654 P.2d 530 (1982),
(bankruptcy by defendant may have justified stay, but not dismissal of plaintiff's complaint).
Accordingly, we reverse the district court's order of dismissal and remand with instructions
to proceed in accordance with the Uniform Arbitration Act.
____________
98 Nev. 544, 544 (1982) Haromy v. Sawyer
LINDA K. HAROMY and FRANZ J. HAROMY, Appellants and Cross-Respondents, v.
SANDRA SAWYER, Respondent and Cross-Appellant.
No. 12905
December 15, 1982 654 P.2d 1022
Appeal from a judgment awarding partial restitution to respondent, and cross-appeal
challenging the amount of damages awarded in restitution, Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
Purchaser of apartment building filed suit against vendors for fraud, deceit and an
accounting, and filed an amended complaint requesting equitable relief based on theory of
unjust enrichment. The district court found that purchaser failed to prove its claim of fraud,
but was entitled to partial restitution under the theory of unjust enrichment. Appeal and
cross-appeal were taken. The Supreme Court held that: (1) the district court did not err in
finding the parties' liquidated damages clause to be a penalty; (2) the district court did not err
in awarding partial restitution to the purchaser on the theory of unjust enrichment; and (3) the
computation of damages in awarding partial restitution was proper.
Affirmed.
98 Nev. 544, 545 (1982) Haromy v. Sawyer
O'Brien & Avila, and Beckley, Singleton, DeLanoy & Jemison, Las Vegas, for Appellants
and Cross-Respondents.
Clark & Zubel, Las Vegas, for Respondent and Cross-Appellant.
1. Damages.
Generally, liquidated damage provisions are prima facie valid and party challenging provision must
establish that its application amounts to a penalty.
2. Damages.
In order to prove that liquidated damage clause constitutes penalty, challenging party must persuade court
that liquidated damages are disproportionate to actual damages sustained by injured party.
3. Damages.
In action for fraud, deceit and an accounting arising out of contract for sale of apartment building, district
court did not err in finding liquidated damage clause to be penalty, given evidence of expenditures
purchaser made while in possession of property and failure of vendors to present any persuasive evidence
to suggest that they had sustained actual damages as result of purchaser's failure to perform contract.
4. Implied and Constructive Contracts.
In action by purchaser of apartment building for fraud, deceit and an accounting, district court did not err
in awarding purchaser $83,600.85 in partial restitution based on theory of unjust enrichment where
purchaser expended a total of $168,600.85 in partial performance of contract and established that vendors
did not incur any actual damages as result of breach.
5. Appeal and Error.
In action by purchaser of apartment building for fraud, deceit and accounting, district court's computation
of damages in awarding partial restitution to purchaser would not be disturbed on appeal.
OPINION
Per Curiam:
On October 8, 1977, appellants Franz and Linda Haromy, owners of the Lake Apartments
located in Las Vegas, Nevada, entered into a contract to sell the apartments to respondent,
Sandra Sawyer.
Respondent agreed to pay $860,000 to appellants for the Lake Apartments. Pursuant to the
terms of the contract, respondent was to provide $50,000 as a downpayment, make one
monthly payment of $5,300, six monthly payments of $7,300, and a balloon payment of the
balance owed on June 30, 1978.
Shortly after respondent took possession of the Lake Apartments, disputes arose between
the parties. Respondent alleged the appellants had deceived her as to the true condition of the
property.
98 Nev. 544, 546 (1982) Haromy v. Sawyer
property. Consequently, respondent refused to pay the November and December payments as
required under the contract.
Respondent filed suit against appellants for fraud, deceit and an accounting. She also filed
an amended complaint requesting equitable relief based on the theory of unjust enrichment.
While awaiting trial, the parties entered into a stipulation which provided that respondent
would make all payments required under the contract to an escrow agent appointed by the
parties. The stipulation also provided that appellants where entitled to take possession of the
apartment property if any payments were more than ten days past-due.
On June 30, 1978, respondent failed to make the final balloon payment. Both parties filed
motions for injunctive relief on various theories. Thereafter, a hearing was held on the parties'
cross-motions for preliminary injunctions. The district court granted appellants' motion for a
preliminary injunction, and held they were entitled to possession of the property.
At trial, the court, sitting without a jury, found that respondent failed to prove her claim of
fraud. Nonetheless, the court found that respondent was entitled to partial restitution under
the theory of unjust enrichment, and awarded her $83,600.85.
Appellants challenge the judgment awarding respondent partial restitution, contending that
the terms of the parties' agreement required all monies paid by respondent to be forfeited in
the event of default.
Respondent cross-appeals, claiming she is entitled to a greater award of damages than
calculated by the court.
The parties' contract of sale included the following liquidated damage clause:
12. Should default be made by Buyer under any of the provisions hereof, the Sellers
may declare this Contract void and the Premises, together with all improvements and
furnishings, and all payments made and all considerations given under this Contract
shall be forfeited to the Sellers as liquidated damages and the Sellers may declare the
unpaid balance of this Contract due forthwith, and the Sellers may take possession of
the Premises without notice, and remove thereform [sic] the Buyer or anyone claimed
under her. Any occupancy of the Premises thereafter by the Buyer or her agents, with or
without consent of the Sellers shall be deemed to be a tenancy at the will of the Sellers.
[Headnotes 1, 2]
Generally, liquidated damage provisions are prima facie valid. Thus, the party challenging
the provision must establish that its application amounts to a penalty.
98 Nev. 544, 547 (1982) Haromy v. Sawyer
that its application amounts to a penalty. Silver Dollar Club v. Cosgriff Neon, 80 Nev. 108,
389 P.2d 923 (1964); see also Freedman v. Rector, Etc., 230 P.2d 629 (Ca. 1951). In order to
prove a liquidated damage clause constitutes a penalty, the challenging party must persuade
the court that the liquidated damages are disproportionate to the actual damages sustained by
the injured party. Silver Dollar Club v. Cosgriff Neon, 80 Nev. 108, 389 P.2d 923 (1964).
[Headnote 3]
At trial respondent introduced evidence that she made partial payments of $120,100.85
and expenditures of $48,500.00 in permanent capital improvements while in possession of the
property. It was also established that respondent significantly increased the rental income of
the property while in her possession. Additionally, respondent presented the testimony of an
expert witness who stated the property had a fair market value in excess of $900,000.00.
In contrast, the record reflects appellants failed to present any persuasive evidence to
suggest they had sustained actual damages as a result of respondent's failure to perform the
contract. Consequently, the district court found that the liquidated damage clause at issue
constituted a penalty.
On this record, we cannot say the district court erred in finding the parties liquidated
damage clause to be a penalty.
[Headnote 4]
In support of her claim for restitution based on the theory of unjust enrichment, respondent
relies on Kitchin v. Mori, 84 Nev. 181, 437 P.2d 865 (1968). In Kitchin v. Mori, we
determined that a defaulting buyer may recover payments previously made by him, upon a
showing that the payments exceed the amount of the seller's damage. We stated, [e]ven a
willfully defaulting vendee may recover the excess of his part payments over the damages
caused by his breach.
Here, the record establishes that respondent expended a total of $168,600.85 in partial
performance of the contract. Additionally, respondent clearly established that appellants did
not incur any actual damages as a result of her breach.
Accordingly, we conclude that the district court did not err in awarding respondent
$83,600.85 in partial restitution based on the theory of unjust enrichment.
[Headnote 5]
Finally, in her cross-appeal, respondent challenges the district court's computation of
damages in awarding partial restitution.
In its findings of fact, the district court stated: plaintiff is entitled to partial restitution
for her part payments in the amount of $120,100.S5 plus capital improvements in the
amount of $4S,500.00 minus rents in the amount of $S5,000.00 for a total of $S3,600.S5
in damages."
98 Nev. 544, 548 (1982) Haromy v. Sawyer
entitled to partial restitution for her part payments in the amount of $120,100.85 plus capital
improvements in the amount of $48,500.00 minus rents in the amount of $85,000.00 for a
total of $83,600.85 in damages.
Respondent complains that the court failed to credit her with $71,030.17 in expenses
incurred to earn rental income, while in possession of the property. Certain witnesses testified
to expenses allegedly incurred by respondent while she was in possession of the property at
issue. Many of these alleged expenses were challenged by appellants as being unnecessary
and unsupported by the facts. The court weighed the testimony of all the witnesses and chose
to credit respondent with actual payments expended on the property, less income earned from
said property. The trial court's findings will not be disturbed on appeal, where they are
supported by substantial evidence. Franklin v. Bartsas Realty, Inc., 95 Nev. 559, 598 P.2d
1147 (1979).
Accordingly, we conclude respondent's cross-appeal is without merit and affirm the
district court's judgment in its entirety.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
1
concur.
____________________


The Chief Justice designated The Honorable David Zenoff, Senior Justice, to participate in this case in the
place of The Honorable Thomas Steffen, who voluntarily disqualified himself. Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 548, 548 (1982) Shapiro v. Pavlikowski
BERNIE SHAPIRO, Petitioner, v. THE HONORABLE JOSEPH S. PAVLIKOWSKI, Sitting
as Judge of Department III of the Eighth Judicial District Court
of the State of Nevada in and for the County of Clark, and COIN-O-MATIC
OF NEVADA, Respondents.
No. 14136
December 15, 1982 654 P.2d 1030
Original proceeding was brought to prohibit district court from denying nonresident's
motion to quash service of summons and complaint in an action to recover for goods
allegedly sold and delivered. The Supreme Court held that although petitioner, an Arizona
resident, had cashed an expense check in Nevada he was not subject to personal jurisdiction
as check cashing bore no relation to the alleged debt or sale.
Writ granted.
98 Nev. 548, 549 (1982) Shapiro v. Pavlikowski
Greenman, Goldberg & Raby, Las Vegas, for Petitioner.
Marquis & Haney, Las Vegas, for Respondents.
1. Courts.
Personal jurisdiction over an out-of-state defendant may only be conferred on Nevada courts when
defendant commits, within the state, one or more of certain acts enumerated by statute. NRS 14.065.
2. Courts.
Transacting business and negotiating commercial paper in Nevada warrant assertion of personal
jurisdiction over a nonresident but that jurisdiction extends only to causes of action which arose from those
acts. NRS 14.065, 14.065, subd. 3.
3. Courts.
Although Arizona resident cashed an expense check at Nevada bank that act did not warrant assertion of
personal jurisdiction in action to recover for goods sold and delivered as the cause of action did not arise
out of the check cashing and the Arizona resident committed no act within Nevada with respect to the
alleged debt or the goods. NRS 14.065, 14.065, subd. 3.
4. Prohibition.
Writ of prohibition issued to restrain the district court from proceedings against Arizona resident where
personal jurisdiction was lacking. NRS 14.065.
OPINION
Per Curiam:
This original proceeding in prohibition challenges respondent district court's order denying
petitioner's motion to quash service of a summons and complaint, filed by respondent
Coin-O-Matic and naming petitioner a party defendant. Petitioner, a resident of Arizona,
contends that the district court lacks jurisdiction over his person. We agree.
The complaint below alleges that petitioner is indebted to respondent Coin-O-Matic in the
sum of $69,084.91, for goods sold and delivered. Petitioner was served with process at his
home in Arizona. He moved to quash service of process, arguing that he had committed no
act or acts within the State of Nevada sufficient to confer in personam jurisdiction upon the
district court. See NRS 14.065. Respondent contends that certain business activities which
petitioner conducted within this state while either an employee or independent contractor of
Coin-O-Matic, including the cashing of an expense check at a Nevada bank, constituted
transacting business and negotiating commercial paper within this state, thereby
conferring jurisdiction over his person in the suit below.
[Headnotes 1-3]
Personal jurisdiction over an out-of-state defendant may only be conferred on Nevada
courts under NRS 14.065 when the defendant commits, within the state, one or more of
certain acts enumerated by the statute.
98 Nev. 548, 550 (1982) Shapiro v. Pavlikowski
only be conferred on Nevada courts under NRS 14.065 when the defendant commits, within
the state, one or more of certain acts enumerated by the statute. These include transacting
business and negotiating commercial paper. However, jurisdiction extends only to causes of
action which arise from those acts. NRS 14.065(3); see Certain-Teed Prods. v. District Court,
87 Nev. 18, 479 P.2d 781 (1971). Here, the business activities petitioner engaged in within
the state have absolutely nothing to do with the cause of action alleged against him in
Coin-O-Matic's complaint. The complaint seeks to collect on a debt allegedly incurred for
goods petitioner ordered from Arizona by telephone.
1
The cause of action alleged does not
arise out of the activities set forth by respondent as a basis for jurisdiction; indeed, petitioner
committed no act within the State of Nevada with respect to the alleged debt or the goods
allegedly sold and delivered. Jurisdiction over his person under these circumstances would be
unreasonable. See McDermond v. Siemens, 96 Nev. 226, 607 P.2d 108 (1980); Certain-Teed
Prods v. District Court, supra; see also World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286 (1980).
[Headnote 4]
The writ of prohibition shall issue to restrain the district court from further proceedings
against petitioner upon Coin-O-Matic's complaint.
____________________

1
The telephone calls were apparently initiated by Coin-O-Matic's Nevada-based employees.
____________
98 Nev. 550, 550 (1982) Galvan v. State
ANTONIO GALVAN, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 13502
December 15, 1982 655 P.2d 155
Appeal from conviction of two felony counts of Driving Under the Influence of
Intoxicating Liquor, Causing Death. First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
The Supreme Court, Manoukian, J., held that: (1) blood sample taken from defendant
while he was unconscious and before arrest did not constitute illegal search and seizure, and
(2) multiple sentences could be imposed.
Affirmed.
98 Nev. 550, 551 (1982) Galvan v. State
J. Gregory Damm, Nevada State Public Defender, and Robert A. Bork, Chief Deputy
Public Defender, Carson City, for Appellant.
Richard H. Bryan, Attorney General; William A. Maddox, District Attorney, and Charles
P. Cockerill, Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
Implied consent law does not require an arrest of suspect before blood sample can be lawfully taken.
NRS 484.383.
2. Searches and Seizures.
Fourth Amendment does not require an arrest prior to blood alcohol test. U.S.C.A.Const. Amend. 4.
3. Criminal Law.
Fruits of search performed without warrant, prior arrest or consent should only rarely be admitted into
evidence if a defendant's Fourth Amendment protections are to be respected; however, there may exist
exigent circumstances which validate limited search. U.S.C.A.Const. Amend. 4.
4. Searches and Seizures.
Blood sample taken from defendant when he was unconscious and before he was arrested did not
constitute illegal search and seizure where defendant was unconscious rendering formal arrest meaningless
and unnecessary, probable cause existed to arrest defendant for driving while under influence of alcohol
prior to test, and officer, faced with inevitable and rapid destruction of evidence and defendant's
unconsciousness, could reasonably have believed that he was confronted with emergency, so that he could
not delay by obtaining warrant or waiting until defendant regained consciousness. U.S.C.A.Const. Amend.
4; NRS 484.383.
5. Criminal Law.
Course of conduct resulting in harm to multiple victims gives rise to multiple charges of the offense.
6. Criminal Law.
Multiple sentences could be imposed on defendant convicted of multiple counts of felony drunk driving
arising from incident in which two persons were killed and two others injured. NRS 484.3795,
484.383.
OPINION
By the Court, Manoukian, J.:
Appellant Galvan contends that the trial court erred in admitting evidence of a blood
sample taken from appellant and in convicting him of multiple counts of felony drunk
driving. We find no error and affirm.
On November 22, 1980, Galvan, accompanied by two friends, drove his pickup through a
posted intersection in Carson City, colliding with another vehicle traveling on a through
street, and killing both of its occupants.
98 Nev. 550, 552 (1982) Galvan v. State
street, and killing both of its occupants. Galvan and his two passengers were seriously
injured. When the police officer arrived on the scene, Galvan apparently was unconscious in
his vehicle. The officer detected the smell of alcohol on Galvan's breath. Galvan was
transported to a hospital, still unable to respond to questions by officers. Upon the police
officer's request, a lab technician took blood samples from Galvan. No search warrant was
obtained prior to extracting the blood sample, and Galvan was not arrested until four days
later. The blood sample revealed an alcohol content of .263 percent.
Appellant was initially charged with four counts of Driving Under the Influence of
Intoxicating Liquor Causing Death of or Substantial Bodily Harm to Another Person. NRS
484.3795. Prior to trial, appellant filed a petition for writ of habeas corpus, requesting the trial
court to reduce the four felony counts to one. The petition was denied, as was a petition for
writ of mandamus or for prohibition filed with this court. The two counts concerning serious
bodily injury to Galvan's passengers were dismissed prior to trial.
During the bench trial, appellant moved unsuccessfully to suppress the blood sample as
evidence obtained from an illegal search and seizure. The trial judge found Galvan guilty of
the two remaining counts and sentenced him to two consecutive six-year terms.
1. Admission of Blood Sample Evidence.
Appellant contends that NRS 484.383, Nevada's implied consent law, requires an arrest of
the suspect before a blood sample can be lawfully taken. He also argues that the Fourth
Amendment prohibits taking a blood sample unless incident to lawful arrest or with the
suspect's consent.
NRS 484.383
1
reads in part:
1. Except as provided in subsections 4 and 5, any person who drives a vehicle upon
a highway in this state shall be deemed to have given his consent to a chemical test of
his blood, urine, breath or other bodily substance for the purpose of determining the
alcoholic content of his blood or the presence of a controlled substance when such a test
is administered at the direction of a police officer having reasonable grounds to believe
that the person to be tested was driving a vehicle while under the influence of
intoxicating liquor or a controlled substance and after he was arrested for any
offense allegedly committed while he was driving a vehicle under the influence of
intoxicating liquor or a controlled substance.
____________________

