Nevada Reports 1990 (106 Nev.) PDF

106 Nev.
1, 1 (1990)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 106
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106 Nev. 1, 1 (1990) Craigo v. Circus-Circus Enterprises
ROBERT CRAIGO, Appellant and Cross-Respondent, v. CIRCUS-CIRCUS
ENTERPRISES, INC., Respondent and Cross-Appellant.
No. 18515
January 23, 1990 786 P.2d 22
Appeal and cross-appeal from a judgment of the district court awarding punitive damages
to appellant. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Casino patron sued casino as result of incident in which he was assaulted and robbed in
casino parking lot. The district court awarded customer both compensatory and punitive
damages following bench trial. Casino appealed, and customer cross-appealed. The Supreme
Court, Steffen, J., held that punitive damages were not awardable where evidence did not
admit of any intent by casino to deliberately harm customer, even though there was evidence
proving disregard by management level personnel of safety measures reasonably necessary to
remedy hazardous conditions in parking garage and of corporate knowledge of possibility of
injuries to customers as result of failing to implement safety procedures.
Reversed in part; affirmed in part.
[Rehearing denied April 19, 1990]
Mowbray, J. dissented.
Lawrence J. Semenza and G. David Robertson, Reno, for Appellant and
Cross-Respondent.
Petersen & Petersen, Reno; Brown, Wells & Kravitz, Las Vegas, for Respondent and
Cross-Appellant.
1. Damages.
Critical difference between malice in fact and malice in law for punitive damages law is element of purposeful intent to injure,
which is always present in former; desire to successfully inflict injury on another is sine qua non of malice in fact, whereas injury to
another is usually an unintended, or in any event, undesired incident of conduct deemed malicious by implication. NRS 42.005.
2. Damages.
Punitive damages for malice in fact should be restricted to those extreme cases that convincingly demonstrate conduct motivated
by hatred and ill-will and deliberate intent to injure; malice in fact may not be shown through proof of willful disregard of rights of
others or conscious disregard of safety measures unless it can be shown that, in conjunction therewith, there was deliberate intention to
injure, vex, annoy or harass.
3. Corporations.
Punitive damages could not be awarded against casino to casino customer who was assaulted in casino's parking lot, even though
there was ample evidence of disregard by management level personnel of safety measures reasonably necessary to remedy hazardous
conditions in parking garage and of corporate knowledge of possibility of additional injury to patrons as result of failing to implement
adequate security measures, where there was no evidence of any intent by casino to deliberately harm its patrons.
OPINION
By the Court, Steffen, J.:
After being assaulted and robbed in the elevator of the Circus-Circus parking garage,
Robert Craigo filed an action seeking both compensatory and punitive damages against
Circus-Circus Enterprises, Inc. (Circus-Circus). The trial court, sitting without a jury,
awarded Craigo $45,000 in compensatory damages and $1,000,000 in punitive damages. The
punitive award was based upon a determination by the trial judge that Circus-Circus had
acted with malice in fact.
1
Circus-Circus agrees that the issue of focus on appeal is the
availability of a punitive damage award based upon the circumstances of this case.
__________

1
Craigo appears as appellant in this appeal to contest the reduction of the punitive damage award to
$1,000,000 after the trial judge had found that an award of $4,000,000 or more was justified. Because of our
ruling, this aspect of the appeal will not be discussed.
Circus-Circus agrees that the issue of focus on appeal is the availability of a punitive
damage award based upon the circumstances of this case. The key to this issue is the meaning
of the terms malice, express or implied set forth in Nevada's punitive damages statute (NRS
42.010).
2

This court has consistently declared that the malice contemplated by [the punitive
damages] section is malice in fact and that the phrase express or implied' has reference only
to the evidence by which malice is established. Nevada Credit Rating Bur. v. Williams, 88
Nev. 601, 609, 503 P.2d 9, 14 (1972). We noted in Nevada Credit Rating Bur. that Nevada's
statute on punitive damages is a verbatim copy of the California punitive damages statute
which was enacted in 1872 and has not been amended since 1905.
3
Id. In interpreting the
statutory expression malice, express or implied, we have adhered to the rule of statutory
interpretation that when a statute is derived from a sister state, it is presumedly adopted with
the construction given it by the highest court of the sister state. See, e.g., El Ranco, Inc. v.
New York Meat & Prov., 88 Nev. 111, 113, 493 P.2d 1318, 1320 (1972); Astorga v.
Ishimatsu, 77 Nev. 30, 32, 125
P.2d 83, 84 (1961); Harris v. Harris, 65 Nev. 342, 346, 196 P.2d 402, 404 (1948).
The California Supreme Court, in Davis v. Hearst, 116 P. 530, 538 (1911), observed that
courts have frequently used express malice to refer to malice in fact, and implied malice
to mean the fictive malice of the law. The Davis court then declared that:
It should be apparent that the malice, and the only malice, contemplated by section
3294 [California's equivalent of NRS 42.010] is malice in fact, and that the phrase
express or implied has reference only to the evidence by which that malice is
established; express malice thus meaning that the malice is established by express or
direct evidence going to prove the actual existence of the hatred and ill will; implied
malice referring to the indirect evidence from which the jury may infer the existence
of this malice in fact.
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2
NRS 42.010, in its original, pertinent part, reads as follows:
Cases in which exemplary and punitive damages may be awarded. In an action for the breach of an
obligation not arising from contract, where the defendant:
1. Has been guilty of oppression, fraud or malice, express or implied;
. . . .
the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way
of punishing the defendant.
(NRS 42.010 was renumbered and is now NRS 42.005.)

3
Cal. Civil Code 3294 was amended by 1980 Cal. Stat. 1242, p. 4217, to delete the phrase express or
implied. Additional amendments were adopted in 1987. See 1987 Cal. Stat. 1498, 5, 5-6.
which the jury may infer the existence of this malice in fact. We say this should be
evident from the reading of the section itself, under the maxim of noscitur a sociis. It is
in those cases where the defendant has been guilty of oppression or fraud, or of a malice
akin to oppression and fraud, that punitive damages may be awarded. But throughout
the whole history of the law, whatever may be the mode of proving the existence of
malice in fact, it is only upon some showing regarded by the law as adequate to
establish the presence of malice in fact (that is, the motive and willingness to vex,
harass, annoy, or injure) that punitive damages have ever been awarded. And this the
adjudications abundantly and without controversy establish.
Id. at 539 (emphasis added).
The California courts have continued to reaffirm the Davis holding regarding the meaning
of the phrase malice, express or implied.
4
Moreover, the courts in California from Davis to
the present have discussed the shifting contours of the term malice and its discrete variants
in the form of express malice, or malice in fact, and implied malice, or malice in law. The
latter form of malice is in tort law, a legal fiction. As expressed by the California Supreme
Court, malice in law is defined as that malice which the law presumes (either conclusively or
disputably) to exist upon the production of certain designated evidence, which malice may be
fictional and constructive merely, and which, arising as it usually does from what is
conceived to be the necessity of proof following a pleading, which in turn follows a
definition, is to be always distinguished from true malice or malice in fact. Davis v. Hearst,
116 P. at 538.
As noted above, this court has consistently recognized and perpetuated the judicial gloss
attributed to Davis since NRS 42.010 was enacted in this state in 1965. See, e.g., Jeep Corp.
v. Murray, 101 Nev. 640, 650, 708 P.2d 297, 304 (1985) (Malice [referred to in NRS
42.010] means malice in fact); Warmbrodt v. Blanchard, 100 Nev. 703, 709, 692 P.2d 1282,
1286 (1984) (The term malice as used in the statute means malice in fact and denotes
ill-will, or a desire to do harm for the mere satisfaction of doing it.) (quoting Bader v. Cerri,
96 Nev. 352, 359, 609 P.2d 314, 318-319 (1980)); Wickliffe v. Fletcher Jones of Las Vegas,
99 Nev. 353, 356, 661 P.2d 1295, 1297 (1983) (malice in fact supports punitive damages
instruction); Bader, 96 Nev. at 359, 609 P.2d at 318 (The term malice as used in the statute
means malice in fact and denotes ill will, or a desire to do harm for the mere satisfaction
of doing it.");
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4
See, e.g., Liu v. Interinsurance Exchange, 205 Cal.App.3d 968, 982, 252 Cal.Rptr. 767, 776 (1988).
used in the statute means malice in fact and denotes ill will, or a desire to do harm for the
mere satisfaction of doing it.); Kelly Broadcasting v. Sovereign Broadcast, 96 Nev. 188,
194, 606 P.2d 1089, 1093 (1980) (In order to award punitive damages, the trial court must
find substantial evidence of malice in fact.); Sanguinetti v. Strecker, 94 Nev. 200, 211-212,
577 P.2d 404, 411-412 (1978) (There is no reason to believe that the jury understood that the
malice it was to find [an evil intention to do harm, on the part of the defendant] was in any
manner different from this definition. As noted by this court, legal malice is a legal fiction; it
is that form of malice which the law presumes. . . .' [Citing Nevada Credit Rating Bur.].
Without an instruction informing them of it, a jury would have no reason to know of its
existence.); Leslie v. Jones Chemical Co., 92 Nev. 391, 394, 551 P.2d 234, 235 (1976)
(recognizing need to prove malice in fact); Village Development Co. v. Filice, 90 Nev. 305,
315, 526 P.2d 83, 89 (1974) ([T]he evidence does not to us appear quite sufficient to meet
our previously established requirement that more must be shown than malice in law, and that
there must be substantial evidence of malice in fact. [Citing Nevada Credit Rating Bur.]);
Caple v. Raynel Campers, Inc., 90 Nev. 341, 344, 526 P.2d 334, 336 (1974) (The malice
contemplated by NRS 42.010 is malice in fact and the phrase express or implied' has
reference only to the evidence by which malice is established. Malice in fact must be
established by the evidence if it is the ground relied upon to support and award of punitive
damages.); Nevada Cement Co. v. Lemler, 89 Nev. 447, 451, 514 P.2d 1180, 1182-83
(1973) (NRS 42.010 provides that punitive damages are recoverable where the defendant
has been guilty of . . . malice expressed [sic] or implied. That statute was first enacted in the
State of Nevada in 1965 and is verbatim with California Civil Code, Sec. 3294, which was
first enacted in 1872 and has not been amended since 1905. The cases decided in that
jurisdiction have interpreted that the malice contemplated by that section is malice in fact and
that the phrase express or implied' has reference only to the evidence by which malice is
established. [Cited cases omitted.] In [Nevada Credit Rating Bur.] we adopted the applicable
principles, as set out in 14 Cal.Jur.2d, Damages, 176.).
Unfortunately, neither the California courts nor this court have toed the mark in vigilant
conformity with the dictates of Davis concerning the species of malice essential to the
imposition of punitive damages. Even as the California courts continue to recognize Davis as
the authoritative definitional fountain of malice, the constraints heavily embedded in Davis
have expanded or evolved to include acts committed with "a conscious disregard of the
plaintiff's rights."
evolved to include acts committed with a conscious disregard of the plaintiff's rights. Liu v.
Interinsurance Exchange, 205 Cal.App.3d 968, 982, 252 Cal.Rptr. 767, 776 (Cal.Ct.App.
1988). See also Taylor v. Superior Ct. of Los Angeles Cty., 598 P.2d 854 (Cal. 1979); Neal v.
Farmers Ins. Exchange, 582 P.2d 980 (Cal. 1978); Silberg v. California Life Insurance
Company, 521 P.2d 1103 (Cal. 1974). In Grimshaw v. Ford Motor Co., 119 Cal.App.3d 757,
808, 174 Cal.Rptr. 348, 381-82 (1981), the court observed that the constraints of Davis have
yielded to subsequent decisional law that has advanced the common law pertaining to
punitive damages to the point where the term malice includes not only a malicious
intention to injure the specific person harmed, but conduct evincing a conscious disregard of
the probability that the actor's conduct will result in injury to others.' Moreover, the
Grimshaw court, in giving a dynamic attribute to the punitive damages statute, held that
interpreting the word malice as used in the statute, to encompass conduct evincing callous
and conscious disregard of public safety by those who manufacture and market mass
produced articles is consonant with and furthers the objective of punitive damages. Id., 119
Cal.App.3d at 810, 174 Cal.Rptr. at 382.
It would appear from our research of the California cases that although the courts continue
to pledge fealty to the Davis concept of malice in fact as the only form of malice that will
support an award of punitive damages, the courts have sub silentio overruled Davis on that
point and now base punitive awards on both malice in fact and implied malice, or malice in
law.
In Nevada, while consistently reaffirming the vitality of the Davis doctrine in our own
decisional law (see cases cited above), this court has, on occasion, also affirmed punitive
awards based upon malice of a nature foreign to our own rulings on the subject. Thus, in
Leslie v. Jones Chemical Co., 92 Nev. 391, 551 P.2d 234 (1976), we affirmed a punitive
award based upon a form of non-focused malice inferable from a disregard of known safety
procedures; punitive damages were also declared appropriate to punish wrongful conduct that
was willful, intentional, and done in reckless disregard of its possible results. Nevada
Cement Co. v. Lemler, 89 Nev. 447, 451-52, 514 P.2d 1180, 1183 (1973). Neither Leslie nor
Nevada Cement Co. presented facts reflecting ill-will and hatred that Davis considered to be
the very fabric from which malice in fact is woven. Indeed, Davis declared that a prerequisite
for punitive damages is the evil motivethe animus malusshown by malice in fact, or by
its allied malignant traits and characteristics evidenced by fraud or oppression. Davis, 116 P.
at 540. Davis also declared three elements essential to a finding of malice in fact: {1) the
commission of an unlawful act; {2) the commission of the act must be deliberate; and {3)
the act must be committed with the deliberate purpose of injuring another. Id. at 541.
elements essential to a finding of malice in fact: (1) the commission of an unlawful act; (2)
the commission of the act must be deliberate; and (3) the act must be committed with the
deliberate purpose of injuring another. Id. at 541.
The above analysis supports the proposition that NRS 42.010, as a verbatim copy of the
original California statute, provides a basis for punitive awards when one or more of the
birds of a feather, oppression, fraud or malice in fact, is shown to exist in a given action. In
each instance, there is a deliberate motive or intent and willingness to vex, harass, annoy or
injure the plaintiff. Id. at 539.
On the other hand, the species of malice known as implied malice or malice in law is
distinguished from [malice in fact] simply by absence of the need to look to the actor's
motivation and purpose. 2 J. Ghiardi & J. Kircher, Punitive Damages Law and Practices
sec. 19.19, p. 60 (1985). Thus, malice has been implied in law when a tort resulted from a
voluntary act, even if no harm was intended. Smith v. Wade, 461 U.S. 30, 39 n.8 (1983).
The fictive form of malice implied in law focuses on a wrongful act, consciously committed,
that results in injury whether intended or not. Therefore, malicious conduct implied by law
may be attributed to those who merely disregard known safety measures or disregard the
rights of others knowing that harm to others may occur as a result.
[Headnote 1]
It appears to us evident that a critical difference between malice in fact and malice in law
is the element of purposeful intent to injure always present in the former. Indeed, the desire to
successfully inflict injury on another is the sine qua non of malice in fact, whereas injury to
another is usually an unintended, or in any event, an undesired incident of conduct deemed
malicious by implication.
As previously observed, Grimshaw purports to advance the common law by, in effect,
engrafting the fictional malice implied in law onto the California punitive damages statute. In
doing so, the Grimshaw court determined that it was furthering the purposes and objectives of
punitive awards. Although we do not dispute such a premise by the Grimshaw court, we are
troubled at the thought of following suit by tacitly abandoning the continuing statutory integer
of true malice in fact. The truth of the matter is that such an advancement in the common
law would be tantamount to overruling our long and consistent (albeit not always
consistently applied) line of cases declaring the statutory meaning to include only malice in
fact. In Nevada, the effect of such a ruling would be to change both the meaning and scope of
statutory malice to include conduct inherently malicious {malice in fact) and conduct
malicious only because it is so deemed by law.
tory malice to include conduct inherently malicious (malice in fact) and conduct malicious
only because it is so deemed by law. This we are reluctant to do.
If we were to embrace implied malice as a separate basis for punitive awards we would be
forced to do so under one of two rationales, neither of which is acceptable. First, we could
overrule our lengthy precedents in tacit acknowledgement of error unworthy of continued
perpetuation. This we are unwilling to do because we remain unconvinced that Davis is
unsound and, in any event, as noted previously, the Davis gloss became part of NRS 42.010
upon its enactment in Nevada. Moreover, the Legislature has been unmoved to change the
Davis nuance over the many years that we have reaffirmed its vitality.
Second, the common law evolves by recognition of firmly entrenched social attitudes and
practices. The common law does not shape or establish public policy and mores; rather, it is
reflective of them. It remains consistent with public policy as expressed by NRS 42.010 to
financially punish persons who deliberately injure others. In today's climate, however, it is
difficult to perceive a unitary attitude or policy favoring imposition of punitive awards under
circumstances requiring the invocation of a fictional malice implied in law. Indeed, the
American College of Trial Lawyers, through a recent report approved by its Board of
Regents, concluded that punitive damages should be reserved to those extreme cases
reflecting cognitive behavior that is outrageous and indicative of bad motive or evil mind.
5
In short, the decibel level of strident choruses arising among varied and substantial segments
of our society calling for retrenchment in punitive awards scrambles efforts to distinguish the
clarion sounds upon which common law pronouncements are legitimately based.
[Headnote 2]
Great debate is currently prevalent concerning the social costs of punitive awards
expanding in scope, amount and volume. Under such conditions, we are constrained to view
the demands of judicial responsibility to be in strict accord with our prior rulings limiting
punitive awards based upon malice to mean only malice in fact.
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5
American College of Trial Lawyers, Report on Punitive Damages of The Committee on Special Problems
in the Administration of Justice, pp. 12-13, March 3, 1989. A majority of the Committee recognized the force of
opinions advocating the elimination of punitive damages because, inter alia, under the common law such
damages originated primarily as surrogates for non-economic damages (pain and suffering) which are generally
allowed now as part of compensatory damage awards and that punishment should be restricted to the criminal
justice system and specific legislative enactments. Id. at 8. Nevertheless, the Committee concluded that sanctions
in the form of punitive damages are still needed in carefully limited situations. Id. at 9, 10.
of judicial responsibility to be in strict accord with our prior rulings limiting punitive awards
based upon malice to mean only malice in fact. More specifically, it is this court's intention to
restrict awards of punitive damages attributable to malice in fact to those extreme cases that
convincingly demonstrate conduct motivated by hatred and ill-will and the deliberate intent to
injure. Difficulties arise when the judicial gaze is not transfixed on the indispensable element
of malice in fact, i.e., the evil motive. A defendant's conduct may have an evil or injurious
result, but no underlying evil motive to injure. It is the evil motive to injure that must be
shown directly or by inference as a predicate for a punitive award based upon malice. If the
judicial course remains tethered to that compass, punitive verdicts should be limited to those
actions that truly warrant state-imposed sanctions. Persons who willfully intend to injure are
deserving of the special monetary sanction that is designed to punish and deter. Others who,
by their conduct, cause injury are held accountable in the form of compensatory damages.
We disapprove our prior pronouncements that would indicate that malice in fact can be
shown by a willful disregard of the rights of others or a conscious disregard of safety
measures unless it can be shown that in connection therewith there was a deliberate intention
to injure, vex, annoy or harass. If the Legislature determines that the social benefits to be
derived from imposing punitive awards based upon implied malice exceed the social costs
thereof, we are confident appropriate supporting legislation will follow.
6
[Headnote 3]
[Headnote 3]
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6
The California Legislature made provision for punitive awards based upon implied malice when it
amended Civil Code section 3294 to include the following definition of malice: Malice' means conduct which
is intended by the defendant to cause injury to the plaintiff [malice in fact] or despicable conduct which is
carried on by the defendant with a willful and conscious disregard of the rights or safety of others [implied
malice].
We have no quarrel with our concurring colleague's exposition of the established differences between malice
in fact and implied malice in jurisdictions that recognize the two forms of malice as discrete grounds for an
award of punitive damages. Moreover, we acknowledge that sound reasons exist for imposing punitive awards in
situations involving no specific evil motive or intention to harm but rather a conscious disregard for the safety of
others. Perhaps a few years ago we could have discerned a pervasive public attitude supporting an abandonment
of our case precedents as an appropriate advancement in the common law tradition. But the Malice in
Wonderland referred to by our colleague bespeaks the type of present controversy concerning the place and
extent of punitive awards that eliminates the option of a principled resolution of the dispute under the guise of
acceptable judicial lawmaking according to a common law methodology.
Moreover, our colleague's attempt to validate his position by referring to the statutory language (use of the
disjunctive or in the phrase malice,
[Headnote 3]
We are constrained to observe that if this court had recognized malice in law as a basis for
proving malice under NRS 42.010, we would have felt compelled to affirm the punitive
award given Craigo by the trial judge. There is ample evidence in the record proving
disregard by management level personnel at Circus-Circus of safety measures reasonably
necessary to remedy hazardous conditions in its parking garage. The evidence would also
indicate corporate knowledge of the possibilityif not probabilityof additional injuries to
patrons as a result of failing to implement adequate security measures. However, we do not
perceive evidence of any intent by Circus-Circus to deliberately harm its patronsthe
invitees upon whose patronage and good will its continued existence depends. In fairness to
the trial judge, we likewise find no fault in his reasoning or his punitive award based upon
the equivocal stance of certain of our own prior rulings.7
__________
express or implied) seems to us both disingenuous and excessively belated given this court's long-standing and
consistent pronouncements to the contrary.
We believe that this court could not, with equanimity, embrace our colleague's preference without
forthrightly overruling our uniform declarations attributing only one form of malice to our statute. Even in the
act of reaching results supportive of our colleague's position in the Leslie and Nevada Cement cases, this court
continued to adhere to the single standard of malice in fact as the linchpin for a punitive award based upon
malice. In Leslie, we said: We here are dealing with a remittitur of punitive damages where the evidence
regarding the presence or absence of malice in fact on the part of the defendants is conflicting. . . . Realizing the
subjective nature of punitive damages . . . and the arguable conflict of evidence regarding malice in fact, we are
wholly unable to find an abuse of discretion by the trial judge. . . . 92 Nev. at 393-394, 551 P.2d at 235
(emphasis added).
In Nevada Cement, we said: The record supports a finding of malice in fact. . . . This conduct provided the
requisite malice in fact and warranted the trial judge in assessing punitive damages. 89 Nev. at 452, 514 P.2d at
1183 (emphasis ours).
It thus seems clear to us, that an adoption by this court of our colleague's plea for two discrete forms of
malice would demand the overruling of all of our precedents on the subject. And, as previously observed, were
we to do so, a true adherence to common law principles would still prevent us from judicially embracing our
colleague's view.
We are constrained to conclude that in the midst of raging controversy concerning the place and scope of
punitive awards in civil litigation, this court may not, for scholarly reasons or otherwise, so distort and pervert
common law prerogatives as to declare malice in law as reflective of established custom and public policy in
the State of Nevada. If indeed, the Legislature determines that the California statute permitting punitive awards
for despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights
or safety of others is worthy of adoption in Nevadaand it may very well bewe are confident the Legislature
will act accordingly. In the interim, we prefer to confine our prerogatives to what we perceive to be within
reasonable parameters of the common law, and leave the issue to the legislative laboratory where lively debate
will supply an enlightenment born of opposing views, conflicting social policies, and varying predicted
consequences.
we likewise find no fault in his reasoning or his punitive award based upon the equivocal
stance of certain of our own prior rulings.
7

For the reasons specified above, that part of the judgment awarding punitive damages is
reversed; in all other respects, the judgment below is affirmed.
8

Young, C. J., concurs.
Springer, J., concurring:
I agree that the record in this case does not support a finding of malice which would
support a punitive damage award. I strongly disagree, however, with the reasoning of the
plurality opinion which, incorrectly I think, would limit the Nevada statutory expression,
malice, express or implied, to cases of express malice only, that is to say, cases in which
the defendant is shown to have harbored a deliberate intention to injure, vex, annoy or
harass the plaintiff. Plurality Opinion at 9. It is clear to me that malice, express or implied
necessarily goes beyond the intentional injury by one person of another and that the statute
and our cases require a broader definition of malice than that offered by the plurality opinion.
Our statute refers to two kinds of malice, express malice and implied malice. Express
malice denotes the deliberate intention to harm someone. Implied malice is a malice of
unintended harm, a malice implied in law when wrongdoers, without intending specific harm,
act in an irresponsible manner knowing that harm to someone will probably follow.
__________

7
We are somewhat perplexed by our brother Springer's concluding view that his singular perception of the
status of Nevada law should be used as a guide by the trial courts. In our opinion, it is clear that Justice
Springer's interpretation of our case holdings is irreconcilable with the unequivocal language and import of those
holdings and may not logically be embraced as a guide or otherwise. Moreover, our brother's concluding
comments reflect a confusion of thought concerning the characteristics of the discrete forms of malice he wishes
to impose on our statute. When the good Justice expresses agreement with the proposition that punitive awards
should be restricted to cases reflecting cognitive behavior that is outrageous and indicative of bad motive or
evil mind (emphasis ours) he is describing but one form of malice, and that form is malice in fact. Indeed, in the
text of his concurring opinion, our colleague notes that [u]nlike express malice, implied malice does not require
that the defendant be motivated by ill will or intent to harm anyone.
Finally, we are much less convinced than our brother concerning the effect of the plurality opinion as legal
precedent. A quorum of three Justices has concurred in the judgment although one of the three has departed from
the reasoning of the other two. We are inclined to view the reasoning and holding of the plurality view as
binding unless and until overruled by three or more Justices of this court or an intervening act of the Legislature.

8
The Honorable Robert E. Rose, Justice, did not participate in the decision of this appeal.
cific harm, act in an irresponsible manner knowing that harm to someone will probably
follow. One of several Nevada case examples of implied malice supporting a punitive damage
award can be seen in the Nevada Cement case. In that case the defendant cement company
had no deliberate intention to injure anyone, it merely caused noxious materials to emanate
from its plant knowing that injury to those in the area would be the probable consequence of
its heedless actions. Nevada Cement Co. v. Lemler, 89 Nev. 447, 514 P.2d 1180 (1973). This
implied malice on the part of Nevada Cement Company was held by this court to support a
punitive damage judgment. Id. at 452, 514 P.2d at 1183.
Similarly, this court recognized the presence of implied malice in the Leslie case in which
plaintiffs were injured by escaping chlorine gas. Leslie v. Jones Chemical Co., 92 Nev. 391,
551 P.2d 234 (1976). We approved a punitive award absent even a hint of any intention to
injure the plaintiffs. Id. at 394, 551 P.2d at 235. Again in Filice we expressly recognized that
an unintended injury could still be malicious when harm was the necessary consequence of
a defendant's willful acts. Village Development Co. v. Filice, 90 Nev. 305, 315, 526 P.2d
83, 89 (1974). Given our case law and a statute providing for both express malice and implied
malice, it is not easy to understand how the plurality can reach the conclusion that there is no
such thing as implied malice in Nevada. I think I understand the source of the confusion and
believe that this area of law is in need of some clarification.
The United States Supreme Court has recognized that malice,' as used by courts and
lawyers in the last century, was a hopelessly versatile and ambiguous term, carrying a broad
spectrum of meanings . . . (especially when it was modified by terms such as actual' or
express,' . . .) Smith v. Wade, 461 U.S. 30, 39 n.8 (1983). The hopelessly versatile and
ambiguous term malice has indeed been assigned a broad spectrum of meaning in the
jurisprudence of this state and its sister state, California.
1
I hope to narrow this spectrum of
meaning and offer an intelligible meaning and definition of the statutory expression,
"malice," express or implied.
__________

1
The ambiguity often found in judicial attempts to define and apply the concepts of express malice and
implied malice is exhibited in both Nevada and California case law. My view, that the statutory expression
malice express or implied refers to two forms of malice, malice in fact and malice in law, is belied by the
language of Nevada Credit Rating Bureau which contains, ostensibly at least, language to the effect that there is
only one kind of malice, namely, malice in fact, and that the phrase express or implied refers not to two kinds
of malice but only to the evidence by which malice is established. Nevada Credit Rating Bur. v. Williams, 88
Nev. 601, 609, 503 P.2d 9, 14 (1972). The faulty conclusion that there is but one kind of malice, that is express
malice, sometimes called malice in fact, originated in a 1911 California case, Davis v. Hearst, 116 P. 530 (Cal.
1911). Davis was an intentional tort case involving only express malice, and it was decided
hope to narrow this spectrum of meaning and offer an intelligible meaning and definition of
the statutory expression, malice, express or implied.
__________
without reference to a statute, like ours, which specifies two kinds of malice, express or implied. Subsequently,
courts in both Nevada and California quoted Davis and ruled that there was only one form of malice, that
involving the specific intention to hurt someone. Although California courts frequently cited Davis, at the same
time they were recognizing a form of malice which involved unintended injury (implied malice) as one of two
predicates for awarding punitive damages. In 1941, the California Supreme Court, in dicta, stated that wanton
and reckless misconduct was sufficient to support punitive damages based on malice. Donnelly v. Southern
Pacific Co., 118 P.2d 465, 469 (Cal. 1941). In 1960, in Roth v. Shell Oil Co., 8 Cal.Rptr. 514, 517-18 (App.
1960), conscious disregard for the rights of others was recognized as malice. These cases were followed by a
series of rather confusing cases that again insisted that there was only the one kind of actual malice, yet
allowed recovery in situations in which there was clearly no actual intent to harm.
In 1965, Nevada adopted California's statute verbatim, together with its sometimes inconsistent and
confusing judicial gloss. The confusion was to some extent recognized and clarified by the California courts in
the case of G. D. Searle & Co. v. Superior Court, 122 Cal.Rptr. 218, 222-23 (App. 1975). Recognizing the
divergency in California law, the court said:
In order to test plaintiff's allegations as a charge of malice, it is necessary to observe the elements of the
malice which justifies an exemplary award. At this point one discovers a plethora of appellate
elucidations. California courts have indulged in a profusion of pejorative terms to describe malice. A
survey reveals several separate and somewhat divergent currents of California case law.
Searle pointed out that while some courts had repeated the Davis language about malice being limited to
intentional harm only and about malice in fact's being the only kind of cognizable malice, a number of appellate
decisions recognized varying forms of unintentional injury infliction as being sufficient to establish the animus
malus, or evil motive, required for punitive damages. Id. at 223-24.
The Searle court concluded that conscious disregard of safety [was] an appropriate description of the
animus malus which may justify an exemplary damage award when nondeliberate injury is alleged. Id. at 225
(emphasis in original). Citing Roth v. Shell Oil Co., the California Supreme Court also acknowledged that
conscious disregard of the plaintiff's rights would support a punitive damage award under the statute. Silberg v.
California Life Ins. Co., 521 P.2d 1103, 1110 (Cal. 1974). Thus, the California courts resolved the conflict
between the Davis requirement of malice in fact and the later cases which also allowed implied malice to support
punitive damages by allowing punitive damages to be based on conscious wrongdoing with probable but not
intended injurious consequences. Id.
Nevada's experience is parallel to California's. In its cases Nevada had cited Davis and Nevada Credit Rating
Bureau on the requirement of actual malice and then approved punitive awards that were clearly based on
unintended injury. While paying lip service to the requirement that malice in factintent to harmmust be
found, this court has regularly allowed recovery for unintended harm in the form of reckless disregard for the
rights of others. See e.g., Leslie v. Jones Chemical Co., 92 Nev. 391, 551 P.2d 234 (1976) (stating that malice
could be inferred from a disregard of known
Malice, Express or Implied
Former NRS 42.010 (now NRS 42.005) allows punitive damages to be awarded in cases
wherein a defendant is guilty of malice, express or implied. (My emphasis.)
Express malice, sometimes called [m]alice in fact, or actual malice, denotes ill will on the
part of the defendant, or his desire to do harm for the mere satisfaction of doing it. Nevada
Credit Rating Bur. v. Williams, 88 Nev. 601, 610, 503 P.2d 9, 14 (1972). Express malice,
then, may be seen as a malice of intended harm, the kind of malice which the plurality
believes is the only kind of malice.
Implied malice is malice of unintended harm
2
; it is distinguished from [express malice]
simply by absence of the need to look to the actor's motivation and purpose. 2 J. Ghiardi &
J.
__________
safety procedures); Village Development Co. v. Filice, 90 Nev. 305, 526 P.2d 83 (1974) (stating that malice
could be found if the act was willful and the damage a necessary result); Nevada Cement Co. v. Lemler, 89 Nev.
447, 514 P.2d 1180 (1973) (citing Toole v. Richardson-Merrell, Inc., 60 Cal.Rptr. 398 (App. 1967), and holding
that wanton disregard for the rights of others amounted to legal malice).

2
In defining the malice of unintended harm the trial court used the words when a defendant consciously and
deliberately disregards known safety measures in reckless disregard of possible results. These words are taken
directly from Leslie v. Jones Chemical Co., 92 Nev. 391, 393, 551 P.2d 234, 235 (1976). I would be leery of
perpetuating the use of the term reckless because it is ambiguous and easily confused with gross negligence
and other terms that relate to the risk inherent in behavior rather than to the mental state of the actor. Sometimes
reckless is defined in terms of being merely careless or heedless; sometimes it refers to the mental state of
indifference to[] consequences, under circumstances involving danger to life or safety to others, although no
harm was intended. See Black's Law Dictionary 1142 (5th ed. 1979). Likewise, indifference does not convey
the conscious or willful excessive risktaking which is at the heart of implied malice. Under a statute, such as
Nevada's, which states malice as a ground for awarding punitive damages, recklessness as a form of excessive
negligence, and indifference, insofar as the word may mean mere carelessness, do not reach the level of
punishable culpability contemplated by the term malice. The report of the American College of Trial Lawyers,
mentioned in the text, would not permit punitive awards where the element of consciousness is sufficiently
lacking, such as in the case of negligent, or even grossly negligent, conduct. American College of Trial
Lawyers, Report on Punitive Damages of the Committee on Special Problems in the Administration of Justice,
at 10 (March 3, 1989). I agree with this, as I agree also that the standard for culpability for punitive awards
should require a conscious and egregious invasion of the rights of others such as intentional torts or torts
based on lesser degrees of cognition, such as where the defendant acts in a willful or wrongful manner. Id. The
necessary degree of cognition for implied malice is the knowledge or consciousness of danger. A person who
is negligent fails to perceive danger; a person guilty of implied malice perceives the danger but willfully
disregards it: I know that someone will probably get hurt, but I am going to do it anyway.
Kircher, Punitive Damages Law and Practice 19.19 at 60 (1985). Unlike express malice,
implied malice does not require that the defendant be motivated by ill will or intent to harm
anyone. Malice has been implied in law whenever a tort resulted from a voluntary act, even
if no harm was intended. Smith v. Wade, 461 U.S. at 39 n.8 (my emphasis). For example, a
person may do something knowing it to be dangerous and realize at the time that someone
will probably get hurt, yet have no real intention to harm anyone. Such a person is guilty of
implied malice. Where a person consciously acts in a dangerous manner, knowing that the
probable result of that action will be injury to others, inquiry into actual motive or intent
becomes unnecessary because the law will infer from such willful misconduct the legal
equivalent' of actual malice. Ghiardi, id.
3

In Village Development Co. v. Filice, 90 Nev. 305, 315, 526 P.2d 83, 89 (1974), we
accurately noted that in previous cases we had sustained awards of punitive damages where
evidence showed the wrong was willful, and the damage either intended or a necessary
consequence of the willful wrongdoing. (My emphasis.) This court's use of the disjunctive in
Filice shows rather clearly Nevada's acceptance of both a malice of intended harm (express
malice) and a malice of conscious wrongdoing but of unintended harm (implied malice).
The language of Filice embraces both kinds of malice. If the defendant intends to harm,
the defendant is guilty of express malice. If the defendant does not intend to harm anyone, yet
knows that the probable or necessary consequences of his or her acts will be harm to some
unidentified victim, than the defendant is guilty of implied malice. Otherwise put, when the
defendant knows that injury will probably result from his or her actions and, consciously
disregarding the probability of injury to others, goes ahead wrongfully to commit the
dangerous acts, such a defendant is guilty of implied malice and is subject to being
punished by punitive damages.
__________

3
The universally accepted rationales for punitive and exemplary damages are, as the words denote, to punish
the offender for wrongful acts and to set an example, that is, to deter others. Punishment by way of civil fines,
punitive damages, is not to be levied lightly or indiscriminately. Malice in punitive damage cases is analogous to
malice aforethought in the criminal law of homicide. In the law of homicide, express malice aforethought means
an intention to kill. Implied malice aforethought, on the other hand, does not require actual ill will or intention to
kill and signifies a general malignancy, an abandoned and malignant heart that the law infers from the manner
in which the homicide was committed. Thus, when a person charged with murder has willfully committed an act
which by its nature is likely to result in death or serious bodily harm, the law will furnish the necessary element
of malice aforethought. It will imply the mental requisite for murder by implying malice aforethought from the
culpable conduct of the accused. Implied malice in tort law is comparable to implied malice aforethought in the
law of homicide. Implied malice in tort law is also a fictive mental state implied in law from the conscious
wrongdoing of the tortfeasor, irrespective of actual ill will or the presence of an intention to harm someone.
actions and, consciously disregarding the probability of injury to others, goes ahead
wrongfully to commit the dangerous acts, such a defendant is guilty of implied malice and is
subject to being punished by punitive damages. Implied malice is a culpable state of mind
that is manifested by a person's conscious taking of excessive risks at the expense of injury to
others; so, when one consciously decides to act in a dangerous manner and that decision is
made despite the knowledge that the action will probably result in injury to others, such a
decision, such a conscious disregard
4
of the safety and personal integrity of other persons,
constitutes malice, malice implied in law.
Examples of implied malice are easy to come by. A useful example was given by Senator
Cliff Young during legislative hearings on punitive damages as now codified in NRS 42.005
(formerly NRS 42.010). Apparently recognizing the culpability of unacceptable, deliberate
risktaking and of exposing others to danger even if no harm was specifically intended,
Senator Young gave this illustration:
Suppose a big drug company puts out a certain drug and they know there is something
wrong with it, but they still put forward a big campaign for it. Then you can sue for
punitive damages.
Hearings on S.B. 198 Before the Assembly Judiciary Comm., (1967) (statement of Senator
Cliff Young, sponsor of S.B. 198) (my emphasis). Senator Young was, at that time, at least,
of the opinion: An irresponsible attitude toward an individual or a group as a whole is a
ground for punitive damages. Id. Product liability cases such as the hypothetical case
suggested by Senator Young are classic instances of the need to punish those who injure
others in an irresponsible manner but without having any actual malice or intention to harm
any given person.
5
The rule proposed by the plurality would eliminate punitive damage
awards in the type of drug case exampled by Senator Young during legislative
deliberations.
__________

4
The essence of the culpable mental state called implied malice is the decision to go ahead knowingly with
an activity that one knows will probably end up in an injury to another person. To say that one acts in a manner
that he or she knows will probably hurt someone is the same as saying that such person is consciously
disregarding the rights or safety of others. Conscious disregard is, then, another way of referring to an
intentional risktaking which one knows will probably result in injury.

5
An interesting statutory analogue to the implied malice discussed in this opinion is found in former NRS
42.010(2), wherein punitive damages were allowed in cases in which a defendant wrongfully, that is, caused an
injury by the operation of a motor vehicle in violation of NRS 484.379 or 484.3795 after willfully consuming or
using alcohol or another substance, knowing that he would thereafter operate the motor vehicle. (My emphasis).
In such a case, irrespective of any actual malice or ill will, a defendant may be held for unintended harmful
consequences resulting from this kind of wrongful conduct. This statutory species of implied malice can be taken
as legislative approval of a kind of malice that does not require a specific intent to injure.
by the plurality would eliminate punitive damage awards in the type of drug case exampled
by Senator Young during legislative deliberations.
Assuming that malice express or implied is not restricted to the deliberate injury of an
intended victim, I think it is necessary to go on to examine how the type of cognition called
malice can be applied to an impersonal corporation thus making a corporation liable in
punitive damages for its animus malus.
Corporate Malice
Malice is essentially a mental concept, a cognitive process; and definitionally we run into
trouble when we start talking about malice's being exhibited by a corporate entity. Malice as a
state of mind must in some way be accommodated to the corporate mentality if
corporations are, indeed, to be found guilty of malice, express or implied. It is settled law,
however, that corporations can be guilty of malice and can be mulcted in punitive damages
for such malice. [T]o render a corporation liable in exemplary damages, the intent or malice
necessary to warrant the imposition of such damages must be brought home to it. 2 S.
Speiser, C. Krause & A. Gans, The American Law of Torts, 8.51 (1985) (my emphasis).
Punitive damage liability of a corporation for malice may be brought home to a
corporation directly or vicariously. By directly I mean malice and ill will that issues forth
from the corporation itself. For example, a corporate board could decide that the corporation
was going to inflict wrongful or unwarranted injury on a competitor and thereby render the
corporation liable for punitive damages by reason of such express corporate malice. A
corporation could also be guilty directly by reason of the implied malice in a case where
corporate management orders corporate actions, knowing that the probable consequences of
the corporate actions would be injury to others.
A good example of implied malice's being directly attributed to or brought home to a
corporation can be found in the previously mentioned case of Nevada Cement Co. v. Lemler,
89 Nev. 447, 514 P.2d 1180 (1973), in which the corporation knew of the probable harmful
results of its wrongful acts. The Nevada Cement Company knew from the outset that a large
volume of dust was being discharged wrongfully into populated areas by one of its cement
kilns. 89 Nev. at 452, 514 P.2d at 1183 (my emphasis). After becoming aware of the harmful
effects of the emissions from its kiln, the company intentionally operated the kiln anyway.
The Nevada Cement Company was directly guilty of implied malice, even though this court
erroneously labeled the conduct malice in fact. Id. at 452, 514 P.2d at 1183.
Another excellent example of malicious misconduct's having been brought home
directly to the corporation itself is found in the California case of Grimshaw v. Ford Motor
Co., 174 Cal.Rptr. 348 (App. 1981). Although the current California punitive damage statute
does not, as in Nevada, refer to civil malice in terms of being either express or implied,
the California statute, Civil Code section 3294, does define two different species of malice:
one is conduct which is intended by the defendant to cause injury to the plaintiff (express
malice); and the other is where malice is present not because the defendant has the intent to
cause injury to someone but, rather, because the defendant has acted with a willful and
conscious disregard of the rights or safety of others (implied malice). Cal. Civ. Code
3294(c)(1) (West Supp. 1990). In Grimshaw, Ford Motor Company was held liable for
punitive damages by reason of Ford's corporate decision to continue to install dangerous fuel
tanks on its Pinto automobiles. The evidence was that Ford management could have corrected
the hazardous design defects at minimal cost but made a knowing corporate decision to defer
such correction, the decision being based on a cost-benefit analysis which balanced human
life and safety against corporate profit. This kind of corporate decision-making was held to
have constituted conscious disregard' of the probability of injury to members of the
consuming public. Grimshaw, 174 Cal.Rptr. at 384 (my emphasis). It was clear that
corporate management knew that the Pinto's fuel tank and rear structure would expose
consumers to serious injury or death and that Ford management could have corrected the
hazardous design defects at minimal cost but decided not to on the basis of a cost-benefit
analysis balancing human lives and limbs against corporate profits. Id. (my emphasis). Such
willful wrongdoing on the part of the Ford corporation, whose management knew of the
injuries that would probably result from the corporate decision, is a very lucid example of
what I would call direct implied malice.
6
Direct implied malice would not, on the other
hand, be present in the absence of some "conscious" wrongdoing that can be attributed to
the corporation itself.
__________

6
In connection with the historical footnote above, note 1, I note that in the Grimshaw opinion the court
rejected Ford's contention that it did not have fair warning of punitive damage liability based on unintentional
wrongdoing stating that such an argument ignores the long line of decisions in [California] beginning with
Donnelly v. Southern Pacific Co. (1941), [cite omitted], holding that punitive damages are recoverable in a
nondeliberate or unintentional tort where the defendant's conduct constitutes a conscious disregard of the
probability of injury to others. Grimshaw, 174 Cal.Rptr. at 383 (citations omitted). The Grimshaw court made
this pronouncement on the history of punitive damage law relying on prior decisional law. Id.
The California Legislature codified the judicial interpretation of the types of malice required for punitive
damage liability when it amended Civil Code section 3294 to include the following definition of malice:
Malice' means conduct which is intended by the defendant to cause injury to the plaintiff or
Direct implied malice would not, on the other hand, be present in the absence of some
conscious wrongdoing that can be attributed to the corporation itself. For example, in Jeep
Corp. v. Murray, 101 Nev. 640, 651, 708 P.2d 297, 304 (1985), malice was held to be
missing in a product liability case involving design defects in the Jeep CJ-5. Unlike the
Grimshaw case, the proof did not show corporate knowledge of a dangerous tendency to
roll nor did it show any conscious corporate action which knowingly subjected Jeep
operators to probable injury as was the case in Grimshaw. Id. Because the Jeep Corporation
had not acted consciously or deliberately, and hence maliciously, this court affirmed the trial
court's refusal to give punitive damage instructions. Id.
In Nevada Cement, Murray and Grimshaw the malice in question is that of the corporate
entity itself. It is the institutional mentality of the corporation (Grimshaw, 174 Cal. Rptr. at
384) that is guilty of this kind of implied malice and which can be blamed for injuries to
others even though the corporation had no plan to injure any specific person. It is the
corporate entity itself that is acting maliciously in these cases. In Nevada Cement and
Grimshaw the corporations, as corporations, acted wrongfully in their corporate guise. Their
acts were not intended to do particular harm in the sense that the infliction of injury was not
the corporation's conscious object; rather the corporate decisions were known by corporate
management to be likely to produce injury to others. Such corporations are guilty of direct
implied malice.
A corporation may also be derivatively liable for malice, express or implied. A
management employee may in the course and scope of managerial operations intend to injure
someone. The corporation would then be held vicariously liable for the express malice of its
managing agent. An example of indirect or vicarious corporate liability for punitive damages
can be found in the case Cerminara v. California Hotel and Casino, 104 Nev. 372, 760 P.2d
108 (1988). In Cerminara we recognized the right of an injured plaintiff to recover punitive
damages against a corporation where there is an act of malice on the part of any officer,
director or managing agent of the corporation. Id. at 378, 760 P.2d at 111.
I would hold that a corporation could also be liable vicariously for the implied malice of
its "officer, director or managing agent," absent the kind of direct corporate action found
in Nevada Cement and Grimshaw.
__________
despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or
safety of others. Cal. Civ. Code 3294(c)(1) (West Supp. 1990). This amendment did not change the malice
required for punitive damages but rather made clear, as had decisional law, that implied malice would support an
award of punitive damages. See Krusi v. Bear, Stearns & Co., 192 Cal.Rptr. 793, 802 (App. 1983).
for the implied malice of its officer, director or managing agent, absent the kind of direct
corporate action found in Nevada Cement and Grimshaw. For example, if the general
manager of Circus-Circus actually had known that a criminal assault was the probable
consequence of maintaining the security system then in place, yet notwithstanding such
knowledge continued at the same dangerous level of security, I would say that this corporate
agent could be found guilty of implied malice and that such malice could be imputed to the
corporation.
In the case at hand there appears to be no direct malice on the part of Circus-Circus
Corporation. There is no direct corporate action, as there was in Nevada Cement and
Grimshaw, which was either intended to harm or which showed an irresponsible, conscious
disregard for the safety of others.
If corporate malice is to be found in this case, it must be derivative in nature, derived
vicariously from the malicious acts of the corporation's officers, directors or managing agents.
Since there is no evidence that any agent of the Circus-Circus Corporation intended to injure
Craigo, the only possible malice than can be attributed to the Circus-Circus Corporation is
implied malice on the part of a managing agent of the corporation. I now consider the
question of whether any agent of the Circus-Circus Corporation has been guilty of implied
malice that can be imputed to Circus-Circus.
Malice in Wonderland
The plurality is constrained to observe that if this court had recognized malice in law
(implied malice) as a basis for proving malice under NRS 42.010 it would be compelled to
affirm the punitive award because there is ample evidence in the record proving disregard by
management level personnel at Circus-Circus of safety measures reasonably necessary to
remedy hazardous conditions in its parking garage. I, of course, agree with the plurality
opinion that there is ample evidence that management failed properly to regard reasonably
necessary safety measures to remedy hazardous conditions in the garage. This failure to use
reasonable care, this failure to remedy hazardous conditions, is called negligence. The trial
court awarded $45,000 as compensation for the injuries suffered by reason of this negligence.
I have no quarrel at all with Craigo's being compensated for his injuries. What I quarrel with
is punishing Circus-Circus for malicious misconduct in what is essentially a negligence,
maybe even a gross negligence, case.
Although there is evidence in this case that the general manager was made aware of
reports of criminal activity in the parking garage (mostly vandalism and petty theft), and
although, as charged by Craigo, management took "no steps to remedy the situation," I
see this kind of a failure to attend properly to duty as negligence, not malice.
charged by Craigo, management took no steps to remedy the situation, I see this kind of a
failure to attend properly to duty as negligence, not malice. No officer, director or managing
agent can be seen as having engaged in the kind of conscious wrongdoing which constitutes
malice, express or implied.
There is some focus in this case on the general manager as the source of punitive damage
liability. The general manager did have notice of an array of petty crime in the parking garage
area and probably had a duty to do something about security in that area. This is a far cry,
however, from saying that the manager consciously disregarded a known dangerthat he
knew a physical assault in the garage was imminent and nevertheless acted (or failed to act)
in a manner that he knew would probably result in physical injury by criminal assault.
Craigo's counsel argued that malice was present because management recklessly
disregarded known safety measures. Those safety measures included increasing the number
of security officers and installing electronic surveillance devices. If we were to accept the
assumption that safety measures of this kind are generally known to increase the level of
security, this is not to say that failing to increase safety measures amounts to anything more
than failing to exercise due care. If the general manager knew that security could be improved
by increasing the number of security personnel or by installing electronic devices, this does
not mean that he knew that in the absence of increased security a criminal assault such as
occurred in this case was probably going to happen. Absent the second-mentioned kind of
knowledge, knowledge that certain decisions would probably result in injury, there can be no
implied malice as I have described it. As I have indicated, the manager may be seen to have
been reckless or to have exhibited unconscionable irresponsibility, Filice, 90 Nev. at 315,
526 P.2d at 89, in failing to attend to known safety measures, but his is not malice. No
agent of Circus-Circus can be said to have been aware or conscious of the probability that a
criminal assault was going to be the probable or necessary consequence of any management
decision or decisions in this regard. I would absolve Circus-Circus from punitive damage
liability for this reason.
In today's society one never knows when or where a murder, a robbery, or a mugging is
going to occur. It is hard to conceive of a specific decision that the corporation itself or
individuals in management positions could have made that would have prevented crimes
from occurring in its parking garage, or any place else. There is no evidence that
Circus-Circus, directly or vicariously, made a deliberately wrongful decision, the necessary or
probable result of which would have been the robbery and battery of Craigo or other patrons.
The type of punishment-deserving conduct contemplated by the term malice is not
present under the facts of this case; and no malice has been brought home to the
Circus-Circus Corporation. 2 S. Speiser, supra.
Conclusion
Since [t]hree justices shall constitute a quorum for the transaction of business, NRS
2.140, there is, with the filing of this opinion, no binding ruling on what really means
malice, express or implied in this state.
7
I have presented a proposed rule for defining and
applying the statutory expression, malice, express or implied, for the purpose of
determining liability for punitive damages. The rule that I propose is, in my opinion,
consistent with both the statute and our cases. I hope that the rule which I offer will be of
some guidance to the trial courts until such time as a majority of this court or the legislature
expresses itself on the subject. I consider my suggested application of the concept of implied
malice to be quite guarded and very much in harmony with the cautious position of the
American College of Trial Lawyers which is cited in the plurality opinion and in my footnote
2. I agree particularly with that portion of the College of Trial Lawyers report which
recommends that punitive damages be reserved to those extreme cases reflecting cognitive
behavior that is outrageous and indicative of bad motive or evil mind. Plurality Opinion at 8
and at 8 n.5. Certainly knowingly installing dangerous automobile gas tanks, knowingly
purveying dangerous medicines or knowingly poisoning the atmosphere would be cognitive
behavior that is indicative of bad motive and evil mind. The worrisome side of the plurality
opinion is that under it this kind of outrageous cognitive behavior would go unpunished by
punitive damages. If the manager had made a conscious decision not to increase security even
if he knew that this would probably result in criminal assaults on patrons, then he and
Circus-Circus should be liable for punitive damages. This is not the case, but if it where, I
think that punitive damages would be in order.
Mowbray, J., dissenting:
Respectfully, I dissent.
Craigo while a guest in the Circus-Circus casino-hotel was criminally assaulted and
robbed. He sued seeking compensatory and punitive damages.
__________

7
See Forrester v. Southern Pacific Co., 36 Nev. 247, 281 (1913). As Earle, J., did not participate in the
decision in the Quigley case, any statements in the opinion of Hawley, C. J., and Beatty, J., in which both did not
concur, are not binding as law because lacking the concurrence of a majority of the court.
and punitive damages. The case was tried before the court sitting without a jury. The district
judge as the trier of fact found in Craigo's favor and awarded him both compensatory and
punitive damages. Circus-Circus seeks reversal of the punitive damage award. I would affirm
the award. The evidence in this record is substantial. It adequately supports the decision of the
fact finder, the district judge.
On appeal, Circus-Circus suggests that the award of punitive damages in the instant case
was error. I do not agree. Craigo as a guest in the casino-hotel had a right to be treated as such
and not to be criminally assaulted and robbed. Circus-Circus had a duty to secure the safety
and security of its guests who are entitled to nothing less. In my opinion, Circus-Circus
should have taken the necessary steps to eradicate the criminal element that hide and prey in
the parking area, halls and elevators of its premises for the purpose of criminally assaulting
and robbing the unsuspecting guests who patronize its place of business. This, as I see it, is
the bottom line and real predicate for the award by the district court of punitive damages
which I would affirm.
____________
106 Nev. 23, 23 (1990) Neal v. State
MARVIN CLYDE NEAL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19318
February 20, 1990 787 P.2d 764
Appeal from a judgment of conviction for embezzlement. Second Judicial District Court,
Washoe County; Roy L. Torvinen, Judge.
Defendant was convicted of embezzlement. Judgment was entered in the district court.
Defendant appealed. The Supreme Court held that prosecution committed reversible error by
questioning defendant regarding his post-Miranda silence, and by mentioning point again in
closing argument.
Reversed and remanded.
David Parraguirre, Public Defender, and Jane McKenna, Deputy Public Defender,
Washoe County, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Gary H.
Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
106 Nev. 23, 24 (1990) Neal v. State
Criminal Law.
Prosecution committed reversible error in embezzlement case by repeatedly asking defendant questions emphasizing that
defendant had remained silent after receiving his Miranda warning, and making additional references to silence during closing
argument; defense was based on alleged robbery to which defendant was only witness, making his credibility key issue in case, and it
could not be said beyond reasonable doubt that jury would have reached the same conclusion but for such remarks. U.S.C.A.Const.
Amend. 14.
OPINION
Per Curiam:
After proceeding in proper person at his jury trial, appellant Marvin Clyde Neal was found
guilty of embezzlement. NRS 205.300. After reviewing Neal's numerous assignments of
error, we conclude that the prosecutor improperly commented at trial on his post-arrest,
post-Miranda silence. We also hold that the repetitiveness of the prosecutorial misconduct so
prejudiced Neal's defense as to require reversal of his conviction and a new trial.
Neal was charged with embezzling funds from a 7-11 convenience store. At trial, Neal
testified that he had been robbed and denied any wrongdoing. As the sole witness to the
alleged robbery, Neal's credibility was crucial to his defense. On cross-examination, the
following exchange took place:
PROSECUTOR:
Did you ever relate to [your parole] officer any of what you've testified to today in
this courtroom?
NEAL:
No, I did not.
. . . .
PROSECUTOR:
. . . at any time did you tell anyone, Detective Yaryan, Detective Oxhorn, Hunter,
Mecham, anyone what happened?
NEAL:
At that time when the forty-eight hours were up, I was under arrest.
1
No, I did not
tell any officer anything.
. . . .
PROSECUTOR:
Did you ever tell anyone in law enforcement what you told this jury? NEAL:
NEAL:
__________

1
Neal testified that after the robbers left, they instructed him not to notify the police or any authorities for
forty-eight hours.
106 Nev. 23, 25 (1990) Neal v. State
NEAL:
No, I did not.
PROSECUTOR:
You were in custody?
NEAL:
Yes.
PROSECUTOR:
Your family potentially was at risk?
NEAL:
Yes.
PROSECUTOR:
And you did not tell anyone in law enforcement who had the ability to do something;
is that correct?
NEAL:
That is correct.
In his closing argument, the prosecutor again attacked Neal's credibility by referring to his
post-arrest, post-Miranda silence and stating:
And the facts are that when he was detained on the 12th of April he didn't tell law
enforcement one word of that story.
. . . .
Well, the police contacted him within forty-eight hours, and if [the robbers] are
watching him like he says and if he is as con-wise as they say, then he has got to know
that those family members are at risk.
Does he tell anyone? Does he tell anyone? No. He tells the attorneys later as he
begins to work on his story, . . . .
The prosecution is forbidden at trial to comment upon a defendant's election to remain
silent following his arrest and after being advised of his rights as required by Miranda v.
Arizona, 384 U.S. 436 (1966). See Doyle v. Ohio, 426 U.S. 610 (1976). This court has
repeatedly condemned such prosecutorial misconduct
2
, and noted the enormous expense
borne by the state each time such misconduct necessitates a retrial. McGuire v. State, 100
Nev. 153, 155, 677 P.2d 1060, 1062 (1984). Unfortunately, as this case illustrates, the
problem continues.
We cannot conclude that the error in this case was harmless beyond a reasonable doubt.
Neal's credibility was critical to his defense, the prosecutor's improper comments
__________

2
See, e.g., Mahar v. State, 102 Nev. 488, 489-90, 728 P.2d 439, 440-41 (1986); McGee v. State, 102 Nev.
458, 461, 725 P.2d 1215, 1217 (1986); Aesoph v. State, 102 Nev. 316, 321-22, 721 P.2d 379, 382-83 (1986);
McGuire v. State, 100 Nev. 153, 157, 677 P.2d 1060, 1063 (1984); Bernier v. State, 96 Nev. 670, 671-72, 614
P.2d 1079, 1080 (1980); and Vipperman v. State, 92 Nev. 213, 214-16, 547 P.2d 682, 683-84 (1976).
106 Nev. 23, 26 (1990) Neal v. State
defense, the prosecutor's improper comments deliberate and repetitious. Absent those
comments, it is not clear that the jury would have reached the same conclusion. Thus, we are
compelled to reverse Mr. Neal's conviction and to order a new trial. See Mahar, 102 Nev.
488, 490, 728 P.2d 439, 441 (1986); Chapman v. California, 386 U.S. 18, 24 (1967).
Because we hold that a reversal and retrial are required due to the prosecutor's improper
questions and comments, we need not reach Neal's remaining contentions. Accordingly, we
reverse Neal's conviction of embezzlement and remand the case to the district court for a new
trial.
____________
106 Nev. 26, 26 (1990) Murphy v. F.D.I.C.
THOMAS M. MURPHY, Appellant, v. FEDERAL DEPOSIT INSURANCE
CORPORATION, Receiver/Liquidator of Mineral Bank of Nevada, a Nevada Banking
Corporation, Respondent.
No. 19662
February 20, 1990 787 P.2d 370
Appeal from a money judgment awarded following a jury trial. Eighth Judicial District
Court, Clark County; Addeliar D. Guy, Judge.
Federal Deposit Insurance Corporation (FDIC) obtained money judgment against
guarantor of note following jury trial before the district court. Guarantor appealed. The
Supreme Court held that: (1) guarantor signed demand note in representative capacity and not
as maker; (2) FDIC was properly permitted to proceed against guarantor for deficiency
judgment, even though 6 month statute of limitations following foreclosure on parcel had
expired, where Supreme Court did not extend requirements of deficiency judgment statutes to
guarantors until after expiration of 6 month period; and (3) trial court did not abuse its
discretion in refusing to allow expert to testify as to appraisal, where proponent had failed to
adhere to applicable discovery rules.
Affirmed.
Richard McKnight, Las Vegas, for Appellant.
Jones, Jones, Close & Brown and Kirk B. Lenhard, Las Vegas, for Respondent.
1. Evidence.
Parol evidence is admissible to prove that person signed instrument in his representative capacity. NRS 104.3403.
106 Nev. 26, 27 (1990) Murphy v. F.D.I.C.
2. Bills and Notes.
Corporate officer signed demand note in his representative capacity where corporate name was set out in heading of instrument
and again just above his signature and that of other principals in corporation. NRS 104.3403.
3. Courts.
Mortgagor's remedy of seeking deficiency judgment against guarantors of demand note following foreclosure of property was
properly reinstated after 6 month period for bringing deficiency judgment action had expired where Supreme Court did not hold
deficiency judgment legislation applicable to actions on guaranty contract until after expiration of that period. NRS 40.455.
4. Pretrial Procedure.
Decision whether to permit expert witness to testify where there has been failure to comply with disclosure requirements is
committed to trial court's discretion. NRCP 26(b)(4).
Trial court did not abuse its discretion in refusing to allow expert to testify regarding property appraisal conducted 10 days before
trial based upon proponent's failure to adhere to applicable discovery rules. NRCP 26(b)(4).
OPINION
Per Curiam:
This is an appeal from a money judgment awarded in favor of respondent Federal Deposit
Insurance Corporation. For the reasons set forth below, we affirm the district court's
judgment.
FACTS
Appellant, Thomas M. Murphy, was a vice-president in a corporate venture known as Las
Vegas Hotel and Casinos Investors, Ltd. (LVHC). Between January 21 and December 17,
1982, LVHC executed four demand notes in favor of the Mineral Bank of Nevada (the Bank).
Note 3, in the amount of $120,000, was executed on June 2, 1982, and was signed by Murphy
and four other LVHC principals without specifying their capacities as corporate
representatives.
A total principal amount of $426,490.38 was loaned to LVHC pursuant to the four notes.
The notes were secured by deeds of trust on three parcels of property owned by LVHC, by
general pledge agreements of the five LVHC principals, and by personal guaranties of the five
principals executed December 17, 1982, each in the amount of $430,000. The maturity date
on each note was extended to May 9, 1983, pursuant to four modification agreements signed
on behalf of LVHC by Spiros Kallas as president, and Michael Osborne as secretary.
On June 30, 1983, the Bank was closed due to insolvency and the FDIC appointed as
receiver. LVHC subsequently filed for bankruptcy, and on May 14, 19S4, the FDIC filed an
action against the five principals as guarantors of the four notes.
106 Nev. 26, 28 (1990) Murphy v. F.D.I.C.
bankruptcy, and on May 14, 1984, the FDIC filed an action against the five principals as
guarantors of the four notes. On July 22, 1985, the FDIC foreclosed on parcel 1, and April 30,
1986, the FDIC foreclosed on parcel 3. Parcel 2 was foreclosed by lienholders unrelated to
the instant dispute.
In December 1986, this court decided the case of First Interstate Bank v. Shields, 102 Nev.
616, 730 P.2d 429, and held that, contrary to prior Nevada case law, the protection of
Nevada's deficiency judgment legislation (NRS 40.451 through 40.459) was applicable to an
action on a guaranty contract. Thus, on February 18, 1987, the FDIC moved to file a first
amended complaint in order to allege that its bids on parcels 1 and 3 were equal to the fair
market value of those properties, and requested a fair market value hearing as required by
NRS 40.457.
The district court granted the FDIC's motion to file a first amended complaint and the
issue of the fair market values of parcels 1 and 3 was subsequently argued before a jury. After
the jury returned its verdict, the district court ruled that each note, including Note 3, had been
signed by the various principals in their capacities as corporate representatives and that the
guaranty contracts rendered them personally liable on the notes. Thus, the district court
entered a deficiency judgment against each principal in the amount of $424,330.79.
On appeal, Murphy contends that he was a maker of Note 3 and that his personal guaranty
created no additional liability as to that note. Thus, Murphy concludes that he was entitled to
the protection of Nevada's deficiency judgment legislation even before Shields was decided,
and that because the FDIC did not apply for a deficiency judgment within 6 months of
foreclosing on parcel 3, the FDIC is now precluded under NRS 40.455 from asserting his
liability on Note 3.
DISCUSSION
Murphy's contention that he was a maker rather than a guarantor of Note 3 lacks merit.
UCC section 3-403, adopted in Nevada and set forth at NRS 104.3403, provides in pertinent
part:
2. An authorized representative who signs his own name to an instrument:
. . . .
(b) Except as otherwise established between the immediate parties, is personally
obligated if the instrument names the person represented but does not show that the
representative signed in a representative capacity, or if the instrument does not name
the person represented but does show that the representative signed in a representative
capacity.
106 Nev. 26, 29 (1990) Murphy v. F.D.I.C.
[Headnotes 1, 2]
Under this statute, parol evidence is admissible to prove a person signed an instrument in
his representative capacity. See, e.g., North Carolina Equipment Company v. DeBruhl, 220
S.E.2d 867, 869 (N.C.Ct.App. 1976). In the instant case, Note 3 names the party represented
by setting out the name Las Vegas Hotel and Casino Investors, Ltd. in the heading of the
instrument and again just above the five principals' signatures. Thus, evidence of the parties'
course of dealing was properly admitted and clearly established that Murphy and the other
principals signed Note 3 as representatives of LVHC.
[Headnote 3]
Approximately 8 months after the FDIC foreclosed on parcel 3, this court decided Shields
and, as already noted, held that Nevada's deficiency judgment legislation was applicable to an
action on a guaranty contract. Thus, by the time Shields was decided, the 6 month period set
forth in NRS 40.455 for seeking a deficiency judgment had expired, effectively leaving the
FDIC without a remedy against the guarantors of LVHC's indebtedness. We have previously
recognized the unfairness of such a scenario.
In Carrillo v. Valley Bank, 103 Nev. 157, 734 P.2d 724 (1987), we overruled our prior
decision in McMillan v. United Mortgage Co., 84 Nev. 99, 437 P.2d 878 (1968), to the extent
that McMillan exempted sold-out junior lienholders from compliance with Nevada's
deficiency statutes. In Carrillo, we also noted that the statutory period for seeking a
deficiency judgment had long since expired. Thus, we held that it would be unfair to reverse
the Bank's judgment and leave it without a remedy, a predicament that clairvoyance alone
could have avoided, and we reinstated Valley Bank's remedy of seeking a deficiency
judgment. Carrillo, 103 Nev. at 159, 734 P.2d 725-6. Applying the same reasoning, we hold
that in the instant case the district court properly reinstated the FDIC's remedy of seeking a
deficiency judgment.
[Headnotes 4, 5]
Murphy's remaining contention is that the district court erred in restricting the testimony of
his expert with regard to appraisals of parcels 1 and 3. The record indicates that the expert
was not allowed to testify as to an appraisal performed 10 days before trial, and that the
restriction was based on Murphy's failure to adhere to applicable discovery rules. The
decision whether to permit an expert witness to testify when there has been a failure to
comply with the disclosure requirements of NRCP 26(b)(4) is committed to the trial court's
discretion. Otis Elevator Co. v. Reid, 101 Nev. 515, 523, 706 P.2d 1378, 1383 (1985).
Murphy has failed to establish such an abuse of discretion, and we therefore reject his
argument.
106 Nev. 26, 30 (1990) Murphy v. F.D.I.C.
has failed to establish such an abuse of discretion, and we therefore reject his argument.
For the foregoing reasons, we affirm the judgment of the district court.
1

____________
106 Nev. 30, 30 (1990) Goldman v. Bryan
THE HONORABLE PAUL S. GOLDMAN, DISTRICT JUDGE, EIGHTH JUDICIAL
DISTRICT COURT, CLARK COUNTY, NEVADA, Appellant, v. RICHARD H.
BRYAN, GOVERNOR OF THE STATE OF NEVADA, Respondent.
No. 18259
February 20, 1990 787 P.2d 372
Appeal from an order of the district court denying a petition for a writ of mandamus. First
Judicial District Court, Carson City; Michael E. Fondi, Judge.
District judge petitioned for writ of mandamus compelling Governor to act on judge's
request for early, enhanced disability retirement. The district court denied petition, and judge
appealed. The Supreme Court held that Judicial Discipline Commission's express assumption
of jurisdiction over question of district judge's entitlement to enhanced disability retirement,
during six month period between time judge notified Governor of claim and time judge
petitioned district court for extraordinary relief, precluded granting judge mandamus relief
compelling Governor to act upon judge's petition for disability retirement, even though
mandamus might have been available to compel Governor to act in absence of any pending
Commission proceedings.
Affirmed.
Beckley, Singleton, DeLanoy, Jemison and List, and Carol R. Davis and Alan J. Lefebvre,
Las Vegas; Frank J. Cremen, Las Vegas, for Appellant.
Brian McKay, Attorney General, William Isaeff, Chief Deputy Attorney General, Carson
City, for Respondent.
1. Mandamus.
Judicial Discipline Commission's express assumption of jurisdiction over question of district judge's entitlement to enhanced
permanent disability retirement, during six month period between time judge notified Governor of claim for
disability retirement and time judge petitioned district court for extraordinary relief, precluded granting
judge mandamus relief compelling Governor to act upon judge's petition for disability retirement, even
though mandamus might have been available to compel Governor to act in absence of any pending
Commission proceedings.
__________

1
The Honorable John C. Mowbray, Justice, has voluntarily recused himself from consideration of this case.
disability retirement, during six month period between time judge notified Governor of claim for disability retirement and time judge
petitioned district court for extraordinary relief, precluded granting judge mandamus relief compelling Governor to act upon judge's
petition for disability retirement, even though mandamus might have been available to compel Governor to act in absence of any
pending Commission proceedings. NRS 3.092; Const. art. 6, 21, subds. 1, 6, 7.
2. Mandamus.
Although remedy of mandamus is available to compel performance of act that law especially enjoins as duty resulting from office,
extraordinary remedy of mandamus is neither available nor appropriate where otherwise speedy and adequate remedy exists in ordinary
course of law. NRS 34.170.
3. Mandamus.
Judge's petition for mandamus to compel Governor to act on petition for voluntary permanent disability retirement was completely
resolved by Judicial Discipline Commission's express assertion of its primary constitutional jurisdiction prior to petition, and thus,
district court was not required to reach or resolve disputed factual questions of voluntariness of notice of intention to retire and whether
judge waived his right to have Governor act. NRS 3.092, subd. 3; Const. art. 6, 21, subd. 7.
4. Judges.
Rule providing that judge who retires during pendency of disciplinary hearing shall be considered to have retired voluntarily did
not apply to deprive Judicial Discipline Commission of jurisdiction over a judge accused of serious judicial misconduct and whose
request for retirement was conditioned on diagnosis by medical panel as permanently disabled, which would entitle him to enhanced
disability pension. NRS 3.092.
5. Judges.
Rule providing that judge retiring during pendency of judicial disciplinary hearing shall be considered to have been voluntarily
retired by Judicial Discipline Commission was only intended to apply to Commission proceedings concerned with sole question of
whether judge's retirement was warranted by advanced age or by mental or physical disability interfering with proper performance of
judge's duties, in which case retirement would be deemed voluntary; such rule could not be invoked to deprive Commission of its
jurisdiction in context in which judge accused of serious judicial misconduct interposes defense collaterally implicating entitlement to
early disability retirement. NRS 3.092.
OPINION
Per Curiam:
On April 22, 1987, appellant Paul S. Goldman, then a district judge in the Eighth Judicial
District Court, Clark County, petitioned the First Judicial District Court in Carson City for a
writ of mandamus. The petition sought an order compelling the Governor of the State of
Nevada to exercise certain powers conferred by NRS 3.092, relating to appellant's alleged
entitlement to an early, enhanced disability retirement. The district court denied the petition.
the petition. For the reasons set forth below, we affirm the order of the district court.
FACTS
In early October, 1986, appellant's courtroom became the scene of a series of disturbing
and widely publicized incidents culminating in appellant's issuance of an unlawful order
jailing a Las Vegas Metropolitan Police Department Commander. See Cunningham v. District
Court, 102 Nev. 551, 729 P.2d 1328 (1986). More specifically, during the week of October 8,
1986, appellant held three individuals in contempt of his court and ordered them jailed. The
individuals included an 87-year-old woman who refused to testify against her son in a
criminal matter, and a courthouse maintenance supervisor who had scheduled repairs on the
roof of Judge Goldman's chamber[s] at a time when Judge Goldman subsequently decided to
hold court. Cunningham, 102 Nev. at 555 n.1, 729 P.2d at 1330. Additionally, on October
10, 1986, appellant held a Las Vegas police commander in direct contempt of his court.
Appellant ordered the commander jailed, handcuffed, and placed in the jury box with other
prisoners under circumstances wherein appellant lacked both subject matter and personal
jurisdiction to take such action. The police commander had been neither disorderly, nor
contemptuous of appellant's authority. Nor had he violated any lawful court order.
Cunningham, 102 Nev. at 558-59, 729 P.2d at 1332-33.
In accordance with its constitutional obligations to administer the justice system in this
state and to see that litigation is properly processed and decided, this court initiated an
administrative inquiry into whether the preliminary indications of appellant's unusual judicial
behavior constituted an emergency of sufficient magnitude to necessitate a temporary
reassignment of the public's judicial business. See Goldman v. Bryan, 104 Nev. 644, 654-55,
764 P.2d 1296, 1302 (1988). Subsequently, on October 16, 1986, appellant directed a letter to
then Chief Justice John C. Mowbray. Citing to Article Six of the Nevada Constitution,
appellant requested the court temporarily to relieve him of his responsibility to act on any
matters pending before him. Thus, in view of appellant's apparent acknowledgment that he
was at least temporarily unfit for judicial service, the court entered a unanimous
Administrative Order on October 19, 1986, temporarily reapportioning the public's judicial
business in the interest of the efficient and effective administration of justice. Specifically, the
court's administrative order temporarily precluded appellant from attempting to exercise
judicial functions without the prior approval of the court and directed the Chief Judge of the
Eighth Judicial District Court to reassign to other judges of that district any cases then
assigned to appellant for trial or hearing "as [was] necessary to accommodate the
interest of justice."1
Thereafter, on October 30, 19S6, appellant directed a letter to Governor Bryan.
any cases then assigned to appellant for trial or hearing as [was] necessary to accommodate
the interest of justice.
1

Thereafter, on October 30, 1986, appellant directed a letter to Governor Bryan. Referring
to NRS 3.092(3)
2
, appellant's letter stated in pertinent part:
Please accept this as formal notice of my intention to retire pursuant to the provisions of
N.R.S. 3.092 as I am permanently incapacitated for medical reasons to perform the
duties of my office. I would request that this retirement be effective December 31,
1986, or as soon thereafter as the physicians appointed pursuant to N.R.S. 3.092(3)
have reported to you. I would further request that my attorney, J. Mitchell Cobeaga, be
contacted to arrange for the examinations pursuant to said statute.
On November 17, 1986, the Governor wrote to appellant in response:
It was not clear from your letter the nature of your potential disability. Therefore, in
order to assist in my selection of the physicians to conduct the statutory examination, I'd
appreciate you or your treating physician providing me with further information about
your incapacity. This information will enable me to select, if necessary, physicians with
the requisite expertise.
Subsequently, however, the Attorney General of the State of Nevada advised the Governor
not to designate a three-physician panel because complaints respecting appellant's behavior
on the bench were pending or impending before the Nevada Commission on Judicial
Discipline (the Commission). See Nev. Const. art.
__________

1
The text of the administrative order of October 19, 1986, is set forth in Goldman v. Bryan, 104 Nev. 644,
764 P.2d 1296 (1988). As noted in that opinion, appellant thereafter never requested the court to rescind its
administrative order, under which appellant continued to collect his full salary and receive the emoluments of his
office, and remained at liberty to use his chambers and any staff support to which he was entitled by virtue of his
position. 104 Nev. at 647 n.3, 764 P.2d at 1298.

2
NRS 3.092(3) provides:
Any judge, or his guardian on his behalf if he is unable to act, who desires to retire voluntarily must
give notice in writing to the governor. The governor shall appoint three physicians licensed to practice
medicine in the State of Nevada to examine the judge and report the results to the governor in writing. If
a majority of the physicians is of the opinion that the judge is permanently incapacitated, physically or
mentally, the governor shall approve the retirement. The judge or his guardian must file with the state
controller and the state treasurer an affidavit setting forth the fact of his retirement and the years he has
served in either or both of such courts.
art. 6, 21(1); (6) and (7) (conferring on the Commission power and authority to determine
the question of a judge's entitlement to permanent disability status).
3
Consequently, the
Governor thereafter refrained from taking any action under NRS 3.092(3).
On March 30, 1987, the Commission conducted a hearing, attended by appellant and his
counsel, to determine if probable cause existed to believe that appellant had violated the
Nevada Code of Judicial Conduct and had committed willful misconduct as proscribed by the
constitution. Following that hearing, the Commission entered an order on April 16, 1987,
setting forth its findings that the available evidence established the requisite probable cause.
The Commission's order further noted that, at the hearing of March 30, 1987, appellant's
counsel introduced into evidence appellant's October 30, 1986, letter to the Governor. In view
of the allegations of permanent incapacitation contained in that letter, the Commission
determined that it was obligated under its constitutional mandate to receive additional
evidence respecting appellant's alleged entitlement to enhanced disability retirement, and that
it should afford appellant an opportunity to demonstrate that his alleged misconduct resulted
from mental or physical disability for which he is not responsible, in which case he shall be
retired for disability pursuant to Nevada Constitution article 6, section 21(7), with an
increased pension for disability provided by NRS 3.092(2).
4
Thus, the Commission
concluded that, in fulfilling its function under the Nevada Constitution, it had an obligation to
resolve whether [appellant's] termination of office shall be based on removal for willful
misconduct and/or habitual intemperance with allowance of a standard earned pension, or
whether [appellant]
__________

3
Nev. Const. art. 6, 21(1) provides in part that a district judge may . . . be censured, retired or removed by
the commission on judicial discipline.
Additionally, Nev. Const. art. 6, 21(6) provides:
No justice or judge may be virtue of this section be:
(a) Removed except for willful misconduct, willful or persistent failure to perform the duties of his
office or habitual intemperance; or
(b) Retired except for advanced age which interferes with the proper performance of his judicial
duties, or for mental or physical disability which prevents the proper performance of his judicial duties
and which is likely to be permanent in nature.
Nev. Const. art. 6, 21(7) also provides in part that a judge retired for disability in accordance with this
section is entitled thereafter to receive such compensation as the legislature may provide.

4
Following further proceedings, the Commission concluded that appellant should be removed from his
office and was not entitled to enhanced disability retirement. Instead, under the Commission's final decision,
appellant is merely entitled to receive the ordinary pension he has earned by virtue of his service on the bench.
The Commission's final decision is the subject of a separate appeal presently pending in this court in Case No.
18326.
sion, or whether [appellant] should be retired as permanently disabled with an enhanced
disability pension immediately payable notwithstanding that he has not yet reached the
standard retirement age of sixty years.
Thereafter, on April 22, 1987, appellant filed a petition for a writ of mandamus in the First
Judicial District Court, seeking to compel the Governor to appoint a three-physician medical
panel in accordance with NRS 3.092(3). The Governor, represented by the Office of the
Attorney General of the State of Nevada, filed an answer in opposition to the petition, and the
district court conducted a hearing on the matter on May 5, 1987. Appellant testified at the
hearing that, when he submitted his letter to the Governor, he was unaware of any
Commission proceedings pending against him, and that his initial notice of intention to retire
of October 30, 1986, was entirely voluntary. Additionally, the district court determined at
that hearing that it could appropriately consider, as relevant evidence in the case, this court's
administrative order of October 19, 1986, and the Commission's order of April 16, 1987.
On May 14, 1987, the district court entered written findings of fact, conclusions of law and
an order denying the petition. In its order, the court concluded:
1. The constitution of this state vested jurisdiction and authority in the Commission
to consider and decide the issues of appellant's alleged judicial misconduct and his
claim for retirement due to disability;
2. The Commission's jurisdiction and authority over appellant were established in a
lawful manner and the Commission continued to exercise jurisdiction over appellant;
3. The Commission's jurisdiction and authority derived directly from the
constitution and, therefore, the constitution being the supreme law of the state, any
statutory proceedings, such as those authorized by NRS 3.092, must yield to the
superior authority of the Commission;
4. The district court lacked jurisdiction to order the [Governor] to comply with the
terms of NRS 3.092 and appoint a physician's panel to consider [appellant's] allegation
of permanent disability for purposes of retirement from the bench, after proceedings
have commenced before the Commission on Judicial Discipline and where the same
question is at issue there; and
5. No incumbent judge may use NRS 3.092 to short-circuit' the constitutionally
mandated process for investigating, hearing and deciding charges of judicial
misconduct, and once begun, the Commission proceedings must be allowed to reach
their ultimate conclusion.
Accordingly, the district court found that the Governor had shown good cause for refusing
to act in accordance with the provisions of NRS 3.092(3), and the court denied the petition.
This appeal followed. Appellant raises numerous assignments of error on appeal, relating to
the alleged voluntariness and the legal effect of his October 30, 1986, notice to the Governor
of his intention to retire on an enhanced disability pension pursuant to NRS 3.092(3).
DISCUSSION
[Headnote 1]
Appellant first contends that because he allegedly tendered his claim for enhanced
disability retirement to the Governor voluntarily and with no knowledge of any pending
Commission proceedings against him, the extraordinary writ of mandamus was an available
remedy in this case and that, therefore, the district court erred in concluding that it lacked
jurisdiction to order the Governor to act in accordance with NRS 3.092(3). Specifically,
appellant argues, NRS 3.092(3) expressly provides that, upon notification of a judge's desire
to retire voluntarily as permanently disabled, the Governor shall appoint three physicians
to examine the judge and report their findings. Consequently, appellant maintains, the
Governor's duties under NRS 3.092(3) are mandatory and admit of no discretion, and
where, as here, the duties to be performed are purely ministerial, mandamus is both
available and appropriate to compel the Governor to act. See State Bar of Nevada v. List, 97
Nev. 367, 632 P.2d 341 (1981) (mandamus is available to compel the Governor's
performance of an act that the law especially enjoins as a duty resulting from an office); see
also NRS 34.160.
As the Governor points out, however, appellant's contention fails to acknowledge an
essential fact upon which the district court's conclusions in this case are ultimately based.
Specifically, it is uncontested that appellant waited approximately six months after notifying
the Governor of his claim for enhanced permanent disability retirement before petitioning the
district court for extraordinary relief, and, in that interim period, the Commission instituted
judicial discipline proceedings pursuant to its constitutional mandate. In those proceedings,
the Commission expressly assumed jurisdiction over the question of appellant's entitlement to
enhanced permanent disability retirement. Thus, the Governor argues, neither appellant's
alleged lack of knowledge in October 1986 of pending or impending Commission
proceedings, nor the alleged voluntariness of appellant's notice of intention to retire at that
time, is particularly relevant or critical to the district court's denial of appellant's petition.
Rather, the Governor asserts, the district court simply concluded that it lacked jurisdiction
to compel him to appoint a physicians' panel to consider appellant's allegation of
permanent disability for purposes of retirement from the bench after the Commission had
clearly exercised its constitutional authority to determine precisely the same issue.
district court simply concluded that it lacked jurisdiction to compel him to appoint a
physicians' panel to consider appellant's allegation of permanent disability for purposes of
retirement from the bench after the Commission had clearly exercised its constitutional
authority to determine precisely the same issue. We agree, and our review of the record
reveals that the court's conclusions in this respect are well-supported by the evidence and by
relevant, well-reasoned legal authority.
In particular, we note that the district court appropriately relied on the Commission's order
of April 16, 1987, as clearly establishing that the Commission had expressly assumed
jurisdiction over issues relating to appellant's entitlement to permanent disability retirement
six days prior to the date appellant filed his petition in the district court. Further, as noted
above, clear and unequivocal language in the constitution of this state specifically confers
jurisdiction on the Commission to resolve such matters. Thus, the district court correctly
determined that the Commission's authority to determine appellant's entitlement to disability
retirement derives directly from the constitution. See Nev. Const. art. 6, 21(1); (6) and (7).
Additionally, the district court's conclusion that the applicable provisions of the constitution
constitute the supreme law of the state and control over any conflicting statutory provisions
cannot be subject to any serious dispute. See, e.g., Robison v. District Court, 73 Nev. 169,
313 P.2d 436 (1957) (provision in constitution respecting impeachment of state officer
controls over conflicting legislative enactment providing statutory scheme for removal); see
also Wren v. Dixon, 40 Nev. 170, 187, 161 P. 722, 726 (1916), citing Oakland Paving Co. v.
Hilton, 11 P. 3 (Cal. 1886) (constitution is law absolutely controlling the legislature,
executive, and judicial departments and its provisions take effect on laws already passed as
well as to those to be enacted in the future); State v. Duffy, 6 Nev. 138 (1870) (provisions of
state constitution constitute supreme law of the state and must be enforced by the courts in
letter and spirit).
In Robison, this court also stated the well recognized rule that an express constitutional
provision requiring a certain thing to be done in a certain way is exclusive to like extent as if
it had included a negative provision to the effect that it may not be done in any other way.
Robison, 73 Nev. at 175, 313 P.2d at 440. To whatever extent appellant's contentions focus
upon any obligations imposed upon the Governor by the legislature which may conflict with
the obligations imposed upon the Commission by the constitution, this court's holding in
Robison clearly establishes the preeminence of the Commission's constitutional authority.
[Headnote 2]
Moreover, although appellant correctly observes that the remedy of mandamus is available
to compel performance of an act that the law especially enjoins as a duly resulting from an
office, the extraordinary remedy of mandamus is neither available nor appropriate where an
otherwise speedy and adequate remedy exists in the ordinary course of law. See NRS 34.170.
As the Governor observes, appellant failed to establish below that the Commission's
assumption of jurisdiction over the question of appellant's entitlement to enhanced disability
retirement, combined with appellant's right to appeal any adverse decision of the Commission
to this court, would deprive appellant of an adequate remedy to vindicate any prejudicial error
that might occur in the Commission proceedings. Further, and in contrast to the statutory
procedures set forth in NRS 3.092(3), the Commission proceedings allow for the creation of a
full and complete record for purposes of this court's review. See generally, Hardin v. Griffin,
98 Nev. 302, 646 P.2d 1216 (1982) (supreme court's intervention in criminal proceedings by
way of mandamus was unwarranted where right to appeal provided a plain, speedy and
adequate remedy for any prejudicial error at trial, and proceedings below would provide a
complete record for purposes of review); see also Nev. Const. art. 6, 21(1) (providing right
to appeal adverse decision of the Commission to the supreme court). Thus, although
mandamus may have been available to compel the Governor to act in the absence of any
pending Commission proceedings, once the Commission exercised its constitutional authority
and jurisdiction, the remedy of mandamus was foreclosed and appellant could not utilize
NRS 3.092(3) as a means of escaping the Commission's disciplinary authority. See also
Powers v. Bd. of Control of Jud. Ret. Fund, 434 So.2d 745 (Ala. 1983); In re Peoples, 250
S.E.2d 890 (N.C. 1978), cert. denied, 442 U.S. 929 (1979). Under these circumstances,
therefore, we reject appellant's contention that the district court erroneously determined that it
lacked jurisdiction to issue the requested writ.
Appellant also attempts to distinguish the two major cases upon which the district court
relied in formulating its decision. See Powers v. Bd. of Control of Jud. Ret. Fund, 434 So.2d
745 (Ala. 1983); In re Peoples, 250 S.E.2d 890 (N.C 1978), cert. denied, 442 U.S. 929
(1979). Based upon the holdings in Powers and Peoples, the court below concluded that no
judge who is the subject of disciplinary proceedings before the Commission may be permitted
to short-circuit that process by attempting to resign his position. In contrast to the situation
in the instant case, appellant maintains, the judges seeking to assert their rights to voluntary
retirement in Powers and Peoples were formally notified of investigations and disciplinary
proceedings against them prior to the date they attempted to retire.
fied of investigations and disciplinary proceedings against them prior to the date they
attempted to retire. Thus, appellant asserts, the district court inappropriately applied the
holdings of Powers and Peoples to the facts of this case because, unlike appellant, Judge
Powers and Judge Peoples truly did not attempt to retire voluntarily.
In Powers, Judge Powers filed a written declaration with the Chief Justice of the Alabama
Supreme Court, in accordance with the applicable Alabama statutory retirement provisions,
declaring his intention to retire voluntarily on permanent disability status. Powers, 434 So.2d
at 746. As appellant correctly notes, Judge Powers had previously been informed that he was
the subject of an investigation before a commission of judicial inquiry. However, during the
pendency of Powers's declaration of intention to retire voluntarily under the statutory scheme,
the Alabama Judicial Inquiry Commission filed a formal complaint against Powers with the
Court of the Judiciary (C.O.J.). Like Nevada's Commission on Judicial Discipline, the
Alabama C.O.J. is empowered by the state constitution to retire a judge who is physically or
mentally unable to perform his duties. Id. at 749 (citing Ala. Const. 1901, amend. 328,
6.18(a)). In addressing Powers's contention that he was nonetheless entitled to seek disability
retirement under the Alabama statutory scheme, the Alabama court held that, although
Powers could elect to seek retirement under the statutory provisions, the filing of the
complaint with the C.O.J. precluded Powers from utilizing that means. Id. The court
explained:
If that were not the case, the jurisdiction of the C.O.J. could be ousted by a judge
seeking to use [the statutory retirement provisions] as a way of escaping a disciplinary
proceeding. Analogously, the Supreme Court of North Carolina held that the
jurisdiction of a commission vested with the authority to investigate and commence a
disciplinary proceeding against a judge is not ousted by the judge's election to resign
where the election is made before charges are filed, but becomes effective after their
filing. In re Peoples, 296 N.C. 109, 250 S.E.2d 890 (1978). Here, although Powers
sought voluntary retirement [in a proceeding under the pertinent statute], that
proceeding did not conclude before the J.I.C. filed its complaint with the C.O.J. The
C.O.J., therefore, assumed jurisdiction over the retirement issue. The Chief Justice,
therefore, could look to the judgment of the C.O.J., which did not retire Powers, and
decline to find and certify that Powers met the conditions prerequisite to retirement.
Thus, as the court below correctly determined, the analogous facts and the precise
holding of the Powers decision constitute well-reasoned and relevant legal authority.
facts and the precise holding of the Powers decision constitute well-reasoned and relevant
legal authority. Clearly, under the rationale of the Powers decision, the Nevada Judicial
Discipline Commission's express assumption of jurisdiction over the question of appellant's
entitlement to enhanced disability retirement on April 16, 1987, precluded the availability of
a writ of mandamus compelling the Governor to act in accordance with NRS 3.092(3).
Similarly, in Peoples, the Supreme Court of North Carolina concluded that a judge's
resignation, tendered to and accepted by the Governor after the judge was notified that a
preliminary investigation of alleged misconduct in office had been initiated against him by
the North Carolina Judicial Standards Commission, did not oust that Commission of its
jurisdiction over the judge, nor did it render the Commission's subsequent proceedings moot.
Peoples, 250 S.E.2d at 911. In the Peoples case, the resignation accepted by the Governor
did not actually become effective until two days after the Judicial Standards Commission
notified Judge Peoples that formal proceedings had been instituted against him. Under those
circumstances, the North Carolina court concluded:
[W]e are constrained to add that it would indeed be a travesty if a judge could avoid the
full consequences of his misconduct by resigning from office after removal proceedings
had been brought against him. According to this argument, it would be possible for an
involved judge, at any time before the Commission files its findings and
recommendations with the Supreme Court, to bring the proceedings against him to a
premature close by submitting his resignation to the Governor, who would accept it
without knowledge that charges were pending against the judge. We are entirely
convinced that the legislature never intended any such result, and that to interpret [the
statute] according to Respondent's contentions would emasculate the statute and thwart
the legislative intent entirely.
Appellant correctly observes that the court in Peoples also expressly concluded that it
need not decide what result would have been reached had the complaint [of the Judicial
Standards Commission] been filed after the effective date of Judge People's resignation. Id.
at 910. Nonetheless, as in Peoples, appellant did not succeed in resigning his office prior to
the date that the Commission expressly assumed jurisdiction in the matter. Because the
Governor never appointed a three-physician panel pursuant to NRS 3.092(3), appellant never
formally or effectively succeeded in resigning his office pursuant to that provision. We
conclude, therefore, that the analogous facts and the precise holding of Peoples are
directly relevant to the instant case.
conclude, therefore, that the analogous facts and the precise holding of Peoples are directly
relevant to the instant case.
The holdings in Powers and Peoples not only provide compelling support for the legal
conclusions of the court below, but, in our view, the sound logic and practical wisdom of
those decisions are readily apparent when tested against the facts of this case. For instance, by
supporting the proposition that the Commissionthe constitutional bodyis the proper
entity exclusively empowered to act in the first instance, whenever issues of possible
misconduct are presented along with issues of disability in a given case, the decisions
advance the eminently reasonable and practical result of allowing a single coherent resolution
of all concerns to be achieved in one constitutionally sanctioned proceeding where all
relevant evidence can be adduced. Accordingly, we reject appellant's contention that the
district court inappropriately relied upon distinguishable and inapplicable legal authority.
Appellant further attempts to distinguish the holdings of Powers and Peoples on the basis
of an official opinion of the attorney general addressing disciplinary proceedings instituted by
the Commission against a justice of the peace or municipal court judge pursuant to NRS
1.440. See Op. Att'y Gen. No. 81-4 (March 3, 1981). In such a case, the attorney general
opined, the only sanction available to the Commission under Nev. Const. art. 6, 21 and art.
7, 4 would be removal of the justice or judge from office. Therefore, the attorney general
reasoned that such Commission proceedings would be rendered moot if the justice of the
peace or municipal judge resigned his office.
We note, however, that the Governor and his counsel concede that the official opinion in
question did not appropriately take into account the well-reasoned decisions in Powers and
Peoples. In fact, as the Governor notes, the March 3, 1981, opinion of the attorney general
was issued prior to the Alabama Supreme Court's 1983 decision in Powers. Moreover, the
opinion of the attorney general is confined to Commission proceedings, instituted pursuant to
NRS 1.440, specifically against justices of the peace and municipal court judges.
Consequently, the opinion has little relevance to the Commission's express constitutional
authority respecting district judges. Nor is that opinion relevant to the question of the
Commission's superior authority to resolve issues respecting a district judge's entitlement to
early disability retirement. At the time the opinion was published, the legislature had not yet
enacted any legislation providing early disability retirement for district judges. The 1981
opinion of the attorney general, therefore, can hardly provide support for appellant's
interpretation of NRS 3.092(3), which had not even been enacted at the time the opinion was
issued. Under these circumstances, the attorney general's opinion is neither particularly
persuasive nor relevant authority.
nor relevant authority. In any event, opinions of the attorney general do not constitute binding
legal authority or precedent. See Cannon v. Taylor, 88 Nev. 89, 493 P.2d 1313 (1972).
[Headnote 3]
Next, appellant complains that the district court erred in determining that the issues before
it were essentially legal rather then factual, and in failing to resolve the disputed factual
question of the voluntariness of appellant's notice of intention to retire. See, e.g., NRS
34.220 (court may in its discretion order a question of fact, which is essential to the court's
determination, to be tried before a jury). Appellant argues that because that factual issue was
essential to the proper disposition of the petition, the district court committed clear error by
not requiring the Governor to submit otherwise admissible evidence and . . . proof sufficient
to establish the evidentiary basis for the defense offeredthat Judge Goldman's request for
leave and his subsequent request to retire was not voluntary. Appellant also asserts that the
district court apparently reasoned that because appellant was aware of this court's
administrative order of October 19, 1986, appellant's request for retirement was not
voluntary under NRS 3.092(3) since the Order portended pending or impending' disciplinary
actions by . . . the Commission. Appellant maintains that such a linkage is unwarranted
and further states:
In declining to direct the Governor to act, the District Judge seized upon an Order of the
Nevada Supreme Court . . . and without hearing and in fact declining to receive
evidence, inferred the intentions of this Court in issuing its order and imputed motives
to Judge Goldman in offering his retirement letter without receiving or considering any
evidence pertinent to the issue.
Similarly, appellant contends the district court erroneously determined, without receiving
evidence, that by participating in the proceedings before the Commission, appellant waived
his right to have the Governor act in accordance with NRS 3.092(3). Appellant states that
[i]t was essential to the District Judge's decision that he found that Judge Goldman waived
his right by participating in the [Commission] process which took place only because the
Governor waited so long to act.
Appellant's contentions, however, misconstrue the findings and conclusions of the court
below. As the Governor observes, the district judge specifically and correctly noted that it
was not essential to his decision to resolve such issues. A review of the transcript of the
hearing below, as well as the lower court's written findings and conclusions, clearly reveals
that the district judge, simply did not "reason," based upon the entry of this court's
administrative order, that appellant's attempt to retire was not voluntary.
judge, simply did not reason, based upon the entry of this court's administrative order, that
appellant's attempt to retire was not voluntary. Nor did the district judge find that appellant
waived any of his rights under NRS 3.092(3) by participating in the Commission hearing of
March 30, 1987.
In any event, specific resolution of these issues was not essential to the district court's
final decision. As discussed above, at the very latest, the Commission had expressly assumed
jurisdiction over the question of appellant's entitlement to enhanced disability retirement on
April 16, 1987. Therefore, the Commission's express assertion of its primary constitutional
jurisdiction, prior to the date appellant filed his petition below, was completely dispositive of
the issues presented by appellant's petition for extraordinary relief. Accordingly, we perceive
no error relating to the district court's failure to reach or specifically resolve these questions.
[Headnote 4]
Finally, appellant asserts that the district court erred in denying his petition because, under
Rule 24(b) of the Revised Interim Procedural Rules of the Nevada Commission on Judicial
Discipline,
5
appellant's letter to the Governor constituted a voluntary retirement as a matter
of law. Rule 24 provides:
(a) The commission may retire a judge:
(1) For advanced age which interferes with the proper performance of his judicial
duties; or
(2) For mental or physical disability which prevents the proper performance of his
judicial duties and which is likely to be permanent in nature.
(b) A respondent retired by, or who retires during the pendency of a hearing before,
the commission shall be considered to have retired voluntarily.
Appellant specifically contends that, under Rule 24(b), [t]his court itself has determined
the effect of any retirement of a Judge under a cloud of investigation. Thus, appellant
maintains, his attempt to retire on enhanced disability status pursuant to NRS 3.092(3) was
voluntary as a matter of law. Again, we disagree.
Rule 24 was adopted and became effective by order of this court entered January 10, 1978,
and, at that time, the legislature had not yet enacted any provision entitling a district judge to
early, enhanced disability retirement.
__________

5
The Commission proceedings involving appellant were conducted in accordance with the Revised Interim
Procedural Rules adopted by this court on January 10, 1978. See Nev. Const. Art. 3, 1 and Art. 6, 21(5).
Subsequently, the court adopted new procedural rules, which became effective on April 29, 1988. See Supreme
Court Rules, Part VI, Administrative and Procedural Rules for The Nevada Commission on Judicial Discipline.
early, enhanced disability retirement. NRS 3.092(3), the provision through which appellant
sought enhanced disability retirement, was not enacted by the legislature and did not become
effective until 1985. Thus, at the time Rule 24 was promulgated and formally adopted by this
court, NRS 3.092(3) was not even in existence. As a consequence, the only type of retirement
contemplated by Rule 24, i.e., the only type of retirement available to a district judge at the
time that rule was promulgated, was the normal retirement that a district judge earns and is
ordinarily entitled to receive. See NRS 3.090.
Appellant, however, has never attempted merely to retire unconditionally in the routine
manner contemplated by Rule 24(b) and NRS 3.090. Quite to the contrary, he sought to retire
only if a medical panel diagnosed him as permanently disabled, and thus entitled to an
enhanced disability pension, beyond the ordinary pension which the discipline commission
ultimately found to be his sole entitlement. In his letter to the Governor, and in the
proceedings below, appellant alleged that he was entitled to a type of early, enhanced,
permanent disability retirement that was manifestly not embraced by the Commission rules
promulgated by this court in 1978, and that would be vastly more advantageous to appellant
financially than the normal retirement that he has unquestionably earned.
[Headnote 5]
Moreover, as with any rule or statute, the various parts of Rule 24 should be read and
interpreted in light of all the procedures set forth in the Revised Interim Rules and the
purpose of those procedures. See generally, Colello v. Administrator, Real Est. Div., 100
Nev. 344, 683 P.2d 15 (1984) (courts may determine legislative intent by looking to the entire
act and construing the statute in light of purposes underlying the act). When read together
with all the procedures and interpreted in light of the purposes of those procedures, it is clear
that Rule 24 was only intended to apply to Commission proceedings concerned with the sole
question of whether a judge's retirement was warranted by advanced age, or mental or
physical disability interfering with the proper performance of the judge's duties. In such a
proceeding, and in that limited context, the retirement of the judge, whether by the
Commission or by the judge himself, would be deemed voluntary under Rule 24(b).
Nothing in the Revised Interim Rules applicable to appellant's case, however, suggests that
the denomination of such retirement as voluntary in that limited context could deprive the
Commission of its jurisdiction in an entirely different proceeding and context wherein a judge
accused of serious judicial misconduct interposes a defense collaterally implicating his
entitlement to early disability retirement. The use of the term "voluntary" in Rule 24{b),
therefore, cannot by any reasonable implication allow a judge to escape the
consequences of Commission proceedings primarily concerned with allegations of judicial
misconduct.
of the term voluntary in Rule 24(b), therefore, cannot by any reasonable implication allow a
judge to escape the consequences of Commission proceedings primarily concerned with
allegations of judicial misconduct. Under these circumstances, Rule 24 simply cannot be read
to support appellant's contention that the Governor must proceed in accordance with NRS
3.092(3), where a judge has notified the Governor of his intention to retire on an enhanced
disability pension under that statute, and where the judge's right to that disability status is
implicated in pending proceedings before the Commission on Judicial Discipline primarily
concerned with allegations of judicial misconduct. We conclude, therefore, that appellant's
contention is without merit.
CONCLUSION
Appellant has failed to establish that the district court committed reversible error or
otherwise abused its discretion in declining to issue a writ of mandamus compelling the
Governor to act in accordance with NRS 3.092(3), after constitutionally authorized
proceedings had commenced before the Nevada Commission on Judicial Discipline.
Accordingly, we affirm the decision of the district court in all respects.
Young, C. J., Steffen, J., and Zenoff, Sr. J.
6

____________
106 Nev. 45, 45 (1990) Walters v. State
WAYNE EDWARD WALTERS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20028
February 20, 1990 786 P.2d 1202
Appeal from denial of appellant's petition for post-conviction relief. Eighth Judicial
District Court, Clark County; Carl J. Christensen, Judge.
Defendant convicted of second degree murder petitioned for post-conviction relief. The
district court denied relief, and appeal was taken. The Supreme Court held that improper
warrantless arrest of defendant necessitated suppression of inculpatory statement made while
he was being transported to police station.
__________

6
Pursuant to orders of this court entered September 14, 1988, and November 30, 1988, Senior Justice David
Zenoff participated in this appeal in the place of then Chief Justice E. M. Gunderson. Additionally, pursuant to
this court's order of November 30, 1988, replacement district judges were not appointed to sit in the stead of
Justice Springer and Justice Mowbray, who had earlier disqualified themselves.
[Rehearing granted October 25, 1990]
Beury & Schubel, Carlsbad, California, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, and James
Tufteland, Chief Deputy District Attorney, and Vicki Monroe, Deputy District Attorney, Clark
County, for Respondent.
1. Arrest; Criminal Law.
Warrantless arrest of murder suspect in his home was illegal, absent exigent circumstances, and thus his postarrest statement made
while being transported to police station was not admissible. U.S.C.A.Const. Amend. 4.
2. Arrest.
Murder suspect emerged from his home under circumstances of coercion, and thus would be deemed to have been arrested in his
home, where police had helicopter circling house from which commands to exit house were communicated by means of bullhorn.
U.S.C.A.Const. Amend. 4.
3. Criminal Law.
Murder defendant's sentence could not properly be enhanced for use of deadly weapon where evidence indicated that defendant
was aider and abettor of codefendant, and that defendant did not have even constructive possession of knife used to kill victim; there
was no evidence that defendant could have exercised control over weapon.
OPINION
Per Curiam:
Wayne Edward Walters was convicted of second degree murder with the use of a deadly
weapon and was sentenced to life in prison with the possibility of parole. The life sentence
was enhanced by imposition of a second, consecutive life sentence for use of a deadly
weapon.
Following the dismissal by this court of Walters' direct appeal, Walters petitioned the
district court for post-conviction relief in which he alleged numerous errors. An evidentiary
hearing was held, following which the district court denied Walters' petition. On appeal,
Walters raises numerous issues, two of which have merit. Therefore, we reverse Walters'
conviction and remand to the district court for retrial.
Facts
The facts underlying Walters' conviction stem from an argument he and his companion,
Gregory Samson, had with the victim, Douglas Ueckert, at the Tumbleweed Inn, a bar in
Sandy Valley, Nevada. The evidence at trial showed that on the night of May 12, 19S5,
Walters and Samson had a heated argument with Ueckert about a car Walters had
removed from Ueckert's property.
May 12, 1985, Walters and Samson had a heated argument with Ueckert about a car Walters
had removed from Ueckert's property. The three men and several companions left the bar to
settle the dispute outside, at which time Samson displayed a knife. Eventually, the men
returned to the bar, after apparently settling their differences. Soon, however, the argument
flared up again. This time only Walters, Samson and Ueckert left the bar. A short time later,
the victim's wife, Diane Ueckert, found her husband in the parking lot bleeding from several
stab wounds. Just prior to seeing her mortally wounded husband, Mrs. Ueckert encountered
Samson on his motorcycle. Samson indicated that Ueckert had hit him in the head and hurt
him. At the same time, Walters pulled up in a car and yelled to Samson, let's go.
The next morning, without first obtaining a warrant, police officers from both Nevada and
California converged on Walters' ranch, located on the California side of Sandy Valley, and
arrested him. In accomplishing the arrest, the officers used a helicopter and, while circling
Walters' home, used a bullhorn to order Walters and Samson to leave the house and walk to
where other officers were waiting. Walters and his companion complied with the police
directives, were given their Miranda warnings and were placed under arrest. Thereafter,
Walters was transported to Barstow, California, by a police officer. During the course of that
ride, which was approximately 100 miles, Walters made a statement to the effect, How many
times did I have to let him hit me in the back.
Following a jury trial, Walters was found guilty of second degree murder and sentenced to
life with the possibility of parole. He also received an identical consecutive sentence as an
enhancement for using a deadly weapon. Walters challenges his conviction on appeal from
the trial court's denial of his petition for post-conviction relief.
Discussion
Walters raises two issues in his petition for post-conviction relief which are meritorious
and which, as to the first issue, warrants a reversal of his conviction.
First, because Walters' inculpatory statement was the product of an illegal arrest, the
statement should have been suppressed. United States v. Maez, 872 F.2d 1444, 1456-57 (10th
Cir. 1989). Walters was arrested in the morning following the murder of Doug Ueckert,
which occurred late the night before. Testimony showed that upon arrival of law enforcement
officers at the crime scene, Walters was immediately a prime suspect in the killing. Yet, for
some unknown reason, the officers did not procure an arrest warrant from a magistrate. The
Nevada police simply coordinated their efforts with the California authorities and arrested
Walters.
coordinated their efforts with the California authorities and arrested Walters. Under the facts
known to the investigating officers, a warrant could have been obtained prior to effecting
Walters' arrest.
[Headnotes 1, 2]
Walters was clearly arrested in his home without a warrant and absent exigent
circumstances. See Payton v. New York, 445 U.S. 573 (1980). Additionally, the record does
not reflect that Walters exited his home voluntarily. The police had a helicopter circling the
house from which commands to exit the house were communicated by means of a bullhorn.
Under these circumstances, we are unable to conclude that a reasonable person would feel
free to ignore the police and remain in his home. Therefore, Walters did not voluntarily turn
himself in to the police; he only emerged from his home under circumstances of coercion,
thus forcing us to conclude that the arrest occurred while he was still within his home. See
United States v. Al-Azzawy, 784 F.2d 890 (9th Cir. 1985).
Because the arrest was not executed lawfully, Walters' statement to the police while riding
to Barstow, California, should not have been admitted into evidence. The statement, How
many times did I have to let him hit me in the back was significant to the State's case in chief
in light of a paucity of other substantial evidence. No one besides Walters and Samson
witnessed the murder and only Samson was seen displaying a knife prior to the murder. We
are therefore compelled to conclude that the error was not harmless beyond a reasonable
doubt.
Moreover, it is clear that under the factors enunciated in Brown v. Illinois, 422 U.S. 590
(1974), Walters' statement was not sufficiently an act of free will to purge the taint of his
prior illegal arrest. Therefore, the Brown doctrine does not constitute a basis for salvaging the
statement as competent trial evidence. See also United States v. Patino, 830 F.2d 1413, 1418
(7th Cir. 1987) (taint not purged where defendant continually in the company of at least one
officer.)
[Headnote 3]
Second, we note for purposes incident to the prospect of a new trial that Walters' sentence
was improperly enhanced. The controlling case law is found in Anderson v. State, 95 Nev.
625, 600 P.2d 241 (1979), in which we determined that the participation of a defendant not
actually in possession of the weapon by aiding and abetting the actual user in the unlawful
use of the weapon, makes the former equally subject to the added penalty inflicted upon
defendants who actually commit crimes through the use of deadly weapons. Id. at 629, 600
P.2d at 243.
In Anderson, we defined the requirements necessary to subject a defendant who aids and
abets to the enhanced penalty resulting from use of a deadly weapon as follows:
[T]he possession necessary to justify statutory enhancement may be actual or
constructive; it may be exclusive or joint. Constructive or joint possession may occur
only where the unarmed participant has knowledge of the other offender's being armed,
and where the unarmed offender has . . . the ability to exercise control over the
[weapon].
Id. at 630, 600 P.2d at 244 (emphasis added).
The evidence strongly indicates that Walters did not have the possession necessary to
justify the enhancement of his sentence. There was no evidence suggesting that Walters had
any kind of constructive possession of the knife used to kill Ueckert. Moreover, the record
does not supply a basis for inferring that Walters could have exercised control over the
weapon. Therefore, it was clear error to statutorily enhance Walters' sentence.
Because we hold that a reversal and retrial are required as a result of the admission of
Walters' inculpatory statement resulting from an unlawful arrest, we need not address
Walters' remaining assignments of error. The district court erred in not granting Walters'
post-conviction petition for relief; we therefore reverse the court's ruling and remand for
further proceedings consistent with the views expressed in this opinion.
____________
106 Nev. 49, 49 (1990) Key Bank v. Donnels
KEY BANK OF ALASKA, an Alaska Bank Corporation, Appellant, v. MYLLIE JO
DONNELS, Individually and as Executor of the Estate of WAYNE T. DONNELS,
and WALKER BOUDWIN CONSTRUCTION COMPANY, INC., Respondents.
No. 19267
KEY BANK OF ALASKA, an Alaska Bank Corporation, Appellant, v. MYLLIE JO
DONNELS, Individually and as Executor of the Estate of WAYNE T. DONNELS,
and WALKER BOUDWIN CONSTRUCTION COMPANY, INC., Respondents.
No. 19816
February 20, 1990 787 P.2d 382
Consolidated appeals from two district court orders dismissing appellant's complaint for
failure to state a claim under NRCP 12(b)(5) and awarding attorney's fees to respondents.
Second Judicial District Court, Washoe County; James J. Guinan, Judge.
After Nevada borrower defaulted on note and Alaska lender conducted foreclosure sale of
Nevada property, lender sought deficiency judgment. The district court dismissed complaint
and awarded attorney fees to borrower and guarantors. Lender appealed. The Supreme Court
held that: (1) note provision designating Alaska law was valid and enforceable; (2) Alaska
antideficiency judgment statute did not apply extraterritorially; and (3) borrower and
guarantors were not entitled to attorney fees, but lender was.
Reversed in part and remanded.
Lionel Sawyer & Collins, M. Kristina Pickering, and William R. Killip, Reno, and
Henderson & Nelson, Reno, for Appellant.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks, and Margaret M.
Springgate, Reno, for Respondents.
1. Mortgages.
Absent evidence or argument regarding bad faith or evasion of Nevada law, provision in note that it was to be governed by Alaska
law was valid even though deed of trust on Nevada real property securing note incorporated Nevada foreclosure provisions by
reference.
2. Mortgages.
Fact that foreclosure sale of Nevada property was effected pursuant to Nevada law as called for under deed of trust did not
preclude subsequent action for deficiency judgment from being governed by Alaska law as called for under underlying note; deficiency
action was action on note, and note's provision for application of Alaska law was valid and enforceable absent any evidence or
argument regarding bad faith or evasion of Nevada law.
3. Mortgages.
Even though Alaska law governed action under note, Alaska anti-deficiency judgment statute did not apply extraterritorially to
nonjudicial foreclosure proceedings involving Nevada property; Alaska statute was limited to sales conducted under statutes that
specifically referred to deed of trust conveyances of property located in Alaska. AS 34.20.070, 34.20.100.
4. Mortgages.
Anti-deficiency statutes should be narrowly construed because they derogate from the common law.
5. Costs.
Following dismissal of Alaska lender's suit to recover deficiency judgment, Nevada borrower and guarantors should not have been
awarded attorney fees on ground that suit was brought without reasonable grounds and to harass, even though it was contended that
lender was presumably aware of Alaska law that purportedly foreclosed action; law was not free from doubt and complaint presented
complex legal questions concerning statutory interpretation and legislative intent. NRS 18.010, subd. 2(b).
6. Mortgages.
Any expenses of trust, including attorney fees, should have been satisfied by proceeds of foreclosure sale inasmuch
as deed of trust incorporated by reference statute which provided that proceeds of such sale should first be
used to pay expenses of sale together with reasonable expenses of trust.
satisfied by proceeds of foreclosure sale inasmuch as deed of trust incorporated by reference statute which provided that proceeds of
such sale should first be used to pay expenses of sale together with reasonable expenses of trust. NRS 107.030, subd. 7.
OPINION
Per Curiam:
In 1985, appellant Key Bank of Alaska loaned $869,552.15 to respondent Walker
Boudwin Construction Company (Walker Boudwin), a Nevada corporation. The obligation
was evidenced by a promissory note and secured by a deed of trust on real property located in
Reno. Both were executed by respondent Wayne Donnels, president of Walker Boudwin. The
obligation was additionally secured by personal guaranties signed by Donnels and his wife,
Myllie Jo, in favor of the bank. The note and guaranties were governed by Alaska law while
the deed of trust incorporated by reference Nevada foreclosure provisions.
After Walker Boudwin defaulted on the note in 1986, Key Bank elected to sell the Nevada
property under the provisions of the deed of trust and thereafter sought a deficiency judgment.
The Donnels and Walker Boudwin moved for dismissal of the action under NRCP 12(b)(5),
and the district court granted the motion.
Thereafter, respondents filed a motion for attorney's fees on the basis of NRS 18.010(2)(a)
and (b). Appellant filed a counter-motion for fees on the basis of contractual provisions in the
promissory note and guaranties. The district court granted respondents' motion and denied
appellant's motion. We consolidated Key Bank's appeals from these orders.
[Headnotes 1, 2]
Appellant contends that the district court erred in applying Alaska law because the deed of
trust incorporated by reference NRS 107.030(6), (7) and (8) concerning foreclosure in the
event of default on an obligation. Appellant maintains that the parties intended Nevada law to
apply to actions involving the Reno property and asserts that it is unreasonable to conclude
that the parties would authorized Nevada foreclosure proceedings while intending that their
use would result in forfeiture of a deficiency under Alaska law.
Respondents do not argue, however, that appellant had no right to pursue foreclosure
under the terms of the deed of trust pursuant to NRS 107.080. Rather, they contend that once
appellant elected to foreclose on that basis rather than pursuant to NRS 40.430, it was
precluded by Alaska Statute 34.20.100 from pursuing a deficiency action.1 Furthermore,
regardless of whether the parties agreed that Nevada foreclosure procedures would
apply, an action for a deficiency after partial satisfaction through sale of the security is an
action on the debt.
pursuing a deficiency action.
1
Furthermore, regardless of whether the parties agreed that
Nevada foreclosure procedures would apply, an action for a deficiency after partial
satisfaction through sale of the security is an action on the debt. See Nevada Land & Mtge. v.
Hidden Wells, 83 Nev. 501, 504, 435 P.2d 198, 200 (1967); McMillan v. United Mortgage
Co., 82 Nev. 117, 122, 412 P.2d 604, 606 (1966). We have held that [i]t is well settled that
the expressed intention of the parties as to the applicable law in the construction of a contract
is controlling if the parties acted in good faith and not to evade the law of the real situs of the
contract. Sievers v. Diversified Mtg. Investors, 95 Nev. 811, 815, 603 P.2d 270 (1979).
Because there is no evidence or argument here regarding bad faith or evasion of Nevada law,
the provision designating Alaska law in the promissory note is valid. Therefore, based on our
decisions in Hidden Wells and Sievers, we hold that the district court did not err in concluding
that the deficiency action was an action on the promissory note which contained a valid and
enforceable agreement that Alaska law was to apply to the debt.
[Headnote 3]
Appellant contends, however, that even if the district court correctly concluded that Alaska
law governed, the court erred in applying the relevant statute. Appellant maintains that AS
34.20.100 does not apply extraterritorially to non-judicial foreclosure proceedings because
the language as authorized by AS 34.20.07034.20.130 expressly limits the application of
the statute to summary foreclosure procedures conducted in Alaska.
2
Appellant cites Hull v.
Alaska Federal Sav. & Loan Ass'n, 658 P.2d 122 (Alaska 1983), in which the Alaska
Supreme Court held that AS 34.20.100 applies only to non-judicial foreclosure sales (sales
under a deed of trust under sections 70-130), as in this case, and not to judicial foreclosure
sales. Id. at 124 (citation omitted). [Headnote 4]
[Headnote 4]
__________

1
AS 34.20.100 provides that:
When a sale is made by a trustee under a deed of trust, as authorized by AS 34.20.07034.20.130, no
other or further action or proceeding may be taken nor judgment entered against the maker or the surety
or guarantor of the maker, on the obligation secured by the deed of trust for a deficiency.

2
AS 34.20.070 provides in pertinent part:
Sale by trustee. (a) If a deed of trust is executed conveying real property located in the state to a trustee
as security for the payment of an indebtedness and the deed provides that in case of default or
noncompliance with the terms of the trust, the trustee may sell the property. . . .
(Emphasis added.)
[Headnote 4]
In dismissing appellant's complaint, the district court apparently construed the language of
AS 34.20.100 as illustrative rather than exclusive and concluded that the statute applied
extraterritorially. However, we cannot agree with respondents' contention that if the Alaska
legislature intended to limit the anti-deficiency provisions, it would not have placed
nonrestricting commas around the clause as authorized by AS 34.20.07034.20.130. On
the contrary, we read the offsetting commas as indicating a clear intent to limit the effect of
the statute to foreclosures under those sections, especially because AS 34.20.070 expressly
refers to deed of trust conveyances of property located in Alaska. Furthermore, because
anti-deficiency statutes derogate from the common law, they should be narrowly construed. 3
Sutherland, Statutory Construction 61.01 (4th ed. 1986). Consequently, we agree with
appellant that the district court erred in concluding that AS 34.20.100 applied
extraterritorially.
[Headnote 5]
Appellant further contends that the district court abused its discretion in granting
respondents' motion for attorney's fees based on NRS 18.010(2)(a) and (b). While
respondents maintain that the award was proper under either subsection, we note that because
respondents did not recover a money judgment below, the only possible basis for the court's
award of attorney's fees was subsection (b). When attorney's fees are based on the provisions
in subsection (a), we have held that an award of a money judgment is a prerequisite to an
award of attorney's fees.
3
See, e.g., International Indus. v. United Mtg. Co., 96 Nev. 150,
157, 606 P.2d 163, 167 (1980).
Respondents maintain that attorney's fees were proper under subsection (b) because
appellant's complaint was brought without reasonable grounds and to harass. Respondents
argue that because appellant is a bank doing business and making loans in Alaska, it is
presumably aware of Alaska law. Contrary to respondents' contention, however, the law in
this case was not free from doubt, as is evident from the fact that the district court erred in
applying the Alaska statute. We believe that appellant's complaint presented complex legal
questions concerning statutory interpretation and legislative intent, raised on reasonable
grounds and without any purpose to harass. Accordingly, we hold that the district court
abused its discretion in awarding attorney's fees to respondents on the basis of NRS
18.010(2)(b).
__________

3
Subsection (a) is the current version of the equivalent subsections cited in our previous decisions.
Appellant also contends that the district court erred in denying its counter-motion for
attorney's fees as provided for in the promissory note and the personal guaranties signed by
respondents. Appellant notes that in executing the note and guaranties, the parties expressly
agreed that respondents would pay the bank's reasonable attorney's fees in the event appellant
had to bring an action on the note and guaranties. Respondents argue that the district court
correctly denied appellant's motion for fees, stating that the provisions cited by appellant are
unenforceable because they are barred by AS 34.20.100. As we have already determined that
the district court erred in applying AS 34.20.100, this argument is without merit.
Furthermore, because the provisions in the promissory note and the guaranties were valid and
enforceable, the district court erred in denying appellant's motion for attorney's fees based on
the parties' agreement. See NRS 18.010(1).
[Headnote 6]
However, respondents note that the deed of trust incorporated by reference NRS
107.030(7), which provides that proceeds of a foreclosure sale shall first be used to pay the
expenses of the sale together with reasonable expenses of the trust, including counsel fees.
We agree that any counsel fees incurred in executing on the security (i.e. expenses of the
trust) should have been satisfied by the proceeds of the foreclosure sale. On remand, the
district court should reconsider appellant's motion for attorney's fees based on the provisions
in the promissory note, taking into account the amount of attorney's fees associated with the
foreclosure sale, to which proceeds of the sale should be applied.
Accordingly, we reverse the district court's order dismissing appellant's complaint and
remand for further proceedings consistent with this opinion.
____________
106 Nev. 54, 54 (1990) First Interstate Bank v. Jafbros Auto Body
FIRST INTERSTATE BANK OF NEVADA, Appellant v. JAFBROS AUTO BODY, INC.,
Respondent.
No. 19091
February 20, 1990 787 P.2d 765
Appeal from a punitive damages award in a judgment entered pursuant to a jury verdict.
Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Customer brought suit against bank for damages resulting from banks' failure to credit a
deposit to customer's account. The district court awarded compensatory and punitive damages
in favor of the customer, and bank appealed.
favor of the customer, and bank appealed. The Supreme Court held that although bank, which
failed to credit a deposit to its customer's account, compounded its error by failing to
temporarily credit customer's account after customer brought the error to bank's attention with
result that it wrongfully dishonored certain checks which caused customer to suffer injury to
its business, was negligent to the point of being unconscionably irresponsible, bank could not
be held liable for punitive damages absent substantial evidence of oppression, fraud or
malice.
Reversed.
Robison, Belaustegui & Robb and Creighton C. Skau, Reno; Waldman, Gordon & Silver
and Bruce T. Beesley, Reno, for Appellant.
William W. Harrison, Sparks, for Respondent.
1. Damages.
Award of punitive damages may not stand where record lacks substantial evidence to support required finding of oppression, fraud
or malice, express or implied. NRS 42.005.
2. Damages.
Whether substantial evidence supports a jury's award of punitive damages is a question of law.
3. Appeal and Error.
In considering whether evidence supports findings necessary for an award of punitive damages, reviewing court assumes that jury
believed all the evidence favorable to prevailing party and drew all reasonable inferences in that party's favor.
4. Damages.
Although bank, which failed to credit a deposit to its customer's account, compounded its error by failing to temporarily credit
customer's account after customer brought the error to bank's attention with result that it wrongfully dishonored certain checks which
caused customer to suffer injury to its business, was negligent to the point of being unconscionably irresponsible, bank could not be
held liable for punitive damages absent substantial evidence of oppression, fraud or malice. NRS 42.005.
OPINION
Per Curiam:
This case arises from an error by appellant First Interstate Bank (FIB) in failing to credit a
deposit to the account of respondent Jafbros Auto Body, Inc. (Jafbros). FIB compounded its
error by failing to temporarily credit Jafbros' account, as it promised it would, after Jafbros
brought the error to FIB's attention. As a result, FIB wrongfully dishonored certain Jafbros'
checks which caused Jafbros to suffer injury to its business. Adding insult to injury, when
FIB ultimately corrected its error and credited Jafbros' account, it neglected to remove
entries in the account history that reflected the checks FIB had wrongfully dishonored.
injury, when FIB ultimately corrected its error and credited Jafbros' account, it neglected to
remove entries in the account history that reflected the checks FIB had wrongfully
dishonored. This in turn caused Jafbros to be denied check cashing privileges at an
establishment where it frequently purchased shop supplies. To make matters worse, after
being apprised of the errors in its records it took FIB from May 27, 1986, until August 18,
1986, to resolve the situation it created due to its own negligence. Although Jafbros suffered
no compensable injury in being denied the check cashing privileges, it nonetheless was
inconvenienced, and its principals suffered embarrassment.
A jury awarded Jafbros $13,682.84 in compensatory damages and $50,000 in punitive
damages. FIB does not dispute that its negligence caused Jafbros compensable injury, nor
does it suggest that the jury's award of compensatory damages was in error. It contends,
however, that the jury's award of punitive damages is not supported by substantial evidence
and that it must be reversed. We agree.
[Headnotes 1-3]
NRS 42.010
1
authorizes awards of punitive damages and, in relevant part, provides:
In an action for the breach of an obligation not arising from contract, where the
defendant:
1. Has been guilty of oppression, fraud or malice, express or implied; . . . the
plaintiff, in addition to the actual damages, may recover damages for the sake of
example and by way of punishing the defendant.
An award of punitive damages may not stand where the record lacks substantial evidence to
support the required finding of oppression, fraud or malice, express or implied. Village
Development Co. v. Filice, 90 Nev. 305, 315, 526 P.2d 83, 89 (1974). Substantial evidence is
evidence that a reasonable mind might accept as adequate to support a conclusion. State,
Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 792 P.2d 497, 498 (1986). Whether
substantial evidence supports a jury's award of punitive damages is a question of law.
Henderson v. Security Nat'l Bank, 140 Cal.Rptr. 388, 72 Cal.App.3d 764 (1977). In
considering whether the evidence supports the findings necessary for an award of punitive
damages, we assume that the jury believed all the evidence favorable to the prevailing party
and drew all reasonable inferences in [that party's] favor. Paulin v. Sutton, 102 Nev. 421,
423, 724 P.2d 749, 750 (1986) (emphasis supplied).
__________

1
NRS 42.010 was renumbered and is now NRS 42.005.
[Headnote 4]
The evidence supports an inference that FIB was negligent to the point of being
unconscionably irresponsible. Yet, without substantial evidence of oppression, fraud or
malice, even unconscionable irresponsibility will not support a punitive damages award.
Fuller v. Incoperno, 97 Nev. 448, 449, 634 P.2d 452, 453 (1981). Jafbros did not allege fraud,
and from the evidence presented we do not believe that the jury reasonably could have
inferred that FIB subjected Jafbros to cruel and unjust hardship in conscious disregard of
[Jafbros'] rights. See Jeep Corp. v. Murray, 101 Nev. 640, 650, 708 P.2d 297, 304 (1985).
Nor do we believe that the evidence could support a reasonable inference of malice. NRS
42.010.
In the absence of substantial evidence of oppression, fraud or malice the jury's punitive
damages award cannot stand. Accordingly, we reverse the award of punitive damages. The
judgment is affirmed in all other respects.
____________
106 Nev. 57, 57 (1990) Kovacs v. Acosta
JOHN KOVACS and FIFI KOVACS and GEORGE KANNENGISSER, Appellants, v.
RAFAEL and YOLANDA ACOSTA, Respondents.
No. 20114
February 20, 1990 787 P.2d 368
Appeal from a judgment awarding respondents attorney's fees and costs. Eighth Judicial
District Court, Clark County; Donald M. Mosley, Judge.
Tenants in common brought partition action against other tenants in common, who
counterclaimed for abuse of process. The district court awarded counterclaiming tenants
attorneys fees, expenses incurred in partition action and court costs. Appeal was taken. The
Supreme Court held that: (1) tenants commencing partition action did not abuse process by
subsequently selling their interest to a third party and not terminating action, and (2)
counterclaiming defendants were not entitled to recovery under statute proportioning cost of
partition, as they had subsequently sold their interest to same third party and thus no partition
took place.
Reversed.
Clark & Sacco, Las Vegas, for Appellants.
Richard McKnight, Las Vegas, for Respondents.
1. Process.
Tenants in common who had commenced partition action because they did not get along with the other tenants in common did not
abuse process by failing to dismiss action after they sold their interest in property. NRS 39.010 et seq.
2. Partition.
Remaining tenants in common were not entitled to recovery of attorneys fees and costs from tenants in common who commenced
partition action and did not dismiss it after selling their interest to a third party; remaining tenants ultimately sold their interests to
same third party and consequently no partition took place. NRS 39.480.
OPINION
Per Curiam:
John Kovacs, Fifi Kovacs and George Kannengisser (appellants) owned a parcel of land
together with Rafael and Yolanda Acosta (Acostas). The appellants filed an action to partition
the land but later sold their land without informing the Acostas or dismissing the partition
action. The Acostas filed counterclaims against the appellants for abuse of process and
attorney's fees and costs which arose from the partition. The court awarded the Acostas
attorney's fees, expenses incurred in the partition action, and court costs. We reverse the
district court's holding.
FACTS
Appellants owned a 30-acre parcel of land together with Frank and Ann Flynn (Flynns).
The appellants owned two-thirds of the land; the Flynns owned one-third. The Flynns sold
their one-third interest in the land to the Acostas in October of 1985.
The appellants and the Acostas did not get along. In September of 1986, the appellants
filed an action to partition the 30-acre parcel. The Acostas answered the petition asserting that
the land should not be partitioned.
In September of 1987, the appellants accepted a written offer from HALCO to buy their
interest in the land for $18,500 per acre. The appellants then attempted to buy the Acostas'
interest in the property for $13,000 per acre and did not inform them of their contract with
HALCO until shortly after escrow closed in December of 1987. The appellants also failed to
dismiss their partition action.
In February of 1988, the Acostas filed a counterclaim against the appellants alleging abuse
of process for filing the partition action and not proceeding with it. In November of 1988, the
Acostas counterclaimed against the appellants asking for costs which arose from the partition
action, and attorney's fees.
The court held that the appellants had a duty to dismiss their partition action after they
sold their interest in the land to HALCO.
partition action after they sold their interest in the land to HALCO. The court further held that
pursuant to Chapter 39 of the Nevada Revised Statutes the money spent by the Acostas on the
partition action was for the common good. Therefore, the court awarded the Acostas $16,971
in attorney's fees for defending the original partition action, $800 in appraisal expenses, $450
for engineer's fees, and $4,100 in attorney's fees for the trial.
LEGAL DISCUSSION
[Headnote 1]
The first issue presented is whether the appellants are liable for abuse of process for filing
the partition suit and failing to dismiss it. We have reviewed the record on appeal and
conclude that it is unclear as to whether the court found the appellants liable for abuse of
process.
However, we hold that even if the court found the appellants liable for abuse of process, it
erred in doing so. The two elements required to establish the tort of abuse of process are: (1)
an ulterior purpose by the defendants other than resolving a legal dispute, and (2) a willful act
in the use of the legal process not proper in the regular conduct of the proceeding. See Bull v.
McCluskey, 96 Nev. 706, 615 P.2d 957 (1980); Nevada Credit Rating Bureau v. Williams, 88
Nev. 601, 503 P.2d 9 (1972). First, the appellants had no ulterior purpose in filing the
partition suit. The suit was filed simply because they could not get along with the Acostas and
therefore did not want to be tenants in common with them. Secondly, the appellants' failure to
dismiss the partition suit after they sold the property involved in the partition action does not
constitute willful misuse of legal process pursuant to Bull and Nevada Credit Rating Bureau.
[Headnote 2]
The second issue presented is whether the appellants are liable to the Acostas pursuant to
Chapter 39 of the NRS. The only statute that is relevant to this case is NRS 39.480, which
states:
Cost of partition is lien upon several shares. The costs of partition, fees of the master
and other disbursements and also, in the discretion of the court, reasonable counsel fees
expended by the parties for the common benefit, must 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. If costs and fees
are included in the judgment, there is a lien on the several shares, and the judgment may
be enforced by execution against the shares and against other property held by the
respective parties. When litigation arises between some of the parties only, the court
may require the expenses of the litigation to be paid by the parties to the litigation
or any of them.
the parties only, the court may require the expenses of the litigation to be paid by the
parties to the litigation or any of them.
The major case interpreting NRS 39.480 is Rasmussen v. Thomas, 98 Nev. 216, 664 P.2d
1030 (1982), which held that where partners stipulated to a partition it was not an abuse of
the court's discretion to award the plaintiff partial attorney's fees since the partition was done
for the common good.
We hold that the court erred in awarding costs and attorney's fees to the Acostas pursuant
to NRS 39.480. At the time this case came to trial both the appellants and the Acostas had
already sold their interest in the 30-acre parcel to HALCO. The court did not order a partition.
Since no land was partitioned the court could not award attorney's fees or costs pursuant to
NRS 39.480.
Accordingly, we reverse the district court's judgment and order that all parties bear their
own costs and attorney's fees.
____________
106 Nev. 60, 60 (1990) Gentile v. State Bar
DOMINIC P. GENTILE, Appellant, v. THE STATE BAR OF NEVADA, Respondent.
No. 20149
February 21, 1990 787 P.2d 386
Appeal from a decision of the Southern Nevada Disciplinary Board of the State Bar of
Nevada recommending that appellant be issued a private reprimand.
In an attorney disciplinary proceeding the Supreme Court held that criminal defense
attorney's press conference claiming innocence of client warrants private reprimand.
Affirmed.
Galatz, Earl, Catalano & Smith and Timothy C. Williams, Las Vegas, for Appellant.
Donald J. Campbell, Chairman, Southern Nevada Disciplinary Board, Las Vegas; Mary St.
Clair, Executive Director, State Bar of Nevada, Las Vegas; John Howe, Bar Counsel, State
Bar of Nevada, Las Vegas, for Respondent.
Kevin Kelly, Las Vegas, for Amicus Curiae National Association of Criminal Defense
Lawyers.
1. Attorney and Client.
To determine questions of fact, higher degree of proof is required in attorney disciplinary matters, than in ordinary
civil matters; standard is whether findings are supported by clear and convincing evidence.
attorney disciplinary matters, than in ordinary civil matters; standard is whether findings are supported by clear and convincing
evidence. SCR 105, subd. 2(e).
Recommendations of Disciplinary Board of State Bar are not binding on Supreme Court; rather, Court must review record de novo
and exercise independent judgment to determine whether and what type of discipline is warranted.
Criminal defense attorney's press conference claiming innocence of client accused of taking money and drugs from safety deposit
box, accusing police detective of taking drugs and money, implying drug problem by detective, and accusing potential witnesses of
being convicted money launderers and drug dealers and of lying violates prohibition against extrajudicial statement and warrants
private reprimand. SCR 177, subds. 1, 2(a), 3.
OPINION
Per Curiam:
The Southern Nevada Disciplinary Board of the State Bar of Nevada (the Board)
recommended a private reprimand of attorney Dominic P. Gentile based on comments he
made at a press conference regarding a pending criminal matter in which he represented the
accused. In appealing the Board's decision, Gentile has expressly waived his right to
confidentiality in these proceedings. Because we find that clear and convincing evidence
supports the Board's recommendation, we affirm.
Appellant Dominic P. Gentile represented a client accused of taking money and drugs
from a safety deposit box rented by undercover police officers. To respond to adverse
publicity about his client, Gentile held a press conference the day after his client was indicted.
He stated that he had evidence to prove that his client was innocent, and characterized his
client as a scapegoat of the police. In addition, he criticized potential witnesses and their
motives, and stated that they were convicted money launderers and drug dealers. He also
named a certain police detective as the likely perpetrator and implied that the detective
abused drugs. Gentile had researched the disciplinary rules regarding trial publicity prior to
the conference.
A jury trial was held approximately six months later. Gentile's client was acquitted of all
charges.
The State Bar of Nevada subsequently filed a complaint alleging that Gentile's remarks at
the press conference violated Supreme Court Rule 177. Following a hearing, the Board found
that Gentile had violated the rule and recommended that he be privately reprimanded. Gentile
appeals the Board's decision.
Supreme Court Rule 177 states, in pertinent part: 1.
1. A lawyer shall not make an extrajudicial statement that a reasonable person
would expect to be disseminated by means of public communication if the lawyer
knows or reasonably should know that it will have a substantial likelihood of materially
prejudicing an adjudicative proceeding.
2. A statement referred to in subsection 1 ordinarily is likely to have such an effect
when it refers to . . . a criminal matter . . . and the statement relates to:
(a) The character, credibility, reputation or criminal record of a party, suspect in a
criminal investigation or witness . . . .
SCR 177(1)-(2)(a).
[Headnotes 1, 2]
To determine questions of fact, a higher degree of proof is required in disciplinary matters
than in ordinary civil matters. In re Miller, 87 Nev. 65, 72, 482 P.2d 326, 330 (1971). The
standard is whether the findings are supported by clear and convincing evidence. SCR
105(2)(e); Copren v. State Bar, 64 Nev. 364, 379, 183 P.2d 833, 840 (1947). However, the
Board's recommendations, though persuasive, are not binding on this court. We must review
the record de novo and exercise independent judgment to determine whether and what type of
discipline is warranted. State Bar v. Claiborne, 104 Nev. 115, 126, 756 P.2d 464, 471 (1988);
In re Kenick, 100 Nev. 273, 276, 680 P.2d 972, 974 (1984).
[Headnote 3]
Based on our independent review of the record, we find that the discipline meted out by
the Board was appropriate. Clear and convincing evidence supports the conclusion that
appellant knew or reasonably should have known that his comments had a substantial
likelihood of materially prejudicing the adjudication of his client's case. The knows or
reasonably should know standard looks to what a person of reasonable prudence and
intelligence ought to have known given the circumstances. A reasonable attorney, especially
after having researched the issue, should have known that his conduct was improper,
particularly with respect to the comments regarding the police detective and other potential
witnesses. In addition, the comments were substantially likely to prejudice the proceedings.
The case was highly publicized, and the press conference was held the day after the grand
jury indictment and the same day as the arraignmenta time when the intensity of public
interest in a notorious case is at its peak. Furthermore, the comments were substantially likely
to materially prejudice the proceedings. Although the evidence demonstrates that there
was no actual prejudice in this case, absence of actual prejudice does not establish that
there was no substantial likelihood of material prejudice.
106 Nev. 60, 63 (1990) Gentile v. State Bar of Nevada
demonstrates that there was no actual prejudice in this case, absence of actual prejudice does
not establish that there was no substantial likelihood of material prejudice.
Furthermore, clear and convincing evidence supports the Board's finding that appellant
violated SCR 177(2)(a). Appellant stated that he had evidence that a police detective took the
drugs and the money, and implied that the detective had a drug problem. He also stated that
potential witnesses were convicted money launderers and drug dealers, and accused them of
lying to get themselves out of trouble. The fact that these comments were timed to have
maximum impact and related to the character, credibility, reputation or criminal record of the
police detective and other potential witnesses establishes by clear and convincing evidence
the substantial likelihood of material prejudice to the adjudication of the accused's criminal
proceeding. We therefore conclude that appellant's comments fell within the scope of conduct
prohibited by Supreme Court Rule 177(1)-(2)(a), and reject appellant's contention that they
fell within the ambit of conduct permitted by Rule 177(3).
We also reject appellant's constitutional challenges as lacking merit under either the
federal or Nevada constitutions.
Accordingly, we affirm the Board's decision.
1

____________
106 Nev. 63, 63 (1990) Dolby v. State
ROBERT JOHN DOLBY, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19810
February 22, 1990 787 P.2d 388
Appeal from judgment of conviction upon jury verdict of attempted second degree
kidnapping, attempted murder, and the district court's order vacating and amending the
attempted murder sentence following conviction. Eighth Judicial District Court, Clark
County; J. Charles Thompson, Judge.
Defendant was convicted in the district court of, inter alia, attempted murder, and he
appealed. The Supreme Court held that upon determining that defendant had been lawfully
sentenced to ten-year term for primary offense, but that ten-year enhancement had been
unlawfully imposed, court could vacate unlawful sentence but could not modify lawful
sentence for primary offense.
Affirmed in part; reversed in part.
__________

1
The Honorable Cliff Young, Chief Justice, has voluntarily disqualified himself from consideration of this
case.
106 Nev. 63, 64 (1990) Dolby v. State
Morgan D. Harris, Public Defender, James R. Hales, Deputy Public Defender; Michael
Gardner, Deputy Public Defender, Clark County, for Appellant.
Brian McKay, Attorney General; Rex Bell, District Attorney, James Tufteland, Chief
Deputy District Attorney, Daniel M. Seaton, Deputy District Attorney, Clark County, for
Respondent.
1. Double Jeopardy.
Once defendant begins to serve lawful sentence, sentence to increased term violates constitutional proscription against double
jeopardy; if initial sentence is unlawful, however, there is no double jeopardy problem in vacating or modifying whole sentence.
2. Criminal Law.
When court is forced to vacate unlawful sentence on one count, court may not increase lawful sentence on separate count.
3. Criminal Law.
Upon determining that defendant had been lawfully sentenced to ten-year term for primary offense, but that ten-year enhancement
had been unlawfully imposed, court could vacate unlawful sentence but could not modify lawful sentence for primary offense; primary
sentence and enhancement were separate and distinct sentences.
OPINION
Per Curiam:
Robert Dolby, Jr., appeals from his conviction of attempted second degree kidnapping and
attempted murder and from the district court's order amending the sentence for the attempted
murder count. For the reasons set forth below, we affirm the convictions, vacate the amended
sentence imposed for attempted murder and reinstate the lawful ten-year sentence initially
imposed.
In the span of half an hour, Dolby tried to kidnap a woman and attempted to murder an
eighty-year-old man. During the commission of a robbery against the eighty-year-old man
Dolby repeatedly kicked the man in the head. While the victim lay in a pool of blood, Dolby
laughed and continued to beat the victim until Dolby was subdued by two casino employees.
Based upon the evidence submitted, the jury convicted Dolby of robbery of a victim sixty-five
years of age or older, attempted second degree kidnapping, and attempted murder of a victim
sixty-five years of age or older.
On December 13, 1988, the date of Dolby's initial sentencing, counsel for Dolby reminded
the court that Nevada statutes do not provide for an enhanced penalty on a charge of
attempted murder when the victim is sixty-five years of age or older. Nevertheless, the court
sentenced Dolby to ten years on the attempted murder charge, with an enhancement of
ten years because of the age of the victim, for a total of twenty years.
106 Nev. 63, 65 (1990) Dolby v. State
the court sentenced Dolby to ten years on the attempted murder charge, with an enhancement
of ten years because of the age of the victim, for a total of twenty years.
Counsel for Dolby brought a motion to correct the unlawful sentence on January 13, 1989.
Both parties and the court agreed that the enhanced penalty for the attempted murder charge
was unlawful. Counsel for Dolby argued that the appropriate remedy was simply to vacate the
illegal enhancement. The state conversely argued that the court was free to resentence the
defendant on all counts. The court vacated the enhanced penalty and resentenced Dolby on
the primary offense of attempted murder. The court's amended sentence was for a total of
twenty years, which corresponded exactly with the sentence imposed under the attempted
murder charge when the enhancement penalty was included.
Dolby claims the court was required to vacate the enhancement, while the state maintains
that the court was free to amend the sentence to conform with the court's original intent that
Dolby serve twenty years on the attempted murder charge.
[Headnote 1]
The question presented to us is whether the court violated Dolby's double jeopardy rights
when it vacated and then doubled the sentence for attempted murder. Once a defendant
begins to serve a lawful sentence, he may not be sentenced to an increased term; to do so
violates the constitutional proscription against double jeopardy. Ex Parte Lange, 85 U.S. 163,
18. Wall. 163 (1873); United States v. Evans, 459 F.2d 1134 (1972); State v. Suniga, 701
P.2d 1197 (Ariz. 1985). If the initial sentence is unlawful, however, there is no double
jeopardy problem in vacating or modifying the whole sentence. Bozza v. United States, 330
U.S. 160 (1947).
[Headnote 2]
When a court is forced to vacate an unlawful sentence on one count, the court may not
increase a lawful sentence on a separate count. Chandler v. United States, 468 F.2d 834 (5th
Cir. 1972). In Kennedy v. United States, 330 F.2d 26 (9th Cir. 1964), the defendant pleaded
guilty to a number of various criminal postal offenses. On all but two of the charges (which
were breaking and entering a post office with the intent to commit larceny) the court imposed
a ten-year sentence. The court ordered that all the sentences were to run concurrently. After
serving two months of each sentence, the defendant sought an order to correct an unlawful
sentence; he argued that the maximum penalty for the offense of entering a post office with
the intent to commit larceny was five years, not ten. The court agreed that the sentence was
unlawful and that it could only impose a five-year sentence.
106 Nev. 63, 66 (1990) Dolby v. State
and that it could only impose a five-year sentence. At resentencing the court imposed two
five-year sentences and ordered that one of the five-year sentences run concurrent to the other
charges and that the other sentence run consecutively. The judge then stated on the record that
when the original sentences were imposed he intended to sentence petitioner to a total term
of ten years, regardless of whether the counts carried a maximum of ten years or only five
years. Kennedy, 330 F.2d at 27.
In reversing and remanding the case, the Ninth Circuit stated:
The initial sentences imposed for the breaking and entering counts were not absolutely
void but were void only as to the unlawful or excessive portions thereof. [Citations
omitted.] Five year terms and their concurrent running were the lawful portions of the
initial sentences; only the excess of five years in each sentence was unlawful. In this
situation, the excessive sentences are to be corrected, not by absolute discharge of the
prisoner, but by an appropriate amendment of the invalid sentence of the court . . .
[citation omitted]. But the court may not increase or make more severe the valid
portions of the sentence as originally imposed where the prisoner has fully suffered one
of the alternative punishments to which alone the law subjects him, [citations omitted],
or where, as here, service of the legal portions of this sentence has commenced.
Id.
Dolby concedes that the sentence that the court imposed is not for two distinctly separate
counts, as in Kennedy and Chandler, but rather for a primary penalty and an enhanced penalty
as provided for in NRS 193.167. Dolby argues, however, that the rationale of the federal
cases is equally applicable. We agree. In Nevada Dep't of Prisons v. Bowen, 103 Nev. 477,
745 P.2d 697 (1987), we dealt with the issue of whether, for parole purposes, the Nevada
Department of Prisons should consider the penalty for the primary offense and enhancement
as separate and distinct or as one continuous sentence. In ruling that the penalty for the
primary offense and the enhancement penalty should be treated distinctly, this court stated:
The penalty for a primary offense and the enhancement penalty imposed pursuant to NRS
193.165 are separate and distinct, and the consecutive sentences imposed must be treated as
separate sentences for all purposes. Id. at 481, 745 P.2d at 699 (emphasis added).
[Headnote 3]
There is no reason for treating the primary and enhanced penalties as two distinct
sentences for purposes of parole and as one sentence for purposes of determining whether the
court can alter the primary offense when the enhancement is unlawfully imposed.
106 Nev. 63, 67 (1990) Dolby v. State
alter the primary offense when the enhancement is unlawfully imposed. We conclude,
therefore, that the primary sentence and the enhancement are separate and distinct. The
district court initially sentenced Dolby to a lawful ten-year sentence for the primary offense of
attempted murder. The court also imposed an unlawful enhancement of ten years. Only the
unlawful sentence may be vacated, and Dolby's lawful sentence cannot be modified.
We have reviewed Dolby's contentions regarding the sufficiency of evidence and find
them to be without merit. Thus, we affirm Dolby's convictions. However, we vacate the
amended sentence of attempted murder, and we reinstate the lawful ten-year sentence initially
imposed.
____________
106 Nev. 67, 67 (1990) Nobles v. Warden
WILLIAM PATRICK NOBLES, Appellant, v. WARDEN, NEVADA DEPARTMENT OF
PRISONS, Respondent.
No. 20715
February 22, 1990 787 P.2d 390
Appeal from order denying a post-conviction petition for a writ of habeas corpus. First
Judicial District Court, Carson City; Michael R. Griffin, Judge.
Defendant convicted of attempted sexual assault brought post-conviction petition for writ
of habeas corpus. The district court summarily denied petition, and appeal was taken. The
Supreme Court held that summary denial of habeas corpus petition was not abuse of
discretion where petitioner alleged that his sentence was based on mistakes of fact that were
contained in presentence report, but failed to point out any alleged errors.
Affirmed.
William Patrick Nobles, In Proper Person, Appellant.
Brian McKay, Attorney General, Carson City, for Respondent.
1. Habeas Corpus.
Summary denial of habeas corpus petition was not abuse of discretion where petitioner alleged that his sentence was based on
mistakes of fact that were contained in presentence report, but failed to point out any alleged errors.
2. Criminal Law.
Sentencing is individual process; no rule of law requires court to sentence co-defendants to identical terms.
3. Habeas Corpus.
Allegation that co-defendant received lesser sentence was insufficient, without more, to state claim for relief from present
sentence.
106 Nev. 67, 68 (1990) Nobles v. Warden
OPINION
Per Curiam:
In September of 1988, appellant was convicted, pursuant to a guilty plea, of one count of
attempted sexual assault and was sentenced to serve twenty years in the Nevada State Prison.
Appellant did not file a direct appeal challenging his conviction. On November 13, 1989,
however, appellant filed in the district court the instant post-conviction petition for a writ of
habeas corpus. The district court denied the petition summarily without requiring the state to
answer the allegations therein. This appeal followed.
[Headnote 1]
Appellant alleged in his petition that his twenty-year sentence was based on mistakes of
fact that were contained in the presentence report. We note, however, that appellant failed to
point out to the district court the alleged errors that were contained in the presentence report.
Under these circumstances, this constituted only a naked claim for relief. Therefore, the
district court did not err when it denied this claim for relief without an evidentiary hearing.
See Hargrove v. State, 100 Nev. 498, 686 P.2d 222 (1984).
[Headnotes 2, 3]
Appellant also contended below that his twenty-year sentence was cruel and unusual
because his co-defendant received only eight years in prison for his role in the crime. He
contended that this court held in Biondi v. State, 101 Nev. 252, 699 P.2d 1062 (1985), that
such disparity in sentencing of co-defendants violates due process. We note, however, that
Biondi was a death case in which this court conducted a proportionality review of the death
sentence pursuant to former NRS 177.055(2)(d). Thus, the issues facing the Biondi court
differed substantially from the issues presented in this case. We also note that sentencing is an
individualized process; therefore, no rule of law requires a court to sentence co-defendants to
identical terms. See People v. Walford, 716 P.2d 137 (Colo.App. 1985). Thus, appellant's
allegations, without more, were insufficient to state a claim for relief from his sentence.
Therefore, the district court did not err when it denied this claim for relief without an
evidentiary hearing. See Hargrove v. State, 100 Nev. 498, 686 P.2d 222 (1984).
Having reviewed the record on appeal, and for the reasons set forth above, we conclude
that appellant cannot demonstrate error in this appeal, and that briefing and oral argument are
unwarranted. See Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975), cert.
denied, 423 U.S. 1077 (1976). Accordingly, we affirm the order of the district court.
____________
106 Nev. 69, 69 (1990) Baal v. State
THOMAS EDWARD BAAL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19666
February 22, 1990 787 P.2d 391
Appeal from a judgment of conviction of first degree murder and a sentence of death, from
a judgment of conviction of robbery and a sentence of two consecutive fifteen-year prison
terms, and from a denial of appellant's motion to withdraw his guilty pleas. Eighth Judicial
District Court, Clark County; John F. Mendoza, Judge.
Defendant was convicted in district court of murder and robbery. On appeal, the Supreme
Court held that: (1) denial of motion to withdraw guilty plea was not abuse of discretion, and
(2) death sentence was not arbitrarily imposed.
Affirmed.
Schieck & Derke, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Chief Deputy District Attorney, and Ulrich Smith, Deputy District Attorney, Las
Vegas, for Respondent.
1. Criminal Law.
Guilty plea is presumptively valid, and burden is upon appellant to show that denial of motion to withdraw plea constituted clear
abuse of discretion.
2. Criminal Law.
Following sentencing, guilty plea may be set aside only to correct manifest injustice; guilty plea will be considered properly
accepted if trial court sufficiently canvassed defendant to determine whether defendant knowingly and intelligently entered plea. NRS
176.165.
3. Criminal Law.
Finding that murder defendant's guilty plea was voluntary, thereby warranting denial of motion to withdraw plea, was sufficiently
supported by evidence of exhaustive canvassing which occurred prior to acceptance of plea, during which defendant repeatedly
asserted that his plea was voluntary.
4. Criminal Law.
Whether hearing is required in order to determine defendant's competency to enter plea is governed by reasonable doubt standard;
determining whether such doubt exists rests within trial court's discretion.
5. Criminal Law.
Failure to conduct competency hearing prior to accepting murder defendant's guilty plea was not abuse of discretion; psychiatric
examiners all concluded that defendant was competent to stand trial, and defendant was able to intelligently respond during plea
canvass.
106 Nev. 69, 70 (1990) Baal v. State
6. Homicide.
Capital sentencing panel was justified in rejecting asserted mitigating circumstance, that murder was committed while defendant
was under influence of extreme mental or emotional disturbance; there was evidence in record that, though defendant had personality
disorder, he was not psychotic. NRS 200.035.
7. Homicide.
Death sentence was not arbitrarily imposed where there were no mitigating factors, and aggravating factors included fact that
murder was committed during course of robbery and while defendant was under sentence of imprisonment. NRS 200.030.
8. Criminal Law.
Sentencing by a three-judge panel does not result in arbitrary or capricious imposition of death penalty absent showing that such
panels invariably return with sentence of death.
9. Jury.
Sentencing by three-judge panel does not unconstitutionally deprive murder defendant of his right to jury; defendant in capital
case is not guaranteed jury at sentencing. U.S.C.A.Const. Amend. 7.
10. Constitutional Law; Homicide.
Sentencing by a three-judge panel following guilty plea, rather than by jury, did not deprive capital murder defendant of equal
protection; defendant had option of pleading not guilty, and thus ability to place himself within class of defendants which he claimed
received more favorable treatment. U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
After entering pleas of guilty, appellant Thomas Edward Baal was convicted of first degree
murder and of robbery, both with use of a deadly weapon. Baal was thereafter sentenced to
death by a three-judge panel. The district court sentenced Baal to two consecutive fifteen-year
terms for robbery and denied Baal's motion to withdraw his guilty pleas. Our review of the
record convinces us that Baal's guilty pleas were properly accepted and his sentences properly
imposed. We therefore affirm.
THE FACTS
At approximately 5:30 a.m. on February 26, 1988, Thomas Baal arrived on foot at
McCarran airport in Las Vegas. Baal approached Frances P. Maves as she was checking the
engine compartment of her Discover America Charter shuttle bus. Baal told Maves that he
needed help and asked for money. Maves gave Baal twenty dollars. Baal then pulled a knife
from his pocket and demanded more money. Maves tried to flee, but Baal grabbed her and
forced her into her car which was parked behind the shuttle bus. Maves failed in her attempts
to calm Baal down, and then to gain control of the knife. According to Baal, after Maves hit
his knife hand he told her, "You shouldn't have done that.
106 Nev. 69, 71 (1990) Baal v. State
knife hand he told her, You shouldn't have done that. Now you pay. I sentence you to death,
and he began stabbing her. After stabbing Maves twice while in the car, Baal pulled Maves
out of the car, turned her over, and resumed his attack. Baal then took Maves' car and fled the
scene.
Shortly after Baal departed, Maves was discovered by a co-worker. First aid was rendered
and emergency help summoned. Despite the efforts to save her, Maves was pronounced dead
at 8:15 a.m. A pathologist testified that the cause of death was multiple stab wounds to the
chest, back, and right shoulder which had pierced Maves' heart, aorta, spine, and both lungs.
Investigators probing the scene found a fixed-blade survival knife and a scabbard designed
for a folding knife. Inscribed inside the scabbard were the name, address, and phone number
of Baal's father. Edward Baal was contacted and Thomas Baal developed as a suspect. At
approximately 11:30 a.m. on February 26, Maves' bloodstained car was found abandoned.
The contents of Maves' purse were strewn throughout the interior and the rear license plate
was missing.
Baal was recognized and arrested in Reno on February 28, 1988. Las Vegas Detectives
Tom Dillard and Bob Leonard met Baal in Reno and Dillard gave him his Miranda warning.
1
Baal stated that he understood his rights and was willing to speak to the officers without an
attorney present. Baal initially denied any involvement in the killing. However, after
detectives described the incriminating evidence they had found, Baal confessed. Upon
returning to Las Vegas, Baal assisted the officers in locating Maves' two-way radio, her coat,
the missing license plate, the murder weapon, and admitted taking $120 from Maves' purse.
Baal was examined by two psychiatrists in March 1988. Dr. Jurasky examined him on
March 21, and Dr. Master examined him on March 28. Both doctors opined that Baal was
competent to stand trial, able to understand right from wrong at the time of the alleged
offense, and disturbed by not psychotic. On June 28, 1988, Baal was arraigned and pled not
guilty and not guilty by reason of insanity. A third psychiatrist, Dr. O'Gorman, was appointed
to examine Baal and, following an August 31, 1988 examination, also concluded that Baal
was competent to stand trial.
On August 24, 1988, Baal filed a motion to suppress his confession, claiming it was
obtained under duress. On September 22, 1988, Baal appeared for a hearing on his motion to
suppress. However, defense counsel informed the district court that Baal had instructed them
not to argue the motion, and that Baal wished to plead guilty.
__________

1
Miranda v. Arizona, 384 U.S. 436, 478-9 (1966).
106 Nev. 69, 72 (1990) Baal v. State
to plead guilty. Baal opposed the district judge's suggestion that the matter be continued and,
following a thorough canvassing, pled guilty to first degree murder and to robbery, both with
use of a deadly weapon.
On October 24, 1988, a three-judge panel conducted a penalty hearing. Baal's parents
testified on his behalf. The panel found three aggravating circumstances: murder involving
depravity of mind, murder committed during the commission of a robbery, and murder
committed by a person under sentence of imprisonment. The panel found no mitigating
circumstances and, upon a unanimous vote, sentenced Baal to death. On December 20, 1988,
the district court sentenced Baal to two consecutive fifteen-year terms on the robbery
conviction.
On December 9, 1988, Baal filed a motion to withdraw his guilty pleas. At the May 24,
1989 hearing on that motion, the district judge noted the extensive canvassing that had
occurred prior to Baal's plea, and Baal's assertions during the canvass that his plea was free,
voluntary, uncoerced, and based on the fact of his guilt. In response to Baal's specific
contention that corrections officers had assaulted him with broken glass, and that he had pled
guilty in order to avoid further harassment and brutality, the district judge noted Baal's
contradictory statements to Dr. O'Gorman where Baal claimed he had cut himself while in jail
because he likes to feel pain. Thus, the district court denied Baal's motion to withdraw his
pleas. Baal appeals from his judgments of conviction, his sentences, and from the denial of
his motion to withdraw his guilty pleas.
DISCUSSION
[Headnotes 1, 2]
Baal contends that his guilty pleas were involuntarily entered and that it was error to deny
his motion to withdraw them. A guilty plea is presumptively valid and the burden is upon
appellant to show that the denial of a motion to withdraw the plea constituted a clear abuse of
discretion. Wynn v. State, 96 Nev. 673, 675, 615 P.2d 946, 947 (1980). Following
sentencing, a guilty plea may be set aside only to correct a manifest injustice. NRS 176.165.
A guilty plea will be considered properly accepted if the trial court sufficiently canvassed the
defendant to determine whether the defendant knowingly and intelligently entered into the
plea. Williams v. State, 103 Nev. 227, 230, 737 P.2d 508, 510 (1987) (citing Bryant v. State,
102 Nev. 268, 721 P.2d 364 (1986).
[Headnote 3]
The record clearly establishes that Baal was sufficiently canvassed and belies Baal's claim
that his pleas were coerced. As already noted, Baal's statements to Dr.
106 Nev. 69, 73 (1990) Baal v. State
already noted, Baal's statements to Dr. O'Gorman contradict the claim that he pled guilty due
to harassment and brutality while in custody. In addition, at his September 22, 1988 hearing,
Baal specifically denied that his pleas were the result of promises, threats, coercion, or his
treatment while incarcerated. Given the exhaustive canvassing that occurred and Baal's
repeated assertions that his pleas were voluntary, we conclude that the district court did not
abuse its discretion in denying Baal's motion to withdraw his pleas.
[Headnote 4]
Baal contends that he was incompetent to enter a guilty plea, and that it was error not to
conduct a competency hearing prior to accepting his pleas. This contention also lacks merit.
A hearing is constitutionally and statutorily required if there is substantial evidence which
raises a reasonable doubt as to a defendant's competency to stand trial. Melchor-Gloria v.
State, 99 Nev. 174, 180, 660 P.2d 109, 113 (1983); NRS 178.400-178.440. Whether a hearing
is required in order to determine a defendant's competency to enter a plea is also governed by
the reasonable doubt standard. Warden v. Conner, 93 Nev. 209, 210, 562 P.2d 483, 484
(1977). Determining whether such a doubt exists rests within the trial court's discretion.
Melchor-Gloria, 99 Nev. at 180, 660 P.2d at 113.
[Headnote 5]
In the instant case, Baal's psychiatric examiners all concluded that he was competent to
stand trial and none of the examiners considered him to be psychotic. One psychiatrist
described Baal's intelligence as low normal, another as borderline. The psychiatrists'
conclusions were consistent, were noted by the trial judge prior to accepting Baal's pleas, and
no challenge to Baal's competency was made in the district court. Given the above
circumstances, Baal's intelligent responses during the plea canvass, and the record as a whole,
we conclude that there was not substantial evidence which raised a reasonable doubt as to
Baal's competency to enter a plea. Thus, the district court was not required to conduct a
competency hearing.
Baal contends that the death sentence imposed in his case was arbitrary and capricious.
Baal claims the sentencing panel erred in failing to find, as a mitigating circumstance, that the
murder was committed while he was under the influence of extreme mental or emotional
disturbance.
2
Baal further contends that the panel erred in considering depravity of mind as
an aggravating circumstance, since instructions regarding the applicability of that
circumstance have been deemed insufficient to channel and limit the sentencer's discretion.
__________

2
See NRS 200.035.
106 Nev. 69, 74 (1990) Baal v. State
limit the sentencer's discretion. Deutscher v. Whitley, 884 F.2d 1152, 1162-3 (9th Cir. 1989).
Baal does not contest the panel's finding that the murder was committed during the course of
a robbery and while he was under sentence of imprisonment.
[Headnotes 6, 7]
The record contains evidence that although Baal has a personality disorder, he is not
psychotic. Having considered that evidence, the sentencing panel was justified in rejecting the
asserted mitigating circumstance. Farmer v. State, 101 Nev. 419, 421-22, 705 P.2d 149, 151
(1985). Given the lack of mitigating circumstances, and without considering the challenged
depravity of mind aggravating circumstance, it is clear that Baal's death sentence was
warranted by and imposed in conformity with the provisions of NRS 200.030. We therefore
reject Baal's contention that his death sentence was arbitrarily imposed.
[Headnote 8]
Baal raises three constitutional challenges to Nevada's capital sentencing procedures. Baal
first claims that allowing a defendant to plead guilty in a capital case, with the sentence then
being determined by a three-judge panel,
3
results in arbitrary and capricious imposition of
the death penalty. To support this contention, Baal argues that three-judge panels invariably
return with a sentence of death. Baal cites no empirical evidence to support this argument, nor
does he cite authority to support the argument that the use of a three-judge panel is
unconstitutional. Indeed, the use of a three-judge panel has withstood constitutional scrutiny.
Spaziano v. Florida, 468 U.S. 447 (1984); Hill v. State, 102 Nev. 377, 724 P.2d 734 (1986).
Thus, we reject Baal's first constitutional challenge to the use of a three-judge panel.
[Headnote 9]
Second, Baal contends that sentencing by a three-judge panel unconstitutionally deprives a
defendant of his right to a jury. We disagree. Both the United States Supreme Court and this
court have rejected the argument that a defendant in a capital case is guaranteed a jury at
sentencing. Cabana v. Bullock, 474 U.S. 376, 385-6 (1986); Hill, 102 Nev. at 379, 724 P.2d
at 375.
[Headnote 10]
Third, Baal contends that sentencing by a three-judge panel following a guilty plea, rather
than by a jury, is a denial of equal protection. Again, we disagree. In rejecting this final
argument we note that Baal had the option of pleading not guilty, and thus the ability to place
himself within the class of defendants which he now claims receives more favorable
treatment.
__________

3
See NRS 175.558.
106 Nev. 69, 75 (1990) Baal v. State
he now claims receives more favorable treatment. See State v. Freudenthaler, 734 P.2d 894,
896 (Or.Ct.App. 1987).
Finally, given the aggravating circumstances properly found in Baal's case, we hold that
Baal's death sentence is not excessive, considering both the crime and the defendant. NRS
177.055(2)(d). We further conclude that nothing in the record indicates that Baal's sentence
was imposed under the influence of passion, prejudice, or any arbitrary factor. NRS
177.055(2)(c).
For the foregoing reasons, we affirm Baal's convictions of first degree murder with use of
a deadly weapon, of robbery with use of a deadly weapon, and the sentences imposed
thereunder.
4

____________
106 Nev. 75, 75 (1990) Staley v. State
DAVID PATRICK STALEY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19599
February 22, 1990 787 P.2d 396
Appeal from amended judgments of conviction. Eighth Judicial District Court, Clark
County; Miriam Shearing, Judge.
Defendant was convicted in the district court of burglary, and he appealed modification of
sentences. The Supreme Court, Young, C. J., held that: (1) terms of defendant's sentences
were not part of plea bargain, and (2) district court lacked jurisdiction to modify sentence
after defendant began serving them, absent showing that any sentencing error worked to
extreme detriment of defendant.
Reversed and remanded with instructions.
Steffen, J., dissented.
James E. Mayberry, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex A. Bell, District Attorney and James
Tufteland, Chief Deputy District Attorney, Bradford R. Jerbic, Deputy, Clark County, for
Respondent.
1. Criminal Law.
Defendant pleading guilty cannot stipulate to status as habitual offender; question of validity of prior convictions must be
determined by district court as matter of law, with punishment dependent upon court's exercise of its
discretion.
__________

4
In light of the foregoing opinion, appellant's February 15, 1990 motion requesting that his appeal be
stayed and abandoned, and requesting that the matter be remanded to the district court for an order setting an
execution date, is hereby deemed moot.
district court as matter of law, with punishment dependent upon court's exercise of its discretion.
2. Criminal Law.
Term of burglary defendant's sentence was not part of plea bargain, though defendant had indicated that he would stipulate to
major habitual criminal status, in that court retained discretion to impose wide range of punishment.
3. Criminal Law.
District court lacked jurisdiction to modify sentences after defendant began serving them, absent showing that any sentencing error
worked to extreme detriment of defendant. NRS 176.185, subd. 4.
OPINION
By the Court, Young, C. J.:
This is an appeal from amended judgments of conviction modifying appellant's sentences.
On June 9, 1988, appellant entered guilty pleas to two counts of burglary in District Court
Case Nos. C82921 and C82931. In return for the guilty pleas, the State agreed to dismiss
seventeen additional counts of burglary then pending against appellant. Further, the State
indicated that it would seek a determination from the district court that appellant was a
habitual criminal based on three prior felony convictions, and would argue for consecutive
life sentences as a result of the two burglary convictions. Appellant agreed to stipulate to
major habitual criminal status. See NRS 207.010(2) (person convicted of felony who has
three or more prior felony convictions and is adjudged a habitual criminal by the district court
shall be punished by imprisonment in the State prison for life with or without possibility of
parole).
On July 28, 1988, a sentencing hearing was held on the two burglary convictions. Counsel
for appellant indicated to the district court that two of the prior convictions relied on by the
State had been charged in a single indictment in New York and arose out of a single criminal
episode.
1
Counsel therefore argued that these two convictions constituted only one prior
conviction for purposes of enhancement under the habitual criminal statute. See Halbower v.
State, 96 Nev. 210, 211-212, 606 P.2d 536, 537 (1980) (where two or more convictions
result from the same act, transaction or occurrence, and are prosecuted in the same indictment
or information, those several convictions may be utilized only as a single prior conviction
for purposes of the habitual criminal statute"); see also Rezin v. State, 95 Nev. 461, 463
__________

1
Appellant attempted to enter a house, but was unsuccessful. Appellant proceeded down the street and
attempted to enter a second house, but was arrested before entering. Appellant pleaded guilty to two counts of
attempted burglary which were charged in a single criminal information.
utilized only as a single prior conviction for purposes of the habitual criminal statute); see
also Rezin v. State, 95 Nev. 461, 463, 596 P.2d 226, 227 (1979) (purpose of recidivist statute
is to discourage repeat offenders and to afford them an opportunity to reform). Counsel
suggested that appellant could only be sentenced under the little habitual criminal statute.
See NRS 207.010(1) (person adjudged a habitual criminal with two prior felony convictions
may be sentenced to not less than 10 years nor more than 20 years). The record does not
indicate that the State responded to or contradicted these arguments.
2
Defense counsel
further argued that appellant should be treated leniently under all of the circumstances.
The district court sentenced appellant to twenty years in prison for each of the burglaries,
the sentences to run consecutively.
3
Judgments of conviction were entered on August 23,
1988.
More than seven weeks later, on October 13, 1988, the State filed a motion in the district
court to modify appellant's sentences or, in the alternative, to set appellant's guilty pleas aside.
Based on its interpretation of Halbower and Rezin, the State argued that defense counsel's
representations that appellant could be sentenced to only twenty years was legally incorrect.
Representing that life sentences were a part of the plea bargain, the State argued that
appellant should be resentenced to life terms or that the pleas should be set aside based on
appellant's failure to honor his part of the plea bargain by stipulating to major habitual
criminal status. Appellant opposed the motion.
Following a hearing, the district court concluded that life sentences had been a part of the
plea bargain. The district court therefore granted the State's motion to resentence appellant
and sentenced appellant to consecutive life terms with the possibility of parole. Amended
judgments of conviction imposing life sentences were entered on November 3, 19SS, and
this timely appeal followed.4
__________

2
A discussion was held off the record, at which the State may have challenged defense counsel's arguments.
Following this discussion, however, defense counsel again argued that only the lesser penalty of NRS
207.010(1) applied. The State did not indicate on the record that it disagreed with counsel's arguments.