1
The statute was amended, effective July 1981, to expressly allow for conducting a blood test either on one
who has been arrested or on one who is dead, unconscious or otherwise in a condition rendering him incapable
of being arrested. Thus, the new provision clearly adopts respondent's position that lawful arrest is not a
precondition to taking a blood sample from an unconscious driver.
98 Nev. 550, 553 (1982) Galvan v. State
was driving a vehicle while under the influence of intoxicating liquor or a controlled
substance and after he was arrested for any offense allegedly committed while he was
driving a vehicle under the influence of intoxicating liquor or a controlled substance.
. . .
3. Any person who is dead, unconscious, or otherwise in a condition rendering him
incapable of refusal shall be deemed not to have withdrawn his consent, and any such
test may be administered whether or not the person is informed that his failure to
submit to the test will result in the suspension of his privilege to drive a vehicle for a
periods of months.
[Headnote 1]
There can be no question that subsection 1 becomes operative only upon an arrest of a
driver capable of refusing consent. However, subsection 3 contains no similar requirement for
persons incapable of refusing consent. We will not imply such a requirement. See State v.
Campbell, 615 P.2d 190 (Mont. 1980); State v. Mangels, 531 P.2d 1313 (Mont. 1975)
(construing similar implied consent statute). Even if we were to assume that subsection 3 was
ambiguous, any doubt as to the legislature's intent in enacting this provision was resolved by
the 1981 amendment to NRS 484.383, which unequivocally permits performance of alcohol
tests on those incapable of being arrested if there is probable cause for an arrest under the
statute. We have held that when the legislature resolves ambiguity or doubtful interpretation
in a statute by amendment, that amendment is evidence of the legislature's intent in the
original statute. See Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975).
We are also inclined to construe our implied consent statute liberally in order to promote
the legislative policy of removing intoxicated drivers from our state's highways. See Morrow
v. State, 303 A.2d 633 (Del.Sup. 1973).
[Headnote 2]
In addition, we reject appellant's argument that the Fourth Amendment requires an arrest
prior to a blood alcohol test. We recognize that this question has resulted in a split in
authority among those courts which have examined the constitutional requirement for an
arrest. See 2 La Fave, Search and Seizure, 5.4(b) (1978). Many of those courts which have
subscribed to a Fourth Amendment arrest requirement, despite a defendant's unconscious
condition, have relied on Schmerber v. California, 3S4 U.S. 757 {1966). See, e.g., Shores v.
State, 233 So.2d 434 {Fla.App. 1970); State v. Davis, 226 A.2d S73 {N.H. 1967).
98 Nev. 550, 554 (1982) Galvan v. State
384 U.S. 757 (1966). See, e.g., Shores v. State, 233 So.2d 434 (Fla.App. 1970); State v.
Davis, 226 A.2d 873 (N.H. 1967).
In Schmerber, the Supreme Court upheld the admissibility of a blood test taken on a
conscious defendant who had expressly refused consent. The Court determined that although
blood extraction was clearly within the scope of Fourth Amendment protection, the minimal
intrusion entailed by a properly performed test was justified by the circumstances. The court
noted that the test was performed subsequent to a lawful arrest and that the arresting officer
could have reasonably believed that delay in testing the alcoholic content of the defendant's
blood, which rapidly diminishes in time, threatened destruction of the evidence and excused
the failure to obtain a warrant. Id. at 770-771.
[Headnote 3]
We do not believe, however, that the Schmerber decision holds that arrest is an absolute
prerequisite to a blood test for alcohol. We decline to impose such an absolute requirement.
The fruits of searches performed without a warrant, a prior arrest or consent should only
rarely be admitted into evidence if a defendant's Fourth Amendment protections are to be
respected. However, there may exist exigent circumstances which validate a limited search
such as the test performed on Galvan. See Cupp v. Murphy, 412 U.S. 291 (1973); State v.
Campbell, supra.
[Headnote 4]
We find, in the instant case, that Galvan's unconscious condition rendered formal arrest
meaningless and unnecessary. See State v. Campbell, supra; La Fave, supra. See also, Cupp
v. Murphy, supra. There appears to be no dispute that probable cause existed to arrest Galvan
for driving while under the influence of alcohol prior to the test. The officer, faced with the
inevitable and rapid destruction of the evidence and Galvan's unconsciousness, could
reasonably have believed that he was confronted with an emergency, so that he could not
delay by obtaining a warrant or waiting until Galvan regained consciousness.
Thus, we determine that there was neither a violation of NRS 484.383 nor constitutional
infirmity in admitting the blood sample evidence at trial.
2. Conviction on Multiple Counts.
Appellant, convicted of multiple counts under NRS 484.3795, urges this court to adopt the
rule announced in two California appellate court decisions. Those cases hold that violation of
the drunk driving law results in only one offense, and consequently one sentence,
regardless of the number of victims.
98 Nev. 550, 555 (1982) Galvan v. State
consequently one sentence, regardless of the number of victims. People v. Moore, 97
Cal.Rptr. 601 (Cal.App. 1971); People v. Lobaugh, 95 Cal.Rptr. 547 (Cal.App. 1971).
In Lobaugh, the court determined that
. . . the fundamental concern of the state is not the outrage done the victims, but rather
the prevention of drunken driving and the punishment of those who so conduct
themselves. . . . [I]t is not the receiving of the injury that concerns the state, but the
causing of such injuries which the state seeks to minimize.
Id. at 549-50 (quoting People v. Chatham, 110 P.2d 704, 706 (Cal.App. (19741 [1971]).
[Headnotes 5, 6]
The California cases depart from the usual rule, long established in Nevada, that a course
of conduct resulting in harm to multiple victims gives rise to multiple charges of the offense.
See State v. Lambert, 9 Nev. 321 (1874).
Appellant urges us to apply the Lobaugh court's reasoning to NRS 484.3795 because
Nevada's statute is similar to California's. We fail to perceive that this is a compelling reason
to adopt the Lobaugh court's rationale. We believe that the Lobaugh court too narrowly
defines the public policy concerns underlying drunken driving statutes. We are convinced that
the state is concerned with both the causing and receiving of the injuries which the
legislature has sought to minimize. We therefore uphold the conviction of the two felony
counts.
Gunderson, C. J., and Springer, Mowbray, and Steffen, JJ., concur.
____________
98 Nev. 555, 555 (1982) Tiger v. State
VERNON ART TIGER, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 13510
December 16, 1982 654 P.2d 1031
Appeal from judgments of conviction upon pleas of guilty. Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
Motion to withdraw guilty pleas was denied by the district court and defendant appealed.
The Supreme Court held that: (1) where record did not disclose that defendant, on pleading
guilty, understood elements of attempted sexual assault charge, nor did defendant make
factual statements constituting admission to the charge, his guilty plea to such count was
to be set aside, and {2) where defendant on pleading guilty to first degree murder
admitted that he was present at scene of crime, that he voluntarily entered residence,
that he knew that shooting had occurred and that he ran away, but he did not admit facts
constituting necessary elements of any crime that would support conviction under felony
murder rule, it was necessary that his guilty plea to first degree murder be set aside.
98 Nev. 555, 556 (1982) Tiger v. State
guilty, understood elements of attempted sexual assault charge, nor did defendant make
factual statements constituting admission to the charge, his guilty plea to such count was to be
set aside, and (2) where defendant on pleading guilty to first degree murder admitted that he
was present at scene of crime, that he voluntarily entered residence, that he knew that
shooting had occurred and that he ran away, but he did not admit facts constituting necessary
elements of any crime that would support conviction under felony murder rule, it was
necessary that his guilty plea to first degree murder be set aside.
Reversed and remanded.
Joel M. Cooper, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Las Vegas, for Respondent.
1. Criminal Law.
District judge, in accepting Alford plea, which is guilty plea accompanied by denial of facts constituting
offense, must determine that there is factual basis for plea, and must further inquire into and seek to resolve
conflict between waiver of trial and claim of innocence, and court's inquiry should be addressed to
defendant personally, and not simply to his counsel.
2. Criminal Law.
District judge in accepting guilty pleas must determine that accused understands elements of offense with
which he is charged.
3. Criminal Law.
Where record did not disclose that defendant, when pleading guilty, understood elements of attempted
sexual assault charge, nor did defendant make factual statements constituting admission to the charge, his
guilty plea to such count was to be set aside.
4. Criminal Law.
Where defendant on pleading guilty to first degree murder admitted that he was present at scene of crime,
that he voluntarily entered residence, that he knew that shooting had occurred and that he ran away, but he
did not admit facts constituting necessary elements of any crime that would support conviction under
felony murder rule, it was necessary that his guilty plea to first degree murder be set aside.
OPINION
Per Curiam:
Vernon Art Tiger appeals from judgments of conviction entered upon his guilty pleas to
first degree murder and attempted sexual assault. He suggests that the district court did not
adequately determine that his guilty pleas were voluntarily and understandingly entered, as
mandated in Hanley v. State, 97 Nev. 130
98 Nev. 555, 557 (1982) Tiger v. State
and understandingly entered, as mandated in Hanley v. State, 97 Nev. 130, 624 P.2d 1387
(1981). We agree and reverse.
THE FACTS
Tiger was charged by indictment with first degree murder, robbery, burglary, and
attempted sexual assault. The evidence before the Grand Jury showed that Tiger had gone
with three others to an apartment occupied by a woman. One of the men, Thomas Nevius, had
a gun; he threatened the woman and demanded her money and jewelry. Nevius and Tiger
attempted to assault the woman sexually. When her husband returned to the apartment,
Nevius shot and killed him.
At Tiger's arraignment, the court entered pleas of not guilty on his behalf. Pursuant to plea
negotiations, Tiger withdrew his not guilty pleas and pleaded guilty to first degree murder and
attempted sexual assault. His guilty plea to first degree murder was based on an admission of
guilt. However, his guilty plea to attempted sexual assault was entered by his counsel under
North Carolina v. Alford, 400 U.S. 25 (1970); Tiger did not admit committing the crime of
attempted sexual assault. Later, Tiger moved to withdraw both his guilty pleas. The district
court denied Tiger's motion. Tiger was sentenced to life without possibility of parole on the
murder count, with a consecutive sentence of twenty years on the attempted sexual assault
count.
THE GUILTY PLEAS
In Hanley, supra, in accord with decisions of the United States Supreme Court, we held
that, when the district court accepts a guilty plea, the record must affirmatively show that
certain minimal requirements are met, in order to establish that the plea was voluntarily and
understandingly entered. They are: (1) an understanding waiver of constitutional rights and
privileges, (2) the absence of coercion by threat or promise of leniency, (3) an understanding
of the consequences of the plea: the range of punishments, and (4) an understanding of the
charge. In the case before us, the district court met the first three requirements, but failed to
satisfy the fourth.
We held in Hanley that:
constitutional requirements and the statutory requirement of NRS 174.035(1) demand
either a showing that the defendant himself (not just his attorney) understood the
elements of the offense to which the plea was entered or a showing that the defendant,
himself, has made factual statements to the court which constitute an admission to the
offense pled to. (Emphasis in original.)
98 Nev. 555, 558 (1982) Tiger v. State
[Headnotes 1, 2]
Tiger's guilty plea to the attempted sexual assault count was entered under North Carolina
v. Alford, 400 U.S. 25 (1970). An Alford plea is a guilty plea accompanied by a denial of the
facts constituting the offense. In Alford, the Supreme Court held that such a plea is
constitutionally sound if it is knowingly entered for a valid reason, for instance, to avoid the
possibility of a harsher penalty. However, the district judge, in accepting the plea, must
determine that there is a factual basis for the plea, and he must further inquire into and seek to
resolve the conflict between the waiver of trial and the claim of innocence. Alford, supra, 400
U.S. at 38 n. 10. The court's inquiry should be addressed to the defendant personally, and not
simply to his counsel. See State v. Smith, 606 P.2d 86, 88-89 (Hawaii 1980). Moreover, the
district judge, as in accepting other guilty pleas, must also determine that the accused
understands the elements of the offense with which he is charged.
[Headnote 3]
The record in the instant case does not disclose that Tiger understood the elements of the
attempted sexual assault charge. Nor did Tiger make factual statements constituting an
admission to the attempted sexual assault charge. Therefore, his guilty plea to the attempted
sexual assault count must be set aside.
[Headnote 4]
Additionally, the record does not demonstrate that Tiger understood the elements of the
crime of first degree murder. In response to questioning by the district judge, Tiger admitted
that he was present at the scene of the crime, that he voluntarily entered the residence, that he
knew that a shooting had occurred, and that he ran away. Tiger did not admit facts
constituting the necessary elements of any crime that would support a conviction under the
felony murder rule. Cf. Hanley, supra. Therefore, Tiger's guilty plea to first degree murder
must also be set aside.
1

The convictions are reversed and the case is remanded, so that Tiger may enter his pleas to
both charges.
____________________

1
Gregory Leon Everett, who was with Tiger during the commission of the homicide, has been found guilty,
upon his plea of guilty, of the charge of first degree murder. Everett appealed that judgment of conviction, which
appeal was dismissed by this Court on September 23, 1982. (Everett v. State, Case No. 13434)
____________
98 Nev. 559, 559 (1982) Staschel v. Weaver Brothers, Ltd.
CHARLES G. STASCHEL, Appellant, v. WEAVER
BROTHERS, LTD., Respondent.
No. 13070
December 20, 1982 655 P.2d 518
Appeal from order denying relief from judgment. First Judicial District Court, Carson
City; Michael E. Fondi, Judge.
On appeal from order of the district court denying motion to set aside a default judgment,
the Supreme Court, Mowbray, J., recalled original opinion published at 98 Nev. 199, 644
P.2d 512 (1982), and held that misconduct of client's attorney warranted granting of motion to
set aside default.
Reversed and remanded.
Gunderson, C. J., dissented.
James Shields Beasley, Reno, for Appellant.
Smith and Gamble, Ltd., and Wayne S. Chimarusti, Carson City, for Respondent.
1. Appeal and Error; Judgment.
Granting or denying motion to vacate default rests in sound discretion of district court, and order will not
be disturbed unless an abuse of discretion clearly appears.
2. Judgment.
Attorney's failure to answer adversary's interrogatories, respond to court order directing him to answer, or
attend hearing on damages following entry of default judgment against his client constituted actual
misconduct and warranted granting of client's motion to vacate default
OPINION
By the Court, Mowbray, J.:
On May 7, 1982, this Court issued an opinion in the case of Staschel v. Weaver Brothers,
Ltd., which appears at 98 Nev. 199, 644 P.2d 512 (1982). Respondent petitioned for a
rehearing, contending that this Court misapprehended material facts in the record. NRAP
40(c)(2)(i). Having reviewed the petition and the opposition, we deny the petition for
rehearing, on the ground that any factual inaccuracies in the opinion were not material to the
result. However, we recall our earlier opinion and issue this opinion in its stead.
This is an appeal from an order denying a motion to set aside a default judgment.
98 Nev. 559, 560 (1982) Staschel v. Weaver Brothers, Ltd.
a default judgment. Respondent filed this action against appellant in the First Judicial District
Court on April 3, 1979. Service of process was effected by leaving the summons and
complaint at appellant's place of business. A local attorney filed an answer and counterclaim.
On July 2, 1979, respondent served that attorney with a request for interrogatories. They were
never answered.
Respondent moved the court on September 18, 1979 for an order directing the filing of the
answers. The court granted the order; it was served on the same attorney and ignored. A
default judgment was entered on November 8, 1979 and a hearing on damages set for
November 21, 1979. Although served with notice, appellant's attorney did not attend the
hearing and the court finally entered a default judgment in favor of respondent and against
appellant for $255,254.71.
Appellant was in Montana at the time the case was filed. He first learned of the default
judgment six months after his return to Carson City. His attorney assured him that the default
judgment would be vacated. Several months later, after continually reassuring appellant that
all was proceeding smoothly, the attorney informed appellant that he was giving up the
practice of law.
1
Appellant then secured his present counsel and filed the instant motion to
set aside the default judgment.
[Headnote 1]
The rule is well established that the granting or denying of a motion to vacate a default
rests in the sound discretion of the district court. The order will not be disturbed unless an
abuse of discretion clearly appears. Fagin v. Fagin, 91 Nev. 794, 544 P.2d 415 (1975); Bryant
v. Gibbs, 69 Nev. 167, 243 P.2d 1050 (1952).
Although the law ordinarily charges the client with the inexcusable neglect of his attorney
and gives him redress against his counsel, courts have given clients relief from a default when
the attorney's failure to represent the client amounts to misconduct. Daley v. County of Butte,
227 Cal.App.2d 380, 391-92, 38 Cal.Rptr. 693, 700 (1964). Here the attorney swore by
affidavit that he had been given no authority to represent the appellant generally or in this
particular matter. As the court said in Orange Empire National Bank v. Kirk:
Thus, where a client is unknowingly deprived of effective representation by
counsel's failure to serve process, to appear at the pretrial conference, to communicate
with the court, client, and other counsel, and the action is dismissed by reason of the
attorney's misrepresentation, the client will not be charged with responsibility for
the misconduct of nominal counsel of record, providing the client acts with due
diligence in moving for relief after discovery of the attorney's neglect, and the
opposing party's rights will not be prejudiced nor suffer injustice as a result of the
granting of relief.
____________________

1
The attorney has since been publicly reprimanded for dereliction of duty to a client in an unrelated matter.
98 Nev. 559, 561 (1982) Staschel v. Weaver Brothers, Ltd.
court, client, and other counsel, and the action is dismissed by reason of the attorney's
misrepresentation, the client will not be charged with responsibility for the misconduct
of nominal counsel of record, providing the client acts with due diligence in moving for
relief after discovery of the attorney's neglect, and the opposing party's rights will not
be prejudiced nor suffer injustice as a result of the granting of relief.
66 Cal.Rptr. 240, 244 (Ct.App. 1968).
In the instant case, the attorney entered an appearance for the appellant by filing an answer
and counter claim to respondent's claim. He then failed to answer respondent's
interrogatories, respond to the court order directing him to answer, or attend the hearing on
damages following entry of the default judgment. As the court noted in Orange Empire
National Bank, [t]o characterize [the attorney's] failure to represent his client as inexcusable
neglect' would be charitable but hardly candid. His dereliction of the professional obligations
owed appellant constituted actual misconduct. 66 Cal.Rptr. at 244.
[Headnote 2]
Under the facts presented, we believe appellant should have his day in court. As the United
States Court of Appeals, District of Columbia said in Jackson v. Washington Monthly Co.:
We are constrained to conclude this appeal on a note of caution. Trial-court
dismissal of a lawsuit never heard on its merits is a drastic step, normally to be taken
only after unfruitful resort to lesser sanctions. [Citations omitted.] . . . Dismissals for
misconduct attributable to lawyers and in no wise to their clients invariably penalize the
innocent and may let the guilty off scot-free. The curious treatment strikes us as both
anomalous and self-defeating. [Citations omitted.] When the client has not personally
misbehaved and his opponent in the litigation has not been harmed, the interests of
justice are better served by an exercise of discretion in favor of appropriate action
against the lawyer as the medium for vindication of the judicial process and protection
of the citizenry from future imposition. [Citations omitted.] Public confidence in the
legal system is not enhanced when one component punishes blameless litigants for the
misdoings of another component of the system; to laymen unfamiliar with the
fundamentals of agency law, that can only convey the erroneous impression that
lawyers protect other lawyers at the expense of everyone else.
569 F.2d 119, 123-124 (D.C.Cir. 1977).
98 Nev. 559, 562 (1982) Staschel v. Weaver Brothers, Ltd.
Accordingly, we reverse and remand the case for a trial on the merits.
Manoukian and Springer, JJ., and Zenoff, Sr. J.,
2
concur.
Gunderson, C. J., dissenting:
I respectfully dissent.
In my view, the district court could properly determine, as it apparently did, that appellant
Staschel had failed to prove mistake, inadvertence, surprise or excusable neglect. NRCP
60(b). The record in this matter, including affidavits supporting appellant's motion for relief
from the judgment, is quite extensive. From the record, disparate inferences may be drawn
concerning the extent of appellant's knowledge, diligence or lack of it, and culpability in
allowing the judgment to be entered. The district court evidently simply was not satisfied that
appellant's predicament arose solely from clear misconduct on the part of his counsel.
In my opinion, this Court should not re-weigh the evidence, draw different inferences, and
substitute its judgment for that of the district court on factual issues which were that court's
province to consider--and as to which the appellant, as moving party, had the burden of proof.
____________________

2
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable Cameron M. Batjer, Justice, retired. Nev. Const., art. 6, 19(1)(c); SCR 10.
____________
98 Nev. 562, 562 (1982) Navarro v. State ex rel. Dep't Human Res.
CARMEN NAVARRO, Appellant, v. STATE OF NEVADA, EX REL. DEPARTMENT OF
HUMAN RESOURCES WELFARE DIVISION, Respondents.
No. 12916
December 23, 1982 655 P.2d 158
Appeal from an order dismissing appellant's petition for judicial review, Eighth Judicial
District Court, Clark County; J. Charles Thompson, Judge.
Former employee of Welfare Division of the Department of Human Services filed petition
for review of Personnel Advisory Commission's determination that she was justifiably
dismissed from employment.
98 Nev. 562, 563 (1982) Navarro v. State ex rel. Dep't Human Res.
from employment. The district court dismissed the petition, and petitioner appealed. The
Supreme Court held that district court had jurisdiction over former employee's petition for
judicial review of hearing officer's determination that employee was justifiably dismissed
from employment; Administrative Procedure Act's exemption for Welfare Division rule
making and adjudication was of no significance to the case because employee was not
challenging any rule making or adjudication undertaken by the Division.
Reversed and remanded.
O'Brien & Avila, Las Vegas, for Appellant.
Richard Bryan, Attorney General, Carson City; Terrance P. Marren, Deputy Attorney
General, Las Vegas, for Respondents.
Officers and Public Employees.
District court had jurisdiction over former employee's petition for judicial review of Personnel Advisory
Commission hearing officer's determination that employee was justifiably dismissed from employment with
the Welfare Division of the Department of Human Services; Administrative Procedure Act's exemption for
Welfare Division rule making and adjudication was of no significance to the case because employee was
not challenging any rule making or adjudication undertaken by the Division. NRS 233B.010 et seq.,
233B.020, 233B.039, subd. 1(h), 233B.130, 284.155, subd. 1, 284.390, subds. 1, 7, 9.
OPINION
Per Curiam:
Appellant contends she was wrongfully discharged from her employment with the Welfare
Division of the Department of Human Services (Welfare). At the appellant's request, a
hearing officer from the Nevada State Personnel Advisory Commission (PAC) reviewed
the circumstances surrounding her dismissal. The PAC hearing officer determined that
appellant was justifiably terminated. Appellant disputed the hearing officer's decision and
petitioned PAC for review and rehearing before the entire commission. Appellant's petition
for review and rehearing was denied.
Appellant then filed a petition in district court for judicial review of the hearing officer's
decision as provided by NRS 233B.130. Welfare moved to dismiss appellant's petition on the
ground that Welfare was exempt from judicial review under NRS 233B.039(1)(h). The
district court determined that it was deprived of jurisdiction by virtue of NRS
233B.039{1){h) and dismissed appellant's petition.
98 Nev. 562, 564 (1982) Navarro v. State ex rel. Dep't Human Res.
deprived of jurisdiction by virtue of NRS 233B.039(1)(h) and dismissed appellant's petition.
Appellant contends that district court misconstrued NRS 233B.039(1)(h) and erred when it
dismissed her petition. We agree.
Chapter 233B of the Nevada Revised Statutes, the Administrative Procedure Act (APA),
was adopted to establish minimum procedural requirements for the rule-making and
adjudication procedure of all non-exempt agencies of the executive department of the state
government and to provide for judicial review of both functions. NRS 233B.020. Welfare
rule-making and adjudication have been specifically exempted from the requirements of the
APA. NRS 233B.039(1)(h). However, that exemption is of no significance here because
appellant has not challenged any rule-making or adjudication undertaken by Welfare.
The appellant's petition sought judicial review of the PAC hearing officer's determination
that appellant was justifiably dismissed from employment. Welfare was merely a party to that
proceeding. We find nothing in the APA which suggests that non-exempt adjudication
becomes exempt from the requirements of the APA when an exempt agency is a party to the
adjudication proceedings.
Except in certain situations not here relevant, a terminated State employee is entitled to a
hearing before a PAC hearing officer. NRS 284.390(1), Rules for Personnel Administration
(RPA) adopted pursuant to NRS 284.155(1), XV.B(1)(b). If dissatisfied with the decision
of the hearing officer, the employee may request that PAC review the hearing officer's
decision. NRS 284.390(7), RPA XV.B(1)(i). The commission may also grant or deny a
hearing de novo. NRS 284.390(9), RPA XV.B(1)(j). If the PAC denies a new hearing, the
decision of the PAC hearing officer constitutes final agency action subject to judicial review
in accordance with the provisions of NRS 233B.130 to NRS 233B.150, inclusive. RPA
XV.B(1)(m).
NRS 233B.130 provides that any party aggrieved by a final agency decision may petition
the district court for judicial review of that decision.
In reviewing the hearing officer's decision, it is the function of this court, as well as
the district court, to review the evidence presented at the hearing to determine if the
decision was supported by the evidence, and to ascertain whether the hearing officer
acted arbitrarily, capriciously, or contrary to the law. [Citations omitted.]
Turk v. Nevada State Prison, 94 Nev. 101, 103, 575 P.2d 599 (1978).
98 Nev. 562, 565 (1982) Navarro v. State ex rel. Dep't Human Res.
Appellant has apparently complied with the procedure necessary to secure judicial review.
Accordingly, we reverse the lower court's order dismissing her petition and remand the cause
for further proceedings consistent with this opinion.
____________
98 Nev. 565, 565 (1982) Sheriff v. Wilson
SHERIFF, CLARK COUNTY, NEVADA, Appellant,
v. WILLIE WILSON, Respondent.
No. 13993
December 28, 1982 655 P.2d 520
Appeal from order granting pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; Thomas J. O'Donnell, Judge.
Arrestee, who was charged by information with one count of grand larceny, filed petition
for writ of habeas corpus based on lack of probable cause. The district court granted the
petition, and appeal was taken. The Supreme Court held that state produced sufficient
evidence at preliminary hearing to establish probable cause to believe that arrestee's alleged
asportations of merchandise from department store constituted continuing transaction,
sufficient to support charge of grand larceny.
Reversed.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney,
Clark County, for Appellant.
H. Leon Simon, Las Vegas, for Respondent.
Criminal Law.
State produced sufficient evidence at preliminary hearing to establish probable cause to believe that
arrestee's alleged asportations of merchandise from department store constituted continuing transaction,
sufficient to support charge of grand larceny.
OPINION
Per Curiam:
Respondent was charged by information with one count of grand larceny. He filed a
petition for a writ of habeas corpus based on lack of probable cause. The district court granted
the petition and this appeal followed. We reverse.
Testimony at the preliminary hearing tended to establish that respondent took certain
merchandise from a department store in the Las Vegas area and placed the items in an
automobile parked nearby.
98 Nev. 565, 566 (1982) Sheriff v. Wilson
respondent took certain merchandise from a department store in the Las Vegas area and
placed the items in an automobile parked nearby. Respondent reentered the store, took
additional merchandise, and again left the premises. Respondent was apprehended shortly
thereafter.
The underlying question presented to the district court in the petition for writ of habeas
corpus was whether these distinct asportations constituted a continuing transaction. If they
did, the total value of the merchandise which had been taken in the successive thefts may be
considered together for purposes of charging respondent with grand larceny. See State v.
Mandich, 24 Nev. 336, 54 P. 516 (1898). Otherwise, the state had only established two petty
thefts.
The order granting the petition for writ of habeas corpus fails to explain the rationale of
the district court. The basis of the court's decision, however, appears in the transcript of the
hearing on respondent's petition. The relevant portion of the district court's comments are as
follows:
This matter is on for decision on a writ of habeas corpus, together with other motions.
The court feels the argument presented by the state that has to do with continuing
offenses, such as embezzlement or what have you is fallacious in that if in this event
Mr. Wilson had successfully stolen items, say, of $1,000 each, there is no doubt in my
mind that the state would have hit him with two counts of grand larceny and they can't
have it both ways, and, therefore, since they need a combination of two separate
offenses, which they would consider as separate offenses, if he had been accused of
purloining items in excess of $100 on each successive trip into the store, they would
have hit him with two counts of grand larceny if not separate cases, but two counts. I
have no doubt of this, and they can't swing the axe both ways. The writ is granted.
Whether the state would have charged respondent differently under other circumstances is
speculative and irrelevant. The crucial issue which confronted the district court, and which
the district court failed to address, was the adequacy of the evidence presented at the
preliminary hearing. An examination of the transcript reveals that the state produced
sufficient evidence in the justice's court to establish probable cause to believe the asportations
constituted a continuing transaction, and therefore to support the charge of grand larceny.
Under the circumstances presented here, we conclude that the district court committed
substantial error in granting the petition. Cf. Sheriff v. Provenza, 97 Nev. 346
98 Nev. 565, 567 (1982) Sheriff v. Wilson
the district court committed substantial error in granting the petition. Cf. Sheriff v. Provenza,
97 Nev. 346, 630 P.2d 265 (1981). Accordingly, the order issuing the writ of habeas corpus is
reversed and the information is reinstated.
____________
98 Nev. 567, 567 (1982) Goldston v. AMI Investments, Inc.
CLAY B. GOLDSTON and MARGERY F. GOLDSTON, Appellants, v. AMI
INVESTMENTS, INC., Respondent.
No. 12922
December 28, 1982 655 P.2d 521
Appeal from judgment, Eighth Judicial District Court, Clark County; Stephen L. Huffaker,
Judge.
Vendor filed suit seeking declaratory relief with respect to contract for sale of property and
purchasers filed suit seeking specific performance of contract or, in the alternative, damages.
After consolidation of suits, the district court held that, once date set for closure had passed,
either party could cancel contract if no tender of performance had been made and that
purchasers were not entitled to specific performance, and appeal was taken. The Supreme
Court, held that, vendor's cancellation of contract constituted repudiation of contract and
tender of performance by purchasers as prerequisite to seeking specific performance was
unnecessary.
Reversed and remanded.
Monte J. Morris, Las Vegas, for Appellants.
Beckley, Singleton, DeLanoy & Jemison, and Mark C. Scott, Jr., Las Vegas, for
Respondent.
1. Vendor and Purchaser.
Where neither offer and acceptance agreement nor escrow instructions set forth circumstances under
which parties had right to cancel contract for sale of property, right to cancel is dependent upon principles
of law rather than agreement of parties.
2. Vendor and Purchaser.
Vendor is justified in cancelling contract if purchaser has failed to perform material part of contract
which is condition concurrent or precedent to vendor's obligations to perform.
3. Vendor and Purchaser.
Failure to tender timely performance can constitute material breach of contract for sale of real estate.
98 Nev. 567, 568 (1982) Goldston v. AMI Investments, Inc.
4. Vendor and Purchaser.
If neither party tenders performance by date set for closure under contract for sale of property that
provides time is of essence, duties of both parties are discharged by passage of that date.
5. Vendor and Purchaser.
Where party is in default of obligations which must be performed prior to performance by other party
becoming due under contract for sale of real estate, first party is not entitled to claim default by second.
6. Specific Performance.
Vendor's cancellation of contract for sale of real estate constituted repudiation and tender of performance
by purchasers as a prerequisite to seeking specific performance was unnecessary so long as they were
ready, willing and able to perform where both offer and acceptance agreement and escrow instructions
expressly conditioned purchasers' obligations under contract upon vendor causing removal of fence from
property, reason for purchasers' delay in depositing funds beyond date set for closure was due to failure of
vendor to cause removal of fence, and vendor had not contended that there was any excuse for its failure to
satisfy conditions precedent.
OPINION
Per Curiam:
This case arises from a contract of sale entered into by the Goldstons, appellants, and AMI
Investments, Inc., respondent, regarding two lots in Boulder City, Nevada. A broker for AMI
procured an offer for the two lots from the Goldstons who accompanied their offer with a
$500 deposit as earnest money. AMI accepted the offer and both parties signed escrow
instructions. Close of escrow was set for November 24, 1978, and time was of the essence.
The offer and acceptance agreement and the escrow instructions stated that close of escrow
was contingent upon AMI causing the removal of a fence encroaching upon the subject
properties. On November 24, 1978, the date set for close of escrow, no money other than the
$500 in earnest money had been deposited, although a loan had been obtained and the escrow
officer had been informed by the lender that the funds were available for deposit. The fence
had also not been removed. Nevertheless both parties continued to try to close the transaction.
By the actions of both parties, the escrow was extended.
On January 30, 1979, AMI notified the escrow holder to cancel the escrow, giving as its
reason for cancellation the failure of the Goldstons to deposit the purchase money in escrow
by the date set for closure.
1
The Goldstons objected to the cancellation. Thereafter, AMI
filed a suit seeking declaratory relief, and the Goldstons filed suit seeking specific
performance of the contract or, in the alternative, damages.
____________________

1
Evidence admitted at trial revealed that on January 22, 1979, AMI, in its continuing efforts to get the fence
removed, hired surveyors to determine how far back the fence had to be moved. This survey revealed that
98 Nev. 567, 569 (1982) Goldston v. AMI Investments, Inc.
and the Goldstons filed suit seeking specific performance of the contract or, in the alternative,
damages. These suits were consolidated and a bench trial held. The district court held that
once the date set for closure had passed, either party could cancel the contract if no tender of
performance had been made. The district court also held that because the Goldstons had not
deposited the purchase funds in the escrow, they were not entitled to specific performance of
the contract. The Goldstons have appealed.
[Headnote 1]
Neither the offer and acceptance agreement nor the escrow instructions set forth
circumstances under which the parties had the right to cancel. Consequently, the right to
cancel is dependent upon principles of law rather than the agreement of the parties. See Allan
v. Martin, 574 P.2d 457 (Ariz. 1978).
[Headnotes 2-6]
A seller of land pursuant to a contract of sale is justified in cancelling the contract if the
purchaser has failed to perform a material part of the contract which is a condition concurrent
or precedent to the seller's obligations to perform. Integrated, Inc. v. Alec Furgusson
Electrical Contractor, 58 Cal. Rptr. 503 (Cal.App. 1967); 5 Corbin, Corbin on Contracts
1104 (1951); Restatement (Second) of Contracts 237 (1979). Failure to tender timely
performance can constitute a material breach of contract. Allan v. Martin, supra; Coronado
Co., Inc. v. Jacome's Dept. Store, 629 P.2d 553 (Ariz.App. 1981). Additionally, if neither
party tenders performance by the date set for closure under a contract that provides time is of
the essence, the duties of both parties are discharged by passage of that date. Associated
Developers Co. v. Infanger, 376 P.2d 496 (Idaho 1962). However, where a party is in default
of obligations which must be performed prior to the performance by the other party becoming
due, the first party is not entitled to claim a default by the second. Rubin v. Fuchs, 459 P.2d
925 (Cal. 1969); Shoreham Developers, Inc. v. Randolph Hills, Inc., 235 A.2d 735 (Md.App.
1967). Professor Corbin has stated:
Where time was of the essence'--that is, where performance by the plaintiff within a
specified time was a condition precedent to the defendant's duty to perform his part--if
the plaintiff has been caused to delay his performance beyond the specified time by the
request or agreement or other conduct of the defendant, the plaintiff can enforce the
contract in spite of his delay.
____________________
the sidewalk and eaves of the neighboring house encroached upon the subject properties. Testimony revealed
that perhaps the real reason for cancellation was AMI's view that the encroachment made title to the properties
unmarketable.
98 Nev. 567, 570 (1982) Goldston v. AMI Investments, Inc.
the contract in spite of his delay. This assumes that the non-performance of the
condition was not caused by plaintiff's own inability to perform, and that but for the
defendant's request, agreement, or other conduct, the plaintiff would have performed
the condition. If the defendant later repudiates or otherwise breaks the contract, he
cannot use the plaintiff's failure to perform on time as a defense. 2 Corbin, Corbin on
Contracts 310, at 112 (1950) (emphasis added).
In the present case, both the offer and acceptance agreement and the escrow instructions
expressly conditioned the Goldstons' obligations under the contract upon AMI causing the
removal of the fence. It is undisputed that the reason for the Goldstons' delay in depositing
funds beyond the date set for closure was due to the failure of AMI to cause removal of the
fence. AMI has not contended that there was any excuse for its failure to satisfy the condition
precedent. In such circumstances, AMI's cancellation constituted a repudiation of the
contract. A tender of performance by the Goldstons, as a prerequisite to seeking specific
performance, was unnecessary so long as they were ready, willing and able to perform should
the court order specific performance. See Cohen v. Rasner, 97 Nev. 118, 624 P.2d 1006
(1981); Kossler v. Palm Spring Developments, Ltd., 161 Cal. Rptr. 423 (Cal.App. 1980);
Poznik v. Urton & Co., 496 P.2d 1073 (Colo.App. 1972).
The district court committed error by concluding that the Goldstons' failure to deposit
funds into escrow precluded specific performance in this case. Therefore, we reverse and
remand this matter for further proceedings consistent with this opinion.
____________
98 Nev. 570, 570 (1982) Krump Constr. Co. v. First Nat'l Bk.
KRUMP CONSTRUCTION COMPANY, INC., Appellant, v. FIRST NATIONAL BANK
OF NEVADA, a National Banking Association, Respondent.
No. 13764
December 28, 1982 655 P.2d 524
Appeal from an order granting summary judgment; Second Judicial District Court,
Washoe County; William N. Forman, Judge.
Action was instituted against a depository bank for cashing a joint payee check on which
issuer had stopped the payment.
98 Nev. 570, 571 (1982) Krump Constr. Co. v. First Nat'l Bk.
The district court entered order bringing bank summary judgment, and issuer appealed. The
Supreme Court held that a depository bank which became the possessor of a joint payee
check endorsed by one payee only could not supply the missing endorsement of the other
payee in order to collect the check where the other payee was not a customer and did not
initate interaction with the bank by seeking its services in any manner.
Reversed.
[Rehearing denied April 20, 1983]
Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane, Reno, for Appellant.
John C. Smith, Reno, for Respondent.
1. Banks and Banking.
Statute authorizing a depository bank which has taken an item for collection to supply any endorsement
of the customer which is necessary to title unless the item contains the words payee's endorsement
required or the like does not authorize a bank to supply the missing endorsement by simply agreeing to
collect the check on behalf of a noncustomer payee whose endorsement is missing. NRS 104.1101 et
seq., 104.4104, subd. 1(e), 104.4205, subd. 1.
2. Banks and Banking.
A depository bank may not take a check issued to joint payees for collection unless all payees have
endorsed it or are customers of bank. NRS 104.1101 et seq., 104.4104, subd. 1(e), 104.4205, subd. 1.
3. Banks and Banking.
Agency authority of a depository bank to supply missing endorsements on a check accrues only when a
party becomes a customer of the bank. NRS 104.1101 et seq., 104.4104, subd. 1(e), 104.4205, subd. 1.
4. Banks and Banking.
A depository bank which became the possessor of a joint payee check endorsed by one payee only could
not supply the missing endorsement of the other payee in order to collect the check where the other payee
was not a customer and did not initiate interaction with the bank by seeking its services in any manner.
NRS 104.1101 et seq., 104.4104, subd. 1(e), 104.4205, subd. 1.
OPINION
Per Curiam
1
:
In the case below, the parties stipulated to the following facts: On July 26, 1979, appellant
Krump Construction Company (Krump) issued a check payable jointly to Sparks Overhead
Door Company (Sparks) and Clopay Overhead Door Company {Clopay).
____________________