3
The district court's sentence appears to be based on an exercise of discretion and leniency, rather than on
any interpretation of the law under Halbower. Specifically, the district court noted that appellant was not
dumb, that in light of his record he would have to serve some jail time, that maybe appellant could turn it
around, and that the district court would follow the recommendation of the defense counsel. At no time did
the district court indicate that it was sentencing appellant under the little habitual criminal statute, as opposed to
the major habitual criminal statute. The district court gave appellant the maximum penalty allowed by law under
the little habitual criminal statute.
tences were entered on November 3, 1988, and this timely appeal followed.
4

In the court below, the State argued that appellant should be resentenced to life terms
pursuant to the plea bargain. The district court essentially granted the request for specific
performance of the plea bargain. On appeal, appellant contends that the district court erred
because the term of appellant's sentence was not a part of the plea bargain. We agree.
[Headnote 1]
A person cannot stipulate to a status. The question of the validity of the prior convictions
must be determined by the district court as a matter of law; the punishment which follows is
dependent on the number of valid prior convictions. Further, the district court has discretion
not to impose a penalty under the habitual criminal statutes regardless of the number of valid
prior convictions. See French v. State, 98 Nev. 235, 645 P.2d 440 (1982). Similarly, it is
within the discretion of the district court to sentence a defendant under the little habitual
criminal statute rather than the major habitual criminal statute if the circumstances so
warrant. That appears to be precisely what the district court originally did in this case.
[Headnote 2]
The matter of sentencing was left to the discretion of the district court. Both appellant and
the State were informed at the time the plea was entered that the district court had sole
discretion to impose an appropriate sentence. Both appellant and the State were fully aware
that the sentence might be anywhere from one year to life without the possibility of parole.
Thus, the State is wrong in its contention that the plea bargain required that the district court
impose a life sentence.
Further, the State's assertion that appellant agreed to a life sentence as part of the plea
bargain is incorrect. Although appellant indicated that he would stipulate to major habitual
criminal status, the district court had jurisdiction to impose a wide range of punishments
under major habitual criminal status, and appellant certainly hoped at the time he entered
his plea that the district court would show mercy. The State's unilateral belief, and even
expectation, that the district court would impose a term of life as a result of the plea is not
sufficient to establish that a life sentence was a part of the bargain. Thus, the district court's
conclusion that a life sentence "was bargained for at the plea" is clearly erroneous.
__________

4
The basis for the district court's judgment was that the plea bargain had been breached; at no time did the
district court indicate that it believed that its prior judgment had been based on an incorrect interpretation of the
law (although the State argued as a basis for a new sentencing that the decision was based on an incorrect
interpretation of the law).
conclusion that a life sentence was bargained for at the plea is clearly erroneous.
[Headnote 3]
Appellant also contends that the district court lacked jurisdiction to modify his sentences
after he began serving them. We agree. NRS 176.185(4) provides that [t]he court shall not
suspend the execution of a sentence of imprisonment after the defendant has begun to serve
it. The defendant begins to serve a sentence when a judgment of conviction is signed by the
judge and entered by the clerk. See Miller v. Hayes, 95 Nev. 927, 604 P.2d 117 (1979).
5

The State contends, however, that the district court retains jurisdiction to modify a
sentence if that sentence is based on a materially untrue assumption of fact or mistake of law.
The State argues that the district court's conclusion that the maximum sentence it could
impose on appellant was twenty years was legally incorrect, thus justifying the district court's
action in resentencing appellant. We disagree.
Assuming, without deciding, that the State's interpretation of our holdings in Halbower
and Rezin is correct, the district court's alleged error in interpreting the law would not
empower the district court to modify appellant's sentences after he began to serve them.
In State v. District Court, 100 Nev. 90, 677 P.2d 1044 (1984), this court stated that,
although a district court generally lacks jurisdiction to suspend or modify a sentence after the
defendant has begun to serve it, exceptions to this rule have been made when a court has
made a mistake in rendering a judgment which works to the extreme detriment of the
defendant. Id. at 95, 677 P.2d at 1047 (quoting Warden v. Peters, 83 Nev. 298, 301, 429
P.2d 549, 551 (1967); emphasis in original). The court noted, however, that the district court's
authority to modify a sentence was based on the due process rights of the defendant, and
stated that not every mistake or error which occurs during sentencing gives rise to a due
process violation. The cases implicitly recognize [that] . . . a due process violation arises only
when the errors result in materially untrue' assumptions about a defendant's record. Id. at
97, 677 P.2d at 1048-49 (emphasis added). The court concluded that these considerations
represent an appropriate jurisdictional limit to the correction or modification of a defective
sentence by a district court, and held that if a
__________

5
We note that the district court retains jurisdiction to correct an illegal sentence at any time. See NRS
176.555. The State has not argued that appellant's original sentences were illegal.
sentencing court pronounces sentence within statutory limits, the court will have jurisdiction
to modify, suspend or otherwise correct that sentence if it is based upon materially untrue
assumptions or mistakes which work to the extreme detriment of the defendant. Id. at 97,
677 P.2d at 1049 (emphasis added).
In this case, the district court allegedly relied on defense counsel's interpretation of this
court's holding in Halbower in determining to sentence appellant under NRS 207.010(1).
6
The district court pronounced sentences that were within the limits prescribed by the statute,
and which were in all respects legal. The State, relying on its own interpretation of this court's
holdings in Halbower and Rezin, then successfully argued below that appellant should instead
have been sentenced under NRS 207.010(2).
7
The district court's alleged error in
sentencing appellant, however, did not work to the extreme detriment of appellant, and the
State was not denied due process by the district court's failure to sentence appellant to longer
prison terms. We conclude, therefore, that the district court lacked jurisdiction to modify
appellant's sentences in this case after he began to serve them.
8

__________

6
As noted previously, it is not apparent from this record that appellant's original sentences were based on
any mistake of law on the part of the district court. Specifically, it is unclear whether the district court felt itself
bound by appellant's interpretation of Halbower at the original sentencing hearing. However, for the sake of
responding to the State's arguments, we assume without deciding that the district court's original judgments were
based, at least in part, on a mistake of law.

7
We note that, regardless of which interpretation of our holdings in Halbower and Rezin the district court
accepted, the district court had discretion to sentence appellant under either NRS 207.010(1) or NRS
207.010(2). See NRS 207.010(4).

8
Citing cases from other state and federal jurisdictions, the State has argued that a sentencing court should
have jurisdiction to modify a sentence under the circumstances of this case. The cases cited by the State do not
support the State's position in this case. Most of those cases concern circumstances where a sentence was
imposed that was less than the minimum sentence allowed by statute. The appellate courts properly held that the
imposition of an illegal sentence did not preclude that later correction of the error by the trial court. See Bozza v.
United States, 330 U.S 160, 166-167 (1947); People v. Jackson, 237 Cal.Rptr. 373 (Cal.Ct.App. 1987); State v.
Hoisington, 671 P.2d 1362 (IdahoCt.App. 1982); State v. Aguilar, 650 P.2d 32 (N.M.Ct.App. 1982); State v.
Smissaert, 694 P.2d 654 (Wash. 1985). In another case cited by the State, the United States Supreme Court
upheld against double jeopardy attack a federal statute which allowed the government to appeal a sentence
imposed by a federal district court. See United States v. DiFrancesco, 449 U.S. 117 (1980). The concerns
expressed in DiFrancesco are completely foreign to the issues in this case. In still another case cited by the
State, the appellate court upheld the trial court's authority to reimpose the same sentence against a defendant
after learning that some information relied on at the first sentencing was incorrect. See State v.
Accordingly, we reverse the decision of the district court granting the State's motion to
modify appellant's sentences, and we remand this matter to the district court with instructions
to vacate its amended judgments of conviction and reinstate the original judgments of
conviction.
Springer, Mowbray, and Rose, JJ., concur.
Steffen, J., dissenting:
I respectfully dissent.
It is manifestly clear that if the prosecutor had stipulated to Staley's status under the little
habitual criminal statute. NRS 207.010(1), as part of the plea bargain and thereafter, at
sentencing, argued for a major habitual criminal status, NRS 207.010(2), this court would
have unhesitatingly vacated any sentence based upon the latter statute. In Doane v. State, 98
Nev. 75, 639 P.2d 1175 (1982), the State agreed as part of the plea bargain to stand silent at
the time of sentencing. When the judge pronounced the maximum sentence on each of the
felony counts involved in the plea, no mention was made as to whether the sentences would
run concurrently or consecutively. Under Nevada law, NRS 176.035(1), multiple sentences
run concurrently unless otherwise specified. After the court pronounced sentence, the
prosecutor asked if the sentences would run consecutively, and the court responded in the
affirmative. We reversed and remanded for imposition of concurrent sentences consistent
with the original sentencing prior to what we considered to be the prosecutor's breach of the
plea agreement. See also Riley v. Warden, 89 Nev. 510, 515 P.2d 1269 (1973).
I am unable to ascertain by what principles of criminal or contract law the State is
meticulously bound by the terms of a plea agreement and the defendant is not. Here, as noted
by the majority, Staley stipulated to a major habitual criminal status. During the sentencing,
in violation of the stipulation, defense counsel argued that Staley should be sentenced under
the little habitual criminal statute. Sentences imposed under the major habitual statute must
be life sentences with or without parole; sentences pronounced under the minor habitual
statute may be not less than ten years nor more than twenty years. Clearly, the sentencing
procedure was prejudiced by Staley's breach of the negotiated plea bargain.
__________
Hatton, 409 N.W.2d 854 (Minn. 1987). Finally, in People v. Wright, 450 N.Y.S.2d 473 (N.Y. 1982), the
appellate court upheld the trial court's action in correcting an inadvertent error in a judgment of conviction
which the record clearly indicated resulted when the trial judge misspoke. None of these cases supports the
proposition that a district court may modify a legal sentence after a defendant has begun to serve it based on a
re-argument of the relevant case law.
sentencing procedure was prejudiced by Staley's breach of the negotiated plea bargain.
Without citing to any authority, the majority declares that a person cannot stipulate to a
status. I suggest that the majority is wrong. Aside from the fact that Staley had incurred the
requisite three felony convictions prior to his plea entry in the instant case, Staley was also
charged with seventeen additional counts of burglary which the State agreed to dismiss as part
of the negotiated plea agreement. Under the circumstances, it was perfectly proper for Staley
to stipulate to being treated under the major habitual criminal statute. Moreover, for purposes
of enhancement, when a defendant admits to prior convictions, as he may, he effectively
admits to whatever status the law affixes to the number of prior convictions conceded by the
defendant. As held in Hanson v. State, 716 P.2d 688, 690 (Okla.Crim.App. 1986), In the
absence of an objection or evidence proving otherwise, it may be concluded that a conviction
admitted by the defendant at trial . . . is final. The fact that a defendant's judicial admission
occurs at the entry of a plea or at sentencing, rather than trial, is of no significance. Staley and
his counsel were free to admit Staley's status under the major habitual statute.
Moreover, if the majority's contention that a person cannot stipulate to a status is correct,
then the plea agreement was the product of a mutual mistake which should provide the State,
who has been prejudiced by the mistake, with the right to have the agreement declared
invalid.
I suggest that the majority also misses the point in observing that the sentencing judge has
a discretion not to impose a penalty under the habitual criminal statutes regardless of the
number of valid prior convictions. It would have made just as much sense to say, in Doane,
that because the judge had a discretion to sentence Doane originally to consecutive terms, the
prosecutor's breach of the agreement to remain silent was of no consequence. The point is, as
a result of Staley's breach, the judge elected to sentence Staley under the minor habitual
statute. Subsequently, when the judge was made aware of Staley's breach by the State's
motion to modify Staley's sentences or to set his guilty pleas aside, the judge determined that
Staley should have been sentenced under the major habitual statute and changed the sentence
accordingly. In my opinion, the sentencing judge properly exercised her discretion in revising
the sentence to comport with her option under the true stipulation between the State and
Staley. Once a sentencing judge has determined to apply the major habitual statute, a life
sentence with or without parole is mandatory.
In Doane, we held that [c]ommonly, when a breach [of a plea bargain] 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."
bargain] 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. 98 Nev. at 77,
639 P.2d at 1176. In the instant case, if the sentencing judge is not to be affirmed in
modifying Staley's sentence, the State should be entitled to have Staley's guilty pleas set aside
or to have a different judge sentence Staley under circumstances that are in strict accordance
with the negotiated plea agreement.
Staley received the full benefit of his plea bargain when seventeen pending counts of
burglary were dismissed by the State. The State, by reason of Staley's breach of the
agreement, has been deprived of its right to have Staley sentenced under agreed upon
conditions that should have existed at sentencing. This is but one more instance when the
State, representing the people, is prejudiced by unilateral advantages accorded criminal
defendants by the judiciary despite clear evidence of guilt.
Because I believe that both the State and the defendant must strictly comply with the terms
of a negotiated plea agreement, I must respectfully dissent from the majority's opinion
favoring a contrary position.
____________
106 Nev. 83, 83 (1990) Ballard v. District Court
ROSA G. BALLARD, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, AND THE
HONORABLE EARLE W. WHITE, JR., DISTRICT JUDGE, Respondents, ALICE
M. KOLATH, Real Party in Interest.
No. 19821
February 22, 1990 787 P.2d 406
Original petition for writ of prohibition. Eighth Judicial District Court, Clark County;
Earle W. White, Jr., Judge.
Automobile insurer petitioned for writ of prohibition to challenge district court order
permitting injured pedestrian to discover statement given by insured to insurer. The Supreme
Court held that neither work product privilege nor attorney-client privilege protected
statement.
Writ denied.
Pearson and Patton, Las Vegas, for Petitioner.
Tingey and Burris, Las Vegas, for Respondents.
Crockett and Myers, Las Vegas, for Amicus Curiae.
Work product doctrine did not protect insured's statement to automobile insurer, where statement was not taken at request of
attorney. NRCP 26(b)(3).
Materials resulting from insurance company's investigation are not made in anticipation of litigation within meaning of work
product doctrine, unless insurer's investigation has been performed at request of attorney. NRCP 26(b)(3).
3. Witnesses.
Attorney-client privilege did not protect insured's statement to automobile insurer, where statement was not taken at direction of
counsel for insured. NRS 49.095.
4. Witnesses.
Attorney-client privilege applies to insurers only when statement is taken by insurer at express direction of counsel for insured.
NRS 49.095.
OPINION
Per Curiam:
This petition for a writ of prohibition challenges an order of the district court permitting
the real party in interest, Alice M. Kolath, to discover a statement given by petitioner, Rosa
G. Ballard, to her automobile liability insurance carrier.
On December 15, 1987, Kolath was crossing a street on foot when she was struck by
petitioner's automobile. On December 21, 1987, petitioner's insurer took petitioner's
statement concerning the accident. This statement was taken after Kolath informed the insurer
that she was represented by counsel.
On August 2, 1988, Kolath filed a civil complaint against petitioner in the district court. In
the course of the litigation, Kolath requested production of petitioner's statement to her
insurer. When petitioner refused, the discovery commissioner recommended that the
statement be produced. The district court agreed and ordered the statement produced. This
petition followed.
[Headnotes 1, 2]
Petitioner first contends that the statement was taken in anticipation of litigation and is
therefore subject to a qualified privilege under the work product doctrine. See NRCP
26(b)(3) (a party must show substantial need and undue hardship in order to obtain
documents prepared in anticipation of litigation by another party or that party's
representative). The issue presented is one of first impression in Nevada. We have considered
the conflicting authorities from other jurisdictions as cited by the parties and amicus curiae.1
We conclude that the better rule is that the materials resulting from an insurance
company's investigation are not made "in anticipation of litigation" unless the insurer's
investigation has been performed at the request of an attorney.
curiae.
1
We conclude that the better rule is that the materials resulting from an insurance
company's investigation are not made in anticipation of litigation unless the insurer's
investigation has been performed at the request of an attorney. See Langdon v. Champion,
752 P.2d 999 (Alaska 1988). Therefore, because the statement in this case was not taken at
the request of an attorney, it is not privileged under NRCP 26(b)(3).
[Headnotes 3, 4]
Petitioner also contends that her statement should be protected under the attorney-client
privilege. See NRS 49.095. The question presented is also one of first impression in Nevada,
and again, the authorities addressing this issue from other jurisdictions are conflicting. We
conclude that the better rule is that the attorney-client privilege applies to insurers only when
the statement is taken by the insurer at the express direction of counsel for the insured. See
Langdon v. Champion, 752 P.2d 999 (Alaska 1988). The statement in this case was not taken
at the direction of counsel for the insured. Therefore, the statement is not subject to the
privilege, and the district court properly ordered the statement produced. Accordingly, we
deny the petition and vacate our previous order staying enforcement of the challenged order
of the district court.
____________
106 Nev. 85, 85 (1990) SIIS v. Christensen
STATE INDUSTRIAL INSURANCE SYSTEM, Appellant, v. ROBERT L.
CHRISTENSEN, Respondent.
No. 19667
February 22, 1990 787 P.2d 408
Appeal from district court order reinstating disability claim disallowed by the appeals
officer. Second Judicial District Court, Washoe County; Deborah A. Agosti, Judge.
Welder and steam fitter who suffered from obstructive pulmonary disease filed claim for
disability benefits. Welder's claim was denied by the State Industrial Insurance System, and
welder sought judicial review. The district court reversed, and State Industrial Insurance
System appealed. The Supreme Court held that disability benefits claim filed by worker who
had smoked up to two packs of cigarettes a day for twenty-seven years would be remanded to
administrative agency which, in denying worker's claim for disability benefits, had failed to
take evidence as to whether worker's job-related asbestos exposure may have
aggravated pulmonary condition.
__________

1
We previously granted the Nevada Trial Lawyers Association permission to file an amicus curiae brief in
opposition to the instant petition.
claim for disability benefits, had failed to take evidence as to whether worker's job-related
asbestos exposure may have aggravated pulmonary condition.
Pamela Bugge, General Counsel, and Matthew H. Feiertag, Associate General Counsel,
Carson City, for Appellant.
Langton and Kilburn, Reno, for Respondent.
1. Administrative Law and Procedure; Workers' Compensation.
Disability benefits claim filed by worker who had smoked up to two packs of cigarettes a day for twenty-seven years would be
remanded to administrative agency which, in denying worker's claim for disability benefits, had failed to take evidence on whether
worker's job-related asbestos exposure may have aggravated pulmonary condition.
Court's review of decision of State Industrial Insurance System denying worker's claim for disability benefits is limited to record
developed in agency proceedings and determination of whether substantial evidence exists in record to support agency's ruling.
3. Administrative Law and Procedure.
Agency ruling without substantial evidentiary support is arbitrary or capricious and therefore unsustainable.
OPINION
Per Curiam:
After working forty years as a welder and steamfitter, respondent, Robert L. Christensen
(Christensen), filed a disability claim for asbestosis. According to Christensen's claim, his
asbestos poisoning occurred while working at the Reno-Sparks sewage treatment facility in
early 1980. The record reveals that Christensen's exposure to asbestos during that period was
of relatively short duration (approximately 8 weeks) but was extremely intense. Christensen
also testified that approximately 70-75 percent of all jobs he worked on throughout his career
included some form of exposure to asbestos. In addition to his asbestos exposure, Christensen
had smoked from one and one-half to two packs of cigarettes a day for twenty-seven years.
In 1978, Christensen saw his family physician; x-rays were taken which showed that
Christensen had a slight amount of lung scarring, but not enough to cause him any difficulty
at that time. However, Christensen had been suffering from shortness of breath since
approximately 1975. Christensen saw another physician in 1980 following his exposure to
asbestos on the Reno-Sparks job. In 1985, Christensen again saw a physician and was
diagnosed as having severe obstructive pulmonary disease which rendered him unable to
continue working.
diagnosed as having severe obstructive pulmonary disease which rendered him unable to
continue working.
Christensen filed his SIIS claim and was referred to Dr. Charles Hine in San Francisco, a
specialist in occupational diseases, environmental health and toxicology. Dr. Hine's diagnosis
concluded Christensen's exposure to asbestos was of too short a duration and intensity to
cause the disease process resulting in Christensen's total disability.
After reviewing all of the evidence, the hearing officer reversed SIIS's decision to
terminate Christensen's benefits. SIIS appealed and sought a supplemental report from Dr.
Hine. Dr. Hine concluded in his supplemental report that Christensen's health problems were
not the result of exposure to asbestos on the Sparks project, nor was it a reasonable medical
probability that they were due to asbestos.
The appeals officer reversed the hearing officer. The appeals officer specifically found that
Christensen's respiratory problems were not aggravated by employment-related asbestos
exposure. Finally, the appeals officer was reversed by the district court, which held that the
appeals officer made implicit factual findings not supported by evidence. Specifically, the
trial court found no evidence in the record that definitively excluded asbestos exposure as a
contributing source of Christensen's disability. The record revealed that Dr. Hine had only
been asked whether there was a direct cause and effect relationship between Christensen's
lung condition and his exposure to asbestos; the question of aggravation had not been posited
to Dr. Hine.
The standard of review of an administrative agency's decision on appeal is:
When a decision of an administrative body is challenged, the function of this court is
identical to that of the district court. It is to review the evidence presented to the
administrative body and ascertain whether that body acted arbitrarily or capriciously,
thus abusing its discretion [footnote omitted]. This limitation upon court review is
written into the Administrative Procedure Act, NRS ch. 233B, . . . It is there provided
that court review is confined to the record before the agency, NRS 233B.140(4); that
the court may not substitute its judgment for that of the agency as to the weight of the
evidence on questions of fact, NRS 233B.140(5); and that the agency decision may be
reversed, inter alia, if clearly erroneous, or arbitrary and capricious. NRS
233B.140(5)(e)(f). (Citations omitted.)
Gandy v. State ex rel. Div. Investigation, 96 Nev. 281, 282-83, 607 P.2d 581, 582-83 (1980).
Therefore, we have limited our review to determining whether there was substantial
evidence in the record to support the agency determination that Christensen's respiratory
problems were not aggravated by employment-related exposure to asbestos.
review to determining whether there was substantial evidence in the record to support the
agency determination that Christensen's respiratory problems were not aggravated by
employment-related exposure to asbestos.
[Headnotes 1-3]
The record reveals no evidence in support of the appeals officer's determination that
asbestos did not aggravate Christensen's respiratory condition. Because the agency's decision
on this issue was not supported by the evidence, the district court was correct in reversing the
appeals officer. However, the district court's decision was also based upon an implied finding
of fact unsupported by the record evidence, to the effect that asbestos exposure did aggravate
Christensen's condition. A district court's review is limited to the record developed in agency
proceedings and a determination of whether substantial evidence exists in the record to
support the agency's ruling. An agency ruling without substantial evidentiary support is
arbitrary or capricious and therefore unsustainable. See SIIS v. Swinney, 103 Nev. 17, 20, 731
P.2d 359, 361 (1987).
For reasons specified above, we reverse and remand so that a proper factual determination
may be made by the agency as to whether job-related asbestos exposure aggravated
Christensen's condition.
____________
106 Nev. 88, 88 (1990) Young v. Johnny Ribeiro Building
BILL YOUNG, Appellant, v. JOHNNY RIBEIRO BUILDING, INC.; JOHN J. D'ATRI;
LIVIA J. D'ATRI, Respondents.
No. 19672
February 22, 1990 787 P.2d 777
Appeal from judgment of the district court sanctioning appellant for willful fabrication of
evidence. Second Judicial District Court, Washoe County; Jerry C. Whitehead, Judge.
Partner brought suit against managing partner alleging breach of fiduciary duty. The
district court found that partner had willfully fabricated evidence, and dismissed complaint
with prejudice and entered default judgment. Partner appealed. The Supreme Court held that:
(1) evidence supported conclusion that partner willfully fabricated evidence; (2) sanction of
dismissal and entry of default judgment were authorized both by statute and by court's
inherent powers to sanction abusive litigation practices; and (3) partner's appeal was not
frivolous and did not warrant further sanctions.
Affirmed.
Patrick James Martin, Reno, for Appellant.
Lionel Sawyer & Collins, and M. Kristina Pickering, Reno, for Respondent Ribeiro.
Hill, Cassas, deLipkau & Erwin and Pierre A. Hascheff, Reno, for Respondents D'Atri.
1. Partnership.
Evidence supported finding that partner willfully fabricated evidence in action claiming managing partner had breached fiduciary
duty; forensic expert testified that partner had written diary entries with different pen and added entries during discovery, even though
partner claimed entries were made in diaries contemporaneously with reported events.
District court's express oral admonition to partner to rectify any inaccuracies in deposition testimony was order to provide or
permit discovery sufficient to authorize discovery sanctions for willful noncompliance with such order. NRCP 37(b)(2).
3. Judgment; Pretrial Procedure.
Courts have inherent equitable powers to dismiss actions or enter default judgment for abusive litigation practices even if litigation
abuses are not specifically proscribed by statute. NRCP 37, 37(b)(2).
Orders for dismissal with prejudice as discovery sanction must be supported by express, careful and preferably written explanation
of court's analysis of factors which include, but are not limited to, degree of willfulness of offending party, extent to which
nonoffending party would be prejudiced by lesser sanction, severity of sanction relative to severity of abuse, whether any evidence has
been irreparably lost, feasibility and fairness of alternative sanctions, policy favoring adjudication on merits, whether sanctions
unfairly operate to penalize party for misconduct of his or her attorney, and need to deter both parties and future litigants from similar
abuses. NRCP 37.
District court did not abuse its discretion in imposing sanctions of fees and costs, dismissal and entry of default judgment as result
of partner's willful fabrication of evidence during discovery in partner's suit claiming managing partner breached fiduciary duty. NRCP
37(b)(2).
Managing partner's documents stated prima facie accounting sufficient to allow default judgment against partner who willfully
fabricated evidence during discovery in suit alleging managing partner breached fiduciary duty; partner forfeited right to object to all
but most patented fundamental defects in accounting when he fabricated evidence NRCP 55(b).
7. Costs.
Partner's appeal from district court's sanctions of dismissal and entry of default judgment after partner willfully fabricated evidence
was not frivolous and did not warrant further sanctions. NRCP 37(b)(2), 55(b); NRAP 38.
OPINION
Per Curiam:
This is a discovery sanctions case. The district court found that appellant Bill Young
(Young) willfully fabricated evidence during discovery. Based on this finding, the court
sanctioned Young by dismissing his entire complaint, ordering Young to pay certain of the
fees and costs of respondent Johnny Ribeiro Building, Inc. (JRBI), and adopting the
accounting proposed by JRBI as the final accounting of Young's and JRBI's interests in the
parties' partnership. We affirm the judgment of the district court.
FACTS
Young, JRBI and respondent John J. D'Atri (D'Atri) were partners in a partnership to
develop and sell real estate in Reno. Young filed this suit against JRBI, stating causes of
action for an accounting and dissolution of the partnership, for breach of JRBI's fiduciary
duty as managing partner to keep adequate records, and for breach of contract based on
JRBI's failure to build the last 10 out of a promised 35 condominiums. Having no material
disputes with Young and having settled his disagreements with JRBI, D'Atri is merely a
nominal party to this appeal.
During discovery, Young gave JRBI two of his personal business diaries as supplemental
discovery responses. The diaries contained dated handwritten notations by Young. The two
most important sets of notations indicated that JRBI had orally guaranteed a profit to the
partners of $45,000 per condominium, and that certain advances made by the partners to JRBI
were understood to be interest-bearing loans rather than capital contributions, which do not
carry interest. Young testified in deposition that he generally made the entries in these diaries
nearly contemporaneously with the conversations recorded. Confronted with the suspicious
looking nature of some of the notations, Young dissembled, saying he may have added some
of the notations up to a year after the alleged conversations. Young denied ever having added
any notations during discovery, but JRBI was not convinced.
Informed in chambers of JRBI's suspicion of fabrication, the court offered Young the
opportunity to clarify when he made the notations after consulting with counsel. Young never
recanted or clarified his original deposition testimony. JRBI brought a motion to dismiss
based on the fabrications. After a full evidentiary hearing, the court found that Young had
added the two sets of notations to his diaries just before turning the diaries over to JRBI
during discovery and that Young had given conflicting accounts in his deposition regarding
when he made, or may have made, the entries.
entries. Based on these and other facts, the court found that Young had willfully fabricated
evidence.
The court sanctioned Young by ordering him to pay JRBI's costs and fees on the motion to
dismiss, by dismissing Young's entire complaint with prejudice, and by adopting the final
accounting proposed by JRBI as a form of default judgment against Young. Young appeals
the final judgment of sanctions, arguing that the severe sanctions were an abuse of discretion
and that JRBI's accounting was factually insufficient to constitute a default judgment. JRBI
requests sanctions pursuant to NRAP 38 on the grounds that this appeal is frivolous.
LEGAL DISCUSSION
Young's appeal raises five main issues: whether the court's finding of willful fabrication
was supported by substantial evidence; whether the court had authority to impose the
sanctions; whether the court abused its discretion in imposing these sanctions, especially the
harsh sanction of dismissal with prejudice; whether the accounting adopted by the court was
factually sufficient as a default judgment; and whether this court should grant JRBI's request
for NRAP 38 sanctions against Young for bringing this appeal.
I. The court's finding of willful fabrication of evidence.
[Headnote 1]
The court's finding of willful fabrication is supported by substantial evidence. Based on
chemical and microscopic examination of the two sets of diary notations, JRBI's forensic
expert Albert Lyter testified that it was his opinion, to a reasonable scientific probability, that
Young had written the entries in question with a different pen than the one used to make the
original entries. Lyter further concluded that Young had added the entries during discovery
soon before turning over the diaries to JRBI. Additionally, the highlighter which Young had
used to call JRBI's attention to the entries smeared only the words which Lyter found to have
been added during discovery. The words which were part of the original entries were not
smeared. Young testified in deposition that he generally made the entries in the diaries nearly
contemporaneously with the reported events and he denied having added any entries during
discovery. If true, this testimony would greatly increase the probative value of the diaries.
Coupled with Young's deposition testimony, the late-added diary entries constitute fabrication
of evidence. The court further had substantial evidence on which to conclude that the
fabrication was willful. Given the rather strong evidence that the entries were belatedly
added, Young's failures to recant his denials and to clarify his other patently misleading
testimony regarding the timing of the entries in the face of the court's admonition to do
so are strong indications of willfulness.
other patently misleading testimony regarding the timing of the entries in the face of the
court's admonition to do so are strong indications of willfulness.
II. The sources of authority for the discovery sanctions.
[Headnotes 2, 3]
Two sources of authority support the district court's judgment of sanctions. First, NRCP
37(b)(2) authorizes as discovery sanctions dismissal of a complaint, entry of default
judgment, and awards of fees and costs. Generally, NRCP 37 authorizes discovery sanctions
only if there has been willful noncompliance with a discovery order of the court. Fire
Insurance Exchange v. Zenith Radio Corp., 103 Nev. 648, 651, 747 P.2d 911, 913 (1987).
The court's express oral admonition to Young to rectify any inaccuracies in his deposition
testimony suffices to constitute and order to provide or permit discovery under NRCP
37(b)(2). Second, courts have inherent equitable powers to dismiss actions or enter default
judgments for . . . abusive litigation practices. Televideo Systems, Inc. v. Heidenthal, 826
F.2d 915, 916 (9th Cir. 1987) (citations omitted). Litigants and attorneys alike should be
aware that these powers may permit sanctions for discovery and other litigation abuses not
specifically proscribed by statute.
III. Statement and application of the standards governing imposition of the discovery
sanctions of dismissal and entry of default judgment.
[Headnote 4]
Where the discovery sanctions are within the power of the district court, this court will not
reverse the particular sanctions imposed absent a showing of abuse of discretion. Kelly
Broadcasting v. Sovereign Broadcast, 96 Nev. 188, 192, 606 P.2d 1089, 1092 (1980). Even if
we would not have imposed such sanctions in the first instance, we will not substitute our
judgment for that of the district court. Id. Where the sanction is one of dismissal with
prejudice, however, we believe that a somewhat heightened standard of review should apply.
First, fundamental notions of due process require that the discovery sanctions for discovery
abuses be just and that the sanctions relate to the claims which were at issue in the discovery
order which is violated. Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d 585, 591 (9th Cir.
1983). Second, while dismissal need not be preceded by other less severe sanctions, it should
be imposed only after thoughtful consideration of all the factors involved in a particular case.
Aoude v. Mobile Oil Corporation, Nos. 89-1690, 89-1696 {1st Cir.
(1st Cir. December 29, 1989) (Westlaw). We will further require that every order of dismissal
with prejudice as a discovery sanction be supported by an express, careful and preferably
written explanation of the court's analysis of the pertinent factors. The factors a court may
properly consider include, but are not limited to, the degree of willfulness of the offending
party, the extent to which the non-offending party would be prejudiced by a lesser sanction,
the severity of the sanction of dismissal relative to the severity of the discovery abuse,
whether any evidence has been irreparably lost, the feasibility and fairness of alternative, less
severe sanctions, such as an order deeming facts relating to improperly withheld or destroyed
evidence to be admitted by the offending party, the policy favoring adjudication on the merits,
whether sanctions unfairly operate to penalize a party for the misconduct of his or her
attorney, and the need to deter both the parties and future litigants from similar abuses. See
generally Wyle, supra; Aoude, supra; Kelly, supra; Silas v. Sears Roebuck & Co., 586 F.2d
382 (5th Cir. 1978).
[Headnote 5]
Having stated the pertinent abuse of discretion standard of review, we must now apply it.
The court's money sanction was patently proper. Based on the rules just stated, we further
hold that the district court did not abuse its discretion in imposing the more severe sanctions
of dismissal and entry of default judgment. First, all of the claims dismissed related to the
fabricated evidence. All these claims were designed to establish Young's interest in the
partnership. The fabricated diary entries were highly relevant to the determination both of
Young's profit share and any contract damages based on JRBI's failure to build the last 10
condominiums. Contrary to Young's contentions, the entries were also relevant to Young's
cause of action for an accounting. Second, we cannot conclude that the sanctions were
manifestly unjust. The court treated Young fairly, giving him a full evidentiary hearing and
offering him the opportunity to clarify his testimony, which Young failed to do. Additionally,
the order of dismissal did not operate to forfeit all of Young's return on his partnership
investment. At oral argument, counsel for Young and JRBI stipulated that Young had made
capital contributions to the partnership in the amount of about $12,500. Young has since
received a return on his investment amounting to at least $240,000. Moreover, the district
court's order permits Young to share equally with the other parties in any partnership assets
remaining after JRBI satisfies its judgment for fees and costs from Young's share.
Third, the district court gave appropriately careful, correct and express consideration to
most of the factors discussed above.
express consideration to most of the factors discussed above. For example, the court believed
there was a need to deter other litigants from similar practices and the court noted that JRBI
would be prejudiced if required to respond with expensive forensic expert testimony to other
portions of the diaries Young might seek to adduce as evidence. Fourth, we stress the
importance of an express and careful discussion of the relevant factors supportive of
dismissal. The better practice is to put this discussion in writing. Judge Whitehead's 18-page
recitation of findings of fact and conclusions of law exemplifies the careful approach
warranted before imposition of these severe sanctions. Finally, we note that this court has
affirmed sanctions of dismissal and entry of default judgment based on discovery abuses even
less serious that Young's.
1

IV. The factual sufficiency of the default judgment entered as a discovery sanction.
[Headnote 6]
We reject Young's contention that JRBI's accounting entered as a default judgment against
him was factually insufficient to constitute a default judgment of accounting.
In most cases involving entry of default judgments pursuant to NRCP 55(b) in favor of
plaintiffs on unliquidated sums, the plaintiff must prove up both the fact and amount of
damages by substantial evidence. Kelly, 96 Nev. at 193-94, 606 P.2d at 1092. In cases
involving entry of default judgment as a discovery sanction, the non-offending party need
only establish a prima facie case in order to obtain the default judgment. Televideo, 826 F.2d
at 917. The offending party has forfeited the right to litigate this prima facie case. Thus, we
will not reverse a default judgment entered as a sanction where the non-offending party has
established a prima facie case by substantial evidence. JRBI's 15-page authenticated
accounting summarized partnership disbursements, receipts, liabilities and assets. The
accounting is further supported by several indexed files containing the primary source
documents of partnership transactions. For these reasons, JRBI's documents suffice to state a
prima facie accounting according to the elements of an accounting as stated in Polikoff v.
Levy, 270 N.E.2d 540 {Ill.Ct.App.
__________

1
See, e.g., Temora Trading Co. v. Perry, 98 Nev. 229, 645 P.2d 436 (1982), cert. denied, 459 U.S 1070
(1982) (affirming default judgment entered against a defendant corporation where corporate officers failed to
show up for depositions and corporation did not adequately respond to interrogatories); Havas v. Bank of
Nevada, 96 Nev. 567, 613 P.2d 706 (1980) (affirming sanctions of dismissal of plaintiff's complaint and granting
of default judgment in favor of defendant on defendant's counterclaim, on the ground that plaintiff failed to
supplement interrogatory answers as ordered by the court); Kelly, supra (affirming sanctions of striking
defendant's answer and entering default judgment against defendant based on defendant's incomplete and evasive
answers to interrogatories in violation of court order).
the elements of an accounting as stated in Polikoff v. Levy, 270 N.E.2d 540 (Ill.Ct.App.
1971). We hold that the accounting adopted by the district court constitutes substantial
evidence of a prima facie accounting. Even if correct, Young's sundry and specific criticisms
of the accounting do not render the prima facie case insubstantial. By fabricating evidence
Young has forfeited his right to object to all but the most patent and fundamental defects in
the accounting.
V. JRBI's request for sanctions pursuant to NRAP 38.
[Headnote 7]
We decline to grant JRBI's request for sanctions pursuant to NRAP 38. We recognize that
Young's briefs were voluminous and that some of the issues he raised went to the merits of
the lawsuit, rather than to the somewhat narrower issue of sanctions. Nevertheless, the issues
raised by this appeal were quite broad and several of Young's arguments, not discussed in this
opinion, had arguable relevance to these issues. Additionally, Young's belief that the court
went too far in dismissing the entire complaint was understandable, especially given the lack
of clear authority in this state governing the proper scope of discovery sanctions. Finally, due
to the severity of the sanctions already imposed, additional appellate sanctions are not
necessary to deter Young from future misconduct. We wish, however, to put litigants and
attorneys on notice that willful abuse of court process in the trial court may well give rise to
an inference of abuse of appellate process on appeal, rendering the possibility of sanctions
under NRAP 38 more likely than in other cases.
CONCLUSION
Substantial evidence supports the district court's conclusion that Young willfully
fabricated evidence. The district court's sanctions were authorized both by NRCP 37(b)(2)
and by courts' inherent powers to sanction abusive litigation practices. The district court's
careful consideration of the several pertinent factors stated in this opinion amply satisfies the
somewhat heightened standard of review which applies to this court's review of severe
discovery sanctions. The default accounting ordered by the court satisfies the factual
prerequisites to default judgments entered pursuant to NRCP 55(b). Young's appeal was not
frivolously brought and thus does not warrant sanctions pursuant to NRAP 38. We deny
Young's request for this court to take judicial notice of subsequent events in the D'Atris'
separate suit against JRBI.
Because all of Young's remaining contentions are without merit, we affirm the judgment
of the district court in all respects.
____________
106 Nev. 96, 96 (1990) Clark Co. Liquor and Gaming v. Simon & Tucker
CLARK COUNTY LIQUOR AND GAMING LICENSING BOARD, THALIA DONDERO,
PAUL CHRISTENSEN, MANUEL CORTEZ, JAY BINGHAM, KAREN HAYES,
BRUCE WOODBURY and WILLIAM PEARSON, Appellants, v. SIMON &
TUCKER, INC., a Nevada Corporation, dba PHOENIX PUB, Respondent.
No. 19809
February 22, 1990 787 P.2d 782
Appeal from a peremptory writ of mandamus issued by the district court ordering Clark
County Liquor and Gaming Licensing Board to issue gaming licenses to Simon & Tucker.
Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
Review was taken from order of the district court, which issued peremptory writ of
mandamus to require county liquor and gaming licensing board to issue gaming license to
tavern. The Supreme Court, Young, C. J., held that denial of the license by the board was
supported by the evidence.
Reversed.
Springer, J., dissented.
Rex Bell, District Attorney, and S. Mahlon Edwards, Deputy District Attorney, Clark
County, for Appellants.
David J. Rivers and K. Michael Leavitt, Las Vegas, for Respondent.
1. Municipal Corporations.
Power to license, regulate, and prohibit gambling is within the discretion of the municipal agency empowered to govern gambling,
and that agency has a wide margin of discretion. NRS 244.335, 244.345.
When reviewing agency's decision, court is limited to a determination of whether the decision was arbitrary, capricious, or an
abuse of discretion; court may interfere with agency's decision only when there is a manifest abuse of discretion.
3. Gaming.
When reviewing decision of county liquor and gaming licensing board for abuse of discretion, court must determine whether
substantial evidence supported the decision to deny gaming licenses.
4. Gaming.
Denial of gaming license to tavern was supported by evidence that it was contrary to the public interest because of the proximity of
the establishment to a school, the increase of pedestrian and vehicular traffic that gaming would bring, the fact that all exits from the
gaming premises lead to a school zone, and the fact that the intersection between the gaming premises and the school was uncontrolled.
OPINION
Respondent Simon & Tucker, Inc., applied to the Clark County Liquor and Gaming
Licensing Board for gaming licenses for its business, Phoenix Pub and Phoenix Liquors. The
businesses are part of a new shopping center which is across the street from a junior high
school. After hearing testimony both in favor of and opposed to the applications, the Board
unanimously denied the gaming licenses. Thereafter, Simon & Tucker sought a writ of
mandate from the district court. The court issued the writ, ordering the Board to grant the
gaming licenses. The Board appeals.
[Headnote 1]
The power to license, regulate, and prohibit gambling is within the discretion of the
municipal agency empowered to govern gambling and such agency has a wide margin of
discretion. See NRS 244.335; NRS 244.345; State ex rel. Grimes v. Board, 53 Nev. 364, 373,
1 P.2d 570, 572 (1931). Pursuant to the Clark County Code, the Board has the power to deny
any application for a gaming license if it deems the place or location for which the license is
sought to be unsuitable for the conduct of gaming. Clark County Code 8.04.070 (1981). In
Primm v. City of Reno, 70 Nev. 7, 252 P.2d 835 (1953), we clarified that an agency may
balance the public interest with private interests in reaching its decision, but the public
interest is paramount. Id. at 13-14, 252 P.2d at 838.
[Headnote 2]
When reviewing an agency's decision, the court is limited to a determination of whether
the decision was arbitrary, capricious, or an abuse of discretion. Urban Renewal Agcy. v.
Iacometti, 79 Nev. 113, 118, 379 P.2d 466, 468 (1963). Furthermore, the court may interfere
with an agency's decision only when there is a manifest abuse of discretion. Henderson v.
Henderson Auto, 77 Nev. 118, 122, 359 P.2d 743, 744-745 (1961).
[Headnotes 3, 4]
In reviewing the Board's decision for an abuse of discretion, we must determine whether
substantial evidence supported its decision to deny the gaming licenses to Simon & Tucker.
Public Serv. Comm'n v. Continental Tel. Co., 94 Nev. 345, 348, 580 P.2d 467, 468-469
(1978). Evidence in the record indicates that the Board believed granting the licenses to be
contrary to the public interest given the proximity to a school, the increase in pedestrian and
vehicular traffic that gaming would bring, the fact that all exits from the gaming premises led
to a school zone, and the fact that the intersection between the gaming premises and the
school as uncontrolled.
the fact that the intersection between the gaming premises and the school was uncontrolled.
Simon & Tucker argues that the court was presented with evidence to the contrary, which
showed that granting the gaming licenses would in fact be beneficial to the public interest.
However, just because there was conflicting evidence does not compel interference with the
Board's decision so long as the decision was supported by substantial evidence. O'Donnell v.
Buhl, 266 P.2d 668, 669 (Idaho 1954). It is not the place of the court to substitute its
judgment for that of the Board as to the weight of the evidence. Gandy v. State ex rel. Div.
Investigation, 96 Nev. 281, 282, 607 P.2d 581, 582-583 (1980).
Although the Board was presented with evidence both in favor of and opposed to the
licenses, the trial court improperly substituted its judgment for that of the Board when it
issued the writ. We hold that the Board's decision was based on substantial evidence and thus
was an exercise of sound discretion. See Gragson v. Toco, 90 Nev. 131, 134, 520 P.2d 616,
617 (1974).
Simon & Tucker's reliance on County of Clark v. Atlantic Seafoods, 96 Nev. 608, 615
P.2d 233 (1980) is misplaced. In Atlantic Seafoods, we found that the basis for the board's
denial of a liquor license had no bearing on the public health and welfare. Id. at 611, 615 P.2d
at 234-235. In contrast, the Board in this case had evidence before it which supports a
conclusion that granting the licenses would have a negative impact on the public health and
welfarenamely, that the increased traffic would create a hazard to children using the school
facilities across the street.
Similarly, this case is distinguishable from City Council, Reno v. Travelers Hotel, 100
Nev. 436, 683 P.2d 960 (1984), in which we found that one lay opinion that a proposed
casino was too close to a high school was insufficient grounds for denial of a special use
permit. Id. at 439, 683 P.2d at 961. Here, the lay objections were substantial and specific. The
Board was presented with evidence as to the large number of children using the school's
facilities at night and on weekends, and with evidence regarding traffic problems which
would arise from an increase in the number of pedestrians and vehicles using an uncontrolled
intersection in a school zone.
Furthermore, in Travelers Hotel, we reiterated that statements by interested parties or their
counsel and unsupported opinions of council members alone do not justify denial of a permit.
Id. (citations omitted). In this case, most of the evidence in favor of granting the licenses
consisted of statements by the applicant, its attorney, and a Board member. The only evidence
by a disinterested party was a statement by a local resident that granting the licenses would
be good for other businesses in the complex.
licenses would be good for other businesses in the complex. Under such circumstances, we
conclude that the Board was justified in giving greater credence to the evidence against
granting the licenses, and that therefore the district court erred when it issued a writ of
mandate ordering the Board to grant the gaming licenses to Simon & Tucker.
After reviewing appellant's other contentions, we conclude that they are without merit.
Because we hold that the Board's decision was based on substantial evidence and it did not
manifestly abuse its discretion in denying Simon & Tucker's applications, we reverse the
district court's issuance of the writ of mandate and reinstate the Board's denial of the gaming
licenses.
1

Steffen, and Mowbray, JJ., concur.
Springer, J., dissenting:
The licensing board denied slot machine licenses to a licensed bar on the ground that slot
machines in the bar would be incompatible with the neighborhood. I think the board abused
its discretion in doing so. I cannot imagine how the mere putting of slot machines in a bar can
so change its character as to make it any more or less incompatible with its surroundings. At
present the bar is licensed and presumably is compatible with its surroundings; a slot machine
or two does not alter this condition. I can certainly understand why those appearing before the
board to protest granting of the license would think that a bar is incompatible with the
schools and churches in the neighborhood, but a decision on this issue had been made; the bar
is licensed and legally in place. What is clear to me is that the slot machines do not change
anything; and it is apparent to me that the board simply yielded to public pressure without any
legitimate reason for refusing to grant the slot machine license.
Denying a slot machine license to this operating bar business is not, in my view,
reasonably related to the public welfare. County of Clark v. Atlantic Seafoods, 96 Nev. 608,
615 P.2d 233 (1980). We held that Atlantic Seafoods had been arbitrarily denied a license to
sell wine in its seafood store and ordered a license issued. I do not see that a slot machine in a
bar is any more detrimental to the common good than is wine in a seafood store.
The majority says that the licensing board had evidence before it which supports a
conclusion that granting the licenses would have a negative impact on the public health and
welfarenamely, that the increased traffic would create a hazard to children using the school
facilities across the street. At the time of the slot machine license application Phoenix Pub
was licensed and operating a bar.
__________

1
The Honorable Robert E. Rose, Justice, has voluntarily disqualified himself from consideration of this case.
the slot machine license application Phoenix Pub was licensed and operating a bar. The Clark
County Liquor and Gaming Licensing Board and my distinguished brothers in the majority
may believe that putting a few slot machines in a licensed bar has a negative effect on the
public health and welfare and is hazardous to children, I do not; and neither did the trial judge
who heard the case. If the Phoenix Pub presents a possible hazard to children, such hazard
was created when the bar was licensed and not by the threat of slot machines in the bar. I
would affirm the judgment of the district court.
____________
106 Nev. 100, 100 (1990) Price v. Dunn
JOHN PRICE, Appellant, v. MELODY L. DUNN, fka MELODY L. PRICE, Respondent.
No. 19955
February 22, 1990 787 P.2d 785
Appeal from an order denying a motion to set aside default judgment terminating parental
rights. Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
Father appealed from an order of the district court which denied his motion to set aside
default judgment terminating his parental rights. The Supreme Court held that mother's
failure to exercise due diligence in locating father's whereabouts before making service upon
him through publication violated Nevada Rules of Civil Procedure as well as father's due
process rights.
Leslie Mark Stovall, Las Vegas, for Appellant.
Shaner & Trent, Las Vegas, for Respondent.
1. Infants.
Mother's efforts to locate father in order to serve him with process in action to terminate father's parental rights did not satisfy due
diligence test and, thus, trial court's judgment authorizing service by publication was not valid; mother consulted telephone directory
and power company's customer list and contacted father's stepmother but did not contact father's mother or his niece even though
stepmother told her she could reach father through those relatives. NRCP 4(e)(l)(i).
2. Process.
Where reasonable methods other than those attempted exist for locating whereabouts of a defendant in order to serve him with
process, plaintiff should exercise those methods.
Abuse of discretion is standard of review established to determine whether a lower court should have set aside default judgment.
106 Nev. 100, 101 (1990) Price v. Dunn
4. Judgment.
Six-month time limitation governing motions to set aside judgments does not apply to extrinsic fraud upon court. NRCP 60(b).
5. Infants.
Judicial policy favoring decision on merits heightens in domestic relations matters and Supreme Court will closely question
termination of parental rights.
6. Constitutional Law; Infants.
Mother's failure to exercise due diligence in locating father's whereabouts before making service upon him through publication in
her action to terminate his parental rights violated father's due process rights as well as Nevada Rule of Civil Procedure governing
service by publication. U.S.C.A.Const. Amend. 14; NRCP 4(e)(l)(i).
OPINION
Per Curiam:
In January 1987, respondent Melody L. Dunn (formerly known as Melody L. Price) filed a
petition to terminate the parental rights of her ex-husband, appellant John Price, with regard
to their daughter, Niccolo Johmel Price. The petition was accompanied by an affidavit
indicating that Melody had been unable to determine John's whereabouts. Melody stated in
her affidavit that she had attempted to locate John in December 1986, by calling Margaret
Price, John's stepmother. Margaret advised her that John did not reside in Nevada and that
approximately two years prior Margaret had been informed that he was residing in Norfolk,
Virginia. Based upon Melody's affidavit, the district court ordered publication of the
summons. John did not know of the publication and did not respond to the summons. After
publication and a hearing, the court entered an order terminating John's parental rights on
June 19, 1987.
When John learned that his parental rights had been terminated, he brought a motion in the
district court on January 17, 1989, to set aside the order terminating his parental rights. John
based his action on Margaret Price's affidavit of January 10, 1989, which supported John's
claim that Melody did not exercise due diligence in locating his whereabouts before
petitioning for an order for publication of summons. Margaret, John's stepmother, stated in
her affidavit that she had received a telephone call from Melody on December 16, 1986,
regarding John's whereabouts. Margaret stated that she had advised Melody that John was
working in Fontana, California, as a truck driver. Margaret further stated that she had told
Melody that John could be reached through his mother, Evalina Price/Bass, or his niece,
Evelyn Woods, both of whom lived in Fontana, California. Margaret claimed that Melody
never stated that she was attempting to terminate John's parental rights, and that if she
had, Margaret would have contacted John personally.
106 Nev. 100, 102 (1990) Price v. Dunn
terminate John's parental rights, and that if she had, Margaret would have contacted John
personally.
Melody filed a second affidavit and an opposition to John's motion. On February 1, 1989,
the court denied John's motion to set aside the order terminating parental rights. On February
14, 1989, John filed a motion for reconsideration based upon a recent United States Supreme
Court case. The district court refused to reconsider its former ruling.
John appealed to this court.
Both parties concede that Melody should have exercised due diligence in locating John for
the trial court's judgment authorizing service by publication to be proper. However, the
parties disagree on whether Melody did indeed exercise due diligence.
The exercise of due diligence in locating a party on whom service is to be made is required
and explained by NRCP 4(e)(l)(i):
(l) Service by Publication.
(i) General. When the person on whom service is to be made resides out of the state,
or has departed from the state, or cannot, after due diligence, be found within the state .
. . and the fact shall appear, by affidavit, to the satisfaction of the court or judge thereof,
and it shall appear . . . by affidavit . . . that a cause of action exists against the defendant
. . . , such court or judge may grant an order that the service be made by the publication
of summons.
Provided, when said affidavit is based on the fact that the party on whom service is
to be made resides out of the state, and the present address of the party is unknown, it
shall be a sufficient showing of such fact if the affiant shall state generally in such
affidavit that at a previous time such person resided out of this state in a certain place
(naming the place and stating the latest date known to affiant when such party so
resided there); that such place is the last place in which such party resided to the
knowledge of affiant; that such party no longer resides at such place; that affiant does
not know the present place of residence of such party or where such party can be
found; and that affiant does not know and has never been informed and has no reason to
believe that such party now resides in this state; and, in such case, it shall be presumed
that such party still resides and remains out of the state, and such affidavit shall be
deemed to be a sufficient showing of due diligence to find the defendant.
(Emphasis added.)
[Headnote 1]
Melody does appear to have complied with the procedural requirements of substituted
notice as outlined in NRCP 4{e){l){i).
106 Nev. 100, 103 (1990) Price v. Dunn
requirements of substituted notice as outlined in NRCP 4(e)(l)(i). In her affidavit, Melody
stated that she did not know John's address. She stated that she had attempted to discover
John's address by examining the telephone directory and inquiring if John received service
from the power company. Melody further stated that she had spoken to Margaret Price, John's
stepmother, who told her that John did not live in Nevada and that two years prior she had
been informed that he was residing in Norfolk, Virginia. Although Melody's affidavit
technically complies with NRCP 4(e)(l)(i), her actual efforts, as a matter of law, fall short of
the due diligence requirement to the extent of depriving John of his fundamental right to due
process.
[Headnote 2]
Where other reasonable methods exist for locating the whereabouts of a defendant,
plaintiff should exercise those methods. See Foster v. Lewis, 78 Nev. 330, 372 P.2d 679
(1962); State v. District Court, 68 Nev. 527, 238 P.2d 1125 (1951). Here, Melody could have
made additional, simple efforts to locate John. First, she could have told Margaret that she
was attempting to terminate John's parental rights. Had Melody thus informed Margaret,
Margaret might have been more cooperative in giving Melody information. Second, Melody
could have contacted Evalina Price/Bass, John's mother, or Evelyn Woods, John's niece.
Margaret stated in her affidavit that she had advised Melody that John could be contacted
through these relatives. Margaret also stated that Melody knew where John's mother resided,
because Melody had visited John's mother on several occasions at her Ontario, California,
address, where she had resided for thirty-five years. Third, Melody could have consulted the
Norfork, Virginia, directory if she were genuinely interested in finding John's address.
We conclude that Melody's efforts, consulting the Nevada telephone directory and power
company's customer list, and contacting John's stepmother, do not satisfy the due diligence
test statutorily required by Nevada.
John further contends that the trial court abused its discretion by not setting aside the
default judgment terminating his parental rights.
[Headnote 3]
Abuse of discretion is the standard of review established to determine whether a lower
court should have set aside a default judgment. Tahoe Village Realty v. DeSemet, 95 Nev.
131, 134, 590 P.2d 1158, 1161 (1979); Lentz v. Boles, 84 Nev. 197, 200, 438 P.2d 254, 257
(1968); Hotel Last Frontier Corp. v. Frontier Properties, Inc., 79 Nev. 150, 153, 380 P.2d 293,
294 (1963); Bryant v. Gibbs, 69 Nev. 167, 170, 243 P.2d 1050, 1051 (1952).
106 Nev. 100, 104 (1990) Price v. Dunn
Several guidelines have been established to indicate how a court should determine whether
to set aside a judgment. First, the moving party must show some excuse for its failure to
answer or otherwise defend. Second, there must be a showing that a meritorious defense
exists to the claim for relief. Third, the district court should recognize that the basic
underlying policy is to have each case decided on its merits. Sealed Unit Parts Co. v. Alpha
Gamma Ch., 99 Nev. 641, 643, 668 P.2d 288, 289 (1983).
[Headnote 4]
The first guideline, that the moving party must show some excuse for setting aside the
judgment, is addressed by NRCP 60(b) which provides that a court may relieve a party from a
final judgment for extrinsic fraud upon a court with no time limitation.
1
Extrinsic fraud has
been held to exist when the unsuccessful party is kept away from the court by . . . such
conduct as prevents a real trial upon the issues involved, or any other act or omission which
procures the absence of the unsuccessful party at the trial. Colby v. Colby, 78 Nev. 150,
153-154, 369 P.2d 1019, 1021 (1962) (quoting Murphy v. Murphy, 65 Nev. 264, 271, 193
P.2d 850, 854 (1948); see also Murphy v. Murphy, 103 Nev. 185, 186, 734 P.2d 738, 739
(1987).
John argues that Melody's failure to contact his mother or niece to discover his
whereabouts constitutes extrinsic fraud upon the court. John offers the affidavit of Margaret
Price to support his allegation. Margaret's affidavit stated that she told Melody to contact
John's mother or niece, and that either one of them would know how to contact John.
Margaret further stated that she told Melody that John was working in Fontana, California. If
Margaret's affidavit is true, then Melody did commit fraud upon the court because she
intentionally kept John away from the hearing. In addition, Melody's actions would have
prevented a real trial on the issues.
The second guideline, whether the defendant has a meritorious defense, must now be
abandoned pursuant to Peralta v. Heights Medical Center, Inc., 485 U.S. 80 (1988). There the
United States Supreme Court stressed that where a person has been deprived of property in a
manner contrary to the most basic tenets of due process, it is no answer to say that in his
particular case due process of law would have led to the same result because he had no
adequate defense upon the merits.' 485 U.S at 86-87. Here, Melody's failure to exercise due
diligence in locating John deprived John of due process; therefore, we cannot require that
John later show he had a meritorious defense.
__________

1
The six-month time limitation in NRCP 60(b) which governs motions to set aside judgments does not apply
to extrinsic fraud upon a court. This is important in John's case, because he moved to vacate the judgment
approximately nineteen months after it was entered.
106 Nev. 100, 105 (1990) Price v. Dunn
deprived John of due process; therefore, we cannot require that John later show he had a
meritorious defense.
The third guideline is the one to which this court has accorded the most weight; strong
policy considerations in favor of a trial on the merits.
If there is a refusal to set aside a default, a ruinous judgment may be sustained
against a party who, upon hearing, might have interposed a perfectly good defense. By
sustaining the default, he would forever be debarred the right of a hearing. . . . If the
plaintiff has a good case there is no necessity of appealing. If he has a bad one, this
court ought not be very anxious to help him keep an advantage he has obtained, not
through the justice or strength of his cause, but by the accidental blunder of his
opponent.
Hotel Last Frontier, 79 Nev. at 156, 380 P.2d at 296. Frontier's sound policy in favor of
greater leniency in setting aside default judgments has been cited with approval. Lentz, 84
Nev. at 200, 438 P.2d at 256; Sealed Unit Parts, 99 Nev. at 643, 668 P.2d at 288; Schulman
v. Bongberg-Whitney Electric, Inc., 98 Nev. 226, 228, 645 P.2d 434, 435 (1982); Yochum v.
Davis, 98 Nev. 485, 487, 653 P.2d 1215, 1217 (1982).
[Headnote 5]
Resolving a case on its merits is of special importance here. Judicial policy favoring a
decision on the merits heightens in domestic relations matters. Dagher v. Dagher, 103 Nev.
26, 28, 731 P.2d 1329, 1330 (1987). This court will closely question termination of parental
rights. Chapman v. Chapman, 96 Nev. 290, 292, 607 P.2d 1141, 1143 (1980); Casper v.
Huber, 85 Nev. 474, 477, 456 P.2d 436, 438 (1969). Termination of parental rights is a
drastic measure, which should be applied with caution. Carson v. Lowe, 76 Nev. 446, 451,
357 P.2d 591, 594 (1960). Under the circumstances of this case, terminating parental rights
without a trial on the merits would be contrary to this court's objectives.
[Headnote 6]
We therefore conclude that Melody's failure to exercise due diligence in locating John's
whereabouts before making service upon him through publication violated the Nevada Rules
of Civil Procedure as well as John's due process rights. The district court's judgment is
reversed and remanded for a hearing on the merits to determine whether John's parental rights
should be terminated.
____________
106 Nev. 106, 106 (1990) Faessel v. District Court
MATTHEW DAVID FAESSEL, Petitioner, v. THE SECOND JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF
WASHOE, AND THE HONORABLE ROBIN ANNE WRIGHT, DISTRICT
JUDGE, Respondents.
No. 20045
February 22, 1990 787 P.2d 767
Original proceedings in mandamus.
Child certified by juvenile court for proper criminal proceedings in adult court
petitioned for writ of mandamus. The Supreme Court, Springer, J., held that preliminary
examination and binding over had to be completed as condition to filing of information.
Petition granted.
Steffen and Mowbray, JJ., dissented.
Karp and Kelly, Reno, for Petitioner.
Mills Lane, District Attorney, Edwin T. Basl, Deputy District Attorney, Larry Guy Sage,
Deputy District Attorney, Washoe County, for Respondents.
Infants.
Preliminary examination and binding over had to be completed as condition to filing of information against child certified for
proper criminal proceedings in adult court; having been certified as adult, child was entitled to all proper criminal proceedings. NRS
62.080, 173.015, 173.035.
OPINION
By the Court, Springer, J.:
This case involves a petition for writ of mandamus in which petitioner Matthew David
Faessel seeks a writ commanding that the district court order that a preliminary examination
and binding over be completed as a condition to the filing of an information against him. We
grant the petition, holding that Faessel, a child who was certified as an adult under NRS
62.080, is entitled to all proper criminal proceedings under Title 14, Nevada Revised
Statutes.
Under NRS 62.080 a child 16 years or older who is charged with a felonious offense
may be certified by the juvenile court for proper criminal proceedings in the adult court.
Faessel is such a child and has been so certified for proper criminal proceedings as an
adult.
such a child and has been so certified for proper criminal proceedings as an adult.
NRS 62.080 certification is not a criminal proceeding. Proceedings in juvenile court are
civil and not criminal in nature. NRS 62.193. Once the civil proceedings under NRS 62.080
have led to certification, however, the subject becomes, in the eyes of the criminal law, an
adult. Adult is defined in the juvenile court act as a person between the ages of 16 and 18
who has been certified as an adult. NRS 62.020(1). Faessel is, therefore, to be considered as
and treated as an adult who is charged with commission of a crime and is entitled to proper
criminal proceedings under our code of criminal procedure.
Under Title 14, Procedure in Criminal Cases, the first pleading on the part of the state is
the indictment or information. NRS 173.015. Faessel was not indicted; so we look to the
code provisions relating to the filing of an accusation by information. An information may
be filed against any person for any offense when [1] the person . . . [h]as had a preliminary
examination as provided by law before a justice of the peace, or other examining officer or
magistrate, and [2] has been bound over to appear at the court having jurisdiction. NRS
173.035. Faessel's contention is simply this: Now that you have made me an adult, you must
either indict me or inform against me. An information can be filed only after a preliminary
examination has been held, and I have been bound over to appear before the court having
jurisdiction, namely, the adult division of the Second Judicial District Court. We agree and
hold that proper criminal proceedings require that Faessel be entitled, as is the case for any
other adult defendant, to have a preliminary examination and be bound over before an
information can be filed. See Sturrock v. State, 95 Nev. 938, 604 P.2d 341 (1979).
The state claims that Faessel had the equivalent of a preliminary examination and
bind-over when he went through the juvenile certification process in the juvenile court. It is
very difficult to follow this argument when one is reminded that the certification proceeding,
a civil matter conducted in the juvenile court, does not remotely resemble a preliminary
examination, and, even if it did, the juvenile court has no power to order that anyone be
bound over to appear in district court.
The juvenile court inquest leading to certification is designed to determine whether the
public interest and safety requires that a given minor be prosecuted as an adult. The juvenile
court judge is required to consider a decisional matrix made up of such matters as the
nature and seriousness of the offense, the persistency and seriousness of past offenses and
subjective factors relating to the offender. In the Matter of Seven Minors, 99 Nev.
427, 664 P.2d 947 (1983). Before the juvenile court can make a decision to certify a child to
the adult criminal court, prudence dictates that some determination be made that the court is
dealing with someone who probably committed a criminal offense. We have thus insisted that
the juvenile courts make a threshold finding of prosecutive merit, this is to say, a finding
that probable cause exists that the minor committed the offense of which he is accused. Thus,
as said in Seven Minors, a threshold finding of prosecutive merit is a matter of judicial
economy. If there is no prima facie case to support the charge, there is no point in the court's
involving itself further in the process. Seven Minors, 99 Nev. at 437, 664 P.2d at 953
(emphasis in original).
Prosecutive merit' is a term referring to the necessity for establishing the merit of the
prosecution's case as a condition for proceeding with the transfer [certification] process.
Seven Minors, 99 Nev. at 437, 664 P.2d at 953. [T]he first business of the juvenile court in a
transfer proceeding should be a resolution of the threshold requirement of prosecutive merit.
The necessary determination of probable cause can be made preliminarily by the court on the
basis of the written record. An adversary hearing is not required, and the probable cause
finding may be based on evidence taken from the petition, sworn investigative reports,
witnesses' affidavits, police affidavits, or other informal but reliable evidence. In re Three
Minors, 100 Nev. 414, 418, 684 P.2d 1121, 1123 (1984). We have expressly held that due
process in certification proceedings does not require that a juvenile be given an adversary
hearing comparable to [a] preliminary examination. Id. It should be obvious that not only are
preliminary examinations and juvenile certification proceedings conducted in different
tribunals, the procedures, standards of proof and final objectives of each are radically
different. Neither one can be said to be the equivalent of or a substitute for the other.
It is possible, of course, that from time to time during some certification proceedings a
relatively comprehensive and even adversary proceeding might be conducted by the juvenile
court judge, but this would not validate the state's position that a certification proceeding
must be taken as the absolute equivalent of a preliminary examination and thus justify the
filing of an information without benefit of the proper criminal proceedings set forth in
Chapter 173. Further, even if we were to accept the position that a juvenile court judge's
adjudication of prosecutive merit is in all cases equivalent to a magisterial preliminary
examination, a juvenile court does not have the statutory power or authority to cause an
accused adult offender to be bound over and appear in the district court. The juvenile court
judge in this case did not even purport to bind over this adult, and the proceedings
required by NRS 173.035 have not even been approached by the civil certification
proceedings conducted by the juvenile court.
proceedings required by NRS 173.035 have not even been approached by the civil
certification proceedings conducted by the juvenile court.
A writ of mandamus is available to compel the performance of an act which the law
requires as a duty resulting from an office, trust or station. NRS 34.160. Because the district
court was obligated to afford Faessel a preliminary examination under the circumstances of
this case, we grant Faessel's petition for a writ of mandamus. Accordingly, the clerk of this
court shall forthwith issue a writ of mandamus ordering that the information be quashed and
that the state proceed against the petitioner only by proper criminal procedures as set forth in
Title 14, Nevada Revised Statutes.
Young, C. J., and Rose, J., concur.
Steffen, J., with whom Mowbray, J., agrees, dissenting:
In a criminal justice system characterized and threatened by a surfeit of congestion, costs,
and seemingly interminable and duplicative procedures, the judicial branch of government
must be alert in seeking measures which will make the system more efficient. Of course,
improvement and efficiency must be achieved without compromising an accused's right to
procedural and substantive fairness.
In my view, the majority has added, unnecessarily, to the already burdensome process of
reaching full and impartial justice in Nevada criminal proceedings. The majority ruling
provides juvenile offenders who are certifiable to an adult criminal court, the benefit of both a
certification hearing and a lesser facsimile thereof, a preliminary hearing. The resulting
redundancy creates additional costs, delay and syphoning of limited assets without advantage
to a youthful defendant other than that of an unwarranted delay.
As a point of beginning, I suggest that the time is ripe to question the majority's
characterization of a certification hearing under NRS 62.080 as civil rather than criminal in
nature. The majority supports its premise solely by reference to an inapplicable statute, NRS
62.193. The latter statute expressly applies only to adjudications for delinquency and
determinations of supervisory need or commitment to institutions for the mentally retarded. In
each of the aforementioned three dispositions, the juvenile court retains jurisdiction to see
that the children involved in such dispositions receive such care, guidance and control,
preferably in . . . [their] own home, as will be conducive to the . . . [childrens'] welfare and
the best interests of the state. . . . NRS 62.031(1).
Other courts have described certification proceedings as civil in nature because they are
not determinative of innocence or guilt or even the existence of probable cause, but rather
whether the public interest or the best interest of the child will best be served by retaining or
relinquishing juvenile court jurisdiction. See, e.g., State In re Schreuder, 649 P.2d 19, 24
(Utah 1982); In Interest of Doe, 617 P.2d 830, 832 (Haw. 1980). In the past, we have adopted
the same rationale, Marvin v. State, 95 Nev. 836, 842, 603 P.2d 1056, 1060 (1979).
I submit that the current status of Nevada law lends support to the proposition that
certification proceedings in Nevada are more criminal than civil in nature. First, we have held
that juveniles subject to certification proceedings are entitled to a hearing, the right to
counsel, access to relevant court studies and reports, and a statement of reasons for the waiver
decision. In re Three Minors, 100 Nev. 414, 417, 684 P.2d 1121, 1123 (1984). Second, prior
to certifying a minor to the jurisdiction of the adult criminal system, the State must establish
prosecutive merit, i.e., an evidentiary foundation upon which a grand jury would be expected
to return an indictment; that is to say, when probable cause exists to believe that the subject
juvenile committed the charged felony. Id. Moreover, we have held that probable cause may
not be based entirely on unsworn hearsay evidence or the opinion of prosecutorial officials.
Id. at 419, 684 P.2d at 1124. We also held that fairness requires that a juvenile who
challenges probable cause be allowed to present evidence that would controvert or negate a
finding of probable cause. Id. In short, we have provided more than the equivalent of a
preliminary hearing under the adult system within the framework of juvenile certification
proceedings.
Under Nevada law, the State may establish probable cause in a preliminary hearing under a
standard of slight evidence. Sheriff v. Badillo, 95 Nev. 593, 594, 600 P.2d 221, 222 (1979).
Moreover, despite our inference to the contrary in Three Minors, preliminary hearings under
the adult system involve no more of a determination of guilt or innocence than a certification
hearing under NRS 62.080. Cf. Three Minors, 100 Nev. at 418, 684 P.2d at 1124, with
Thedford v. Sheriff, 86 Nev. 741, 743-744, 476 P.2d 25, 27 (1970). The question arises,
therefore, as to what additional advantages or benefits a certified juvenile derives from a
preliminary hearing that he or she wouldn't receive in the certification hearing. Recalling that
neither a certification hearing nor a preliminary hearing involves a determination of
innocence or guilt, and that the State need establish probable cause by only slight evidence in
the adult proceeding, it is enlightening to analyze the panoply of rights and safeguards that
accrue to the benefit of a juvenile in a certification hearing.
analyze the panoply of rights and safeguards that accrue to the benefit of a juvenile in a
certification hearing.
First, under Nevada law, the juvenile judge who entertains a petition for certification by
the State is also a district court judge who must be a licensed attorney. The presiding judicial
officer in a preliminary hearing, in many instances, need not be a licensed attorney and in no
instance is a district court judge. Second, prior to considering a petition for certification, the
juvenile judge must obtain a full investigative report concerning the juvenile and the alleged
offense for which the certification is sought. There is, of course, no similar requirement in
connection with a preliminary hearing. Third, the juvenile in a certification hearing and the
defendant in a preliminary hearing are both entitled to counsel under Nevada law. Fourth, the
defendant in a preliminary examination and the juvenile in a certification proceeding are both
entitled to a hearing where counsel may cross-examine State witnesses and present evidence
on behalf of their clients. Fifth, before a defendant may be bound over to district court from a
preliminary hearing, there must have been a finding of probable cause; and before a juvenile
may be certified to the adult system, there must also have been a finding of probable cause.
The majority opinion seeks to distinguish between a preliminary hearing and a certification
hearing by noting that the latter need not be adversarial and that probable cause may be
supported by evidence taken from the petition, sworn investigative reports, witnesses'
affidavits, police affidavits, or other informal but reliable evidence. The inference the
majority draws from the foregoing is that a certification may result from forms of evidence
that would be incompetent if used to satisfy the slight evidence requirement for a probable
cause finding in a preliminary hearing. I suggest that the premise is unrealistic.
1

It would seem rare indeed when a district court judge sitting as a juvenile judge would
transfer a juvenile from the protective, rehabilitative jurisdiction of the juvenile system on
such a flimsy evidentiary foundation. To the contrary, the evidentiary basis supporting
certification would appear to me to be much stronger and more extensive than the slight
evidence the State would be required to produce at a preliminary hearing.
__________

1
In Three Minors we expressly observed that [a]nother purpose in requiring a showing of prosecutive merit
is that it provides a reasonable safeguard against juveniles being made subject to inherently fruitless transfer
proceedings or to having to defend against unsupportable criminal prosecutions. 100 Nev. at 418, 684 P.2d at
1123. Obviously, no reasonable safeguard would exist if juvenile judges transferred juveniles to the adult system
based upon evidence that would not be competent to support a finding of probable cause in a preliminary
hearing.
required to produce at a preliminary hearing. Illustrative of the premise is the requirement of a
full investigation before the juvenile court can even entertain a petition of certification.
Moreover, it is inconceivable to me that a juvenile judge would expose a juvenile offender to
the adult system in the absence of evidence that would be competent for a finding of probable
cause in a preliminary hearing. Most significantly, the majority's position directly conflicts
with our ruling in Three Minors requiring probable cause to be shown to the degree that
would support a grand jury indictment. In Nevada, indictments may not issue unless based
upon, legal evidence, and the best evidence in degree, to the exclusion of hearsay or
secondary evidence. NRS 172.135(2).
Although the majority observe that an adversary hearing is not required in a certification
proceeding, it is clear that it may be so if the juvenile's counsel insists on an adversarial
challenge to probable cause and certification. A juvenile offender may thus attack both the
evidentiary sufficiency to support probable cause and the factors the State presents in favor of
certification. Such a juvenile is in a far better position to secure information concerning the
strength of the State's case than an adult defendant limited to a preliminary hearing where the
State presents only enough of a sneak preview to meet the marginal evidence standard and
accomplish a bind-over.
The majority also observe that the final objectives of a certification hearing and a
preliminary hearing are radically different. If the majority's premise is true, it would seem
to support the proposition that a certification proceeding is more than the equivalent of a
preliminary hearing. The primary function of a preliminary hearing is to determine whether
the State has sufficient evidence to warrant subjecting an individual to the ordeal of a trial
that may threaten his life, liberty and reputation. One of the primary functions of a
certification proceeding is to determine whether the State's petition has prosecutive merit or
probable cause, i.e., sufficient evidence upon which a grand jury would be expected to return
an indictment. Seven Minors, 99 Nev. at 437, 664 P.2d at 953. Thus, one of the major
functions of a certification proceeding is identical to the primary function of a preliminary
hearing. In a certification proceeding, however, after the State proves a prima facie case
supporting probable cause, the State must satisfy the second primary function of a
certification hearing, namely, whether despite the probability that the juvenile committed the
charged offense, his or her transfer to the adult criminal system is justified. Moreover, in
contrast to a preliminary hearing, the State in a certification proceeding must prove probable
cause and justification for a transfer to the adult system by clear and convincing
evidence. Id.
Finally, the majority concludes, erroneously I believe, that even if a finding of probable
cause would in all cases be equivalent in either a certification proceeding or a preliminary
hearing, the juvenile court does not have authority to "bind-over" the certified juvenile
for trial in an adult criminal court.
probable cause and justification for a transfer to the adult system by clear and convincing
evidence. Id.
Finally, the majority concludes, erroneously I believe, that even if a finding of probable
cause would in all cases be equivalent in either a certification proceeding or a preliminary
hearing, the juvenile court does not have authority to bind-over the certified juvenile for
trial in an adult criminal court. NRS 62.080 provides that after a child has been certified for
proper criminal proceedings and his case has been transferred out of the juvenile division,
original jurisdiction of the person rests with the court to which the child has been certified. . .
. And, rather than certifying the child to a magistrate for a preliminary hearing, the statute
permits certification only to any court which would have trial jurisdiction of such offense if
committed by an adult. . . . The statute thus empowers the juvenile court judge who has
found probable cause and justification for transfer, to certify a juvenile offender directly to
the jurisdiction of the adult criminal court for trial.
For the reasons stated above, I submit that the availability of a preliminary hearing to a
certified juvenile offender places yet another barnacle on our heavily laden criminal justice
system, wastes scarce public and judicial assets, reduces systemic efficiency and provides no
meaningful right or benefit to such an offender other than delay. I therefore respectfully
dissent.
____________
106 Nev. 113, 113 (1990) Las Vegas Novelty v. Fernandez
LAS VEGAS NOVELTY, INC., a Nevada Corporation, Appellant/Cross-Respondent, v.
ALFRED FERNANDEZ, JR., Respondent/Cross-Appellant, and M & F
ENTERPRISES, INC., a Nevada Corporation, Respondent.
No. 20054
February 22, 1990 787 P.2d 772
Appeal and cross-appeal from orders of the district court granting a motion to dismiss and
granting a permanent injunction. Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Souvenir wholesaler brought action against former employee and his corporation to enjoin
alleged serving of wholesale customers in direct violation of covenant not to compete. The
district court dismissed suit against corporation and enjoined employee to lesser degree than
called for in covenant. Appeal and crossappeal were taken.
appeal were taken. The Supreme Court held that: (1) corporation could be enjoined if it
knowingly breached covenant in active concert with former employee; (2) permanent
injunction against former employee's competition with souvenir wholesaler within radius of
ten miles from wholesaler was void due to trial court's failure to state reason for its issuance;
and (3) lack of statement of reasons does not necessarily invalidate permanent injunction, so
long as reasons for injunction are readily apparent elsewhere in record and are sufficiently
clear to permit meaningful appellate review.
K. Michael Leavitt and Jason G. Landess, Las Vegas, for Appellant/Cross-Respondent.
Charles M. Damus, Las Vegas, for Respondent/Cross-Appellant.
Bell & Young, and Craig A. Hoppe, Las Vegas, for Respondent.
1. Contracts; Injunction.
Corporation that was not privy to its shareholder's covenant not to compete with souvenir wholesaler, former employer of
shareholder, could be subject to covenant and could be enjoined from violating it if it knowingly breached covenant in active concert
with shareholder. NRCP 65(d).
2. Contracts.
Covenant not to compete, which permitted employee of souvenir wholesaler to pursue joint venture interest in souvenir retailer, did
not permit retailer to enter wholesale market after its incorporation.
3. Judgment.
Whether corporation was knowingly breaching its shareholder's covenant not to compete with souvenir wholesaler, former
employer, in active concert with shareholder was question of fact precluding summary judgment in wholesaler's action to enjoin
corporation.
4. Appeal and Error; Injunction.
Permanent injunction against former employee's competition with souvenir wholesaler within radius of ten miles from wholesaler
was void due to trial court's failure to state reason for its issuance; since employee was not enjoined according to terms of covenant not
to compete, injunction was not reviewable. NRCP 65(d).
5. Injunction.
Lack of statement of reasons does not necessarily invalidate permanent injunction, so long as reasons for injunction are readily
apparent elsewhere in record and are sufficiently clear to permit meaningful appellate review; overruling Director, Dep't of Prisons v.
Simmons, 102 Nev. 610, 729 P.2d 499 (1986). NRCP 65(d).
OPINION
Per Curiam:
Appellant/cross-respondent Las Vegas Novelty (LVN) appeals an order by the district
court dismissing LVN's action against respondent M & F Enterprises, Inc. (M & F), and an
order granting LVN a permanent injunction against respondent/cross-appellant Alfred
Fernandez, Jr. (Alfred). We hold that both orders must be reversed and the case remanded for
further proceedings.
THE FACTS
LVN is a wholesale souvenir business. Alfred worked for LVN since LVN's inception in
1983. On January 7, 1987, LVN's principals signed a settlement agreement to resolve their
disagreements regarding LVN. Among other things, the settlement required LVN to continue
to employ Alfred for seven years.
On July 9, 1987, Alfred entered into an employment contract with LVN as required by the
settlement. The agreement contained a covenant not to compete. The covenant provided that,
if Alfred ever left LVN, Alfred could not sell any souvenirs on a wholesale basis for four
years within 20 miles of LVN. At the time the covenant was executed, Alfred also ran a retail
souvenir business, a joint venture named M & F Enterprise. According to affidavits submitted
by LVN, M & F Enterprise was solely a retail, not wholesale, business. Presumably because
Alfred's retail business was not in direct competition with LVN's wholesale activities, the
covenant expressly provided that Alfred could continue to run M & F Enterprise if he ever
left LVN. This exception provides that Alfred shall be allowed to pursue an interest in all of
M & F Enterprise, and Souvenir T-Shirt Place's retail store. M & F Enterprise did not sign
the employment agreement containing the covenant.
In 1988, after the covenant was executed, Alfred and two others incorporated M & F
Enterprise into the legally distinct entity of M & F Enterprises Inc., the corporation which
is party to this action. Unlike the original M & F Enterprise, M & F's stated purpose now
included wholesale of souvenirs, putting M & F into direct competition with LVN.
Around June 7, 1988, Alfred stopped working for LVN. Soon thereafter, according to
affidavits submitted by LVN, Alfred and M & F began servicing LVN's wholesale customers
in direct violation of the covenant not to compete. LVN filed suit, seeking to enjoin both
Alfred and M & F from these actions. The court dismissed LVN's suit against M & F without
prejudice for failure to state a cause of action.
to state a cause of action. The court permanently enjoined Alfred, but to a lesser degree than
called for in the covenant. Specifically, the court enjoined Alfred from engaging in the
wholesale souvenir business for one year and within 10 miles of LVN.
LEGAL DISCUSSION
LVN first challenges the order dismissing LVN's action against M & F. LVN argues that
M & F is not exempt from injunctive relief merely because M & F did not sign the contract
containing the covenant not to compete. LVN next challenges the injunctive order, arguing
that the court erred by limiting the scope of the covenant to one year and 10 miles, instead of
the four years and 20 miles called for by the covenant. Alfred cross-appeals, raising two
principal contentions. First, Alfred contends that the covenant was unenforceable in any
degree because it was violative of public policy and because the covenant expressly excepted
Alfred's work with M & F. Second, Alfred urges that, at the very least, the injunction was
overbroad in enjoining Alfred's sale of T-shirts, since LVN is not currently selling T-shirts.
I. The order dismissing M & F.
The district court did not set forth the reasons for its order dismissing LVN's action against
M & F. However, there appear four grounds upon which the order may have been based. We
conclude that none of these grounds supports the order and accordingly reverse the order.
[Headnote 1]
The court might first have dismissed the complaint against M & F pursuant to M & F's
principal argument that, as a matter of law, it could not be subject to the covenant contained
in Alfred's employment agreement, because M & F did not sign the agreement. We reject this
argument for two reasons. First, the better and, apparently, majority view allows a party not
privy to a covenant not to compete to be enjoined, if that party breaches the covenant in
active concert with the principal party enjoined and with knowledge of the covenant. See,
e.g., McCart v. H & R Block, Inc., 470 N.E.2d 756 (Ind.Ct.App. 1984) (summarizing the
cases espousing this view). These cases correctly reason that allowing a third party knowingly
to aid and abet violations of a covenant not to compete entirely emasculates the covenant.
Second, this view finds further support in the language of NRCP 65(d). NRCP 65(d) provides
in part:
(d) Form and Scope of Injunction or Restraining Order. Every order granting an
injunction . . . is binding only upon the parties to the action, their officers, agents,
servants, employees, and attorneys, and upon those persons in active concert with
them who receive actual notice of the order by personal service or otherwise.
employees, and attorneys, and upon those persons in active concert with them who
receive actual notice of the order by personal service or otherwise.
(Emphasis added.) NRCP 65(d) is not precisely on point, because it addresses the scope of
enforcement of an injunction after the injunction has been properly issued. Nevertheless, this
section makes no mention of a privity requirement and provides significant support for the
majority view. Operating under the federal analogue rule to NRCP 65(d), which is identical to
NRCP 65(d), federal courts have applied the majority rule that we adopt. See Day Cos. v.
Patat, 440 F.2d 1343 (5th Cir. 1971), cert. den., 404 U.S. 830 (1971). In summary, M & F
was properly subject to an injunction even though M & F was not privy to the contract
containing the duty to be enforced, provided that M & F breached the covenant in active
concert with Alfred and with knowledge of the covenant. M & F was not exempt from
injunctive relief as a matter of law.
[Headnote 2]
The second ground upon which the court might have granted M & F relief relates to the
exception to the covenant contained in Alfred's employment contract. M & F argues that the
exception allowing Alfred to pursue his interest in the joint venture M & F Enterprise also
includes M & F in its current corporate form. We disagree. The record does not contain
substantial evidence to support the conclusion that the parties intended this exception to
include M & F in its current form. All the evidence in the record indicates that at the time the
employment contract was executed, M & F Enterprise was solely a retail business. It was only
later that M & F incorporated and began to sell souvenirs on a wholesale basis in direct
competition with LVN. We cannot conclude that LVN wished to prohibit Alfred individually
from selling souvenirs on a wholesale basis, but allow him to do the same thing through M &
F.
[Headnote 3]
The third ground upon which the court may have based its order is an evidentiary one.
Because the court considered evidence beyond the pleadings in issuing this order, we shall
treat the court's order of dismissal as a grant of summary judgment, not as a grant of a motion
to dismiss. See Paso Builders, Inc. v. Hebard, 83 Nev. 165, 426 P.2d 731 (1967). Given that
the court considered affidavits beyond the pleadings, the court may have dismissed LVN's
action against M & F on the ground that LVN failed to raise a genuine issue of fact indicating
that M & F was breaching the covenant in active concert with Alfred and with knowledge of
the covenant.
knowledge of the covenant. We hold that LVN's affidavits sufficed to raise a genuine
question of fact on this issue. LVN's affidavits alleged that Alfred had been seen soliciting
LVN clients on behalf of M & F, and that M & F was supplying merchandise to these former
LVN clients. Additionally, LVN's affidavits and exhibits indicate that M & F was a small
corporation in which Alfred was one of the three incorporators, one of whom had been
associated with Alfred's retail store. Under these circumstances, we cannot conclude that
there was no genuine question of fact regarding whether the other principals of M & F were
aware of the covenant binding Alfred.
The fourth and final possible explanation for the court's order could be pleading defects in
LVN's complaint. Upon review of LVN's complaint, however, we conclude that the
complaint adequately alleges that M & F knowingly and actively assisted Alfred in violating
the covenant.
II. The order permanently enjoining Alfred.
[Headnote 4]
We hold that the court's permanent injunctive order is null and void for failure to state the
reason for its issuance as required by NRCP 65(d).
[Headnote 5]
This court has held that NRCP 65(d) mandates nullification of a preliminary injunction
due solely to failure of the court to include a statement of reasons in the injunctive order.
Webster v. Steinberg, 84 Nev. 426, 429-30, 442 P.2d 894, 896 (1968). We have also held
that, under NRCP 65(d), a permanent injunction is void, not merely voidable, where the
injunction contains no statement of the reasons of its issuance, or the injunction fails to
describe the acts to be restrained with adequate specificity. Director, Dep't of Prisons v.
Simmons, 102 Nev. 610, 612, 729 P.2d 499, 501 (1986). In Simmons, however, the injunction
was void both due to lack of a statement of reasons and due to failure to describe the acts to
be restrained with adequate specificity. Contrary to our statements in Simmons, we hold that,
taken alone, the lack of a statement of reasons does not necessarily invalidate a permanent
injunction, so long as the reasons for the injunction are readily apparent elsewhere in the
record and are sufficiently clear to permit meaningful appellate review. To the extent that
Simmons or any other of our past cases require invalidation of a permanent injunction solely
for lack of a statement of reasons, these cases are overruled. Contrary to our holding in
Webster, we further see no good reason why the same rule should not apply to preliminary
injunctions as well; this question is not presently before us, however.
before us, however. As this case illustrates, the failure to include a statement of reasons will
continue to mandate nullification wherever the reasons for the injunction are not readily
apparent elsewhere in the record, or appellate review is otherwise significantly impeded due
to lack of a statement of reasons. We stress that the better practice is complete compliance
with the rule, and that injunctive orders not complying with the rule will be carefully
scrutinized.
Two principal reasons support the holding just stated. First, in interpreting the identical
federal analogue rule to NRCP 65(d), upon which NRCP 65(d) is based, federal courts have
adopted rules consistent with our holding. These courts have not viewed the mandatory
language of this rule as jurisdictional, but, rather, as intended primarily to facilitate appellate
review of injunctive orders. See, e.g., Urbain v. Knapp Bros. Mfg. Co., 217 F.2d 810 (6th Cir.
1954), cert. den., 349 U.S. 930 (1955); Mesa Petroleum Co. v. Cities Service Co., 715 F.2d
1425 (10th Cir. 1983). These cases are strong persuasive authority, because the Nevada Rules
of Civil Procedure are based in large part upon their federal counterparts. Second, mandatory
nullification of any injunctive order not containing a statement of reasons can operate to
penalize parties with additional litigation due to failure by the trial judge to perform a duty
which, in large part, is his or her responsibility. Even if, on remand, the district court simply
enters an amended injunctive order, the parties are prejudiced by having to refile, and await
the result of, another appeal. To construe NRCP 65(d) to mandate nullification as a matter of
course would therefore violate the requirement that the Nevada Rules of Civil Procedure be
construed to secure the just, speedy, and inexpensive determination of every action. NRCP
1.
In the present case, the lack of a statement of reasons precludes meaningful review of the
injunctive order. Under the rule adopted above, therefore, the injunctive order must be
declared void. If the court had merely enjoined Alfred according to the terms of the covenant,
the injunctive order would be reviewable and, hence, valid, because the reasons for its
issuance are apparent elsewhere in the record and meaningful appellate review would be
possible. Absent a statement of reasons, this court cannot meaningfully review the limitations
on enforcement of the covenant imposed by the district court. Why the district court limited
the radius of enforcement from 20 to 10 miles from LVN is especially unclear, given LVN's
allegations and affidavits suggesting that some of LVN's important clients are located in
Boulder City, between 10 and 20 miles from LVN.
Because the permanent injunctive order is null and void, we need not reach the parties'
remaining contentions concerning the legality and the proper scope of enforcement of the
covenant. However, we note in passing that, both as drafted and as enforced by the court, the
covenant does not appear overly broad or violative of public policy.
CONCLUSION
We conclude that the order dismissing LVN's action against M & F must be reversed and
the order permanently enjoining Alfred must be nullified. LVN is entitled to an injunction
against M & F if LVN can prove that M & F breached the covenant not to compete in active
concert with Alfred and with knowledge of the covenant. If this proves to be the case, we
believe that LVN can best be protected by an injunction against both M & F and Alfred for
some additional period sufficient to enable LVN to recoup any lost customers. The question
of such further injunctive relief will rest in the discretion of the trial court. Finally, it appears
that the present injunction was based solely on affidavits and a few exhibits. We note that
mere affidavits may not be sufficient evidence to support an injunction. See Simmons, 102
Nev. at 613, 729 P.2d at 501-02. The better practice is to require some testimony or further
exhibits to corroborate allegations contained in affidavits before granting an injunction.
Accordingly, we hereby reverse the order dismissing LVN's action against M & F, nullify
the order permanently enjoining Alfred, and remand the case for further proceedings
consistent with this opinion.
____________
106 Nev. 120, 120 (1990) Barjesteh v. Faye's Pub
KATHY L. BARJESTEH, Appellant, v. FAYE'S PUB, INC., dba, MICHAEL'S PUB and
MARTIN SCHWARTZER, Respondents.
No. 20068
February 22, 1990 787 P.2d 405
Appeal from an order of the district court granting respondents' motion for summary
judgment. Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
Employee brought action against employer and majority stockholder to recover for injury
caused by allegedly intentional act of stockholder closing refrigerator on employee's arm. The
district court entered summary judgment in favor of defendants. Employee appealed. The
Supreme Court held that: (1) exclusive remedy provision of worker's compensation law did
not bar employee's action to recover for allegedly intentional tort, and {2) employee's
acceptance of interim, worker's compensation payments did not preclude action.
employee's action to recover for allegedly intentional tort, and (2) employee's acceptance of
interim, worker's compensation payments did not preclude action.
George T. Bochanis, Las Vegas, for Appellant.
Barker, Gillock, Koning, Brown & Earley, and Jeffrey R. Gomel, Las Vegas, for
Respondents.
1. Workers' Compensation.
Exclusive remedy provision of worker's compensation law did not bar employee's action to recover for allegedly intentional
tort by majority stockholder of employer.
Employee's acceptance of interim, worker's compensation payments did not preclude action to recover for allegedly
intentional tort by majority stockholder of employer.
OPINION
Per Curiam:
This is an appeal from an order granting respondents' motion for summary judgment. For
the reasons set forth below, we reverse.
FACTS
Taken in the light most favorable to appellant, the record indicates the following facts:
Appellant Kathy L. Barjesteh was injured on March 16, 1986, while working as a cook at
Michael's Pub in Las Vegas. Kathy's injuries occurred when respondent Martin Schwartzer
intentionally and violently closed a refrigerator door on her arm. Martin is the majority
stockholder of respondent Faye's Pub, Inc., dba Michael's Pub, and was Kathy's employer on
March 16, 1986. Kathy filed a worker's compensation (SIIS) claim and has received
temporary total disability payments. Kathy's SIIS claim remains open as no final
compensation award has been tendered or accepted.
Kathy commenced a common law tort action against respondents on March 8, 1988. Her
complaint alleges that Martin injured her while acting in his capacity as an Officer, Director,
Employee, Agent, and/or other representative of Faye's Pub, Inc., dba Michael's Pub. . . .
Respondents subsequently moved for summary judgment, asserting that Kathy's eligibility for
or acceptance of SIIS benefits precludes her from pursuing a tort action. The trial court agreed
and granted respondents' motion. This appeal followed.
DISCUSSION
Summary judgment is proper when no genuine issue of material fact exists, and when the
moving party is entitled to judgment as a matter of law. Butler v. Bogdanovich, 101 Nev.
449, 451, 705 P.2d 662, 663 (1985).
[Headnote 1]
In the instant case, the district court ruled that SIIS was Kathy's exclusive remedy against
both defendants. That ruling was in error. When an employer commits an intentional tort
upon an employee, the employer will not be heard to say that his intentional act was an
accidental' injury and so under the exclusive provisions of the compensation act. 2A
Larson, Workmen's Compensation Law, 68.00 (1989). See also Sitzman v. Schumaker, 718
P.2d 657, 659 (Mont. 1986). Furthermore, because Kathy's complaint alleges Martin's
corporate position in open-ended fashion, and because the record reveals that Martin is the
majority shareholder and operator of Faye's Pub, Inc., it was also error to grant summary
judgment in the corporate defendant's favor. Garcia v. Gusmack Restaurant Corp., 150
N.Y.S.2d 232, 234 (1954) (corporation subject to common law tort liability where president
and operator of the corporation's bar and grill committed an intentional tort upon an
employee).
[Headnote 2]
In addition, the district court erred in ruling that Kathy has made a binding election of
remedies by receiving SIIS benefits. We have previously held that until a final disposition of
an SIIS claim is made, the injured employee is not precluded from maintaining a common
law action against her employer notwithstanding the employee's acceptance of interim
workmen's compensation payments. See, e.g., McGinnis v. Consolidated Casinos Corp., 98
Nev. 396, 397, 650 P.2d 806, 807 (1982).
For the foregoing reasons, we reverse the order granting summary judgment and remand
the case to the district court for further proceedings.
____________
106 Nev. 123, 123 (1990) Sotirakis v. U.S.A.A.
PATRICIA SOTIRAKIS, Appellant, v. UNITED SERVICES AUTOMOBILE
ASSOCIATION, Respondent.
No. 20100
February 23, 1990 787 P.2d 788
Appeal from an order of the district court denying appellant's motion for summary
judgment and granting respondent's motion for summary judgment. Eighth Judicial District
Court, Clark County; Donald M. Mosley, Judge.
Passenger in automobile accident which occurred in state other than her residence brought
suit after insurer refused her claim for compensation. The district court granted insurer's
countermotion for summary judgment. The Supreme Court held that: (1) contacts with state
in which accident occurred were insufficient to apply law of that state; (2) passenger and
insurer bargained for policy containing family exclusion, and, thus, were bound by it; and (3)
out-of-state coverage clause in automobile liability policy did not preclude insurance
company from using family exclusion clause as basis for refusing passenger's claim.
Affirmed.
Burris & Thomas, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy, Jemison & List and C. Eric Funston and Daniel F.
Polsenberg, Las Vegas, for Respondent.
1. Action.
State whose law is applied in conflict of laws issue must have substantial relation with transaction, and transaction must not be
contrary to public policy of forum.
2. Insurance.
Fact that automobile accident occurred was insufficient contact with state in which accident occurred to permit application of that
state's law, rather than law of state in which driver obtained insurance.
3. Insurance.
Insured and automobile insurer bargained for insurance policy which contained family exclusion clause, and, thus, insured was not
entitled to apply law of state in which accident occurred so as to void family exclusion clause.
4. Insurance.
Out-of-state coverage clause in automobile policy applied to out-of-state laws requiring higher liability limits and would not
operate to make family exclusion clause void.
5. Automobiles.
Compulsory insurance law of state in which accident occurred did not apply to driver and husband, or did out-of-state coverage
apply to driver and husband who were residents of another state in which vehicle was registered.
OPINION
Per Curiam:
Appellant Patricia Sotirakis (Patricia) was a passenger in an automobile driven by her
husband, Dimitri Sotirakis. The couple was involved in an automobile accident while driving
in Las Vegas, Nevada. The accident was caused by the combined negligence of Dimitri and
the driver of the other vehicle. At the time of the accident, Patricia and her husband were
residents of California and carried an insurance policy which they had purchased in California
from United Services Automobile Association (USAA).
After USAA refused Patricia's claim for compensation based on the family exclusion
clause contained in the policy, Patricia sued. Patricia then moved for summary judgment on
the basis that family exclusion clauses are invalid in Nevada. Patricia further argued that the
policy's out-of-state coverage clause, which provides that USAA will pay higher limits
required by other states, applies to family exclusion clauses. The district court applied the
California law and granted USAA's counter motion for summary judgment. We affirm the
district court's decision.
The instant case presents a conflict-of-laws issue. The insurance policy contract between
appellant Patricia and respondent (USAA) contains a family exclusion clause. Under
California statutes and case law, family exclusion clauses are permissible. Schwalbe v. Jones,
128 Cal.Rptr. 321 (App. 1976). Under Nevada case law, family exclusion clauses are invalid.
Zobrist v. Farmers Insurance Exchange, 103 Nev. 104, 734, P.2d 699 (1987); Estate of Neal
v. Farmers Insurance Exchange, 93 Nev. 348, 566 P.2d 81 (1977).
[Headnote 1]
In Sievers v. Diversified Mortgage Investors, 95 Nev. 811, 603 P.2d 270 (1979), this court
held (1) that the state whose law is applied must have a substantial relation with the
transaction; and (2) that the transaction must not be contrary to the public policy of the forum.
95 Nev. at 815, 603 P.2d at 273. Recent cases have continued to follow the Sievers approach.
See Daniels v. National Home Life, 103 Nev. 674, 747 P.2d 892 (1987); Engel v. Ernst, 102
Nev. 390, 395, 724 P.2d 215, 217 (1986).
The Idaho Supreme Court was recently confronted with a fact situation comparable to the
one now before us. Draper v. Draper and State Farm Mutual Auto. Ins. Co., 772 P.2d 180
(Idaho 1989). In Draper, the appellant sued her husband, the driver of the automobile, and his
insurance company for injuries arising out of an automobile accident.
out of an automobile accident. The couple resided in Oregon but the accident took place in
Idaho. Their vehicle was registered in Oregon and their insurance policy was issued in
Oregon as well. The policy contained a family exclusion clause as well as an out-of-state
coverage provision which required payment of the higher limits required by a foreign state.
Id. at 181. The issue before the court was whether to apply Oregon law, which permits family
exclusion clauses, or Idaho law, which does not permit family exclusion clauses.
To determine the applicable law, the court in Draper applied the same test Nevada used in
Sievers, Daniels, and Engel and stated that the law of the situs should apply unless this factor
was outweighed by public policy concerns regarding family members and by the need for
uniformity in requiring mandatory insurance of persons using Idaho's highways. Draper, 772
P.2d at 182. The court in Draper concluded that the state with the most significant
relationship to the transaction was Oregon because Oregon was the place of negotiation and
issuance of the policy, the place where the automobiles were located, and the residence of the
driver and the passenger. Id. at 183. Draper further concluded that there were no public
policy considerations which outweighed the Oregon choice of law. Id. Draper is highly
persuasive because it applies the choice-of-law test upon which Nevada has been relying, its
facts are identical to those in the instant case, and it is consistent with the Restatement
(Second) of Conflict of Laws.
The Washington Supreme Court, adopting the significant relationship test, enumerated the
factors which determine whether the relationship between the state and the transaction is
significant. Dairyland Ins. v. State Farm Mut. Auto. Ins., 701 P.2d 806 (Wash. 1985). In
Dairyland, an Idaho resident was injured in Washington while he was a passenger in his car
driven by a Washington resident. Idaho recognizes household exclusions, whereas
Washington does not. Id. at 807. The court in Dairyland applied Idaho law. Id. at 809.
In resolving this conflict-of-law issue, the court in Dairyland applied the Restatement
(Second) of Conflicts of Law, section 188 (1971)
1
which governs choice of law in the
absence of effective choice by the parties. The court in Dairyland stated that: the most
significant contacts to be considered in resolving such questions revolve around the
expectations of the parties at the time of contracting, including:
__________

1
Section 188 of the Restatement narrows the focus of section 6. Section 6 identifies some of the relevant
factors of choice-of-law questions. They include: the protection of justified expectations, the basic policies
underlying the particular field of law, predictability and uniformity of result, and ease in determining the law to
be applied. Restatement (Second) of Conflict of Laws 6 at 10 (1969).
the most significant contacts to be considered in resolving such questions revolve
around the expectations of the parties at the time of contracting, including:
a. the place of contracting,
b. the place of negotiation of the contract,
c. the place of performance,
d. the location of the subject matter of the contract, and
e. the domicile, residence, nationality, place of incorporation and place of business
of the parties.
Dairyland, 701 P.2d at 808.
Based on the listed factors, the Washington Supreme Court concluded that Idaho law
should apply because the policy was issued in Idaho to an Idaho resident who paid premiums
in Idaho. Id. at 809. In the instant case, the policy was issued in California to a California
resident who paid premiums in California. Moreover, the driver was also a resident of
California. These elements support the application of California law. See Boardman v. United
Services Auto. Ass'n, 470 So.2d 1024, 1032 (Miss. 1985); Cole v. State Auto and Cas.
Underwriters, 296 N.W.2d 779, 781 (Iowa 1980); Haines v. Mid-Century Insurance Co., 177
N.W.2d 328 (Iowa 1970); State Farm, Etc., Ins. Co. v. Simmons' Estate, 417 A.2d 488, 491
(N.J. 1980); Belland v. Allstate Ins. Co., 410 N.W.2d 611 (Wis. 1987).
Dairyland also persuasively points out that the principal location of the risk and the cost of
the policy were probably established according to Idaho law. Dairyland, 701 P.2d at 809.
Similarly, the cost of the policy in the instant case was determined in California. The
Restatement (Second) also recognizes this basis-of-cost theory at section 193. This reasoning
is sound, especially when considering that the insureds presumably assumed that their
premium was based on California, rather than another state's, rates.
[Headnote 2]
The contacts with the state where the accident occurred are fortuitous; the only contact
which Nevada had with the insureds was the mere fact that it was the state in which the
insureds happened to have an accident. If this were enough to apply a state's law, then laws
would be applied according to the fortuity of where the accident occurred rather than by the
provisions of the insured's policy. See Boardman, above.
[Headnote 3]
Some cases focus on the expectations of the parties when determining which law governs.
Dairyland, above; State Farm, above. Here, assuming the insureds were aware of the family
exclusion clause, it is unlikely that they expected the clause to be void when travelling in
Nevada.
exclusion clause, it is unlikely that they expected the clause to be void when travelling in
Nevada. Conversely, USAA probably had no expectation of having its family exclusion
clause rendered void when its insureds entered Nevada. Therefore, it appears that both parties
bargained for an insurance policy which contains a family exclusion clause.
[Headnote 4]
Patricia further contends that the out-of-state coverage clause promises to conform to other
states' Financial Responsibility laws where higher coverage is required. She argues that this
promise precludes USAA from using the family exclusion clause as the basis for refusing
Patricia's claim against her husband.
USAA contends that its out-of-state coverage clause only applies to out-of-state laws
requiring higher liability limits. In addition, USAA claims that Nevada's compulsory
insurance laws does not apply to policies issued out of state; therefore, USAA is not obligated
to pay under the compulsory insurance law because it does require higher liability limits.
USAA's out-of-state coverage clause reads as follows:
If an auto accident to which this policy applies occurs in any state or province other
that the one in which your covered auto is principally garaged, we will interpret your
policy for that accident as follows:
A. If the state or province has:
1. A financial responsibility or similar law specifying limits of liability for bodily
injury or property damage higher than the limit shown in the Declarations, your policy
will provide the higher specified limit.
2. A compulsory insurance or similar law requiring a nonresident to maintain
insurance whenever the nonresident uses a vehicle in that state or province, your policy
will provide at least the required minimum amounts and types of coverage.
[Headnote 5]
Nevada has a compulsory insurance law: NRS 485.185. It only requires owners of motor
vehicles which are or should be registered in Nevada to carry continuous insurance. State
Department of Motor Vehicles v. Lawlor, 101 Nev. 616, 618, 707 P.2d 1140, 1141 (1985).
Here, Patricia and her husband were residents of California, and her vehicle was registered, as
it should have been, in California and not Nevada. Therefore, the compulsory insurance law
does not apply to Patricia and her husband, and the out-of-state coverage clause does not
apply.
We therefore conclude that the trial court did not err in entering summary judgment in
favor of respondent based on California law giving effect to the family exclusion clause
contained in Patricia's insurance policy that she purchased in California.

ing summary judgment in favor of respondent based on California law giving effect to the
family exclusion clause contained in Patricia's insurance policy that she purchased in
California. The judgment of the district court is affirmed.
____________
106 Nev. 128, 128 (1990) SIIS v. Vernon
STATE INDUSTRIAL INSURANCE SYSTEM, an Agency of the State of Nevada,
Appellant, v. LLOYD S. VERNON, Respondent.
No. 20297
February 23, 1990 787 P.2d 792
Appeal from district court order affirming administrative appeals officer's decision to
award industrial benefits to respondent. Eighth Judicial District Court, Clark County; Miriam
Shearing, Judge.
Workers' compensation claimant sought permanent partial disability for knee injuries
which occurred in state and were aggravated during out-of-state employment. The district
court affirmed award of benefits by appeals officers, and State Industrial Insurance System
appealed. The Supreme Court, Rose, J., held that last injurious exposure principle required
claimant to seek compensation from out-of-state employer under which latest injury bearing
causal relationship to disability occurred, and, claimant could seek compensation in state after
out-of-state employer rendered final decision.
Pamela Bugge, General Counsel, Carson City, and William A. Zeigler, Associate Counsel,
Las Vegas, for Appellant.
Gary T. Watson, Las Vegas, for Respondent.
J. Michael McGroarty Las Vegas, for Amicus Curiae.
Claimants with successive injuries causing disability, some of which occurred in another state, are eligible for compensation in
Nevada only if: claimant first applies for compensation in other state, claimant has received a final decision on application in other
state, and prior in-state injury contributes even slightly to current disability. NRS 616.010 et seq.
Workers' compensation claimant who receives final determination of denial of compensation from state in which last injury occurs
may apply for compensation in Nevada, and State Industrial Insurance System will become liable for entire disability
bearing causal relationship to injuries.
106 Nev. 128, 129 (1990) SIIS v. Vernon
tem will become liable for entire disability bearing causal relationship to injuries. NRS 616.010 et seq.
Workers' compensation claimant who was compensated by another state may seek further compensation in Nevada but only to
extent that such compensation is not directly duplicative of compensation received in other state. NRS 616.010 et seq.
Under last injurious exposure principle, the last employer is liable for all compensation, even if injury suffered under last employer
is less severe than injury suffered under previous employer. NRS 616.010 et seq.
Workers' compensation claimant's superficial injuries to his left knee while working for out-of-state employer were qualitatively
different from internal knee joint injuries and were not part of disability for which claimant sought compensation, and, thus, claimant
had to seek compensation from out-of-state employer before he would be eligible for disability benefits in Nevada. NRS 616.010 et
seq.
Remand was necessary to determine whether claimant's left knee injuries under in-state employer and right knee injuries under
out-of-state employer were part of same disability for purposes of determining whether out-of-state employer was responsible for
compensation related to both left and right knee injuries; if left knee was separate and distinct liability in-state compensation carrier
remained liable for all compensation of left knee. NRS 616.010 et seq.
OPINION
By the Court, Rose, J.:
This is a successive injury case, in which the disability claimant received three knee
injuries, the first in Nevada, and the other two in California. Nevada's last injurious exposure
rule requires the employer at the time of the latest injury related to a disability to assume full
liability for the disability. The question presented by this appeal is whether this rule applies
where the employer at the time of the latest injury is an out-of-state employer. This is a
question of first impression for this court. We hold that the last injurious exposure rule
requires the disability claimant first to seek compensation from the out-of-state employer. We
further hold that the claimant may later reapply for compensation in Nevada and is entitled to
the full compensation authorized by Nevada law, but only to the extent that this compensation
does not directly duplicate any compensation already awarded by the out-of-state employer.
FACTS
In January 1986, the claimant Lloyd Vernon (Vernon) injured both his knees while
employed as an ironworker in Las Vegas.
106 Nev. 128, 130 (1990) SIIS v. Vernon
both his knees while employed as an ironworker in Las Vegas. Nevada's State Industrial
Insurance System (SIIS) paid for arthroscopic surgery on the right knee. In May 1986, SIIS
released Vernon to work, but Vernon continued to complain of serious symptoms in both
knees. Because a decision on his Nevada claim for permanent partial disability was delayed,
Vernon went to work in California. He re-twisted the right knee on this second job and filed a
claim for compensation with the California worker's compensation system. Because that
claim, too, was delayed, he found a third job located in California, but under an employer
covered by the worker's compensation system of the State of Washington. Here, he suffered
his third injury, a bruise and infected cut on his left knee. Vernon then returned to Nevada to
pursue his pending claim and was awarded rehabilitative and medical benefits. SIIS appealed
to an administrative appeals officer who affirmed the award of benefits. SIIS now appeals the
district court's decision affirming the award of benefits by the appeals officer. At the time of
the appeals officer's decision, Vernon's claim with the second employer was still pending.
The third employer has compensated Vernon through the worker's compensation system of
the State of Washington, but only for the superficial wounds Vernon suffered in the third
accident, not for Vernon's underlying knee joint injuries.
DISCUSSION
I. The last injurious exposure rule.
In Nevada, the last injurious exposure rule is grounded in the decisions of this court, not in
legislation. This court has stated the last injurious exposure rule as follows:
Full liability is placed on the carrier covering the risk at the time of the most recent
injury that bears a causal relationship to the disability. 4 Larson Workmen's
Compensation Law 95.20 (1986).
. . . .
When an employee sustains a subsequent industrial accident which is found to be a new
injury or an aggravation of the prior injury, the employer/insurer at the time of the
second injury is liable for all the claimant's benefits even if the second injury would
have been much less severe in the absence of the prior condition, and even if the prior
injury contributed to the final condition. 4 Larson Workmen's Compensation Law
95.21 (1986). . . . However, if the second injury is merely a recurrence of the first, and
does not contribute even slightly to the causation of the disabling condition, the
insurer/employer covering the risk at the time of the original injury remains liable for
the second. 4 Larson Workmen's Compensation Law 95.23 (1986).
106 Nev. 128, 131 (1990) SIIS v. Vernon
SIIS v. Swinney, 103 Nev. 17, 20, 731 P.2d 359, 360-61 (1987) (applying the rule in a
successive injury case); see also SIIS v. Jesch, 101 Nev. 690, 709 P.2d 172 (1985) (applying
the rule in an occupational disease case). Unlike the present case, neither Swinney nor Jesch
involved an out-of-state employer. Thus, the application of the last injurious exposure rule to
an out-of-state employer presents a question of first impression for this court.
II. The parties' contentions.
Neither party contends that the second injury involving the right knee was a mere
recurrence of the first injury in Nevada. Accordingly, both parties concede that the rule as
stated in Swinney applies, at least as to the right knee injury. It is in the interpretation of that
rule as applied to an out-of-state employer that the parties differ.
SIIS argues that this court should reverse the lower court's decision on either of two
grounds. First, SIIS seeks reversal on the basis of a literal application of the rule as stated in
Swinney. Applied literally, SIIS argues, Swinney requires one of the later two out-of-state
employers to assume exclusive liability, because one of these two employers was the
employer at the time of the most recent injury related to the disability. Alternatively, SIIS
proposes that this court adopt the middle-ground rule stated in Miville v. State Accident
Insurance Fund Corp., 710 P.2d 159 (Or.App. 1985). In Miville, the court held that the
previous in-state employer remains liable or the disability caused in part by a later injury
under an out-of-state employer, only if: (1) the claimant first files for benefits in the other
state, (2) the claimant has received a final determination of denial from the other state, and
(3) the prior in-state injury contributes materially to the current disability. Miville, 710 P.2d at
161-62. Since Vernon applied for benefits from both the second and third employers, SIIS
concludes, under Miville Vernon cannot seek any further compensation from SIIS.
Vernon makes two principal arguments in reply. First, he urges this court to adopt the last
in-state employer interpretation of the last injurious exposure rule. This is the interpretation
adopted by the appeals officer and the district court. Applying this interpretation, the appeals
officer and the district court held, as a matter of law, that the last injury rule refers only to the
last Nevada employer, i.e., that the rule applies only to Nevada employers. As a result, the
appeals officer held that SIIS, not one of the out-of-state employers, was fully liable to
compensate Vernon. Second, Vernon argues that the last injury rule has no application to
Vernon's left knee injury. Unlike the right knee, he notes, the left knee was never re-sprained
in California. The only injuries to the left knee in California were, he says, the unrelated, and
more minor, puncture wound and bruise.
106 Nev. 128, 132 (1990) SIIS v. Vernon
and more minor, puncture wound and bruise. Therefore, he concludes, his current problems in
the left knee are mere recurrences of the original left knee injury, and, under Swinney, the
Nevada employer remains fully liable for these recurrences.
III. Application of the last injurious exposure rule where the last relevant injury occurs
under an out-of-state employer.
We decline to adopt the last literal application of Swinney to out-of-state employers as
requested by SIIS. Applying Swinney literally would bar any compensation by SIIS even
where the previous Nevada injury is the principal cause of disability and the second state
denies any liability whatsoever, leaving the worker disabled and uncompensated. This result
is fundamentally inconsistent with the purpose of the Nevada Industrial Insurance Act (NIIA).
This interpretation of the last injurious exposure rule as applied to out-of-state employers has
been approved in only one case cited by the parties, which we decline to follow. See State
Compensation Fund v. Joe, 543 P.2d 790 (Ariz.App. 1975).
On the other hand, we reject Vernon's contention that the last in-state employer
interpretation of this rule should apply in all cases. We recognize that an apparent majority of
courts have adopted the last in-state employer interpretation. See 4 Larson Workmen's
Compensation Law 95.25(d) (1986). However, none of these cases involved a claimant
who, in addition to seeking benefits in the state where the first injury occurred, also had
applied for benefits in the second state. Allowing claimants to recover full compensation in
this state under Swinney without regard to any out-of-state recoveries poses the risk of double
recovery by claimants.
[Headnotes 1-3]
For these reasons, we hereby adopt a solution similar, but not identical to that reached by
the Oregon Court of Appeals in Miville. The rule we adopt applies to claimants with
successive injuries causing disability, where the later injury occurs under an employer
covered by the worker's compensation system of another state. Such a claimant is eligible for
compensation in Nevada from SIIS only if: (1) the claimant first applies for compensation in
the other state, (2) the claimant has received a final decision on the application in the other
state, and (3) the prior in-state injury contributes, in the words of the Swinney court, even
slightly to the current disability. If the claimant receives a final determination of denial of
compensation by the other state, the claimant may then apply for compensation from SIIS,
which becomes liable for the entire disability bearing a causal relationship to these injuries. If
the claimant is compensated by the other state, the claimant may seek any further
compensation for which SIIS would normally be liable under the NIIA, but only to the
extent that such compensation is not directly duplicative of compensation received in the
other state.
106 Nev. 128, 133 (1990) SIIS v. Vernon
sated by the other state, the claimant may seek any further compensation for which SIIS
would normally be liable under the NIIA, but only to the extent that such compensation is not
directly duplicative of compensation received in the other state. Before applying here, the
claimant should apply in the other state for all benefits to which he or she may be entitled
under the law of that state, including, for example, both income replacement and
rehabilitative benefits. The claimant may elect not to apply for a certain benefit in the second
state, but doing so waives any rights the claimant may have to the same benefit under the
NIIA.
We believe that the rule adopted above strikes a fair and workable balance between the
interests of Nevada employers and the interest of this state in protecting its workers, as
expressed by the legislature in the NIIA. This rule avoids double recovery by claimants. Yet it
also prevents claimants whose disability is caused, perhaps principally, by a Nevada injury
from falling between the cracks of the workers' compensation systems of two or more states.
This court originally adopted the last injurious exposure rule for two principal reasons: to
facilitate recovery by disability claimants such as those represented in Jesch and Swinney,
and, in Swinney, as a rule of administration clarifying which among two or more employers is
to be liable. Both of these purposes are furthered by the rule adopted above. In the typical
case involving the last injurious exposure rule, both employers are Nevada employers. In such
a case, the rule requires that the claimant be compensated to the full extent authorized by
Nevada law by the employer at the time of the latest injury bearing a causal relationship to the
disability. Where another state denies adequate compensation, a Nevada worker injured here
in Nevada ought not to forfeit this entire compensation merely because he or she is re-injured
while working for an out-of-state employer.
[Headnote 4]
Even if the Nevada injury is not the preponderant cause of disability, it is not unfair to
expect the prior Nevada employer to remain liable for a disability incurred in part while on
the job in Nevada. Indeed, under the most common application of the last injurious exposure
rule in which all employers are from this state, the last employer is liable for all
compensation, even if the injury suffered under the latter employer is far less severe than any
injury suffered under a prior employer.
[Headnote 5]
In the present case, the appeals officer found that the superficial injuries to the left knee
while working for the third employer, injuries which are now healed, constituted a
qualitatively different condition than the internal knee joint injuries of which Vernon now
complains.
106 Nev. 128, 134 (1990) SIIS v. Vernon
now complains. After careful review of the record and of SIIS' arguments on this point, we
hold that substantial evidence supports this finding. We conclude that the third injuries are
not part of the disability for which Vernon now seeks compensation. Therefore, under
Swinney, the employer at the time of the most recent injury bearing a causal relationship to
the present disability is the second employer. It is to this employer that Vernon must apply for
full compensation before he can be eligible in this state for benefits related to this disability.
[Headnote 6]
The appeals officer concluded that SIIS remains responsible for all compensation related
to the left knee injury. For reasons just stated, we accept the appeals officer's conclusion that
the third employer is not primarily liable for the internal left knee injuries suffered in Nevada.
What is not clearly addressed by either the appeals officer or the district court is the question
of whether the left knee injuries under the Nevada employer and the right knee injuries under
the second employer are parts of the same disability. If the first and second injuries are part of
the same disability, then, under Swinney, the employer at the time of the later injury is
responsible for compensation related to both the left and right knee injuries. If the left knee
injury caused a separate and distinct disability, however, SIIS remains liable for all
compensation for this disability, and Vernon must seek compensation for the right knee
disability according to the rule adopted above. We believe that this question of the divisibility
of disabilities can best be addressed by a fact-finder. On remand, the SIIS must also address
the question of whether Vernon has yet received a final determination regarding all possible
compensation authorized by the California worker's compensation system. If Vernon has
received such a final determination, the SIIS must then determine the level of benefits
received from California and award Vernon all further benefits to which he would be entitled
under Nevada law, to the extent that these benefits do not directly duplicate the benefits
received from California.
CONCLUSION
We hold that the last injurious exposure rule requires an employee previously injured
under a Nevada employer first to seek compensation from the out-of-state employer under
which the latest injury bearing a causal relationship to the disability occurred. After the
out-of-state employer renders a final decision, the employee may return to Nevada to seek
compensation subject to the restrictions stated in this opinion.
We reject the last in-state employer interpretation accorded the last injurious exposure
rule by the appeals officer and by the district court.
106 Nev. 128, 135 (1990) SIIS v. Vernon
last injurious exposure rule by the appeals officer and by the district court. Accordingly, we
reverse the decision of the district court and remand the case with instructions that the district
court shall direct SIIS to determine: whether the first left knee and second right knee injuries
constitute part of the same disability; whether Vernon has received a final determination from
the second employer regarding all benefits to which he may be entitled from the second
employer; and, if Vernon has received such a final decision, the extent to which Vernon is
entitled to further benefits from SIIS.
Young, C. J., Steffen, Springer and Mowbray, JJ., concur.
____________
106 Nev. 135, 135 (1990) Bennett v. State
EDWARD BENNETT, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19706
February 23, 1990 787 P.2d 797
This is an appeal from a judgment of conviction and sentence of death following a jury
trial. Eighth Judicial District Court, Clark County; Miriam Shearing, Judge.
Defendant was convicted in the district court of attempted robbery, murder with use of
deadly weapon, attempted murder, and was sentenced to death. Defendant appealed. The
Supreme Court held that: (1) testimony was admissible even though witness had received
monetary award for information; (2) poetry seized during search of defendant's house was
admissible pursuant to plain view doctrine; and (3) robbery, burglary, and absence of
apparent motive could be used as aggravating circumstances.
Affirmed.
Potter & Associates, Las Vegas, for Appellant.
Tufteland, Deputy District Attorney, Daniel M. Seaton, Deputy, Clark County, for
Respondent.
1. Witnesses.
Testimony concerning defendant's conversations about murder was admissible from witness who went to police voluntarily, even
though he later received monetary award; any inconsistencies in testimony were brought out during cross-examination.
brought out during cross-examination. U.S.C.A.Const. Amends. 5, 14; NRS 200.033.
2. Searches and Seizures.
Entry and search of defendant's house were lawfully conducted pursuant to properly executed warrant and consent of defendant's
father who had sufficient relationship to the premises.
3. Arrest.
Police officer had probable cause to believe defendant committed murder, and, thus, arrest of defendant after police entered and
searched house pursuant to properly executed search warrant was lawful.
Police officers lawfully seized defendant's poetry which was in plain view while officers were lawfully present in defendant's room,
even though poetry was not listed in warrant; poetry was discovered while officers were looking for clothing which was listed on
warrant.
5. Criminal Law.
Prosecutor's statement during argument to jury in murder prosecution that a person totally wrapped up in himself makes a small
package followed by statement that, in view of State, defendant was a very small package was neither aggravated misconduct, highly
inflammatory nor prejudicial. NRS 200.033.
6. Criminal Law.
Prosecutor's statement to jury during penalty phase of murder prosecution that jury possessed power to guarantee that defendant
would never again make a healthy, vibrant, caring woman into a corpse was not forensic misconduct given evidence in record which
supported inference of future dangerousness. NRS 200.033.
7. Homicide.
Instruction during penalty phase that jury could find that burglary was aggravating circumstance to murder was warranted where
State notified defendant prior to penalty hearing that burglary would be so offered. NRS 200.033, 200.033, subd. 4.
8. Homicide.
Even though murder was not committed during perpetration of burglary, burglary could be an aggravating circumstance of murder,
where murder was committed while defendant was engaged in commission of or attempt to commit or flight after committing or
attempting to commit burglary or robbery. NRS 200.033, subd. 4, 205.060, 205.070.
9. Homicide.
Defendant could be prosecuted separately for burglary and robbery, and, thus, each crime could be used separately as aggravating
circumstance during penalty phase of murder prosecution. NRS 200.033, subd. 4, 205.060, 205.070.
10. Homicide.
Underlying felony in murder case does not merge with murder conviction, and, thus, underlying felony may be used as aggravating
circumstance in penalty phase. NRS 200.033.
11. Homicide.
Fact that murder could be aggravated by technical offenses did not cause statute governing penalties for murder to be overboard or
arbitrarily imposed. NRS 200.033, subd. 4.
12. Criminal Law.
Jury's finding that defendant was guilty of attempted robbery was not factually inconsistent with finding that murder of cashier
whom defendant attempted to rob was committed without motive; killing cashier was not necessary to
accomplish burglary or robbery.
defendant attempted to rob was committed without motive; killing cashier was not necessary to accomplish burglary or robbery. NRS
200.033.
13. Criminal Law.
State's capital sentencing process is constitutional; jury is never required to impose death penalty, nor is defendant ever required to
establish mitigating circumstances in order to be sentenced to less than death. NRS 177.055, subd. 2, 200.030, subd. 4(a);
14. Homicide.
Death sentence was not excessive for murder of convenience store cashier which was committed during attempted robbery and was
apparently without motive. NRS 177.055, subd. 2(c), (d), 200.033.
OPINION
Per Curiam:
Following a jury trial, the district court convicted appellant Edward Bennett of attempted
robbery with use of a deadly weapon, murder with use of a deadly weapon, and attempted
murder with the use of a deadly weapon. At the conclusion of the penalty phase, the jury
found that aggravating circumstances outweighed the mitigating circumstances. The district
court sentenced appellant to death pursuant to the jury's verdict. On appeal, appellant raises
numerous issues, none of which have merit.
The Facts
On February 8, 1988, appellant purchased a .45 caliber handgun at the Van Wagenen
Finance Company, a pawn shop in Provo, Utah. Appellant was 18 years old. On February 9,
1988, appellant and Joe Beeson entered the Stop N'Go Market, located at 1201 E. Sahara
Avenue, Las Vegas. Derrick Franklin, a black man, entered the store directly after appellant.
As Franklin went to the back of the store, Beeson placed a piece of candy on the counter. As
Michelle Moore, the clerk at the cash register, rang up the candy, appellant pulled out his .45
caliber handgun and shot her in the face, killing her instantly. Franklin later testified that there
was no conversation, argument, or shouting between the parties. Appellant then gave the gun
to Beeson and told him to get the nigger, referring to Franklin. While appellant jumped
over the counter and unsuccessfully attempted to open the cash drawer, Beeson approached
Franklin with the gun. Franklin pleaded with Beeson not to shoot him and ran out of the store.
Beeson fired at Franklin and continued firing until one of the shots struck Franklin in the leg.
The police found appellant's fingerprints on the door and the cash register counter at the
Stop N'Go Market. The police also determined that appellant owned the gun that was used
to kill Ms.
determined that appellant owned the gun that was used to kill Ms. Moore.
On March 5, 1988, appellant told his friend, Jeffrey Chidester, about the circumstances
surrounding the murder and bragged that he and Breeson were on a killing spree. Chidester
reported the conversation to the Utah police. Several days later, the police department
informed Chidester that he was entitled to a reward for providing them with this information.
Chidester received $3,000.00 prior to testifying at the preliminary hearing and $29,000.00
after the preliminary hearing.
The Utah police obtained a warrant to search appellant's house in Lehi, Utah. Appellant's
father answered the police officer's knock on the front door. After the officers advised
appellant's father why they were there, he let the officers into the house. While searching for
clothing listed in the warrant, the police officers observed some of appellant's poetry on
pieces of paper.
1
The officers seized appellant's poetry and thereafter arrested appellant.
The State of Nevada subsequently charged appellant with attempted robbery with use of a
deadly weapon, murder with use of a deadly weapon, and attempted murder with use of a
deadly weapon. Over appellant's objections at trial, the district court admitted the poetry into
evidence. The jury found appellant guilty of the crimes charged. At the conclusion of the
penalty hearing, the jury found that the State had proven four aggravating circumstances
beyond a reasonable doubt: (1) that the murder was committed by a person who knowingly
created a risk of death to more than one person; (2) that the murder was committed while the
person was engaged in the commission of a burglary; (3) that the murder was committed
while the person was engaged in attempted robbery; and (4) that the murder was committed at
random and without apparent motive.
2
NRS 200.033. The jury found that the aggravating
circumstances outweighed the mitigating circumstances and imposed a sentence of death.
This appeal from the judgment of conviction and the imposition of the death penalty
followed.
__________

1
The poetry includes the following: My thirst for blood is now calm, but it shall rise again. My power is so
strong I need to cause some death. I'm so fuckin' powerful and my reigning just begun as I kill and kill again.
Death is rising from the air as the thunderbolts strike. Blood is dripping from the wall. Someone gonna,
someone's gonna die.

2
The jury also concluded that appellant proved three mitigating circumstances beyond a reasonable doubt:
(1) no previous criminal history; (2) the youth of appellant; and (3) alcohol and drug usage.
The Guilt Phase
[Headnote 1]
Relying on Franklin v. State, 94 Nev. 220, 577 P.2d 860 (1978), appellant argues that the
district court violated his right to due process when it admitted Jeffrey Chidester's testimony.
Specifically, appellant claims that Chidester was compelled to testify in a particular fashion in
order to obtain favorable treatment. Franklin, however, is distinguishable on the facts alone.
In that case, the witness was an accomplice to the crime, and charged with second degree
murder rather than first degree murder in return for his testimony against his accomplice.
Unlike Franklin, Chidester was not an accomplice to the murder. Chidester voluntarily
went to the local police following appellant's confession. The officers did not threaten
Chidester in any manner to get his cooperation. After Chidester made his statement to the Las
Vegas Police, his only request in return was to get me out of town. Chidester did not find
out about the reward until several days after he made his statement to the police. Therefore,
Chidester's testimony was properly admitted.
Appellant also asserts that Chidester's alleged inconsistent testimony was insufficient
evidence to support his conviction, and that Chidester lied during the preliminary hearing
when he denied working for the Utah Police Department as an informant on prior occasions.
Any inconsistencies in Chidester's testimony, however, were brought out during
cross-examination. Additionally, we note that the evidence supporting the trial jury's verdict
was otherwise substantial.
3
In light of that substantial evidence, Chidester's testimony during
the preliminary hearing did not prejudice appellant's substantive rights at trial.
Evidentiary Rulings
[Headnotes 2, 3]
Appellant contends that the district court erred by admitting his poetry that was seized
during the search of his house. Specifically, appellant contends that the search and his arrest
were unlawful and that the fruits thereof should have been suppressed. We disagree.
Valid consent to search can be obtained from a third party who possesses common
authority over the premises or has other sufficient relationship to the premises. Snyder v.
State, 103 Nev. 275, 738 P.2d 1303 (1987). In addition, once a search warrant is obtained
and the entry is lawful, the police are where they have a right to be and may arrest a
resident provided they have probable cause to do so.
__________

3
As noted, the evidence at trial established that appellant's fingerprints were found on the door and the
counter at the Stop N'Go Market in Las Vegas, and the gun appellant purchased and then sold back to the pawn
shop in Provo, Utah, was the same gun used to murder Ms. Moore.
obtained and the entry is lawful, the police are where they have a right to be and may arrest a
resident provided they have probable cause to do so. State v. Ruth, 435 A.2d 3, 6 (Conn.
1980). In the present case, the search was lawful because appellant's father voluntarily let the
police officers inside his house. Moreover, the police entry and search were lawfully
conducted pursuant to a properly executed search warrant. Lastly, at the time of appellant's
arrest, the police officers had probable cause to believe appellant had committed the felony.
See Washington v. State, 94 Nev. 181, 183, 576 P.2d 1126, 1128 (1978).
4
Under these
circumstances, we conclude that the search and subsequent arrest were lawful.
[Headnote 4]
Appellant also contends that the district court erred by denying his motion to suppress the
items seized that were not listed in the warrant. Specifically, appellant contends that seizure
of the poetry violated the particularity requirement set out in Andresen v. Maryland, 427 U.S
463, 480 (1976). We disagree.
A warrantless seizure may be justifiable under the plain view doctrine. Johnson v. State,
97 Nev. 621, 624, 637 P.2d 1209, 1211 (1981). The plain view doctrine requires that (1) the
officers are lawfully present at the point of observation and (2) the discovery is inadvertent.
Id. The officers obtained a valid warrant to search appellant's residence for specified items of
clothing. The officers had probable cause to believe the clothes would be in appellant's
bedroom. See Maryland v. Garrison, 480 U.S. 79 (1987). Therefore, the officers were
lawfully present in the bedroom, and when they inadvertently observed the poetry and noticed
that it dealt with death and killing, the officers lawfully seized the poetry. Thus, the discovery
of the poetry was inadvertent because the officers were looking for clothing when they
noticed the poetry. Therefore, the district court did not err by admitting the seized poetry
pursuant to the plain view doctrine.
Prosecutorial Misconduct
[Headnote 5]
Appellant contends that there were several instances of prosecutorial misconduct. First,
appellant contends that the prosecutor improperly interjected his personal opinion in his
argument to the jury. Specifically, appellant complains that the prosecutor improperly quoted
Harry Emerson Fosdick as saying [a] person totally wrapped up in himself makes a small
package," and then stated, "[i]n view of the State of Nevada, you are a very small
package."
__________

4
The test as stated in Washington is: The constitutional validity of an arrest without a warrant for a felony
not committed in an officer's presence depends upon whether, at the moment the arrest is made, he had probable
cause to make it. Id. at 183, 576 P.2d at 1128.
totally wrapped up in himself makes a small package, and then stated, [i]n view of the State
of Nevada, you are a very small package. Under these circumstances however, we conclude
that the prosecutor did not express his personal opinion on the matter. See, e.g., Aesop v.
State, 102 Nev. 316, 721 P.2d 379 (1986). Even assuming that the prosecutor's remarks
constituted an improper expression of his personal opinion, as we have frequently noted,
where, as here, a guilty verdict is free from doubt, even aggravated prosecutorial remarks
will not justify reversal. See Yates v. State, 103 Nev. 200, 206, 734 P.2d 1252, 1256 (1987).
Here, however, the prosecutor's statement was neither aggravated misconduct, highly
inflammatory nor prejudicial. Accordingly, appellant's contention is without merit.
[Headnote 6]
Next, appellant argues that the prosecutor engaged in forensic misconduct by telling the
jury during the penalty phase: You possess the power to guarantee that Edward Bennett will
never again make a healthy, vibrant, caring woman into a corpse. There was evidence in the
record to support an inference of future dangerousness. The prosecutor's comment was not
improper. See Haberstroh v. State, 105 Nev. 739, 782 P.2d 1343 (1989).
The Penalty Phase
Appellant challenges the jury's use of robbery, burglary, and absence of apparent motive as
aggravating circumstances. NRS 200.033. Appellant's contentions are meritless.
[Headnote 7]
First, appellant contends that the district court erred by instructing the jury that it could
find burglary as an aggravating circumstance pursuant to NRS 200.033(4).
5
Appellant
specifically contends that, in order for burglary to be used as an aggravating circumstance, he
should have been initially charged and convicted of burglary. However, the plain language of
the statute does not require that the State first charge the defendant with each crime before the
crimes can be used as an aggravating circumstance. Nor does appellant cite any relevant case
law supporting this contention. A primary concern with respect to the finding of aggravating
circumstances at the penalty hearing is to provide an accused notice and to insure due
process so the accused can meet any new evidence which may be presented during the
penalty hearing.
__________

5
NRS 200.033(4) provides in pertinent part that murder of the first degree may be aggravated where:
The murder was committed while the person was engaged, alone or with others, in the commission of or an
attempt to commit or flight after committing or attempting to commit, any robbery, sexual assault, arson in the
first degree, burglary or kidnapping in the first degree, and the person charged:
(a) Killed or attempted to kill the person murdered; or
(b) Knew or had reason to know that life would be taken or lethal force used.
finding of aggravating circumstances at the penalty hearing is to provide an accused notice
and to insure due process so the accused can meet any new evidence which may be presented
during the penalty hearing. See Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979).
Because the State notified appellant prior to the penalty hearing that burglary would be
offered as an aggravating factor, the district court properly instructed the jury that it could
consider it as such.
[Headnote 8]
Next, appellant contends that burglary cannot be an aggravating circumstance here because
the murder was not committed during the perpetration of the burglary. NRS 200.033(4) only
requires that, for burglary to be an aggravating circumstance, the murder must be committed
while the person was engaged in the commission of or an attempt to commit or flight after
committing or attempting to commit burglary or robbery. This was clearly the case here.
6
Were it otherwise, burglary could be used as an aggravating circumstance only upon the rare
occasion of a killing which occurs while the defendant is entering the building.
[Headnote 9]
Appellant contends that the district court committed reversible error by considering the
underlying felonies of robbery and burglary as separate aggravating circumstances under NRS
200.033(4). Appellant specifically argues that the burglary and robbery arose out of the same
indistinguishable course of conduct and thus cannot be stated as two separate aggravating
circumstances. We disagree.
[Headnote 10]
Nevada law specifically authorizes prosecution for each crime committed during the
commission of a burglary, as well as the burglary itself. NRS 205.070. Therefore, if a
defendant can be prosecuted for each separately, each crime can be used separately as an
aggravating circumstance. Cf. Jones v. State, 95 Nev. 613, 619, 600 P.2d 247, 251 (1979)
(convictions of both burglary and robbery did not violate constitutional prohibition against
double jeopardy because burglary and robbery are separate and distinct offenses). In addition,
in Miranda v. State, 101 Nev. 562, 707 P.2d 1121 (1985), we held that the underlying felony
in a felony-murder case does not merge with the murder conviction. Therefore, it is
permissible for the State to use the underlying felony as an aggravating circumstance in
the penalty phase.
__________

6
NRS 205.060 defines burglary as:
(1) Every person who, either by day or night, enters any house, room, apartment, tenement, shop, warehouse,
store, mill, barn, stable, outhouse, or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or
housetrailer, airplane, glider, boat or railroad car, with intent to commit grand or petit larceny, or any felony, is
guilty of burglary.
fore, it is permissible for the State to use the underlying felony as an aggravating
circumstance in the penalty phase. See also Petrocelli v. State, 101 Nev. 46, 692 P.2d 503
(1985); Wilson v. State, 99 Nev. 362, 376, 664 P.2d 328 (1983). Lastly, if the legislature
intended to prohibit the use of multiple aggravating circumstances in this context it would
have provided accordingly.
[Headnote 11]
Appellant contends that in enacting NRS 200.033(4), the legislature was primarily
concerned with imposing a penalty for the most heinous offenses, which is not the case here.
Specifically, appellant argues that if a murder can be aggravated by mere technical offenses,
NRS 200.033(4) would be overbroad and arbitrarily imposed. See Gregg v. Georgia, 428 U.S.
153, 199 (1976). This contention lacks merit
First, appellant fails to provide evidence of legislative intent in support of this contention.
We conclude, in any event, that both the burglary and attempted robbery made the crime more
heinous.
7
Moreover, because Nevada statutory and case law specifically authorize the use of
multiple underlying felonies as aggravating circumstances, the district court did not commit
reversible error.
[Headnote 12]
Appellant asserts that the evidence does not support a finding that he killed without an
apparent motive. Specifically, appellant asserts that the jury's finding of guilt on the attempted
robbery count is factually inconsistent with the jury's finding that the murder was committed
without an apparent motive. We disagree.
We note that within 15 to 20 seconds after entering the Stop N'Go Market, appellant
walked up to the counter, laid a piece of candy on it and, when Ms. Moore rang up the candy,
fired a bullet through her head, killing her instantly. This killing was not necessary to
accomplish burglary or robbery. We conclude, therefore, that under these circumstances,
substantial evidence supports the jury's finding that appellant killed without an apparent
motive, as well as the jury's finding that appellant committed attempted robbery. See Moran
v. State, 103 Nev. 138, 143, 734 P.2d 712, 714 (1987).
__________

7
In Wilson v. State, 99 Nev. 362, 376, 664 P.2d 328, 336 (1983), we stated:
A logical reading of the statute requires that each felony be used as an aggravating circumstance. First
degree murder is aggravated when it is committed during the course of one of the enumerated felonies
contained in NRS 200.033(4). Therefore, when the murder is committed during the course of more than
one of the felonies listed, the murder is more aggravated and heinous than it would have been if only one
of the felonies were present.
Eighth Amendment Violation
[Headnote 13]
Appellant urges this court to declare Nevada's capital sentencing process
unconstitutionally vague and overbroad, in violation of the Eighth Amendment prohibition
against cruel and unusual punishment. Appellant specifically argues that NRS 200.033 and
200.030(4)(a) impermissibly transfer the burden of proving that the death penalty is
inappropriate to the defendant. Appellant further contends that the sentencing procedure
impermissibly creates a presumption in favor of the death penalty, which conflicts with
Furman v. Georgia, 408 U.S. 238 (1972) and its progeny.
This court has repeatedly rejected these contentions, and has held that Nevada's sentencing
procedure is constitutional. Gallego v. State, 101 Nev. 782, 711 P.2d 856 (1985); Snow v.
State, 101 Nev. 439, 705 P.2d 632 (1985); Ybarra v. State, 100 Nev. 167, 679 P.2d 797
(1984).
8
Appellant has failed to demonstrate why we should depart from our established
holdings.
Appellant claims that Nevada's death penalty is similar to the one struck down in Adamson
v. Ricketts, 865 F.2d 1011 (9th Cir. 1988), where the court held the Arizona death penalty
unconstitutional. The Arizona statute barred the court from imposing a sentence of less than
death in situations where the mitigating and aggravating circumstances are in balance, or
where the mitigating circumstances give the court reservations but nonetheless fall below the
weight of the aggravating circumstances. Id. at 1043. However, Nevada's sentencing
procedure is not the same. Unlike the Arizona statute, Nevada's statute does not require the
jury to impose the death penalty under any circumstance, even when the aggravating
circumstances outweigh the mitigating circumstances.
9
Nor is the defendant required to
establish any mitigating circumstances in order to be sentenced to less than death.
__________

8
In Profitt v. Florida, 428 U.S 242, (1976), the United States Supreme Court considered a sentencing
procedure similar to Nevada's where the sentencer weighs the aggravating and mitigating factors in imposing the
sentence. The Profitt Court reasoned that it is this balancing process that causes the sentencer to focus on the
circumstances of the crime and the character of the individual defendant, and to follow capital sentencing
procedures which are designed to preclude imposition of the death penalty in an arbitrary or capricious manner.
Accord, Ybarra, 100 Nev. at 175, 679 P.2d at 802. Moreover, Nevada, like Florida, guarantees against arbitrary
death sentences by requiring this court to review the death sentence for arbitrariness. NRS 177.055(2).

9
Instruction No. 6 states, in part:
The jury may impose a sentence of death only if it finds at least one aggravating circumstance has been
established beyond a reasonable doubt and further finds that there are no mitigating circumstances
sufficient to outweigh the aggravating circumstance or circumstances found.
(Emphasis added.) See NRS 200.030(4)(a).
circumstances in order to be sentenced to less than death. Thus, Adamson is distinguishable.
[Headnote 14]
Our review of the record reveals that the sentence of death was not imposed under the
influence of passion, prejudice, or any arbitrary factor. NRS 177.055(2)(c). Moreover, we
conclude that appellant's sentence is not excessive, considering both the crime and the
defendant. NRS 177.055(2)(d). Accordingly, we affirm the judgment and sentence of the
district court.
____________
106 Nev. 145, 145 (1990) Sheriff, Nye County v. Davis
SHERIFF, NYE COUNTY, NEVADA, Appellant, v. HAROLD A. DAVIS, Respondent.
No. 20062
SHERIFF, NYE COUNTY, NEVADA, Appellant, v. HAROLD A. DAVIS, Respondent.
No. 20237
February 27, 1990 787 P.2d 1241
Consolidated appeal from (1) an order of the district court granting respondent's petition
for a writ of habeas corpus and dismissing an amended criminal complaint; and (2) a
subsequent order of the district court granting respondent's separate pretrial petition for a writ
of habeas corpus and dismissing a grand jury indictment. Fifth Judicial District Court, Nye
County; Thomas L. Stringfield, Judge.
Sheriff filed writ of habeas corpus claiming he was entitled to be released from custody
due to prosecutorial abuse in prosecution charging him with allegedly obtaining money by
false pretenses. The district court granted writ, and Attorney General appealed. The Supreme
Court held that: (1) prosecutorial abuse was committed to obtain continuance of preliminary
examination; (2) justice of the peace did not have jurisdiction to hear district attorney's
motion for continuance; and (3) trial court's granting of writ of habeas and dismissal of grand
jury indictment was proper.
Affirmed.
Phillip H. Dunleavy, District Attorney, Nye County, for Appellant (No. 20062).
Brian McKay, Attorney General, Brian R. Hutchins, Deputy Attorney General, Carson
City, for Appellant (No. 20237).
Peter L. Flangas, Las Vegas, for Respondent.
1. Criminal Law.
District attorney committed prosecutorial abuse in prosecution of Sheriff for allegedly obtaining money by false pretenses when
district attorney filed charges he knew or should have known were time barred and moved for continuance of preliminary examination
and called justice of the peace, ex parte, to obtain continuance without the presence, participation, and perhaps knowledge of attorney
for Sheriff. DCR 14.
2. Criminal Law.
Absent required notice, justice of the peace did not have jurisdiction to hold ex parte hearing for continuance of preliminary
examination in prosecution of Sheriff for allegedly obtaining money by false pretenses. NRS 178.476, subd. 1, 178.478, subd. 1;
Const. art. 1, 8; SCR 174; DCR 14; U.S.C.A.Const. Amends. 5, 14.
3. Criminal Law.
Where original proceeding against Sheriff for obtaining money by false pretenses was dismissed due to willful failure of prosecutor
to comply with important procedural rules in obtaining continuance of preliminary examination, state could not file second indictment
alleging the same offenses charged in original proceeding.
4. Criminal Law.
Indictment against Sheriff for allegedly obtaining money by false pretenses was properly held to be disallowed by first writ of
habeas corpus issued in favor of Sheriff even though indictment was issued before first writ was made permanent, where original
proceedings were dismissed because of prosecutorial abuse.
OPINION
Per Curiam:
As part of an ongoing dispute between respondent Nye County Sheriff Harold A. Stick
Davis (Sheriff) and appellant
1
Nye County District Attorney Phillip H. Dunleavy (District
Attorney), the Sheriff agreed to resign. The District Attorney told the Sheriff that, if he
withdrew his resignation, the District Attorney would press charges. The Sheriff withdrew his
resignation on July 21, 1988. That same day, the District Attorney filed a criminal complaint
against the Sheriff. The complaint contained numerous charges which were barred by the
statute of limitations. It was amended on August 1, 1988, to exclude these time-barred
charges.
On August 4, 1988, the Sheriff's attorney, Peter L. Flangas, informed the District Attorney
that he intended to subpoena the District Attorney and his deputy.
__________

1
The record in this case identifies the Sheriff of Nye County as the appellant and Harold Davis as the
respondent, but Harold Davis is the Sheriff of Nye County. To avoid confusion, in this opinion appellant refers
to the District Attorney or the attorney general. They are appealing the writs that were requested by and granted
in favor of Sheriff Davis.
District Attorney and his deputy. Flangas moved to disqualify the District Attorney's office
from prosecuting the case because of Flangas' intent to call the prosecuting officers as
witnesses. On October 10, 1988, his motion was denied. A preliminary examination was set
for October 25, 1988. On October 18, 1988, Flangas did subpoena the District Attorney and
his deputy. At that time, the District Attorney had known for over two months of Flangas'
stated intention to issue the subpoenas.
On October 20, 1988, the District Attorney asked the attorney general's office to take over
the case because of the potential ethical conflict, but the attorney general refused to take the
case until authorized to do so by the Nye County Board of Commissioners. Because such
authorization could not be obtained before the preliminary examination, and because the
District Attorney's office wished to review new evidence and file a second amended
complaint, on October 20, 1988, the District Attorney asked Flangas to stipulate to a
continuance of the preliminary examination. Flangas refused and told the District Attorney
that anything he wished to raise he would have to raise at the preliminary examination as
scheduled.
The District Attorney then filed a motion for a continuance on October 21, 1988, and
telephoned the justice of the peace, ex parte, to set up a telephone hearing to be conducted on
October 24, 1988. The necessity for filing or granting a motion to shorten time was never
discussed between the District Attorney and the justice of the peace. Nor did they discuss the
need to show cause for making such a request without proper notice. On October 24, 1988,
the District Attorney held a one-sided telephone hearing with the justice of the peace
wherein he asked for a continuance and for leave to file a second amended complaint. The
telephone hearing was held, without the presence or apparent knowledge of Flangas, the day
before the preliminary examination. The justice of the peace granted the continuance because
of the time needed to have the attorney general step in, because the District Attorney desired
to amend the complaint, and because it would be inconvenient to travel all the way to the site
of the preliminary examination just to grant a continuance. The District Attorney filed a
second amended complaint immediately after the telephone hearing.
The next day, October 25, 1988, the Sheriff, Flangas, and their witnesses showed up for
the preliminary examination as scheduled, only to find out that a continuance had been
granted.
The Sheriff then filed a petition for a writ of habeas corpus. He alleged that by failing to
proceed with the preliminary examination as scheduled, the justice court lost jurisdiction over
the case and that he was therefore entitled to be released from custody2 and to have the
charges dismissed because the second amended complaint was void.
and that he was therefore entitled to be released from custody
2
and to have the charges
dismissed because the second amended complaint was void. A hearing on the writ of habeas
corpus was held January 27, 1989. On February 15, 1989, the district judge ordered that the
writ be made permanent. The District Attorney appealed that order to this court.
On February 9, 1989, after the hearing on the writ of habeas corpus but before the district
judge issued the order making the writ permanent, the attorney general's office
3
filed a grand
jury indictment which accused the Sheriff of two counts of obtaining money by false
pretenses based on two travel expense claim numbers. These same claim numbers were the
basis for two counts of obtaining money by false pretenses in the original proceedings. The
Sheriff then filed a pretrial petition for a writ of habeas corpus. He alleged that he was
illegally restrained of his liberty because the counts in the grand jury indictment were
identical to charges brought in the original proceedings and were barred because of the
prosecutorial abuse involved in the original proceedings. On May 23, 1989, the district judge
ordered that the second writ be made permanent. The attorney general appealed that order to
this court.
In his order making the first writ permanent, the district judge concluded that (1) the
District Attorney acted in such a willful or consciously indifferent manner with regard to
procedural rules affecting the Sheriff's rights that his conduct constituted prosecutorial abuse,
and (2) the justice of the peace did not have jurisdiction to hear and decide the District
Attorney's motion for a continuance.
[Headnote 1]
We conclude that the district court correctly decided that the District Attorney committed
prosecutorial abuse by acting in a willful or consciously indifferent manner with regard to
the Sheriff's procedural rights. In Hill v. Sheriff, 85 Nev. 234, 235, 452 P.2d 918, 919 (1969),
this court required that good cause be shown for securing the continuance of a preliminary
examination. See also DCR 14. No good cause will be found where
there was a willful failure of the prosecution to comply with important procedural rules, Maes v. Sheriff,
86 Nev. 317, 46S P.2d 332 {1970), and where the prosecutor has exhibited a
conscious indifference to rules of procedure affecting the defendant's rights, State
v. Austin, S7 Nev. S1
__________

2
The Sheriff was in custody even though he had been released on his own recognizance. Constructive
custody is sufficient to establish the restraint required by NRS 34.360; he is therefore entitled to pursue the
remedy of habeas corpus. Franklin v. State, 89 Nev. 382, 383, 513 P.2d 1252, 1254 (1973).