1
Justice John C. Mowbray voluntarily disqualified himself from consideration of the case.
98 Nev. 570, 572 (1982) Krump Constr. Co. v. First Nat'l Bk.
Company (Clopay). The check was delivered to an agent of Sparks. Four days later,
respondent First National bank (FNB) received the Krump check from Sparks. The check
bore the endorsement of Sparks only. In exchange for the check, FNB issued to Sparks a
cashier's check in the same amount payable to Clopay. Clopay did not have an account with
FNB. The same day, FNB processed the check for collection and placed its line
endorsement on it stating that prior endorsements were guaranteed. On August 8, 1979, FNB
received the Krump check back from the drawee bank stamped endorsement missing. Two
days later, on August 10, FNB typed on the back of the Krump check cashier's check issued
for credit to Clopay Overhead Door Divisionendorsement guaranteed, with the signature
of the branch manager underneath. FNB again processed the check. On August 14, Krump
telephoned the drawee bank in order to stop payment on the check, and, the following day,
signed an order to that effect. On September 27, the drawee bank again returned the check to
FNB with the notation, payment stopped and endorsement missing. Throughout the
sequence of events FNB had no contact with Clopay. Krump has personal defenses against
both Sparks and Clopay.
On cross-motions for summary judgment the trial court found for respondent FNB. We
now reverse.
The primary issue before this court is whether a collecting bank that becomes a possessor
of a joint-payee check endorsed by one payee only may supply the missing endorsement of a
non-customer payee in order to collect the check. For the reasons set forth below, we hold
that it may not.
Banking transactions are governed by NRS Chapter 104. NRS 104.4205(1) states:
A depositary bank which has taken an item for collection may supply any endorsement
of the customer which is necessary to title unless the item contains the words payee's
endorsement required or the like. In the absence of such a requirement a statement
placed on the item by the depositary bank to the effect that the item was deposited by a
customer or credited to his account is effective as the customer's endorsement.
NRS 104.4104(1)(e) defines customer as any person having an account with a bank or for
whom a bank has agreed to collect items and includes a bank carrying an account with
another bank.
[Headnote 1]
FNB argues that the above statutes allow it to supply the missing endorsement by simply
agreeing to collect the check on behalf of the payee whose endorsement is missing.
98 Nev. 570, 573 (1982) Krump Constr. Co. v. First Nat'l Bk.
behalf of the payee whose endorsement is missing. FNB cites as authority Marine Midland
Bank, N.A. v. Price, Miller, Evans & Flowers, 446 N.Y.S.2d 797, 32 U.C.C.Rep. 1162
(N.Y.App. Div. 1981). In a 3-2 decision, the court there allowed the bank to supply the
missing endorsement of a party for whom the bank had agreed to collect items even though
it had no account with the bank. The court found the party to be a customer within the
intendment of the applicable code. In Marine Midland Bank, the stipulated facts reveal that
although the customer did not have an account with the bank, cashing checks in the manner it
did was part of a course of conduct between the parties and that the party initiated the
business association and thereby became a customer of the bank. In the instant case,
Clopay, the party whose missing endorsement the bank supplied, did not initiate interaction
with the bank by seeking its services in any manner.
NRS 104.3116 requires that [a]n instrument payable to the order of two or more persons:
. . . (2) If not in the alternative is payable to all of them and may be negotiated, discharged or
enforced only by all of them.
[Headnotes 2-4]
We hold, therefore, that a bank may not take a check issued to joint payees for collection
unless all payees have endorsed it or are customers of the collecting bank. Agency authority
to supply missing endorsements accrues only when a party becomes a customer of the bank.
We therefore conclude that the decision of the district court granting respondent summary
judgment must be reversed.
____________
98 Nev. 573, 573 (1982) Givens v. State
AUGUSTA CHARLES GIVENS, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 11375
December 29, 1982 655 P.2d 533
Appeal from judgment of conviction of first degree murder, Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
98 Nev. 573, 574 (1982) Givens v. State
The Supreme Court held that: (1) evidence of victim's advanced state of pregnancy was
relevant to the issues of intent to kill and premeditation, because it directly bore on the
question of whether the repeated blows to various parts of victim's body could have been
calculated to cause death; furthermore, trial court's determination that the probative value of
the evidence outweighed its prejudicial effect was not an abuse of discretion, and (2) trial
court did not err in refusing to give defendant's requested instruction that would have
informed jury that a finding of premeditation requires a period of time, however short, during
which accused must premeditate a killing, since, in another instruction, jury was properly and
adequately instructed on the length of time necessary for premeditation.
Affirmed.
Morgan D. Harris, Public Defender, and Thomas L. Leen and Marcus Cooper, Deputy
Public Defenders, Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
Susan Johnson, Deputy District Attorney, Clark County, for Respondent.
1. Homicide.
In prosecution for murder, evidence of victim's advanced state of pregnancy was relevant to the issues of
intent to kill and premeditation, because it directly bore on the question of whether the repeated blows to
various parts of victim's body could have been calculated to cause death; furthermore, trial court's
determination that the probative value of the evidence outweighed its prejudicial effect was not an abuse of
discretion.
2. Criminal Law.
In prosecution for murder, trial court did not err in refusing defendant's proposed instruction which would
have told jury that evidence of victim's pregnancy was only relevant to the issue of whether such a
condition would be likely to physically provoke another person, since the evidence was also relevant to the
issue of whether the repeated blows to various parts of victim's body could have been calculated to cause
death.
3. Criminal Law.
In prosecution for murder, trial court did not err in refusing to give defendant's requested instruction that
would have informed jury that a finding of premeditation requires a period of time, however short, during
which accused must premeditate a killing, since, in another instruction, jury was properly and adequately
instructed on the length of time necessary for premeditation.
98 Nev. 573, 575 (1982) Givens v. State
4. Criminal Law.
It is not error to refuse an instruction when the law encompassed therein is adequately covered by another
instruction given to jury.
OPINION
Per Curiam:
Appellant was convicted of first degree murder for the beating death of his wife, Vickie
Lynn Frierson, and sentenced to life imprisonment with the possibility of parole. On appeal,
he makes numerous assignments of error, only two of which we deem worthy of discussion.
Finding no error, we affirm the judgment.
On the afternoon of February 26, 1978, appellant summoned an ambulance to the
apartment he shared with the victim and her baby daughter. The paramedics found Ms.
Frierson lying on the bed, with apparent head trauma and signs that she had been brutally
beaten. The walls and doorjamb of the apartment were stained in several places with blood.
Appellant told the paramedics Frierson had been hurt last night. She lapsed into a coma on
the way to the hospital, and died shortly thereafter of increased intracranial pressure due to
internal hemorrhaging, caused by multiple blunt-force trauma to the head.
Ms. Frierson was six or seven months pregnant at the time of her death. She had been
severely beaten about the arms, shoulders, and face. Several areas of her back were bruised,
and she suffered internal bleeding and a broken rib in the area of her kidneys. She also had
bruises on her arms of a peculiar V-shape, matching the shape of an aluminum crutch, found
broken and stained with blood of the same type as hers in a trash dumpster near the
apartment.
1

The testimony of prosecution witnesses established that the victim and appellant went to a
party at a friend's house on the evening of the murder. Appellant grew angry with the victim
and threatened her, saying he was going to get her. He abruptly left the party, taking Ms.
Frierson with him. They returned home, and the beating began. A neighbor, whose apartment
shared a common wall with appellant's, testified that she was awakened several times during
the night by sounds of appellant and the victim arguing, and by Ms. Frierson's crying and
moaning. The neighbor also heard Ms. Frierson scream several times during the night. "O
my God, Charles, my stomach."
____________________

1
The crutch was of the type commonly issued by a nearby hospital. Ms. Frierson had been an outpatient at
the hospital some time prior to the events leading up to the killing, and had been issued a pair of the crutches.
98 Nev. 573, 576 (1982) Givens v. State
scream several times during the night. O my God, Charles, my stomach. The party guests
testified that appellant returned alone to the party approximately an hour and a half after he
left with the victim, and boasted that he had carried her home and kicked her ass, and that
they would read all about it in the newspapers. From the testimony of the neighbor it is clear
that appellant's return to the party occurred in between two of several episodes of beating that
night.
Appellant, testifying on his own behalf, said that at the party he drank three drinks of
bourbon and tequila; that when he and Ms. Frierson returned home they argued and he
slapped her so hard that she hit her head on the wall; that she responded by hitting him on the
nose; and that he slapped her again, she fell down, and everything went black. He testified
that he did recall helping Ms. Frierson up off the floor, but while carrying her into the
bedroom he lost his grip and Ms. Frierson, who was heavyset, flowed out of his arms and
struck her head on a desk. He denied returning to the party and telling the guests that he had
beaten his wife. He also denied striking her with the crutch. He stated that he put Ms.
Frierson into bed, went to sleep, and did not call the paramedics until the early afternoon of
the next day.
Appellant first contends that it was error for the district court to admit evidence of the
victim's pregnancy, and to refuse to give a proposed limiting instruction with respect to that
evidence.
Prior to trial appellant made a motion in limine, seeking exclusion of any evidence of Ms.
Frierson's pregnancy on the ground that it was either irrelevant or, if relevant, its prejudicial
effect outweighed its probative value. The court denied the motion and admitted the evidence.
Appellant contends that this was error. He argues that since the victim died of injuries to the
head, as opposed to the abdominal area, evidence of her pregnancy was irrelevant: . . . since
the victim's pregnancy had nothing to do with the cause of death, evidence of such condition
should have been excluded. . . . Appellant's Opening Brief at 10. Appellant argues in the
alternative that if the evidence was relevant, its prejudicial effect on the jury so outweighed
its probative value that the court erred in not ordering its exclusion.
Appellant relies on Jacobs v. State, 91 Nev. 155, 532 P.2d 1034 (1975), for the proposition
that Ms. Frierson's pregnancy was irrelevant to the issue of guilt. In Jacobs, we noted in
passing that the pregnancy of a woman killed by a shotgun blast during the holdup of a
grocery store was irrelevant, and should not have been placed before the jury. Jacobs,
however, is easily distinguishable from the instant case.
98 Nev. 573, 577 (1982) Givens v. State
distinguishable from the instant case. A firearm usually causes death with sufficient force and
trauma to the body that pregnancy might not be relevant to the cause of death.
2
Likewise, the
magnitude of force is so great that a special condition causing increased vulnerability to
physical force, such as pregnancy, is generally irrelevant to the question of whether the force
used was intended to cause death.
[Headnote 1]
This case, however, involves that use of force of a lesser magnitude than a firearm. As
appellant was charged with open murder, see NRS 200.030, respondent was obligated to
prove intent to kill, premeditation, and deliberation in order to obtain a verdict of first degree
murder. Intent to kill, as well as premeditation, may be ascertained or deduced from the facts
and circumstances of the killing, such as use of a weapon calculated to produce death, the
manner of use, and the attendant circumstances. Dearman v. State, 93 Nev. 364, 367, 566
P.2d 407, 409 (1977); Moser v. State, 91 Nev. 809, 544 P.2d 424 (1975). Whether or not the
victim's pregnancy was directly related to the specific medical cause of death, it was clearly
relevant to the issues of intent to kill and premeditation; it directly bore on the question of
whether the physical force used (repeated blows to various parts of the victim's body) could
have been calculated to cause death. We consider that evidence of the deceased's advanced
state of pregnancy was relevant in the trial of the first degree or open murder case before
us, in which the victim was severely beaten.
Although the evidence was relevant, the trial court could nevertheless have ordered it
excluded, if the court determined that its prejudicial effect on the jury outweighed its
probative value. NRS 48.035. Appellant contends that the court erred in not making such a
determination. Our review of the trial court's decision is limited to the question of whether the
trial court abused its discretion; absent a clear showing of an abuse of discretion, its ruling
will not be disturbed on appeal. Dearman v. State, supra. We perceive no such abuse of
discretion in the instant case. The trial court did not err in admitting the evidence.
[Headnote 2]
In the same vein, it was not error to refuse appellant's proposed instruction relating to the
pregnancy evidence. The instruction would have told the jury that evidence of Ms.
____________________

2
We can conceive of circumstances under which the fact of pregnancy could indeed be relevant to the cause
of death by gunshot wound. Such relevancy determinations would have to be made on a case-by-case basis, and
we express no opinion thereon.
98 Nev. 573, 578 (1982) Givens v. State
instruction would have told the jury that evidence of Ms. Frierson's pregnancy was only
relevant to the issue of whether such a condition would be likely to physically provoke
another person. It would have expressly told the jury that such evidence was not admissible as
to the issues of malice, premeditation, and deliberation. This instruction inaccurately stated
the law, and it was not error to refuse it. Cutler v. State, 93 Nev. 329, 566 P.2d 809 (1977).
Appellant next contends that the trial court erred by refusing to give a proposed instruction
that would have informed the jury that a finding of premeditation requires a period of time,
however short, during which the accused must premeditate the killing. Absent such an
instruction, argues appellant, the jury could have been swayed by the brutality of the crime
and returned its verdict without consideration of whether the beating was an impulsive
unpremeditated act. He refers us to People v. Anderson, 447 P.2d 942 (Cal. 1968), which
holds that the brutality of a killing, standing alone, may not support a finding of
premeditation and deliberation.
[Headnotes 3, 4]
This contention must fail. In another instruction, the jury was properly and adequately
instructed on the length of time necessary for premeditation, see Scott v. State, 92 Nev. 552,
554 P.2d 735 (1976). It is not error to refuse an instruction when the law encompassed therein
is adequately covered by another instruction given to the jury. Beets v. State, 94 Nev. 89, 575
P.2d 591 (1978); Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975). Furthermore, as
appellant's instruction made no reference to the brutality of the killing, his argument herein is
without a factual basis. The court did not err in refusing to give the proposed instruction.
We have considered appellant's remaining assignments of error and find them without
merit.
The judgment of conviction is affirmed.
Gunderson, C. J., Manoukian, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to participate in this case,
pursuant to Nev. Const., art. 6, 19; SCR 10.
____________
98 Nev. 579, 579 (1982) State, Dep't of Commerce v. Soeller
STATE OF NEVADA DEPARTMENT OF COMMERCE, REAL ESTATE DIVISION,
Appellant, v. CLEMENS F. SOELLER, Respondent.
No. 12418
MAVIS L. LUND; LOWELL THOMAS; SYBIL W. THOMAS; Tnt INVESTMENTS, INC.,
a Nevada Corporation, dba SIERRA REALTY, Appellants, v. NEVADA REAL ESTATE
DIVISION, DEPARTMENT OF COMMERCE, STATE OF NEVADA, Respondents.
No. 12547
December 29, 1982 656 P.2d 224
Consolidated appeals from judgment, Second Judicial District Court, Washoe County; Roy
L. Torvinen, Judge, and Peter I. Breen, Judge.
On appeals from decisions of State Real Estate Advisory Commission ordering revocation
or suspension of real estate licenses, the district court vacated suspension of one license but
sustained revocation and suspension of other licenses, and cases were consolidated for
purposes of appeal. The Supreme Court, Mowbray, J., held that: (1) evidence was sufficient
to support determination that one of licensees had failed to protect his principal; (2) evidence
supported determination that other licensee, who had acted on her own behalf as prospective
purchaser, no longer had right under original purchase agreement at time she represented to
prospective purchaser and vendors that she intended to consummate agreement and pass title
to prospective purchaser as nominee; and (3) evidence regarding supervising broker's failure
to act to protect vendors and failure properly to supervise other licensees supported
Commission's suspension of brokers' licenses.
Case No. 12418 reversed; Case No. 12547 affirmed.
Gunderson, C. J., and Springer, J., dissented.
Richard H. Bryan, Attorney General, Franklin C. Hoover and Steven F. Stucker, Deputy
Attorneys General, Carson City, for State of Nevada, Department of Commerce, Real Estate
Division.
Johnson, Belaustegui & Robison, Reno, for Clemens F. Soeller.
Raggio, Wooster, Clontz & Lindell, Reno, for Mavis Lund.
98 Nev. 579, 580 (1982) State, Dep't of Commerce v. Soeller
David K. Baba, Reno, for Lowell Thomas and Sybil Thomas.
1. Brokers.
On appeal from decision of State Real Estate Advisory Commission, Supreme Court is limited to
determining whether decision of Commission constitutes abuse of discretion. NRS 645.760, subd. 3.
2. Brokers.
Discipline of realtors by State Real Estate Advisory Commission is not abuse of discretion if it is
supported by substantial evidence in the record. NRS 645.760, subd. 3.
3. Brokers.
On appeal from decision of State Real Estate Advisory Commission, where conclusion of Commission
itself gave notice of facts on which Commission relied, Supreme Court could imply necessary factual
findings, so long as record provided substantial evidence to support Commission's conclusion.
4. Brokers.
On appeal from decision of State Real Estate Advisory Commission, Supreme Court may not substitute
its judgment for that of Commission by weighing evidence or passing on credibility of witnesses.
5. Brokers.
In disciplinary action against real estate broker, testimony of broker and vendors was sufficient to support
determination by State Real Estate Advisory Commission that degree of disclosure that occurred was
insufficient to discharge broker's duty to vendors. NRS 645.630, subds. 9, 18.
6. Brokers.
Real estate broker's failure to ensure that purchase agreement contained date for close of escrow and that
escrow was cancelled in writing after prospective purchaser withdrew offer demonstrated negligence or
incompetence within meaning of statute governing grounds for disciplinary action against real estate
licensees. NRS 645.630, subd. 18.
7. Brokers.
Real estate broker's failure to ensure that purchase agreement contained escrow closing date
demonstrated violation of Real Estate Division rules and regulations requiring licensee to include all of
terms and conditions of transaction in offer or counteroffer to purchase.
8. Brokers.
Prospective purchaser's status as real estate licensee did not remove from qualifying real estate broker his
responsibility to comply with Real Estate Division regulation requiring broker to include all of terms and
conditions of transaction in offer or counteroffer to purchase.
9. Brokers.
Revocation of real estate sales person's license for misconduct was not void merely because she was
acting as principal in transaction rather than as licensee. NRS 645.630.
10. Brokers.
Evidence in disciplinary proceeding brought against real estate licensee who had acted on her own behalf
as a prospective purchaser in real estate transaction supported determination by State Real
Estate Advisory Commission that she no longer had any rights under her original
purchase agreement at time she represented to second prospective purchaser and to
vendors that she intended to consummate agreement and pass title to second
prospective purchaser as nominee.
98 Nev. 579, 581 (1982) State, Dep't of Commerce v. Soeller
in real estate transaction supported determination by State Real Estate Advisory Commission that she no
longer had any rights under her original purchase agreement at time she represented to second prospective
purchaser and to vendors that she intended to consummate agreement and pass title to second prospective
purchaser as nominee. NRS 645.630, subds. 1, 3, 10, 19.
11. Brokers.
So long as violations found by Real Estate Advisory Commission are based on substantial evidence and
are not trivial, Supreme Court may not modify assigned penalty imposed on real estate licensee.
12. Brokers.
Where violations of real estate broker regulations found by State Real Estate Advisory Commission were
not trivial and were based on substantial evidence, Supreme Court would not disturb Commission's
revocation of broker's license.
13. Brokers.
Evidence in disciplinary proceeding brought against realtors regarding failure to act to protect vendors
and failure properly to supervise real estate agents supported decision of State Real Estate Advisory
Commission to suspend realtors' licenses for 30 days. NRS 645.630, subds. 9, 18, 19.
OPINION
By the Court, Mowbray, J.:
The Nevada Real Estate Advisory Commission found realtors Clemens Soeller, Mavis
Lund, Sybil Thomas and Lowell Thomas in violation of NRS 645.630 and the rules and
regulations promulgated thereunder based on their conduct concerning a particular real estate
transaction. The Commission also found Soeller and Lund in violation of the Real Estate
Code of Ethics.
The Commission ordered the revocation of Lund's license and ordered thirty-day
suspensions of the licenses of Soeller and the Thomases.
Pursuant to NRS 645.760(2), Lund, Soeller and the Thomases appealed from the
Commission's orders to the district court. Judge Torvinen vacated the license suspension of
Soeller. Judge Breen sustained the revocation of Lund's license and the suspension of the
Thomases' licenses.
In Case No. 12418, the Real Estate Division appeals from the district court order granting
relief to Soeller. Lund and the Thomases appeal from the order sustaining the decision of the
Commission in Case No. 12547. The two cases are consolidated for purposes of this appeal.
The fundamental issue in each case is whether there is substantial evidence in the record to
support the Commission's decision. We hold that substantial evidence exists, and we
therefore reverse the district court's order in Case No.
98 Nev. 579, 582 (1982) State, Dep't of Commerce v. Soeller
therefore reverse the district court's order in Case No. 12418 and affirm the district court's
order in Case No. 12547.
THE FACTS
Clemens F. Soeller, qualifying broker of Crystal Shores Realty, listed for sale the Lake
Tahoe property of Mr. and Mrs James DeWitt Bennett, who reside in Southern California.
Mavis Lund, a salesperson associated with Tahoe Sierra Realty, made an offer on her own
behalf to purchase the property at the listed price of $63,500, contingent on her obtaining
financing. Lund prepared and signed a standard purchase agreement and earnest money
receipt that acknowledged receipt of an earnest money deposit of $1,000 by Tahoe Sierra
Realty. However, Lund never deposited that earnest money. Moreover, the purchase
agreement did not contain any date for the close of escrow. Soeller did not review the
document before it was sent to the Bennetts. The Bennetts accepted Lund's offer. Lund
opened an escrow without depositing any earnest money, and never formally closed it.
Lund was unable to obtain financing for the purchase, and communicated this information
to Soeller. Because Soeller was about to leave for a vacation, he told Lund to deal directly
with the Bennetts. Lund called Mrs. Bennett and withdrew her offer, and Mrs. Bennett
acceded to that withdrawal. No written cancellation of the Bennett-Lund escrow was ever
made. Soeller stated that he left the cancellation of the deal to Lund because she wrote the
deal out . . . it was her responsibility. . . .
Mrs. Bennett held a power of attorney for her husband, who was in the merchant marine.
She subsequently informed both Lund and Soeller that she wished to increase the listed price
to $67,500, and a change order for the Multiple Listing Service was prepared.
1
Soon
thereafter, one of Lund's colleagues approached Lund about a client, Carmen Sylvia Howarth,
who was interested in purchasing the Bennett property. Lund expressed willingness to sell the
property for $67,500, and Howarth offered that price. Lund contacted Soeller, and Soeller
presented the offer to the Bennetts.
____________________