3
On November 9, 1988, the Nye County Board of Commissioners passed a resolution authorizing the attorney
general's office to take the case.
468 P.2d 332 (1970), and where the prosecutor has exhibited a conscious indifference
to rules of procedure affecting the defendant's rights, State v. Austin, 87 Nev. 81, 482
P.2d 284 (1971).
Bustos v. Sheriff, 87 Nev. 622, 623, 491 P.2d 1279, 1280 (1971).
In this case, the District Attorney filed charges which he knew or should have known were
time barred. In addition, he admitted that his office had reviewed only about half of the new
evidence. This indicates that he was unprepared for the preliminary examination. Also, the
District Attorney created his own dilemma by not removing himself from the case sooner. He
had known of Flangas' intention to subpoena him for over two months, yet took no action
because he thought Flangas was bluffing. Taken together, these facts exhibit a conscious
indifference to the Sheriff's procedural rights.
More importantly, the District Attorney's misconduct in seeking and holding an ex parte
telephone hearing with the justice of the peace reveals a willful failure of the prosecution to
comply with important procedural rules. Even though he knew that Flangas was adamantly
opposed to a continuance, the District Attorney filed a motion for a continuance without an
accompanying motion to shorten time and called the justice of the peace, ex parte, to set up
this telephone hearing. Although the District Attorney claims to have made attempts to
contact Flangas that day, there is nothing to suggest that Flangas had actual notice of the
hearing. Nevertheless, the hearing on a continuance was held, without the presence,
participation, and perhaps knowledge of Flangas. Such conduct further demonstrates that no
good cause for obtaining a continuance could have been demonstrated in this case; the district
court correctly so held.
[Headnote 2]
We further conclude that the district court correctly decided that the justice of the peace
did not have jurisdiction to hear the District Attorney's motion for a continuance. Supreme
Court Rule 174 prohibits ex parte communications between a lawyer and a judge.
Furthermore, motions must be in writing with five days' notice unless cause [is] shown.
NRS 178.478(1), 178.476(1); see also DCR 14. In this case, the District Attorney and the
justice of the peace engaged in more than one ex parte communication, during which the
necessity for cause was never even discussed. Flangas was not notified or consulted; even if
he had been, there would have been only one day's notice, not five. Fundamental due process
requires, at a minimum, adequate notice to the accused and an opportunity to prepare for a
hearing. See Nev. Const. art. 1, 8; Farnow v. District Court, 64 Nev.
109, 126, 178 P.2d 371, 379 (1947). Having deprived the Sheriff of due process by denying
him adequate notice, the justice of the peace had no jurisdiction to hold an ex parte hearing of
this kind; the district court correctly so held.
[Headnote 3]
In his order making the second writ permanent, the district judge concluded that (1) the
offenses charged in the indictment were the same offenses charged in the original
proceedings, and (2) the indictment was disallowed by the first writ even though the
indictment was issued before the first writ was made permanent.
We conclude that the district court correctly decided that the offenses charged in the
indictment were the same offenses charged in the original proceedings. In Maes v. Sheriff, 86
Nev. 317, 319, 468 P.2d 332, 333 (1970), this court stated: A new proceeding for the same
offense (whether by complaint, indictment or information) is not allowable when the original
proceeding has been dismissed due to the willful failure of the prosecutor to comply with
important procedural rules. As discussed above, the prosecutor willfully failed to comply
with important procedural rules. We therefore turn to whether the new proceedings were for
the same offense.
Count I of the indictment charged the Sheriff with obtaining money by false pretenses on
March 31, 1986, by filing travel expense claim number 23294; Count IX of the original
proceedings charged the Sheriff with obtaining money by false pretenses on March 31, 1986,
by filing claim number 23294. Similarly, Count II of the indictment charged the Sheriff with
obtaining money be false pretenses on June 2, 1986, by filing travel expense claim number
25023; Count XI of the original proceeding charged the Sheriff with obtaining money by false
pretenses on June 2, 1986, by filing travel expense claim number 25022.
4
At oral argument,
counsel for the attorney general's office explained that the theory of proof anticipated by the
original proceedings differed from the theory of proof anticipated by the indictment. Counsel
stated that the original proceedings were premised on travel actually made but not subject to
reimbursement; by contrast, the indictment was premised on reimbursement for travel which
never took place. This distinction, however, is not apparent on the face of the pleadings; nor
does it render the charges different. They are premised on the same statutory violation arising
from the same claims made on the same days. They are therefore the same offense. Because
the original proceedings were dismissed due to prosecutorial misconduct, these same
offenses cannot be raised again; the district court correctly so held.
__________

4
This was apparently a typographical error. The record contains no claim number 25022, but does contain
claim number 25023 dated June 2, 1986.
dismissed due to prosecutorial misconduct, these same offenses cannot be raised again; the
district court correctly so held.
[Headnote 4]
We also conclude that the district court correctly decided that the indictment was
disallowed by the first writ even though the indictment was issued before the first writ was
made permanent. Although the original proceedings had not yet been dismissed at the time
of the indictment (see Maes, supra), the state was on notice of the likelihood that the writ of
habeas corpus was going to be formally issued and the original proceedings dismissed
because of prosecutorial abuse by the District Attorney. To allow the state to circumvent the
rule by initiating a new proceeding for the same offense under such circumstances would be
contrary to principles of judicial economy, fair play and reason, McNair v. Sheriff, 89 Nev.
434, 438, 514 P.2d 1175, 1177 (1973); the district court correctly so held.
For the reasons stated above, we find that the district judge properly granted both writs.
Accordingly, we affirm the district court's decisions.
Young, C. J., Steffen, Springer and Rose, JJ., and Adams, D. J.,
5
concur.
____________
106 Nev. 151, 151 (1990) Palmer v. State Gaming Control Board
JANA PALMER, Appellant, v. THE STATE OF NEVADA, and THE STATE OF NEVADA
GAMING CONTROL BOARD, Respondents.
No. 19728
March 1, 1990 787 P.2d 803
Appeal from a dismissal of count one of appellant's complaint for failure to exhaust
administrative remedies. Second Judicial District Court, Washoe County; Deborah A. Agosti,
Judge.
Discharged state employee brought action alleging that she was discriminated against
regarding the terms, conditions, compensation and termination of her employment. The
district court dismissed action for failure to exhaust administrative remedies. Discharged
employee appealed. The Supreme Court held that discharged employee was not required to
exhaust administrative remedies.
__________

5
The Honorable Brent T. Adams, Judge of the Second Judicial District, was designated by the Governor to
sit in the place of The Honorable John Mowbray, Justice, Nev. Const. art. 6, 4.
Jack E. Kennedy & Associates and Marta L. Presti, Reno, for Appellant.
Brian McKay, Attorney General, Carson City, and Scott Scherer, Deputy Attorney
General, Las Vegas, for Respondents.
1. Administrative Law and Procedure; Civil Rights.
Discharged state employee was not required to exhaust administrative remedies before bringing court action alleging that she had
been discriminated against regarding the terms, conditions, compensation and termination of her employment; because of Nevada
Equal Rights Commission's twenty-one month delay in addressing claim, discharged employee felt compelled to file action in court to
preserve tort claim against potential defense based upon expiration of statute of limitations. NRS 613.420.
2. Administrative Law and Procedure; Civil Rights.
Because basic policy of statute favoring exhaustion of administrative remedies before Nevada Equal Rights Commission before
bringing employment discrimination action must be respected, it is always burden of complainant, who does not wish to exhaust
administrative remedies, to convincingly prove that claim is realistically endangered by any prolonged inaction by Commission. NRS
613.420.
3. Action.
No private right of action existed under statute providing that all personnel actions taken by state, county or municipal
departments, agencies, boards or appointing officers must be based solely on merit and fitness. NRS 281.370.
OPINION
Per Curiam:
Jana Palmer (Palmer) was hired by the Nevada Gaming Board (Board) as an agent in its
enforcement division on May 13, 1985. She was subsequently discharged by the Board on
September 27, 1985, for allegedly mishandling an investigation.
Palmer filed a complaint with the Nevada Equal Rights Commission (NERC) against the
Board on December 9, 1985, alleging she had been discriminated against regarding the terms,
conditions, compensation and the termination of her employment. Twenty-one months later,
on September 14, 1987, Palmer filed a complaint in district court without any action having
been taken by the NERC in the interim. On October 13, 1987, just one month after filing her
complaint, the NERC administratively closed Palmer's file at her request.
[Headnote 1]
The Board thereafter successfully moved to have the district court dismiss Palmer's first
cause of action because she had failed to exhaust her administrative remedies. The district
court entered the judgment of dismissal on December 6, 19SS, and this appeal followed.
the judgment of dismissal on December 6, 1988, and this appeal followed.
At the outset, we acknowledge that the legislature intended that claims involving
employment discrimination were to be administratively exhausted prior to seeking redress in
the district courts. See NRS 613.420. Additionally, under our holding of Copeland v. Desert
Inn Hotel, 99 Nev. 823, 673 P.2d 490 (1983), an employee claiming discrimination under
NRS 613.420 is obligated to file a claim with the NERC and to have that agency adjudicate
the claim before it can properly be brought in district court. The requirement under Copeland,
supra, is consistent with the legislative history indicating that exhaustion of administrative
remedies is necessary to prevent the courts from being inundated with frivolous claims.
1

Despite the rule that exhaustion of remedies is required by NRS 613.420 prior to filing an
employment discrimination action in court, we are constrained to excuse the exhaustion
requirement in the instant case. Because of the NERC's twenty-one month delay in addressing
her claim, Palmer felt compelled to file her action in court to preserve her tort claim against a
potential defense based upon the expiration of the two-year statute of limitations. Palmer had
attempted to fully comply with the exhaustion requirements. She had filed her claim with the
NERC and was patiently awaiting a resolution of her case from that agency before proceeding
to court. When faced with the possibility of losing her tort claim because of the statute of
limitations, Palmer acted reasonably in filing her claim in court. The Board cannot now be
heard to complain that Palmer failed to exhaust the necessary administrative procedures when
it was the NERC who delayed the process through protracted inaction.
[Headnote 2]
NRS 613.420 specifies no time limit within which the NERC must process a complaint.
However, a fair and reasonable interpretation of the statute must allow an eventual recourse
to the courts, when, as a result of prolonged inaction by the NERC, a complainant may face a
statute of limitations deadline or an irretrievable loss of evidence. Nevertheless, because the
basic policy of the statute favoring exhaustion of administrative remedies must be respected,
it will always be the complainant's burden to convincingly prove that his or her claim is
realistically endangered by any prolonged inaction by the NERC.
__________

1
Minutes of the committee meetings on A.B. 96 which contained the 1983 amendment to NRS 613.420 state
that [b]efore a complaint could be taken to court, all administrative remedies would have to be exhausted, to
eliminate frivolous court cases. Minutes of Hearing on A.B. 96 Before the Senate Comm. on Commerce &
Labor, Nev. Legis., 62nd Sess. 3 (Apr. 22, 1983).
endangered by any prolonged inaction by the NERC. Absent such evidence, the exhaustion
doctrine will apply.
[Headnote 3]
Palmer's second contention, that her complaint could have been brought directly under
NRS 281.370, lacks merit. NRS 281.370
2
does not provide for any private right of action.
Therefore, there is no basis for allowing Palmer to proceed with her cause of action under that
statute.
In conclusion, the facts underlying Palmer's complaint are over four years old. The purpose
of the administrative process is to provide complainants with a system of expertise and
efficiency in dealing with their claims. That did not occur in this case. Consequently, under
the facts of this case, we hold that Palmer's cause of action should not have been dismissed by
the trial court. This ruling is in harmony with our stated policy in Copeland v. Desert Inn
Hotel, 99 Nev. 823, 826, 673 P.2d 490, 492 (1983), wherein we stated both that the Nevada
anti-discrimination statutes have laudable goals and will be broadly construed. . . . [and]
procedural technicalities that would bar claims of discrimination will be looked upon with
disfavor.
3

For the reasons specified above, we reverse and remand, granting Palmer the right to
pursue her cause of action in the district court on the merits.
4

Young, C. J., Steffen, Springer and Mowbray, JJ., and Zenoff, Sr. J., concur.
__________

2
Specifically, NRS 281.370 provides:
Actions concerning personnel to be based on merit and fitness; discrimination prohibited.
1. All personnel actions taken by state, county or municipal departments, agencies, boards or
appointing officers thereof must be based solely on merit and fitness.
2. State, county or municipal departments, agencies, boards or appointing officers thereof shall not
refuse to hire a person, discharge or bar any person from employment or discriminate against any person
in compensation or in other terms or conditions of employment because of his race, creed, color, national
origin, sex, age, political affiliation or physical, aural or visual handicap, except when based upon a bona
fide occupational qualification.

3
We, of course, express no opinion or intend no inference concerning the validity of Palmer's claims.

4
The Honorable Cliff Young, Chief Justice, appointed The Honorable David Zenoff, Senior Justice, to sit in
place of The Honorable Robert E. Rose, Justice.
____________
106 Nev. 155, 155 (1990) State v. Babayan
THE STATE OF NEVADA, Appellant, v. RUBEN BABAYAN, Respondent.
No. 18713
GREG SARKISSIAN, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, and the HONORABLE ROBERT L. SCHOUWEILER,
DISTRICT JUDGE, Respondents, and THE STATE OF NEVADA, Real Party in
Interest.
No. 18732
March 1, 1990 787 P.2d 805
Appeal from a district court order that dismissed with prejudice all indictments against
respondent Ruben Babayan (No. 18713); petition for writ of mandamus (No. 18732). Second
Judicial District Court, Washoe County; Robert L. Schouweiler, Judge.
Defendants moved to dismiss indictments charging them with multiple acts of child abuse
causing substantial mental harm, sexual assault, and lewdness with child under age of
fourteen. The district court granted motion with prejudice as to one defendant, and denied
motion as to co-defendant. State appealed from grant of motion, and co-defendant petitioned
for writ of mandamus. The Supreme Court held that: (1) trial court did not abuse its
discretion in dismissing indictments against defendant, as prosecution failed to present clearly
exculpatory evidence to grand jury, and therapists who gave expert testimony before grand
jury did so with substantial conflicts of interest that were not brought to grand jurors'
attention; (2) trial court improperly dismissed indictments with prejudice; (3) trial court
abused its discretion in denying co-defendant's motion to dismiss indictments; and (4)
extraordinary writ of mandamus was appropriate to direct trial court to dismiss indictments as
to co-defendant.
Appeal No. 18713 affirmed in part, reversed in part and remanded with instructions;
Petition No. 18732 writ granted.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and John W.
Helzer, Deputy District Attorney, Washoe County, for Appellant and Respondent Second
Judicial District Court.
Dean R. Heidrich, Reno; Pinkerton & Polaha, Reno; Mark Mausert, Reno, for
Respondent Babayan and Petitioner.
1. Judges.
Trial court judge's finding that conflicts of interest existed between district attorney's office and private civil bar was abuse of
discretion, where another judge in same case had previously determined that no such conflicts of interest existed, and subsequent judge
had not made request to earlier judge to reconsider decision. DCR 18, subd. 1.
2. Indictment and Information.
Testimony before grand jury by attorney, who had direct pecuniary interest in criminal proceedings, as to relevant law regarding
child abuse claims against defendants, did not constitute such a conflict of interest between prosecution and attorney as to require
dismissal of any indictments returned on day that he appeared, although it was responsibility of district attorney, as opposed to witness,
to inform grand jurors of relevant law. ABA Code of Prof. Resp., EC 5-10 (1980).
3. Judges.
A trial judge's previous finding that district attorney had acted independently of outside influences did not preclude subsequent
judge from addressing whether conflict of interest existed between district attorney's office and therapist who had evaluated and treated
alleged child abuse victims and who testified before grand jury. DCR 18, subd. 1.
4. Grand Jury.
Prosecution's presentation of therapists as witnesses before grand jury in prosecution for child abuse, sexual assault, and lewdness,
was improper, where therapists had conflicts of interest because they also believed that their children had been molested by defendants,
and grand jury had not been informed of such conflicts.
5. Grand Jury.
Prosecution has duty to present exculpatory evidence to grand jury conducting criminal case.
6. Grand Jury.
Defendants' periods of employment at preschool were relevant and should have been clearly established before grand jury
investigating charges of child abuse at preschool, where some of childrens' accusations were that both defendants committed crimes
against victims at same time, but defendants worked at preschool at different times.
Evidence on motion to dismiss indictments did not support finding that district attorney or his staff intentionally misled grand jury
investigating abuse of preschool students, even though grand jury testimony presented by prosecution established that one defendant
attended initial questioning of children at his preschool, but prosecution did not present additional information that defendant attended
only some interviews and had encouraged parents to attend their child's questioning, and even though testimony presented may have
created impression that defendant was attempting to intimidate children and prevent them from disclosing information.
8. Grand Jury.
If grand jury is to fulfill its purpose of acting as bulwark between those sought to be charged with crimes and their accusors, it
must be permitted to investigate and act as informed body throughout entire course of proceedings.
9. Grand Jury.
Grand jurors must, when appropriate, be steered away from certain areas of inquiry, if integrity of indictment is to be preserved.
NRS 172.135.
10. Grand Jury.
Prosecutors who make presentations before grand juries must be adequately informed of facts and have conducted sufficient legal
research to enable them to properly inform grand jury on law and to assist it in its investigation.
11. Grand Jury.
Prosecutors improperly prevented grand jury investigating child abuse of preschool students from hearing answers to their
questions as to whether classmates were together when assaulted, whether touching of child occurred in private area of school, and
whether teacher was aware of alleged assault on one child which occurred at school.
Prosecutor's restriction on grand jurors asking several questions in initial grand jury proceedings, although improper, did not
thwart grand jury's independence and was not so prejudicial as to warrant dismissal of indictments for child abuse offenses returned
during grand jury proceedings; restriction was action of just one deputy district attorney, and subsequent presentations by other
prosecutors were made without impairing grand jury's independence and while adhering to statutory restraints governing what evidence
grand jury should receive.
13. Grand Jury.
Prosecution should have notified grand jury of physicians' reports which found no indicia of sexual penetration when prosecution
presented evidence to grand jury that numerous children had been sexually assaulted by accuseds.
14. Grand Jury.
Evidence that teachers or staff of preschool did not indicate that they observed any activity or heard any statements that would
suggest that child abuse was or had been occurring was of exculpatory nature and should have been presented to grand jury
investigating alleged child assault of children at preschool.
15. Grand Jury.
Prosecution should have presented to grand jury investigating charges of child abuse at preschool evidence which would have had
tendency to explain away charges, such as schools' open floor plans, irregular flow of persons, including parents, in and out of schools,
and presence of tutorial service that rented space at school, considering allegations of continuous and ongoing sexual abuse, some of
which was alleged to have occurred in open areas.
Dismissal of indictment with prejudice is most appropriate upon finding of aggravated circumstances and only after balancing of
its deterrent objectives with interest of society in prosecuting those who violate its laws.
Denial of due process before grand jury, in and of itself, does not mandate dismissal of indictment with prejudice.
Indictment charging defendant with multiple counts of child abuse, sexual assault, and lewdness with child under age of fourteen,
should have been dismissed without prejudice, even though portions of prosecution's presentations before grand jury were deficient and
denied defendant due process of law, where there was absence of irremedial evidentiary taint or prejudice to defendant's case on the
merits. U.S.C.A.Const. Amends. 5, 14.
19. Criminal Law.
Supreme Court would decline to review previous orders of district court on admissibility of parents' testimony before grand jury
regarding statements by alleged victims of child abuse, where defendant requesting review did not file cross-appeal from State's appeal
from dismissal of indictments. NRS 177.045.
Trial court should have dismissed indictments charging defendant with sexual assault and lewdness with child under age of
fourteen, where trial court had dismissed co-defendant's indictments on basis of conflicts of interest by district attorney's office and
failure of district attorney to present exculpatory evidence to grand jury, and same conduct touched each defendant equally.
21. Mandamus.
Petitions for extraordinary relief are addressed to sound discretion of Supreme Court.
22. Mandamus.
Extraordinary writ of mandamus was appropriate to direct trial court to dismiss without prejudice indictments charging defendant
with sexual assault and lewdness with child under age of fourteen, where there were substantial grounds to support trial court's decision
to dismiss co-defendant's indictments, there was no principled reason to distinguish between defendants, and thus to permit defendant's
case to be treated differently than co-defendant's case could result in gross miscarriage of justice.
OPINION
Per Curiam:
This opinion considers two consolidated matters which arose from a series of five grand
jury indictments. The indictments, returned between May 9th and December 13th, 1984,
charged respondent Ruben Babayan (Babayan) and his co-defendants, petitioner Greg
Sarkissian (Sarkissian) and Manouchehr Rashidi (Rashidi), with multiple counts of child
abuse causing substantial mental harm, sexual assault, and lewdness with a child under the
age of fourteen. See NRS 200.508; NRS 200.366; NRS 201.230. Prior to trial, Babayan and
Sarkissian moved to dismiss the indictments. They contended, inter alia, that the indictments
were invalid because (1) the district attorney had failed to present exculpatory evidence to the
grand jury; and (2) those involved in the investigation and presentation of evidence to the
grand jury had such conflicts of interest that concepts of due process and fundamental
fairness were violated. The district court granted the motion with respect to respondent
Babayan and dismissed with prejudice all indictments against him; however, the district court
perceived a difference in the level of misconduct involving petitioner Sarkissian and denied
his motion.
The State now appeals from that portion of the district court's order that dismissed all
indictments against respondent Babayan with prejudice.
with prejudice. Petitioner Sarkissian seeks mandamus directing respondents, the Second
Judicial District Court of the State of Nevada and the Honorable Robert L. Schouweiler,
District Judge, to dismiss the indictments against him. For the reasons set forth below, we (1)
affirm that portion of the district court's order dismissing the indictments against Babayan, (2)
reverse the district court's decision to dismiss the indictments with prejudice, and (3) grant
the relief petitioner Sarkissian seeks.
FACTS
The allegations that formed the basis of the grand jury indictments against Babayan and
Sarkissian began to surface in early March, 1984, following the psychological evaluation of a
child who attended the Montessori preschool on Hash Lane in Reno.
1
Following a brief
interview of the child at the Children's Behavioral Clinic in Reno, the evaluator, a contract
psychologist at the clinic and a clinical psychology student at the University of Nevada, Reno,
concluded that the child had been sexually abused.
Washoe County Sheriff's Detectives soon began to investigate the alleged child abuse by
interviewing children who attended Babayan's preschools, the children's parents, and
preschool teachers and staff. As word of the alleged abuse and the investigation spread, more
parents began to have their children who attended the preschools evaluated. Most of the
evaluations were conducted by employees of the Children's Behavioral Clinic or by clinicians
with whom the Children's Behavioral Clinic employees were associated in private practice. In
time, more alleged victims began to surface. The allegations of child abuse, originally made
against only Sarkissiana shuttle bus driver and handy man at the Hash Lane
preschoolsoon included respondent Babayan and petitioner Sarkissian's successor in
employment, Manouchehr Rashidi. Ultimately, a task force was formed to carry on the
burgeoning investigation and to collate the information being gathered.
By at least mid-April, 1984, private civil attorneys contemplating civil suits against the
preschools began contacting the District Attorney's Office. John Maher, the Assistant District
Attorney that Washoe County District Attorney Mills Lane originally assigned to the case,
later described the interaction between the District Attorney's Office and civil attorneys, and,
in particular, attorney Peter Chase Neumann, as a bi-directional flow of statements made by
the civil attorneys' clients. At least one civil attorney contacted the District Attorney's
Office and expressed concern regarding the speed at which the investigation of the case
was progressing.
__________

1
The Montessori preschool on Hash Lane was one of two preschools owned and operated by respondent
Babayan in Reno.
attorney contacted the District Attorney's Office and expressed concern regarding the speed at
which the investigation of the case was progressing.
In early May, 1984, the District Attorney's Office also became aware of other complaints
about the slowness of the investigation. District Attorney Mills Lane in a subsequent hearing
attributed these complaints to parents and other people that were involved with the school. A
meeting was held on May 3, 1984, at the Washoe County District Attorney's Office in order
to address the concerns. In attendance at the meeting were therapists who had evaluated some
of the alleged victims, parentsat least one of whom, Dr. William Terry, was also a therapist
actively engaged in evaluating alleged victims and providing information for the
investigationand supporters of respondent Babayan. Also in attendance were Mills Lane,
John Maher, John Oakeswho later, for a time, would prosecute the casethe sheriff's
deputies. On that night, while the investigation of the alleged abuse and the psychological
evaluations of children were still ongoing, the decision to go forward with the prosecution
was made.
The District Attorney's Office filed a complaint on May 4, 1984, and made its first
presentation to the grand jury on May 9, 1984. It made subsequent presentations to the grand
jury on June 6, September 13, October 25, and December 12, 1984. Those testifying at the
grand jury presentations included: Washoe County Sheriff's Detective Brent Royle, civil
attorney Peter Chase Neumann,
2
some alleged victims, the alleged victims' parents, and
various therapists who had evaluated and/or were treating the children. In all, the grand jury
returned five indictments against Babayan, Sarkissian, and Rashidi that alleged sixty-nine
counts of child sexual abuse involving twenty-six alleged victims.
In mid-1985, the various counsel for the defendants joined in a motion to have the alleged
victims examined by independent experts. The Honorable Robert Schouweiler held a hearing
on the motion on July 9, 1985. There, Rashidi's counsel stressed the need for evaluation of the
children by outside experts, rather than, as he phrased it, marriage and family counselors and
therapists whose children had attended the Montessori School. The purpose of the
psychiatric evaluation that the defendants proposed was not to determine the specifics of the
State's allegations, but to evaluate the alleged victims' credibility and competency. As a
factual basis for the motion, counsel pointed to statements by children that were either
inconsistent with established facts, i.e., one child alleged total penile penetration of her
vagina when a medical examination revealed that her hymenal ring was intact, or that
were simply incredible, i.e.,
__________

2
As will be discussed more fully below, Neumann testified at the first grand jury proceedings regarding the
admissibility of certain hearsay statements.
lished facts, i.e., one child alleged total penile penetration of her vagina when a medical
examination revealed that her hymenal ring was intact, or that were simply incredible, i.e.,
another child alleged that large bullets had been fired into his rectum and that he had been
forced to kill hundreds of people.
Defendants' counsel offered as an expert witness Dr. Robert ten Bensel, a nationally
recognized pediatrician and expert in child abuse. Dr. ten Bensel testified about the necessity
of having evaluators skilled in developmental psychology, the effect of leading and coercive
questions on children, the anatomy of small children, and the physical trauma that would be
evident if full vaginal or anal penetration had occurred as alleged. Defendants' counsel also
offered the testimony of Dr. Ernest A. Dernburg, a child psychiatrist, who was highly critical
of the techniques that the clinicians employed in their evaluations of the children.
Even before Judge Schouweiler granted the defendants' motion for psychiatric evaluation
of the children on July 22, 1985, the defendants, on July 12, 1985, moved to disqualify the
District Attorney's Office from prosecuting the charges against them. Among other things, the
defendants alleged that the District Attorney's Office was under the influence and control of
private civil attorneys and, therefore, was unable to prosecute the action fairly. In addition,
the defendants alleged that the District Attorney's Office had failed to present exculpatory
evidence in its presentations to the grand jury. Presumably because the defendants also
alleged in their motion that District Attorney Mills Lane had surreptitiously entered Judge
Schouweiler's chambers without permission, the Honorable Jerry Carr Whitehead heard the
defendants' motion. After a two-day hearing, Judge Whitehead denied the defendants' motion
in its entirety. To set the holding on whether the District Attorney's Office was under the
control of civil attorneys, Judge Whitehead stated:
So as to make the holding of this day clear, the Court finds not only that the defendants
failed to meet their burden of proof, but that in addition, the facts brought forth at the
hearing established that the District Attorney's Office in exercising its prosecutorial
function, did so independent of outside influence.
Judge Whitehead declined to make a determination regarding the defendants' allegation that
the District Attorney's Office failed to present exculpatory evidence to the grand jury because
he believed that a complete examination of all the evidence would be necessary. Judge
Whitehead, however, stated in his written order,
The court, however, can and does determine that based upon the testimony presented,
that the four pieces of evidence introduced by the defendants, standing alone, do no
require a finding by this Court that acts of sexual assault charged in the four counts
could not have occurred.
introduced by the defendants, standing alone, do not require a finding by this Court that
acts of sexual assault charged in the four counts could not have occurred. This is true as
only the slightest penetration is necessary to complete the offense charged and it may
not leave permanent physical evidence. In addition, there are other sexual offenses
which would not leave permanent physical evidence.
After Judge Schouweiler entered his order granting the defendants' motion for a
psychiatric examination of the children, the State, in effect, appealed to this court by way of a
petition for a writ of mandamus. Following an informal hearing, the parties agreed to an
evaluation of the children by independent experts. In an order dated September 12, 1985,
Judge Schouweiler set out the procedure the evaluation was to follow and appointed a master
to coordinate the evaluation process.
In May, 1987, Judge Schouweiler announced in an order that the psychiatric evaluations of
the children were substantially complete. The order informed the District Attorney's Office
that it had twenty days in which to review the evaluations and to announce whether it
intended to proceed with the prosecution of the case. The reports of the independent experts,
which contained a data base consisting of a summary of the materials the experts reviewed
and their comments thereon, and a summary of the experts' opinion on the issue of witness
contamination, were generally critical of the leading questions and coercive techniques
employed by the various therapists and clinicians.
3
The experts' conclusions regarding the
degree of contamination, however, varied from child to child.
On July 16, 1987, the State moved to dismiss all charges against Manouchehr Rashidi. The
district court ultimately granted this motion. In the same motion, the State gave notice of the
charges on which it intended to proceed. The charges against respondent Babayan and
petitioner Sarkissian involved a total of ten alleged victims; the charges against respondent
Babayan were: five counts of child abuse causing substantial mental harm, three counts of
lewdness with a child under fourteen, and two counts of sexual assault; the charges against
petitioner Sarkissian were: six counts of lewdness with a child under fourteen, and four
counts of sexual assault.
__________

3
Among the various types of contamination errors found by the independent experts were: (1) the
interviewers either consciously or unconsciously followed a preconceived agenda, i.e., assumed facts, coerced
the child, ignored the child's information, led the child, etc., (2) concertizing, i.e., where as a result of having to
repeat the allegations or being exposed to repetitive leading discussions the child's memories of the event come
from sources other than the event itself, (3) cross-contamination, i.e., using information gained from a source
other than the child to question the child, and (4) systems contamination, i.e., contamination from influences
outside the mental health sessionsinteractions with police, parents, or the media.
counts of sexual assault; the charges against petitioner Sarkissian were: six counts of
lewdness with a child under fourteen, and four counts of sexual assault.
In November, 1987, the independent experts examined all but one of the ten alleged
victims to determine the children's competency to testify at trial.
4
The experts believed that
six of the children were competent to testify, two were not competent to testify and one
child's competency was questionable.
In late October, 1987, before the experts conducted their competency evaluations of the
children, respondent Babayan and petitioner Sarkissian filed what they entitled their First
Motion to Dismiss. The basis of the motion was the District Attorney's failure to present
exculpatory evidence to the grand jury. In addition, Babayan and Sarkissian alleged that those
involved in the investigation and presentation of evidence to the grand jury had such conflicts
of interest that concepts of due process and fundamental fairness were violated.
Among the evidence that Babayan and Sarkissian considered exculpatory and, according
to them, that the District Attorney failed to present to the grand jury was: (1) the denials by
the Montessori Schools' teachers and staff that any sexual abuse of children had occurred, (2)
the children's implicating numerous other people as alleged molesters (presumably, the
presentation of this information would have cast grave doubts on the children's credibility),
(3) the failure of numerous physical examinations to disclose any evidence of sexual abuse,
(4) the children's allegations that all three defendants, together, had molested them when
Rashidi and Sarkissian had not worked at the schools during the same periods, (5) the
likelihood that the children had acquired sexual knowledge from other sources, such as their
parentsone child's father managed an adult book store and maintained a pornography
collection at homeor through past episodes of abusethe defendants pointed to one child
who had previously been abused by persons unassociated with the Montessori school and
another child's mother who was known to have engaged in inappropriate behavior that
included pulling and kissing [the child's] penis when putting the child to bed. In addition,
the defendants pointed to what they termed miscellaneous Exculpatory Evidence, which
included: (1) information received from parents of children who were not alleged victims that
nothing untoward had happened at the schools, (2) the floor plans of the schools, which,
according to the defendants, would have demonstrated that the alleged activities could not
have transpired unnoticed, {3) the existence of a private tutorial service that rented space
at one of the schools and, presumably, whose employees would have noticed the alleged
abuse had it occurred, {4) the leading and coercive techniques employed by the various
therapists, of which, again according to the defendants, the District Attorney had notice
as early as May 3, 19S4, {5) the emotional involvement of two of the therapists, by reason
of their having children who attended the Montessori schools, and {6) the pecuniary
interest of the therapists and clinicians who stood to benefit not only from civil suits, but
also from continuing to treat the alleged victims.
__________

4
The family of the one child that the independent expert did not examine moved from the Reno area.
ticed, (3) the existence of a private tutorial service that rented space at one of the schools and,
presumably, whose employees would have noticed the alleged abuse had it occurred, (4) the
leading and coercive techniques employed by the various therapists, of which, again
according to the defendants, the District Attorney had notice as early as May 3, 1984, (5) the
emotional involvement of two of the therapists, by reason of their having children who
attended the Montessori schools, and (6) the pecuniary interest of the therapists and clinicians
who stood to benefit not only from civil suits, but also from continuing to treat the alleged
victims.
In enumerating what they alleged as conflicts of interest, the defendants cited, among other
things: (1) the involvement in the investigation and presentation to the grand jury of the two
local therapists who had children in the schools, (2) Assistant District Attorney John Maher's
involvement with an alleged victim's mother and his previous acceptance of a gold belt
buckle from civil attorneys to whom he allegedly referred clients in another child sexual
abuse case, and (3) the inappropriate liaison between the District Attorney's Office and civil
attorneys, exemplified by, among other things, District Attorney Mills Lane's improper
suggestion to civil attorneys that they contribute to the cost of expert witnesses to be used in
the prosecution of the charges.
In opposition to the defendants' motion, the State argued that it had not failed to present
exculpatory evidence to the grand jury and that the alleged conflicts of interest did not exist.
Moreover, the State contended that pursuant to District Court Rule 18(1) Judge Whitehead's
previous ruling on the conflicts of interest question precluded Judge Schouweiler from
redetermining that issue.
After a hearing on the defendants' motion, Judge Schouweiler issued the order that is the
subject of this appeal and petition. As set forth in the order, Judge Schouweiler found the
presence of conflicts of interest that tainted the independence of the District Attorney's Office
and compromised its presentations to the grand jury. In addition, the court found that the
District Attorney's Office had intentionally presented half truths and intentionally misled the
grand jurors, had failed to present exculpatory evidence, and had quashed the grand jurors'
independence by stifling their questions and by providing inaccurate legal advice. The court
concluded that gross violations of due process and separate violations of other constitutional
rights had resulted in the denial of the constitutional right to an indictment by an independent
grand jury with respect to respondent Babayan. The court found, however, that the
misconduct directed toward petitioner Sarkissian did not "rise to the level of a denial of his
constitutional rights or to the level where the court must exercise its supervisory
powers."
tioner Sarkissian did not rise to the level of a denial of his constitutional rights or to the level
where the court must exercise its supervisory powers. Therefore, the court granted Babayan's
motion and dismissed with prejudice all charges against him; however, the court denied the
motion with respect to petitioner Sarkissian. This appeal and petition ensued.
DISCUSSION
Conflicts of Interest
The State contends that the district court abused its discretion and violated District Court
Rule 18(1) when it found the conflicts of interest tainted the independence of the District
Attorney's Office and its presentations to the grand jury. Thus, according to the State, the
district court erred in dismissing the indictments against respondent Babayan.
[Headnote 1]
As indicated above, Judge Whitehead determined that there were no conflicts of interest
between the District Attorney's Office and the private civil bar and that the District Attorney's
Office had exercised its prosecutorial function independent of outside influence prior to
Judge Schouweiler's finding otherwise.
District Court Rule 18(1) provides:
When any district judge shall have entered upon the trial or hearing of any cause,
proceeding or motion, or made any ruling, order or decision therein, no other judge
shall do any act or thing in or about such cause, proceeding or motion, unless upon the
written request of the judge who shall have first entered upon the trial or hearing of
such cause, proceeding or motion.
Judge Whitehead made no such request to Judge Schouweiler. Judge Whitehead's decision
regarding the alleged conflicts between the prosecution and the civil bar was the decision in
the case and his conclusion that the District Attorney's Office exercised its prosecutorial
function independent of outside influence was binding. We conclude, therefore, that Judge
Schouweiler violated District Court Rule 18(1) in finding otherwise.
[Headnote 2]
The only fact considered by Judge Schouweiler that related to the alleged conflict of
interest between the prosecution and the civil bar, and that was not considered by Judge
Whitehead, involved attorney Peter Chase Neumann testifying before the grand jury. From
our review of the record it is clear that Mr. Neumann's testimony, which dealt with an issue of
law regarding the admissibility of hearsay testimony, added little to the evidence presented
and was not necessary.
presented and was not necessary. It was the District Attorney's responsibility, and not Mr.
Neumann's, to inform the grand jurors of the relevant law. See, e.g., American Bar
Association Standards For Criminal Justice, Standard 3-3.5; Model Code of Professional
Responsibility EC 5-10 (1980). If the prosecution believed it necessary to have an attorney
testify regarding a legal opinion, numerous other attorneys who did not have a direct
pecuniary interest in the proceedings could have been obtained. Nonetheless, having reviewed
the totality of the information presented to the grand jury and the minimal assistance that Mr.
Neumann's testimony provided, we do not believe that his appearance constituted such a
conflict of interest as to require dismissal of any of the indictments returned on the day that he
appeared.
The second general area of conflicting interests upon which Judge Schouweiler based his
decision to dismiss the indictments against respondent Babayan involved the therapists who
evaluated and treated the alleged victims and who testified before the grand jury. Judge
Schouweiler observed that two of the therapists had children who attended the Montessori
preschools and both therapists believed that their children had been molested. Judge
Schouweiler found that the therapists assumed conflicting roles, acting both as investigators
and as clinicians, and that both were in close alliance with certain civil attorneys.
[Headnotes 3, 4]
The State does not dispute these findings. It contends, however, that the findings do not
support Judge Schouweiler's decision to dismiss the indictments. According to the State, only
those matters of which the District Attorney's Office has full knowledge and, more
importantly, approved should serve as a basis for the district court's order. Moreover, the
State argues that Judge Schouweiler's findings again overlook the previous finding of Judge
Whitehead that the District Attorney acted independent of outside influences. The State's
arguments are without merit.
Treating the State's last contention first, we observe that Judge Whitehead's order
addressed only whether the District Attorney's Office was under the influence and control of
civil attorneys; Judge Whitehead did not decide whether a conflict of interest existed between
the District Attorney's Office and the involved therapists. Next, from our review of the record
we are convinced that Judge Schouweiler could have reasonably concluded that the District
Attorney's Office had full knowledge of the therapists' conflicting interests. While the
prosecution may have had little, if any, say regarding the therapists who the parents chose to
evaluate and treat the children, it nonetheless must accept responsibility for presenting those
therapists as witnesses before the grand jury.
As we observed in Sheriff v. Frank, 103 Nev. 160, 165, 734 P.2d 1241, 1244 (1987)
(quoting United States v. Dionisio, 410 U.S. 1, 16-17 (1973)), [t]he grand jury's mission is
to clear the innocent, no less than to bring to trial those who may be guilty.' By presenting
as witnesses therapists with obvious conflicting interests without informing the grand jury of
such conflicts, the District Attorney's Office undermined the purpose and function of the
grand jury which is to assure that persons will not be charged with crimes simply because of
the zeal, malice, partiality or other prejudice of the prosecutor, the government or private
persons. United States v. Gold, 470 F.Supp. 1336, 1346 (N.D.Ill. 1979) (quoting United
States v. DiGrazia, 213 F.Supp. 232, 235 (N.D.Ill. 1963)). Although we do not ascribe any
form of malice to the actions of the District Attorney's Office, its presenting the involved
therapists as witnesses without informing the grand jury of their conflicts, when coupled with
other derelictions, supports the district court's dismissal of the indictments.
Intentional Misleading of Grand Jury
The State next contends that the district court abused its discretion in holding that District
Attorney Mills Lane intentionally presented half truths and intentionally misled the grand
jury.
5
The district court found that its conclusion is supported by the testimony of
Detective Brent Royle.
__________

5
The testimony upon which Judge Schouweiler based his holding included that of Detective Brent Royle
who testified at both the first and second grand jury proceedings. The following excerpt, taken from the first
grand jury proceeding, is illustrative:
Q [MILLS LANE]: Mr. Rashidi, how did you come to determine whether or not he was in Reno from
1980 through 1984?
A [DETECTIVE ROYLE]: As far as Manouchehr Rashidi, we obtained, through our search warrant, an
application for employment, and on that application of employment, it shows from 1980 through 1982 he
was employed by the SAGA, S-A-G-A Corporation which is the food service corporation up at the
University of Nevada, and he was employed as a food server up there.
Q: Where after that?
A: After that, from 1982 to 1983, he was employed by the engineering library up at the University of
Nevada Reno as a counter helper. He is still employed up there.
Q: Where after that?
A: During the same time he was employed as a counter helper up at the law libraryor the engineering
library, he was also employed as a maintenance handyman and shuttle bus driver for the Reno
Montessori Schools.
. . . .
Q: Did you get his [petitioner Sarkissian's] employment application?
A: Yes, I did.
. . . .
Q: What did it reflect?
A: It reflects Greg's name on it with a date being filled out of 9-14-83. It shows his employment in the
Glendale area, and this was taken at the
district court found that its conclusion is supported by the testimony of Detective Brent
Royle. We will confine our review to this testimony since the other factual basis cited by the
district court to support its conclusion of intentional misconduct is not persuasive to us.
The district court found that Detective Royle's testimony was misleading in two respects.
First, it presented facts indicating that Rashidi and Sarkissian worked at the schools at the
same time. This is not correct because Sarkissian left the school in December 1983, and
Rashidi did not commence his work there until January 1984. Such information is important
because some of the accusations were that both Rashidi and Sarkissian committed the crimes
against the victims at the same time. Although the State concedes that Detective Royle's
testimony was the result of poorly worded questions, it argues that its intent was to show
that Rashidi was in Reno prior to beginning employment at the school, that there was no
intent to deceive the grand jury and that the only sworn testimony before the district court was
contrary to its findings. Second, the district court found that the facts presented by Detective
Royle indicated that Babayan was present during the initial interviews with the children, and
this created the impression that he was attempting to intimidate the children and prevent them
from disclosing information.
__________
time he came up to Reno and started employment with Reno Montessori Schools.
Q: When did he begin employment there?
A: The application is dated 9-14-83, however, through information supplied by Mr. Babayan, he started
somewhere around the first part of September.
Q: At least in September of 83, correct?
A: Yes, sir.
(Emphasis supplied.)
Following this, Detective Royle testified about his investigation of the alleged abuse, and respondent
Babayan's presence during interviews at the pre-schools.
Q [MILLS LANE]: Did there come a time when you made interview of certain people at the Montessori
School, children and staff?
A [DETECTIVE ROYLE]: Yes. During our initial investigation, we did contact staff and children at the
school.
Q: During those interviews who was present other than the person being interviewed, person in
authority?
A: During those interviews, Mr. Babayan, who is the director-owner of the Montessori Schools of Reno,
directed both myself and Sgt. Dickson that he was to be present during all of the examination and
questioning of all the children and all of the staff members.
Q: Was he, in fact, present?
A: Yes, he was.
At the second grand jury proceeding, Assistant District Attorney John Maher asked questions that were
substantially the same and Detective Royle gave substantially the same answers.
[Headnotes 5, 6]
While Royle's testimony did establish that Rashidi was in the Reno area prior to his
beginning employment in 1984, it also left the general impression that Sarkissian and he
worked at the schools during the same period of time. At the very least, it left the issue
unresolved. Rather than framing questions better, more questions should have been asked by
the prosecutor to establish when Sarkissian and Rashidi were employed by the schools. The
prosecution has the duty to present exculpatory evidence to a grand jury conducting a
criminal case and this is discussed later in this opinion. Given the allegations against
Sarkissian and Rashidi, their periods of employment were relevant and should have been
clearly established before the grand jury.
[Headnote 7]
Royle's testimony also established that Babayan attended the initial questioning of the
children at his school. However, to say that the only reasonable inference to be drawn from
this fact is that Babayan was trying to influence the children is not correct. At best, this was
only one of several inferences that could be drawn. The district court indicated that additional
information should have been presented to the jury, such as the fact that Babayan attended
only some of the interviews and he did encourage parents to attend their child's questioning.
While testimony to establish these facts would have been relevant and helpful in explaining
Babayan's presence at the initial questioning of the children, such additional information was
merely alleged by Babayan and not established by competent evidence in the record. Further,
it was not established that the District Attorney's office was aware of these acts at the time of
Royle's grand jury testimony.
Certainly, the misimpressions left with the grand jury may have influenced, to some
degree, the district court's decision to dismiss the indictments; however, the district court
goes too far in finding that Mills Lane or the District Attorney's office created the
misimpressions intentionally. At best, it shows that the questions elicited some relevant facts
to the grand jury that should have been more fully developed. But when viewed in context of
the entire grand jury proceedings, these facts were secondary and we are concerned only with
debating what reasonable inferences can be drawn from them.
After a thorough review of the record, we believe that the evidence before the district court
does not support its finding that through careful wording designed to deceive District
Attorney Mills Lane or his staff intentionally misled the grand jury. Accordingly, we
conclude that the district court was in error in so finding.
Quashing Grand Jury Independence
In its third assignment of error, the State suggests that the district court's finding that the
prosecution quashed the grand jury's independence by stifling grand jurors' questions and by
providing inaccurate legal advice cannot support the district court's dismissal of the
indictments. Although the State concedes that the better practice would have been to allow
answers to many of the grand jurors' inquiries, it contends that the majority of instances in
which the grand jurors were denied answers to their questions did not involve the ten alleged
victims on whom the State intended to proceed to trial.
[Headnotes 8, 9]
If the grand jury is to fulfill its purpose of acting as a bulwark between those sought to be
charged with crimes and their accusers, it must be permitted to investigate and act as an
informed body throughout the entire course of the proceedings. See Sheriff v. Frank, 103
Nev. at 165, 734 P.2d at 1244. At the same time, the grand jury, by statute, can receive none
but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary
evidence. NRS 172.135. Therefore, if the integrity of an indictment is to be preserved, grand
jurors must, when appropriate, be steered away from certain areas of inquiry.
[Headnote 10]
It is incumbent on prosecutors who make presentations before grand juries to be
adequately informed of the facts and to have conducted sufficient legal research to enable
them to properly inform the grand jury on the law and to assist it in its investigation. See
United States v. Sousley, 453 F.Supp. 754, 758 n.1 (W.D.Mo. 1978). Here, no less than in
Frank, the Assistant District Attorney who made the initial presentations to the grand jury
impaired its independence to some degree by curtailing relevant questioning.
[Headnotes 11, 12]
Several questions asked by the grand jurors were relevant to the crimes charged. After
receiving testimony about an alleged victim and her classmate being anally assaulted, a grand
juror asked if the classmates were together when assaulted. At another time, an alleged
victim's mother was asked if the touching of the child on the bottom and vaginal areas
occurred in a private area of the school. At still another time, a grand juror inquired whether a
teacher was aware of an alleged assault on one child that occurred at the school. In each
instance, the deputy district attorney prevented the witness from answering these relevant
inquiries.
Although preventing answers to these questions was not proper, it happened only in the
initial grand jury presentations and the matters inquired into were not so critical as to affect
the grand jury proceedings at which they occurred.
grand jury proceedings at which they occurred. Further, the restriction of grand jury inquiries
was the action of just one deputy district attorney. Subsequent presentations by other
prosecutors in this case were made without impairing the grand jury's independence and while
adhering to the statutory constraints governing what evidence the grand jury should receive.
Although the restriction on the grand jurors asking several questions in the initial grand
jury proceedings was improper, we conclude that the district court was incorrect in finding
that such moderate restriction thwarted the grand jury's independence and was so prejudicial
as to warrant the dismissal of the indictments returned during these proceedings.
Exculpatory Evidence
The State also argues that the district court abused its discretion in finding that the
prosecution failed to present exculpatory evidence to the grand jury. In the State's view, the
evidence available to the district court cannot be interpreted to support its finding. We cannot
agree.
Exculpatory evidence has been defined as that evidence which has a tendency to explain
away the charge against the target of the grand jury's investigation. Lane v. District Court,
104 Nev. 427, 463, 760 P.2d 1245, 1269 (1988) (Steffen, J., concurring) (citing Frank, 103
Nev. at 160, 734 P.2d at 1244). In Frank, we concluded that a deputy district attorney who
failed to submit evidence that had a tendency to explain away the charge against a defendant
violated his duty as dictated by the language of NRS 172.145(2). Frank, 103 Nev. at 164-65.
734 P.2d at 1244. Although NRS 172.145(2), which provides that [i]f the district attorney is
aware of any evidence which will explain away the charge, he shall submit it to the grand
jury, was not yet enacted at the time of the grand jury presentations here, we believe that the
statute was declaratory of and clarified existing law. Cf. Johnson v. Superior Court of San
Joaquin County, 124 Cal.Rptr. 32, 539 P.2d 792 (Cal. 1975) (construing California statute
identical to NRS 172.145(1) [in force at the time of the indictments here] as requiring
prosecutor to present exculpatory evidence to grand jury).
In granting respondent Babayan's motion to dismiss, the district court found that
substantial exculpatory evidence was known to the District Attorney's Office, but that the
prosecutors failed to present it to the grand jury. We essentially agree and hold that the
prosecution's failure to present such evidence adds to an overall foundation supportive of the
district court's decision to dismiss the indictments.
[Headnote 13]
The prosecution presented evidence to the grand jury that numerous children were
sexually assaulted, either vaginally or anally.
numerous children were sexually assaulted, either vaginally or anally. The testimony
presented indicated that complete penetration had occurred and, in some instances, occurred
more than once. At the time of its presentations, the prosecution possessed reports submitted
by physicians who had examined the children. None of the physicians found any indicia of
sexual penetration. The prosecution did not present these reports to the grand jury. While not
entirely dispositive of whether the children were sexually assaulted, see NRS 200.364(2)
(defining sexual penetration as any intrusion, however slight), evidence that there were no
physical findings of penetration would tend to explain away the charges against the
defendants, or, at the very least, would suggest that any sexual abuse that might have occurred
did not happen as recounted by some of the alleged victims. The grand jury should have had
this information before it in order for it to make an informed determination.
[Headnote 14]
Early on, as a result of the initial police investigation, the prosecution received statements
by preschool teachers and staff. These statements indicated that there were normally at least
four teachers or assistants supervising the children at each preschool, that the shuttle buses
between the preschools usually traveled in tandem, and that the children were not normally
out of an adult supervisor's presence. None of the teachers or staff who provided statements
indicated that they observed any activity or heard any statements that would suggest that child
abuse was or had been occurring. The District Attorney's Office, however, never called any of
the teachers or staff, the majority of whom were women and some of whom had children
attending the preschools, to testify before the grand jury at any of its proceedings. This
evidence was of an exculpatory nature and the district attorney should have presented it.
[Headnote 15]
The prosecutors also failed to present certain other evidence which when considered
separately may not have explained away the charges, but when viewed in its totality was
exculpatory, i.e., the schools' open floor plans, the irregular flow of persons, including
parents, in and out of the schools, and the presence of tutorial service that rented space at the
Hash Lane preschool. When considered against the allegations of continuous and ongoing
sexual abuse, some of which was alleged to have occurred in open areas, this evidence would
have had a tendency to explain away the charges and it should have been presented.
Indictments' Dismissal with Prejudice
[Headnote 16]
Although we conclude from the foregoing that the district court did not abuse its discretion
in dismissing the indictments against respondent Babayan, our inquiry is not at an end. We
now must determine whether it was an abuse of discretion for the district court to dismiss the
indictments with prejudice.
It is generally recognized in the federal system that:
The extreme sanction of dismissal of an indictment is justified in order to achieve
one or both of two objectives: first, to eliminate prejudice to a defendant in a criminal
prosecution; second, to help translate the assurances of the United States Attorneys
into consistent performances by their assistants.
United States v. Lawson, 502 F.Supp. 158, 169 (D.Md. 1980) (quoting United States v.
Fields, 592 F.2d 638, 647 (2d Cir. 1978) (footnotes omitted)). At the state level, the dismissal
of an indictment serves equally well to eliminate prejudice to a defendant and to curb the
prosecutorial excesses of a District Attorney or his staff. Nonetheless, and as in the federal
court system, a dismissal with prejudice at the state level is most appropriate upon a finding
of aggravated circumstances and only after a balancing of its deterrent objectives with the
interest of society in prosecuting those who violate its laws. Id. at 171-73. Clearly, dismissal
with prejudice is warranted when the evidence against a defendant is irrevocably tainted or
the defendant's case on the merits is prejudiced to the extent that notions of due process and
fundamental fairness would preclude reindictment. Id. at 172 (citations omitted).
[Headnotes 17-19]
In dismissing the indictments against respondent Babayan with prejudice, the district court
found that the District Attorney's Office was guilty of misconduct that went beyond mere
negligence. As we have previously indicated, however, the evidence does not support the
district court's findings of intentional misconduct by either District Attorney Mills Lane or his
staff. Nor do we believe that the evidence supports the district court's finding of a clear
pattern of misconduct by the District Attorney's Office.
The district court also found that the prosecutorial misconduct directed towards respondent
Babayan rose to a constitutional level as it violated his right to due process. Although we
agree that portions of the prosecution's presentations before the grand jury were deficient and
denied respondent Babayan due process of law, the denial of due process before the
grand jury, in and of itself, does not mandate dismissal with prejudice.
were deficient and denied respondent Babayan due process of law, the denial of due process
before the grand jury, in and of itself, does not mandate dismissal with prejudice. If it did,
then every instance in which a prosecutor failed to present exculpatory evidence or was
otherwise deficient in presenting the State's position, would require that indictment to be
dismissed with prejudice. Although errors occurred in this case, dismissal without prejudice
will remedy the derelictions in the absence of an irremedial evidentiary taint or prejudice to
the defendant's case on the merits. Id.
Respondent Babayan contends that the clinicians, and hence the State, have irreparably
altered the accurate recollections of the children by their coercive techniques and leading
questions.
6
We disagree. It was the considered opinion of three nationally recognized child
abuse experts, to whose selection both parties agreed, that six of the nine children they
evaluated were competent to testify at trial. Thus, sufficient untainted evidence is apparently
available to permit the State to proceed anew if it elects to do so. Accordingly, we conclude
that the district court's decision to dismiss the indictments with prejudice is neither supported
by the evidence or the law and, therefore, that the district court abused its discretion in so
holding.
Sarkissian's Writ of Mandamus
[Headnote 20]
With the foregoing in mind, we next consider petitioner Sarkissian's request for a writ of
mandamus directing respondents, The Second Judicial District Court of the State of Nevada
and Judge Schouweiler, to dismiss the indictments against him. In his order dismissing the
indictment against respondent Babayan, Judge Schouweiler wrote:
The Court finds a difference in the level of misconduct directed towards Mr.
Babayan and Mr. Sarkissian. It finds that the misconduct toward Sarkissian does not
rise to the level of a denial of his constitutional rights or to the level where the Court
must exercise its supervisory powers.
__________

6
Respondent Babayan also asks, pursuant to NRS 177.045, that we review two district court ordersone by
Judge Bowen and the other by Judge Schouweilerin which the courts held that the parents' testimony
regarding statements by the alleged victims were admissible as evidence before the grand juries as exceptions to
the hearsay rule. While NRS 177.045 permits us to review, upon appeal, any decision of the court in an
intermediate order or proceeding, counsel for respondent Babayan did not file a cross-appeal. See NRS
177.075. Accordingly, we decline to review the previous orders of the district courts regarding the admissibility
of the parents' testimony at this time. Cf. Martinez v. State, 77 Nev. 184, 360 P.2d 836 (1961).
Judge Schouweiler continued later in his order: Mr. Lane strongly inferred to jurors that Mr.
Babayan hired child molesters, and tried to obstruct the investigation, Sarkissian, on the other
hand, was not dealt with unfairly in this regard. The district court's reasoning is faulty: it
finds the District Attorney's suggestion that Babayan hired child molesters objectionable, but
it does not find equally objectionable the inescapable suggestion that Sarkissian was the child
molester who Babayan hired. The very conduct that Judge Schouweiler found to be improper,
and which we have concluded cumulatively supports the dismissal of the indictments, i.e., the
conflicts of interest and the failure to present exculpatory evidence, touched each of the three
defendants equally.
In Lawson, 502 F.Supp. 158 (D.Md. 1980), one of Lawson's co-defendants joined in a
motion to dismiss the indictments against them on the ground of prosecutorial misconduct.
The co-defendant contended that if the court found the misconduct, which concerned only
Lawson's illegal activities, to have occurred, he, as well as Lawson, was entitled to relief
because they were indicted by the same grand jury and evidence as to each was not
segregated. Id. at 161 n.5. After determining that the prosecutor's conduct was deliberately
misleading and calculated to create a false impression on the grand jury, id. at 163, the court
dismissed the indictments against both defendants without prejudice. Id. at 173.
Here, just as in Lawson, the same grand jury indicted the three defendants, and the district
attorney's office did not segregate evidence. Unlike the situation in Lawson, however, the
derelictions that occurred here directly impacted each of the three defendants. Although the
State argues that the extraordinary remedy of mandamus is not available to petitioner
Sarkissian, it nonetheless concedes that there is no significant reason for treating Ruben
Babayan and the Petitioner differently. Insofar as there is no reason to treat petitioner
Sarkissian differently than respondent Babayan, we agree with the State. We cannot agree
with the State, however, regarding the availability of the writ.
[Headnote 21]
Petitions for extraordinary relief are addressed to the sound discretion of this court. State
ex rel. Dep't Transp. v. Thompson, 99 Nev. 358. 362, 662 P.2d 1338, 1340 (1983). In
Thompson, we stated that judicial economy and sound judicial administration militate
against the utilization of mandamus petitions to review orders denying motions to dismiss. . .
. Id. at 362, 662 P.2d at 1340. We indicated, therefore, that we would no longer exercise our
power for that purpose. Id.
[Headnote 22]
We believe that here the very considerations of sound judicial economy and sound judicial
administration which underscored our decision in Thompson, militate in favor of granting
Sarkissian's petition. Having concluded that there are substantial grounds to support the
district court's decision to dismiss the indictments and that there is no principled reason to
distinguish between petitioner Sarkissian and respondent Babayan, we believe that to permit
petitioner Sarkissian's case to be treated differently than Babayan's could result in a gross
miscarriage of justice. The circumstances of this case therefore reveal urgency and strong
necessity; thus, extraordinary relief is appropriate. See Jeep Corp. v. District Court, 98 Nev.
440, 443, 652 P.2d 1183, 1185 (1982).
CONCLUSION
Having carefully reviewed the record and briefs, and having heard the parties' oral
arguments, we conclude that the district court did not abuse its discretion in dismissing the
indictments against respondent Babayan. The record supports the district court's conclusion
that the prosecutor failed to present clearly exculpatory evidence and that the therapists who
gave expert testimony did so with substantial conflicts of interest that was not brought to the
grand jurors' attention. However, it was error to dismiss the indictments with prejudice. We
further conclude that there being no principled basis upon which to distinguish petitioner
Sarkissian from respondent Babayan, Sarkissian's right to have the charges against him
dismissed was clear and the district court abused its discretion in denying Sarkissian's motion.
Finally, we conclude that owing to unusual and urgent circumstances which reveal a strong
necessity, the extraordinary writ of mandamus is appropriate and may be granted.
We are not unmindful that this matter which has already lingered for over five years will,
by our decision today, continue unresolved. We are firmly convinced, however, that the
interests of society, the children, their parents, as well as the interests of the defendants
demand that the case be handled properly.
Accordingly, we affirm the district court's decision to dismiss the indictments, but reverse
its dismissal with prejudice. Petitioner Sarkissian's request for a writ of mandamus directing
respondents, The Second Judicial District Court of the State of Nevada and the Honorable
Robert Schouweiler, to dismiss the indictments against him without prejudice is granted. The
State is granted leave to proceed anew if, in its good faith and considered opinion, evidence
exists such that it can establish with the requisite degree of certainty that any of the
defendants committed the crimes alleged.7
site degree of certainty that any of the defendants committed the crimes alleged.
7

It is so ordered.
Steffen, A. C. J., Rose, J., Zenoff, Sr. J.
8
, Foley, D. J.
9
and Lehman, D. J.,
10
concur.
____________
106 Nev. 177, 177 (1990) Clark Co. Social Service Dep't v. Newkirk
CLARK COUNTY SOCIAL SERVICE DEPARTMENT, CLARK COUNTY, NEVADA,
and COUNTY OF CLARK, NEVADA, Appellants and Cross-Respondents, v.
EVERETT NEWKIRK, FOR HIMSELF AND THOSE SIMILARLY SITUATED,
Respondent and Cross-Appellant.
No. 18903
March 27, 1990 789 P.2d 227
Appeal and cross-appeal from summary judgment and order permanently enjoining Clark
County Social Services Department from denying single employable individuals and
employable childless couples county welfare benefits. Eighth Judicial District Court, Clark
County; Myron E. Leavitt, Judge.
Claimant denied county relief benefits sued on behalf of himself and other similarly
situated seeking injunction to prohibit denial of benefits on basis that applicants were
employable and for retroactive payment of benefits denied. The district court granted
injunction and denied retroactive benefits. Both parties appealed. The Supreme Court,
Springer, J., held that: (1) denial was improper, as statute required counties to provide relief
for all poor persons regardless of whether they were employable, and (2) retroactive benefits
were unavailable.
Judgment affirmed; cross-appeal dismissed.
__________

7
Of course, nothing contained herein should be construed as expressing any opinion regarding the guilt of
the parties or whether the District Attorney's Office should resubmit the matter to another grand jury.

8
The Honorable E. M. Gunderson, then Chief Justice, appointed The Honorable David Zenoff, Senior
Justice, to sit in place of The Honorable Charles E. Springer, Justice.

9
The Honorable Thomas A. Foley, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable John C. Mowbray, Justice. Nev. Const. art. VI, 4.

10
The Honorable Jack Lehman, Judge of the Eighth Judicial District Court, was designated by the Governor
to sit in place of The Honorable Cliff Young, Chief Justice. Nev. Const. art. VI, 4.
[Rehearing denied August 21, 1990]
Steffen, J., and Young, C. J. dissented.
Rex Bell, District Attorney, Victor W. Priebe, and Michael L. Douglas, Deputy District
Attorneys, Clark County, for Appellants and Cross-Respondents.
Justin M. Clouser, Las Vegas; Beckley, Singleton, DeLanoy, Jemison & List, and Daniel F.
Polsenberg, Las Vegas, for Respondent and Cross-Appellant.
1. Social Security and Public Welfare.
County social service department regulation providing that single employable individuals could not be provided welfare benefits
was invalid; statute required that counties must provide relief to poor, without regard to whether they were employable. NRS 428.010,
subd. 1.
2. Social Security and Public Welfare.
Class of individuals who were denied poor relief mandated by state statute under invalid county regulation denying such relief to
persons who were deemed employable were not entitled to retroactive benefits. NRS 428.010, subd. 1.
OPINION
Everett Newkirk has been a citizen of Clark County for approximately seven years. He is
sixty-four years old and lives on the streets. He sleeps in parks in the daytime, claiming that
he is afraid of being killed if he sleeps there in the nighttime.
On April 23, 1986, Everett Newkirk filed an application for relief with the Clark County
Social Service Department. His application shows that his request was made because he did
not receive his $96.00 Social Security check. A welfare worker noted on his application that
Newkirk had foot problems due to walking the streets. Another, previous note says that,
[i]t is felt by workers if Mr. Newkirk had a place to stay his feet will be given the
opportunity to heal properly and he will be able to seek employment.
Although this poor, elderly, homeless, jobless, unkempt, welfare supplicant would not
appear to be employable on April 23, 1986, his application form, under a section saying
Employable, Yes, No, is marked Yes.
1
On the basis of Newkirk's being "employable"
at the time his application was made, Newkirk was denied relief on the basis of a Social
Service Department regulation that "automatically" disqualified Newkirk. "Single
employable . . . may not be served."
__________

1
The designation employable which automatically rendered Newkirk ineligible for assistance gives rise to
concern because the word is not defined in the regulations. In the case before us although the welfare worker
appar-
being employable at the time his application was made, Newkirk was denied relief on the
basis of a Social Service Department regulation that automatically disqualified Newkirk.
Single employable . . . may not be served. Regulation II.14.B.3.
This case comes to us on summary judgment. No one contests the fact that Newkirk was
poor and indigent nor that he was automatically refused on the ground that he was
employable. The district court granted summary judgment to Newkirk on the grounds that a
Nevada statute required the county to provide relief to poor people like Mr. Newkirk, whether
they were employable or not.
2
We agree with the trial court on this point and affirm the
judgment of the district court.
[Headnote 1]
The statute in question, NRS 428.010(1), declares that the counties in Nevada must
provide care, support and relief to the poor. . . . Since Newkirk is indisputably poor, one
would think that the statute requires Clark County to provide care, support and relief to him.
For some reason necessarily unconnected with NRS 428.010(1), Clark County has excepted a
large segment of the poor from those whom it will serve. The employable unemployed
are excluded from care, support and relief no matter how poor they are.
Until such time as a law is enacted which relieves counties of the responsibility of caring
for its poor or until the legislature defines poor in such a way that unemployed people can
never be said to be poor, the counties must continue to provide care, support and relief to the
poor.
The mere enacting of the mentioned administrative regulation obviously cannot
countermand the statutory mandate. Administrative regulations cannot contradict or conflict
with the statute they are intended to implement. Roberts v. State, 104 Nev. 33, 752 P.2d 221
(1988). While Clark County might enact regulations setting standards of eligibility based
on residence, property ownership or availability of financial resources, it cannot eliminate
a large category of poor people simply by saying that single, employable, poor people
"may not be served."
__________
ently checked the Yes box, indicating that Newkirk was employable, that he really was unemployable is
problematical. Newkirk's deposition shows that around September of 1985 he had been offered a job but that he
did not feel suited for it. He has been searching for work ever since. When asked how many jobs he had applied
for in Las Vegas, He said (in his deposition): Probably a hundred. The state employment office sent me and
chasing them ads in the paper and just on my own. I've been to so many places I forgot I have ever been in the
damned place. At the time of the application he had been out of work for a year. His feet were sore from
walking the streets. He was unkempt and unbathed. Perhaps he was employable. At least we have to assume so
for the purposes of this appeal.

2
A number of constitutional questions were raised by Newkirk and considered by the trial court. In view of
the nature of our disposition of the appeal it will not be necessary to reach these constitutional questions.
tions setting standards of eligibility based on residence, property ownership or availability of
financial resources, it cannot eliminate a large category of poor people simply by saying that
single, employable, poor people may not be served. If one is poor, however defined, one is
entitled to relief under NRS 428.010(1). NRS 428.010(2) authorizes counties to prescribe
uniform standards of eligibility for the poor, indigent, incompetent, aged, diseased and
disabled. Counties can prescribe poverty levels, establish formalities and procedures for
application and dispersement of relief, but it cannot say that employable people can never
be poor or that people who are physically and mentally capable of seeking employment
cannot be poor. Such a regulation is clearly in conflict with the state's mandate that counties
care for their poor, all of their poor. See County of Lander v. Bd. of Trustees of Elko Gen.
Hosp., 81 Nev. 354, 403 P.2d 659 (1965) (county's obligation to support poor people derives
from the statutory provision imposing such a legal obligation).
As noted, we need not decide the question of due process and equal protection. As long as
the state requires the counties to give relief to poor people, the county must do so. Newkirk is
a poor person; therefore, Clark County must provide care and support and relief. It is as
simple as that.
3
The district court was correct in ruling that the regulation was inconsistent
with the statute. Persons who are poor yet single and employable, whatever that term may
mean, cannot be categorically excluded from welfare benefits.
__________

3
The California case of Mooney v. Pickett, 483 P.2d 1231 (Cal. 1971), is directly on point. By statute,
California, very much like Nevada, requires local government to give support to incompetent, poor, indigent
persons, and those incapacitated by age, disease, or accident. San Mateo County enacted a regulation saying
that [g]enerally speaking, employable persons are not eligible. The California Supreme Court ruled, as we do
now, that the county had broad discretion to determine eligibility for, the type and amount of, and the
conditions to be attached to indigent relief; still, such discretion must be exercised so as to conform to the
purposes and mandates of the underlying statute. Mooney, 483 P.2d at 1235. The statute clearly required San
Mateo County to provide for persons who were poor; consequently, any kind of employable single man rule
was held to be inconsistent with the statute. The court in Mooney employed the following significant language:
A rule excluding from its scope all unmarried employable persons, without regard for the practical
impossibility of obtaining employment in a depressed labor market, leaves such individuals without any
source of relief whatsoevera result inconsistent with the language and purpose of section 17000 and
other statutes establishing General Assistance relief.
Id. at 1239.
benefits. The trial court's judgment in this regard will be affirmed.
4

[Headnote 2]
We also agree with the district court in denying retroactive benefits to Newkirk and to the
class. Those who were denied benefits by reason of application of the improper county
regulation are indeed an amorphous group and not amenable to being identified as class
plaintiffs. We think that the district court acted reasonably and properly in refusing to give
retroactive effect to the judgment for the benefit of Newkirk or the class.
The judgment of the trial court is affirmed on the ground that Clark County Social Service
Department Regulation II.14.B.3 is invalid. Newkirk is eligible for indigent relief if he is in
compliance with Clark County eligibility rules for relief to the poor other than Regulation
II.14.B.3. The cross-appeal will be dismissed.
Mowbray and Rose, JJ., concur.
Steffen, J., with whom Young, C. J., agrees, dissenting:
The majority opinion, having emphasized the pathetic, impoverished and demeaning
circumstances surrounding the daily existence of Everett Newkirk, has forced us into an
unwanted but necessary and seemingly calloused position of defending our system of
government in general and the role of the judicial branch in particular. Even as we dissent, we
share the concern and empathy of our brethren in the majority over the sub-human plight of
Mr. Newkirk and others who struggle without home or hearth, and in utter penury, to merely
survive. Nevertheless, we believe it is vital that we remind ourselves as judicial officers that
we do not appropriate or allocate public monies. Nor do we establish public policy
concerning the priority to be placed on the limited assets of the public fisc. Elected
representatives of our state citizenry determine as state and local legislative bodies the extent
to which individuals, corporations and other entities will be taxed to raise public revenues
to fund the demands of government.
__________

4
The dissent defines the single issue on appeal as being whether a county government may deny public
assistance to employable single individuals and employable childless couples. The very simple answer to the
question is that counties may not deny public assistance to employable individuals and couples if they are in fact
poor. Nevada law requires counties to provide care to the poor, and certainly a person can be employable and
also poor. We certainly would have no quarrel with a legislative scheme that would fairly and systematically
exclude from welfare benefits single employable persons who unreasonably refused to accept employment, but
this is not the same as excluding all persons who are physically and mentally able to work even though their
poorness may have been created by circumstances entirely beyond their control.
extent to which individuals, corporations and other entities will be taxed to raise public
revenues to fund the demands of government. Our legislative bodies then determine which
and to what extent the many competing societal needs may be addressed.
The proper jurisdiction of this court seems clear. Setting aside the personal plight of Mr.
Newkirk, as we believe we must, the single issue on appeal is whether Clark County may
deny public assistance to employable single individuals and employable childless couples.
Stated otherwise, the issue is whether the county may establish standards of eligibility for
general welfare assistance. We are of the opinion that the issue, thus presented, must be
answered in the affirmative.
Clark County contends that the district court erred in its ruling because the Nevada
Legislature authorized Nevada counties to establish standards of eligibility for general
welfare assistance; therefore, promulgation of a county regulation precluding employable
single individuals and employable childless couples was appropriate. We agree.
Newkirk is a single unemployed resident of Clark County. In April, 1986, Newkirk applied
to the Clark County Social Services Department for welfare benefits. On April 23, 1986,
without a hearing, Newkirk was denied financial assistance. In denying relief, Clark County
relied upon Clark County Social Service Department Manual Rule II.14.B.3, [s]ingle
employables or employable childless couples may not be served.
Newkirk filed a complaint in district court seeking declaratory and injunctive relief.
Newkirk claimed that he represented a class of people who had been denied county financial
assistance pursuant to Rule II.14.B.3 and that the rule was both unconstitutional and
inconsistent with relevant Nevada welfare statutes. The district judge certified the class,
ruling that in the event he found in favor of Newkirk and the class, no retroactive benefits
would be awarded.
Newkirk eventually moved for summary judgment. Although the motion was denied, the
parties later stipulated that there were no genuine issues of material fact and that only legal
issues remained, Thereafter, the district court concluded that Rule II.14.B.3 was inconsistent
with NRS 428.010 and NRS 428.030 and was therefore invalid, and also that it violated the
equal protection clause. The district court further determined that Newkirk had been denied
due process of law. Summary judgment was entered in Newkirk's favor and Clark County
was permanently enjoined from denying financial assistance to applicants under Rule
II.14.B.3. The district court thereafter entered a stay pending appeal by Clark County and
cross-appeal by Newkirk.
We agree that it is necessary to determine whether Rule II.14.B.3 is inconsistent with
NRS 42S.0101 and NRS 42S.030.2 Specifically, this court has previously held that
"[a]dministative regulations cannot contradict or conflict with the statute [or statutes]
they are intended to implement."
II.14.B.3 is inconsistent with NRS 428.010
1
and NRS 428.030.
2
Specifically, this court has
previously held that [a]dministative regulations cannot contradict or conflict with the statute
[or statutes] they are intended to implement. Roberts v. State University, 104 Nev. 33, 37,
752 P.2d 221, 223 (1988). Thus, Rule II.14.B.3 may not deny relief to single employables and
employable childless couples unless in so doing it conforms to the original legislative intent
underlying NRS 428.010 and NRS 428.030. See Hager v. Nev. Med. Legal Screening Panel,
105 Nev. 1, 767 P.2d 1346, 1347 (1989); Roberts, 104 Nev. at 37, 752 P.2d at 223.
Legislative intent is to be determined from the specific statutory language if it is clear and
unambiguous on its face. Hager, 105 Nev. at 3, 767 P.2d at 1347. Statutory language is
ambiguous if it is capable of being understood in two or more senses by reasonably
informed persons. Id. If ambiguous, the legislative intent behind a statute can be derived
from reason and public policy.
__________

1
NRS 428.010, when considered by the district court, read as follows:
1. To the extent that moneys may be lawfully appropriated by the board of county commissioners for
this purpose pursuant to NRS 428.050, every county shall provide care, support and relief to the poor,
indigent, incompetent and those incapacitated by age, disease or accident, lawfully resident therein, when
such persons are not supported or relieved by their relatives or guardians, by their own means, or by state
hospitals, or other state, federal or private institutions or agencies.
2. The boards of county commissioners of the several counties are vested with the authority to
establish and approve policies and standards, prescribe a uniform standard of eligibility, appropriate
funds for this purpose and appoint agents who will develop rules and regulations and administer these
programs for the purpose of providing care, support and relief to the poor, indigent, incompetent and
those incapacitated by age, disease or accident.
Although this statute has been subsequently amended, the analysis contained in this dissent remains unaffected
by the modifications.

2
NRS 428.030, when considered by the district court, read as follows:
1. When any poor person meets the uniform standards of eligibility established by the board of county
commissioners and does not have relatives of sufficient ability to care for and maintain such poor person, or
when such relatives refuse or neglect to care for and maintain such person, then such poor person shall receive
such relief as is in accordance with the policies and standards established and approved by the board of county
commissioners and within the limits of the funds which may be lawfully appropriated pursuant to NRS 428.050
for this purpose.
2. The board of county commissioners may:
(a) Make contracts for the necessary maintenance of poor persons;
(b) Appoint such agents as the board may deem necessary to oversee and provide the necessary maintenance
of poor persons;
(c) Authorize the payment of cash grants direct to poor persons for their necessary maintenance; or
(d) Provide for the necessary maintenance of poor persons by the exercise of the combination of one or more
of the powers specified in paragraphs (a), (b) and (c) of this subsection. (Emphasis added.)
Although this statute has been subsequently amended, the analysis contained in this dissent remains unaffected
by the modifications.
is ambiguous if it is capable of being understood in two or more senses by reasonably
informed persons. Id. If ambiguous, the legislative intent behind a statute can be derived from
reason and public policy. Roberts, 104 Nev. at 37, 752 P.2d at 223.
We are convinced that there is no inconsistency between the two statutes, NRS 428.010
and 428.030, and Rule II.14.B.3. In our view, neither the majority's nor Newkirk's perspective
on the issue considers the statutes in their entirety. NRS 428.010(1) commences with a
recognition that the county welfare pie is of a limited dimension. Thus, counties are enjoined
to care for, inter alia, the poor [t]o the extent that moneys may be lawfully appropriated by
the board of county commissioners. . . . The same subparagraph of the statute also specifies
the statute (under the current amendment, statutes) that defines and limits the extent of taxes
that may be lawfully levied for welfare purposes. It is thus important to understand that
counties have not received unlimited authority to raise taxes to provide relief to every
potential welfare recipient who could fall within the circumference of a circle drawn to
encompass everyone in need of welfare assistance.
Having circumscribed the counties' authority to levy taxes for welfare purposes, the
Legislature recognized that counties necessarily would have to place priorities on those who
would be eligible to receive welfare assistance. As a result, with the exception of health care,
boards of county commissioners were empowered to establish policies, standards, and
uniform standards of eligibility concerning welfare assistance. NRS 428.010(2).
Unfortunately, the majority has, by judicial fiat, interfered with the legislative scheme by
eliminating a system of priority eligibility and substituting therefor an open-ended
requirement that encompasses all who may fall within the undefined category of poor. The
majority position has rendered meaningless the statutory limitation contained in the language
of NRS 428.030 providing that [w]hen any poor person meets the uniform standards of
eligibility . . . established by the board of county commissioners then such poor person shall
receive such relief as is in accordance with the policies and standards established and
approved by the board of county commissioners and within the limits of the funds which may
be lawfully appropriated . . . for this purpose. By obvious implication, the Legislature
excluded from welfare assistance the poor who fail to meet eligibility criteria.
In summary, it seems clear to us that the Legislature has: (1) limited by law the amount of
welfare monies counties may raise for welfare purposes; (2) empowered boards of county
commissioners to adopt regulations determining among classes of potential welfare
recipients those who will be eligible for assistance; and {3) authorized boards of county
commissioners to provide welfare assistance to those determined by county regulation to
be eligible, to the extent lawfully appropriated funds are available.
sioners to adopt regulations determining among classes of potential welfare recipients those
who will be eligible for assistance; and (3) authorized boards of county commissioners to
provide welfare assistance to those determined by county regulation to be eligible, to the
extent lawfully appropriated funds are available.
By changing the statutory scheme to require counties to provide welfare assistance to all
persons who are poor rather than those who satisfy a county's eligibility standards, the
majority has done nothing, of course, to expand the pool of welfare assets available to service
the poor. Tragically, the inevitable result of the majority's ruling will be a necessary reduction
in welfare assistance to those who are most desperately in need of such assistance. Although
Newkirk's plight is lamentable, at least he is apparently in a position physically and mentally
to assuage his suffering by means of his own efforts. The inform, incompetent and
incapacitated, on the other hand, do not have the capacity to even attempt to be masters of
their own fate. It is therefore understandable why the Clark County Board of County
Commissioners elected to divide the limited welfare pie among those unfortunates who are
not in a position to extricate themselves from their necessitous circumstances by their own
will and labor.
Because the majority now obligates the counties to include poor singles and childless
couples who are employable within the finite reaches of their welfare assistance pool, we
must presume that the needy infirm, aged, incompetent, and incapacitated, among others, will
be forced to survive on less than they have previously received. We therefore would
encourage the Legislature to react with some dispatch, or at least in accordance with the
dictates of the actual financial predicaments Clark County and other Nevada counties may
now encounter, to alleviate the problems resulting from the majority's ruling.
Ideally, all of the deserving and needy persons in our society should be provided with
sufficient food, clothing and shelter. At present, however, countless persons must suffer
undue hardship because of societal imperfections and shortages. The problems confronting
our society in these areas are severe, and governments must be afforded considerable latitude
in attempting to address and resolve them. See New York Dept. of Social Services v.
Dublino, 413 U.S. 405, 413 (1973).
Although the majority has found it unnecessary to treat the constitutional issues raised by
Newkirk, we merely note in passing that we discern no constitutional impediments to the
county's implementation of the authority delegated to it by the Legislature. Moreover, because
in our view the majority has destroyed the latitude the Legislature has purposely and wisely
conferred upon county boards of commissioners, we are compelled to register our
dissent.3
latitude the Legislature has purposely and wisely conferred upon county boards of
commissioners, we are compelled to register our dissent.
3

____________
106 Nev. 186, 186 (1990) Sessions v. State
JAMES W. SESSIONS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19624
March 27, 1990 789 P.2d 1242
Appeal from a judgment of conviction for trafficking in a controlled substance, possession
of a controlled substance, and being a habitual criminal. Fifth Judicial District Court, Nye
County; William P. Beko, Judge.
Defendant was convicted of trafficking in marihuana weighing over 100 pounds,
possession of marihuana, and being a habitual criminal, in the district court and defendant
appealed. The Supreme Court held that: (1) evidence failed to sustain conviction for
trafficking in marihuana weighing over 100 pounds, where leaves were not removed from
stalks, stems, roots or attached dirt prior to weighing, and such error could not be cured
because evidence was destroyed, and (2) trial court's adjudication of defendant as habitual
criminal was abuse of discretion, as past convictions range from twenty-three to nearly thirty
years old, and were for nonviolent crimes.
Terri Steik Roeser, State Public Defender, Janet S. Bessemer, Deputy Public Defender,
__________

3
The majority has decreed that until counties are lawfully relieved of the obligation to care for their poor or
until the legislature defines poor' in such a way that unemployed people can never be said to be poor, counties
will be required to care for all of their poor. Notwithstanding the majority's all or nothing edict, it was
enheartening to note their contradictory position in response to our dissent (footnote 4 of majority opinion)
where the majority condescends to having no quarrel with a legislative scheme that would deny welfare
assistance to single employables who will not accept employment. We are enheartened by the majority's
willingness to grant some latitude to the legislature branch of government in its policy decisions concerning
social welfare.
This footnote is simply dedicated to the proposition that it is evident under our system of government why
elected legislative bodies are given the responsibility of establishing social policy and appropriating funds to
implement the policies thus established. Courts should assiduously avoid interfering with legislative enactments
that are not constitutionally prohibited.
Brian McKay, Attorney General, Carson City; Philip H. Dunleavy, District Attorney,
George B. Deuel, Chief Deputy District Attorney, Nye County, for Respondent.
1. Drugs and Narcotics.
Marihuana, within statutory definition, does not include stems, stalks, roots, and dirt. NRS 453.096.
2. Statutes.
Ambiguities in statute must be liberally constructed in favor of accused.
To properly determine weight of marihuana to support trafficking conviction, weight must be determined by excluding stems,
stalks, roots, and dirt. NRS 453.339.
Evidence failed to sustain conviction for trafficking in marihuana weighing over 100 pounds, although weight of marihuana plants
had been determined by police to be 540 pounds, where no attempt was made to remove leaves from stalks, stems, roots or attached
dirt prior to weighing, and error could not be cured because plants had been destroyed. NRS 453.339.
5. Courts.
Nevada Supreme Court is not bound to follow decision of federal district court regarding Nevada law.
6. Criminal Law.
Trial court's adjudication of defendant as habitual criminal was abuse of discretion, where defendant's past Texas conviction for
theft, and California convictions for grand theft and escape, ranged from twenty-three to nearly thirty years old, and were for
nonviolent crimes. NRS 207.010, subds. 2, 4.
OPINION
Per Curiam:
Following an investigation, sheriff's officers in Nye County obtained and served a search
warrant on property in Pahrump which belonged to appellant James William Sessions. Inside
a barrier of junk appliances the officers found two greenhouses and seized 761 plants, a small
box and several baggies of marihuana. The plants were weighed whole, then destroyed. The
weight of the marihuana was determined to be 540 pounds.
Based on the plants seized, Sessions was charged with trafficking in marihuana weighing
over 100 pounds in violation of NRS 453.339. Based on the contents of the box, Sessions was
charged with possession of marihuana in violation of NRS 453.336. Sessions was also
charged with being a habitual criminal in violation of NRS 207.010 based on a 1959 Texas
conviction for theft of property valued at over fifty dollars, a 1963 California conviction for
grand theft, and a 1965 California conviction for escape without the use of force.
conviction for grand theft, and a 1965 California conviction for escape without the use of
force. Sessions was found guilty and sentenced to the maximum penalty on all three charges.
He received a twenty-year sentence and a twenty-five thousand dollar fine for trafficking; a
concurrent six-year sentence and a five thousand dollar fine for possession; and a sentence of
life without the possibility of parole for being a habitual criminal.
On appeal, Sessions contends, inter alia, that the trafficking conviction cannot stand
because the weight of the marihuana was improperly determined and the evidence was
subsequently destroyed. Sessions also contends that the habitual criminality conviction cannot
stand because it was an abuse of discretion to base a determination of habitual criminality on
prior convictions well over twenty years old. We agree, and order these two convictions
reversed.
I
On October 23, 1987, the district court ordered that the evidence be weighed and, but for a
small amount necessary for analysis, destroyed. That same day, the evidence was weighed
and destroyed. The marihuana plants were weighed wholeno attempt was made to remove
the leaves from the stalks, stems, roots or attached dirt prior to weighing. A hearing was held
on October 26, 1987, at which the weight of the marihuana was determined to be 540 pounds.
This determination was reached improperly and warrants reversal of the trafficking
conviction.
[Headnote 1]
Pursuant to NRS 453.096, marihuana is defined as followed:
1. Marihuana means:
(a) All parts of any plant of the genus Cannabis, whether growing or not;
(b) The seeds thereof;
(c) The resin extracted from any part of the plant; and
(d) Every compound, manufacture, salt, derivative, mixture or preparation of the
plant, its seed or resin.
2. Marihuana does not include the mature stems of the plant, fiber produced from
the stems, oil or cake made from the seeds of the plant, any other compound,
manufacture, salt, derivative, mixture or preparation of the mature stems (except the
resin extracted therefrom), fiber, oil or cake, or the sterilized seed of the plant which is
incapable of germination.
(Emphasis added.)
Sessions contends that the stems, stalks, and attached dirt do not fall within the definition
of marihuana as set forth in NRS 453.096
453.096(2). He further contends that by determining the weight of the marihuana based on the
whole plant, rather than on just the leaves and buds, the weight of the evidence was arrived at
improperly. The state, relying on NRS 453.096(1), argues that the weight was properly
determined because the definition includes all parts of the plant.
As we read the statute, subsection 2 of the statute excludes stems from the definition of
marihuana and serves to modify and limit the all-inclusive definition provided in subsection
1. Even if there is any doubt as to the relationship between NRS 453.096(1) and NRS
453.096(2), that doubt must be resolved in favor of the accused. Dumaine v. State, 103 Nev.
121, 125, 734 P.2d 1230, 1233 (1987); Sheriff v. Hanks, 91 Nev. 57, 60, 530 P.2d 1191, 1193
(1975). Therefore, the state's argument that marihuana includes stems, roots, dirt, etc. is
incorrect.
[Headnotes 2, 3]
Furthermore, the trafficking statute in effect at the time contained no provisions specifying
whether marihuana included all parts of the plant or included a mixture containing
marihuana. NRS 453.339 at the time read:
any person . . . who is knowingly or intentionally in actual or constructive possession of
marihuana shall be punished, if the quantity involved:
1. Is 100 pounds or more, but less than 2,000 pounds, by imprisonment in the state
prison for not less than 3 years nor more than 20 years and by a fine of not less than
$25,000.
1

We note that this statute is in contrast to the corresponding statutes defining trafficking in
Schedule I
__________

1
This statute has subsequently been amended to include the following: For the purposes of this section: (a)
Marihuana' means all parts of any plant of the genus Cannabis, whether growing or not. NRS 453.339(2) (as
amended 1989). Thus, under the new statute, the method used in this case to weigh the marihuana might very
well be proper; however, that question is not presently before us.
At oral argument, the state raised the argument that this subsequent addition simply makes clear pre-existing
legislative intent to include the entire plant in the definition of marihuana under the trafficking statute.
However, the statute in effect at the time simply referred to quantity, and the definition of marihuana (which
has not changed) both includes all parts of the plant and excludes mature stems. Contrast NRS 453.096(1)
with NRS 453.096(2). Based on the statutory definition of marihuana, the trafficking statute was clear; at most, it
was ambiguous. Thus, even if the legislature did intend that a trafficking charge be based on all parts of the
marihuana plant, that intent was not manifested on the face of the statute. Because ambiguities must be liberally
construed in favor of the accused, Sheriff v. Lang, 104 Nev. 539, 542, 763 P.2d 56, 58 (1988), the argument that
the prior statute was intended to include the entire plant is without merit.
statutes defining trafficking in Schedule I and Schedule II substances, which base the weight
on the controlled substance or any mixture which contains any such controlled substance.
See NRS 453.3385 (Schedule I substances) and NRS 453.3395 (Schedule II substances).
Consequently, to determine properly the weight of marihuana to support a trafficking
conviction, the weight must be determined excluding the stems, dirt, etc. Because that was
not done in this case, the weight of the marihuana was arrived at in error.
[Headnote 4]
We hold that the error was prejudicial because the improperly determined weight, 540
pounds, was the basis for Sessions' conviction for trafficking based on possession of 100
pounds or more of marihuana. Moreover, the error cannot be cured because the evidence was
destroyed. The state contends that it is mere speculation for Sessions to claim that the
marihuana might have weighed less than 100 pounds had it been properly weighed. Yet it was
not the defendant's burden to establish the weight of the evidence; the state bears the burden
of proving, beyond a reasonable doubt, each element of the crime. NRS 175.191. The record
is devoid of evidence which would indicate that the plants, properly weighed, would have
weighed more than 100 pounds. Having failed to meet its burden, and having failed to
preserve the evidence, the state should not be allowed to benefit from its error. Sparks v.
State, 104 Nev. 316, 319, 759 P.2d 180, 182 (1988). We therefore reverse the trafficking
conviction.
II
Sessions was adjudged to be a habitual criminal and was sentenced to the maximum
penalty of life without the possibility of parole. NRS 207.010(2). The determination of
habitual criminality was based on a 1959 Texas conviction for theft of property valued at over
fifty dollars, a 1963 California conviction for grand theft, and a 1965 California conviction
for escape without the use of force. We hold that this determination constitutes an abuse of
discretion and warrants reversal of the habitual criminality conviction.
Pursuant to NRS 207.010(4), the trial judge has discretion to dismiss counts brought under
the habitual criminal statute. The purpose of this section is to permit dismissal 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. French v.
State, 98 Nev. 235, 237, 645 P.2d 440, 441 (1982).
Sessions maintains that because the prior convictions in support of the habitual criminal
charge were all well over twenty years old, they are too stale to support his conviction.
years old, they are too stale to support his conviction. He persuasively argues that because
these convictions are so remote, the district court abused its discretion.
The state points out that the statute contains no time limits, and invites this court to uphold
the conviction based on Curry v. Slansky, 637 F.Supp. 947, 951-52 (D.Nev. 1986), in which
the federal district court determined that a prior conviction which was nearly twenty years old
was not too remote to be used to enhance a conviction under the habitual criminality statute.
We decline the state's invitation.
[Headnotes 5, 6]
This court is not bound to follow a decision of the federal district court regarding Nevada
law. See State v. Smith, 99 Nev. 806, 810, 672 P.2d 631, 634 (1983). Moreover, Curry is
distinguishable. In Curry, the convictions used to support a finding of habitual criminality at
the time ranged from nineteen years old to only eight years old, and some involved violent
crimes. Curry, 637 F.Supp. at 951. In this case, the convictions used to support the finding of
habitual criminality ranged from twenty-three to nearly thirty years old, and were for
non-violent crimes. Our habitual criminality statute exists to enable the criminal justice
system to deal determinedly with career criminals who pose a serious threat to public safety.
See Odoms v. State, 102 Nev. 27, 32-33, 714 P.2d 568, 571-72 (1986). Sessions' past
conduct, though reprehensible, simply does not warrant the harsh sanction available under the
habitual criminality statute.
Under the circumstances, it was an abuse of discretion for the district court to adjudge
Sessions a habitual criminal and to impose the maximum sentence. Surely a case involving
crimes less violent and more stale than presented here would be hard to find; hence, the
adjudication of habitual criminality in this case serves neither the purposes of the statute nor
the interests of justice. French, 98 Nev. at 237, 645 P.2d at 441. We therefore reverse.
In light of the above, we need not discuss Sessions' other assignments of error.
Accordingly, we affirm the conviction for possession and reverse the convictions for
trafficking and habitual criminality.
____________
106 Nev. 192, 192 (1990) Stinnett v. State
PATRICK FITZGERALD STINNETT, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 20132
March 27, 1990 789 P.2d 579
Appeal from a judgment of conviction of possession of a controlled substance with the
intent to sell. Eighth Judicial District Court, Clark County; Jack Lehman, Judge.
Following reversal of suppression order and of grant of habeas corpus, 760 P.2d 124,
defendant was convicted in the district court of possession of a controlled substance with the
intent to sell. Defendant appealed. The Supreme Court held that: (1) defendant's past
complaints of harassment against the arresting officer, on file with the police internal affairs
department, were relevant to his defense where they could show bias by the arresting officer,
whose testimony constituted almost all of the State's evidence against the defendant; (2)
defendant's actual complaints would not be cumulative evidence where the only other
evidence of the complaints was defendant's testimony which the State had substantially
refuted when the officer remembered only one prior complaint; and (3) defendant's
demonstrated, specific need for his own complaints of harassment to show bias of the
arresting officer prevailed over any interests the internal affairs department had in keeping the
complaints confidential.
Morgan D. Harris, Public Defender, and Craig F. Jorgenson, Deputy Public Defender,
Las Vegas, for Appellant.
Tufteland and Daniel Seaton, Deputy District Attorneys, Las Vegas, for Respondent.
In prosecution for possession of a controlled substance with the intent to sell, defendant's past complaints of harassment filed with
the police internal affairs department against the police officer who arrested him were relevant to his defense where they could show
bias on part of the arresting officer, whose testimony constituted almost all of the State's evidence against defendant and conflicted
with defendant's testimony as to the events leading up to the arrest. NRS 48.015.
2. Criminal Law.
The actual complaints of harassment against the arresting officer by defendant filed with police internal affairs department were
not cumulative evidence where the only other evidence of the complaints was defendant's own testimony, which the State substantially
refuted when the officer remembered only one prior complaint and where the actual complaints would have
corroborated defendant's testimony and bolstered his credibility.
the officer remembered only one prior complaint and where the actual complaints would have corroborated defendant's testimony and
bolstered his credibility.
3. Criminal Law.
Defendant's demonstrated, specific need for the prior complaints of harassment that he had filed against the arresting officer with
police internal affairs department, to show that the officer was biased against him, prevailed over the State's generalized interest in
confidentiality based on a claim of executive privilege; thus, defendant was entitled to access to release of the complaints.
4. Criminal Law.
The defendant was prejudiced by the court's protective order preventing him from obtaining his complaints of harassment against
the arresting officer, filed with police internal affairs department, where the major issue in the case was whether defendant or officer
was telling the truth and where the jury might have believed the defendant's story had it seen the prior complaints he had filed against
the officer.
OPINION
Per Curiam:
Appellant Patrick Stinnett (Stinnett) was convicted of possession of a controlled substance
with the intent to sell and sentenced to ten years in prison. Stinnett appeals, contending that
the district court erred in issuing a protective order preventing him from obtaining the
complaints he had made in the past against the police officer who arrested him. We agree.
FACTS
Stinnett was charged with possession of a controlled substance with the intent to sell. He
maintained that he did not possess the cocaine but that his old adversary, Officer Kallas
(Kallas), was falsely implicating him in the drug possession. Before trial, Stinnett issued a
subpoena duces tecum to the Internal Affairs Department of the Las Vegas Metropolitan
Police Department (LVMPD) requesting the production of all complaints he had filed against
Officer Kallas of the LVMPD from 1985 until 1988.
1
The LVMPD asked the court for a
protective order on the grounds that Stinnett's complaints were protected by executive
privilege. The court issued a protective order, holding that Stinnett's complaints to the
Internal Affairs Department concerning Kallas were not relevant. Stinnett made a continuing
objection to the protective order.
On January 23, 1989, Stinnett was tried before a jury for possession of a controlled
substance with the intent to sell.
__________

1
Kallas was the police officer who arrested Stinnett. He was also the State's major witness against Stinnett.
possession of a controlled substance with the intent to sell. Kallas and Stinnett gave
conflicting testimony concerning what had occurred on the night of Stinnett's arrest.
Kallas testified that on April 29, 1987, around 5:00 p.m., he was driving with his partner in
a marked police car through a high crime district of Las Vegas. Kallas observed four males
huddled together in front of an abandoned house. One of the males ran when he saw Kallas'
patrol car. Kallas ran after him.
Kallas further testified that while chasing the suspect he noticed that someone had kicked
in the back door of an abandoned house. Kallas claims that he entered the house and found
Stinnett crouched down in a closet with his hands between his legs. Kallas recognized
Stinnett as someone he had arrested before and told him to stand up so that he could handcuff
him. Kallas testified that Stinnett stood up, spun around, put his hands to his shoulders, and
ran out the door. Kallas ran after Stinnett and tackled him outside of the house. A struggle
ensued. Another police officer helped Kallas subdue Stinnett.
Kallas arrested Stinnett for prowling, vagrancy, and resisting arrest. He then returned to
the closet where he had apprehended Stinnett. Kallas found two ziplock bags containing rock
cocaine on the shelf above where Stinnett had been crouching.
Stinnett testified that on April 29, 1987, at about 5:00 p.m., he went out to buy some food.
He observed a patrol car with two individuals in it stopped nearby. Stinnett spoke briefly with
some people who were standing at the steps of an abandoned house. As he walked away from
the abandoned house Officer Kallas struck him on the back and said I told you to stop.
Kallas and Stinnett fought for approximately five minutes until a fellow officer helped Kallas
subdue Stinnett. Stinnett claims that Kallas handcuffed him and then began beating him on
the way to the patrol car. Once inside, the officers failed to give Stinnett his Miranda
warnings and continued to beat him.
Stinnett testified that Kallas left the patrol car. When he returned Kallas informed Stinnett
that he was arresting him for prowling, vagrancy, and resisting arrest. Stinnett claims that he
did not know that he was charged with possession of a controlled substance with the intent to
sell until after he had reached the detention center. He asserted that he never went into the
abandoned building and possessed no drugs that evening.
On January 25, 1989, Stinnett was found guilty in a jury trial of possession of a controlled
substance with the intent to sell. He was sentenced to ten years in prison.
DISCUSSION
[Headnote 1]
The district court held that Stinnett's past complaints against Kallas were not relevant.
Kallas were not relevant. We disagree. Relevant evidence pursuant to NRS 48.015 means
any 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 that it would be without the evidence.
Stinnett's past complaints against Kallas are relevant to his defense because these complaints
could show that Kallas was biased against Stinnett. Kallas' credibility is particularly
important to Stinnett's defense since Kallas was the State's major witness against Stinnett and
his testimony conflicts with Stinnett's testimony. Almost all of the State's evidence against
Stinnett comes from Kallas' testimony.
[Headnote 2]
The court concluded that Stinnett's own testimony that he had made complaints about
Kallas to the Internal Affairs Department of the LVMPD would show that Kallas was biased
against him. Thus, the court reasoned, Stinnett's actual complaints would not help his
defense. We disagree. Stinnett testified that he made 12 complaints against Kallas in the past
to the Internal Affairs Department and that Kallas was intentionally harassing him. The State
substantially refuted Stinnett's claim of numerous prior complaints when an officer
remembered only one prior complaint from Stinnett against Kallas. Evidence of numerous
complaints would have supported Stinnett's testimony thereby enhancing his claim of
fabricated evidence, but he was not permitted access to this corroborating evidence.
Additionally, this supporting evidence was important because Stinnett's credibility when he
testified was challenged by the receipt of evidence of his prior felonies.
[Headnote 3]
The State contends that executive privilege enables it to keep Stinnett's complaints
confidential. It insists that the Internal Affairs Department's need for confidentiality
outweighs Stinnett's interest in proving that he filed complaints against Kallas. We disagree.
In United States v. Nixon, 418 U.S. 683 (1973), the court held that the interest of a criminal
defendant in obtaining relevant evidence for use in his trial outweighed the need for
conversations of the President of the United States to remain privileged. Specifically, the
court said:
We conclude that when the ground for asserting privilege as to subpoenaed materials
sought for use in a criminal trial is based only on the generalized interest in
confidentiality, it cannot prevail over the fundamental demands of due process of law in
the fair administration of criminal justice. The generalized assertion of a privilege must
yield to the demonstrated, specific need for evidence in a pending criminal trial.
Nixon, 418 U.S. at 713.
Stinnett has demonstrated a specific need for the complaints he made against Kallas to
show that Kallas was biased against him. The State has demonstrated only a generalized
interest in confidentiality.
Additionally, we note that Stinnett asked only for the complaints he himself made to the
Internal Affairs Department concerning Kallas. He did not demand that the Internal Affairs
Department release any other information. In fact, Stinnett would have been satisfied if the
State would have stipulated to the fact that he had made 12 complaints against Kallas in the
past. Therefore, we hold that Stinnett's need for his own complaints against Kallas to assist
him in his defense outweighs any interest the Internal Affairs Department has in keeping
these complaints confidential.
[Headnote 4]
Finally, we hold that the court committed prejudicial error by issuing a protective order
preventing Stinnett from obtaining his complaints. The major issue in this case was whether
Stinnett or Kallas was telling the truth. The jury might have believed Stinnett's story had it
seen the complaints he had filed against Kallas.
2
In any event, a defendant must be permitted
to present all relevant evidence in his behalf.
Stinnett's remaining contentions lack merit.
For the foregoing reasons, we reverse Stinnett's conviction for possession of a controlled
substance with the intent to sell and remand this matter to the district court for a new trial.
__________

2
Obviously, we do not suggest or infer by this opinion that Officer Kallas is to any degree untrustworthy.
____________
106 Nev. 197, 197 (1990) C.S.A.A. v. District Court
CALIFORNIA STATE AUTOMOBILE ASSOCIATION INTER-INSURANCE BUREAU, a
Reciprocal Inter-Insurance Exchange Organized Under the Law of the State of
California, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK AND THE
HONORABLE MIRIAM SHEARING, DISTRICT JUDGE, DEPARTMENT XV
THEREOF, Respondents, and LORY JIMENEZ, Real Party in Interest.
No. 20184
March 27, 1990 788 P.2d 1367
Original petition for a writ of prohibition or, in the alternative, for a writ of mandamus.
Eighth Judicial District Court, Clark County; Miriam Shearing, Judge.
Underinsured motorist insurer filed petition for writ of prohibition or, in the alternative,
for writ of mandamus, challenging order of the district court compelling insurer to produce its
insurance claim file in connection with action seeking benefits and alleging that insurer
withheld those benefits in bad faith. The Supreme Court held that insurer's generalized
assertion that attorney-client privilege and work product doctrine protected claim file from
disclosure in underlying action failed to demonstrate that intervention by way of
extraordinary writ was warranted.
Writ denied.
Beckley, Singleton, DeLanoy, Jemison & List, and Daniel F. Polsenberg, Las Vegas, for
Petitioner.
Howard J. Needham, Las Vegas, for Respondents.
1. Mandamus; Prohibition.
Underinsured motorist insurer's generalized assertion that attorney-client privilege and work product doctrine protected claim file
from disclosure in insured's action to recover benefits and alleging bad faith failed to demonstrate that Supreme Court's intervention by
way of extraordinary writ of prohibition on mandamus preventing production of claim file was warranted; insurer did not specifically
raise issues of work product protection and attorney-client privilege in underlying action and, thus, district court had been given no
opportunity to make findings of fact respecting whether claim file was prepared at request of attorney or at express direction of
insured's counsel. NRCP 26(b)(3).
2. Prohibition.
Question of whether insured was required to litigate question of coverage before bringing bad faith claim against underinsured
motorist insurer was for district court in insured's underlying action and was not for the Supreme Court in
insurer's prohibition action given that insurer had filed no motion to sever claims in underlying action.
insurer was for district court in insured's underlying action and was not for the Supreme Court in insurer's prohibition action given that
insurer had filed no motion to sever claims in underlying action. NRCP 42(b).
OPINION
Per Curiam:
This petition for a writ of prohibition or, in the alternative, for a writ of mandamus
challenges an order of the district court compelling petitioner to produce its insurance claim
file in connection with an action seeking underinsured motorist benefits and alleging that
petitioner withheld those benefits in bad faith.
Real party in interest Jimenez had underinsured motorist coverage through petitioner
California State Automobile Association (CSAA) when she was in a car accident in May
1985. Jimenez received $15,000 for bodily injury from the other driver's insurer and $7,200
in medical payments from CSAA. She subsequently submitted a claim to CSAA for
additional benefits under the terms of her underinsured motorist policy. CSAA denied the
claim, believing that Jimenez had already received adequate compensation and because its
independent medical evaluation found no symptoms of injuries.
Jimenez filed a complaint against CSAA alleging that she was entitled to these additional
benefits and that CSAA had denied her claim in bad faith. During initial discovery, Jimenez
requested CSAA's claim adjustment file on her case. CSAA objected to the request on the
basis that discovery of the file for the bad faith claim was improper before resolution of
Jimenez' claim of entitlement to benefits. Jimenez filed a motion to compel production.
Following a hearing on May 1, 1989, Judge Shearing granted the motion and ordered CSAA
to produce the file. The instant petition, challenging Judge Shearing's order, followed.
[Headnote 1]
The propriety of this court's intervention by way of extraordinary writ turns on whether the
claim file constitutes privileged information. See Clark County Liquor v. Clark, 102 Nev.
654, 659, 730 P.2d 443, 447 (1986). Petitioner contends that an insurance claim file consists
of documents prepared in anticipation of litigation and is therefore protected from disclosure
under NRCP 26(b)(3). Petitioner further contends that a claim file reflects the mental
impressions and legal theories of the attorney for the insurer and is therefore protected from
disclosure under the attorney-client privilege. See NRS 49.095.
Jimenez maintains, on the other hand, that the insurance claim file was not prepared in
anticipation of litigation and is not protected by NRCP 26{b){3).
protected by NRCP 26(b)(3). Jimenez also notes that, other than petitioner's general
contention that a claim file is protected by the attorney-client privilege, CSAA does not
specifically assert that it seeks to protect privileged attorney-client communications.
Preliminarily, we note that in its opposition to Jimenez' motion to compel, CSAA did not
expressly assert that the file was protected from disclosure under the doctrines of work
product protection or attorney-client privilege. Moreover, we recently held that the materials
resulting from an insurance company's investigation are not made in anticipation of
litigation' unless the insurer's investigation has been performed at the request of an attorney.
Ballard v. Eighth Judicial District Court, 106 Nev. 83, 787 P.2d 406 (1990). In Ballard, we
further held that the attorney-client privilege applies to insurers only when the statement is
taken by the insurer at the express direction of counsel for the insured.
Because petitioner did not specifically raise the issues of work product protection and
attorney-client privilege below, the district court has been accorded no opportunity to make
findings of fact respecting whether the claim file was prepared at the request of an attorney
or at the express direction of counsel for the insured. When disputed factual issues are
critical in demonstrating the propriety of extraordinary relief, those factual issues should be
resolved in the first instance in the district court. See Round Hill Gen. Imp. Dist. v. Newman,
97 Nev. 601, 637 P.2d 534 (181). Accordingly, we conclude that petitioner's generalized
assertion of the applicability of these doctrines fails to demonstrate that this court's
intervention by way of extraordinary writ is warranted at this time.
[Headnote 2]
Petitioner also contends that the claim file is only relevant to Jimenez' claim for bad faith.
Petitioner contends that where, as here, a claimant alleges entitlement to benefits under her
policy, as well as a bad faith denial of those benefits, she must first demonstrate that she is
indeed entitled to coverage. Petitioner notes that courts in some jurisdictions have severed the
contract (entitlement) claim from the bad faith claim and required that the contract claim be
tried first.
Under NRCP 42(b), a district court, in the exercise of its sound discretion, may order a
separate trial of any claim to further convenience or avoid prejudice. In the present case,
however, petitioner filed no motion to sever pursuant to NRCP 42(b) in the proceedings
below. Nor did petitioner specifically raise the question of bifurcation in its opposition to the
motion to compel. In our view, such factual questions of judicial convenience and prejudice
should also be resolved in the first instance in the district court.
the district court. See Round Hill Gen. Imp. Dist., supra. Further, under the circumstances,
petitioner has failed to demonstrate that the district court acted arbitrarily or capriciously in
the exercise of its discretion. See Collier v. Legakes, 98 Nev. 307, 310-11, 646 P.2d 1219,
1221 (1982). Accordingly, we deny the petition.
____________
106 Nev. 200, 200 (1990) Sheriff v. Cortopassi
SHERIFF, CLARK COUNTY, NEVADA, JOHN T. MORAN, Appellant, v. KURT
ROBERT CORTOPASSI, FRANK JOSEPH BENINCASA, and HIRAN PUJOL,
Respondents.
No. 20259
March 27, 1990 789 P.2d 582
Appeal from order granting a pretrial petition for writ of habeas corpus. Eighth Judicial
District Court, Clark County; Jack Lehman, Judge.
Following their indictment for narcotics-related offenses, defendants filed pretrial petition
for writ of habeas corpus. The district court granted petition, and state appealed. The Supreme
Court held that: (1) criminalist's affidavit was admissible before grand jury to establish
weight of narcotics in question, and (2) statute governing admissibility of contents of
intercepted oral and wire communications was not applicable to grand jury proceedings.
Rex Bell, District Attorney, Clark County, for Appellant.
John Momot, Jr., Las Vegas, for Respondent Cortopassi.
Dominic Gentile, Las Vegas, for Respondent Benincasa.
Vincent Savarese, Las Vegas, for Respondent Pujol.
1. Grand Jury.
Statute establishing circumstances under which affidavit is admissible to establish weight of controlled substance is not applicable
to grand jury proceedings. NRS 50.315.
2. Grand Jury.
Affidavit of criminalist was admissible before grand jury to establish weight of controlled substance. NRS 172.135.
3. Grand Jury.
Statute pursuant to which contents of intercepted wire or oral communication are not admissible unless copy of court order and
accompanying application under which interception was authorized has been furnished does not apply to grand jury proceedings. NRS
179.500.
OPINION
Per Curiam:
On January 12, 1989, the Clark County grand jury returned indictments against
respondents for conspiracy to sell cocaine and trafficking in cocaine. NRS 453.3395(3),
453.401 and 453.321. Alleging, inter alia, that the state failed to properly establish the weight
of the cocaine before the grand jury and that the indictments were based on unlawfully
disclosed oral and wire communications, respondents filed in the district court a pretrial
petition for a writ of habeas corpus. On June 1, 1989, the district court granted respondents'
petition. This appeal followed.
[Headnote 1]
The district court concluded that the state failed to establish properly the weight of the
cocaine before the grand jury. Relying on NRS 50.315, the district court concluded that the
weight of a controlled substance cannot be established before the grand jury by affidavit.
1

At the time of appellant's indictment, however, NRS 50.315 applied only in an
administrative proceeding or in a criminal trial in the district court in any county in the
district or a preliminary examination or trial in any justice's or municipal court in any county
in the district. The statute was inapplicable to grand jury proceedings. The district court
therefore erred in concluding that this statute was controlling.
[Headnote 2]
Under NRS 172.135, an expert's affidavit is admissible before the grand jury in lieu of his
personal testimony or deposition.2 The affidavit of criminalist Minoru Aoki was therefore
admissible to establish the weight of the cocaine in this case.
__________

1
NRS 50.315 provided in part:
1. Whenever any person has qualified in the district court of any county as an expert witness to testify
regarding . . . the identity of a controlled substance alleged to have been in the possession of a person, the
expert's affidavit is admissible in evidence in an administrative proceeding or in a criminal trial in the
district court in any county in the district or a preliminary examination or trial in any justice's or
municipal court in any county in the district to prove the identity of the person from whom the affiant
received the blood or urine or purported controlled substance for analysis and the amount of alcohol or
the presence or absence of a controlled substance, chemical, poison or organic solvent, as the case may
be.
the grand jury in lieu of his personal testimony or deposition.
2
The affidavit of criminalist
Minoru Aoki was therefore admissible to establish the weight of the cocaine in this case.
[Headnote 3]
The district court further held that the indictment was based on unlawful disclosures of
oral and wire communications in violation of NRS 179.410 through NRS 179.525. The
district court apparently accepted respondent's claim that because the grand jury hearing
was not furnished with a copy of the court order and accompanying application under which
the interception was authorized, and a transcript was not provided, the evidence was
inadmissible under NRS 179.500.
3
This was error.
The legislature limited NRS 179.500 to any trial, hearing or other proceeding in any court
of this state. Grand jury proceedings are not included. Thus, the district court erred when it
applied NRS 179.500 to a grand jury proceeding. See McKay v. Bd. of Supervisors, 102 Nev.
644, 648, 730 P.2d 438, 441 (1986) (where a statute is clear on its face, a court may not go
beyond the language of the statute in determining the intent of the legislature).
Based on the foregoing, we reverse the district court's order granting respondents' pretrial
petition for a writ of habeas corpus, and we remand this case to the district court for further
proceedings.
__________

2
NRS 172.135 provides in pertinent part:
1. In the investigation of a charge, for the purpose of either presentment or indictment, the grand jury
can receive no other evidence than such as is given by witnesses produced and sworn before them or
furnished by legal documentary evidence or by the deposition of witnesses taken as provided in this Title,
except that the grand jury may receive an affidavit from an expert witness or other person described in
NRS 50.315 in lieu of his personal testimony or deposition.

3
NRS 179.500 provides:
The contents of any intercepted wire or oral communication or evidence derived therefrom shall not
be received in evidence or otherwise disclosed in any trial, hearing or other proceeding in any court of
this state unless each party, not less than 10 days before the trial, hearing or proceeding, has been
furnished with a copy of the court order and accompanying application under which the interception was
authorized and a transcript of any communication intercepted. Such 10-day period may be waived by the
judge if he finds that it was not possible to furnish the party with such information 10 days before the
trial, hearing or proceeding and that the party will not be prejudiced by the delay in receiving such
information.
____________
106 Nev. 203, 203 (1990) McKay v. City of Las Vegas
BRIAN McKAY, ATTORNEY GENERAL OF THE STATE OF NEVADA, Appellant, v.
CITY OF LAS VEGAS and SEYMORE H. BROWN, NANCY A. BECKER, TOY
R. GREGORY and STEPHEN C. WEBSTER, JUDGES OF THE LAS VEGAS
MUNICIPAL COURT, CLARK COUNTY, NEVADA, Respondents.
No. 19491
March 27, 1990 789 P.2d 584
Appeal from the district court's decision in a declaratory relief action and from the district
court's denial of injunctive relief. Eighth Judicial District Court, Clark County; Stephen L.
Huffaker, Judge.
The state brought declaratory judgment action requesting determination as to whether
municipal courts may declare a state statute unconstitutional and whether statute requiring
courts to collect an assessment against guilty misdemeanor defendants based upon the amount
of their fine is unconstitutional. The district court held that municipal courts may declare state
statutes unconstitutional; that the statute was unconstitutional; and that the statute was a tax
statute. The state appealed. The Supreme Court held that: (1) the statute creating the
municipal courts does not give them authority to declare a state statute unconstitutional; (2)
statutory scheme whereby courts are required to collect assessment against guilty
misdemeanor defendants which increases with the amount of their fines and which earmarks
the amounts assessed in excess of the first $10 for general law enforcement purposes as
opposed to court operations or improvement is a reasonable assessment and not a tax and is
not unconstitutional.
Reversed.
Brian McKay, Attorney General; Scott W. Doyle, Deputy Attorney General, Carson City,
for Appellant.
George Ogilvie, Jr., City Attorney; Emmett Lally, Deputy City Attorney, Las Vegas, for
Respondents.
1. Courts.
The statute creating municipal courts does not give municipal courts authority to declare a state statute unconstitutional. NRS
5.050; Const. art. 6, 1.
2. Constitutional Law; Costs.
Statutory scheme whereby courts are required to collect an assessment against guilty misdemeanor defendants in an amount that
increases with the amount of their fine and which earmarks part of proceeds from assessments for general law enforcement purposes as
opposed to court administration is a reasonable assessment and not a tax, and thus is not an improper
delegation of taxing authority.
administration is a reasonable assessment and not a tax, and thus is not an improper delegation of taxing authority. NRS 176.059.
The Supreme Court would not decide matter which was not litigated or decided by the lower court.
OPINION
Per Curiam:
Brian McKay, Attorney General of the State of Nevada (State), appeals from a district
court decision holding: (1) that municipal judges have the power to declare state statutes
unconstitutional; (2) that NRS 176.059 is a tax statute; and (3) that part of NRS 176.059
which requires courts to collect an assessment against guilty criminal defendants based on the
amount of their fine is unconstitutional. The City of Las Vegas (City) and the judges of the
municipal courts of Las Vegas are the respondents in this case. We hold that the district court
erred in holding that municipal judges may declare a statute to be unconstitutional and also in
holding that NRS 176.059 is unconstitutional. Therefore, we reverse.
FACTS
In 1983, the legislature enacted NRS 176.059 which provided for imposition, collection,
and distribution of $10.00 as an administrative assessment against defendants who were
found guilty of a misdemeanor. The legislature amended NRS 176.059 in 1985 and again in
1987. The 1987 amendment changed the administrative assessment from one that was fixed
at $10.00 to an amount that increased as the amount of the defendant's fine increased. The
1987 amendment also directed that the money collected on each assessment in excess of $10
must be paid to the state's general fund and used for specifically stated law enforcement
education and improvements.
On February 2, 1988, Municipal Court Judge Nancy Becker, in response to a motion from
a defendant, declared the sliding scale assessment established by the 1987 amendment to
NRS 176.059 to be unconstitutional because it violated the procedural and substantive due
process provisions of the Nevada and United States Constitutions, as well as the doctrine of
separation of powers. Judge Becker also declared that the new assessments were a tax which
treated members of the same class in different fashions and hence violated Article 4, Sections
20 and 21 of the Nevada Constitution.
On February 4, 1988, the Las Vegas Municipal Court Judges issued an order incorporating
Judge Becker's opinion and announcing that they would not enforce the amendments to
NRS 176.059 which were enacted in 19S7.
announcing that they would not enforce the amendments to NRS 176.059 which were enacted
in 1987. The State then obtained a temporary restraining order and a preliminary injunction
preventing the judges from implementing their order.
The district court held a hearing on the merits of the State's case in June of 1988. The court
held that: (1) a municipal judge has the power to declare a state statute unconstitutional; (2)
NRS 176.059 is a tax statute and therefore it unconstitutionally delegates to the judges the job
of collecting taxes in violation of the separation of powers doctrine; and (3) that NRS
176.059 impairs the judiciary's ability to make a fair decision. The district court thus denied
the injunctive relief asked for by the State.
LEGAL DISCUSSION
The first issue presented is whether the district court erred in holding that municipal courts
have the authority to declare a state statute to be unconstitutional. The Nevada Constitution
art. 6, 1 provides:
Judicial power vested in the court system. The Judicial power of this State shall be
vested in a court system, comprising a Supreme Court, District Courts, and Justices of
the Peace. The Legislature may also establish, as part of the system, Courts for
municipal purposes only in incorporated cities and towns.
(Emphasis added.)
[Headnote 1]
A court which is the creation of statute has only the authority given to it by the statute.
Kell v. State, 96 Nev. 791, 792-793, 618 P.2d 350 (1980). Jurisdiction is not given by
implication. A. B. Paul & Co. v. W. H. Beegan, et al., 1 Nev. 327, 330 (1865). NRS 5.050
defines the limits of the jurisdiction of municipal courts and does not empower them to
declare a state law unconstitutional. We hold therefore that since NRS 5.050 does not give
municipal courts the power to declare a statute unconstitutional they have no such power.
Hence, the district court erred in holding that a municipal court judge may declare a state
statute unconstitutional.
The second issue presented is whether the district court erred in holding that NRS 176.059
is a tax statute because the revenues generated from it go not only to support the costs of
prosecuting the case but to other programs as well. The court further held that, as a tax
statute, NRS 176.059 violates the doctrine of separation of powers because it forces judges to
perform executive functions. We disagree.
[Headnote 2]
This court has already reviewed NRS 176.059, when it imposed a flat fee for misdemeanor
or ordinance violations, to determine whether a district court order compelling the use of
some revenues for court improvement was proper. Bd. of Cty. Comm'rs v. White, 102 Nev.
587, 729 P.2d 1347, 1350 (1986). At that time, we rejected a challenge to the statute that
claimed it was unlawful and unworkable. We summarized the thrust of the former version of
NRS 176.059 as follows:
The foregoing analysis distills into two basic conclusions: (1) the assessment fee
provides a source of funds for court improvement and capital acquisitions which is in
addition to general fund allotments necessary to fund the annual operation budgets of
the courts; and (2) such monies earmarked for, but unused by, the court system during
each fiscal year are transmuted into general fund monies available for use by the
accountable government agency as it sees fit. Such funds are not to be accumulated
from year to year for the exclusive use of the courts.
Id. at 591.
The statute challenged by the City is the same as the one we analyzed in White except that
we now have a sliding scale surcharge instead of a flat fee and the portion of the assessment
in excess of $10 is to be spent for law enforcement purposes. In White we held directly or by
implication that the basic statutory scheme used in NRS 176.059 was not an improper
delegation of the taxing authority nor a general revenue measure. That scheme included some
use of the funds raised for law enforcement. We do not believe that the addition of a sliding
scale changes our analysis in any material way or makes this statute unconstitutional. Similar
statutory schemes that contained a sliding scale assessment or surcharge have been upheld in
other states. See People v. Long, 210 Cal.Rptr. 745 (Cal.App. 1985); Hensley v. Peace
Officers Training Fund, 99 Cal.Rptr. 728 (Cal.App. 1972). Charging all misdemeanant or
ordinance violators a minimum fee, but more serious violators a slightly greater assessment is
not unreasonable. It obviously costs a certain amount of money to open a court file and
process it. Generally, the greater the offense the more time and effort will be used in
processing the case.
[Headnote 3]
Other state courts have held that statutes similar to NRS 176.059 are constitutional. In
these states the courts held that an assessment prescribed by the legislature but collected by
the courts will be presumed to be a reasonable assessment and not a tax if the funds are used
for broad judicial and law enforcement purposes.
purposes. See Broyles v. State, 688 S.W.2d 290 (Ark. 1985); State v. Champe, 373 So.2d 874
(Fla. 1978); State v. Young, 238 So.2d 589 (Fla. 1970); Davis v. State, 495 So.2d 928
(Fla.App. 1986). Although NRS 176.059 requires the first $10 of every assessment to be
disbursed to the courts, the remainder of each assessment is to be spent for general law
enforcement purposes. Earmarking some funds for law enforcement purposes does not render
the statute unconstitutional. Consistent with the White decision, we hold that NRS 176.059 is
a reasonable assessment and not a tax.
Finally, we note that the district court ruled only on whether the amended version of NRS
176.059 was constitutional on its face. All parties seemed to agree with the limited scope of
the ruling. At the June 8, 1988, hearing the district court stated, with the apparent concurrence
of the parties:
My jurisdiction in this case is limited to certain matters: Declaratory judgment on
constitutionality or not in the statute. Whether the municipal court acted in excess of
their [sic] jurisdiction. . . . It does not go to the state doing or not doing what is
mandated under the statute so I don't have jurisdiction to do that.
On appeal the City now claims that the statute should be invalidated because the funds
collected are not being used primarily for court purposes. This claim was not litigated by the
parties, and the record contains no evidence of it except for one exhibit by which the City
attempts to show that some funds collected by the assessment are unaccounted for. This
exhibit is unauthenticated and unclear. Therefore, we decline to decide whether monies
collected from the surcharge are being used improperly because this matter was not litigated
or decided by the district court.
We have, however, unequivocally stated that the surcharge revenues are to be used
primarily for the improvement of the court system. In White this court held:
Nevertheless, since the Legislature created the assessment fee primarily to facilitate the
improvement of the court system from which the fees are generated, requests from
judicial officers for the expenditure of funds produced from that source must be viewed
as presumptively reasonable. The regulating, budgetary authority may, however,
withhold approval and disbursement of such requisitions upon a showing sufficient to
rebut the presumption of validity.
White, 102 Nev. at 592. Our holding in this case does nothing to diminish our holding in
White that revenues generated from the assessments of NRS 176.059 are to be used
primarily for court improvement and judicial capital acquisition.
assessments of NRS 176.059 are to be used primarily for court improvement and judicial
capital acquisition. This statutory scheme and surcharge may cause some problems in
budgeting and administering the funds. We have noted and still believe that such problems
can be solved by good faith cooperation between the branches of the government.
Accordingly, we find that: (1) municipal judges have no power to declare a state statute
unconstitutional; and (2) NRS 176.059 as amended in 1987 is constitutional. The district
court erred in determining otherwise. The judgment entered below is hereby reversed.
____________
106 Nev. 208, 208 (1990) Gier v. District Court
RICHARD GIER, Petitioner, v. THE NINTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF DOUGLAS, and the
HONORABLE NORMAN ROBISON, District Judge, Respondents, and THE
STATE OF NEVADA, Real Party in Interest.
No. 20693
LORI ANNE DOSS, Petitioner, v. THE NINTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF DOUGLAS, and the
HONORABLE NORMAN ROBISON, District Judge, Respondents, and THE
STATE OF NEVADA, Real Party in Interest.
No. 20703
March 27, 1990 789 P.2d 1245
Consolidated original petitions for writs of mandate or in the alternative, writs of
prohibition.
Defendants were indicted by grand jury for felonies. Defendants challenged the indictment
on numerous grounds including lack of notice of the opportunity to testify at the grand jury
proceedings and lack of jurisdiction. The district court reopened the grand jury proceedings
with notice to defendants of the right to testify. Defendants filed petitions for writ of mandate
or writ of prohibition, and grand jury issued superseding indictment. The Supreme Court held
that: (1) although the grand jury was primarily impaneled to investigate state affairs, it was
paneled pursuant to the statute which calls for the impanelment of grand juries generally and
its jurisdiction was not limited to state affairs only, and (2) the ruling by the Supreme Court
that, before grand jury can issue an indictment, the target of the proceedings is entitled to
reasonable notice of his or her opportunity to testify was a new rule of statutory
interpretation and was not constitutionally mandated, and thus applied only
prospectively.
can issue an indictment, the target of the proceedings is entitled to reasonable notice of his or
her opportunity to testify was a new rule of statutory interpretation and was not
constitutionally mandated, and thus applied only prospectively.
Petitions denied.
Sheerin, Walsh & Keele, Carson City; Nielsen & Walker, Carson City, for Petitioner Gier.
Thomas E. Perkins, Carson City, for Petitioner Doss.
Brent T. Kolvet, District Attorney, and Michael Gibbons, Deputy District Attorney,
Douglas County, for Respondents.
1. Grand Jury.
The specific limited purpose, to inquire into the case of any person imprisoned in the county jail on a criminal charge, set forth in
the order calling the grand jury was properly expanded to include criminal charges against persons not imprisoned in the county jail by
the charge given when the grand jury was actually selected at a later date.
2. Grand Jury.
Although the grand jury was primarily impaneled to investigate a state parks scandal, it was impaneled pursuant to statute which
calls for impanelment of grand juries generally rather than for specific purpose, and thus its jurisdiction was not limited to state affairs
only. NRS 6.120, 6.135, subd. 1.
3. Grand Jury.
Impanelment of a grand jury is within the power of the district court, which also has the power to expand the initial scope of a
grand jury. NRS 6.120.
4. Courts.
New rules of law announced by a court apply prospectively unless they are rules of constitutional law, and then they apply
retroactively only under certain circumstances.
5. Grand Jury.
The creation of grand juries is not constitutionally required.
6. Grand Jury.
There is no constitutional privilege to testify in one's own behalf before a grand jury.
7. Courts.
The new rules issued in Sheriff v. Marcum that, before grand jury can issue an indictment, reasonable notice must be given to the
target of the proceeding is not of constitutional dimension and was not dictated by any rule or precedent which existed at the time of
the decision, and thus applies only prospectively.
OPINION
Per Curiam:
On September 30, 1987, Connie Weiss, a convenience store clerk in Lake Tahoe, Nevada,
was robbed and stabbed to death.
clerk in Lake Tahoe, Nevada, was robbed and stabbed to death. Petitioners Richard Gier and
Lori Anne Doss were identified as suspects in the incident. On December 5, 1988, the district
court in Douglas County convened a grand jury. Although the grand jury's primary function
was to investigate an alleged scandal in the county parks department, it was charged with
investigating other criminal matters as well. The grand jury proceeded without notice to the
petitioners, and on October 26, 1989, it returned an indictment charging petitioners with
numerous felonies arising out of the Weiss incident. Petitioners were subsequently arrested in
Sacramento, California. Pleas of not guilty were entered on their behalf. Subsequently, the
state filed notice of its intention to seek the death penalty against Gier.
On December 20, 1989, we issued our opinion in Sheriff v. Marcum, 105 Nev. 824, 783
P.2d 1389 (1989), in which we held that before a grand jury can issue an indictment, the
target of the proceedings is entitled to reasonable notice of his or her opportunity to testify.
On December 21, 1989, Gier filed numerous challenges to the indictment. In addition to
challenging his lack of notice of the opportunity to testify at the grand jury proceedings,
Gier's motions maintained that the grand jury lacked jurisdiction to indict him and alleged
various abuses in the grand jury proceedings. Petitioner Doss moved to dismiss the
indictment on the grounds that the grand jury exceeded its jurisdiction in indicting her. The
portions of petitioners' motions which challenged the grand jury's jurisdiction were denied.
Their remaining contentions regarding alleged abuses in the grand jury proceedings are still
pending before the district court.
Apparently believing that the Marcum rule applied retroactively, the state requested that
respondent Ninth Judicial District Court Judge Norman C. Robison order the grand jury
proceedings reopened with notice to petitioners of their right to testify. Judge Robison
granted the state's request. He ordered the original grand jury reconvened, and petitioners
were notified of their right to testify. Gier objected to the new proceedings altogether, and
Doss declined to testify. On January 12, 1990, Gier filed the instant petition for a writ of
mandate or, in the alternative, a writ of prohibition. He also requested a stay which we
denied. On January 17, 1990, Doss filed the instant petition for a writ of mandamus, or in the
alternative, a writ of prohibition. We ordered the petitions consolidated.
The original grand jury reconvened on January 24, 1990, and considered the transcript of
the initial grand jury proceeding. It was informed that petitioners had declined the invitation
to testify, but was admonished that exercise of that right could not be held against them. The
grand jury then issued a superseding indictment which charged petitioners with the same
offenses as the original indictment.
indictment which charged petitioners with the same offenses as the original indictment.
As discussed more fully below, we find no improprieties in the grand jury proceedings and
hold that the rule of Marcum does not apply retroactively. We therefore deny the petitions.
The first issue raised by these petitions is whether the grand jury exceeded its jurisdiction
by acting outside the limited purpose for which it was impaneled. We hold that the grand jury
acted properly within its jurisdiction in indicting petitioners.
[Headnote 1]
On August 15, 1988, the district court in Douglas County impaneled a grand jury,
primarily to investigate an alleged scandal in the parks department. In addition to other
purposes not relevant to the instant petitions, the order calling the grand jury identified the
following specific limited purpose for impaneling the grand jury: To inquire into the case of
any person imprisoned in the Douglas County Jail on a criminal charge, against whom no
information or complaint has been filed, and no indictment found. Subsequently, the district
judge stated that at the time the court gave its initial charge on December 5, 1988, it advised
the Grand Jury that it may consider any criminal case that a prosecuting attorney brought to
it.
[Headnotes 2, 3]
Doss
1
argues that the grand jury exceeded its jurisdiction, as specifically limited in the
above order, in indicting her and Gier because they were not imprisoned in the Douglas
County Jail. This contention lacks merit. The specific limited purpose set forth in the August
15, 1988, order was properly expanded by the charge given when the grand jury was actually
selected on December 5, 1988. Although the grand jury was primarily impaneled to
investigate county affairs (the parks scandal), this court has held that NRS 6.135(1), which
authorizes the district court to impanel a grand jury solely to investigate state affairs upon the
request of the governor or the legislature, does not purport in any way to limit the powers of
a grand jury impaneled pursuant to NRS 6.110, NRS 6.120, NRS 6.130 or NRS 6.140.
Dickerson v. Grand Jury Washoe Co., 82 Nev. 113, 116, 412 P.2d 441, 443 (1966). In this
case, the grand jury was impaneled pursuant to NRS 6.120, the statute which calls for the
impanelment of grand juries generally, not NRS 6.135(1); thus, the fact that it was primarily
impaneled to investigate the parks scandal does not limit its jurisdiction to county affairs
only. Impanelment of a grand jury is within the power of the district court, NRS 6.120; it is
also within the district court's power to expand the initial scope if a grand jury.
__________

1
Although Gier does not raise this issue in the instant petition, he had raised it unsuccessfully below in a
motion to quash.
of a grand jury is within the power of the district court, NRS 6.120; it is also within the
district court's power to expand the initial scope of a grand jury. As this court has noted, the
district court's supervisory powers over the grand jury extend beyond those declared
specifically by statute. Lane v. District Court, 104 Nev. 427, 439, 760 P.2d 1245, 1253
(1988). Consequently, the grand jury had jurisdiction to indict petitioners, and the district
court had jurisdiction to hold them to answer.
The next issue raised by these petitions is whether Sheriff v. Marcum, 105 Nev. 824, 783
P.2d 1389 (1989) applies retroactively. We hold that it does not.
In Marcum, in interpreting two existing statutes, NRS 172.095(1)(d) and NRS 172.241,
2
we did not simply clarify an existing rule, we announced an altogether new rule. Although we
state that the statutes could be interpreted differently by reasonable people, and were
therefore ambiguous as to whether they required notice, we observed that both statutes are
silent regarding a defendant's right to have notice of the grand jury proceedings at which [the
defendant] may be indicted. Marcum, 105 Nev. at 826, 783 P.2d at 1390. Because the
statutes were silent regarding the notice requirement, the result in Marcum was not dictated
by any rule or precedent which existed at the time. Consequently, Marcum announced a new
rule of statutory interpretation. Cf. Heimrich v. State, 97 Nev. 358, 630 P.2d 1224 (1981).
[Headnotes 4-7]
New rules apply prospectively unless they are rules of constitutional law, and then they
apply retroactively only under certain circumstances. See Franklin v. State, 98 Nev. 266, 646
P.2d 543 (1982). Although Marcum announced a new rule, the rule was not of constitutional
dimensions. Marcum did not address a constitutional right because the creation of grand
juries is not constitutionally required. Moreover, even though NRS 172.241, one of the
statutes interpreted in Marcum, refers to the fifth amendment privilege against
self-incrimination, there is no constitutional privilege to testify on one's own behalf. Because
the notice required by NRS 172.095(1)(d) and NRS 172.241 is not constitutionally
mandated, the new rule announced by Marcum applies only prospectively.
__________

2
NRS 172.095(1)(d) provides that in its charge to the grand jury, the court shall [i]nform the grand jurors
that the failure of a person to exercise [the] right to testify as provided in NRS 172.241 must not be considered
in their decision of whether or not to return an indictment.
NRS 172.241 provides that: A person whose indictment the district attorney intends to seek or the grand
jury on its own motion intends to return, but who has not been subpenaed to appear before the grand jury, may
testify before the grand jury if [the person] requests to do so and executes a valid waiver in writing of [the]
constitutional privilege against self-incrimination.
constitutionally mandated, the new rule announced by Marcum applies only prospectively.
Because we hold that Marcum does not apply retroactively, it was not necessary that the
grand jury be reconvened. Therefore, we need not address petitioners' remaining contentions
regarding alleged errors in the court's order to reconvene the grand jury.
Accordingly, we order the petitions denied.
____________
106 Nev. 213, 213 (1990) Sheriff v. Keeney
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v. THOMAS ANDREW KEENEY,
Respondent.
No. 19288
April 19, 1990 791 P.2d 55
Appeal from an order of the district court granting a pretrial petition for a writ of habeas
corpus. Eighth Judicial District Court, Clark County; Stephen Huffaker, Judge.
State appealed from order of the district court granting defendant's pretrial petition for writ
of habeas corpus and dismissing second indictment returned by grand jury. The Supreme
Court held that: (1) prosecutor did not inappropriately argue evidence to grand jury or unduly
infer that additional evidence was available to support finding of probable cause, and (2)
prosecutor's remark to grand jury did not influence grand jury to return indictment based upon
defendant's exercise of his right to remain silent.
Rex Bell, District Attorney, and Daniel M. Seaton, Deputy District Attorney, Clark
County, for Appellant.
Joseph W. Houston, II, Las Vegas, for Respondent.
1. Grand Jury.
In assisting grand jury in proper performance of its function, prosecutor, although authorized to recite and explain the law, must
nevertheless scrupulously refrain from words or conduct that will invade province of grand jury.
2. Grand Jury.
Prosecutor did not inappropriately argue evidence to grand jury or unduly infer that additional evidence was available to support
finding of probable cause when he stated that other possible witnesses and additional evidence could be presented and gave explicit
examples of circumstantial evidence that could support finding of probable cause; prosecutor's comments were attempts to respond to
jurors' questions and to explain law, procedure and quantum of proof applicable to grand jury proceedings.
3. Grand Jury.
Grand jury may request advice and prosecutor is authorized to explain matters of law.
Even assuming prosecutor's alleged references to additional evidence and inferences that could be properly drawn from
circumstantial evidence to first grand jury may have invaded or manipulated first grand jury's deliberations, comments did not have
significant or prejudicial impact upon indictment returned by second grand jury which contained eleven members from first grand jury;
any concerns over prosecutor's remarks were obviated by substantial direct testimony and evidence respecting defendant's commission
of offense.
Prosecutor's remark to grand jury that state's invitation to defense counsel to present exculpatory evidence met with a negative
response did not influence grand jury to return indictment based upon defendant's exercise of his right to remain silent, where
prosecutor specifically advised grand jury that any such negative response could not be held against defendant and that defendant
was not required to prove anything. U.S.C.A.Const. Amend. 5; NRS 172.095, subd. 1(d).
6. Grand Jury.
Deputy district attorney's explanation about dismissal of indictment returned by first grand jury did not materially mislead second
grand jury or unduly interfere with its inquiry into existence of probable cause, although deputy district attorney allegedly misinformed
jurors that dismissal of first indictment was predicated upon no legal finding and that case was sent back to second grand jury to
read smoother on the record.
Where determination to dismiss initial indictment returned by grand jury without prejudice and with leave for state to reindict
remains unchallenged, and record reflects that initial grand jury proceeding was not compromised by governmental misconduct or
manipulation, mere participation of same grand jurors in subsequent proceeding does not establish that indictment was returned by
prejudiced grand jury.
OPINION
Per Curiam:
In separate proceedings below, district courts in two different departments of the Eighth
Judicial District dismissed successive indictments returned against respondent Thomas
Andrew Keeney by Clark County Grand Juries. The state appeals the order entered in
Department IX on June 7, 1988, granting Keeney's pretrial petition for a writ of habeas corpus
and dismissing the second indictment. For the reasons set forth below, we reverse and remand
this matter for trial.
FACTS
On July 23, 1987, a Clark County Grand Jury returned an indictment in Department XI of
the Eighth Judicial District Court accusing Thomas Andrew Keeney of one count of
attempted murder with the use of a deadly weapon, one count of mayhem, and two
counts of battery with the use of a deadly weapon.
accusing Thomas Andrew Keeney of one count of attempted murder with the use of a deadly
weapon, one count of mayhem, and two counts of battery with the use of a deadly weapon.
Thereafter, Keeney filed in the district court a pretrial petition for a writ of habeas corpus
challenging the indictment. The petition asserted numerous grounds for relief, including
allegations that prosecutorial misconduct occurred throughout the grand jury proceedings.
Following a hearing, District Judge Addeliar D. Guy entered an order on November 3, 1987,
granting Keeney's petition and dismissing the indictment. The record establishes, however,
that Judge Guy neither reached nor resolved Keeney's allegations of prosecutorial
misconduct. Rather, it is clear from the record that the judge issued the writ and dismissed the
initial indictment solely because the state had failed to alleviate his concerns about the
technical sufficiency of the true bill returned by the grand jury. See NRS 172.255. The record
also establishes that the judge specifically dismissed the indictment without prejudice and
with leave to the state to re-indict. Thus, implicitly, Judge Guy found that no defects in the
indictment were caused by the district attorney's willful failure to comply with or conscious
indifference to important procedural rules. See Mercado v. Sheriff, 94 Nev. 771, 587 P.2d
1327 (1978). Neither the state nor Keeney filed an appeal from Judge Guy's decision.
The district attorney then commenced new proceedings before a second grand jury. Eleven
of the grand jurors sitting on the second grand jury had previously served on the first grand
jury. The second panel again heard and considered eyewitness testimony and other evidence
which established probable cause to believe that, on May 30, 1987, Keeney accosted his wife
in the Uptown Bar in Las Vegas, Nevada, and severely slashed her across the face with a
razor sharp utility knife. Additionally, the grand jury heard from two other victims who
testified that they too were cut and slashed by Keeney in the bar that morning. The bar
owner's son also testified that, in the ensuing struggle to subdue Keeney, he witnessed a
patron of the bar retrieve the knife from Keeney's hand. The son obtained the knife from the
patron and later gave it to the police. The knife itself was introduced as evidence in the grand
jury proceeding. Subsequently, the grand jury returned an indictment accusing Keeney of the
identical criminal offenses charged in the first indictment. On February 26, 1988, the second
indictment was formally filed in Department IX of the Eighth Judicial District Court.
Keeney once again filed a pretrial petition for a writ of habeas corpus. The second petition
reasserted his allegations that prosecutorial misconduct improperly influenced the first grand
jury's deliberations. Additionally, Keeney alleged that the prior prosecutorial misconduct had
"fatally infected" the second grand jury's deliberations because eleven grand jurors had
served on both the first and second panels.
cutorial misconduct had fatally infected the second grand jury's deliberations because
eleven grand jurors had served on both the first and second panels.
On May 31, 1988, following a hearing, District Judge Stephen Huffaker ruled from the
bench that [t]here was prosecutorial misconduct the first time [the matter] was presented to
the grand jury, and that was overturned by another department in this court.
1
On June 7,
1988, Judge Huffaker entered a written order concluding that prosecutorial misconduct had
occurred before the grand jury and that the grand jury process had been tainted from the
beginning. . . . Accordingly, that order granted Keeney's petition and issued a writ
dismissing the second indictment.
2
The state now appeals.
DISCUSSION
Preliminarily, we observe that dismissal of an indictment on the basis of governmental
misconduct is an extreme sanction which should be infrequently utilized. See United States
v. Owen, 580 F.2d 365, 367 (9th Cir. 1978). Implicit in the decisions of most courts
addressing prosecutorial misconduct or basic unfairness that violates due process within
grand jury proceedings is the concept that substantial prejudice to the defendant must be
demonstrated before the province of the independent grand jury is invaded. See Buzbee v.
Donnelly, 634 P.2d 1244, 1255 (N.M. 1981). See also Russell v. United States, 369 U.S. 749
(1962); United States v. Birdman, 602 F.2d 547 (3d Cir. 1979), cert. denied, 444 U.S. 1032
(1980). In the federal system, although inherent supervisory authority arising from the
judiciary's responsibility to assure fairness in the processes of justice empowers the courts to
dismiss an indictment on the basis of governmental misconduct, the exercise of that
supervisory authority is more often referred to than invoked. See United States v. Baskes,
433 F.Supp. 799, 806 (N.D.Ill. 1977). Generally speaking, federal courts often decline to
utilize that authority in the absence of circumstances demonstrating substantial prejudice to
the accused or a compelling need to utilize dismissal as a prophylactic tool for discouraging
future deliberate governmental impropriety of a similar nature. Owen, 580 F.2d at 367-68.
__________

1
As noted above, however, our review of the record reveals that District Judge Guy neither reached nor
necessarily resolved the contentions respecting prosecutorial misconduct presented in Keeney's first petition.

2
We note that the order appealed from does not specifically indicate whether the district court intended to
dismiss the indictment with or without prejudice to the state's right to proceed anew. See generally, State v.
Babayan, 106 Nev. 155, 787 P.2d 805 (1990). Nor does it set forth specific findings of fact and expressly state
the district court's conclusions of law. See NRS 34.830 (after any determination on a habeas petition, the court
shall make specific findings and expressly state its conclusions.)
In Nevada, a similar rule obtains. We recently observed, for example, that at the state level
the dismissal of an indictment serves equally well to eliminate prejudice to a defendant and
to curb the prosecutorial excesses of a District Attorney or his staff. See State v. Babayan,
106 Nev. at 173, 787 P.2d at 818 (1990). In Babayan, we also acknowledged that dismissal
with prejudice is warranted when the evidence against a defendant is irrevocably tainted or
the defendant's case on the merits is prejudiced to the extent that notions of due process and
fundamental fairness would preclude reindictment.' Id. (citing United States v. Lawson, 502
F.Supp. 158, 172 (D.Md. 1980)). With these general observations in mind, we turn to an
analysis of Keeney's specific allegations of governmental impropriety.
As noted, Keeney contended below that the second indictment should be set aside because
eleven grand jurors had been previously misled and prejudiced by prosecutorial misconduct
that invaded the independent province of the first grand jury. Specifically, Keeney
complained that, although the prosecutor continually advised the first grand jury that he could
not personally give evidence or argue the evidence, the prosecutor did in fact argue the
evidence and, in the process, improperly stated his personal views and the opinions of the
District Attorney's Office regarding what that evidence established. Further, Keeney asserted,
the prosecutor improperly implied that more possible witnesses and additional evidence could
be presented establishing probable cause to indict.
Our review of the transcript reveals, however, that the prosecutor did not gratuitously offer
the challenged comments; rather, his remarks came in response to insistent questioning from
jurors curious about the presentation of circumstantial evidence and indirect testimony
respecting Keeney's alleged use of a deadly weapon.
3
For example, one juror asked what
the thinking of the District Attorney's Office was on why they didn't have more
eyewitnesses appear before the grand jury. When the prosecutor cautioned, I'm not allowed
to either present evidence to you or to comment on the evidence, the juror nonetheless
insisted on knowing why [the prosecutor] did not bring in more eyewitnesses for us. In
response, the prosecutor explained: At trial, we bring in every conceivable witness we have
in a case.
__________

3
The first grand jury heard little direct evidence of the weapon that was allegedly used in the attacks. In
essence, the state only presented somewhat uncertain testimony, as well as photographs of the victims' wounds,
as evidence from which the jury might infer probable cause to believe that Kenney used a deadly weapon. As
noted above, however, in the second grand jury proceeding, an eyewitness testified that he personally observed
another individual remove a utility knife from Keeney's hand, and that he personally turned it over to the police
when they arrived at the scene. Further, the knife itself was presented as evidence for the jury's consideration in
the second proceeding.
At trial, we bring in every conceivable witness we have in a case. At a probable cause
determination we bring in what evidence we think ahead of time will be enough to let
you make a determination on probable cause.
Further, the prosecutor stated, it was our thought as we began to present the case that
photographs depicting the cuts inflicted on the victims would be sufficient to establish
probable cause to believe that a deadly weapon had been used in the attacks. In the same
breath, however, the prosecutor appropriately advised the grand jury, but if you want us to
explore the question of the [utility knife] that was recovered more by bringing in [additional
witnesses], then like I say, we'll be glad to do that. We're not trying to hide anything here. At
another point, again in response to a juror's question, the prosecutor provided the jurors with
explicit examples of circumstantial evidence that could support a finding of probable cause
respecting the use of a deadly weapon. Again, however, the prosecutor emphasized that he
was not arguing to you what you should or should not find. Rather, he stated, he was
merely attempting to convey that probable cause might be appropriately inferred from
circumstantial evidence.
[Headnotes 1-3]
In assisting the grand jury in the proper performance of its function, a prosecutor, although
authorized to recite and explain the law, must nevertheless scrupulously refrain from words or
conduct that will invade the province of the grand jury. See Franklin v. State, 89 Nev. 382,
513 P.2d 1252 (1973). See also Sheriff v. Frank, 103 Nev. 160, 734 P.2d 1241 (1987) (citing
United States v. Dionisio, 410 U.S. 1, 16-17 (1973)). In our view, the prosecutor's statements
in this instance did not manipulate the grand jury or invade its exclusive independent
province. Rather, the comments were simply straightforward attempts to respond truthfully to
the jurors' questions and to explain the law, procedure and quantum of proof applicable to
grand jury proceedings. Our cases clearly establish that the grand jury may request advice and
that the prosecutor is authorized to explain matter of law. See Phillips v. Sheriff, 93 Nev. 309,
565 P.2d 330 (1977); Franklin v. State, 89 Nev. at 386, 513 P.2d at 1255. Further, the
prosecutor correctly and repeatedly advised the jurors that he was there to assist them in their
inquiry and that, at their direction, he would attempt to obtain any further evidence they
deemed appropriate. Under these circumstances, and when his remarks are considered in their
proper context, we are not persuaded the prosecutor inappropriately argued the evidence to
the grand jury or unduly inferred that additional evidence was available supporting a finding
of probable cause. Thus, we conclude that no impairment of or interference with the
independent investigation and judgment of the grand jury resulted from the prosecutor's
explanations.
investigation and judgment of the grand jury resulted from the prosecutor's explanations.
[Headnote 4]
Additionally, we note that most of the first grand jury's questions evidently emanated from
the fact that only circumstantial rather than direct evidence had been presented concerning
Keeney's alleged use of a deadly weapon. In the second grand jury proceeding, however, any
concerns over the prosecutor's prior alleged references to additional evidence and the
inferences that could be properly drawn from circumstantial evidence were obviated by
substantial direct testimony and evidence respecting Keeney's possession of a utility knife.
Therefore, even assuming that the prosecutor's remarks may have invaded or manipulated the
first grand jury's deliberations, his comments were ultimately of no significant or prejudicial
import. See, e.g., United States v. Bruzgo, 373 F.2d 383 (3rd Cir. 1967) (where no claim was
made that evidence before the grand jury was insufficient to support indictment and the votes
of the grand jurors were not necessarily based on bias created by prosecutor's remarks causing
the jury to hiss a witness, the court found no defect of constitutional or legal proportions).
Contrary to the allegations in Keeney's petition below, therefore, we conclude that the
prosecutor's comments were ultimately innocuous, and neither inflamed the first grand jury,
nor fatally infected the subsequent grand jury's deliberations.
[Headnote 5]
Keeney further complained below that the prosecutor misinformed the first grand jury that
the state's invitation to defense counsel to present exculpatory evidence to the grand jury met
with a negative response. Rather than negatively responding to the state's invitation, Keeney
maintained, his counsel simply made no response whatsoever. Thus, Keeney argued, the
prosecutor's comment was not only inaccurate and misleading, but it was extremely
prejudicial and violative of the prosecutor's duty to refrain from commenting on an accused's
exercise of his right to remain silent. We disagree.
Even assuming that the comment in question inaccurately characterized defense counsel's
response, we note that there is no indication in the record that the prosecutor intentionally
sought to mislead or manipulate the grand jury. Further, the prosecutor specifically and
correctly advised the grand jury that any such negative response should not be held against
the defendant and that Keeney was not required to prove anything.
4
Consequently, was
conclude, the prosecutor's remarks did not influence the grand jury to return an
indictment based upon Keeney's exercise of his right to remain silent.
__________

4
Additionally, we note that, pursuant to NRS 172.095(1)(d), the district court presumably instructed the
grand jurors at the time they were impaneled
was conclude, the prosecutor's remarks did not influence the grand jury to return an
indictment based upon Keeney's exercise of his right to remain silent.
[Headnote 6]
Keeney also complained below that remarks of the deputy district attorney at the outset of
the second grand jury proceeding misinformed the jurors that Judge Guy's dismissal of the
first indictment was predicated upon no legal finding, and that the judge sent the case back
to the grand jury simply because he wanted it to go smoother, to read smoother on the
record. A more detailed and accurate account would have explained that Judge Guy
dismissed the first indictment because the Office of the District Attorney did not timely
comply with the judge's order commanding clarification of the indictment by way of a
re-ballot or a new vote restating which offenses, if any, were to be true-billed. Nonetheless, in
the context of the proceedings, we are not persuaded that the deputy district attorney's
superficial explanation materially misled the grand jury or unduly interfered with its function
to inquire into the existence of probable cause. Nor was Keeney prejudiced in any manner.
Thus, we conclude, this allegation of misconduct is also insufficient to warrant dismissal of
the indictment.
[Headnote 7]
Lastly, we observe that the initial indictment against Keeney was dismissed without
prejudice and with leave for the state to re-indict. Where, as here, such a determination
remains unchallenged, and the record reflects that the initial grand jury proceeding was not
compromised by governmental misconduct or manipulation, the mere participation of the
same grand jurors in a subsequent proceeding does not establish that an indictment was
returned by a prejudiced grand jury. See Bonnenfant v. State, 86 Nev. 393, 396, 469 P.2d 401,
403 (1970) (where an indictment is returned by the same grand jury that previously
considered the identical criminal charges, a court need no longer be concerned whether the
indictment was returned by a prejudiced' grand jury since the evidence may be reviewed to
determine legal sufficiency). See also Mercado v. Sheriff, 94 Nev. at 772, 587 P.2d at
1328-29 (1978).
A review of this record establishes that, quite apart from any allegations of bias resulting
from the alleged prosecutorial misconduct, substantial competent evidence was presented to
the grand jury establishing probable cause to indict.
5
See United States v. Riccobene, 451
F.2d 5S6 {3rd Cir. 1971) {where an abundance of competent evidence supported a finding
of probable cause, governmental misconduct did not invalidate the indictment because
the votes of the grand jurors were not necessarily based on bias resulting from the
governmental improprieties); see also United States v. Bruzgo, 373 F.2d 3S3 {3rd Cir.
__________
that the failure of a person to exercise his right to testify . . . must not be considered in their decision of whether
or not to return an indictment.

5
Notably, Keeney's second petition did not challenge the sufficiency of the evidence supporting the grand
jury's probable cause determination.
States v. Riccobene, 451 F.2d 586 (3rd Cir. 1971) (where an abundance of competent
evidence supported a finding of probable cause, governmental misconduct did not invalidate
the indictment because the votes of the grand jurors were not necessarily based on bias
resulting from the governmental improprieties); see also United States v. Bruzgo, 373 F.2d
383 (3rd Cir. 1967). Of course, at this stage of the proceedings, we express no opinion
respecting Keeney's ultimate guilt or innocence. We emphasize, however, that the record
quite clearly reveals that both grand juries heard more than adequate, admissible evidence
supporting a finding of probable cause that the charged crimes had been committed and that
Keeney committed them. See NRS 172.155; Franklin v. State, 89 Nev. at 387, 513 P.2d at
1256 (the legal efficacy of an indictment will be sustained if there has been presented to the
grand jury the slightest sufficient legal evidence and best in degree even though inadmissible
evidence may also have been adduced. . . .); Robertson v. State, 84 Nev. 559, 445 P.2d 352
(1968).
CONCLUSION
In light of the abundant competent evidence supporting the finding of probable cause to
indict, we conclude that no governmental misconduct unfairly manipulated or invaded the
independent province of the grand jury. Further, the record establishes no prejudice to
Keeney's case on the merits, nor any evidentiary taintirrevocable or otherwise. Thus,
dismissal of the indictment either with or without prejudice to the state's right to proceed
anew constitutes reversible error. Accordingly, we reverse the order of the district court
granting Keeney's petition for a writ of habeas corpus, and we remand this matter for trial on
the criminal counts charged in the grand jury's indictment.
____________
106 Nev. 221, 221 (1990) Binder v. Levy Realty Company
SYLVIA BINDER, aka SYLVIA KEMPER, SHOOTING STAR, INC., a Nevada
Corporation, dba CLUB SIMONE DE PARIS, CLUB JOY OF PARIS, Appellants, v.
LEVY REALTY COMPANY, a Nevada Corporation, Respondent.
No. 18950
April 19, 1990 790 P.2d 497
Appeal from a judgment of the district court awarding a broker's commission to
respondent. Sixth Judicial District Court, Humboldt County; Jerry V. Sullivan, Judge.
Real estate broker sought payment of commission. The district court found that broker
was procuring cause of sale and entitled to commission.
court found that broker was procuring cause of sale and entitled to commission. Appeal was
taken. The Supreme Court held that broker, at most, was responsible for mere introduction of
sellers to eventual buyer, which introduction contributed only indirectly to sale, and, thus,
broker was not entitled to commission.
Reversed.
Hamilton & Lynch, Reno, for Appellants.
Robert M. Apple, Las Vegas, for Respondent.
1. Brokers.
In order for real estate agent to be entitled to commission, agent must prove that employment contract existed and that agent was
procuring cause of sale.
2. Brokers.
Real estate broker, at best proved mere introduction of sellers to eventual buyer, which introduction contributed only indirectly to
sale, and, thus, broker was not procuring cause of sale and not entitled to commission.
OPINION
Per Curiam:
Sitting without a jury, the district court found there was an oral contract and/or implied
contract between appellants and respondent and that respondent was the procuring cause for
the sale of three brothels in Winnemucca, Nevada. Accordingly, the district court held that
respondent was owed a real estate broker's commission for the sale. On appeal, appellants
argue respondent was not the procuring cause of the sale. We agree.
FACTS
In 1983, appellants, Sylvia Binder and her business associate Jack Thomas (aka Jack
Quisler), were attempting to sell three brothels in Winnemucca, Nevada. In early 1983,
Thomas met with Victor Vartanian, a real estate agent for respondent Levy Realty Company.
Thomas told Vartanian to contact him if Vartanian knew of a potential buyer.
In September of 1983, Vartanian contacted Binder and Thomas to notify them he had
potential buyers for the brothels and initially requested they send him a written listing
agreement. Vartanian, Binder and Thomas instead agreed to use a written form contract
labelled SELLER/BROKER CONTRACT in place of a listing agreement. The contract would
list the names of the potential buyers. If these buyers purchased the brothels within a certain
time, respondent would receive a seven percent sales commission.
commission. Relying on Binder's and Thomas's word they would send Vartanian a signed
contract, Vartanian gave Binder and Thomas the names of the buyers. Shortly thereafter,
Vartanian received the contract with the potential buyers' names. Later, these potential buyers
lost interest in the sale and did not view the properties or make an offer.
Subsequently, Vartanian registered three new potential buyers. These persons also lost
interest and did not view the properties or make an offer.
On October 14 or 15 of 1983, Vartanian was told that John Lowther, an insurance
underwriter and investment advisor, might have clients interested in buying the brothels. A
phone conversation followed between the two men. The contents of that conversation are
disputed.
The district court found that during this conversation, Vartanian told Lowther that he was
a realtor with clients who wanted to sell some brothels. Vartanian states he did not give the
names or locations of the brothels in this initial conversation. According to Lowther,
Vartanian told him about the properties in Winnemucca and gave him the name Jack to
call, with a telephone number. After hanging up, Lowther asserts he jokingly told a Paulette
Goetz about buying three cat houses in Winnemucca . . . for tax shelters. Goetz was in
Mike Laviant's office, an associate of Lowther's. Lowther insists Goetz and Laviant already
knew the brothels were for sale. Each of the brothels was sold to a separate, limited
partnership; Goetz was a general partner in all three of the limited partnerships.
On October 28, 1983, Lowther called Vartanian. The contents of that conversation are also
disputed. The district court found as follows:
Lowther called Vartanian and told [Vartanian] of prospective buyers with whom he
could meet the next morning. The prospective buyers names were Paulette Goetz and
Harold Gewerter. . . . Vartanian contacted Thomas and Binder by phone to register
Goetz and Gewerter on the usual, identical Seller/Broker form contract. Vartanian
asked that the prospective buyers' names be filled in on the usual form, initialed by
Binder and mailed to Levy. Vartanian gave Lowther's phone number to Seller [Binder],
called Lowther and gave him Binder's phone number. Vartanian asked to meet Goetz
and Gewerter at the morning meeting, but Lowther declined to have Vartanian at the
meeting.
Vartanian testified that Lowther called requesting information for a meeting the next day
with Goetz and Gewerter. Vartanian maintains this was the first time he heard Goetz's or
Gewerter's names.
names. He then called Binder and Thomas requesting another contract to register Goetz and
Gewerter as prospective buyers. Vartanian declares Binder and Thomas told him they would
register the names and send back a contract. Vartanian also adds he told Binder and Thomas
that Goetz and Gewerter wanted to look at the property in the next day or two. Vartanian
states he then called Lowther and said [Binder and Thomas] approved of my giving them
[Goetz and Gewerter] the listing package they requested and also names and telephone
numbers that the potential buyers could call for their request to view and inspect the
businesses. . . . Vartanian insists he first gave Binder's and Thomas's names and phone
numbers to Lowther in this second phone conversation. Though Vartanian requested to meet
with Goetz and Gewerter, Lowther told Vartanian the meeting was personal and it was not
necessary that Vartanian attend. At Lowther's request, Vartanian delivered the listing package
to Lowther's office before the next day's meeting.
Lowther's account of the October 28, 1983, conversation and related events differs from
Vartanian's. His version is as follows: Goetz called him because she had forgotten or could
not remember Vartanian's name. She wanted any information about the brothels that Lowther
could obtain from Vartanian. Lowther then called Vartanian and asked if Vartanian could
send copies of his information on the brothels. Lowther admits he mentioned Goetz's name
and some names of others who were possibly interested. Lowther does not remember giving
Gewerter's name to Vartanian. Lowther states Vartanian gave [Lowther] two phone numbers
. . . and said that if [Lowther] knew anybody that was interested, to call this guy Jack in
Winnemucca. Vartanian then dropped off the brothel information packet at Lowther's office.
Lowther does not recall if he merely showed the information to Goetz or gave her a copy.
Lowther adds he never discussed a referral fee with Vartanian.
When Goetz and Gewerter went to Winnemucca, they denied they were represented by
Vartanian or respondent. As a result, appellants refused to register Goetz and Gewerter as
buyers procured by Vartanian. As noted, the brothels were sold to the three limited
partnerships with Goetz as general partner in each.
After the sale, respondent successfully brought suit to recover the seven percent sales
commission. This appeal followed.
DISCUSSION
Appellants argue the district court erred in determining that respondent was the procuring
cause of the sale.
[Headnote 1]
This contention has merit. In Nevada, before a real estate agent is entitled to a
commission, the real estate agent must prove {1) that an employment contract existed
and {2) that he or she is the procuring cause of the sale."
agent is entitled to a commission, the real estate agent must prove (1) that an employment
contract existed and (2) that he or she is the procuring cause of the sale. Morrow v. Barger,
103 Nev. 247, 250, 737 P.2d 1153, 1154 (1987); Shell Oil Company v. Ed Hoppe Realty,
Inc., 91 Nev. 576, 580, 540 P.2d 107, 109-110 (1975). Because we hold as a matter of law
that respondent was not the procuring cause of the sale, whether an employment contract
existed between appellants and respondent is irrelevant.
[Headnote 2]
This court shall not disturb the factual findings of the district court sitting without a jury if
those findings are supported by substantial evidence. Larson v. B.R. Enterprises, 104 Nev.
252, 254, 757 P.2d 354, 356 (1988) (citation omitted). Here, because the factual findings of
the district court are supported by substantial evidence, we will not disturb them. However,
these particular factual findings do not in turn support the legal conclusion that respondent
was the procuring cause of the sale. Accordingly, we reverse the judgment of the district
court.
Respondent has not met its burden of proof by showing conduct that is more than merely
trifling. Morrow, 103 Nev. at 253, 737 P.2d at 1156, quoting Schneider v. Biglieri, 94 Nev.
426, 427, 581 P.2d 8, 9 (1978). At trial, it was established that Vartanian never met or spoke
to Goetz before the sale. In addition, Vartanian did not show the brothels to Goetz.
Furthermore, he was not involved in any of the negotiations for the sale. Finally, though
Vartanian testified he dropped off a listing package about the brothels at Lowther's office, he
did not withhold this information or insist on his presence at the meeting with Goetz and
Gewerter to insure his role as broker for the sale. At best, respondent's conduct, through its
agent Vartanian, was a mere introduction of the sellers to the eventual buyer, Goetz. Morrow,
103 Nev. at 253, 737 P.2d at 1156. This introduction only contribute[d] indirectly or
incidentally to the sale. Id. Thus, respondent has not set in motion a chain of events which,
without break in their continuity, cause[d] the buyer and seller to come to terms as the
proximate result of his or her peculiar activities. Id. at 253, 737 P.2d at 1157.
For the foregoing reasons, we therefore reverse the judgment of the district court.
____________
106 Nev. 226, 226 (1990) Las Vegas Metro. Police Dep't v. Moyes
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, Appellant v. RONALD R.
MOYES, Respondent.
No. 20204
April 19, 1990 790 P.2d 999
Appeal from an order of the district court granting respondent's petition for writ of
mandamus. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Police sergeant sought writ of mandamus to compel civil service board to hear grievances
concerning transfer and suspension. The district court granted petition. Police department
appealed. The Supreme Court held that board was required to hear both matters in single
proceeding.
Affirmed.
Rex A. Bell, District Attorney, and Mary-Anne Miller, Deputy District Attorney, Clark
Greenman, Goldberg & Raby, Las Vegas, for Respondent.
1. Administrative Law and Procedure; Municipal Corporations.
Civil service board was required to conduct single proceeding for police sergeant's related grievances requesting transfer to day
shift and reversal of forty-hour suspension; in proceedings before board on transfer grievance, police department alluded to
communication problem which was part of basis of suspension; sergeant claimed that he was transferred due to disciplinary reasons;
and sergeant's amendment to notice of appeal specifically referred to suspension.
When decision of administrative body is challenged, function of Supreme Court is identical to that of district court, that is, to
review evidence presented to administrative agency and to ascertain whether agency arbitrarily or capriciously abused discretion.
3. Administrative Law and Procedure; Municipal Corporations.
Civil service rule which requires notices and complaints to specify with particularity matters and things in issue did not prohibit
police sergeant's amendment of appeal from civil service department's denial of grievances.
OPINION
Per Curiam:
On November 11, 1988, respondent Ronald R. Moyes, a sergeant with the Las Vegas
Metropolitan Police Department (the Department), failed to respond to several attempts by
his co-workers to contact him while he was working his shift. After an investigation, the
Department suspended Moyes for forty hours. Prior to this incident, the Department received
several complaints about Moyes' supervising abilities.
complaints about Moyes' supervising abilities. On November 14, 1988, the Department
assigned Moyes to another shift where he could be more closely directed in his supervisory
duties.
On November 22, 1988, Moyes filed two separate grievances requesting separate
remedies. In his first grievance, Moyes requested a transfer back to the day shift with Friday,
Saturday, and Sunday off. In Moyes' second grievance, he requested reversal of the forty-hour
suspension.
On December 12, 1988, the Department denied both of Moyes' grievances. On December
22, 1988, Moyes filed a Notice of Appeal, which stated in pertinent part: this appeal is
based on an earlier violation of the labor agreement concerning seniority as it relates to
scheduled days off. Although the Civil Service Rules do not have a provision for amending a
notice of appeal, on January 6, 1989, Moyes filed an Amended Notice of Appeal. In this
amended notice, Moyes stated that this appeal is based on an earlier violation of the labor
agreement concerning seniority as it relates to scheduled days off and disciplinary action
taken against him [Moyes]. (Emphasis added.)
On February 15, 1989, at the appeal hearing, the Civil Service Board (the Board) refused
to allow Moyes to introduce evidence regarding the forty-hour suspension. Moyes then filed a
petition for writ of mandamus in the district court to compel the Board to hear both
grievances.
1
On May 16, 1989, the district court granted Moyes' petition and ordered the
Board to hear the merits of Moyes' appeal from the Department's denial of both grievances.
This appeal from the district court's decision followed.
[Headnote 1]
The Department first contends that the district court erred because Moyes never filed a
notice of appeal from the Department's denial of his grievance regarding the forty-hour
suspension. We disagree.
[Headnote 2]
Initially, we note that when a decision of an administrative body is challenged, the
function of this court is identical to that of the district court, that is, to review the evidence
presented to the administrative agency and ascertain whether the agency arbitrarily or
capriciously abused its discretion. Gandy v. State ex rel. Div. Investigation, 96 Nev. 281, 282,
607 P.2d 581, 582 (1980); NRS 233B.140. In the proceedings before the Board, the
Department alluded to the communication problem, part of the basis of Moyes' suspension.
2
Furthermore, during the same proceeding Moyes claimed that he was transferred due to
"disciplinary reasons."
__________

1
The Civil Service Board was named as respondent, and the Department then intervened in the action.
Moyes claimed that he was transferred due to disciplinary reasons. We also note that
Moyes' amendment to the notice of appeal specifically referred to his suspension. Under these
circumstances, the two grievances were necessarily interrelated in time and subject matter.
Accordingly, we conclude that the district court correctly determined that the Board acted
arbitrarily and capriciously, thus abusing its discretion by refusing to hear both of the matters
in a single proceeding.
[Headnote 3]
The Department next asserts that Moyes abandoned his right to appeal the forty-hour
suspension by his failure to follow the applicable Civil Service Rules. The Department relies
on Civil Service Board Rule 1040.3, which provides in pertinent part that [a]ll notices and
complaints shall specify with particularity the matters and things in issue and shall not
include charges or implied charges phrased generally or in the words of the Rules. This
contention lacks merit.
Rule 1040.3 does not prohibit amendments. Nor is there any evidence that the City
Council intended this Rule to prohibit amendments to grievances. Under these circumstances,
we conclude that Moyes' amendment was permissible.
The Department further contends that it was materially misled by Moyes' failure to
properly designate the issues on appeal, because it prepared its case without including the
suspension issue. The Department asserts that since the Board acted within its discretion in
determining that Moyes had not perfected his appeal on the suspension issue, the district
court erred in mandating a different decision. See, e.g., Houston Gen. Ins. Co. v. District
Court, 94 Nev. 247, 578 P.2d 750 (1978). We disagree.
In Forman v. Eagle Thrifty Drugs & Market, 89 Nev. 533, 536, 516 P.2d 1234, 1236
(1973), this court noted that a defective notice of appeal should not warrant dismissal where
the intention to appeal from a specific judgment may be reasonably inferred from the text of
the notice and where the defect has not materially misled the respondent.
3
Assuming
arguendo that Moyes' notice was defective, Moyes' intention to appeal is evident from the
text of his amended notice of appeal. The notice specifically refers to the disciplinary action.
See Forman, 89 Nev. at 536, 516 P.2d at 1236.
__________

2
This occurred during the receivability hearing, where the Civil Service Board determined that there is a
factual dispute warranting an appeals hearing.

3
The Forman court reasoned that the filing of a simple notice of appeal was intended to take the place of
more complicated procedures to obtain review and the notice should not be used as a technical trap for the
unwary draftsman. Id. at 536, 516 P.2d at 1236.
1236. Additionally, we conclude that the Department was not misled. The Department
received Moyes' amended complaint approximately two weeks before the appeal hearing. As
discussed earlier, Moyes raised the suspension issue during the initial proceeding before the
Board, over three weeks prior to the appeal hearing. Therefore, the Department had ample
time to address the suspension issue.
Accordingly, we affirm the order of the district court directing the Civil Service Board to
hear both grievance appeals in one hearing.
____________
106 Nev. 229, 229 (1990) Duro v. State Bar of Nevada
DONNA DURO, Petitioner, v. STATE BAR OF NEVADA, Respondent, and EARL T.
AYERS, and EFFIE BALINT, Real Parties in Interest.
No. 20953
April 19, 1990 790 P.2d 500
Original petition seeking release of records and documents relating to attorney discipline
proceedings.
Petitioner sought release of record on appeal and related letters of complaint concerning
disciplinary proceedings of suspended attorney. The Supreme Court held that: (1) petitioner
was not entitled to related letters or transcripts or documents comprising record made and
considered by disciplinary panel before filing its conclusions, and (2) petitioner did not show
sufficient cause to warrant court to exercise inherent supervisory authority and direct release
of otherwise confidential materials.
Petition granted in part and denied in part.
Lamond R. Mills, Las Vegas, for Petitioner.
John Howe, Bar Counsel, Las Vegas, for Respondent State Bar of Nevada.
Edward J. Achrem, Las Vegas, for Real Party in Interest, Effie Balint.
Earl T. Ayers, Las Vegas.
1. Records.
Disciplinary proceedings involving allegations of misconduct by attorney are confidential until disciplinary agency files
recommendation for imposition of public discipline. SCR 121.
2. Records.
Petitioner seeking access to record on appeal and related letters of complaint in disciplinary proceedings involving suspended
attorney was entitled only to access to formal written findings, conclusions, and recommendation of panel that public discipline be
imposed and to matters constituting formal record of any subsequent proceedings; related letters of informal complaint contained in
files remained confidential and were not subject to disclosure. SCR 121.
3. Records.
Petitioner seeking confidential materials related to attorney discipline did not demonstrate sufficient cause to warrant exercise of
Supreme Court's inherent supervisory authority to release confidential materials. SCR 121.
OPINION
Per Curiam:
The original petition seeks an order of this court directing the State Bar of Nevada to
release to petitioner, Donna Duro, the record on appeal and related letters of complaint in
disciplinary proceedings involving suspended attorney Earl T. Ayers. See Ayers v. State Bar,
Order of Suspension No. 19473, filed December 30, 1988. Petitioner asserts that the
documents are necessary to her defense in a civil action presently pending against her in the
Eighth Judicial District Court, Clark County.
[Headnotes 1, 2]
Petitioner first contends that she is entitled to access to the documents in question under
SCR 121
1
. Under SCR 121, however, all disciplinary proceedings involving allegations of
misconduct by an attorney are confidential until the disciplinary agency files a
recommendation for the imposition of public discipline in this court.
__________

1
SCR 121 provides:
Unless otherwise ordered by the supreme court or the board of governors, all proceedings involving
allegations of misconduct by or the disability of an attorney shall be kept confidential until a
recommendation for the imposition of public discipline is filed with the supreme court, or the
respondent-attorney requests that the matter be made public, or the investigation is predicated upon a
conviction of the respondent-attorney for a crime, or in matters involving alleged disability, this court
enters an order transferring the respondent-attorney to disability inactive status pursuant to Rule 118. All
participants in a proceeding, including anyone connected with it, shall conduct themselves so as to
maintain the confidentiality of the proceeding.
This rule shall not deny access to relevant information to authorized agencies investigating the
qualifications of judicial candidates, or to other jurisdictions investigating qualifications for admission to
practice, or to law enforcement agencies investigating qualifications for government employment. In
addition, the appropriate disciplinary board shall transmit to the National Discipline Data Bank
maintained by the American Bar Association notice of all public discipline imposed by the supreme court
on an attorney or the transfer to inactive status due to disability of an attorney.
conduct by an attorney are confidential until the disciplinary agency files a recommendation
for the imposition of public discipline in this court. Thus, unless this court otherwise orders,
all matters comprising the record made and considered by the disciplinary panel of the state
bar remain confidential. Upon the filing of a recommendation of the panel for the imposition
of public discipline in this court, the formal records of the subsequent proceedings occurring
in this court are thereafter open to the public and are a matter of public record in the absence
of an order of this court directing otherwise. Consequently, we conclude, petitioner is only
entitled under SCR 121 to access to the formal written findings, conclusions, and
recommendation of the disciplinary panel that public discipline be imposed upon attorney
Ayers, and to any matters constituting the formal record of this court's subsequent
proceedings. Related letters of informal complaint contained in the files of the state bar, or
any transcripts and other documents that may comprise the record made and considered by
the disciplinary panel prior to the date that the panel's findings, conclusions and
recommendation were filed in this court, remain confidential and are not subject to
disclosure.
[Headnote 3]
Additionally, petitioner suggests that this court should exercise its inherent supervisory
authority over matters related to attorney discipline so as to direct the release of otherwise
confidential materials relating to the disciplinary proceedings in issue. We are not persuaded,
however, that petitioner has demonstrated sufficient cause warranting our exercise of that
authority at this time. Accordingly, the instant petition is granted in part and denied in part.
Upon petitioner's request, the clerk of this court or bar counsel for the State Bar of Nevada
may release to petitioner any documents not considered confidential pursuant to the views
expressed above.
____________
106 Nev. 231, 231 (1990) Malmquist v. Malmquist
KENNETH W. MALMQUIST, Appellant, v. NANCY MALMQUIST, Respondent.
No. 19173
April 24, 1990 792 P.2d 372
Appeal from judgment and decree of divorce dividing appellant's and respondent's
property. Second Judicial District Court, Washoe County; Robert L. Schouweiler, Judge.
The district court entered judgment and decree of divorce. Husband appealed. The
Supreme Court, Rose, J., held that: (1) modified version of Moore apportionment should
have governed determination of separate and community property interest in parties'
residence; {2) appreciation was to be handled separately, and generally as a matter of
reimbursement; and {3) trial court did not abuse its discretion in requiring husband to pay
entire credit line debt, in ordering husband to pay maximum level of child support and to
continue to pay mortgage on residence, which was set aside for childrens' benefit, or in
valuing business good will.
modified version of Moore apportionment should have governed determination of separate
and community property interest in parties' residence; (2) appreciation was to be handled
separately, and generally as a matter of reimbursement; and (3) trial court did not abuse its
discretion in requiring husband to pay entire credit line debt, in ordering husband to pay
maximum level of child support and to continue to pay mortgage on residence, which was set
aside for childrens' benefit, or in valuing business good will.
Affirmed in part; reversed in part; remanded with instructions.
[Rehearing denied October 24, 1990]
Paul W. Freitag, Sparks, for Appellant.
McDonald and Petroni, Reno, for Respondent.
1. Husband and Wife.
Neither community nor separate property should receive credit for entire outstanding mortgage balance in apportioning community
and separate property shares in appreciation of separate property residence obtained with separate property loan prior to marriage; after
apportioning community and separate interest according to ratio that mortgage principal reduction attributable to community property
payments bears to original purchase price, credit for outstanding loan balance should be divided according to number of monthly
payments made by separate or community property.
Formula for determining separate property (SP) interest in total home equity including appreciation is SP = (PD + (PD + OL)
PP) x A, where PD equals pay down attributable to separate property, in other words, reduction in mortgage principal due to separate
property payments, plus separation property down payment, if any; OL equals portion of outstanding loan to be credited to separate
property; PP equals contract purchase price of residence; and A equals appreciation of residence.
Formula for determining community property (CP) interest in total for home equity, including appreciation, is CP = (PD + (PD +
OL) PP) x A, where PD equals pay down attributable to community property, in other words reduction in mortgage principal due to
community property mortgage payments, plus community property down payment, if any; OL equals portion of outstanding loan to be
credited to community property; PP equals contract purchase price of residence; and A equals appreciation of residence.
In apportioning community and separate property shares in appreciation of residence, court should consider all routine mortgage
payments made after separation, up to time of final division at trial; if residence is set aside for benefit of children, the court should
give spouse making routine separate property mortgage payments credit under formula for determining separate property and
community property interest in total home equity until such time as residence is actually sold or divided.
In apportioning community and separate property shares in appreciation of separate property residence obtained with separate
property loan prior to marriage, trial court erred in including as part of purchase price money paid by husband to purchase a former
wife's interest in property, since purchase price should have included only contract purchase price; court also erred in including as part
of purchase price cost of improvements made to property; question of improvements should be considered separately from question of
apportionment of appreciation.
6. Divorce.
When residence will be divided at future date because one spouse and children are awarded temporary possession of residence,
court should ideally attempt to award spouse who loses possession of house other community assets to offset that spouse's interest in
house; otherwise, issue of apportioning respective interests in house at time in future when residence is actually divided must be
addressed, requiring recalculation of respective interests of community and separate property in appreciation of separate property
residence by reapplying modified formula based on appreciation of house at time house is finally divided.
One owner of separate property funds commingles these funds with community funds, owner assumes burden of rebutting
presumption that all funds in account are community property.
Husband failed to sustain his burden of tracing money used for greenhouse improvement on residence to his separate property;
although stipulation established that husband's separate property was deposited into joint account and that greenhouse was paid for
from joint account, record did not establish when money was deposited or withdrawn for greenhouse improvement or balance in joint
account at relevant times; moreover, money in joint account was commingled, and stipulation concerning deposit of separate property
funds into joint account was insufficient to refute commingling.
Community property improvements to separate property do not themselves become separate property.
Simple reimbursement of cost is generally appropriate manner for handling community property improvements to separate
property residence without credit for any appreciation conceivably due to improvement; reimbursement will generally also be
appropriate for separate property contributions for improvements to community property.
If spouse can prove that appreciation of real property is almost exclusively due to improvements, reimbursement of community
property monies used to fund improvements to separate property residence may be insufficient, and court may in its discretion
apportion appreciation entirely to contributing property; additionally, if improvement is purchased with credit and both separate and
community property contributions are made to improvement, apportionment of interest in approvement would be possible based upon
separate application of formulas for determining respective shares of appreciation in general.
Reimbursable improvements made from community property contributions to separate property, or separate property contributions
to improvement of community property, do not include maintenance, taxes, interest, insurance payments, or inflation adjustments.
Reimbursement for contributions to property must not exceed market value of entire property at time of division when court
reimburses community property contributions towards improvements of separate property or separate property contributions towards
improvement of community property.
14. Divorce.
Where residence was acquired by mixture of community and separate property, and there were community improvements to
separate property residence, district court could either award party who made improvements other community assets of value which
offsets that party's reimbursement share or award reimbursement share from proceeds of sale of residence before applying modified
Moore formulae.
15. Divorce.
Requiring husband to pay entire equity credit line debt, even if debt was community property, was not abuse of discretion, since
husband's overall property distribution was substantially greater than wife's and husband enjoyed much greater future income potential.
16. Divorce.
District court was not precluded from ordering husband to pay the statutory maximum of child support while also allowing wife to
retain possession of residence until younger child reached majority, with husband to make mortgage payments until residence was sold.
NRS 125.150, subds. 1-4, 125B.010 et seq.
17. Divorce.
Any error in failing to apply methods of apportionment of separate and community property interests in business to valuation of
medical practice was not prejudicial, where there was no evidence refuting trial court's determination that business and business good
will were entirely community property, so that no issue of apportionment of separate and community shares and medical practice even
arose; the district court's finding in valuing medical practice, that vast bulk of value of practice consisted of good will, was sound.
18. Divorce.
In valuing business good will, district court is free to use any legitimate method of valuation which measures present value of good
will taking into account past earnings.
OPINION
Kenneth W. Malmquist appeals a judgment and decree of divorce dividing his and his
ex-wife Nancy Malmquist's community property. While the district court made a reasonable
division of the parties' residence, we reverse the district court's determination of the separate
and community property interests in the residence because the court did not utilize the more
appropriate apportionment method set forth in In re Marriage of Moore, 618 P.2d 208 (Cal.
1980). We adopt a slightly modified version of the Moore apportionment. We cannot
establish the parties' final interests in the residence at this time because the residence has
been set aside for the benefit of the children and will not actually be divided until some
time in the future.
interests in the residence at this time because the residence has been set aside for the benefit
of the children and will not actually be divided until some time in the future. Nevertheless,
we offer some examples as guidance on how our modified Moore formulae would apply if
the residence were to be divided at the present time. Although we do not believe this opinion
will require any readjustment of the initial property division, we remand this case to allow the
district court to make this determination. We affirm the district court's determination that
Kenneth failed to meet his burden of tracing the $37,007 used for home improvements to his
separate property. We further take this opportunity to clarify the proper mode of
apportionment at divorce of improvements to real property. Finally, we affirm the district
court's judgment and decree of divorce in all other respects.
FACTS
Kenneth and Nancy were married on December 12, 1970. Kenneth was a practicing family
physician, and Nancy was a dental hygienist. Nancy worked approximately two years after the
marriage. After the couple's first child was born, Nancy did not work during the marriage.
The parties had three children during their seventeen-year marriage: Andrew, Nicholas and
Casey, aged fifteen, nine and eight respectively at the time of trial. The couple separated in or
around March 1986. In June 1986, Nancy filed for divorce.
In June 1967, before he married Nancy, Kenneth had purchased a residence on Wedekind
Road with his former spouse, Delores Malmquist. The purchase price was $36,500. Kenneth
made a $2,500 down payment and financed the remaining $34,000 by mortgage. By the time
he married Nancy, Kenneth already had made mortgage payments which reduced the
mortgage principal by an additional $1,037. In total, then, Kenneth had paid $3,537 towards
the purchase price by the time he married Nancy. In October 1970, Kenneth and Delores were
divorced. Pursuant to a property settlement agreement, Kenneth paid Delores $4,200 for her
interest in the home. During their marriage, Nancy and Kenneth made community property
payments on the mortgage which further reduced the mortgage principal. Although the exact
amount of principal reduction attributable to these community property payments is
somewhat unclear, it appears that these payments reduced the principal by approximately
$14,463. Accordingly, as the district court found, the outstanding unpaid loan balance
remaining at the time of divorce was $18,500.
The district court found the market value of the Wedekind Road residence at the time of
divorce to be $215,000. Of that value, the court concluded that 7.5% was Kenneth's
pre-marital separate property, and 74.5% was community property.
value, the court concluded that 7.5% was Kenneth's pre-marital separate property, and 74.5%
was community property. The court classified the entire remaining 18% interest as Kenneth's
post-marital separate property because the court awarded temporary possession of the house
to Nancy and the children. Specifically, the court imposed a constructive trust on the
Wedekind Road residence for the benefit of the children. The court ordered Kenneth to make
all mortgage payments and to pay for maintenance, repairs and utilities on the residence, until
the youngest child reaches the age of majority or Nancy consents to a sale of the house. The
court further ordered Kenneth to pay the statutory maximum in child support.
During their marriage, the Malmquists also made improvements to the Wedekind Road
residence. The improvements cost $62,707 and consisted of a kitchen remodeling and
greenhouse addition. Of the improvements, the $25,000 spent on the kitchen is conceded to
be community property. The remaining $37,707 spent on the greenhouse came from a joint
checking account in Nancy's and Kenneth's names. The district court found that Nancy and
Kenneth had commingled both community and Kenneth's separate property funds in the joint
account. At trial, Kenneth attempted to persuade the court that the source of the $37,707 was
the proceeds from the sale of an I Street apartment building owned by Kenneth as his
separate property. Soon after Kenneth's counsel began his attempts to trace the source of the
money used to pay for the greenhouse improvements, the parties entered into a stipulation in
order to speed up the process of documenting the many transactions involving the account.
The following exchange occurred in connection with the stipulation:
MS. McDONALD [for Nancy]: Maybe I can stipulate that the I Street was in the name
of the partnership. That none of the wives were in that. That when it was sold, the
check was payable to Ken and Nancy Malmquist. And that from that account, the
greenhouse was built.
Maybe we can stipulate to that and cut through a whole lot.
. . . .
. . . .
MR. FREITAG [for Kenneth]: I have no objection, Your Honor. I will accept the
stipulation, if I can restate it real quickly, and it will save a lot of time, that I Street
property was Sparks Medical and Dental Investments partnership. That the payments
that came out were made out to husband and wife.
MS. McDONALD: They were made payable to Ken and Nancy Malmquist. . . .
MR. FREITAG: And that they were deposited into this particular account.
MS. McDONALD: Yes.
MR. FREITAG: And from those deposits, the amount of $37,707.00 was spent on the
greenhouse.
MS. McDONALD: Yes, I would stipulate.
. . . .
. . . .
. . . .
. . . .
. . . .
. . . .
THE COURT: And that these sums, $37,070 and some $5,000 was paid out of the
account, that a check also was deposited from the I Street property or partnership sale. .
.?
After this exchange, Kenneth's counsel discontinued his efforts to trace the transactions and
proceeded to a different area of inquiry. The district court later held that, despite the
stipulation, Kenneth had failed to establish that the funds used to purchase the greenhouse
were Kenneth's separate property. Thus, the court classified the greenhouse as community
property.
At trial, Kenneth also testified regarding an equity credit line debt in the amount of
$71,054.23. Kenneth testified that he incurred some of this debt on behalf of the community
and some of the debt for his personal expenses after the couple's separation. The court
ordered Kenneth to pay this entire debt. Finally, the district court classified Kenneth's entire
medical practice as community property and awarded the practice entirely to Kenneth. The
court valued the practice at $32,765, of which $25,000 was business good will; the remainder
was accounts receivable, equipment and cash.
LEGAL DISCUSSION
On appeal, Kenneth contends that the district court erred by: (1) failing to use the method
announced in Moore, supra, in determining the parties' respective interests in the Wedekind
Road residence; (2) classifying the greenhouse improvement as community property in
disregard of the stipulation quoted above; (3) ordering Kenneth to pay the entire equity credit
line debt; (4) ordering Kenneth both to pay the maximum level of child support and to
continue to pay the mortgage on the residence which was set aside for the children's benefit;
and (5) failing to utilize the proper method of apportioning the business good will in his
medical practice. We address each of Kenneth's contentions in sequence.
I. Apportionment of community and separate property interests in the Wedekind Road
residence.
Both parties agree that the community and separate property interests are entitled to
reimbursement to the extent that those interests actually contributed toward reduction of the
principal on the mortgage for the Wedekind Road residence. Additionally, this court has
recognized that the community is entitled to a pro rata ownership share in property which
community funds have helped to acquire. Robison v. Robison, 100 Nev. 668, 670, 691 P.2d
451, 454 (1984). The question presented by Kenneth's appeal is precisely how to apportion
the community and separate property shares in the appreciation of a separate property
residence obtained with a separate property loan prior to marriage. Although we understand
and respect the district court's approach to apportionment of these interests, we hereby adopt,
with one modification, the mode of apportionment set forth in In re Marriage of Moore, 618
P.2d 208 (Cal. 1980).
Without a presumptive approach to this apportionment problem, persons similarly situated
may receive unequal distributions in different cases. We have full confidence that the district
judges of this state can reach equitable distributions in particular cases. No matter how fair
the result in individual cases, however, the aggregate result becomes unfair when similarly
situated persons receive disparate returns on their home investments. We further note that the
presumptive approach for apportionment of home equity adopted here in no way abrogates
the rule of just and equitable distribution, which we recently enunciated in McNabney v.
McNabney, 105 Nev. 652, 782 P.2d 1291 (1989). The modified Moore formulae simply
establish the community interest in a residence. McNabney, in turn, governs how the court
may actually divide that community interest between the parties.
Moore generally grants the community a pro rata share in appreciation of a separate
property residence according to the ratio that mortgage principal reduction attributable to
community property payments bears to the original purchase price. See Moore, 618 P.2d at
210-11. More specifically, the community property appreciation share under Moore is the
amount by which community property mortgage payments have reduced the mortgage
principal, divided by the original contract purchase price of the residence. This fraction is
multiplied by the total appreciation to yield the final community share in appreciation.
Assuming the mortgage was originally a separate property loan, the separate property receives
credit for the entire outstanding unpaid mortgage balance, plus the amount by which separate
property mortgage payments reduced the mortgage principal; this sum is then divided by the
original purchase price of the residence and multiplied by the total appreciation to yield the
final separate property appreciation share.
multiplied by the total appreciation to yield the final separate property appreciation share.
[Headnote 1]
The Moore case presents an understandable and workable way to determine the separate
and community interests in the appreciation of a residence. In accord with critics of the
Moore decision, however, we adopt a different method for assigning credit for the unpaid
mortgage balance. See Comment, The Division of the Family Residence Acquired with a
Mixture of Separate and Community Funds, 70 Cal.L.Rev. 1263 (1982) (authored by Peter M.
Moldave); Wagner, Apportionment of Home Equity in Marital Dissolutions Under California
Community Property Law: Is the Current Approach Equitable?, Comm.Prop.L.J. (Winter
1982). We believe that neither the community or separate property should receive credit for
the entire outstanding mortgage balance on the sole basis that the loan was originally a
separate or community obligation. When, as here, the community has contributed
substantially to principal reduction, assigning the separate property credit for the entire
outstanding loan balance yields results which are inequitable to the community; (the result
may be equally unfair to the separate property in cases involving a mortgage taken out by the
community). Credit for the outstanding loan balance should be divided according to the
number of monthly payments made by separate or community property. With a new
long-term loan, a considerable number of monthly payments can be made without there being
a significant reduction in principal.
Moldave has stated an equitable and workable approach for assigning credit for the unpaid
mortgage balance, and we hereby adopt this approach. The approach is essentially to assign
credit for the unpaid mortgage balance according to a time rule. Moldave explains:
The proposed method is to allocate the appreciation attributable to the loan proceeds
to separate or community sources pro rata according to the total number of monthly
payments made from separate or community sources. . . .
The appreciation is shared according to the number of monthly payments, and not
the amount of monthly principal payments, both for reasons of simplicity and fairness.
Adding the varying principal payments is more complicated, but the more important
objection is that it gives a windfall to the party making the later payments, because the
principal portion of the monthly payment rises over the term of a fully amortized level
payment loan. Counting only the number of payments avoids affecting the shares
because of the timing factor.
70 Cal.L.Rev. at 1288-89 (footnotes omitted) (emphasis in original).
[Headnotes 2, 3]
Modified slightly to incorporate Moldave's approach, the Moore formulae for determining
the community and separate property interests in total home equity, including appreciation,
can be stated arithmetically as follows:
1. SP = PD
sp
+ [(PD
sp
+ OL
sp
) x (A)]; and

___________

(PP)

2. CP = PD
cp
+ [(PD
cp
+ OL
cp
) x (A)], WHERE:

___________

(PP)

(a) SP = total separate property interest in home equity;
(b) CP = total community property interest in home equity;
(c) PD
sp
= pay down attributable to separate property (i.e., the
reduction in mortgage principal due to separate property
payments, plus the separate property downpayment, if
any);
(d) PD
cp
= pay down attributable to community property (i.e., the
reduction in mortgage principal due to community
property mortgage payments, plus the community
property downpayment, if any);
(e) OL
sp
= portion of outstanding (unpaid) loan to be credited to
separate property;
(f) OL
cp
= portion of outstanding (unpaid) loan to be credited to
community property;
(g) PP = contract purchase price of the residence;
(h) A = appreciation of the residence.
Applying each of these equations yields the correct respective shares in most cases.
1
In the
formulae, "SP" represents the final separate property interest in home equity, and "CP"
represents the final community property share.
__________

1
The above stated formulae derive from formulae used as a teaching tool by Carol Bruch, professor of law at
Martin Luther King, Jr. Hall School of Law, University of California at Davis. The above stated formulae are
potentially applicable to any property which undergoes significant appreciation and is purchased on credit.
While this case does not involve separate property payments on a community residence, we believe that the
formulae should apply both to community contributions to separate property residences and to separate property
contributions to community property residences. See Moore, 618 P.2d at 211. In California, on the other hand,
Section 4800.2 of the Civil Code has been interpreted to preclude the separate property from obtaining an
interest in the appreciation of a commu-
In the formulae, SP represents the final separate property interest in home equity, and
CP represents the final community property share. If more than one spouse contributes
separate property, then a third formula, identical to formula number one, may be used to
calculate the second spouse's separate property interest. PD
sp
denotes the separate property
pay down. The separate property pay down equals the actual reduction in mortgage
principal attributable to separate property mortgage payments up to the time the house is
divided, plus the down payment, if the down payment is made from separate property. PD
cp
denotes the community property pay down. If the down payment is made from community
property, then the down payment becomes part of the community property pay down, not the
separate property pay down. Neither community nor separate property pay down includes
payments going towards mortgage interest or taxes, because taxes and interest payments do
not directly increase the equity value of the property. Moore, 618 P.2d at 210-11. PP
denotes the original contract purchase price of the residence or property. A generally
denotes the appreciation of the house, measured by the difference between the market value at
the time of trial and the contract purchase price. Upon sale, however, the net sale proceeds
may differ from the estimated market value. Thus, when the residence is actually sold, district
courts should use the actual net sale proceeds, instead of the estimated market value, in
calculating appreciation.
__________
nity property residence, even when separate property makes payments on the mortgage; in such a case, the
separate property receives only reimbursement. In Re Marriage of Huxley, 206 Cal.Rptr. 291, 295 (Ct.App.
1984). We do not intend our adoption, in Part III of this opinion, of the Section 4800.2 measure of
reimbursement for improvements to deprive the separate property of its pro rata ownership share in a
community property residence based on mortgage payments made by separate property. Instead, we believe that
the formulae stated above provide the preferable measure of compensation of separate property for its
contributions toward the acquisition of a community residence.
We do not suggest that these formulae represent the only way to apportion these interests. For example, if the
residence is purchased with cash, the parties are entitled to a share in appreciation according to the ratio that
each cash contribution bears to the original purchase price. Additionally, when the vast bulk of the appreciation
occurs before marriage, it may be appropriate to award the separate property the entire amount of pre-marriage
appreciation; then the court can use these formulae to calculate the additional separate and community property
shares in appreciation occurring after the marriage. See, e.g., In re Marriage of Marsden, 181 Cal.Rptr. 910
(Ct.App. 1982). The trial court also may have greater latitude in determining these respective interests where one
spouse has contributed industry rather than community capital to the property. Id. at 916, n.2. Nevertheless,
we conclude that, in most cases, the formulae stated above are the proper mode of apportionment of these
interests.
In Re Marriage of Horowitz, 205 Cal.Rptr. 874, 878, n.4 (Ct.App. 1984).
[Headnote 4]
OL generally denotes the outstanding unpaid mortgage balance at the time of trial. OL
sp
and OL
cp
will denote the dollar amounts of the outstanding loan balance to be credited to
separate and community property under Moldave's approach. For example, OL
sp
equals the
percentage of the total number of monthly mortgage payments made with Kenneth's separate
property, multiplied by the total outstanding mortgage balance. In order to prevent
manipulation of this time rule, only routine monthly mortgage payments are considered.
Moldave, supra, at 1288. Large, non-routine lump sum payments which reduce the principal
must be credited to PD
sp
or PD
cp
, but not toward OL
sp
or OL
cp
. Moldave suggests
that courts should consider only payments made during the period between the time the loan
is taken out and the time the parties separate. Id. (emphasis added). We believe, however,
that the courts should consider all routine mortgage payments made after separation, up to the
time of the final division at trial. If, as in the present case, the residence is set aside for the
benefit of the children, the courts generally should give the spouse making routine separate
property mortgage payments credit, under both PD
sp
and OL
sp
, until such time as the
residence is actually sold or divided.
[Headnote 5]
Having set forth the applicable principles of law, we turn to the facts of this case.
Although the district court did not set forth its methodology, Kenneth appears to have
ascertained the method the court employed in determining the parties' respective interests in
the residence. The court established $103,407 as the property's total purchase price. It arrived
at this figure by adding the initial purchase price ($36,500), the amount Kenneth paid for his
former wife's interest ($4,200) and the cost of the improvements to the property ($62,707).
The district court then determined Kenneth's separate property contribution by adding
Kenneth's down payment ($2,500), the payment for his former wife's interest ($4,200) and the
reduction in principal attributable to separate property loan payments before the marriage
($1,037), a total of $7,737. The court divided the total separate property contribution by the
purchase price to reach the final separate property share in the property of 7.5%. The court
determined the community property contribution by adding the cost of the improvements
which the court classified as community property ($62,707) and the amount by which
community property payments had reduced the mortgage principal ($14,463), a total of
$77,020. The court divided the total community property contribution by the purchase
price to reach the final community property share of 74.5%.
divided the total community property contribution by the purchase price to reach the final
community property share of 74.5%. The court finally divided the unpaid balance on the
mortgage ($18,500) by the $103,407 purchase price, yielding a further 18% separate property
share in the property; the court classified this 18% share as Kenneth's separate property since
Kenneth was to continue to make the mortgage payments following divorce.
The district court's method of apportionment deviated from our modified Moore approach
in two principal ways. First, the district court should not have included as part of the purchase
price the money paid by Kenneth to purchase his former wife's interest; the purchase price
includes only the contract purchase price. Second, the district court should not have included
as part of the purchase price the cost of improvements made to the property. The question of
improvements should be considered separately from the question of apportionment of
appreciation. We will address the question of how to apportion improvements in Part III of
this opinion.
What follows is an example of how the district court should have applied the modified
Moore formulae if the residence had been divided at the time of trial, rather than set aside for
the children. Due to limitations in this record, we consider only the mortgage payments made
up to the time of the parties' separation; normally, the district court should consider all routine
mortgage payments made up to the time the residence is actually divided.
The outstanding loan balance at the time of trial was $18,500. Kenneth acquired the home
on June 26, 1967, making separate property mortgage payments from July 1967 through
December 1970, when Kenneth and Nancy married. Kenneth thus made separate property
mortgage payments for 41 months. The community made mortgage payments from January
1971 until the separation in March 1986, a total of 183 months. In all, there appear to have
been 224 routine monthly mortgage payments between the date of acquisition of the residence
and the date of separation. Kenneth made 41, or 18.30%, of the monthly payments. The
community made 183, or 81.70%, of the monthly payments. OL
sp
therefore equals $3,386
(18.30% of the outstanding balance of $18,500) and OL
cp
equals $15,114 (81.70% of
$18,500).
The total pay down on purchase price attributable to Kenneth's separate property (PD
sp
)
was the sum of his $2,500 down payment and the $1,037 by which Kenneth's payments
reduced the principal before he married Nancy. This is a total of $3,537. To obtain Kenneth's
percentage share in the appreciation, we add $3,537 {PDsp) to $3,3S6 {OLsp) and divide this
sum by the original contract purchase price of $36,500.
(PD
sp
) to $3,386 (OL
sp
) and divide this sum by the original contract purchase price of
$36,500. This yields a separate property appreciation share of 18.97%. The total pay down on
the purchase price attributable to community property (PD
cp
) equals $14,463, the amount by
which community payments actually reduced the mortgage principal. To obtain the
community share in appreciation we add $14,463 (PD
cp
) to $15,114 (OL
cp
) and divide by the
purchase price. This yields a community appreciation share of 81.03%. Subtracting the
purchase price of $36,500 from the market value at time of trial of $215,000 yields a total
appreciation of $178,500. Multiplying the respective final appreciation shares by this
appreciation yields a community property appreciation share of $144,638.55 (81.03% x
$178,500) and a separate property appreciation share of $33,861.45 (18.97% x $178,500).
2

We have now established the respective shares in appreciation. To establish the final
equity interests of the community and of Kenneth's separate property we must add to the
respective appreciation shares the respective pay downs attributable to separate and
community property. This step represents simple reimbursement for actual contributions
made toward the equity. This yields a final community property share in the equity value of
the residence of $159,101.55 ($14,463 + $144,638.55) and a final separate property share of
$37,398.45 ($3,537 + $33,861.45). Adding these final shares yields a total equity value in the
residence of $196,500. This total equity value is less than the total market value by the
amount of the outstanding mortgage balance, which was $18,500 at the time of divorce. The
assignment of this outstanding mortgage as a debt in reaching an overall division of property
is a separate issue from the allocation of home equity just discussed.
After a district court calculates the final community interest according to the modified
Moore formulae, the court still faces the separate problem of how to divide the community
interest in a single residence. A good summary of the five principal methods of actually
dividing the final community interest in a residence may be found in Horowitz, 205 Cal.Rptr.
at 878-879.
[Headnote 6]
In the present case we recognize that the residence will actually be divided at a future
date because the court awarded Nancy and the children temporary possession of the
residence.
__________

2
We stress that these figures are merely examples. The final result reached in this case will differ from this
example because the residence will not actually be divided until some time in the future when Nancy consents to
a sale or the children reach the age of majority. Additionally, as explained in Part IV of this opinion, the court
may alter application of the modified Moore formulae in order to account for the substantial improvements made
to the residence.
be divided at a future date because the court awarded Nancy and the children temporary
possession of the residence. This presents a special situation different from the more typical
example given above. Ideally, in this situation the court can award the spouse who loses
possession of the house other community assets to offset that spouse's interest in the house. If
this is not possible, however, the parties must address the issue of apportioning their
respective interests in the house at the time in the future when the residence is actually
divided. If so, the respective interests should be calculated by reapplying the modified Moore
formulae based on the appreciation of the house at the time the house is finally divided. Cf.
Horowitz, supra (applying percentage interests established for a residence purchased with
cash on the basis of appreciation which had occurred after the judgment of divorce during the
time the house was set aside for the children). Kenneth should receive credit under the
formulae for the mortgage payments the court ordered him to make during the time the
residence is set aside for the children. To the extent that Kenneth's routine post-divorce
mortgage payments further reduce the principal, Kenneth will receive credit according to the
variable PD
sp
. As stated above, Kenneth also should receive credit for his continuing
routine mortgage payments under the variable OL
sp
.
Finally, in this case the application of the modified Moore formulae may differ from the
example just given because this case involves improvements. Part IV of this opinion contains
an example applying the modified Moore formulae after taking improvements into account.
II. Classification of the greenhouse improvements as separate or community property.
We have indicated that the district court erred by factoring the cost of the improvements
into the calculation of the respective property shares in the Malmquists' principal residence.
Before we can address the question of apportionment of the improvements, we must first
classify the improvements as separate or community property. Of the total of $62,707 in
improvements, the $25,000 spent on the kitchen remodeling is conceded to be community
property. The issue presented by Kenneth's appeal is whether the remaining $37,707 paid for
the greenhouse improvement is community property or Kenneth's separate property. Kenneth
argues that, contrary to the district court's decision, the stipulation quoted above establishes
conclusively that the greenhouse was paid for from his separate property.
[Headnote 7]
Kenneth received his share of the proceeds from the sale of the "I Street" partnership by
check made payable to both Nancy and him.
I Street partnership by check made payable to both Nancy and him. This check was
endorsed by the parties and deposited in their joint checking account. The greenhouse
improvements were paid for from this account. The district court found that both community
and separate property funds were commingled extensively in the joint account from which the
greenhouse payments were made. Once an owner of separate property funds commingles
these funds with community funds, the owner assumes the burden of rebutting the
presumption that all the funds in the account are community property. Lucini v. Lucini, 97
Nev. 213, 215, 626 P.2d 269, 271 (1981); Marsden, 181 Cal.Rptr. at 918. Generally speaking,
there are two ways to rebut the presumption that commingled funds are community property:
(1) direct tracing of the source of a particular purchase to the separate property portion of the
account, or (2) proof that at the time of the purchase all community income was exhausted by
family expenses. Marsden, 181 Cal.Rptr. at 918. Neither party to this appeal argues for
application of the exhaustion method. Therefore, Kenneth must shoulder the burden of direct
tracing.
[Headnote 8]
Direct tracing requires Kenneth to establish that the timing and amounts of separate
property deposits and withdrawals to pay for the improvements clearly indicate that the
payments came from separate property funds, as Kenneth claims he intended. Marsden, 181
Cal.Rptr. at 919. The documentary evidence in support of Kenneth's direct tracing consisted
of exhibits introduced at trial. These exhibits were not made part of the record on appeal.
Accordingly, the only question before this court is whether the stipulation sufficed as a matter
of law to satisfy Kenneth's burden of direct tracing. We conclude that the stipulation does not
satisfy this burden as a matter of law and therefore affirm the district court's classification of
the greenhouse improvement as community property.
The stipulation, while somewhat ambiguous, arguably establishes that Kenneth's separate
property was deposited into the joint account and that the greenhouse was paid for using the
money so deposited in this joint account. Kenneth argues that this alone satisfies his burden
of tracing. Again, however, the bank accounts are not part of the record on appeal. Thus, the
record before us does not establish when money was deposited into the joint account or
withdrawn for the greenhouse improvement. We do not know the balance in the joint account
at the relevant times. Based on all the evidence presented at trial, the district court determined
that, despite the stipulation, the money was commingled in a joint account and Kenneth had
not sustained his burden of tracing the money for the greenhouse to his separate property
deposits into the joint account.
property deposits into the joint account. Without the bank records, we are unwilling to disturb
the district court's determinations on the strength of the stipulation alone. After reviewing the
bank accounts and hearing the testimony of the parties, the district court could have
concluded that the evidence was sufficiently strong to support a finding of commingling and
that the stipulation concerning the funds was not sufficient to refute this. Based on the record
before us, we cannot conclude as a matter of law that the district court erred in determining
that the greenhouse improvement was made from community funds.
III. Apportionment of community property improvements to a separate property residence.
[Headnotes 9, 10]
Having classified the improvements as community property, we must now decide how to
apportion them. Apportionment of improvements must be analyzed separately from the
apportionment of home equity pursuant to the modified Moore standard. The community
property improvements to Kenneth's separate property residence raise a new apportionment
issue: should these contributions toward improvements be presumed gifts, be measured by
simple reimbursement or be measured by some other method which gives credit for
appreciation due to the improvements? We conclude that in most cases simple reimbursement
without interest is the appropriate measure for both separate and community property
improvements.
Other legal authorities support the establishment of a reimbursement measure for both
separate and community property improvements. While they do not agree on the precise
measure of reimbursement, several courts have required some compensation to the
community for community property improvements to separate property. See Portillo v.
Shappie, 636 P.2d 878 (N.M. 1981); Elam v. Elam, 650 P.2d 213 (Wash. 1982); Fisher v.
Fisher, 656 P.2d 129 (Idaho 1982); Honnas v. Honnas, 648 P.2d 1045 (Ariz. 1982). We reject
the rule that community property improvements to separate property themselves become
separate property. But see In re Marriage of Camire, 164 Cal.Rptr. 667 (Ct.App. 1980). We
further note that California recently enacted a statute establishing the principle of
reimbursement of the separate property for separate property contributions to community
property. See Cal.Civ.Code 4800.2 (WestSupp. 1989). Although this case does not involve
separate property improvements to community property, we note that we see no good reason
why the reimbursement measure ought not apply to separate property improvements to
community property as well. In most cases we believe reimbursement will be a fair and
adequate measure of the separate or community property contribution.
measure of the separate or community property contribution. Common experience informs us
that, in most cases, improvements add little to the market value of a residence above the cost
of the improvement. Indeed, the cost of improvements to residential housing often exceeds
any increase in the market value of the residence attributable to the improvements. Moreover,
in this case, both separate and community property already have shared in any added market
value attributable to the improvements, based on application of the apportionment formulae
applied above.
[Headnote 11]
While reimbursement is the general rule, we note that in some cases reimbursement may
not be the appropriate measure, and the district court may deviate from the reimbursement
measure where necessary to effectuate a proper apportionment. For example, where the
improvements actually decrease the value of the property, reimbursement may be too
generous a measure. Alternatively, reimbursement may be too stingy a measure where the
vast bulk of appreciation is due to the improvements. This may be the case, for example,
when community funds are used to substantially renovate or rebuild a dilapidated residence,
or when community funds pay to construct a house on formerly unimproved separate real
property. In such cases, an appreciation share may be the fairest measure of the community or
separate property improvement contribution. If a party can prove that the appreciation is
almost exclusively due to improvements, and not to market forces, a court may in its
discretion apportion this appreciation entirely to the contributing property. Additionally, if the
improvement is purchased with credit and both separate and community property
contributions are made to the improvement, apportionment of interests in the improvement
would be possible based on a separate application of the formulae stated above. This
case-by-case approach is consistent with the well-reasoned opinion of the New Mexico
Supreme Court in Portillo, supra, and this approach furthers our overriding goal of equitable
divisions of marital property. In the present case, however, there is no evidence that the
appreciation of the Wedekind residence was due almost exclusively to the improvements, and
the improvements were not purchased on credit with both separate and community property
contributions. Accordingly, the proper measure of compensation for the improvements in this
case is simple reimbursement.
[Headnotes 12, 13]
Section 4800.2 of the California Civil Code specifies the scope and precise measure of
reimbursement of separate property for separate property contributions to community
property.
separate property contributions to community property. We adopt the rules stated in Section
4800.2 for community property contributions toward improvements of separate property; we
believe that the same rules should apply to separate property contributions toward
improvement of community property. Specifically, reimbursable improvements do not
include maintenance, tax, interest, insurance payments, or inflation adjustments.
Reimbursement must not exceed the market value of the entire property at the time of
division. Accordingly, in reaching the initial division of property in the present case the
district court should have simply credited the community with full reimbursement in the
amounts of $25,000 for the kitchen remodeling and $37,707 for the greenhouse. The district
court should have done this separately and independently of the calculation of the parties'
shares in appreciation.
IV. Calculation of community and separate property interests in a marital residence after
taking into account improvements.
[Headnote 14]
In cases not involving improvements, the district court will calculate the final equity
shares as stated in Part I of this opinion. Additionally, where the residence is acquired solely
by community or separate property, there is no modified Moore apportionment issue and
improvements will generally be measured by simple reimbursement. The present case,
however, presents a hybrid problem: the residence was acquired by a mixture of community
and separate property, and there were community improvements to a separate property
residence. In these hybrid cases, the district court may, in its discretion, order the community
or separate property reimbursement shares to be paid in at least two ways. First, the district
court may award the party who makes the improvements other community assets of a value
which offsets that party's reimbursement share. If the district court here ultimately chooses
this approach, the parties' interests in the home equity will be calculated by the method set
forth in Part I of this opinion.
Second, the court can award the reimbursement share from the proceeds of sale of the
residence before applying the modified Moore formulae. We recognize that, in the present
case, the residence will not actually be divided until some future date, by which time the
residence may have appreciated further and Kenneth will presumably have made several more
mortgage payments from his separate property. Nevertheless, by way of example, we apply
the second method for paying out reimbursement to the facts of this case as set forth in Part I
of this opinion; we stress that this example will differ from the final result in this case,
because the residence will not actually be divided until some time in the future.
because the residence will not actually be divided until some time in the future.
First, $62,707 would be paid off the top to the community as reimbursement for the money
expended for improvements. Next, the modified Moore formulae would be applied to the
remaining value of the residence. The remaining market value of the house here, including
the mortgage thereon, would be $152,293 ($215,000 minus the $62,707 in improvements.)
Subtracting the purchase price of $36,500 from $152,293 gives us the remaining appreciation
of $115,793. Applying Kenneth's 18.97% appreciation share to the remaining appreciation
(18.97% x $115,793) would give Kenneth an interest in the remaining appreciation of
$21,965.93. Adding to this Kenneth's separate property contributions of $3,537 fixes
Kenneth's final separate property interest in the remaining equity value of the house at
$25,502.93. The community interest in the remaining value of the house would be calculated
by applying the community property appreciation share of 81.03% to the remaining
appreciation (81.03% x $115,793), giving us $93,827.07. To this must be added the
community property contributions that reduced the loan in the amount of $14,463, for a final
community share in the remaining value of the house of $108,290.07. In summary, the total
community interest in the residence, if divided at the time of trial, would be $170,997.07,
representing $62,707 in reimbursement for community improvements plus the $108,290.07
community interest in appreciation. The total separate property interest would be $25,502.93.
The total community interest of $170,997.07 stated in our example is not vastly different
from the community interest in the home equity reached by the district court (approximately
$146,392). Additionally, the residence itself will not actually be divided until some time in
the future. For these reasons, we do not anticipate that the district court will need to readjust
its initial community property division in any significant manner due to this opinion. We
further anticipate that the court will eventually allocate the property shares in the residence
according to the second method of paying out the improvements just discussed. Nevertheless,
we remand this case to the district court to permit readjustment of the initial division of
property if the court deems this necessary in light of this opinion. At the future time when the
residence is actually divided, the district court should utilize the modified Moore formulae
explained in this opinion.
V. Kenneth's other assignments of error.
[Headnote 15]
Kenneth assigns as error three other acts or omissions by the district court.
district court. First, Kenneth urges that the district court erred by ordering Kenneth to pay the
entire equity credit line debt, because the debt was community property. This contention is
without merit. The district courts of this state are granted broad discretion to determine the
equitable distribution of community property and debts; the court need not make an exactly
equal division of the community property. Johnson v. Steel Incorporated, 94 Nev. 483, 485,
581 P.2d 860, 862 (1978). Even if the entire debt was community property, the district court's
order was not manifestly inequitable, because Kenneth's overall property distribution was
substantially greater than Nancy's and Kenneth enjoys a much greater future income potential.
[Headnote 16]
Kenneth next contends that the district court erred by ordering him to pay the statutory
maximum of child support and allowing Nancy to retain possession of the residence until the
youngest child reaches majority, with Kenneth to make the mortgage payments until the
residence is sold. Neither the child support nor the alimony provisions of the Nevada Revised
Statutes precludes the district court from making both orders. See NRS 125.150(1)-(4); NRS
Chapter 125B. Indeed, this court has suggested that an award both of possession of the family
residence and of child support is proper. Stojanovich v. Stojanovich, 86 Nev. 789, 793, 476
P.2d 950, 952 (1970). Moreover, the orders in this case are not manifestly inequitable where:
Kenneth will receive credit for his future mortgage payments under the modified Moore
formulae; Kenneth has a much higher future earning capacity than Nancy; and Kenneth
received substantially more community assets in the initial property division. For these
reasons, the district court's orders regarding child support and possession of the house in the
present case were not an abuse of discretion.
[Headnotes 17, 18]
Kenneth's final contention is that the district court erred by failing to apply to his medical
practice the methods of apportionment of separate and community property interests in a
business set forth in Pereira v. Pereira, 103 P. 488 (Cal. 1909) or Van Camp v. Van Camp,
199 P. 885 (Cal. 1921). This court has required district courts to utilize either the Van Camp
or Pereira apportionment methods in classifying separate property businesses. Wells v. Bank
of Nevada, 90 Nev. 192, 194, 522 P.2d 1014, 1016 (1974). Even assuming the district court
erred by failing to apply one of these two apportionment methods, however, Kenneth has
failed to establish that such error was prejudicial. Kenneth has pointed to no evidence to
refute the district court's determination that the business and business good will were entirely
community property; thus, no issue of apportionment of separate and community shares
in the medical practice even arises.
were entirely community property; thus, no issue of apportionment of separate and
community shares in the medical practice even arises. The only question facing the district
court was one of valuation of a community medical practice, including the business good
will. The district court's finding that the vast bulk of value of the practice consisted of good
will appears sound. In valuing the business good will, the district court was free to use any
legitimate method of valuation which measures the present value of good will by taking into
account past earnings. Ford v. Ford, 105 Nev. 672, 680, 782 P.2d 1304, 1309 (1989). Here,
the district court's valuation of good will was well within the range of valuations offered at
trial, and the valuations were properly reached by methods which took into account past
earnings. Accordingly, the district court's valuation must stand.
CONCLUSION
We conclude that, in most cases, the modified Moore formulae yield the correct
community and separate property shares in the equity value of a marital residence purchased
by mortgage. The question of improvements should be considered separate from the modified
Moore calculation. In most cases, simple reimbursement is the appropriate measure for
compensating the property providing the improvements. Because the district court did not
apply these rules of apportionment, we reverse the district court's apportionment of the
parties' interests in the marital residence and in the improvements. We affirm the district
court's classification of the greenhouse improvements as community property. We affirm the
district court's judgment in all other respects.
Accordingly, the district court's judgment is affirmed in part and reversed in part in the
manner stated in this opinion. The case is hereby remanded for any further necessary
proceedings, and with instructions that the district court: (1) assist the parties, if necessary, in
the future division of the marital residence according to the principles set forth in this
opinion; and (2) decide whether any further action is necessary at this time to effectuate an
equitable division in light of this opinion.
Young, C. J., Steffen, Springer, and Mowbray, JJ., concur.
____________
106 Nev. 253, 253 (1990) Deshler v. State
DAVID BRYAN DESHLER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19863
April 24, 1990 790 P.2d 1001
Appeal from conviction of one count each of possession of stolen property, battery by a
prisoner, and intimidating a public officer. Ninth Judicial District Court, Douglas County;
Norman C. Robison, Judge.
Defendant was convicted of possession of stolen property, battery by prisoner and
intimidating a public officer in the district court and he appealed. The Supreme Court held
that defendant could not be convicted of felony intimidation of a public officer based on
threats he made to a deputy while defendant was handcuffed and securely strapped to a
gurney during ambulance ride; all defendant's threats, though severe and credible, were
couched in future terms, and it did not appear that physical force or any realistic immediate
threat thereof was ever used against deputy as required for felony conviction.
Affirmed in part and reversed in part.
Terri Steik Roeser, State Public Defender, and Janet S. Bessemer, Deputy State Public
Defender, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City; Brent T. Kolvet, District Attorney, and
Daniel J. Greco, Deputy District Attorney, Douglas County, for Respondent.
Extortion and Threats.
Defendant could not be convicted of felony intimidation of a public officer based on threats he made to a deputy while defendant
was handcuffed and securely strapped to a gurney during ambulance ride; all defendant's threats, though severe and credible, were
couched in future terms and it did not appear that physical force or any realistic immediate threat thereof was ever used against deputy
as required for felony conviction. NRS 199.300.
OPINION
Per Curiam:
This is an appeal from three felony convictions arising out of the theft of a woman's wallet
containing money and appellant Deshler's subsequent abusive treatment of the police
authorities during arrest, transportation and incarceration. Deshler was sentenced to serve
concurrent four year terms for each conviction. For reasons hereinafter stated, we have
concluded that Deshler was fairly tried and convicted on each count with the exception of
the conviction for intimidation of a public officer, which must be reversed.
was fairly tried and convicted on each count with the exception of the conviction for
intimidation of a public officer, which must be reversed.
Facts
During the late evening and early morning hours of October 12th and 13th, 1988, Deshler
was patronizing the Tahoe Tavern. A female customer left her seat at the bar to go to the
ladies' restroom, momentarily leaving her purse unattended at the foot of her chair. When the
woman returned, she picked up her purse and noticed that it felt lighter. While she was
looking through the purse to determine what, if anything, was missing, a man she later
identified as Deshler came over, put his hand into the purse and took out her address book.
She immediately retrieved her address book from Deshler, continued her search of the purse's
contents and realized her wallet was missing.
The woman told the bartender about her missing wallet. The bartender, with the help of
some patrons, initiated an unsuccessful general search of the premises for the wallet. The
address book incident caused the women to suspect Deshler when she was unable to locate
the wallet. She became more suspicious when, a few minutes later, she noticed Deshler
standing nearby, conspicuously holding a one hundred dollar bill (one of the bill
denominations in the missing wallet).
1

She informed the bartender and the owner of her suspicions and her basis for them. The
bartender and owner did a pat down search of Deshler and discovered the missing wallet in
the front of his sweatpants. The police were summoned and Deshler was physically prevented
from leaving the premises by a patron and one of the owners.
When the police arrived, a bloody Deshler was on the ground outside the bar screaming
obscenities and claiming that he was injured. The police, believing Deshler to be injured,
summoned the paramedics to care for him. Deshler was placed under arrest while verbally
abusing the deputies and fighting or attempting to fight with them, both during and after the
arrest.
Concurrent with this scuffle or shortly thereafter, the paramedics arrived. Deshler violently
resisted the paramedics' attempts to load him into the ambulance but was eventually placed in
the vehicle with the assistance of Deputy Crawford, one of the arresting officers. Deputy
Crawford accompanied Deshler in the ambulance during the ride to the hospital. The facts
leading to the intimidation charge and conviction arose from Deshler's threats against
Crawford in the ambulance.
__________

1
Earlier in the evening, Deshler had approached one of the owners of the Tahoe Tavern about running a tab,
explaining that he did not have any money. The owner refused because his partner did not allow running tabs but
loaned Deshler $20.00 of his own money instead.
the intimidation charge and conviction arose from Deshler's threats against Crawford in the
ambulance. Deshler repeatedly threatened Deputy Crawford in numerous and specific ways,
including death threats to him and his family. The seriousness of the threats, their nature and
tone were corroborated by the paramedic who was riding in the ambulance with Deshler and
Deputy Crawford.
While making the threats, Deshler was also struggling to free himself from the gurney to
which he had been fastened by several straps. He eventually managed to break free of the leg
restraints and Deputy Crawford thereafter placed his knees on him for the remainder of the
trip to keep him under control. Deshler was never able to free himself from the gurney.
Deshler's treatment at the hospital was brief and he was then booked into Douglas County
Jail early on the morning of October 13 where he subsequently had another altercation, this
time with the guards at the jail. This altercation occurred about ninety minutes after his
booking when two deputies took Deshler to the phone area in the jail, where he was allowed
to make phone calls. After making some phone calls, Deshler refused to return to his cell
peacefully. The deputies asked him several times to return to his cell but a cursing Deshler
refused, stating that the deputies were going to have to forcibly put him in his cell if that was
where they wanted him. As he made this statement, he assumed an aggressive karate type
fighting stance and started kicking and swinging at the deputies. The officers, concluding that
further conversation was pointless, rushed Deshler, grabbed him, picked him up and carried
him back to his cell while he struggled and kicked them. The trial and convictions followed.
Discussion
In reviewing the legitimacy of the intimidation conviction, we are called upon to interpret
NRS 199.300. We conclude that, under the facts of this case, and in light of the statutory
language of NRS 199.300, the felony charge and conviction against Deshler was improper
and cannot stand.
NRS 199.300 reads:
199.300. Intimidating public officer, juror or referee. Every person who directly or
indirectly, addresses any threat or intimidation to a public officer or to a juror, referee,
arbitrator, appraiser or assessor, or to any other person authorized by law to hear or
determine any controversy or matter, with intent to induce him, contrary to his duty to
do or make or to omit or delay any act, decision or determination, shall be punished: 1.
1. Where physical force or the immediate threat of such force is used in the course
of such intimidation or in the making of such threat, by imprisonment in the state prison
for not less than 1 year nor more than 6 years and may be further punished by a fine of
not more than $5,000.
2. Where no physical force or immediate threat of such force is used in the course of
such intimidation or in the making of such threat, for a gross misdemeanor.
It is uncontested that Deshler was abusive and combative during his arrest and in the
ambulance, where he threatened Crawford. However, the State's charge concerning felony
intimidation was limited to the events occurring during the ride in the ambulance. Deputy
Crawford was clearly a public officer against whom improper threats were made. Also, a jury
could have properly concluded that Deshler's intent in making the threats was to induce
Deputy Crawford to do, omit or delay some act with respect to Deshler that would be contrary
to his duty.
The operative requirements for a felony conviction under subparagraph 1 are physical
force or the immediate threat of force. The record reflects that neither statutory requisite was
present during Deputy Crawford's experience with Deshler in the ambulance. All of Deshler's
threats, though severe and credible, were couched in future terms. Moreover, it does not
appear from the record that physical force or any realistic immediate threat thereof was ever
used against Deputy Crawford in the ambulance. Such force or threats are required for a
felony conviction.
Even assuming that some of the threats made were immediate threats and the intent to do
harm was immediate, Deshler lacked the present capacity or apparent ability to immediately
carry out the threats, necessarily making them threats of future and not immediate harm. In
addition to being handcuffed, Deshler was apparently securely strapped to the gurney in three
or four separate places for the duration of the trip to the hospital. Although he succeeded in
breaking free of the makeshift foot restraints, he was still sufficiently immobilized for
Crawford to hold him down and control him without fear of physical harm from Deshler.
Had Deshler used or threatened immediate physical force while possessing the ability to
carry out an immediate threat, there would have been a factual basis to support the charge of
felony intimidation of a public officer. Because he lacked the apparent ability to carry out a
credible, immediate threat, any crime committed by Deshler in the ambulance would have
been limited to that of a gross misdemeanor as provided under subparagraph 2 of the statute.
The determination of whether the evidence is sufficient to sustain a conviction is a matter
of law on appeal. State v. Wilson, 104 Nev. 405
104 Nev. 405, 760 P.2d 129 (1988). We hold, as a matter of law, that felony intimidation
could not have been committed under the circumstances of the instant case. When the
evidence in the record contradicts or shows an absence of one of the elements of the crime,
we will not hesitate to overturn the conviction. Cf. Canfield v. Gill, 101 Nev. 170, 171, 697
P.2d 476, 476-477 (1984). (While Canfield is a civil case, the policy rationale, constitutional
concerns and other factors which support this principle in civil cases become even more
compelling in the criminal context.)
Because we reverse the intimidating a public officer conviction for reasons previously
discussed, we need not consider appellant's additional assignments of error with regard to that
conviction. We have also considered all other assignments of error concerning the two
remaining convictions and conclude that they are without merit. The counts involving
possession of stolen property and battery by a prisoner were presented to the jury with a
sufficient evidentiary basis for the jury to properly convict Deshler of these crimes.
For the reasons hereinbefore specified, we reverse Deshler's conviction for intimidating a
public officer and affirm the conviction for both possession of stolen property and battery by
a prisoner.
Springer, J., concurring:
I concur with the majority in its reversal of the intimidation charge but on other grounds. I
do not think that the statute under which Deshler was charged was intended to apply to cases
of resisting arrest or battery by a prisoner. Deshler stands convicted of battery, and I think it is
stretching things to say he can also be convicted of intimidating a public officer. The
intimidation statute is obviously intended to apply to one who tries to influence legal
decision-making by means of threats. The words juror, referee, arbitrator, appraiser or
assessor, or any other person authorized by law to hear or determine any controversy, clearly
show the legislative intent to protect the decision-making process and not the type of
unpremeditated threats of violence involved here. Deshler's conduct is punishable under a
number of other statutes, and I think it is a mistake to allow NRS 199.300 to be the basis for
additional charges against Deshler when the statute is clearly intended for another, more
specific purpose. There is no evidence here of any threats or intimidations which were
directed toward any specific decision or determination being made by the police officer. I
would reverse the intimidation conviction on the ground that, although Deshler is guilty of
battering an officer, he is not guilty of intimidating the officer with intent to induce him,
contrary to his duty to do or make or to omit or delay any [as yet unspecified] act,
decision or determination."
contrary to his duty to do or make or to omit or delay any [as yet unspecified] act, decision or
determination.
This majority opinion concerns me because now an intimidation charge can be added to
every prisoner battery or resisting arrest charge. Increasing criminal liability for this kind of
action should be done by the legislature, not the court.
____________
106 Nev. 258, 258 (1990) Riebel v. State
DAVID RIEBEL, aka E.M. MAC RICHMOND, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 19958
April 24, 1990 790 P.2d 1004
Appeal from an amended judgment of conviction upon jury verdict for one count each of
robbery with the use of a deadly weapon, burglary, grand larceny, assault with a deadly
weapon, and five counts of attempted murder with the use of a deadly weapon. Ninth Judicial
District Court, Douglas County; David R. Gamble, Judge.
Defendant was convicted of robbery with a deadly weapon, burglary, grand larceny,
assault with a deadly weapon and five counts of attempted murder with use of a deadly
weapon in the district court and he appealed. The Supreme Court held that: (1) evidence was
insufficient to support charges and conviction for attempted murder of two sheriff's officers
absent any evidence that defendant attempted to shoot gun he was carrying; (2) improper
attempted murder instructions suggesting jury could convict defendant based on implied
malice were adequately cured by other instructions; and (3) district court's response to inquiry
from jury did not result in guilty verdict based on improper jury compromise.
Norman Y. Herring, Riverside, California, for Appellant.
Brian McKay, Attorney General, Carson City; Brent T. Kolvet, District Attorney, Douglas
1. Homicide.
Defendant could not be convicted of attempted murder of two sheriff's officers in alleyway where there was no evidence that
defendant attempted to shoot the gun he was carrying, and thus no proof that he acted overtly toward committing the crime of
attempted murder of the officers.
2. Criminal Law; Homicide.
Erroneous jury instructions suggesting that jury could convict defendant based on implied malice did not prejudice defendant; any
error was cured by proper instructions to jury regarding elements of attempted murder, and prosecutor's comments, taken as a whole,
were sufficiently suggestive of express malice and specific intent to kill so as not to be misleading.
3. Criminal Law.
District court's response to inquiry from jury during deliberations as to whether it could make a subjective emotional statement to
accompany the verdict did not result in compromise verdict based on jury's erroneous belief that it could influence sentence; jury was
not deadlocked, jury's note was not a clear request for leniency, although it appeared after the fact that jury did want to plead for
leniency, and judge did not instruct jury that plea for leniency would be considered.
OPINION
Per Curiam:
At approximately 2:00 a.m. on October 23, 1987, appellant David Riebel entered the
Lakeside Inn Casino in Stateline, Nevada, and demanded money from the cashier. Riebel was
armed with a 9mm machine gun and a .357 caliber chrome revolver, and was wearing a
bulletproof vest and a mask. He shot in the direction of the cashier with the automatic
weapon, but the gun jammed after the second shot, so he left it on the counter and thereafter
relied solely on the revolver. Following a shootout with security guards, Riebel took the
money from the cashier and ran out the back door into the alley, trailing money behind him.
Outside he was confronted by two sheriff's officers who had just left the sheriff's station
across the street. He ignored their command to halt and instead continued to run toward them
with his gun pointed in their direction. Fearing for his life and that of his partner, one of the
officers fired eight shots, hitting Riebel four times. Neither officer saw or heard Riebel shoot
or attempt to shoot his gun. The gun, it was later discovered, contained six spent shells and no
live ammunition.
At the time of the incident, Riebel was fifty years old and had no prior criminal record. He
was a former law practitioner from Ohio who was apparently suffering from a major
depression.
Riebel claimed insanity as his defense. Following trying deliberations, a jury found Riebel
guilty of one count each of robbery with the use of a deadly weapon, burglary, grand larceny,
and assault with a deadly weapon. It also found Riebel guilty of five counts of attempted
murder with the use of a deadly weapon for having shot at the cashier and the two security
guards inside the casino and for having pointed his gun at the two officers in the alleyway. He
was acquitted of one count of assault with a deadly weapon.
weapon. The jury's verdict was accompanied by a note which asked that Riebel's sentence
include psychiatric care. The judge sentenced Riebel to a total of fifty-four years in prison.
[Headnote 1]
On appeal, Riebel first contends that there is insufficient evidence to support the charges
and convictions for attempted murder of the two sheriff's officers. We agree.
The parties agree that substantial evidence is the correct standard of review, Hern v. State,
97 Nev. 529, 531, 635 P.2d 278, 279 (1981), White v. State, 95 Nev. 881, 885, 603 P.2d
1063, 1065 (1979), but disagree as to whether substantial evidence exists to support these two
convictions.
The crime of attempt requires performance of an overt act toward the commission of the
crime. Johnson v. Sheriff, 91 Nev. 161, 163, 532 P.2d 1037, 1038 (1975). Mere preparation
is insufficient to prove an attempt to commit a crime. Moffett v. State, 96 Nev. 822, 824, 618
P.2d 1223, 1224 (1980). In cases recently decided by this court, the overt act toward
commission of attempted murder included wounding the victim, Dolby v. State, 106 Nev. 63,
787 P.2d 388 (1990); actually shooting the gun but missing, Ewell v. State, 105 Nev. 897,
785 P.2d 1028 (1989); or, at the very least, pulling the trigger and having the gun
malfunction, Keys v. State, 104 Nev. 736, 766 P.2d 270 (1988).
Riebel asserts that the information erroneously charged him with attempted murder for
shooting or attempting to shoot at the two officers in the alleyway because there is no
evidence that he shot, or attempted to shoot, the two officers. Both officers testified
repeatedly that they did not see or hear Riebel shoot the gun, did not observe him pull the
trigger, and did not see any muzzle flash, even though it was nighttime. Although pointing a
gun goes beyond mere preparation, Moffett, supra, merely pointing a gun is not sufficient to
convict for attempted murder. As noted above, cases of attempted murder involve more
directive and purposeful action than the mere pointing of a gunthey ordinarily involve
actual firing of, or attempted firing of, the gun. There is simply no evidence in this case to
indicate that Riebel did anything other than point the gun. Absent any evidence that he
attempted to shoot the gun, the state cannot have proved, beyond a reasonable doubt, that
Riebel acted overtly toward committing the crime of attempted murder of the two officers in
the alleyway. These convictions, therefore, must be reversed.
[Headnote 2]
Riebel next contends that the instructions given to the jury regarding attempted murder
were improper because they suggested to the jury that it could convict him based on
implied malice.
gested to the jury that it could convict him based on implied malice. He argues that, as
established by this court in Keys v. State, 104 Nev. 736, 740, 766 P.2d 270, 273 (1988), a
conviction for attempted murder requires express malice because attempted murder is a
specific intent crime. We decline to reverse Riebel's convictions on this basis because,
although the jury was improperly instructed on implied malice, it was properly instructed
regarding the elements of attempted murder and Riebel was not prejudiced by the error.
The relevant jury instructions, in pertinent part, are as follows:
Instruction No. 16:
In order to prove the commission of ATTEMPTED MURDER, each of the
following elements must be proved:
1. That a direct but ineffectual act was done by one person towards killing another
human being; and
That the person committing such act harbored malice aforethought, namely, a
specific intent to kill unlawfully another human being.
Instruction No. 17:
Malice may be either express or implied.
Malice is express when there is manifested an intention unlawfully to kill a human
being.
Malice is implied from an intentional act involving a high degree of probability that
it will result in death, which act is done for a base, antisocial purpose and with a
wanton disregard for human life or from an intentional act, the natural consequences of
which are dangerous to life, which act was deliberately performed by a person who
knows that his conduct endangers the life of another and who acts with conscious
disregard for life.
Instruction No. 18:
An attempt is defined as an act done with intent to commit a crime, and tending but
failing to accomplish it.
In order to attempt a criminal offense the following elements must be proved:
1. The intent to commit the crime;
2. Performance of some act toward its commission; and
3. Failure to consummate its commission.
(Emphasis added to each.)
In Keys, we held that it was error for the district court to refuse to instruct the jury that
specific intent is an essential element of attempted murder, and that the court compounded the
error by giving the jury instructions on implied malice. Id. at 739, 766 P.2d at 272. In
reversing, we stated that: Attempted murder is the performance of an act or acts which tend,
but fail, to kill a human being, when such acts are done with express malice, namely, with
the deliberate intention unlawfully to kill." Id. at 740, 766 P.2d at 273 {emphasis added).
human being, when such acts are done with express malice, namely, with the deliberate
intention unlawfully to kill. Id. at 740, 766 P.2d at 273 (emphasis added). See also People v.
Kraft, 478 N.E.2d 1154, 1159-60 (Ill.App. 1 Dist. 1985) (all instructions which reflect a
mental state other than an intent to kill must be omitted from the jury instructions because
they are incompatible with the elements of attempted murder).
This case is distinguishable from Keys because the jury was instructed that attempted
murder requires malice aforethought, namely, a specific intent to kill unlawfully another
human being. (Instruction No. 16, emphasis added.) Although this instruction was followed
by a misleading instruction on both express and implied malice (Instruction No. 17), the error
is not harmful as it was in Keys. As noted, unlike Keys, the jury in this case was informed that
specific intent is an essential element of attempted murder. Thus, despite the erroneous
instruction on implied malice, the error was cured because the jury was properly instructed
regarding the elements of attempted murder.
Riebel additionally argues that the erroneous instruction prejudiced him because the
prosecutor argued implied malice to the jury. In closing argument, the prosecutor stated, [h]e
didn't care, ladies and gentlemen, whether there was anybody else in that casino. He just shot.
There were people there. He didn't care who he hit or what he hit. It is unlikely that these
comments misled the jury because they were preceded by the comment, [n]ow, in all of
those cases he shot at people. He didn't shoot in the air to scare anybody. He shot at people.
Subsequently, the prosecutor argued that [u]nder those circumstances this man was trying to
kill people. That's the only logical result of all those facts. The prosecutor's comments, taken
as a whole, were sufficiently suggestive of express malice and the specific intent to kill so as
not to be misleading. Therefore, any error which may have resulted from the instruction on
implied malice was harmless. Consequently, we uphold the convictions for attempted murder
of the three people inside the casino.
[Headnote 3]
Riebel next contends that the district court's response to an inquiry from the jury resulted
in a guilty verdict based on an improper jury compromise. This contention lacks merit.
Following approximately six hours of deliberations, the jury sent the judge the following
note:
As a jury, we are very close if not fully decided. We are heavy of heart and emotion and
have the deepfelt need to make a subjective emotional statement that would accompany
our verdict. Are we allowed to make a statement to the court with our decision? A few
minutes later, the judge responded with a signed note, which stated, in relevant
part:
A few minutes later, the judge responded with a signed note, which stated, in relevant part:
Any statement you wish to make should be in writing and should accompany your
verdicts.
I will then decide if it should be read.
The jury's guilty verdicts were accompanied by the following note:
We, with anguish, find the defendant to be legally sane, within the brutally narrow
confines of the Sanity Law.
We respectfully suggest that his sentence be tempered by compassion, and include
psychiatric care.
Following issuance of the verdicts, but before sentencing, defense counsel asked jurors to
explain the note which accompanied the verdict. In response, several jurors wrote to the judge
explaining that they had issued a guilty verdict based on the mistaken belief that the judge
would consider their plea for leniency in sentencing.
Riebel contends that the exchange between the judge and the jury during the jury's
deliberations resulted in a compromised verdict based on the jury's erroneous belief that it
could influence the sentence, as evidenced by the letters from individual jurors. He argues
that it is reversible error to allow a jury to consider punishment when deliberating its verdict
or to lead the jury to believe that it can influence the sentence. In support, Riebel cites Rogers
v. United States, 422 U.S. 35, 40 (1975) (court committed prejudicial error when previously
undecided jury returned verdict less than five minutes after the judge said the jury could
recommend leniency without telling the jury that any recommendation it made would not be
binding), and United States v. Davidson, 367 F.2d 60, 63 (6th Cir. 1966) (court committed
prejudicial error when it allowed previously deadlocked jury to recommend leniency even
though the jury had been admonished that its recommendation would not be binding). Riebel
contends that it is reversible error for the judge not to have admonished the jury that it had no
role in sentencing. Rogers, 422 U.S. at 40.
Riebel's argument fails for several reasons. To begin, when this court is inquiring into the
validity of a verdict, NRS 50.065(2) prohibits consideration of affidavits or testimony of
jurors concerning their mental processes or state of mind in reaching the verdict. See Pappas
v. State, Dep't Transp., 104 Nev. 572, 575, 763 P.2d 348, 349-50 (1988), and Barker v. State,
95 Nev. 309, 312, 594 P.2d 719, 721 (1979) (portions of affidavits or testimony regarding
readily ascertainable objective facts about conduct and statements could be considered;
portions regarding mental processes or state of mind were properly excluded).
excluded). The letters involved in this case clearly address the jurors' states of mind leading
up to the verdict. For example, one juror wrote, we were only able to reach a verdict based
upon our belief that the court would consider our thoughts in this matter. (Emphasis added.)
Riebel's claim that the letters contain objective facts which may properly be considered by
this court is without merit.
Furthermore, this case is distinguishable from Rogers and Davidson, supra. First, unlike
Davidson, the jury in this case was not deadlocked. The inquiry to the judge begins, As a
jury, we are very close if not fully decided. It is therefore improbable that the judge's
response was likely to break a deadlock. Cf. United States v. Jackson, 470 F.2d 684, 688 (5th
Cir. 1972), cert. denied, 412 U.S. 951 (1973) (court instruction on leniency not prejudicial
error where court corrected error and jury not deadlocked). In addition, unlike Rogers and
Davidson, the jury's note is not even a clear request for leniency. The note simply expressed a
desire to make a subjective emotional statement that would accompany our verdict. A
request to make a subjective emotional statement could have several meanings and is not
necessarily a plea for leniency. Although Riebel's assertion that the jury wanted to plead for
leniency appears, after the fact, to be correct, that desire is not evident from the face of the
note. Furthermore, unlike Rogers, Jackson, and Davidson, the judge did not instruct the jury
that a plea for leniency would be considered. The judge simply instructed the jury to put its
request in writing, and said, I will then decide if it should be read. Moreover, Instruction
No. 10 had instructed the jury that what happens to the defendant under these [insanity] laws
is not to be considered by you in determining whether the defendant was sane or not at the
time he committed his crimes. Under the circumstances, no reasonable juror could have
interpreted the judge's note as a clear directive that a plea for leniency would influence the
sentence, or would even be considered during sentencing. We therefore hold that the verdict
in this case was not the result of an improper jury compromise.
Accordingly, we reverse the convictions for attempted murder of the two officers in the
alleyway, and affirm the remaining convictions including the convictions for attempted
murder of the three persons inside the casino.
____________
106 Nev. 265, 265 (1990) Sawyer v. Sugarless Shops
DONALD SAWYER, Individually and dba, THE TOPPINGTON GROUP, Appellant, v.
SUGARLESS SHOPS, INC., a Nevada Corporation, Respondent.
No. 19661
May 4, 1990 792 P.2d 14
Appeal from district court order in independent equity action refusing relief from an earlier
default judgment and granting alternative motion for dismissal or summary judgment. Eighth
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Plaintiff brought independent equity action seeking relief from default that had been
entered against him. The district court denied relief. Plaintiff appealed. The Supreme Court
held that: (1) material issue of fact as to whether plaintiff was ever served with process in
underlying action rendered default void for lack of jurisdiction; (2) failure of plaintiff in
underlying action to produce a disinterested party with personal knowledge of service of
process rendered default void for lack of jurisdiction; and (3) plaintiff's post default
appearances did not retroactively grant jurisdiction to trial court for entry of default.
[Rehearing denied October 18, 1990]
Hilbrecht & Associates and Anthony J. D'Olio, Las Vegas, for Appellant.
Gibbons, Berman & Wolfson, Las Vegas, for Respondent.
1. Judgment.
Summary judgment can only be granted when there are no genuine issues of material fact and one party is entitled to judgment as
a matter of law.
2. Judgment.
On a motion for summary judgment, documentary evidence must be construed in the light most favorable to the non-moving party,
and all of the non-moving party's statements must be accepted as true and a district court may not pass on the credibility of affidavits.
3. Judgment.
Material issue of fact as to whether defendant, against whom default judgment had been entered, had actually received summons
and complaint, precluded summary disposition on defendant's independent equity action seeking relief from default.
4. Judgment.
Alleged service of process on defendant by two affiants who were unaware of documents contained in sealed envelope which
allegedly contained service of process rendered default judgment entered against defendant void for lack of jurisdiction; plaintiff could
not establish that service of defendant was effected by a disinterested party.
5. Process.
Service of process cannot be effected by a party.
6. Appearance.
Subsequent appearances by parties do not create jurisdiction after the fact when jurisdiction did not exist previously.
7. Appearance.
Defendant's post default appearances in state and federal court did not retroactively grant jurisdiction to trial court which had
entered default against defendant; defendant's appearances in federal court were an assertion of his federal rights and did not affect his
status as a party in state court, and defendant's post default appearances in state court sought relief from the default.
8. Equity; Judgment.
Defendant, who had default judgment entered against him, was not barred by the equitable doctrines of laches or unclean hands
from seeking relief from the default, where defendant made diligent and prompt efforts in federal court to have default overturned.
OPINION
Per Curiam:
This appeal seeks relief from a summary proceeding concluded in favor of respondent
Sugarless Shops, Inc. (Sugarless) and an underlying default judgment allegedly secured by
Sugarless without effectuating valid service of process. Convinced that appellant's position
has merit, we reverse.
Facts
This is the second Nevada action involving these parties and facts. In the original action,
Sugarless filed a complaint alleging that appellant Donald Sawyer (Sawyer), a California
resident doing business as the Toppington Group, breached an oral agreement to provide
financing for Sugarless in exchange for an interest in the company.
Out of concern that Sawyer would attempt to avoid service of process, Sugarless engaged
California counsel and instructed counsel to take extra precautions to effect valid service of
process upon Sawyer. California counsel instructed his secretary to put the summons and
complaint in a sealed manilla envelope
1
and give the messenger service instructions to have
two persons present when Sawyer was served. The record contains affidavits from counsel's
secretary that she placed the summons and complaint in the envelope, sealed it, and then gave
it to the messenger with instructions and Sawyer's business address.
__________

1
Counsel, who admitted that he was a tax specialist and was not fully versed in the intricacies of litigation,
explained that he thought that the sealed envelope was a convention used by the firm to avoid undue
embarrassment to the person being served.
The process server and the witness went to Sawyer's office and delivered the sealed
manilla envelope to a man who was allegedly identified as Sawyer. No mention was made to
this individual that he was being served or that the envelope contained legal papers. Delivery
was made like any of the myriad, mundane deliveries which occur in the daily course of
business. The server later testified that he thought the service procedure was unusual and
admitted that although he was told that the envelope he delivered contained a summons and
complaint, he did not personally know what was in the manilla envelope he handed to the
individual who supposedly was Sawyer.
Sawyer subsequently failed to answer or appear and Sugarless obtained a default judgment
against Sawyer for $495,000.00. Six months after default was taken, Sawyer received the
notice of default. Sawyer diligently but unsuccessfully attempted to have the matter removed
to federal court and the default judgment set aside.
2
After these attempts to invoke the more
generous federal default provisions failed, and fearing that further delay might give rise to
equitable defenses, Sawyer instituted this independent equitable action in the court below.
Standard of Review
[Headnote 1]
The parties agree, and we concur, that for the purposes of our review, this matter should be
treated as an appeal from a grant of summary judgment. The rules governing our review of
summary judgments are strict and well established. Shepard v. Harrison, 100 Nev. 178, 179,
678 P.2d 670, 672 (1984). Summary judgment can only be granted when there are no genuine
issues of material fact and one party is entitled to judgment as a matter of law. Wiltsie v.
Baby Grand Corp., 105 Nev. 291, 774 P.2d 432, 433 (1989). Hence, summary judgment is
necessarily foreclosed if there is the slightest doubt as to the operative facts. Mullis v. Nevada
National Bank, 98 Nev. 510, 654 P.2d 533 (1982).
[Headnote 2]
Moreover, it is well settled that documentary evidence must be construed in the light most
favorable to the non-moving party. Hoopes v. Hammargren, 102 Nev. 425, 429, 725 P.2d
238, 241 (1986). All of the non-movant's statements must be accepted as true and a district
court may not pass on the credibility of affidavits.
__________

2
Believing that he would not be able to attack the default in Nevada because six months had run since entry
of default had occurred, Sawyer attempted to remove the matter to federal court on the basis of diversity
jurisdiction. He intended to use the more generous one year time provision for setting aside default contained in
Rule 60 of the Federal Rules of Civil Procedure. After a long and tortuous process, his removal attempt was
unsuccessful for technical reasons.
true and a district court may not pass on the credibility of affidavits. Hidden Wells Ranch v.
Strip Realty, 83 Nev. 143, 145, 425 P.2d 599, 601 (1967).
Based on the above standard, we perceive two defects in the proceedings below, each of
which is sufficient to mandate reversal of the summary judgment. First, the record and the
affidavits disclose at least one genuine issue of material fact about whether service was
effected in the original action. Second, there is apparently no single individual who is
unaffiliated with Sugarless or disinterested in the outcome of the case who can swear with
personal knowledge that service was accomplished. In the absence of competent evidence of
service, a court is without jurisdiction to enter a default or a default judgment.
Discussion
[Headnote 3]
Nevada's general policy favors the resolution of disputes on their merits rather than by
default. Yochum v. Davis, 98 Nev. 484, 487, 653 P.2d 1215, 1217 (1982); Franklin v. Bartsas
Realty, Inc., 95 Nev. 559, 563, 598 P.2d 1147, 1149 (1979). For reasons hereinafter specified,
the instant case is not amenable to summary disposition and must be determined according to
the merits.
Our review of the record discloses at least one genuine issue of material fact concerning
whether Sawyer received the summons and complaint. This implicates the question of
whether personal jurisdiction was in fact properly obtained in the original action.
Both parties submitted conflicting affidavits. Sugarless presented several affidavits tending
to show that Sawyer got an envelope and that the envelope contained the summons and
complaint. In contrast, Sawyer contends that he was never served. And, on the day he was
allegedly served, he assertedly had other engagements which took him out of his office at the
time and on the day the service was allegedly made. Sawyer also stated that the facts as
represented by Sugarless surrounding the alleged service and the underlying financing
agreement were incorrect and that it was his belief that he had several meritorious defenses to
Sugarless' claims. Despite Sawyer's affidavit, the district court granted summary judgment to
Sugarless and Sawyer appealed.
If Sawyer's affidavit is accepted as true, as it must be for our purposes here, at least one
genuine issue of material fact immediately surfaces. In an action for relief from a default
based upon an allegedly defective service of process, the resultant issue of fact is material.
Summary judgment is not a trial by the affidavit. On this record, it is clear that factual
inquiries are necessary in determinating the truth of the conflicting allegations.
Sugarless attempts to sustain the district court's decision by reliance on Aldabe v. Adams,
81 Nev. 280, 402 P.2d 34 (1965). This reliance is misplaced. In Aldabe, the nonmoving party
was attempting to use a conflict in its own statements to raise a genuine issue of material fact
for trial. The Aldabe court properly held that one cannot modify his or her own statements in
an effort to create a genuine issue and to avoid summary judgment. Id. at 282, 402 P.2d at 35.
In contrast to Aldabe, the conflict here arises from the affidavits of the two parties and
concerns a material fact, a classic impediment to summary judgment.
3

Sugarless then attempts to finesse the difficulty involved in granting summary judgment
on this record by contending that Sawyer perjured himself in his affidavit. Essentially, its
claim is that the overwhelming weight of authority favors a finding of proper service and
therefore the district court appropriately granted summary judgment. This position required
the district court to improperly rule on the credibility of the parties and the weight to be given
their respective evidence, and is reason alone for reversal. Parman v. Petricciani, 70 Nev. at
436, 272 P.2d at 496 (1954).
[Headnote 4]
In addition to the foregoing, we perceive another defect in the proceedings below. There is
no disinterested party with personal knowledge of the service of process. This problem is
fatal to the original default and not just the summary judgment in question here. The two
affiants who allegedly served Sawyer or someone claiming to be Sawyer, were unaware of the
nature of the documents contained in the sealed envelope. Evidence concerning the contents
of the envelope could be supplied only by an employee of the California attorney representing
Sugarless. In order to establish the fact of service, Sugarless necessarily relied upon a
combination of disinterested servers and an interested secretary to its California counsel.
[Headnote 5]
Nevada has long had rules prohibiting service by a party. Nevada Cornell Silver Mines v.
Hankins, 51 Nev. 420, 429-432, 279 P. 27, 29-30 (1929). This was a common law
requirement and has not been changed by statute. Id. There are obvious and sound policy
reasons for this prohibition.
__________

3
Sugarless also attempts to bolster the summary judgment by saying that the default has already been given
full faith and credit in California and has survived a collateral attack based on identical facts asserted here.
Felicitous comity by a sister state cannot validate a void Nevada judgment or a judgment which this court
subsequently determines to have been improperly obtained. The fact that Sawyer may lose his home as a result
of a Nevada default judgment is an even more compelling reason for this court to ensure that default was
properly entered.
and has not been changed by statute. Id. There are obvious and sound policy reasons for this
prohibition. The primary justification, as illustrated by the facts of this case, is that service
many times becomes a battle of credibility and testimony. Something as fundamental and
decisive as service is best taken away from the parties or their counsel or counsel's
employees. Applying this prohibition to the facts of this case, Sugarless cannot establish that
proper service took place by a disinterested party; the default judgment is therefore void.
[Headnote 6]
Additionally, the district court did not obtain jurisdiction by any of Sawyer's subsequent
appearances. The rule in Nevada is that subsequent appearances by parties do not create
jurisdiction after the fact when jurisdiction did not exist previously. Doyle v. Jorgenson, 82
Nev. 196, 414 P.2d 707 (1966); Perry v. Edmonds, 59 Nev. 60, 84 P.2d 711 (1938). In Doyle,
the court said:
Parenthetically, a more difficult question is whether a waiver after judgment also may
be applied retroactively so as to cure initial defects and render proper an otherwise void
judgment. The authorities differ. Nevada has followed the minority position and refused
to retroactively apply general appearances after judgment. (Citations omitted.)
Id. at 201-202, 414 P.2d at 710.
[Headnote 7]
Clearly, Sawyer's post default appearances do not retroactively grant jurisdiction to the
court. Both logic and Nevada authority indicate that the appearances made by Sawyer would
not validate a default judgment otherwise void for lack of service. To hold otherwise would
leave Sawyer and other similarly situated defendants remediless against default judgments
taken against them without a jurisdictional basis. Moreover, Sawyer's appearances in federal
court were an assertion of his federal rights and did not affect his status as a party in the state
court. Alitalia-Linee Aeree v. District Court, 92 Nev. 638, 641, 556 P.2d 544, 545-546
(1976).
[Headnote 8]
Because the summary judgment was improper and the default void for lack of jurisdiction,
we need not decide whether the elements for an independent equity action were satisfied or
whether the independent action is barred by res judicata. Also, Sawyer's diligent and prompt
efforts in federal court, forced upon him by Sugarless' notice strategy, negates any equitable
defenses Sugarless raises. Therefore, there is no merit in the assertion that Sawyer's claims
are barred by the equitable doctrines of laches or unclean hands.
Sawyer's claims are barred by the equitable doctrines of laches or unclean hands.
The summary judgment entered below is reversed and the entry of default and default
judgment entered against Sawyer is vacated.
Young, C. J., Steffen, Springer and Mowbray, JJ., and Gunderson, Sr. J.,
4
concur.
____________
106 Nev. 271, 271 (1990) Petersen v. Bruen
TOR PETERSEN, Appellant, v. NED BRUEN, Respondent.
No. 19878
May 10, 1990 792 P.2d 18
Appeal from district court order dismissing appellant's complaint for failure to file within
the applicable period of limitations. Ninth Judicial District Court, Douglas County; Norman
C. Robison, Judge.
Plaintiff in personal injury action seeking to recover damages for child sexual abuse
appealed from order of the district court which dismissed the action as time barred. The
Supreme Court, Steffen, J., held that no existing statute of limitations applies to bar the action
of an adult survivor of child sexual abuse when it is shown by clear and convincing evidence
that the plaintiff has in fact been sexually abused during minority by the named defendant.
Springer, J., dissented in part.
Manoukian, Scarpello & Alling and Jeff E. Parker, Carson City, for Appellant.
Perry, Hebert & Spann and Thierry V. Barkley, Reno, for Respondent.
1. Limitation of Actions.
General rule concerning statutes of limitation is that a cause of action accrues when the wrong occurs and the party sustains injury
for which relief could be sought.
__________

4
The Honorable Cliff Young, Chief Justice, appointed The Honorable E. M. Gunderson, Senior Justice, to sit
in place of The Honorable Robert E. Rose, Justice.
Exception to the general rule that cause of action accrues for limitations purposes when the wrong occurs and party sustains injury
is recognized in the discovery rule, under which the period of limitations is tolled until the injured party discovers or reasonably
should have discovered facts supporting a cause of action.
Rationale behind the discovery rule is that the policies served by statutes of limitation do not outweigh the equities reflected in the
proposition that plaintiffs should not be foreclosed from judicial remedies before they know that they have been injured and can
discover the cause of their injuries.
No existing statute of limitations applies to bar the action of an adult survivor of child sexual abuse (CSA) when it is shown by
clear and convincing evidence that the plaintiff has in fact been sexually abused during the minority by the named defendant; absent
such evidence, cause of action based upon allegations of child sexual abuse will be subject to the regular two-year period of limitations.
NRS 11.190, subd. 4(e).
At common law, there was no fixed period of time that limited an aggrieved party's right to maintain an action.
OPINION
The district court dismissed appellant Tor Petersen's complaint on the ground that it was
time-barred by the statute of limitations. Petersen, seeking damages for injuries resulting from
child sexual abuse (CSA), contends that the lower court erred in refusing to apply the
discovery rule to toll the running of the statutory period. Convinced that Petersen is entitled
to maintain his action, we reverse.
Facts
Petersen was sexually abused by respondent, Ned Bruen, during the period from 1975 to
1983 when, under the auspices of the Big Brothers program, Bruen was assigned as a big
brother to Petersen. The record reflects that Petersen, the little brother, was approximately
seven years old when the abuse commenced. Bruen exploited his relationship of trust with
Petersen by seducing him and committing various acts of sexual battery upon his young
victim. Bruen also memorialized his depravity by taking photographs of Petersen before,
during and after Bruen's sexual trysts with his victim.
Petersen first sought help with his emotional and psychological problems in November of
1987, when he commenced psychotherapy.
therapy. In the process of counseling with his psychiatrist, Petersen decided to apprise law
enforcement officers of Bruen's criminal behavior. As a result of Petersen's disclosures and a
subsequent investigation, Bruen was eventually convicted of sexual assault, attempted sexual
assault, lewdness with a minor under the age of fourteen, use of a minor in producing
pornography, and possession of child pornography.
Petersen filed a civil action against Bruen on July 20, 1988, claiming that he first realized
the causal connection between Bruen's sexual impositions and his emotional and mental
problems during his psychiatric treatment. Petersen's allegations against Bruen consisted of
causes of action for battery and negligent and intentional infliction of emotional distress. In
an affidavit submitted in opposition to Bruen's motion to dismiss, Petersen averred that he
had blocked out the eight years of sexual molestations by Bruen until vividly recalled during
his therapy. Petersen further recalled consenting to Bruen's overtures, not considering the acts
offensive at the time, and suffering no physical injury from his encounters with Bruen.
The district court determined that Nevada's two-year period of limitations applied and
dismissed Petersen's complaint. According to the record, Bruen last molested Petersen in
1983, approximately five years before Petersen filed his action. Petersen insists that the
district court erred in dismissing his complaint because he did not discover the nexus between
Bruen's behavior and his emotional distress until 1987. Having filed his complaint in July
1988, Petersen argues that his action was timely.
Discussion
This appeal presents issues of first impression in Nevada. The narrow issue on appeal is
whether the district court properly applied the statute of limitations to the facts of Petersen's
case. NRS 11.190(4)(e) expressly declares that civil actions must be commenced within two
years for injuries to a person . . . caused by the wrongful act . . . of another.
In resolving the issue before us, it is necessary to consider the purposes served by statutes
of limitation. Justice Holmes succinctly stated that the primary purpose of such statutes is to
[prevent] surprises through the revival of claims that have been allowed to slumber until
evidence has been lost, memories have faded, and witnesses have disappeared. Telegraphers
v. Ry. Express Agency, 321 U.S. 342, 348-349 (1944). Although statutes of limitation are
generally adopted for the benefit of individuals rather than public policy concerns. Kyle v.
Green Acres at Verona, Inc., 207 A.2d 513, 519 (N.J. 1965), it has been stated that: Viewed
broadly, . . .statutes of limitation embody important public policy considerations in that
they stimulate activity, punish negligence, and promote repose by giving security and
stability to human affairs.
Viewed broadly, . . . statutes of limitation embody important public policy
considerations in that they stimulate activity, punish negligence, and promote repose by
giving security and stability to human affairs. Thus, statutes of limitation rest upon
reasons of sound public policy in that they tend to promote the peace and welfare of
society, safeguard against fraud and oppression, and compel the settlement of claims
within a reasonable period after their origin and while the evidence remains fresh in the
memory of the witnesses.
51 Am.Jur.2d Limitation of Actions 18 (1970) (footnotes and citations omitted).
Finally, it has been observed that [s]tatutes of limitation find their justification in
necessity and convenience rather than logic, and it has been said that they represent
expedience rather than principles. Id. at 19, p. 603 (citing Chase Secur. Corp. v.
Donaldson, 325 U.S. 304 (1945)).
[Headnotes 1, 2]
The general rule concerning statutes of limitation is that a cause of action accrues when the
wrong occurs and a party sustains injuries for which relief could be sought. Nelson v. A.H.
Robbins Co., 515 F.Supp. 623, 625 (N.D.Cal. 1981). An exception to the general rule has
been recognized by this court and many others in the form of the so-called discovery rule.
Under the discovery rule, the statutory period of limitations is tolled until the injured party
discovers or reasonably should have discovered facts supporting a cause of action. See, e.g.,
Sorenson v. Pavlikowski, 94 Nev. 440, 443-444, 581 P.2d 851, 853-854 (1978) (in legal
malpractice action, cause of action accrues when plaintiff sustains damage and discovers, or
should discover, his cause of action); Prescott v. United States, 523 F.Supp. 918, 940-941
(D.Nev. 1981) (Plaintiff who relies upon this delayed discovery rule must plead facts
justifying delayed accrual of his action. The complaint must allege: (1) the time and manner
of discovery, and (2) the circumstances excusing delayed discovery.), aff'd, 731 F.2d 1388
(9th Cir. 1984); Fidler v. Eastman Kodak Co., 714 F.2d 192 (1st Cir. 1983); Raymond v. Eli
Lily & Co., 371 A.2d 170 (N.H. 1977).
[Headnote 3]
The rationale behind the discovery rule is that the policies served by statutes of limitation
do not outweigh the equities reflected in the proposition that plaintiffs should not be
foreclosed from judicial remedies before they know that they have been injured and can
discover the cause of their injuries. Plaintiffs should be put on notice before their claims are
barred by the passage of time.
should be put on notice before their claims are barred by the passage of time. See Fidler, 714
F.2d at 198.
Jurisdictions that have considered the discovery rule in the context of adult survivors of
CSA have reached differing conclusions.
1
The Wisconsin Court of Appeals balanced the
policies of the discovery rule and the statute of limitations when determining whether the
discovery rule should apply to cases of incestuous abuse. In Hammer v. Hammer, 418
N.W.2d 23 (Wis.Ct.App. 1987), rev. denied, 428 N.W.2d 552 (Wis. 1988), the court held as
a matter of law, that a cause of action for incestuous abuse will not accrue until the victims
discover, or in the exercise of reasonable diligence should have discovered, the fact and cause
of the injury. Id. at 26. In Hammer, the adult survivor of childhood sexual abuse did not
understand the past and present impact of the sexual abuse until she sought psychiatric help.
The court adopted the discovery rule for incest cases and remanded the case to determine
whether the discovery rule was applicable to the victim. The court rejected the argument from
the alleged abuser that the statute of limitations' protection was being eroded and defendants
would be subject to meritless claims for alleged wrongdoing from many years past. In
rejecting the argument, the court noted that to protect the adult sexual abuser at the expense
of the child is an intolerable perversion of justice. Id. at 27. The court reached this
determination by balancing the victim's and the defendant's interests and concluding that the
injustice of barring meritorious claims before the claimant knows of the injury outweighs the
threat of stale or fraudulent actions. Id.
On the other hand, Washington courts have decided that the discovery rule did not apply to
cases similar to Hammer. Tyson v. Tyson, 727 P.2d 226 (Wash. 1986).
2
Although the Tyson
ruling has been superseded by statute,
3
the opinion has been cited by both Petersen and
Bruen for the different viewpoints expressed by the majority and dissent.
__________

1
Johnson v. Johnson, 701 F.Supp. 1363 (N.D.Ill. 1988); Meiers-Post v. Schafer, 427 N.W.2d 606
(Mich.Ct.App. 1988); E. W. v. D. C. H., 754 P.2d 817 (Mont. 1988); Tyson v. Tyson, 727 P.2d 226 (Wash.
1986); Hammer v. Hammer, 418 N.W.2d 23 (Wis.Ct.App. 1987), rev. denied, 428 N.W.2d 552 (Wis. 1988).

2
See also Kaiser v. Milliman, 747 P.2d 1130 (Wash.Ct.App. 1988); Raymond v. Ingram, 737 P.2d 314
(Wash.Ct.App. 1987).

3
The statute superseding Tyson states that
[A]ll claims or causes of action based on intentional conduct brought by any person for recovery of
damages for injury suffered as a result of childhood sexual abuse shall be commenced within three years
of the act alleged to have caused the injury or condition, or three years of the time the victim discovered
or reasonably should have discovered that the injury or condition was caused by said act, whichever
expires later.
West's RCWA 4.16.340 (1988) (amending RCW 4.16.350 and adding a new section to RCW 4.16).
both Petersen and Bruen for the different viewpoints expressed by the majority and dissent. In
Tyson, the Washington Supreme Court concluded that the discovery rule should be adopted
only when the risk of stale claims is outweighed by the unfairness of precluding justified
causes of action. Tyson, 727 P.2d at 228. The court stated that it has previously applied the
discovery rule in non-sexual abuse cases where there was objective, verifiable evidence of the
original wrongful act and the resulting injury. Because there was no such evidence in Tyson,
the court did not apply the discovery rule to the sexual abuse victim. Id. at 229.
Petersen argues that Tyson can be reconciled with the case at hand. He asserts that Bruen's
criminal convictions, based upon the sexual abuse Petersen suffered, serve as an objective
manifestation of Petersen's injuries. We agree that the concerns regarding objective evidence
are satisfied by Bruen's convictions.
Courts in California and Montana have held that the discovery rule does not apply when
the victims knew of the factual elements of their cause of action long before the statute of
limitations ran. See, e.g., DeRose v. Carswell, 242 Cal.Rptr. 368 (Cal.Ct.App. 1987); E. W. v.
D. C. H., 754 P.2d 817 (Mont. 1988).
The case of Meiers-Post v. Schafer, 427 N.W.2d 606 (Mich.Ct.App. 1988), involved facts
similar to those in the present action. The plaintiff filed an action against the defendant
arising out of the sexual acts committed by the defendant which resulted in emotional harm to
the plaintiff. The defendant admitted committing the sexual acts, thus there was no stale
claim concern because of the objective evidence of the abuse. Furthermore, the Michigan
Court of Appeals adopted a two-prong test when determining whether to allow the discovery
rule to toll the statute of limitations in sexual abuse cases:
(a) a plaintiff can make out a case that she has repressed the memory of the facts upon
which her claim is predicated, such that she could not have been aware of the rights she
was otherwise bound to know, and (b) there is corroboration for plaintiff's testimony
that the sexual assault occurred.
Id. at 610.
Turning again to NRS 11.190(4)(e) and its application to Petersen's complaint, we first
observe that this court has long recognized that:
In order to reach the intention of the legislature, courts are not bound to always take
the words of a statute either in their literal or ordinary sense, if by so doing it would
lead to any absurdity or manifest injustice, but may in such cases modify, restrict, or
extend the meaning of the words, so as to meet the plain, evident policy and purview
of the act, and bring it within the intention which the legislature had in view at the
time it was enacted {emphasis added).
meet the plain, evident policy and purview of the act, and bring it within the intention
which the legislature had in view at the time it was enacted (emphasis added).
Escalle v. Mark, 43 Nev. 172, 176, 183 P. 387, 389 (1919) (quoting Ex Parte Siebenhauer, 14
Nev. 365, 369 (1879)). See also Gibson v. Mason, 5 Nev. 283 (1869). The pertinent language
of NRS 11.190(4)(e) was first enacted in Nevada in 1951. In reviewing the database of
reported Nevada cases since the year 1945, the first case involving CSA appears in the year
1964. Since 1964, and through 1989, there have been a total of thirty-eight such reported
cases, all of which were criminal, and twenty-four of which were decided since 1980. It is
logical to infer from the foregoing statistics that criminal prosecutions in Nevada involving
CSA have greatly increased during the last two decades. It is also logical to conclude that the
Legislature did not specifically contemplate CSA within the wrongful acts terminology of
the statute when it was enacted in 1951.
We think it is safe to assume that the attitudes and policies reflected by our statute of
limitations were formulated without concern for the comparatively recent and growing public
cognition of CSA and its long-term effects. To this day, the issue evokes a plethora of
problems stemming from such factors as the age of child-victims, lack of witnesses, frequent
lack of physical evidence, victim defense mechanism, prosecutorial inexperience, imprecise
and controversial investigative and therapy methodology, parental responses and
involvement, tension between an accused's right of confrontation and compounding the extent
and duration of trauma to the child-victim, hysteria, length and adversarial nature of judicial
proceedings, and fear. Although the foregoing factors and others unspecified primarily impact
the complexity of criminal prosecutions, they also affect, in varying degrees and duration, the
quality of life of the victims, whether exposed to the criminal justice system or not.
The question thus becomes whether the policies favoring the unenforceability of stale
claims should prevail in situations involving adult survivors of CSA. Obviously, the fact that
a claim is based upon allegations of CSA does not eliminate or diminish concerns about
fraudulent and oppressive claims; nor does it render evidentiary problems resulting from
delay less important. On the other hand, where, as here, the fact of CSA is clearly and
convincingly shown, we find it difficult to place the plight of the abuser in a position of
preeminence over that of the victim irrespective of delay. Ofttimes survivors of CSA are
beset with such crippling symptoms as guilt, anxiety, embarrassment, depression, and fear
over protracted periods of time.4 As indicated by the lack of civil actions in Nevada
seeking redress against perpetrators of CSA, many survivors of such abuse will complete
life's struggle without ever attempting to call their tormentors to account.
depression, and fear over protracted periods of time.
4
As indicated by the lack of civil
actions in Nevada seeking redress against perpetrators of CSA, many survivors of such abuse
will complete life's struggle without ever attempting to call their tormentors to account.
Others may continue to survive with their fingers in the dike until the pressure becomes too
great to bear and they are compelled to find help.
In those instances where the fact of abuse is clearly and convincingly corroborated, we
perceive no compelling need or policy which justifies the intervention of a period of
limitations to eliminate the right of CSA victims to seek recovery against their abusers,
irrespective of delay or the time of discovery of the causal connection between the abuse
and the injury.
__________

4
In a summary of the long-term effects of CSA, it was noted that:
Empirical studies with adults confirm many of the long-term effects of sexual abuse mentioned in the
clinical literature. Adult women victimized as children are more likely to manifest depression,
self-destructive behavior, anxiety, feelings of isolation and stigma, poor self-esteem, a tendency toward
revictimization, and substance abuse. Difficulty in trusting others and sexual maladjustment . . . has [sic]
also been reported by empirical researchers. . . .
See D. Finkelhor, A Sourcebook on Child Sexual Abuse, at 162-63 (1986).
Another research paper, McLeer, Susan V. et al. Post-Traumatic Stress Disorder in Sexually Abused
Children, Journal of American Academy of Child and Adolescent Psychiatry 1988, 27, 5:650-54, reported that
studies on the impact of CSA reveal that 46 to 66% of sexually abused children demonstrate significant and
severe symptoms. . . . Forty to eighty percent of these symptoms are related to anxiety and its associated
manifestations of autonomic hyperarousal, avoidant behaviors, and re-experiencing phenomenon . . . symptoms
that constitute partial criteria for DSM-III-R [Diagnostic and Statistical Manual (DSM-III-R), American
Psychiatric Society, Washington, D.C., 1989] post-traumatic stress disorder (PTSD). Id. at 650. The interviews
of CSA victims upon which this study was based were scored according to a checklist with three subcategories
of symptoms developed from DSM-III-R criteria for PTSD: (1) re-experiencing behavior, including repetitive
talking about the abuse, repetitive play, flashbacks, nightmares, inappropriate sexual activity or talking, and fear
of places, people, and things that were viewed as symbolic of the abuse; (2) avoidant behaviors, including
avoidance of people, places, and things associated with the abuse, an unwillingness to talk about the abuse, no,
or limited memory of the abuse, decreased concentration, and lack of interest in activities; and (3) symptoms of
autonomic hyperarousal, including difficulty falling asleep or staying asleep, irritability, anger and/or aggressive
behavior, distractibility, hyperalert, anxious, or startle reactions, and physiological changes. Id. at 651-52. The
study concluded that 48.4% of the abused subjects met DSM-III-R criteria for PTSD. Id. at 652. Finally, the
paper noted that other studies indicate that [a]dult survivors of CSA have demonstrated more symptoms and
dysfunction than normal controls, with symptoms clustering in three areas: anxiety and its associate behaviors,
depression and associated lowered self-esteem, social and sexual dysfunction. . . . Id. at 650. Continuing, the
article observed that [s]everal investigators have noted that some of these symptom clusters fit DSM-III-R
criteria for PTSD, and these data suggest that women may have unremitting PTSD symptoms for years after the
experience of CSA. . . . Id.
abusers, irrespective of delay or the time of discovery of the causal connection between the
abuse and the injury. In these limited instances where proof of the abuse has not been
obscured by the passage of time, the delay can hardly be a source of significant prejudice or
disadvantage to abusers. It appears likely that the longer an abuser can defer accountability
and enjoy the accrual and use of assets unencumbered by the claims of a victim, the better
from the abuser's perspective. Conversely, in many cases, the lives of CSA survivors
progressively deteriorate to the point where individual coping is no longer possible or
tolerable.
5
We do not agree with the proposition that CSA victims who have avoided
litigation or exposure for extended periods should be sacrificed for a policy disfavoring stale
claims or the disturbance of abusers who have grown accustomed to living free of concern
over an eventual day of reckoning with their victims.
Moreover, in these unique cases where clear and convincing proof of CSA exists, adoption
of the discovery rule would produce some untoward, if not bizarre, possibilities. First, in
undoubted instances, the complex of emotions burdening victims may be exacerbated by
forcing them to prematurely confront their abusers in order to preserve their prospects for
redress. Second, a victim's suffering may be intensified by the realization that his or her
failure to timely muster the will or the courage to seek relief from the abuser has left the latter
forever immune from civil accountability. Third, it is reasonable to assume that certain
victims, when informed of the discovery rule, will add to their inner turmoil by dissembling
in order to avoid the bar of the statute. Fourth, under the discovery rule, the CSA victim will
be subjected to the ultimate irony of having to demonstrate his or her integrity in claiming
the benefit of the rule.
__________

5
In a report reflecting a basic consensus between psychiatrist and psychologists reviewing all relevant data
for diagnostic purposes, symptoms identified as characteristic of post-traumatic stress disorder included:
depression and anxiety, a sense of a foreshortened future, psychic numbing, conscious and pervasive fear,
recurrent nightmares and hypervigilence. The report also observed that
Symptoms usually begin immediately or soon after the trauma. Reexperiencing symptoms may
develop after a latency period of months or years following the trauma, though avoidance symptoms have
usually been present during this period.
Impairment may be either mild or severe and affect nearly every aspect of life. Phobic avoidance of
situations or activities resembling or symbolizing the original trauma may interfere with interpersonal
relationships such as marriage or family life. Emotional lability, depression, and guilt may result in
self-defeating behavior or suicidal actions. Psychoactive Substance Use Disorders are common
complications.
Diagnostic and Statistical Manual (DSM-III-R), American Psychiatric Society, Washington, D.C., 1989, pp.
248, 249.
integrity in claiming the benefit of the rule. The thrust of the action will shift from the actions
of the abuser and the injuries of the victim to matters of proof concerning the victim's
allegations regarding either the actual date and circumstances of discovery or worse yet, the
time when the victim reasonably should have discovered that the abuser's conduct was the
source of his or her emotional and mental distress.
Although we do not suggest that Petersen has dissembled in his effort to secure passage
through the barrier of the statute, the sworn allegations of his affidavit are illustrative of the
irony of his position. By averting that he had blocked from his memory the incidents
involving Bruen until recall was received in the course of therapy, Petersen has sought to
place himself within the ambit of the discovery rule. Moreover, he seeks to buttress the
believability of his period of forgetfulness by alleging that he did not perceive the acts to be
offensive at the time of their occurrence, that he consented thereto and was not physically
injured as a result. In other words, at the time of Bruen's perfidy, Petersen was not sufficiently
traumatized or impressed with the wrongfulness of the acts to make their repression
particularly difficult.
The spectacle thus produced by the discovery rule is one of transmogrification, with the
victim trying to convince the trier of fact that he has not now become an abuser of truth as an
expedient to achieve requital against his former tormentor. And, because proof of discovery
in these types of cases must depend in large measure on an inexact science dealing with the
psyche, an anticipated conflict of expert opinion will add a further dimension and obstacle to
the victim's attempt to reach first base.
We readily concede that in other instances where the discovery rule is applied, the burden
shifts to the plaintiff to prove the time and method of discovering the injury. In many such
cases, however, objective evidence exists to help meet the burden. In cases of CSA survivors,
virtually the only means of sustaining the burden is to convince the trier of fact that the
plaintiff's mentation repressed the acts of abuse or their deleterious effects over a certain
period of time. The fact that a CSA survivor may have been mentally and emotionally
incapable of asserting his or her claim within the statutory period would have no relevance
under the discovery rule.
Unlike almost all other complainants subjected to statutes of limitation, child victims of
sexual abuse suffer from a form of personal intrusion on their mental and emotional makeup
that interferes with normal emotional and personality development.
6
As a result, the adverse
effects of such abuse may perceptibly increase for prolonged periods, if not an entire
lifetime.
__________

6
In a study involving the development of post-traumatic stress disorder in ten children reportedly sexually
abused in a day-care setting, it was observed that [p]roblems with personal-social relationships appeared to be a
perva-
As a result, the adverse effects of such abuse may perceptibly increase for prolonged periods,
if not an entire lifetime. And, although physical trauma and injury present in other torts may
result in a gradual physical deterioration with concomitant emotional distress, such actions
usually are not complicated by the stigma, fear and depression associated with CSA.
In short, adult survivors of CSA present unique circumstances and injuries that do not
readily conform to the usual constructs upon which periods of limitations are imposed. In a
sense, such survivors are analogous to victims of false imprisonment, where each new day of
confinement creates a new cause of action. Unfortunately, however, CSA survivors are
hostage to their own thought processes, implanted by their abusers, and from which they may
never be totally released. Indeed, the mental and emotional dysfunction suffered by such
victims may virtually prevent them from seeking relief against their tormentors until the
period of limitations has long since expired. To place the passage of time in a position of
priority and importance over the plight of CSA victims would seem to be the ultimate
exaltation of form over substance, convenience over principle.
[Headnotes 4, 5]
Based upon the foregoing, we hold that no existing statute of limitations
7
applies to bar
the action of an adult survivor of CSA when it is shown by clear and convincing evidence
that the plaintiff has in fact been sexually abused during minority by the named defendant.
8
Absent such evidence, a cause of action based upon allegations of CSA will be subject to the
regular two-year period of limitations specified currently under NRS 11.190{4){e).
__________
sive area of difficulty. The paper also noted that [o]n the Minnesota Child Development Inventory, the
children were found to be functioning in the lower 10% of children their age in personal-social development.
The study also stated that the fearfulness present in the children appeared to represent collapse of
developmental accomplishment. Kiser, Laurel J. et al. Post-Traumatic Stress Disorder in Young Children: A
Reaction to Purported Sexual Abuse. Journal of American Academy of Child and Adolescent Psychiatry, 1988,
27, 5:645-649.
Moreover, in the article by McLeer, et. al. (see footnote 4), it was concluded that [i]t may well be that
sexually abused children with PTSD are at risk for symptom and/or disorder persistence, perhaps even from
childhood into adulthood. Id. at 653.

7
At common law there was no fixed period of time that limited an aggrieved party's right to maintain an
action. See, generally, 51 Am.Jur.2d, Limitation of Actions 1 (1970); 54 C.J.S. Limitations of Actions 2
(1987). As observed previously, we feel assured that the legislature did not contemplate or consider the unique
aspects of CSA cases in fixing general periods and categories of limitations.

8
We are confident that the legislature will take such measures as it may deem advisable to address the
instant ruling if it determines that demonstrated survivors of CSA should be limited in the time within which
enforceable actions may be pursued.
upon allegations of CSA will be subject to the regular two-year period of limitations specified
currently under NRS 11.190(4)(e).
We recognize that injustice may result from our ruling in instances where CSA has
occurred but cannot be demonstrated by corroborative evidence that is clear and convincing.
We are persuaded, however, that the potential for fraudulent claims is sufficiently great to
warrant such a ruling, at least until such time as the legislature may elect to provide a period
of limitations directly addressing this specific problem. Because CSA will most often occur
under circumstances which are difficult to prove, we would encourage the legislature to enact
legislation designed to provide the maximum opportunity for justice in these most difficult
types of cases.
9

Conclusion
For reasons hereinbefore stated, we conclude that Petersen demonstrated by the requisite
showing of clear and convincing evidence that he was in fact sexually abused as a child and
that Bruen was his abuser. Therefore, the district court erred in dismissing Petersen's
complaint. The judgment is reversed and the matter remanded for trial.
Young, C. J., and Mowbray, J., concur.
Rose, J., concurring:
I concur in the result reached in the majority opinion. However, I would prefer to adopt a
rule that tolls the running of the statute of limitations until the discovery of the cause of the
victim's psychological problems as has been done in cases from other jurisdictions such as
Hammer v. Hammer, 418 N.W.2d 23 (Wis.Ct.App. 1987), rev. denied, 428 N.W.2d 552
(Wis. 1988), and Meiers-Post v. Schafer, 427 N.W.2d 606 (Mich.Ct.App. 1988); or until the
victim can psychologically address his child sexual assault (CSA) and assert it publicly. Since
Petersen's discovery of the causal connection between his psychological problems and the
CSA occurred in 1987 and his complaint was filed in July, 1988, the lower court may well
find that this action was timely filed if the running of the statute of limitations is tolled until
the discovery of the cause of the injury. The lower court could also find that sufficient
evidence supports a claim that Mr. Petersen could not psychologically confront and make
public the prior CSA until shortly before the complaint was filed. Neither factual
determination has been made in this case.
__________

9
For example, the legislature may determine that alleged victims of CSA who do not have clear and
convincing evidence of the fact of their abuse should nevertheless be entitled to the benefit of the discovery rule.
The Washington statute cited in footnote 3 above is an example of a statute that would provide such a benefit.
factual determination has been made in this case. I would also apply the tolling of the statute
of limitations as stated in all CSA cases, whether the assault was established by clear and
convincing evidence or simply by a preponderance of the evidence.
The majority opinion is very persuasive in advocating the elimination of the statute of
limitations in all CSA cases where the assault can be established by clear and convincing
evidence. However, I would defer the decision on the actual adoption of that position, in this
or a later case, until this court is presented with a child sexual assault case that is determined
to be barred by the statute of limitations even after application of the above stated rules.
Springer, J., concurring and dissenting:
I agree with the majority opinion that a discovery rule in these kinds of cases is
unrealistic. I disagree, however, with the majority's attempt to annul the statute of limitations
in civil cases arising out of child sex abuse cases. I dissent from the majority opinion in this
regard and, therefore, from the decision to reverse.
The legislature may choose to eliminate the statute of limitations with respect to child
abuse cases. I do not think that the court should be making these kinds of major policy
decisions. I find the reasoning in support of doing away with the statute of limitations to be
hard to follow and a bit contrived.
____________
106 Nev. 283, 283 (1990) LTR Stage Lines v. Gray Line Tours
LAS VEGAS-TONOPAH-RENO STAGE LINES, INC., Appellant, v. GRAY LINE TOURS
OF SOUTHERN NEVADA, Respondent.
No. 19305
May 16, 1990 792 P.2d 386
Appeal from judgment awarding damages for intentional interference with a prospective
commercial relationship. Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Bus company sued rival company, claiming interference with prospective business
relationship. The district court entered judgment for bus company and rival appealed. The
Supreme Court held that: (1) bus company was not required to prove that rival had specific
intent to harm when it took away business of bus transportation arranger by offering illegal
commissions; (2) interference with prospective business relationship was not involved in later
decision of arranger to split business between companies.
at which time rival had stopped offering illegal commissions; and (3) prejudgment interest on
damages incurred after filing of complaint began to run from date when damages were first
incurred.
Affirmed in part; reversed in part and remanded.
Parnell & Associates, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy, Jemison & List and Franny Forsman and Daniel F.
1. Torts.
Bus company which convinced bus transportation arranger to use it rather than a second bus company, by offering arranger
commissions in excess of statutory maximum and in violation of tariff requirements, interfered with prospective business relationship
of second company even though it was not proved that first company had specific intent to harm second company: requirement was
that first company be substantially certain that interference with commercial relationship would occur.
2. Torts.
Bus company which was found to have interfered with prospective business relationship of second bus company by securing
business of arranger of bus transportation through offering illegal commissions did not further interfere with relationship when, after a
period of resuming business relationships with second company, arranger began splitting business between two companies; there was
no evidence that illegal tactics which caused first diversion of business to be actionable were present in second case.
3. Interest.
Prejudgment interest should begin to accrue from time damages are actually incurred if damages are sustained after complaint is
served but before judgment, rather than from date of serving complaint or from date of judgment. NRS 17.130.
OPINION
Per Curiam:
INTRODUCTION
Gray Line Tours of Southern Nevada (Gray Line) was awarded judgment after a bench
trial against Las Vegas-Tonopah-Reno Stage Lines, Inc. (LTR), a competitor, for LTR's
intentionally interfering with the present and prospective business relationship Gray Line had
with USA Hosts, a company that sends business to tour operators. LTR claims that the
necessary intent to establish the tort of intentional interference with a prospective business
relationship was not proven by Gray Line, that there was a complete lack of evidence to
support damages for a second period of loss based on tortious interference and that
prejudgment interest beginning when the complaint was served was improperly awarded
pursuant to NRS 17.130 because the loss sustained was subsequent to the complaint's
service but prior to the entry of judgment.
complete lack of evidence to support damages for a second period of loss based on tortious
interference and that prejudgment interest beginning when the complaint was served was
improperly awarded pursuant to NRS 17.130 because the loss sustained was subsequent to
the complaint's service but prior to the entry of judgment.
We conclude that there was sufficient evidence of LTR's intent to interfere with Gray
Line's prospective business relationship which amply supported the damages assessed for the
initial period of loss by Gray Line, but that there was insufficient evidence to establish the
tortious interference that allegedly caused the business loss during a subsequent period of
time. Interest on the damage permitted by NRS 17.130 should have begun at the end of the
loss period, not from the time the complaint was served.
STATEMENT OF FACTS
LTR and Gray Line are competing companies that provide bus transportation and
sight-seeing tours for tourists. USA Hosts is a firm which places tourists with bus companies
for various activities. It has the exclusive right to place guests at the Las Vegas Hilton with
bus services.
From 1980 until 1984 Gray Line was the primary sight-seeing carrier for USA Hosts. This
was not pursuant to any formal written contract, but rather a verbal understanding that paid
USA Hosts a ten percent commission. USA Hosts began in 1982 to look for a replacement for
Gray Line but could not find another adequate carrier. This desire to change carriers may have
been sparked by some personal animosity between the presidents of USA Hosts and Gray
Line, even though the testimony of USA Hosts' president was that Gray Line ran a fine
organization. In late 1983, LTR attempted to negotiate a deal with USA Hosts for its
sight-seeing business. This fell through because of LTR's financial problems at that time.
In October 1984, LTR and USA Hosts did reach a verbal agreement to shift USA Hosts'
sight-seeing business from Gray Line to LTR. This verbal agreement included a promise by
LTR to pay USA Hosts more than ten percent in commissions on sight-seeing tours. Nevada
Public Service Commission orders prohibit commissions greater than ten percent to brokers
for sight-seeing tours. LTR also agreed to pay commissions to USA Hosts on airport charters
when LTR did not have a tariff on file permitting it to do this. This is prohibited by NRS
706.766(1) and LTR was aware of these orders and prohibitions.
On January 15, 1985, Gray Line filed a complaint against LTR alleging tortious
interference with a prospective economic advantage.
alleging tortious interference with a prospective economic advantage. The summons and
complaint were served on January 18, 1985. Little discovery or litigation activity took place
until a request for a non-jury trial setting was made in late 1987, and the case was set for trial
on March 3, 1988.
The Nevada Public Service Commission became aware of the illegal commissions LTR
was paying. On September 13, 1985, the Commission ordered LTR to cease and desist from
the payment of these commissions and to take action to collect the excess payments which
had already been made to USA Hosts.
In October 1985, shortly after the Nevada Public Service Commission order was entered
against LTR, USA Hosts switched its sight-seeing business from LTR back to Gray Line. In
December 1985, USA Hosts began splitting its tourist business between Gray Line and LTR.
USA Hosts' president was vague in stating his reasons for splitting his business between the
two companies. He indicated only that he was giving some business to LTR because it agreed
to make amends for its failure to honor its past agreements with USA Hosts. There is no other
evidence in the record to show what LTR promised to do or did do to make amends or if
illegal commissions were again paid by LTR to USA Hosts. In June 1986, USA Hosts
stopped splitting its business between the two companies and again gave all of its business to
Gray Line.
After a five-day, non-jury trial, the district court found that a prospective business
relationship existed between Gray Line and USA Hosts, that LTR had knowledge of this
relationship, and that LTR used unlawful means to interfere with this relationship. The court
found that Gray Line lost $217,529 because of the diversion of USA Hosts' business by LTR
in 1985. The court further found that Gray Line lost $63,961 from January through May 1986,
this being during the period when USA Hosts was splitting its business between the two
companies. The court then entered judgment in favor of Gray Line and against LTR in the
amount of $337,209. LTR and Gray Line both agree that the district court erroneously entered
the judgment amount of $337,209 and that the correct figure based upon the judge's findings
should be a judgment of $281,490.
In the judgment entered by the district court, Gray Line was awarded costs and
prejudgment interest calculated from the time the complaint was served in January 1985 at
the rate of 12 percent per annum, for a final judgment of $472,055.87. The court found no
malice in LTR's action and declined to award punitive damages. LTR has appealed from the
district court's judgment.
LEGAL DISCUSSION
I. Wrongful interference with prospective economic advantage.
[Headnote 1]
In Leavitt v. Leisure Sports, Inc., 103 Nev. 81, 734 P.2d 1221 (1987), we stated the
elements of the tort of wrongful interference with prospective economic advantage, as
follows:
We note that this particular tort possesses the following elements: (1) a prospective
contractual relationship between the plaintiff and a third party; (2) the defendant's
knowledge of this prospective relationship; (3) the intent to harm the plaintiff by
preventing the relationship; (4) the absence of privilege or justification by the
defendant; and, (5) actual harm to the plaintiff as a result of the defendant's conduct.
Buckaloo v. Johnson, 537 P.2d 865, 872 (Cal. 1975).
1

Leavitt, 103 Nev. at 88, 734 P.2d at 1225. LTR claims that the Leavitt case required Gray
Line to prove actual malice or intent to harm and that such proof was not produced at trial.
Gray Line counters by asserting that the only intent to harm that Leavitt requires is a
purposeful interference as opposed to an actual intent to harm. The district court concluded
that the intent required for this tort is that the defendant be substantially certain that
interference with a commercial relationship will occur. We agree.
In Leavitt, we merely summarize the elements of this tort, stating that one element was the
intent to harm by preventing the relationship and cited the Buckaloo case. While the Buckaloo
case did not contain an analysis of the intent required for this tort, it does appear that the
intent in that case was the defendant doing a purposeful act as opposed to mere negligence or
inadvertence. This is in accord with the weight of authority of the jurisdictions that have
considered this issue. See Yaindel v. Ingersoll-Rand Co., 422 A.2d 611, 622 (Pa.Super. 1980)
and Reliable Tire Distributors, Inc. v. Kelley Springfield Tire Co., 592 F.Supp. 127, 139
(E.D.Pa. 1984). As stated in the Yaindel case, the intent to harm must be understood as
requiring only an intention to interfere with the plaintiff's prospective contractual relation,
and not malevolent spite by the defendant. Yaindel, 422 A.2d at 622.
__________

1
The cases are not clear as to what constitutes privilege under this tort. For this reason, we favor the
Restatement view that where the interference is improper it is not privileged. See Restatement (Second) of Torts
766B; 767 comment (b). Improper or illegal interference is crucial to the establishment of this tort. For
instance, in the present case, had LTR not violated the PSC regulations by paying excess commissions, it could
not be held liable for intentional interference with a prospective commercial relationship.
The majority view is in accord with the Restatement (Second) of Torts 766B(d) (1979),
which states that [t]he interference with the other's prospective contractual relation is
intentional if the actor desires to bring it about or if he knows that the interference is certain
or substantially certain to occur as a result of his action. We adopt the view expressed by the
Restatement (Second) of Torts and the majority of cases that have adopted this portion, and
reject LTR's contention that this tort requires a specific intent to harm akin to proof required
in a criminal offense.
II. Damages for the second period of business loss(December 1985-June 1986).
[Headnote 2]
After giving its entire business to LTR for a year (October 1984-October 1985) and then
directing all of its business to Gray Line for about two months, USA Hosts began splitting its
business between the competitors beginning December 1985. This continued until June 1986.
Gray Line asserts that it suffered damages during this period because it received less of USA
Hosts' business and LTR's actions again caused it.
There is no doubt that promising and paying illegal commissions was improper and was
the reason for the switch of USA Hosts' business to LTR in October 1984. However, the
evidence is unclear why USA Hosts changed from giving all of its business to Gray Line to
an equal division between the competitors beginning December 1985. The president of USA
Hosts simply stated that he made this move because LTR agreed to make amends for its past
failure. No evidence of improper commissions promised or paid to induce this shift of
business was produced.
USA Hosts is free to give its business to whomever it wants. The recipient of that business
is liable to the prior business recipient only if the present recipient tortiously interfered with a
business relationship. Gray Line has not established any illegal or improper interference with
its relationship with USA Hosts in November or December 1985. The earlier promise of
illegal commissions supports the loss of business for the initial one year period. However,
that evidence does not establish a subsequent improper action once USA Hosts and Gray Line
became reunited.
If there is insufficient evidence to support one or more elements of an alleged tortious act,
there can be no recovery. See Atkin Wright & Miles v. Montana States Tel., 709 P.2d 330,
337 (Utah Sup.Ct. 1985). Because the interference with Gray Line's business relationship by
LTR for the period of December 1985 through June 19S6 was not established to be
improper, damages of $63,961 allegedly suffered during 19S6 by Gray Line cannot be
sustained.
through June 1986 was not established to be improper, damages of $63,961 allegedly suffered
during 1986 by Gray Line cannot be sustained.
III. Award of prejudgment interest.
[Headnote 3]
Gray Line established that LTR wrongfully interfered with a prospective economic
advantage between October 1984 and October 1985. The district court awarded damages of
$217,529 that Gray Line had shown it suffered in 1985. No evidence was produced to show
losses during the period of November through December 1984. Because the complaint was
served on January 18, 1985, the vast majority of losses in 1985 were sustained subsequent to
the service. The district court awarded prejudgment interest on the total amount of the 1985
losses from the time the complaint was served.
This case presents the issue of when interest, as authorized by NRS 17.130, should begin
to run on damages that were sustained after the service of the complaint, but prior to the entry
of judgment. NRS 17.130 does not give us clear direction in this situation. It mandates that,
unless provided otherwise, all judgments shall draw interest at 12 percent per annum from the
service of the complaint until satisfied. The application of this directive to damages sustained
before the service of the complaint is obvious. Likewise, the admonishment that any dollar
amount in a judgment representing future damages shall draw interest only from the entry of
judgment is also unambiguous. We have held if it cannot be determined whether an award of
damages represents past or future damages, it is not appropriate to award any interest on the
judgment. See Jacobson v. Manfredi, 100 Nev. 226, 233-34, 679 P.2d 251, 255-56 (1984),
and Stickler v. Quilici, 98 Nev. 595, 596, 655 P.2d 527, 528 (1982). However, the statute
does not specifically state when interest shall begin on damages suffered after the service of
the complaint but prior to the entry of judgment.
We do not believe that the legislature contemplated this problem when it determined that
interest should run from the date the complaint was served. Nor do we think that the
legislature would want to permit damages to bear interest from the date the complaint was
served even though they were actually incurred some time after the service of the complaint.
Accordingly, we conclude that interest should begin to accrue from the time damages actually
occur if they are sustained after the complaint is served but before judgment, rather than from
the date of serving the complaint or from the date of judgment. To carry interest, damages
must be sustained and specifically quantified.
ages must be sustained and specifically quantified. Thus, interest should be awarded on
damages suffered after serving the complaint but prior to judgment once the time when
incurred and the amount of these damages have been proven by a preponderance of the
evidence.
In this case, damages of $217,529 were incurred between October 1984 and October 1985.
No breakdown was made as to what damages were sustained prior to or after the service of
the complaint, nor was any breakdown of these damages made on a month-to-month or
smaller periodic basis. Therefore, Gray Line was entitled to interest on this loss from the date
the loss ended, November 1, 1985, until satisfied, and not from the service of the complaint in
January 1985. If Gray Line had specifically proven its damages in smaller increments, such as
month-by-month, it would have been entitled to interest accruing beginning at the end of each
month in which the damage was sustained.
CONCLUSION
We hold that the lower court correctly concluded that LTR was liable to Gray Line for
intentionally interfering with the prospective business relationship Gray Line had with USA
Hosts for the period of time between October 1984, and October 1985, but that the court
erred in finding that LTR was liable for interfering with the business relationship between
Gray Line and USA Hosts from December 1985, through May 1986. Finally, we hold that the
court erred in awarding Gray Line prejudgment interest from the time it served the complaint
on LTR in January of 1985. Gray Line should have been awarded prejudgment interest on its
losses from November 1, 1985.
Accordingly, we affirm the district court's award of $217,529 to Gray Line for damages
calculated from 1984 until October 1985, reverse the court's award of $63,961 allegedly
sustained in 1986, and remand this case for further proceedings consistent with this opinion.
Prejudgment interest must be calculated on Gray Line's damages from November 1, 1985,
until the damages are satisfied.
____________
106 Nev. 291, 291 (1990) State Victims of Crime Fund v. Barry
STATE OF NEVADA, VICTIMS OF CRIME FUND, Appellant, v. CHRISTOPHER
BARRY and NANCY BARRY, Respondents.
No. 20101
May 16, 1990 792 P.2d 26
Appeal from a district court order denying appellant's motion for summary judgment and
declaring respondents liable to appellant for only partial reimbursement. Eighth Judicial
District Court, Clark County; Miriam Shearing, Judge.
Victims of Crime Fund filed subrogation lien seeking full reimbursement of compensation
earlier paid crime victims from settlement proceeds that victims had received from third
party. The district court denied Crime Fund's motion for summary judgment and declared that
victims were liable to Fund for only partial reimbursement. Fund appealed. The Supreme
Court held that Crime Fund was entitled to full reimbursement of monies paid crime victims
from proceeds of settlement that victims received from third-party.
Reversed.
Brian McKay, Attorney General, and James T. Spencer, Deputy Attorney General, Carson
City, for Appellant.
Zervas & Evans, Las Vegas, for Respondents.
Criminal Law.
Victims of Crime Fund was entitled to full reimbursement on its subrogation lien against proceeds of third-party settlement
received by crime victims, without bearing any share of litigation expenses, under statute in effect at time of crime victims' award from
Crime Fund; Crime Fund would not be unjustly enriched by full reimbursement, since additional benefits would be distributed to other
deserving crime victims from monies received on subrogation claim. NRS 217.240.
OPINION
Per Curiam:
Respondents Christopher and Nancy Barry were severely injured in an attack by an
escaped convict. They each received compensation of $15,000.00 from appellant State of
Nevada Victims of Crime Fund. Thereafter, their lawsuit relating to the attack was settled
with third parties for $540,000.00. Following the settlement, the Crime Fund filed a
subrogation lien for full reimbursement from the Barrys, but the Barrys maintained that they
owed the Crime Fund only partial reimbursement, as calculated using the formula set forth
in Breen v. Caesars Palace, 102 Nev. 79
lated using the formula set forth in Breen v. Caesars Palace, 102 Nev. 79, 715 P.2d 1070
(1986). The district court found in the Barrys' favor. We hold that the Breen formula does not
apply to this case, but note that because the subrogation statute has been amended, the Breen
formula will apply to the Crime Fund in the future.
In Breen, we allowed a self-insured employer to assert a subrogation lien against the
proceeds of a third-party malpractice settlement obtained by an injured employee, but
required the employer to bear its share of the litigation expenses, thereby reducing the lien. Id.
at 84-85, 715 P.2d at 1073-74. We provided a formula for calculating the employer's and the
employee's share of the litigation expenses. Id. at 85, 715 P.2d at 1074.
The Crime Fund contends that the district court erred in determining that the Breen
formula applies to this case. It contends that, when recipients of fund benefits recover from
third parties, it should not be required to bear a portion of the litigation expenses and
attorney's fees as is required of self-insured employers under Breen, because it is a public
quasi-charitable fund. The Crime Fund argues that, unlike the private, for-profit employer in
Breen, it does not stand to be unjustly enriched by the Barrys' recovery from third parties, and
that therefore the Breen formula is inapplicable to this case. The Crime Fund urges us instead
to follow Aylward v. Dragus, 402 N.E.2d 700, 702 (Ill.App.Ct. 1980), in which the court held
that, absent statutory authority to do so, the trial court had no power to reduce a subrogation
lien under the Illinois Crime Victims Compensation Act. The court observed that no court
may use its equitable powers to grant a remedy which contradicts a statute. Id.
The Barrys, on the other hand, argue that the Breen formula should apply to this case.
They point out that in Nevada Bell v. Hurn, 105 Nev. 211, 774 P.2d 1002 (1989), we recently
rejected other formulas in favor of the Breen formula. The Barrys argue that allowing the
Crime Fund full reimbursement would unjustly enrich the Crime Fund by giving it an
unexpected windfall, and, at the same time, would unfairly burden them with the time, risk,
and expense of pursuing a third-party claim.
The Crime Fund's argument is persuasive. Breen is distinguishable for several reasons. To
begin, Breen and Hurn applied the formula against for-profit employers. In contrast, the
Crime Fund is a public, not-for-profit, quasi-charitable entity. Thus, unlike Caesars Palace
and Nevada Bell, if the Crime Fund were to receive full reimbursement, the money would not
be counted as profit, but rather as additional benefits to be distributed to other deserving
crime victims. The Crime Fund is therefore in less of a position to be unjustly enriched than
those entities currently targeted by the Breen formula.
less of a position to be unjustly enriched than those entities currently targeted by the Breen
formula.
In addition, in Breen and Hurn there was a preexisting employer-employee relationship
between the parties; indeed, the injuries would likely not have occurred but for the
employer-employee relationship because the initial injuries arose out of and in the course of
the employment. In contrast, there was no preexisting relationship between the Crime Fund
and the Barrys; the Barry's injuries did not in any way relate to the Crime Fund. Because the
Crime Fund previously did not derive any benefits from a relationship with the Barrys, it is
not in a position, unlike the employers in Breen and Hurn, to be unjustly enriched by
subsequent full reimbursement.
Moreover, the fundamental purpose of a victim's compensation fund is to assist victims of
violent crimes through a period of financial hardship which arises when their assailants are
judgment proof or unknown. NRS 217.010, 217.220(5); Ayers-Schaffner v. Solomon, 461
A.2d 396, 398 (R.I. 1983). Where, as here, the victims are no longer suffering financial
hardship and have recovered full economic compensation for their losses, fundamental
fairness dictates in favor of full reimbursement to the Crime Fund. This conclusion is
consistent with the subrogation statute then in effect, which read: When a claimant accepts
an award, the State of Nevada is subrogated in the amount of the award to any right of action
had by the claimant for damages caused by the crime. Former NRS 217.240 (emphasis
added).
1
No reduction for costs or fees was provided for by the statute. Consistent with the
rationale of Aylward, 402 N.E.2d at 702, there appears to have been no statutory authority to
reduce the lien and it would be inequitable to grant a remedy which contradicts the statute.
Therefore, under the statute in effect at the time of the Barrys' Crime Fund award, it was error
for the district court to apply the Breen formula. Accordingly, we reverse the district court's
order and instruct the district court to order the Barrys to reimburse the Crime Fund in full.
__________

1
The statute has since been amended, NRS 217.240 now specifically allows for the state's subrogation right
to be diminished by litigation costs and attorney's fees incurred in obtaining a recovery from a third party. Thus,
in the future, the formula from Breen should indeed apply to determine the Crime Fund's proportionate share of
the fees and costs incurred by a fund recipient who recovers from a third party.
____________
106 Nev. 294, 294 (1990) State, Dep't of Wildlife v. Bentz
THE NEVADA DEPARTMENT OF WILDLIFE, A POLITICAL SUBDIVISION OF THE
STATE OF NEVADA, WILL MOLINI, DIRECTOR OF THE NEVADA
DEPARTMENT OF WILDLIFE, IN HIS OFFICIAL CAPACITY; THE NEVADA
BOARD OF WILDLIFE COMMISSIONERS, AN AGENCY OF THE STATE OF
NEVADA, AND KEITH LEE, ANDY LEITCH, STEVE BOIES, BRUCE KENT,
TINA NAPPE, JOHN S. SWEETLAND AND GARY WEDDLE,
COMMISSIONERS OF THE NEVADA BOARD OF WILDLIFE, IN THEIR
OFFICIAL CAPACITY, Appellants, v. TERESA BENTZ, ROBERT A. BENTZ,
THOMAS L. BENTZ, DALLAS R. HOLBROOK, DON HOLBROOK, DONALD
INSKEEP, YVONNE M. LEE, ANGEL SHERMAN, AND DAVID E. SHERMAN,
Respondents.
No. 20210
May 16, 1990 792 P.2d 28
Appeal from a preliminary injunction against the enforcement of General Commission
Regulation 173. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Reptile collectors brought action to enjoin enforcement of state regulation prohibiting
collection of reptiles for commercial purposes. The district court granted injunctive relief, and
appeal was taken. The Supreme Court held that regulation was valid.
Brian McKay, Attorney General, Brian Chally, Deputy Attorney General, Carson City, for
Appellants.
Cory & Bindrup and Jeff McColl, Las Vegas; David Hornbeck, Reno, for Respondents.
Sarah F. Bates, San Francisco, CA for Amicus Curiae.
1. Game.
Nevada Department of Wildlife could properly prohibit possession of reptiles for commercial purposes absent showing by
collection permittees that reptile selling would not be harmful to Nevada's wildlife.
2. Game.
Regulation prohibiting possession or collection of reptiles for commercial purposes did not improperly confer protected status on
statutorily unprotected reptiles; regulation did not prohibit hunting of unprotected reptiles, but merely hunting in order to sell reptiles.
NRS 501.110.
3. Game.
Regulation prohibiting collection of reptiles for commercial purposes was not invalid on ground that it failed to protect wildlife for
economic reasons, as statutorily required; statute also authorized protection of wildlife for aesthetic and recreational purposes.
4. Injunction.
Commercial collectors of reptiles were not entitled to preliminary injunction forbidding enforcement of state regulation prohibiting
collection of reptiles for commercial purposes absent showing that they had reasonable chance of winning on merits of claim that
regulation was invalid; in any event, potential harm to state wildlife from granting of injunction outweighed harm to collectors.
OPINION
Per Curiam:
In February of 1989, the Nevada Board of Wildlife Commissioners (Commission) adopted
General Commission Regulation No. 173 (GCR 173) which prohibited the collection of
reptiles for commercial purposes. The district court granted the respondents a preliminary
injunction forbidding the Nevada Department of Wildlife (NDOW) from enforcing GCR 173.
We reverse the preliminary injunction issued against the appellants by the district court.
FACTS
In 1983, the legislature amended NRS 501.379 to prohibit the sale of all Nevada wildlife
except as allowed by statute or Commission regulation.
1
The term wildlife includes
reptiles. See NRS 501.097.
In 1986, the Commission passed NAC 503.095 which states in pertinent part:
The department [NDOW] will issue a permit authorizing a person to collect
unprotected wildlife for commercial purposes with a seine, net, noose, trap or other
device if, after an investigation is conducted, it is proved to the department that the
collecting will not be detrimental to wildlife.
NDOW then granted permits to the respondents to collect and sell reptiles. NDOW expected
the respondents to provide it with information so that it could determine whether the sales
of reptiles would be deleterious to Nevada's wildlife.
__________

1
NRS 501.379 states in pertinent part:
Unlawful sale of wildlife or importation of game animals, game birds or game amphibians. It is unlawful
for any person to sell, or expose for sale, to barter, trade or purchase, or attempt to sell, barter, trade or
purchase, any species of wildlife, or parts thereof, except as provided in this Title or in a regulation of the
commission. . . .
information so that it could determine whether the sales of reptiles would be deleterious to
Nevada's wildlife. The respondents supplied NDOW with reports of the numbers of reptiles
collected and anecdotal stories stating that the selling of reptiles was not harmful to wildlife
in Nevada.
In January of 1989, the Commission, on the recommendation of NDOW, gave notice of its
intent to adopt GCR 173 which provided that [t]he possession or collection of reptiles for
commercial purposes is prohibited. A hearing was held before the Commission in February
of 1989 concerning GCR 173. The respondents protested its adoption. Environmentalists
favored its adoption. The Commission adopted GCR 173.
In May of 1989, the respondents filed a complaint seeking a preliminary and permanent
injunction preventing NDOW from enforcing GCR 173. The court granted the respondents a
preliminary injunction, holding that: (1) NAC 503.095 requires NDOW to issue permits to
sell unprotected wildlife unless such sales would be harmful to Nevada's wildlife; (2) the
Commission failed to conduct an adequate investigation concerning the impact of reptile
sales on the wildlife of Nevada; (3) GCR 173 gives protected status to reptiles which are
unprotected; and (4) GCR 173 failed to protect and preserve wildlife for economic reasons
pursuant to NRS 501.100(2).
The court required the respondents to post a $5,000 bond pending resolution of the case.
LEGAL DISCUSSION
[Headnote 1]
The first issue presented is whether the court erred in finding that GCR 173 was invalid
because the Commission did not perform an adequate investigation concerning the impact of
reptile sales on wildlife in Nevada as required by NAC 503.095. We hold that the court erred
by putting the burden of proof on the Commission to show that selling reptiles is harmful to
Nevada's wildlife. NAC 503.095 states:
1. The department will issue a permit authorizing a person to collect unprotected
wildlife for commercial purposes . . . if, after an investigation is conducted, it is proved
to the department that the collecting will not be detrimental to wildlife.
(Emphasis added.) The words it is proved to the department clearly indicate that a party
seeking a permit to sell wildlife has the burden of proving to NDOW that such sales will not
be deleterious to Nevada's wildlife before a permit will be issued to it.
it. The respondents provided NDOW and the Commission with reports on how many reptiles
they collected, anecdotal stories of the great number of reptiles which live in Nevada, and
unsupported assertions that reptile selling is not harmful to Nevada's wildlife. The
respondents failed to prove to NDOW that reptile selling would not be harmful to Nevada's
wildlife. Thus the court erred in holding that GCR 173 is invalid because the Commission
failed to conduct an adequate investigation on the impact of reptile sales on Nevada's wildlife.
The respondents, not the Commission or NDOW, had the duty to conduct an investigation
which proved that selling reptiles would not harm Nevada's wildlife.
Additionally, NDOW has always placed the burden of proving that the sale of wildlife will
not harm the environment on the party applying for a permit. The court should give great
weight to an agency's interpretation of its own regulations. Department of Human Resources
v. UHS of the Colony, Inc., 103 Nev. 208, 211, 735 P.2d 319, 320 (1987).
[Headnote 2]
The second issue presented is whether the court erred in holding that GCR 173 is contrary
to NRS 501.110 because it gives protected status to those reptiles classified as unprotected.
2
The term protected means that an animal may not be captured or killed. The term unprotected
means that an animal may be captured or killed. GCR 173 does not confer protected status on
unprotected reptiles. Anyone may still hunt unprotected reptiles. What is prohibited is a
subset of hunting, namely, hunting in order to sell the reptile. Thus, the court erred in holding
that by forbidding the sale of reptiles, the Commission gave protected status to those reptiles
classified as unprotected.
Additionally, we note that the legislature has delegated to the Commission the power to
prohibit the commercial taking of unprotected wildlife. See NRS 503.380. The legislature has
historically distinguished between commercial and noncommercial use of wildlife. The
legislature's distinction is rational. A commercial seller may well have a more devastating
effect on Nevada's wildlife than a person who hunts for a hobby.
__________

2
NRS 501.110 states:
1. For the purposes of this Title, wildlife shall be classified as follows:
. . . .
. . . .
. . . .
(d) Reptiles, which must be further classified as either protected reptiles or unprotected reptiles.
[Headnote 3]
The third issue presented is whether the court erred in holding that GCR 173 fails to
protect wildlife for economic reasons pursuant to NRS 501.100. NRS 501.100 states:
1. Wildlife in this state not domesticated and in its natural habitat is part of the
natural resources belonging to the people of the State of Nevada.
2. The preservation, protection, management and restoration of wildlife within the
state contribute immeasurably to the aesthetic, recreational and economic aspects of
these natural resources.
We note that NRS 233B.090 states that there is a rebuttable presumption that a regulation by
an administrative agency is valid. The court erred in failing to presume that GCR 173 was a
valid regulation. Additionally, NRS 501.100 is a statement of policy which gives weight to
both the aesthetic and recreational benefits of wildlife as well as to its economic uses. We
hold that the court erred in giving too much weight to the commercial uses of wildlife and not
enough weight to the recreational and aesthetic uses of wildlife. We also conclude that the
court erred in failing to consider that there are economic benefits in preserving, protecting,
and managing wildlife for aesthetic, recreational, and scientific reasons. Therefore, the court
erred in holding that GCR 173 fails to protect wildlife for economic reasons pursuant to NRS
501.100.
[Headnote 4]
The court erred in issuing a preliminary injunction forbidding NDOW from enforcing
GCR 173. GCR 173 is a valid regulation. Thus, the respondents did not establish that they
have a reasonable chance of winning on the merits of their case. Additionally, it is impossible
to determine, absent credible scientific studies, what harm will result from the commercial
sale of reptiles. Thus, the preliminary injunction issued could cause irreparable harm to
Nevada's wildlife. Finally, although the respondents may suffer harm from the enforcement of
GCR 173, the potential harm to the wildlife of Nevada outweighs harm to the respondents.
Accordingly, we reverse the order of the district court preventing NDOW from enforcing
GCR 173, dissolve the preliminary injunction issued by the court, and remand the case for
further proceedings consistent with this opinion.
____________
106 Nev. 299, 299 (1990) Alberty v. City of Henderson
L. D. ALBERTY, YOSHIKO ALBERTY, JAMES J. BALK, ROBIN E. CONRADO, KIM
N. CONRADO, ALEX P. CORONEOS, DOROTHY CORONEOS, ROBERT R.
HASH, ANGELA HASH, STELLA A. KEMP, IVAN M. LIVESAY, DOROTHY
LIVESAY, KEITH LOPEMAN, LACRETA LOPEMAN, MARSHALL 1977
TRUST, PAUL T. MARSHALL, CAROL D. MARSHALL, CO-TRUSTEE,
HAROLD L. MILLER, LAURA J. MILLER, MOOSO FAMILY TRUST, DAVID J.
MOOSO, MARILYNN T. MOOSO, TRUSTEES, GLEN S. SMITH, KATHERINE
A. SMITH, WILLIAM SPELLMAN, CAROLYN SPELLMAN, HERSHEL L.
TRUMBO, MILDRED TRUMBO, HERSHEL TRUMBO LTD. PARTNERSHIP,
RICHARD B. VINCENT, AND RENEE VINCENT, ATLANTIC CITY TRUST,
SUCCESSOR TO PLAINTIFFS ALTON J. WALTERS AND SANDRA WALTERS,
Appellants, v. CITY OF HENDERSON, NEVADA, AND LORNA KESTERSON,
LORIN L. WILLIAMS, ANDY HAFEN, CARLTON LAWRENCE, MICHAEL
HARRIS, AND EACH OF THEM IN THEIR CAPACITY AS MEMBERS OF THE
CITY OF HENDERSON, NEVADA CITY COUNCIL, Respondents.
No. 20397
May 16, 1990 792 P.2d 390
Appeal from judgment of district court denying appellants' requested relief against
respondents. Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Landowners brought action against city, challenging estimated special assessments to be
levied against their property in order to pay for various municipal improvements. The district
court denied relief, and landowners appealed. The Supreme Court held that landowners could
present additional evidence in district court action challenging the assessments.
Vargas & Bartlett and Mark A. Kemp, Las Vegas, for Appellants.
Shauna M. Hughes, City Attorney, Henderson, for Respondents.
Even absent evidence of fraud, preliminary estimated special assessments and benefits are merely prima facie evidence of validity
of the assessments. NRS 271.025.
Estimated special assessments and benefits are presumptively valid and burden of proving contrary rests on landowners. NRS
271.025.
To satisfy burden of showing that city's estimated special assessments and benefits are invalid, landowners must prove that city did
one of the following: acted fraudulently, used arbitrary method for reaching estimates, reached individual benefits estimates which
were manifestly erroneous because they were unsupported by substantial evidence, or failed to follow mandatory statutory procedures
for creating local improvement district. NRS 271.025.
Courts may set aside individual special assessments on grounds of irrational discrepancies between amounts of assessments
established for similarly situated landowners. NRS 271.025.
In some cases, district court may consider evidence beyond evidence contained in city council record on narrow issues of legality
of estimated special assessments and benefits in connection with a local improvement district. NRS 271.305.
Landowners will be barred from introducing further evidence in district court beyond evidence obtained in city council's record on
issues of legality of estimated special assessments and benefits in connection with local improvement district if notice of hearing given
by city pursuant to statute clearly states that: landowner's only chance to present evidence to demonstrate his or her estimated
assessments are excessive will be a public hearing; and landowner will not be able to present any additional evidence upon subsequent
appeal to district court. NRS 271.305.
Landowners who objected to estimated special assessments at public hearing could present additional evidence in district court
action challenging the assessments, where notice of hearing did not inform landowners that they could only present their evidence at
public hearing. NRS 271.305.
City's purposely inflated construction cost estimates, which affected benefits estimates for purpose of special assessment, did not
constitute fraud necessary to make estimates invalid, where estimates were method for avoiding cost overruns. NRS 271.010 et seq.
Evidence that city engineers assumed that special benefits generally would equal costs of construction did not establish that
method used by engineers to estimate special benefits and assessments was arbitrary. NRS 271.280, subd. 1.
OPINION
Per Curiam:
Appellants are real property owners in the City of Henderson, Nevada. Respondents
(henceforth, City of Henderson) have established estimated special assessments to be
levied against appellants' property in order to pay for various municipal improvements,
such as paving.
established estimated special assessments to be levied against appellants' property in order to
pay for various municipal improvements, such as paving. Appellants contend that the
estimated special assessments were manifestly excessive and, hence, invalid. We hold that,
based on this record, appellants have not demonstrated that the estimated assessments were
invalid. However, appellants were not allowed to present any evidence in district court to
show that the proposed assessments were excessive. This was because previous decisions of
this court limit the district courts' review of proposed assessments to the record made before
the city council or other city agency. For reasons of fundamental procedural fairness, we
conclude that this case must be remanded for further proceedings to allow appellants the
opportunity to present evidence on the sole issue of the estimated special assessments and
benefits.
FACTS
The basic facts of this case are not in dispute. On September 16, 1986, the City of
Henderson proposed Local Improvement District (LID) No. 818, which called for mandatory
paving of some 28 streets and, at the option of landowners, installation of water and sewer
mains and laterals. As required by NRS 271.280, the city council directed the city engineer to
estimate both the maximum special benefits accruing to each landowner due to the
improvements and the maximum possible assessments to be levied against each landowner in
order to pay for the improvements.
1
The city engineer prepared these estimates for each
landowner affected by LID No. 818.
On February 2, 1988, the city council accepted and adopted the estimates. The only
evidence in the city council record to support the estimates is a conclusory opinion by two
city engineers stating that it was their opinion that the improvements would actually benefit
each parcel by the estimated amount. The engineers' report states that the opinion is based on
the engineers' personal inspection of each tract and on the engineers' general familiarity
with this real estate market.
As required by NRS 271.305, the city council notified affected landowners that they
could object to
__________

1
Special benefit means the increase in market value of a tract that is directly attributable to a project for
which an assessment is made as determined by the local government that made the assessment. NRS 271.208.
Under NRS 271.300, no individual assessment to pay for a LID can exceed the estimated special benefit
accruing to that landowner. The underlying idea is that landowners should not be specially taxed for municipal
improvements except to the extent that the improvements actually benefit the landowners' property. For this
reason, the amount of each estimated assessment is usually close to the amount of each estimated benefit.
landowners that they could object to the estimated assessments at a public hearing. By letter
dated February 29, 1988, the city council informed landowners of the public meeting which
was scheduled to be held one month later, on March 29, 1988. Following the hearing at which
landowners voiced their general objections, the city council reaffirmed the estimates and
ordered construction to proceed. Pursuant to NRS 271.315, several property owners appealed
the council's action to district court. The district court stated that it could not take any new
evidence and that its review was limited to the record before the city council. Following
argument from counsel, the district court, sitting without a jury, affirmed the city council
estimates. Several property owners appeal the district court's judgment to this court.
LEGAL DISCUSSION
I. Standards of review of municipal actions in creating local improvement districts.
A. Substantive standards of review.
[Headnote 1]
Citing NRS 271.025 and Salla v. City of Winnemucca, 85 Nev. 222 452 P.2d 969 (1969),
the City of Henderson argues that courts must affirm all municipal estimates of special
benefits and assessments in the absence of a showing of fraud by the city. This contention is
without merit, because our cases since Salla have not limited judicial review to the fraud
standard. We have held that, even absent evidence of fraud, final assessment rolls are merely
prima facie, i.e., rebuttable evidence of the validity of the assessments. City of Reno v.
Folsom, 86 Nev. 39, 43, 464 P.2d 454, 456-57 (1970). The same is true for the preliminary
estimated assessments and benefits at issue in this case.
[Headnotes 2-4]
Although courts are not limited to the fraud standard of review, the standards of judicial
review in these cases are deferential toward the municipality. The estimated assessments and
benefits are presumptively valid and the burden of proving the contrary rests on the
landowners. NRS 271.025; Brown v. City of New York, 416 N.W.2d 574, 576 (Neb. 1987);
Nolan v. Bureau of Assessors of N.Y. City Fin. Admin., 286 N.E.2d 435, 438 (N.Y.Ct.App.
1972). To satisfy this burden, landowners must prove that the city did one of the following:
acted fraudulently, used an arbitrary method for reaching the estimates, reached individual
benefits estimates which were manifestly erroneous because they were unsupported by
substantial evidence, or failed to follow mandatory statutory procedures for creating the LID.
See generally 4 McQuillin Municipal Corporations 38.56 (3d ed.
ed. 1987); Folsom, supra (stating a standard of arbitrariness or fraud); Urban Renewal Agcy.
v. Iacometti, 79 Nev. 113, 379 P.2d 466 (1963) (applying substantial evidence standard to
findings made by municipality in connection with an urban renewal plan). Additionally,
courts may set aside individual assessments on the grounds of irrational discrepancies
between the amounts of assessments established for similarly situated landowners. McQuillin
at 38.05.
B. The scope of the record for purposes of judicial review.
We have held that, in reviewing municipal actions taken in connection with
improvements, the scope of review by the courts is limited to the record made before the city
council, and that courts may not consider evidence beyond the record before the city council.
Folsom, 86 Nev. at 44, 464 P.2d at 457; Iacometti, 79 Nev. at 118, 379 P.2d at 468. The rule
limiting the scope of the record in these cases is of judicial, not legislative, origin. The rule
was intended to encourage deference to municipal actions, based in part on the recognition
that courts are less competent to conduct fact-finding on complex planning issues than the
legislative bodies of municipalities. Iacometti, 79 Nev. at 118-19, 379 P.2d at 468-69.
While we will continue to apply the rule announced in Iacometti in other cases, we
conclude that this rule may be unfair as applied to landowner appeals of estimated
assessments pursuant to NRS 271.315. These estimates can have a profound impact on
persons living in areas to be improved. In the present case, some landowners testified before
the city council that their estimated assessments were greater than the market value of their
land; they said that this meant they could lose their land, or, at least, prevent them from ever
building on it. In order to prevent unjust or oppressive assessments, Chapter 271 of the
Nevada Revised Statutes clearly contemplates that a special assessment should never exceed
the amount of special benefits accruing to each landowner. See NRS 271.208; 271.280(1);
271.300. NRS 271.315 authorizes judicial review of these estimates and in no way implies a
proscription of de novo review of additional evidence concerning the estimates themselves.
If there is to be meaningful judicial review of these crucial estimates, we conclude that
district courts must be authorized to take evidence beyond that introduced before the city
council, unless the property owner was clearly informed by the hearing notice that this would
be the only time he or she would be permitted to introduce legally competent evidence. The
simple reason is that the typical property owner will not realize he or she must present
evidence to rebut the estimated benefits until after any hearings before the city council, i.e.,
on appeal to the district court.
any hearings before the city council, i.e., on appeal to the district court. Quite understandably,
property owners consider the written grievance and public hearing processes to be political,
not judicial in nature. Here, this expectation was reinforced because the city's notice of the
public hearing stated that the project would be cancelled if landowners representing over half
of the affected property objected; the property owners here clearly considered the hearing
more akin to a voice vote on LID No. 818 than a judicial hearing at which they were expected
to present evidence. Accordingly, at the March 29 meeting, the landowners were not
represented by counsel and they did not present any concrete evidence to show that the
proposed estimates of special benefits were too high. Instead, they voiced their general
opposition to the amount of the proposed assessments.
Under the rule stated in Iacometti, if the property owner fails to present such evidence to
the city council, the owner is forever barred from doing so later. Thus, under the deferential
standards of review stated in Part I-A of this opinion, the courts would rubber stamp virtually
any set of estimates; indeed, appellants in the present case have not demonstrated that the
estimates were invalid on the basis of the record before the Henderson City Council. This, we
believe, is at odds with the provision in Chapter 271 for judicial review of these important
estimates.
[Headnotes 5, 6]
Accordingly, we conclude that in some cases district courts may consider evidence beyond
the evidence contained in the city council record on the narrow issues of the legality of
estimated assessments and benefits in connection with a LID. In deference to municipalities,
however, we hold that landowners will be barred from introducing further evidence in district
court if the notice of hearing given by the city pursuant to NRS 271.305 clearly states that: (1)
the landowner's only chance to present evidence to demonstrate that his or her estimated
assessments are excessive will be at the public hearing; and (2) the landowner will not be
able to present any additional evidence upon subsequent appeal to district court. We do not
believe that allowing limited de novo consideration of evidence will unduly impede or delay
the application of the statutes governing creation of improvement districts, a concededly
worthwhile goal. More than one other state has provided for de novo judicial review of
special assessments proposed by municipalities. See In Re Morrison Single County Ditch No.
1330, 484 N.E.2d 699 (Ohio 1985); Brown, supra.
[Headnote 7]
The notice given in the present case did not inform landowners that they could only
present their evidence at the public hearing.
that they could only present their evidence at the public hearing. Thus, although the district
court was fully justified in following our previous contrary decisions, the judgment of the
district court must be reversed and the case remanded to give the landowners a fair
opportunity to present such evidence to the district court.
II. The validity of the estimated special benefits and assessments established by the City of
Henderson.
Although this case must be remanded, we address the merits of appellants' arguments on
the basis of the present record in order to give some additional guidance to the district courts
in this and future cases. This court previously has only addressed the relatively simple cases
in which there is no evidence at all of any benefits accruing to the landowners due to the
improvements.
2
This is the first published case in which this court has been asked to set
aside the amount of estimated benefits and assessments as excessive. Although the methods
used by Henderson to estimate the special benefits and assessments were questionable, we
hold that appellants have not demonstrated the estimates to be invalid on this record.
[Headnote 8]
First, appellants have not demonstrated fraud on the part of the city because they have not
proved that the city made any knowingly false misrepresentation of fact. Appellants argue
that the city's construction cost estimates, which affected the benefits estimates, were
purposely inflated, constituting fraud. However, the city candidly admitted its practice of
inflating estimates of construction costs. We conclude that this alone does not constitute
fraud, but, rather, in the present case, a method for avoiding cost overruns. Additionally,
appellants correctly concede that the city followed the procedures mandated by Chapter 271
of the Nevada Revised Statutes.
[Headnote 9]
Appellants' strongest argument is that the method used by engineers to estimate special
benefits and assessments was arbitrary. Although the district court heard no new evidence to
rebut the estimates, the Henderson City Attorney admitted during argument that, in making
the estimates the city engineers had assumed, or determined, that the special benefits
generally would equal the costs of construction. This costs=benefits assumption seems
particularly suspect given that about 30 percent of the estimated construction costs were
so-called "soft" costs for expenses such as attorneys and bonding fees, which were
unrelated to the physical construction.
__________