1
Mrs. Bennett testified as follows:
MRS. BERKELEY (counsel for the Commission): Yes, go right ahead.
MRS. BENNETT: The day that she [Lund] called me and said she canceled, I called Mr. Soeller that
evening. In fact, I told her that I wasthat I had asked her to call Mr. Soeller, to tell him that, as of that
date, that I raised the price sixty-seven-five, since she didn't want it any more. So, then I though about it,
after I hung up. I
98 Nev. 579, 583 (1982) State, Dep't of Commerce v. Soeller
Soeller explained to Mrs. Bennett that Lund was going to buy her property at $63,500 and
double escrow it to another party at $67,500. He stated that it was legal, and when she
questioned him about the Lund cancellation, he said that Lund still had it, that it was still
okay. . . . Upon Mr. Bennett's return home from sea, Soeller informed him of the new offer,
but explained that the Bennetts would net the same amount they would have netted at the old
price due to a different commission split. Soeller's commission was to remain the same as it
was on the $63,500. Thus, Soeller would receive, $1,778 (40 percent of 7 percent of $63,500)
and Tahoe Sierra Realty would get $6,667 (60 percent of 7 percent of $63,500, plus $4,000).
Soeller testified that he told the Bennetts that Tahoe Sierra felt they were entitled to [the
commission], or they would take the buyer and go somewhere else, and that the commission
payment was part of the offer.
2
The Bennetts accepted the offer.
3
No fewer than three, and
perhaps more, sets of escrow instructions were prepared.
____________________
called Clem [Soeller] and told them that the price had been raised to sixty-seven-five, and that was the
reason for this.
MRS. BERKELEY: Did you mention to Mrs. Lund, when you spoke to herdid you mention, when
you spoke with Mrs. Lund on the day that she called you to tell you she was no longer interested in the
property, that you were raising the price?
MRS. BENNETT: Yes. I told her that I had gotten a notice from the insurance company that had the
house, telling me that they were raising our premiums towell, they valued it at seventy-six thousand
now, or, at that time, and that they were raising our premiums. So I felt that I would raise the price to
sixty-seven-five, because of that, which is still underpriced.
MRS. BERKELEY: Did Mr. Soeller put the property back on the market?
MRS. BENNETT: Yes, I believe he did. . . .

2
Apparently Soeller did not suggest to his clients that they should make a counteroffer with a commission
split more favorable to themselves.

3
MR. Bennett testified as follows:
MR. BABA (counsel for Lund and the Thomases): Isn't it true, sir, according to the statement on
November 2nd, of 1977, you were completely willing to approve the deal that was tendered to you?
MR. BENNETT: I was willing to approve it, because
MR. BABA: Because why?
MR. BENNETT: That is what I wanted you to say: Because in every conversation that we have had
over that lousy house, these people tell me, You don't have to sell. But they say it in a way, with an
innuendo, that says you don't have to sell. Well, I am not an idiot. I know that I don't have to sell my
house. But I can get in a lot of trouble if I refuse a legitimate offer. Now, I am presented with this double
escrow by Mavis Lund, which is driving me absolutely mad, down there in L.A. The Mavis Lund thing
was canceled, and then they come back to me again. Mrs. Bennett got a telephone call. They said,
98 Nev. 579, 584 (1982) State, Dep't of Commerce v. Soeller
No fewer than three, and perhaps more, sets of escrow instructions were prepared.
Eventually the double escrow from the Bennetts to Lund and from Lund to Howarth was
abandoned, and a single escrow was established between the Bennetts and Howarth. The
escrow instructions denoted Howarth as nominee for Mavis Lund. Howarth had no
previous knowledge that this relationship would exist. Howarth had thought that Lund was
the listing agent for the property; she did not hear of Soeller, the actual listing broker, until
contacted by the Division after the sale.
4
She, like the Bennetts, did not fully comprehend
why Lund was involved in the transaction. While Howarth suspected a double escrow, she
was mainly concerned with obtaining clear title to the property at the price she had offered.
____________________
Well, Mavis is still in on the deal.
How could she be in on the deal?
She withdrew.
Well, it's perfectly legal, perfectly legal. What the hell am I going to do, sitting down there, running
out to sea half the time? I can't stay on top of the deal myself. So I tell Soeller the same thing. He says,
No, it's perfectly legal.
Okay. Go through with it. Get it over with. Get it out of my hair. Anything further?
MR. BABA: But you went through with the deal?
MR. BENNETT: Well, certainly I went through with the deal. I said, Get it out of my hair.
* * *
MRS. BERKELEY (counsel for the Division): [W]hat is it
that made you think or made you go through with the deal? Just explain to us.
MR. BENNETT: I know that, if I get into a deal where an offer is made, which meets my demands
on listing, I can have my fanny sued off. Or, if I refuse to go through with the deal with a broker on a
legitimate deal, that the broker can come back to me and collect his commissions. Now, what do I want to
pay somebody a commission and still have my house on my hands?

4
Mrs. Howarth, who was a licensed California real estate saleswoman, testified as follows:
MRS. BERKELEY: Did Mr. Lockhart show you any pieces of property on October 2, 1977?
MRS. HOWARTH: He showed me three, two of which I didn't care for. They were out of the way.
Then he said that possibly there was another one where the deal might have fallen through, but he would
have to contact somebody in the Tahoe Sierra office. So he called Crystal Bay and asked for Mavis Lund.
And apparently she was out on her way over, so he said, if we waited, she had the keys with her. So she
came in, and he went and talked with her in another room.
* * *
MRS. BERKELEY: Okay. Can you please tell us the price you paid for that was?
98 Nev. 579, 585 (1982) State, Dep't of Commerce v. Soeller
Mr. Thomas, owner of Tahoe Sierra Realty and Lund's supervising broker, testified that he
had insisted on two separate transactions (Bennett-Lund and Lund-Howarth), but that the
escrow company informed him that since everyone was informed and no one was unhappy,
there was no need for two transactions.
The purchase was finally completed in a single transaction, with title passing directly from
the Bennetts to Howarth. Soeller received $1,778, and Tahoe Sierra received $2,667, as
commissions on the $63,500 sale. Lund ultimately received the $2,667 commission. The
additional $4,000 was apparently the commission on the second sale at $67,500. The
broker, Tahoe Sierra Realty, owned by the Thomases, took $1,417.50, which is 30 percent of
$4,000; the selling agent took 45 percent, or $2,126.25; and Lund received the remaining
$456.25 as her profit from the sale. Mr. Thomas testified that he paid commissions based
on two escrows, even though he knew there was only one, because Lund was acting as
nominator and it was fully disclosed to the sellers and the buyer that there would be two
escrows and a $6,667 commission. Lund received a total of $3,123.25 from the transaction.
THE SUSPENSION OF SOELLER'S LICENSE
[Headnotes 1, 2]
On appeal, we are limited to determining whether the decision of the Commission
constitutes an abuse of discretion. NRS 645.760(3); Alley v. Nevada Real Estate Div., 94
Nev. 123, 575 P.2d 1334 (1978); Holland Rlty. v. Nev. Real Est. Comm'n, 84 Nev. 91, 436
P.2d 422 (1968); Barnum v. Williams, 84 Nev. 37, 436 P.2d 219 (1968); Randono v. Nev.
Real Estate Comm'n, 79 Nev. 132
____________________
MRS. HOWARTH: Sixty-seven-five.
MRS. BERKELEY: And you signed, as the buyers?
MRS. HOWARTH: Right.
MRS. BERKELEY: And who signed as the sellers?
MRS. HOWARTH: Nobody. I have never received an acceptance in writing from the Bennetts at all.
I knew that the Bennetts were the owners. That came out later on.
* * *
MRS. BERKELEY: Are you saying that things did not go smoothly from the start?
MRS. HOWARTH: I have never been in a deal that was so crummy in my life, in my five years.
MRS. BERKELEY: Can you please explain to me, very briefly, what you thought Mavis Lund's role
in this was?
MRS. HOWARTH: I thought Mavis was the lister, until Mr. Gibbons [of the Division] said to me,
Did you ever hear of Crystal Shores? I had never. And Clem [Soeller]whatever his name isI had
ever [sic] heard that name.
98 Nev. 579, 586 (1982) State, Dep't of Commerce v. Soeller
Estate Comm'n, 79 Nev. 132, 379 P.2d 537 (1963). The Commission's action is not an abuse
of discretion if it is supported by substantial evidence in the record. Lellis v. Archie, 89 Nev.
550, 516 P.2d 469 (1973); No. Las Vegas v. Pub. Serv. Comm'n, 83 Nev. 278, 429 P.2d 66
(1967); Randono v. Nev. Real Estate Comm'n, supra.
[Headnote 3]
The Commission concluded that Clemens Soeller violated NRS 645.630(9) and (18); Real
Estate Division Rules and Regulations Section VII(6); and the Real Estate Code of Ethics
Part II(2) and (14).
5
The stated basis for this conclusion was Soeller's failure to secure a
definite time for close of escrow on the original Lund offer and his failure to obtain written
cancellation instructions for the Bennett-Lund escrow. The Commission did not make
separate findings of fact to uphold this particular conclusion; however, the conclusion itself
gives notice of the facts on which the Commission relied. Under such circumstances we may
imply the necessary factual findings, so long as the record provides substantial evidence to
support the Commission's conclusion. See Gorden v. Gorden, 93 Nev. 494, 569 P.2d 397
(1977); Lewis v. State, 86 Nev. 889, 894, 478 P.2d 168, 171 (1970); Richfield v. Harbor, 85
Nev. 185, 452 P.2d 462 (1969). Compare with Pub. Serv. Comm. v. Continental Telephone
Co., 94 Nev. 345, 580 P.2d 467 (1978) (where no explanation offered for order, order should
be presumed unreasonable).
____________________

5
NRS 645.630 [prior to 1979 amendments inapplicable to this case].
Grounds for disciplinary action against licensees.
The commission may suspend, revoke, or reissue subject to conditions any license issued under the
provisions of this chapter at any time where the licensee . . . whether or not acting as a licensee, is found
guilty of:
* * *
9. Disregarding or violating any of the provisions of this chapter, chapter 119 of NRS or of any
regulation promulgated under either chapter.
* * *
18. Demonstrated negligence or incompetence in performing any act for which he is required to hold
a license.
Rules and Regulations Section VII(6) (1976) provides the following:
6. A licensee shall include all of the terms and conditions of a transaction in an offer or counteroffer
to purchase.
The Code of Ethics, Part II (1975) provides the following:
2. In accepting employment as an agent, the licensee pledges himself to protect and promote the
interests of his principal. This obligation of absolute fidelity to the principal's interest is primary, but it
does not relieve the licensee from the obligation of dealing fairly with all parties to the transaction.
* * *
98 Nev. 579, 587 (1982) State, Dep't of Commerce v. Soeller
[Headnotes 4, 5]
There was testimony indicating that the Bennetts did not believe that they were legally
obligated to accept the second offer involving the $4,000 commission to Tahoe Sierra
Realty, and that they were anxious to sell because the house would become increasingly
difficult to show as winter approached. However, the record also indicates that Soeller flatly
told the Bennetts that if they did not accept the syphoning to the other broker of the margin
between the original price and the increased price, the broker would take the buyer elsewhere.
Moreover, Mr. Bennett testified that he believed he could get into trouble by refusing a
legitimate offer, that Soeller led him to believe Lund's offer at $63,500 was still legally
operative, and that the sale to Howarth involving Lund was legal because it was a double
escrow. The Commission apparently relied on the latter testimony, and determined that the
degree of disclosure that occurred in this case was insufficient to discharge Soeller's duty to
his principal.
We may not substitute our judgment for that of the Commission by weighing the evidence
or passing on the credibility of witnesses. Lellis v. Archie, supra; No. Las Vegas v. Pub.
Serv. Comm'n, supra. We hold that the testimony of Soeller and the Bennetts constitutes
substantial evidence to support the Commission's determination that Soeller had failed to
protect his principal.
[Headnote 6]
Soeller's failure to ensure that the purchase agreement contained a date for close of escrow
and that the Bennett-Lund escrow was cancelled in writing also demonstrates negligence or
incompetence within the meaning of NRS 645.630(18). Soeller knew that the Bennetts did
not want to be bound by the lower price. Leaving the escrow open and indeterminate
subjected the Bennetts to the problems that they later encountered. Moreover, Soeller knew
that Lund had cancelled her offer and had no earnest money on deposit when he informed the
Bennetts that the Lund escrow was still going. Soeller acted unreasonably in not reviewing
the final terms of the purchase agreement and in leaving the cancellation of the escrow to the
one person who stood to benefit from a continued escrow at the lower price. Substantial
evidence supports the Commission's conclusion.
____________________
14. The licensee should obtain all changes on contractual documents in writing. Any changes should
be signed or initialed by all parties concerned.
98 Nev. 579, 588 (1982) State, Dep't of Commerce v. Soeller
[Headnotes 7, 8]
Similarly, Soeller's failure to ensure that the purchase agreement contained an escrow
closing date demonstrates a violation of Rules and Regulations Section VII(6). Lund's status
as a real estate licensee did not remove from Soeller his responsibility to comply with the
regulation and thus protect his principal. Given the evidence upholding the above infractions,
the penalty assigned by the Commission was well within the Commission's discretion.
THE REVOCATION OF LUND'S LICENSE.
[Headnote 9]
The Commission concluded that Mavis Lund violated NRS 645.630(1), (3), (9), (10), (18),
and (19); Rules and Regulations Section VII; and the Code of Ethics, Part I(2) and Part II(2)
and (14).
6
Lund contends that several of these sections do not apply because she was acting
as a principal rather than as a licensee. However, NRS 645.630 provides for disciplinary
action for misconduct whether or not the licensee is acting as a licensee. In Holland Realty v.
Nevada Real Estate Commission, 84 Nev. 91, 436 P.2d 422 (1968), we set forth the same
standard of honesty and competence for a broker's real estate activities whether he was
performing as a broker or as an owner. The Commission here had before it a lengthy record,
and it found Lund in violation of numerous regulations. The penalty imposed does not rest on
a determination that Lund had a principal to protect.
(a) Misrepresentation or fraud by Lund.
____________________