2
Folsom supra; Diversified Capital v. City No. Las Vegas, 92 Nev. 621, 555 P.2d 1236 (1976) (holding that
city should be enjoined from levying assessments because virtually no improvements were made and, thus, there
were no benefits).
estimated construction costs were so-called soft costs for expenses such as attorneys and
bonding fees, which were unrelated to the physical construction. Despite this questionable
assumption, we cannot hold these estimates to be arbitrary per se on this record because:
Unless there are some circumstances which show that the special benefits found are
excessive and unreasonable in amount, all things being considered, a finding by the
board which in substance is based on the idea that the paving has added to the value of
the lot a sum equal to the proportionate cost of the improvement is not so unreasonable
as to justify setting the assessment aside for that reason alone.
Brown, 416 N.W.2d at 576 (quoting Chicago & N.W.R. Co. v. City of Albion, 192 N.W. 233
(1923)), (emphasis added). If the record before this court demonstrated that the
cost=benefits assumption was arbitrary as applied to this real property, this court could
reverse these estimates. The problem in the present case, however, is that the evidence in the
record before the city council on this point is scanty at best, consisting only of the engineers'
largely conclusory opinion. More importantly, the property owners never introduced any
evidence before the city council to rebut the cost=benefit assumption. Although this
assumption is questionable, we will not substitute our judgment for that of the city engineers
absent such evidence. Finally, we note that NRS 271.280(1) requires nothing more than an
engineer's opinion in support of the estimates, however conclusory the opinion may appear.
We hope, however, that, unlike the engineers in this case, city engineers will set forth in
support of their estimates some firm data, such as examples of increases in value in similar
properties due to similar, previous improvements.
Even if the overall estimation method used is not arbitrary, appellants may seek to show
that their individual assessments were invalid. Accordingly, appellants make additional
detailed arguments explaining why particular assessments were manifestly erroneous and why
there were patently irrational discrepancies among individual assessments. While it is
possible that appellants can make such showings on remand, they simply have not done so on
the current record; in the absence of any concrete evidence to rebut the engineers' opinion,
appellants' arguments alone simply do not demonstrate the assessments to be arbitrary or
unsupported by substantial evidence.
CONCLUSION
The method used by the City of Henderson to estimate the special assessments to pay for
the improvement district was suspect and arguably arbitrary.
special assessments to pay for the improvement district was suspect and arguably arbitrary. In
deference to the expertise of city engineers, however, we will not reverse such estimates
absent some evidence indicating that the method used was arbitrary or based on manifestly
erroneous assumptions. Because appellants have introduced virtually no evidence to rebut
these estimates, the estimates must stand. Nevertheless, we conclude that appellants were
denied a fair opportunity to present such rebuttal evidence and accordingly reverse the
judgment and remand this case with instructions that the district court allow appellants to
adduce rebuttal evidence on the narrow issue of the validity of the estimates of special
benefits and assessments.
____________
106 Nev. 307, 307 (1990) Levin v. Wheatherstone Condominium Corp.
ROBERT AND SANDY LEVEN, and HAROLD AND RETA ROME, Appellants, v.
WHEATHERSTONE CONDOMINIUM CORPORATION, INC., JUDY FENNER,
OLD WEST REALTY-BROKER, and CALIFORNIA FEDERAL SAVINGS AND
LOAN, Respondents.
No. 19471
May 16, 1990 791 P.2d 450
Appeal from a summary judgment of the district court in favor of respondents. Eighth
Judicial District Court, Clark County; Miriam Shearing, Judge.
Owners of two condominium units brought suit challenging validity of purported
amendment to the covenants, conditions and restrictions of the complex. The district court
entered summary judgment in favor of defendants, and plaintiffs appealed. The Supreme
Court held that evidence raised genuine issue of material fact, precluding summary judgment.
Reversed.
Edward G. Marshall, Las Vegas, for Appellants.
Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas, for
Respondents Wheatherstone, Fenner and Old West Realty.
Deaner, Deaner & Scann, Las Vegas, for Respondent California Federal Savings and
Loan.
Judgment.
Evidence in suit by owners of condominium units asserting that amendment to covenants, conditions and restrictions for complex
was invalid raised genuine issue of material fact, precluding summary judgment.
OPINION
Per Curiam:
In the action below, the district court granted summary judgment to respondents. We
conclude genuine issues of fact remain for trial and therefore reverse the judgment of the
district court.
THE FACTS
Appellants are the owners of two condominium units in the Wheatherstone Condominium
Complex (Complex). The respondents, Wheatherstone Condominium Corporation, Inc.
(Wheatherstone), Judy Fenner, Old West Realty-Broker, and California Federal Savings and
Loan (Cal Fed) are associated with the management, finances, and development of the
Complex.
On February 17, 1981, Bronze Construction Co., Inc., (Bronze), as owner and developer of
the Complex, filed the Covenants, Conditions, and Restrictions (CC&R's) for the Complex
with the Clark County Recorder. The CC&R's set out the basic rights and obligations of each
condominium owner. In addition, the CC&R's declared that a vote of 75 percent of the
owners was needed to amend the CC&R's. They also added that each family unit would be
responsible for 1 percent of the common assessments. Finally, the CC&R's erroneously stated
100 units had already been built at the Complex.
On January 19, 1983, Bronze became delinquent on its construction loan and Family
Savings, now Cal Fed, foreclosed. At the time of foreclosure, only 60 units had been built.
After foreclosure, Cal Fed sold the undeveloped land to Charles McHaffie dba C&H
Investment. A dispute arose concerning whether Cal Fed and its grantees should pay common
assessments for the undeveloped land during the period when they owned the land prior to
development. This previously undeveloped land has now been fully developed, and the
owners of units on this land have been paying common assessments since completion.
On December 13, 1984, a vote of the family unit owners was taken to amend the CC&R's.
The proposed amendment provided that an owner or builder of an unfinished unit would not
be responsible to pay common assessments until the unit was ready for occupancy. The ballot
stated that a yes vote would be recorded if the ballot was not received by a certain date.
recorded if the ballot was not received by a certain date. Nowhere in the CC&R's does it
declare that in future voting, a no response could be counted as a yes vote.
The parties dispute the final tally of this vote. In the vote, there were 28 yes, 10 no
votes and 22 no responses. Appellants insist the vote did not pass by the required 75
percent of the owners and a quorum was not present for the vote. Respondents Wheatherstone
and Fenner assert the measure passed by a 79 percent margin. Cal Fed maintains the measure
passed with 50 yes votes and 10 no votes, or 83.33 percent.
On March 12, 1986, appellants filed suit against respondents asserting that the amendment
to the CC&R's was invalid. On January 22, 1987, the district court entered a decision granting
summary judgment to respondents. In the decision, the district court made no specific
findings concerning the propriety of the amendment to the CC&R's. Instead, the district court
interpreted the original CC&R's to conclude that only the owners of the 60 developed units
should be subject to common assessments.
On July 1, 1988, the district court entered judgment in favor of respondents, based on the
parties' representations that the court's prior ruling resolved all major issues in this case. The
judgment affirmed and extended the summary judgment to all defendants below, allowing
this appeal.
DISCUSSION
The July 1, 1988, judgment validates the summary judgment; therefore, we will treat this
as an appeal from a summary judgment.
NRCP 56(c) permits summary judgment only if the party requesting summary judgment is
entitled to judgment as a matter of law, and there are no genuine issues of material fact
remaining for trial. Wiltsie v. Baby Grand Corp., 105 Nev. 291, 774 P.2d 432, 433 (1989).
In issuing the summary judgment, the district court did not address whether the CC&R's
were properly amended. Instead, the district court construed the original CC&R's to hold that
only the owners of the 60 developed units should pay for common assessments. By doing so,
the district court erred. Here, genuine issues of fact still exist concerning the purported
amendment to the CC&R's. Also, the original CC&R's are ambiguous as to whether the
parties intended that only the owners of developed units would pay common assessments.
Because extrinsic evidence is needed to resolve the ambiguity and contradictory evidence
exists, this is a triable issue of fact precluding summary judgment. Mullis v. Nevada National
Bank, 98 Nev. 510, 513, 654 P.2d 533, 535-536 (1982) (quoting Mobile Acres, Inc. v.
Kurate, 50S P.2d SS9, S95 {Kan.
Kurate, 508 P.2d 889, 895 (Kan. 1973)). Accordingly, respondents are not entitled to
judgment as a matter of law. We therefore reverse the summary judgment and remand this
matter for trial. Finally, because the district court judge has expressed herself in the premises,
we direct the Chief Judge of the Eighth Judicial District Court to assign a different judge to
hear the trial of this matter.
For the foregoing reasons, we reverse the judgment of the district court.
1

___________
106 Nev. 310, 310 (1990) Nevada Contractors v. Washoe County
NEVADA CONTRACTORS and EAGLE VALLEY CONSTRUCTION,
Appellants/Cross-Respondents, v. WASHOE COUNTY and its BOARD OF
COUNTY COMMISSIONERS, Respondents/Cross-Appellants.
No. 19785
May 16, 1990 792 P.2d 31
Appeal and cross-appeal from a judgment of the district court. Second Judicial District
Court, Washoe County; James J. Guinan, Judge.
Property owner sought review of denial by board of county commissioners of special use
permit for ready mix concrete plant. The district court reversed, and appeal was taken. The
Supreme Court held that: (1) grant or denial of special use permit was discretionary, not
ministerial, action; (2) evidence justified board's denial of special use permit; and (3) court
must defer to and not interfere with board's discretion absent abuse.
Reversed.
Stephen C. Mollath, Reno; Manoukian, Scarpello & Alling, Carson City, for
Appellants/Cross-Respondents.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney and Russell S.
Nash, Jr., Deputy District Attorney, Washoe County, for Respondents/Cross-Appellants.
1. Zoning and Planning.
Grant or denial of special use permit is discretionary act by board of county commissioners and not merely ministerial
performance, and, thus, grant or denial of special use permit shall not be disturbed absent abuse of discretion by the board.
__________

1
The Honorable Thomas L. Steffen, Justice, voluntarily recused himself from participation in the decision of
the appeal.
Nonconformity with area's master plan, impact on scenic highway, detriment to current and future development in area,
incompatibility with surrounding residential area, and traffic problems constituted substantial evidence supporting denial of special use
permit for proposed ready mix concrete plant.
As result of zoning board's particular expertise, courts must defer to, and not interfere with, board's discretion as long as discretion
is not abused. NRS 278.010 et seq.
OPINION
Per Curiam:
The primary issue in this appeal is whether the issuance or denial of a special use permit is
a ministerial or discretionary function. We conclude it is a discretionary function. In the
action below, substantial evidence supports the Washoe County Board of County
Commissioners' decision to deny a special use permit; however, the district court reversed the
denial. We therefore reverse the judgment of the district court and affirm the denial of the
special use permit.
FACTS
Appellant Nevada Contractors is a division of appellant Eagle Valley Construction.
Respondent Washoe County is a political subdivision of the State of Nevada. Respondent
Board of County Commissioners, (Board), among other functions, grants and rejects special
use permits in Washoe County.
Prior to January 20, 1987, Eagle Valley Construction informed Washoe County
Department of Comprehensive Planning (Comprehensive Planning) of their plan to purchase
a ten acre parcel of land near the intersection of U.S. 395 and Mt. Rose Highway. Eagle
Valley wanted to build a concrete ready-mix plant on the site, a permitted use in that zone.
Eagle Valley inquired if a special use permit was needed for the plant and whether the project
was a major project. On January 20, 1987, a staff member of Comprehensive Planning told
Eagle Valley a special use permit was not required and the project was not a major project.
Seven days later, on January 27, 1987, Comprehensive Planning advised Eagle Valley the
Plant could not be built without a special use permit and major project review. WCO
110.097.1(d), 110.097.2. On January 30, 1987, Eagle Valley purchased the land and
submitted an application for a major project review and special use permit.
Public hearings on the permit were held before the Washoe County Planning Commission
on March 3, 19S7 and April 7, 19S7.
County Planning Commission on March 3, 1987 and April 7, 1987. Eagle Valley argued in
favor of building the plant. Those opposed to the plant voiced the following concerns: traffic
impact, negative influence on neighboring residential areas, dust pollution and other
environmental concerns. A petition opposing the plant with several hundred signatures was
also presented to the Planning Commission. The Planning Commission voted four-to-three in
favor of granting the permit.
R. Bruce McKay, a nearby resident, appealed the Planning Commission's decision to the
Board of County Commissioners. On May 12, 1987, a public hearing was held to consider the
appeal. Conflicting evidence was presented before the Board. Eagle Valley, The Health
Department of Washoe County, and The Nevada State Department of Transportation
presented evidence in favor of the plant. Opponents of the plant also introduced evidence
before the Board. With one abstention, the Board voted unanimously to deny the special use
permit for the plant. Based upon evidence presented to the Board, the Commissioners found
the following: the plant did not conform with the area's Master Plan; allowing the plant would
be a detriment to current and future development of the adjacent properties and general area;
increased traffic problems; and the plant would not promote the health, safety and welfare of
the community.
On June 1, 1987, Eagle Valley filed an application for writ of mandamus and/or in the
alternative, complaint for declaratory relief. Eagle Valley alleged denial of the special use
permit was arbitrary, capricious, not based upon substantial evidence, and contrary to NRS
278, WCO 110.171(5) and WCO 110.097. In addition, Eagle Valley asked for a judgment
declaring the rights and duties between the parties, and award for damages, that the plant
should be constructed without major project review, or alternatively, that a special use permit
should be issued for construction of the plant.
On December 16, 1987, Eagle Valley filed a motion for summary judgment on the
declaratory relief claim. On January 11, 1988, the district court ordered an alternative writ of
mandate directing Washoe County and the Board to either allow Nevada Contractors and
Eagle Valley to operate the plant without a special use permit or issue a special use permit in
accordance with recommended staff conditions on the plant's operation.
On February 16, 1988, the district court held a hearing on the writ of mandate and the
cross motion for summary judgment on the claims for declaratory relief. On February 18,
1988, Washoe County and the Board filed a motion for summary judgment as to Eagle
Valley's claim for declaratory relief. On December 7, 19SS, the court entered a judgment
and order that the Board's denial of the permit was arbitrary.
1988, the court entered a judgment and order that the Board's denial of the permit was
arbitrary. The district court further found the proposed plant would not be inappropriate for
the industrial zoned parcel. Accordingly, the district court gave the Board the option to either
rezone the property within a reasonable time to eliminate the industrial zoning, or issue the
special use permit with reasonable conditions.
DISCUSSION
[Headnote 1]
Nevada Contractors and Eagle Valley insist the issuance of a special use permit is
ministerial in nature. Specifically, appellants claim the Board cannot deny the permit
application, but only attach conditions to the permit.
This argument lacks merit. The grant or denial of a special use permit is a discretionary
act. City Council, Reno v. Travelers Hotel, 100 Nev. 436, 439, 683 P.2d 960, 961-962 (1984),
quoting Henderson v. Henderson Auto, 77 Nev. 118, 122, 359 P.2d 743, 745 (1961). If this
discretionary act is supported by substantial evidence, there is not abuse of that discretion.
City Council, Reno, 100 Nev. at 439, 683 P.2d at 961-962. Without an abuse of discretion,
the grant or denial of a special use permit shall not be disturbed. Id. at 440, 683 P.2d at 962.
[Headnote 2]
At the hearing before the Board, interested parties on both sides spoke in favor of their
respective positions. Board members also expressed their opinions. By themselves,
statements by interested parties or their counsel, and the opinions of council members. . . .
unsupported by proof do not constitute substantial evidence. City Council, Reno, 100 Nev. at
439, 683 P.2d at 961 (citations omitted). Nonetheless, our review of the hearing reveals there
was additional evidence to support the Board's order. Id. at 439, 683 P.2d at 962. This
evidence is as follows: nonconformity with the area's Master Plan; impact on the scenic Mt.
Rose Highway; the plant would be detrimental to current and future development in the area;
incompatibility with the surrounding residential area; and finally, traffic problems.
1
Therefore, we conclude that was substantial evidence to justify the Board's denial of the
special use permit. Thus, the Board did not abuse its discretion in denying the special use
permit. Id. at 439, 683 P.2d at 961-962.
__________

1
We note the district court declared the evidence before the Board showed the present zoning was
inappropriate for the site and labelled the parcel an example of spot zoning.
[Headnote 3]
Finally, we note it is not the business of courts to decide zoning issues. Coronet Homes,
Inc. v. McKenzie, 84 Nev. 250, 256, 439 P.2d 219, 223 (1968). Because of the Board's
particular expertise in zoning, courts must defer to and not interfere with the Board's
discretion if this discretion is not abused. City Council, Reno, 100 Nev. at 439, 683 P.2d at
962. Here, the Board acted within its discretionary powers; we cannot intrude on the Board's
legitimate exercise of that power. Id.
Nevada Contractors' and Eagle Valley's remaining contentions lacking merit, we hereby
reverse the judgment of the district court and affirm the decision of the Board denying the
application for a special use permit.
____________
106 Nev. 314, 314 (1990) Hildahl v. Barnard
ROGER E. HILDAHL, Appellant, v. J. RICHARD BARNARD, Respondent.
No. 20153
May 16, 1990 792 P.2d 33
Appeal from a summary judgment of the district court in favor of respondent and an order
denying appellant's motion to alter or amend the judgment. Second Judicial District Court,
Washoe County; James J. Guinan, Judge.
Partner claiming interest in oil and gas property sued partner named as owner of interest.
The district court entered summary judgment for complaining partner, and named partner
appealed. The Supreme Court held that material issues of fact, precluding summary
judgment, existed as to whether named partner had converted interest of claiming partner.
Edward B. Horn, Reno; Mark H. Gunderson, Reno, for Appellant.
Woodburn, Wedge and Jeppson, and Shawn B. Meador, Reno, for Respondent.
Judgment.
Substantial issues of fact, precluding summary judgment, existed as to whether partner who was record owner had converted
interest of another partner in an oil and gas property; there was evidence that record partner acknowledged complaining partner's
interest and mentioned it when transferring his interest.
OPINION
Per Curiam:
In the action below, the district court granted respondent's motion for summary judgment.
Because we find that genuine issues of fact still exist, we reverse.
THE FACTS
Appellant, Roger E. Hildahl, and respondent, Jay Richard Barnard, are certified public
accountants who were partners in an accounting practice. The partners had an agreement that
if either received an investment opportunity, it would be made available to the other. In the
fall of 1978, Raymond C. Avansino told Hildahl that he wanted to fractionalize his
investment in certain oil and gas properties (the West Birch Prospect) in British Columbia,
Canada. The investment was in the name of the R.C. Avansino Trust, with Avansino as
trustee. Hildahl told Barnard about the opportunity and both men agreed to make a joint
investment. Each agreed to pay one-half the cost and receive one-half the profits.
Though Hildahl and Barnard contributed equally to their initial investment of $12,500.00,
the November 9, 1978 Trust and Indemnity Agreement only names Hildahl as an owner of the
West Birch Prospect. The parties disagree how title to the investment was to be held. Hildahl
maintains that he and Barnard agreed Hildahl would be named as sole beneficiary of the
investment, but would hold the investment equally for both. Barnard denies such an
agreement existed and contends that his interest in the investment should have been reflected
in the Trust and Indemnity Agreement. Barnard further asserts that he asked Hildahl on at
least two occasions to have his half of the investment placed in his own name. This was not
done to Barnard's satisfaction. By January of 1982, Hildahl and Barnard had each invested
$25,432.62, as a result, each owned an approximate 5 percent interest in the West Birch
Prospect.
In June of 1981, Hildahl and Barnard decided to end their accounting partnership. In
December of 1981, the R.C. Avansino Trust was also dissolved and the parties' interests in
the West Birch Prospect was transferred to Zephyr Resources, Ltd. (Zephyr). In a letter dated
May 12, 1982, Hildahl notified Zephyr's president of Barnard's ownership interest and
requested that Zephyr execute the appropriate documents to reflect that interest. It is unclear
if these changes were made. In addition, it is unclear whether and to what extent Barnard's
investment was subsequently transferred to Pacific Continental, Inc., and then to Pacific
Lutheran University.
On December 4, 1985, Barnard filed suit against Hildahl alleging conversion, breach of
contract, fraud, misrepresentation, breach of fiduciary duty, failure to account, and requesting
an award of punitive damages. Hildahl subsequently moved for summary judgment as to
liability and damages, admitting that Barnard owned one-half of their investment in the West
Birch Prospect and was entitled to $4,500.00 in dividends. The district court granted
summary judgment as to liability and later ruled that Hildahl converted Barnard's entire
interest in the West Birch Prospect on December 31, 1982. The district court awarded
Barnard $92,314.00 in damages, plus interest, finding that this was the value of Barnard's
investment on the date of conversion. Apparently, the district court used the same figure that
Hildahl used when he took a 1982 tax deduction of $92,314.00 for donating his half of the
investment to Pacific Lutheran University in December of 1982. Hildahl based the value of
his half on the investment on two expert reports that were completed on October 26, 1981,
and March 15, 1982. Hildahl's subsequent motion to alter or amend the judgment was denied.
DISCUSSION
Summary judgment is appropriate when the moving party proves that there is no genuine
issue of material fact and that summary judgment is warranted as a matter of law. NRCP
56(c); Wiltsie v. Baby Grand Corp., 105 Nev. 291, 774 P.2d 432, 433 (1989) (citation
omitted); Shapro v. Forsythe, 103 Nev. 666, 668, 747 P.2d 241, 243 (1987).
In the instant case, we hold that summary judgment was improperly granted. Issues of fact
exist as to the conversion, transfers and value of Barnard's investment in the West Birch
Prospect. Accordingly, Barnard is not entitled to judgment as a matter of law.
Therefore, we reverse the summary judgment and remand the case to the district court for
1

__________

1
The Honorable Cliff Young, Chief Justice, voluntarily recused himself from participating in the decision of
this appeal.
____________
106 Nev. 317, 317 (1990) Curry v. State
WAYNE CURRY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19812
May 16, 1990 792 P.2d 396
Appeal from felony convictions of attempted manslaughter, battery with a deadly weapon,
and battery with intent to kill; a gross misdemeanor of battery causing substantial bodily
harm, and a misdemeanor of simple battery, and from concurrent sentences of five years on
each of the felony convictions.
1
Ninth Judicial District Court, Douglas County; David R.
Gamble, Judge.
Defendant was convicted in the district court of attempted manslaughter, battery with a
deadly weapon, battery with intent to kill, and simple battery. Defendant appealed. The
Supreme Court held that attempted voluntary manslaughter is not a crime in Nevada.
Affirmed in part and reversed in part.
Martillaro & Martillaro, Carson City; and Paul A. Sherman, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City; Brent T. Kolvet, District Attorney, and
Harold Kuehn, Deputy District Attorney, Douglas County, for Respondent.
1. Homicide.
Attempted voluntary manslaughter is not a crime in Nevada. NRS 193.330, 200.050.
2. Criminal Law.
Accused must formulate specific intent to commit crime attempted. NRS 193.330.
3. Homicide.
Instructing jury on attempted voluntary manslaughter in prosecution for attempted manslaughter and battery did not deny
defendant fundamentally fair trial, absent showing that jury was confused by the instruction.
OPINION
Per Curiam:
Appellant, Wayne Curry (Curry), appeals from his convictions of attempted manslaughter,
battery with a deadly weapon, battery with intent to kill, battery causing substantial bodily
harm and simple battery.
__________

1
For purposes of sentencing, the gross misdemeanor and misdemeanor convictions were merged by the trial
court with the felony convictions.
106 Nev. 317, 318 (1990) Curry v. State
simple battery. The attempted manslaughter conviction is reversed. The remaining
convictions are affirmed.
Facts
The evidence at trial revealed a brutal attack by Curry on a victim who was then his wife,
Donna Curry (Donna). On November 17, 1987, Donna returned home from her job in Reno to
find a note from Curry. The note told Donna to drink some wine, smoke some marijuana and
dress warm because there was going to be a surprise that night. Donna, after having a glass of
wine and smoking some marijuana, was relaxed when she heard Curry come home around
11:30 p.m.
According to Curry, the surprise was for the two to go up into the mountains for a
romantic interlude. Following romantic advances, Donna fell asleep on the bed while Curry
took a shower. When she awoke, Curry had his hands around her throat, choking her. Curry
then tried to suffocate Donna by forcing a pillow over her face. When these efforts failed,
Curry took an empty wine bottle and hit Donna in the head just above the temple area. On the
third blow, the bottle broke. Curry hit Donna again with the broken bottle, inflicting several
gashes in her head.
Donna was eventually able to get away from Curry. She ran into the bathroom, where
Curry forced her into the tub and held her face down while he turned on the water. Again,
Donna was able to free herself. She left the house and ran to a neighbor's house. Donna
testified that when the neighbor's porch light was switched on, she saw Curry aiming his .357
magnum at her. The neighbors let Donna into their home, attended to her and called the
Douglas County Sheriff's Department.
Curry, during interrogation, feigned a memory loss, alleging he could not recall any of the
events between exiting the shower and his arrest. However, at trial, Curry testified in detail to
the events which led to his arrest and conviction. He characterized the struggle as an attempt
on his part to protect himself from an attack by Donna. He stated that Donna was in some
kind of trance. He further alleged that he never took his gun out of the dresser drawer where it
was kept, although he admitted checking to be sure it was still there. However, Donna's story
was corroborated by both her son and daughter, who both witnessed Curry reenter the house
carrying his revolver.
The State established a possible motive for attempted murder. It was determined that there
was a $125,000 life insurance policy on Donna, with Curry named as the beneficiary. Finally,
Curry suffered financial difficulty following a heart attack. Additionally, it was
uncontroverted that Curry had a paramour by the name of Karen Gallimore, to whom he is
now married.
106 Nev. 317, 319 (1990) Curry v. State
Discussion
[Headnote 1]
The sole issue of merit on appeal is whether attempted voluntary manslaughter is a crime
under Nevada law. This is an issue of first impression and we now hold that attempted
voluntary manslaughter is not a crime in Nevada.
[Headnote 2]
Voluntary Manslaughter, as defined by NRS 200.050, consists of the following,
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 200.050. By definition, voluntary manslaughter is a general intent crime. One cannot
logically specifically intend to act pursuant to a spontaneous, unanticipated and therefore,
truly irresistible passion. An attempt, as defined in NRS 193.330, is a specific intent crime.
The accused must formulate a specific intent to commit the crime attempted. See Bailey v.
State, 100 Nev. 562, 563, 688 P.2d 320, 321 (1984). We further defined the intent necessary
for an attempted crime in Keys v. State, 104 Nev. 736, 766 P.2d 270 (1988), when we stated:
An attempt, by nature, is a failure to accomplish what one intended to do. Attempt
means to try; it means an effort to bring about a desired result. Thus one cannot attempt
to be negligent or attempt to have the general malignant recklessness contemplated by
the legal concept, implied malice (emphasis in original).
Id. at 740, 766 P.2d at 273. The crime of attempted voluntary manslaughter is therefore an
illogical illusion. See People v. Brown, 249 N.Y.S.2d 922 (1964); People v. Foster, 225
N.E.2d 200 (N.Y. 1967); and People v. Weeks, 250 N.E.2d 12 (Ill.App. 1967).
We recognize that the position adopted by this court is currently the minority position
2
among our sister jurisdictions. However, under the statutory language defining an attempt
and the fundamental principles undergirding "specific intent," we conclude that the
majority position validating attempted voluntary manslaughter as a criminal offense is
not a reasonably supportable position.
__________

2
A search revealed that twenty-seven states, including Nevada and the District of Columbia, have not
addressed the issue of attempted voluntary manslaughter. Of the remaining twenty-four jurisdictions, the clear
majority (eighteen) appear to recognize the crime of attempted voluntary manslaughter. These include:
California, Colorado, Florida, Hawaii, Indiana, Maryland, Michigan, New Hampshire, New Mexico, Ohio,
Oregon, Pennsylvania, Tennessee, Texas, Utah, Vermont, West Virginia, and Wyoming.
106 Nev. 317, 320 (1990) Curry v. State
fundamental principles undergirding specific intent, we conclude that the majority position
validating attempted voluntary manslaughter as a criminal offense is not a reasonably
supportable position. For reasons previously stated, we accept the minority view and hold that
attempted voluntary manslaughter cannot exist in this jurisdiction as a crime.
[Headnote 3]
Because the oxymoronic crime of attempted voluntary manslaughter does not exist in
Nevada, Curry's conviction and sentence on that count must be vacated.
3
However, Curry's
contention that the jury instructions given on attempted manslaughter so confused the jury as
to deny him a fundamentally fair trial is without merit. The record clearly demonstrates that
the jury was not foreclosed from rendering a fair verdict and that, in fact, Curry was fairly
tried and convicted. Therefore, all remaining convictions are affirmed.
____________
106 Nev. 320, 320 (1990) Scott Plaza v. Clark County
SCOTT PLAZA, INC., dba UNION PLAZA HOTEL & CASINO, Appellant, v. CLARK
COUNTY, a Political Subdivision of the State of Nevada, Respondent.
No. 20083
May 17, 1990 792 P.2d 398
Appeal from an order granting summary judgment, Eighth Judicial District Court, Clark
County; Earle W. White, Jr., Judge.
Casino filed complaint for declaratory relief and for return of part or all of the late
payment penalty assessed by the county after the casino was inadvertently late in paying its
county license fee. The district court granted summary judgment for the county. Casino
appealed. The Supreme Court held that (1) the casino's inadvertent tardiness in remitting its
quarterly county license fee did not subject the casino to a 100 percent penalty, and (2) the
casino substantially complied with the statute requiring it to give notice of its claim to the
county before filing suit.
__________

3
In People v. Foster, 225 N.E.2d 200 at 201-202 (1967), the New York Court of Appeals allowed a plea of
guilty of attempted manslaughter to stand on grounds that it was bargained for by the defendant in order to avoid
the risk of conviction of a more serious offense. Although the Foster result may be both pragmatic and desirable
to a defendant and prosecutor, we are not receptive to the prospect of a state convicting and punishing citizens
for nonexistent crimes whether or not a defendant is agreeable.
Beckley, Singleton, DeLanoy, Jemison & List, and Daniel F. Polsenberg, Las Vegas, for
Appellant.
1. Gaming.
Casino's inadvertent tardiness in paying county license fee did not give rise to 100 percent penalty applicable to willfully late
payments; permitting county to require 100 percent penalty would conflict with statutes that imposed 25 percent penalty for tardy
payments of state license fees. NRS 463.270, 463.270, subd. 5, 463.400.
2. Counties.
Casino substantially complied with statutes governing procedures for presenting claim to county before filing suit to recover
allegedly excessive penalty for inadvertent late payment of county gaming license fee; casino delivered notice of claim to county three
days before it filed its complaint, and casino and county had been involved in at least four months of correspondence and negotiations
over issue. NRS 244.250, 463.270, 463.400.
OPINION
Per Curiam:
Appellant Scott Plaza, Inc. (Scott Plaza) conducts a licensed gaming casino in Las Vegas
which is assessed a quarterly county license fee pursuant to NRS 463.390. Both appellant and
respondent Clark County (the County) acknowledge that the casino was inadvertently late in
paying its fee for the first quarter of 1988, due on December 31, 1987. Pursuant to NRS
463.400, the County assessed a late payment penalty of $47,550.00, equivalent to 100 percent
of the fee. Scott Plaza paid the penalty under protest and filed a complaint against the County
for declaratory relief and for return of part or all of the penalty payment. Eventually, Scott
Plaza and the County stipulated to resolve the case by cross-motions for summary judgment,
and the court granted summary judgment for the County.
[Headnote 1]
The issue presented in this appeal concerns the district court's interpretation of NRS
463.400 which provides, inter alia, that any licensee who fails to remit any license fee
provided for by this chapter when due is liable for a 100 percent penalty. Appellant contends
that the district court erred in determining that this clause requires a penalty equal to 100
percent of any unintentionally late quarterly payments of county licensing fees. Appellant
maintains that the only reasonable interpretation of this clause, consistent with the rest of
NRS 463.400 and in the context of Chapter 463 as a whole, is that it provides for such a
penalty only when payment is willfully late. We agree.
As appellant points out, it is unreasonable to read the relevant clause as requiring mere
inadvertence because such a construction means that a casino which pays late unintentionally
is fined the same amount as one which evades payment willfully. In addition, the district
court's interpretation means that a casino which inadvertently pays its county license fee late
pays a 100 percent penalty while it is subject to only a 25 percent penalty if it inadvertently
pays its state license fees late. See NRS 463.270(5). We conclude that the legislature did not
intend such an inconsistent result. Moreover, we note that NRS 463.400 originally penalized
only willful failure to pay and willful evasion of fees, which suggest that when the legislature
added the clause in question in 1965, it intended to penalize only willful late payments.
Furthermore, the district court's interpretation of NRS 463.400 would render the statute
internally inconsistent because, while the first two clauses require willful conduct, the
clause in question would apply to merely negligent conduct.
Finally, appellant persuasively argues that the court's construction of the statute renders
meaningless NRS 463.270, the penalty provision in Chapter 463 pertaining to inadvertent late
payments. Appellant first notes that NRS 463.270(5) provides for a late payment penalty of
25 percent of the amount due for any failure to pay a state license fee on time. Noting further
that NRS 463.400 applies to state license fees as well as the county license fee, appellant
contends that interpreting NRS 463.400 to require a 100 percent fine in all cases of late
payment, whether negligent or willful, results in conflicting penalty provisions, at least as far
as state license fees are concerned.
We are not persuaded by respondent's contentions to the contrary. Respondent argues that
NRS 463.400 is the County's only provision for imposing penalties and that the provisions of
NRS 463.270(5) are inapplicable to county fees. While respondent is correct that the County's
only authority to penalize late payments derives from NRS 463.400, the court's interpretation
of the clause in question necessarily includes late payments of state license fees also. The
clause specifies that any licensee who fails to remit any license fee provided for by this
chapter when due is . . . liable for a penalty. . . . (Emphasis added.) Thus, we conclude that
the court's interpretation conflicts with NRS 463.270(5), at least insofar as it applies to
inadvertent late payments of state license fees.
In addition, respondent contends that when the legislature amended NRS 463.400 in 1965,
it intended to penalize both negligent and intentional late payment of fees. Respondent argues
that prior to 1965, there was effectively no penalty imposed for late payments due to the
difficulty of proving willfulness. In fact, however, there was no penalty for late payments
under NRS 463.400 prior to 1965.
however, there was no penalty for late payments under NRS 463.400 prior to 1965. The only
existing penalties for late payments concerned state license fees under NRS 463.270, which
was enacted in 1955 and did not require willfulness.
We conclude that in adding the relevant clause in 1965, the legislature intended to penalize
only willful late payments. Not only is this interpretation of the amendment consistent with
the first two clauses of NRS 463.400, but also it complements rather than conflicts with NRS
463.270.
Because the district court's interpretation of NRS 463.400 yields inconsistent and
unreasonable results and directly conflicts with the previously enacted penalty provision of
NRS 463.270, we hold that the court erred in concluding that the County could assess a 100
percent penalty for appellant's inadvertent late payment of the quarterly county license fee.
Therefore, we reverse the order granting the County's motion of summary judgment and
denying Scott Plaza's motion for summary judgment.
[Headnote 2]
Concurrent with its cross-motion for summary judgment, appellant filed a motion to
amend its complaint to allege that it had presented a claim to the County pursuant to NRS
244.250. The motion to amend was in response to the County's affirmative defense that Scott
Plaza failed to pursue the prerequisite administrative remedy. Although the district court did
not rule on Scott Plaza's motion to amend the complaint, we need not remand for a
determination of whether the motion should be granted. We note that the purpose of a
presentment of claims statute is to prevent the governmental entity from being surprised by
claims it has not had the time to consider administratively. See State ex rel. Welfare v. Capital
Convalescent, 92 Nev. 147, 152, 547 P.2d 677, 680 (1976). Given that Scott Plaza delivered a
notice of claim to the County three days before it filed its complaint and Scott Plaza and the
County were involved in at least four months of correspondence and negotiations over this
matter,
1
we believe that the purpose of NRS 244.250 was fulfilled. We therefore hold that
Scott Plaza substantially, if not technically, complied with NRS 244.250. Compare Frank
Briscoe Co., Inc. v. County of Clark, 643 F.Supp. 93, 100-103 (D.Nev. 1986), aff'd, 857 F.2d
606, 609-611 {9th Cir.
__________

1
The record reveals that the parties exchanged at least five extensive letters and numerous telephone calls
between discovery of the late payment in February 1988 and the day the complaint was filed in July 1988. Scott
Plaza twice requested reconsideration of the County's decision and, in a letter dated June 9, 1988, notified the
County that it was in the process of filing a complaint based on the County's repeated demand for payment.
609-611 (9th Cir. 1988). Moreover, under the peculiar circumstances of this case, it would be
unfair to permit the County to retain the sums collected contrary to its statutory authority.
Accordingly, we reverse the order granting summary judgment for the County and remand to
the district court for entry of summary judgment in favor of Scott Plaza.
____________
106 Nev. 324, 324 (1990) French Bouquet Flower Shoppe v. Hubert
A FRENCH BOUQUET FLOWER SHOPPE LTD., a Nevada Corporation,
Appellant/Cross-Respondent, v. PAULETTE HUBERT, Respondent/Cross-Appellant.
No. 19680
May 30, 1990 793 P.2d 835
Appeal and cross-appeal from orders of the district court dismissing the parties' claims
pursuant to NRCP 41(e). Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Quiet title action was brought in boundary dispute. Following remand, 101 Nev. 193, 698
P.2d 426, defendant moved to dismiss complaint for failure to bring case to trial within three
years of remittitur issued in prior appeal. The district court granted motion, and also
dismissed counterclaim. Appeal and cross-appeal were taken. The Supreme Court held that:
(1) witness who was plaintiff in action from its inception and lived on property in issue was
witness with knowledge of events relevant to proceedings, and, thus, witness' testimony was
sufficient to toll three-year limitations for bringing action to trial after remittitur, and (2)
counterclaim arose out of same subject matter and was therefore compulsory pursuant to
court rules, and should be heard together with claim.
Jones, Jones, Close & Brown, Las Vegas, for Appellant/Cross-Respondent.
M. Nelson Segel, Las Vegas, for Respondent/Cross-Appellant.
1. Quieting Title.
In quiet title action, witness, who was plaintiff in action from its inception and who lived on property at issue since 1974, was
witness with knowledge of events relevant to proceedings, and, thus, witness' testimony was sufficient to commence trial and toll
three-year limitations period specified in court rule for bringing action to trial after remittitur is issued on
appeal.
period specified in court rule for bringing action to trial after remittitur is issued on appeal. NRCP 41(e).
2. Quieting Title.
Counterclaim in quiet title action which arose out of same subject matter as plaintiff's claim, was compulsory counterclaim and
must be heard with plaintiff's claim, and thus was not subject to dismissal for failure to bring case to trial within limitations period
after remittitur on prior appeal, where plaintiff's claim was brought to trial within that limitations period. NRCP 13, 13(a), 41(e).
OPINION
Per Curiam:
[Headnotes 1, 2]
In 1978 Robert and Deanne Werner filed a complaint against the sellers of certain real
property. In 1980 the Werners transferred the real property to their business, A French
Bouquet Flower Shoppe, Ltd. (French Bouquet). The Werners subsequently amended the
complaint three times. In their fourth amended complaint filed in 1982, the Werners added
respondent, the owner of the adjacent property, as a party.
On June 7, 1983, the district court granted the Werners' (French Bouquet's) motion for
summary judgment against respondent. Respondent appealed, and on April 25, 1985, this
court reversed the summary judgment and remanded the case to the district court. See Hubert
v. Werner, 101 Nev. 193, 698 P.2d 426 (1985). This court issued its remittitur on May 14,
1985.
On April 20, 1988, French Bouquet, as substituted plaintiff for the Werners, filed its fifth
amended complaint.
1
On May 12, 1988, in an effort to try the matter within the three-year
limitation period, district court Judge Brennan swore Mr. Werner as a witness and Mr.
Werner gave testimony. Judge Brennan then continued the trial. On October 27, 1988, Judge
Pavlikowski granted respondent's motion to dismiss for failure to bring the case to trial within
three years of the remittitur issued in the prior appeal. See NRCP 41(e).
2
On May 11, 1989,
the district court dismissed respondent's counterclaim for failure to bring the action to trial
within three years after the date on which the remittitur was filed.
__________

1
The Fifth Amended Complaint was identical to the Fourth Amended Complaint except that French Bouquet
was substituted as plaintiff, specifying that the Werners had transferred their interest in the real property to
French Bouquet and that the Werners were the sole owners and directors of French Bouquet.

2
NRCP 41(e) provides in pertinent part:
When in an action after judgment, an appeal has been taken and judgment reversed with cause and
remanded for a new trial, . . . the action must be dismissed by the trial court on motion of any party after
due notice to the parties, or of its own motion, unless brought to trial within three years from the date
upon which remittitur is filed by the clerk of the trial court.
dismissed respondent's counterclaim for failure to bring the action to trial within three years
after the date on which the remittitur was filed.
On appeal, French Bouquet asserts that the district court erred by dismissing its case for
failure to bring the case to trial within three years of the remittitur pursuant to NRCP 41(e).
See Lippett v. State, 103 Nev. 412, 743 P.2d 108 (1987). Respondent contends that Mr.
Werner was not a witness with knowledge of the events, therefore the limitations period
specified in NRCP 41(e) was not tolled. See Lippett, 103 Nev. at 413. Respondent's
contention is without merit.
We have held on numerous occasions that the swearing of a witness who gives testimony
is sufficient to commence trial and thus toll the limitations period specified in NRCP 41(e).
See Lippett v. State 103 Nev. 412, 743 P.2d 108 (1987); Johann v. Aladdin Hotel Corp., 97
Nev. 80, 624 P.2d 493 (1981); Smith v. Timm, 96 Nev. 179, 606 P.2d 530 (1980); Ad Art,
Inc. v. Dennison, 94 Nev. 73, 574 P.2d 1016 (1978); and Thran v. District Court, 79 Nev.
176, 380 P.2d 297 (1963).
Mr. Werner, the plaintiff in this action from its inception, was specifically sworn and gave
testimony. Mr. Werner also lived on the property in issue since 1974. Therefore, we conclude
that Mr. Werner is a witness with knowledge of events relevant to the proceedings below.
Thus, Mr. Werner's testimony was sufficient to toll NRCP 41(e) and the district court erred
by granting respondent's motion to dismiss pursuant to NRCP 41(e).
On cross-appeal, respondent contends that the district court erred by dismissing her
counterclaim of August 1988 for failure to bring the case to trial within the limitations period
specified in NRCP 41(e). We agree. Respondent's counterclaim arises out of the same subject
matter as French Bouquet's claim and was therefore compulsory pursuant to NRCP 13.
3
Under these circumstances, respondent's compulsory counterclaim should be heard together
with French Bouquet's claim upon remand to the district court.
Accordingly, we reverse the order of the district court and remand the case for further
proceedings consistent with this opinion.
__________

3
NRCP 13(a) provides in relevant 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.
____________
106 Nev. 327, 327 (1990) Cosio v. State
RODRIGO P. COSIO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19976
May 30, 1990 793 P.2d 836
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of perjury,
Second Judicial District Court, Washoe County; Robert L. Schouweiler, Judge.
Defendant was convicted of perjury in the district court and defendant appealed. The
Supreme Court held that: (1) evidence that defendant's divorce counsel had advised other
clients that it was not necessary to be Nevada resident to obtain divorce in Nevada was
inadmissible in perjury trial arising out of defendant's testimony in divorce proceeding that he
arrived in Nevada before records of United States Immigration Service showed that he
entered United States, and (2) trial court's refusal to admit evidence that defendant relied on
his counsel's advice when he testified in divorce proceeding deprived defendant of his right to
due process, as such evidence was relevant to defendant's theory of defense that perjury
elements of corruption and willfulness had not been shown.
David Parraguirre, Public Defender, Jane McKenna, Deputy Public Defender, Washoe
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Washoe
1. Criminal Law.
Evidence that perjury defendant's divorce counsel had advised other clients that it was not necessary to be Nevada resident to
obtain divorce in Nevada was not admissible in perjury trial arising out of defendant's statement in divorce proceeding that he came to
Nevada with intention of making Nevada his home on date before records of Immigration Service showed that he entered United States
on a visa, even though proper evidence of such advice would have been relevant to show defendant's lack of intent, where defendant
failed to make proper offer of proof.
2. Constitutional Law; Perjury.
Evidence that perjury defendant had relied on his counsel's advice in divorce proceeding when he testified that he came to Nevada
with intention of making it his home on date before Immigration Service records showed that he entered United States pursuant to visa
was relevant and admissible to disprove perjury elements of corruption and willfulness, and therefore defendant was deprived of his
right to due process when trial court refused to admit such evidence. U.S.C.A. Const. Amends. 5, 14; NRS 199.120.
106 Nev. 327, 328 (1990) Cosio v. State
3. Criminal Law; Perjury.
While reliance on advice of counsel does not constitute separate defense to perjury, under certain circumstances it may be relevant
to show defendant's intent. NRS 199.120.
4. Criminal Law.
Trial court's refusal to allow perjury defendant to admit evidence as to his reliance on counsel's advice when testifying in divorce
proceeding was not harmless error, as jury might have reached different conclusion if it had been presented with such additional
evidence regarding defense of lack of intent. NRS 199.120.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
perjury.
FACTS
Appellant sued for divorce in Nevada in 1981. During the divorce proceeding, appellant
testified that he came to Washoe County on August 20, 1981, with the intention of making
Nevada his home. Records of the United States Immigration Service, however, indicate that
appellant was issued a visa in Frankfurt, West Germany on August 24, 1981, and that he
entered the United States on September 8, 1981. Based on this discrepancy, an information
was filed in August 1988, charging appellant with perjury.
Before the commencement of the perjury trial, the state filed a motion in limine to
preclude anticipated testimony concerning appellant's reliance on the advice of counsel during
the divorce proceeding. After a hearing, the district court granted the state's motion, but ruled
that appellant would be permitted to make a further offer of proof at trial.
Arthur Wehrmeister, appellant's immigration attorney, was called as a defense witness at
trial. Out of the jury's presence, an offer of proof was made concerning a statement by
appellant to an immigration examiner in 1981. Wehrmeister overheard that statement. Out of
the jury's presence, Wehrmeister testified that appellant stated:
I didn't know anything about 42 days residence requirement, because my lawyer never
told me there was any such requirement. I only met my lawyer one time an hour before
we went into court. And I did what my lawyer told me to do. I did not know that any of
that was illegal.
The state conceded that appellant's stated ignorance of the divorce laws was relevant on the
issue of criminal intent. The district court then ruled that Wehrmeister would be permitted
to testify before the jury, but no reference could be made to appellant's reliance on
counsel's advice or ignorance of the law.
106 Nev. 327, 329 (1990) Cosio v. State
district court then ruled that Wehrmeister would be permitted to testify before the jury, but no
reference could be made to appellant's reliance on counsel's advice or ignorance of the law.
Wehrmeister testified before the jury that appellant stated:
I did not know anything about a 42 day residency requirement in the state of Nevada,
because my lawyer never told me there was any such requirement.
Trial counsel also made an offer of proof that appellant's divorce attorney told other clients
that it was not necessary to be a Nevada resident in order to obtain a divorce in Nevada. The
district court excluded that evidence.
On February 10, 1989, appellant was convicted, pursuant to a jury verdict, of one count of
perjury. The district court sentenced appellant to one year in the Nevada State Prison. The
sentence was suspended and appellant was placed on probation for three years. This appeal
followed.
DISCUSSION
[Headnote 1]
Appellant contends that the district court erred in excluding evidence that his divorce
counsel advised other clients that it was not necessary to be a Nevada resident in order to
obtain a divorce in this state. We disagree. Under the circumstances of this case, proper
evidence of such advice would have been relevant to show appellant's lack of intent.
Nevertheless, appellant failed to make a proper offer of proof. Therefore, it was within the
district court's discretion to refuse to admit the evidence.
[Headnotes 2, 3]
Appellant contends that the district court erred in excluding evidence of his reliance on his
counsel's advice. Specifically, appellant argues that by excluding the evidence, the district
court deprived him of the opportunity to present his theory of defense to the jury, because the
evidence went to disprove the elements of corruption and willfulness.
1
Appellant claims that
he was therefore deprived of his right to due process. We agree.
__________

1
In 1981, NRS 199.120 provided in part:
Every person having taken a lawful oath or made affirmation in a judicial proceeding or in any other
matter where, by law, an oath or affirmation is required and no other penalty is prescribed, or who
willfully and corruptly makes an unqualified statement of that which he does not know to be true, or who
swears or affirms willfully, corruptly and falsely in a matter material to the issue in question . . . is guilty
of perjury . . . and shall be punished by imprisonment in the state prison for not less than 1 year nor more
than 10 years, and may be further punished by a fine of not more than $10,000.
1979 Nev. Stats. ch. 655, 13, at 1420.
106 Nev. 327, 330 (1990) Cosio v. State
This court has previously held that the due process clauses of our constitutions guarantee a
defendant the right to introduce into evidence any testimony or documentation which would
tend to prove the defendant's theory of the case. Vipperman v. State, 96 Nev. 592, 596, 614
P.2d 532, 534 (1980). Appellant's theory of defense was that he lacked the intent necessary
for a perjury conviction. While reliance on the advice of counsel does not constitute a
separate defense, under certain circumstances it may be relevant to show a defendant's intent.
See Adler v. State, 95 Nev. 339, 346, 594 P.2d 725 (1979). Here, evidence of appellant's
reliance on his counsel's advice would clearly have tended to prove his theory of the case, i.e.,
his lack of intent. Appellant was therefore entitled to present this evidence to the jury. The
district court's failure to allow appellant to do so constituted error.
[Headnote 4]
The jury, if presented with this additional evidence to support appellant's theory of
defense, might have reached a different conclusion. We are therefore unable to conclude that
the error was harmless. Accordingly, we reverse the judgment of conviction and remand this
case to the district court for a new trial.
____________
106 Nev. 330, 330 (1990) National Union Fire Ins. v. Caesars Palace
NATIONAL UNION FIRE INSURANCE COMPANY, Appellant, v. CAESARS PALACE
HOTEL and CASINO, and NEVADA INSURANCE GUARANTY ASSOCIATION,
Respondents.
No. 20263
May 30, 1990 792 P.2d 1129
Appeal for an order of the district court granting partial summary judgment in favor of
respondents. Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Hotel casino that was site of boxing match and state Insurance Guaranty Association
brought action against issuer of special event policy for indemnification for cost of defending
against fight-goer's suit and for payment of resulting judgment. The district court granted
partial summary judgment for hotel casino and association, and appeal was taken. The
Supreme Court held that policy was ambiguous both in its arising out of operations
language and in meaning of completed operations hazard clause, and issuer should have
been allowed to attempt to discover extrinsic evidence hearing on parties' intent.
Barker, Gillock, Koning, Brown & Earley and David L. Thomas, Las Vegas, for Appellant.
Alverson, Taylor, Mortensen & Gould, Las Vegas, for Respondents.
1. Insurance.
When ambiguity exists in insurance policy, court should consider not merely language, but also parties' intent, policy's subject
matter, and circumstances surrounding policy's issuance, and policy should be construed to effectuate reasonable expectations of
insured.
Special event policy covering boxing match at hotel casino was ambiguous both as to clause making hotel casino additional named
insured only with respect to liability arising out of operations and as to clause dealing with completed operations hazard, and
issuer of policy should have been allowed to attempt to discover extrinsic evidence, including evidence regarding industry custom and
usage in area of special event insurance, to establish intended scope of coverage in suit brought by fight-goer to recover for injury
sustained at conclusion of fight.
OPINION
Per Curiam:
This is an appeal from an order granting respondents' motion for partial summary
judgment. For the reasons set forth below, we reserve.
Facts
A heavyweight championship boxing match between Larry Holmes and Gerry Cooney
took place on June 11, 1982, in a temporary arena set up in the parking lot of Respondent
Caesars Palace Hotel and Casino (Caesars) in Las Vegas. Production of the fight was a joint
effort of Caesars and the fight promoters, Don King Productions and Tiffany, Inc.
(King/Tiffany). At the time of the fight, Caesars was insured under two policies: a general
liability policy issued by Ambassador Insurance Company (Ambassador), and a special event
policy issued by Appellant National Union Fire Insurance Company (National Union) which
covered the production of the boxing match. Pursuant to its agreement with Caesars,
King/Tiffany obtained the National Union policy and Caesars was listed as an additional
named insured. The National Union policy states in pertinent part that:
IT IS HEREBY UNDERSTOOD AND AGREED THAT CAESARS WORLD, INC.
AND CAESARS PALACE, INC. THEIR OFFICERS, AGENTS AND EMPLOYEES
ARE ADDED AS ADDITIONAL NAMED INSUREDS, BUT ONLY WITH
RESPECT TO LIABILITY ARISING OUT OF OPERATIONS PERFORMED FOR SUCH
INSURED, BY OR ON BEHALF OF THE NAMED INSURED.
ING OUT OF OPERATIONS PERFORMED FOR SUCH INSURED, BY OR ON
BEHALF OF THE NAMED INSURED.
Charles Arnoult attended the fight. At the conclusion of the fight, Arnoult exited the arena
and followed the crowd which was being directed into Caesars Hotel-Casino. Arnoult and the
crowd of fight patrons entered a corridor leading into the hotel. After Arnoult had travelled
approximately 20 feet into the corridor, someone shouted Watch out, he has a gun.
Although apparently no shots were fired, the crowd panicked and Arnoult was seriously
injured in the ensuing stampede.
Arnoult subsequently recovered a judgment in a personal injury action brought against
Caesars. National Union had rejected Caesars' tender of the defense in that action, claiming
that because the incident occurred inside Caesars Hotel-Casino, Arnoult's injuries fell outside
the scope of coverage provided by the National Union policy. Consequently, Arnoult's
judgment was satisfied by Caesars and Respondent Nevada Insurance Guaranty Association
(NIGA) which had assumed certain of Ambassador's obligations after Ambassador was
placed in liquidation in or about May 1984.
Respondents thereafter filed the instant action against National Union seeking
indemnification for the cost of defending Arnoult's suit and for the payment of the resulting
judgment. On January 10, 1989, respondents filed a motion for partial summary judgment and
requested a finding that Arnoult's injuries were covered under the above-quoted arising out
of operations language of the National Union policy. Respondents alternatively asserted that
a completed operations hazard clause contained in the National Union policy covered
Arnoult's claim.
National Union opposed respondents' motion and moved to compel Caesars to produce
certain documents and to answer certain interrogatories in order to establish the scope of
coverage intended by the parties. Following a hearing, the district court ruled that Caesars'
intent was immaterial, and that because Arnoult was injured by the flow of fight patrons, his
injuries were covered under the arising out of operations language of the National Union
policy as a matter of law. The district court issued no ruling as to the scope of coverage
provided by the covered operations hazard clause of the policy, nor did the court rule on
National Union's motion to compel. This appeal followed.
Discussion
[Headnotes 1, 2]
When an ambiguity exists in an insurance policy, the court should consider not merely
the language, but also the intent of the parties, the subject matter of the policy, the
circumstances surrounding its issuance, and the policy should be construed to effectuate
the reasonable expectations of the insured.
should consider not merely the language, but also the intent of the parties, the subject matter
of the policy, the circumstances surrounding its issuance, and the policy should be construed
to effectuate the reasonable expectations of the insured. National Union Fire Ins. v. Reno's
Exec. Air, 100 Nev. 360, 365, 682 P.2d 1380, 1383 (1984). As an additional named insured,
Caesars' intent is relevant to the construction of the contract because the intent of
King/Tiffany in requesting the added coverage is directly dependent on the agreement
between King/Tiffany and Caesars. Note, Recognizing the Unique Status of Additional
Named Insureds, 53 Fordham L. Rev. 117, 129 (1984) (citing, e.g., Valentine v. Aetna Ins.
Co., 564 F.2d 292, 296 (9th Cir. 1977); Consolidation Coal Co., Inc. v. Liberty Mutual Ins.,
406 F.Supp. 1292, 1300 (W.D.Pa. 1976)). Here, the scope of coverage provided by virtue of
the words arising out of operations is ambiguous. Thus, the district court erred in
disregarding Caesars' intent and in not granting National Union's motion to compel discovery
in order to ascertain that intent.
In addition, a potentially relevant circumstance surrounding issuance of the National
Union policy is industry custom and usage in the area of special events insurance. Extrinsic
evidence of such custom and usage may help establish what the parties intended the words
arising out of operations to include. See Nat. Union Fire Ins. Co. v. Continental Ill. Corp.,
658 F.Supp. 781, 789-90 (N.D.Ill. 1987). National Union should have been given a sufficient
opportunity to conduct discovery in order to ascertain whether a sufficiently established
custom existed at the time the contract was executed, whether Caesars or King/Tiffany had
actual or constructive knowledge of such custom, and whether the parties acted in reference
to such custom. See Valley Nat. Bk. v. Cotton Growers Hail Ins., 747 P.2d 1225, 1228
(Ariz.Ct.App. 1987).
Finally, we are not prepared to hold that the completed operations hazard clause of the
National Union policy covered Arnoult's injuries as a matter of law.
1
As with the arising
out of operations" language, the scope of coverage provided by this clause is uncertain
and the clause should not be construed without the benefit of evidence regarding the
parties' intent and relevant custom and usage.
__________

1
The clause at issue provides in full that:
completed operations hazard includes bodily injury and property damage arising out of operations or
reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily
injury or property damage occurs after such operations have been completed or abandoned and occurs
away from premises owned or rented to the named insured. Operations include materials, parts or
equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the
following times:
(1) when all operations to be performed by or on behalf of the named insured under the contract have
been completed.
(2) when all operations to be performed by or on behalf of the named insured at the site of the operations
have been completed, or
operations language, the scope of coverage provided by this clause is uncertain and the
clause should not be construed without the benefit of evidence regarding the parties' intent
and relevant custom and usage.
For the foregoing reasons, we hold that the district court erred in granting respondents'
motion for partial summary judgment and in not granting National Union's motion to compel
discovery. Accordingly, we reverse the order granting partial summary judgment and remand
this case to the district court for further proceedings consistent with this opinion.
____________
106 Nev. 334, 334 (1990) Desert Inn Casino & Hotel v. Moran
DESERT INN CASINO & HOTEL, Appellant, v. BEVERLY MORAN, Respondent.
No. 20273
May 30, 1990 792 P.2d 400
Appeal from denial of appellant's petition for judicial review. Eighth Judicial District
Court, Clark County; Addeliar D. Guy, Judge.
Employer petitioned for judicial review of the decision to grant an occupational disease
claim for a worker who was told that she had a degenerative joint disease in her hands that
had been aggravated by her job as a masseuse. The district court upheld the decision.
Employer appealed. The Supreme Court held that: (1) the worker's degenerative joint disease
qualified as an occupational disease which arose out of and in the course of her employment
as masseuse, and (2) the worker's failure to file an occupational disease claim with the
employer's insurer within ninety days of the diagnosis was caused by the employer's
erroneous advice.
Affirmed.
Jerry Collier Lane, Las Vegas, for Appellant.
Nancyann Leeder, Las Vegas, for Respondent.
______________
(3) when the portion of the work out of which the injury or damage arises has been put to its intended use
by any person or organization other than another contractor or subcontractor engaged in performing
operations for a principal as a part of the same project.
Operations which may require further service or maintenance work, or correction, repair or replacement
because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.
Standard for reviewing administrative decision on occupational disease claim is limited to determining whether there is substantial
evidence in record to support decision. NRS 617.440.
Workers' compensation statutes must be liberally construed, to protect worker in manner consistent with intent of legislature.
Appeals officer and district court did not exceed their jurisdiction in granting occupational disease claim for worker's degenerative
joint disease that had been aggravated by her job as masseuse, even though claim had been initially denied for worker's mistakenly
filing industrial accident claim with her employer, rather than occupational disease claim with her employer's insurer. NRS 617.440.
Worker's degenerative joint disease was occupational disease which arose out of and in course of her employment as masseuse;
worker first began to have problems with her hands while employed as masseuse, her job involved inordinate use of her hands, and her
problems worsened as she continued her employment. NRS 617.440.
Worker's discovery of relationship between her degenerative joint disease and her employment as masseuse triggered ninety-day
period within which worker was required to file occupational disease claim with employer's insurer. NRS 617.330.
Worker's failure to file occupational disease claim with her employer's insurer within ninety days of discovery of relationship
between degenerative joint disease and employment as masseuse was caused by employer's erroneous advice that worker was to file
industrial accident claim with employer, rather than occupational disease claim with employer's insurer and, thus, failure to comply
strictly with statutory time limitations could not benefit employer. NRS 617.330.
OPINION
Per Curiam:
1

Respondent Beverly Moran quit her job with appellant Desert Inn Casino & Hotel after her
doctor told her she had a degenerative joint disease in her hands which was aggravated by her
job as a masseuse. She filed a worker's compensation claim which was initially denied
because, at her employer's direction, she had mistakenly filed an industrial accident claim
with her employer rather than an occupational disease claim with her employer's insurer.
__________

1
This appeal was previously dismissed in an unpublished order of this court. Pursuant to the request of
counsel for respondent Beverly Moran, 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 this appeal filed on April 24,
1990.
insurer. Following administrative appeals, her claim was granted and ultimately upheld by the
district court. Desert Inn filed a petition for judicial review which the district court denied.
[Headnotes 1, 2]
The standard for reviewing administrative action is abuse of discretion; thus, our review is
limited to determining whether there was substantial evidence in the record to support the
determination below. State Indus. Ins. Sys. v. Christensen, 106 Nev. 85, 87, 787 P.2d 408,
409 (1990). Worker's compensation statutes must be liberally construed, in a manner
consistent with the intent of the legislature, to protect the worker. Weaver v. State Indus. Ins.
Sys., 104 Nev. 305, 306, 756 P.2d 1195, 1196 (1988).
[Headnote 3]
Desert Inn first contends that the appeals officer and/or the district court exceeded their
jurisdiction when they granted Moran's claim. Because we hold that the lower tribunals'
decisions were consistent with the meaning and intent of the worker's compensation statutes,
this contention is without merit.
[Headnote 4]
Desert Inn next contends that the lower tribunals abused their discretion in finding that
degenerative joint disease aggravated by employment qualifies as a compensable
occupational disease. NRS 617.440 sets forth the requirements for an occupational disease to
be deemed to arise out of and in the course of employment. It states:
1. An occupational disease defined in this chapter shall be deemed to arise out of
and in the course of the employment if:
(a) There is a direct causal connection between the conditions under which the work
is performed and the occupational disease;
(b) It can be seen to have followed as a natural incident of the work as a result of the
exposure occasioned by the nature of the employment;
(c) It can be fairly traced to the employment as the proximate cause; and
(d) It does not come from a hazard to which work[ers] would have been equally
exposed outside of the employment.
2. The disease must be incidental to the character of the business and not
independent of the relation of the employer and employee.
3. The disease need not have been foreseen or expected, but after its contraction
must appear to have had its origin in a risk connected with the employment, and to
have flowed from that source as a natural consequence.
a risk connected with the employment, and to have flowed from that source as a natural
consequence.
Applying NRS 617.440 to this case, the lower tribunals found, and the evidence supports,
that Moran's degenerative joint disease qualifies as an occupational disease which arose out
of and in the course of her employment as a masseuse for Desert Inn. She first began to have
problems with her hands while employed as a masseuse for Desert Inn. Her job as a masseuse
involved inordinate use of her hands. As she continued her employment, her problems
worsened. She was diagnosed as having a disease aggravated by overuse in the
performance of her job. We hold that these facts are sufficient to meet the requirements of
NRS 617.440there is a direct causal connection between her work conditions and the
aggravation of the disease, the disease worsened as a natural incident of her continued work,
and her work can be fairly traced as the proximate cause of her worsened condition. This
conclusion is consistent with the rules of liberal construction set forth above and with our
decisions in Christensen, 106 Nev. at 87-88, 787 P.2d at 409, in which we implicitly held that
aggravation of a pre-existing condition may be compensable as an occupational disease, and
State Indus. Ins. Sys. v. Kelly, 99 Nev. 774, 776, 671 P.2d 29, 30 (1983), in which we held
that aggravation of a pre-existing disease by an industrial injury is compensable. Desert Inn's
contention is therefore without merit.
[Headnotes 5, 6]
Last, Desert Inn contends that Moran's claim was untimely. Worker's compensation
statutes are to be liberally construed as to matters of procedure. Diaz v. Golden Nugget, 103
Nev. 152, 155, 734 P.2d 720, 723 (1987); Nevada Indus. Comm'n v. Peck, 69 Nev. 1, 11, 239
P.2d 244, 248 (1952). Claims for occupational diseases are to be filed with the insurer within
ninety days of the date the employee learns of the disability and its relationship to the
employment. NRS 617.330. Although Moran first went to a doctor in September 1986, it was
not until October 1987 that she discovered the relationship between her disability and her
employment; therefore, the ninety-day period did not begin to run until the latter date. At the
direction of W.R Gibbens, Inc., Desert Inn's private administrator, Moran filed an Employee
Accident Report with her employer on December 8, 1987, less than forty-five days after
being diagnosed on October 26, 1987, as having degenerative joint disease aggravated by her
job as a masseuse.
She therefore substantially complied with the statute. Although Moran's is an occupational
disease claim, she erroneously filed a claim for an industrial accident at Gibbens' direction.
claim for an industrial accident at Gibbens' direction. Likewise, she filed a claim with her
employer, rather than with the insurer, at Gibbens' direction. Because its own agent gave
Moran the wrong information, Desert Inn cannot now benefit from Moran's failure to strictly
comply with the statute. Therefore, Desert Inn's contention is without merit.
We affirm the denial of appellant's petition for judicial review.
____________
106 Nev. 338, 338 (1990) Valley Motor v. Almberg
VALLEY MOTOR, INC., a Nevada Corporation; DONALD W. REED and SHIRLEY J.
REED, Appellants, v. E. W. ALMBERG and VIVIAN ALMBERG; FRED FISHER
and MAURINE FISHER; LARRY GILBRETSON and MARY GILBRETSON;
THELMA HECKETHORN; GEORGE HERNANDEZ and DONNA HERNANDEZ;
ANN HANSEN: A. Z. JOY and VIVIAN JOY; RICHARD R. REYNOLDS; DEAN
STUBBS and JEAN STUBBS; and H. C. VOGLER and CHERYL VOGLER,
Respondents.
No. 19907
May 30, 1990 792 P.2d 1131
Appeal from a district court judgment for permanent injunction. Seventh Judicial District
Court, White Pine County; Archie E. Blake, Judge.
Action was brought to enjoin placement of mobile homes in city subdivision. The district
court granted permanent injunctive relief, and appeal was taken. The Supreme Court, Young,
C. J., held that finding that restrictive covenant prohibiting use of temporary structures as
residences included mobile homes was sufficiently supported by evidence of drafters' intent.
Affirmed.
Springer and Rose, JJ., dissented.
Gary D. Fairman and David R. Olsen, Ely, for Appellants.
Wilson and Barrows, Elko, for Respondents.
1. Covenants.
Finding that restrictive covenant prohibiting use of temporary structures as residences included mobile homes was sufficiently
supported by evidence of drafters' intent.
2. Covenants.
Restrictive covenants will be enforced as long as original purpose of covenant can still be accomplished and substantial benefit
will inure to restricted area.
3. Covenants.
Restrictive covenant prohibiting placement of mobile homes in city subdivision would be enforced in that enforcement would
maintain exclusive character of subdivision and facilitate resale of present residents' homes.
OPINION
This is an appeal from a judgment of the district court permanently enjoining appellants
from placing trailers,' also known as mobiles homes,' also known as manufactured homes'
in a subdivision in the City of Ely commonly known as Mountain View Subdivision, Units
1 and 2 (hereafter Mountain View).
The district court judgment was based upon a restrictive covenant applicable to Mountain
View which provides that:
7. TEMPORARY STRUCTURES. No structure of a temporary character, trailer,
basement, tent, shack, garage, barn, or other outbuilding shall be used on any lot as a
residence at any time.
The district court alternatively ruled that the term trailer unambiguously included
appellants' manufactured homes, and that assuming the term trailer was ambiguous, the
drafters of the covenant intended the term to include appellants' manufactured homes.
[Headnote 1]
At trial, conflicting evidence was presented on the issue of whether the drafters of
covenant seven intended the term trailer to include appellants' homes. The district court
found that the drafters did intend such a construction. The district court's finding of fact is
supported by substantial evidence and will not be disturbed on appeal. NRCP 52(a);
Sutherland v. Gross, 105 Nev. 192, 772 P.2d 1287, 1289-90 (1989).
[Headnotes 2, 3]
This court has previously held that restrictive covenants will be enforced as long as the
original purpose of the covenants can still be accomplished and substantial benefit will inure
to the restricted area. Tompkins v. Buttrum Constr. Co., 99 Nev. 142, 145-46, 659 P.2d 865,
867 (1983). The evidence produced at trial supports respondents' contention that enforcement
of covenant seven will maintain the exclusive character of Mountain View and facilitate the
resale of respondents' homes. Therefore, the restrictive covenant should be enforced.
Because we hold that the district court's second basis for granting the permanent
injunction is sound, we need not address appellants' remaining contentions.
granting the permanent injunction is sound, we need not address appellants' remaining
contentions. Accordingly, we affirm the judgment of the district court.
Steffen and Mowbray, JJ., concur.
Springer, J., with whom Rose, J., concurs, dissenting:
The manufactured homes are constructed permanently on the building sites and cannot
possibly come within the definition of temporary structures prohibited by section 7. These
homes are not temporary structures nor are they trailers. Although wheels are attached to a
chassis for transportation purposes, the wheels are ultimately removed, and the homes
permanently affixed to the real estate in the form of a manufactured home. These homes are
simply not trailers in an sense of the word.
1
I dissent.
____________
106 Nev. 340, 340 (1990) Torres v. Farmers Insurance Exchange
CLARA TORRES, Appellant, v. FARMERS INSURANCE EXCHANGE, A FOREIGN
CORPORATION, Respondent.
No. 20475
May 30, 1990 793 P.2d 839
Appeal from summary judgment entered in favor of respondent. Eighth Judicial District
Court, Clark County; Thomas A. Foley, Judge.
Named insured's daughter brought action against automobile insurer to recover uninsured
motorist coverage limits under two policies and tort damages for bad faith refusal to settle
claim. The district court granted insurer's motion for summary judgment limiting its liability
on basis of anti-stacking clauses in amendments to policy. Daughter appealed. The Supreme
Court held that: (1) issues of material fact, precluding entry of summary judgment for insurer,
existed due to insurer's failure to produce original policies, and (2) anti-stacking clauses did
not satisfy statutory clarity requirement.
Albert D. Massi, Las Vegas, for Appellant.
Respondent.
__________

1
Trailer. A separate vehicle, not driven or propelled by its own power, but drawn by some independent
power. Black's Law Dictionary (5th ed. 1979).
1. Insurance.
Named insured's daughter was presumably a Class I insured, and hence was entitled to stack uninsured motorist coverage if
anti-stacking clause in automobile policy was invalid. NRS 687B.145, subd. 1.
2. Insurance.
For anti-stacking clause relating to uninsured motorist coverage to be valid: clause must express limitation of coverage in clear
language; clause must be prominently displayed in policy or amendment; and insured cannot have paid full double premium for each
of the two or more separate uninsured motorist coverages. NRS 687B.145, subd. 1.
3. Judgment.
Party moving for summary judgment must establish foundational facts necessary to determine issue, even if issue is to be
determined as matter of law.
4. Judgment.
Issues of material fact, precluding entry of summary judgment for automobile insurer, existed as to validity of anti-stacking clauses
in amendments to automobile policies, where insurer had failed to produce original policies. NRS 687B.145, subd. 1.
5. Insurance.
At trial, automobile insurer has burden of persuasion and production regarding validity of anti-stacking clause precluding stacking
of uninsured motorist coverage limits among separate uninsured motorist coverages issued by same insurer. NRS 687B.145, subd. 1.
6. Insurance.
Insured generally has reasonable expectation that insured will receive additional uninsured motorist indemnification for each
separate uninsured motorist premium paid. NRS 687B.145, subd. 1.
7. Insurance.
To satisfy its burden of establishing validity of anti-stacking clause in automobile policies, insurer, at a minimum, had to produce
copies of both anti-stacking amendment and original policies. NRS 687B.145, subd. 1.
8. Insurance.
Anti-stacking language in automobile policy must be truly comprehensible to average insured in order to satisfy statute. NRS
687B.145, subd. 1.
9. Insurance.
Anti-stacking clauses in endorsements to automobile policies did not satisfy statutory clarity requirement, even if language was
technically correct; clauses failed to specify expressly that total uninsured motorist coverage was limited to highest coverage on any
singly vehicle, that limitation applied regardless of number of uninsured motorist premiums paid, that limitation applied regardless of
number of vehicles covered, that limitation applied to insurance issued by insurer and not only to other insurers, and that limitation
applied regardless of whether insured's vehicles were covered under simple, multi-car policy or under separate policies. NRS
687B.145, subd. 1.
OPINION
Per Curiam:
Respondent Farmers Insurance Exchange (Farmers) issued two automobile insurance
policies to appellant Clara Torres' {Torres) father.
automobile insurance policies to appellant Clara Torres' (Torres) father. Torres was injured by
an uninsured motorist and brought this suit to recover the uninsured motorist coverage limits
under the policies. Farmers moved for a summary judgment limiting its liability to Torres on
the basis of an anti-stacking clause contained in amendments to Torres' policies. The district
court granted Farmers' motion and Torres appeals the district court's judgment. We reverse
the judgment of the district court and remand this case for a determination of Ms. Torres'
actual damages.
FACTS
The basic facts are not in dispute. Ms. Torres' family owned two cars, a 1976 Datsun and a
1975 Dodge Dart, each of which was covered by a separate insurance policy issued by
Farmers. Each of the two policies included uninsured motorist (UM) coverage limits of
$15,000 per person or $30,000 per accident. Ms. Torres' father was the named insured who
purchased the policies.
On or about January 2, 1986, Ms. Torres was injured by an uninsured motorist.
Specifically, Ms. Torres was riding as a passenger on a friend's moped, which went out of
control and crashed. Farmers has paid Torres $15,000 on one of her policies, representing the
single person limit for UM coverage on that policy. Torres requested that the $15,000 UM
coverage limits on her two policies be stacked, i.e., combined to add up to a total limit of
$30,000. Farmers denied any further liability, claiming that an applicable anti-stacking clause
limits its liability to the UM coverage limit under a single policy of $15,000.
On October 22, 1986, Torres filed her complaint against Farmers. The complaint
demanded that the UM coverage limits on her two policies be stacked and also sought tort
damages on the basis of bad faith refusal to settle an insurance claim. Farmers filed a motion
to dismiss on the issue of stacking. The district court properly treated the motion as one for
summary judgment. Torres filed a cross-motion for summary judgment on the same issue. In
support of its motion, Farmers submitted a copy of the separate amendment containing the
anti-stacking clause, but Farmers did not submit copies of Torres' actual insurance policies.
Torres did not submit copies of the policies in her opposition and the district court did not
request the policies. Thus, the insurance policies themselves are nowhere in the record of this
case. On August 25, 1989, following a hearing, the court granted summary judgment to
Farmers, concluding that the anti-stacking amendment met each of NRS 687B.145(1)'s three
main requirements for validity, which are discussed below. Torres appeals the order granting
summary judgment, raising only the single issue of the validity of the anti-stacking clause.
Exactly how or when Farmers amended Torres' policies to include the clause prohibiting
stacking is not clear based on this record. Both parties assume, however, that, if valid, the
anti-stacking clause was applicable to each of Torres' two policies. The anti-stacking clause is
contained in a one-page amendment, or endorsement, which Farmers refers to as
Endorsement s6700. At the top of the page is the heading UNINSURED MOTORIST
BENEFITS LIMITATION DUE TO OTHER INSURANCE. This heading is in bolded,
capitalized letters which are larger than the other lettering in s6700. Underneath this heading
the anti-stacking clause appears as follows:
Under Part IIUninsured Motorist Coverage it is understood and agreed that the
provisions that follow in bold face limit the amount payable under this section:
Other insurance
1. We will pay under this coverage only after the limits of liability under any
applicable bodily injury liability bonds or policies have been exhausted by
payment of judgments or settlements.
2. The amount of Uninsured Motorist Coverage we will pay under Additional
Definitions 3b shall be to the extent the damages exceed the amount of any
other bodily injury coverage available to any party held to be liable for the
accident.
3. EXCEPT AS PROVIDED IN PARAGRAPH 2 ABOVE, IF ANY
OTHER COLLECTIBLE INSURANCE APPLIES TO A LOSS
COVERED BY THIS PART, WE WILL PAY ONLY OUR SHARE. OUR
SHARE IS THE PROPORTION THAT OUR LIMITS OF LIABILITY
BEAR TO THE TOTAL OF ALL APPLICABLE LIMITS.
4. We will not provide insurance for a vehicle other than your insured car,
unless the owner of that vehicle has no other insurance applicable to this part.
5. IF ANY APPLICABLE INSURANCE OTHER THAN THIS POLICY
IS ISSUED TO YOU BY US OR ANY OTHER MEMBER COMPANY OF
THE FARMERS INSURANCE GROUP OF COMPANIES, THE TOTAL
AMOUNT PAYABLE AMONG ALL SUCH POLICIES SHALL NOT
EXCEED THE LIMITS PROVIDED BY THE SINGLE POLICY WITH
THE HIGHEST LIMITS OF LIABILITY.
This endorsement is part of the policy. It supersedes and controls anything in the policy
contrary. It is otherwise subject to all other terms of the policy.
The above quotation reproduces the bolding, capitalization and margins as they appear in
s6700.
LEGAL DISCUSSION
[Headnote 1]
In this case, Ms. Torres is requesting inter-policy stacking of the UM coverage limits
contained in two separate automobile insurance policies issued by the same insurer. The sole
question presented by this appeal is whether the anti-stacking clause quoted above is valid
under NRS 687B.145(1).
1
Farmers raises only its anti-stacking clause as a defense to
liability. As the daughter of the named insured, Ms. Torres presumably is a Class I insured
and, hence, is entitled to stack the UM coverage if the anti-stacking clause is invalid. See
generally Beeny v. California State Auto Ass'n, 104 Nev. 1, 752 P.2d 756 (1988). This court
has explained the concept of stacking of UM coverage in previous cases and we will not
repeat that explanation here. See, e.g., Allstate Ins. Co. v. Maglish, 94 Nev. 699, 586 P.2d
313 (1978); Rando v. Calif. St. Auto. Ass'n, 100 Nev. 310, 684 P.2d 501 (1984). The
anti-stacking clause applicable to this case is contained in paragraph five of s6700.
[Headnote 2]
This court has substantively addressed the requirements of NRS 687B.145(1) in two
previous cases: Neumann v. Standard Fire Ins., 101 Nev. 206, 699 P.2d 101 (1985); and State
Farm Mutual v. Knauss, 105 Nev. 407, 775 P.2d 707 (1989). To be valid under NRS
687B.145(1), an anti-stacking clause must meet three principal requirements: the clause must
express the limitation of coverage in clear language (clarity requirement); the clause must be
prominently displayed in the policy or amendment (prominence requirement); and the insured
cannot have paid a full double premium for each of the two or more separate UM coverages
(requirement prohibiting double premiums). Neumann,101 Nev.
__________

1
NRS 687B.145(1) provides:
1. Any policy of insurance or endorsement providing coverage under the provisions of NRS
690B.020 or other policy of casualty insurance may provide that if the insured has coverage available to
him under more than one policy or provision of coverage, any recovery or benefits may equal but not
exceed the higher of the applicable limits of the respective coverages, and the recovery or benefits must
be prorated between the applicable coverages in the proportion that their respective limits bear to the
aggregate of their limits. Any provision which limits benefits pursuant to this section must be in clear
language and be prominently displayed in the policy, binder or endorsement. Any limiting provision is
void if the named insured has purchased separate coverage on the same risk and has paid a premium
calculated for full reimbursement under that coverage.
101 Nev. at 209, 699 P.2d at 103. Before addressing these three requirements, we discuss the
preliminary problem of Farmers' failure to submit the bodies of Torres' two policies in
support of its motion for summary judgment.
I. Farmers' failure to submit the bodies of Torres' two policies in support of its motion for
summary judgment.
In determining the validity of the anti-stacking clause, the district court considered only
the anti-stacking clause itself, which was contained in amendments separate from the policies
themselves. On appeal, Torres urges that it was error for the district court not to examine the
bodies of the insurance policies before granting Farmers' motion for summary judgment. We
agree. Although Torres failed to raise this objection to the district court, we address this
serious issue under the doctrine of plain error.
2

[Headnotes 3, 4]
The party moving for summary judgment bears the burden of establishing the
non-existence of any genuine issue of material fact and of establishing entitlement to
judgment as a matter of law. Shapro v. Forsythe, 103 Nev. 666, 668, 747 P.2d 241, 243
(1987). We have treated the clarity requirement of NRS 687B.145(1) as a question of law.
See Neumann and Knauss, supra. Even on issues to be determined as a matter of law,
however, the moving party must establish the foundational facts necessary to determine the
issue. As explained below, Neumann requires the insurer to produce copies of both the
insurance policies and the amendments containing the anti-stacking clauses. Thus, Farmers'
failure even to produce the policies means that Farmers has failed to establish the
non-existence of issues of material fact.
[Headnotes 5, 6]
Farmers has also failed to establish entitlement to judgment as a matter of law.
__________

2
Torres undoubtedly should have, but failed to object to Farmers' failure to submit copies of the insurance
policies in support of its motion. Arguments raised for the first time on appeal need not be considered by this
court. Montesano v. Donrey Media Group, 99 Nev. 644, 650 n.5, 668 P.2d 1081, 1085 n.5 (1983).
Nevertheless, [t]he ability of this court to consider relevant issues sua sponte in order to prevent plain error is
well established. Bradley v. Romeo, 102 Nev. 103, 105, 716 P.2d 227, 228 (1986) (citation omitted). An error
is plain if the error is so unmistakable that it reveals itself by a casual inspection of the record. Williams v.
Zellhoefer, 89 Nev. 579, 580, 517 P.2d 789, 789 (1983). Even if Torres had not raised this issue on appeal, the
absence of the insurance policies in this record would have been glaring indeed, given Neumann's clear
requirement that courts compare the anti-stacking amendments with the bodies of the policies.
a matter of law. At trial, the burdens of persuasion and production on the issue of the validity
of an anti-stacking clause prohibiting stacking of UM coverage limits rest on the insurer. An
insured generally has a reasonable expectation that he or she will receive additional UM
indemnification for each separate UM premium paid. Maglish, 94 Nev. at 703, 586 P.2d at
315. When an insured seeks stacking of UM coverage limits, we conclude that it is the
insurer's burden to defeat this reasonable expectation by proving the validity of an
anti-stacking clause according to the three requirements of NRS 687B.145(1). Proof of NRS
687B.145(1)'s three requirements will not be unduly burdensome for the insurer. It was
Farmers' burden in seeking summary judgment to prove the validity of its anti-stacking
clause.
[Headnote 7]
Like Neumann, this is a case where the anti-stacking clause is not contained in the
insurance policy itself, but, rather, in a separate amendment or endorsement to the policy. In
such cases, even if the anti-stacking clause appears clear on its face, a comparison of the
original policy with the amendment is necessary in order to assess the validity of the clause.
Neumann, 101 Nev. at 209, 699 P.2d at 104 (emphasis added). Since Farmers bears the
burden of establishing the validity of the anti-stacking clause, Neumann requires Farmers, at a
minimum, to produce copies of both the anti-stacking amendment and the original insurance
policies. Although it submitted copies of the anti-stacking clause, Farmers failed to submit
copies of the bodies of Torres' two policies in connection with the motion for summary
judgment. Because Farmers' failed to establish the validity of the anti-stacking clause, the
district court erred in concluding that Farmers had established entitlement to judgment as a
matter of law.
II. Analysis of the clarity of the anti-stacking clause under NRS 687B.145(1).
Even assuming that the main bodies of Ms. Torres' two policies created no ambiguities, the
anti-stacking clause must be stricken if the clause failed on its face to satisfy any of the three
requirements established for such clauses under NRS 687B.145(1). On the one hand, the
language contained in paragraph five states the anti-stacking message in a technically correct
fashion. Additionally, we recognize that courts have enforced anti-stacking clauses containing
similar language on the grounds that the language was not ambiguous under traditional
principles of the law of insurance contracts. See, e.g., Menke v. Country Mut. Ins. Co., 401
N.E.2d 539 (Ill. 1980). Despite Menke, we hold that, even when considered apart from the
bodies of the policies, the anti-stacking clause contained in paragraph five of s6700 fails
to satisfy the clarity requirement of NRS 6S7B.145{1).
policies, the anti-stacking clause contained in paragraph five of s6700 fails to satisfy the
clarity requirement of NRS 687B.145(1).
[Headnote 8]
In Neumann, we held that NRS 687B.145(1) requires that the anti-stacking clause not only
be unambiguous, but also not be difficult to understand, and that we must consider the
clause from the perspective of a layperson, not a lawyer. Neumann, 101 Nev. at 209-10, 699
P.2d at 104 (emphasis added). Unlike the court in Menke, we are not applying common law
principles of insurance contract relating to ambiguity. We are applying Nevada's specific and
apparently unique statute as interpreted in Neumann. We believe that NRS 687B.145(1) must
be strickly construed to require more than a simple lack of ambiguity. If the clarity
requirement of this statute is to serve any purpose, we believe that the anti-stacking language
must be truly comprehensible to the average insured. The purpose of the clarity requirement
can only be to put insureds on actual notice of the true effect of anti-stacking clauses.
[Headnote 9]
We conclude that the average insured, even if quite intelligent, simply will not realize the
significance of the language used in Farmers' Endorsement s6700, however technically
correct the language may be. Based on the construction of the clarity requirement stated
above, therefore, the anti-stacking clause contained in s6700 is not sufficiently clear to satisfy
NRS 687B.145(1).
We offer five reasons for our conclusion. First, paragraph five of s6700 fails to specify that
the total UM coverage is limited to the highest coverage on any single vehicle; s6700 refers
only to THE LIMITS PROVIDED BY THE SINGLE POLICY WITH THE HIGHEST
LIMITS OF LIABILITY. (Emphasis added.) Referring to the policy limits rather than the
single vehicle limit simply is not clear enough to inform the insured that coverage is limited
on the basis of the single vehicle with the highest coverage limit. Additionally, the use of the
plural form of the word limits is misleading since coverage is in fact limited to the highest
single coverage limit on a single vehicle. Second, unlike the clearer clause in Neumann,
s6700 fails to specify expressly that the limitation applies, regardless of the number of
separate UM premiums paid. See 3 Schermer, Automobile Liability Insurance 31.02[9] (2d
ed. 1990); Lopez v. Foundation Reserve Ins. Co., Inc., 646 P.2d 1230, 1232 (N.M. 1982).
Third, again unlike the clause in Neumann, s6700 fails to specify expressly that the limit
applies regardless of the number of vehicles covered.
Fourth, s6700 fails to specify in a clear enough manner that the limitation applies to
insurance issued by Farmers, rather than other insurers.
other insurers. Torres makes a credible argument that a combination of factors in s6700 as a
whole may mislead the insured into believing that the limitations in s6700 apply only to
coverage by policies issued by other insurance companies. The factors are: (1) that s6700's
heading refers to other insurance; (2) paragraphs one and three concern limitations on
recovery based on coverage from other sources; and (3) paragraph five is placed at the end of
s6700, after other paragraphs which do not concern insurance issued by Farmers.
Finally, we note that s6700 does not expressly state that the limitation applies regardless of
whether the insureds' vehicles are covered under a single, multi-car policy, or under separate
policies. We recognize that Ms. Torres' two policies were issued separately. Nevertheless, we
feel constrained to point out that the phrase ANY APPLICABLE INSURANCE OTHER
THAN THIS POLICY (emphasis added) would be unclear as applied to any insured who
owned a single, multi-car policy. Upon reading this phrase, the owner of a single, multi-car
policy would believe that the limitation did not apply to his or her single policy.
In view of the foregoing, we need not address the prominence or double premium elements
of NRS 687B.145(1) as applied to this anti-stacking clause.
CONCLUSION
It is the insurer's burden to establish the validity of an anti-stacking clause precluding
stacking of UM coverage limits among separate UM coverages issued by the same insurer.
Farmers failed to establish any of the three requirements for validity under NRS 687B.145(1),
because it did not submit copies of the relevant policies in connection with its motion for
summary judgment. Accordingly, the district court erred in concluding that Farmers had
established entitlement to judgment as a matter of law. Even assuming, however, that the
main bodies of the two policies contained no ambiguities, the anti-stacking clause contained
in the amendment to Ms. Torres' policies is not sufficiently clear to be valid under NRS
687B.145(1). Thus, Farmers' anti-stacking clause was invalid as a matter of law. Ms. Torres
is entitled to stack her two UM coverage limits for an additional $15,000 in UM coverage. Of
course, Ms. Torres will be entitled to indemnification only to the extent that she proves her
actual damages in excess of the $15,000 she has already received.
We hereby reverse the judgment of the district court, and remand this case for a
determination of Ms. Torres' actual damages and for any other necessary proceedings
____________
106 Nev. 349, 349 (1990) Castillo v. State
ALEJANDRO JOSE CASTILLO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20840
May 30, 1990 792 P.2d 1133
Appeal from an order of the juvenile court certifying a juvenile to stand trial as an adult;
appeal from an order of the district court denying a petition for transfer back to the juvenile
court. Ninth Judicial District Court, Douglas County; David R. Gamble, Judge.
The district court, juvenile division, entered order certifying child as an adult for purposes
of a criminal prosecution of various felony charges. Child filed petition to transfer back to
juvenile court. The district court denied the petition. Child brought appeal from order of
juvenile division certifying child to stand trial as an adult, and appeal from order of district
court denying petition for transfer back to juvenile court. The Supreme Court held that: (1)
order of certification was properly appealable as a final judgment in a civil matter, and (2)
order of district court refusing to transfer child back to the juvenile court was not appealable
as a final judgment.
Dismissed in part.
Dennis E. Widdis, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Brent T. Kolvet, District Attorney, Douglas
1. Infants.
After a juvenile court transfers a child to the appellate court, the juvenile court loses jurisdiction over the child.
2. Infants.
A juvenile court's order certifying a child as an adult for purposes of a criminal prosecution was properly appealable as a final
judgment in a civil matter. NRAP 3A(b).
3. Infants.
Order of district court refusing to transfer child back to juvenile court was not appealable as a final judgment, even if further
proceedings in district court may have rendered certain issues child wished to raise moot; the order was not the final judgment of the
district court in the criminal proceedings; overruling Martin v. State, 94 Nev. 687, 585 P.2d 1346 (1978). NRS 177.015, subd. 3.
4. Criminal Law.
An appeal in a criminal case lies from the final judgment of the district court, not from an order finally resolving an issue in a
criminal case. NRS 177.015, subd. 3.
5. Habeas Corpus.
No appeal lies from an order of the district court denying a pretrial petition for a writ of habeas corpus. NRS 34.710, 34.815.
6. Infants.
An order of juvenile court denying a motion for reconsideration of the juvenile court's order certifying a child as an adult for
purposes of a criminal prosecution would not be appealable.
The right to appeal is statutory, and thus where no statutory authority to appeal is granted, no right to appeal exists.
OPINION
Per Curiam:
This is an appeal from an order of the juvenile division of the district court certifying
appellant to stand trial as an adult. This is also an appeal from an order of the district court
denying appellant's petition for transfer back to the juvenile court.
On December 22, 1989, the juvenile division of the district court entered an order
certifying appellant as an adult for purposes of the criminal prosecution of various felony
charges. The order of the juvenile court is an appealable order. See NRS 62.291 (appeals from
orders of the juvenile court may be taken to the supreme court in the same manner as appeals
in civil cases); NRAP 3A(b)(1) (appeal in civil case lies from a final judgment); see also In re
Three Minors, 100 Nev. 414, 684 P.2d 1121 (1984). Appellant filed a timely notice of appeal
from the order of the juvenile court.
On January 2, 1990, appellant filed in the district court a petition for transfer back to the
juvenile court. On February 15, 1990, the district court denied appellant's petition. On March
1, 1990, appellant filed a notice of appeal from the district court's order. On March 15, 1990,
we ordered appellant to show cause why his appeal from the order of the district court
denying his petition for transfer back to the juvenile court should not be dismissed for lack of
jurisdiction. Appellant has responded to our order, arguing that the order of the district court
is appealable.
Appellant first contends that the order of the district court is appealable as a final judgment
pursuant to NRS 177.015(3).
1
Specifically, appellant argues that the district court's order
refusing to transfer the juvenile back to the juvenile court is more final on the issue of
whether the juvenile should be tried as an adult than is the order of certification.
__________

1
Appellant has not cited NRS 177.015(3) in support of his argument that the district court's order denying
his petition to transfer appellant back to the juvenile court is a final judgment. Instead, relying on NRS 62.291,
appellant argues incorrectly that the district court's order is appealable as are orders in civil cases. NRS 62.291
provides, however, that the orders of the juvenile court are appealable in the same manner as appeals in civil
cases. See NRS 62.020(3) ( [c]ourt' means the juvenile division of the district court). The proceedings in the
district court are criminal in nature, and must be commenced by the filing of a criminal indictment or
information. See Faessel v. District Court, 106 Nev. 106, 787 P.2d 767 (1990). NRS 177.015(3) is the only
statute which provides for an appeal from a final judgment in a criminal
Specifically, appellant argues that the district court's order refusing to transfer the juvenile
back to the juvenile court is more final on the issue of whether the juvenile should be tried as
an adult than is the order of certification. This contention lacks merit.
[Headnotes 1, 2]
The order of the juvenile court transferring a child to the adult court is the final order of
the juvenile court in the civil proceedings pending before it. After the juvenile is transferred,
the juvenile court loses jurisdiction over the juvenile. Thus, the order of certification is
properly appealable as a final judgment in a civil matter. NRAP 3A(b).
2

[Headnotes 3, 4]
Contrarily, the order of the district court refusing to transfer appellant back to the juvenile
court is clearly not the final judgment of the district court in the criminal proceedings now
pending against appellant in the district court. Indeed, appellant acknowledged this fact when
he sought a stay of the criminal proceedings in the district court pending this appeal. An
appeal in a criminal case lies from the final judgment of the district court, not from an order
finally resolving an issue in a criminal case. See NRS 177.015(3); cf. Elsman v. Elsman, 54
Nev. 28, 30, 3 P.2d 1071, 1072 (1931) (a final judgment in a civil case disposes of all issues
and leaves nothing for future consideration). Thus, the district court's order is not appealable
as a final judgment.
[Headnote 5]
Appellant contends that the order of the district court is similar to an order denying a
motion for a new trial. Because an order denying a motion for a new trial in a criminal matter
is independently appealable, NRS 177.015(1)(b), appellant suggests thatthe district court's
order denying his
__________
case. See NRAP 3B ([a]ppeals from determinations of district courts in criminal actions shall be governed by
the rules and by NRS 177.015 to 177.305).

2
Appellant suggests that the order of the juvenile court is not a final judgment because the juvenile court is
merely a division of the district court. According to appellant, when the juvenile court certifies a juvenile to
stand trial as an adult, the juvenile court merely transfers the prosecution to another division' of the same
court. This argument is incorrect. Although the juvenile court is structurally organized as a division of the
district court, the juvenile court is a separate court with separate and exclusive jurisdiction. See NRS 62.036;
NRS 62.040. Further, the proceeding in the juvenile court is civil in nature. The purpose of the proceeding is to
secure to each child coming under the jurisdiction of the juvenile court the care, guidance and control that will
be conducive to the child's welfare and the best interests of the state. NRS 62.031(1). The criminal proceedings
in the district court that follow certification cannot in any way be described as the mere continuation of a
criminal prosecution. See Faessel v. District Court, 106 Nev. 106, 787 P.2d 767 (1990).
the district court's order denying his petition for a transfer back to the juvenile court should be
considered appealable. We disagree. A motion for a new trial follows a final judgment or
verdict. Thus, nothing remains pending in the district court after a motion for a new trial is
denied. Appellant's petition is more analogous to a pretrial petition for a writ of habeas
corpus. No appeal lies from an order of the district court denying a pretrial petition for a writ
of habeas corpus. See NRS 34.710; NRS 34.815.
[Headnote 6]
Appellant suggests that his petition for transfer back to the juvenile court raises issues
which appellant's counsel could have raised in a motion for reconsideration of the
certification order in the juvenile court. Appellant suggests that, had counsel filed such a
motion, and had the juvenile court denied the motion, there would be no question that review
by this court of the matters raised in the motion would be available. We disagree. An order of
the juvenile court denying such a motion would not be appealable. See Alvis v. State, Gaming
Control Bd., 99 Nev. 184, 660 P.2d 980 (1983).
Appellant contends, nevertheless, that the issues raised in the petition for transfer back to
the juvenile court must be raised before the appellate court at this point in the proceedings,
because further proceedings in the district court will render the issues moot. Appellant
suggests that judicial economy will be served if this appeal is considered at this time, because
a remand to the juvenile court following a judgment of conviction would waste judicial
resources. Finally, appellant argues that if this court hears only the appeal from the order of
certification in this case, this court will be presented with only half of the problem. According
to appellant, counsel for appellant in the certification proceedings did not grasp, and thus did
not raise, the issues that appellant raised in his petition for transfer back to the juvenile court.
3
Appellant's contentions lack merit.
[Headnote 7]
We have consistently held that the right to appeal is statutory, where no statutory authority
to appeal is granted, no right to appeal exists. See Taylor Constr. Co. v. Hilton Hotels, 100
Nev. 207, 678 P.2d 1152 (1984); Kokkos v. Tsalikis, 91 Nev. 24, 530 P.2d 756 (1975).
Assuming that further proceedings in the district court might render the issues which
appellant now wishes to raise moot, that fact does not provide the statutory basis necessary
for this court to entertain an appeal from an otherwise unappealable order of the district
court.
__________

3
Appellant's present counsel did not represent appellant in the juvenile proceedings.
unappealable order of the district court. Nor does counsel's failure to perceive and raise in the
juvenile proceedings the issues presented in the petition for transfer back to the juvenile court
vest this court with jurisdiction to entertain an appeal from an unappealable order.
No statute or court rule authorizes an appeal from an order of the district court refusing to
transfer a defendant back to the juvenile court. We conclude, therefore, that this court lacks
jurisdiction to entertain appellant's appeal from the order of the district court denying his
petition for transfer back to the juvenile court.
4

Accordingly, we dismiss appellant's appeal from the order of the district court denying
appellant's petition for transfer back to the juvenile court. Appellant's appeal from the order of
the juvenile court certifying appellant to stand trial as an adult shall remain pending.
5

____________
106 Nev. 353, 353 (1990) Russo v. SIIS
MARIE A. RUSSO, Appellant, v. STATE INDUSTRIAL INSURANCE SYSTEM, an
Agency of the State of Nevada, Respondent.
No. 20318
May 30, 1990 792 P.2d 403
Appeal from a decision of the district court affirming the offset of a prior lump sum
permanent partial disability payment from later restored temporary total disability payments
for the same injury. Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
Worker sought judicial review of a decision of the State Industrial Insurance System to
offset a prior lump sum permanent partial disability payment from subsequently restored
temporary total disability payments. The district court approved the offset.
__________

4
Appellant has cited this court to the case of Martin v. State, 94 Nev. 687, 585 P.2d 1346 (1978), in which
this court apparently entertained an appeal from an order of the district court refusing to transfer a juvenile back
to the juvenile court. We note, however, that the question of jurisdiction was not addressed by the court in the
Martin opinion. Thus, Martin does not stand for the proposition that an order of the district court denying a
petition for transfer back to the juvenile court is independently appealable. To the extent that Martin is
inconsistent with this opinion, it is overruled.

5
Appellant shall have thirty (30) days from the date of this opinion within which to file the opening brief.
Thereafter, briefing shall proceed in strict compliance with NRAP 31(a). Upon completion of the briefing, this
matter shall stand submitted for decision on the briefs and the record. See NRAP 34(f)(1).
106 Nev. 353, 354 (1990) Russo v. SIIS
Worker appealed. The Supreme Court held that the worker's lump sum permanent partial
disability payment and her subsequently restored temporary total disability payments arose
from the same hip injury and, thus, the offset was permissible.
Affirmed.
Nancyann Leeder, State Industrial Claimants' Attorney, Las Vegas, for Appellant.
Scott Young, General Counsel, SIIS, Carson City and William A. Zeigler, Assoc. Counsel,
SIIS, Las Vegas, for Respondent.
State Industrial Insurance System may offset proportionate amounts of worker's lump sum permanent partial disability payment for
subsequently restored temporary total disability payments when both payments arise from same injury. NRS 616.587, 616.613, subd.
2.
Worker's lump sum permanent partial disability payment and her subsequently restored temporary total disability payments arose
from same hip injury and, thus, lump sum permanent partial disability payment could be offset from temporary total disability
payments. NRS 616.587, 616.613, subd. 2.
OPINION
Per Curiam:
The sole issue presented in this appeal is whether the State Industrial Insurance System
may offset an injured worker's prior lump sum permanent partial disability payment from
subsequently restored temporary total disability payments when both payments arose from the
same injury. In the action below, the district court approved the offset. We conclude the
district court did not err and therefore affirm.
FACTS
Appellant, Marie A. Russo (Russo), suffered a serious hip injury while working as a buffet
runner at the Railroad Pass Casino in Henderson, Nevada. Respondent, State Industrial
Insurance System (SIIS), awarded Russo temporary total disability payments (TTD) for lost
wages while she could not work. After Russo underwent medical treatment and evaluation,
SIIS advised Russo that she would be awarded permanent partial disability (PPD) for her hip
condition. Rather than receive her PPD award in installments, Russo elected to accept a lump
sum payment of $15,916.66.
106 Nev. 353, 355 (1990) Russo v. SIIS
Russo's hip condition then worsened due to progressive deterioration caused by the
original injury, not be a subsequent, distinct injury. At her request, Russo's claim was
reopened on September 22, 1986, and her right to TTD payments was also restored.
Beginning October 21, 1986, SIIS deducted $2.89 per day from Russo's TTD payments to
offset her earlier receipt of the lump sum PPD award.
Russo appealed SIIS' deduction from her TTD payments to the Department of
Administration Hearing Officer. The Hearing Officer affirmed the deduction. Therefore,
Russo appealed the Hearing Officer's decision to the Department of Administration Appeals
Officer. The Appeals Officer reversed the decision of the Hearing Officer and order SIIS to
pay all withheld sums to Russo and refrain from reducing her future TTD payments. Because
the deductions were not allowed, the Appeals Officer deemed it unnecessary to decide if the
$2.89 per day offset was correct.
SIIS subsequently petitioned the district court for judicial review of the Appeals Officer's
decision. The district court reversed the Appeals Officer and, reading NRS 616.613(2) in
conjunction with NRS 616.587, concluded that the offset was proper. The district court
remanded the case to the Appeals Officer to determine if the offset amount was correct. This
appeal followed.
DISCUSSION
Russo argues that SIIS' offset of her prior lump sum PPD payment from later restored TTD
payments prevents her from receiving her statutory right to TTD payments equal to two-thirds
of her monthly wage. Thus, Russo contends there should be no offset from her TTD
payments.
[Headnote 1]
This contention lacks merit. Russo fails to offer any evidence that she has suffered a net
loss to her statutory TTD payments. In addition, both NRS 616.613(2) and NRS 616.587
justify the result below. NRS 616.613(2) provides that if a claimant elects to receive PPD
payment in installments, the PPD payments would cease while the claimant collected TTD
payments. This prevents the claimant from receiving a double-recovery. See Breen v. Caesars
Palace, 102 Nev. 79, 82, 715 P.2d 1070, 1072 (1986). Therefore, to achieve the same result,
we hold that SIIS may offset proportionate amounts of Russo's PPD lump sum payment from
her TTD payments.
[Headnote 2]
By clear implication, NRS 616.587 mandates the same outcome as NRS 616.613{2).
106 Nev. 353, 356 (1990) Russo v. SIIS
come as NRS 616.613(2). NRS 616.587 prohibits the offset of a prior lump sum PPD
payment from TTD payments if the subsequent injury is distinct from the first injury.
Conversely, because Russo's hip injury is not distinct from her previous injury, Russo's TTD
payments may be reduced. Furthermore, when NRS 616.587 was enacted, the legislature was
aware that SIIS offset prior lump sum PPD payments from later restored TTD payments and
forbade the offset only when there is a subsequent, distinct injury. Hearing on A.B. 226
before the Nevada Senate Committee on Labor and Commerce, 62nd Legislative Session
(1983) (statement of Mr. Robert Gibb, General Counsel, SIIS). Thus, we may infer the
legislature intended to approve the offset for the same injury. Hughes Properties v. State of
Nevada, 100 Nev. 295, 298, 680 P.2d 970, 972 (1984) (quoting Summa Corp. v. State
Gaming Control Bd., 98 Nev. 390, 392, 649 P.2d 1363, 1365 (1982)).
Accordingly, though we reach the same conclusion by a different path, we affirm the
decision of the district court. Roberts v. State of Nevada, 104 Nev. 33, 40, 752 P.2d 221, 225
(1988).
____________
106 Nev. 356, 356 (1990) Bowman v. Clark
JO ANN BOWMAN, INDIVIDUALLY AND GUARDIAN FOR SHAWN CAMERON
CLARK, Appellant, v. JOSEPH C. CLARK, Respondent.
No. 18871
June 8, 1990 792 P.2d 1136
Appeal from an order of the district court granting respondent's motion for summary
judgment. Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
Ex-wife brought action against ex-husband for alleged negligent supervision of their child
who was hit by truck when he ventured into street with his bicycle while visiting with
ex-husband. The district court granted ex-husband's motion for summary judgment. Ex-wife
appealed. The Supreme Court, Young, C. J., held that regardless of whether Nevada
recognizes tort of negligent supervision, ex-wife failed to allege sufficient facts to establish
prima facie case of negligence so as to avoid summary judgment.
Affirmed.
Rose and Springer, JJ., dissented.
David Goldwater, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy, Jemison & List and Elizabeth Goff Gonzalez and Daniel F.
Judgment.
Regardless of whether Nevada recognizes tort of negligent supervision, ex-wife failed to allege sufficient facts in district court to
establish prima facie case of negligence against ex-husband so as to avoid summary judgment; ex-wife alleged that their child, while
visiting with ex-husband, ventured into street on his bicycle and was hit by truck.
OPINION
Respondent and appellant are the parents of Shawn Cameron Clark. When respondent and
appellant divorced, appellant was awarded custody of Cameron, and respondent was given
visitation rights. While visiting with respondent, Cameron ventured into the street on his
bicycle and was hit by a truck. Appellant sued respondent for negligent supervision, and
respondent moved for summary judgment. The district court granted respondent's motion,
finding that there was no cause of action for negligent supervision in Nevada.
On appeal, appellant contends that there is a cause of action for negligent supervision in
Nevada, and that genuine issues of material fact precluded summary judgment in this case.
We decline to decide the issue of whether Nevada recognizes a tort of negligent
supervision. On the facts presented in this case, we conclude that appellant failed to allege
sufficient facts in the district court to establish a prima facie case of negligence so as to avoid
summary judgment. Thus, the district court did not err in granting respondent's motion for
summary judgment.
Rose, J., with whom Springer, J., concurs, dissenting:
Jo Ann Bowman (Jo Ann) and Joseph Clark (Joseph) are the divorced parents of Shawn, a
six year old boy. Both Jo Ann and Joseph are remarried. Jo Ann has custody of Shawn and
Joseph has periodic visitation rights.
Prior to the accident, Jo Ann had warned Joseph several times not to allow Shawn to go
near the street unsupervised. On one occasion, Jo Ann was visiting a friend near Joseph's
home at the same time Shawn was visiting Joseph. She noticed that her son was driving a
go-cart in the middle of the street and was nearly hit by a car. She immediately told Joseph of
the incident and instructed him to keep a close watch on Shawn when he was playing
outside.
instructed him to keep a close watch on Shawn when he was playing outside.
On June 16, 1985, Shawn was staying with his father, Joseph, and he was playing with a
friend in the dirt next to the street in front of Joseph's home. Joseph drove up and said nothing
more to Shawn than hi before going into the house to make a sandwich. He gave no
instructions to Shawn to stop playing near the street or any warning about not going into the
street. Within minutes, Shawn got on his bike and rode into the street where he was hit by a
truck. Shawn sustained substantial bodily injuries.
Summary judgment should not be granted when there is an issue of fact, and the facts and
inferences must be viewed in the light most favorable to the party opposing summary
judgment. Orcutt v. Miller, 95 Nev. 408, 411, 595 P.2d 1191, 1193 (1979). Taking the facts
and inferences most favorable to Jo Ann, Joseph knew of Shawn's propensity to go into the
street unsupervised and that he should watch him closely when Shawn was outside. When
Joseph saw Shawn playing outside, he did not elect to supervise his play, direct that he play in
some other area besides next to the street, or even warn him about going into the street. These
facts are sufficient to put into issue the claim that Joseph was negligent in supervising Shawn.
Therefore, I believe the majority is incorrect when it determines that there are insufficient
facts, as a matter of law, to support the claim of negligent supervision.
In Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974), we adopted the general
proposition that a child has a right to sue a parent in tort without restriction or limitation.
There are no constitutional or statutory provisions which compel the application of
the doctrine of parental immunity in this state, nor is it a rule of decision. NRS 1.030.
Because the doctrine has not been adopted in this state, the right of the child to sue a
parent in tort is without restriction or limitation.
Id. at 405, 528 P.2d at 1018 (emphasis added). While we have not directly adopted the right
of a child to sue a parent for negligent supervision, such right would seem to follow from our
broad statement in Rupert.
The cases in other jurisdictions are divided on the issue of whether the doctrine of parental
immunity should prevent a child from suing his or her parent for negligent supervision. While
there are countervailing considerations and good points made for both positions, I believe the
cases that permit a child to sue his or her parent for negligent supervision are the better
authority. See Gibson v. Gibson, 479 P.2d 648 (Cal. 1971); Miller v. Leljedal, 455 A.2d 256
{Pa.
455 A.2d 256 (Pa. 1983). Accordingly, I would determine that an issue of fact does exist
concerning whether Joseph was negligent in his supervision of Shawn and whether that
negligence was the proximate cause of Shawn's injuries, and I would permit such a suit in the
State of Nevada.
For these reasons, I dissent from the majority decision.
____________
106 Nev. 359, 359 (1990) Tore, Ltd. v. Rothschild Management Corp.
TORE, LTD., A Nevada Corporation; RALPH CASAZZA and ALICE JACOBSON,
Appellants, v. M.L. ROTHSCHILD MANAGEMENT CORPORATION, a Foreign
Corporation; RETAIL REAL ESTATE CONCEPTS, LTD., a Foreign Corporation;
RETAIL SERVICES, INC., a Foreign Corporation; RETAIL REAL ESTATE
STRATEGIES, INC., a Foreign Corporation; RETAIL EQUITIES, INC., a Foreign
Corporation, and SECURITY BANK OF NEVADA, a Nevada Banking Corporation,
Respondents, v. M.L. ROTHSCHILD MANAGEMENT CORPORATION, a Foreign
Corporation, Cross-Appellant, v. TORE, LTD., a Nevada Corporation; RALPH
CASAZZA and ALICE JACOBSON, as Statutory Trustees of WINSTON'S OF
NEVADA, INC., a Dissolved Corporation; RALPH CASAZZA and ALICE
JACOBSON; and RALPH CASAZZA and ALICE JACOBSON as the Personal
Representatives of RENA K. CASAZZA, Deceased, Cross-Respondents.
No. 19147
June 8, 1990 793 P.2d 1316
Appeal and cross-appeal from district court judgment in commercial transaction. Second
Judicial District Court, Washoe County; Jerry Carr Whitehead, Judge.
Former manager of men's clothing store sought injunction prohibiting seller of clothes
from attempting to draw upon $100,000 letter of credit guaranteed by former manager. The
district court entered judgment allowing seller to draw upon letter of credit to maximum of
$75,000 and denying seller right to draw upon another letter of credit for $65,000 guaranteed
by former manager. Both parties appealed. The Supreme Court, Steffen, J., held that: (1)
seller was estopped from denying novation of contract, under which former manager assigned
its managerial responsibilities, substituted $75,000 letter of credit covering men's clothes
guaranteed by it for similar letter of credit for $100,000 and guaranteed now $65,000 letter
of credit in covering women's clothing, but retaining the $75,000 and $65,000 letters of
credit while manager committed itself in reliance by relinquishing control over store, and
{2) having repudiated new contract by returning $75,000 letter of credit, seller was
precluded from utilizing $65,000 letter of credit.
$100,000 and guaranteed now $65,000 letter of credit in covering women's clothing, but
retaining the $75,000 and $65,000 letters of credit while manager committed itself in reliance
by relinquishing control over store, and (2) having repudiated new contract by returning
$75,000 letter of credit, seller was precluded from utilizing $65,000 letter of credit.
Affirmed.
Rose and Springer, JJ., dissented in part.
Hamilton & Lynch, Reno, for Appellants and Cross-Respondents.
Lionel Sawyer & Collins and Richard W. Horton, Reno, for Respondents and
Cross-Appellant.
Allen Rabkin, Las Vegas, for Security Bank of Nevada.
1. Estoppel.
Seller of men's clothes was estopped from denying novation of contract under which former manager of clothing store assigned its
managerial obligations and guaranteed a new $75,000 letter of credit and also a second new $65,000 letter of credit, both in favor of
seller, in return for cancellation of an existing $100,000 letter of credit guaranteed by former manager, although seller had not formally
agreed to novation, it retained the $75,000 and $65,000 letters of credit, and manager had changed its position to its detriment by
relinquishing control of store.
2. Novation.
Seller of clothing to store could not benefit from one part of a novated agreement, under which it was beneficiary of $65,000 letter
of credit guaranteed by former manager of store, covering store's purchases of women's clothing, and not agree to another part of
agreement under which former manager's existing guarantee obligation under letter of credit covering men's clothing was reduced from
$100,000 to $75,000; both transactions were part of common contract.
OPINION
Appellant/cross-respondent Tore, Ltd. (Tore) and respondent/cross-appellant M.L.
Rothschild Management Corporation (Rothschild), both appeal from a district court judgment
imposing liability on each in a commercial contract dispute. Having determined that there is
no clear basis for reversal, we affirm.
The Facts
Tore first became involved in a series of commercial transactions culminating in the
judgment below by entering into a contract with Retail Real Estate Strategies (Strategies) and
Rothschild on January 19, 1984. The initial agreement involved Tore in the management of a
retail store operation by and through its subsidiary corporation. Winston's of Nevada, Inc.
(Winston's). Tore was the owner of the shopping center in which the aforesaid retail store was
to operate. Winston's was organized as a men's wear store, and was funded in part by a
$100,000 letter of credit issued by Security Bank of Nevada and guaranteed by Tore and
Winston's in favor of Rothschild, the supplier of the clothing. The contract provided for
Winston's and Strategies to share the management responsibilities of the new venture.
After a period of operation, Tore determined that it wanted to relieve itself of its
responsibilities in the retail store and confine its role to that of a landlord. In order to
accomplish this objective, Tore assigned its rights and obligations under the original contract
to Retail Real Estate Concepts (Concepts), a subsidiary of Strategies. As part of the
transaction, Tore agreed to provide a new letter of credit in the amount of $75,000 to replace
the original letter in the higher sum of $100,000, plus an additional letter of credit in the
amount of $65,000 to facilitate a contract between Concepts and Rothschild for women's
wear. The $75,000 letter was given to continue the supply of men's wear by Rothschild. Tore
and Concepts executed this novation to the original contract on April 1, 1985.
On April 11, 1985, Concepts and Rothschild entered into a contract requiring the latter to
supply women's wear to the store. Tore, who was not a party to this agreement, received
neither a copy of the contract nor the specifics of its provisions.
In July 1985 Rothschild's attorney informed Tore that Rothschild was unwilling to agree to
an assignment of the January 1984 contract unless Tore would again provide a $100,000
letter of credit in lieu of the $75,000 letter. At the same time, Rothschild returned the $75,000
letter, which thereafter was cancelled. Tore promptly communicated its rejection of the
Rothschild position, contending that it was too late to unilaterally modify the completed
agreement. Rothschild and Concepts nevertheless continued to do business under the April 1,
1985 contract until December 1985, when Rothschild declared the agreement to be in default.
This litigation commenced when Rothschild attempted to draw upon the original $100,000
letter of credit issued in support of the original men's wear contract and was frustrated when
Tore sought and obtained a temporary restraining order.
sought and obtained a temporary restraining order. Later, while the action filed by Tore was
pending, Rothschild successfully drew against the $65,000 letter of credit which had been
issued in connection with the contract that was the intended replacement for the original
agreement of January, 1984. Tore thereafter amended its pleadings to include all claims
between the parties, including those arising from the presentment and payment, over Tore's
objection, of the $65,000 letter of credit.
In effect, the trial below was bifurcated. At the conclusion of the first trial, and a
successful motion by Rothschild to amend the decision, the trial court recognized the
continued validity of the original $100,000 letter of credit, but only to the extent of the
$75,000 Tore agreed to provide in support of the April 1, 1985 contract. Tore objected to the
proposed findings of fact, conclusions of law and judgment on grounds that unresolved issues
remained. Thereafter, trial was held concerning the $65,000 letter of credit.
After all issues were tried, the district court entered judgment against Tore in accordance
with its prior ruling that recognized the continued validity of the $100,000 letter of credit up
to a limit of $75,000. The court also concluded that Rothschild had wrongfully drawn against
the $65,000 letter of credit and accordingly entered judgment against Rothschild in that
amount. Both parties appealed from the judgment.
Discussion
During trial, Rothschild's case was premised exclusively upon the validity of two points.
First, that the 1984 contract remained unchanged and continually in effect, i.e., that there was
no novation. Second, that the contract for women's wear was a separate agreement from the
men's wear contract of 1984. These two contentions were consistent, because if the men's
wear contract had never been assigned, then the women's wear contract had to be a new and
separate transaction.
On the other hand, Tore's characterization of the transaction in the lower court differs
significantly on two main points. First, Tore asserts that both the men's wear and women's
wear contracts were a single integrated contract, and that both letters of credit were issued to
satisfy this intended substitution of parties and liabilities for the purchase of merchandise.
Second, Tore charges that Rothschild repudiated the novation when it sent back the $75,000
letter of credit and unilaterally demanded a $100,000 letter of credit on July 15, 1985.
A careful review of the record reveals that the trial court's findings and judgment are
consistent with the evidence presented by both parties below.
by both parties below. Therefore, the trial court's determination is not clearly erroneous and
will not be reversed on appeal.
[Headnote 1]
The trial court, after a review of the evidence presented by both sides, found that
Rothschild, because of its conduct in accepting and holding the letters of credit, was estopped
to deny that a novation had occurred. This finding was reached in spite of the evidence
Rothschild presented at trial that there was no novation and that the original men's wear
contract had never been assigned. Although the trial court concluded that the parties did not
reach a new agreement, it nevertheless invoked the principles of equitable estoppel (arising
from Rothschild's conduct in misleading plaintiff into believing an agreement had been
reached and was being performed) in finding an implied novation. The trial court concluded
that an implied novation had arisen because of Tore's reasonable and detrimental reliance on
Rothschild's actions. Rothschild had a duty to speak and because of its silence, Tore had
detrimentally changed its position from that of a participant in the management of Winston's
store to that of a lessor. Therefore, a novation arose by application of the doctrine of equitable
estoppel. See Mahban v. MGM Grand Hotels, 100 Nev. 593, 596, 691 P.2d 421, 423 (1984);
Cheqer, Inc. v. Painters & Decorators, 98 Nev. 609, 614, 655 P.2d 996, 998-99 (1982); and
Goldstein v. Hanna, 97 Nev. 559, 562-63, 635 P.2d 290, 292 (1981).
[Headnote 2]
The trial court also found that Tore had put up the $75,000 letter of credit as consideration
for this novation. Additionally, the trial court held that if Tore prevailed on its novation claim
through equitable principles, equity also required that Tore be liable for the consideration it
pledged for its release from the January 19, 1984 men's wear contract.
As far as the $65,000 letter of credit is concerned, it is clear that Rothschild never
recognized the aforesaid instrument as part of any agreement to which it considered itself
bound. Indeed, in its answer to Tore's complaint, Rothschild took the position that because
Tore remained obligated under the terms of the January 1984 contract, the performance of
which Tore had guaranteed, Rothschild was entitled to draw against the $65,000 letter of
credit simply because of Tore's liability under the guaranty.
On appeal, Rothschild now seeks to switch positions and take advantage of what it
characterizes as the lower court's more insightful and accurate characterization of the
agreement of novation which Rothschild was subject to on the basis of an estoppel.
Rothschild's position will not withstand scrutiny for two reasons. First, it is settled in Nevada
that a party on appeal cannot assume an attitude or adopt a theory inconsistent with or
different from that taken at the hearing below. Force v. Peccole, 77 Nev. 143, 151, 360 P.2d
362, 366 (1961). Rothschild denied the existence of a novation in the district court and
maintained that its resort to the $65,000 letter of credit was justified because of Tore's
guaranty of the January 1984 agreement.
Second, the evidence reflects that the $75,000 letter of credit was supplied by Tore as
consideration for its release from further responsibility under the January 1984 contract and
guaranty. The $65,000 instrument of credit was supplied by Tore in contemplation of a new
arrangement between Rothschild and Concepts that would provide a source of women's wear
for the store. As mentioned previously, Rothschild expressly denied this proposition at trial.
Moreover, during oral argument, while attempting to take advantage of the district court's
ruling, counsel for Rothschild took the contradictory position that even under the novation
found by the court, the women's wear aspect of the novated agreement was entirely separate
and was none of Tore's business. In other words, according to Rothschild's position on
appeal, the women's wear aspect of the novation agreement merely amounted to Tore
providing a $65,000 letter of credit to be used by Rothschild as it saw fit, without conditions
or safeguards protecting Tore to any degree.
Understandably, the district court judge concluded that the women's wear aspect of the
novation was conditional in that Rothschild had to acknowledge both its acceptance of a
contract for women's wear and the terms under which the letter of credit supplied by Tore
would be utilized. Instead, Rothschild steadfastly maintained that Tore remained bound by
the January 1984 contract and guaranty, and that Rothschild had no obligation of any sort to
Tore regarding any separate agreement it might undertake with respect to women's wear.
The district court correctly determined that the novation agreement encompassed two
aspects. The first was self-executing in that the new $75,000 letter of credit supplied by Tore
accomplished the latter's release from the January 1984 men's wear contract and guaranty.
The second aspect of the agreement required a new and separate contract for women's wear
between Rothschild and Concepts concerning which Tore had a substantial interest by virtue
of the $65,000 letter. Rothschild was not free to ignore Tore and in effect foist upon Tore an
unreasonable, unrestricted liability under the credit instrument. In fact, as noted previously,
Rothschild simply retained the $65,000 letter as an additional source of security under the
January 19S4 agreement because it refused to recognize Tore's rights under the novation
contract.
additional source of security under the January 1984 agreement because it refused to
recognize Tore's rights under the novation contract.
The record supports the finding below that Rothschild never notified Tore that it had
entered into a women's wear contract with Concepts, that it never provided a copy of such a
contract to Tore, and that it never acknowledged to Tore that it was holding the $65,000 letter
as security for such a contract. In short, the evidence reflects that Rothschild never recognized
a contractual arrangement with Tore other than that of the January 1984 agreement pertaining
a men's wear. The district court therefore quite properly concluded that there was never a
meeting of the minds between Tore and Rothschild concerning the women's wear agreement,
the consequence of which is that Rothschild had not legal entitlement to the $65,000 letter of
credit. We are unwilling to permit Rothschild to alter its position on appeal to the detriment
of Tore.
There is substantial evidence in the record to support the trial court's findings and
judgment. The trial court's findings and judgment are not clearly erroneous. The rule is that .
. . the trial court's findings will not be set aside unless clearly or manifestly against the weight
of the evidence, or without any reasonable support therein. Finnell v. Bromberg, 79 Nev.
211, 226, 381 P.2d 221, 228 (1963). See also Holland Livestock v. B&C Enterprises, 92 Nev.
473, 474, 553 P.2d 950, 950 (1976).
For the reasons set forth above, we hereby affirm the judgment in its entirety.
1

Young, C. J., and Mowbray, J., concur.
Rose, J., with whom Springer, J., concurs, concurring in part and dissenting in part:
I agree with the majority opinion's conclusion that there is sufficient evidence to support
the district court's finding that Rothschild is estopped by his conduct to deny that the letter of
credit from Tore was modified from $100,000 to $75,000. However, I find no reasonable
interpretation of the evidence to support the lower court's additional finding that the $65,000
letter of credit was ineffective because Rothschild did not assign the men's wear contract and
release Tore from it. I would enforce both letters of credit.
By finding detrimental reliance, estoppel and an implied novation, the district court
rewrote the contracts between the parties.
__________

1
Notwithstanding the numerous parties captioned in this opinion, the specific issues discussed herein are
dispositive of the contentions raised on appeal by M.L. Rothschild Management Corporation and all parties
captioned as appellants and cross-respondents.
ation, the district court rewrote the contracts between the parties. In its lease agreement with
Concepts, Tore agreed to issue two letters of credit, one for $75,000 and the other for
$65,000. When Rothschild insisted on the $100,000 letter of credit rather than accept the
$75,000 one as its replacement, Tore wrote back that the lease agreement was already
concluded and the non-party Rothschild must abide by its terms. Tore never attempted to
cancel or rescind the $65,000 letter of credit. Tore should be held to the agreement it made
and that it insisted was effective.
The district court expressly found that Tore was released from any prior contractual
obligations and Rothschild was estopped from pursuing Tore and its principals. Even
assuming Rothschild was required to assign its men's wear contract and personally release
Tore, its failure to do so is of no consequence because the court has expressly found that Tore
and Winston were released by Rothschild's actions.
There is substantial evidence to support the enforcement of the $75,000 letter of credit.
But once this decision was made, I can see no reasonable or logical interpretation of the facts
in this record to support the finding that the $65,000 letter of credit is unenforceable. For that
reason only, I dissent from the majority opinion.
____________
106 Nev. 366, 366 (1990) Lotter v. Clark Co. Bd. of Commissioners
C.J. LOTTER, Appellant, v. CLARK COUNTY, NEVADA, BY AND THROUGH ITS
BOARD OF COMMISSIONERS; JAY BINGHAM, PAUL CHRISTENSEN,
MANUEL J. CORTEZ, THALIA M. DONDERO, KAREN HAYES, WILLIAM
PEARSON and BRUCE WOODBURY, Respondents.
No. 20339
June 8, 1990 793 P.2d 1320
Appeal from an order of the district court granting Clark County's motion for summary
judgment. Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
House purchaser brought action against vendor, broker, real estate agent, and county to
recover for structural defects in house. The district court entered summary judgment in favor
of county. Purchaser appealed. The Supreme Court held that: (1) statute providing immunity
in actions based upon failure to inspect or negligent inspection did not immunize county from
liability to house purchaser, if county inspectors had knowledge of framing defects and
approved framing despite those defects; (2) statute of repose was not retroactively
applicable; and {3) statute of limitations did not bar action.
repose was not retroactively applicable; and (3) statute of limitations did not bar action.
Hunterton & Naylor and Cindy Lee Stock, Las Vegas, for Appellant.
Edwards, Hunt, Hale & Hansen and Trevor Lee Atkin, Las Vegas, for Respondents.
1. Counties.
Statute providing immunity in actions based upon failure to inspect or negligent inspection did not immunize county from liability
to house purchaser, if county inspectors had knowledge of framing defects and approved framing despite those defects. NRS 41.033.
2. Judgment.
Whether county inspectors approved framing of house despite knowledge of framing defects was question of fact precluding
summary judgment on question whether county was immune from liability to house purchaser for negligent inspection. NRS 41.033;
NRCP 54(b).
Statute of repose on action to recover for latent deficiency in design, planning, supervision, or construction of improvement to real
property was not retroactively applicable. NRS 11.204.
Four-year statute of limitations on claim based upon tortious injury to real property began to run when house purchaser learned of
construction defects or in exercise of reasonable diligence should have learned of them. NRS 11.220.
OPINION
Per Curiam:
This is an appeal from an order granting Clark County's motion for summary judgment.
For the reasons set forth below, we reverse.
Facts
Appellant Carlos J. Lotter purchased a home on or about May 16, 1986, and shortly
thereafter discovered numerous structural defects. The home's framing had been inspected by
and received final approval from the Clark County Department of Building and Safety on July
16, 1973. On May 27, 1987, Lotter filed an action against the seller, real estate broker, real
estate agent, and respondent Clark County, Nevada. Clark County subsequently moved for
summary judgment, arguing that: (1) pursuant to NRS 41.033, it is immune from liability for
failure to inspect or negligent inspection; and (2) Lotter's claim is barred because the
applicable statute of repose, NRS 11.204, has long since run.
applicable statute of repose, NRS 11.204, has long since run. Without stating the basis for its
decision, the district court granted Clark County's motion for summary judgment. That order
was certified as a final judgment pursuant to NRCP 54(b) and this appeal ensued.
Discussion
[Headnote 1]
Clark County contends that it is immune from suit pursuant to NRS 41.033.
1
We
disagree. NRS 41.033 provides immunity from liability in actions based upon failure to
inspect or negligent inspection. However, as we stated in Butler v. Bogdanovich, 101 Nev.
449, 451, 705 P.2d 662, 663 (1985):
If the County had knowledge of the defects, the County owed a duty to take action as
a result of the discovery of the deficiencies. Immunity will not bar actions based upon
the public entity's failure to act reasonably after learning of a hazard.
Here, Lotter's complaint alleges that: Any inspection of said premises as purportedly
made by the [Clark County] DEPARTMENT [of Building and Safety] would have led to the
immediate discovery of the above defects. Later, Lotter has alleged that Clark County
inspectors knew of the structural defects in the home but nevertheless approved its
construction. NRS 41.033 does not immunize such conduct.
To support the allegation that Clark County inspectors approved the home's framing with
knowledge of its defects, Lotter submitted the affidavit of James Abell, superintendent of
construction for M. J. Levan Construction Company, the contractor hired by Lotter to effect
repairs to the home. Abell averred that the first floor was structurally inadequate to support
the weight, that supporting trusses sagged as much as five inches, certain trusses weren't
blocked, beans were sagging, beam footings were missing, and that certain trusses and beams
were overspanned. Abell stated that in his opinion, these deficiencies rendered the home
dangerous and uninhabitable, and that the structure should not have been passed by a
building inspector.
__________

1
Conditions and limitations on actions: Failure to inspect or discover. 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 based upon:
1. Failure to inspect any building, structure or vehicle, or to inspect the construction of any street,
public highway or other public work to determine any hazards, deficiencies or other matters, whether or
not there is a duty to inspect; or
2. Failure to discover such hazard, deficiency or other matter, whether or not an inspection is made.
rendered the home dangerous and uninhabitable, and that the structure should not have been
passed by a building inspector.
In ruling on a motion for summary judgment, the district court is obligated to construe the
pleadings, evidence, and the inferences which follow from the evidence in the light most
favorable to the non-moving party. See. e.g., Butler, 101 Nev. at 451, 705 P.2d at 663;
Kroeger Properties v. Board County Comm'rs, 101 Nev. 583, 584, 707 P.2d 544, 545 (1985).
[Headnote 2]
The inferences which follow from Abell's affidavit are that the defects in the structure
were plainly visible to anyone with knowledge of the applicable code requirements, and that
the structure failed to satisfy applicable building code requirements at the time Clark County
inspectors approved the framing. Thus, as in Butler, supra, an issue of fact exists regarding
whether Clark County inspectors approved the home's framing despite having knowledge of
the defects; if so, NRS 41.033 immunity does not bar Lotter's claim.
[Headnote 3]
Clark County alternatively contends that Lotter's claim is barred by NRS 11.204.
2
Again,
we disagree.
At the latest, Lotter's home was substantially completed in July 1973. At that time, the
applicable statute of repose was set forth at NRS 11.205. That statute protected certain classes
of defendants by abolishing claims brought more than six years after substantial completion
of an improvement to real property if the claim was based upon a deficiency in design,
planning, supervision or observation of construction, or in the construction itself. See Nevada
Lakeshore Co. v. Diamond Elec., Inc., 89 Nev. 293, 295-6, 511 P.2d 113, 114 (1973).
__________

2
Actions for damages for injury or wrongful death caused by deficiency in construction of
improvements to real property: Latent deficiencies.
1. Except as otherwise provided in NRS 11.202 and 11.203, no action may be commenced against
the owner, occupier or any person performing or furnishing the design, planning, supervision or
observation of construction, or the construction, of an improvement to real property more than 8 years
after the substantial completion of such an improvement, for the recovery of damages for:
(a) Any latent deficiency in the design, planning, supervision or observation of construction or the
construction of such an improvement;
(b) Injury to real or personal property caused by any such deficiency; . . .
In 1983 we held that former NRS 11.205 violated the equal protection and due process
clauses of the state and federal constitutions by arbitrarily excluding owners and material
suppliers from its protective umbrella. State Farm v. All Electric, Inc., 99 Nev. 222, 660 P.2d
995 (1983).
3
Thus, former NRS 11.205 was void ab initio; it was of no effect, afforded no
protection, and conferred no rights. Nevada Power v. Metropolitan Dev. Co., 104 Nev. 684,
686, 765 P.2d 1162, 1163-4 (1988). In 1983, the Nevada Legislature enacted the current
statutes of repose, NRS 11.203-.205, which extend their protection to owners and occupiers
of land.
4
We have subsequently held that these statutes may not be applied retroactively.
Allstate Ins. Co. v. Furgerson, 104 Nev. 772, 776-7, 766 P.2d 904, 907-8 (1988).
By express language, the periods specified in NRS 11.203-.205 commence running upon
substantial completion of an improvement to real property. Hence, a property owner's cause
of action for damages resulting from negligent construction accrues at the time of substantial
completion of the construction, and not at the time the injury is discovered. See Bicknell v.
Richard M. Hearn Roofing, 318 S.E.2d 729, 732 (Ga.Ct.App. 1984). Thus, the cause of
action in this case accrued in 1973, and the 1983 statutes of repose may not be applied
retroactively to bar Lotter's claim. Allstate Ins. Co., 104 Nev. at 776-7, 766 P.2d at 907-8.
[Headnote 4]
Since the former and current statutes of repose are inapplicable in this case, the question is
whether Lotter's cause of action is barred by the statute of limitations applicable to a claim
based upon tortious injury to real propertyNRS 11.220. We hold that it is not. The four year
period specified in NRS 11.220 begins to run at the time the plaintiff learns, or in the exercise
of reasonable diligence should have learned, of the harm to his property caused by a
construction defect. Oak Grove Inv. v. Bell & Gossett Co.,
__________

3
We have subsequently ruled that a rational basis exists for distinguishing between owners, occupiers,
architects and builders of improvements as opposed to manufacturers and material suppliers, and have overruled
State Farm to the extent that opinion indicated otherwise. Wise v. Bechtel Corp., 104 Nev. 750, 753-4, 766 P.2d
1317, 1319 (1988).

4
Former NRS 11.205 provided a six year limitations period applicable to any deficiency. The limitations
period provided in the amended statutes of repose are: (1) ten years for known deficiencies (NRS 11.203); (2)
eight years for latent deficiencies (NRS 11.204); and (3) six years for patent deficiencies (NRS 11.205). Because
we hold that the current statutes of repose may not be retroactively applied to bar Lotter's claim, we need not
decide whether Clark County correctly identified NRS 11.204 as the statute applicable in this case.
99 Nev. 616, 621-3, 668 P.2d 1075, 1078-9 (1983). In the instant case, Lotter diligently
discovered the defects in his home and commenced an action within the time period set forth
in NRS 11.220.
In summary, Lotter's claim as alleged is not barred by the immunity provisions of NRS
41.033, nor is it barred by the limitations periods set forth in NRS 11.203-.205 or 11.220. The
district court therefore erred in granting Clark County's motion for summary judgment.
Accordingly, we reverse the order granting summary judgment and remand the case to the
district court for further proceedings.
____________
106 Nev. 371, 371 (1990) Randono v. CUNA Mutual Ins. Group
CARROLL T. RANDONO, Appellant, v. CUNA MUTUAL INSURANCE GROUP, CUNA
MUTUAL INSURANCE SOCIETY, CU MEMBERS LIFE INSURANCE TRUST,
Respondents.
No. 20013
June 12, 1990 793 P.2d 1324
Appeal from denial of partial summary judgment and summary judgment upholding
respondents' right to refuse payment on a life insurance contract. Eighth Judicial District
Court, Clark County; James A. Brennan, Judge.
Beneficiary brought action against life insurer to recover proceeds. The district court
upheld insurer's right to refuse payment. Beneficiary appealed. The Supreme Court, Steffen,
J., held that insured's failure to disclose his history of hypertension on application for life
insurance was sufficient to prevent beneficiary's recovery of proceeds.
Affirmed.
Mowbray, J., dissented.
Stanley W. Pierce, Las Vegas, for Appellant.
Edwards, Hunt, Hale & Hansen and Travis C. Williamson, Las Vegas, for Respondents.
1. Insurance.
Insured's failure to disclose his history of hypertension on application for life insurance was sufficient to prevent beneficiary's
recovery of proceeds under statute precluding recovery if omission or concealment of fact is material either to acceptance of risk or to
hazard assumed by insurer or insurer in good faith would either not have issued policy or contract or would not
have issued it at same premium rate, even though insured died from cancer and not from hypertension.
insurer or insurer in good faith would either not have issued policy or contract or would not have issued it at same premium rate, even
though insured died from cancer and not from hypertension. NRS 687B.110.
2. Statutes.
When statute is susceptible to but one natural or honest construction, that alone is construction that can be given.
3. Statutes.
Where there is no ambiguity in statute, there is no opportunity for judicial construction and law must be followed regardless of
result.
4. Statutes.
If statute clearly and unambiguously specified legislature's intended result, result will prevail even if statute is impractical or
inequitable.
5. Insurance.
Omission or misrepresentation in insurance application need not be related to cause of death in order for misrepresentation or
omission to be material under statute precluding recovery if misrepresentation or omission is material either to acceptance of risk or
hazard assumed by insurer. NRS 687B.110.
OPINION
Facts
Appellant Carroll T. Randono (Mrs. Randono) is the widow of Gene D. Randono (Mr.
Randono), who was insured on a life insurance policy issued by respondent CUNA Mutual
Insurance Group (CUNA). Mr. Randono died of gastric carcinoma (stomach cancer) in
March, 1986. He had applied for and received the $50,000.00 term life insurance policy from
CUNA in June 1985. In the application for the policy, Mr. Randono gave a negative response
to a question which asked if the applicant had ever been treated for or told by competent
authority that the applicant had (among other things) high blood pressure. Mr. Randono's
answer was not entirely correct.
The evidence in the record clearly demonstrates that Mr. Randono had previously had a
not-inconsequential blood pressure problem for which he had received treatment. The record
also showed that he had both knowledge of this condition and memory of his past treatment
for high blood pressure at the time he incorrectly filled out his application for insurance.
The record further indicates that had Mr. Randono disclosed his hypertensive history, his
premiums would have been higher than what he ultimately paid. CUNA asserts that the
omission precluded it from considering the blood pressure problem and including it in the
underwriting equation. CUNA further claimed the misstatement deprived it of critical
information that would have led to an automatic investigation and discovery of additional
negative information about Mr.
have led to an automatic investigation and discovery of additional negative information about
Mr. Randono's health. CUNA's managing underwriter stated in his affidavit that if the
company had been apprised of all the relevant facts about Mr. Randono's health, it would
have probably issued the policy but only at a different, markedly higher premium rate.
1

After Mr. Randono's death, Mrs. Randono, as beneficiary of the policy, attempted to
collect the policy proceeds. She sent a copy of the death certificate and the policy to CUNA,
requesting a lump sum payment of the death benefit. CUNA, after some investigation, denied
the claim. The company returned all the premiums with interest and informed Mrs. Randono
it was exercising its asserted right to cancel the contract. The basis for the denial of payment
was that Mr. Randono had not disclosed his serious high blood pressure on the application for
insurance and therefore CUNA believed it was entitled to deny recovery under NRS
687B.110. This suit for the insurance policy proceeds ensued and the trial court granted
summary judgment based upon the aforementioned facts and its interpretation of NRS
687B.110.
Discussion
The standard for summary judgment is well established. All evidence must be construed
most favorably to the non-moving party. First Interstate Bank v. Green, 101 Nev. 113,
114-115, 694 P.2d 496, 497 (1985). Summary judgment is only appropriate when judgment
can be granted as a matter of law and no material issues of fact remain for trial. In re Hilton
Hotel, 101 Nev. 489, 492, 706 P.2d 137, 138 (1985). Essentially, discretion plays no real role
and the grant of summary judgment must be justified on the record before the court.
[Headnote 1]
Despite appellant's perception that the issues presented by this case are voluminous, its
true essence can be reduced to the question of whether NRS 687B.110 precludes recovery by
Mrs. Randono given the circumstances. Applying NRS 687B.110 to the established material
facts, we conclude that it does. Therefore, we perceive no error in the district court's decision.
NRS 687B.110 states: All statements and descriptions in any application for an
insurance policy or annuity contract, by or in behalf of the insured or annuitant, shall be
deemed to be representations and not warranties.
__________

1
Appellant challenges this as a factual issue necessitating a trial but produced no evidence that could be said
to contradict CUNA's affidavit. Appellant is entitled to all presumptions in her favor, but this does not require
the court to assume that CUNA perjured itself when explaining its own business practices to the court, especially
in the absence of rebutting evidence.
All statements and descriptions in any application for an insurance policy or annuity
contract, by or in behalf of the insured or annuitant, shall be deemed to be
representations and not warranties. Misrepresentations, omissions, concealment of facts
and incorrect statements shall not prevent a recovery under the policy or contract unless
either:
1. Fraudulent; or
2. Material either to the acceptance of the risk, or to the hazard assumed by the
insurer; or
3. The insurer in good faith would either not have issued the policy or contract, or
would not have issued it at the same premium rate, or would not have issued a policy or
contract in as large an amount, or would not have provided coverage with respect to the
hazard resulting in the loss, if the true facts had been made known to the insurer as
required either by the application for the policy or contract or otherwise.
[Headnotes 2-4]
Under long established principles of statutory construction, when a statute is susceptible to
but one natural or honest construction, that alone is the construction that can be given. State
v. Cal. M. Co., 13 Nev. 203, 217 (1878). We have also consistently held that where there is
no ambiguity in a statute, there is no opportunity for judicial construction and the law must be
followed regardless of result. McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438,
441 (1986); State v. Woodbury, 17 Nev. 337, 343, 30 P. 1006, 1008 (1883). This means that
if a statute clearly and unambiguously specifies the legislature's intended result, such result
will prevail even if the statute is impractical or inequitable. State v. Commissioners Washoe
Co., 22 Nev. 203, 212, 37 P. 486, 488 (1894); In Re Walters' Estate, 60 Nev. 172, 186, 104
P.2d 968, 974 (1940).
We are constrained by the above rules of statutory interpretation. The view with the most
interpretational integrity and which takes the statutory language at face value is the view that
concludes the statute means what it says despite its potential for incommensurate hardship.
2

CUNA's position is simply that the blood pressure question should have been answered in
the affirmative and that because it was not, CUNA is now statutorily permitted to rescind
the contract.
__________

2
We note that the statute reflects what is apparently a widely held view. The majority rule seems to be that the
misrepresentation and the cause of loss do not have to be related to make the insurance contract voidable by the
insurance company. 7 Couch, Insurance (2d rev. ed.), 35:87 at 145 (1985); 43 Am.Jur.2d Insurance 1058 at
1062-1064 (1982). Of course, because there is a controlling Nevada statute, the approach of other jurisdictions
does not affect our determination here.
was not, CUNA is now statutorily permitted to rescind the contract. We are forced to agree.
NRS 687B.110 begins by stating the general proposition that statements in insurance
applications are representations, not warranties, and that inaccuracies (broadly defined) in
such information will not preclude recovery. It then specifies, in subparts 1-3, particular
exceptions, the occurrence of which will preclude recovery. There is no claim that the
inaccuracy in the application was fraudulent; NRS 687B.110(1) is therefore inapplicable.
However, both NRS 687B.110(2) and NRS 687B.110(3) do apply and defeat recovery.
First, a history or previous occurrence of hypertension is material to the acceptance of
risk in writing a life insurance policy and is material to the hazard assumed by the insurer
in a life insurance contract. Therefore, the failure to disclose is clearly addressed and
precluded by NRS 687B.110(2). Second, Mr. Randono's omission resulted in the insurer
establishing a lower premium that Mr. Randono's actual medical history would have dictated.
This situation is addressed in NRS 687B.110(3) and also prevents enforcement of the contract
by Mrs. Randono. Thus, either provision is sufficient to preclude recovery.
[Headnote 5]
Mrs. Randono agrees that if her husband's death had been related to high blood pressure,
then there could be no recovery. However, she argues that an omission or misrepresentation
must be related to the cause of death in order to be material under the statute. Unfortunately,
despite the appeal of her logic, we are reluctantly unpersuaded.
First, appellant's contention relies heavily on policy arguments. Arguably, because Mr.
Randono did not succumb from causes related to hypertension, payment of the death benefit
would have essentially corresponded to the risk bargained for by CUNA. It actuarially
provided for the contingency that Mr. Randono might die of cancer. The net effect of the
statute is that Mr. Randono's widow does not receive the benefit of her husband's coverage
because the material misrepresentation in his application renders the policy voidable by
CUNA. Unfortunately, policy arguments are unavailing in the face of an unambiguous,
controlling statute, as we have here. We must assume that the legislature, when it enacted the
statute, was aware of the various policy considerations and purposely drafted the statute to
read as it does.
Second, even if we were to interpret NRS 687B.110(2) in the manner urged by appellant
(agreeing that material means that the death and the omission have to be related), this only
addresses one of the grounds in the statute upon which summary judgment was justified.
was justified. A fixed barrier to recovery remains under NRS 687B.110(3) regarding the
increased rate that clearly would have pertained if CUNA had been accurately informed of
Mr. Randono's medical history.
The introductory language of NRS 687B.110 offers hope to consumers that insurance
contracts will not be made voidable by inaccuracies and omissions in their applications, but
the exceptions, especially the one contained in NRS 687B.110(3), largely consume the rule.
The exceptions would appear to deny, in most situations, the protection and relief that the
statute may have been attempting to grant. Given the facts in the record and the language of
NRS 687B.110, it can be said as a matter of law that Mr. Randono's failure to disclose his
history of hypertension on his insurance application is sufficient to prevent recovery of the
insurance proceeds.
3

For the reasons noted above, we affirm the summary judgment entered by the district
court.
Young, C. J., Springer and Rose, JJ., concur.
Appellant's husband, now deceased, purchased from respondent insurance company a
$50,000.00 policy on his life naming his wife, the appellant, as beneficiary. The husband died
of cancer. The company has refused to pay the widow the $50,000.00 on the grounds that the
husband, when checking the application forms at the time the policy was issued, checked the
no box rather that the yes box when responding to an inquiry whether he had ever been
treated for hypertension.
Although when the husband obtained the policy he had the pulse and blood pressure of a
high school athlete, the company learned after the husband's death that he had earlier been
treated for hypertension. There was no showing, relation or connection that hypertension
caused the husband's death. In the absence of some relation, connection or causation, I believe
that the company should honor its agreement and pay the $50,000.00 due the widow
under the policy.
__________

3
Although we share in the dissent's sympathy for Mr. Randono's widow, we do not see a basis for relief in
the fact that the insured's blood pressure (132/84) may have approached that of a high school athlete at or
about the date of his insurance application. Within less than two years prior to that date, Mr. Randono suffered
from both high blood pressure and malignant hypertension. According to an uncontroverted affidavit of record,
if CUNA had been aware of the history of Mr. Randono's serious hypertension, his premium rate would have
been three times greater than that which he was charged. In order to grant the widow relief under these facts, we
would have to disregard both the statute and our obligation to apply it as enacted by the legislature.
pany should honor its agreement and pay the $50,000.00 due the widow under the policy. The
company was willing to accept his premiums, and only when he died did they raise the issue
of hypertension, which had nothing to do with his death from the catastrophic cancer.
Therefore, I would reverse and remand the case to the district court with instructions to
enter judgment for the appellant with costs and attorney's fees.
1

____________
106 Nev. 377, 377 (1990) Pettipas v. State
CLIFFORD PAUL PETTIPAS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19307
June 28, 1990 794 P.2d 705
Appeal from a judgment of conviction entered after a trial to the court of one count of
driving under the influence of alcohol, third offense, a felony. Third Judicial District Court,
Lyon County; Mario G. Recanzone, Judge.
Motorist was convicted in the district court of driving under the influence of alcohol (DUI)
and the conviction was enhanced to a felony in light of two prior convictions for
misdemeanor DUI. Motorist appealed. The Supreme Court held that: (1) motorist's prior DUI
convictions did not have to be evidenced by certified copies of formal, written judgments of
conviction in order to support enhancement; (2) denial of jury trial in prosecution of motorist
for misdemeanor DUI did not render conviction invalid so as to preclude its use for
enhancement purposes; but (3) documents supporting motorist's prior DUI conviction did not
contain affirmative waiver of motorist's right to counsel and, thus, conviction should not have
been used for enhancement.
Terri Steik Roeser, State Public Defender, John Lambrose, Deputy, Carson City, for
Appellant.
Brian McKay, Attorney General, Carson City; William G. Rogers, District Attorney, and
William E. Schaeffer, Deputy, Lyon County, for Respondent.
__________

1
Moreover, as former Assemblyman John C. Homer stated during the third reading of the bill leading to the
enactment of NRS 687B.110, [t]his bill was to protect the consumer. Hearing on A.B. 416, Fifty-sixth Session,
1971, Journal of the Assembly, p. 957.
1. Automobiles.
Motorist's prior convictions for driving under the influence of alcohol (DUI) did not have to be evidenced by certified copies of
formal, written judgments of conviction in order to support enhancement of defendant's present DUI conviction to felony. NRS
484.3792, subd. 2.
2. Automobiles.
Denial of jury trial in prosecution of motorist for misdemeanor driving under the influence of alcohol (DUI) did not render
conviction invalid so as to preclude its use for enhancement of motorist's present DUI conviction to felony. NRS 484.3792, subd. 2.
3. Automobiles.
Documents supporting motorist's prior conviction for driving under the influence of alcohol (DUI) did not contain affirmative
waiver of motorist's right to counsel and, thus, conviction should not have been used to enhance motorist's present DUI conviction to
felony. NRS 484.3792, subd. 2; U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
In the early morning hours of November 6, 1987, Deputy Sheriff Burke observed a vehicle
weaving back and forth in its lane. Burke followed the vehicle for about three-tenths of a
mile, observed the vehicle cross the double yellow line at least six times, and stopped the
vehicle. The driver, appellant, failed two of three field sobriety tests. Burke placed appellant
under arrest, read him his Miranda warning and the implied consent warning and transported
him to jail. Appellant submitted to a blood test which revealed a blood alcohol content of
.369.
On April 22, 1988, after a preliminary hearing, an information was filed in the district
court charging appellant with one count of driving or being in actual physical control of a
motor vehicle while under the influence of alcohol, a felony.
1
At the close of the subsequent
bench trial, the district court found appellant guilty of driving while under the influence of
alcohol. The district court later determined that appellant had suffered two prior convictions
for DUI within the preceding seven years. Accordingly, the court sentenced appellant to one
year in the Nevada State Prison, and fined appellant $2000. This appeal followed.
At appellant's sentencing hearing, the district court considered the validity of two prior
convictions suffered by appellant for misdemeanor DUI.
__________

1
Prior to the preliminary hearing, appellant filed in this court a pretrial petition for a writ of habeas corpus
alleging that he had been denied a speedy preliminary hearing. This court denied that petition on the merits. See
Pettipas v. Sheriff, Order Denying Petition, Docket No. 18908, filed June 28, 1988.
misdemeanor DUI. The first conviction arose out of a prosecution in the Sparks Municipal
Court in 1984 (the municipal court conviction). The second conviction also occurred in 1984,
and arose out of a prosecution in the Justice's Court of Sparks Township (the justice's court
conviction).
[Headnote 1]
Appellant first asserts that the documents supporting his prior convictions were
insufficient to enhance his present conviction to a felony because the documents did not
contain certified copies of formal, written judgments of conviction. This contention is without
merit. NRS 484.3792(2) does not require that a prior conviction be evidenced by a formal,
written judgment of conviction. That statute merely requires that a prior offense be evidence
by a conviction. In the present case, appellant's prior convictions were evidenced by
certified copies of docket sheets and other documents from the courts in which the
convictions were entered. These documents are sufficient to show that appellant was actually
convicted of misdemeanor DUI in those proceedings. Therefore, the district court did not err
when it determined that appellant's prior convictions did not have to be evidenced by certified
copies of formal, written judgments of conviction.
[Headnote 2]
Appellant next contends that the district court erred when it relied on the justice's court
conviction to enhance his present conviction. Specifically, he notes that the documents
supporting that conviction reveal that he requested a jury trial, and that the court denied his
request. Therefore, appellant contends that the denial of a jury trial renders the justice's court
conviction invalid.
Appellant's contention is without merit. In Blanton v. North Las Vegas Mun. Ct., 103 Nev.
623, 748 P.2d 494 (1987), Aff'd sub nom. Blanton v. City of North Las Vegas, Nev., 489 U.S
538, 109 S.Ct. 1289 (1989), this court held that a defendant in a prosecution for misdemeanor
DUI is not entitled to jury trial. Therefore, the denial of a jury trial in the justice's court
prosecution did not render the conviction invalid.
[Headnote 3]
Finally, appellant notes that the records supporting the municipal court conviction reveal
that the conviction was the result of a trial at which appellant was not represented by counsel.
Appellant further notes that the records supporting that conviction do not contain a waiver of
counsel. Thus, appellant asserts that the lack of counsel during the municipal court
prosecution rendered that conviction invalid. Accordingly, appellant argues that the district
court erred when it used the municipal court conviction to enhance his present conviction to
a felony.
enhance his present conviction to a felony. Respondent asserts, however, that appellant
apparently waived his right to counsel in the municipal court proceeding. Therefore,
respondent argues that the district court properly used the municipal court conviction to
enhance appellant's present conviction to a felony.
In Koenig v. State, 99 Nev. 780, 672 P.2d 37 (1983), this court held that a prior
misdemeanor conviction may not be used to enhance a DUI conviction to a felony unless the
district court determines that the defendant was either represented by counsel or formally
waived his right to counsel. Id. at 788, 672 P.2d at 42. See also Bonds v. State, 105 Nev. 827,
784 P.2d 1 (1989). Once this preliminary determination is made, the validity of the prior
conviction is established if the records of the prior misdemeanor prosecution reflect that the
spirit of constitutional principles was respected. Id.
In the present case, the documents supporting the municipal court conviction do not
contain a formal waiver of counsel by appellant. The documents contain a notation that
describes appellant's arraignment as follows: Rights and read charges [defendant] PNG
[pleaded not guilty]. In addition, after the trial, the municipal judge noted that [defendant]
had had ample time to obtain counsel [,] gave [defendant] waiver of rights to review, had
[defendant] repeat max penalty that could be imposed on DUI and 483.560. These notations
are insufficient as a matter of law to show that appellant affirmatively waived his right to
counsel in the municipal court proceeding.
Because the documents supporting the municipal court conviction do not contain an
affirmative waiver of appellant's right to counsel, the district court erred when it used that
conviction to enhance appellant's present conviction to a felony. Accordingly, we reverse
appellant's conviction, and we remand this case to the district court with instructions that
appellant be resentenced as a second time DUI offender.
____________
106 Nev. 381, 381 (1990) C.H.A. Venture v. G. C. Wallace Consulting
C.H.A. VENTURE, a Joint Venture Composed of JAMES J. LASCARI dba CHARLESTON
HEIGHTS ASSOCIATES, a Nevada Limited Partnership, TANDEM
DEVELOPMENT, INC., a Nevada Corporation, Its General Partner and PHILLIP
ARCIERO dba F&P CONSTRUCTION, a General Partnership, Appellants, v. G. C.
WALLACE CONSULTING ENGINEERS, INC., a Nevada Corporation, Respondent.
No. 20166
June 28, 1990 794 P.2d 707
Appeal from joint and several judgment for payment of services rendered on a real estate
development project. Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
The district court entered judgment against a general partnership and another defendant in
an engineer's suit seeking payment of services rendered on a real estate development project,
and the general partnership appealed. The Supreme Court held that: (1) district court lacked
jurisdiction over general partnership consisting of two California corporations where plaintiff
contented itself with service upon wife of officer of the corporate partners, and (2) where
plaintiff had actual notice before trial of true identity and nature of a party defendant, which
was a general partner consisting of two California corporations, but thereafter took no steps to
properly serve and join the correct party, plaintiff was not entitled to amend the complaint to
correct the identification of the defendant.
Reversed.
[Rehearing denied May 9, 1991]
Deaner, Deaner & Scann, Las Vegas, for Appellants.
John Peter Lee and James J. Lee, Las Vegas, for Respondent.
1. Judgment.
A district court is empowered to render a judgment either for or against a person or entity only if it has jurisdiction over the parties
and the subject matter.
2. Partnership.
District court lacked jurisdiction over general partnership consisting of two California corporations where plaintiff contented itself
with service upon wife of officer of the corporate partners. NRS 14.030; NRCP 4(d)(2).
3. Process.
Notice is not a substitute for service of process; personal service or legally provided substitute must still occur in order to obtain
jurisdiction over a party.
4. Parties.
Where plaintiff had actual notice before trial of true identity and nature of a party defendant, which was a general partner
consisting of two California corporations, but thereafter took no steps to properly serve and join the correct party, plaintiff, who served
wife of officer of the two corporate partners, was not entitled to amend the complaint to correct the identification of the defendant.
OPINION
Per Curiam:
The district court entered judgment in favor of respondent holding multiple entities jointly
and severally liable. Appellant F&P Construction Company (F&P) contends on appeal that
because it was never served and did not appear in the matter, the district court lacked
jurisdiction to grant judgment against it. We agree and accordingly reverse the district court's
judgment against F&P.
FACTS
In 1980, James Lascari (Lascari), in his capacity as president of Tandem Development,
Inc. (Tandem), purchased twenty (20) acres in Las Vegas for Charleston Heights Associates
(Charleston), a Nevada limited partnership, for the purpose of developing a
condominium/townhouse project. Tandem was the general partner in Charleston.
Lascari engaged respondent G. C. Wallace Consulting Engineers, Inc. (Wallace) to
perform the preparatory work necessary to subdivide the property. Wallace performed a
substantial amount of work without payment. Lascari assured Wallace that a partner was
being acquired that would pay the obligation.
Shortly thereafter, Charleston entered into a joint venture agreement with F&P to develop
the property. The agreement provided that F&P would assume some of the outstanding
obligations of the project, including an express assumption by F&P of the Wallace
indebtedness. F&P was and still is a California general partnership consisting of two
California corporations: Arciero Homes, Inc. and Ciero Development Corporation. There was
no indication in either the agreement or in the fictitious name certificate concerning the nature
of the partners constituting F&P, i.e., whether corporations, individuals or some combination
of entities.
Wallace, having never received payment from any of the parties, filed suit. In reliance on
the joint venture agreement, Wallace's complaint and subsequent pleadings named as
defendants: C.H.A. Venture, a joint venture composed of Tandem Development Inc., a
Nevada corporation, and two individuals, Lascari, doing business as Charleston, and Phillip
Arciero {Arciero), doing business as F&P, a general partnership.
doing business as Charleston, and Phillip Arciero (Arciero), doing business as F&P, a general
partnership. Arciero was eventually served as an individual but not as an officer of either of
the corporate partners in F&P, as the corporate nature of the entities forming F&P was still
unknown to Wallace. Wallace discovered the true status of the F&P partners at least by
November, 1988, when Arciero's deposition was taken. Trial was held in January, 1989.
Arciero and Lascari answered the complaint and subsequently moved for summary
judgment on the grounds that F&P might be liable for the debt but that there was no
individual liability. The district court denied the motion.
At trial, Lascari and Arciero again claimed that C.H.A Venture was not composed of
Lascari dba Charleston and Arciero dba F&P, as alleged in the complaint, but that one of the
partners in the venture was F&P, which was a partnership consisting of two California
corporations which were absent from the proceedings, and were never served and never
appeared in the matter and thus were not properly before the court.
The district court granted judgment to Wallace in the amount of $34,165.58 against all of
the named entities. F&P appeals and its sole contention is that because it was not properly
served, the district court had no jurisdiction to render judgment against it.
DISCUSSION
[Headnote 1]
A district court is empowered to render a judgment either for or against a person or entity
only if it has jurisdiction over the parties and the subject matter. See Young v. Nevada Title
Company, 103 Nev. 436, 442, 744 P.2d 902, 905 (1987). As noted hereafter, the district court
never had jurisdiction over F&P.
[Headnote 2]
We reemphasize that F&P is a partnership consisting of two California corporations. In
order to obtain jurisdiction over the partnership and bring it before the court, at least one of
the partners had to be properly served in its corporate capacity.
Jurisdiction over foreign corporations may be accomplished under Nevada law by
complying with the procedures set forth in NRCP 4(d)(2)
1
or NRS 14.030.
2
Because
respondent failed to effectuate service under either provision and contented itself with
service upon Arciero's wife, jurisdiction over F&P did not attach.
__________

1
NRCP 4(d)(2) states:
If the suit is against a foreign corporation, or a non-resident partnership, joint-stock company or
association, doing business and having a managing or business agent, cashier, or secretary within this
state; to such agent, cashier, or secretary or to an agent designated for service of process as required by
law; or in the event no such agent is designated,
effectuate service under either provision and contented itself with service upon Arciero's
wife, jurisdiction over F&P did not attach. The district court therefore was powerless to enter
any form of valid judgment imposing liability against F&P.
[Headnote 3]
Although a lack of effective service on F&P is dispositive of this appeal, we are not
unmindful of Wallace's contention that because F&P had actual notice of the action through
participation in the litigation by Arciero, an effective substitute for service of process should
be deemed to have occurred. Unfortunately for Wallace, notice is not a substitute for service
of process. Personal service or a legally provided substitute must still occur in order to obtain
jurisdiction over a party. See In Re Abrams, 166 Cal.Rptr. 749 (Cal.App. 1980); LaMotte v.
Constantine, 416 N.E.2d 23 (Ill.App. 1980); McMullen v. Arnone, 437 N.Y.S.2d 373
(N.Y.App.Div. 1981). F&P is a legal entity separate from Arciero and must necessarily be
treated as such. Accordingly, service on Arciero as an individual could not bind F&P, the
general partnership, or its member corporations.
__________
to the secretary of state or the deputy secretary of state, as provided by law.

2
1. If any such company, association or municipal corporation shall fail to appoint such agent, or fail
to file such certificate for 30 days after a vacancy occurs in such agency, on the production of a certificate
of the secretary of state showing either fact, which certificate shall be conclusive evidence of the fact so
certified to be made a part of the return of service, it shall be lawful to serve such company, association
or municipal corporation with any and all legal process by delivering a copy to the secretary of state, or,
in his absence, to any duly appointed and acting deputy secretary of state, and such service shall be valid
to all intents and purposes.
2. In all cases of such service the defendant shall have 40 days (exclusive of the day of service)
within which to answer or plead.
3. Before such service shall be authorized, the plaintiff shall make or cause to be made and filed an
affidavit setting forth the facts, showing that due diligence has been used to ascertain the whereabouts of
the officers of such company, association or municipal corporation, and the facts showing that direct or
personal service on, or notice to, such corporation cannot be had.
4. If it shall appear from such affidavit that there is a last known address of such company,
association or municipal corporation, or any known officers thereof, the plaintiff shall, in addition to and
after such service on the secretary of state, mail or cause to be mailed to such corporation, or to such
known officer, at such address, by registered or certified mail, a copy of the summons and a copy of the
complaint, and in all such cases the defendant shall have 40 days from date of such mailing within which
to appear in the action.
5. This section shall be construed as giving an additional mode and manner of serving process, and as
not affecting the validity of any other valid service.
[Headnote 4]
Wallace bases its arguments for jurisdiction on Echols v. Summa Corp., 95 Nev. 720, 601
P.2d 716 (1979), and Servatius v. United Resort Hotels, 85 Nev. 371, 455 P.2d 621 (1969).
These cases are distinguishable from the instant case. In Servatius, the plaintiff sued the party
by the wrong name. The issue was whether amendment of the complaint merely corrected the
name of a party already before the court or whether it brought a new party defendant into the
action. The court held that the three factors determinative of the issue involved the proper
party defendant having (1) actual notice of the institution of the action; (2) knowledge that it
was the proper party; and (3) was not in any way misled to its prejudice. Id. at 373, 455 P.2d
at 622-23. In recognizing the presence of the three factors in Servatius, the court further
observed that the decision was influenced by an apparent practice on the part of the true party
to confuse putative plaintiffs as to the name of the correct corporate identity. We also stated
our awareness of considerable contrary authority that would have dictated a different
decision, but declined to follow such authority in that limited situation. Id.
In Servatius we concluded that the amendment of the complaint did not bring in a new
party but simply corrected the identification of the party already before the court. Allowing
the amendment of the complaint and correcting the identity of the party are qualitatively
different than granting judgment against a non-party, as occurred here. Moreover, where, as
here, the plaintiff had actual notice before trial of the true identity and nature of a party
defendant, but thereafter took no steps to properly serve and join the correct party, the
Servatius dispensation would be unavailable as a matter of law. The foregoing analysis
applies equally to Echols.
Finally, the parties dispute whether a motion to amend the complaint to reflect the
corporate nature of the partners of F&P was ever made. However, assuming that Wallace did
properly make such a motion, the record does not reflect that it was ever granted and that
F&P was added as a party defendant in the action. In any event, as noted previously, Wallace
never did serve either of the F&P corporations or Arciero in their corporate capacities. As a
non-party to the action, F&P was not subject to an exercise of jurisdiction by the district court
in entering judgment against it. See, e.g., Fazzi v. Peters, 40 P.2d 242, 245 (Cal. 1968);
Hiltsley v. Ryder, 738 P.2d 1024, 1025 (Utah 1987); Wyoming Health Services, Inc. v.
Deatherage, 773 P.2d 156, 158 (Wyo. 1989).
We have considered the other contentions of the parties and have concluded that they are
either without merit or need not be treated as the issues discussed and resolved above are
dispositive of this appeal.
treated as the issues discussed and resolved above are dispositive of this appeal.
For the reasons hereinbefore specified, the judgment entered against F&P is reversed.
3

____________
106 Nev. 386, 386 (1990) Ferreira v. City of Las Vegas
CARLO G. FERREIRA, Appellant, v. CITY OF LAS VEGAS, NEVADA, Respondent.
No. 20224
June 28, 1990 793 P.2d 1328
Appeal from order denying petition for post-conviction relief. Eighth Judicial District
Court, Clark County; Jack Lehman, Judge.
Defendant convicted of misdemeanor offense petitioned for post-conviction relief. The
district court denied relief, and appeal was taken. The Supreme Court held that
post-conviction relief was not available to misdemeanor defendant.
Affirmed.
Michael R. Zervas, Las Vegas, for Appellant.
George F. Ogilvie, City Attorney, and Albert Matteucci, Deputy, for Respondent.
Criminal Law.
Post-conviction relief was not available to defendant convicted of misdemeanor offense. NRS 177.315, subd. 1.
OPINION
Per Curiam:
On December 2, 1987, appellant was convicted in the Municipal Court of Las Vegas on
one count of driving under the influence of alcohol, a misdemeanor. The municipal court
sentenced appellant to forty-eight hours of community service and to pay fines and fees
totalling $265. Appellant filed a timely appeal to the Eighth Judicial District Court and, on
September 12, 1988, after a trial de novo, the district court entered an order affirming
appellant's conviction and sentence.
__________

3
Because of the token effort to assert a basis for relief on behalf of the other named appellants, and
specifically Charleston, we decline to grant relief on appeal other than as specified concerning F&P.
106 Nev. 386, 387 (1990) Ferreira v. City of Las Vegas
On January 10, 1989, appellant filed in the district court the instant petition for
post-conviction relief pursuant to NRS 177.315. The state opposed appellant's petition, and
on May 3, 1989, the district court denied appellant's petition. This appeal followed.
Appellant contends that the district court erred when it denied his petition. Specifically, he
argues that the district court erred during his direct appeal when it denied his motion to
suppress evidence obtained as a result of certain field sobriety tests. We need not reach the
merits of this contention. 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.
(Emphasis added.) This language indicates a clear legislative intent to make post-conviction
relief available only to persons who are convicted of felony offenses and who are under a
sentence of death or imprisonment for those offenses. Compare NRS 193.120(2) (a felony is
a crime punishable by death or imprisonment in the state prison) with NRS 193.120(3) (a
misdemeanor is a crime punishable by a fine of not more than $1000 or by imprisonment in a
county jail for not more than six months). See also NRS 193.140 (a gross misdemeanor is a
crime punishable by a fine of not more than $2000 or by imprisonment in a county jail for not
more than one year, or by both).
Where the intention of the legislature is clear, it is the duty of the court to give effect to
such intention and to construe the language of the statute to effectuate, rather than to nullify,
its manifest purpose. Sheriff v. Lang, 104 Nev. 539, 542, 763 P.2d 56, 58 (1988), quoting
Sheriff v. Luqman, 101 Nev. 149, 155, 697 P.2d 107, 111 (1985). In the present case,
appellant was convicted of a misdemeanor offense; therefore, appellant may not challenge his
conviction by filing a petition for post-conviction relief. Accordingly, we affirm the order of
the district court denying appellant's petition for post-conviction relief.
1

__________

1
The Honorable Robert E. Rose, Justice, did not participate in the decision of this appeal.
____________
106 Nev. 388, 388 (1990) Hoover v. Hoover
WARREN H. HOOVER, Appellant, v. LINDA M. HOOVER, Respondent.
No. 20302
June 28, 1990 793 P.2d 1329
Appeal from an order of the district court modifying the child support amounts specified in
a divorce decree. Third Judicial District Court, Lyon County; Archie E. Blake, Judge.
Ex-husband appealed from order entered in district court modifying child support amount
specified in divorce decree. The Supreme Court, Springer, J., held that ex-husband's two
children from second marriage could not be considered in determining his child support
obligation for two children in ex-wife's custody.
Affirmed.
Richard W. Young, Reno, for Appellant.
Steven M. Hess, Reno, for Respondent.
Divorce.
Ex-husband's two children from second marriage could not be considered in determining his support obligation for two children in
ex-wife's custody; statutory child support formula clearly called for award of support based on number of children in custodian's
custody. NRS 125B.070, subd. 2(b).
OPINION
Warren Hoover is the father of four children, two children born to respondent Linda
Hoover, and two children born later to a second wife.
Linda Hoover requested the district court to award her child support for her two children in
accordance with the child support formula. The statutory obligation for support for two
children is 25 percent of the paying parent's gross monthly income. NRS 125B.070(2)(b). The
district court correctly awarded Linda the 25 percent provided in the statute.
Warren claims that this award fails to take into consideration the fact that he has two other
children to support. He wants the court to apply the formula percentage for four children (31
percent) and then divide 31 percent by four to get his per-child rate of support.
106 Nev. 388, 389 (1990) Hoover v. Hoover
rate of support.
1
There is no legislative authority for making this kind of calculation. When
a custodian seeks support for a certain number of children in his or her custody, the statute
clearly states what percentage of gross monthly income must be paid. The statutory schedule
sets 25 percent for two children and that is what Linda Hoover is entitled to.
This court is not blind to the public policy issues that might arise in the future relative to
application of this formula in cases where several successive children are born to one child
support payer. Whether all children should be treated equally or whether each successive
family should receive diminished support is a matter of considerable public policy concern.
The legislature, not the court, is the proper body to make these decisions. As the law now
stands, when the court is to [d]etermine the required support in any case involving the
support of children, or when there is a request to change the amount of the required support
of children, the court shall apply the appropriate formula set forth in subsection 2 of NRS
125B.070. NRS 125B.080. In carrying out the statutory mandate the courts have the power
to make equitable adjustments of the formula obligation and may adjust the amount of
support based on a number of factors, including the responsibility of the parents for the
support of others NRS 125B.080(9)(e); but there is certainly no power in the courts to devise
a new formula based on the number of children who happen to have been born to the paying
parent at the time application of the statutory formula is sought by the receiving parent.
The judgment of the trial court is affirmed.
Young, C. J., and Steffen, Mowbray and Rose, JJ., concur.
__________

1
In support of his position, Warren cites a publication called the Nevada Civil Practice Manual, which
apparently contains a formula of its own, namely that a calculation should be based on all the children the
obligor is required to support. That number is then divided by the number of children to determine the obligor's
per-child rate of support.
____________
106 Nev. 390, 390 (1990) City of Boulder City v. State of Nevada
CITY OF BOULDER CITY, NEVADA, a Political Subdivision of the State of Nevada,
Appellant, v. THE STATE OF NEVADA, RICHARD H. BRYAN, in His Capacity as
Governor of the State of Nevada; and JOHN P. COMEAUX, in His Capacity as
Executive Director, Department of Taxation, State of Nevada; COUNTY OF
CLARK, STATE OF NEVADA, a Political Subdivision of the State of Nevada; CITY
OF LAS VEGAS, a Political Subdivision of the State of Nevada; CITY OF
HENDERSON, a Political Subdivision of the State of Nevada; CITY OF NORTH
LAS VEGAS, a Political Subdivision of the State of Nevada; CITY OF MESQUITE,
a Political Subdivision of the State of Nevada, Respondents.
No. 20325
June 28, 1990 793 P.2d 845
Appeal from a summary judgment in an action to recover tax revenue. Eighth Judicial
District Court, Clark County; Miriam Shearing, Judge.
City appealed from order of the district court entered in favor of State in action to recover
tax revenue. The Supreme Court held that: (1) city cannot assert due process claim against
State, but (2) admonitions of material fact remained.
B. G. Andrews, City Attorney, Boulder City, for Appellant.
Brian McKay, Attorney General, and John Bartlett, Deputy Attorney General, Carson City,
for Respondents Governor Richard H. Bryan and John P. Comeaux.
County, for Respondent Clark County.
George F. Ogilvie, City Attorney, and Val Steed, Deputy City Attorney, Las Vegas, for
Respondent City of Las Vegas.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell, Carson City, and Shauna M.
Hughes, City Attorney, Henderson, for Respondent City of Henderson.
Richard C. Maurer, City Attorney, North Las Vegas, for Respondent North Las Vegas.
Tony Terry, City Attorney, Mesquite, for Respondent City of Mesquite.
1. Constitutional Law.
City could not assert due process claims against State. U.S.C.A. Const. Amend. 14.
2. Judgment.
Summary judgment was improper with respect to city's claim in action to recover tax revenue that it failed to attend meeting with
state officials concerning population estimates because it was told by state officials that it was not necessary for it to attend; issue
existed as to whether city was precluded from challenging population figures because of its failure to attend.
OPINION
Per Curiam:
On October 29, 1987, the Department of Taxation (the Department) issued a preliminary
population estimate report for each city and county in Nevada. Boulder City's estimate was
11,960.
Subsequently, in November 1987 the Department received more complete Census Bureau
data, prompting the Department to publish a revised preliminary population estimate. In this
revision, Boulder City's population was increased to an estimated 12,560.
Because the data received by the Department in November lacked data for annexations
occurring since 1980, a meeting was scheduled by the Department for December 7, 1987 in
order to review the situation and, if necessary, correct any population estimates based upon
annexations. The deficiency in the Census Bureau data was explained to Boulder City which,
along with the other political subdivisions, was invited to the December 7th meeting.
Inasmuch as Boulder City had not made any annexations, it did not have representatives
attend the meeting. Whether Boulder City's failure to attend was due to representations of the
Department or was a result of a lack of diligence is not clear.
At the December 7th meeting, it was determined that adjustments needed to be made in the
previously issued population estimates. Being apprised of potential downward adjustments,
Clark County and the cities of Henderson and Las Vegas timely filed petitions pursuant to
NRS 360.283(3) to revise their respective estimated population figures. Again, because
Boulder City had effectuated no annexations during the relevant period, it did not file a
petition.
From December 10, 1987 through December 22, 1987, the Department was provided
annexation information and data from the various cities.
the various cities. On December 23, 1987, the annexation work sheets were delivered to the
cities. Dan Kruse received the work sheet for Boulder City at the City Manager's office.
Boulder City's population was revised downward from the November figure of 12,560 to
11,860.
Boulder City raises two issues on appeal. First, it contends that it was denied due process
by the Department in its 1988 population estimate determination. Second, it challenges
propriety of the summary judgment entered in favor of the Department.
[Headnote 1]
Boulder City argues that it was denied due process of law by the Department because of
the way its 1988 population estimates were determined. This contention lacks merit. In City
of Reno v. Washoe County, 94 Nev. 327, 580 P.2d 460 (1978), we held
[T]hat the City, as a political subdivision of the State, may not raise the issues of taking
of property without due process of law or just compensation and the impairment of its
contracts, as against the State, its creator.
Id. at 331, 580 P.2d at 463. Additionally, this court held in State ex rel. List v. County of
Douglas, 90 Nev. 272, 524 P.2d 1271 (1974): Douglas County, as a political subdivision of
the State of Nevada, may not invoke the proscriptions of the Fourteenth Amendment in
opposition to the will of its creator. [Citations omitted.] It may not complain of State action
upon the ground that it has been deprived of its property without due process of law. Id. at
280, 524 P.2d at 1276. Boulder City's due process argument clearly falls within the
proscriptions outlined in both City of Reno and County of Douglas, supra. Boulder City has
no basis upon which to support its due process claim against the State. Therefore, we reject
this argument without further consideration.
Boulder City also argues that the trial court improperly granted summary judgment in
favor of the Department. We have held that:
Summary judgment is appropriate only when the moving party is entitled to judgment
as a matter of law and no genuine issue of material fact remains for trial. NRCP 56(c);
Morrow v. Barger, 103 Nev. 247, 737 P.2d 1153 (1987). In determining whether
summary judgment is proper, the non-moving party is entitled to have the evidence and
all reasonable inferences accepted as true.
Wiltsie v. Baby Grand Corp., 105 Nev. 291, 774 P.2d 432, 433 (1989). Additionally, if there
is the slightest doubt about the facts, the litigant has the right to a trial. Shapro v.
Forsythe, 103 Nev. 666, 66S
103 Nev. 666, 668, 747 P.2d 241, 243 (1987). Finally, the burden of establishing the
non-existence of any genuine issue of fact is on the party moving for summary judgment. Id.
[Headnote 2]
With these standards of review in mind, it appears that the summary judgment granted by
the trial court was error. Genuine and material issues of fact remain. A summary proceeding
is improper in ascertaining whether Boulder City failed to attend the December 7th meeting
because it was told by the Department it would not be necessary since only annexation issues
would be discussed, or because Boulder City was simply derelict in its duty. The Department
argues Boulder City was derelict in failing to attend. Boulder City argues that the Department
represented that there was no need to attend because there were no annexations and only
updated annexation data would be considered in making revisions.
We conclude that genuine and material factual issues remain for trial bearing on the
validity of the Department's revision of Boulder City's 1988 population estimate based upon
the annexation data.
1
Accordingly, we reverse the summary judgment entered by the district
court, and remand this matter for trial on the merits.
____________
106 Nev. 393, 393 (1990) Slinkard v. State
TROY ALBERT SLINKARD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20499
June 28, 1990 793 P.2d 1330
Appeal from a judgment of conviction. Fourth Judicial District Court, Elko County;
Joseph O. McDaniel, Judge.
Defendant was convicted in the district court of driving with a blood alcohol level in
excess of 0.10 percent, and he appealed. The Supreme Court held that: (1) DUI statutes
provide sufficient notice of the prohibited conduct; (2) defendant was not competent to testify
regarding the percentage of alcohol in his blood at the time of the accident; and (3) person's
mistake as to his blood alcohol level is not a defense to the charge.
Affirmed.
__________

1
We, of course, express no opinion or intend no inference concerning the validity of Boulder City's claims.
Frederick B. Lee, Jr., Public Defender, Elko County, for Appellant.
Brian McKay, Attorney General, Carson City; Mark D. Torvinen, District Attorney, Elko
1. Automobiles.
Driving while under the influence statutes are not premised on a person knowing the exact percentage of blood alcohol in his or
her blood. NRS 484.379, subd. 1.
2. Automobiles.
Person who consumes a substantial amount of liquor and then drives is on notice that he may be in violation of the driving while
under the influence (DUI) statutes. NRS 484.379, subd. 1.
3. Automobiles.
Driving while under the influence (DUI) statutes provide sufficient notice of conduct which is prohibited, and are not
unconstitutional on the theory that a person cannot know which sip of liquor will bring him past the .10 percent limit. NRS 484.379,
subd. 1.
4. Evidence.
Motorist was not competent to testify regarding percentage of alcohol in his blood at the time of accident. NRS 484.381, subd. 3.
5. Automobiles.
Motorist's testimony as to the percentage of alcohol in his blood at the time of accident could not have overcome presumption that
his blood alcohol level at the time of the accident was at least as high as measured in a blood sample taken several hours later. NRS
484.381, subd. 1.
6. Automobiles.
Person's mistake as to his blood alcohol level is not a defense to a charge of driving while under the influence (DUI). NRS
484.379. subd. 1.
7. Automobiles.
Knowledge of one's intoxication is not an element of the crime of driving while intoxicated, and absence of such knowledge is not
a defense. NRS 484.379, subd. 1.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
driving with a blood alcohol level in excess of 0.10 percent, third offense, a felony. See NRS
484.379(1); NRS 484.3792(1)(c). The district court sentenced appellant to serve three years
in the Nevada State Prison and to pay a fine of $2,000.
Appellant's vehicle left Interstate 80 between Elko and Wells, Nevada and overturned. A
blood sample taken from appellant a few hours after the accident showed that he was
intoxicated. Specifically, tests revealed alcohol levels of 0.178 and 0.179 percent in
appellant's blood.
percent in appellant's blood. At appellant's trial, the district court refused to allow appellant to
testify regarding what appellant believed his blood alcohol level was at the time of the
accident. Appellant contends that this was prejudicial error. Appellant asserts that the Nevada
DUI statutes are premised upon the assumption that a person may know his or her blood
alcohol level following consumption of certain amounts of liquor. Appellant argues that a
person charged with DUI must have the ability to know his or her blood alcohol level,
otherwise the DUI statutes would fail to meet constitutional requirements regarding notice of
prohibited conduct.
[Headnotes 1-5]
The DUI statutes are not, however, premised on a person's knowing the exact percentage
of alcohol in his or her blood. Consumption of a substantial amount of liquor is required to
yield a blood alcohol level of 0.10 percent, and a person who consumes a substantial amount
of liquor and then drives is on notice that he may be in violation of the DUI statutes. See Burg
v. Mun. Ct. for Santa Clara Jud. Dist., 673 P.2d 732, 741-42 (Cal. 1983). Therefore, the DUI
statutes provide sufficient notice of the prohibited conduct. Id. at 741. The DUI statutes are
not unconstitutional because a person cannot know which sip of liquor will bring him past the
0.10 percent limit. Id. The district court properly found that appellant was not competent to
testify regarding the percentage of alcohol in his blood and properly refused to admit such
testimony. Cf. NRS 484.381(3) (defendant may introduce competent evidence regarding his
blood alcohol level). Moreover, appellant was not prejudiced by the district court's refusal to
admit the testimony, because appellant could not have overcome the presumption that his
blood alcohol level at the time of the accident was at least as high as measured in a blood
sample taken several hours later. See NRS 484.381(1).
[Headnotes 6, 7]
Appellant further contends that the district court erred in finding that a person's mistake as
to his blood alcohol level is not a defense to a charge of DUI. Specifically, appellant contends
that he should have been allowed to present to the jury as a defense his good faith attempt to
follow published rules as to how much alcohol a person may consume before he is too
intoxicated to drive. Knowledge of one's intoxication is not, however, an element of the crime
of driving while intoxicated, and absence of such knowledge is not a defense. See NRS
484.379. See also Morgan v. Municipality of Anchorage, 643 P.2d 691, 692 (Alaska Ct.App.
1982). Indeed, because consumption of alcohol can prevent a person from knowing he is
intoxicated, accepting appellant's contention could vitiate the DUI statutes.
appellant's contention could vitiate the DUI statutes. See Burg, 673 P.2d at 741.
Appellant's contentions lack merit. Accordingly, we affirm the judgment of conviction.
____________
106 Nev. 396, 396 (1990) Agric. Aviation v. Clark Co. Bd. Comm'rs
AGRICULTURAL AVIATION ENGINEERING CO., a Nevada Corporation, dba
AGRINAUTICS, Appellant, v. THE BOARD OF CLARK COUNTY
COMMISSIONERS, COUNTY OF CLARK, a Political Subdivision of THE STATE
OF NEVADA, DEPARTMENT OF AVIATION, ROBERT N. BROADBENT,
Director, Respondents.
No. 20520
June 28, 1990 794 P.2d 710
judgment. Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Lessee brought action for damages against lessor for failure to replace leaky roof and for
consequential damages to lessee's business and property. The district court granted summary
judgment for lessor, and lessee appealed. The Supreme Court held that genuine issue of
material fact existed, precluding summary judgment for lessor, on intention of parties as to
exculpatory clause in maintenance agreement in lease and its relation to agreement as whole.
David Goldwater, Las Vegas, for Appellant.
Rex Bell, District Attorney, James L. Taylor, Deputy District Attorney, Clark County, for
Respondents.
1. Judgment.
Genuine issue of material fact existed, precluding summary judgment for lessor, on whether lessor was liable under exculpatory
clause in lease for maintenance and repair of roof.
2. Landlord and Tenant.
In order to determine intentions of lessor and lessee as to meaning of warehouse maintenance agreement, court should have
considered parties' intentions and credibility of their statements.
OPINION
Per Curiam:
This case involves a dispute over an exculpatory clause in a commercial lease between
appellant-lessee Agricultural Aviation Engineering (Agrinautics) and respondent-lessor Board
Clark County Commissioners (Clark County).
On May 1, 1973, Agrinautics entered into a twenty-year lease agreement with George and
Janis Sanders for a warehouse as is. In September 1980, the Sanders replaced the entire
roof of the warehouse; however, the new roof leaked. Storms in 1981, 1983 and 1985 further
damaged the new roof, until 1986, when it became clear that the roof was damaged beyond
repair. As a result, Agrinautics suffered damages to its property in excess of $10,000.00.
On September 30, 1986, Clark County purchased the property from Janis Sanders.
1
On
November 18, 1986, Agrinautics notified Clark County that the 1980 roof was not installed
according to code. On September 10, 1987, Agrinautics filed a complaint against Clark
County, alleging that Clark County was liable for its failure to replace the roof and for
consequential damages to the business and property of Agrinautics. The district court granted
Clark County's motion for summary judgment, finding that the exculpatory clause of
paragraph 7 of the lease excused Clark County from any liability for damages. Agrinautics
appealed.
On appeal, Agrinautics contends that the trial court erred in granting summary judgment to
Clark County, because the exculpatory clause in the lease is ambiguous in its terms and in
relation to the agreement as a whole. Therefore, there remains a genuine issue of disputed,
material fact that requires reversal of the district court order. We agree.
Paragraphs 4 and 7 and the maintenance agreement are ambiguous. Paragraphs 4 and 7 of
the lease provide:
4. Lessor shall be under no liability, obligation or expense whatsoever, except the roof
and walls, in connection with the maintenance or the repair of the leased property, after
turning over its possession, and any need for other repairs may be conclusively
presumed to be caused by the lessee, who hereby covenants to turn the premises over at
the end of the leased term in the same satisfactory conditions in which received,
subject to the exceptions set forth in Paragraph 3 of this Lease.
__________

1
George Sanders, president of Agrinautics, executed an Assignment of Lease on September 23, 1986,
conveying all his right, title and interest in the lease to Janis Sanders. This assignment was made retroactive to
May 3, 1974. Also, at approximately the same time, Clark County sued Agrinautics to condemn the leasehold
under eminent domain, culminating in an order of occupancy of the premises on December 1, 1988.
the leased term in the same satisfactory conditions in which received, subject to the
exceptions set forth in Paragraph 3 of this Lease.
7. Lessor shall not be liable for any loss or damage to property of Lessee or others on
the leased premises, nor shall Lessor be liable for any damage or injury to any person or
persons occurring upon said premises for any cause whatsoever, whether now existing,
such risks being assumed by Lessee. In this regard Lessee agrees to hold Lessor
harmless against any type of loss or damage to property or persons that may occur
during the term of the Lease.
Lessor hereby releases and forever discharges Lessee, his heirs, executors,
administrators and assigns of and from all manner of action and actions, cause and
causes of action, judgments, executions, debts, dues, claims, and demand pertaining
specifically to any claim Lessor might have against Lessee as a result of fire and/or
explosion.
(Emphasis added.)
At the same time, the parties executed a Maintenance Agreement in which Agrinautics
assumed all obligations of maintenance and repair, as provided in Paragraph 4 of said lease.
The agreement also provided that in consideration for Agrinautics' assumption of these
further obligations, the Sanders agreed to pay Agrinautics $500.00 per month. One year later,
on May 1, 1974, the parties amended six of the lease paragraphs not at issue here. On the one
hand, paragraph 7 provides that the lessor shall be absolved from any liability. On the other
hand, paragraph 4 indicates that the lessor would be absolved from liability except with
respect to the roof and walls. In addition, the parties executed a maintenance agreement in
which Agrinautics assumed all obligations of maintenance and repair. The lessor deducted
$500.00 from the rent in consideration for Agrinautics assuming those obligations.
[Headnote 1, 2]
This lease is ambiguous because the paragraphs in question are reasonably susceptible to
different constructions or interpretations. See Burbridge v. Howard University, 305 A.2d 245,
247 (D.C.App. 1973) (quoting 17A C.J.S. Contracts 294 at 34-35 (1963)). One way to read
the lease is that the lessor is absolved from any liability for the lessee's property except if the
liability involved the walls or the roof. Another way to read the lease and the maintenance
agreement is that because the lessee assumed all obligations pertaining to maintenance and
repair, the lessor is absolved from any liability for maintenance and replacement of the roof
and walls.
the roof and walls. In Flyge v. Flynn, 63 Nev. 201, 239-240, 166 P.2d 539, 556 (1946), this
court stated:
In the determination of the meaning of an indefinite or ambiguous contract, the
interpretation placed upon the contract by the parties themselves is to be considered by
the court and is entitled to great, if not controlling, influence in ascertaining their
understanding of its terms. In fact the courts will generally follow such practical
interpretation of a doubtful contract. It is to be assumed that parties to a contract know
best what was meant by its terms and are the least likely to be mistaken as to its
intention . . . .
To resolve ambiguity, according to Flynn, the court should look to the intention of the
parties to clarify the lease. Agrinautics provided an affidavit by George Sanders, the chief
executive officer of Agrinautics and former owner of the warehouse at issue here. Sanders
stated that the parties intended the lessor to replace the roofing when maintenance and repair
by the lessee was no longer feasible. Sanders further stated that the Janis Sanders'
replacement of the roof at her cost in September 1980 was in accordance with the terms of the
lease. Janis Sanders subsequently repaired the roof on two occasions after the roof was
damaged due to high winds. Although Sanders' affidavit appeared questionable because of his
involvement with Agrinautics, courts have allowed such testimony, and stated that, to the
extent resolution of the question turns on the credibility of the parties' testimony, this question
should be referred to the trier of fact who observes the witnesses. See D. M. Development Co.
v. Osburn, 621 P.2d 1186, 1191 (Or.App. 1980).
The Pennsylvania Superior Court addressed a situation similar to the instant case in
Richard's 5 & 10 v. Brooks Harvey Realty INV, 399 A.2d 1103 (Pa.Supp., 1979). Brooks
involved a lease for a store space, which stated that the lessor was obligated to keep the roof
and the exterior walls of the store in proper repair, provided the lessee gave the lessor written
notice that such repairs were needed. The lease also contained an exculpatory clause. When
the roof began to leak, lessee gave the lessor the proper notice, but the lessor failed to repair
the roof. Id. at 1104. The lessee brought an action against the lessor. The lessor claimed that
he was immune from liability because of the exculpatory clause. The court in Brooks stated:
It is settled that even though an exculpatory clause may be generally valid, additional
standards must be met before it will be interpreted so as to relieve a person of liability
that the law would otherwise impose. These standards are:
(1) contracts providing for immunity from liability for negligence must be
construed strictly since they are not favorite of the law . . .;
negligence must be construed strictly since they are not favorite of the law . . .; (2)
such contracts must spell out the intention of the party with the greatest particularity .
. . and show the intent to release from liability beyond doubt by express stipulation
and no inference from the words of general import can establish it . . . (3) such
contracts must be construed with every intendment against the party who seeks
immunity from liability . . . (4) the burden to establish immunity from liability is upon
the party who asserts such immunity . . . [Citations omitted] . . . .
Id. at 1105. In applying these standards, the Brooks court concluded that because the
exculpatory language was ambiguous, the intentions of the parties controlled as to whether
the lessor should be exonerated from damages.
We adopt the reasoning in Brooks and hold that the district court should have resolved the
ambiguity of the lease by examining the intentions of the parties. To determine the parties'
intentions, the credibility of their statements must be decided, which should be an issue for
consideration by the trier of fact. See Osburn, supra. Therefore, the district court erred in
concluding that there existed no genuine issue of material fact pertaining to the lease
paragraphs. Accordingly, the district court's order is reversed, and this case is remanded for
2

____________
106 Nev. 400, 400 (1990) Convention Properties v. Washoe Co. Assessor
CONVENTION PROPERTIES and NELL J. REDFIELD TRUST, Appellants, v. WASHOE
COUNTY ASSESSOR, WASHOE COUNTY TREASURER, COUNTY OF
WASHOE and NEVADA TAX COMMISSION, Respondents.
No. 20629
June 28, 1990 793 P.2d 1332
Appeal from a judgment affirming a decision of the State Board of Equalization that the
subject property had been converted to a higher use. Second Judicial District Court, Washoe
County; Robert L. Schouweiler, Judge.
Landowners appealed from order of the district court which affirmed decision of State
Board of Equalization that property had been converted to a higher use and thus lost its
eligibility for agricultural tax deferment. The Supreme Court held that property had been
converted to a higher use when a parcel map which created a non-agricultural use was
approved and accepted by the city.
__________

2
The Honorable Robert E. Rose, Justice, voluntarily recused himself from participation in the decision of
this appeal.
had been converted to a higher use when a parcel map which created a non-agricultural use
was approved and accepted by the city.
Affirmed.
Stephen Conrad Mollath, Reno, for Appellants.
Brian McKay, Attorney General, Kateri M. Cavin, Deputy Attorney General, Carson City;
Mills Lane, District Attorney, Chester H. Adams, Deputy District Attorney, Washoe County,
for Respondents.
1. Taxation.
Conversion of land to a higher use, resulting in loss of agricultural tax deferment, occurred when parcel map which created a
non-agricultural use was approved and accepted by the city and landowners applied for and were granted changes in the master plan,
tentative map, and zoning, despite claim that approval was only conditional. NRS 361A.031.
2. Statutes.
There is a general presumption in favor of prospective application of statutes, unless the legislature clearly manifests its intent to
do otherwise.
Merely because tax statute operates on facts which were in existence before its enactment does not render the statute retroactive.
4. Taxation.
Statute providing for loss of eligibility for agricultural tax deferment when property is converted to a higher use could be applied to
property which was converted to a higher use prior to the enactment of the statute. NRS 361A.031.
5. Taxation.
Property is converted to a higher use, and thus loses its eligibility for agricultural tax deferment, upon the existence or recordation
of a final map or parcel map creates a non-agricultural use. NRS 361A.031.
OPINION
Per Curiam:
Prior to 1987, appellants' property in Reno was assessed based on an agricultural use tax
deferment. Subsequently, the Washoe County Assessor determined that, pursuant to
amendments of NRS 361A.031, the property had been converted to a higher use because of
appellants' actions towards selling the property for commercial and residential development.
Accordingly, the assessor applied a higher tax rate and also sought payment of deferred taxes
as required by statute. The total amount due was over $529,000.00. Following appeals to the
county and state boards of equalization, appellants sought injunctive relief, mandamus,
and declaratory relief from the district court, all of which were denied.
equalization, appellants sought injunctive relief, mandamus, and declaratory relief from the
district court, all of which were denied. The district court concluded that the assessor had
properly declared that, as of July 1, 1988, the property had been converted to a higher use by
virtue of the recordation and existence of a parcel map which created parcels not for
agricultural use. The district court affirmed the conclusion that appellants' property had been
converted to a higher use and was no longer eligible for an agricultural tax deferment.
[Headnote 1]
This appeal turns on the meaning of the words converted to a higher use in NRS
361A.031.
1
The assessor claims that certain properties are converted from agricultural use to
a higher use by virtue of the existence and recordation of a parcel map which creates parcels
not intended for agricultural use. In 1987, a parcel map which created a non-agricultural use,
namely various residential and commercial uses, was approved and accepted by the City of
Reno. Moreover, in 1987, appellants applied for and were granted changes in the master plan,
tentative map, and zoning. Consequently, we affirm the district court's decision that a
conversion took place under NRS 361A.031.
[Headnotes 2-4]
Appellants contend that because actions taken by them relative to development of the
property occurred before the 1988 amendment of NRS 361A.031, the statute cannot be
applied retroactively to determine that the property had been converted to a higher use.
There is a general presumption in favor of prospective application of statutes unless the
legislature clearly manifests its intent to do otherwise. Boyes v. Valley Bank, 101 Nev. 287,
291, 701 P.2d 1008, 1011 (1985); Montesano v. Donrey Media Group, 99 Nev. 644, 650 n.5,
668 P.2d 1081, 1085 n.5 (1983), cert. denied, 466 U.S. 959 (1984). As the court below noted,
the assessor based the assessment on the property as the property existed on July 1, 19SS,"
the effective date of NRS 361A.031.
__________

1
NRS 361A.031, as amended effective July 1, 1988, provides as follows:
361A.031 Converted to a higher use defined. Converted to a higher use means:
1. A physical alteration of the surface of the property enabling it to be used for a higher use;
2. The recording of a final map or parcel map, as those terms are defined in NRS 278.010, which
creates one or more parcels not intended for agricultural use;
3. The existence of a final map or parcel map, as those terms are defined in NRS 278.010, which
creates one or more parcels not intended for agricultural use; or
4. A change in zoning to a higher use made at the request of the owner.
existed on July 1, 1988, the effective date of NRS 361A.031. Merely because a tax statute
operates on facts which were in existence before its enactment does not render the statute
retroactive. Westfield-Palos Verdes Co. v. City of Rancho Palos Verdes, 73 Cal.App.3d 486,
493-96 (Ct.App. 1977). Changes in the computation of taxes are one of the usual hazards of
business. Id. at 494.
Moreover, the purpose of the amendment of NRS 361A.031 was to close a loophole in the
law which allowed developers to take steps toward development yet reap the tax benefits of
agricultural use. See Minutes of the Nevada State Legislature, Senate and Assembly
Committees on Taxation, Assembly Bill No. 290, April 7 and May 21, 1987, respectively.
The interpretation and application of the statute in this case were consistent with the intent of
the legislature. Accordingly, the district court did not err in concluding that the statute applied
prospectively.
[Headnote 5]
Appellants make much of the fact that approval of their map was conditional, not final.
However, the statute simply requires that a final map or parcel map be recorded or exist. See
NRS 361A.031(2) and (3). Clearly, a parcel map existed in this case. The map itself is
contained in the record, and includes a notation that it has been approved and accepted by
the parcel map committee of the City of Reno, Washoe County, Nevada, this 9th day of
October, 1987. Conditional approval of this map was granted by the parcel map committee on
the 22nd day of September, 1987.
2

In addition, on March 4, 1987, the city approved, at appellants' request, amendments to the
master plan by ordinance and changes in zoning and the tentative map subject to certain
conditions. Thus, [a] change in zoning to a higher use made at the request of the owner"
has taken place.
__________

2
The parties exhibit some confusion about the expression parcel not intended for agricultural use. The
parties seem to believe that the conversion occurs whenever the property owner intends to use the property for
non-agricultural use. This is a strained interpretation which would unreasonably require inquiry into the
subjective intentions of property owners and would put an impossible burden on the taxing authority. Use of the
passive voice in the expression not intended for agricultural use might lead some readers to think that the
legislature was addressing the subjective intentions of landowners, but the sensible reading of the term is merely
non-agricultural use. Subparagraph 2 would then read:
The recording of a final map or parcel map, as those terms are defined in NRS 278.010, which creates
one or more parcels for non-agriculture use.
Therefore, property is converted to a higher use upon the existence or recordation of a final map or parcel map
which creates a non-agricultural use.
request of the owner has taken place. NRS 361A.031(4). The statute does not require that
the zone change be final; it is therefore immaterial that zoning approval was conditional.
Moreover, appellants' own brochure claims that the master site plan and zoning were
approved by the City of Reno. It makes no mention of the fact that the zoning is conditional.
Therefore, the district court did not err in determining that the developers' actions fall within
the definition of converted to a higher use as set forth in NRS 361A.031.
We are not unmindful that this interpretation of NRS 361A.031 may work a hardship on
landowners as that statute affects the application of NRS 361A.280. However, the application
of NRS 361A.280 to appellants' land is not at issue on this appeal.
Accordingly, the judgment of the district court is affirmed.
____________
106 Nev. 404, 404 (1990) Fuller v. Fuller
KATIE LEE FULLER, Appellant/Cross-Respondent, v. JAMES GEORGE FULLER,
Respondent/Cross-Appellant.
No. 20026
KATIE LEE FULLER, Appellant, v. JAMES GEORGE FULLER, Respondent.
No. 20109
June 28, 1990 793 P.2d 1334
Appeal and cross-appeal from orders of the district court arising from the property
distribution in the parties' judgment and decree of divorce. Second Judicial District Court,
Washoe County; Peter I. Breen, Judge.
Judgment was entered by the district court arising from the property distribution in the
parties' judgment and decree of divorce. Wife appealed, and husband cross-appealed. The
Supreme Court held that: (1) the court properly denied wife's motion to set aside the decree of
divorce, and (2) the court improperly denied husband's motion requesting that wife pay her
share of a debt secured by a community property condominium.
Affirmed in part, reversed in part, and remanded.
Muriel R. Skelly, Reno, for Appellant/Cross-Respondent.
Lionel Sawyer & Collins and Richard Horton, Reno, for Respondent/Cross-Appellant.
1. Divorce.
Where court honored wife's request for parties' interest in partnership despite husband's testimony that partnership was in debt and
that he would be responsible for 12.4 percent of that debt, wife was not entitled to set aside divorce decree on ground that there were
additional partnership liabilities not represented by debt figure testified to by husband or that husband hid other liabilities of
partnership; wife offered no evidence of those claims.
2. Divorce.
Court lacked jurisdiction to modify divorce decree by concluding that certain obligation was husband's separate debt rather than
community property debt, where divorce decree identified that obligation as community property debt; no rule or statute provided for
such modification.
OPINION
Per Curiam:
The only issue of merit before us is whether the district court erred by denying
respondent's motion requesting that appellant pay her share of a debt secured by a community
property condominium. We conclude that the district court did err.
FACTS
At the divorce trial of James and Katie Fuller, Katie made it clear that she wanted to
receive the parties' interests in the North Shore-Tahoe Partnership (Partnership) and other
properties. She continued in her desire despite James' testimony that the partnership was
approximately five and a half million dollars in debt and that he would be responsible for
12.4 percent of this debt. Pursuant to the judgment and decree of divorce, the district court
honored Katie's request and awarded her all of the parties' interests in the North Shore-Tahoe
Partnership and the other properties in consideration for her agreement to hold James
harmless from all claims arising from the partnership and the other properties. Katie
subsequently made a motion to set aside the divorce decree, arguing that James hid the
liabilities of the partnership from her and the court. The district court denied this motion.
In the property distribution, the district court ordered that the community property marital
dwelling be sold with reasonable promptness and the proceeds from the sale be applied
toward several debts. One of these debts was an obligation of approximately $93,000.00
owed to William Cahill, the Cahill Obligation. The Cahill Obligation was secured by
James' separate interest in certain properties and a deed of trust on a community property
condominium located at Incline Village, Nevada. In addition, the district court awarded the
condominium as separate property to James.
addition, the district court awarded the condominium as separate property to James. Katie's
appeal of the judgment and decree was dismissed by this court on April 4, 1985.
However, before the sale of the martial dwelling, James sold the condominium and the
proceeds from the sale were used to pay off the Cahill Obligation in full. Consequently,
James filed a motion that Katie should reimburse him one-half of the Cahill Obligation. The
district court, sitting with a different judge, denied the motion and found the Cahill
Obligation was James' separate debt.
DISCUSSION
[Headnote 1]
On appeal, Katie argues that James committed fraud upon the lower court by purposefully
preventing the value of the North Shore-Tahoe Partnership from being decided below.
Accordingly, Katie contends the decree of divorce should be set aside.
This contention lacks merit. The extent of the partnership's liabilities and James' obligation
for those liabilities were freely brought out in open court by James. Also, Katie offers no
evidence whatsoever that there are additional partnership liabilities not represented by the
five and a half million dollar debt figure or that James hid other liabilities of the partnership.
Thus, because James did not commit fraud upon the court, the district court correctly denied
Katie's Motion to Set Aside the Decree of Divorce.
[Headnote 2]
On cross-appeal, James insists the district court erred by denying his motion that Katie
reimburse him for her share of the Cahill Obligation. Specifically, James argues the Cahill
Obligation was a community debt and the district court lacked jurisdiction to modify the
original judgment and decree by deciding the Cahill Obligation was his separate debt.
This argument has merit. By finding that the condominium was community property in the
judgment and decree of divorce, the district court impliedly found that the Cahill Obligation
was a community debt.
The district court does not have jurisdiction to modify a decree of divorce unless a rule or
statute so provides. See Kramer v. Kramer, 96 Nev. 759, 761, 616 P.2d 395, 397 (1980).
Here, there is no such rule or statute; consequently, the district court lacked jurisdiction to
modify the divorce decree by concluding that the Cahill Obligation was James' separate debt
rather than a community property debt. Id. at 762, 616 P.2d at 397-398. As a result, the
original divorce decree, including the provision as to payment of the Cahill Obligation, is res
judicata.
payment of the Cahill Obligation, is res judicata. See Williams v. Williams (Davis), 86 Nev.
47, 48, 464 P.2d 466, 467 (1970). Thus, we reverse that portion of the district court order
declaring the Cahill Obligation to be the separate debt of James.
Therefore, we affirm the court below except that part of the order denying James' motion
requesting that Katie pay her share of the Cahill Obligation. Accordingly, we reverse the
order of the district court denying James' motion and remand this case to the district court to
determine the amount of reimbursement to be paid by James.
Upon review of the record, we conclude that the parties' remaining contentions lack merit.
1

____________
106 Nev. 407, 407 (1990) Awad v. Wright
JASON A. AWAD, ESQ., Appellant, v. TERRENCE LEE WRIGHT, and THE EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE
COUNTY OF CLARK; THE HONORABLE MIRIAM SHEARING, DISTRICT
JUDGE, Respondent.
No. 20039
June 28, 1990 794 P.2d 713
Appeal from an order of the district court granting respondents' motion to strike
peremptory challenge, finding appellant in contempt of court, ordering appellant to pay a fine
of $1,000.00 and ordering appellant to pay $1000.00 in attorney's fees to respondent. Eighth
Judicial District Court, Clark County; Miriam Shearing, Judge.
In divorce proceeding, the district court found wife's attorney in contempt of court, and
attorney appealed. The Supreme Court held that: (1) district court lacked jurisdiction to hold
wife's attorney in contempt; (2) trial judge should have recused herself; and (3) attorney was
entitled to evidentiary hearing.
Reversed.
Jason A. Awad and Michael V. Dentico, Las Vegas, for Appellant.
Jimmerson & Davis and Lynn M. Hansen, Las Vegas; Rex Bell, District Attorney, Clark
County, for Respondents.
__________

1
The Honorable Charles E. Springer, Justice, voluntarily recused himself from participation in the decision
of this appeal.
106 Nev. 407, 408 (1990) Awad v. Wright
1. Contempt.
Before court can assume jurisdiction to hold person in contempt, affidavit must be filed.
2. Contempt.
District court lacked jurisdiction to hold wife's attorney in contempt, where there was no affidavit submitted to support order to
show cause.
3. Contempt.
Order to show cause complaining of alleged contemptuous conduct of wife and her attorney in recording property settlement
agreement with county recorder's office after district court had ordered all records in the matter to be sealed should have been
accompanied by affidavit, as complained of conduct was not committed in immediate view and presence of court or judge in
chambers. NRS 22.030, subd. 2.
4. Judges.
In case of contempt arising outside view of court, judge should have recused herself in response to peremptory challenge. NRS
22.030, subd. 3.
5. Contempt.
Wife's attorney was entitled to evidentiary hearing in proceedings on motion to hold him in contempt for recording property
settlement agreement with county recorder's office after court had ordered all records in the matter to be sealed, especially where there
was a dispute between the parties as to whether attorney actually was aware of notice to seal records.
OPINION
Per Curiam:
Frances Wright and respondent Terrence Lee Wright were granted a divorce by the district
court on July 28, 1988. Appellant Jason Awad was Frances Wright's attorney in the divorce
proceeding. As part of the divorce decree, the district court adopted and ratified a property
settlement agreement between the parties. The district court had earlier ordered all records in
this matter to be sealed. On February 13, 1989, Terrence Wright moved the district court to
hold Awad and his client Frances Wright in contempt of court, because they had recorded the
property settlement agreement with the county recorder's office on January 31, 1989. Wright
alleges that Awad's conduct was in violation of the court order. Awad filed a peremptory
challenge to District Court Judge Miriam Shearing with respect to the hearing on the
contempt citation. Wright moved to strike the peremptory challenge. On March 13, 1989,
following a hearing, Judge Shearing ordered the property settlement agreement expunged
from the recorder's office and entered an order holding Awad in contempt of court and
sanctioning him a total of $2,000.00. Awad now appeals the district court's order.
Awad first contends that the trial court lacked jurisdiction to hold him in contempt
because there was no affidavit submitted to support the order to show cause.
106 Nev. 407, 409 (1990) Awad v. Wright
hold him in contempt because there was no affidavit submitted to support the order to show
cause.
[Headnotes 1, 2]
The law is clear in Nevada that before a court can assume jurisdiction to hold a person in
contempt, an affidavit must be filed. See Steeves v. District Court, 59 Nev. 405, 413, 94 P.2d
1093, 1095-96 (1939). Moreover, the court in Lutz v. District Court, 29 Nev. 152, 86 P. 445
(1906), stated that the affidavit showed no more than did the finding, and the affidavit itself
is jurisdictional. Id. at 153, 86 P. at 445 (emphasis added). In sum, because Wright did not
file an affidavit with the order to show cause, the district court did not have jurisdiction to
hold Awad in contempt of court.
[Headnote 3]
Awad next contends that the order to show cause complaining of the alleged contemptuous
conduct should have been accompanied by an affidavit pursuant to NRS 22.030(2), because
the complained of conduct was not committed in the immediate view and presence of the
court or judge in chambers. We agree.
NRS 22.030(2) provides in relevant part: When the contempt is not committed in the
immediate view and presence of the court or judge at chambers, an affidavit shall be
presented to the court or judge of the facts constituting the contempt, or a statement of the
facts by the masters or arbitrators.
Awad recorded the property settlement agreement at the county recorder's office.
Therefore, Awad did not act in the immediate view and presence of the court or judge at
chambers. Even if we were to believe that the act of recording the property settlement
agreement was in violation of the court's order, NRS 22.030(2) specifically requires that an
affidavit be presented to the court or judge of the facts constituting the contempt. While
courts have inherent power to protect and defend their decrees by contempt proceedings,
Noble v. Noble, 86 Nev. 459, 463, 470 P.2d 430, 432 (1970), they are nevertheless bound by
statute. Brown v. Brown, 101 Nev. 144, 146, 696 P.2d 999, 1000 (1985). Here, NRS
22.030(2) specifically requires an affidavit to be submitted at the contempt proceeding. Upon
review of the record, it appears that Terrence Wright did not submit the required affidavit.
Courts have held that affidavits are critical in contempt proceedings. In Whitle v.
Seehusen, 748 P.2d 1382, 1387 (Idaho App. 1987), the court stated that the court presiding
over indirect contempt proceedings acquires no jurisdiction to proceed until a sufficient
affidavit is presented. Id. at 1387.
Additionally, in Jones v. Jones, 428 P.2d 497 (Idaho 1967), the court held that where the
affidavit fails to allege all essential material facts, the deficiency cannot be cured by proof
at a hearing. Id. at 500.
106 Nev. 407, 410 (1990) Awad v. Wright
court held that where the affidavit fails to allege all essential material facts, the deficiency
cannot be cured by proof at a hearing. Id. at 500. Here, an affidavit would be crucial because
Awad contends that he was not aware of the court order to seal the records. Because no
affidavit was submitted by Terrence Wright as required by NRS 22.030(2), the order of
contempt was in violation of NRS 22.030(2).
[Headnote 4]
Awad argues that Judge Shearing committed reversible error when she did not recuse
herself under Awad's NRS 22.030(3) peremptory challenge. We agree.
NRS 22.030(3) provides in pertinent part: In all cases of contempt arising without the
immediate view of the court, the judge of such court in whose contempt the defendant is
alleged to be shall not preside at such trial over the objection of the defendant.
In the present case, the order alleged to have been violated was entered by Judge Shearing.
On February 22, 1989, Awad filed a peremptory challenge objecting to Judge Shearing's
presiding over the contempt proceedings. NRS 22.030(3) clearly applies to the facts of this
case, and the proper objection was timely and properly made. Accordingly, the contempt
proceedings should have been heard by a different judge. Because Judge Shearing did not
recuse herself, she violated NRS 22.030.
In McCormick v. The Sixth Judicial Court, 67 Nev. 318, 218 P.2d 939 (1950), the court
stated that in cases of contempt arising outside the immediate view and presence of the court,
the judge of such court in whose contempt the defendant is alleged to be shall not preside at
trial over the objection of the defendant. The court in McCormick discussed section 8943 of
Nevada Compiled Law 1929, the very law which gave birth to NRS 22.030. The McCormick
court stated that:
The legislature has thus declared the public policy of the state, not so much for the
protection of an individual litigant, as for the preservation of the respect and high
regard the public has always maintained for the courts . . . . And so the legislature of
this state felt it important to eliminate the possibility of a reasonable apprehension that
a judge might not be entirely free from bias in enforcing the orders and decrees of the
court of which [she] he is the judge.
Id. at 331-32, 218 P.2d at 945 (emphasis added).
Judge Shearing's refusal to recuse herself, coupled with her fining Awad $2,000.00 when
the maximum fine provided by NRS 22.100 was only $500.00, are strong indications of a
bias against Awad.
106 Nev. 407, 411 (1990) Awad v. Wright
22.100
1
was only $500.00, are strong indications of a bias against Awad. The purpose of the
legislature in passing an automatic recusal was precisely to avoid such situations. Based on
NRS 22.030 and on the McCormick case, Judge Shearing committed reversible error when
she did not recuse herself when Awad requested her to do so. We therefore reverse the order
holding Awad in contempt because Judge Shearing presided over a hearing regarding charges
which arose outside the immediate view and presence of her court, and Awad filed a timely
and proper objection to her presiding.
[Headnote 5]
Awad next contends that the district court committed reversible error in denying his
request for an evidentiary hearing during the contempt proceedings. We agree.
Even if the trial court had acquired jurisdiction, the need for an evidentiary hearing is
especially significant in this case where there is a dispute between the parties as to whether
Awad actually was aware of the notice to seal records.
In Burgers v. Maiben, 652 P.2d 1320 (Utah 1982), the Utah Supreme Court enunciated the
due process requirement in indirect contempt cases. The court stated that,
in a prosecution for contempt, not committed in the presence of the court, due process
requires that the person charged be advised of the nature of the action against him, have
assistance of counsel, if requested, have the right to confront witnesses, and have the
right to offer testimony on his behalf.
Id. at 1322.
In the instant case, Awad's conduct involved recording the property settlement agreement
in the county recorder's office. Even if this conduct could be characterized as contemptuous,
it could only be characterized as an indirect contempt because the conduct occurred outside
the court's view. Awad requested an evidentiary hearing concerning this matter, but Judge
Shearing denied his request. According to Burgers, for a contempt charge to stand, the
contemnor should be afforded the opportunity to offer testimony on his behalf. When the
court denied Awad an evidentiary hearing, it violated his due process rights. Therefore, the
court committed reversible error in denying his request for an evidentiary hearing.
__________

1
NRS 22.100 reads in pertinent part as follows:
Penalty for contempt. Upon the answer and evidence taken, the court or judge or jury, as the case may
be, shall determine whether the person proceeded against is guilty of the contempt charged; and if it be
found that he is guilty of the contempt, a fine may be imposed on him not exceeding $500 . . . .
106 Nev. 407, 412 (1990) Awad v. Wright
the court committed reversible error in denying his request for an evidentiary hearing. See
also State v. Halverson, 754 P.2d 1228, 1230 (Utah Ct.App. 1988).
Because of the multiple errors addressed above, we reverse the trial court's order holding
Awad in contempt and sanctioning him a total of $2,000.00.
___________
106 Nev. 412, 412 (1990) Daniel v. Baker
CAROLYN NELL DANIEL, Appellant/Cross-Respondent, v. MARIA A. BAKER, Special
Administratrix of the Estate of THOMAS HENRY DANIEL, JR.,
No. 19593
June 28, 1990 794 P.2d 345
Appeal and cross-appeal from decree of divorce. Eighth Judicial District Court, Clark
County; Joseph S. Pavlikowski, Judge.
Action was brought for divorce. The district court entered decree of divorce from which
wife appealed. The Supreme Court held that failure to award wife permanent or lump sum
alimony was abuse of discretion.
Mark Brandenburg, Las Vegas, for Appellant/Cross-Respondent.
Joseph and Daniel Foley, Las Vegas, For Respondent/Cross-Appellant.
1. Divorce.
Wife's claim that divorce court erred in failing to award permanent or lump sum alimony did not abate despite husband's death
while case was on appeal. NRS 125.150, subd. 5.
2. Divorce.
Failure to award wife permanent or lump sum alimony was abuse of discretion; at time of divorce, husband had much shorter life
expectancy than wife, and, because of his substantial wealth, award of permanent or lump sum alimony would not have substantially
depleted his assets. NRS 125.150, subd. 4.
OPINION
Per Curiam:
Appellant/cross-respondent Carolyn Nell Daniel (Carol) and respondentJcross-appellant
Thomas Henry Daniel, Jr.
respondent/cross-appellant Thomas Henry Daniel, Jr. (Tom) met in Georgia in 1967. Carol,
who was twenty years younger than Tom, had an eighth-grade education and was working in
a bowling alley. Tom had a post-graduate education and had retired from his family's life
insurance business. Shortly after they started dating, Carol became Tom's live-in
housekeeper. On March 12, 1972, they were married in Las Vegas. Tom was sixty-three and
Carol was forty-three. At the time of their marriage, Tom had Carol sign an antenuptial
agreement and a postnuptial agreement (the agreement), in which Carol purportedly agreed
to give up her rights to community property and alimony in exchange for $5,000.00.
After fifteen years of marriage, Carol filed for divorce. A bifurcated proceeding followed.
One proceeding concerned the validity of the agreement. A hearing was held before a
domestic relations referee who determined that the agreement was unenforceable with respect
to alimony and community property. The district court adopted and affirmed that ruling. The
second proceeding concerned alimony and property issues. The district court determined that
Carol had almost no assets. It further determined that Tom's net worth was approximately two
million dollars and his income was nearly $10,000.00 per month. The district court awarded
Carol alimony of $1,250.00 per month, and determined that Tom had made a gift to Carol of
a Mercedes Benz and that Carol was entitled to $15,000.00 in attorney's fees.
Carol, who is now sixty, filed an appeal, in which she argued that the amounts of alimony
and attorney's fees were too low and that she was entitled to an award of alimony which
would extend beyond Tom's death. Tom filed a cross-appeal, in which he challenged the
determinations regarding the validity of the agreement and the making of a gift.
On the eve of the oral argument before this court, Tom, who was eighty years old, passed
away. We requested additional briefing regarding the impact of Tom's death on the appeal
and cross-appeal. Because we hold that the district court erred in not awarding Carol alimony
to extend beyond Tom's death, we reverse and remand this case to the district court for a
determination of the proper amount of permanent or lump sum alimony to be awarded. We
affirm all other aspects of the district court's decision.
[Headnote 1]
Carol contends that the district court abused its discretion when it denied her request for
permanent or lump sum alimony. Tom's counsel responds that this court should no longer
consider issues raised by Carol's appeal because the general rule is that when a party to an
appeal of a divorce decree dies, the appeal abates unless property rights are involved. See,
e.g., Bank v. Wolff, 66 Nev. 51, 54
abates unless property rights are involved. See, e.g., Bank v. Wolff, 66 Nev. 51, 54-55, 202
P.2d 878, 880 (1949). None of the cases cited by Tom dealt with the issue of permanent or
lump sum alimony, however. NRS 125.150(5) states that [i]n the event of the death of either
party . . . all the payments required by the decree must cease, unless it was otherwise ordered
by the court. (Emphasis added.) Because Carol alleges that it was error for the court not to
have otherwise ordered permanent or lump sum alimony, the proper application of NRS
125.150(5) is brought to issue by this appeal. Accordingly, we hold that this aspect of Carol's
appeal does not abate despite Tom's untimely death. Cf. Kishner v. Kishner, 93 Nev. 220,
225, 562 P.2d 493, 496 (1977) (lump sum alimony, whether payable in lump sum or
installments, is not subject to termination upon the death of one of the parties).
[Headnote 2]
This court will not disturb the district court's grant or denial of permanent or lump sum
alimony absent an abuse of discretion. See Fenkell v. Fenkell, 86 Nev. 397, 402, 469 P.2d
701, 704 (1970). NRS 125.150(4) provides that the court may set apart a portion of the
husband's property for the wife's support as is deemed just and equitable. This provision
allows a lump sum award. Sargeant v. Sargeant, 88 Nev. 223, 229, 495 P.2d 618, 622 (1972).
At the time of the divorce, Tom, who was much older than Carol, was in poor health and had
a much shorter life expectancy than Carol. Because of his substantial wealth, an award of
permanent or lump sum alimony would not have substantially depleted his assets. Carol, by
contrast, had few assets or hopes of employing herself. Tom's death left her with essentially
no means of support, yet she likely has many more years to live. An award of alimony to
extend beyond Tom's death would, under the circumstances of this case, have been just and
equitable. Accordingly, we hold that the district court abused its discretion in not awarding
permanent or lump sum alimony. Cf. id. at 228-29, 495 P.2d at 621-22 (lump sum award of
over $331,000.00 upheld where husband's net worth was three million dollars, husband was
twenty years older and had a much shorter life expectancy than wife, and possibility existed
that husband might dissolve his assets in recrimination against wife).
Consequently, we reverse and remand this case to the district court for a determination of
the proper amount of permanent or lump sum alimony to be awarded. We have carefully
reviewed the other issues raised on appeal and cross-appeal, and determine that they lack
merit or abated upon Tom's death. Accordingly, we affirm all other aspects of the district
court's decision.
____________
106 Nev. 415, 415 (1990) Phillips v. Parker
ALAN J. PHILLIPS and LOIS ROSEN, Appellants, v. FREDERICK J. PARKER,
Respondent.
No. 19950
June 28, 1990 794 P.2d 716
Appeal from district court denial of motion to compel arbitration and stay judicial
proceedings. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Alleged minority shareholder of closely held corporation filed action alleging civil RICO
violations, wrongful removal of a director, breach of fiduciary duty, constructive fraud and
conversion. Defendants moved to compel arbitration. The district court denied request for
arbitration, and defendants appealed. The Supreme Court held that despite attempted
avoidance of written agreement, complaint was at least partially dependent on terms of
agreement because of nature of dispute and allegations asserted, and thus arbitration was
required under agreement's arbitration clause.
Reversed.
Kevin C. Sewell, Las Vegas, for Appellant.
Lipow & Harris, Los Angeles, California, and Ecker & Standish, Las Vegas, for
Respondent.
1. Arbitration.
Amended complaint asserting cause of action including civil RICO violations, wrongful removal of a director, breach of fiduciary
duty, constructive fraud and conversion, asserted rights deriving at least in part from rights plaintiff allegedly received pursuant to
business agreement and thus were subject to arbitration clause of agreement; at least some of the causes of action depended on
plaintiff's status as minority shareholder in closely held corporation with accompanying statutory and common law rights, and the only
documentary evidence of stock ownership was agreement containing arbitration clause.
2. Arbitration.
Alleged abandonment or repudiation of business agreement did not preclude right to arbitrate.
OPINION
Per Curiam:
The determinative issue in this case is whether the complaint and the allegations made
therein are subject to the arbitration clause contained in a written agreement between the
parties. We conclude that despite an attempted avoidance of the agreement, because of the
nature of the dispute and the allegations asserted, the complaint is, at least in part,
dependent upon the terms of the agreement.
because of the nature of the dispute and the allegations asserted, the complaint is, at least in
part, dependent upon the terms of the agreement. Evidentiary reliance upon an agreement
containing an arbitration clause requires arbitration of the dispute. Therefore, we reverse the
decision of the district court and order arbitration.
The Facts
Respondent Frederick J. Parker (Parker) and Appellant Alan J. Phillips (Phillips) agreed to
start a mail service and pre-sorting business and signed an agreement setting out the
substance of their understanding. This agreement contained a rather broadly drafted
arbitration clause which provided that
Any controvercy [sic] or claim arrising [sic] out of, or relating to this agreement, or the
breach thereof shall be settled by arbitration which shall be conducted in accordance
with the rules of the American Arbitration Association, and judgement [sic] upon
award rendered may be entered and enforced in any court having jurisdiction thereof.
The parties agree that the arbitrator shall be a neutral person.
Phillips claims to have developed reservations about the agreement shortly after its signing
because of Parker's financial problems. Consequently, shortly thereafter, Phillips formed a
different corporation with business objectives identical to the corporation contemplated in the
agreement. Parker is alleged to have willingly become an employee and officer of this
corporation, but not a part owner as provided in the original agreement.
Several months after formation of the corporation, Phillips terminated Parker and removed
him from the board of directors. Parker subsequently sued, alleging at least one cause of
action related to the agreement and other independent causes related to the alleged fraudulent
mismanagement and liquidation of the corporation. Phillips and Rosen,
1
relying on the
arbitration clause in the agreement, moved to compel arbitration. Parker moved to amend the
complaint to omit any reference to the agreement and opposed arbitration. Leave to amend
the complaint was granted and the district court denied the request for arbitration. The precise
grounds for denial of the motion to compel arbitration are unknown as the district court's
order contains no reasoning or explanation and is simply a bare order of denial only.
Discussion
NRS 38.035 states: A written agreement to submit any existing controversy to
arbitration or a provision in a written contract to submit to arbitration any controversy
thereafter arising between the parties is valid, enforceable and irrevocable save upon
such grounds as exist at law or in equity for the revocation of any contract.
__________

1
Appellant Rosen was named in Parker's complaint as having collaborated with Phillips in various ways to
deprive the latter of his entitlements.
A written agreement to submit any existing controversy to arbitration or a provision in a
written contract to submit to arbitration any controversy thereafter arising between the
parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or
in equity for the revocation of any contract. NRS 38.015 to 38.205, inclusive, also apply
to arbitration agreements between employers and employees or between their respective
representatives unless otherwise provided in the agreement.
In Nevada, the courts, rather than an arbitrator, are generally the proper forum to decide
whether a dispute must be arbitrated. Int'l Assoc. Firefighters v. City of Las Vegas, 104 Nev.
615, 620, 764 P.2d 478, 481 (1988) (quoting from AT&T Technologies v. Communications
Workers of America, 475 U.S. 643, 649 (1986)). There is a strong public policy favoring
contractual provisions requiring arbitration as a dispute resolution mechanism. Consequently,
when there is an agreement to arbitrate we have said that there is a presumption of
arbitrability. Id. Moreover, arbitrability is usually a question of contractual construction.
Contractual construction is a question of law and this court can conduct its own independent
review of such issues. Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 754 P.2d 803,
805-806 (Kan. 1988); Peck v. Title USA Ins. Corp., 766 P.2d 290, 293 (N.M. 1988). We
conclude, for reasons set out below, that Parker's careful pleading in his amended complaint
cannot avoid arbitration. Arbitration issues are governed by the relevant provisions of
Nevada's version of the Uniform Arbitration Act. (NRS 38.015 et seq.). This court has
previously observed that the Arbitration Act's purpose is to prevent courts from intervening
when a provision for arbitration has been contractually provided by the parties. Lane-Tahoe,
Inc. v. Kindred Const. Co., 91 Nev. 385, 388, 536 P.2d 491, 493 (1975). Moreover, such
contracts, with certain exceptions, are valid, enforceable and irrevocable. Id. The Act clearly
favors arbitration.
[Headnote 1]
We have previously held that once an arbitrable issue has been found to exist, all doubts
concerning the arbitrability of the subject matter should be resolved in favor of arbitration.
Exber, Inc. v. Sletten Constr. Co., 92 Nev. 721, 729, 558 P.2d 517, 522 (1976). Courts are not
to deprive the parties of the benefits of arbitration they have bargained for, and arbitration
clauses are to be construed liberally in favor of arbitration. Id. at 730, 558 P.2d at 522
(citation omitted). Within the framework of the foregoing authority we must determined if the
parties agreed to arbitrate this dispute.
The original complaint clearly referred to the agreement and its breach and would clearly
have been subject to the arbitration provision. We note, however, that because the district
court committed no abuse of discretion in allowing Parker to amend his complaint, our
decision is based solely on the content of the amended complaint.
The amended complaint contains numerous factual allegations which are asserted in
support of several causes of action including (1) Civil RICO; (2) Wrongful removal of a
director; (3) Breach of fiduciary duty; (4) Constructive fraud; and (5) Conversion. The
amended complaint makes no reference to the agreement and at first glance does not appear
dependent upon the agreement for its causes of action. However, despite this clear effort to
avoid the agreement, Parker's basis for claiming injury and grounds for redress stem from
rights he allegedly received pursuant to the agreement. His alleged rights therefore relate to
the agreement as provided in the arbitration clause.
First, some, if not all, of Parker's causes of action depend on his status as a minority
shareholder in a closely held corporation with accompanying statutory and common law
rights. Parker's only documentary evidence of stock ownership is the agreement itself.
It is disingenuous to assert that the agreement will be used only as an evidentiary
document to show the intent of the parties concerning ownership of a percentage of the stock
of a corporation and ignore the clearly manifested intent to arbitrate within the same
document. Parker may not rely on the agreement to prove ownership and simultaneously
disavow the applicability of the arbitration clause. If Parker must rely on the agreement in
order to prove his disputed right to stock ownership, he has placed himself squarely within
the ambit of the arbitration provision covering controversies or claims arising out of or
relating to the agreement. Despite the careful pleading, the amended complaint relates to the
agreement and hence is subject to arbitration.
[Headnote 2]
As we conclude that the agreement and its terms are clearly at play in the current dispute
and cannot be circumvented, we need not determine the effect of any asserted abandonment
and repudiation. We note, however, that an alleged breach or repudiation of the contract
[does not] preclude the right to arbitrate. 6 C.J.S. Arbitration 8 (1975) (citation omitted).
Abandonment or repudiation and its effect will have to be demonstrated in arbitration.
Accordingly, the decision of the district court is reversed with instructions to grant the
motion to compel arbitration.
____________
106 Nev. 419, 419 (1990) Sheriff v. A 1983 Datsun 280ZX Sedan
SHERIFF, CARSON CITY, NEVADA, Appellant, v. A 1983 DATSUN 280ZX SEDAN
VIN JNIHZ 04S0DX562727, Respondent.
No. 19902
June 28, 1990 794 P.2d 346
Appeal from judgment denying complaint for forfeiture. First Judicial District Court,
Carson City; Michael R. Griffin, Judge.
Forfeiture action was brought against automobile used in burglary. The district court
denied relief, and appeal was taken. The Supreme Court held that car used by owner's son to
commit burglary without owner's consent was not subject to forfeiture, even if son had
primary use of vehicle with owner having only bare legal title.
Affirmed.
Noel S. Waters, District Attorney, and Robert L. Auer, Deputy District Attorney, Carson
City, for Appellant.
Edward Bernard, Carson City, for Respondent.
1. Forfeitures.
Car use by owner's son to commit burglary without owner's consent was not subject to forfeiture, even if son had primary use of
vehicle with owner having only bare legal title; beneficial ownership was irrelevant under Nevada statute which expressly limited
forfeiture proceedings to owners of record. NRS 179.121, subd. 2(b), (c).
2. Forfeitures.
Surrender of res, without more, does not deprive either district court or appellate court of jurisdiction over forfeiture proceeding.
NRS 179.1165, subd. 2(b).
OPINION
Per Curiam:
This is an appeal from a judgment of the district court, pursuant to a bench trial, denying
the relief sought in appellant's complaint for forfeiture.
Appellant brought a forfeiture action against the Datsun after the Datsun was used in the
commission of a burglary. Both the owner of the car, and the owner's son who committed the
burglary, were required to submit answers in the proceedings below. The parties to the action
below conceded that the owner had no knowledge of his son's plans to use the Datsun in a
burglary. NRS 179.121(2)(b) provides: A conveyance is not subject to forfeiture under this
section by reason of any act or omission established by the owner thereof to have been
committed or omitted without his knowledge or consent. . . .
A conveyance is not subject to forfeiture under this section by reason of any act or
omission established by the owner thereof to have been committed or omitted without
his knowledge or consent . . . .
Nevertheless, appellant argued below that the son was the beneficial owner of the Datsun
and that the Datsun was therefore subject to forfeiture. The district court held that beneficial
ownership would not support forfeiture under Nevada law. This appeal followed.
[Headnote 1]
Appellant first contends that the district court erred in allowing the owner of the Datsun to
assert an innocent owner defense based on bare legal title to the Datsun. Specifically,
appellant asserts that the evidence clearly showed that it was the son who had the primary
use, and hence the beneficial ownership, of the Datsun. Appellant urges that this court should
follow case law from other jurisdictions and hold that such beneficial ownership is sufficient
to support a forfeiture. See. e.g., United States v. A Single Family Residence, 803 F.2d 625
(11th Cir. 1986) (bare legal title not sufficient for standing to challenge forfeiture in absence
of dominion and control).
This contention lacks merit. Unlike other forfeiture statutes, the Nevada forfeiture statutes
unambiguously indicate that, with the sole exception of a community property interest, the
only relevant ownership interest in a car is the interest appearing on the registration or title.
Specifically, NRS 179.121(2)(c) provides that [n]o person . . . whose name or interest does
not appear on the certificate of registration or title for the conveyance is a proper party to any
forfeiture proceeding pursuant to this subsection. Beneficial ownership is clearly of no
relevance in a Nevada forfeiture proceeding for a car, because the Nevada legislature has
expressly limited the parties who may appear in such a forfeiture proceeding to owners of
record. Hence, the son could not even lawfully appear as a party in the proceedings below.
Given the clarity of our statutes, we see no good-faith basis for asserting that the forfeiture of
a car can be based on beneficial ownership.
[Headnote 2]
We next take up respondent's contention that this court is without jurisdiction to hear this
appeal. Specifically, respondent notes that a forfeiture proceeding is in rem and argues that
the in rem jurisdiction of a court is based solely on its control over the res. As respondent
correctly notes, the res in this matter, the Datsun, has been surrendered to the owner thereof.
Accordingly, respondent concludes that neither this court nor the district court retains
jurisdiction over this matter.
respondent concludes that neither this court nor the district court retains jurisdiction over this
matter. Respondent's position is based on a substantial body of federal case law. See The Rio
Grande, 90 U.S. 458 (1874); United States v. $79,000 in United States Currency, 801 F.2d
738 (5th Cir. 1986); United States v. 66 Pieces of Jade, 760 F.2d 970 (9th Cir. 1985); D.
Smith, Prosecution and Defense of Forfeiture Cases, para. 9.01[5][c]. pp. 9-16, et seq.
(1990).
After a careful comparison of the Nevada statutory scheme for forfeiture with the federal
scheme, however, we conclude that the surrender of the res, without more, does not deprive
either this court or the district court of jurisdiction. Specifically, we note that NRS
179.1165(2)(b) provides for seizure of the property after a final judgment of forfeiture. This
provision, which is in contradistinction to the federal scheme, would be meaningless if the
district court could not obtain jurisdiction until the property was seized. Clearly then, our
legislature intended that the courts in Nevada be able to exercise in rem jurisdiction without
seizure of the property in question. We note further that NRS 179.1171(6) identifies a
claimant as a party to the action. Hence, while a forfeiture proceeding is in rem in the sense
that it determines the rights of the world in the property, the courts nevertheless retain
jurisdiction over the claimants and the party seeking forfeiture.
Accordingly, we hold that we have jurisdiction to hear this appeal. Further, we hold that
the district court properly denied the relief sought in the wholly frivolous complaint filed by
appellant.
____________
106 Nev. 422, 422 (1990) The Fabry Partnership v. Christensen
THE FABRY PARTNERSHIP, Doing Business as S.L.F. ENTERPRISES, Appellant, v.
DEAN CHRISTENSEN and ELAINE CHRISTENSEN; JAMES THORLEY;
DAVID VAN WAGONER; WAYNE RIRIE; DDWJ, INC., a Nevada Corporation;
KENNETH C. BEARD and M. PEGGY BEARD; GENE L. BERMEL and CAROL
L. BERMEL; MARVIN BERNSTEIN; AL T. BRUNS and JOSEPHINE C. BRUNS;
MERRIL BRYAN and SUSAN BRYAN; ALAN W. BUSBY; BUSBY, BERNSTEIN
& POKROY; RUAL G. COFER; JAMES W. GODOWN and LORRAINE W.
GODOWN; ALLEN McCONVILLE and BARBARA McCONVILLE, TRUSTEES
OF McCONVILLE FAMILY TRUST U.D.T. 11/8/79; NEVILLE POKROY; ALLEN
J. ROBERTS; JACK SCOLLIN and HELEN SCOLLIN; JOSEPH SHALEV,
TRUSTEE OF JOSEPH SHALEV and BATSHEVA SHALEV LIVING TRUST; R.
SPIELLMAN; HAROLD E. TAYLOR; FRANK WADSWORTH; ROBERT J.
WEST and MARJORIE A. WEST; CHAUNCEY J. WRIGHT and FRANCINE
WRIGHT; GEORGE L. WRIGHT; JACK W. LYCAN and JEAN LYCAN; and
SILVER QUEEN LIMITED PARTNERSHIP, Respondents.
No. 19885
June 28, 1990 794 P.2d 719
Appeal from order denying appellant's motion for partial summary judgment and granting
respondents' motion for partial summary judgment dismissing limited partners from the
action. Fifth Judicial District Court, Nye County; Joseph O. McDaniel, Judge.
After limited partnership purchaser of commercial property defaulted on payments, vendor
sought deficiency judgment against limited partners individually. The district court granted
summary judgment in favor of limited partners, and vendor appealed. The Supreme Court
held that: (1) there was substantial compliance with statutory requirements for creation of
limited partnership, and (2) evidence established that vendor knew from outset that sale
involved limited partnership.
Affirmed.
Lionel Sawyer & Collins, Charles H. McCrea, Jr. and Paul Bancroft, Las Vegas, for
Appellant.
Jeffrey Ian Shaner, Elton & Gomes, James A. Ririe, W. Randall Mainor, Bradley J.
Richardson and Eric R. Olsen, Las Vegas, for Respondents.
1. Partnership.
Substantial compliance is sufficient for formation of limited partnership. NRS 88.030, 88.030, subd. 2 (Repealed).
2. Partnership.
Statutory requirements for creation of limited partnership were substantially complied with even though no certificate of limited
partnership was recorded with county recorder at time partnership purchased commercial property, and vendor could not subsequently
seek to hold individual limited partners liable for purchase price, particularly in view of fact that statute did not specify time limit for
recordation of certificate. NRS 88.030, 88.030, subds. 1, 2, 88.280, 88.280, subd. 1 (Repealed).
3. Partnership.
Certificate of limited partnership was filed within reasonable time when filed eight months after it was executed and after
limited partnership purchased commercial property, and vendor could not hold limited partners individually liable for partnership debt.
NRS 88.030 (Repealed).
4. Partnership.
Evidence established that vendor of commercial property knew from outset of sale that purchaser was limited partnership, and
vendor could not seek to hold limited partners individually liable for purchase price by claiming that statutory requirements for
creation of limited partnership had not been met.
OPINION
Per Curiam:
The facts underlying this appeal are not in dispute. On April 24, 1980, the Silver Queen
Motel was sold by appellant The Fabry Partnership (Fabry)
1
to the Silver Queen Limited
Partnership (the Limited Partnership) for $3,185,000. Approximately $500,000 was paid in
cash at the time of the sale and the $2,685,000 balance was secured by a note and deed of
trust.
Prior to the sale, on April 1, 1980 a certificate of limited partnership was executed by four
general partners to form the Limited Partnership. During April, May and June, 1980, the
various respondents invested money in the Limited Partnership and signed the signature page
of the certificate of limited partnership. It was the understanding of respondents that by
contributing equal capital and signing the agreement they were becoming limited
partners.
__________

1
Actually, the motel was sold by the estate of Helen S. Martin, Susan L. Fabry as guardian, and Susan L.
Fabry, individually. The note and deed of trust were later assigned to the Fabry partnership.
equal capital and signing the agreement they were becoming limited partners.
On December 29, 1980, the certificate of limited partnership for the Limited Partnership
was recorded with the Nye County Recorder, Nye County, Nevada. The certificate had been
executed by all the partners. It was dated April 1, 1980, and became effective April 24, 1980,
the date the note and deed of trust were executed to facilitate the sale of the motel. For
approximately two years, payments were made on the note and the business was operated and
managed without participation or control by any of the limited partners. Prior to November
1982, the note had fallen into default. On November 23, 1982, Fabry's predecessor assigned
the deed of trust to Fabry. Thereafter, on December 15, 1982, Fabry served and filed a Notice
of Breach and Election to Sell under the deed of trust. At a subsequent trustee's sale of the
motel held on July 21, 1983, Fabry was the sole bidder and successful purchaser of the
property.
Because the amount of the remaining debt exceeded the sale price of the motel, Fabry
sought a deficiency judgment against, inter alia, each of the limited partners individually.
2
The district court granted summary judgment in favor of the limited partners (respondents)
and Fabry appeals.
[Headnotes 1, 2]
Fabry contends that the limited partners failed to comply with the statutory requirements
for the creation of a limited partnership. NRS 88.030 outlines the requirements for forming a
limited partnership. It states in pertinent part:
1. Two or more persons desiring to form a limited partnership shall:
(a) Sign and acknowledge a certificate. . . .
(b) File the certificate for record in the office of the recorder of the county in which
the principal place of business of the partnership is maintained, file a certified copy of
the original for record in the office of the recorder of each other county in which the
partnership maintains a place of business.
NRS 88.030 (effective until January 1, 1987).
[Headnote 3]
Fabry contends that the limited partners failed to comply with NRS 88.030 because no
certificate was filed with the Nye County Recorder at the time of the transaction between
Fabry and the Limited Partnership.
__________

2
Issues concerning the identity and liability of general partners are not involved in this appeal.
Limited Partnership. Fabry further argues that the filing of the certificate of limited
partnership in December of 1980 cannot relate back to the April transaction. We disagree.
Specifically, two provisions in the Nevada Partnership Act militate against Fabry's position.
First, NRS 88.030(2) provides in pertinent part:
A limited partnership is formed if there has been substantial compliance in good faith
[emphasis added].
Therefore, it appears that substantial compliance is sufficient for the formation of a limited
partnership. Second, NRS 88.280(1) provides for a liberal construction of the Act. It states:
1. The rule that statutes in derogation of the common law are to be strictly construed
shall have no application to this chapter.
Finally, NRS 88.030
3
does not specify a time limit for the recordation of the required
certificate.
Based upon the aforementioned statutes, we are persuaded that the trial court properly
entered summary judgment dismissing the limited partners from the action below. There was
substantial compliance with the Act by the limited partners and the certificate was filed
within a reasonable time. See Stowe v. Merriles, 44 P.2d 368 at 369 (Cal.App. 1935) (what
is reasonable time must be determined by the circumstances of the particular case).
[Headnote 4]
Furthermore, in the instant case, Fabry knew from the outset that the sale of the Silver
Queen Motel involved a limited partnership. This knowledge is supported by the note and
deed of trust which clearly identified the Silver Queen Limited Partnership as the purchaser
of the motel. Additionally, the business relationship between the parties continued without
protest for nearly two years after the filing of the certificate and before default was declared.
Fabry cannot now circumvent the Limited Partnership in an attempt to impose individual
liability on the limited partners.
In view of our ruling, other issues discussed by the parties need not be addressed. The
lower court did not err in granting summary relief to respondents.
In conclusion, we affirm the trial court's entry of summary judgment in favor of the limited
partners. As a matter of law, they cannot, under the facts presented on this appeal, be held
individually liable as general partners.
__________

3
The statutory provisions underlying our decision, NRS 88.030 and 88.280, were repealed effective January
1, 1987.
____________
106 Nev. 426, 426 (1990) Wolf v. State
KELLY JO WOLF, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20790
July 18, 1990 794 P.2d 721
Appeal from order denying post-conviction relief. Eighth Judicial District Court, Clark
County; Stephen L. Huffaker, Judge.
Petition for post-conviction relief was denied by the district court and movant appealed.
The Supreme Court, Rose, J., held that the prosecutor violated the spirit of his pleas
agreement with movant.
Kelly Jo Wolf, In Proper Person, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, Clark County,
for Respondent.
Criminal Law.
Prosecutor's remarks indicated that, despite agreement to argue for no more than five years in prison as part of plea bargain,
prosecutor actually argued in support of nine-year sentence recommended by Department of Parole and Probation in presentence
report; thus, prosecutor violated spirit of plea agreement, and new sentencing hearing was required.
OPINION
On December 6, 1988, appellant was convicted, pursuant to a guilty plea, of one count of
possession of a controlled substance with the intent to sell and sentenced to serve nine years
in the Nevada State Prison. The district court also specified that appellant's sentence would
run consecutive to another sentence that appellant was already serving. Appellant did not file
a direct appeal challenging his conviction. On November 8, 1989, however, appellant filed in
the district court a petition for post-conviction relief. The state opposed appellant's petition
and on December 20, 1989, the district court entered an order denying the petition. This
appeal followed.
Appellant argued in his petition that he entered his plea pursuant to a plea bargain
agreement, and that the state violated the terms of that agreement. Therefore, he argued that
his guilty plea was entered involuntarily. On March 29, 1990, this court entered an order
stating that our review of the record on appeal reveals that appellant's argument may
have merit.
106 Nev. 426, 427 (1990) Wolf v. State
an order stating that our review of the record on appeal reveals that appellant's argument may
have merit. Specifically, we noted that the transcript of appellant's plea hearing reveals that in
exchange for appellant's plea of guilty, the state agreed to dismiss an additional criminal
charge that was pending against appellant. The state also agreed that it would not oppose
concurrent sentencing, and that it would not argue for a sentence greater than five years in
prison. At the sentencing hearing, however, the court was presented with a presentence report
that recommended that appellant be imprisoned for nine years, consecutive to a sentence that
appellant was already serving. Further, the state first acknowledged that it could not argue for
more than five years. The state's attorney went on, however, to detail appellant's criminal
history dating back to 1978, and then stated:
I agree with the recommendation of the Department that [appellant's] behavior merits
sever [sic] sanctions and that he failed to be penalized in his wrongful behavior which
has been continuous since 1978.
We observed that the remarks quoted above indicate that despite its agreement to argue for no
more than five years in prison, the state actually argued in support of the nine-year sentence
recommended by the department of parole and probation in the presentence report. Because it
appeared that the state may have violated both the letter and spirit of the plea agreement, we
directed the state to show cause why this case should not be remanded to the district court for
further proceedings. Cf. Kluttz v. Warden, 99 Nev. 681, 683, 669 P.2d 244, 245 (1983).
In response to the show cause order, the state argues that the remarks quoted above did not
violate either the letter or the spirit of the plea bargain agreement. Specifically, the state
asserts that in the instant case, unlike Kluttz, there is no indication in the record that the
prosecutor was unaware of appellant's prior criminal record when he entered into the plea
agreement with appellant. The state also asserts that the prosecution is not obligated to show
enthusiastic support for a plea agreement. See United States v. Benchimol, 471 U.S. 453
(1988). Alternatively, the state notes that the prosecutor did not disclose any information to
the court that was not already contained in the presentence report. Therefore, the state argues
that the prosecutor's argument did not have any effect on the sentence that appellant received.
Accordingly, the state contends that the misconduct of the prosecutor, if any, was harmless
beyond a reasonable doubt.
The state's argument is without merit. The remarks of the prosecutor quoted above, like the
remarks in Kluttz, were clearly intended to persuade the district court to impose a sentence
that was more severe than the sentence contemplated by the plea bargain.
106 Nev. 426, 428 (1990) Wolf v. State
was more severe than the sentence contemplated by the plea bargain. The fact that appellant's
criminal record was contained in the presentence report is of no consequence; in Kluttz, the
defendant's criminal history was also contained in the presentence report. See 99 Nev. at 683,
669 P.2d at 245. Under these circumstances, we conclude that the prosecutor in this case
violated the spirit of the plea agreement. Accordingly, we reverse the order denying
appellant's petition for post-conviction relief, and we remand this case to the district court
with instructions to vacate appellant's sentence and to hold a new sentencing hearing before a
different district court judge.
Young, C. J., Springer and Mowbray, JJ., concur.
I do not agree that the State violated either the letter or the spirit of the negotiated plea in
this case. At the entry of the plea, the State clearly stated that it would not argue for more than
five years. Again, at sentencing, the deputy district attorney declared the State's position as
follows:
This was negotiated by Mr. Rick Smith of our office and pursuant to negotiations the
State was allowed to argue, however, we are not allowed to argue for more than five
years in Nevada State Prison and we are not to oppose concurrent time with the three
years he is presently serving in case C82415. Therefore, pursuant to negotiations, the
State would be recommending he be sentenced to five years in Nevada State Prison and
that it be concurrent to his preceding case.
Although the deputy did state, in the course of her argument, that I agree with the
recommendation of the Department that his behavior merits sever [sic] sanctions and that he
failed to be penalized in his wrongful behavior which has been continuous since 1978, I do
not consider the remarks to be in derogation of the clearly expressed position of the State.
The statement relating to severe sanctions in the pre-sentence report was not contained in that
part of the report concerning the Department's recommendation. In fact, the comment was
noted in connection with the observation that confinement was necessary to protect the
community and to reinforce any positive strides that Wolf had taken.
The conditions of the plea bargain agreement permitted the State to argue. Because I
believe the State's argument was neither violative of the agreement nor prejudicial to Wolf, I
respectfully dissent.
____________
106 Nev. 429, 429 (1990) Joseph F. Sanson Investment v. 268 Limited
JOSEPH F. SANSON INVESTMENT COMPANY, Appellant, v. 268 LIMITED; TRUSTEE
IN BANKRUPTCY, Respondent.
No. 20118
July 18, 1990 795 P.2d 493
This proceeding is a question of law certified to this court pursuant to NRAP 5 by the
United States Court of Appeals for the Ninth Circuit. William A. Norris, Robert R. Beezer
and Melvin T. Brunetti, Circuit Judges.
Secured creditor appealed from order of the Bankruptcy Court which limited award of
attorney fees for foreclosure of deed of trust as allowed secured claim. The United States
District Court for the District of Nevada affirmed, and secured creditor appealed. The Court
of Appeals, 789 F.2d 674, affirmed in part and remanded. On remand, the Bankruptcy Court,
75 B.R. 37, disallowed claim, and secured creditor appealed. The Bankruptcy Appellate
Panel, 85 B.R. 101, affirmed, and secured creditor appealed. The Court of Appeals, 877 F.2d
804, certified question as to whether Nevada statute permitted parties to deed of trust to
recover stipulated attorney fees without regard to reasonableness of fees. The Supreme Court
held that: (1) statute authorizing parties to deed of trust to agree on specified percentage of
balance remaining at time of default as attorney fees should be read to mean the parties may
stipulate that certain percentage shall be allowed for attorney fees as long as that percentage is
reasonable, and (2) attorney fee requested by secured creditor, which was more than fifteen
times the amount actually billed creditor's attorneys, was unreasonable.
Question answered.
Gordon & Silver and Candace C. Carlyon, Las Vegas, for Appellant.
Joshua M. Landish, Las Vegas; Leonard A. Wilson, Las Vegas, for Respondent.
1. Statutes.
In ascertaining intent of legislature when construing statute, Supreme Court is forced to look at words of statute and purposes for
its enactment, where there is no legislative history on statute.
2. Mortgages.
Statute on deeds of trust, which contains one clause allowing recovery of reasonable expenses, and another clause authorizing
parties to agree on percentage of balance remaining at time of default as attorney fees and calling for enforcing that stipulated
percentage, should be read to mean that parties may stipulate in deed of trust that certain percentage shall be
allowed for attorney fees as long as that percentage is reasonable.
to mean that parties may stipulate in deed of trust that certain percentage shall be allowed for attorney fees as long as that percentage is
reasonable. NRS 107.030, subd. 7.
3. Mortgages.
Amount of attorney fees sought by vendor under deed of trust upon sale of property, which was more than fifteen times the amount
actually billed by vendor's counsel for legal services relating to foreclosure of deed of trust, was unreasonable, and thus could not be
awarded in accordance with statute. NRS 107.030, subd. 7.
4. Mortgages.
Provision of deed of trust, which adopted statutory clause authorizing parties to agree on certain percentage of balance remaining
at time of default as attorney fees, constituted liquidated damages clause. NRS 107.030, subd. 7.
5. Damages.
Liquidated damages clause is prima facie valid unless challenging party proves that its application amounts to unenforceable
penalty.
6. Mortgages.
Provision in deed of trust allowing vendor, upon foreclosure of mortgage, to recover stipulated amount of attorney fees which was
fifteen times the amount that vendor's counsel actually billed for representation, would operate as impermissible penalty clause, unless
amount of attorney fees was modified by reasonableness. NRS 107.030, subd. 7.
OPINION
Per Curiam:
Appellant Joseph F. Sanson Investment Company (Sanson) sold an apartment complex to
respondent 268 Limited. Sanson retained a security interest in the property, which was written
into a deed of trust. The deed of trust (1) incorporated by reference NRS 107.030(7) regarding
attorney's fees in the event of default and (2) specified five percent of the balance remaining
at the time of default as attorney's fees.
Subsequently, 268 Limited filed a Chapter 11 petition in bankruptcy. As a result, 268
Limited defaulted on its obligation to Sanson. The apartment complex was sold for
$1,000,000 in excess of the amount needed to pay the obligation. Sanson was billed
$13,732.00 by its counsel for the legal services related to the transaction with 268 Limited.
Matter of 268 Ltd., 789 F.2d 674, 677 (9th Cir. 1986). Sanson applied to the bankruptcy court
for $197,500.00 in attorney's fees based on the clause in the deed of trust setting attorney's
fees at five percent of the balance. The bankruptcy court concluded that the requested amount
was unreasonable and, pursuant to section 506(b) of the Bankruptcy Code, 11 U.S.C.,
awarded Sanson $20,000.00. Sanson appealed the bankruptcy order to several federal
courts,1 all of which affirmed the bankruptcy order.
bankruptcy order to several federal courts,
1
all of which affirmed the bankruptcy order.
Pursuant to the procedure set forth in NRAP 5,
2
the United States Court of Appeals for the
Ninth Circuit in In re Limited 268, 877 F.2d 804, 806 (9th Cir. 1989), certified the question
of whether NRS 107.030(7) permits parties to a deed of trust to recover stipulated attorney's
fees without regard to the reasonableness of the fees. This court accepted certification and
subsequently requested briefing by the parties.
This appeal specifically presents the issue of whether Sanson should be entitled to receive
$197,500.00 in attorney's fees when Sanson only incurred $13,732.00 in actual expenses. The
wording of NRS 107.030(7)
3
regarding attorney's fees is ambiguous. NRS 107.030(7) first
requires a trustee, upon sale of the encumbered property, to pay expenses of the sale together
with the reasonable expenses of the trust, including counsel fees, but then permits the parties
to a deed of trust to recover in an amount equal to ................. percent of the amount secured
thereby and remaining unpaid, . . . .
__________

1
Sanson appealed to the United States District Court for the District of Nevada which affirmed the order of
the bankruptcy judge. Sanson further appealed the order to the United States Court of Appeals for the Ninth
Circuit. The United States Court of Appeals for the Ninth Circuit affirmed in part the holding stating that section
506(b) preempts state law governing the availability of attorney's fees as a secured claim, but remanded the case
to allow Sanson to attempt to recover the balance of $197,500.00 as an unsecured creditor, expressing no
opinion on the enforceability under governing state law of the deed of trust's attorney's fees provision. In the
Matter of 268 Limited, 789 F.2d 674, 678 (9th Cir. 1986). On remand the bankruptcy court again denied
Sanson's $197,500.00 claim, holding that NRS 107.030(7) limits attorney's fees in a deed of trust to a reasonable
amount. In re 268 Limited, 75 B.R. 37 (Bankr.D.Nev. 1987). Sanson then appealed to the United States
Appellate Panel for the Ninth Circuit which affirmed the bankruptcy decision. In re 268 Limited, 85 B.R. 101
(9th Cir. BAP 1988). Finally, Sanson appealed the decision of the Bankruptcy Appellate Panel to the United
States Court of Appeals for the Ninth Circuit.

2
NRAP 5 provides in part:
The Supreme Court may answer questions of law certified to it by the Supreme Court of the United
States, a Court of Appeals of the United States, or of the District of Columbia, or a United States District
Court, when requested by the certifying court, if there are involved in any proceeding before those courts
questions of law of this state which may be determinative of the cause then pending in the certifying court
and as to which it appears to the certifying court there is no controlling precedent in the decisions of the
supreme court of this state.

3
That the trustee, upon such sale, shall make (without warranty), execute and, after due payment made,
deliver to purchaser or purchasers, his or their heirs or assigns, a deed or deeds of the premises so sold
which shall convey to the purchaser all the title of the grantor in the
In State v. Woodbury, 17 Nev. 337, 343, 30 P. 1006, 1008 (1883), this court said [w]here
a statute is clear, plain and unambiguous, we have repeatedly declared that there is no room
for construction and the law must be followed regardless of results. NRS 107.030(7),
however, does not appear to be clear or plain. To the contrary, it contains two contradicting
clauses. One clause allows recovery of reasonable expenses and the other clause authorizes
the parties to agree on a percentage and calls for enforcing that stipulated percentage.
[Headnote 1]
If the language [of a statute] is capable of two constructions, one of which is consistent . .
. with the evident object of the legislature in passing the law, that construction must be
adopted which harmonizes with the intention. Recanzone v. Nevada Tax Commission, 92
Nev. 302, 305, 550 P.2d 401, 403 (1976) (quoting State of Nevada v. Cal. M. Co., 13 Nev.
203, 217 (1878)). There are no Nevada cases that have interpreted this statute. Also, there is
no legislative history on the statute because the statute was enacted in 1927, and amended in
1967.
4
Therefore, in ascertaining the intent of the legislature, we are forced to look to the
words of the statute and the purposes for its enactment. See State ex rel. Bartlett v. Brodigan,
37 Nev. 245, 255, 141 P. 988, 991 (1914) (Talbot, C. J., concurring).
[Headnotes 2, 3]
The United States Bankruptcy court in In re 268 Ltd., 75 B.R. 37 (Bankr.D.Nev. 1987),
looked at the words of the statute and purposes of the enactment and stated: The language of
section 107.030{7) indicates that the attorney's fees are limited to a reasonable amount.
__________
trust premises, and shall apply the proceeds of the sale thereof in payment, firstly, of the expenses of such
sale, together with the reasonable expenses of the trust, including counsel fees, in an amount equal to
................ percent of the amount secured thereby and remaining unpaid, which shall become due upon
any default made by grantor in any of the payments aforesaid; and also such sums, if any, as trustee or
beneficiary shall have paid, for procuring a search of the title to the premises, or any part thereof,
subsequent to the execution of the deed of trust; and in payment, secondly, of the obligation or debts
secured, and interest thereon then remaining unpaid, and the amount of all other moneys with interest
thereon herein agreed or provided to be paid by grantor; and the balance or surplus of such proceeds of
sale it shall pay to grantor, his heirs, executors, administrators or assigns.
(Emphasis added.)

4
There are no committee minutes before 1965 and not all committees kept minutes between 1965 and 1973.
In 1973 the Assembly adopted a rule to keep minutes of proceedings before standing committees, and the Senate
adopted a similar rule in 1977. Southwick and Olmsted, Researching Legislative History in Nevada, 54 N.B.J. 4
(1989).
The language of section 107.030(7) indicates that the attorney's fees are limited to a
reasonable amount. In section 107.030(7), reasonable modifies expenses of the
trust and counsel fees are included among the expenses of the trust. The legislature's
intent is clearly to include attorney's fees among the expenses of the trust. The expenses
of the trust that, pursuant to the covenant, are to be paid from the sale proceeds, must be
reasonable. The legislature could easily have indicated that the attorney's fee provision
was not among the expenses of the trust. For instance, it could have used the word
plus instead of the word including. The legislature, however, used the word
including. Accordingly, although the statute allows, and in fact encourages, the
parties to designate a percentage of the unpaid principal as counsel fees, those fees, like
the other expenses of the trust, must be reasonable.
The evident purpose of section 107.030(7) also suggests that the attorney's fees
allowed under that section are limited to a reasonable amount. The purpose of such an
attorney's fee provision is to compensate the secured party for the costs of the
foreclosure. See, e.g., McLane v. Abrams, 2 Nev. 199, 208 (1866) (analyzing a similar,
non-statutory provision in a note).
Id. at 39-40 (emphasis in original).
The bankruptcy court's interpretation of NRS 107.030(7) is sound, and the proper way to
interpret the word reasonable is to apply it to the award of attorney's fees as well.
According to the billing statements submitted with the original fee application, Sanson was
billed $13,732.00 by its counsel for the legal services related to 268 Limited in foreclosing
the deed of trust. The bankruptcy court, in spite of the amount billed, awarded Sanson
$20,000.00 in attorney's fees. Sanson has been asking for $197,500.00 for attorney's fees in
regard to the deed of trust. The fees sought in the present action are more than fifteen times
the amount actually billed. This amount is unreasonable.
There are two Nevada cases which deal with circumstances similar to those here. Cox v.
Smith, 1 Nev. 161 (1865) and McLane v. Abrams, 2 Nev. 199 (1866). The promissory notes
in Cox and McLane allowed the creditor, upon foreclosure, to recover ten percent of the
unpaid balance as attorney's fees. The Cox note contained an attorney's fees provision similar
to NRS 107.030(7). It provided: [I]n case . . . [a] holder hereof shall commence a suit to
enforce the [note obligation], then it shall be lawful for the said payee or the holder
hereof to have and demand upon the same ten {10) percent.
[I]n case . . . [a] holder hereof shall commence a suit to enforce the [note obligation],
then it shall be lawful for the said payee or the holder hereof to have and demand upon
the same ten (10) percent. [sic] upon the amount which shall be recovered thereon as a
reasonable indemnity for attorney and counsel fees . . . .
Cox, 1 Nev. at 165. The court reasoned:
We doubt extremely the policy of enforcing any [emphasis in original] contract
whereby the mortgagor makes himself responsible for counsel fees.
We think it has a tendency to encourage extortionate and oppressive contracts, and is
at war with the best interests of society. But all the cases we find reported on this
subject hold that a reasonable [emphasis in original] counsel fee may be contracted for
in such cases, and a Court of equity will enforce the agreement.
In all the cases called to our attention in which this point has arisen, the Courts have
allowed the [emphasis in original] counsel fee charged, but have generally used some
expression indicating that the charges allowed were reasonable, and that if unreasonable
counsel fees were allowed, the Court would interpose its authority to protect the
mortgagor [emphasis added].
Id. at 172.
The court in Cox enforced the attorney's fees clause because it found the amount [was]
not . . . so extravagant as to show that it was intended as a penalty to be held in terrorum [sic]
over the mortgagor, . . . . Id.
Similarly, the McLane promissory note provided that
in case said principal and interest, or either, are not paid when due, and the holder
hereof shall have occasion to bring such suit, then we promise to pay the further sum of
ten per cent. [sic] upon the whole sum due and unpaid for attorneys' fees and
commissions upon said collection.
McLane, 2 Nev. at 207-08. The court stated in dealing with the attorney's fees issue that
[I]n all cases where attorneys' fees are provided for in instruments of this character,
only a reasonable sum should be allowed. The entire sum stipulated should not be
allowed to parties where it would be an exorbitant or unreasonable fee . . . .
There is nothing in the record in this case which would authorize us to say that ten
per cent. [sic] is an unreasonable compensation for counsel.
Although the record in McLane did not show that ten percent was unreasonable
compensation for counsel, the record in the present case clearly indicates that five percent in
attorney's fees, $197,500.00, is patently unreasonable when Sanson's actual attorney's fees
were only $13,732.00. Therefore, NRS 107.030(7) should be read to mean that parties may
stipulate in a deed of trust that a certain percentage shall be allowed for attorney's fees as long
as that percentage is reasonable.
Sanson next argues that an attorney's fees provision is simply not a liquidated damages
provision and should not be analyzed as such. Sanson further argues that even if this court
were to find the attorney's fees provision to be a liquidated damages provision, this court
should enforce the provision. We disagree.
[Headnotes 4, 5]
Liquidated damages have been defined as the sum which a party to a contract agrees to pay
if he/she breaks some promise and which, having been arrived at by a good faith effort to
estimate the actual damages that will probably ensue from breach, is recoverable as
agreed-upon damages if breach occurs. See In re Plywood Co. of Pa., 425 F.2d 151, 154 (3d
Cir. 1970). The provision in the deed of trust adopting NRS 107.030(7) constitutes a
liquidated damages clause because the parties agreed to pay for reasonable expenses,
including attorney's fees, incurred during a trustee's sale of property in the event of a default.
See In re 268 Limited, 85 B.R. 101 (9th Cir. BAP 1988). A liquidated damages clause is
prima facie valid unless the challenging party proves its application amounts to an
unenforceable penalty. Haromy v. Sawyer, 98 Nev. 544, 546-547, 654 P.2d 1022, 1023
(1982); Sliver Dollar Club v. Cosgriff Neon, 80 Nev. 108, 389 P.2d 923 (1964). In order to
prove that 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. Haromy, 98 Nev. at 547, 654 P.2d at 1023 (citation omitted).
[Headnote 6]
The record shows that Sanson's counsel submitted an affidavit stating that Sanson was
billed $13,732.00 for services related to the 268 Limited, and the stipulated amount was
$197,500.00, which is fifteen times the amount that was actually billed. In comparing the
actual attorney's fees that Sanson incurred as a result of 26S Limited's default with the
amount under the deed of trust, it appears that the stipulated amount is greatly
disproportionate.
result of 268 Limited's default with the amount under the deed of trust, it appears that the
stipulated amount is greatly disproportionate. Unless modified by reasonableness, the five
percent contained in the deed of trust would operate as a penalty clause. In such cases, courts
are reluctant to enforce penalty clauses. See Beacon Plastic & Metal Products, Inc. v. Corn
Products Co., 293 N.Y.S.2d 429 (Sup.Ct. 1968).
For reasons set forth above, we affirm the interpretation of the federal court and hold that
NRS 107.030(7) permits parties to stipulate in a deed of trust that a certain percentage shall
be allowed for attorney's fees as long as that percentage is reasonable.
____________
106 Nev. 436, 436 (1990) Perry v. State
TIMOTHY WAYNE PERRY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20650
July 18, 1990 794 P.2d 723
Appeal from a judgment of conviction upon a jury trial of a third-offense felony DUI.
Fourth Judicial District Court, Elko County; Joseph O. McDaniel, Judge.
Defendant was convicted in the district court of third-offense DUI, and defendant
appealed. The Supreme Court held that, as defendant pleaded guilty to first-offense DUI
when he was charged for what was actually his second offense, that second offense was
required to be treated as first-offense DUI for all purposes.
Frederick B. Lee, Public Defender, Mary E. Leddy, Deputy Public Defender, Elko County,
for Appellant.
Brian McKay, Attorney General, Carson City; Mark D. Torvinen, District Attorney, John
S. McGimsey, Deputy District Attorney, Elko County, for Respondent.
Automobiles.
Where defendant pleaded guilty to first-offense DUI when he was charged for what was actually his second offense, that
second-offense DUI conviction was required to be treated as first-offense DUI for all purposes, and thus, could not be used to enhance
defendant's third-offense DUI to felony. NRS 484.3792.
106 Nev. 436, 437 (1990) Perry v. State
OPINION
Per Curiam:
On February 5, 1989, appellant Timothy Wayne Perry was arrested for driving under the
influence of alcohol (DUI). This was Perry's third arrest for DUI. At the time of his arrest,
Perry stated to James McKowan, the arresting officer, that he had only two first-offense DUI
convictions and that he had never received a second-offense DUI conviction. After a jury
trial, appellant was found guilty of driving under the influence of alcohol. At the sentencing
phase, Perry testified that the justice of the peace, in the second DUI trial, advised him that if
he pleaded guilty, the charge would be treated as a first-offense DUI. Perry further testified
that he understood that if he were picked up a third time, he would only be convicted for a
second-offense DUI. Based upon this understanding, Perry pleaded guilty at the time of his
second-offense DUI to a first-offense DUI. Furthermore, the state in its answering brief
concedes that both convictions were termed First Offense DUI's. In the instant proceedings,
the district court judge, nonetheless, considered this conviction as a third-offense DUI for
purposes of sentencing. On October 23, 1989, the district court sentenced Perry to serve a
term of two years in the Nevada State Prison and to pay a fine of $2,000.00. This appeal
followed.
Perry contends that the district court erred when it used the second-offense DUI charge to
enhance his third-offense DUI to a felony as provided in NRS 484.3792. The record clearly
reflects that Perry pleaded guilty to a first-offense DUI when he was charged for what was
actually his second offense. Perry also testified that he believed that the offense to which he
was pleading would be treated as a first offense. In State v. Smith, 105 Nev. 293, 774 P.2d
1037 (1989), the facts were similar to those in the instant case. We stated:
Nothing in the record indicates that, in 1986, the State advised Smith that after
receiving treatment as a first-offender, the 1986 conviction would thereafter revert to a
second offense in the event of further drunk-driving convictions. Moreover, we assume
that Smith's 1986 guilty plea was induced, at least in part, by the knowledge that a
first-time offense, for purposes of minimizing criminal penalties for future
drunk-driving convictions, was preferable to a second offense. [W]hen a plea rests in
any significant degree on a promise or agreement of the prosecutor, so that it can be
said to be part of the inducement or consideration, such promise must be fulfilled.
Santobello v. New York, 404 U.S. 257, 262 {1971). . . .
106 Nev. 436, 438 (1990) Perry v. State
404 U.S. 257, 262 (1971). . . . In this case, because it was reasonable for the parties to
expect that Smith's 1986 conviction would be treated as a first offense in all respects,
including penalty enhancement for future drunk-driving convictions, enforcement of the
plea agreement is appropriate.
Id. at 298-299, 774 P.2d at 1041.
In accordance with Smith, the reasonable expectations of the parties should be honored.
When a person pleads guilty to a first-offense DUI, it must be treated as a first-offense DUI
for all purposes, including sentencing for later convictions. Although in this case, the judge,
rather than the prosecutor, made the plea arrangement with Perry, as we noted in Smith, we
hold the State to the most meticulous standards of promise and performance.' Id. at 298,
774 P.2d at 1040 (citation omitted).
If we hold the state to the strictest standard of upholding the bargain when it is the
prosecutor who is striking the bargain, it would be inconsistent not to hold the state to a
similar standard when it is the judge who engages in this process. Here, Perry pleaded guilty
to a first-offense DUI. To allow the conviction now to be treated as a second-offense DUI for
the purpose of enhancing Perry's sentence would be inherently unfair to Perry, who pleaded in
good faith to first-offense DUI. Accordingly, we reverse the district court's decision and hold
that Perry's second-offense DUI conviction must be treated as a first-offense DUI for all
purposes.
We have fully examined the remaining issues raised by Perry and conclude that they are
without merit. In light of the above, we remand this matter to the district court for further
sentencing proceedings consistent with the views expressed herein.
____________
106 Nev. 438, 438 (1990) Lyons v. State
HAROLD LYONS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19901
July 18, 1990 796 P.2d 210
Appeal from a judgment of conviction and sentences on five drug-related counts. Eighth
Judicial District Court, Clark County; Stephen Huffaker, Judge.
Defendant was convicted of conspiracy to manufacture methamphetamine, possession of
controlled substance, attempt to manufacture methamphetamine, trafficking in
methamphetamine, and racketeering after jury trial in the district court. Defendant appealed.
The Supreme Court, Rose, J., held that: {1) district court's denial of defendant's
day-of-trial request for postponement to hire another attorney or to represent himself pro
se was justified on grounds that case was especially complex, requiring assistance of
counsel; {2) district court's denial of day-of-trial request for self-representation was
justified on grounds of untimeliness alone in absence of any good cause justifying
lateness of request; and {3) surveillance observations and defendant's attempts to evade
surveillance prior to defendant's arrest as well as opinion of police detective were
sufficient to establish probable cause for both defendant's warrantless arrest and
subsequent search of defendant's truck.
106 Nev. 438, 439 (1990) Lyons v. State
appealed. The Supreme Court, Rose, J., held that: (1) district court's denial of defendant's
day-of-trial request for postponement to hire another attorney or to represent himself pro se
was justified on grounds that case was especially complex, requiring assistance of counsel;
(2) district court's denial of day-of-trial request for self-representation was justified on
grounds of untimeliness alone in absence of any good cause justifying lateness of request; and
(3) surveillance observations and defendant's attempts to evade surveillance prior to
defendant's arrest as well as opinion of police detective were sufficient to establish probable
cause for both defendant's warrantless arrest and subsequent search of defendant's truck.
Affirmed.
[Rehearing denied December 18, 1990]
Ward & Maglaras, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney and William T.
Koot, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
District court's denial of defendant's day-of-trial request for postponement to hire another attorney or to represent himself pro se
was justified in trial on conspiracy to manufacture methamphetamine, possession of controlled substance, attempt to manufacture
methamphetamine, trafficking in methamphetamine and racketeering on grounds that case was especially complex requiring assistance
of counsel. U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Denial of right to self-representation is never subject to harmful error analysis; it is per se harmful. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Court sometimes permits self-representation to be denied where: defendant's request for self-representation is untimely; request is
equivocal; request is made solely for purposes of delay; defendant abuses right of self-representation by disrupting judicial process;
case is especially complex, requiring assistance of counsel; or defendant is incompetent to voluntarily and intelligently waive his or her
right to counsel. U.S.C.A.Const. Amend. 6.
4. Criminal Law.
Court may deny defendant's request to represent himself when case is so complex that defendant would virtually be denied fair
trial if allowed to proceed pro se. U.S.C.A.Const. Amend. 6.
5. Criminal Law.
Request for self-representation may not be denied solely because court considers defendant to lack reasonable legal skills or
because of inherent inconvenience often caused by pro se litigant. U.S.C.A.Const. Amend. 6.
106 Nev. 438, 440 (1990) Lyons v. State
6. Criminal Law.
Defendant's day-of-trial request for postponement to hire another attorney or represent himself pro se was properly denied on
grounds of untimeliness alone in absence of any good cause justifying lateness of request and where state and district court would have
been seriously inconvenienced by postponement; overruling Baker v. State, 97 Nev. 634, 637 P.2d 1217.
7. Criminal Law.
Three standards exist regarding timeliness of request for self-representation; first, if request is made well before trial, right to
self-representation is timely as matter of law and may not be denied absent justification other than timeliness; second, if request is
made shortly before or on day of trial, court may, in its discretion, deny request as untimely unless there is reasonable cause to justify
lateness of request; third, if request is made during trial, court has larger measure of discretion to grant or deny request. U.S.C.A.Const.
Amend. 6.
8. Criminal Law.
District court is permitted, in its discretion, to deny request for self-representation on ground of untimeliness alone, if request is
not made within reasonable time before commencement of trial or hearing and there is no showing of reasonable cause for lateness of
request; if it is clear that request comes early enough to allow defendant to prepare for trial without need for continuance, request
should be deemed timely. U.S.C.A.Const. Amend. 6.
9. Criminal Law.
If there exists reasonable cause to justify late request for self-representation, request must be granted; if there is no such reasonable
cause, court may deny late request. U.S.C.A.Const. Amend. 6.
10. Criminal Law.
In denying request for self-representation on ground of untimeliness, there need not be specific finding of dilatory intent, which is
separate and distinct basis for denial of request. U.S.C.A.Const. Amend. 6.
11. Criminal Law.
District court should set forth in its record its reasons for denying defendant's request to represent himself. U.S.C.A.Const. Amend.
6.
12. Criminal Law.
Decision to grant or deny late request for self-representation resides in sound discretion of district courts. U.S.C.A.Const. Amend.
6.
13. Arrest; Drugs and Narcotics.
Observations made by police officers during surveillance of defendant and other persons suspected of illegal drug activity as well
as defendant's efforts to evade surveillance, prior to defendant's arrest, were sufficient to establish probable cause to justify defendant's
warrantless arrest on suspicion of conspiracy to manufacture methamphetamine and subsequent search of his truck, independent of
observation made by officers after defendant's arrest that odors associated with manufacture of methamphetamine were coming from
defendant's truck, which observation defendant contended was clearly without basis.
14. Arrest.
Warrantless felony arrest may be made if arresting officer knows of facts and circumstances sufficient to lead prudent person to
believe that felony was committed by arrestee.
106 Nev. 438, 441 (1990) Lyons v. State
15. Arrest.
In determining whether probable cause existed for arrest, it is appropriate to consider expertise of police officers.
Franks hearing is not required if alleged falsehood in affidavit supporting search warrant is not necessary to finding of probable
cause.
OPINION
Appellant Harold Lyons (Lyons) was convicted and sentenced on five criminal counts
relating to the manufacture of methamphetamine. The most important issue raised by this
appeal is whether the district court erred by denying Mr. Lyons' day-of-trial request to
represent himself pro se. We conclude that the district court did not abuse its discretion in
denying Lyons' request under the facts of this case. Because Lyons' remaining contentions do
not warrant reversal, we affirm the judgment of conviction in all respects.
FACTS
Police conducted surveillance of several persons suspected of conspiring to manufacture
methamphetamine. Officers observed purchases of large amounts of certain chemicals and
laboratory glassware connected to a Las Vegas business. On March 2, 1985, based on their
observations during surveillance, police arrested Lyons without a warrant in a U-Haul truck
on suspicion of conspiracy to manufacture methamphetamine. Police secured the truck, and
soon thereafter obtained a search warrant for the truck and several other locations relating to
Lyons and several other members of the suspected conspiracy. Found in the truck which
Lyons had been driving were large amounts of precursor chemicals for the manufacture of
methamphetamine, as well as laboratory glassware.
Lyons and several other suspected co-conspirators were indicted by a Clark County grand
jury in May 1985. On October 8, 1985, the indictment was dismissed without prejudice. On
May 9, 1986, the grand jury returned a second indictment charging Lyons and several others
with several drug-related counts.
Lyons was represented by attorney John Momot. On June 7, 1988, Momot moved to
withdraw from the case, and the court granted the motion. On June 16, 1988, the date set to
confirm another counsel for Lyons, the court minutes state that: Mr. Lyons represented to
[the] court he wants to get his own attorney, and his son is going to help him do this;" the
court continued the matter for two weeks to give Lyons a chance to obtain counsel.
106 Nev. 438, 442 (1990) Lyons v. State
and his son is going to help him do this; the court continued the matter for two weeks to give
Lyons a chance to obtain counsel. Two weeks later, Lyons reported that he had been unable to
obtain counsel. The court then attempted to appoint several attorneys for Lyons, but each
attorney declined for various reasons. Finally, on August 2, 1988, James Mayberry was
appointed as Lyons' counsel. On August 16, 1988, the court set the trial date at December 5,
1988, approximately two years and seven months after the second grand jury indictment.
On November 10, 1988, the court heard three motions submitted by Lyons' counsel James
Mayberry, of which the court granted one (a motion to sever a count). On December 5, 1988,
the first day of trial and immediately before scheduled voir dire of prospective jurors, Lyons
moved the court for a postponement of the trial. Lyons said that he was dissatisfied with
Mayberry because he failed to file certain motions. Lyons said that he had initially refused to
accept Mayberry as counsel unless Mayberry promised to file certain pre-trial motions
conceived of by Lyons, an assertion that Mayberry qualified by adding that he informed
Lyons that he would file only motions he felt had some merit. Based on his dissatisfaction
with Mayberry, Lyons requested the court to grant a postponement to give him time to hire
another attorney of his own choosing, or, in the alternative, to proceed in pro se.
The district judge asked Mr. Lyons what other pretrial motions he wanted to file and
Lyons stated a number of them, these motions generally dealing with the conduct of the grand
jury in indicting Lyons and with the conduct of the prosecutor. The district court denied them
all as either having already been heard or having no merit.
Mr. Lyons again repeated his request to represent himself or to hire an attorney to
represent him in a way he considered proper, and the court's response reflected the frustration
and impatience it felt with Lyons and his request for a postponement:
Mr. Lyons, I gave you every opportunity to do that in the last year. I have tried every
attorney in this town to be your counsel and they have basically refused.
I now have a good attorney for you and we are going to go to trial with that attorney
because you are not going to get along with any attorney.
The court stated that the written motions it had received directly from Lyons showed that
he did not know how to present a written document to the court and that Lyons' statements
that morning showed that he did not know how to present relevant evidence.
106 Nev. 438, 443 (1990) Lyons v. State
evidence. The court concluded that the case was too complicated for Lyons to represent
himself and that Lyons was attempting to make a mockery of the court.
At trial, the State proved that the truck Lyons was driving when he was arrested contained
chemicals and lab equipment sufficient to manufacture large amounts of methamphetamine.
The State also proved that about 3.5 pounds of a substance identified as methamphetamine
had been seized at a warehouse owned by another suspected co-conspirator, Walter
Crutchfield. One Derek McClean, aka Joe Bentz, testified that he had manufactured
methamphetamine at several locations, including Crutchfield's warehouse, and that Lyons had
paid him $2,000 per week for manufacturing the drug.
The jury found Lyons guilty of one count each of: conspiracy to manufacture
methamphetamine, possession of a controlled substance (ephedrine), attempt to manufacture
methamphetamine, trafficking in methamphetamine in the amount of 400 grams or more, and
racketeering. The district court further found Lyons to be an habitual criminal pursuant to
NRS 207.010(2), based on six prior felony convictions. The court sentenced Lyons to life
without the possibility of parole based on this finding. Lyons was sentenced to various other
terms of imprisonment, which run concurrent with the sentence of life without possibility of
parole.
LEGAL DISCUSSION
I. Lyons' request to exercise his sixth amendment right to self-representation.
[Headnotes 1-3]
This case gives us the opportunity to review a defendant's right to represent himself and
when that right must be asserted. This court has held that criminal defendants have an
unqualified right to self-representation, so long as there is a voluntary and intelligent
waiver of the right to counsel. Baker v. State, 97 Nev. 634, 636, 637 P.2d 1217, 1218 (1981)
(citing Faretta v. California, 422 U.S. 806 (1975)). Additionally, the denial of this right is
never subject to harmful error analysis; it is per se harmful. McKaskle v. Wiggins, 465 U.S.
168, 177 n.8 (1984). Although the constitutional right of self-representation is generally
protected by the courts, courts sometimes permit self-representation to be denied, where: (1)
the defendant's request for self-representation is untimely; (2) the request is equivocal; (3) the
request is made solely for purposes of delay; (4) the defendant abuses the right of
self-representation by disrupting the judicial process; {5) the case is especially complex,
requiring the assistance of counsel; or {6) the defendant is incompetent to voluntarily and
intelligently waive his or her right to counsel.
106 Nev. 438, 444 (1990) Lyons v. State
process; (5) the case is especially complex, requiring the assistance of counsel; or (6) the
defendant is incompetent to voluntarily and intelligently waive his or her right to counsel. See
2 La Fave and Israel. Criminal Procedure 11.5(d) (Supp. 1990) (collecting cases); Young v.
State, 98 Nev. 467, 653 P.2d 153 (1982); Baker, supra; Block v. State, 95 Nev. 933, 604 P.2d
338 (1979); Schnepp v. State, 92 Nev. 557, 554 P.2d 1122 (1976); Ashcraft v. Florida, 465
So.2d 1374 (Fla.App. 1985).
Lyons argues that the district court erred in denying his day-of-trial request for a
postponement to hire another attorney or to represent himself pro se. The district court denied
his request for a continuance because he had already been represented by several attorneys
and the case was too complicated and complex for him to represent himself. We conclude
that the district court's denial was justified because this was an especially complex trial and
because Lyons' request was untimely.
The trial below lasted ten days, with 20 appearances on the witness stand for the
prosecution and 10 for the defense. Several of Lyons' possible defenses to the charge of
running a methamphetamine lab were quite technical. These defenses required an
understanding of both the possible legal and illegal uses of the chemicals and lab equipment
found in the U-Haul, as well as the ability to communicate these technical facts to a jury.
Additionally, this was a racketeering case described by prosecutors as involving the largest
illicit methamphetamine manufacturing enterprise ever uncovered in Nevada. The State had
to prove a series of transactions in order to demonstrate racketeering. Taken alone, any single
purchase or movement of a precursor chemical by the conspirators might seem innocuous and
legitimate. It was only by painstakingly piecing together numerous purchases, movements,
statements and other transactions by the conspirators that the State could demonstrate beyond
a reasonable doubt the existence of an organized and long-standing conspiracy to
manufacture methamphetamine. In short, this was a racketeering case and was much more
complex than the usual drug possession or trafficking case.
[Headnotes 4, 5]
A court may deny a defendant's request to represent himself when a case is so complex
that the defendant would virtually be denied a fair trial if allowed to proceed pro se. See
Ashcraft, supra.
1
We conclude that the district court was correct in denying Lyons' request
on the ground that, as the court stated, "the trial is too complex."
__________

1
The district court stated that it believed Lyons' legal skills were inadequate to allow him to represent
himself. While we affirm the court's decision because this case was complex, we note that a request for
self-representation may not be denied solely because the court considers the defendant to lack reasonable legal
skills or because of the inherent inconvenience often caused by pro se litigants. See, e.g., U.S. v. Flewitt, 874
F.2d 669 (9th Cir. 1989).
106 Nev. 438, 445 (1990) Lyons v. State
Lyons' request on the ground that, as the court stated, the trial is too complex.
[Headnote 6]
Next is the issue of the timeliness of Lyons' request. The U.S. Supreme Court has not
specifically addressed the element of timeliness of a request for self-representation. The cases
from other jurisdictions state two main views on this issue. See generally 98 A.L.R.3d 13
15 (Supp. 1989). First, some courts hold that a request for self-representation is timely as a
matter of law so long as it is made before the swearing of the jury. Other courts hold that a
request may be denied as untimely where the request is not made a reasonable time before
trial and there is no good cause justifying the lateness of the request. See especially People v.
Windham, 560 P.2d 1187 (Cal. 1977), cert. denied, 434 U.S. 848 (1977), reh'g den., 434 U.S.
961 (1977); People v. Hall, 150 Cal.Rptr. 628 (Ct.App. 1978) (holding that district court did
not abuse its discretion in denying a day-of-trial request as untimely); People v. Herrera, 163
Cal.Rptr. 435 (Ct.App. 1980) (holding that district court abused its discretion in denying a
day-of-trial request for self-representation because defendant did not request a continuance
and there was justification for the lateness of the request). In Baker, we adopted the former
view, holding that a request for self-representation made before the swearing of the jury is
timely as a matter of law and may not be denied absent a showing of dilatory intent or some
other ground for denial. We hereby adopt the view stated by Windham and overrule our Baker
decision on this point.
[Headnote 7]
The Court of Appeals of the State of Washington correctly notes that Windham creates
three somewhat different standards regarding timeliness. First, if the request is made well
before trial, the right to self-representation is timely as a matter of law and may not be denied
absent a justification other than timeliness. Second, if the request is made shortly before or on
the day of trial, the court may, in its discretion, deny the request as untimely unless there is
reasonable cause to justify the lateness of the request. Third, if the request is made during
trial, the court has a larger measure of discretion to grant or deny the request. See State v.
Fritz, 585 P.2d 173 (Wash.Ct.App. 1978). The present case concerns the second of these
three situations.
[Headnotes 8-11]
In accord with Windham, we believe that a district court should be permitted, in its
discretion, to deny a request for self-representation on the ground of untimeliness alone, if the
request is not made within a reasonable time before commencement of trial or hearing
and there is no showing of reasonable cause for the lateness of the request.
106 Nev. 438, 446 (1990) Lyons v. State
is not made within a reasonable time before commencement of trial or hearing and there is no
showing of reasonable cause for the lateness of the request. If it is clear that the request
comes early enough to allow the defendant to prepare for trial without need for a continuance,
the request should be deemed timely. If there exists reasonable cause to justify a late request,
the request must be granted. If there is no such reasonable cause, the court may deny a late
request. There need not be a specific finding of dilatory intent, which is a separate and
distinct basis for denial of the request. The district courts should set forth in the record the
reasons for denying a defendant's request to represent himself. See Windham, supra; Fritz,
supra; Hall, supra.
[Headnote 12]
Like the court in Windham, we stress that our decision today must not be used to limit the
exercise of the fundamental constitutional right of self-representation. The decision to grant
or deny late requests resides in the sound discretion of the district courts. Indeed, we
encourage district courts to accommodate defendants' requests where this can be done without
undue disruption or delay.
Turning to the facts of this case, we conclude that the court's denial of Lyons' request was
justified on grounds of timeliness. The request was made on the day trial was set to
commence. Additionally, the record does not indicate good cause justifying the lateness of the
request. The hearing on the last flurry of motions occurred about three and one-half weeks
before trial. At this earlier time, Mr. Lyons had reason to know that his counsel would not file
all the motions he had requested. Had Lyons made his request at the earlier time, he might not
have needed the postponement he requested on the day of trial. Finally, Lyons' primary
request was for a continuance, which would have delayed the trial. The State's case involved
many witnesses and the trial actually lasted ten days. Thus, the State and the district court
would have been seriously inconvenienced by the delay.
II. The legality of Lyons' arrest.
[Headnotes 13, 14]
Lyons' second principal argument is that police lacked sufficient probable cause of
conspiracy to manufacture methamphetamine to justify Lyons' warrantless arrest and the
subsequent search of the U-Haul truck pursuant to warrant. A warrantless felony arrest may
be made if the arresting officer knows of facts and circumstances sufficient to lead a prudent
person to believe that a felony was committed by the arrestee. Block, 95 Nev. at 935, 604
P.2d at 339. Applying Block, we hold that the arresting officers had sufficient factual basis
for both the arrest and the subsequent search of the truck.
106 Nev. 438, 447 (1990) Lyons v. State
officers had sufficient factual basis for both the arrest and the subsequent search of the truck.
Observations made by the police officers during surveillance clearly gave rise to a
suspicion of drug activity. On February 27, 1985, Los Angeles Detective Craig Peterson
observed a man later identified as Joe Bentz driving U-Haul #1 into the loading area of Deep
Water Chemical Company in Carson, California, and observed him loading several drums or
barrels into the U-Haul. A Deep Water employee told Peterson that Bentz was picking up an
order of about 3,200 pounds of hydriotic acid on behalf of one Walter Crutchfield who ran a
company called Treat It in Las Vegas; the employee pointed out that Bentz at first had
offered to pay for the chemical with $22,400 in cash. Police followed Bentz. The next day,
they observed Bentz purchase numerous glass condensers with cash and load them into the
U-Haul. The police tailed Bentz, who drove the truck to 3000 Spokane Drive in Las Vegas.
The Los Angles police began cooperating with Las Vegas police. Las Vegas Detective
Richard Travers informed Peterson that, on a tip from DEA agents, he had previously
observed a 200-kilo shipment of ephedrine to Walter Crutchfield. Having investigated about
fifty illicit drug labs, Peterson attested that hydriotic acid and ephedrine were precursor
chemicals used together in the making of methamphetamine. Thus, the connection of these
two chemicals and the lab equipment to Crutchfield created probable cause to believe there
was illegal drug activity.
The events of the evening of March 1 and the early morning of March 2, 1985, are
sufficient to connect Lyons with the illegal drug activity. On March 1, officers observed
Lyons in the company of Bentz and Randall Burnside at the Horseshoe Casino. Bentz was
followed and later observed at a 1407 Industrial Road property identified as belonging to
Crutchfield loading U-Haul #1 with buckets, barrels and miscellaneous types of
glassware. At two other mini-storage facilities, Bentz and others were also observed loading
items, including barrels which appeared to be chemical containers, into U-Haul #1 and a
second U-Haul. Officers then followed Bentz and U-Haul #1 to a mobile home. Later they
observed Lyons removing numerous cardboard boxes from the mobile home and loading
them into U-Haul #1. Several hours later, at about 1:00 a.m. on March 2, officers observed
two persons enter and begin driving U-Haul #1.
Lyons' best counter argument is that there was insufficient evidence that he personally was
involved in any drug activity. For example, he might have been a legitimate trucker working
for Crutchfield. He argues that officers could not be certain that he was actually moving drug
paraphernalia because the truck had been loaded and unloaded so many times.
106 Nev. 438, 448 (1990) Lyons v. State
Despite this, other suspicious activities create a substantial and reasonable inference that
Lyons' movements that evening were connected with illegal drug activity. One officer
reported that, while he was gone from his vehicle during surveillance of U-Haul #1, someone
slit his right rear tire. Also, when officers began following U-Haul #1 at 1:00 a.m.
southbound on Boulder highway, they observed suspicious driving: the U-Haul would
continually pull off the highway and turn off its lights, apparently in any attempt to see if
anyone was tailing the truck. Finally, at about 3:15 a.m., U-Haul #1 changed its direction and
began heading west at a high rate of speed (clocked by police at about 80 mph). The truck
pulled behind a motel and turned off the headlights. Concluding that their surveillance had
been compromised, officers decided to arrest the occupants of U-Haul #1. At the motel, they
found Lyons and Randall Burnside crouched down behind the truck. Lyons and Burnside
were arrested for conspiracy to manufacture methamphetamine.
[Headnote 15]
Besides the facts above, two other things support the district court's finding of probable
cause. First, it is appropriate to consider the expertise of police officers. 1 La Fave Search
and Seizure 3.2(c) (2d ed. 1987). In the subsequent affidavit for the search warrant for the
truck, Detective Peterson, who had substantial experience in investigating drug labs, stated
that, based on the above facts, it was his opinion that this was a methamphetamine operation.
Second, a supportive case is U.S. v. Fooladi, 703 F.2d 180 (5th Cir. 1983) (officers observed
suspect order glassware and receive shipment of a single precursor chemical, and officer
smelled odors associated with manufacture of drugs coming from suspect's house; court held
that, even though the above facts, considered in isolation are quite innocent, when taken
together the facts constituted probable cause for a search warrant).
[Headnote 16]
In addition to the above facts, there was another observation made by the officers after the
arrest, which officers used to obtain the warrant to search the truck. Specifically, one officer
said he smelled odors associated with manufacture of methamphetamine coming from the
truck. In district court, Lyons alleged that the officer must have been lying about the odors
because the precursor chemicals later found in the truck were clearly odorless until combined.
Lyons requested a special suppression hearing, known as a Franks
2
hearing, to examine the
alleged falsehood, but the court refused the request.
__________

2
Franks v. Delaware, 438 U.S. 154 (1978).
106 Nev. 438, 449 (1990) Lyons v. State
court refused the request. Lyons contends that this was error. We disagree. A Franks hearing
is not required if the alleged falsehood in an affidavit supporting a search warrant is not
necessary to the finding of probable cause. See 2 La Fave Search and Seizure, supra, 4.4(c)
(collecting cases). We conclude that the surveillance observations prior to the arrest were
sufficient to establish probable cause, independent of the alleged smell coming from the
truck.
CONCLUSION
Under the circumstances of this case, the district court's denial of Lyons' day-of-trial
request to represent himself pro se was justified on the grounds of untimeliness and the
complexity of the trial. Contrary to Lyons' contention, the observations made by police during
surveillance created probable cause to support Lyons' arrest and the search of the truck. We
have carefully considered Lyons' remaining contentions and conclude that they do not warrant
reversal. Since the judgment is supported by substantial evidence as to each count, we hereby
affirm the judgment in its entirety.
Young, C. J., Steffen, Springer and Mowbray, JJ., concur.
____________
106 Nev. 449, 449 (1990) State, Dep't of Human Resources v. Elcano
THE STATE OF NEVADA, DEPARTMENT OF HUMAN RESOURCES, WELFARE
DIVISION, Appellant, v. PAUL D. ELCANO, JR., and ROBERT H. LUDLOW,
Respondents.
No. 20113
July 18, 1990 794 P.2d 725
Appeal from judgments of the district court awarding attorney's fees to respondents.
Second Judicial District Court, Washoe County; Jerry C. Whitehead, Judge.
The district court ordered State Department of Human Resources, Welfare Division to pay
to attorneys for worker found to have been suffering from job related polio a portion of the
amount paid to it by State Industrial Insurance System as reimbursement of medical expenses
paid by Department. The Department appealed. The Supreme Court held that payment was
appropriate, under common fund doctrine, as there would have been no fund out of which
Department would have been paid but for attorneys establishing that worker's polio was job
related.
Affirmed.
Brian McKay, Attorney General, Carson City; Jonathan D. Carter, Deputy Attorney
General, Las Vegas, for Appellant.
Joseph R. Plater, Reno, for Respondents.
Attorney and Client.
Attorneys for worker disabled by polio were entitled to portion of payment made by State Industrial Insurance System to State
Department of Human Resources, Welfare Division, as reimbursement of medical expenses of worker paid by Department, after it was
determined through efforts of attorneys that worker's illness was job related; under common fund doctrine there would have been no
fund out of which payment to Department would have been made but for attorney's activities.
OPINION
Per Curiam:
The principal issue in this appeal is whether the district court erred by ordering appellant
to pay attorneys' fees to respondents based on the common fund doctrine. In the action below,
the district court found that solely because of respondents' efforts, appellant will be
reimbursed $196,379.96 from the State Industrial Insurance System. Thus, the district court
ordered appellant to pay the attorney's fees from the money to be reimbursed. We affirm.
FACTS
Appellant, the State of Nevada Department of Human Resources, Welfare Division
(Welfare Division), administers the Nevada Medicaid Division. Respondents, Paul Elcano
and Robert Ludlow, are attorneys who successfully represented Leagh Lamoureaux on a
worker's compensation claim before the State Industrial Insurance System (SIIS). In addition
to the reimbursement due the Welfare Division, Elcano's and Ludlow's efforts have resulted
in SIIS setting aside approximately eight million dollars to cover Lamoureaux's lifetime
medical expenses. Elcano and Ludlow make no claim on this fund. Lamoureaux is now a
ventilator-dependent quadriplegic.
While on the job, Lamoureaux contracted polio from exposure to raw, untreated sewage.
However, at first, Lamoureaux's doctors could not diagnose his condition or pinpoint the
cause. Therefore, SIIS was not billed for Lamoureauxs initial medical expenses. These were
paid by his union's trust fund, an insurance company, the County of Santa Clara, California,
and the Medicaid Division. Until now, the Medicaid Division has paid benefits of
$196,379.96 on claims totalling $264,713.34 for Lamoureaux's treatment.
of $196,379.96 on claims totalling $264,713.34 for Lamoureaux's treatment.
Lamoureaux first retained Ludlow, a California lawyer, to assist him in obtaining all
possible benefits. When Ludlow became concerned that Lamoureaux had polio and that it
was job related, he attempted to associate with a Nevada attorney on the case. Nevertheless,
no other attorney would take the case because of the apparent difficulty and unlikelihood of
success. Finally, Elcano agreed to pursue Lamoureaux's claim. The referral agreement
between Ludlow and Elcano stipulates that any attorneys' fees would be split 60 percent to
Elcano and 40 percent to Ludlow.
Lamoureaux applied for permanent total disability worker's compensation benefits with
SIIS, but his claim was denied by SIIS on the grounds there was insufficient evidence to
conclude the claim was a compensable, occupational disease. After the denial, Elcano began
extensive research to determine if Lamoureaux's quadriplegia was job related. Elcano then
appeared on Lamoureaux's behalf to appeal SIIS' denial at a hearing before a Department of
Administrative Hearing Officer. The Hearing Officer reversed the denial and found that on
review of the extensive material provided by Elcano, Lamoureaux, and SIIS, Lamoureaux
contracted polio while on the job. SIIS and Lamoureaux's employer subsequently appealed
the Hearing Officer's decision. During the pendency of the appeal, SIIS' own expert
concluded that Lamoureaux had contracted polio on the job. SIIS and Lamoureaux's employer
consequently withdrew their appeals and the parties settled the worker's compensation claim.
Thus, SIIS became obligated to reimburse Lamoureaux's medical providers, including the
Welfare Division. Respondents then initiated this action to recover their attorneys' fees from
the money to be reimbursed to the Welfare Division. The district court granted summary
judgment in favor of respondents as to liability and, at the conclusion of the trial, awarded
$29,493.36 to Elcano and $19,662.24 to Ludlow. Their combined award is approximately 25
percent of the Welfare division's recovery. In addition, the district court found that Elcano's
and Ludlow's representation of Lamoureaux was of the highest level and the result obtained
equally outstanding. The district court further found that the Welfare Division never
investigated whether Lamoureaux was entitled to worker's compensation benefits.
DISCUSSION
On appeal, the Welfare Division argues that the district court erred by awarding
attorneys' fees to respondents under the common fund doctrine.
erred by awarding attorneys' fees to respondents under the common fund doctrine.
This argument lacks merit. An exception to the general rule that attorneys' fees may not be
recovered by a party to litigation is the common fund doctrine. Guild v. First Nat'l Bank, 95
Nev. 621, 623, 600 P.2d 238, 239 (1979). If the efforts of a litigant or his attorney create a
common fund benefitting third persons, the doctrine requires these passive beneficiaries to
pay their fair share of litigation expenses by allowing the litigant or attorney to recover
reasonable attorneys' fees from the common fund. Boeing v. Van Gemert, 444 U.S. 472, 478
(1980). Here, but for respondents' labor, the common fund would not have been created and
the Welfare Division would not receive any money from SIIS. In addition, upholding the
award would further the policies behind the common fund doctrine by being fair to
respondents, requiring the Welfare Division to help pay for the expenses incurred in
recovering its own money, and encouraging attorneys to undertake and diligently pursue cases
such as this with the assurance of prompt and direct compensation. Guild, 95 Nev. at 623,
600 P.2d at 239, (quoting In re Stauffer's Estate, 346 P.2d 748, 752-753 (Cal. 1959)).
Therefore, it is only right that the Welfare Division, as passive beneficiaries of respondents'
efforts, pay attorneys' fees to respondents.
Accordingly, we find the district court did not err in ordering appellant to pay attorneys'
fees to respondents from the common fund.
Having considered the parties' remaining contentions, we conclude they lack merit.
1
Hence, we affirm the judgments below.
__________

1
The Welfare Division's attempt to extend the rationale of Consumers League v. Southwest Gas, 94 Nev.
153, 576 P.2d 737 (1978) to this case is unpersuasive. Consumers League is factually distinguished and thus not
controlling authority.
____________
106 Nev. 453, 453 (1990) State, Dep't of Motor Vehicles v. Hutchings
THE STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC
SAFETY, NEVADA HIGHWAY PATROL DIVISION, Appellants, v. ROY
HUTCHINGS, TWANNA HOLLY, NEVADA HIGHWAY PATROL
ASSOCIATION, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC
SAFETY, NEVADA HIGHWAY PATROL DIVISION, Respondents.
No. 20130
CHARLES F. RIKALO, JOHN R. GIURLANI, GALEN MITCHELL, OPERATING
ENGINEERS, LOCAL NO. 3, PUBLIC EMPLOYEES DIVISION, Appellants, v.
THE STATE OF NEVADA, DEPARTMENT OF PERSONNEL, DEPARTMENT
OF ADULT PAROLE AND PROBATION, DEPARTMENT OF MOTOR
VEHICLES AND PUBLIC SAFETY, Respondents.
No. 20158
July 18, 1990 795 P.2d 497
Consolidated appeals from a judgment in Case No. 20130; and from a denial of a petition
for a writ of mandamus in Case No. 20158. Second Judicial District Court, Washoe County;
Jerry C. Whitehead, Judge (No. 20130); James J. Guinan, Judge (No. 20158).
Employees of Nevada Highway Patrol Division brought action claiming that their salaries
were not set at prevailing rates, in violation of statute. The district court ordered retroactive
salary adjustments, and Division appealed. In second case, state employees and union filed
petition for writ of mandamus to compel state agencies to set salaries at prevailing rates. The
district court dismissed petition, and employees and union appealed. Upon consolidation of
appeals, the Supreme Court held that statute did not mandate that salaries of classified service
employees be set at prevailing rates as determined by Department of Personnel's salary
surveys, but instead statute was satisfied by enacting across-the-board increases designed to
bring salaries of classified service employees in line with overall average of comparable jobs
in Nevada and western states.
Case No. 20130 reversed; Case No. 20158 affirmed.
Brian McKay, Attorney General, Brian R. Hutchins, Chief Deputy Attorney General, Chan
G. Griswold, Deputy Attorney General, and Cheryl A. Lau, Deputy Attorney General, Carson
City, for Appellants The State of Nevada, Department of Motor Vehicles and Public Safety,
Nevada Highway Patrol Division.
Lawrence B. Bernard, Reno; Walter R. Tarantino, Carson City; and Aitchison and Moore,
Portland, Oregon, for Respondents Roy Hutchings, Twanna Holly, Nevada Highway Patrol
Association, Department of Motor Vehicles and Public Safety, Nevada Highway Patrol
Division.
Lynn Rossman Faris, Oakland, California, and Walter R. Tarantino, Carson City, for
Appellants Charles F. Rikalo, John R. Giurlani, Galen Mitchell, Operating Engineers, Local
No. 3, Public Employees Division.
Brian McKay, Attorney General, Brian R. Hutchins, Chief Deputy Attorney General, and
Chan G. Griswold, Deputy Attorney General, Carson City, for Respondents The State of
Nevada, Department of Personnel, Department of Adult Parole and Probation, Department of
Motor Vehicles and Public Safety.
1. States.
Statute providing that salaries for classified service employees must be set based upon prevailing rates paid in government and
industry for comparable jobs within state of Nevada and western states, where appropriate, does not mandate that salaries be set at
prevailing rates as determined by Department of Personnel's salary surveys. NRS 284.175, subd. 5.
2. States.
Legislature's enactment of across-the-board increases designed to bring salaries of Nevada's classified service employees in line
with overall average for comparable jobs in Nevada and western states satisfied statute requiring that salaries for classified service
must be based upon prevailing rates paid in government and industry for comparable jobs within state of Nevada and western states,
where appropriate, although salaries of some employees remained below the prevailing rates for their job classifications. NRS 284.175,
subd. 5.
OPINION
Per Curiam:
These are consolidated appeals
1
from a judgment retroactively increasing certain state
employees' salaries in Case No. 20130 (State v. Hutchings), and from a denial of a petition
for a writ of mandamus compelling the state to increase certain state employees' salaries in
Case No. 20158 (Rikalo v. State). For the reasons set forth below, we reverse the district
court's judgment in Case No. 20130, and affirm the district court's denial of the petition in
Case No. 20158.
__________

1
The court has determined that consolidation of these appeals will assist in their disposition. NRAP 3(b).
The facts of each case are as follows:
Hutchings: Respondents Roy Hutchings and Twanna Holly are employed by the Nevada
Highway Patrol Division of the State of Nevada (NHP). Hutchings is a Trooper; Holly is an
Administrative Aide II. Both positions fall within the classified service of the State of
Nevada.
Every two years the State of Nevada, Department of Personnel, conducts and then provides
the Nevada State Legislature with a salary survey to assist the legislature in making wage
adjustments within the state's classified service. The purpose of the survey is to determine,
pursuant to NRS 284.175(5), the prevailing rates paid in government and industry for
comparable jobs within the State of Nevada and western states. Accordingly, in 1986 the
Department of Personnel conducted a salary survey, focusing on 31 benchmark
classifications rather than each of the approximately 1,200 job classifications contained
within Nevada's classified service.
2
Among the benchmark classifications surveyed were
Highway Patrol Trooper and Administrative Aide II.
The 1986 salary survey revealed that an NHP Trooper earned 22.42 percent less than the
prevailing rate, and an NHP Administrative Aide II earned 10.94 percent less than the
prevailing rate. The survey also revealed that certain positions within Nevada's classified
service paid as much as 31.89 percent below the prevailing rate, while others paid as much as
19.92 percent above the prevailing rate, and that overall, state salaries in Nevada were 3.1
percent below the average for comparable jobs in Nevada and western states. Armed with the
above information, the 1987 Nevada Legislature enacted an across-the-board 3.0 percent pay
increase for classified service employees.
Respondents subsequently commenced the instant action, claiming that appellants' failure
to set their salaries at prevailing rates violated the provisions of former NRS 284.175(5).
Following a bench trial, the district court ruled in favor of respondents and ordered their
salaries adjusted immediately to the prevailing rates as determined by the 1986 salary survey.
The district court subsequently ruled that its decision was to apply retroactively to the date the
legislature last convened, July 1, 1987. This appeal ensued.
Rikalo: Appellants in this case are: Charles F. Rikalo, Criminal Investigator III for the
Department of Motor Vehicles and Public Safety {DMVPS); John R.
__________

2
Data for the 1986 salary survey was collected from government and private employers in Nevada, and from
government employers in eight western states: Arizona, California, Colorado, Idaho, Montana, Oregon, Utah and
Washington.
Public Safety (DMVPS); John R. Giurlani, Adult Parole and Probation Officer II; Galen
Mitchell, Investigator for the Bureau of Enforcement of the DMVPS; and the Operating
Engineers, Local 3, Public Employees Division.
In March 1989, appellants filed the instant petition requesting that the district court issue a
writ of mandamus compelling respondents to set their salaries, and the salaries of all others
similarly situated, at the prevailing rates as determined by the Department of Personnel's
salary survey conducted in July 1988. Appellants further requested an award of back pay
based upon respondents' failure to set their salaries at prevailing rates as determined by
Department of Personnel salary surveys conducted in July 1984, and July 1986. As in
Hutchings, appellants argue that respondents have violated former NRS 284.175(5) by failing
to set their salaries at prevailing rates as determined by the above salary surveys. The district
court dismissed the petition in May 1989. This appeal ensued.
DISCUSSION
[Headnote 1]
The classified service employees in both cases argue that former NRS 284.175(5)
3
mandates that their salaries be set at the prevailing rates as determined by the Department of
Personnel's salary surveys. We disagree.
Former NRS 284.175(5) provides that:
During regular legislative sessions salaries for the classified service of the state must
be set based upon the prevailing rates paid in government and industry for comparable
jobs within the State of Nevada and western states, where appropriate.
__________

3
The 1989 Nevada Legislature amended NRS 284.175(5). The current version, effective March 8, 1989,
provides that:
5. In making recommendations during regular legislative sessions concerning salaries for the
classified service of the state, the director shall consider factors such as:
(a) Surveys of salaries of comparable jobs in government and private industry within the State of
Nevada and western states, where appropriate;
(b) Changes in the cost of living;
(c) The rate of turnover and difficulty of recruitment for particular positions; and
(d) Maintaining an equitable relationship among classifications.
Because we hold that, under the provisions of former NRS 284.175(5), the classified service employees in
these two cases are not entitled to the relief they seek, we need not decide whether the legislature's 1989
amendment was an unconstitutional exercise of judicial power.
priate. The provisions of this subsection are subject to the limitations imposed by NRS
281.123.
4

(Emphasis added.)
The words based upon provide the key to resolving the instant disputes. The district
court's ruling in Hutchings relies extensively on Gottlieb v. Department of Water & Power,
63 Cal.App.3d 202, 133 Cal.Rptr. 614 (1976). At issue in Gottlieb was the language of
section 425 of the Los Angeles City Charter which required the city's department of water and
power to pay its employees a salary or wage at least equal to the prevailing salary or wage
for the same quality of service rendered to private persons, firms or corporations under
similar employment, in case such prevailing wage or salary can be ascertained. Gottlieb, 63
Cal.App.3d at 206, 133 Cal.Rptr. at 615-616 (emphasis added). Accordingly, the California
Court of Appeal held that by enacting across-the-board pay increases, the department of water
and power had not fully complied with section 425. Instead, the department was required to
determine the applicable prevailing wages in a reasonably accurate and comprehensive
manner, and to pay its employees at least that amount. Gottlieb, 63 Cal.App.3d at 209-10, 133
Cal.Rptr. at 617-18.
Unlike section 425 of the Los Angeles City Charter, former NRS 284.175(5) required that
the salaries of Nevada's classified service employees be set based upon prevailing rates. We
are confident that, had the legislature intended to require that such salaries be set at
prevailing rates, it would have expressly so stated. In fact, the legislature has proven itself
capable of such a pronouncement. For instance, NRS 338.020(1) specifies the wages which
must be paid to mechanics and workmen who perform services under contract with a public
body of this state. That statute provides in pertinent part that:
1. [T]he hourly and daily rate of wages must:
(a) Not be less than the rate of such wages then prevailing in the county in which the
public work is located, . . . .
In addition by including the words where appropriate in former NRS 284.175(5), the
legislature indicated that it did not intend that prevailing rates would, in all cases, be
determinative. Rather, the legislature has evinced an intent to consider other factors, such as
ease or difficulty of recruitment, in establishing salaries for Nevada's classified service
employees. Thus, the words where appropriate provide an additional basis for rejecting the
contention that the employers in the instant cases were statutorily bound to pay the
prevailing rates as determined by the salary surveys at issue.
__________

4
NRS 281.123 provides that no state employee, other than a dentist, physician, or University of Nevada
employee, may be paid a salary which exceeds 95 percent of the governor's salary.
rejecting the contention that the employers in the instant cases were statutorily bound to pay
the prevailing rates as determined by the salary surveys at issue.
[Headnote 2]
In summary, we hold that by enacting across-the-board increases designed to bring the
salaries of Nevada's classified service employees in line with the overall average for
comparable jobs in Nevada and western states, salaries for the classified service of this state
have been set based upon prevailing rates and the requirements of former NRS 284.175(5)
have been fully complied with. We therefore reverse the district court's judgment in Case No.
20130 and direct the district court to enter judgment in favor of appellants, and affirm the
district court's denial of the petition for a writ of mandamus in case No. 20158.
5

____________
106 Nev. 458, 458 (1990) Simpson v. Internat'l Community of Christ
GARY S. SIMPSON, Treasurer and Ex-Officio Tax Receiver of Washoe County; ROBERT
McGOWAN, Assessor, Washoe County; and the COUNTY OF WASHOE,
Appellants, v. THE INTERNATIONAL COMMUNITY OF CHRIST, CHURCH OF
THE SECOND ADVENT FOR THE ESTABLISHMENT OF THE RELIGION OF
COSOLARGY, DOUGLAS EUGENE SAVOY, Trustee in Trust and Overseer of the
INTERNATIONAL COMMUNITY OF CHRIST, REVEREND DOUGLAS
EUGENE SAVOY and REVEREND PHILLIP W. SNYDER, Respondents.
No. 19757
August 1, 1990 796 P.2d 217
Appeal from judgment of district court. Second Judicial District Court, Washoe County;
Robert L. Schouweiler, Judge.
County assessor appealed from an order of the district court which determined that church
was entitled to real property tax exemption for entire 1,300 acres of property it owned. The
Supreme Court, Rose, J., held that church was entitled to exemption only for 146 acres
actually used for religious purposes.
__________

5
We are constrained to express our hope that the legislature will take measures as soon as possible to correct
the substantial, negative disparity in salaries suffered by the law enforcement personnel represented in these two
cases. The vital role our law enforcement officers assume in assuring Nevadans a quality society cannot be
overstated.
Mills Lane, District Attorney, Thomas F. Riley, Chief Deputy District Attorney, Chester H.
Adams, Deputy District Attorney, Washoe County, for Appellants.
Larry R. Petty, Reno, for Respondents.
1. Taxation.
County assessor's determination that only 146 of church's 1,300 acres that were actually used for religious purposes were entitled
to exemption from real property taxes was correct; church conducted open-air religious ceremonies a few times each week at different
locations on land and claimed that entire 1,300 acres should be exempt. NRS 361.125, subd. 1, 361.140, subd. 2.
2. Taxation.
Improvement and actual use are essential requirements before church or religious organization can claim exemption from real
property taxes because of religious use of land. NRS 361.125, subd. 1, 361.140, subd. 2.
3. Taxation.
Real property tax exemption should not expand or contract depending on liturgy or methodology of religious organization. NRS
361.125, subd.1, 361.140, subd. 2.
When evidence in record supports only portion of judgment entered, that judgment must be reversed to extent that it is
unsupported.
OPINION
The district court determined that The International Community of Christ, Church of the
Second Advent for the Establishment of the Religion of Cosolargy (Community of Christ),
was entitled to a real property tax exemption pursuant to NRS 361.125(1) and NRS
361.140(2) because it was a religious organization that actually used approximately 1300
acres of real property for religious purposes. This overruled the determination of the Washoe
County Assessor that only 146 acres were actually used and, therefore, exempt from taxation.
We conclude that the record does not support granting a greater tax exemption than that
determined by the Washoe County Assessor and reverse the district court's judgment that
granted the entire two square miles of real property exempt from real property taxation.
STATEMENT OF FACTS
The Community of Christ owns two large parcels of noncontiguous real property in the
Red Rock Estates area north of Reno that it calls the north and south sanctuaries. The
sanctuaries are five miles apart.
are five miles apart. Pursuant to divine revelation, the large parcels were acquired and divided
into 25 smaller tracts of land that the Community of Christ calls churches, and each
encompasses more than 40 acres. There is a cleared open-air worship area on each church
tract that contains an altar or a communion table. The cleared area on each tract is usually
considerably less than one acre. Large crosses have been erected on several of the hills on the
property. There is no building or structure on any of the church tracts and the remaining land
is left in its natural state.
The Community of Christ holds a religious ceremony on one of the more frequently used
church tracts each week, with another ceremony conducted each week on a rotating basis
from one church tract to another. A few church tracts are frequently used, a number are used
occasionally, and several are never used for religious ceremonies. The Community of Christ's
doctrine requires that certain observances be conducted out of doors. The Church's belief is
that when one parcel is being used for worship, all of the property is combined to form a
single sanctuary. The entire two square miles of real property is used for nothing other than
religious purposes.
To assist the assessor in determining what church land is exempt from taxation pursuant to
NRS 361.125(1) and NRS 361.140(2), the Washoe County District Attorney's office issued
an opinion letter stating what should be considered in determining a religious tax exemption.
The guidelines set forth in the letter included the consideration of all improvements and
improved land actually used for religious purposes, parking and roads of ingress and egress,
landscaping, additional land necessary to separate the religious improvements from other
property so as to allow peaceful worship, and the land needed for future expansion. Using
these guidelines and his experience, an appraiser from the assessor's office inspected the two
square miles for which the church claimed a total tax exemption.
The assessor determined that the altar, communion tables, crosses and other improvements
were obviously exempt, as well as the cleared area and roads in each tract. In addition, the
assessor classified as exempt additional acreage around the cleared area so that each church
tract had about five acres of land determined to be exempt. A few parcels with more
improvements or cleared area were granted an even larger exemption. Of the 25 parcels, 146
of the 1300 acres were determined to be exempt by the assessor.
The Community of Christ challenged the assessor's determination and filed suit to have all
25 tracts, approximately two square miles of land, declared exempt from real property
taxation pursuant to NRS 361.125 and 361.140. After a bench trial, the district court found
that the Community of Christ was a religious organization or church and that it actually
occupied all of the 25 parcels.
court found that the Community of Christ was a religious organization or church and that it
actually occupied all of the 25 parcels. Judgment was entered declaring the Church's 25
parcels exempt from taxation. Washoe County, its treasurer and assessor have appealed that
decision and judgment to this court.
DISCUSSION
[Headnote 1]
The initial problem that must be addressed is that both NRS 361.125(1) and 361.140(2)
refer to a church or structure, together with the lot on which it stands or the land around it that
is actually used. There are no buildings or structures on the church tracts but only an altar or
communion table, a cleared area and a few crosses. The Washoe County District Attorney's
office took the position in its advisory letter to the county assessor that if there are no
improvements on the land, no religious exemption can be granted under the statute. However,
if there are actively used religious improvements, even though they are not a traditional
church or building structure, such improvements are sufficient to comply with the statutes.
[Headnote 2]
Requiring that some improvement must be on the land claimed to be exempt because of
religious use seems reasonable to us and in conformity with NRS 361.125(1) and 361.140(2).
NRS 361.125(1) declares exempt from taxation churches or other buildings used for religious
worship and the lots of ground on which they stand that are used therewith and necessary
thereto. NRS 361.140(2) exempts all buildings of a charitable or religious organization
together with the land actually occupied. By reading both statutes, it is clear that the
legislature wanted to exempt a building, structure or improvement used by a religious or
charitable organization and the land around it actually used and necessary to the structure's or
improvement's use. The assessor's position is that the structure need not be a traditional
church, synagogue, or stake building, but can be any improvement that the church actually
uses. Such an interpretation gives the assessor some flexibility in granting a religious tax
exemption to real property owned by non-traditional religious organizations that practice
unorthodox forms of worship. Therefore, an improvement and actual use are the essential
requirements before a church or religious organization can claim an exemption pursuant to
NRS 361.125(1) or 361.140(2).
[Headnote 3]
A tax exemption should not expand or contract depending on the liturgy or methodology
of a religious organization. Rather, it should be governed by a strict interpretation of the
tax exemption statute.
should be governed by a strict interpretation of the tax exemption statute. This court has held
that tax exemptions must be strictly construed against the party claiming the exemption.
Sierra Pac. Power v. Department of Taxation, 96 Nev. 295, 297, 607 P.2d 1147, 1148 (1980).
The Washoe County Assessor has been reasonable with its grant of exemptions totalling more
than ten percent of the two square miles of land. A strict, even a reasonable, interpretation of
these two tax exemption statutes when applied to the facts of this case does not lead to the
conclusion that two square miles of vacant land should be tax exempt because a religious
group conducts open-air religious ceremonies a few times a week at different locations on the
land. Spiritual or constructive use should not be considered actual use.
CONCLUSION
[Headnote 4]
There is insufficient evidence to support the district court's decision that the Community of
Christ actually used more of the church tracts than the Washoe County Assessor determined
was used and thus exempt from taxation. When the evidence in a record supports only a
portion of the judgment entered, that judgment must be reversed to the extent that it is
unsupported. See City Council of Reno v. Reno Newspapers, 105 Nev. 886, 784 P.2d 974
(1989).
This case is reversed and remanded to the district court with directions to uphold the tax
exemption determined by the Washoe County Assessor.
Young, C. J. and Springer, J., concur.
Steffen, J., concurring:
With a degree of apprehension, I concur in the opinion written by my brother, Rose.
A tax exemption is provided to recognized religious societies or corporations by the
legislature in deference to the public benefits derived from the encouragement of religion.
See, e.g., State ex rel. Anshe Chesed Congregation v. Bruggemeier, 115 N.E.2d 65 (Ohio
App. 1953); First Unitarian Soc. v. Hartford, 34 A. 89 (Conn. 1895). In the instant case, there
is no contention that respondents are not entitled to the exemption provided by the statute.
We may therefore properly conclude that respondents are conferring a legitimate benefit on
the citizens of Nevada by virtue of the activities and principles peculiar to their organization.
My somewhat less than enthusiastic concurrence with today's ruling stems from the fact
that determinations concerning the extent of land exempt from taxation under NRS 361.125
are now left to human judgments and predilections rather than the law.
left to human judgments and predilections rather than the law. Although those judgments and
predilections are subject to court review, they are nevertheless unfettered by clear statutory
mandate. I would prefer to have the legislative branch of government, after full debate and
consideration of alternatives and consequences, resolve the types of issues presented by this
appeal in the form of more comprehensive legislation.
As presently constituted, NRS 361.125(1) provides an exemption from tax for church
improvements (primarily buildings) together with their furniture and equipment, and the lots
of ground on which they stand, used therewith and necessary thereto. (Emphasis supplied).
The real problem with the statute, as graphically demonstrated by this appeal, is that a
determination of the meaning of the all-important term necessary is left to individuals
within the Department of Taxation and outside the affected organization.
In the case before us, respondents may well have determined that the acreage used in their
worship services is necessary to the full realization of the expectancies of their religious
doctrine and principles. The record is bereft of concern regarding the bona fides with which
respondents hold and use their land. There isn't the slightest hint that respondents have
acquired and maintained their property for pecuniary advantage or other purpose inconsistent
with the statutory intent. Nor is there evidence that the property is used for other than church
purposes or to generate rental income. Respondents suffer only from a judgment in conflict
with their own, that the amount of land consecrated for their method of worship is
unnecessary. We are thus left with Caesar determining both what is due Caesar and that
which is due God. I would feel more comfortable with Caesar's judgment if it could be
validated by a clearly expressed statutory mandate from the elected representatives of the
people.
I am nevertheless satisfied that under the current wording of the statute, the
aforementioned procedure for determining the practical effect and scope of the statutory
language must remain with the Department because religious organizations may not extend
exemption privileges in the name of religion to unreasonable extremes. To the extent they
may do so, their activities or holdings may be deemed to exceed the boundaries of public
benefit. Still, I would prefer having those extremes defined by statute rather than individual
fiat.
NRS 361.045 provides that all property within the state shall be subject to taxation
[e]xcept as otherwise provided by law. The statute at issue provides an exemption to lots of
ground on which improvements owned by authorized religious organizations are situated,
when they are used therewith and are necessary thereto.
thereto. Unfortunately, determinations of both use and necessity are determined on an ad hoc
basis by human agency rather than statutory specification. Although statutory parameters may
be difficult to structure, it seems to me that the subject is of sufficient importance to warrant
the attempt. In the meantime, I reluctantly concur in the expressions of my brother Rose
because I am unable to conclude that he has assigned an unnatural meaning to the legislative
intent as reflected by the present language of the statute.
Mowbray, concurring.
I concur with Justice Rose and Justice Steffen.
The bottom line is whether the Washoe County Assessor or the District Court Judge who,
in effect, overruled the assessor, was correct in the assessment of the respondent's property.
The assessor's position should be supported. I shudder to think of the consequences if we
were to do otherwise.
While I certainly favor and support the tax exemptions granted religious and charitable
organizations by the legislature, enough is enough!
As in all cases, reasonableness and honesty must be applied in granting those exemptions.
To do otherwise, is not only unfair to all religious and charitable organizations, but also to
our citizens who must bear and pay their individual share of the overall tax burden.
Therefore, I would reverse and remand with instructions to enter judgment in favor of the
assessor.
____________
106 Nev. 464, 464 (1990) Swan v. Swan
MARYANN SWAN, Appellant v. RICHARD NEWTON SWAN, Respondent.
No. 20286
August 1, 1990 796 P.2d 221
Appeal from an order of the district court denying appellant's motion to vacate the portion
of a divorce decree that granted respondent custody of children. Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
The district court entered divorce decree granting former husband custody of children.
Former wife, resident of Utah, appealed. The Supreme Court held that Nevada court lacked
subject matter jurisdiction under Uniform Child Custody Jurisdiction Act.
Reversed.
106 Nev. 464, 465 (1990) Swan v. Swan
Tingey & Burris and Algimantas J. Bruzas, Las Vegas, for Appellant.
Samuel S. Anter, Las Vegas, for Respondent.
1. Divorce.
Nevada court did not have subject matter jurisdiction to enter decree awarding custody of children to father, under Uniform Child
Custody Jurisdiction Act provision allowing jurisdiction where child has been abandoned or emergency situation exists, even though
there was evidence that mother used alcohol and marijuana. NRS 125A.050, subd. 1(c).
2. Divorce.
Nevada court lacked subject matter jurisdiction under Uniform Child Custody Jurisdiction Act to enter divorce decree awarding
custody of children to father, as opposed to mother resident in Utah, on grounds that children had significant connection with Nevada
and it would be in children's best interest for Nevada to assume jurisdiction; children had been taken by father to Nevada less than
forty days prior to institution of action, and evidence indicated children were probably better off in Utah where they were attending
school and had close family relations. NRS 125A.050, subd. 1(b).
3. Divorce.
Nevada court did not have subject matter jurisdiction to enter divorce decree awarding custody of children to father, based on
provision of Uniform Child Custody Jurisdiction Act allowing assertion of jurisdiction in cases where it appeared no other state would
have jurisdiction; Utah judge had sent Nevada judge a letter informing him of pendency of custody suit in Utah courts, brought by
children's mother. NRS 125A.050, subd. 1(d).
4. Divorce.
Assuming that a court correctly determines that Nevada had subject matter jurisdiction over custody claim brought by spouse in
divorce action against spouse residing out of state, court is next required to consider whether Nevada is an inconvenient forum before
making custody award.
5. Divorce.
Mother residing in Utah did not waive requirement that Nevada court have subject matter jurisdiction before issuing a divorce
decree granting former husband custody over minor children by not raising point at trial; lack of subject matter jurisdiction could be
raised for first time on appeal. NRS 125A.010 et seq.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying appellant's motion to vacate
the portion of a divorce decree that granted respondent custody of his children.
Appellant Maryann Swan (Maryann) and respondent Richard Swan {Richard) married
and lived in Utah until their separation in September 19S6.
106 Nev. 464, 466 (1990) Swan v. Swan
Swan (Richard) married and lived in Utah until their separation in September 1986. In
January 1987, Richard moved to Nevada, while Maryann stayed with the children in Utah. On
September 28, 1987, Richard filed a complaint for divorce. On October 3, 1987, Richard
removed the children from Utah and brought them to Nevada. Maryann was served with a
summons and filed an answer in which she challenged the Nevada district court's subject
matter jurisdiction. Maryann did not appear nor respond further in the divorce proceeding in
Nevada. On November 12, 1987, the Nevada Court heard testimony that the children were
residing with Richard and entered a divorce decree granting Richard custody of the children.
On May 12, 1989, Maryann filed a motion to vacate the custody provisions in the divorce
decree on the basis that the district court lacked subject matter jurisdiction pursuant to the
Uniform Child Custody Jurisdiction Act. In the alternative, Maryann sought a modification of
the custody award. The district court denied Maryann's motion to vacate the child custody
award and remanded the question of whether the custody award should be modified to a
domestic relations referee. On appeal, Maryann argues that the court erred when it denied her
motion to vacate because it lacked subject matter jurisdiction to grant Richard custody of the
parties' two children. We agree.
Nevada adopted the Uniform Child Custody Jurisdiction Act (the Act) and incorporated
it into NRS 125A.050 in 1979. The record below indicates that the district court ignored the
terms and spirit of the Act itself and, furthermore, rendered a decision inconsistent with
opinions of other states interpreting the Act in circumstances similar to those now before us.
[Headnote 1]
There are three provisions under the act that are germane in the present case.
1
Of those
three, none authorizes jurisdiction under these particular facts. First, NRS 125A.050(1)(a)(1)
authorizes a Nevada court to assume jurisdiction over a custody dispute if Nevada is the
home state of the child. "Home state" is defined in NRS 125A.040{5) as the state in which
the child, immediately preceding the time involved, lived with his parents for at least six
consecutive months.
__________