6
See note 5, supra.
NRS 645.630 [grounds for disciplinary action against licensees]:
1. Making any substantial misrepresentation.
* * *
3. Pursuing a continued and flagrant course of misrepresentation, or making of false promises
through agents or salesmen or advertising or otherwise.
* * *
10. Paying or receiving any rebate, profit, compensation or commission in violation of this chapter
* * *
19. Any other conduct, whether of the same or a different character from that hereinbefore specified,
which constitutes improper, fraudulent, or dishonest dealing.
The Code of Ethics, Part I(2) provides the following:
2. The licensee should do his utmost to protect the public against fraud, misrepresentation or
unethical practices in the real estate field.
98 Nev. 579, 589 (1982) State, Dep't of Commerce v. Soeller
[Headnote 10]
Substantial evidence in the record supports a determination that Lund no longer had any
rights under her original purchase agreement with the Bennetts at the time she represented to
Howarth and to the Bennetts, through Soeller, that she intended to consummate the agreement
and pass title to Howarth as her nominee. First, the evidence would uphold a finding that the
purchase agreement was a nullity because Lund admittedly failed to satisfy the condition
precedent of obtaining financing. Sala & Ruthe Realty, Inc. v. Campbell, 89 Nev. 483, 515
P.2d 394 (1973); Management, Inc. v. Mastersons, Inc., 616 P.2d 356 (Mont. 1980);
McDonald v. Cullen, 559 P.2d 506 (Or. 1977); Simms Co. v. Wolverton, 375 P.2d 87 (Or.
1962); Highlands Plaza, Inc. v. Viking Investment Corp., 467 P.2d 378 (Wash.App. 1970).
See Bird v. Casa Royale West, 97 Nev. 67, 624 P.2d 17 (1981). The evidence would also
uphold a finding that Mrs. Bennett properly rescinded the contract, see Schreiber v. Karpow,
626 P.2d 891 (Or. 1981), Ragen v. Weston, 625 P.2d 557 (Mont. 1981), or that Lund and the
Bennetts mutually rescinded the contract through abandonment. Forsyth v. Pendleton, 617
P.2d 358 (Utah 1980); Mader v. James, 546 P.2d 190 (Wyo. 1976); Tucker v. Edwards, 376
P.2d 253 (Okla. 1962); Wippman v. Rowe, 540 P.2d 141 (Ariz.App. 1975). See Bird v. Casa
Royale West, supra.
Once Lund's rights under the purchase agreement had been extinguished through
rescission or an admitted failure of a condition precedent, she had no basis on which to
involve herself in the sale of the Bennett property to Howarth.
7
There was no new offer and
acceptance between Lund and the Bennetts--just a statement by Soeller that the original Lund
offer was still okay. The Commission could therefore determine on substantial evidence
that Lund's representations of herself as owner of or nominator for the Bennett property
violated NRS 645.630(1), (3), and (19) and the Code of Ethics Part I(2).
(b) Violation of NRS 645.630(10).
Lund received more than three thousand dollars from the Bennett-Howarth sale. She
admits that she was not an agent for either party, and contends that she was entitled to the
money as a real estate agent acting as a principal. However, Lund need not be acting as an
agent to violate the real estate regulations, and her receipt of funds, whether denominated
commission or profit, as a result of her misrepresentations to Howarth and the Bennetts
violates NRS 645.630{10).
____________________

7
At one point during the escrow period, Lund attempted to have Soeller send to the Bennetts a letter falsely
stating that the additional $4,000 commission for Tahoe Sierra Realty was to cover the costs of appliance
warranties, termite inspection, etc., that will be supplied and paid for by Mavis.
98 Nev. 579, 590 (1982) State, Dep't of Commerce v. Soeller
regulations, and her receipt of funds, whether denominated commission or profit, as a result
of her misrepresentations to Howarth and the Bennetts violates NRS 645.630(10).
(c) Lund's negligence or incompetence.
NRS 645.630(18) prohibits negligence or incompetence in performing any act for which
the licensee is required to hold a license, whether or not the licensee is acting as an agent.
While the Commission held Soeller, the Bennett's agent, responsible for both failing to
include a date for close of escrow in the Bennett-Lund purchase agreement and not obtaining
a written cancellation of the escrow, we see no bar to the Commission holding Lund
responsible for the omissions as well. Substantial evidence indicates that she breached her
duty as licensee to prepare all documents carefully and completely; Soeller had even
instructed her to state a close of escrow date in the agreement, and she disregarded his
instructions. Cf. Biegler v. Nevada Real Estate Div., 95 Nev. 691, 601 P.2d 419 (1979)
(negligent or incompetent within meaning of NRS 645.630(18) for broker to send inadequate
closing statement). Moreover, the Commission could have found Lund negligent on the basis
of her failure properly to submit the earnest money with her offer of $63,500.
(d) The penalty.
[Headnotes 11, 12]
Unless the Commission is shown to have abused its discretion by revoking Lund's license,
we may not interfere with its decision. Randono v. Nev. Real Estate Comm'n, 79 Nev. 132,
137, 379 P.2d 537, 539-40 (1962). So long as the violations found by the Commission are
based on substantial evidence and are not trivial, we may not modify the assigned penalty.
See Flanders v. State Dep't of Commerce, 87 Nev. 303, 486 P.2d 499 (1971) (technical
violation of real estate regulations that does not reasonably demonstrate unfitness to continue
as broker will not support revocation of broker's license). In the instant case, the violations
found by the Commission are far from trivial, and are based on substantial evidence. We
therefore decline to disturb the Commission's decision.
THE SUSPENSION OF THE THOMASES' LICENSES
[Headnote 13]
The Commission concluded that Lowell and Sybil Thomas, owners of Tahoe Sierra
Realty, had violated NRS 645.630(9), (18), and (19).
8
The Commission based its conclusion
on the Thomases' failure to act to protect the Bennetts and their failure properly to
supervise Lund and Lockhart {Howarth's agent).
____________________

8
See notes 5 and 6 supra.
98 Nev. 579, 591 (1982) State, Dep't of Commerce v. Soeller
Thomases' failure to act to protect the Bennetts and their failure properly to supervise Lund
and Lockhart (Howarth's agent).
Substantial evidence in the record supports the Commission's decision. Thomas was
Lund's supervising broker. Mr. Thomas admitted that the Bennett-Lund purchase agreement
incorrectly stated that Tahoe Sierra Realty had acknowledged receipt of $1,000 earnest
money. He also testified that he does not have a purchase agreement in his file signed by both
Howarth and Lund, although he paid commissions based on two transactions.
9
Thomas
never ascertained whether Lund had a right to participate in the sale of the Bennett property to
Howarth and yet paid her commissions as if she had purchased the property from the Bennetts
and then sold it to Howarth. The record substantiates Mrs. Thomas' knowledge of and
involvement in these dealings. Tahoe Sierra Realty received $6,667 in commissions as a
result of its salespersons' activities, $3,123 of which was paid to Lund. Either the Bennetts or
Howarth would most likely have realized at least a portion of this amount, had the
misconduct, negligence, and lack of supervision found by the Commission not occurred.
Thus, the record supports the Commission's conclusions that Soeller failed to protect the
interests of his principal; that Lund did not deal honestly with either the buyer or the sellers;
and that the Thomases failed adequately to supervise Lund. We therefore affirm Case No.
12547, and reverse Case No. 12418.
Manoukian, J., and Zenoff, Sr. J.,
10
concur.
Gunderson, C. J., with whom Springer, J., concurs, dissenting:
I respectfully dissent.
It seems to me that my brethren have not identified, with any clarity, just how the accused
in this case have been professionally remiss.
Clemens Soeller, qualifying broker of Crystal Shores Realty, listed for sale the Lake Tahoe
property of Mr. and Mrs. Bennett. Mavis Lund made an offer to purchase the property at the
listed price of $63,500, contingent upon obtaining financing. It should be noted that,
although Ms.
____________________

9
Moreover, Thomas indicated that he could not produce a purchase agreement signed by the Bennetts and
Howarth.

10
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to participate in this case,
pursuant to Nev. Const., art. 6, 19(1)(c); SCR 10.
98 Nev. 579, 592 (1982) State, Dep't of Commerce v. Soeller
should be noted that, although Ms. Lund is licensed as a salesperson associated with Tahoe
Sierra Realty, she made the offer to purchase on her own behalf--and not in any fiduciary or
representative capacity. The Bennetts accepted Lund's offer; however, after it appeared Lund
would be unable to obtain financing, they advised Soeller that they desired to increase the
listing price to $67,500.
Shortly thereafter, a salesperson who knew Lund, and who also was associated with her at
Tahoe Sierra Realty, chanced to be contacted by a prospective purchaser, one Carmen Sylvia
Howarth. Howarth seemed interested in buying property of the general kind owned by the
Bennetts. Knowing that Lund had contracted to purchase the Bennett property, the other
salesperson asked Lund if she was willing to sell that house on Tomahawk that you have the
offer on. Still dealing for her own account, Lund indicated that if the prospective purchaser
would buy the same for $67,500, with Lund receiving the difference between that figure and
$63,500, she would sell her interest. Howarth inspected the home, and agreed to offer that
price.
The offer was presented, in detail, to Clemens Soeller, who presented it to the Bennetts.
Basically, the contract documents proposed that the Bennetts would net the same amount
from the purchase price of $67,500 as they would have from a purchase price of $63,500.
Neither Ms. Lund, nor Tahoe Sierra Realty, practiced any deception on Soeller or on the
Bennetts. The Bennetts knew that if they accepted the offer, the $4,000 difference between
$67,500 and $63,500 would be paid as additional commission to Tahoe Sierra Realty, Ms.
Lund's broker, for producing Howarth as a buyer. How Tahoe Sierra Realty would later
distribute this additional commission was not a concern material to the Bennetts.
It is uncontroverted that Soeller informed the Bennetts that they had no legal obligation to
accept the offer. As he explained, however, if they did not accept the offer, Tahoe Sierra
Realty--and Ms. Lund--had no obligation to produce Howarth as a purchaser. This advice
appears to have been legally sound, and, in any event, was in no way dishonest. Moreover, it
should be noted that Mrs. Bennett, who handled the transaction of behalf of herself and her
husband, is a licensed real estate salesperson in California.
The Bennetts undoubtedly felt abused, however, they were not misled. They signed the
escrow instructions, which accurately reflected the offer, and all funds were disbursed in
accordance with such instructions. They did so even though Soeller had informed them of all
facts known to him, and of their right to refuse the offer.
98 Nev. 579, 593 (1982) State, Dep't of Commerce v. Soeller
their right to refuse the offer. See Holland Rlty. v. Nev. Real Est. Comm'n, 84 Nev. 91, 436
P.2d 422 (1968). He did not conceal anything material to the transaction, nor did he help
Lund to do so. He did not take a secret profit, nor did he help Lund to do so. It seems to me
that he acted competently and conscientiously, when confronted with the somewhat unusual
demands of Lund and Tahoe Sierra Realty.
In the absence of a regulation limiting the amount which a non-listing broker may charge
for producing a buyer, I fail to perceive how Lund and Tahoe Sierra Realty may be subjected
to discipline. I repeat: they had neither a contract with, nor a fiduciary obligation to, Mr. and
Mrs. Bennett. They were not guilty of fraud or misrepresentation.
1

I therefore respectfully submit that we should affirm the judgment of the district court in
case No. 12418, and that we should reverse the judgment of the district court in case No.
12547.
____________________

1
As noted above, Lund and Tahoe Sierra Realty were candid about the terms they submitted to the Bennetts,
through Soeller. Furthermore, it appears they were candid in stating the terms of the transaction to the purchaser,
Carmen Sylvia Howarth. Not only were the terms clearly set forth in the escrow instructions, but the transaction's
essence was summarized in a letter from Lund to Howarth which recited:
Dear Sylvia,
The appraiser came 18 Oct, will have a commitment back to us in two weeks ore [sic] sooner. He
liked the house very much. Receipt below was signed by our secretary Nancy Sargent who deposited the
funds in our trust account, as required by law. Escrow instructions are enclosed. Should you have any
questions please feel free to phone us at 702 831 3166. As you will notice, title will pass from Bennett to
you as my nomineeSierra Realty will receive $4,000.00 commission on the sell to you. Sure you
understand since you are in real estate.
/s/ Mavis
Mavis
(Emphasis added.)
____________
98 Nev. 593, 593 (1982) Kiper v. State
MAYFIELD ALLEN KIPER, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 13326
December 29, 1982 655 P.2d 526
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Defendant was convicted in the district court of burglary, and he appealed.
98 Nev. 593, 594 (1982) Kiper v. State
and he appealed. The Supreme Court held that trial court erred in denying proffered
instructions on criminal trespass.
Reversed and remanded.
Morgan D. Harris, Public Defender, and Gary H. Lieberman, Deputy Public Defender,
Clark County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
In prosecution for burglary, trial court erred in denying proffered instructions on criminal trespass where
review of record established that defense theory of trespass was reasonable in light of evidence. NRS
205.060, subd. 1.
Opinion
Per Curiam:
Appellant was charged with burglary. At trial, the jury heard testimony from the occupants
of a residence that they had been eating breakfast on their front porch when they heard their
dog bark. They ran to the back of the house in time to see the appellant rapidly walk out of
the bedroom. Upon being asked what he was doing, the appellant replied that he had been
looking for a little short white guy, Mike, who came in. When asked to leave, appellant
complied. One of the occupants testified that appellant behaved like a perfect gentleman.
Nothing was taken from the house, and nothing had been disturbed.
Appellant declined to testify at trial. During argument, his attorney conceded that appellant
had been in the house but argued that nothing introduced at trial indicated that Kiper entered
the house with larcenous intent and that the most appellant was guilty of was criminal
trespass. At the conclusion of trial, the defense tendered two trespass instructions and a
verdict form on that charge. The district court rejected the simple misdemeanor theory and
did not give the trespass instructions.
1

During its six-hour deliberation, the jury questioned the court as to whether intent was the
key issue in the case. Ultimately, appellant was found guilty of burglary and sentenced to six
years in prison.
____________________

1
The jury was not instructed on the statutory intent presumption contained in NRS 205.065 as modified by
NRS 47.230(2). Hollis v. State, 96 Nev. 207, 606 P.2d 534 (1980).
98 Nev. 593, 595 (1982) Kiper v. State
to six years in prison. This appeal followed, its sole assignment of error being that it was error
to deny the proffered instructions on criminal trespass. NRS 207.200. We agree, for the
reasons stated below.
In order for the jury to have found appellant guilty of burglary, they had to find that he
entered the building with an intent to commit a felony. NRS 205.060(1). Necessarily included
in that finding was a determination that appellant entered into the building with the intent to
commit an unlawful act. Thus, a trespass committed by entering into a building with intent
to commit an unlawful act is a lesser included offense of burglary. Block v. State, 95 Nev.
933, 936, 604 P.2d 338, 341 (1979). In this case there was evidence that appellant had been in
the house, thereby providing an evidentiary basis for a trespass instruction. Id.; see Klepar v.
State, 92 Nev. 103, 546 P.2d 231 (1976). A review of the record establishes that the defense
theory of trespass was reasonable in light of the evidence presented below.
We thus conclude it was error to refuse to instruct the jury as requested. Lisby v. State, 82
Nev. 183, 188, 414 P.2d 592, 595 (1966). Cf. Wilmeth v. State, 96 Nev. 403, 610 P.2d 735
(1980) (not error to refuse instruction where state easily met burden of proof on greater
charge and it was questionable that some elements essential to the lesser charge were
shown).
Accordingly, appellant's conviction is reversed and the case remanded for a new trial.
____________
98 Nev. 595, 595 (1982) Stickler v. Quilici
THOMAS RAY STICKLER, RUAN LEASING COMPANY and LANIER BRUGH, INC.,
Appellants, v. JO ANN QUILICI, Individually and as Mother and Next Friend of BETTY JO
QUILICI, a Minor, Respondents.
No. 13820
December 29, 1982 655 P.2d 527
Appeal from judgment providing for prejudgment interest; Second Judicial District Court,
Washoe County; John E. Gabrielli, Judge.
Plaintiffs brought action for damages resulting from extensive injuries in automobile
accident, and only issues submitted to jury concerned amount of damages. Defendants
requested special verdict and related instructions which would require jury to distinguish
between past and future damages, but, upon plaintiffs' objections, trial court refused to
give such instructions, and jury returned general verdict for plaintiffs.
98 Nev. 595, 596 (1982) Stickler v. Quilici
jury to distinguish between past and future damages, but, upon plaintiffs' objections, trial
court refused to give such instructions, and jury returned general verdict for plaintiffs. The
district court awarded plaintiff additional amount for prejudgment interest on entire amount
of jury verdict, and defendants appealed. The Supreme Court held that, as verdict did not
indicate what portion of total award was for past damages, trial court erred in awarding
prejudgment interest on entire amount of verdict.
Reversed.
Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane, Reno, for Appellants.
Echeverria and Osborne, and Nicholas F. Frey, Reno, for Respondents.
Interest.
Where verdict awarding plaintiffs damages for injuries resulting from automobile accident was general
and did not indicate what portion of total verdict was for past damages, trial court erred in awarding
prejudgment interest on entire amount of verdict. NRS 17.130.
OPINION
Per Curiam:
This appeal results from a judgment awarding $17, 215.54 to respondents for prejudgment
interest on a jury verdict for personal injuries. On December 25, 1978, respondents, Jo Ann
Quilici and her daughter, Betty Jo Quilici, suffered extensive injuries in an automobile
accident. The only issues submitted to the jury concerned the amount of damages. During the
settling of jury instructions respondents asked for and received a damage instruction that
expressly included, as elements, future wage loss, future medical expenses and future pain
and suffering. Appellants requested a special verdict and related instructions which would
require that the jury distinguish between past and future damages. Respondents objected and
the district court refused without explanation to give the special instruction. On September
30, 1981, the jury returned a general verdict for the respondents for the combined sum of
$118,106.74, of which $102,888.09 was for Jo Ann Quilici and $15,218.65 was for Betty Jo
Quilici. The jury verdict was general and did not indicate what portion of the total verdict was
for past damages.
Following the jury verdict, the trial court issued its judgment which included
prejudgment interest on the entire verdict amount, notwithstanding the fact that NRS
17.1301 disallows prejudgment interest for any amount representing future damages.
98 Nev. 595, 597 (1982) Stickler v. Quilici
which included prejudgment interest on the entire verdict amount, notwithstanding the fact
that NRS 17.130
1
disallows prejudgment interest for any amount representing future
damages. Since it is impossible to determine what portion of the total verdict was for past
damages, the amount of the award for which prejudgment interest can be properly awarded is
not ascertainable. It was therefore error for the trial court to award prejudgment interest on
the entire amount of the jury verdict.
The plaintiffs bear the burden of proving every essential fact necessary to establish their
cause of action. Since the amount of past damages in this case is not ascertainable, the
plaintiffs, respondents herein, cannot be said to have sustained their burden of proof in a
manner which will support an award of interest based on past damages. Unless the amount of
past damages is established in some manner, it is not proper for a prejudgment interest award
to be made.
Reversed.
Manoukian, Springer, Mowbray, and Steffen, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

1
At the time applicable to this case NRS 17.130 provided in pertinent part:
17.130 Computation of amounts of judgments; interest.
. . . .
2. When no rate of interest is provided by contract or otherwise by law, or specified in the judgment,
the judgment draws interest at the rate of 8 percent per annum from the time of service of the summons
and complaint until satisfied, except for any amount representing future damages, which draws interest at
that rate only from the time of the entry of the judgment until satisfied.
NRS 17.130 was amended by the Nevada Legislature in 1981 to increase the rate of interest which the
judgment draws to 12 percent.