1
NRS 125A.050(1)(c), which allows jurisdiction where the child has been abandoned or it is necessary in an
emergency because the child has been, or threatened to be, mistreated, abused or neglected, does not apply here.
Although the children were physically present in Nevada, they had not been abandoned. Nor was there any need
for emergency protection of the children because the record does not support any claim that an emergency
situation existed. The only evidence that is relevant to the protection and well-being of the children is the report
by Dr. Norton A. Roitman which mentioned that Maryann used alcohol and marijuana. Although Roitman's
report may be relevant in an evidentiary hearing to decide whether Maryann is a fit and proper person to be
awarded the care and control of the children, it is not relevant for the purpose of determining whether the court
properly exercised subject matter jurisdiction over the custody dispute.
106 Nev. 464, 467 (1990) Swan v. Swan
Nevada court to assume jurisdiction over a custody dispute if Nevada is the home state of the
child. Home state is defined in NRS 125A.040(5) as the state in which the child,
immediately preceding the time involved, lived with his parents for at least six consecutive
months. Swans' children lived in Nevada less than forty days prior to the commencement of
the proceeding, a period far short of the six-month requirement. Accordingly, the court did
not have subject matter jurisdiction to decide the custody award under the home-state
requirement.
[Headnote 2]
Nor did the district court have jurisdiction under NRS 125A.050(1)(b), which authorizes
jurisdiction if:
(b) It is in the best interest of the child that a court of this state assume jurisdiction
because:
(1) The child and his parents, or the child and at least one contestant, have a
significant connection with this state; and
(2) There is available in this state substantial evidence concerning the child's
present or future care, protection, training and personal relationships.
Residing in Nevada for less than forty days can hardly constitute a significant connection.
Also, there is no evidence that it would be in the children's best interest for the Nevada court
to assume jurisdiction. To the contrary, the children were probably better off in Utah, the state
where they were attending school and where they have close relations and family. Thus, the
district court was not authorized to exercise its jurisdiction under the significant-connection
provision of the Act.
[Headnote 3]
The final provision of the Act germane to the fact here is NRS 125.1050(1)(d), which
authorizes jurisdiction by a Nevada court if it appears that no other state would have
jurisdiction consistent with provisions of the Act. In the instant case it could not have
appeared to the lower court that no other state would have jurisdiction under the Act. Judge
Leonard H. Russon of the Third Judicial District Court of Utah sent Judge Pavlikowski a
letter informing him that, at the time the court entered a divorce decree, there was an action,
on the same subject matter, pending in the Utah district court. Judge Russon further made
Judge Pavlikowski aware of the jurisdictional aspect of the Uniform Child Custody
Jurisdiction Act and asked him for a response with regard to the Swan matter. Moreover,
Judge Russon's letter appears to have encouraged Judge Pavlikowski to transfer the custody
dispute to Utah.
106 Nev. 464, 468 (1990) Swan v. Swan
custody dispute to Utah. Therefore, based on Judge Russon's letter, it does not appear that the
State of Utah declined jurisdiction. To the contrary, Judge Russon was interested in
adjudicating this matter. Therefore, Judge Russon's letter negates any possibility that no other
state would have jurisdiction over the matter.
Not only is the district court's decision inconsistent with a plain reading of the Act, it is
also inconsistent with decisions in other states which have interpreted the Act. For example,
the Minnesota Supreme Court addressed a similar situation in Re Marriage of Schmidt, 436
N.W.2d 99 (Minn. 1989). The court in Schmidt stated that the goals of the Uniform Child
Custody Jurisdiction Act:
are most likely to be achieved when a three-step approach is employed. First, the court
must look to section three of the act to determine whether it, in fact, does have
jurisdiction. If it determines it does, its inquiry next focuses on whether another custody
proceeding is pending in a court of another state which likewise has jurisdiction
pursuant to the provisions of section three of the Act. Finally, if dual jurisdiction exists,
the inconvenient forum issue must be addressed.
Id. at 104 (citation omitted).
[Headnote 4]
The reasoning of Schmidt is sound. In applying the Schmidt holding to the present case, it
appears that even if the court had correctly determined that Nevada had subject matter
jurisdiction at the time it granted Richard custody over the two minor children, it should have
proceeded to inquire whether Nevada is an inconvenient forum. Such an inquiry would have
revealed that Maryann is indigent, as evidenced by her assistance from the Salt Lake Legal
Aid Society. (Generally, one cannot qualify for legal aid unless one is indigent.) Thus, the
expense to Maryann of defending her custodial rights in Nevada would have imposed a
serious inconvenience on her. Furthermore, transferring this case to Nevada would frustrate
one of the stated goals of the Act, that of deterring the unilateral removal of children from one
jurisdiction to another. See Metcalf v. Turner, 546, N.Y.S.2d 466, 468 (S.Ct.App.Div. 1989).
The Oregon Court of Appeals also addressed an analogous situation in State Ex Rel State
of Pa. v. Stork, 641 P.2d 660 (Or.Ct.App. 1982). In Stork, the wife was personally served in
Pennsylvania with the husband's petition for dissolution, which required her appearance in
Oregon. She did not appear, and the trial court awarded custody of the children to the
husband. Id. at 662. On the wife's motion to vacate the custody award, the court in Stork held
that under the Act {ORS 109.730) the trial court must first ascertain if it has jurisdiction,
then determine if it will exercise jurisdiction, and if it decides to do so, consider what is in
the best interests of the children. Id. at 663.
106 Nev. 464, 469 (1990) Swan v. Swan
in Stork held that under the Act (ORS 109.730) the trial court must first ascertain if it has
jurisdiction, then determine if it will exercise jurisdiction, and if it decides to do so, consider
what is in the best interests of the children. Id. at 663. Stork concluded that the absence of
the required jurisdictional pleading, combined with the failure of the dissolution court to
address the jurisdictional question, deprived that court of jurisdiction to award custody of the
children to the husband. The court held that the custody portion of the dissolution decree
was therefore void and ordered that the mother's motion to vacate it should be granted. Id. at
664.
Here, the court, as in Stork, incorrectly awarded custody as an incident of a default decree
without having subject matter jurisdiction. Moreover, like in Stork, the custody portion of the
dissolution decree should be void and Maryann's motion should be granted because the
Nevada district court lacked subject matter jurisdiction.
[Headnote 5]
Furthermore, Maryann did not waive the subject matter jurisdiction requirement by
declining to take action to protect her custodial rights when she was served to appear in the
court. Additionally, Maryann is not precluded from raising the issue of subject matter
jurisdiction on appeal because she failed to appear in court.
A court's lack of subject matter jurisdiction can be raised for the first time on appeal. See
Biscoe v. Biscoe, 443 N.W.2d 221, 223-224 (Minn.App. 1989) (quoting Qualley v.
Commissioner of Public Safety, 349 N.W.2d 305, 309 (Minn.Ct.App. 1984)). Moreover, in
Gomez v. Gomez, 446 N.Y.S. 127, 129 (S.Ct.App.Div. 1982), the court stated that subject
matter jurisdiction is not waivable. Additionally, courts from other jurisdictions have
acknowledged that the threshold requirements under the Act concern subject matter
jurisdiction. Furthermore, these courts suggested that subject matter jurisdiction can be raised
by the parties at any time, or sua sponte by a court of review, and cannot be conferred by the
parties. See Biscoe, 443 N.W.2d at 224; Campbell v. Campbell, 388 N.E.2d 607, 608
(Ind.App. 1979); Smith v. Superior Court of San Mateo County, 68 Cal.App.3d 457, 461
(1977). Accordingly, Maryann did not waive her rights with regard to subject matter
jurisdiction.
This court takes the Uniform Child Custody Jurisdiction Act very seriously. Accordingly,
the lower courts are expected to comply strictly with the Act's provisions and purposes. Here,
the lower court's acceptance of jurisdiction was not authorized by the Act. Thus, the lower
court's decision is reversed.
____________
106 Nev. 470, 470 (1990) Wallach v. State
NEIL WALLACH, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19935
August 1, 1990 796 P.2d 224
Appeal from a judgment of conviction. Eighth Judicial District Court, Clark County;
Stephen L. Huffaker, Judge.
Defendant was convicted in the district court of sexual assault and preventing witness
from appearing in court, and he appealed. The Supreme Court, after withdrawing previous
opinion, held that trial court's refusal to admit victim's statement to police was prejudicial
error.
Joseph W. Houston, II, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, Bill Berrett,
Deputy, Clark County, for Respondent.
1. Criminal Law.
In rape prosecution in which victim's testimony contradicted her previous statement to police officer that defendant had torn off
her clothes, trial court's refusal to allow officer to testify about victim's statement so as to explain why detective at hospital examined
victim's apparently clean and unripped clothes was prejudicial error.
2. Criminal Law.
Statement merely offered to show that statement was made and listener was affected by statement, and which is not offered to
show truth of matter asserted, is admissible as nonhearsay. NRS 51.035.
3. Criminal Law.
Issue of ineffective assistance of counsel should not be considered in a direct appeal from judgment of conviction but, rather,
should be raised, in first instance, in district court in petition of post-conviction relief so that evidentiary record regarding counsel's
performance at trial can be created. U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a jury trial, of one count each
of sexual assault and preventing or dissuading a witness from appearing in court. NRS
200.366; NRS 199.230. The district court sentenced appellant to serve a term of fifteen years
in the Nevada State Prison for the sexual assault and a concurrent term of eight months
in the Clark County Detention Center for dissuading a witness from appearing in court.
term of fifteen years in the Nevada State Prison for the sexual assault and a concurrent term
of eight months in the Clark County Detention Center for dissuading a witness from
appearing in court.
FACTS
On March 2, 1987, after an argument with her husband, the victim went to the Vegas
Lounge in Las Vegas, Nevada, where she had some drinks and admittedly became
intoxicated. While walking home by an indirect route, three strangers stopped to offer her a
ride. She refused. Later, appellant drove by in a van used in his cleaning business and offered
the victim a ride. The victim testified she accepted appellant's offer because she was tired and
her feet had developed blisters. The victim and appellant then picked up appellant's
employee, Joe Beck, and dropped Beck off to clean the office of one of appellant's customers.
At trial, the victim claimed the appellant subsequently drove her to a dark, quiet residential
street and raped her. She testified that appellant unfastened her pink pants, pulled her pants
and panties below her knees, pushed her legs toward her chest and raped her on a ladder in
the back of appellant's van. The victim testified her white sweater and bra were on the entire
time. At the hospital on the night of the alleged incident, however, the victim told an
investigating police detective that the assailant tore off her clothes. The detective wrote this
statement in his police report. The detective added in his police report that [i]t might be
noted that at the time of the interview, the victim's clothes did not look like they'd been ripped
off, torn, or anything else. At trial, the victim did not remember telling the detective her
clothes had been torn off. Nor did defense counsel attempt to introduce the statement as a
prior inconsistent statement when the victim testified. Further, the jury was never apprised of
the detective's note in his report about the condition of the victim's clothing.
The evidence at trial established appellant's van was very dirty that evening. Yet, the only
evidence the victim's pink pants and white sweater were dirty came from one of the officers
who took the victim to the hospital. This officer testified from memory only, nineteen months
after the alleged rape. He did not make a police report of the incident. On the other hand, the
rape report did not indicate that the victim's clothes were dirty. Appellant maintains these
facts support his argument that the victim voluntarily placed her clothes somewhere in the
van so they would not get dirty, suggesting that no rape in fact occurred.
In addition, the victim testified at trial that appellant grabbed her and threw her between
the front seats into the back of the van. The detective's police report, however, included a
different explanation.
explanation. At the hospital, the victim told the detective that the suspect stopped the van,
jumped out, ran around and opened the back door to the van, being the sliding side door,
forced her into the back, tore off her clothes, and had intercourse with her against her will.
This statement was not heard by the jury. The victim denied on the stand that she got in the
back of the van through the side door.
Furthermore, the victim gave inconsistent accounts of how she exited the van. At trial, she
testified she had been [thrown] out of [the side door of] the van. But to a passerby who
stopped to help her, she stated some son-of-bitch had just thrown her out of a van going
around the corner. The passerby's testimony was heard at trial. We note that the examining
nurse at the hospital did not notice any bruises or abrasions on the victim. The officer who
responded to the scene testified that persons who are thrown out of cars normally have
scratches or abrasions. He noticed only slight abrasions on her hands. Nothing in the record
indicates there were other abrasions or blood on the victim.
In his testimony at trial, appellant denied having sex with the victim. He insisted the
victim voluntarily removed her clothes in the back of the van but he refused to have sex with
her because she was dirty and had body odor. Specifically, appellant testified the victim
looked at him and Joe Beck, and said [a]re we going out to the desert . . . Yes, I just come
from the desert with thirteen Mexicans who raped . . . me. Although the victim denied
making this statement, Joe Beck, the witness appellant was convicted of dissuading, partially
corroborated appellant's story by testifying he overheard the victim say [t]ake me out to the
desert and rape me. Beck did not take this comment seriously, but thought the victim was
joking around. On the stand, the victim denied making this statement. Beck also testified that
the victim appeared tipsy, but not drunk. He further told the jury that, just before appellant
and Beck went into the office Beck was going to clean that day, the victim asked appellant
(referring to Beck) [a]re you going to take the cute one with you. Finally, Beck testified
appellant never admitted to having sexual intercourse with the victim.
According to appellant's testimony, the victim propositioned him. When she said she
wanted money first, the appellant showed her some cash. According to the appellant, the
victim then voluntarily went into the back of the van and took off all her clothes. Appellant
insists that when he subsequently changed his mind about having sex for the previously stated
reasons, the victim got angry and said [y]ou promised me some money. I wasted my time. I
want $200.00 or you are going to be real sorry.
During the trial, little, if any, corroborating evidence of the alleged rape was presented to
the jury. For example, test results on the sperm sample taken form the victim's vagina during
the rape examination were inconclusive. Both the victim's husband and appellant could have
been the source of the semen. The expert who performed the test roughly estimated that the
victim had intercourse sometime within the previous twelve to eighteen hours. The victim
testified that she and her husband had sexual relations approximately twenty-seven to thirty
hours before the rape examination at the hospital. Thus, the expert could not rule out to a
scientific certainty whether the victim's husband had been the source of the semen. Also, the
examining nurse at the hospital testified the victim's vagina looked normal, and that aside
from the victim's word, nothing in the rape examination report showed she had been raped.
DISCUSSION
[Headnotes 1, 2]
Appellant contends that the district court erred by excluding the statements made to a
police detective at the hospital which were contained in the detective's report. We agree. In
Nevada, a statement is hearsay if it is offered in evidence to prove the truth of the matter
asserted. . . . NRS 51.035. As a general rule, hearsay is inadmissible. NRS 51.065. However,
the hearsay rule does not apply if the statement is not offered to prove the truth of the matter
asserted. A statement merely offered to show that the statement was made and the listener
was affected by the statement, and which is not offered to show the truth of the matter
asserted, is admissible as non-hearsay. See NRS 51.035; People v. King, 294 P.2d 972,
974-75 (Cal.Dist.Ct.App. 1956) (hearsay rule did not apply when statement was offered to
show probable cause for police officer's search of premises). At the hospital after the victim
had calmed down, the victim told the detective that the assailant tore off her clothes.
Consequently, the detective inspected the victim's clothes. When defense counsel asked why
the detective had inspected the clothes, the district judge refused to allow the officer to testify
about the victim's statement. In our view, the trial judge's refusal to admit the statement into
evidence constituted prejudicial error. The statement should have been admitted not to show
the truth of the statement, but rather to explain why the detective examined the clothes.
[Headnote 3]
Although this court does not sit as a trier of the facts, we have a responsibility to insure
that the defendant has received a fair trial.
responsibility to insure that the defendant has received a fair trial. The jury was not informed
of significant inconsistencies between the victim's in-court testimony regarding the purported
rape and her out-of-court account as detailed in the police report. Nor was the jury provided
with the detective's observations of the victim's clothes which contradicted the victim's
version of events. Factually, this is a close case. We therefore cannot conclude that the error
in excluding this crucial evidence was harmless. The result, we regrettably conclude, is a
verdict that we are unable to confidently characterize as reliable. Accordingly, we reverse
both of appellant's convictions and we remand this case to the district court for a new trial.
1

____________
106 Nev. 474, 474 (1990) Aetna Casualty & Surety v. Aztec Plumbing
AETNA CASUALTY AND SURETY COMPANY, Appellant, v. AZTEC PLUMBING
CORPORATION, ALAN CONRADY, INDUSTRIAL STEEL CORPORATION,
LUMBER SALES, INC., PETER RUIZ, dba UNIVERSAL CONCRETE,
Respondents.
No. 19235
August 21, 1990 796 P.2d 227
Appeal from an order of the district court granting respondent's motion to dismiss
appellant's complaint with prejudice. Eighth Judicial District Court, Clark County; Earle W.
White, Jr., Judge.
General contractor's liability insurer paid judgment against its insured and then filed suit
against subcontractors, seeking indemnity and contribution. Motion to dismiss complaint was
granted by district court and insurer appealed. The Supreme Court held that: (1) insurer had
not split its cause of action, and (2) subcontractors were not co-insureds and thus could be
sued by the insurer.
__________

1
In light of our conclusion that the judgment of the district court must be reversed on this basis, we decline
to address appellant's contention that his trial attorney was ineffective. In a previous opinion issued by this court,
but later withdrawn, we prematurely approached this subject without an adequate basis or record. This case
illustrates the prudence of this court's decision in Gibbons v. State, 97 Nev. 520, 634 P.2d 1214 (1981), in which
we indicated that the question of ineffective assistance of counsel should not be considered in a direct appeal
from a judgment of conviction. Instead, the issue should be raised, in the first instance, in the district court in a
petition for post-conviction relief so that an evidentiary record regarding counsel's performance at trial can be
created.
Pearson & Patton, Las Vegas, for Appellant.
Rawlings, Olson & Cannon and Janice Hodge Jensen, Reno, for Respondents Aztec and
Conrady.
Vargas & Bartlett and Shari Cassin, Las Vegas, for Respondent Industrial Steel.
R. Paul Sorenson, Las Vegas, for Respondent Lumber Sales, Inc.
Anderson & Huntsman, Las Vegas, for Respondents Ruiz and Universal Concrete.
1. Action.
General contractor's insurer did not split its cause of action so as to be barred from suing subcontractors, seeking indemnity and
contribution for money paid in discharge of judgment against its insured, though insurer was never joined as party to prior action by
insured against the subcontractors seeking to recover the damages claimed against the insured in the then-pending lawsuit; insurer's
cause of action against the subcontractors did not arise until it paid the judgment against its insured.
2. Contribution; Indemnity.
Cause of action for indemnity or contribution accrues when payment has been made.
3. Insurance.
Subcontractors were not co-insured parties under policy insuring general contractor, so as to preclude insurer from seeking
indemnity or contribution from subcontractors upon payment of judgment against general contractor, though the policy provided
liability coverage to general contractor for work done by the subcontractors.
4. Insurance.
Rule that ambiguities in insurance contract are liberally construed in favor of the insured does not apply in deciding who is an
insured.
OPINION
Per Curiam:
The principle issues in this appeal are whether the district court erred by dismissing
appellant's complaints on the alternative grounds that appellant split its cause of action and
cannot sue its own insured. For the reasons set forth below, we find the district court did err
and therefore reverse and remand.
FACTS
Home Savings Association (Home) was a Nevada Savings and Loan Association. Home's
wholly owned subsidiary, H.S. Service Corporation (H.S.) was a general contractor for the
design, development, and construction of the Forest Lane Apartments in Las Vegas,
Nevada.
development, and construction of the Forest Lane Apartments in Las Vegas, Nevada. Both
Home and H.S. were insured by appellant, Aetna Casualty and Surety Company (Aetna).
Except for inspection services, all of the work at the apartments was performed by
independent subcontractors, including the above-named respondents. Respondent Conrady
supervised respondent Aztec Plumbing Corporation's work during construction.
Eventually, the apartments were sold to Forest Lane Associates (Forest Lane). Because of
purported design and construction defect, Forest Lane sued Home and H.S., alleging breach
of warranty, breach of contract, negligence, and fraud. On June 26, 1986, a jury verdict was
entered against H.S. Aetna subsequently discharged the judgment in full by paying a total of
$9,090,000.00 to Forest Lane.
Meanwhile, on February 24, 1983, H.S. filed suit against the architect, engineer, and
subcontractors to recover the damages claimed by Forest Lane. Aetna was never joined as a
party to this action. The lawsuit was later dismissed with prejudice, except for respondent
Industrial Steel, for failure to timely bring the matter to trial.
On November 24, 1987, Aetna filed its own suit against the subcontractors, seeking
indemnity and contribution for the money it paid to Forest Lane. The district court, relying on
its earlier finding that Aetna was subrogated to the rights of H.S. in the H.S. suit against the
subcontractors, concluded that Aetna was barred from relief. The district court found that
against respondents, Aztec, Industrial Steel, and Lumber Sales, Inc., Aetna had split its cause
of action. The district court also found that Aztec, Alan Conrady, Industrial Steel, Lumber
Sales, Inc., and Universal Concrete were Aetna's co-insureds and therefore could not be sued
because an insurance company cannot sue its own insured.
DISCUSSION
[Headnote 1]
On appeal, Aetna maintains that the district court erred by concluding that Aetna split its
cause of action. Aetna contends that its cause of action against the subcontractors arose when
it paid the judgment to Forest Lane.
[Headnote 2]
This contention has merit. A cause of action for indemnity or contribution accrues when
payment has been made. Southern Maryland Oil Company v. Texas Company, 203 F.Supp.
449, 452 (D.Md. 1962). Here, Aetna's cause of action was not split because it did not exist
until Aetna paid the judgment to Forest Lane.
Lane. Thus, the district court erred in finding that Aetna split its cause of action.
[Headnote 3]
Next, Aetna insists that the subcontractors are not co-insured parties under Aetna's policy
with Home and H.S. Specifically, Aetna argues that because the subcontractors are not its
co-insureds, it should be able to proceed with the lawsuit against the subcontractors.
[Headnote 4]
This argument has merit. The district court's findings of fact will not be set aside unless
clearly erroneous. Trident Construction Corp. v. West Electric, 105 Nev. 423, 776 P.2d 1239,
1241 (1989). In addition, the rule that ambiguities in an insurance contract are liberally
construed in favor of the insured does not apply in deciding who is an insured. Atlas Assur.
Co. v. General Builders, 600 P.2d 850, 853 (N.M.App. 1979). Here, there is no support for
the district court's finding that the subcontractors are co-insured under the Aetna policy.
Though Aetna's policy does provide liability coverage to Home and H.S. for work done by
the subcontractors, it does not provide that the subcontractors are co-insureds under the
policy. Therefore, because the district court's finding is clearly erroneous, it must be set aside.
For the foregoing reasons, we reverse the order of the district court and remand this case
for further proceedings consistent with this opinion.
Having considered respondents' remaining contentions, we hereby conclude they lack
merit.
1

____________
106 Nev. 477, 477 (1990) Cathcart v. Robison, Lyle, Etc.
PATRICIA LORRAINE CATHCART, Appellant, v. ROBISON, LYLE, BELAUSTEGUI &
ROBB, a Professional Corporation, KENT R. ROBISON and ROBERT E. LYLE,
Respondents.
No. 19281
August 21, 1990 795 P.2d 986
Appeal from judgment in action to recover attorney's fees. Second Judicial District Court,
Washoe County; William N. Forman, Judge.
Attorneys sued client for attorney fees incurred in divorce action. Client counterclaimed
alleging legal malpractice. After trial by jury in the district court jury rejected client's
counterclaim and awarded attorneys $90,000 as reasonable fees. Client appealed.
__________

1
this appeal.
appealed. The Supreme Court held that jury's award of $90,000 as reasonable attorney fees in
routine divorce case was manifestly unjust and unsupported by evidence.
Affirmed in part and remanded.
Hamilton & Lynch, Reno, for Appellant.
Vargas & Bartlett, and Nicholas Frey, Reno, for Respondents.
Divorce.
Jury award of $90,000 as reasonable attorney's fees in routine divorce case was manifestly unjust and unsupported by evidence,
even though attorneys obtained results favorable to their client, where trial only lasted day and one-half, attorney was able to prepare
for trial in less than one week, and issues presented were not particularly complex or difficult.
OPINION
Per Curiam:
The Facts
Dr. Robert Cathcart filed for divorce from his wife, appellant Patricia Cathcart, in August,
1979. During approximately the next two years, Patricia had a number of attorneys represent
her in the divorce proceedings. Finally, she retained Kent R. Robison, Esq. (Robison) upon
the recommendation of a friend who was an administrative law judge.
Robison was retained by Patricia in May of 1981. He took the case and was almost
immediately successful in motivating Dr. Cathcart, who had a history of ignoring court orders
to support his wife and children, to comply by having a bench warrant issued for the doctor's
arrest.
The Cathcart divorce was finally scheduled for trial in November, 1981. However, because
of a scheduling conflict, Robison was unable to represent Patricia at trial. With his client's
approval, Robison had his partner, Robert E. Lyle, Esq. (Lyle), an experienced divorce
litigator, try the case. Both Robison and Patricia briefed Lyle and otherwise assisted him in
preparing the case for trial.
The trial lasted approximately a day and one-half. Patricia was awarded a one-half interest
in the house, one-half of the monthly royalty income for the duration of a patent owned by Dr.
Cathcart on a prosthetic hip device, and approximately one-half of the personal marital
property.
The trial court's judgment was not appealed. However, Lyle did expend considerable time
in bringing the matter to a conclusion following entry of judgment. Ultimately, Patricia chose
to retain new counsel to finalize post-divorce residual concerns.
This appeal arises from a dispute between Patricia and Robison and Lyle concerning the
value of their legal representation. Initially, Robison and Lyle filed suit and prayed for
approximately $35,000, but this complaint was dismissed without prejudice and the matter
was submitted to the Bar Association Fee Dispute Committee. Ultimately, Robison and Lyle
refiled their complaint and simply prayed for reasonable attorney's fees. Patricia
counterclaimed against Robison and Lyle, alleging legal malpractice.
After extensive discovery by both parties, the claims and counterclaims went to trial before
a jury. Following a five week trial, the jury rejected Patricia's counterclaim against Robison
and Lyle and returned a verdict of $90,000 as reasonable attorneys' fees for Robison and Lyle.
1

Discussion
On appeal, Patricia raises numerous issues, one of which has merit. She argues that the
jury's award of $90,000 as reasonable attorney's fees is manifestly unjust and unsupported by
the evidence. We agree.
Robison and Lyle were handling what may be appropriately characterized as a routine
divorce case. Their representation of Patricia was effective in that they obtained a result
favorable to their client; however, the record does not support an award of $90,000 as a
reasonable fee for the legal services provided. This case falls within our ruling in Meyer v.
Swain, 104 Nev. 595, 598, 763 P.2d 337, 339 (1988), which held: [M]anifest injustice is
present when a verdict strikes the mind, at first blush, as manifestly and palpably contrary to
the evidence.' Kroeger Properties v. Silver State Title, 102 Nev. 112, 715 P.2d 1328 (1986).
Patricia's divorce trial only lasted a day and one-half, a new attorney was brought in and
was able to prepare for trial in less than a week, and the issues presented were not particularly
complex or difficult. Perhaps more telling is that initially Robison and Lyle sought
approximately $35,000 as a reasonable fee.
__________

1
Many of the facts outlined in the discussion above were hotly disputed by the parties during trial. We have
applied the standard outlined in Novack v. Hoppin, 77 Nev. 33, 359 P.2d 390 (1961), which held: [On] appeal
[this court] must accept as established all facts which the evidence reasonably tended to prove, and to give to the
prevailing party the benefit of inferences that might reasonably be drawn from such evidence. Id. at 42, 359
P.2d at 395. See also, Morse v. Daly, 101 Nev. 320, 704 P.2d 1087 (1985).
and Lyle sought approximately $35,000 as a reasonable fee. The jury awarded nearly three
times that amount. Nothing in the record supports such an award.
The jury's $90,000 award strikes us as manifestly and palpably contrary to the evidence
and therefore must be vacated. [H]ad the jury properly applied the instructions of the [trial]
court, it would have been impossible for them to reach the verdict which they reached.
Weaver Brothers, Ltd. v. Misskelley, 98 Nev. 232, 234, 645 P.2d 438, 439 (1982). Regarding
the amount of damages, we have previously held and the law is well settled,
[T]hat to justify a money judgment the amount, as well as the fact of damages, must be
proved; that there must be substantial evidence as to the amount of damage, as the law
does not permit arriving at such amount by conjecture; that to prove the right to
damages without proving the amount, entitles a plaintiff to nominal damages only.
Alper v. Stillings, 80 Nev. 84, 86-87, 389 P.2d 239, 240 (1964) (emphasis added). See also,
Commercial Cabinet Co. v. Wallin, 103 Nev. 238, 737 P.2d 515 (1987).
With the exception of the $90,000 award, we sustain in all respects the jury's findings. We
therefore remand this matter to the trial court with instructions to evaluate the reasonable
value of Robison's and Lyle's services from the evidence of record, and to enter findings and
remittitur in accordance therewith.
Patricia's remaining issues have been considered and are without merit. The case is
remanded to the district court for further proceedings consistent with its opinion.
Mowbray, J., dissenting.
Respectfully, I dissent in part.
I agree and concur with the majority opinion in all respects except this court's disposition
of the jury's award of attorney's fees.
This case was the culmination of a long and stormy period of litigation.
The appellant in the court below demanded a trial by jury. She was given a trial by jury.
After a full trial, the jury awarded the respondent $90,000.00 in attorney's fees. Admittedly,
this is a generous award. However, the facts in the record below support the jury's award.
Now, appellant seeks another bite at the apple. We are overruling the jury's award and
remanding the case for another trial on the issue of the award of attorney's fees, not before a
jury but before a judge.
I do not agree with this result. I would affirm the jury's award of the attorney's fees in its
entirety.
____________
106 Nev. 481, 481 (1990) Parkinson v. Parkinson
DEBRA JO PARKINSON, Appellant, v. MICHAEL RICHARD PARKINSON, Respondent.
No. 19629
August 21, 1990 796 P.2d 229
Appeal from an order of the district court denying appellant's motion to reduce child
support arrearages to judgment. Eighth Judicial District Court, Clark County; Addeliar D.
Guy, Judge.
Appeal was taken from order of the district court which denied mother's motion to reduce
child support arrearages to judgment. The Supreme Court held that: (1) equitable defenses
such as estoppel and waiver may be asserted by the obligor in a proceeding to enforce or
modify an order for child support or to reduce child support arrearages to judgment, and (2)
evidence sustained finding of waiver.
Affirmed.
Leslie Mark Stovall, Las Vegas, for Appellant.
Jimmerson & Davis and Radford J. Smith, Las Vegas, for Respondent.
1. Parent and Child.
Equitable defenses such as estoppel or waiver may be asserted by the obligor in a proceeding to enforce or modify an order for
child support or to reduce child support arrearages to judgment.
Parent need not show a change in circumstances in order to have child support modified in accordance with statutory formula.
NRS 125B.070, subd. 2, 125B.080, subds. 1(b), 3.
3. Estoppel.
To establish a valid waiver, party asserting the defense must show that there has been an intentional relinquishment of a known
right.
Defense of waiver or estoppel may not be applied to preclude recovery of a child support obligation if the waiver was the result of
fraud or duress or if its application would be injurious to the child.
5. Divorce.
Finding that mother had waived right to child support from father was supported by evidence that, despite repeated contact with
the father for several years subsequent to the time that he ceased making payments, she never made any demand on the father and did
not pursue her legal right to funds for five and one-half years and that she had told the father that their son did not want to
see the father, that she would not allow any visitation, and that he should stay away.
father that their son did not want to see the father, that she would not allow any visitation, and that he should stay away.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying appellant's motion to reduce
child support arrearages to judgment. The district court's ruling was based upon a finding that
appellant impliedly waived her right to child support. For the reasons expressed below, we
affirm.
FACTS
Appellant Debra Jo Parkinson (Debra) and Respondent Michael Richard Parkinson
(Michael) were married in Las Vegas on January 11, 1978. On March 13, 1978, Michael
adopted Gary, Debra's son from a previous marriage. The couple had no other children. Debra
and Michael were divorced by decree entered May 18, 1982, in Clark County, Nevada. The
decree provided for joint legal custody of Gary. Debra was awarded physical custody of Gary
and Michael was awarded reasonable visitation rights. In addition, Michael was ordered to
pay Debra $200.00 per month in child support until Gary reached the age of majority or was
otherwise emancipated.
In January 1983, Michael ceased making the required child support payments. On May 23,
1988, approximately five years and four months after Michael ceased making the payments,
and approximately two weeks after Gary's eighteenth birthday, Debra filed the instant motion
to reduce 64 months of child support arrearages to judgment in the amount of $12,800 plus
interest. In his opposition to that motion, Michael alternatively asserted that Debra had
impliedly agreed to modify the support agreement, had impliedly waived her right to child
support, or was estopped from asserting her right to the support.
Following a hearing, the district court found that Debra had impliedly waived her right to
the child support and thus denied her motion to reduce the arrearages to judgment. This
appeal ensued.
DISCUSSION
[Headnotes 1, 2]
This court has previously held that entry of judgment for support arrearages under NRS
125.180 is a matter within the district court's discretion. See, e.g., Libro v. Walls, 103 Nev.
540, 541-2, 746 P.2d 632, 633 (1987); Reed v. Reed, 88 Nev.
329, 331, 497 P.2d 896, 897 (1972). In Libro, we further held that a showing of extrinsic
fraud provides a sufficient basis for granting equitable relief from an order imposing child
support obligations. Libro, 103 Nev. at 543, 746 P.2d at 634. We have also recognized that
parties to a divorce decree may, by express or implied agreement, modify the terms of a
support agreement. Hildahl v. Hildahl, 95 Nev. 657, 662, 601 P.2d 58, 61 (1979). Consistent
with these decisions, we now align ourselves with the majority of jurisdictions and hold that
additional equitable defenses such as estoppel or waiver may be asserted by the obligor in a
proceeding to enforce or modify an order for child support or, as here, to reduce child support
arrearages to judgment.
1
See, e.g., Kissinger v. Kissinger, 692 P.2d 71 (Okla.Ct.App. 1984);
Kaminski v. Kaminski, 87 Cal.Rptr. 453 (Cal.Ct.App. 1970). Contra, e.g., Napoleon v.
Napoleon, 585 P.2d 1270 (Haw. 1978).
[Headnotes 3, 4]
To establish a valid waiver, the party asserting the defense must show that there has been
an intentional relinquishment of a known right. Mahban v. MGM Grand Hotels, 100 Nev.
593, 596, 691 P.2d 421, 423 (1984). Furthermore, the defense may not be applied to preclude
recovery of a child support obligation if the waiver was the result of fraud or duress, or if its
application will be injurious to the child. See, e.g., Albins v. Elovitz, 791 P.2d 366, 369
(Ariz.Ct.App. 1990). While a waiver may be the subject of express agreement, it may also
be implied from conduct which evidences an intention to waive a right, or by conduct which
is inconsistent with any other intention than to waive a right. Mahban, 100 Nev. at 596, 691
P.2d at 423-4. In such circumstances, whether there has been a waiver is a question for the
trier of fact. Id.
[Headnote 5]
In the instant case, the district court judge found an implied waiver of Debra's right to
child support. The record contains sufficient evidence to support that conclusion. Despite
repeated contact with Michael for several years subsequent to the time the payments ceased,
Debra acknowledged that she never made any demand upon Michael nor did she pursue her
legal right to the funds during the approximate five and one-half years which transpired
between the time Michael ceased making payments and the instant motion was filed.
__________

1
Our ruling today is consistent with our decision in Perri v. Gubler, 105 Nev. 687, 782 P.2d 1312 (1989). In
Perri, we refused to set aside a waiver of child support based on the waiver claimant's lack of candor in
disclosing his financial position, but the opinion fails to express the matter in these terms. Insofar as Perri may
be read to hold that a custodial parent must show changed circumstances (Perri, 105 Nev. at 688, 782 P.2d at
1313) in order to receive his or her formula entitlement under NRS 125B.070(2), we abjure such a conclusion in
light of the clear statutory right to have child support modified in accordance with the statutory formula
irrespective of changed circumstances. NRS 125B.080(1)(b) and 125B.080(3).
demand upon Michael nor did she pursue her legal right to the funds during the approximate
five and one-half years which transpired between the time Michael ceased making payments
and the instant motion was filed. In addition, Michael averred that during telephone
conversations between August 1982 and January 1983, Debra told him Gary did not want to
see Michael, that she would not allow any such visitation, and that Michael should stay
away.
Michael's version of events was corroborated by the affidavit of Sandra Ford, the real
estate agent who represented both parties during the 1982 sale of their former residence. Ford
averred that during this period of time, Debra had stated it would be better for all concerned if
Michael would stay away from Debra and Gary. Ford further averred that during a
conversation three years later relating to proceeds due Debra under a second deed to trust on
the same residence, Debra instructed Ford not to give Michael her new address, told Ford that
she and Gary were better off without Michael, and that she did not want to hear from
[Michael] in any way, shape, or form. Based upon this evidence and the parties' conduct, it is
clear that a mutually acceptable arrangement was attained; Michael discontinued his efforts to
involve himself in Gary's life, either through visitation or providing financial support, and
Debra accepted that arrangement without objection.
Since Gary is now an adult, there is no evidence that he will be injured by this decision.
Finally, the record in this case contains no indication that Debra's waiver of child support was
procured by either fraud or duress.
Accordingly, we hod that the evidence adduced in the district court, taken as a whole,
justified a finding that Debra impliedly waived her right to receive child support from
Michael. Thus, the district court did not abuse its discretion in denying Debra's motion to
reduce the arrearages to judgment. The district court's judgment is therefore affirmed.
____________
106 Nev. 484, 484 (1990) Culverson v. State
SAMUEL CULVERSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19866
August 21, 1990 797 P.2d 238
Appeal from a judgment of conviction of first degree murder. Eighth Judicial District
Court, Clark County; Earle W. White, Jr., Judge.
Defendant was convicted in the district court of first degree murder, and defendant
appealed. The Supreme Court, Young, C. J., held that: (1) jury instruction which did not
clearly state justification for self-defense was erroneous, and (2) person who was not original
aggressor has no duty to retreat before using deadly force if reasonable person in position of
nonaggressor would believe that assailant is about to kill him or cause him serious bodily
harm.
Morgan D. Harris, Public Defender and Robert L. Miller, Deputy Public Defender, Clark
Brian McKay, Attorney General, Carson City; Rex A. Bell, District Attorney and James
Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Homicide.
Homicide is justifiable when person reasonably believes that he is about to be seriously injured or killed and there is an actual and
immediate danger that he will be killed, or if there is no actual or immediate danger to person, but person reasonably believes that his
assailant could kill or seriously harm him.
2. Homicide.
Instruction, that homicide is justifiable when committed in lawful defense of slayer when there is reasonable ground to apprehend
design to create personal injury and there is imminent danger of such a design being accomplished, was misleading where a jury could
have been misled into concluding that defendant was not justified in shooting victim because victim carried pellet gun which could not
have seriously harmed defendant, notwithstanding that careful reading of all instructions could have led juror to conclude that person
may use self-defense as justification to homicide even if not in actual danger; juror should not be expected to be legal expert, and jury
instructions should be clear and unambiguous.
3. Homicide.
Person who was not original aggressor has no duty to retreat before using deadly force if reasonable person in position of
nonaggressor would believe that his assailant is about to kill him or cause him serious bodily harm; overruling State v. Helm, 66 Nev.
286, 209 P.2d 187 (1950).
OPINION
Samuel Culverson was convicted by a jury of first degree murder and sentenced to two
terms of life imprisonment without possibility of parole for killing Michael Smith.
possibility of parole for killing Michael Smith. We hold that the district court erred in
instructing the jury that a defendant may not use self-defense to justify a homicide unless he
is in actual danger of being killed or seriously injured by his assailant; and that the district
court also erred in instructing the jury that a defendant has a duty to retreat when he
reasonably believes that he is about to be attached or killed. We reverse Culverson's judgment
of conviction.
FACTS
On March 27, 1988, Hollie Broadus (Broadus) and Michael Smith (Smith) agreed to pool
their money to buy cocaine. Broadus went out alone to find a seller. Samuel Culverson
(Culverson) drove up to Broadus and offered him a ride. Culverson had a passenger with him
in the car named Joel Thomas (Thomas). Broadus, Culverson, and Thomas drove to the home
of Smith. Broadus talked with Smith and then both men entered Culverson's car. At this point
the testimony is conflicting.
Broadus testified that Culverson was the initial aggressor. He claimed that Culverson
pulled out a gun, pointed it at Smith and said give me all of your . . . money. Smith said I
ain't giving you . . . man and Broadus pushed Smith out of the car and jumped out himself.
As Broadus ran from the scene he saw Smith pointing a gun at Culverson and heard four
shots.
Thomas testified that Smith was the initial aggressor. He claimed that when they arrived at
Smith's house, Smith and Broadus asked Culverson for a ride somewhere. Culverson said he
would need money before he took them anywhere. Smith took out a roll of bills and began to
count them. Broadus grabbed Smith's money and stuck it in his mouth. Culverson became
angry at Broadus for being disrespectful and stated that he was going to take the money
back from him. He then told Thomas to let Smith out of the car. Smith got out of the car,
pulled a gun out of his pants, and called someone a s-o-b. Thomas ran. He heard one shot,
ran further, and then heard four more shots.
Culverson testified that he shot Smith in self-defense when Smith pointed a gun at him. He
further testified that he did not attempt to rob Smith.
Smith died from four bullet wounds from Culverson's gun. The police found a pellet gun
next to Smith's body. Culverson was tried and found guilty of first degree murder with the use
of a deadly weapon. He was sentenced to two consecutive terms of life imprisonment without
possibility of parole.
LEGAL DISCUSSION
I. ACTUAL AND APPARENT DANGER IN RELATION TO A CLAIM OF SELF-DEFENSE.
Culverson contends that the court erred when it failed to give the jury an instruction he
submitted regarding the relationship between self-defense, actual danger, and perceived
danger. At his trial Culverson submitted the following jury instruction to the court:
Actual danger is not necessary to justify self-defense. If one is confronted by the
appearance of danger which arouses in his mind, as a reasonable person, an honest
conviction and fear that he is about to suffer great bodily injury, and if a reasonable
man in a like situation, seeing and knowing the same facts, would be justified in
believing himself in like danger, and if the person so confronted acts in self-defense
upon such appearances and from such fear and honest convictions, his right of
self-defense is the same whether such danger is real or merely apparent.
The court refused to give this instruction.
Culverson contends that the instructions given by the court regarding self-defense were
misleading. He particularly objects to a part of Instruction 17 which states:
Homicide is also justifiable when committed either in the lawful defense of the
slayer, when there is reasonable ground to apprehend a design on the part of the person
slain to commit a felony or to do some great personal injury to the slayer and there is
imminent danger of such design being accomplished or in the actual resistance of an
attempt to commit a felony upon the slayer in his presence.
(Emphasis added.)
[Headnotes 1, 2]
Instruction 17 appears to state that homicide is justifiable when a person reasonably
believes that he is about to be seriously injured or killed and there is an actual and immediate
danger that he will be killed. While homicide would be justifiable under these circumstances,
it would also be justifiable if there was no actual or immediate danger to the defendant, but
the defendant reasonably believed that his assailant could kill or seriously harm him.
1
See
People v. Davis, 408 P.2d 129 (Cal. 1965).
__________

1
For instance, a defendant who is approached by a person who points an unloaded shotgun at him may
reasonably believe that he is in danger of being attacked if he believes the gun is loaded. Under Instruction 17,
such person might not be justified in using self-defense because he was in no actual or immediate danger of
being killed or seriously injured.
We note that Instruction 17 states that homicide is also justified under the situation
mentioned in the instruction. The use of the word also implies that Instruction 17 is but one
example of when self-defense justifies a homicide. Other instructions given to the jury do not
require that the defendant be in actual danger before he uses self-defense as a justification for
homicide. A careful reading of all the instructions could have led a juror to conclude that a
person may use self-defense as a justification to homicide even if he is not in actual danger.
A juror should not be expected to be a legal expert. Jury instructions should be clear and
unambiguous. Instruction 17 may have misled the jury into concluding that Culverson was
not justified in shooting Smith because Smith carried a pellet gun which could not have
seriously harmed Culverson. Accordingly, we conclude that Jury Instruction 17 was
erroneous and could have prejudiced the jury.
II. THE DUTY TO RETREAT.
Culverson contends that the district court erroneously informed the jury that he had a duty
to retreat before he could act in self-defense. Specifically, Culverson objects to Instruction
No. 19 which states:
In this case even if you should believe from the evidence that the deceased
commenced the encounter in question and was the first to offer violence, but further
believe from the evidence, beyond a reasonable doubt, that the defendant could, by
making a reasonable effort, have avoided or safely withdrawn from it, and thereby
avoided further trouble, and that he made no effort to do so, but voluntarily entered into
and continued the encounter and shot and killed the deceased, then the killing of the
deceased is not excused or justified on the ground of self-defense.
The leading Nevada case which deals with the duty to retreat is State v. Grimmett, 33 Nev.
531, 112 P. 273 (1910). In Grimmett, the victim, while standing behind a bar, took a gun from
a drawer and fired one shot at the defendant who immediately fired two shots killing the
victim. Grimmett, 33 Nev. at 534, 112 P.2d at 273. This court held:
The law is well established that where a person, without voluntarily seeking,
provoking, inviting, or willingly engaging in a difficulty of his own free will, is
attacked by an assailant, and it is necessary for him to take the life of his assailant to
protect his own, then he need not flee for safety, but has the right to stand his ground
and slay his adversary.
Id. Culverson contends that Grimmett stands for the proposition that Nevada does not require
a person to retreat when he reasonably believes that he is about to be attacked with deadly
force. We agree. First, we note that a rule requiring a non-aggressor to retreat confers a
benefit on the aggressor and a detriment on the non-aggressor. Second, it is often quite
difficult for a jury to determine whether a person should reasonably believe that he may
retreat from a violent attack in complete safety. Thus, a rule which requires a non-aggressor
to retreat may confuse the jury and lead to inconsistent verdicts. We believe that a simpler
rule will lead to more just verdicts.
One reason that has been given to support the no duty to retreat rule is that the
non-aggressor should be able to avoid the appearance of cowardice. See, J. Beale, Retreat
From a Murderous Assault, 16 Harv. L.Rev. 567, 581 (1903). We do not believe this is a
valid reason to support the rule we now adopt. However, the reasons cited amply support the
rule that a non-aggressor need not retreat if he reasonably believes he is about to be seriously
injured or killed.
[Headnote 3]
Therefore, we hold that a person, who is not the original aggressor, has no duty to retreat
before using deadly force, if a reasonable person in the position of the non-aggressor would
believe that his assailant is about to kill him or cause him serious bodily harm.
2
See Johnson
v. State, 315 S.E.2d 871 (Ga. 1984); Haynes v. State, 451 So.2d 227 (Miss. 1984); 2 W.
LaFave & A. Scott, Criminal Law 461 (1986).
CONCLUSION
We hold that the district court erred when it instructed the jury that self-defense cannot be
used as a justification for homicide unless a person is actually in danger of being seriously
injured or killed by his attacker. Self-defense may justify a homicide if a person reasonably
believes that he is in danger of being seriously injured or killed by his assailant.
We further hold that a person who as a reasonable person believes that he is about to be
killed or seriously injured by his assailant does not have a duty to retreat unless he is the
original aggressor. The district court erred when it instructed the jury that the appellant had a
duty to retreat if he could have safely withdrawn from the encounter.
__________

2
We note that one other Nevada case holds that it is proper to instruct the jury that a defendant has a duty to
retreat before using deadly force. See State v. Helm, 66 Nev. 286, 309, 209 P.2d 187, 198 (1949). To the extent
that Helm is inconsistent with out holding in this case, it is overruled.
Accordingly, we reverse Culverson's conviction for first degree murder and remand this
matter to the district court for a new trial.
Rose, J., concurring, with whom Springer, J., agrees:
I agree with the majority that Instruction No. 17 may have been confusing to the jury and
the instructions did not legally address the situation where a defendant is not in fact faced
with actual or immediate danger, but reasonably believes that his or her assailant could kill
him or her. But in considering the duty to retreat in the face of deadly force, I would require a
non-aggressor to retreat if he or she could do so in complete safety. This differs somewhat
from the majority's position that a non-aggressor does not have to retreat, even though he or
she could do so with complete safety, if a reasonable person in his or her position would
believe that death or serious bodily harm is about to be inflicted upon him or her.
In Grimmett, this court held that a person has the right to stand his ground in the face of an
attack with deadly force if it is necessary for him to do so to protect his own life. This case is
generally consistent with the no duty to retreat rule adopted by the majority. However, other
Nevada cases hold that it is proper to instruct the jury that a defendant has a duty to retreat in
certain situations before using deadly force. State v. Helm, 66 Nev. 286, 309, 209 P.2d 187,
198 (1949). Therefore, the law in Nevada was certainly not clear as to a non-aggressor's duty
to retreat when faced with deadly force, and it is understandable that the district court was
faced with a difficult task in stating the correct duty to retreat rule in the jury instructions.
Other states are divided on the issue of whether a defendant has a duty to retreat. The
majority of jurisdictions hold that a defendant who was not the initial aggressor is not
required to retreat before using deadly force against someone whom he reasonably believes is
about to kill or seriously injure him. See, Johnson v. State, 315 S.E.2d 871 (Ga. 1984);
Haynes v. State, 451 So.2d 227 (Miss. 1984); People v. Gonzales, 12 P. 783 (Cal. 1887); see
also, 2 W.LaFave & A. Scott, Criminal Law 461 (1986). A significant minority of states have
adopted the rule that a defendant must retreat, if he can safely do so, when threatened with
deadly force. See State v. Austin, 332 N.W.2d 21 (Minn. 1983); State v. Abbott, 174 A.2d
881 (N.J. 1961); State v. Davis, 51 S.E. 28 (S.C. 1948).
The following rationale justifies not requiring a defendant to retreat from an aggressor if
he or she may do so in complete safety: {1) the State should not force a non-aggressor to
act in a cowardly manner; {2) unjustified aggression should not be protected; and {3) it is
too difficult for a jury to determine when it is safe for a defendant to retreat.
safety: (1) the State should not force a non-aggressor to act in a cowardly manner; (2)
unjustified aggression should not be protected; and (3) it is too difficult for a jury to
determine when it is safe for a defendant to retreat.
I disagree that it is cowardly to walk away safely from an attacker rather than to kill him or
her, and the majority opinion agrees. Rather, I believe that:
A really honorable man, a man of truly refined and elevated feeling, would perhaps
always regret the apparent cowardice of a retreat, but he would regret ten times more,
after the excitement of the contest was past, the thought that he had the blood of a
fellow-being on his hands.
J. Beale, Retreat From a Murderous Assault, 16 Harv. L.Rev. 567, 581 (1903) (emphasis
added). The policy of saving one human life, even if it is that of an aggressor, outweighs the
interest an individual might have in avoiding the appearance of cowardice.
The person who retreats can usually rely upon the state to punish the aggressor for his or
her actions. A jury is required to make many difficult decisions and it is perfectly capable of
determining whether a reasonable person should know that he or she could retreat without
using deadly force.
Finally, self-defense is measured by necessity. There is no necessity to use deadly force if
a defendant may retreat in complete safety. See State v. Baker, 160 N.W.2d 240 (Minn.
1968).
For the preceding reasons, I believe the better rule would be that a person who has a
reasonable belief that he or she is about to be killed or seriously injured has the duty to
retreat, rather than use deadly force against his aggressor, if as a reasonable person he or she
should know that a retreat can be made with complete safety. See Bartmess v. State, 708
S.W.2d 905, 907 (Tex.App. 1986). Whether a person should reasonably know that he or she
can retreat with complete safety will be determined after examination of the totality of
circumstances surrounding the attack, including but not limited to, the immediate excitement
which is caused by the attack. As Justice Holmes stated, [d]etached reflection cannot be
demanded in the presence of an uplifted knife. Brown v. United States, 256 U.S. 335, 343
(1921).
____________
106 Nev. 492, 492 (1990) State, Dep't of Mtr. Vehicles v. Brough
STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC SAFETY,
Appellant, v. CHUCK BROUGH, Respondent.
No. 20222
August 21, 1990 796 P.2d 1089
Appeal from a district court decision reversing an administrative order revoking
respondent's driving privileges. Eighth Judicial District Court, Clark County; Miriam
Shearing, Judge.
Driver sought judicial review of decision of Department of Motor Vehicles (DMV)
revoking his driving privileges. The district court reversed, and DMV appealed. The Supreme
Court held that driver's failure to submit to either breath or blood test until after examination
by doctor was sufficient to sustain revocation of driving privileges.
Brian McKay, Attorney General, Carson City; Neil H. Friedman and Grenville Thomas
Pridham, Deputy Attorneys General, Las Vegas, for Appellant.
John G. Watkins, Las Vegas, for Respondent.
1. Automobiles.
Although driver began first breath test, his subsequent refusals to submit to blood test constituted a refusal under implied
consent statute which provide that [a] willful failure to provide a second consecutive sample is a failure to submit to a required
evidentiary test. NRS 484.386, subd. 3.
2. Automobiles.
Failure to provide two adequate breath samples constitutes refusal for purposes of implied consent statute; statute does not
require express unequivocal refusal to take blood test before license may be revoked. NRS 484.386, subd. 3.
3. Automobiles.
Implied consent statute required driver arrested for physical control of vehicle while under influence of intoxicating liquors to
submit to chemical test to determine alcoholic content of blood prior to examination by a doctor, where there was no evidence of injury
beyond his own assertion. NRS 484.386, subd. 3.
4. Automobiles.
Once a driver refuses to take any one of chemical tests required under the implied consent law, the law does not require that he
later be given one when he decides he is ready to submit. NRS 484.386, subd. 3.
5. Automobiles.
Driver's failure to agree to blood test until he had been examined by doctor constituted refusal to submit to blood test under
implied consent statute. NRS 484.386, subd. 3.
6. Automobiles.
Implied consent statute shall be liberally construed in order to promote legislative policy of removing intoxicated drivers from
highways. NRS 484.386, subd. 3.
7. Automobiles.
Breath test should be administered as soon as possible after suspected drunk driver has been stopped on road and placed under
arrest; effectiveness and reliability test diminishes with the passage of time. NRS 484.386, subd. 3.
8. Automobiles.
Officer has no duty to renew offer of test required by implied consent statute after offer has been refused. NRS 484.386, subd. 3.
9. Automobiles.
Consent to submit to blood alcohol test upon completion of doctor's examination five hours after arrest did not vitiate prior refusal
to submit to either breath or blood test required by implied consent statute. NRS 484.386, subd. 3.
OPINION
Per Curiam:
The primary issue is whether respondent Chuck Brough's refusal to submit to a blood test
until he could be examined by a doctor constituted a refusal to submit to an evidentiary test
for purposes of NRS Chapter 484. The district court reversed the DMV hearing officer's order
revoking Brough's license for failure to submit to an evidentiary test. For the reasons set forth
below, we reverse the decision of the district court.
FACTS
On October 4, 1987, Agent Sant of the Taxi Authority informed Sergeant Peppley of the
Nevada Highway Patrol that he was detaining a driver whom he believed to be under the
influence of alcohol. When Peppley arrived, he observed Brough seated behind the wheel of
his vehicle. Peppley noted that Brough's breath and person smelled of alcohol, and that his
eyes were bloodshot, and that his balance was impaired. Peppley conducted a series of field
sobriety tests, all of which Brough failed. Peppley then placed Brough under arrest for being
in actual physical control of a vehicle while under the influence of intoxicating liquor.
Peppley read Brough Nevada's implied consent admonition.
1
Brough stated that he did
not understand the admonition. Peppley read Brough the implied consent admonition a
second time. Once again Brough stated that he did not understand the implied consent
admonition.
__________

1
The implied consent card contains a summary of the provisions contained in NRS 484.382-484.384 as
follows:
again Brough stated that he did not understand the implied consent admonition. After a third
reading, Brough agreed to submit to a breath test.
Peppley transported Brough to the Clark County jail. As Brough was getting out of the car,
he told Peppley that he bumped his head. Peppley testified that he did not see Brough strike
his head on the car. Once inside the jail, Brough began the breath test. After he started
blowing into the machine, he said it was making him dizzy and he did not want to take the
breath test. Peppley then took Brough to the nurse's station for a blood test. The nurse refused
to admit Brough into jail until he was examined at the hospital.
Thereafter, Peppley asked Brough if he wanted to take the blood test at the jail before
being examined at the hospital. Brough stated that he wanted to wait until he was first
examined by a doctor.
As a result, Brough was transported to the University Medical Center (UMC) to receive an
examination. While waiting in the UMC emergency room, Peppley again asked Brough if he
would submit to a blood test by a lab technician, but Brough refused, stating that he would
submit only after he was examined. The doctor completed an examination of Brough at 11
P.M., approximately five hours after his arrest. Peppley determined that no legitimate blood
test could be given at that time, and informed Brough that he was going to submit a
revocation of his driver's license for failure to submit to an evidentiary test pursuant to NRS
484.385(1).
__________
IMPLIED CONSENT WARNING
You are requested to submit to a chemical test to determine the alcoholic content and/or controlled
substance content of your blood.
You have a choice of whether the test is to be of your blood or breath, if available.
A refusal will result in the revocation of your driving privilege. If this is your first refusal, you will
not be eligible for a driver's license, permit or privilege to drive for a period of one year. If you refuse to
submit to a test and previously had your license, permit or privilege to drive suspended or revoked for
failing to submit to such a test within seven years, you will not be eligible for a license, permit, or
privilege to drive for a period of three years.
If you select a breath test, you will be required to provide two consecutive samples of your breath. A
willful failure to provide a second sample is a failure to submit to a chemical test, and your driving
privilege will be revoked.
[You are further advised that any warning relating to having an attorney present before answering any
questions does not bear on the issue of submitting to a test of your blood or breath. YOU DO NOT
HAVE THE RIGHT TO HAVE AN ATTORNEY PRESENT BEFORE SUBMITTING TO ONE OF
THE REQUESTED TESTS.]
Upon Brough's request, an administrative hearing was held on November 4, 1987. The
hearing officer determined that there was substantial evidence that the police officer had
reasonable grounds to believe Brough had been driving a motor vehicle while under the
influence of alcohol and that Brough failed to submit to an evidentiary test. In its order dated
November 20, 1987, the Department of Motor Vehicles upheld the revocation of Brough's
license, finding that all elements of proof necessary to sustain a charge of a violation of the
Implied Consent Law under NRS Chapter 484 were supported by substantial evidence.
Brough then sought judicial review of the DMV's decision. The district court reversed the
order of the DMV, finding that Brough did not refuse to submit to an evidentiary test as a
matter of law. This appeal by the DMV followed.
DISCUSSION
[Headnote 1]
The DMV argues that there is substantial evidence that Brough failed to submit to an
evidentiary test, as required under NRS 484.386(3). NRS 484.386(3) provides that [a]
willful failure to provide a second consecutive sample is a failure to submit to a required
evidentiary test. The DMV asserts that although Brough began the first breathalyzer test, his
subsequent refusals to submit to a blood test constituted a refusal under NRS 484.386(3). See
Corriveau v. Commissioner of Public Safety, 380 N.W.2d 214 (Minn.App. 1986). We agree.
[Headnotes 2, 3]
Failure to provide two adequate breath samples constitutes a refusal for purposes of NRS
484.386(3). McCharles v. State, Dep't of Mtr. Vehicles, 99 Nev. 831, 673 P.2d 488 (1983).
The implied consent statute does not require an express, unequivocal refusal to take the blood
test before the individual's license may be revoked. See e.g., Beck v. Cox, 597 P.2d 1335,
1338 (Ut. 1979). In McCharles, the appellant was arrested for driving under the influence and
refused to submit to a chemical sobriety test before speaking to his attorney. This court held
that an individual arrested for DUI does not have a right to speak with his attorney prior to
submitting to an evidentiary test, and his license may be suspended for refusal to submit to a
test. Similarly here, Brough stated that he would not submit to a test until he had been
examined by a physician because he felt dizzy during the first test. If a driver is required to
submit to a test before consulting with his attorney, we conclude that he should also be
required to submit to a test before examination by a doctor. A contrary conclusion could
result in individuals faking injuries in order to postpone the sobriety test.
order to postpone the sobriety test. This may have been the case here, because Brough did not
produce any evidence of injury beyond his own assertion. The examining doctor did not find
any injury. However, this holding is limited to the unique facts of this case, and does not
apply to those situations where the individual is injured or ill and in need of medical
attention.
The DMV next argues that Brough's consent to a blood test conditioned upon receiving a
medical examination constituted a refusal to submit to an evidentiary test. This contention has
merit.
[Headnotes 4, 5]
The hearing officer was correct in concluding: [o]nce a driver refuses to take any one of
the chemical tests, the law does not require that he later be given one when he decides he is
ready to submit. This conclusion is consistent with the standard set forth in Beck for
determining whether a driver in fact refuses to take a test:
Whether the declination is accomplished by verbally saying, I refuse, or by remaining
silent and just not breathing or blowing into the machine, or by vocalizing some sort of
qualified or conditional consent or refusal, does not make a difference.
Beck, 597 P.2d at 1338 (quoting Spradling v. Deimeke, 528 S.W.2d 759 (Mo. 1975)).
(Emphasis added.) Thus, pursuant to NRS 484.386(3), we conclude that Brough refused to
submit to a blood test as a matter of law.
[Headnotes 6, 7]
The DMV contends that the implied consent statute should be liberally construed in order
to promote the legislative policy of removing intoxicated drivers from Nevada's highways.
Galvan v. State, 98 Nev. 550, 655 P.2d 155 (1982). The DMV also points out that the
sobriety test should be administered as soon as possible after the individual has been stopped
on the road and placed under arrest because the effectiveness and reliability of the tests
diminish with the passage of time. McCharles, 99 Nev. at 833, 673 P.2d at 489. We agree.
Peppley read Brough the implied consent admonition three times. And Brough stated that
he understood the admonition after Peppley's third reading. Moreover, this court has
consistently followed a liberal interpretation of the implied consent laws for sound public
safety reasons. See, e.g., Schroeder v. State, Dep't of Motor Vehicles, 105 Nev. 179, 772 P.2d
1278 (1989); Galvan, 98 Nev. at 553, 655 P.2d at 156. Here, a test five hours after Brough's
arrest would not have been indicative of his blood alcohol content at the time of his arrest.
The DMV suggests this case is similar to Schroeder where this court held that eventual
consent to submit to an evidentiary test did not vitiate a prior refusal. This contention has
merit.
[Headnotes 8, 9]
In Schroeder, the drunk driver initially refused to submit to an evidentiary test until after
consulting with his attorney. After 40 minutes, Schroeder expressly asked to submit to a test.
In rejecting Schroeder's claim, this court reasoned that no sound reason exists to give a
driver the opportunity to delay a test to his benefit, and which would be contrary to the
implied consent statute's purpose of obtaining an accurate indication of his condition.
Schroeder, 105 Nev. at 182, 772 P.2d at 1280. This case is stronger than Schroeder because
here, there is no evidence in the record that Brough ever requested to submit to an evidentiary
test, even after he was examined by the doctor. Moreover, an officer has no duty to renew an
offer of testing after it has been refused. Sigfrinius v. Commissioner of Public Safety, 378
N.W.2d 124, 127 (Minn.App. 1985). Therefore, we conclude that the hearing officer's
decision is based upon substantial evidence. State Dep't Mtr. Veh. v. Jenkins, 99 Nev. 460,
663 P.2d 1186 (1983).
Under these circumstances, given Nevada's longstanding policy of removing intoxicated
drivers from our highways, we agree with the DMV's contention that there is substantial
evidence that Brough failed to submit to an evidentiary test for purposes of NRS 484.386(3).
Schroeder, 105 Nev. at 182, 772 P.2d at 1280 (quoting Davis v. State, 99 Nev. 25, 27, 656
P.2d 855, 856 (1983)).
Accordingly, we reverse the order of the district court and remand this matter for further
proceedings consistent with the views expressed in this opinion.
____________
106 Nev. 497, 497 (1990) Charlie Brown Constr. Co. v. Boulder City
CHARLIE BROWN CONSTRUCTION COMPANY, INC., A NEVADA CORPORATION,
AND DELTA ELECTRIC COMPANY, INC., A NEVADA CORPORATION,
Appellant, v. CITY OF BOULDER CITY, NEVADA, A POLITICAL SUBDIVISION
OF THE STATE OF NEVADA, Respondent.
No. 19159
August 21, 1990 797 P.2d 946
Appeal from order of the district court granting respondent's cross-motion for summary
judgment and denying appellants' motion for summary judgment.
motion for summary judgment. Eighth Judicial District Court, Clark County; James A.
Brennan, Judge.
Subcontractors on subdivision project approved by city brought action against city to
recover for unpaid work following subdivider's default. The district court granted summary
judgment for city, and appeal was taken. The Supreme Court, Steffen, J., held that city which
failed to follow and enforce its own mandatory ordinance requiring it to obtain payment bond
from subdivider could be held liable to unpaid subcontractors for negligence.
Young C. J., and Rose, J., dissented.
Marquis, Haney & Aurbach, William T. Martin, and James P. McBride, Las Vegas, for
Appellants.
B. G. Andrews, City Attorney, Boulder City, for Respondent.
1. Judgment.
Summary judgment is proper when it appears that there is no genuine issue of material fact and that moving party is entitled to
judgment as matter of law.
Subcontractors who constructed off-site improvements were not third-party beneficiaries of off-site improvement agreement
between city and subdivider, for purpose of obtaining payment from city following subdivider's default.
Even if subcontractors were third-party beneficiaries of agreement between city and subdivider, subcontractors were barred from
asserting payment claims against city by their failure to present claim to city council within requisite six month time period. NRS
268.020.
Municipal enactments must be construed as a whole and not read in way that would render words or phrases superfluous or make
provision nugatory; there is presumption that every word, phrase and provision in enactment has meaning.
City which failed to follow and enforce its own mandatory ordinance requiring it to obtain payment bond from subdivider could be
held liable to unpaid subcontractors for negligence; only apparent purpose of ordinance was to protect subcontractors should
subdividers become insolvent.
Municipalities and government agencies are not usually liable for failure to enforce ordinances or for dereliction of duties which
benefit public at large; exception to general rule is when there is some special relationship between governmental agency and particular
individual or class of individuals.
7. Negligence.
Absent privity of contract or injury to person or property, plaintiff cannot recover in negligence for purely economic loss.
Economic loss rule did not preclude subcontractors from recovering damages arising from city's negligence in failing to obtain
mandatory performance bond from subdivider, where subcontractors' injuries were foreseeable.
OPINION
The district court entered summary judgment against appellants Charlie Brown
Construction Company, Inc. (Brown) and Delta Electric Company, Inc. (Delta),
subcontractors on a subdivision project approved by respondent City of Boulder (City) on six
grounds. Two of the grounds consisted of a statutory construction favoring the City and a
determination that the City was not unjustly enriched by the uncompensated labor and
materials supplied by Brown and Delta for off-site improvements to the City's property.
[Headnote 1]
Summary judgment is proper when it appears that there is no genuine issue of material
fact, and the moving party is entitled to a judgment as a matter of law. Wiltsie v. Baby Grand
Corp., 105 Nev. 291, 774 P.2d 432, 433 (1989). The facts here are not disputed. Appellants
assert three claims for relief: (1) that they were third-party beneficiaries of the agreement
between the City and Boulder Development, Inc. (Boulder Development) and that the City
wrongfully released Boulder Development's cash deposit; (2) that the City was negligent in
releasing funds deposited by the subdivider and in not requiring the subdivider to post a
payment bond as mandated by City ordinance; and (3) that the City was unjustly enriched by
the retention of and non-payment for their work.
Appellants' second contention is meritorious. Because we discern merit in the negligence
claim, we reverse the summary judgment granted in favor of the City.
Facts
The City approved a subdivision project submitted by the subdivider, Boulder
Development. Brown and Delta entered into subcontracts with the general contractor for
construction of the off-site improvements on the project. Brown and Delta completed the
work but were unable to obtain full payment because of the bankruptcy of the general
contractor and subdivider.
the work but were unable to obtain full payment because of the bankruptcy of the general
contractor and subdivider. The two subcontractors were also frustrated in securing payment
through liens because of a trustee's sale facilitated by the construction lender's priority deed of
trust. Brown and Delta received $92,587.96 and $49,372.10 less respectively, than they were
entitled to receive for the labor and materials they provided.
In approving the subdivision, the City required the subdivider to post a cash deposit in lieu
of a bond to insure performance of the off-site construction, but it did not require the filing of
a payment bond to insure payment to the subcontractors. The City subsequently accepted title
to the off-site improvements and released the cash deposit. Brown and Delta, after exhausting
all other possible avenues for payment, filed this suit against the City.
Third-Party Beneficiary Claims
[Headnotes 2, 3]
The trial court correctly rejected the claim that appellants were third-party beneficiaries of
the off-site improvement agreement between the City and Boulder Development. However,
even if there were a third-party beneficiary theory upon which recovery could be based, it
would afford no relief to appellants. Claims under a third-party beneficiary theory are
necessarily contract claims. The presentment of claims requirement set out in NRS 268.020,
as applied to contractual claims against municipalities, has been upheld by this court. L-M
Architects, Inc. v. City of Sparks, 100 Nev. 334, 683 P.2d 11 (1984). There was no
presentment to the Boulder City Council within the requisite six month time period and any
contractually-based theories of recovery are therefore barred by the clear language of the
statute. The district court correctly concluded that NRS 268.020 barred Brown and Delta's
claims on this theory.
We have previously invalidated Nevada's statutory presentment restrictions upon a tort
claimant's ability to sue. Turner v. Staggs, 89 Nev. 230, 235-236, 510 P.2d 879, 883, cert.
denied, 414 U.S. 1079 (1973). Therefore, any tort claims appellants have must be considered
on their merits. Because appellants' contract claims lack merit, we need not address them
further.
Unjust Enrichment Claims
Having determined that Brown's and Delta's negligence claims are meritorious, we deem it
unnecessary to address their claims based upon theories of unjust enrichment.
The Negligence Claims
Brown and Delta contend that the City was negligent in either prematurely releasing the
cash deposit or failing to obtain a payment bond on their behalf as required by Boulder City
Municipal Code 11-36-12(A) and 11-36-5(K)(1) and (L)(1). A negligence claim framed in
this manner appears to be an issue of first impression in this jurisdiction. The issue is, what
cause of action, if any, was created by the City's failure to follow and enforce its own
mandatory ordinance, the only apparent purpose of which was to protect subcontractors and
enable them to obtain payment.
Boulder City Municipal Code 11-36-12(A) provided:
(A) Performance Bond or Deposit: If any required improvements have not been
completed to the satisfaction of the City Engineer prior to the City Council
approval of the final map, the subdivider shall file with the City Clerk a
faithful performance bond in the amount deemed sufficient by the City
Engineer to cover the cost of said improvements, engineering and inspection
fees. The subdivider shall also file a bond in an amount required by law on
bonds for public construction, and by its terms insure labor and materials
payment for labor performed and materials rendered under the terms of the
improvement agreement. Such bond shall be executed by a surety company
authorized to transact a surety business in the State of Nevada, and must be
satisfactory to and be approved by the City Attorney as to form [emphasis
added]. In lieu of said faithful performance bond, the subdivider may deposit
cash with the City in the amount fixed, as aforementioned, by the City
Engineer.
Boulder City Municipal Code 11-36-5(K)(1) and (L)(1) provided:
(K) Documents Required Prior to Approval of Final Map: The following shall be
filed with the Planning Director prior to the final map being presented for
action to the City Council:
1. Improvement Agreement and Performance Bond: The subdivider shall
execute and file with the Planning Director an agreement between himself and
Boulder City, specifying the period within which he shall complete all
improvements and work in accordance with City specifications and standards
to the satisfaction of the City Engineer. The subdivider shall also file with the
Planning Director at the same time, a performance bond and a labor and
material bond as required by Section 11-36-12 of this Chapter.
bond and a labor and material bond as required by Section 11-36-12 of this
Chapter. Said improvement agreement and performance bond shall be
approved as to form by the City Attorney.
. . . .
(L) Action by City Council:
1. Within fifteen (15) days of the filing of the final map and other documents
as required by this Chapter with the City Clerk, the City Council shall approve
the map if it conforms with all applicable provisions of this Chapter and the
Planning and Zoning Act of the State of Nevada. The time limit for approval
of the map may be extended by mutual written consent of the City Council and
the subdivider.
The successor provisions to these ordinances appear in a substantially similar form in BCMC
11-39-12(A) and 11-39-5(L)(1) and (M). We see no merit in the negligent release of funds
theory and decline to impose any liability on the City for its release of the performance
deposit. However, the provisions of the ordinance which require a payment bond for labor
and materials are clearly for the purpose of insuring payment to subcontractors who provide
the labor and materials for the off-site improvements which ultimately inure to the ownership
of the City.
Appellants correctly contend that BCMC 11-36-12(A) required Boulder Development to
file a payment bond covering labor and materials for the off-site improvements, and that the
City was required to secure compliance with the provision before granting the necessary final
map approval. Appellants contend the City's negligence in failing to require a payment bond
directly and proximately resulted in Boulder Development never obtaining such a bond.
Consequently, when Boulder Development became insolvent and appellants' mechanics' liens
were eliminated by the trustee's sale under the construction lender's deed of trust, appellants
were unable to collect the amounts due them. Appellants conclude that if the City had
required a payment bond, appellants would had recovered the money owed them. We agree.
[Headnote 4]
It is elementary that statutes, or in this case municipal enactments, must be constructed as
a whole and not be read in a way that would render words or phrases superfluous or make a
provision nugatory. People of California v. Tahoe Regional Planning Agency, 766 F.2d 1308,
1314 (9th Cir. 1985); People v. Craft, 224 Cal.Rptr. 626, 629 (Cal. 1986). And, there is a
presumption that every word, phrase and provision in the enactment has meaning.
that every word, phrase and provision in the enactment has meaning. Alaska Transp. Com'n v.
Airpac, Inc., 685 P.2d 1248, 1253 (Alaska 1984).
Accordingly, this court has generally declined to use judicial construction to alter the
meaning of clearly expressed enactments. In the case of In re Walter's Estate, 60 Nev. 172,
183-84, 104 P.2d 968, 973 (1940), we held, quoting from State v. Jepsen, 46 Nev. 193, 196,
209 P. 501, 502 (1922):
Where the language of a statute is plain and unambiguous, and its meaning clear and
unmistakable, there is no room for construction, and the courts are not permitted to
search for its meaning beyond the statute itself [citations omitted].
The ordinance at issue here seems clear to us. It specifies that [t]he subdivider shall also
file a bond . . . and by its terms insure labor and materials payment for labor performed and
materials rendered under the terms of the improvement agreement (emphasis supplied). The
same ordinance, after requiring the filing of a labor and materials bond, further emphasizes its
importance by requiring the City Attorney to approve the bond as to form. Moreover, and
more importantly, the ordinance does not permit necessary final map approval without it
having first been determined that the payment bond was filed as required. In pertinent part,
the ordinance reads as follows:
1. Within fifteen (15) days of the filing of the final map and other documents as
required by this Chapter with the City Clerk, the City Council shall approve the map if
it conforms with all applicable provisions of this Chapter. . . .
A literal reading of BCMC 11-36-12(A) and 11-36-5(K)(1) and (L)(1) requires the City to
obtain a payment bond (from a subdivider) for the protection of suppliers of labor and
materials in an amount equal to bonds required by law for public construction.
In analyzing the intent of the City ordinance, it is clear that the City Council undertook to
protect subcontractors doing off-site work from insolvent and irresponsible contractors. The
record reveals that for many years, the City, despite its own ordinance, had only required
performance bonds from subdividers in connection with the construction of off-site
improvements. The City contends that its historical conduct thus negates any intent on its part
in enacting the ordinance to protect subcontractors despite the plain language of the statute
providing a protective mechanism for both the City and subcontractors. Heretofore, the City
has apparently only enforced the provision which protected it and ignored the provision
which protected subcontractors. We must assume it has done so because substantial injury
has not previously resulted from the City's disregard of its responsibility under the
ordinance.
assume it has done so because substantial injury has not previously resulted from the City's
disregard of its responsibility under the ordinance. Additionally, the City's observation that no
other municipality or county requires a payment bond for subdivision improvements does not
help it, as the City's ordinance clearly contains such a requirement.
1

[Headnote 5]
Given the City's obvious intent and the clear language of the City's ordinance, we decline
to construe the payment bond provision of BCMC 11-36-12(A) beyond the terms of its
plain and ordinary meaning.
2
We hold that in this narrow context the ordinance created a
self-imposed duty, which when breached, led to the specific harm which it was intended to
prevent. The negligence claim, therefore, has merit. We conclude that BCMC 11-36-12(A)
and 11-36-5(K)(1) and (L)(1) required Boulder Development to post a payment bond for the
protection of Brown and Delta and the City to withhold approval of the subdivision until such
a bond was secured, approval by the City Attorney, and filed. The ordinance creates a duty
the breach of which proximately caused the harm which Brown and Delta suffered.
Beyond the plain language of the City ordinance, which is controlling, there are sound
policy reasons for enforcing the literal sense of the ordinance in question. First, the City is in
a position, essentially without cost, to insist on a payment bond that will protect
subcontractors such as appellants from financial loss. The transaction costs incurred by the
City in securing such protection would be minimal and, in any event, could be passed on to
subdividers and developers.
__________

1
All municipalities and counties in Nevada require a performance bond or its equivalent when the
subdivider has yet to complete the required improvements at the time of the approval of the final map. We have
no information on how many also require payment bonds.

2
The dissent suggest that an equally plausible reading of BCMC 11-36-12(A) is that the required
payment bond applies only in the case of public construction. With due respect to the dissent, we note that the
subject ordinance is applicable only to subdividers and subdivisions. It is common knowledge that subdivision
construction entails work on private land owned by the subdivider. It does not involve or relate to public
construction. We therefore fail to see how any rule of statutory construction or judicial interpretation could be
rationally invoked to transmute an ordinance that expressly applies to subdividers and subdivisions into an
ordinance applicable to public construction.
We find it equally implausible that the City would interject a public construction requirement for a payment
bond in an ordinance that has no application whatsoever to public construction. It seems clear to us that the
reference to public construction in the provision at issue serves only as a basis for setting the amount of the
payment bond.
on to subdividers and developers. Second, resort to mechanics' liens are usually unavailing
where, as here, the project is encumbered by a deed of trust securing an acquisition and
development or construction loan. Third, a contractor's bond supplied pursuant to NRS
624.270(4) is of minimal protection because the maximum bond required is only $50,000.
Fourth, because the City pays no consideration for the off-site improvements conveyed to it
and liens against City property are ineffective, we cannot fault the City for having voluntarily
adopted measures to secure payment to subcontractors whose labor and materials inure to the
City's benefit. Finally, the City is in a superior position to the subcontractor to insist on a
bond without negative economic consequences.
[Headnote 6]
We are aware of the general rule that municipalities or governmental agencies are not
usually liable for failure to enforce ordinances or for dereliction of duties which benefit the
public at large. Frye v. Clark County, 97 Nev. 632, 637 P.2d 1215 (1981); Bruttomesso v. Las
Vegas Met. Police Dept., 95 Nev. 151, 591 P.2d 254 (1979); Commerce & Industry Ins. v.
Toledo, 543 N.E.2d 1188 (Ohio 1989). However, the express language of the City's ordinance
makes this case qualitatively more than a simple failure to enforce an ordinance. The
ordinance requires a payment bond and prohibits final map approval until there has been full
compliance with the ordinance. If the ordinance had merely required the subdivider to secure
a bond, without obligating the City to assure compliance as a condition precedent to final
approval, then the City's liability would be an unlikely prospect. But where, as here, the
ordinance clearly requires the City to insure procurement of a payment bond, this is not
failure to enforce but failure to perform a mandatory duty imposed on the City for the
protection of specific entities whose work product will eventually become City property.
An exception to the general rule of non-liability for failure to enforce a statute is when
there is some special relationship between the governmental agency and a particular
individual or class of individuals. Frye, 97 Nev. at 634, 637 P.2d at 1216. Accord Platt v.
District of Columbia, 467 A.2d 149 (D.C.App. 1983); O'Connor v. City of New York, 447
N.E.2d 33 (N.Y. 1983). The City has, perforce of its own ordinance, created a special
relationship between the City, its agencies and subcontractors doing off-site work.
It cannot reasonably be contended that the City's labor and materials bond requirement
benefitted anyone other than subcontractors performing off-site work. The ordinance imposed
upon the City a duty to require performance and payment bonds from subdividers before
the City issues final approval to commence subdivision projects.
the City a duty to require performance and payment bonds from subdividers before the City
issues final approval to commence subdivision projects. The obvious purpose of the payment
bond provision is to protect subcontractors and materialmen who participate in the off-site
improvements. We believe the duty created by the ordinance imposes liability for its breach.
There is support for this position in the case law of other jurisdictions.
In Brennen v. City of Eugene, 591 P.2d 719 (Or. 1979), the Oregon supreme court was
faced with a similar question. In Brennen, the city's ordinance required it to refuse to issue a
license to a taxi cab operator unless the operator could show that it had the required minimum
amount of liability insurance. The city's agent issued a license to an operator that did not meet
the requirement. A passenger was subsequently injured in an accident caused by the
underinsured taxi operator and was unable to collect the full amount of the judgment against
the operator. The court held that the city was liable for the difference between the amount of
the operator's leviable assets and the amount of the judgment because its agent had violated a
mandatory (as opposed to discretionary ) requirement in the ordinance. Liability for this type
of misfeasance is still the rule in Oregon. Cf. Salem School Dist. v. First State Ins. Co., 734
P.2d 369 (Or.App. 1987). (The Salem court assumed the school district's liability on facts
analogous and went immediately to the issue of insurance coverage for the liability). The
result and the reasoning of Brennen is sound, just and equitable and is very similar to the case
before us.
Brennen is consistent with the California jurisprudence in this area. In California,
however, governmental liability is governed by statute. Cal. Gov. Code 815; State of
California v. Superior Court, 197 Cal.Rptr. 914 (1984). The approach and cases in California
are nevertheless illustrative of the principles we adopt here. California Government Code
section 815.6, one of the statutory bases for imposing liability, provides:
Where a public entity is under a mandatory duty imposed by an enactment that is
designed to protect against a risk of a particular kind of injury, the public entity is liable
for an injury of that kind proximately caused by its failure to discharge the duty unless
the public entity establishes that it exercised reasonable diligence to discharge the duty.
The leading California case interpreting this statute is Morris v. Marin County, 136
Cal.Rptr. 251 (Cal. 1977). In Morris, the court reviewed a provision of the California Labor
Code ( 380) providing that every county or city which required permits to build or perform
construction shall require that each applicant for such permit have on file or file" proof of
adequate worker's compensation insurance.
for such permit have on file or file proof of adequate worker's compensation insurance. The
plaintiff had worked for a builder who had been issued a permit to build without being
required to show proof of worker's compensation insurance as mandated by the code
provision. The builder did not have any coverage. Predictably, the plaintiff was injured while
performing his employment duties and was unable to obtain either worker's compensation
benefits or other satisfaction from the bankrupt builder. The Morris court held that the statute
created a mandatory duty upon counties to obtain the required proof of insurance before
issuing a permit and therefore the county could be held liable if it failed in its duty with
respect to the requirement. Because the county did not comply with the mandate of the
statute, it was liable for the plaintiff's injuries. Other California cases are in accord with
Morris. See Young v. Inglewood, 154 Cal. Rptr. 724 (Cal.App. 1979); Elson v. Public
Utilities Commission, 124 Cal.Rptr. 305 (Cal.App. 1975).
The parallels between the above cases and the instant case are evident. In fact, because the
City imposed the obligation upon itself (rather than have it imposed by the State) the case for
liability is arguably stronger. The City had an obligation to insure that a payment bond was
posted before approval of the subdivision was granted. It did not do so and the subcontractors
were unable to obtain payment. The City cannot now avoid liability by saying that it never
requires such bonds or that it did not intend to enforce its own ordinance as written.
3

Effect of the Economic Loss Doctrine on the Ability to Recover in Negligence
The City claims that appellants only suffered economic damages and therefore the
economic loss doctrine bars the negligence claim. We disagree.
[Headnote 7]
This case is readily distinguishable from the economic loss cases we have decided.
__________

3
We are aware that Brown and Delta could have insisted on proof of a payment bond before applying their
labor and materials. However, subcontractors are in an inferior bargaining position relative to general
contractors and are dependent on the latter's good will for employment. A reasonable subcontractor, rather than
risking the prospect of antagonizing the general contractor, could assume that a payment bond had been
provided inasmuch as it is a requirement for approval of the final map. Moreover, if the City is disinclined to
provide the protection afforded by its own ordinance, it should repeal its obligations thereunder and thereby
eliminate any basis for subcontractors relying on the City as a source of assistance in obtaining payment for their
work.
cases we have decided. The Nevada cases discussing the economic loss rule are Central Bit
Supply v. Waldrop Drilling, 102 Nev. 139, 717 P.2d 35 (1986), and Local Joint Exec. Bd. v.
Stern, 98 Nev. 409, 651 P.2d 637 (1982). Despite a somewhat misleading heading in the
Stern decision, the rule is that absent privity of contract or injury to person or property, a
plaintiff cannot recover in negligence for purely economic loss. However, it is clear from the
context of the rule that it is directed at situations distinguishable for the case here.
We previously noted that [t]he primary purpose of the rule is to shield a defendant from
unlimited liability for all economic consequences of a negligent act, particularly in the
commercial setting, and thus keep the risk of liability reasonably calculable. Stern, 98 Nev.
at 411, 651 P.2d at 638. The rule is derived in part from the decision in Robins Dry Dock &
Repair Co. v. Flint, 275 U.S. 303 (1927), where the court said: [A]s a general rule, at least, a
tort to a person or property of one man does not make the tortfeasor liable to another merely
because the injured person was under a contract with the other, unknown to the doer of the
wrong. See Kingston Shipping Co., Inc. v. Roberts, 667 F.2d 34, 35 (1982). Id. at 309. The
rule is aimed at third parties.
[Headnote 8]
Both Stern and Central Bit are cases where individuals and entities who suffered damage
to their economic expectancies because of allegedly defective products sought recovery from
the parties participating in the supplying of the product.
4
As we explained in Central Bit, this
rule is really the seller foreseeability rule for consequential damages first enunciated in
Hadley v. Baxendale, 156 Eng. Rep. 145 (1854). Brown and Delta's injuries were not caused
by a faulty product. They are not third parties to an injury or tort seeking recovery for
derivative harm. Brown and Delta are directly injured parties seeking direct recovery from the
tortfeasor. It is not consequential damages they seek but direct damages from the failure to
perform a mandatory act. Our citation in Stern to The Restatement (Second) of Torts 766
(1979) (which deals with the negligent interference with contractual relations) makes it clear
that the prohibition does not extend to this circumstance. The policy behind the rule is not
offended by holding the City liable.
Additionally, although appellants did not suffer property injury in the more traditional tort
sense in which we generally view the matter, it is not at all clear that they did not suffer an
injury to property.
__________

4
In Stern, the plaintiffs were not even parties to the original transaction and were several steps removed from
the design and construction of the hotel.
matter, it is not at all clear that they did not suffer an injury to property. They certainly
suffered injury to their respective property interests in the amount of their unpaid claims
when they performed labor and added materials to the City's land.
Also, given the context of the dispute, it would be disingenuous for the City to claim that
appellants' injuries were unforeseeable. Manifestly, the ordinance was structured for the
express purpose of preventing the very injuries sustained by Brown and Delta. Therefore, the
City could easily foresee that its failure to utilize the machinery which it created to prevent
such injuries could, in fact, substantially contribute to their occurrence. The injuries and their
extent are clearly foreseeable. As the purely economic recovery rule is bound up in
foreseeability, the rule enunciated in Stern and Central Bit is simply inapplicable to this case.
Conclusion
For the reasons noted above, we reverse the summary judgment entered below and direct
that summary judgment be entered in favor of Brown and Delta as to both liability and
damages unless the amount of damage is factually disputed, in which case the district court
shall require a trial limited to the issue of damages.
Springer and Mowbray, JJ., concur.
Young, C. J., with whom Rose, J., concurs, dissenting:
The majority opinion will enjoy limited value as a precedent unless Boulder City with
unexampled largesse desires to continue paying for the labor and materials used on private
property where suppliers have not, pursuant to common practice, protected themselves by
liens or bonds from subdividers or contractors. The record is devoid of any evidence that the
ordinance was ever interpreted by the City or anyone else as set forth by the majority. In fact,
an affidavit indicated that for many years the ordinance had been interpreted as not to require
such bonds. Now the City is being told that because of its failure to properly interpret
language which is ambiguous and uncertain, it must pay nearly $150,000.
There is no question that had Boulder City required a payment bond from the subdivider,
appellants Brown and Delta would have recovered the money owed them by Boulder
Development, the subdivider. However, the majority claim that (1) the City's ordinance
created a self-imposed duty to withhold approval of the subdivision until a bond was
submitted by the subdivider; and (2) the approval of a subdivision without a payment bond
automatically made the City liable.
the approval of a subdivision without a payment bond automatically made the City liable. The
majority assert in defense of their conclusion that the language of the ordinance is plain and
unambiguous, and that no judicial construction is necessary. I cannot agree.
The ordinance in question provides that the City Council shall approve the subdivision
map [w]ithin fifteen (15) days of the filing of the final map and other documents as required
by this Chapter with the City Clerk . . . . BCMC 11-36-5(L)(1) (emphasis added). The
majority contend that other documents includes a payment bond. This is the linchpin for
holding the city liable. I respectfully disagree with the reasoning of the majority opinion for
reasons stated herein.
Nothing in the language of the ordinance expressly states that the City must withhold
approval until a payment bond for labor and materials is filed. The only mandatory language
pertinent to the City requires it to approve a final map if it conforms with all applicable
provisions . . . . BCMC 11-36-5(L)(1). This language does not prohibit the approval of a
final map if it fails to conform with every possible interpretation of all applicable provisions.
The ordinance in question refers to bonds numerous times in the section on performance
bond or deposit. Obviously, the draftsmen were familiar with the term and its use. To now
hold without any evidence of the legislative intent, years after enactment and contrary to the
City's interpretation and practice, that other documents has at all times included bonds, is a
highly questionable predicate for liability.
The majority rely on BCMC 11-36-12(A) which states in part: The subdivider shall also
file a bond in an amount required by law on bonds for public construction and by its terms
insure labor and materials payment . . . . The opinion argues that this language plainly and
unambiguously shows that the subdivider was thereby obligated to file the payment bond
even though no public construction was involved. In my view, however, an equally plausible
reading of the ordinance requires the subdivider to file a payment bond only in the case of
public construction where liens cannot be asserted.
Reason supports this interpretation. The City obviously has an interest in having a
performance bond so that the promised improvements are completed, but no reason to intrude
in what is essentially a private relationship between the subdivider and those supplying labor
and materials. Indeed, in many cases, payment bonds may already have been provided to
some or all vendors by the general contractor or subdivider. The majority opinion in its stern
it-is-required-by-the-ordinance approach would require yet another such bond.
opinion in its stern it-is-required-by-the-ordinance approach would require yet another such
bond.
The leading rule for the construction of statutes is to ascertain the intention of the
legislature in enacting the statute, and the intent, when ascertained, will prevail over the
literal sense. Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635, 637, 503 P.2d 457,
458 (1972). The court will give meaning to an ambiguous or uncertain ordinance by
examining its context and by considering the reason or spirit of the law. City of Las Vegas v.
Macchiaverna, 99 Nev. 256, 258, 661 P.2d 879, 880 (1983).
Nevada uses mechanics' liens and contractors' bonds to protect subcontractors from the
risk of nonpayment for their labor and materials. The contractors' bond statutes require a
public body to ensure that contractors furnish both performance and payment bonds for public
construction when the cost exceeds $20,000.00. NRS 339.025(1). Thus, the payment bond
required for public works is in lieu of lien statutes. It protects those who supply labor and
materials for public buildings. Flaugh v. Empire Clay Products, Inc., 402 P.2d 932, 933
(Colo. 1965). In the instant case, the off-site improvements were on private property and did
not become City property until after completion and dedication to the City.
Mechanics' lien statutes, on the other hand, protect laborers and materialmen working on
improvements of private property interests at the request of owners. NRS 108.221-.246.
Because subdivision construction entails work on private land owned by the subdivider, the
mechanics' lien statutes are available to protect those involved in subdivision improvements.
NRS 108.224. Brown and Delta could have insisted on a bond from the subdivider insuring
payment for labor and materials but apparently chose not to do so. Instead they filed
mechanics' liens against the subdivider, Boulder Development. Unfortunately, the
construction lender's deed of trust had priority, and foreclosure of the deed of trust
extinguished appellants' liens. Legal action against Boulder Development was thwarted when
the subdivider went bankrupt.
Considering the stated intent of Boulder City and the state statutory scheme, I decline to
follow the majority's reading of the payment bond provision of BCMC 11-36-12(A). See
Breen v. Caesars Palace, 102 Nev. 79, 84, 715 P.2d 1070, 1073 (1986) (declining to read
statute literally in light of statutory scheme). Rather, I construe the provision as applying only
to public construction. I discern no reason why Boulder City would by ordinance impose an
unnecessary and expensive duty on itself to ensure that those supplying labor and materials
receive multiple layers of protectionincluding one from the Cityfor off-site
improvements on private propertyl
improvements on private property! In fact, for many years, the City had not required payment
bonds under circumstances present in the instant case. Such a longstanding interpretation of
the City's ordinance, by the officials charged with its enforcement, is entitled to great
deference. See Hewlett-Packard Co. v. Dep't of Revenue, 749 P.2d 400, 406 (Colo. 1988).
Furthermore, Brown apparently began work about a month before the City accepted and
recorded the final map. Delta did not even contract to do work until several months later. It
seems absurd to expect, as the majority do, that the City would have to determine how much
work had been done by Brown or others at the time the subdivision map was approved, or
was to be done by Delta or others thereafter on subcontracts that may not have yet been
executed, in order to establish accurate sums for payment bonds under BCMC 11-36-12(A).
Moreover, what would happen if the subdivider for financial reasons was then unable to
furnish a payment bond? Would the City be obliged to stop further work? Would the City be
liable if work proceeded? Obviously, neither Delta nor Brown relied on such a bond. It was a
matter of public knowledge that no bond had been filed when Brown began work or, after the
map was recorded, when Delta commenced work.
If there were multiple subcontractors at various stages of work, under the majority's view
the City must, apparently under penalty of becoming liable itself, identify all suppliers of
labor and materials, compute the amount of each contract, ascertain what if anything has been
paid, and then determine the cost of labor and materials remaining to be furnished and require
a bond sufficient to pay potential claimants. If the bond proves inadequate because of
unforeseen extras or misinformation, presumably under the majority opinion the City will
then be liable for the bond deficiency. Arguably, under the reasoning in the majority opinion,
the claimant would not even have to exhaust remedies against the subdivider or general
contractor but could proceed directly against the City!
Such an interpretation of the ordinance is totally unrealistic. It would be unduly
burdensome on the City with no corresponding benefit. Therefore, I conclude that BCMC
11-36-12(A) does not require Boulder City to ensure that a payment bond was posted for the
protection of Brown and Delta. Accordingly, I believe that no basis exists to support
appellants' negligence claim.
Contrary to the majority's view, I submit that this case falls squarely within the general
rule that municipalities are not usually liable for failure to enforce ordinances. See, e.g., Frye
v. Clark County, 97 Nev. 632, 637 P.2d 1215 (1981). Because I disagree that the ordinance
mandated the City to compel the subdivider to file a payment bond, or pay the claim if it
did not, I believe this case is no more than a simple failure to enforce.
disagree that the ordinance mandated the City to compel the subdivider to file a payment
bond, or pay the claim if it did not, I believe this case is no more than a simple failure to
enforce.
Moreover, I do not believe that the City, under its ordinance, assumed a special duty to
those furnishing labor and materials for off-site work. In Frye, this court said that [s]uch a
duty may exist where, [sic] official conduct has created specific reliance on the part of
individuals, or where the official negligence affirmatively causes the individual harm. Id. at
634, 637 P.2d at 1216 (citation omitted.)
Here, neither Brown nor Delta in fact relied on the filing of a payment bond by the
subdivider. They did nothing to verify the bond's existence and unsuccessfully sought
payment by filing mechanics' liens. Can we now fairly hold Boulder City liable for
approximately $150,000 because the other document language of the ordinance supposedly
mandates a payment bond for the benefit of Brown and Delta? This is a particularly tenuous
predicate in light of the fact that for many years the City had a widely known practice and
policy of not requiring payment bonds under these circumstances. Presumably the City will
now move to amend the ordinance and eliminate even the remotest possibility that it could
ever again be called on to pay suppliers of labor and materials who because of their own
oversight are unable to collect from those traditionally responsible.
For these reasons I conclude that the district court properly granted summary judgment in
favor of Boulder city in all respects. Accordingly, I dissent.
____________
106 Nev. 513, 513 (1990) Ardmore Leasing v. State Farm Mutual
ARDMORE LEASING CORPORATION dba SAVE-MOR RENT-A-CAR dba GROUP
TOURS, and GUARANTY NATIONAL INSURANCE COMPANY, Appellants, v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.
No. 20372
August 21, 1990 796 P.2d 232
Appeal from a summary judgment of the district court in favor of respondent. Eighth
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Automobile insurer that had paid claim under policy after van rented by insured was
involved in accident brought action against lessor's insurer, seeking contribution or
indemnity.
lessor's insurer, seeking contribution or indemnity. The district court granted automobile
insurer's motion for summary judgment, and appeal was taken. The Supreme Court held that
evidence raised fact issues, precluding summary judgment.
Barker, Gillock, Koning, Brown & Earley and Martha A. Karp, Las Vegas, for Appellants.
Pearson & Patton and Ronald M. Pehr, Las Vegas, for Respondent.
1. Judgement.
District court is not relieved of its responsibility to ascertain if genuine issues of fact remain even though both parties move for
summary judgment. NRCP 56(c).
2. Judgment.
Evidence in action arising when lessee's employee was involved in accident in rental van raised fact issues as to extent of coverage
provided in lessee's automobile policies and policy issued to van's lessor, and whether lessee violated rental agreement by allowing
eighteen year old employee to drive van, precluding summary judgment in action brought by lessee's insurers against lessor's insurer
for contribution or indemnity. NRCP 56(c).
OPINION
Per Curiam:
In the action below, the district court granted respondent's countermotion for summary
judgment. Because genuine issues of fact still remain, we reverse.
THE FACTS
On December 23, 1986, Peggy Jakobiak, through her business, Redrock Florist, rented a
van from appellant Ardmore Leasing Corporation, dba Save-Mor Rent-A-Car, dba Group
Tours (Ardmore). Ardmore insured the van with appellant Guaranty National Insurance
Company (Guaranty). That same day, Kevin Faber, an eighteen year old employee of Redrock
Florist, while driving the van in the course of his employment, was involved in an automobile
accident with Donna Kuberth. Respondent, State Farm Mutual Automobile Insurance
Company (State Farm), had issued insurance policies to Jakobiak and Faber's mother and
settled Kuberth's claim for $150,000.00. Ardmore and Guaranty denied coverage for the
accident.
State Farm then sought contribution and/or indemnity from Ardmore and Guaranty for the
money it paid to Kuberth, arguing that the Guaranty-Ardmore policy provided primary
coverage for the accident.
that the Guaranty-Ardmore policy provided primary coverage for the accident. Ardmore and
Guaranty subsequently made a motion for summary judgment, maintaining that State Farm's
policies supplied primary insurance for the accident and that the Guaranty-Ardmore policy
furnished only secondary coverage. State Farm opposed the motion and filed its own
countermotion for summary judgment, insisting that the Guaranty-Ardmore policy provided
primary coverage for the accident and that the State Farm policies did not provide any
coverage. However, State Farm did not include the Guaranty-Ardmore policy in the record
before the district court. In addition, the Guaranty-Ardmore policy is not included in the
record on appeal.
1
Nonetheless, the district court granted State Farm's countermotion for
summary judgment and awarded indemnity to State Farm in the amount of $150,000.00.
DISCUSSION
On appeal, Ardmore and Guaranty argue that the district court erred in granting summary
judgment to State Farm. Specifically, appellants contend that genuine issues of material fact
still remain for trial.
[Headnote 1]
This contention has merit. Summary judgment is proper only when there are no genuine
issues of material fact remaining for trial and the moving party is entitled to judgment as a
matter of law. NRCP 56(c); Wiltsie v. Baby Grand Corp., 105 Nev. 291, 774 P.2d 432, 433
(1989). In addition, the district court is not relieved of its responsibility to ascertain if genuine
issues of fact remain even though both parties move for summary judgment. See Chequer,
Inc. v. Painters & Decorators, 98 Nev. 609, 612, 655 P.2d 996, 998 (1982).
[Headnote 2]
Here, the district court erred in granting summary judgment. Genuine issues of fact still
exist as to the extent of coverage provided in State Farm's policies and the Guaranty-Ardmore
policy. Moreover, it is unclear whether Jakobiak violated the rental agreement by allowing
her eighteen year old employee to drive the van. Therefore, State Farm is not entitled to
judgment as a matter of law.
__________

1
State Farm has filed a motion to supplement the record on appeal with two unidentified insurance policies
of indeterminable length and a policy issued to a company not involved in this matter. Because these exhibits
were not properly presented to or considered by the district court and are not helpful in determining if genuine
issues of fact remain, the motion is denied. See Carson Ready Mix v. First Nat'l Bk., 97 Nev. 474, 635 P.2d 276
(1981).
For the foregoing reasons, we reverse the summary judgment and remand this case for
____________
106 Nev. 516, 516 (1990) State, Dep't of Mtr. Vehicles v. Clements
Appellant v. GERALD CLEMENTS, Respondent.
No. 20540
August 21, 1990 796 P.2d 588
Appeal from an order of the district court reinstating respondent's driving privileges.
Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Driver appealed Department of Motor Vehicles (DMV's) decision to revoke driving
privileges. The district court reversed order, denied DMV's motion for rehearing and imposed
sanctions. DMV appealed. The Supreme Court held that: (1) affidavit of nurse who withdrew
blood sample was admissible; (2) authenticated copy of crime lab report was admissible; and
(3) DMV was justified in filing motion for rehearing.
Brian McKay, Attorney General, Carson City; Grenville T. Pridham, Deputy Attorney
1. Automobile.
Signed affidavit of registered nurse who withdrew driver's blood and administered blood test was admissible, even absent
authorization by certifying agency, where incident occurred prior to effective date of provision requiring authorization by certifying
agency. NRS 484.393, subd. 1(a), (b), (c).
2. Evidence.
Authenticated copy of crime lab report was admissible in driver's license revocation proceeding, where original was in possession
of police department, and driver had opportunity to obtain original for purposes of a comparison, by use of subpoena duces tecum.
NRS 233B.123, subd. 2.
3. Costs.
Department of Motor Vehicles (DMV) was justified in filing motion for rehearing and should not have been sanctioned for doing
so. NRCP 11.
OPINION
Per Curiam:
The Facts
On June 23, 1987, Trooper Patricia Kinard of the Nevada Highway Patrol arrived at a
property damage accident on U.S. Hwy. 95 at Rainbow Boulevard. Kinard observed a blue
pickup truck facing south in the northbound lane. Respondent Gerald Clements admitted to
Kinard that he was driving the pickup truck. Kinard noted that Clements had a strong odor of
alcohol and that his eyes were bloodshot. Kinard then administered a series of field sobriety
tests to Clements, all of which he failed. Kinard then placed Clements under arrest for driving
while intoxicated.
At the Las Vegas City Jail, Nurse Patricia Howell administered a blood alcohol test which
revealed that Clements' blood alcohol content was 0.19 percent by weight at the time of
withdrawal.
On July 10, 1987, appellant, the Department of Motor Vehicles and Public Safety (the
DMV), revoked Clements' driving privileges. Upon Clements' request, an administrative
hearing was held on August 19, 1987. The hearing officer determined that Officer Kinard had
reasonable grounds to believe that Clements had been driving a motor vehicle while under the
influence of alcohol. The hearing officer also found that the DMV's copy of the original crime
laboratory report was properly authenticated and certified, therefore admissible evidence. The
hearing officer concluded that there was substantial evidence to support the revocation of
Clements' driving privileges, and upheld the DMV's decision to revoke his driving privileges.
Clements appealed the decision of the hearing officer to the district court, and, on August
31, 1989, the district court issued its decision and order reversing the revocation of Clements'
driving privileges. The district court found that the DMV hearing officer erred by admitting
the affidavit of Nurse Howell where there was no showing that she was authorized to
withdraw blood pursuant to NRS 484.393(1)(c). The district court also concluded that the
hearing officer erred by admitting copies of the DMV's crime lab report where there was no
showing of unavailability of the original documents. NRS 233B.123(2). On September 13,
1989, the DMV filed a motion for a rehearing. On September 25, 1989, the district court
denied the motion for a rehearing and awarded $350.00 in sanctions against the DMV. This
appeal by the DMV followed.
Discussion
On appeal, the DMV first argues that the district court erred by determining that the DMV
hearing officer failed to comply with NRS 484.393(1)(c). Prior to July 1, 1987, NRS 484.393
provided in pertinent part:
1. The results of any blood test . . . are not admissible in any hearing or criminal
action arising out of the acts alleged to have been committed while a person was under
the influence of intoxicating liquor or a controlled substance unless:
(a) The blood tested was withdrawn by a physician, registered nurse, licensed
practical nurse, advanced emergency medical technician-ambulance or a technician
employed in a medical laboratory; and
(b) The test was performed on whole blood, except if the sample was clotted when it
was received by the laboratory, the test may be performed on blood serum or plasma.
Effective July 1, 1987, the following provision was added:
(c) The person who withdrew the blood was authorized to do so by the appropriate
medical licensing or certifying agency.
[Headnote 1]
Clements asserts that because Nurse Howell was not present at the hearing, and the Nurse's
affidavit was deficient, the DMV failed to satisfy the requirements of NRS 484.393(1)(c). We
disagree.
As noted above, subsection (c) only became effective July 1, 1987. The accident took
place on June 23, 1987. Therefore, we conclude that subsection (c) does not apply to the
instant case. Courts will not apply statutes retrospectively unless the statute clearly expresses
a legislative intent that they do so. Allstate Ins. Co. v. Furgerson, 104 Nev. 772, 776, 766
P.2d 904, 907 (1988) (quoting Travelers Hotel v. City of Reno, 103 Nev. 343, 346, 741 P.2d
1353, 1355 (1987)). There is nothing in the language of NRS 484.393(1)(c) which suggests
any legislative intent to apply the statute retrospectively. Moreover, the DMV satisfied the
requirements under subsections (a) and (b), because the blood was withdrawn by a licensed
nurse, and the test was performed on whole blood. This is evidenced by the signed affidavit
of Nurse Howell, stating that she is a registered nurse and that she withdrew whole blood
samples from Clements. There is no evidence that the affidavit is either untruthful or
misleading. As the court stated in State, Dep't Mot. Vehicles v. Vezeris, 102 Nev. 232, 234,
720 P.2d 1208, 1210 (1986), the affidavits of the persons who withdrew blood samples are
clearly admissible in administrative proceedings before the DMV.1 The signed affidavit
was therefore the best evidence of Nurse Howell's authorization to withdraw blood.
persons who withdrew blood samples are clearly admissible in administrative proceedings
before the DMV.
1
The signed affidavit was therefore the best evidence of Nurse Howell's
authorization to withdraw blood. Accordingly, we conclude that the district court erred by
relying on subsection (c) to reverse the hearing officer's decision, and the DMV satisfied the
requirements of subsections (a) and (b).
[Headnote 2]
The DMV next contends that the authenticated copy of the crime lab report was admissible
pursuant to NRS 233B.123(2). NRS 233B.123(2) provides: Documentary evidence may be
received in the form of authenticated copies or excerpts, if the original is not readily
available. Upon request, parties shall be given an opportunity to compare the copy with the
original. (Emphasis added.) We agree.
The Las Vegas Metropolitan Police Department (LVMPD) had possession of the original
crime lab report. If Clements wanted the original report, he could have requested it from the
LVMPD by a subpoena duces tecum, prior to the administrative hearing. The DMV did not
have the original document. There is no statutory provision requiring the DMV to provide
original documents which another agency generates and maintains. Moreover, NRS
233B.123(2) only requires that a party be given the opportunity to compare the copy with the
original. Clements was free to take the certified copy to the LVMPD and compare it with the
original.
[Headnote 3]
Lastly, the DMV contends that the district court abused its discretion by imposing
sanctions under NRCP Rule 11 after it filed its motion for a rehearing.
2

This court should not reverse an award of sanctions absent a showing of an abuse of
discretion. Works v. Kuhn, 103 Nev. 65, 732 P.2d 1373 {19S7).
____________________

1
In Vezeris, this court held that parties seeking administrative review of driver's license revocations may not
object to the use of affidavits of persons drawing blood samples. Id. at 235-237, 720 P.2d at 1211-1212.

2
NRCP 11 provides in pertinent part:
The signature of an attorney or party constitutes a certificate by that attorney or party that he or she has
read the pleading, motion, or other paper; that to the best of his or her knowledge, information and belief,
formed after reasonable inquiring under the circumstances obtaining at the time of signature, that it is
well grounded in fact and is warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law, and that it is not interposed for any improper purpose such as to
harass or to cause unnecessary delay or needless increase in the cost of litigation.
732 P.2d 1373 (1987). Nevertheless, our review of the record reveals that the DMV was
justified in filing its motion for a rehearing. As discussed earlier, Nurse Howell was a
registered nurse and authorized to withdraw the blood. Moreover, the DMV did not commit
any error by submitting as evidence a copy of the crime lab report because Clements failed to
subpoena the original from the LVMPD or make a personal request for the original. Nor is
there any indication that the motion was filed for an improper purpose. Id. at 67, 732 P.2d at
1375. Thus, the district court abused its discretion by imposing sanctions against the DMV
under Rule 11.
____________
106 Nev. 520, 520 (1990) Athey v. State
RICHARD LEWIS ATHEY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19831
August 21, 1990 797 P.2d 956
Appeal from a judgment of conviction of felony child abuse and first degree murder.
Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
Defendant was convicted of felony child abuse and first degree murder. Judgment was
entered in the district court. Defendant appealed. The Supreme Court, Young, C. J., held that
conviction for child abuse was required to be set aside, as conviction for that offense and
murder violated defendant's double jeopardy rights.
Affirmed in part, reversed in part.
Mowbray and Springer, JJ., dissented.
Laura Wightman FitzSimmons, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, and John
Lukens, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Prosecution in child abuse and murder case did not impermissibly change theory of case from one of physical abuse to one of
emotional abuse, violating defendant's Sixth Amendment right to be informed of charges against him, by urging jury to
convict for "living hell" defendant put victim through; totality of evidence indicated prosecution was
referring to physical abuse and in any event information contained reference to "mental suffering."
106 Nev. 520, 521 (1990) Athey v. State
charges against him, by urging jury to convict for living hell defendant put victim through; totality of evidence indicated prosecution
was referring to physical abuse and in any event information contained reference to mental suffering. U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Prosecution in child abuse and murder case did not impermissibly change theory of case by referring in closing argument to
pattern of abuse extending over three months, rather than focusing on events of night when child was killed; both complaint and
information specified crimes occurred over a three month period. U.S.C.A.Const. Amend. 6.
3. Double Jeopardy.
Defendant's double jeopardy rights were violated by conviction for murder and child abuse; both were based on events occurring
on night when child was battered, murder charge could not be brought without use of same facts relating to abuse, and there was no
indication of intent on the part of legislature to punish abuse and murder cumulatively. U.S.C.A.Const. Amend. 14; NRS 200.030,
200.508.
4. Homicide.
Defendant in homicide case was not entitled to reduction of conviction from first to second degree murder on grounds that autopsy
evidence of child allegedly killed indicated three blows to head, suggesting possibility that injuries may have been inflicted by
emergency room personnel and negating claim that defendant showed premeditation required for first degree murder; evidence was
equally susceptible to interpretation that defendant had struck child three times.
5. Criminal Law.
Prosecutor did not engage in misconduct by severing suit against mother of child allegedly murdered by father from suit against
father, and then not pursuing action against mother, thus allegedly forcing mother to assert her privilege against self-incrimination for
fear that charges would be pursued; even if mother's case had not been severed she still could have asserted privilege, and in any event
there was no evidence that State persuaded mother that it would not prosecute if she did not testify on behalf of father.
6. Criminal Law.
Trial court in child abuse and murder case did not abuse discretion by admitting autopsy photographs of victim's head, on grounds
that prejudicial impact outweighed their probative value; medical witness had testified that photographs would assist her in explaining
victim's injuries.
OPINION
Starting in September 1987, appellant Richard Athey lived with his girfriend Donna
Hutton and her 28-month-old son, Paul. On the evening of December 15, 1987, while Donna
was away, Athey dialed 911 because Paul was comatose. When the paramedics arrived,
Athey told them that Paul had fallen backwards off the bed, hit his head on the concrete floor,
and lapsed into unconsciousness.
106 Nev. 520, 522 (1990) Athey v. State
into unconsciousness. Paul was rushed to the hospital and examined by several doctors, each
of whom concluded that Paul's injuries were not consistent with Athey's story and appeared
instead to have been caused by child abuse.
Paul was pronounced dead about 30 hours later. Following an autopsy, a pathologist
concluded that the cause of Paul's death was homicidal and that the injuries probably resulted
from blunt trauma or shaking. Thereafter, Athey was charged with felony child abuse and
murder. He was convicted of both crimes and sentenced to seventeen years in prison for
felony child abuse and a consecutive term of life with the possibility of parole for murder.
[Headnote 1]
On appeal, Athey first contends that during the closing rebuttal argument, the prosecutor
impermissibly changed his theory from one of physical abuse to one of emotional abuse when
he stated that the jury could convict Athey of child abuse for the living hell he put Paul
Hutton through for those few short months that he lived with him. Athey asserts that this
change in theory violated his Sixth Amendment right to be informed of the charges against
which he was expected to defend.
The State contends, however, that this statement by the prosecutor referred to the physical
abuse alleged in the information. Indeed, our review of the prosecutor's other references in
closing rebuttal made shortly before this statement clarifies that he was maintaining a theory
of physical abuse. Furthermore, even assuming that the prosecutor's statement referred to
emotional abuse, there was no lack of notice because the information twice specifically
alleged or mental suffering.
[Headnote 2]
Based on the above-quoted statement, Athey also contends that the prosecutor changed his
theory as to when the alleged child abuse occurred. Therefore, he contends, he was convicted
without notice of the child abuse charges concerning the three month period prior to Paul's
death, in violation of the Sixth Amendment. However, both the complaint and the
information specified that the crimes occurred between September 1, 1987 and December
15, 1987. Therefore, Athey had notice that he faced charges of felony child abuse prior to
December 15, 1987.
Thus, we hold that the prosecutor did not change theories in the middle of his closing
argument, depriving Athey of notice of the charges against which he should be prepared to
defend. There is, however, a question of law regarding the sufficiency of the evidence in
support of the jury's verdict of guilty of child abuse and neglect with substantial bodily
harm.
106 Nev. 520, 523 (1990) Athey v. State
The jury's verdict is consistent with felony child abuse as set forth in NRS 200.508(2).
While the information specified that the crimes were committed between September 1 and
December 15, 1987, the jury was not asked, nor does its verdict reveal, whether the
conviction was for acts committed on December 15, 1987, or for acts committed prior to that
night. If the jury's verdict concerned felony child abuse for acts prior to December 15, 1987,
we hold that there is insufficient evidence of substantial bodily harm for a felony
conviction. Contrast Childers v. State, 100 Nev. 280, 284, 680 P.2d 598, 600 (1984). Thus,
we hold that Athey's conviction of felony child abuse cannot be sustained for the period
between September 1 and December 15, 1987.
[Headnote 3]
Nevertheless, it is quite clear from our review of the prosecutor's closing argument that he
was urging a conviction based on acts occurring on the evening of December 15, 1987. Athey
contends that his convictions of both felony child abuse and first degree murder for the acts of
December 15 violate the constitutional prohibition against double jeopardy. Athey correctly
notes that in Talancon v. State, 102 Nev. 294, 721 P.2d 764 (1986), this court clarified the
two-part test for purposes of double jeopardy analysis. In Talancon, we said that first it must
be determined whether there are two offenses or only one. The test to be applied is whether
each provision requires proof of a fact which the other does not. Id. at 298, 721 P.2d at 766
(quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). Second, where two
statutory offenses constitute the same offense' under the Blockburger test, double jeopardy
will not be violated by separate sentences for those two offenses following a single trial, if it
appears that the legislature intended separate punishments. Id. at 301, 721 P.2d at 769.
Because the felony child abuse occurred on the same evening as the murder, Athey
contends that the same act of child abuse constituted the basis for both offenses here. He
persuasively distinguishes his case from the facts of Bludsworth v. State, 98 Nev. 289, 646
P.2d 558 (1982), in which substantial testimony establishes that the child had been seriously
and persistently abused prior to the fatal injury and was a victim of the battered child
syndrome. Id. at 290, 646 P.2d at 559. In Bludsworth, we upheld the conviction of separate
offenses of child abuse and murder. Id. at 293, 646 P.2d at 560. Based on the evidence in his
case, Athey asserts that, unlike Bludsworth, first degree murder could not have been
committed in this case absent the commission of felony child abuse and that therefore the two
convictions are based on the same offense. We agree.
106 Nev. 520, 524 (1990) Athey v. State
Our next inquiry concerns whether the legislature nevertheless intended separate
punishments. In Whalen v. United States, 445 U.S. 684 (1980), the United States Supreme
Court stated that where two statutory provisions proscribe the same offense,' they are
construed not to authorize cumulative punishments in the absence of a clear indication of
contrary legislative intent. Id. at 692. Although NRS 200.030 and NRS 200.508 both
proscribe child abuse which results in death, we find nothing in these provisions that
specifically authorizes cumulative punishment. See Missouri v. Hunter, 459 U.S. 359, 368
(1983).
Thus, because we have determined that the felony child abuse and the murder were the
same offense and the legislature intended only one punishment for murder by child abuse, we
hold that Athey's conviction of felony child abuse is barred by the prohibition against double
jeopardy and must be reversed under the two-part test of Talancon.
[Headnote 4]
Athey next contends that his conviction of first degree murder must be reduced to second
degree because there was insufficient evidence of premeditation. The State correctly notes
that [t]he determination of the degree of crime is almost invariably left to the discretion of
the jury. Hern v. State, 97 Nev. 529, 531, 635 P.2d 278, 279 (1981). In Hern, this court
emphasized that in reviewing the sufficiency of the evidence underlying a jury's
determination, [t]he issue is not whether this court would have found beyond a reasonable
doubt that appellant was guilty of first degree murder, but whether the jury, acting reasonably,
could have been convinced to that certitude by the evidence it had a right to consider. Id.
Athey contends that the facts in his case are distinguishable from those in Hern, in which
we determined that [t]he nature and extent of the injuries, coupled with repeated blows,
constitutes substantial evidence of willfulness, premeditation and deliberation. Id. at 533,
635 P.2d at 281. He argues that the bruises found on Paul during the autopsy were more likely
the result of emergency medical treatment than of abuse. He further argues that because Paul's
scalp bruises blended together upon external examination and were only revealed as three
discreet injuries upon autopsy, the jury could not legitimately infer premeditation.
We believe that the jury's inference of premeditation was all the more legitimate precisely
because it learned that what initially appeared to be one injury was actually several.
Furthermore, we conclude that the present facts are virtually identical to those in Hern. The
lay testimony about appellant's prior treatment of Paul and the expert medical testimony about
the cause of death and about Paul's injuries on December 15, 19S7, provided ample
circumstantial evidence of premeditation.
106 Nev. 520, 525 (1990) Athey v. State
about Paul's injuries on December 15, 1987, provided ample circumstantial evidence of
premeditation. Given the jury's discretion in determining the degree of murder, we hold that
there was sufficient circumstantial evidence from which the jury could infer premeditation.
See Hern, 97 Nev. at 533, 635 P.2d at 281. Therefore, Athey's conviction of first degree
murder cannot be reduced to one of second degree.
[Headnote 5]
Athey next contends that several instances of prosecutorial misconduct require reversal of
both of his convictions. First, he asserts that the prosecutor abused his function by severing
Donna Hutton, Paul's mother, from the complaint. He argues that the State severed Hutton
but did not proceed against her, so that she was forced to assert her privilege against
self-incrimination for fear that the felony charges would be pursued. Athey contends that the
prosecutor's conduct constituted reversible error under our decision in Franklin v. State, 94
Nev. 220, 577 P.2d 860 (1978).
Even had Hutton's case not been severed, however, she still could have asserted her
privilege against self-incrimination. Furthermore, unlike in Franklin, there is no evidence to
show that the State persuaded Hutton that it would not prosecute if she did not testify for
Athey.
Second, Athey asserts that a number of the prosecutor's statements to the jury during
closing argument mandate reversal of both of his convictions. Athey acknowledges that
defense counsel failed to preserve for our consideration these allegations of misconduct
because counsel made only one objection during the prosecutor's closing argument. See
Williams v. State, 103 Nev. 106, 110-111, 734 P.2d 700, 703 (1987). He contends, however,
that where the errors are patently prejudicial and inevitably inflame or excite the passions of
the jurors against the accused, the general rule does not apply. Sipsas v. State, 102 Nev. 119,
125, 716 P.2d 231, 235 (1986) (citation omitted).
Our review of the record reveals that the errors, if any, were not so prejudicial and
inflammatory as to justify a departure from the general rule stated in Williams. With respect
to the conduct objected to at trial, the prosecutor's statements were nothing more than
comments on the evidence and his view of what the evidence showed. See Santillanes v.
State, 104 Nev. 699, 702, 765 P.2d 1147, 1149 (1988) and State v. Green, 81 Nev. 173, 176,
400 P.2d 766, 767 (1965).
[Headnote 6]
Athey further contends that under Sipsas, the district court abused its discretion in
admitting two autopsy photographs of Paul's head because their prejudicial impact
outweighed their probative value.
106 Nev. 520, 526 (1990) Athey v. State
Paul's head because their prejudicial impact outweighed their probative value. Sipsas is
distinguishable, however, because there the witness merely said the photograph might help
him explain the cause of death. Id. at 122, 716 P.2d at 233. Furthermore, the trial judge in
Sipsas initially denied admission of the photograph after finding that the prejudicial effect
outweighed its probative value; later, the same photograph was erroneously admitted on
another basis. We concluded that the district court abused its discretion in admitting the
photograph which it had already found to be more prejudicial than probative. Id. at 124, 716
P.2d at 234.
By contrast, in the present case the witness stated affirmatively that the photographs would
assist her in explaining the victim's injuries. In addition, the trial judge determined that the
two autopsy photographs were mere probative than prejudicial. In sum, we hold that the
district court did not abuse its discretion in admitting the photographs. See Ybarra v. State,
100 Nev. 167, 172, 679 P.2d 797, 800 (1984).
Athey contends that even if this court disagrees that the separate assignments of error
mandate reversal of his convictions, reversal is required under the doctrine of cumulative
error. However, because we find no error other than in the conviction of felony child abuse,
the doctrine does not apply here.
Having considered all of appellant's additional contentions and found them without merit,
we hereby vacate the conviction of felony child abuse. In all other respects, the judgment of
the district court is affirmed.
Steffen and Rose, JJ., concur.
Mowbray, J., dissenting.
The tiny tot, Paul, the victim of these two crimes, who was eventually murdered by the
appellant endured a horrible existence prior to his untimely but merciful demise. This
dependent 28-month-old child, now deceased, who had nowhere to turn for help, was
constantly and continuously abused and both physically and mentally tortured by the
appellant, Richard Athey, during the victim's brief life existence.
A jury after a full trial found the appellant guilty of (1) felony child abuse and (2) murder
of the child.
In its opinion today this Court has reversed and relieved the appellant of the first
offensethe felony child abuse chargeon the principal ground that there was insufficient
independent evidence to support the jury's verdict on that charge. I disagree. The record, in
my opinion, speaks eloquently in support of the jury's verdict of felony child abuse and cries
out for support thereof.
106 Nev. 520, 527 (1990) Athey v. State
verdict of felony child abuse and cries out for support thereof. For instance, I find in the
record the following:
First, the pediatrician, Dr. Golden, testified that she noticed faint bruises above Paul's left
eye and on his left earlobe. She also discovered retinal hemorrhages in both of Paul's eyes. It
was Dr. Golden's opinion at trial that the story related by appellant was not consistent with
these physical findings and that Paul was the victim of battered child syndrome. Dr. Carlile, a
pediatric intensivist, testified that during his examination of Paul he found some linear
bruises over his buttocks. Dr. Carlile's most significant medical finding was that, within just a
few hours of reportedly having been well, Paul's intercranial pressure was tremendously high.
In Dr. Carlile's opinion, the swelling, bleeding and increased pressure of the brain were
caused by traumatic force. Dr. Carlile also opined that, because the history did not explain his
findings, Paul was a potential victim of child abuse. Dr. Hollander, a medical examiner for
Clark County, performed an autopsy. Dr. Hollander testified that she found a number of
contusions (bruises) on Paul's body including one on the left upper eyelid, some along the
angle of the right jaw, a number on the left cheek, several small ones on the inside of the
upper lip, one on the right upper arm and another on the left upper arm near the elbow, one on
the posterior right side, several on the right leg, and a number of fairly large contusions on the
lower back and on the buttocks. Her examination revealed bilateral subdural hematoma and
that the brain was quite swollen and flattened. Dr. Hollander testified that in her opinion the
injuries could not have been sustained by accident, and Paul's death was homicidal and his
injuries were caused by either vigorous shaking or blunt trauma to the head.
Next, let us turn to the lay testimony. The prosecution presented testimony from a number
of witnesses regarding appellant's treatment of Paul during the months prior to Paul's death.
Natalie Sheppherd, appellant's next door neighbor, testified she noticed a change in Paul from
the time before to the time after appellant moved in. Mrs. Sheppherd testified that every time
appellant would drive up in his truck, Paul would start to cry and run toward home. On one
occasion, Mrs. Sheppherd was talking with Paul on the steps outside their apartments when
appellant arrived home. When Paul saw appellant, he started to cry and run, yelling his
mother's name. Appellant sat down on a step, picked up Paul, pulled his diaper down and
spanked him as hard as he could, so hard that Sheppherd was scared to death that he was
going to break his back. After he spanked Paul, appellant jerked him by the arm and
literally threw him into the apartment.
106 Nev. 520, 528 (1990) Athey v. State
Mrs. Sheppherd's two daughters testified that they noticed a change in Paul after appellant
started to live with Paul and his mother. Colleen Sheppherd testified that Paul's mentality
changed, that he wouldn't respond anymore and just repeated things. Darlene Sheppherd
testified that Paul would stand with his hands limp to his side and walked around like the
[sic] was in a daze, like he was drugged.
Darlene Sheppherd further testified that on three separate occasions she saw appellant take
Paul and put him on the edge of his pick-up truck bed, with Paul's feet hanging out of the
truck. Appellant told Paul to hold on, and Paul would grab a hold of the lip of the truck . .
. and Mr. Athey [appellant] would drive up and down the alleyway between the trash cans
where his parking space was and where [her] car was and be laughing and saying Hold on
Paul, hold on, ha, ha, ha' and Paul was petrified.
Next, Barbara Plascencia, a co-worker of Paul's mother, and Deborah Monterano,
Plascencia's friend, visited Paul's mother in mid-September 1987. Plascencia and Monterano
took Paul home with them that evening and later while changing Paul's diaper, Plascencia and
Monterano noticed that he had a bruise from the base of his neck all the way to the bottom of
his buttocks.
Linda Goss testified that she hosted a Thanksgiving dinner which was attended by
appellant, Donna Hutton and Paul. During dinner, Paul stopped eating and appellant refused
to excuse him. When Paul started to cry, appellant slammed his fist onto Paul's plate and
shattered it. Appellant then yanked Paul out of his chair and took him to the bathroom. Ms.
Goss went to the bathroom and found Paul sitting on the toilet, holding his arms out to her
and shaking. Another dinner guest, Jo Schmidt, testified that she went into the bathroom and
took Paul off the toilet and dressed him. Appellant told Schmidt that she didn't understand
and that Paul was possessed by the devil.
The jury, under the Nevada Constitution, not this Court, is the exclusive finder of the facts
under our system of jurisprudence. Its verdict should not be disturbed on appeal absent a
showing of insufficient evidence to support that verdict.
Additionally, and ironically in the instant case the child abuser escapes liability for his
heinous earlier child abuse conduct by eventually murdering the child victim of that prior
conduct. I simply cannot accept such reasoning as being in accord with justice and the law.
Therefore, I would uphold the jury's verdict in this case in its entirety and affirm the
appellant's judgment of conviction on both counts, the felony child abuse charge and the
murder charge. I would not thereby reduce his sentence in the State penitentiary.
106 Nev. 520, 529 (1990) Athey v. State
I agree that the jury's verdict should not be disturbed. The distinction between this case and
Childers v. State, 100 Nev. 280, 680 P.2d 598 (1984), is insufficient to warrant reversal. To
that end, I concur in the result urged by Justice Mowbray.
____________
106 Nev. 529, 529 (1990) Ramacciotti v. Ramacciotti
KAREN JUNE RAMACCIOTTI, Appellant, v. RALPH R. RAMACCIOTTI, Respondent.
No. 20198
August 21, 1990 795 P.2d 988
Appeal from an order of the district court denying appellant's motion to modify child
support. Second Judicial District Court, Washoe County; Robert L. Schouweiler, Judge.
Divorced wife filed motion to modify former husband's child support obligation, following
enactment of statutory amendment extending child support obligations until child completed
high school or reached age 19. The district court extended husband's support obligation as to
one child and declined to change his monthly support payments, and mother appealed. The
Supreme Court held that: (1) district court had jurisdiction to extend husband's obligation to
provide support for both children; (2) extending child support payments beyond child's
eighteenth birthday would not involve retroactive application of amendment; and (3) more
complete factual analysis respecting spouses' incomes appeared warranted on remand.
Richard W. Young, Reno, for Appellant.
Cooke, Roberts and Reese, Reno, for Respondent.
1. Divorce.
Trial court had jurisdiction to extend husband's obligation to provide support for child beyond her eighteenth birthday, pursuant to
amendment to child support statute extending child support obligations until child completed high school or reached age 19; contrary
to trial court's finding, wife filed and served motion to modify before child turned 18, and, in any event, amendment indicated
legislative intent to permit modification of child support orders until child reached 19 if child was still enrolled in high school. NRS
125.510, subd. 6(b).
2. Divorce.
Extending child support payments for child beyond her eighteenth birthday, pursuant to amendment to child support statute
extending child support obligations until child completed high school or reached age of 19, would not have
effect of giving retroactive application to amendment; modifying decree to increase child support obligation
as of date motion to modify was filed was not prohibited.
support obligations until child completed high school or reached age of 19, would not have effect of giving retroactive application to
amendment; modifying decree to increase child support obligation as of date motion to modify was filed was not prohibited. NRS
125.510, subd. 6.
3. Divorce.
More complete factual analysis respecting spouses' incomes during child's minority appeared warranted on remand, in connection
with wife's motion to modify husband's child support obligation, in view of evidence that district court's factual determination as to
spouses' incomes involved wrong time period and evidence that there was disparity between spouses' income during correct period.
NRS 125B.080, subd. 2.
OPINION
Per Curiam:
Appellant Karen Ramacciotti and respondent Ralph Ramacciotti were divorced in Reno,
Nevada, on June 15, 1983. The Ramacciottis have two children, Shannon, who was born on
November 1, 1969, and Tiffany, who was born on December 6, 1971.
Pursuant to the judgment and decree of divorce, the district court granted Karen legal
custody of Shannon and Tiffany. The district court ordered Ralph to pay $250.00 per month,
per child in child support until each child reached the age of 18, was married, or was
otherwise earlier emancipated. Shortly thereafter, the legislature amended NRS 125.510 to
extend child support obligations until a child completes high school or reaches the age of 19.
See NRS 125.510(6)(b). The amendment became effective on July 1, 1985.
On October 29, 1987, Karen filed a motion to modify Ralph's child support obligation to
both children.
1
Three days later, on November 1, 1987, Shannon turned 18. On March 29,
1989, the district court found that it did not have jurisdiction to modify the support provisions
for Shannon because the motion was filed after Ralph had formally discharged his support
obligation imposed by the prior decree. The district court also found that NRS 125.510(6)
operated prospectively only and could not be applied to Shannon.
2
The district court further
determined that pursuant to NRS 125.510{6), Ralph's support obligation to Tiffany was
extended until she graduates from high school, in June of 1990.
__________

1
Pursuant to NRS 125.510(6), Karen specifically requested an extension of Ralph's support obligation until
either child completes high school or reaches the age of 19. Karen also requested that Ralph's child support
obligations be increased to 25 percent of his gross monthly income or $500.00 per month, per child, whichever
is less. See NRS 125B.070 and 125B.080.

2
Although the district court's decision refers to subsection 6 of NRS 125.120, it appears that the district
court apparently meant subsection 6 of NRS 125.510.
to NRS 125.510(6), Ralph's support obligation to Tiffany was extended until she graduates
from high school, in June of 1990. Lastly, the district court found that there was insufficient
evidence to warrant a change in Ralph's monthly child support payments for Tiffany.
[Headnote 1]
Karen initially contends that the district court erred by concluding that it lacked
jurisdiction to extend Ralph's obligation to provide support for Shannon beyond her
eighteenth birthday. Specifically, Karen asserts that the district court erred by relying on
Norris v. Norris, 93 Nev. 65, 560 P.2d 149, (1977) and NRS 125B.120(1).
3
We agree.
First, Norris is inapposite to the present case because, in that case, the motion to modify
was filed after the parties' child turned 18. Here, Karen filed and served her motion to modify
on October 29, 1987, before Shannon turned 18.
4
Moreover, NRS 125.510 was amended
after Norris to allow for child support to continue until a child either completes high school
or turns 19. Under these circumstances, we conclude that the district court erred by ruling that
it lacked jurisdiction to modify respondent's obligation to support Shannon. See McLendon v.
Allen, 752 S.W.2d 731 (Tex.App. 1988) (where motion to modify was filed prior to child's
eighteenth birthday, trial court's jurisdiction to decide motion was properly invoked, even
though the hearing would have occurred after the child's birthday).
Karen next asserts that the amended provisions of NRS 125.510(6)(b) indicate a legislative
intent to permit modification of child support orders until the child reaches 19 if the child is
still enrolled in high school. Alper v. State ex rel. Dep't Hwys., 96 Nev. 925, 621 P.2d 492
(1980) (statutes should be interpreted, so far as practicable, to carry out the purposes of the
legislation and to effectuate the benefits intended to be obtained). We agree. If the legislature
intended to require that a motion to modify could only be made before the child reaches 18,
the legislature could have expressly included such a requirement in the statute. Moreover, we
note that the district court applied NRS 125.510(6) inconsistently to the two children. The
district court extended child support to Tiffany until she graduates from high school, which is
past her eighteenth birthday, yet refused to do the same for Shannon.
__________

3
NRS 125B.120(1) provides:
The obligation of a parent other than that under the laws providing for the support of poor relatives is
discharged by complying with a judicial decree for support or with the terms of a judicially approved settlement.

4
Our review of the record reveals that, contrary to the district court's finding, Karen served the motion by
mail prior to Shannon's birthday on November 1, 1987.
which is past her eighteenth birthday, yet refused to do the same for Shannon. Therefore, we
conclude that the district court erred by finding that it lacked jurisdiction to modify Ralph's
child support obligation to Shannon.
[Headnote 2]
Karen further asserts that the district court erred by determining that it cannot extend child
support payments for Shannon past her eighteenth birthday because to do so would give
retroactive application to NRS 125.510(6). Specifically, Karen argues that she is not
requesting retroactive application of NRS 125.510(6). Rather, she is merely requesting an
increase in support and extension of the obligation as of the date her motion was filed,
October 29, 1987. This contention has merit.
Although Day v. Day, 82 Nev. 317, 417 P.2d 914 (1966) and its progeny preclude
retroactive modification of a decree to increase child support, such a limitation is not
applicable here. See also Boyes v. Valley Bank, 101 Nev. 287, 701 P.2d 1008 (1985) and
Clark County School District v. Beebe, 91 Nev. 165, 533 P.2d 161 (1975). These cases do not
prohibit modification of a decree to increase a child support obligation as of the date a motion
to modify the decree is filed. As the Washington Supreme Court has observed:
In a situation warranting modification of child support or alimony, the court may make
the modification effective either as of the time of filing the petition or as of the date of
the decree of modification, or as a time in between, but it may not modify the decree
retroactively.
See Bowman v. Bowman, 459 P.2d 787, 789 (Wash. 1969). Accordingly, we conclude, the
district court erred by determining that an extension of Ralph's child support obligation past
Shannon's eighteenth birthday would result in retroactive application of NRS 125.510(6).
[Headnote 3]
Lastly, Karen asserts that, contrary to the district court's finding, the respective income of
the parties is disparate.
5
As of January 2, 1989, Karen had a gross monthly income of
$2,738.27 (plus $250.00 per month for child support). Ralph's gross income in 1989 was
$4,687.94.
6
The district court looked at the gross monthly income of the parties for 19S7,
not 19S9.
__________

5
The parties' respective incomes are only relevant to Tiffany, and not to Shannon, because Shannon turned
20 in 1989. Tiffany turned 19 this year.