2
The Chief Justice assigned Senior Justice David Zenoff to participate in the decision of this matter, in the
place and stead of the Chief Justice, pursuant to the Nevada Constitution, art. 6, 19(1)(a) and 19(1)(c) and
SCR 10.
____________
98 Nev. 597, 597 (1982) Cloninger v. Russell
DENISE DIANE CLONINGER, Appellant, v.
RICHARD DEAN RUSSELL, Respondent.
No. 13987
December 29, 1982 655 P.2d 528
Appeal from an order terminating parental rights; First Judicial District Court, Carson
City; Michael R. Griffin, Judge.
Mother appealed order of the district court terminating parental rights to her natural son.
98 Nev. 597, 598 (1982) Cloninger v. Russell
parental rights to her natural son. The Supreme Court held that appropriate test is the clear
and convincing evidence standard and that such standard applied prospectively.
Reversed and remanded.
Terry & Winter, Carson City, for Appellant.
Sheerin, O'Reilly, Walsh & Keele, Carson City, for Respondent.
Richard H. Bryan, Attorney General; Sharon L. McDonald, Deputy Attorney General,
Carson City, for Amicus Curiae.
1. Infants.
Clear and convincing evidence test is the standard of proof in parental rights termination proceedings.
NRS 128.090, subd. 3; U.S.C.A.Const. Amend. 14.
2. Courts.
Decision adopting the clear and convincing evidence test as the standard of proof in parental termination
proceedings applies prospectively and does not apply to matters which were final on date of filing of the
appeal. NRS 128.090, subd. 3; U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
This is an appeal from an order terminating the parental rights of appellant Cloninger to
her natural son, Benjamin Russell. Proceedings were conducted in accordance with NRS
128.090(3) which provides that the standard of proof to be adduced in the proceedings is a
preponderance of the evidence.
[Headnote 1]
In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), which was
decided after the hearing and order in this case, it was held by the United States Supreme
Court that the due process clause of the fourteenth amendment of the United States
Constitution requires, as a minimum, a standard of proof of clear and convincing evidence
rather than of a preponderance of evidence before a state may irrevocably terminate the rights
of a parent to a natural child.
We elect to adopt clear and convincing evidence as the standard of proof in parental rights
termination proceedings and remand to the district court with instructions to rehear the
matter in a manner consistent with this opinion.
98 Nev. 597, 599 (1982) Cloninger v. Russell
remand to the district court with instructions to rehear the matter in a manner consistent with
this opinion.
[Headnote 2]
The minimum constitutional standard of clear and convincing evidence shall be applied
prospectively and shall not apply to matters which are final on the date this appeal is filed.
Manoukian, Springer, Mowbray, and Steffen, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Chief Justice assigned Senior Justice David Zenoff to participate in the decision of this matter, in the
place and stead of the Chief Justice, pursuant to the Nevada Constitution, art. 6, 19(1)(a) and 19(1)(c) and
SCR 10.
____________
98 Nev. 599, 599 (1982) State Bar of Nevada v. Watkins
STATE BAR OF NEVADA, Complainant, v.
DOUGLAS A. WATKINS, Respondent.
No. 14301
December 29, 1982 655 P.2d 529
Proceeding was instituted in disciplinary matter. The Supreme Court authorized
publication of a letter of reprimand providing that a failure of an attorney to communicate
with his clients and to cooperate with a disciplinary inquiry as well as to keep a promise to
disciplinary board members to file replies to grievances warrants a reprimand.
1. Attorney and Client.
It is the ethical duty of an attorney to keep his clients advised of the progress of their cases and to make
timely replies to their inquiries. Code of Prof.Resp., DR 1-102(A)(6).
2. Attorney and Client.
A disagreeable attorney-client relationship does not relieve an attorney of the duty to perform or
communicate with a client. Code of Prof.Resp., DR 1-102(A)(6).
3. Attorney and Client.
It is the duty of an attorney to cooperate in an investigation of alleged professional misconduct and, if he
refuses to answer letters from disciplinary personnel or otherwise fails to cooperate, it may be deemed an
adverse reflection on his fitness to practice law as well as conduct prejudicial to the administration of
justice. Code of Prof.Resp., DR 1-102(A)(5), (6).
4. Attorney and Client.
A failure of an attorney to communicate with his clients and to cooperate with a disciplinary inquiry as well
as to keep a promise to disciplinary board members to file replies to grievances warrants a
reprimand. Code of Prof.Resp., DR 1-102{A){5), {6).
98 Nev. 599, 600 (1982) State Bar of Nevada v. Watkins
disciplinary board members to file replies to grievances warrants a reprimand. Code of Prof.Resp., DR
1-102(A)(5), (6).
ORDER
Pursuant to our order in the appeal of state Bar of Nevada v. Watkins, No. 14301, 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, Pat
Fitzgibbons, Chairman:
Douglas A. Watkins, Esquire, 3017 W. Charleston Boulevard, No. 95, Las Vegas, Nevada
89102
In March of 1979, you were hired by a Corporate Client to collect an unpaid account, in
which you were successful. In June of 1979, you were hired by the same Corporate Client to
collect certain other unpaid accounts. Your client paid all sums you billed, including costs
advanced for the filing and service of a number of Complaints which were never actually
filed or served. Shortly after receiving payment, the client changed collection personnel and
your attorney-client relationship greatly deteriorated. Your client made repeated unanswered
inquiries of you on the status of its cases. You did not keep your client informed on the status
of its cases, nor did you take the initiative to return its files to it. Eventually the client
requested the return of its files and the unused portion of its advanced costs.
In an effort to reach an informal resolution of this matter, you met with three members of
the Disciplinary Board, along with your client, in January, 1981, to discuss the situation. At
that time, you agreed to refund the unexpended costs and return the client's files, but failed to
comply with your promise until a formal Complaint was filed against you by the State Bar of
Nevada.
In unrelated matters, two of your clients filed separate statements of grievance against you
alleging unethical conduct. Neither of these matters was found to have any merit. However,
when copies of both grievances were sent to you with a request to reply to the allegations, you
failed to respond to those grievances. During your January, 1981 meeting with the
Disciplinary Board Members, you promised to file replies to both grievances after being
questioned concerning your failure to respond. Even after promising to reply to the grievance,
you did not do so, requiring a second letter to be sent certified mail asking for a reply to the
grievances.
98 Nev. 599, 601 (1982) State Bar of Nevada v. Watkins
[Headnotes 1, 2]
It is the ethical duty of an attorney to keep his clients advised of the progress of their cases
and to make timely replies to their inquiries. DR 1-102(A)(6). See also, 80 ALR3d 1240,
Failure to Communicate with Client as Basis for Disciplinary Action Against Attorney. A
disagreeable attorney-client relationship does not relieve an attorney of the duty to perform or
communicate with a client.
[Headnote 3]
It is also the duty of an attorney to cooperate in investigations of alleged professional
misconduct, and it may be deemed an adverse reflection on his fitness to practice law, and
conduct prejudicial to the administration of justice when he refuses to answer letters from
Disciplinary personnel or otherwise fails to cooperate. DR 1-102(A)(5) B (6). See also In re
Miller, 57 Nev. 93, 59 P.2d 9 (1936) and Matter of Cartwright, 282 N.W.2d 648 (Minn.
1979).
[Headnote 4]
Your conduct in these matters has fallen far below that expected of one admitted to
practice law and brings discredit to our profession. Not only did you fail to communicate with
your clients, and fail to cooperate with the Disciplinary inquiry, but you failed to keep your
promise to the Disciplinary Board Members.
Dated this 28th day of December, 1982.
s/Patrick J. Fitzgibbons, Esquire, Chairman, Southern Nevada Disciplinary Board.
____________
98 Nev. 601, 601 (1982) Washington v. State
NOLAN OSBORNE WASHINGTON, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 11294
December 29, 1982 655 P.2d 531
Appeal from a judgment of conviction, and from an order denying a motion for a new trial,
Second Judicial District Court, Washoe County; John W. Barrett, Judge.
The Supreme Court held that trial judge was not compelled by law, as he believed he was,
to deny motion for new trial for insufficiency of evidence.
Reversed and remanded William N.
98 Nev. 601, 602 (1982) Washington v. State
William N. Dunseath, Public Defender, and Michael B. McDonald and N. Patrick
Flanagan, Deputy Public Defenders, Washoe County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney,
and Edward B. Horn, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Trial Judge was not compelled by law to deny motion for new trial for insufficiency of evidence. NRS
176.515, 176.515, subds. 1, 3, 4.
2. Criminal Law.
Double jeopardy clause of federal Constitution does not bar state from reprosecuting defendant when new
trial has been granted because trial judge disagrees with jury's resolution of conflicting evidence though if
court concludes that evidence was not sufficient to justify rational jury in finding guilt beyond reasonable
doubt, new trial is not permitted and defendant must be released. NRS 176.515, subd. 4; U.S.C.A.Const.
Amend. 5.
OPINION
Per Curiam:
[Headnote 1]
After a jury found appellant guilty of robbery, he moved for a new trial. The district court
denied appellant's motion, concluding that NRS 176.515 does not permit a new trial to be
granted for insufficiency of the evidence. On appeal, appellant contends, to the contrary, that
the court possessed lawful authority to consider his motion. We agree. This matter is reversed
and remanded, so that appellant's motion may be considered in accord with the standard
hereinafter set forth.
In denying the appellant's motion for a new trial, the district judge commented as follows:
I am very well acquainted with the facts in the case, and I would observe that this is the
first criminal case which has ever been tried before me in which I feltwhere there was
a convictionin which I felt that perhaps the jury had reached the wrong conclusion.
Nevertheless, despite these reservations concerning appellant's guilt, the district judge
concluded he was compelled by law to deny appellant's motion. This was incorrect.
Although the district judge found the evidence of guilt to be conflicting and was not
convinced of appellant's guilt, he assumed that NRS 176.515 prevented him from granting
a new trial.
98 Nev. 601, 603 (1982) Washington v. State
assumed that NRS 176.515 prevented him from granting a new trial. That statute, in pertinent
part, provides;
1. The court may grant a new trial to a defendant if required as a matter of law or on
the ground of newly discovered evidence.
. . . .
3. A motion for a new trial based on the ground of newly discovered evidence may
be made only before or within 2 years after final judgment, but if an appeal is pending
the court may grant the motion only on remand of this case.
4. A motion for a new trial based on any other grounds shall be made within 7 days
after verdict or finding of guilty or within such further time as the court may fix during
the 7-day period.
NRS 176.515 took effect on April 24, 1967, replacing what was formerly NRS 175.535.
The district judge construed NRS 176.515 by comparing its language with that of its
predecessor statute. NRS 175.535 had provided in relevant part:
[t]he court in which a trial is had upon the issue of fact, has power to grant a new trial
where a verdict has been rendered against the defendant upon his application, in the
following cases only:
. . . .
6. When the verdict is contrary to law or evidence, . . .
Because NRS 176.515 does not contain comparable language, the district judge concluded
that he lacked power to grant a new trial when in the judge's evaluation, the verdict is
contrary to the evidence. In our view, however, such a conclusion does not follow.
The language of subsection (1) of NRS 176.515 is permissive, i.e., the court may grant a
new trial. (Emphasis added.) Subsection (3) of the statute describes conditions to be met for
a motion for new trial based on newly discovered evidence; however, subsection (4)
recognizes that a motion for new trial may be based on other grounds. We hold that such
other grounds exist when the district judge disagrees with the jury's verdict after an
independent evaluation of the evidence. Such grounds have a recognized history of validity in
Nevada. District judges in criminal cases have had traditional authority to grant motions for
new trials based upon an independent evaluation of the evidence. As we said in State v.
Busscher, 81 Nev. 587, 407 P.2d 715 (1965): Historically, Nevada has empowered the trial
court in a criminal case where the evidence of guilt is conflicting, to independently
evaluate the evidence and order another trial if it does not agree with the jury's
conclusion that the defendant has been proven guilty beyond a reasonable doubt.
98 Nev. 601, 604 (1982) Washington v. State
Historically, Nevada has empowered the trial court in a criminal case where the
evidence of guilt is conflicting, to independently evaluate the evidence and order
another trial if it does not agree with the jury's conclusion that the defendant has been
proven guilty beyond a reasonable doubt.
81 Nev. at 589; see also Green v. State, 81 Nev. 595, 407 P.2d 719 (1965).
[Headnote 2]
We note that the Double Jeopardy Clause of the United States Constitution does not bar
the state from reprosecuting the defendant when a new trial has been granted because the trial
judge disagrees with the jury's resolution of conflicting evidence. Tibbs v. Florida,
___
U.S.
___
, 50 U.S. Law Week 4607 (June 7, 1982); Hudson v. Louisiana, 450 U.S. 40 (1981);
People v. Veitch, 180 Cal.Rptr. 412 (Ct.App. 1982). This is distinct from a situation in which
the court concludes that the evidence was not sufficient to justify a rational jury from finding
guilt beyond a reasonable doubt, under the standard set forth in Jackson v. Virginia, 443 U.S.
307 (1979). If the evidence was insufficient under the Jackson standard, a new trial is not
permitted and the defendant must be released. See Tibbs v. Florida, supra.
We conclude that the district judge operated under the erroneous belief that he lacked
jurisdiction to rule on appellant's motion for a new trial, and he erred by failing to exercise his
discretion. See Pacific Intermountain v. Leonard E. Conrad, 88 Nev. 569, 502 P.2d 106
(1972). Accordingly, we reverse the order denying appellant's motion for a new trial and we
remand this matter to allow the district judge an opportunity to consider such motion on its
merits.
____________
98 Nev. 604, 604 (1982) McCabe v. State
DENNIS LEE McCABE, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12928
December 30, 1982 655 P.2d 536
Appeal from judgment of conviction. Ninth Judicial District Court, Douglas County;
Howard D. McKibben, Judge.
Defendant was convicted in the district court of first degree murder, and he appealed. The
Supreme Court held that: (1) trial court did not err in refusing to grant immunity to two
defense witnesses; {2) trial court did not abuse its discretion in rejecting defendant's
motion for continuance; and {3) separate penalty hearing was not required by statute
where death penalty did not apply.
98 Nev. 604, 605 (1982) McCabe v. State
trial court did not err in refusing to grant immunity to two defense witnesses; (2) trial court
did not abuse its discretion in rejecting defendant's motion for continuance; and (3) separate
penalty hearing was not required by statute where death penalty did not apply.
Affirmed.
J. Gregory Damm, State Public Defender and Robert A. Bork, Deputy Public Defender,
Carson City, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Michael S. Rowe, District Attorney, and
Michael P. Gibbons, Deputy District Attorney, Douglas County, for Respondent.
1. Witnesses.
Granting of immunity to witnesses is traditionally function of prosecution, and defendant in criminal
proceeding does not have right to grant immunity to witnesses. NRS 178.572.
2. Witnesses.
Even though defendant is faced with witness who invokes his privilege against self-incrimination, this is
not grounds to grant immunity to that witness. NRS 178.572.
3. Witnesses.
In prosecution for murder, trial court did not err in refusing to grant immunity to two defense witnesses
who invoked Fifth Amendment privilege against self-incrimination and refused to testify as to shooting
incident where motion for grant of immunity was brought by defendant not by state. NRS 178.572.
4. Criminal Law.
Granting of continuance is within sound discretion of court.
5. Criminal Law.
In prosecution for murder, trial court did not abuse its discretion in rejecting defendant's motion for
continuance premised on defendant's perceived need to delay his trial until such time as his witnesses could
resolve their own culpability in shooting incident and be free of jeopardy to testify about facts surrounding
defendant's involvement.
6. Criminal Law.
In prosecution for murder, separate penalty hearing was not required by statute where both parties had
stipulated prior to trial that death penalty did not apply. NRS 175.552.
7. Criminal Law.
In prosecution for murder, trial court did not err in refusing to grant defendant new trial on basis of newly
discovered evidence where evidence proffered by defendant did not satisfy requirements for new trial.
OPINION
Per Curiam:
Appellant was tried before a jury and convicted of murder in the first degree.
98 Nev. 604, 606 (1982) McCabe v. State
the first degree. He was sentenced to life imprisonment without the possibility of parole. We
affirm.
Prior to trial, the district court held a hearing on a motion by appellant's counsel for a grant
of immunity for two defense witnesses. Both motions were denied. Thereafter, appellant's
counsel called these two witnesses to testify. They both asserted their Fifth Amendment
privilege against self-incrimination and refused to testify as to the shooting incident of
August 3, 1979, which led to appellant being charged with murder. Appellant renewed his
motions for a grant of immunity, or in the alternative, for a continuance. The district court
again denied both motions.
[Headnotes 1-3]
We hold that the trial court did not err in refusing to grant immunity to the two defense
witnesses. NRS 178.572 governs the granting of immunity and provides as follows:
In any investigation before a grand jury, or trial in any court of record or justice's court,
the court on motion of the state may order that any material witness be released from all
liability to be prosecuted or punished on account of any testimony or other evidence he
may be required to produce. (Emphasis added.)
This statute clearly provides that the granting of immunity is discretionary with the court only
upon motion of the state. The granting of immunity is traditionally a function of the
prosecution, and a defendant in a criminal proceeding does not have a right to grant immunity
to witnesses. State v. Matson, 587 P.2d 540 (Wash.App. 1970); State v. Ramsey, 576 P.2d
572 (Idaho 1978); and State v. Buchanan, 518 P.2d 108 (Ariz. 1974). Furthermore, even
though a defendant is faced with a witness who invokes his privilege against
self-incrimination, this is not grounds to grant immunity. See United States v. Ramsey, 503
F.2d 524 (7th Cir. 1974); and Buchanan, supra. Accordingly, appellant has no statutory right
to have immunity granted to his two witnesses.
[Headnotes 4, 5]
Appellant argues that he was the victim of an abuse of the trial court's discretion in
rejecting his motion for continuance. This motion was premised on the appellant's perceived
need to delay his trial until such time as the aforementioned witnesses could resolve their own
culpability in the incident for which appellant was tried. Presumably, the witnesses would
then be free of jeopardy in testifying about the facts surrounding appellant's involvement. We
are unaware, however, of any legal principle requiring a judge to grant a continuance
based on the mere hope that a recalcitrant witness will later agree to testify.
98 Nev. 604, 607 (1982) McCabe v. State
legal principle requiring a judge to grant a continuance based on the mere hope that a
recalcitrant witness will later agree to testify. It is a well settled rule in this state that the
granting of a continuance is within the sound discretion of the court. Johnson v. State, 90
Nev. 352, 526 P.2d 696 (1974); Morford v. State, 80 Nev. 438, 395 P.2d 861 (1964). In the
instant case, the record does not reveal any abuse in this area; therefore, we conclude that the
trial judge was acting within his discretion in denying appellant's motion for a continuance.
[Headnote 6]
In the case before us, both parties stipulated prior to trial that the death penalty did not
apply because there were no aggravating circumstances to be presented by the prosecution.
Consequently, the jury was instructed that if it found the defendant guilty of murder in the
first degree, it was required to fix the penalty at life imprisonment with or without the
possibility of parole. Appellant contends that the trial court erred in not holding a separate
penalty hearing as mandated by NRS 175.552.
1
Under the circumstances of this particular
case, we cannot agree.
A plain reading of this statute in conjunction with NRS 175.554, which outlines the
procedures for conducting a separate penalty hearing, reveals that a separate penalty hearing
is not required where death is not an option for the jury to consider. NRS 175.554 provides
that the court shall instruct the jury on all alleged aggravating and mitigating circumstances;
then the jury is to determine whether these circumstances are found to exist. Thereafter, based
upon its determination, the jury must find whether the defendant should be sentenced to death
or life imprisonment. The statute continues by stating that the jury may impose a sentence of
death only if it finds at least one aggravating circumstance which is not outweighed by any
mitigating circumstances. It is apparent from the foregoing that the main purpose of the
penalty hearing is to determine whether a sentence of death or life imprisonment should be
imposed after all aggravating and mitigating circumstances are weighed. Where, as here,
there are no such circumstances to be weighed, and death is not an option, we hold that a
separate penalty hearing is not required under NRS 175.552.
____________________

1
NRS 175.552 provides in pertinent part:
Upon a finding that a defendant is guilty of murder of the first degree, the court shall conduct a
separate penalty hearing to determine whether the defendant shall be sentenced to death or to life
imprisonment with or without possibility of parole.
98 Nev. 604, 608 (1982) McCabe v. State
[Headnote 7]
We now turn to appellant's claim that a new trial should have been granted on the basis of
newly discovered evidence.
2
NRS 176.515. We have consistently held that the granting of a
new trial in criminal cases on the ground of newly discovered evidence is largely
discretionary with the trial court, and that court's determination will not be reversed on appeal
unless abuse of discretion is clearly shown. Lightford v. State, 91 Nev. 482, 538 P.2d 585
(1975); Porter v. State, 94 Nev. 142, 576 P.2d 275 (1978). Furthermore, in Oliver v. State, 85
Nev. 418, 456 P.2d 431 (1969), we set forth seven requirements that a defendant must
establish before a new trial will be ordered. Since the evidence proffered by appellant does
not satisfy these requirements, we conclude that the trial court did not err in refusing to grant
a new trial.
The judgment of conviction is affirmed.
____________________

2
Actually, the newly discovered evidence in question was known to appellant from the date of the offense.
It is therefore more appropriately in the category of newly available evidence. State v. Guthrie, 517 P.2d 1253
(Ariz. 1974); People v. Fletcher, 566 P.2d 345 (Colo. 1977).
____________
98 Nev. 609, 609 (1982) Cheqer, Inc. v. Painters & Decorators
CHEQER, INC., Appellants and Cross-Respondents, v. PAINTERS AND DECORATORS
JOINT COMMITTEE, INC.; PAINTERS AND DECORATORS JOINT APPRENTICESHIP
COMMITTEE; THE COMMITTEE MEMBERS OF THE PAINTERS AND
DECORATORS JOINT APPRENTICESHIP COMMITTEE; TOM MILLIS; DOUG LUND;
LARRY CARDWELL; DAN ARCOTTA; I.B.P.A.T. UNION AND INDUSTRY
NATIONAL PENSION FUNDS; RICHARD MEYERS, ADMINISTRATOR TO THE
I.B.P.A.T. UNION AND INDUSTRY NATIONAL PENSION FUNDS; PAINTING AND
DECORATING VACATION FUND OF LOCAL NO. 159; THE REPRESENTATIVES OF
THE PAINTING AND DECORATING VACATION FUND OF LOCAL NO. 159;
ROBERT VALERI; RAY G. CLEGG, Sr.; T. P. MINEHAN; JAMES R. KAISER;
LAWRENCE E. GOVE; CHESTER RANKIN; EUGENE COLAN; HARRY HOLLAND;
PAINTING AND DECORATING WELFARE FUND OF LOCAL NO. 159; THE
REPRESENTATIVES OF THE PAINTING AND DECORATING WELFARE FUND OF
LOCAL NO. 159; ROBERT VALERI; RAY G. CLEGG, Sr.; T. P. MINEHAN; JAMES R.
KAISER; LAWRENCE E. GOVE; CHESTER RANKIN; EUGENE COLAN and HARRY
HOLLAND, Respondents and Cross-Appellants.
No. 13239
December 30, 1982 655 P.2d 996
Appeal from judgment and cross-appeal, Eighth Judicial District Court, Clark County; J.
Charles Thompson, Judge.
Union committee brought suit against general contractor to recover fringe benefit
contributions required of bankrupt subcontractor under collective bargaining agreement with
the union. The district court granted partial summary judgment in favor of union as to liability
but denied it attorney fees, and cross appeals were taken. The Supreme Court, Gunderson, C.
J., held that material issue of genuine fact existed as to whether union committee's allowing
union members to continue to work for subcontractor when it knew subcontractor was
delinquent in its fringe benefit contributions required under collective bargaining agreement
entered into with subcontractors gave rise to an estoppel defense, precluding summary
judgment against general contractor.
Reversed and remanded.
98 Nev. 609, 610 (1982) Cheqer, Inc. v. Painters & Decorators
Keefer, Clark, O'Reilly & Haight, and Mark Ferrario, Las Vegas, for Appellants and
Cross-Respondents.
Marquis & Haney, Las Vegas, for Respondents and Cross-Appellants.
1. Judgment.
Mere filing of cross motions for summary judgment does not automatically relieve trial court of its
obligation of determining whether there actually remains any genuine issue of fact for trial.
2. Judgment.
Where parties were bringing their cross motions for summary judgment on two separate legal theories
and relying on two separate sets of facts to support those theories, trial court was not relieved of its
responsibility to examine the record to see if any material issues of fact remained to be tried.
3. Judgment.
Material issue of genuine fact existed as to whether union committee's allowing union members to
continue to work for subcontractor when it knew subcontractor was delinquent in its fringe benefit
contributions required under collective bargaining agreement entered into with subcontractor, which
ultimately filed for bankruptcy, gave rise to an estoppel defense, precluding summary judgment against
general contractor in suit in which union committee sought to recover fringe benefit contributions from
general contractor. NRS 608.150; NRCP 56.
4. Estoppel.
Equitable estoppel comprises four elements: (1) party to be estopped must be apprised of the true facts;
(2) he must intend that his conduct shall be acted upon or must so act that the party asserting estoppel has
right to believe it was so intended; (3) party asserting the estoppel must be ignorant of the true state of
facts; and (4) he must have relied to his detriment on the conduct of the party to be estopped; furthermore,
silence can raise an estoppel quite as effectively as can words.
OPINION
By The Court, Gunderson, C. J.:
Appellant and cross-respondent, Cheqer, Inc., was a general contractor who hired a
subcontractor, Taylor, Inc., to perform work on a Cheqer project. Taylor in turn entered into a
collective bargaining agreement with the Painters and Decorators Union. Under the terms of
this collective bargaining agreement, Taylor was obliged to make certain fringe benefit
contributions to respondent and cross-appellant Painters and Decorators Joint Committee
(Committee) as part compensation for members of the Painters and Decorators Union
employed by Taylor on the Cheqer project.
98 Nev. 609, 611 (1982) Cheqer, Inc. v. Painters & Decorators
While engaged in the work, however, Taylor suffered financial difficulties, and failed to
make the fringe benefit contributions for the months of November and December, 1978, and
January, 1979. Although Committee was aware Taylor had failed to make the fringe benefit
contributions, it did not inform Cheqer of Taylor's delinquency. Cheqer continued to pay
Taylor pursuant to its subcontracting agreement sums intended to cover the fringe benefit
contributions.
Taylor's financial difficulties forced it to file for bankruptcy in mid-January, 1979.
Following the filing of Taylor's bankruptcy petition, Committee made a written demand that
Cheqer make payment of the delinquent fringe benefit contributions pursuant to NRS
608.150.
1
Cheqer, having already paid Taylor all sums due and owing under the
subcontracting agreement, refused Committee's demand, and Committee brought the instant
action.
After discovery, Committee moved for summary judgment pursuant to NRCP 56, claiming
that NRS 608.150 was dispositive on the issue of Cheqer's liability. Cheqer moved that
Committee's motion be denied, and moved in turn that summary judgment be entered for
Cheqer on the grounds that Committee's alleged breach of the collective bargaining
agreement with Taylor relieved Cheqer of all obligations under the agreement. Alternatively,
Cheqer argued that Committee was estopped from enforcing any obligation under the
agreement due to its failure to give timely notice of Taylor's default on the fringe benefit
contributions.
Cheqer's motion for summary judgment was denied, and Committee was granted partial
summary judgment as to liability. A special master was appointed to determine the exact
amount owed to Committee, which was established to be $16,349.82. After moving to
confirm the master's report and for summary judgment, Committee also moved for an award
of attorney's fees. Judgment in the amount of $16,349.82 was entered, with costs. Committee,
however, was denied attorney's fees; in its cross-appeal, it challenges the district court's
denial of the motion for attorney's fees.
____________________

1
NRS 608.150 provides in pertinent part:
1. Every original contractor making or taking any contract in this state for the erection, construction,
alteration or repair of any building or structure, or other work, shall assume and be held liable for the
indebtedness for labor incurred by any subcontractor or any contractors acting under, by or for the
original contractor in performing any labor, construction or other work included in the subject of the
original contract, for labor, and for the requirements imposed by chapter 616 of NRS.
98 Nev. 609, 612 (1982) Cheqer, Inc. v. Painters & Decorators
CROSS MOTIONS FOR SUMMARY JUDGMENT
[Headnote 1]
Before turning to a discussion of the substantive issues presented in this appeal, we will
first address certain procedural questions which were raised in the course of oral argument. It
is initially noted that both Committee and Cheqer filed motions for summary judgment. This
court has previously taken the position that where both parties to an action file such cross
motions for summary judgment, they may in effect be held to have stipulated that there are no
genuine issues as to any material fact remaining for trial. In City of Las Vegas v. Cragin
Industries, 86 Nev. 933, 478 P.2d 585 (1970), we stated:
Because all the parties moved for summary judgment, the trial court was at liberty to
find that the parties had conceded that there remained no material question of fact and
that the case could be determined on a question of law. Although the trial court did not
specifically find that there remained no genuine issue of fact, the appellants, in their
motions for summary judgment, both alleged that there is no genuine issue as to any
material fact and they are now precluded from changing their positions upon this
appeal. [Citations omitted.]
(Emphasis added.)
This broad language arguably authorized the trial court's conclusion that both Cheqer and
Trustees had conceded there remained no genuine issues as to any material fact when they
filed their cross motions for summary judgment. It appears, however, that the language set
forth in Cragin is overly broad. A trial court confronted with cross motions for summary
judgment may be at liberty in most circumstances to determine that the parties have thereby
conceded no material issues of fact remain. This court, however, did not intend Cragin to
establish the proposition that the mere filing of cross motions for summary judgment
automatically relieves the trial court of its obligation of determining whether there actually
remains any genuine issue of fact for trial.
[Headnote 2]
The instant case provides an excellent example of a situation in which the mere filing of
cross motions for summary judgment did not indicate the parties were conceding there were
no material issues of fact remaining. Committee and Cheqer were basing their respective
motions for summary judgment on two entirely different theories of the case. The record
indicates that Committee's motion was premised on its belief that NRS 608.1S0 mandated it
recover the fringe benefits for work performed on Cheqer's project.
98 Nev. 609, 613 (1982) Cheqer, Inc. v. Painters & Decorators
608.150 mandated it recover the fringe benefits for work performed on Cheqer's project.
Cheqer's motion for summary judgment, on the other hand, was based on its contention that
Committee's breach of the collective bargaining agreement with Taylor relieved it of all
obligations under the agreement, and alternatively, that Committee was estopped from
enforcing any obligation under that agreement by its failure to give timely notice of Taylor's
failure to pay the benefits.
The parties were bringing their cross motions for summary judgment on two separate legal
theories, and relying on two separate sets of facts to support those theories. In such a
situation, a trial court is not relieved of its responsibility to examine the record to see if any
material issues of fact remain to be tried. If no genuine issues of fact exist, summary
judgment is appropriate. But if genuine issues of fact remain, the cause must go forward to
trial. See Bricklayers, Masons & Plasters [Plasterers] International Union of America v. Stuart
Plastering Company, Inc., 512 F.2d 1017 (5th Cir. 1975); Accord. Heyman v. Commerce and
Industry Insurance Co., 524 F.2d 1317 (2nd Cir. 1975); Schlytter v. Baker, 580 F.2d 848 (5th
Cir. 1978); Eby v. Reb Realty, Inc., 495 F.2d 646 (9th Cir. 1974).
[Headnote 3]
The preceding discussion is of more than academic interest in the instant case. The record
on appeal demonstrates there appear to be material questions of fact concerning Cheqer's
alternative ground for its motion for summary judgment, i.e., that Committee was estopped
from enforcing any obligation under the collective bargaining agreement by its failure to give
timely notice of Taylor's failure to pay the benefits. In an affidavit filed in support of Cheqer's
opposition to Committee's motion for summary judgment and Cheqer's counter motion for
summary judgment, Cheqer's Vice President stated he was aware of the terms of the
collective bargaining agreement between the Painters and Decorator's Union and Taylor, and
assumed Committee would immediately prevent union members from working for Taylor
should Taylor become delinquent on fringe benefit contributions. Further, Cheqer's Vice
President stated that had Cheqer been aware of Taylor's default, it would have required Taylor
to make good the payments or would have immediately terminated its contract with the
subcontractor. Finally, Cheqer's Vice President maintained Cheqer relied to its detriment on
the actions of Committee, inasmuch as Committee failed to advise Cheqer of Taylor's default
and failed to require Taylor to fulfill its obligations under the collective bargaining
agreement.
98 Nev. 609, 614 (1982) Cheqer, Inc. v. Painters & Decorators
THE EQUITABLE ESTOPPEL DEFENSE
Committee maintains, however, that summary judgment in this case is nonetheless
appropriate, because as a matter of law an estoppel defense is not available to Cheqer. We do
not feel the record as it now stands supports this contention.
[Headnote 4]
Equitable estoppel has been characterized as comprising four elements: (1) the party to be
estopped must be apprised of the true facts; (2) he must intend that his conduct shall be acted
upon, or must so act that the party asserting estoppel has the right to believe it was so
intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; (4) he
must have relied to his detriment on the conduct of the party to be estopped. Strong v. Santa
Cruz County, 15 Cal.3d 720, 726, 543 P.2d 264 (1975); City of Long Beach v. Mansell, 3
Cal.3d 462, 490, 476 P.2d 423 (1970). Further, this court has noted that silence can raise an
estoppel quite as effectively as can words. See e.g., Goldstein v. Hanna, 97 Nev. 559, 562,
635 P.2d 290 (1981).
Whether these elements are present, so that the doctrine of equitable estoppel should be
applied, depends upon the particular facts and circumstances of a given case. From the
limited record before us, however, we cannot say as a matter of law whether Committee's
allowing union members to continue to work for Taylor, when it knew Taylor was delinquent
in its fringe benefit contributions, gives rise to an estoppel defense. We note that the affidavit
of Cheqer's Vice President alleges Cheqer was ignorant of the true facts, and that Cheqer
relied to its detriment on Committee's permitting union members to continue to work for
Taylor. Further, it seems clear from the record that Committee, having continual dealings
with Taylor, was apprised of the fact that the subcontractor was delinquent on its fringe
benefit contributions. However, whether Committee intended its conduct in allowing union
members to continue to work for Taylor to be acted upon by Cheqer, or whether Cheqer had
the right to believe it was so intended, is not established by the record before us. Material
questions of fact therefore remain, and summary judgment was inappropriate.
Accordingly, the summary judgment against Cheqer, Inc., is reversed, and the case is
remanded.
Manoukian, Springer, Mowbray, and Steffen, JJ., concur.
____________
98 Nev. 615, 615 (1982) Barney's Club v. Chartrand
BARNEY'S CLUB, a Nevada Corporation, Appellant, v. ELIZABETH M. CHARTRAND,
Individually and as Trustee of the LOUIS H. CHARTRAND CHARITABLE REMAINDER
TRUST, Respondent.
No. 13168
December 30, 1982 655 P.2d 999
Appeal from order granting summary judgment, Ninth Judicial District Court, Douglas
County; Howard D. McKibben, Judge.
Agent filed suit seeking indemnity for certain income taxes allegedly incurred as result of
an agency relationship with principal. The district court found the principal liable for
reimbursement and indemnity and granted summary judgment in favor of agent. Appeal was
taken. The Supreme Court held that the issue of whether liability could be imposed on the
principal by theory of a constructive dividend, which would be inconsistent with the typical
debtor-creditor relationship arising from a principal's obligation to reimburse its agent, was a
material issue precluding summary judgment.
Reversed and remanded.
Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane, Reno, for Appellant.
McDonald, Carano, Wilson, Bergin, Bible, Frankovich & Hicks, and Valerie N. Strandell,
Reno, for Respondent.
Judgment.
In action by agent seeking indemnity for certain income taxes allegedly incurred as result of agency
relationship with principal, issue of whether tax liability could be imposed on basis of constructive
dividend, which would be inconsistent with typical debtor-creditor relationship arising from principal's
obligation to reimburse its agent, was material issue, precluding summary judgment.
OPINION
Per Curiam:
In this action respondent claimed a right to indemnity for certain income taxes allegedly
incurred as a result of an agency relationship with appellant as principal. The district court
found appellant liable for reimbursement and indemnity, and granted respondent summary
judgment.
On appeal appellant contends summary judgment was improper because material issues
of fact exist as to whether an implied contract of indemnity existed, as to whether an
implied duty of indemnification to an agent existed, and as to whether estoppel should
preclude denial of indemnification.
98 Nev. 615, 616 (1982) Barney's Club v. Chartrand
improper because material issues of fact exist as to whether an implied contract of indemnity
existed, as to whether an implied duty of indemnification to an agent existed, and as to
whether estoppel should preclude denial of indemnification.
It is clear that the district court found appellant liable on the basis of a principal's
obligation to indemnify his agent for expenses proximately caused by that agency.
Restatement, Agency, Second, 438(2)(b). It is undisputed that such a principal and agent
relationship existed. From the record before us, however, it is not clear whether the tax
liability at issue herein was proximately caused by that relationship.
The tax liability was, apparently, imposed on respondent on the basis of a constructive
dividend. Liability on such a basis is based upon payment to a shareholder in his or her
capacity as such. This liability is generally inconsistent with the typical debtor-creditor
relationship which would arise from a principal's obligation to reimburse its agent. 26 USC
301; Federal Income Taxation of Corporations & Shareholders, Bittker and Eustice, 7.05
(1979).
Summary judgment is proper only where it is clear what the truth is and there exists no
genuine issue as to any material fact. Berge v. Fredericks, 95 Nev. 183, 591 P.2d 246 (1979).
Since the question addressed above is material, and is not clearly answered in the record, we
conclude that the summary judgment must be reversed.
Reversed and remanded.
____________

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