6
Karen also points out that Ralph receives an employer provided discount on his electric, gas and water
bills. Karen's total income in 1989, including the child support payments, was $35,739.24. Ralph on the other
hand had an annual income of $56,255.28.
The district court looked at the gross monthly income of the parties for 1987, not 1989. In
1987 Karen's gross annual income was $34,127, plus $5,500 in child support. Ralph's gross
annual income in 1987 was $39,674. This court will not reverse a question of fact determined
by the trial court, unless it is clearly erroneous or not based upon substantial evidence. Young
v. Nevada Title Co., 103 Nev. 436, 744 P.2d 902 (1987). Here, the district court's factual
determination as to the parties' incomes was based on substantial evidence but it involved the
wrong time period. In light of the disparity between the parties' incomes for 1989, upon
remand, a more complete factual analysis respecting the parties' incomes during Tiffany's
minority appears warranted. Such an analysis may well support a modification of Ralph's
child support obligation to Tiffany on the basis of changed circumstances. See 125B.080(2).
____________
106 Nev. 533, 533 (1990) Andrews v. Harley Davidson
JAMES ROBERT ANDREWS, Appellant, v. HARLEY DAVIDSON, INC., Respondent.
No. 20035
August 21, 1990 796 P.2d 1092
Appeal from a judgment on a jury verdict. Second Judicial District Court, Washoe County;
William N. Forman, Judge.
Motorcyclist brought strict liability action against motorcycle manufacturer. Jury in the
district court returned verdict for manufacturer, and motorcyclist appealed. The Supreme
Court, Rose, J., held that: (1) evidence of motorcyclist's intoxication was not relevant to
whether design defect in motorcycle was proximate cause of injuries; (2) prior accident was
substantially similar and court erred in not allowing evidence as to the prior accident; and (3)
burden of proving that motorcycle had been altered was on defendant.
[Rehearing denied January 11, 1991]
John C. Hope, Jr., Reno, for Appellant.
Eugene J. Wait, Jr., for Respondent.
1. Products Liability.
Evidence of motorcyclist's intoxication was not relevant to whether design defect in his motorcycle, affecting crashworthiness, was
the proximate cause of his injuries, and its admission constituted prejudicial error.
Manufacturer has duty to design a reasonably crashworthy vehicle, and once court or jury determines that design defect exists,
misuse precludes recovery only when plaintiff misuses the product in a manner which manufacturer could not reasonably foresee, and
negligent driving of a vehicle is a foreseeable risk.
Contributory negligence is not a defense in a strict liability case where the issue is whether the design of a vehicle is crashworthy.
4. Evidence.
Plaintiff's introduction of evidence in his case-in-chief, in products liability action, to prove that he was not intoxicated on night of
accident did not allow defendant manufacturer to introduce evidence, otherwise irrelevant on proximate cause of injury, to show that
plaintiff was intoxicated at the time of the accident, where motion in limine to have the evidence excluded was denied before trial and
plaintiff thereafter had no choice but to attempt to prove that he was not driving while intoxicated, in order to rebut strong defense
evidence to the contrary.
Plaintiff has right in strict liability action to introduce evidence of a substantially similar accident to prove that the design of the
product involved in the accident is defective.
Two accidents in which motorcyclists testified that their injuries occurred when they were thrown against gas tank of motorcycles
after it separated from frame, after driving into the back of a car while traveling about 30 miles per hour, were substantially similar, so
that evidence of the first accident was admissible in strict liability action arising from the second accident, even though the present
plaintiff hit a stationary car while motorcyclist in prior case hit a moving vehicle, though there was more physical damage to the
motorcycle and car in the present case, and though the motorcycles were manufactured in different years.
7. Trial.
Rebuttal evidence explains, contradicts or disproves evidence introduced by a defendant in his case-in-chief, and test for
determining what constitutes rebuttal evidence is whether the evidence offered tends to contradict new matters raised by the adverse
party.
8. Trial.
Testimony concerning matters already raised by plaintiff in strict liability action was not proper rebuttal testimony.
Burden of proving that product has been altered is normally on defendant manufacturer in products liability suit, but burden of
persuasion may be placed on plaintiff in case where plaintiff has had exclusive possession of product which is destroyed or lost after
accident by plaintiff's intentional action.
OPINION
James Andrews (Andrews) sued Harley Davidson, Inc. (Harley Davidson) alleging that it
was strictly liable for injuries he incurred resulting from a design defect which caused the gas
tank to separate from the frame of his Harley Davidson motorcycle. The jury returned a
verdict for Harley Davidson. We reverse, holding that the court erred in allowing the jury to
hear evidence that Andrews was intoxicated on the night of the accident, in excluding
evidence of an accident which was substantially similar to Andrews' and in putting the burden
of proving that the motorcycle was not altered on Andrews.
FACTS
On March 12, 1985, Andrews accidentally drove his 1978 Harley Davidson motorcycle
into the rear of a parked car. Andrews was propelled over the car and onto the sidewalk. He
suffered severe injuries.
Andrews filed a suit against Harley Davidson alleging that it was strictly liable for injuries
he incurred because of a design defect in his 1978 Harley Davidson motorcycle. A spring clip
held the rear of the gas tank to the frame of his motorcycle. Andrews claimed that when his
motorcycle hit a parked car, the spring clip broke causing the tank to rise above the
motorcycle seat. As Andrews moved forward he hit the raised gas tank. Andrews contended
that had the spring clip held the gas tank in place he would not have been injured or,
alternatively, that his injuries would not have been as severe. He argued that a consumer
would not have expected the spring clip to break.
Before trial, Andrews filed a motion in limine asking the court to exclude evidence that he
was intoxicated on the night of the accident. The court held that evidence of Andrews'
intoxication could be used to prove that the design of his Harley Davidson motorcycle was
not the proximate cause of Andrews' injuries. Andrews' blood alcohol count, which was .146,
was admitted into evidence during the trial.
Andrews' suit against Harley Davidson was tried before a jury. During the trial Andrews
attempted to have the deposition of Raymond Ziolkowski (Ziolkowski) read into the record to
show that Ziolkowski had a substantially similar accident a year earlier while driving his own
Harley Davidson motorcycle. The similarities between the two accidents are that each driver
was riding the same model Harley Davidson motorcycle at about 30 miles an hour when it ran
into the rear of an automobile. Ziolkowski claimed that his injuries occurred when he was
thrown against the gas tank of the motorcycle after it separated from the frame upon
impact, and Andrews makes that same claim in this case.
claimed that his injuries occurred when he was thrown against the gas tank of the motorcycle
after it separated from the frame upon impact, and Andrews makes that same claim in this
case. Both men sustained injuries in their groin area. Harley Davidson argued that the
accidents were not similar because: Andrews hit a stationary car while Ziolkowski hit a
moving vehicle; there was much more physical damage to the motorcycle and the vehicle it
hit in the Andrews' accident; and the motorcycles were manufactured in different years. The
court excluded Ziolkowski's testimony, concluding that Andrews' and Ziolkowski's accidents
were not substantially similar.
Harley Davidson argued that Andrews' gas tank did not separate from the frame of his
motorcycle but that Andrews was injured when he was hurled against the fin of a parked car.
A number of witnesses supported Harley Davidson's version of the manner in which Andrews
sustained his injuries, while others supported Andrews' version. Andrews called George
Edwards (Edwards), a tow truck driver who removed Andrews' motorcycle from the scene of
the accident, as a rebuttal witness.
1
Edwards would have testified that the gas tank on
Andrews' motorcycle had separated from the frame and was facing upward at the scene of the
accident. Harley Davidson argued that Edwards was not a proper rebuttal witness because he
was going to testify to matters raised by Andrews in his case-in-chief. The court agreed and
excluded Edwards as a witness.
Additionally, Harley Davidson asserted that Andrews' motorcycle had been altered. One
witness testified that Andrews' motorcycle had been altered while another witness testified
that Andrews' motorcycle had not been altered. The court placed the burden of proving that
Andrews' motorcycle had not been altered on Andrews.
On January 31, 1989, the jury returned a verdict for Harley Davidson. Andrews now
appeals from the jury's verdict.
LEGAL DISCUSSION
I. Whether the court erred in allowing the jury to hear evidence that Andrews was
intoxicated on the night of his accident.
[Headnote 1]
The district court found that evidence of Andrews' intoxication could be used to show that
the design of his Harley Davidson motorcycle was not the proximate cause of Andrews'
injuries.
__________

1
Andrews had first attempted to call Edwards as a witness in his case-in-chief. The court refused to allow
Edwards to testify because Andrews had informed Harley Davidson that Edwards would be a witness only one
week before trial.
motorcycle was not the proximate cause of Andrews' injuries. The court appears to have
reasoned that although a design defect may have caused Andrews' motorcycle to be unsafe in
an accident, this defect may not have been the proximate cause of Andrews' injuries if
Andrews misused the motorcycle. We disagree.
[Headnote 2]
A manufacturer has a duty to design a reasonably crashworthy vehicle. Huddell v. Levine,
537 F.2d 726, 737 (3d. Cir. 1976). In regard to the crashworthiness of a vehicle, once a court
or jury determines that a design defect exists misuse precludes recovery only when the
plaintiff misuses the product in a manner in which the defendant could not reasonably
foresee. See Hughes v. Magic Chief, Inc., 288 N.W.2d 542, 545 (Iowa 1980).
2
Negligent
driving of a vehicle is a foreseeable risk against which a manufacturer is required to take
precautions. Ford Motor Co. v. Hill, 404 So.2d 1049, 1052 (Fla. 1981). Specifically, it is
foreseeable that a plaintiff, who is intoxicated, will drive negligently and get in an accident
since intoxication leads to a significant number of accidents yearly. Therefore, evidence of
Andrews' intoxication is not relevant to whether a design defect in his motorcycle was the
proximate cause of his injuries. See Cota v. Harley Davidson, A Div. of AMF, Inc., 684 P.2d
888, 895-896 (Ariz.App. 1984).
The trial court failed to distinguish between the proximate cause of Andrews' accident and
the proximate cause of his injuries. Andrews' intoxication may have been the proximate cause
of the accident. However, Harley Davidson's design, if it was as defective as Andrews
contends, was the proximate cause of his injuries.
[Headnote 3]
Additionally, contributory negligence is not a defense in a strict liability case where the
issue is whether the design of a vehicle is crashworthy. See Young's Machine Co. v. Long,
100 Nev. 692, 694, 692 P.2d 24, 25 (1984); Horn v. General Motors Corporation, 551 P.2d
398, 403 (Cal. 1976). A major policy behind holding manufacturers strictly liable for failing
to produce crashworthy vehicles is to encourage them to do all they reasonably can do to
design a vehicle which will protect a driver in an accident. Hence, the jury in such a case
should focus on whether the manufacturer produced a defective product, not on the
consumer's negligence.
__________

2
It is difficult to envision a situation in which a plaintiff's negligence would be relevant to the issue of
whether a design defect relating to crashworthiness was the proximate cause of his injuries. See J. Henderson &
A. Twerski, Products Liability, Problems and Processes 669 (1987).
the manufacturer produced a defective product, not on the consumer's negligence.
[Headnote 4]
Harley Davidson contends that, since Andrews introduced evidence in his case-in-chief to
prove that he was not intoxicated on the night of the accident, it should be allowed to
introduce evidence to show that he was intoxicated at the time of the accident. Harley
Davidson's argument is without merit. Before trial, Andrews made a motion in limine to have
evidence excluded that would show that he was intoxicated before the accident. When the
court denied his motion, Andrews had no choice but to attempt to prove that he was not
driving while intoxicated in order to rebut Harley Davidson's very strong evidence (i.e., a
blood alcohol reading of .146) that he was intoxicated at the time of his accident.
We conclude that the court committed prejudicial error when it allowed evidence that
Andrews was intoxicated on the night of the accident to come before the jury. Evidence that a
plaintiff's intoxication may have caused an accident is not relevant to the issue of whether
there was a design defect or whether a design defect in his vehicle caused his injuries. The
jury, however, may have concluded that Harley Davidson was not liable for Andrews'
injuries, despite the existence of a design defect on his motorcycle, because Andrews was
intoxicated on the night of his accident.
II. Whether the court erred in excluding the deposition testimony of Raymond Ziolkowski.
[Headnotes 5, 6]
Andrews contends that the court erred in excluding the deposition of Raymond
Ziolkowski. He argues that his accident and Ziolkowski's accident were substantially similar.
We agree. The plaintiff has a right in a strict liability action to introduce evidence of a
substantially similar accident to prove that the design of the product involved in the accident
is defective. Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 415, 470 P.2d 135, 139 (1970).
Whether the jury may be allowed to draw an inference as to the defectiveness of a product
from prior failures depends on whether the factors which produced the prior failures were
substantially similar to the factors which produced the present failure. See Jones & Laughlin
Steel Corporation v. Matherne, 348 F.2d 394, 400 (5th Cir. 1965). Ziolkowski and Andrews
had similar injuries. Both men testified that their injuries occurred when they were thrown
against the gas tank of their motorcycles after it separated from the frame. Both men drove
into the back of a car while traveling around 30 miles per hour.
a car while traveling around 30 miles per hour. Andrews' and Ziolkowski's motorcycle had an
identical frame, engine, and fuel system. The differences in their accidents are trivial and
would have little or no effect on their injuries. Therefore, we conclude that the accidents were
substantially similar and the court erred in not allowing Ziolkowski's deposition into
evidence.
III. Whether the court erred in excluding George Edwards as a rebuttal witness.
[Headnotes 7, 8]
Andrews contends that the court erred in excluding George Edwards, the driver who towed
Andrews' motorcycle from the accident scene, as a rebuttal witness. We disagree. Rebuttal
evidence explains, contradicts, or disproves evidence introduced by a defendant in his
case-in-chief. Morrison v. Air California, 101 Nev. 233, 235-36, 699 P.2d 600, 602 (1985).
The test for determining what constitutes rebuttal evidence is whether the evidence offered
tends to contradict new matters raised by the adverse party. Id. Edwards was to have testified
that the gas tank on Andrews' motorcycle had separated from the frame and was facing
upwards. Andrews had already introduced evidence which showed that his gas tank was not
in its normal position after the accident. Andrews' expert, for example, testified that the rear
of the gas tank rose up and was responsible for Andrews' injuries. Andrews himself testified,
from photographs of the accident, that the gas tank was not in its proper position after the
accident. Since Edwards' testimony concerns matters already raised by Andrews it is not
proper rebuttal testimony. Therefore, the court correctly excluded Edwards as a rebuttal
witness.
IV. Whether the plaintiff consumer or the defendant manufacturer bears the burden of
proving that a product was or was not altered.
[Headnote 9]
Harley Davidson contends that Andrews bore the burden of proving that his motorcycle
had not been altered. The district court agreed. We disagree. Although a plaintiff consumer
should know whether a product has been altered after he or she has received it, the
manufacturer may obtain this information through discovery. A manufacturer of a product
knows precisely how the product was manufactured, what condition it was originally in, and,
if altered, the manner in which it may have been modified. Secondly, we conclude that it is
unfair to force the plaintiff consumer to prove a negative, i.e., that the product was not
altered. Therefore, we hold that the burden of proving that a product has been altered is on
the defendant manufacturer in a products liability suit.3 See The Model Uniform Liability
Act 112{d) {1979); see also Shoshone Coca-Cola v. Dolinski, S2 Nev. 439, 444-45, 420
P.2d S55, S5S-59 {1966); Hiller v. Kawasaki Motors Corp.,
product has been altered is on the defendant manufacturer in a products liability suit.
3
See
The Model Uniform Liability Act 112(d) (1979); see also Shoshone Coca-Cola v. Dolinski,
82 Nev. 439, 444-45, 420 P.2d 855, 858-59 (1966); Hiller v. Kawasaki Motors Corp., U.S.A.,
671 P.2d 369, 372 (Alaska 1983).
CONCLUSION
The court erred in allowing the jury to hear evidence that Andrews was intoxicated on the
night of his accident. Andrews' intoxication was not relevant as to whether the design of his
Harley Davidson motorcycle was the proximate cause of his injuries. Additionally, the court
erred in excluding Ziolkowski's deposition and in instructing the jury that Andrews had the
burden of proving that his Harley Davidson motorcycle was not altered. Andrews' and Harley
Davidson's remaining contentions lack merit.
Accordingly, we reverse the jury's decision and remand this matter to district court for
Young, C. J., Steffen and Mowbray, JJ., concur.
Andrews himself introduced the evidence of intoxication. That he should have made this
honest disclosure early in the trial was honorable and probably tactically defensible
irrespective of the trial court's ruling on the motion in limine. In any event, counsel for
Andrews made this tactical decision to introduce the subject of his client's intoxication, and a
party cannot assert that his own counsel's tactical decisions amount to reversible error.
Newland v. Holland, 624 P.2d 933, 935 (Colo.Ct.App. 1981).
If there is any error in this case, it was invited by Andrews. I would leave undisturbed the
jury's verdict.
__________

3
In those few situations where the plaintiff has had exclusive possession of a product which is destroyed or
lost after the accident by the plaintiff's intentional action, placing the burden of proof on the manufacturer may
well be unfair. In such cases where the defense of alteration is raised, the burden of persuasion should be placed
upon the person with the greatest information of whether there had been an alteration of the product, and this
would normally be the plaintiff.
____________
106 Nev. 541, 541 (1990) Amie v. Amie
DEBORAH JOYCE AMIE, Appellant, v. FREDERICK AMIE, Respondent.
No. 20384
August 21, 1990 796 P.2d 233
judgment. Eighth Judicial District Court, Clark County; Earle W. White, Jr., Judge.
Ex-wife sought to recover half of wages recovered by ex-husband in postdivorce tort
action. The district court granted ex-husband's motion for summary judgment, and ex-wife
appealed. The Supreme Court, Springer, J., held that ex-wife could maintain independent
equitable action since wages in question were earned during marriage and were merely
omitted by parties from written property settlement agreement.
Fitzgibbons & Anderson, Las Vegas, for Appellant.
Ecker & Standish, Las Vegas, for Respondent.
1. Divorce.
Ex-wife could maintain independent equitable action to recover one half of wages earned during marriage but recovered by
ex-husband in postdivorce tort action where parties merely omitted such wages from written property settlement agreement.
2. Divorce.
After divorce, parties to divorce suit become tenants in common in omitted property.
3. Judgment.
Right to bring independent action for equitable relief is not necessarily barred by res judicata.
OPINION
After his divorce from Deborah, Frederick Amie recovered a judgment for wrongful
termination by a former employer. The judgment included recovery of wages earned during
the marriage, general tort damages and punitive damages. Since the wages are clearly
community property, we hold that under First Nat'l Bank v. Wolff, 66 Nev. 51, 202 P.2d 878
(1949), Deborah is entitled to recover in an independent equitable action one-half of the
wages recovered by Frederick. Because the question as to whether the general tort damages
and punitive damages awards constituted unresolved community property interests was
not litigated in the trial court nor briefed in this appeal, we decline to rule on this issue.1
106 Nev. 541, 542 (1990) Amie v. Amie
general tort damages and punitive damages awards constituted unresolved community
property interests was not litigated in the trial court nor briefed in this appeal, we decline to
rule on this issue.
1

[Headnote 1]
The key factor in this litigation is the fact that one item of community property, some
$46,945.00 earned in wages by Frederick during the marriage, was not disposed of by the
divorce decree. For reasons that are not entirely clear from the record the parties did not
include the mentioned community property in the written property settlement agreement
presented to the court during the divorce proceedings. As Frederick puts it in his brief, the
property was simply omitted from the consideration of the parties in the decree. Since the
parties omitted to include this property in their written agreement and hence in the divorce
suit itself, the property never came within the field of the prior divorce litigation. This case is
distinguishable from McCarroll v. McCarroll, 96 Nev. 455, 611 P.2d 205 (1980), relied on by
Frederick, because the later action filed in that case was based on charges that the husband
had fraudulently concealed his entitlement to prison benefits. In McCarroll, the trial court
found, and we agreed, that the wife had a fair opportunity during the divorce litigation to
litigate the fraud allegations. Under such circumstances, the fraud issue could not be later
litigated in another civil action. Unlike McCarroll, this case involves property omitted from
the divorce controversy. There was no dispute as to the nature of the property, and neither
party claimed exclusive entitlement to this property.
[Headnote 2]
In First Nat'l Bank v. Wolff, 66 Nev. 51, 202 P.2d 878 (1949), community property was
similarly omitted from consideration by the parties. The court in Wolff stated that where
property is not mentioned in the findings or the decree, such a decree in no way prejudices the
parties' rights to bring a separate independent action to partition previously undivided
property. After the divorce, the parties to the divorce suit become tenants in common in the
omitted property. Id. at 56, 202 P.2d at 881; accord Molvick v. Molvick, 639 P.2d 238
(Wash.Ct.App. 1982), Henn v. Henn, 605 P.2d 10 (Cal. 1980).
[Headnote 3]
The right to bring an independent action for equitable relief is not necessarily barred by res
judicata. Nevada Industrial Dev. v. Benedetti, 103 Nev. 360, 365
__________

1
See, e.g., Hennis, Punitive Damages: Community Property, Separate Property, or Both, 14 Community
Property Journal 51 (1987-88).
106 Nev. 541, 543 (1990) Amie v. Amie
Benedetti, 103 Nev. 360, 365, 741 P.2d 802, 805 (1987). The equitable claimant in Benedetti
sought relief in an independent action based on mutual mistake (which is arguably the reason
that the parties in this case failed to include the wage claim in their property settlement
agreement). We said in Benedetti:
An equitable independent action for relief from a prior judgment is not precluded by
the doctrine of former adjudication. Generally, a judgment entered is res judicata with
respect to all issues which were or could have been litigated. [Citation omitted.] In
limited circumstances, however, relief from a judgment may be obtained in an equitable
independent action. [Citation omitted.] In such instances, the policies furthered by
granting relief from the judgment outweigh the purposes of res judicata.
Id. at 365, 741 P.2d at 805.
Deborah's equitable action here violates none of the policies and purposes of the doctrine
of res judicata, and there is no reason in fairness and justice that she should not be allowed to
proceed to have this property partitioned in accordance with Wolff. Frederick is not fairly
entitled to all of this property to the exclusion of Deborah.
As in Wolff, community property was here left unadjudicated and was not disposed of in
the divorce. Therefore, the wages are held by the parties as tenants in common, and the
property is subject to partition by either party in a separate independent action in equity.
Accordingly, the summary judgment in favor of Frederick is reversed and the matter is
remanded for partition of the wage claim.
Young, C. J., Steffen, Mowbray and Rose, JJ., concur.
____________
106 Nev. 543, 543 (1990) Hayes v. State
MICHAEL JONATHAN HAYES and DAWN KIMBERLY RICHMOND, Appellants, v.
THE STATE OF NEVADA, Respondent.
No. 20036
August 21, 1990 797 P.2d 962
Appeal from appellants' identical judgments of conviction, following a bench trial, of one
count each of: trafficking in a controlled substance (methamphetamine), possession of a
controlled substance (marijuana), possession of a controlled substance or the purpose of sale
(methamphetamine), and conspiracy to sell a controlled substance {methamphetamine
andJor marijuana).
106 Nev. 543, 544 (1990) Hayes v. State
conspiracy to sell a controlled substance (methamphetamine and/or marijuana). First Judicial
District Court, Carson City; Michael R. Griffin, Judge.
Defendants were convicted in the district court of various narcotics offenses, and they
appealed. The Supreme Court, Rose, J., held that: (1) police officers who arrested defendant
outside of his residence pursuant to arrest warrant did not have sufficient grounds to fear for
their safety to justify sweep search when defendant called to someone inside of residence by
name, and (2) statute authorizing various sentences for possession for purposes of sale unless
greater penalty is provided precluded convictions for possession of narcotics for purposes of
sale.
[Rehearing denied September 14, 1990]
Steffen and Mowbray, JJ., dissented.
Laura Wightman FitzSimmons, Carson City, for Appellant Hayes.
Martillaro & Martillaro, Carson City, for Appellant Richmond.
Brian McKay, Attorney General, Carson City; Noel S. Waters, District Attorney and Keith
Loomis, Deputy District Attorney, Carson City, for Respondent.
Protective sweep searches should be less particularized and probing than search conducted under emergency doctrine, because
their sole purpose is to protect police officers during course of arrest from potentially dangerous persons other than arrestee who were
believed to be on the premises. U.S.C.A.Const. Amend. 4.
Unlike somewhat broader emergency search doctrine, sole exigent circumstance which is relevant to protective sweep search is
existence of reasonable grounds to fear for police officers' safety. U.S.C.A.Const. Amend. 4.
For police officer's plain view observations to be admissible, plain view doctrine requires, among other things, that officer be
lawfully present at point of observation. U.S.C.A.Const. Amend. 4.
Police officers who arrested defendant outside of his residence pursuant to arrest warrant did not have sufficient grounds to fear for
their safety to justify sweep search when defendant called to someone inside of residence by name; although name called out by
defendant sounded similar to first name of both defendant's wife and friend who had history of violent behavior, police had
reason to believe that wife would be present in residence and that friend would not be present.
106 Nev. 543, 545 (1990) Hayes v. State
of violent behavior, police had reason to believe that wife would be present in residence and that friend would not be present. U.S.C.A
Const. Amend. 4.
In determining whether protective sweep search is justified, there must be articulable facts which, taken together with rational
inferences from those facts, would warrant reasonably prudent police officer in believing that area to be swept harbors individual
posing danger to those on arrest scene. U.S.C.A.Const. Amend. 4.
6. Criminal Law.
Review of district court's determination that exigent circumstances existed warranting protective sweep search presents mixed
question of law and fact. U.S.C.A.Const. Amend. 4; NRCP 52(a).
While police officers need not have probable cause to believe dangerous third person is present to conduct protective sweep
search, mere possibility of such presence is not enough; instead, police must have specific and articulable grounds sufficient to support
reasonable belief that person posing danger is present. U.S.C.A.Const. Amend. 4.
8. Criminal Law.
Defendants' waiver of conflict-free representation was binding and waived any conflict of interest created by defendant's potential
defense that co-defendant, rather than defendant, was guilty of drug trafficking; after being notified that same attorney was
representing both defendant and co-defendant, trial court questioned both defendant and co-defendant individually, advised both
parties against joint representation and offered to appoint substitute counsel at state expense, and specifically warned defendant that
joint representation would preclude him from claiming that quantities of narcotics found in defendant's residence belonged to
co-defendant. U.S.C.A.Const. Amend. 6.
9. Criminal Law.
Criminal co-defendants may waive their right to conflict-free representation by insisting on joint representation by single attorney,
despite obvious potential conflicts. U.S.C.A.Const. Amend. 6.
10. Criminal Law.
Statute authorizing various sentences for possession of narcotics for purposes of sale unless greater penalty is provided precluded
convictions for possession of narcotics for purposes of sale where defendants were subject to greater punishment based on charge of
trafficking of same controlled substance. NRS 453.337, 453.337, subd. 2, 454.3395, 453.3395, subd. 1.
OPINION
After police arrested appellant Michael Jonathan Hayes (Hayes) outside of his residence
for possession of stolen property, Hayes called to someone inside the residence. Police
officers then entered the residence to conduct a protective sweep search for other persons who
could pose a danger to the officers. During the course of the sweep, officers observed
various narcotics and paraphernalia in plain view.
106 Nev. 543, 546 (1990) Hayes v. State
course of the sweep, officers observed various narcotics and paraphernalia in plain view.
Based on the plain view observations, the officers obtained a search warrant and seized the
evidence underlying the narcotics convictions in this case. Hayes and Dawn Kimberly
Richmond (Richmond) appeal their respective judgments of conviction, arguing that no
emergency existed to justify the warrantless entry and plain view observations by police. We
hold that, based on the circumstances in this case, the protective sweep search leading to the
seizure of the evidence underlying these convictions violated appellants' constitutional rights
to be free from unreasonable searches and seizures. Since the evidence seized based on the
sweep search was necessary to appellants' convictions, the convictions, the convictions must
be reversed.
FACTS
Detective William Kugler of the Carson City Sheriff's Department (CCSD) was
investigating appellant Hayes for possession of stolen property, namely, an automobile. In
January 1988, Detective Kugler, pursuant to a warrant, seized from Hayes an automobile
which officials believed had been stolen. Hayes resisted the seizure by attempting to drive
away from officers approaching Hayes' residence. Hayes himself was not arrested for
possession of stolen property because police first needed, or wished to obtain testimony
against Hayes from Hayes' suspected accomplices. Soon thereafter, fearing he would be
charged with felony possession of stolen property, Hayes contacted attorney James Wessel.
Wessel testified that Hayes instructed him to inform the District Attorney and the CCSD that
he wished to turn himself in. Hayes explained to Wessel that he feared losing his union
standing if he was arrested at work. Wessel testified that he in fact informed both the District
Attorney's office and Detective Kugler that Hayes was willing to turn himself in.
In February 1988, Detective Rod Cullen testified, he and Kugler interviewed one Don
Cisco, who was a burglary suspect. Cullen suspected that Cisco was connected to Hayes.
Kugler testified that Cisco admitted to being an ex-felon from Colorado with a violent past,
and that Cisco had an extensive rap sheet. According to Cullen, Cisco said that he and
Hayes had had a falling out, culminating in Hayes' ordering Cisco to get off of Hayes'
property at the point of a shotgun.
May 6, 1988, was the day on which Hayes was arrested. Early that day, Kugler conducted
drive-by observations of Hayes' residence. He observed a number of cars near the residence
which he believed indicated the possibility there were multiple subjects in the residence.
Kugler then had a meeting with several deputies to discuss how to serve an arrest warrant
on Hayes.
106 Nev. 543, 547 (1990) Hayes v. State
several deputies to discuss how to serve an arrest warrant on Hayes. According to Kugler,
officers did not discuss whether Hayes might have weapons and Kugler did not have any
personal knowledge of any weapons at Hayes' residence, except for Cisco's story about the
shotgun. At the meeting, one Officer Martino mentioned that, a few days before, Don Cisco
had been released on bond from jail on a felony charge. Kugler stated that no one discussed
the possibility that Cisco might be at Hayes' residence, however. Kugler also stated that he
knew that Hayes' wife's name was Dawn Richmond.
Later that day, Kugler and five other armed members of the CCSD went to Hayes' mobile
home at 1830 Brown Street in Carson City to arrest Hayes pursuant to an arrest warrant for
possession of stolen property, a felony. It was afternoon and thus presumably light. Upon
arriving, Kugler again observed numerous vehicles near the residence. The six officers
approached the mobile home with guns drawn. Detective Kugler and Officers Johnson and
Martino approached the front door of the mobile home. As they were walking toward the
door, another officer radioed them that he had found a shotgun in the front yard. An officer
knocked on the door and Hayes answered the door. Hayes initially attempted to shut the door
and step back in, but when ordered to come out, Hayes complied and stepped out of the
residence where officers handcuffed him. Hayes did not attempt to flee or offer any resistance
and was, by all accounts, safely in the officers' custody.
After being cuffed, Hayes called out the name Dawn two or three times. The door of the
trailer was open, but Hayes' wife was not visible. Both Kugler and Martino stated that they
feared that Hayes might be calling to Don Cisco, who could pose a danger to the officers.
Martino and another officer immediately moved to each side of the door and then entered the
trailer where they conducted a sweep search for guns or persons who could pose a danger to
the officers. Martino found Dawn Richmond in the back bedroom.
During the course of the sweep search, Martino observed in plain view small amounts of
marijuana, a scale, a pile of white powder next to a hypodermic needle, and a handgun in a
holster, which Martino immediately unloaded. On the basis of these observations, officers
secured the residence, obtained a search warrant, and conducted a more thorough search for
narcotics. The narcotics seized included the marijuana and a bag containing about 85 grams
of methamphetamine. The officers also seized several notebooks containing records of
apparent drug sales and lists of police radio frequencies, as well as many other items
indicative of drug dealing, such as police band radio scanners.
106 Nev. 543, 548 (1990) Hayes v. State
On the basis of the seized evidence, appellants were charged with the narcotics-related
courts at issue in this appeal. The defense filed a motion to suppress the evidence on the
ground that no exigency existed to justify the sweep search. The court concluded that the
officers had reasonable grounds to believe that a potentially dangerous third party might be
present on the premises and accordingly denied the motion.
Following the waiver of a jury trial by both defendants, the court conducted a bench trial
and found the appellants guilty on all four courts. During trial, appellants were jointly
represented by attorney Carl F. Martillaro. On appeal, appellant Richmond is still represented
by Martillaro, but Hayes is represented by Laura Wightman FitzSimmons.
LEGAL DISCUSSION
I. The legality of the police officers' protective sweep search.
A. Introduction.
[Headnotes 1, 2]
As stated in Payton v. New York, 445 U.S. 573, 602-3 (1980), police may enter a
residence to execute an arrest warrant. Here, however, the arrest had already occurred before
police entered the residence. Thus, the police officers needed a justification independent of
the arrest warrant in order to enter the residence legally. As potential justifications for the
entry, the parties refer both to the protective sweep doctrine and the emergency, or
exigent circumstances, doctrine. These doctrines are overlapping, but distinct, See generally 2
W. LaFave, Search and Seizure 6.1(f); 6.4(c) (2d ed. 1987). Generally, the emergency
doctrine authorizes warrantless searches for particular items or particular suspects based on
the existence of various exigent circumstances. See id. at 6.1(f). Protective sweep searches,
on the other hand, should be less particularized and probing, because their sole purpose is to
protect police officers during the course of an arrest from potentially dangerous persons other
than the arrestee who are believed to be on the premises. Unlike the somewhat broader
emergency search doctrine, the sole exigent circumstance which is relevant to a protective
sweep search is the existence of reasonable grounds to fear for the officers' safety. This case
concerns the protective sweep doctrine.
[Headnote 3]
In the present case, police officers obtained the search warrant for the narcotics and
paraphernalia based on plain view observations made during the protective sweep search of
Hayes' mobile home following Hayes' arrest for possession of a stolen vehicle.
106 Nev. 543, 549 (1990) Hayes v. State
The issue here is whether the plain view observations supporting the search warrant were
legally obtained. For plain view observations to be admissible, the plain view doctrine
requires, among other things, that the officer be lawfully present at the point of observation.
Johnson v. State, 97 Nev. 621, 624, 637 P.2d 1209, 1211 (1981). Whether the observing
officer was lawfully present in Hayes' mobile home depends on whether the protective sweep
search was justified.
[Headnote 4]
Appellants do not seriously contend that the officers exceeded the proper scope of a
protective sweep search, or that the incriminating items were not in plain view. Instead,
appellants argue that no protective sweep search was justified because police officers had no
reasonable grounds to fear for their safety. The constitution draws a line which limits police
authority to conduct sweep searches. We conclude that this line has been crossed in the
present case. Under the standards recently announced by the United States Supreme Court,
the arresting officers here lacked sufficient grounds to fear for their safety to justify this
protective sweep search. Therefore, the evidence seized pursuant to the warrant must be
suppressed because it was a fruit of the previous unlawful protective sweep search. See
generally Wong Sun v. U.S., 371 U.S. 471 (1963). Since the evidence seized pursuant to the
warrant was necessary to each of appellants' convictions, the convictions must be reversed.
B. Legality of the protective sweep search.
[Headnotes 5, 6]
The recent United States Supreme Court decision of Maryland v. Buie, 110 S.Ct. 1093
(1990) explains when a protective sweep search is justified incident to an arrest of a
defendant:
We also hold that as an incident to the arrest the officers could, as a precautionary
matter and without probable cause or reasonable suspicion, look in closets and other
spaces immediately adjoining the place of arrest from which an attack could be
immediately launched. Beyond that, however, we hold that there must be articulable
facts which, taken together with the rational inferences from those facts, would warrant
a reasonably prudent officer in believing that the area to be swept harbors an
individual posing a danger to those on the arrest scene. . . .
Id. at 1098 (emphasis added). We believe that the standard stated by the majority in Buie is a
reasonable one. We are bound to follow the constitutional interpretations of the United States
Supreme Court, and we further adopt it as the standard to be applied in the State of
Nevada.
106 Nev. 543, 550 (1990) Hayes v. State
Supreme Court, and we further adopt it as the standard to be applied in the State of Nevada.
Therefore, our analysis in this case must be to determine whether there were sufficient and
articulable facts presented which would warrant a reasonably prudent officer to believe that
Hayes' trailer harbored an individual that posed a danger to those on the arrest scene outside.
Based on our review of the circumstances as found to exist by the district court, we conclude
that the arresting officers did not have specific and articulable grounds to support a
reasonable believe that the trailer harbored an individual posing a danger to the officers.
1

First, the State points to facts indicating Hayes' personal propensities for violence, such as
Hayes' previous attempt to resist seizure of his automobile and Cisco's statement that Hayes
had threatened him with a shotgun. Hayes' personal propensities are largely irrelevant,
however, for the simple reason that Hayes himself was already in safe custody at the time
officers began the sweep. The issue here is whether officers could harbor a reasonable belief
that some person other than Hayes was present and posed a substantial danger.
The State's principal argument is that, when Hayes called out the name Dawn, officers
formed a reasonable belief that Hayes was calling out to one Don Cisco, who had just been
released on bail and had previously admitted to having a record as a violent felon. Although
we are sympathetic to the officers' predicament, we cannot conclude on the facts of this case
that merely calling out the name Dawn created a reasonable basis to believe that a
dangerous person was inside the trailer. First, Kugler, the lead officer in the arrest, admitted
that he knew that Hayes' wife's name was Dawn; he candidly admitted that he fully expected
to personally find Dawn at the residence that evening. Second, Kugler said he was aware
that Hayes and Cisco had had a violent falling out, culminating in Hayes' ordering Cisco off
Hayes' property at the point of a shotgun; specifically, Kugler said Cisco had told him that
Hayes believed Cisco was a snitch. Given these circumstances, we cannot conclude that
Kugler could harbor a reasonable belief that Cisco was present that afternoon merely because
Hayes called out the name Dawn. To the contrary, we agree with the U.S. Ninth Circuit
Court of Appeals which stated that, upon being arrested outside a residence. "[i]t is not
unreasonable for an individual to call into his house to his friends or relatives that he is
being taken away." United States v. Basurto, 497 F.2d 7S1, 790 {9th Cir.
__________

1
Review of the district court's determination that exigent circumstances existed presents a mixed question of
law and fact. United States v. Alfonso, 759 F.2d 728, 741 (9th Cir. 1985); United States v. McConney, 728 F.2d
1195, 1200-04 (9th Cir. 1984) (en blanc), cert. denied, 105 S.Ct. 101 (1984). The findings of fact of the district
court are reviewed under the deferential standard set forth in NRCP 52(a), but the conclusion as to whether
exigent circumstances existed is subject to independent review by the appellant court. See id.
106 Nev. 543, 551 (1990) Hayes v. State
contrary, we agree with the U.S. Ninth Circuit Court of Appeals which stated that, upon being
arrested outside a residence, [i]t is not unreasonable for an individual to call into his house
to his friends or relatives that he is being taken away. United States v. Basurto, 497 F.2d
781, 790 (9th Cir. 1974) (holding that a protective sweep search of a mobile home following
Basurto's arrest outside the mobile home was not justified, even though Basurto was a
suspected drug dealer and even though Basurto had called out It's the police upon being
arrested). In the case relied upon by the district court, in contrast, the officers heard an
unidentified person yell Look outthey have a shotgun, words which are much more
indicative of danger and intent to resist arrest. See United States v. Bowdach, 561 F.2d 1160
(5th Cir. 1977). We cannot conclude that Detective Kugler's belief that Hayes was calling to
anyone other than his wife was reasonable under the circumstances of this case.
That it was unlikely that Cisco would be present is reflected in the officers' testimony.
Kugler testified that he had no idea where he [Cisco] might be on the date of Hayes' arrest,
and Kugler stated that, at the pre-arrest meeting with the other officers, he never inferred [to
the other officers] that he [Cisco] was there or not there. Accordingly, Kugler could only
testify that there was a possibility he might be there. Kugler further stated that he had no
fact on which to base this belief, only an inclination. Similarly, Officer Martino testified
that we thought there was a possibility he would be there.
[Headnote 7]
If any possibility of danger were sufficient to create a reasonable belief of a danger, the
police would have carte blanche power to conduct sweep searches of citizens' homes incident
to virtually any arrest for a felony, whether violent or not, even where the arrestee surrenders
at the front door; by means of post-hoc rationalizations, the police could justify virtually any
sweep search. This would be contrary to the traditionally strong protection accorded to
citizens' homes under both the United States and Nevada constitutions. We further believe
that this is why, in Buie, the Supreme Court affirmed the requirement that officers' perception
of danger be based on some specific and articulable grounds. In short, while officers need not
have probable cause to believe a dangerous third person is present, the mere possibility of
such a presence is not enough. Instead, police must have specific and articulable grounds
sufficient to support a reasonable belief that a person posing a danger is present. On the facts
of this case, Hayes' calling out a name known by the lead officer to be the name of Hayes'
wife simply does not support such a reasonable belief.
106 Nev. 543, 552 (1990) Hayes v. State
We are further troubled by the fact that there is some indication that such protective sweep
searches of homes incident to arrests are standard procedure, or at least a common practice, of
CCSD. On the one hand, Officer Martino testified that there is no written sweep policy.
However, when asked why it would not have been safer simply to withdraw from the
residence, Detective Kugler responded by explaining that sweep searches of residences
incident to execution of arrest warrants were a standard operating procedure.
Such a policy or operating procedure would present two problems. First, absent greater
indication of danger than was present in this case, it appears that it would have been far safer
for the six armed police officers simply to withdraw after Hayes was in safe custody, instead
of proceeding through each room of the residence and risk confrontation with others who
might be present. If officers have no reasonable basis to fear danger from third persons, the
constitution requires the officers to withdraw. As stated in Bowdach, the search is only
justified when it is necessary [i.e. reasonably believed to be necessary] to allow the police
officers to carry out the arrest without fear of violence. Bowdach, 561 F.2d at 1169. Where
there truly are no specific indicia of danger going beyond hunches or generalized anxiety, we
believe that police officers generally will be at less risk in withdrawing than in proceeding
through each room of the arrestee's residence to confront anyone present. Secondly, a blanket
sweep search procedure would be patently unconstitutional. It is clear that police officers
may not as a matter of routine departmental practice search a residence whenever a person is
arrested inside the premises. United States v. Gardner, 627 F.2d 906, 910 (9th Cir. 1980).
The district court found that this was not a pretextual search and that the officers in the
present case did not act in any bad faith, and we do not question the good faith of the officers
involved in the present case. Nevertheless, we point out that engaging in sweep searches as a
pretext for substantive searches would be unsound practice. Such a practice jeopardizes
otherwise meritorious convictions.
The principal case relied upon by the district court in concluding that officers could harbor
a reasonable belief is Bowdach, supra. In addition to the factual differences already
mentioned, Bowdach is significantly different from the facts of the present case. First,
although Hayes' personal propensities are largely irrelevant to this sweep, whether other
persons present were dangerous may depend on the character of crime for which the arrestee
is being arrested. Here, it is very significant that Hayes' underlying crime, possession of a
stolen automobile, was a nonviolent one. In Bowdach, in contrast, the arrestee was suspected
of the commonly more violent crime of narcotics trafficking; moreover, in Bowdach an
informant had told police that the arrestee was a professional hit man.
106 Nev. 543, 553 (1990) Hayes v. State
of the commonly more violent crime of narcotics trafficking; moreover, in Bowdach an
informant had told police that the arrestee was a professional hit man. The fact that Hayes'
underlying crime was not violent also distinguishes the present case from other cases in
which we have found exigent circumstances to exist. The present case is further
distinguishable from other decisions finding exigent circumstances to justify a protective
sweep, because the officers here were not in hot pursuit of the arrestee. Indeed, here there is
evidence that, because he expected to be arrested, Hayes had offered to turn himself in
voluntarily on request.
The State further argues that Hayes was known to associate with felons, which increased
the risk that any third person present was dangerous. Assuming Hayes had such associations,
this does not demonstrate justification for this search for two reasons. First, officers did not
point to any specific and articulable facts to indicate that other such felons would actually be
present at the time of arrest. In the case relied upon by the district court, officers had
specifically observed other suspects entering, but never leaving the residence shortly before
the sweep search. See Bowdach, supra. Here, in contrast, police never observed other known
felons frequenting Hayes' residence during the time before the arrest. The fact that there were
several cars on or about the area of Hayes' mobile home is not conclusive. Detective Kugler
ran a license check on the vehicles, but did not identify any of the vehicles as belonging to
any of Hayes' suspected associates, whom police said were well-known to them. As a result,
Detective Kugler could only state that he believed there was a possibility there might have
been multiple subjects there. It is also very unclear in the record whether the vehicles were
parked immediately adjacent to the residence or merely in the same general area, equally near
other homes. It was the State's burden to establish that the vehicles supported a reasonable
belief that dangerous third parties were present. See Basurto, 497 F.2d at 790. The State has
not met this burden.
Second, evidence that any others present would be dangerous or desperate is far weaker
here than in Bowdach. Detective Kugler's testimony indicates that the persons believed to be
Hayes' closest compatriots in the suspected stolen property scheme had already been
arrested, charged and had pled guilty to burglary. According to Kugler, Hayes' arrest was
delayed to give police time to obtain testimony from the others against Hayes. This situation
differs significantly from Bowdach, where the other persons seen entering the residence had
been indicted but had not yet been arrested; since they had not yet been apprehended, the
other persons in Bowdach presented serious flight risks and, hence, posed a much greater
risk of danger to officers.
106 Nev. 543, 554 (1990) Hayes v. State
apprehended, the other persons in Bowdach presented serious flight risks and, hence, posed a
much greater risk of danger to officers. In summary, the State has not pointed to sufficient
specific and articulable reasons to support a reasonable belief that other felons would be
present and would pose substantial danger to the officers. A generalized reputation of
association with other felons, standing alone, is not sufficient to authorize a protective sweep.
The State's strongest contention is that the officers had reasonable grounds to believe that
there were weapons present and that, for this reason, the person to whom Hayes called out
posed a risk of danger to the officers. However, the district court's finding that the defendant
was known to have a number of weapons on the premises prior to the arrest was erroneous.
One officer did testify that Cisco reported that Hayes had pulled a shotgun on him and, of
course, the officers found a shotgun in the front yard. Additionally, Officer Martino testified
that Hayes was known to have several weapons in the house. However, we find no specific
and articulable facts in the record to support Officer Martino's statement that police knew
Hayes had more than one gun. Officer Kugler specifically denied that Hayes was under
investigation for trafficking in narcotics or any crime other than possession of stolen property.
We agree with Hayes' contention that conclusory statements of a police officer cannot satisfy
the constitution's requirement of specific and articulable facts to support a sweep search. If it
were otherwise, police could enter and search any home incident to any arrest on the basis of
the mere assertion that officers believed weapons or dangerous persons could be present.
Based on the foregoing, the arresting officers had specific and articulable reasons to
believe only that Hayes owned a shotgun. We cannot conclude that the presence of a single
unconcealed shotgun in the front yard suffices to justify this search. The evidence of the
presence of weapons was far greater in the case relied upon by the district court, because, in
Bowdach, sources had informed police that the suspect was a hit man who possessed several
weapons. It is not uncommon for citizens in this state to own shotguns and other hunting
weapons, and officers had already found and secured a shotgun when the sweep search began.
Most importantly, the following circumstances indicating that the officers were not in
imminent and substantial danger simply outweigh the presence of the single shotgun: Hayes'
alleged crime was nonviolent and there was evidence he had offered to turn himself in; Hayes
himself was safely in custody outside the residence; officers had reason to believe Hayes was
merely calling for his wife; officers had no reasonable grounds to believe Don Cisco would
be present at the residence; Hayes' alleged property crime accomplices were not
fugitives; and, since it was afternoon, it was presumably light and the six armed officers
could have easily withdrawn with Hayes in custody with less danger than entering the
residence and searching each room.
106 Nev. 543, 555 (1990) Hayes v. State
believe Don Cisco would be present at the residence; Hayes' alleged property crime
accomplices were not fugitives; and, since it was afternoon, it was presumably light and the
six armed officers could have easily withdrawn with Hayes in custody with less danger than
entering the residence and searching each room.
The cases cited in the dissent strengthen our conviction that the present sweep search was
unconstitutional. With the exception of Basurto, supra, which invalidated a sweep search, the
eight cases cited in the dissent are dramatically different from the present case.
2
In each of
the remaining seven cases, at least two of the following distinguishing factors were present:
(1) the offense for which the defendant was arrested was very serious, involving actual
violence (armed robbers) or a real risk thereof (major drug traffickers), all of which increases
the risk that third persons present might be dangerous; (2) there was reason to believe that
additional co-conspirators would be present at the scene of arrest; (3) police were in hot
pursuit of the arrestee, increasing the risk that third parties present would assist in attempts to
resist arrest; (4) there was specific reason to believe that there were weapons inside there
residence; and/or (5) one or more officers were already inside the residence at the time of
arrest, increasing the need for a sweep search to ensure a safe withdrawal. Representative of
the dissent's cases in Buie itself, which involved the arrest of an armed robbery suspect,
where police knew that the suspect had an accomplice who was not accounted for. Certainly,
none of the seven cases cited in the dissent involved a search after an arrest outside the home
for a nonviolent property crime where the lead arresting officer believed the arrestee was
merely calling to his wife and not to a co-conspirator.
In terms of indicia of danger to arresting officers, the cases cited in the dissenting opinion
are undoubtedly a qualitative cut above the present case. The position adopted by the
dissent would, in effect, allow police to enter and search any residence incident to a felony
arrest for any crime whenever the arrestee's family is at home. Indeed, prior to Buie, some
courts held that sweep searches of a person's home incident to arrest were permissible
wherever a third person was present, regardless of whether the third person could be
dangerous. See LaFave, supra, 6.4(c), n.52. This view was squarely rejected by the United
States Supreme Court in Buie by the requirement that officers have a reasonable belief that
any third person who might be present could be dangerous.
__________

2
The cases other than Basurto are: Buie, supra; Johnson, supra; Gardner, supra; United States v. Merritt,
882 F.2d 916 (5th Cir. 1989); United States v. Castillo, 866 F.2d 1071 (9th Cir. 1988); United States v.
Standridge, 810 F.2d 1034 (11th Cir. 1987); United States v. Escobar, 805 F.2d 68 (2d Cir. 1986).
106 Nev. 543, 556 (1990) Hayes v. State
have a reasonable belief that any third person who might be present could be dangerous.
Finally, the dissent makes several references to the fact that illegal drugs and a loaded gun
were actually found during the sweep, implying that this in some manner justifies the entry. It
has long been established that an illegal search cannot be validated by the fruits of the search.
As Justice Sutherland stated decades ago, [a] search prosecuted in violation of the
Constitution is not made lawful by what it brings to light. Byars v. United States, 273 U.S.
28, 29 (1927).
II. Appellants' remaining contentions.
Although we need not do so, we briefly discuss the two remaining contentions raised by
appellants' against their convictions.
[Headnote 8]
First, Hayes argues that he was denied his sixth amendment right to effective assistance of
counsel due to conflicts of interest inherent in trial counsel Carl Martillaro's joint
representation of appellants at trial. While ineffective assistance claims are ordinarily heard
during post-conviction proceedings following direct appeal, we have considered such claims
relating to conflicts of interest on direct appeal. See, e.g., Mannon v. State, 98 Nev. 224, 645
P.2d 433 (1982). Hayes is correct that there were both potential and actual conflicts of
interest in counsel Carl Martillaro's joint representation of appellants at trial. Most
importantly, it would have been in Hayes' interest to argue that he was merely guilty of
possession and that it was only Richmond who was trafficking. This argument could have
been persuasive to the jury. The evidence of trafficking was somewhat stronger against
Richmond in part because most of the records of transactions in the notebooks appear to have
been in Richmond's handwriting, not Hayes'. Certainly if Martillaro had not been representing
Richmond, Martillaro could have sought to cast Richmond, not Hayes, as the trafficker.
[Headnote 9]
The problem here is that appellants each specifically waived their right to representation
by conflict-free counsel and specifically requested Martillaro to represent them jointly.
Although we strongly discourage such joint representation of criminal defendants, we will not
bar such joint representation as a matter of law in all cases. Accordingly, criminal
co-defendants may waive their right to conflict-free representation by insisting on joint
representation by a single attorney, despite the obvious potential conflicts.
106 Nev. 543, 557 (1990) Hayes v. State
Harvey v. State, 96 Nev. 850, 853, 619 P.2d 1214, 1216 (1980). In procuring such a waiver,
however, the district court should fully explain . . . the nature of the conflict, the disabilities
which it may place on [counsel] in [his or her] conduct of [the] defense and the nature of any
potential claims which appellants will be waiving. Kabase v. District Court, 96 Nev. 471,
473, 611 P.2d 194, 195-96 (1980) (citation omitted). Additionally, the trial court should
address each defendant personally, explain the dangers of joint representation, and inquire as
to facts which might reveal conflicts. If actual or potential conflicts exist, each defendant
must voluntarily, knowingly and understandingly decide on the joint representation. Harvey,
96 Nev. at 854, 619 P.2d at 1217 (citations omitted).
Here, the district court fully complied with Kabase and Harvey in procuring the waiver of
conflict-free representation from both appellants. At the arraignment, immediately after
Martillaro stated he was representing appellants jointly, the court sua sponte raised the
conflicts problem. The court did the following: questioned each appellant individually;
specifically and strongly advised both appellants against joint representation and offered to
appoint substitute counsel at state expense; explained the general risks of joint representation;
and offered each appellant the time to think it over, an offer which appellants declined. Most
importantly, the court specifically warned Hayes that joint representation would preclude him
from claiming that the larger quantities of narcotics were Richmond's, not his. After
questioning by the court, each appellant stated a desire for joint representation by Martillaro.
During the course of trial, actual conflicts may arise which are of a much greater type,
magnitude, or frequency than the potential conflicts of interest foreseen at the time of the
waiver of conflict-free counsel. If this occurs, this court may be justified in setting aside the
waivers. See Carter v. State, 102 Nev. 164, 717 P.2d 1111 (1986) (holding that district court
may order a mistrial due to severe actual conflicts of interest manifested at trial, despite
previous waivers of the right to conflict-free representation). In the present case, however,
based on the record before us, the important actual conflicts which arose during trial related
only to Hayes' potential defense that Richmond was the one trafficking; although serious,
these actual conflicts were not greater than anticipated. Thus, we conclude that the waiver is
binding on the facts of this case.
[Headnote 10]
The other contention raised by Hayes applies both to Hayes and Richmond. Hayes argues
that the convictions for both trafficking and possession for the purpose of sale violated the
constitutional prohibition against double jeopardy.
106 Nev. 543, 558 (1990) Hayes v. State
and possession for the purpose of sale violated the constitutional prohibition against double
jeopardy. Alternatively, Hayes contends that the convictions violated the applicable criminal
statutes in NRS Chapter 453 governing these counts. We need not reach the constitutional
issue, because the State correctly concedes that our recent decision in Vidal v. State, 105 Nev.
98, 769 P.2d 1292 (1989) mandates reversal on statutory grounds. NRS 453.337 authorizes
various sentences for possession for purposes of sale, [u]nless a greater penalty is provided
in NRS . . . 453.3395. NRS 453.337(2) (emphasis added). In Vidal, we held that this
language precludes any conviction for possession for purposes of sale where the defendant is
subject to a greater punishment under NRS 453.3395 based on a charge of trafficking of the
same controlled substance. Since Hayes and Richmond were in jeopardy of greater sentences
under NRS 453.3395(1) than under NRS 453.337(2), Vidal mandates reversal of appellants'
convictions for possession of narcotics for purposes of sale.
CONCLUSION
Appellants' four convictions must be reversed because the protective sweep search of
Hayes' residence was not constitutional. The police officers did not articulate sufficient facts
to establish that a reasonable police officer would believe a person posing a danger was
harbored inside the trailer. When arrested outside the trailer, Hayes called for Dawn. Police
expected to find Hayes' wife Dawn at the trailer and did not believe the ex-felon Don Cisco
would be there. At best, the police believed that Don Cisco might be present and this is
insufficient to support a reasonable belief of danger. While a shotgun was found in the yard
outside the trailer, there were no specific facts articulated to support the police officer's
generalized belief that there might be weapons inside the trailer. Therefore, the entry of
Hayes' trailer after his arrest cannot be justified on the protective sweep theory and the search
of the trailer was therefore unconstitutional.
Appellants convictions of possession for purposes of sale also must be reversed for the
independent statutory reasons set fourth in Vidal. Accordingly, for the reasons set forth in this
opinion, appellants' convictions are hereby reversed and the case remanded for further
proceedings.
Young, C. J., and Springer, J., concur.
Steffen, J., with whom Mowbray J., agrees, dissenting:
Setting aside my concerns about the social value of the exclusionary rule and its efficacy in
protecting Fourth Amendment interests, I suggest that there are sound reasons for
affirming the judgments entered by the district court.
106 Nev. 543, 559 (1990) Hayes v. State
interests, I suggest that there are sound reasons for affirming the judgments entered by the
district court.
In balancing the right of the appellants to enjoy freedom from unreasonable searches and
seizures, even in their criminal enterprise, and the right of the deputies to take reasonable
measures to protect themselves from unknown persons who could pose a threat to their
safety, the lower court determined that the arresting officers were entitled to the benefit of the
doubt. I agree. As the expanding criminal community becomes progressively more active,
resourceful, and violent, other courts are providing the law enforcement community with a
correspondingly greater latitude in protecting itself. It seems to me that the preservation of a
quality society justifies such a dispensation, and I firmly believe that we should follow suit.
The United States Supreme Court has recently declared that [a] protective sweep' is a
quick and limited search of the premises, incident to an arrest and conducted to protect the
safety of police officers and others. Maryland v. Buie, 110 S.Ct. 1093, 1094 (1990). Under
the ruling in Buie, and officer is only required to have a reasonable belief that the area swept
harbors an individual posing a danger to the officer and others. Id. at 1095. Moreover, no one
factor is determinative of what is reasonable. In Buie, the Supreme Court employed a
balancing test, balancing the intrusion on the individual's Fourth Amendment interest against
its promotion of legitimate governmental interest. Id. at 1096.
The trend in the United States Circuit Courts appeared to be consistent with the more
relaxed standard eventually enunciated by the Buie court. In United States v. Escobar, 805
F.2d 68 (2nd Cir. 1986), the court held that:
Law enforcement officers may conduct a security checka quick and limited pass
through the premises to check for third personswithout a warrant when making an
arrest on private premises when they reasonably fear that other persons are lurking
within who may pose a threat to their safety or are likely to destroy evidence . . . .
[Emphasis added.]
Id. at 71. The 5th Circuit, upholding a sweep search after the defendant had been arrested
outside a motel room believed to belong to a friend of the defendant, held that:
Arresting officers have a right to conduct a quick and cursory check of the arrestee's
lodging immediately subsequent to arresteven if the arrest is made near the door but
outside the lodgingwhere they have reasonable grounds to believe that there are other
persons present inside who might present a security risk. [Emphasis supplied.] United
States v. Merritt, SS2 F.2d 916 {5th Cir.
106 Nev. 543, 560 (1990) Hayes v. State
United States v. Merritt, 882 F.2d 916 (5th Cir. 1989). Finally, in United States v. Standridge,
810 F.2d 1034 (11th Cir. 1987), the court validated a sweep occurring after officers had
arrested an armed bank robber, reasoning:
Every arrest must be presumed to present a risk of danger to the arresting officer.
[Citation omitted.] Where necessary, police arresting a suspect may conduct a
protective sweep of the area to check for other persons who might pose a threat to the
safety of the officers of the public. [Citations omitted, emphasis added.]
Id. at 1037.
Indeed, in our own jurisdiction, we upheld a sweep search occurring after the arrest of an
armed robbery suspect who was found, unarmed, outside his residence. We there held:
It would have been shoddy and even hazardous police investigation for the officers not
to have secured the premises in order to determine whether or not fugitives or armed
persons were present.
Johnson v. State, 97 Nev. 621, 624, 637 P.2d 1209, 1211 (1981).
Turning now to the facts of the case before us, deputies of the Carson City Sheriff's
Department (CCSD) arrested appellant Hayes at his residence pursuant to a warrant for
possession of stolen property. Earlier the same year, CCSD deputies had encountered
resistance from Hayes in seizing an automobile in his possession. Prior to executing the
warrant in the instant case, the arresting deputies met to discuss plans for accomplishing the
arrest. Although Deputy Kugler did not discuss the possibility of Hayes being armed or other
persons being present at the arrest scene, one deputy did mention Hayes' association with a
felon by the name of Don Cisco and related an incident when Hayes had ordered Cisco from
his property at gun point.
When the officers arrived at Hayes' residence, they noticed the presence of several vehicles
in the vicinity. They also found a shotgun in the front yard of the premises. Approaching the
residence with weapons drawn, the officers rapped on the front door. The door was opened by
Hayes, who promptly attempted to retreat back inside the house, but then complied with the
order of a deputy to step outside. Hayes was immediately arrested, handcuffed, and taken into
custody. At that time, Hayes turned towards the house and started yelling the name Dawn
(so spelled because subsequent events revealed the presence of Hayes' girlfriend and
co-appellant, Dawn Richmond). In response, two deputies took cover next to the front door
because of their stated belief that Hayes was calling for Don Cisco.
106 Nev. 543, 561 (1990) Hayes v. State
According to the testimony of record, the deputies then entered the residence to secure the
premises for their own safety and that of their fellow officers. They quickly scanned the
rooms for the presence of third persons. Dawn Richmond was discovered in a back room.
During this process, the officers also observed a gun (which proved to be loaded) and
contraband in plain view.
After observing the aforementioned evidence of criminal activity, the officers secured the
residence and left to obtain a search warrant. In the subsequent search, officers seized
contraband in the form of marijuana and methamphetamine, weapons, evidence of drug sales
and other evidence indicative of an illicit drug operation. In short, the efforts of the officers
produced the most cogent evidence of appellants' guilt, together with evidence (loaded
weapons) of at least the potential for violent behavior by appellants.
In analyzing the reasonableness of the officers' actions, it is also important to note that the
record evidence reflects that prior to the events in question, Hayes had not only been the
subject of a criminal investigation for possession of stolen property which resulted in the
necessity for physical restraint, but the arresting officers had also been informed that Hayes
previously had been arrested for battery. Moreover, at least two of the deputies were aware of
the prior incident when Hayes had threateningly shoved a shotgun up the nose of a person he
thought to be a snitch. In addition, the CCSD was aware that certain of Hayes' associates were
felons with a history of violence. Armed with this background information, the deputies
approached Hayes' residence with caution and immediately noted numerous vehicles
belonging to unknown parties, and a shotgun in the front yard.
Given the circumstances in which the deputies found themselves, I suggest that their
decision to perform a sweep search was both eminently reasonable and entirely justified
under the case authorities cited above. As the authority cited by the majority declares:
Even if the crime for which the arrest was made is not that serious, a protective search
elsewhere in the premises may be warranted because the police suspect others therein
are engaged in much more serious conduct, or have good reason to conclude that there
are weapons in the premises. [Emphasis added.]
2 LaFave, Search and Seizure 6.4(c), p. 649. I suggest that the combination of factors
mentioned abovethe criminal background of Hayes and his associates, the presence of
vehicles indicating a likely prospect of other persons in the residence, the shotgun, Hayes'
elusive behavior and his yell to a person named Don {Dawn)should have led a
reasonably cautious and prudent police officer to conduct a protective sweep search.
106 Nev. 543, 562 (1990) Hayes v. State
shotgun, Hayes' elusive behavior and his yell to a person named Don (Dawn)should have
led a reasonably cautious and prudent police officer to conduct a protective sweep search.
The majority rejects the State's position that the deputies formed a reasonable concern for
their safety when Hayes shouted back to the house. Instead, they accept the reasoning of the
9th Circuit when it said [i]t is not unreasonable for an individual to call into his house to his
friends or relatives that he is being taken away. United States v. Basurto, 497 F.2d 781, 790
(9th Cir. 1974). However, the extent to which the 9th Circuit would defer to its ruling in
Basurto as a continuing basis for relief is, at the very least, problematical. In the later case of
United States v. Gardner, 627 F.2d 906 (9th Cir. 1980), the court widened its scope of
permissible warrantless searches upon a showing of specific and articulable facts which,
taken together with the rational inferences from those facts, [would] reasonably warrant [the
warrantless] intrusion. Id. at 910.
Unfortunately, without benefit of the insights gained by the trial judge as the trier of fact in
this case, the majority has viewed the cold record and concluded that notwithstanding the
judgment of the arresting deputies to the contrary, the officers could not have reasonably
believed themselves to be in danger.
1
The majority has simply drawn all factual inferences
against the deputies concerning the complex of factors existing at the arrest scene upon which
the deputies based their judgment. The testimony of the arresting officers has been improperly
re-weighed on appeal and found incredible, or this court has substituted its own dispassionate
analysis of the potential for danger to a set of circumstances that, in my view, must have
given the deputies on the scene ample reason for caution.
__________

1
The majority, without deference to the language quoted from other cases in this dissent, merely derives
comfort from the fact that the circumstances of the cited cases presented an apparent need for greater caution
than the instant case. Moreover, the majority consistently depreciates the validity of the testimony of officers
concerning such matters as Hayes' known association with felons and the fact that Hayes was known to keep
weapons in his place of residence. Finally, the majority wrongly concludes that I have inferred that the presence
of weapons and contraband somehow justifies an otherwise unlawful search. In the latter regard, I have done
nothing more than the 9th Circuit in suggesting that the presence of such items should give courts greater pause
in second guessing circumstances as assessed by trained law enforcement officers. See, United States v. Castillo,
866 F.2d 1071, 1081 (9th Cir. 1988).
My major concern with the majority view is that little deference is given to the special expertise, sensibilities,
and perceptions of the law enforcement officers, whose business it is to discern between alternatives under
stressful and ofttimes perilous conditions. The trial judge heard the officers articulate their reasons for
conducting a protective sweep, and I am convinced, as expressed elsewhere in this dissent, that the Buie
standards were adequately satisfied, and that the trial judge was perceptive in finding no constitutional
misconduct by the officers.
106 Nev. 543, 563 (1990) Hayes v. State
sionate analysis of the potential for danger to a set of circumstances that, in my view, must
have given the deputies on the scene ample reason for caution. As we observed in Johnson, I
would observe here, that it would have been shoddy and hazardous investigative methodology
to have failed to perform an investigative sweep.
If, in fact, the deputies' fears concerning the possible presence of the felon Cisco (life is
replete with examples of yesterday's enemies being today's friends) had proved accurate, the
equation for violence would have been complete given the quantity of contraband and loaded
weapons inside Hayes' residence. And no police officer should feel compelled to submit to
the prospect of gunfire from the rear while exiting an arrest scene.
The majority emphasizes the fact that the officers were only concerned about possibilities,
i.e., that a shotgun on the premises could indicate the possibility of other weapons inside the
residence (there were), that the presence of numerous automobiles at the residence reflects
only a possibility of other criminals inside Hayes' house (there was a criminal participant
inside), despite the fact that Hayes was known to associate with violently disposed felons, and
that Hayes' call to Dawn raised only a possibility that someone other than Dawn Richmond
was being alerted. Indeed, the majority even goes so far as suggesting that it is normal for
people in Nevada to own shotguns, the apparent message being that law enforcement officers
should not be too concerned about the need for caution when a criminally accused who
consorts with violent felons possesses such weapons.
It is not without significance that the officers in the instant case, during their swiftly
conducted sweep of Hayes' premises, observed in plain view contraband and a loaded
weapon. The officers had, in fact, vindicated their concerns by what was noted during both
the protective search and the subsequent, comprehensive search pursuant to the issued
warrant. The officers were in the midst of a flowering criminal enterprise supported by loaded
weaponry. As stated by the court in United States v. Castillo, 866 F.2d 1071, 1081 (9th Cir.
1988):
If nothing else, this discovery (cocaine, cash, and three loaded handguns) demonstrates
the wisdom of this court's admonition that [c]ourts must be careful not to use
hindsight in limiting the ability of police officers to protect themselves as they carry out
missions which routinely incorporate danger.' Astorga-Torres, 682 F.2d at 1335
(quoting Coates, 495 F.2d at 165).
In Castillo, the arrest was effectuated in the open doorway to a friends' apartment.
Presumably, the officers could have simply left the premises with a wary eye directed to
their backsides as they departed with the accused.
106 Nev. 543, 564 (1990) Hayes v. State
left the premises with a wary eye directed to their backsides as they departed with the
accused. The court, however, did not mention retreat as a necessary consideration, an option,
or a preference. It did, however, observe that an arrest near an open doorway, as occurred
here, presented greater prospects of danger to officers than one occurring in areas removed
from open doorways. More importantly, the court also noted, as part of its analysis in
reviewing a trial court's determination that exigent circumstances existed to justify a
warrantless entry into a residence, that:
The trial judge's findings that certain facts occurred, the weight accorded to the
evidence and the credibility of witnesses are reviewed under the deferential, clearly
erroneous standard. . . .
Id. at 1079. Under a deferential, clearly erroneous standard, applicable here, I believe the
findings of the trial judge who heard the testimony of the officers and determined it to be
credible, should be sustained.
Finally, I do not consider the fact that one of the CCSD officers testified that sweep
searches were standard procedure should blur this court's vision of what actually occurred
anymore than it did with the trial judge. See, e.g., Castillo, at 1079. It is clear that protective
sweep searches may not be sanctioned in the name of standard operating procedure, and if the
deputies had no more to offer than that, I would have no difficulty in both condemning such
conduct and invalidating the search.
For the reasons noted above, I am compelled to dissent from the ruling of the majority.
____________
106 Nev. 564, 564 (1990) Hermann Trust v. Varco-Pruden Buildings
E. TED HERMANN and JANE D. HERMANN, a 1978 Living Trust, Appellant, v.
VARCO-PRUDEN BUILDINGS, Respondent.
No. 20334
August 29, 1990 796 P.2d 590
Appeal from a judgment of the district court enforcing respondent's mechanic's lien and
awarding attorney's fees and interest to respondent. Second Judicial District Court, Washoe
County; Peter I. Breen, Judge.
Appeal was taken from judgment of the district court enforcing mechanic's lien and
awarding attorney's fees in dispute under roofing subcontract.
roofing subcontract. The Supreme Court held that: (1) evidence was insufficient to establish
that defects in eaves of warehouse roof were not functionally substantial; (2) amount of
subcontractor's mechanic's lien was required to be reduced by cost of repairing defects in
roof's eaves; and (3) subcontractor bore risk of loss for delivered but uninstalled materials.
Affirmed in part, reversed in part, and remanded.
Woodburn, Wedge & Jeppson and William E. Peterson, Reno, for Appellant.
Bible, Hoy, Miller, Trachok & Wadams and Terrill R. Dory, Reno; Less & Scroggs and
Joseph T. Getz, Memphis, Tennessee, for Respondent.
Findings of fact of district court will not be set aside unless clearly erroneous.
2. Contracts.
Evidence in dispute under roofing subcontract was sufficient to establish that defects in eaves of warehouse roof were functionally
substantial; experts from both parties admitted there were some eave defects, and the subcontractor's official admitted there were some
eave defects that needed to be repaired.
3. Mechanics' Liens.
Amount of roofing subcontractor's mechanic's lien, filed when it substantially completed roofing job, was required to be reduced
by cost of repairing defects in roof's eaves.
4. Contracts.
In Nevada, if party has substantially performed, it may recover full contract price minus necessary expenses to complete bargained
for performance.
5. Contracts.
Roofing subcontractor bore risk of loss for damaged construction materials, where subcontract did not have provision allocating
which party would bear risk of loss for delivered but uninstalled materials.
OPINION
Per Curiam:
This case involves a dispute concerning respondent's installation of a metal roof on
appellant's warehouse. The principal issues in this appeal are whether the district court erred
by finding that defects in the warehouse's eaves were not functionally substantial, whether the
district court erred by not reducing the amount of respondent's mechanic's lien to reflect the
costs needed to repair the eaves, and whether the district court wrongly award compensation
to respondent for uninstalled materials ruined in a flood of the construction site.
award compensation to respondent for uninstalled materials ruined in a flood of the
construction site. We find the district court erred on all three of these issues.
FACTS
Appellant, E. Ted Hermann and Jane D. Hermann, a 1978 Living Trust (Hermann), owns a
large metal warehouse in Sparks, Nevada. Hermann and respondent, Varco-Pruden Buildings,
a unit of AMCA International Corporation (AMCA), executed a subcontract to install the
warehouse's roof for $969,845.00. The roof is quite large, approximately 250,000 square feet.
It consists of thousands of individual metal panels. During installation of the roof, there were
problems with misalignment of the panels. The misalignment and its effects resulted in this
despute between the parties. In addition, on or about February 17, 1986, torrential rains
flooded the work site and damaged approximately $33,969.00 of uninstalled insulation and
other materials belonging to Varco-Pruden.
Subsequently, a dispute arose as to the proper amount of Varco-Pruden's compensation.
When Varco-Pruden was not paid the full contract price plus the sum for the insulation and
other materials, it filed a mechanic's lien against the warehouse for the balance. Varco-Pruden
later filed suit, seeking enforcement of the lien, damages, interest, and attorney's fees.
Hermann subsequently filed a counterclaim against Varco-Pruden, asserting the roof was
improperly constructed and that it suffered damages caused by Varco-Pruden's failure to
timely complete the job.
At the conclusion of trial, the district court, in essence, found that Varco-Pruden
substantially performed the roofing job. After subtracting delay and miscellaneous defective
work damages from the lien amount, the district court awarded Varco-Pruden $127,180.89
plus interest and attorney's fees. The cost for the insulation and other materials is included in
this figure. Hermann agrees that Varco-Pruden substantially performed the roofing job.
DISCUSSION
On appeal, Hermann argues that the district court erred in finding that the defects in the
eaves are not functionally substantial.
[Headnotes 1, 2]
This argument has merit. Findings of fact of the district court will not be set aside unless
clearly erroneous. Trident Construction Corp. v. West Electric, Inc., 105 Nev. 423, 427, 776
P.2d 1239, 1241 (1989). Here, there is no support in the record for the district court's
finding.
district court's finding. The district court had earlier found that all experts from both parties,
and a vice-president for construction services from AMCA (Chris Boerup), admitted there
were some eave defects. In addition, after confessing that the eaves needed to be repaired,
Boerup testified that Varco-Pruden was willing to remedy the problem with the eaves.
Finally, the district court openly acknowledged that it was most convinced by Varco-Pruden's
own expert, Dr. Fisher. Dr. Fisher testified that the eaves needed to be fixed; if the problem
was not corrected, there was a possibility that the portion of the roof near the eaves would
blow off. Inexplicably, the district court ignored this evidence and its own earlier findings.
Therefore, because the district court's finding that the defects in the eaves are not functionally
substantial is clearly erroneous, this finding must be set aside.
[Headnote 3]
Next, Hermann asserts that even though Varco-Pruden substantially performed the roofing
job, the district court erred by not reducing the lien amount by the cost of repairing the eaves.
[Headnote 4]
This assertion has merit. In Nevada, if a party has substantially performed, it may recover
the full contract price minus the necessary expenses to complete the bargained for
performance. Thompson v. Herrmann, 91 Nev. 63, 68, 530 P.2d 1183, 1186 (1975) (quoting
Little Thompson Water Ass'n v. Strawn, 466 P.2d 915, 917 (Colo. 1970)). Contrary to
Varco-Pruden's position, the measure of damages is not the difference in value between the
roof as constructed and the roof as contracted for, because repairing the eaves will not result
in economic waste. Fairway Builders Inc. v. Malouf, Etc., 603 P.2d 513, 524-525 (Ariz.App.
1979). Accordingly, Varco-Pruden's award must be reduced by the amount needed to fix the
eaves. There is no dispute that this cost is $25,000.00.
[Headnote 5]
Finally, Hermann maintains that Varco-Pruden bore the risk of loss for the damaged
insulation and other materials. Thus, Hermann contends that the district court erred by
awarding compensation to Varco-Pruden for the loss of these materials.
This contention has merit. This is not a sales subcontract, but rather one for the
incorporation of labor and materials into a building. Mainland v. Alfred Brown Co., 85 Nev.
654, 656, 461 P.2d 862, 864 (1969). Therefore, because the subcontract does not have a
provision allocating which party should bear the risk of loss for delivered but uninstalled
materials, the risk of loss is borne by Varco-Pruden. Lincoln Welding Works, Inc. v.
Ramirez, 9S Nev. 342, 346
Ramirez, 98 Nev. 342, 346, 647 P.2d 381, 384 (1982) (quoting Mainland, 85 Nev. at 656,
461 P.2d at 864). The oral agreement to help pay the costs of the materials is not an
enforceable contract because it is not supported by additional consideration. Mainland, 85
Nev. at 656, 461 P.2d at 864. Hence, the district court erred in awarding these damages to
Varco-Pruden.
Therefore, we affirm in part and reverse in part the judgment below. We further remand
this case to the district court for findings consistent with this opinion and to adjust the amount
of Varco-Pruden's judgment accordingly.
Having considered the parties' remaining arguments, we conclude they lack merit.
____________
106 Nev. 568, 568 (1990) Smith v. Clough
STEVEN SMITH and SALLY SMITH, Appellants, v. JOHN CLOUGH, as Administrator for
Estate of YVONNE LYNN CLOUGH, Respondent.
No. 19657
August 29, 1990 796 P.2d 592
Appeal from an order granting summary judgment in favor of respondent. Second Judicial
District Court, Washoe County; Deborah A. Agosti, Judge.
Homeowners sued estate of motorist, claiming negligent infliction of emotional harm
arising out of motorist driving vehicle into front of their home. The district court entered
judgment for estate, and homeowners appealed. The Supreme Court, Springer, J., held that
there was no injury to person, as required to sustain claim for intentional infliction of
emotional harm on bystanders.
Affirmed.
Rose, J., dissented.
Michael J. Morrison, Reno, for Appellants.
Laxalt and Nomura, Reno, for Respondent.
Damages.
Motorist did not negligently inflict emotional bystander distress upon homeowners by driving automobile into front of their house,
causing extensive property damage; harm to persons other than bystanders was required; overruling Merluzzi v. Larson, 96 Nev. 409,
610 P.2d 739 (1980).
OPINION
Appellants Steven and Sally Smith (the Smiths) have alleged that Yvonne Clough was
drag racing with another car when her car veered out of control and crashed through the front
of the Smiths' home. The Smiths were in their back yard at the time of the accident. When
they heard a loud crash, they ran to the front of their property where they observed extensive
damage to their yard and house, and saw a stranger's body (Clough's) on the walkway.
Clough's car had broken through the Smith's fence, torn up their front yard, and crashed
upside-down into their living room. A doctor at the scene determined that Clough was dead.
The Smiths filed a complaint against Clough's husband, respondent John Clough, in his
capacity as administrator of her estate. They sought damages, including punitive damages, for
negligent infliction of emotional distress, loss of consortium, and negligent entrustment.
Respondent filed a motion for summary judgment. The district court concluded that, pursuant
to NRCP 56, no genuine issue of material fact remained for the court to decide and that
respondent was entitled to judgment as a matter of law. Accordingly, it granted respondent's
motion. For the reasons set forth below, we affirm the district court's decision.
On appeal, the Smiths' primary contention is that the district court erred in granting
summary judgment in favor of respondent with regard to their claim for negligent infliction of
emotional distress. They contend that they were direct victims of Clough's negligence because
they heard the crash which damaged their home; they saw the damage to their home; they
suffered emotional distress as a result of seeing the damage; and their emotional distress was
a foreseeable result of Clough's negligence.
We reject the Smiths' contention and decline their invitation to follow certain case law
from other jurisdictions which they claim is in their favor. Despite the Smiths'
characterization otherwise, theirs is quite clearly a bystander plaintiff case.
Currently, the law in Nevada regarding negligent infliction of emotional distress to
bystanders is governed by two lines of cases, those involving emotional distress arising from
damage to a plaintiff's property, see, e.g., Merluzzi v. Larson, 96 Nev. 409, 610 P.2d 739
(1980), and those involving emotional distress arising from harm to another person, see, e.g.,
State v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985).
1
We believe the better rule is to allow
recovery only in cases which pertain to emotional distress arising from harm to another
person, and not in cases, such as the one before us, which pertain to emotional distress
arising from property damage.2
__________

1
We note that the Smiths cannot recover under either line of existing Nevada case law. Their claim is
premised on emotional distress arising from
is to allow recovery only in cases which pertain to emotional distress arising from harm to
another person, and not in cases, such as the one before us, which pertain to emotional
distress arising from property damage.
2

Having concluded that appellants remaining contentions lack merit, we hereby affirm the
district court's order.
Young, C. J., Steffen, J., and Zenoff, Sr. J.,
3
concur.
Rose, J., dissenting:
In Merluzzi v. Larson, 96 Nev. 409, 610 P.2d 739 (1980), we restricted when a plaintiff
can recover for emotional distress arising from the negligent damage to his or her property.
Today the majority eliminates all actions for emotional distress based on damage caused to a
plaintiff's property by the defendant's negligent conduct. Because I believe there are a few
cases where such a right should be recognized, I dissent from the majority opinion.
I would permit the assertion of a claim for emotional distress when the defendant's
negligent conduct is the proximate cause of the property damage, the plaintiff hears or sees
the accident and is in reasonably close proximity to it, the damage to the personal property
was foreseeable, and the property that is damaged has a unique or special significance to the
plaintiff, such as substantial damage done to one's home. Following this rule, I would permit
the appellants to proceed with their lawsuit and reverse the summary judgment entered
against them.
Recognizing this case and others like it as exceptions to the general rule prohibiting such
actions will not result in a flood of litigation. Cases such as this one are relatively few and far
between. In the vast majority of cases where personal property damage is caused by the
negligence of another, a claim for emotional distress will be precluded, and I believe rightly
so.
__________
property damage, so it does not fall within the rule of Eaton. Moreover, although the Smiths did hear the crash
which damaged their home, they were not direct participants in the occurrence. In addition, they did not
experience physical impact. Thus, their claim for emotional distress arising from property damage does not
meet the requirements of Merluzzi. See Merluzzi, 96 Nev. at 414, 610 P.2d at 743.

2
To the extent that our decision today is inconsistent with Merluzzi, that case is overruled.

3
The Honorable Cliff Young, Chief Justice, appointed The Honorable David Zenoff, Senior Justice, to sit in
the place of The Honorable John Mowbray, Justice. Nev. Const. art. 6, 19; SCR 10.
____________
106 Nev. 571, 571 (1990) Zgombic v. State
DANIEL FRANK ZGOMBIC, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19977
September 13, 1990 798 P.2d 548
Appeal from a judgment of conviction, following a jury trial, of one count each of robbery
with use of a deadly weapon and battery. Ninth Judicial District Court, Douglas County;
Norman C. Robison, Judge.
Defendant was convicted of robbery and battery following jury trial before the district
court and given sentence enhancement for use of deadly weapon during crime. Defendant
appealed. The Supreme Court, Rose, J., held that: (1) enhancement penalty for use of deadly
weapon in commission of crime is limited to firearms and other instrumentalities that are
inherently dangerous; (2) defendant's heavy construction-type boots could not be considered
deadly weapon for purposes of sentence enhancement; (3) dual convictions for robbery and
battery did not violate defendant's rights not to be placed twice in jeopardy; and (4) evidence
was sufficient to sustain robbery conviction.
Affirmed in part; vacated in part.
Steffen, J., dissented in part.
Terri Steik Roeser, State Public Defender and Janet S. Bessemer, Deputy Public Defender,
Brian McKay, Attorney General, Carson City; Brent T. Kolvet, District Attorney and
Michael P. Gibbons, Deputy District Attorney, Douglas County, for Respondent.
1. Criminal Law.
Enhancement penalty for use of deadly weapon in commission of crime is limited to firearms and other instrumentalities that are
inherently dangerous; functional test, under which instrumentality, even though not normally dangerous, may be deadly weapon
whenever it is used in deadly manner, has no application to sentence enhancement; overruling Clem v. State, 104 Nev. 351, 760 P.2d
103 (1988). NRS 193.165.
2. Criminal Law.
For purposes of sentence enhancement deadly weapon is any instrumentality which is inherently dangerous, in sense that
instrumentality itself, if used in ordinary manner contemplated by its design and construction, will, or is likely to, cause life-threatening
injury or death. NRS 193.165.
3. Criminal Law.
In close cases in which court cannot determine as matter of law whether weapon is deadly weapon for purposes of sentence
enhancement, issue should be submitted to jury after instructing it that deadly weapon for purposes of sentencing enhancement is one
which is inherently dangerous; jury will be required specifically and separately to find instrumentality at issue to be deadly weapon and
that it was used in commission of offense before mandatory enhancement can be imposed. NRS 193.165.
4. Criminal Law.
Heavy, steel-capped construction boots worn by defendant in perpetrating robbery and battery of victim were not deadly weapon
for purposes of sentence enhancement, since boots were not inherently dangerous and did not possess any natural propensity to cause
death or life-threatening injury. NRS 193.165.
5. Double Jeopardy.
Defendant's dual convictions of robbery and battery for incident in which he beat and robbed victim did not violate double
jeopardy; battery required actual physical contact, which was not required by robbery, and robbery required taking of personal
property, which battery did not; thus each offense required proof of fact which the other did not. NRS 200.380, 200.481.
6. Robbery.
Evidence was sufficient to sustain conviction of robbery on basis of uncorroborated testimony of victim, notwithstanding
defendant's testimony that he took victim's money after fight as mere afterthought and that there was therefore no basis to conclude that
money was taken by means of force. NRS 200.380.
OPINION
The primary issue presented by this appeal is whether appellant's heavy boots constituted a
deadly weapon for purposes of sentence enhancement pursuant to NRS 193.165. We
conclude that, as a matter of law, the boots did not constitute deadly weapons under NRS
193.165. In reaching this conclusion, we set forth a different definition of deadly weapon for
purposes of sentence enhancement than the definition used in our previous decisions.
Accordingly, while we affirm appellant's two convictions and sentences therefor, we vacate
the sentence enhancement for use of a deadly weapon.
FACTS
On November 3, 1988, Carl Bergemann left his car parked in a parking garage at Harvey's
Casino in Stateline, Nevada. At about 8:00 o'clock that evening, Bergemann headed towards
his car. Zgombic and two of his friends arrived and parked their car nearby.
nearby. Zgombic was angry with his friends and separated from them.
According to Bergemann, Zgombic approached him at his car, said that he had lost all his
money in the casino, and demanded Bergemann's money. When Bergemann did not
immediately comply, Zgombic threatened to kill him. Zgombic punched Bergemann in the
face, grabbed his tie and forcefully threw him to the ground. Zgombic also kicked Bergemann
several times in the head, ribs, and side. Zgombic was wearing heavy construction-type boots
that had steel-reinforced toes. As Zgombic was walking away, he saw Bergemann's wallet on
the ground, removed forty dollars from it, and then discarded the wallet.
As a result of this incident, Bergemann suffered a broken and cut nose, chipped teeth,
internal bleeding, several bruises, and two black eyes. Following a jury trial, Zgombic was
convicted of robbery with use of a deadly weapon and battery. Zgombic was sentenced to
seven years for robbery, an additional consecutive sentence of seven years for use of a deadly
weapon, and a concurrent six-month sentence for battery.
LEGAL DISCUSSION
I. Analysis of whether boots constitute a deadly weapon for purposes of sentence
enhancement pursuant to NRS 193.165
[Headnote 1]
Zgombic contends that the district court erred by applying the deadly weapon sentencing
enhancement provision of NRS 193.1651 to boots. Appellant specifically asserts that his
boots are not hand-held weapons used for the purpose of inflicting injury.
This case gives us the opportunity to re-examine our decision in Clem v. State, 104 Nev.
351, 760 P.2d 103 (1988), where we adopted the functional test for determining whether an
instrumentality is a deadly weapon for purposes of penalty enhancement under NRS 193.165.
Under the functional test, an instrumentality, even though not normally dangerous, is a deadly
weapon whenever it is used in a deadly manner. Id. at 357, 760 P.2d at 106.
__________

1
1. Any person who uses a firearm or other deadly weapon or a weapon containing or capable of
emitting tear gas, whether or not its possession is permitted by NRS 202.375, in the commission of a
crime shall be punished by imprisonment in the state prison for a term equal to and in addition to the term
of imprisonment prescribed by statute for such crime. The sentence prescribed by this section shall run
consecutively with the sentence prescribed by statute for such crime.
106. In Clem, we cited several cases in support of the functional test. Some of these cases
dealt with the interpretation of a deadly weapon clause in a statute where a deadly weapon
was an element of a crime, such as assault with a deadly weapon.
2
We have no dispute with
these cases which use the functional test to define a deadly weapon when a deadly weapon is
an element of a crime. Indeed, that is the interpretation generally followed in Nevada. See
Loretta v. Sheriff, 93 Nev. 344, 565 P.2d 1008 (1977). Whether the same functional test
applies for purposes of sentence enhancement is a different question, however. Upon
reflection, we conclude that interpreting the deadly weapon clause in NRS 193.165 by means
of a functional test was not what our legislature intended or what is mandated by statutory
rules of construction. Accordingly, we overrule the functional test stated in Clem and
substitute the inherently dangerous weapon test to determine whether an instrumentality is
a deadly weapon pursuant to NRS 193.165.
Arizona formerly had a penalty enhancement statute that contained language almost
identical to NRS 193.165, except that the word gun was used instead of firearm and the
enhancement penalty was somewhat different. See State v. Hartford, 636 P.2d 1204 (Ariz.
1981) (discussing former A.R.S. Section 13-249(B)). This statute was construed by the
Arizona Supreme Court in State v. Church, 504 P.2d 940 (1973). The Church court
explained:
By adding the words or deadly weapon after armed with a gun in subsection B, we
believe the rule of ejusdem generis has application here. The words ejusdem
generis literally translated means [sic] of the same kind, class or nature. Such rules
apply only to persons or things of the same nature, kind or class as preceding specific
enumerations. In applying these principles in construing A.R.S. 13-249, subsec. B, as
amended, we are of the opinion that the legislature intended that one armed with a
deadly weapon of the type like a gun (ones that are inherently dangerous), is subject to
increased punishment.
Church, 504 P.2d at 943-44 (emphasis added) (citations omitted). Both the Nevada statute
and the former Arizona statute refer, essentially, to a firearm or other deadly weapon. Thus,
the Church decision is strong persuasive authority for application of the rule of ejusdem
generis to NRS 193.165.
__________

2
The cases cited by Justice Mowbray in his dissent concern statutes where a deadly weapon was an element
of a crime.
The dissent points out that the Arizona Supreme Court has limited the holding in Church
to cases involving constitutional problems of vagueness where both the underlying crime and
the enhancement statute require use of a deadly weapon. See State v. Moss, 579 P.2d 940
(Ariz. 1973). Nevertheless, the legislative intent analysis contained in Church is persuasive
authority for our interpretation of the nearly identical language in Nevada's enhancement
statute. We are not adopting in its entirety Arizona's law of sentence enhancements based on
the use of deadly weapons. The Arizona law contains a number of enhancement provisions
and, while not overruling Church or its rationale, it permits the consideration of the manner
of use of the instrument in some cases.
In Church, the court also determined that the legislative intent in enacting the
enhancement penalty statute was to deter criminals from carrying arms which have the
potential of inflicting death. Church, 504 P.2d at 943. In Anderson v. State, 95 Nev. 625, 600
P.2d 241 (1979), we concluded that NRS 193.165, our penalty enhancement statute,
demonstrates generally the legislature's concern regarding the increased use of deadly
weapons in the commission of crimes and its belief that such proscription will serve to deter
persons from using weapons during the perpetration of certain crimes in the hope that the
possibility of death and injury will be reduced. Id. at 630, 600 P.2d at 244 (citation omitted).
The thrust of the penalty enhancement statutes for using a firearm or other deadly weapon is
clearly to deter those who are or may be involved in criminal activity from using weapons
that are inherently dangerous. It is meant to inform the criminal element and those preparing
to engage in criminal activity that they will be subject to a severe additional penalty if they
use a gun or a deadly weapon in the commission of a crime.
Our conclusion finds further support in other canons of statutory construction. First, a
criminal statute must be strictly construed against the imposition of a penalty when it is
uncertain or ambiguous. Carter v. State, 98 Nev. 331, 334-35, 647 P.2d 374, 376 (1982)
(interpreting NRS 193.165 and 193.167). Here, the term deadly weapon is indeed uncertain,
and thus the broader functional interpretation is not warranted. More importantly, the canons
of statutory construction direct us to follow the intent of the legislature whenever a statute is
unclear on its face. McKay v. Bd. of Supervisors, 102 Nev. 644, 650, 730 P.2d 438, 443
(1986). We have already cited that intention. Third, this court has stated that Nevada's statutes
providing for penalties for crimes must be construed in a manner which avoids unreasonable
results. Vidal v. State, 105 Nev. 98, 101, 769 P.2d 1292, 1294 (1989). Under the functional
definition of deadly weapon, virtually any instrumentality would be a deadly weapon if
used to kill or injure a victim.
virtually any instrumentality would be a deadly weapon if used to kill or injure a victim. If so,
the sentence for almost every crime involving any instrumentality (even a knitting needle or
string) causing injury would be doubled. While this result is not patently absurd or
unreasonable, we do not believe that this was the public policy which the legislature intended
when it enacted NRS 193.165. Following these canons, we conclude that the enhancement
penalty for use of a deadly weapon in the commission of a crime pursuant to NRS 193.165 is
limited to firearms and other instrumentalities that are inherently dangerous.
NRS 193.165 is designed to deter injuries caused by weapons, and by people. It is the
potential violence inhering in the weapon itself which NRS 193.165 addresses. The
legislature intended violence caused by people to be remedied by the statutes proscribing the
underlying crime. Accordingly, NRS 193.165(3) provides that the deadly weapon
enhancement does not apply where use of the weapon is an element of the underlying crime.
Clem's functional test for defining a deadly weapon focuses on the defendant's acts of
violence, rather than on the potential for violence inhering in the use of a weapon itself. This
contravenes the legislature's purpose in enacting NRS 193.165, and, accordingly, we overrule
this aspect of our decision in Clem.
Two cases cited in Clem construed enhancement statutes which are distinguishable from
NRS 193.165. See Cummings v. State, 384 N.E.2d 605 (Ind.Ct.App. 1979); People v. Moran,
109 Cal.Rptr. 287 (Cal.Ct.App. 1973). Both the Indiana and the California statutes construed
in these cases referred, in essence, to deadly or dangerous weapons. NRS 193.165, in
contrast, refers only to deadly weapons. The term, dangerous is broader than deadly, and
is certainly more indicative of legislative intent to enact a functional test. Additionally, the
California statute does not refer to firearms or dangerous weapons in the same clause. See
Cal. Penal Code 12022(a)-(b) (West Supp. 1990). Thus, the canon of ejusdem generis is
inapplicable to the California statute. Finally, while the California enhancement statute is
broader than Nevada's, other states' statutes are narrower, limiting sentence enhancements to
crimes involving use of an actual firearm. See, e.g., Utah Criminal Code 76-3-203. Like the
former Arizona statute, NRS 193.165 falls somewhere in between the Utah and California
enactments.
[Headnotes 2, 3]
In conclusion, a deadly weapon under NRS 193.165 is any instrumentality which is
inherently dangerous. Inherently dangerous means that the instrumentality itself, if used in the
ordinary manner contemplated by its design and construction, will, or is likely to, cause a
life-threatening injury or death.
likely to, cause a life-threatening injury or death. Hartford, 636 P.2d at 1209 (quoting State v.
Gordon, 584 P.2d 1163, 1167 (1978)). As a practical matter, three possible results flow from
our definition of deadly weapon under NRS 193.165. First, some weapons can be determined,
as a matter of law, to be inherently dangerous. The only remaining question the trier of fact
will have to determine is if the deadly weapon was used in the commission of the offense.
Other weapons, as a matter of law, are not inherently dangerous. Finally, in a few close cases
where the court cannot determine as a matter of law whether the weapon is or is not a deadly
weapon, the judge will need to submit the entire issue to the jury after instructing it on the
previously stated definition of a deadly weapon. In these close cases, the jury must
specifically and separately find the instrumentality at issue to be a deadly weapon and that it
was used in the commission of the offense before the enhancement can be imposed. Once
such findings are made, however, the sentence enhancement is mandatory under the terms of
NRS 193.165.
[Headnote 4]
In this case, Zgombic was wearing a pair of boots with a reinforced toe. These standard
construction-type boots were not modified in any way so as to facilitate their use as a weapon;
the boots were simply reinforced with metal in the toe to prevent injury to the foot. We see
nothing inherently dangerous in this instrumentality or any natural propensity of these boots
to cause death or life-threatening injury. Therefore, we hold that, as a matter of law, the boots
worn by Zgombic when he committed his crimes and which he used to kick the victim are not
dangerous weapons as contemplated in this enhancement statute. Therefore, Zgombic was not
subject to the enhancement penalty as set forth in NRS 193.165.
II. Appellant's other claims of error.
[Headnote 5]
Appellant next argues that his convictions for robbery with use of a deadly weapon and
battery violate his right not to be placed twice in jeopardy. See Point v. State, 102 Nev. 143,
717 P.2d 38 (1986); Owens v. State, 100 Nev. 286, 680 P.2d 593 (1984). We disagree.
Nevada has adopted the double jeopardy test set forth in Blockburger v. United States, 284
U.S. 299 (1932), where the U.S. Supreme Court held that if the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires proof of a fact
which the other does not."
other does not. Owens, 100 Nev. at 288, 680 P.2d at 594 (quoting Blockburger, 284 U.S. at
304) (emphasis added). Applying the Blockburger test to the facts of this case, we conclude
that these two convictions did not place Zgombic in double jeopardy. Under NRS 200.481,
battery requires actual physical contact. Under NRS 200.380, however, robbery requires only
fear of injury, with or without contact. Additionally, robbery requires a taking of personal
property, while battery does not. Thus, each of these offenses requires proof of a fact which
the other does not and there is no double jeopardy problem under Blockburger.
[Headnote 6]
Appellant finally contends that there is insufficient evidence to support the robbery
conviction. Although he admitted taking the victim's money, Zgombic argues that the
evidence shows that the fight had nothing to do with the theft of the money, which Zgombic
says came as a mere afterthought. Thus, Zgombic contends, the jury had no basis to conclude
that the money was taken by means of force, as required for robbery under NRS 200.380.
This contention is without merit. Zgombic took the victim's money immediately after
inflicting a serious beating and the victim, Mr. Bergemann, testified that Zgombic had
demanded money. The jury had a right to believe Bergemann's testimony and the jury could
convict on the basis of uncorroborated testimony from the victim. See King v. State, 105 Nev.
373, 784 P.2d 942 (1989); Deeds v. State, 97 Nev. 216, 626 P.2d 271 (1981). There was
substantial evidence to support the jury's determination that the money was taken by force.
CONCLUSION
For the reasons stated above, Zgombic's convictions and sentences for robbery and battery
are affirmed. The sentence enhancement for use of a deadly weapon is reversed. As we did in
McIntyre v. State, 104 Nev. 622, 764 P.2d 482 (1988), we hereby vacate the sentence
enhancement and order the language regarding use of a deadly weapon to be stricken from the
judgment of conviction.
Young, C. J., and Springer, J., concur.
Steffen, J., concurring in part and dissenting in part:
I concur in the result reached by the majority, but do not agree that we should overrule our
very recent opinion in Clem v. State, 104 Nev. 351, 760 P.2d 103 (1988). Unfortunately, the
majority has reacted to an unnecessary extreme in its response to an excess of zeal by the
State's prosecutor.
Before discussing the basis for my dissent from the majority's break with stare decisis in
overruling Clem, I first note my concurrence with the result reached by the majority. In my
view the deadly weapon enhancement in this case may not be sustained even under our ruling
in Clem. In the process of adopting the functional test in Clem, we noted that other courts
have resolved the definitional problem concerning the meaning of the statutory reference to
deadly weapons by resorting to a functional test of how an instrument is used and the facts
and circumstances of its use. Id. at 357, 760 P.2d at 106.
Of necessity, the Clem test demands a sensitive and reasonable approach to the
enhancement problem by prosecutors. It also demands an application limited by statutory use
of the term weapon, as explained in greater detail hereinafter. As I have observed from the
bench during oral argument, even a handkerchief, if used to forcibly block the airway
passages of an intended victim, could, in a sense, be considered to be a deadly weapon.
However, such a construction would stretch the limits of credulity, let alone the legislative
intendment regarding an enhanced penalty for using a deadly weapon. In the instant case, the
State elected to seek an enhancement by including steel-toed boots within the intended reach
of the statute. The State went too far.
My threshold concern with the majority opinion involves what I consider to be its
unnecessarily precipitous overruling of Clem. Stare decisis is a venerable principle of the
common law system because it provides stability and predictability in the law. It follows,
therefore, that legal precedents established by this court should be respected unless and until
they are shown to be unsound in principle. As stated by the United States Supreme Court:
The doctrine of stare decisis imposes a severe burden on the litigant who asks us to
disavow one of our precedents. For that doctrine not only plays an important role in
orderly adjudication; it also serves the broader societal interests in evenhanded,
consistent, and predictable application of legal rules.
Thomas v. Washington Gas Light Co., 448 U.S. 261, 272 (1980). Moreover, where as here,
statutory construction is involved, it has been said that [t]he doctrine of stare decisis,
weighty in any context, is especially so in matters of statutory construction. For in such cases
Congress may cure any error made by the courts. Cottrell v. C. I. R., 628 F.2d 1127, 1131
(8th Cir. 1980). If the legislature had discerned error in the interpretation this court placed on
NRS 193.165 in Clem, it would have been comparatively simple to correct the error through
an amendment to the statute.
statute. The legislature has not seen fit to modify our ruling in Clem, and, as we observed in
Ex Parte Phillips, 43 Nev. 368, 375, 187 P. 311, 312 (1920), if there had been legislative
dissatisfaction with our interpretation, the statute would have been amended so as to remove
all doubt as to the legislative intent.
Finally, another court noted that:
[W]hen a rule of law has once been settled, contravening no statute or constitutional
principle, such rule ought to be followed unless it can be shown that serious detriment
is thereby likely to arise prejudicial to public interests. [Citations omitted.] The rule of
stare decisis is founded upon sound principles in the administration of justice, and rules
long recognized as the law should not be departed from merely because the court is of
the opinion that it might decide otherwise were the question a new one.
Maki v. Frelk, 239 N.E.2d 445, 447 (Ill. 1968). And, as declared in State v. Nuwi Nini, 262
N.W.2d 758, 761 (S.D. 1978), [i]f there is to be stability and an even-handed administration
of justice, this court must follow its own precedent until convinced that its earlier decision
was wrong, not in result, but in principle.
Mindful of the foregoing authorities which reflect established attitudes and principles
concerning the importance of state decisis in our legal system, I suggest that our ruling in
Clem should not be overruled for a number of reasons. First, as I shall endeavor to
demonstrate, our ruling in Clem was most assuredly not wrong in principle and it did not
operate contrary to public interests. Second, the majority position not only tosses the baby
along with the bath water, it also fails to supply needed guidance to prosecutors in
following the new inherently dangerous rule. Finally, I submit that the majority has misread
the law of other jurisdictions in giving birth to confusion in our own.
A majority of the states have adopted the functional rule which is abandoned in this
jurisdiction by the instant decision. It seems clear, therefore, that the functional test may not
be viewed in general as unsound. Moreover, when properly circumscribed, it provides an
appropriate latitude to the enhancement statute that accomplishes or has the potential to
accomplish in particular, compliance with legislative intent.
I suggest that the majority has failed to place proper emphasis on the word weapon as
they redefine legislative intent to exclude the functional test and include an inherently
dangerous test. In pertinent part, NRS 193.165 enhances the penalty imposed on any person
"who uses a firearm or other deadly weapon . . . in the commission of a crime. . . ."
imposed on any person who uses a firearm or other deadly weapon . . . in the commission of
a crime. . . . (Emphasis supplied.) The term deadly is an adjective that describes the kind
of weapon that will actuate an enhancement. Rather than focusing on the word weapon, the
majority addresses the word deadly and concludes that it refers to any instrument that is
inherently dangerous. I suggest that the initial emphasis must be placed on the word
weapon in order to provide proper context to the language of the statute and the legislative
concerns it addresses. In doing so, it is apparent that NRS 193.165 is designed to deter the use
of weapons in the commission of crimes, thus reducing the prospect of death or serious
bodily injury. Viewed in that context, it is clear that the majority is incorrect in concluding
that the functional test would include virtually every instrument that may be used to
accomplish serious injury or death. The critical inquiry should be: what is a weapon.
A weapon has been defined as: [A]n instrument of offensive or defensive combat
something to fight with: something (as a club, sword, gun or grenade) used in destroying,
defeating or physically injuring an enemy. Webster's Third New International Dictionary
(1968). As previously observed, the apparent purpose of enhancement statutes, including our
own, is to deter persons from using weapons in the commission of crimes, thereby reducing
the likelihood of death or serious injury. Anderson v. State, 95 Nev. 625, 630, 600 P.2d 241,
244 (1979). By way of emphasis, I would repeat that the statutory purpose is to discourage the
use of weapons, not instruments or things used as weapons. Once it is understood that the
statutory concern is weapons, a great variety of objects capable of being used as weapons
may be eliminated as instruments within the purview of the enhancement statute. On the other
hand, if statutory enhancement is restricted to weapons that are inherently dangerous,
unintended consequences will arise. For example, in Allen v. State, 96 Nev. 334, 609 P.2d
321 (1980), we properly determined that a pistol incapable of being fired was nevertheless a
deadly weapon within the meaning and intendment of NRS 193.165. Under the inherently
dangerous test adopted by the majority, it is evident that no enhancement would have been
permissible despite the policy of the statute to discourage the use of such weapons, operable
or not. The defective hand gun, although inoperable, was nevertheless a weapon by nature. It
was manufactured and designed as a weapon, but because of a mechanical defect, it was not
inherently dangerous as a projectile-firing weapon. It was nevertheless used by Allen as if it
were a deadly weapon of the character and quality addressed by the statute.
weapon of the character and quality addressed by the statute. Its appearance also summoned
all the dread and potentially hazardous thoughts and responses that victims of such threats
conjure up under stresses provoked by the menacing of such weaponry. Under the functional
test adopted by Clem, both statutory purpose and individual justice were served by Allen's
enhanced penalty, as the firearm was, for all intents and purposes, a deadly weapon used in
the commission of the crime.
In dealing with a statute that enumerated certain instruments as deadly weapons, the court
in State v. Williams, 352 N.W.2d 576 (Neb. 1984), refused to recognize a steak knife found
in appellant's car as a deadly weapon, reasoning that an ordinary tool for personal dining
was not within the contemplation of the legislature. A similar result was reached in State v.
Paige, 92 N.W. 313 (S.D. 1902), where the court recognized that any ordinary object could be
used to inflict death or serious injury. However, such destructive potential alone was not
sufficient to make the instrument a deadly or dangerous weapon. The Paige court stated
that the term weapon was an instrument used for offensive or defensive purposes and could
not be extended to include ordinary instruments not used for such purposes.
In Commonwealth v. Burns, 568 A.2d 974 (Pa.Super. 1990), deadly weapon was
statutorily defined as:
[a]ny firearm, whether loaded or unloaded, or any device designed as a weapon and
capable of producing death or serious bodily injury, or any other device or
instrumentality which, in the manner in which it is used or intended to be used, is
calculated or likely to produce serious bodily injury.
Id. at 976 (quoting 18 Pa. C.S.A. 2301). The court rejected penalty enhancement for the use
of an automobile in running a police car barricade occupied by law enforcement officers. The
court opined that the legislature was limiting the term weapons to include blades, guns,
sticks, clubs and other items that are offensive weapons in the traditional sense. Id. The
Burns court concluded that the legislature did not intend that motor vehicles be considered as
weapons for purposes of penalty enhancement.
After determining that an object used by a defendant to produce death or injury is, in fact,
a weapon in the traditional sense, the next question is whether the weapon is either a firearm
or other deadly weapon. If, in addition to firearms, every other type of weapon could be used
to support an enhanced sentence, the qualifying or modifying adjective deadly would be
deprived of meaning. Given the purpose of the statute, we cannot conclude that the term
deadly was either unintended or undeserving of judicial deference. I suggest that the
functional test appropriately comes to bear on the issue of determining the deadly
character of a weapon by looking to how the weapon is used and the facts and
circumstances of its use.
comes to bear on the issue of determining the deadly character of a weapon by looking to how
the weapon is used and the facts and circumstances of its use. If, for example, a hand gun
(which by statutory definition is a deadly weapon) is used as a club or solid object rather than
a firearm, the functional test may disallow its use as an enhancement. On the other hand, if an
ordinary table fork is taken by one bent on using it offensively and heated to become an
instrument of torture, the usually benign instrument may have been transmuted into a weapon
that could appropriately be classified as deadly. Similarly, an innocuous toothbrush could be
purposely fashioned into a stiletto that could properly be viewed as a weapon that was deadly
in nature. Once an object is determined to be in the category of a weapon, its deadly nature
should be determined according to how it was used by the defendant as well as the
circumstances surrounding its use.
It follows from the foregoing that articles of apparel, such as Zgombic's steel-toed boots,
could never be considered as weapons under the statute unless modified in such a way as to
make them weapons. For example, if Zgombic had altered his boots with pointed steel shafts
protruding from the toes so that, by design, the boots could be used to inflict injury or death,
the functional test would have permitted enhancement under the statute. The fact that
Zgombic used his footwear as a means of producing injury does not constitute a basis for
invoking the statutory enhancement reserved for the use of weapons of a deadly character.
Nevertheless, as mentioned above, even ordinary objects or household implements may be
transmuted into weapons when redesigned, modified or used in an offensive manner. Thus, in
State v. Medeiros, 665 P.2d 181 (Haw.App. 1983), a flare gun that had, in an earlier case,
been denied the status of a weapon (State v. Rackle, 523 P.2d 299 (Haw. 1974)) was
determined to be a weapon when the defendant placed a shotgun shell in the gun and fired it
into the head of his victim. The court held that because the defendant had used the flare gun
in an offensive manner to injure, defeat and destroy his enemy,' the flare gun became a
weapon. Id. at 187. Under the inherently dangerous test adopted by the majority, I assume that
the flare gun, designed for emergency signalling would not have satisfied enhancement
criteria despite its purposeful adaptation by the defendant into the equivalent of a firearm.
Another basis for my disagreement with the majority position is that it provides precious
little guidance to prosecutors and sentencing judges. Illustrative of the point is the flare gun
problem presented in Medeiros. A flare gun is neither a firearm nor an offensive or defensive
weapon; it is an implement designed to assist in times of emergency. It is not inherently
dangerous. In Nevada, will those who use flare guns as shot guns avoid penalty
enhancement under the majority's ruling?
Nevada, will those who use flare guns as shot guns avoid penalty enhancement under the
majority's ruling? I suggest that a more preferable solution to the majority's understandable
concern (a concern which I fully share), is to narrow the scope of the functional test adopted
in Clem.
Clearly, the legislature did not intend tennis shoes or regular-stock, steel-toed boots to
qualify as weapons under the enhancement statute. Because we have not previously supplied
limiting guidelines to the functional test, it should come as no surprise that zealous
prosecutors have pushed the test beyond its outer limits. Rather than abandoning the test
currently and, I believe, justifiably used in a majority of states, I would have circumscribed
the test with meaningful guidelines for its use. My review of the cases suggests, in part, that
the following guidelines or indicia of applicability would be helpful in future prosecutions:
(1) Was the defendant armed with the instrument when he proceeded to commit the
crime?
(2) Was the otherwise ordinary instrument modified or redesigned to become a weapon?
(3) Did the defendant intend to use the instrument offensively or defensively to defeat,
destroy or injury a person?
(4) Is the instrument ordinarily used for criminal and unlawful purposes (e.g., a billy)?
(5) Did the defendant possess the instrument under circumstances tending to demonstrate
that it was intended for use as a weapon?
(6) Was the defendant in possession of the instrument when the criminal activity first
commenced or did the defendant merely grasp for it as a means of inflicting death or
injury during the commission of the crime?
(7) Did the defendant plan to use the instrument as a weapon of destruction in facilitating
the successful objective of the crime?
(8) Is the weapon of the kind specifically referred to by the Nevada legislature as a deadly
weapon in NRS 202.320 (dirk, dirk-knife, sword, sword cane, pistol, gun or other
deadly weapon) or as a dangerous weapon in NRS 202.350 (knife which is integral
part of a belt buckle, switchblade knife, blackjack, slung shot, billy, sandclub, sandbag,
metal knuckles, explosive substance, dirk, dagger or dangerous knife, pistol, revolver
or other firearm or other dangerous or deadly weapon, nunchaku, trefoil or machine
gun)?
The above guidelines are only suggestions of the type of assistance that I believe this court
could focus upon as a better alternative than overruling Clem.
alternative than overruling Clem. Moreover, as an additional safeguard against unintended
enhancements, I would always leave the determination of enhancement suitability to the
sentencing authority. In that respect, I also part company with my colleagues in the majority
who would place such decisions with triers of fact in close cases.
Finally, the majority skates lightly over the cases this court cited in support of its decision
in Clem. Although three of the nine cases cited in Clem related to statutes involving assault
with a deadly weapon, five of the remaining cases involved crime reclassification because a
deadly weapon was used, and one of the cases involved the crime of possession.
Reclassification of a crime to a greater offense is closely analogous to penalty enhancement.
I suggest that the majority's reliance on Arizona case law for support in its adoption of the
inherently dangerous test is unsound. Arizona uses the functional test in defining deadly
weapons for penalty enhancement purposes. The Arizona Supreme Court has held that the
inherently dangerous test used in the case cited by the majority, State v. Church, 504 P.2d 940
(Ariz. 1973), is inapplicable where use of a deadly weapon is not an element of the
substantive offense. State v. Moss, 579 P.2d 42 (Ariz. 1978). In Moss, the determination of
whether a deadly weapon was used in the commission of the crime was left to the jury based
upon an application of the functional test (the manner and circumstances of its use). The
purpose for the determination was to decide whether the defendant's sentence should be
enhanced because of his use of a tire iron. According to Moss, the Church decision was
dictated by the need to place a constitutional interpretation on the assault with deadly weapon
statute.
Arizona case law, applying the functional test with respect to penalty enhancement, is just
the opposite of what the majority now proposes for Nevada. Under today's ruling, the
functional test will apply in Nevada to determine whether a deadly weapon has been used as a
required element of the substantive offense, and the inherently dangerous test will apply for
purposes of penalty enhancement. The majority merely states that it has no dispute with using
the functional test to define a deadly weapon when a deadly weapon is an element of a
crime. (Majority Opinion, p. 3.) No reason is provided by the majority in support of its
position favoring the functional test in substantive crimes and disfavoring it in penalty
enhancements. It appears to me, as it has to the Arizona courts, that if a distinction is to be
made, the greater clarity presumably attaching to the inherently dangerous test should apply
to the definition of the elements of a crime.
crime. Illustrative of the point is the case of criminal assault. In Nevada, if the assault occurs
without the use of a deadly weapon or the present ability to use such a weapon, the crime is a
simple misdemeanor. If the converse is true, the crime is a felony. In my opinion, if there is
uncertainty in the definition of a deadly weapon, that uncertainty impacts with equal or in
some instances, greater magnitude, on the notice given of the conduct proscribed in statutory
definition of crimes as it does in the area of penalty enhancement. I must therefore conclude
that if the majority insists on altering the test, it has done so in the wrong direction. I suggest,
however, that under Nevada's statutory scheme, the functional test should be used in both
instances.
I am also unpersuaded that the majority has properly characterized the other cases treated
in the majority opinion as either nonsupportive of our ruling in Clem or as a basis for the rule
adopted in the instant case. Without further prolonging this dissent, I merely suggest that the
majority's attempt to distinguish cases cited by this court in favor of our decision in Clem is
not persuasive and provides no sound basis for withholding the principle of stare decisis from
our recent ruling in Clem.
1

Finally, I am constrained to take issue with the majority's conclusion that NRS 193.165 is
designed to deter injuries caused by weapons, not people. Weapons are inanimate objects;
they do not act, but are acted upon by people. There is no potential violence inhering in the
weapon itself as declared by the majority. (Majority Opinion, p. 6.) I am unable to attribute
any reason or logic whatsoever to the majority's attribution of animation to weapons, and its
conclusion that the legislature intended violence caused by people to be remedied by the
statutes proscribing the underlying crime. To suggest, as the majority does, that the
legislature designed NRS 193.165 to deter weapons rather than people, is beyond
comprehension. Both the express language of the statute and common sense make clear the
legislative purpose to deter the use of deadly weapons by people.
For reasons previously expressed and many unexpressed in deference to the law of
diminishing returns, I respectfully dissent from the majority's abandonment of the functional
test, but otherwise concur in the result.
__________

1
I am also troubled by issues of retroactivity stemming from the majority's overruling of the functional test
established in Clem. Although case precedents exist disfavoring retrospective application of criminal case
rulings in many instances, it appears that such a disposition of the issue created by today's ruling may cause
compelling problems related to basic fairness.
Respectively, I dissent.
I would presume the Legislature in enacting the Enhancement Statute did so for the
purpose of protecting our citizenry from the criminal element in our midst and to discourage
the criminal from using deadly weapons to assault or rob victims.
In the instant case, the assailant threatened to kill his victim in the parking lot of a hotel
and then knocked the victim to the ground. The assailant with his steel-capped boots
proceeded to kick and beat the helpless victim repeatedly about the head and face, breaking
his nose and six teeth, blackening his eyes, and causing facial contusions. This outrageous
attack continued. The witnesses who found the victim moments later described him as a
bloody mess.
Whether the injuries had been inflicted by the assailant pistol whipping the victim or by
stomping him with steel-capped boots would matter little to the innocent victim. The result
would be the same.
I would give the broadest possible interpretation to the Enhancement Statute to the end
that its purpose would be given its fullest effect. Therefore, I would affirm and uphold the
appellant's judgment of conviction in its entirety.
1

____________
106 Nev. 587, 587 (1990) Clark Co. Public Employees v. Pearson
CLARK COUNTY PUBLIC EMPLOYEES ASSOCIATION, Appellant, v. WILLIAM
PEARSON, KAREN HAYES, THALIA DONDERO, BRUCE WOODBURY,
MANUEL CORTEZ, JAY BINGHAM, and PAUL CHRISTENSEN, CLARK
COUNTY COMMISSIONERS; EX OFFICIO, THE BOARD OF TRUSTEES OF
THE UNIVERSITY MEDICAL CENTER OF SOUTHERN NEVADA, Respondents.
No. 20404
September 14, 1990 798 P.2d 136
Appeal from a district court order granting respondents' request to stay arbitration.
__________

1
Many courts have held that even a harmless implement may be used for homicidal purposes. See, e.g.,
Commonwealth v. Tarrant, 314 N.E.2d 448 (Mass. 1974), aff'd., 326 N.E.2d 710 (Dog considered a dangerous
weapon for purposes of armed robbery statute); Bass v. State, 172 So.2d 614 (Fla.App. 1965) (assault with shoes
constituted assault with a deadly weapon).
Justice Rose, while speaking for the majority, has indicated that these cases concern statutes where a deadly
weapon was an element of a crime, thus implying that the cited cases are irrelevant. However, I suggest it
matters little to a victim whether the deadly weapon used to inflict harm is an element of a particular crime or an
element within an enhancement statute.
request to stay arbitration. Eighth Judicial District Court, Clark County; Donald M. Mosley,
Judge.
University applied for order staying arbitration over dispute arising under clinical ladder
program for its nurses. Union filed complaint that requested order compelling arbitration.
The district court ordered arbitration on dispute to be stayed indefinitely. Union appealed.
The Supreme Court, Rose, J., held that since question of arbitrability was in doubt, doubt was
to be resolved in favor of arbitrability.
Easterly & Armstrong and David Lockie, Elko, for Appellant.
Rex Bell, District Attorney, and Paul D. Johnson, Deputy District Attorney, Clark County,
for Respondents.
1. Arbitration.
Reviewing court is obliged to make its own independent determination of arbitrability of dispute and should not defer to lower
court's determination.
2. Arbitration.
Unless parties clearly and unmistakably provide otherwise in their agreement, question of arbitrability is to be decided by district
court, not arbitrator.
3. Labor Relations.
District court was authorized to make determination regarding arbitrability of dispute where arbitration agreement in collective
bargaining between parties did not clearly and unmistakably provide that arbitrator was to make threshold determination of
arbitrability.
4. Arbitration.
Court may not make determination regarding arbitrability of dispute based on evaluation of underlying merits of dispute. NRS
38.045, subd. 5.
5. Labor Relations.
Labor-management disputes concerning preexisting obligations of employer to nurses who satisfied requirements of program that
was not incorporated into bargaining agreement were arbitrable where it could not be said with positive assurance that arbitration
clause, which dealt with interpretation and application of express terms of agreement, was not susceptible of any interpretation
covering disputes; there was no express provision excluding particular disputes from arbitration, and there was no extrinsic evidence of
intent to exclude disputes from arbitration.
6. Labor Relations.
Provision of collective bargaining agreement providing that any benefit existing prior to agreement was negated unless
specifically incorporated into agreement did not constitute exclusion sufficiently clear to support stay of arbitration of dispute over
clinical ladder program" under which nurses could receive additional proficiency pay where dispute was at
least arguably specifically incorporated into agreement and it was inherently unreasonable to construe
article to operate to extinguish nurses' rights to added pay or reimbursement for activities undertaken
before execution of collective bargaining agreement; term "benefit" could not generally be construed to
refer to reimbursement or added pay, but rather, to ancillary benefits.
ladder program under which nurses could receive additional proficiency pay where dispute was at least arguably specifically
incorporated into agreement and it was inherently unreasonable to construe article to operate to extinguish nurses' rights to added pay
or reimbursement for activities undertaken before execution of collective bargaining agreement; term benefit could not generally be
construed to refer to reimbursement or added pay, but rather, to ancillary benefits.
OPINION
The sole question presented by this appeal is whether the district court erred in
determining that the parties' three labor disputes are not arbitrable under the parties' collective
bargaining agreement. Appellant has pointed to provisions of the collective bargaining
agreement which at least arguably cover these disputes, but whether the parties intended these
disputes to be arbitrable is not certain. Precisely because the question of arbitrability is in
doubt, however, we hold that the district court's order staying arbitration must be reversed and
this case remanded with instructions that the district court enter an order compelling
arbitration of these disputes. If the question of arbitrability is in genuine doubt, our previous
decisions clearly require that doubt to be resolved in favor of arbitrability.
FACTS
In 1986, the University Medical Center of Southern Nevada (UMC) initiated a clinical
ladder program under which nurses could receive added proficiency pay for fulfilling certain
proficiency requirements. The documentation on the ladder program contains the heading,
Personnel Policies and Procedures. In September 1988, UMC and the Clark County Public
Employees Association (CCPEA) entered into a collective bargaining agreement which
covers the nurses, but does not expressly address the clinical ladder program. Some time
thereafter, UMC terminated the ladder program. In response, on April 10, 1989, CCPEA filed
a formal demand for arbitration on three disputes: (1) whether the clinical ladder program as a
whole is incorporated into the collective bargaining agreement; (2) whether individual
contracting agreements entered into by nurses as part of the program are incorporated into
the collective bargaining agreement; and (3) whether UMC has failed to compensate nurses
with proficiency pay and reimbursement of expenses for activities undertaken pursuant to the
program. UMC refused to arbitrate and applied for an order staying arbitration from the
district court.
court. CCPEA then filed a complaint that requested an order compelling arbitration. The
district court granted UMC's application and ordered arbitration on these disputes to be stayed
indefinitely. CCPEA appeals the order granting the stay.
Article 10 of the collective bargaining agreement subjects any grievance to binding
arbitration. The issue presented is whether the three disputes surrounding the ladder program
constitute grievances. In pertinent part, Article 10 defines the scope of grievances as
follows:
ARTICLE 10
Grievance Procedure
2. For the purposes of this Agreement, a grievance shall be defined to mean a dispute
between an employee(s) and/or the Association and UMC over the interpretation or
application of the express terms of this Agreement.
3. Disputes specifically excluded in other articles of this Agreement from the grievance
appeal and arbitration procedure set forth herein shall not be construed as in the
purview of this Article 10.
(Emphasis added.)
LEGAL DISCUSSION
I. Standards of appellate review of the question of arbitrability.
[Headnotes 1-3]
Whether a dispute is arbitrable is essentially a question of construction of a contract. Thus,
the reviewing court is obligated to make its own independent determination on this issue, and
should not defer to the district court's determination. Local U. No. 77 v. Public Util. Dist. No.
1, 696 P.2d 1264, 1266 n.2 (Wash.Ct.App. 1985). Unless the parties clearly and unmistakably
provide otherwise in their agreement, the question of arbitrability is to be decided by the
district court, not the arbitrator. Int'l Assoc. Firefighters v. City of Las Vegas, 104 Nev. 615,
620 n.6, 764 P.2d 478, 481 n.6 (1988) (quoting AT&T Technologies v. Communications
Workers of America, 475 U.S. 643, 649 (1986)).
1
Unlike the bargaining agreement in
Firefighters, the agreement in the present case does not provide that the arbitrator shall make
the threshold determination of arbitrability. Therefore, the district court was authorized to
make the determination regarding arbitrability.
__________

1
Although we follow the majority rule just stated, we note that there is a split of authority on this point, with
a minority of courts holding that the arbitrator should decide arbitrability in doubtful cases. The Illinois Supreme
Court recently enunciated the minority view in some detail in Donaldson, Lufkin & Jenrette v. Barr, 530 N.E.2d
439 (Ill. 1988).
[Headnote 4]
Nevada courts resolve all doubts concerning the arbitrability of the subject matter of a
dispute in favor of arbitration. Firefighters, 104 Nev. at 618, 764 P.2d at 480 (citing Exber,
Inc. v. Sletten Constr. Co., 92 Nev. 721, 729, 558 P.2d 517, 522 (1976)). Disputes are
presumptively arbitrable, and courts should order arbitration of particular grievances unless
it may be said with positive assurance that the arbitration clause is not susceptible of and
interpretation that covers the asserted dispute. Firefighters, 104 Nev. at 620, 764 P.2d at 481
(quoting AT&T Technologies, 475 U.S. at 650) (emphasis added). Moreover, the U.S.
Supreme Court has stated that, in cases involving broadly worded arbitration clauses, in the
absence of any express provision excluding a particular grievance from arbitration, we think
only the most forceful evidence of a purpose to exclude the claim from arbitration can
prevail. AT&T Technologies, 475 U.S. at 650 (emphasis added) (citation omitted). Finally,
Nevada's Uniform Arbitration Act prohibits courts from considering the merits of the
underlying disputes in making the more limited threshold determination of arbitrability. NRS
38.045(5) provides that [a]n order for arbitration shall not be refused on the ground that the
claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought
to be arbitrated have not been shown. The Court in AT&T Technologies also cautioned
against considering the merits of the dispute:
Whether arguable or not, indeed even if it appears to the court to be frivolous, the
union's claim that the employer had violated the collective bargaining agreement is to
be decided, not by the court asked to order arbitration, but as the parties have agreed, by
the arbitrator.
AT&T Technologies, 475 U.S. at 650. A drafter of the national Uniform Arbitration Act
points out that there is a serous risk that courts will make the determination of arbitrability on
the basis of an evaluation of the underlying merits of a dispute. Pirsig, Comments on
Arbitration Legislation and the Uniform Act, 10 Vand. L. Rev. 685, 695 (1957). Courts must
guard against this intrusion into labor-management relations.
II. The arbitrability of the parties' three disputes.
[Headnote 5]
Without passing in any way on the underlying merits of the parties' three disputes, we hold
that these disputes are arbitrable. These disputes are to be decided by an arbitrator because we
cannot say with positive assurance that the arbitration clause is not susceptible of any
interpretation covering these disputes, there is no express provision excluding these
particular disputes from arbitration, and there is no extrinsic evidence of intent to exclude
these disputes from arbitration.
not susceptible of any interpretation covering these disputes, there is no express provision
excluding these particular disputes from arbitration, and there is no extrinsic evidence of
intent to exclude these disputes from arbitration. Under the arbitration clause in Article 10,
arbitrability turns on interpretation of other substantive provisions of the collective bargaining
agreement. At least two articles of the parties' bargaining agreement are clearly susceptible of
an interpretation covering these disputes. Article 5 states in pertinent part:
ARTICLE 5
Management Rights
1. UMC is entitled, without negotiation, to the sole right and authority to operate and
direct the affairs of UMC in all its various aspects. Those rights include but are not
limited to the following:
. . . .
(g) Promulgate, revise and modify rules, regulations and personnel policies.
. . . .
2. All rights and responsibilities of UMC not specifically modified by this agreement
shall remain the functions of UMC. The above enumerated management rights shall not
contravene the expressed terms of this Agreement and shall be subject thereto.
(Emphasis added.)
Without passing on the merits of the parties' disputes, we note that paragraph two may
have particular application to the parties' third dispute concerning proficiency pay and
reimbursement for activities previously undertaken by nurses pursuant to the ladder program.
If UMC has duties to award proficiency pay and reimbursement for activities already
undertaken pursuant to the clinical ladder program, these duties certainly could be termed
responsibilities. Such responsibilities were not specifically modified by the parties'
agreement. Although susceptible of other interpretations, the phrase shall remain the
functions of UMC at least arguably obligates UMC to carry through on any preexisting
obligations owing to nurses who satisfied program requirements. Under NRS 38.045(5), it is
for the arbitrator, not the courts, to decide on the merits whether and to what extent this
phrase obligates UMC to compensate these nurses. Courts must resist the temptation to reach
the merits of these interpretive issues. If the issue is arbitrable, courts may intervene after the
arbitrator makes an arbitrary or irrational award, but not before. The parties' third dispute is
very similar to a traditional wage dispute.
dispute. Requiring these nurses to pursue individual contract actions in court against UMC,
instead of arbitration, hardly sees conducive to good labor-management relations or the
efficient disposition of controversies.
Paragraph two is also susceptible of interpretations covering the parties' first two disputes.
For example, even if UMC has the power to terminate the program under paragraph 1(g),
paragraph two may mean that the ladder program was incorporated into the parties' agreement
until such time as UMC elected to terminate the program, with arbitration to be required for
disputes arising under the program prior to its termination. UMC very possibly had many
personnel policies which it continued after signing this agreement, even though the policies
were not specifically enumerated in the agreement. We cannot say with positive assurance
that the clinical ladder program was not such a policy.
A second article in the agreement which is susceptible of an interpretation covering these
disputes is Article 28, which provides in pertinent part:
ARTICLE 28
Education/Training
1. UMC is committed to encourage and assist its employees in increasing and
broadening their skills and knowledge through continued education in areas that will
contribute to their job performance with UMC. To this end, UMC agrees to establish
education and training programs and policies that will support this commitment.
. . . .
. . . .
4. UMC shall maintain an in-service education program which includes
assignment-related training.
. . . .
. . . .
7. If UMC requires an employee to attend an educational program outside of the
hospital, the time spent at such a meeting shall be considered as work time, and the
employee shall be reimbursed for all fees and travel expenses incurred in connection
therewith.
(Emphasis added.)
Paragraphs one and four arguably support CCPEA's contentions that the ladder program,
and individual contracts entered into thereunder, were incorporated into the collective
bargaining agreement. As described in UMC's documentation, the ladder program certainly
could be classified as one of the training programs and policies referred to in paragraph
one. The clinical ladder program is more than a simple wage incentive for productivity; it
is a training program to increase nurses' proficiency.
ladder program is more than a simple wage incentive for productivity; it is a training program
to increase nurses' proficiency. In order to qualify for proficiency pay, nurses are graded on
several criteria, such as Knowledge/Skill. Certainly this program falls under UMC's general
commitment, stated in paragraph one, to increase employees' skills and knowledge.
Paragraph seven at least arguably supports the nurses' claims for reimbursement for
personal expenses incurred in connection with the program. While the voluntary ladder
program does not permit reimbursement for most personal expenses, some expenses are
reimbursable under the program. If participating nurses incurred expenses in any activities
outside of the hospital, paragraph seven at least arguably supports the claim for
reimbursement. The strength of the underlying reimbursement and other claims are irrelevant
to our determination of arbitrability, so long as the claims are colorable. Indeed, the record
contains insufficient evidence for this court even to begin to evaluate the merits of the nurses'
claims. This evidence will come out before the arbitrator on the merits. Once the arbitrator
makes a decision, courts will have a much firmer record on which to assess the validity of the
parties' claims.
We fully recognize that other courts have given narrower interpretations to clauses like the
CCPEA's which limit arbitration to disputes arising under express contract provisions. Based
on the word express, these courts have ruled against arbitrability on the grounds that the
subject matter of the asserted disputes was not expressly enumerated in the bargaining
agreement. See Croom v. City of DeKalb, 389 N.E.2d 647 (Ill.App. 1979). The result reached
in Croom, however, is simply inconsistent with the principles stated in Firefighters and
AT&T Technologies. To construe the parties' phrase, interpretation or application of the
express terms of the Agreement, as a limitation to subject matters expressly enumerated in
the agreement would be both unrealistic and counter to the legal presumptions in favor of
arbitrability. Any drafter of legal documents realizes that parties will not always be able to
anticipate, or desire to specify, every contingency in the express language of an agreement.
Businesses change, and disputes may arise which, although not expressly covered by the
terms of an agreement, are covered by its spirit or by clear implication from the express
terms. Application or interpretation of express contractual terms almost by definition goes
beyond the express terms themselves. In accord with the foregoing, other courts have rejected
the narrow interpretation accorded these clauses in cases such as Croom.
accorded these clauses in cases such as Croom. An example of such a case of which we
approve is Local U. No. 77, supra.
2

UMC argues that two provisions in the agreement constitute express exclusions of these
disputes from arbitration. First, UMC points to Article 5, paragraph 1(g), quoted above. UMC
argues that, since the ladder was a personnel policy, this provision expressly excludes any
disputes arising under the clinical ladder program from arbitration. We disagree. First,
paragraph 1(g) simply is not an express provision excluding a particular grievance from
arbitration within the meaning of either AT&T or the parties' bargaining agreement. The
parties' arbitration clause excludes from arbitration disputes which are specifically excluded
in other articles of this Agreement from the grievance . . . procedure. Examples of such
express exclusions referred to in the arbitration clause are Article 32, paragraph five and
Article 33, paragraph four. Article 32, paragraph three provides for a committee to investigate
health and safety problems in the work place. Article 32, paragraph five provides that
[d]isputes arising under Section 3 of this Article are not subject to resolution under the
grievance procedure. Article 32, paragraph five, constitutes a specific exclusion from
arbitration.
__________

2
In Local U. No. 77, a utility began staffing certain energy conservation consultant positions with
non-union workers. The union maintained that these should be union positions, but the utility disagreed. The
utility workers' union sought a court order compelling the utility to arbitrate this dispute. The arbitration clause
provided: Any dispute between the District and the Union or between the District and any employee covered by
this Agreement concerning the interpretation, application, claim of breach or violation of the express terms of
this Agreement shall be deemed a grievance. Local U. No. 77, 696 P.2d at 1267 n.3 (emphasis added). The
parties' contract discussed various job classifications, but did not specifically discuss energy conservation
consultants. The district court refused to order arbitration.
The court of appeals reversed and remanded with instructions that the district court order arbitration. The
court specifically rejected the argument that the clause express terms of this Agreement limited arbitration to
disputes arising under express contractual provisions; this clause was insufficient to rebut the strong presumption
in favor of arbitration. The court also specifically rejected the argument that the failure to incorporate the
non-union positions into the contract during contract negotiations indicated an intent not to arbitrate these
disputes. The court reasoned that simple failure expressly to specify these positions in the contract did not
constitute the most forceful evidence of a purpose to exclude the dispute from arbitration, as required in
previous decisions of the U.S. Supreme Court. Id. at 1268. The court concluded that a court's inquiry is at an
end if the complaint on its face calls for an interpretation of the agreement. Id. at 1267 (citing United
Steelworkers of Am. v. American Mfg. Co., 363 U.S. 564, 568 (1960)). Since the workers argued that the energy
conservation consultant positions might fall within the term metermen in the contract, the court concluded, the
dispute at least arguably fell under the contract and, hence, was arbitrable.
a specific exclusion from arbitration. Article 5, paragraph 1(g), does not.
Additionally, assuming that the ladder program is a personnel policy, paragraph 1(g) might
well give UMC the power to modify, or possibly even terminate, the ladder program. It does
not necessarily follow, however, that UMC can disregard any contractual obligations to
nurses arising before the program was terminated. There is a distinction between the ladder
program as a personnel policy and individual contracting agreements, as CCPEA refers to
them, entered into pursuant to the policy. In short, the ladder program may comprise both a
personnel policy, and contracts for participating nurses. The thrust of the nurses' grievances
appears to be contractual, and paragraph 1(g) does not address the contractual components of
personnel policies. Therefore, we cannot state with positive assurance that paragraph 1(g)
excludes the nurses' disputes from arbitration. Nor does paragraph 1(g) necessarily mean that
the parties never intended any disputes arising under the program to be covered by the
bargaining agreement. Since the ladder program pre-dated the collective bargaining
agreement and the parties did not eliminate the program in the agreement, the parties may
have tacitly intended to incorporate the ladder program, among several other personnel
policies, into the agreement until such time as UMC elected to terminate the program
pursuant to paragraph 1(g). This question will be for the arbitrator to determine in addressing
the merits of these grievances.
[Headnote 6]
The second principal provision which CCPEA claims is an express exclusion of these
disputes from arbitration reads as follows:
ARTICLE 36
Entire Agreement
The parties acknowledge that during the negotiations resulting in this Agreement, each
had the unlimited right and opportunity to make demands and proposals with respect to
any and all subjects or matters . . . . All rights and duties of both parties are specifically
expressed in this Agreement and such expression is all-inclusive. Any benefit existing
prior to this Agreement is negated unless specifically incorporated into this agreement.
(Emphasis added.)
This does not constitute an exclusion sufficiently clear to support a stay of arbitration for
three reasons. First, under the arguments made above, all three disputes at least arguable are
"specifically incorporated" into the Agreement.
specifically incorporated into the Agreement. It will fall to the arbitrator to resolve these
disputes on the merits. Second, it is inherently unreasonable to construe this article to operate
to extinguish the nurses' rights to added pay or reimbursement for activities the nurses
undertook before the parties signed this agreement. Did the parties intend Article 36 to negate
nurses' rights to proficiency pay based on their efforts before the agreement was signed or
before the program was terminated? We cannot answer in the affirmative with positive
assurance. This creates an ambiguity for the arbitrator to resolve. Third, CCPEA points out
that the term benefit generally is not construed to refer to reimbursement or added pay, but,
rather, to ancillary benefits such as health or sick leave; this, too, creates a question of
interpretation for the arbitrator.
Finally, we note that the record contains no extrinsic evidence of the parties' bargaining
history. It is possible that the parties intended some provision of their agreement to exclude
the clinical ladder program from arbitration. It is equally possible, however, that the parties
tacitly intended the existing clinical ladder program to become part of the agreement until
such time as the program was terminated, just like other personnel policies which may not
have been expressly enumerated in the agreement.
CONCLUSION
The parties' collective bargaining agreement is silent as to the clinical ladder program, but
the parties' disputes are at least arguably covered by provisions in the agreement. Since there
is substantial doubt as to whether these disputes are arbitrable, the previous decisions of this
court require that doubt to be resolved in favor of arbitration. If there is any doubt as to
arbitrability, the parties are not to be deprived by the courts of the benefits of arbitration, for
which they bargainedspeed in the resolution of the dispute, and the employment of the
specialized knowledge and competence of the arbitrator. Exber, Inc., 92 Nev. at 729, 558
P.2d at 522 (Mowbray, J.) (citing John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543,
557-58 (1964)). The district court erred by failing to resolve the doubts in favor of
arbitrability. Accordingly, the district court's order staying arbitration is hereby reversed and
this case is remanded with instructions that the district court grant CCPEA's application for
an order compelling arbitration.
With due respect to my colleagues in the majority, I find no basis whatsoever for
concluding that the UMC policy concerning the clinical ladder program was incorporated
in or to be affected by, any aspect of the parties' collective bargaining agreement.
basis whatsoever for concluding that the UMC policy concerning the clinical ladder program
was incorporated in or to be affected by, any aspect of the parties' collective bargaining
agreement. I therefore dissent form the majority's ruling.
Although I have no quarrel with the legal authorities cited by the majority, I fail to see how
they apply to the instant case. As I see it, the primary flaw in the majority's position does not
necessarily stem from their diffident, recurrent conclusion that we cannot say with positive
assurance that the clinical ladder program or aspects thereof together with other unnamed
UMC personnel policies were excluded from the ambit of the collective bargaining
agreement. Rather, the major problem derives from the majority's root premise that whatever
personnel policies were in being prior to the collective bargaining agreement, and continued
thereafter, were included within the purview of the agreement whether specifically identified
therein or not. Thus, the majority proclaim that UMC very possibly had many personnel
policies which it continued after signing this [collective bargaining] agreement, even though
the policies were not specifically enumerated in the agreement. We cannot say with positive
assurance that the clinical ladder program was not such a policy. (Majority opn., p. 7.) There
are at least three obvious flaws in the quoted conclusion. First, we can say with positive
assurance that the clinical ladder program was continued after the signing of the collective
bargaining agreement despite the fact that it was not enumerated therein. Second, the only
inference to be drawn from the majority's conclusion is that all UMC personnel policies
commencing before and continuing beyond the date of the collective bargaining agreement
were within its ambit whether enumerated therein or not. Third, the effect of the majority's
premise is to render meaningless Article 5 of the collective bargaining agreement which
clearly purports to reserve, without negotiation the sole right and authority in UMC to, inter
alia [p]romulgate, revise and modify rules, regulations and personnel policies. (Emphasis
supplied.)
UMC's clinical ladder program was indisputably a personnel policy which it established
and promulgated. It was never made the subject of collective bargaining and was never
included by name or otherwise within the collective bargaining agreement. Moreover, I
believe it can be concluded with positive assurance that the program could never properly
be considered to be the subject of a grievance within the purview of the collective bargaining
agreement.
Article 10 of the agreement defines grievance to mean a dispute between an
employee(s) and/or the Association and UMC over the interpretation or application of the
express terms of this Agreement."
over the interpretation or application of the express terms of this Agreement. The rights and
entitlements of UMC's nurses under the clinical ladder program may not be properly resolved
by looking to the interpretation and application of any express terms of the collective
bargaining agreement. The agreement does not include, comprehend, or otherwise address the
program, expressly or by an extension of its spirit. It was established and promulgated as
UMC personnel policy number IV-421, for which UMC retained sole right and authority to
operate, revise and modify. Moreover, I would also state with positive assurance that the
language of Article 5 (2) which states that [a]ll rights and responsibilities of UMC not
specifically modified by this agreement shall remain the functions of UMC, means that all
such rights and responsibilities shall remain in the exclusive province of UMC rather than the
province of the agreement. To conclude otherwise effectively emasculates the paragraph.
I should pause here to note that the majority appears to confuse the rights of the
complaining nurses to their entitlements under the clinical ladder program with their rights
under the collective bargaining agreement. In my opinion, the two are mutually exclusive.
Because the clinical ladder program was an aspect of UMC personnel policy outside the
purview of the collective bargaining agreement, any rights denied the nurses by UMC under
that program would be subject to remedies dehors the agreement. To conclude that the
clinical ladder program is not subject to the collective bargaining agreement is not tantamount
to concluding that the nurses are left without a remedy if their rightful entitlements under the
program have been illegally denied them by UMC.
Finally, the majority concludes that arguably paragraphs one and four of Article 28
pertaining to training and education support CCPEA's contention that the clinical ladder
program and the individual contracts emanating therefrom are incorporated within the
collective bargaining agreement. I suggest that the argument, which attributes a substantial
measure of ineptitude to the drafters of the agreement, is disingenuous. Article 28 generically
commits UMC to provide education and training programs and policies, including in-service
programs, that will encourage and assist employees in increasing and expanding their skills
and knowledge. There is no provision within the article that specifies or implies a
responsibility on the part of UMC to establish or maintain any particular program or method
for accomplishing such training and education. As a result, any bona fide issue arising from
paragraphs one and four of Article 28 would be limited to whether or not UMC was
providing such training and education. In the instant case, all issues pertain to the clinical
ladder program and whether it is incorporated within the provisions to the collective
bargaining agreement.
ladder program and whether it is incorporated within the provisions to the collective
bargaining agreement. Moreover, paragraph seven of Article 28 has no relationship to the
clinical ladder program because it was strictly voluntary, and the latter paragraph applies only
to educational programs where attendance is required by UMC.
The majority pays little attention and no heed to the detailed expression of the parties set
forth under Article 36 entitled Entire Agreement. Although the entire article has substantial
relevance to this appeal and its proper disposition. I quote only the last two sentences of the
article which read as follows: All rights and duties of both parties are specifically expressed
in this Agreement and such expression is all-inclusive. Any benefit existing prior to this
Agreement is negated unless specifically incorporated into this Agreement. (Emphasis
added.) It seems unnecessary to comment on the natural meaning of the phrases specifically
expressed in this Agreement and such expression is all-inclusive. Nevertheless, despite the
clarity of language and its obvious intendment, the majority has incorporated therein subject
categories either excluded from or not specifically expressed in the agreement, thus
drastically expanding its ambit beyond the intention of the parties.
I submit that the real thrust of the majority opinion amounts to an irrelevant, misguided,
ultra-jurisdictional policy decision superimposing on the parties' collective bargaining
agreement an expansive, non-specific and philosophical nature. Thus the majority concludes
that [r]equiring these nurses to pursue individual contract actions in court against UMC,
instead of arbitration, hardly seems conducive to good labor-management relations or the
efficient disposition of controversies. Obviously, the logical extension of the majority's
reasoning eliminates the prospect of any activity or relationship between UMC and its
employees that will not be subject to arbitration under the agreement. Moreover, it would
seem that no Association or UMC policy or activity that may be of concern to the other, will
be immune from the reach of the agreement irrespective of its language.
I suggest that the majority has resorted to such verbalistic havens as: (1) lack of positive
assurance; (2) arguable possibilities; and (3) policies not conducive to healthy
labor-management relationships and the efficient resolution of disputes, to justify re-writing
the dimensions of the parties' agreement. Having manufactured uncertainty, they then invoke
the presumption that the law requires arbitration whenever doubt exists as to its application.
The package thus assembled by the majority obscures the fact that these parties obviously
never intended to include the clinical ladder program within the scope of their collective
bargaining agreement.
clinical ladder program within the scope of their collective bargaining agreement. Indeed, it is
not there!
Because I am fearful that the majority's reconstructive surgery on the collective bargaining
agreement will produce more mischief than good, and is, I suggest, an improper exercise of
this court's jurisdiction, I am compelled to dissent.
____________
106 Nev. 601, 601 (1990) Ellison v. C.S.A.A.
KAREN ELLISON, Appellant, v. CALIFORNIA STATE AUTOMOBILE ASSOCIATION,
Respondent.
No. 20480
September 14, 1990 797 P.2d 975
Appeal from summary judgment in an insurance contract dispute. Eighth Judicial District
Court, Clark County; Donald M. Mosely, Judge.
Insured brought action against insurer to recover remainder of arbitrator's award. The
district court granted insurer's motion for summary judgment, and insured appealed. The
Supreme Court held that: (1) automobile policy unambiguously provided for only one
payment of medical expenses in presence of overlapping coverage if expenses resulted from
accident with uninsured motorist, and (2) medical payments setoff contained in policy was
enforceable and prevented insured from recovering twice for medical payments.
Affirmed.
Richard A. Harris, Las Vegas, for Appellant.
Hafen & Mayor, Las Vegas, for Respondent.
1. Judgment.
While summary judgment is appropriate only if movant is entitled to judgment as matter of law, issues of contractual construction,
absent ambiguity or other factual complexities, present questions of law for court which are suitable for determination by summary
judgment.
2. Contracts.
Contracts are construed from written language and enforced as written.
3. Insurance.
Automobile policy unambiguously provided for only one payment of medical expenses if there was overlapping coverage and
expenses resulted from accident with uninsured motorist, and, thus, setoff provision in automobile policy prevented insured from
recovering twice for medical payments.
4. Insurance.
Recovery by insured in excess of 100 percent of damages is windfall which will not be countenanced by court absent clear
agreement providing such coverage.
5. Insurance.
Medical payments setoff in automobile policy was enforceable and prevented insured from recovering twice for medical payments
under separate provisions of policy which independently provided recovery of medical payments for personal injuries.
OPINION
Per Curiam:
The sole issue in this appeal is whether a medical payments setoff or crediting provision
contained in an automobile insurance policy is enforceable and prevents an insured from
recovering twice for medical payments under separate provisions of the policy which
independently provide medical payments recovery for personal injuries. We hold that it does
and affirm the decision of the district court.
The Facts
Appellant Karen Ellison (Ellison) was insured under an automobile insurance policy from
respondent California State Automobile Association (CSAA). The policy provided both
medical payments coverage and uninsured motorist coverage which included a medical
payments provision within it. Separate premiums were assessed for each of the two
coverages.
The uninsured motorist coverage provided a setoff provision coordinating the two
coverages which stated:
If an insured person has valid and collectible automobile medical payments insurance
available to him, the damages which he shall be entitled to recover from the owner or
operator of an uninsured motor vehicle shall be reduced for purposes of uninsured
motorist coverage by the amounts paid or due to be paid under such automobile
medical payments insurance.
1

Ellison was injured in an accident with an uninsured motorist and incurred medical
expenses. CSAA paid the medical expenses under the medical payments portion of the
policy. The uninsured motorist claim subsequently went to arbitration and the arbitrator
awarded Ellison $10,617.96.
__________

1
A similar clause was included in the medical payments provision of the policy. It provided:
Any amount paid or payable for medical expenses under the Liability or Uninsured Motorist coverages of
this policy shall be deducted from the amount payable under this part.
motorist claim subsequently went to arbitration and the arbitrator awarded Ellison
$10,617.96. This award included $7,000 for pain and suffering and $3,617.96 for medical
expenses. CSAA paid the pain and suffering award but, asserting the medical payments setoff
provision in the policy, refused to pay the amount awarded for the medical expenses. It
claimed that under the setoff provision Ellison was entitled to only one payment of medical
expenses which CSAA had already paid.
Ellison filed suit to recover the remainder of the arbitrator's award and the district curt
granted CSAA's motion for summary judgment. This appeal followed.
Discussion
The issue before us involves the interpretation of the medical payments setoff clauses in
the parties' insurance contract. We conclude that CSAA was entitled to an offset under the
terms of the policy and therefore reject Ellison's contrary position.
[Headnote 1]
Nevada's summary judgment standards are well settled. Summary judgment is appropriate
only when the movant is entitled to judgment as a matter of law. Sawyer v. Sugarless Shops,
106 Nev. 265, 792 P.2d 14 (1990). However, issues of contractual construction, in the
absence of ambiguity or other factual complexities, present questions of law for the courts
and are suitable for determination by summary judgment. See Phillips v. Parker, 106 Nev.
415, 794 P.2d 716 (1990); Continental Ins. v. Page Engineering Co., 783 P.2d 641, 651
(Wyo. 1989).
[Headnotes 2, 3]
It has long been the policy in Nevada that absent some countervailing reason, contracts
will be construed from the written language and enforced as written. Cf. Southern Trust Mort.
Co. v. K & B Door Co., 104 Nev. 564, 568, 763 P.2d 353, 355 (1988) (where document is
clear on its face, the court will construe it according to its language). The parties' contract
unambiguously provides for only one payment of medical expenses if there is overlapping
coverage and such expenses result from an accident with an uninsured motorist.
Moreover, we have addressed this matter and rejected a double recovery in both, Sullivan
v. Dairyland Insurance Co., 98 Nev. 364, 649 P.2d 1357 (1982), and Mid-Century Ins. Co. v.
Daniel, 101 Nev. 433, 705 P.2d 156 (1985). In our view, the reasonably clear language of the
two setoff clauses, combined with our decisions in Mid-Century and Sullivan, are dispositive.
In Sullivan, an insured's passenger sustained physical injuries that were far in excess of the
driver's liability coverage. The passenger sought to collect both the liability and the
medical payments coverage from the insurer.
passenger sought to collect both the liability and the medical payments coverage from the
insurer. The defendant insurer relied on a setoff clause, similar to the clauses here, that
allowed it to deduct medical expenses from the uninsured motorist insurance payment.
Sullivan, 98 Nev. at 365, 649 P.2d at 1358. We determined that the passenger could recover
under both coverages despite the setoff clause because . . . the setoff clause only operates to
prevent double recovery for the same elements of damage. . . . Sullivan, 98 Nev. at 365, 649
P.2d at 1358. We concluded that although the offset limitation was in keeping with the
reasonable expectations of the insured, it was inapplicable when the damages exceeded the
coverage limits.
[Headnote 4]
The discussion in Sullivan is controlling and necessarily requires a different result in this
case. Because Ellison's medical expenses did not exceed the medical payment limits of the
policy and there was full payment of such expenses, there can be no further recovery,
especially in the face of the challenged offset provision prohibiting such duplicate payments.
A recovery in excess of one hundred percent of damages is a windfall which this court will
not countenance absent a clear agreement providing for such coverage.
Our decision in Mid-Century also proscribes double recovery. In Mid-Century, the insured
objected to the setoff of her liability benefits against her underinsured benefits. Mid-Century,
101 Nev. at 437, 705 P.2d at 159. We noted the distinction between setoff and prevention of
double recovery while observing that we have consistently denied enforceability to
anti-stacking provisions when separate coverage has been purchased for the same risk.
Mid-Century, 101 Nev. at 437, 705 P.2d at 159. We concluded our discussion of this issue by
stating:
We have never permitted the stacking of multiple policies, however, to allow an
insured a double recovery for the same loss. Because Daniel has received or been
awarded compensation to the full extent of her injuries, we conclude that Daniel is not
entitled to an additional $10,000.00 in underinsured motorist benefits. To hold
otherwise would allow Daniel a double recovery for the same item of damages.
Id. at 437-438, 705 P.2d at 159.
The language of the insurance contract precludes the conclusion that separate coverage
was purchased to provide double recovery for the same elements of damage. Additionally, we
perceive no statutory or public reason why such a crediting or setoff provision should not be
enforced.
Ellison's attempts to distinguish and limit Mid-Century and Sullivan through application of
Maxwell v. Allstate Ins. Co., 102 Nev. 502, 728 P.2d 812 (1986), are unavailing. Ellison's
claim is that the setoff clause is essentially an invalid subrogation of medical payments. We
disagree.
In Maxwell, we prohibited an insurer from subrogating medical payments of its insured as
a matter of public policy. There, we were concerned about the injured party receiving
something less than full recovery. Inasmuch as Ellison received a full and total recovery,
Maxwell and its public policy concerns are inapplicable.
[Headnote 5]
Although a few courts have been more receptive to the result Ellison urges,
2
we do not
find these cases or their reasoning persuasive nor do they overcome the language of the
parties' insurance contract or our previous statements on the subject. We conclude that the
better rule is enunciated by those courts which have upheld such setoff provisions and refused
double recovery.
3

The summary judgment entered below is affirmed.
__________

2
Kuda v. American Family Mut. Ins. Co., 790 S.W.2d 464 (Mo. 1990); Bertolami v. Merchants Mut. Ins.
Co., 414 A.2d 1281 (N.H. 1980).

3
Alabama Farm Bureau Mut. Cas. Ins. Co. v. Humphrey, 308 So.2d 255 (Ala.Civ.App. 1975); L'Manian v.
American Motorists Ins. Co., 236 A.2d 349 (Conn. 1967); Amaradio v. Travelers Ins. Co., 419 A.2d 159 (Pa.
Super.Ct. 1980), appeal dismissed, 424 A.2d 868 (Pa. 1981).
____________
106 Nev. 606, 606 (1990) Mallin v. Farmers Insurance Exchange
JENNIFER B. MALLIN, INDIVIDUALLY, AND JENNIFER B. MALLIN AND ROBERTA
GRILL, AS THE GUARDIANS OF JESSICA B. MALLIN, AND JENNIFER B.
MALLIN AS SPECIAL ADMINISTRATRIX OF THE ESTATE OF VIRGINIA
MALLIN EGYED, DECEASED; EDITH EGYED, EXECUTRIX OF THE ESTATE
OF ALEX EGYED, aka ALEXANDER EGYED, DECEASED; JEANNE DI FIORE
COSGROVE; JOHN DI FIORE II; JARED E. SHAFER, EXECUTOR OF THE
ESTATE OF ELIZABETH BARTON DI FIORE, aka BETTY DI FIORE,
DECEASED; MILES LEVY; ELISE KAGASOFF; and JARED SHAFER,
ADMINISTRATOR OF THE ESTATE OF JACK LEVY, DECEASED, Appellants,
v. FARMERS INSURANCE EXCHANGE, A CALIFORNIA CORPORATION,
Respondent.
No. 20903
September 19, 1990 797 P.2d 978
Motions to dismiss. Eighth Judicial District Court, Clark County; Earle W. White, Jr.,
Judge.
Wrongful death action was brought against insured's estate. The first insurer filed a
declaratory judgment action against the wrongful death plaintiffs, seeking a declaration of
noncoverage. Insured's estate subsequently filed action against second insurer, seeking a
declaration of coverage. The district court granted first insurer's motion for partial summary
judgment based on the household exclusion clause of its policy, subsequently granted
plaintiffs' motion to consolidate the two coverage actions for all purposes, and subsequently
granted first insurer's motion for summary judgment based on the intentional acts exclusion
clause of his policy. The court certified the judgment with respect to the first insurer as final.
Plaintiffs appealed, but then moved to dismiss their appeal. The Supreme Court held that: (1)
an order which resolves less than all of the claims in a consolidated action is not appealable
as a final judgment absent certification from the district court; (2) the court was not required
to make findings of fact in regard to specific factors in order to determine whether there was
no just reason for delay; and (3) certification was proper.
Motions denied.
Rogers, Moore & Mahone, Las Vegas, for Appellant Jennifer Mallin.
Appellants Mallin.
Morse & Mowbray, Las Vegas, for Appellant Egyed.
Gordon & Silver, Las Vegas, for Appellant DiFiore, etc.
Thorndal, Backus, Maupin & Armstrong, Las Vegas, for Respondent.
When cases are consolidated by district court, they become one case for all appellate purposes; thus, order which resolves less than
all of claims in consolidated action is not appealable as final judgment absent certification from district court. NRCP 54(b).
Under rule allowing trial court to certify as final a judgment adjudicating one or more but less than all of claims, court is required
only to make an express determination there is no just reason for delay and an express direction for the entry of judgment; there is
not additional requirement that court state factors supporting its decision that there was no just reason for delay. NRCP 54(b).
In parties cases, i.e., cases in which certification to appeal is based on complete removal of party from action in district court,
fact that decision by appellate court will affect decision below cannot be deciding issue in determining whether to grant certification.
NRCP 54(b).
When district court is asked to certify judgment based on elimination of party, it should first consider prejudice to that party in
being forced to wait to bring its appeal, and should then consider prejudice to parties remaining below if judgment is certified as final;
district court should weigh prejudice to various parties and should certify judgment as final in parties case, i.e., case in which
certification is based on complete removal of party from action in district court, if prejudice to eliminated party would be greater than
prejudice to parties remaining below. NRCP 54(b).
Certification of judgment as final based on elimination of party will be presumed valid and will be upheld by Supreme Court
absent gross abuse of discretion. NRCP 54(b).
6. Declaratory Judgment.
Where first insurer's declaratory judgment action against parties who sued insured's estate was consolidated with insured's estate's
declaratory judgment action against second insurer, court properly certified summary judgment for first insurer as final for purposes of
appeal; two cases were originally completely separate and parties who sued first insurer failed to demonstrate that by deciding appeal,
court would decide issues pending below. NRCP 54(b).
OPINION
Per Curiam:
This is an appeal from an order of the district court granting summary judgment.
summary judgment. Appellants have moved to dismiss on the ground that the district court
improperly certified the judgment as final pursuant to NRCP 54(b).
On September 23, 1984, Alex Egyed killed his wife Virginia Mallin Egyed, Elizabeth
Barton Di Fiore, Jack Levy, and himself. The estates and heirs of the three victims brought
separate wrongful death actions against the estate of Alex Egyed. Two insurance policies
potentially covered Egyed: a homeowner's policy from Farmers Insurance Exchange
(Farmers) and an excess policy from Insurance Company of North America (INA). Both
policies contain clauses which exclude coverage for intentional acts committed by the
insured.
Farmers defended the estate of Alex Egyed under a reservation of rights to deny coverage.
On January 28, 1986, Farmers brought a declaratory relief action against appellants, seeking a
declaration of non-coverage pursuant to the intentional acts and household exclusions under
its policy. On November 10, 1986, the estate of Alex Egyed filed an action against INA
seeking a declaration of coverage and damages for failure to provide a defense. The wrongful
death actions, the Farmers action for declaratory relief and the estate's action against INA
were pending simultaneously in different departments of the Eighth Judicial District Court.
On August 18, 1988, the district court granted Farmers' motion for partial summary
judgment based on the household exclusion clause of its policy. The district then granted
appellants' motion to consolidate the two coverage actions for all purposes. On November 9,
1989, the district court granted Farmers' motion for summary judgment based on the
intentional acts exclusion clause of its policy. The district court later entered a judgment
confirming its order which included an NRCP 54(b) certification. Appellants did not contest
the certification in the lower court but filed notices of appeal between January 30, 1990, and
February 2, 1990. Appellants have now moved to dismiss their own appeals, claiming that the
NRCP 54(b) certification was improper. The district court granted INA's motion for a stay of
the proceedings below pending this appeal.
[Headnote 1]
Although the parties have not raised the issue, we note that we have not yet determined
whether an order of the district court disposing of one of two consolidated cases is a final,
appealable judgment absent NRCP 54(b) certification.
1
If such an order is appealable
without certification, appellants' motion to dismiss must be denied.
__________

1
NRCP 54(b) provides:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim,
cross-claim, or third-party claim, or
appealable without certification, appellants' motion to dismiss must be denied. As the Ninth
Circuit stated, however, [a]n appeal prior to the conclusion of the entire action could well
frustrate the purpose for which the cases were originally consolidated. Not only could it
complicate matters in the district court but it could also cause unnecessary duplication of
efforts in the appellate court. Huene v. United States, 743 F.2d 703, 704 (9th Cir. 1984); see
also Trinity Broadcasting Corp. v. Eller, 827 F.2d 673 (10th Cir. 1987), cert. denied, 487
U.S. 1223 (1988); State v. District Court of Second Judicial Dist., 387 P.2d 550 (Wyo. 1963).
The district court is clearly in the best position to determine whether allowing an appeal
would frustrate the purpose for which the cases were consolidated. We hold, therefore, when
cases are consolidated by the district court, they become one case for all appellate purposes.
Thus, an order which resolves less than all of the claims in a consolidated action is not
appealable as a final judgment absent NRCP 54(b) certification from the district court.
[Headnote 2]
In their motions to dismiss, appellants first contend that the district court's determination
that there was no just reason for delaying the appeal from the Farmers judgment was
insufficient. Appellants argue that the district court should be required to make findings of
fact in regard to specific factors in order to determine whether there is just reason for delay.
See Jackson v. Burlington Northern, Inc., 652 P.2d 223 (Mont. 1982); Roy v. Neibauer, 610
P.2d 1185 (Mont. 1980); Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360
(3rd Cir. 1975); Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 275 (2nd
Cir. 1986). Because the district court failed to state any factors supporting its decision that
there was no just reason for delay in certifying the Farmers judgment as final, appellants urge
this court to strike the certification.
Under NRCP 54(b), the district court is required only to make "an express determination
that there is no just reason for delay" and "an express direction for the entry of
judgment."
__________
when multiple parties are involved, the court may direct the entry of a final judgment as to one or more
but fewer than all of the claims or parties only upon an express determination that there is no just reason
for delay and upon an express direction for the entry of judgment. In the absence of such determination
and direction, any order or other form of decision, however designated, which adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any
of the claims or parties, and the order or other form of decision is subject to revision at any time before
the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
an express determination that there is no just reason for delay and an express direction for
the entry of judgment. The district court met those requirements and we are unconvinced
that we should adopt any further requirements.
[Headnote 3]
Although NRCP 54(b) clearly contemplates certification of a judgment resolving a claim
or removing a party, previous decisions of this court have addressed the meaning of no just
reason for delay only in claims cases, i.e., cases in which certification is based on the
resolution of fewer than all the claims in a case. See, e.g., Hallicrafters Co. v. Moore, 102
Nev. 526, 728 P.2d 441 (1986); Mid-Century Ins. Co. v. Cherubini, 95 Nev. 293, 593 P.2d
1068 (1979); Las Vegas Hacienda v. G.L.M.M. Corp., 93 Nev. 177, 561 P.2d 1334 (1977). In
both Las Vegas Hacienda and Mid-Century, this court addressed the issue of what constitutes
a separate claim of relief for purposes of certification pursuant to NRCP 54(b). These cases
are of no assistance in determining the propriety of certification in the instant case, because
there is no doubt that the Farmers action for declaratory relief constituted a separate claim.
Indeed, it actually began as an independent case.
In Hallicrafters, this court stated:
If the claims asserted in an action, albeit separate, are so closely related that this
court must necessarily decide important issues pending below in order to decide the
issues appealed, there can be no finding that there is no just reason for delay, and
certification of an order deciding some but not all of those claims as final is an abuse of
the district court's discretion. [Citations omitted.]
Hallicrafters Co. v. Moore, 102 Nev. at 528 (emphasis added). Unlike our holdings in Las
Vegas Hacienda and Mid-Century Ins., this standard may have some application in
determining the propriety of an NRCP 54(b) certification in parties cases, i.e., cases in
which certification is based on the complete removal of a party from the action in the district
court. Citing Hallicrafters, appellants contend that the district court erred in determining that
there was no just reason for delay because by deciding this appeal, this court will decide
issues pending below and thereby establish the law of the case. The fact that a decision by
this court may affect the case pending below, however, does not necessarily preclude a
finding by the district court that there is no just reason to delay the appeal from the judgment
in favor of Farmers. In parties cases such as this, the fact that a decision by this court will
affect the decision below cannot be the deciding issue. When a party has been eliminated
from the action, a different balance of factors must be considered.
a party has been eliminated from the action, a different balance of factors must be considered.
[Headnotes 4, 5]
When a district court is asked to certify a judgment based on the elimination of a party, it
should first consider the prejudice to that party in being forced to wait to bring its appeal.
Second, the district court should consider the prejudice to the parties remaining below if the
judgment is certified as final. The standard from Hallicrafters quoted above should be part of
this analysis. The district court should weigh the prejudice to the various parties and should
certify a judgment as final in a parties case if the prejudice to the eliminated party would be
greater than the prejudice to the parties below. Because the district court is in the best
position to consider the above factors, a certification of finality pursuant to NRCP 54(b)
based on the elimination of a party will be presumed valid and will be upheld by this court
absent a gross abuse of discretion.
[Headnote 6]
In this case, we cannot say that the district court improperly weighed the prejudice to the
parties. The two cases were originally completely separate and appellants fail to demonstrate
that by deciding this appeal, we will decide issues pending below. Accordingly, we deny
appellants' motion to dismiss this appeal.
2

____________
106 Nev. 611, 611 (1990) Robins v. State
CHARLES LAMONT ROBINS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20064
September 19, 1990 798 P.2d 558
Appeal from convictions of first degree murder and child abuse with substantial bodily
harm and the sentence of death for the murder conviction and twenty years in prison for the
child abuse conviction. Eighth Judicial District Court, Clark County; Earle W. White, Jr.,
Judge.
Defendant was convicted in the district court of murder and was sentenced to death. On
appeal, the Supreme Court held that: (1) evidence was sufficient to support conviction, and
(2) evidence of defendant's drug sales and gang affiliation were properly admitted during
penalty phase of trial.
__________

2
The Honorable John C. Mowbray and The Honorable Robert E. Rose, Justices, did not participate in the
decision of this appeal.
Cause appearing, we deny INA's motion for leave to file an amicus curiae brief.
Affirmed.
Morgan D. Harris, Public Defender, and Stephen J. Dahl, Deputy Public Defender, Clark
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James Tufteland
and Bradford R. Jerbic, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Any error in admitting evidence of murder defendant's drug involvement was harmless, given overwhelming evidence of guilt.
2. Criminal Law.
Joinder of child abuse charge and first degree murder charge was not abuse of discretion, in that most, if not all, evidence relating
to child abuse charge would have been cross-admissible on murder charge; evidence showed that eleven-month-old victim ultimately
died as result of consistent and worsening abuse of defendant.
3. Criminal Law.
Standard of review for alleged error concerning joinder of claims falls under harmless error analysis.
4. Criminal Law.
Any error in joining child abuse charge with first degree murder charge was harmless absent showing of prejudice; evidence was
cross-admissible.
5. Criminal Law.
Emergency room physician, though not qualified as expert in forensic pathology, could, from his experience as medical doctor,
describe murder victim's injuries and express opinion concerning force required to inflict such injuries.
6. Criminal Law.
Expert witness was qualified to testify that murder victim was battered child; expert had studied children who had been injured
and killed and had published two papers on the subject.
7. Criminal Law.
Any error in admitting expert testimony that murder victim was battered child was harmless, given oral evidence from which jury
could have arrived at same conclusion.
8. Criminal Law.
Murder defendant was not unfairly prejudiced by admission of autopsy photographs showing minor victim; though photographs
were graphic and troubling to human sensibilities, they depicted exactly what expert described and were helpful in assisting jury in
understanding nature and gravity of wounds inflicted upon victim.
9. Infants.
Conviction for child abuse with substantial bodily harm was sufficiently supported by evidence of child's injuries and testimony
that defendant had been observed abusing child.
10. Witnesses.
Murder defendant's attempted impeachment of state witness by delving into unsubstantiated personal matters was properly limited
by court; nothing in record supported defendant's assertion that witness had motive to perjure herself.
11. Criminal Law.
Murder defendant was not prejudiced by trial court's admonishment of defense counsel during cross-examination of state witness;
judge was appropriately controlling flow of trial after defense counsel ignored court's direction to stop asking questions in manner that
confused witness.
12. Homicide.
Evidence of capital murder defendant's drug sales was properly admitted during penalty phase of trial; though he was not charged
for such crimes, testimony was given by percipient witnesses and was relevant to defendant's character. NRS 175.552.
13. Homicide.
Evidence of capital murder defendant's alleged gang affiliation was properly admitted during penalty phase of trial; evidence
provided basis for insight into defendant's character and was harmless in any event, given overwhelming evidence of defendant's
aggravated and inhumane abuse of infant victim. NRS 175.552.
14. Homicide.
Hearsay testimony regarding threatening notes allegedly sent to members of witness' family should have been excluded from
penalty phase of capital murder trial, as being of dubious and tenuous nature; if notes were actually written and sent by defendant,
State could have presented more credible evidence of same. NRS 175.552.
15. Homicide.
Any error in admitting hearsay testimony regarding threats to witness' family members, during penalty phase of capital murder
trial, was harmless given overwhelming evidence of defendant's violent acts against victim.
16. Homicide.
Instruction that murder could be considered aggravated if it involved torture and/or depravity of mind was not unconstitutionally
vague as applied to defendant accused of beating infant victim to death; instruction providing objective standards by which
aggravating circumstance could be found. U.S.C.A. Const. Amends. 5, 14.
OPINION
Per Curiam:
Appellant, Charles Lamont Robins (Robins), raises numerous issues on appeal that he
contends warrant a reversal of his convictions for first degree murder and felony child abuse
with substantial bodily harm. Robins also contests the validity of his death sentence. Our
review of the record persuades us that Robins was fairly tried and sentenced. We therefore
affirm.
The Facts
The evidence adduced at trial demonstrated a pattern of abusive treatment of
eleven-month-old Brittany Smith (Brittany) by Robins, who was living with the child and her
mother, Lovell McDowell. This abusive treatment by Robins ultimately resulted in the
infant's untimely and brutally violent death.
Several witnesses testified concerning Robins' abusive treatment of Brittany. Evidence
indicated that Robins regularly punched and kicked Brittany. He often held his hand over her
mouth and nose until she gasped for breath. On several occasions Robins held Brittany
underwater in the bathtub until she came up gasping for breath. One witness observed an
occasion when Robins caused the infant to turn blue from lack of breath. Robins frequently
shut Brittany in a dark bathroom for several hours at a time. Once he was seen holding the
infant over a second floor railing by her neck and shaking her. Other incidents of abuse by
Robins included putting Brittany on the top shelf of a closet (some six feet above the floor),
closing the door, and letting her fall to the floor. Robins would also force his finger down
Brittany's throat and cause her to gag. One witness testified that Robins frequently repeated
this abuse until the child could no longer gag and ceased crying.
At one point Brittany suffered a broken leg, for which medical treatment was delayed. The
child's fracture was evidence by a painful knot on her leg. Initially, neither Robins nor the
mother sought treatment for the infant; however, after the knot reappeared and became quite
painful, Brittany was taken to the hospital. Radiographs revealed that Brittany's right femur
was fractured and that callus had formed, which meant the fracture was from ten to fourteen
days old. Moreover, an examination of the radiographs also showed the presence of a
previous partially healed fracture that occurred ten to twenty days earlier. Brittany's condition
required her placement in a body cast. A witness recounted seeing Robins swing Brittany by
the cross-bar of her cast (the body cast extended from Brittany's waist down her legs, with a
cross-bar between the legs).
Over a period of time, several reports were received by the Las Vegas Metropolitan Police
Department's (LVMPD) child abuse unit concerning Brittany. However, follow-up
investigations failed to uncover the extent of the abuse in the home and no remedial action
was ever taken. Brittany's mother, Lovell McDowell, was interviewed concerning the child's
broken leg. McDowell falsely explained at the time that the injury was caused by babysitters,
whose whereabouts in California were unknown.
The events leading to Brittany's death occurred in the early morning hours of April 19,
1988. The details of that morning were supplied by several witnesses.
McDowell testified that on the night Brittany died, the child was sleeping and she and
Robins finished eating around 12:30 a.m. Thereafter, she fell asleep but was soon awakened
by sounds of gagging or choking. She hollered to Robins, What's wrong with Brittany? He
responded, nothing wrong. The mother arose and encountered Robins, who was holding
Brittany, in the hallway. She then returned to the room to get Brittany a towel when she heard
Robins hollering. Brittany, come on. Brittany, wake up. Wake up Brittany. McDowell
immediately dialed 911 and thereafter ran into the parking lot of their apartment complex,
screaming that her baby had stopped breathing. An Air Force Sergeant heard the screams and
sought to help the child by performing CPR. The security guard called the LVMPD and
paramedics were also immediately summoned.
The paramedics rushed Brittany to the hospital where measures were taken to restore
breathing and a heartbeat. The infant could not be revived, however, and was pronounced
dead shortly after her arrival.
A LVMPD officer responding to a call met Robins outside the apartment at approximately
2:30 a.m. Robins was given a Miranda warning, following which he gave the officer a brief
statement recounting the events of the evening. Later a homicide detective with LVMPD was
dispatched to Robins's apartment in reference to an infant's death. A taped statement was
taken from Robins and following an investigation, Robins was arrested for Brittany's murder.
A medical examiner's autopsy investigation revealed a number of injuries, some of which
were substantially more recent than others. The external exam revealed bruises under
Brittany's jaw, bruises on the upper portion of her sternum and a number of bruises on her
back. Additionally, there was a small hemorrhage in the left flank. The internal examination
uncovered a number of injuries. First, there were multiple hemorrhages in the scalp on the left
side and top of the head and there were bilateral subdural hemorrhages. The brain was
swollen (a direct response to injury). Further internal examination of the abdominal and
thoracic cavities revealed additional injuries. There were a number of hemorrhages in the
mesentery (supporting connective tissue) of the intestines. Additionally, there was substantial
internal scarring on the left side below the kidney. The scar tissue encased the ureter, and
extended from the kidney down to the large intestine.
Dr. Hollander's microscopic examination of the scar tissue revealed numerous injuries.
There were fresh hemorrhages, granulation tissue (the body's first reaction to injury in the
healing process), and fibrous (scar) tissue which takes approximately six weeks from the
initial injury to form. The medical examiner noted that Brittany's right femur showed signs of
having been broken in the past. She had to reference Brittany's medical records to ascertain
the leg had been broken twice and was in the process of healing.
Finally, the autopsy revealed that Brittany had suffered a transverse separation of her
eleventh thoracic vertebra (a broken back). It was the examiner's opinion that this injury was
the result of substantial blunt force trauma that was administered less than twenty-four hours
prior to Brittany's death.
In conclusion, the medical examiner opined that CPR, even if improperly performed, could
not have caused Brittany's injuries. She was of the opinion that Brittany was a battered child
and that death was by homicide.
Robins testified on his own behalf. He admitted doing many of the things testified to by
the State's witnesses. However, he characterized his actions as rough play, to make Brittany
tough. Incredibly, Robins stated that he had no intention of hurting Brittany.
Robins specifically denied ever picking Brittany up by the cross-bar of her body cast. He
also denied putting his finger down Brittany's throat to gag her. He did admit to putting his
fingers in Brittany's mouth in an effort to prevent her from spitting. Robins testified that he
never hit Brittany in the face with his fists with or without jewelry on his hands and denied
the existence of the bathtub incidents.
Robins admitted placing Brittany in the bathroom when she cried and company was
present. His stated reason for doing so was to persuade her to stop crying. Robins also denied
that he had ever picked the child up by her neck as charged by State's witness. He said that he
had picked her up by the arms. Again, he denied any intention of hurting the baby in any of
these actions.
Robins also placed a benign connotation on Brittany's experience on the closet shelf. He
stated that in an effort to teach Brittany not to crawl off the bed, he put her on the bottom
shelf of the closet and allowed her to fall off that shelf. The shelf, according to Robins, was
three and one-half inches above the floor. He denied ever placing Brittany on a closet shelf
six feet above the floor.
Concerning the events on the night Brittany died, Robins testified in detail. He stated that
he and McDowell had been engaged in a "romantic encounter," after which they fell
asleep.
engaged in a romantic encounter, after which they fell asleep. Robins said he woke up and
that following a telephone call, he and McDowell ordered pizza. Robins also stated that
McDowell did not go to sleep after eating pizza, as she had testified. Robins said he told
McDowell he was going to wake Brittany in order to check on her because she had been
congested with a cold and had occasionally vomited.
After Brittany was awake, Robins said he played with her for a few minutes. McDowell
called out, telling Robins not to be too long with Brittany. Eventually, Robins kissed Brittany
and got up to leave when he heard Brittany cough twice and saw her start to spit up. He said
Brittany was breathing rapidly and that he froze, waiting for her to snap out of it. According
to Robins, Brittany just stopped breathing. Robins testified that at that point he panicked. He
said he yelled, Brittany, wake up. Brittany, wake up. In an effort to awaken her, Robins
threw water in her face and she was still unresponsive. At that point he laid her back down
and tried to apply CPR.
Robins spoke freely with the police and stated that he told them to the best of his
knowledge what had occurred. Robins said he loved Brittany like a daughter, and while
admitting to rough play, he denied any intention to hurt or kill Brittany. He admitted to being
the last person to see Brittany conscious.
Five days following the return of guilty verdicts by the jury, the penalty hearing
commenced. The State called several witnesses who described Robins as an extremely violent
man. In particular, Robins had severely beaten a young man who was involved in Robins'
drug sales. Robins had made numerous statements to friends and associates that he would kill
a police officer. Finally, there was evidence that Robins had threatened to bomb the
apartment where McDowell, Brittany and another of McDowell's boyfriends were living. His
stated purpose was to kill everyone in the apartment. The police were called and the situation
was peacefully resolved.
McDowell concluded her testimony during the penalty phase by relating, over defense
counsel's objection, that her brother and uncle had received threatening notes while while she
was in jail. Robins was also in jail when the notes were delivered.
Additionally, there was evidence indicating Robins was substantially involved in the sale
of rock cocaine. Evidence of one of Robins' arrests for the sale of cocaine was introduced.
Robins objected to this testimony because charges were never filed. There was also some
testimony tending to connect Robins with gangs.
In his defense, Robins called several witnesses. Generally, the tenor of the testimony
concerned not seeing Robins abuse either Brittany or other children he had been around, his
general nature and non-violent personality.
Brittany or other children he had been around, his general nature and non-violent personality.
Discussion
Robins raises nine issues on appeal. Initially, Robins argues that the trial court erred in
failing to grant a requested motion for mistrial. The basis for Robins' contention is testimony
from Officer Sandra Durgin during cross-examination referencing a possibility of Robins
being involved with drugs.
1

Prior to trial, an uncontested motion in limine was granted restricting the prosecution from
bringing into evidence any of Robins' alleged drug involvement. The State had specifically
agreed to instruct its witnesses against mentioning anything pertaining to Robins' drug
involvement during their testimony.
[Headnote 1]
Robins' contention lacks merit, and error, if any, is harmless. This court has held in similar
cases that where there is overwhelming evidence of guilt, such an error is harmless.
Pasgove v. State, 98 Nev. 434, 436, 651 P.2d 100, 101-2 (1982); Hendee v. State, 92 Nev.
669, 670, 557 P.2d 275, 276 (1976). The evidence produced by the State against Robins in
the instant case was indeed overwhelming. Additionally, we have held:
In respect of the guilt phase of appellant's trial, the applicable standard of review
requires appellant to prove that the inadvertent statement was so prejudicial as to be
unsuscepible to neutralizing by an admonition to the jury.
Allen v. State, 99 Nev. 485, 490, 665 P.2d 238, 241 (1983). Moreover, despite ruling that
defense counsel's question opened the door to Officer Durgin's candid response, the trial court
ordered the testimony stricken and admonished the jury to disregard what it had heard.
Robins has failed to show that Officer Durgin's statement was prejudicial beyond
neutralization by the court's admonition to the jury.
__________

1
On cross-examination by defense counsel, the following exchange took place:
Q You went out on the 2nd of February to the Gold Dust Apartment; is that correct?
A Yes.
Q I believe that you had a conversation with the manager of the apartments and another person; is
that correct?
A Yes, sir.
Q And what was the purpose of engaging in those conversations?
A I had information that the gentlemen living with Lovell McDowell was carrying the moniker of
Crazy, that he was possibly a drug dealer.
court's admonition to the jury. The trial court did not err in refusing Robin's request for a
mistrial.
[Headnote 2]
Robins argues that he was unfairly prejudiced by the joinder of the child abuse charge and
the first degree murder charge. This issue also lacks merit. It is the established rule in Nevada
that joinder decisions are within the sound discretion of the trial court and will not be
reversed absent an abuse of discretion. Lovell v. State, 92 Nev. 128, 132, 546 P.2d 1301,
1303 (1976).
Additionally, we recently held in Mitchell v. State, 105 Nev. 735, 782 P.2d 1340, that
if . . . evidence of one charge would be cross-admissible in evidence at a separate trial on
another charge, then both charges may be tried together and need not be severed. Id. at 738,
782 P.2d at 1342. In the instant case, it appears that most, if not all, of the evidence relating to
the child abuse charge would have been cross-admissible on the murder charge.
A careful review of the record shows that Robins consistently tormented and abused the
eleven-month-old victim. Robins began living with the child and her mother in January 1988,
and only three and one-half months later, Brittany's short life ended. The evidence presented
by the State showed a pattern of unrelenting violence by Robins against the helpless infant.
There was no single incident of abuse that appears to stand out as the sole basis for a
conviction of the child abuse charge; and it appears from the record that a number of abusive
actions preceded the accelerated acts of violence leading to Brittany's demise. Robins' history
in progressively increasing the torture and abuse inflicted on his tiny victim was essential to a
complete understanding of both crimes for which he was convicted.
[Headnotes 3, 4]
Finally, the standard of review for alleged error concerning joinder of claims falls under
the harmless error analysis. Mitchell, 782 P.2d at 1342-43. Therefore, error arising from
misjoinder will be reversed only if the error has a substantial and injurious effect or
influence in determining the jury's verdict. Mitchell, 782 P.2d at 1343 (quoting United States
v. Lane, 474 U.S. 438, 450 (1985)).
Under a harmless error analysis, the jury's verdict suffered neither substantial nor injurious
effects or influence as a result of the joinder. Moreover, we perceive no abuse of discretion by
the trial court in joining the charges; the evidence was cross-admissible, and in any event,
Robins has failed to demonstrate prejudice requisite for reversal based upon improper joinder.
Robins also contends that he was unfairly prejudiced by objectionable expert testimony.
We disagree. Dr. Frumkin, who treated Brittany in the hospital emergency room the night of
her death, was qualified as an expert in emergency medicine. However, over defense
counsel's objection, Dr. Frumkin was permitted to view autopsy photographs and testify
concerning the injuries depicted. During the course of his testimony, Dr. Frumkin stated that
he did not feel qualified as a forensic pathologist to specify with any certainty the age of the
bruises depicted on certain photographs. Concerning the autopsy photograph depicting
Brittany's severed spine, Dr. Frumkin stated that he had never seen an injury like that in a
living person, but in his opinion, it would involve considerable force, more than would be
performed certainly within the course of cardiopulmonary resuscitation. Dr. Frumkin further
opined that the force would involve a rather severe bending type of force with some
angulation of the spine.
Next, Dr. Hollander expressed her expert opinion that Brittany was a battered child.
Robins objected to this testimony because Dr. Hollander's expertise stemmed only from
studies of injured children and children who had been killed, and the experience acquired
from publishing two papers on the subject. Robins complained that Dr. Hollander's
experience was insufficient to qualify her to render such an opinion.
We have held that the threshold test for the admissibility of expert testimony is:
[W]hether the expert's specialized knowledge will assist the trier of fact to understand
the evidence or determine a fact in issue. The goal, of course, is to provide the trier of
fact a resource for ascertaining truth in relevant areas outside the ken of ordinary laity.
Moreover, expert testimony must also withstand the challenge to all relevant evidence,
i.e., whether probative value exceeds prejudicial effect. NRS 48.035(1).
Townsend v. State, 103 Nev. 113, 117-18, 734 P.2d 705, 708 (1987). Additionally, any error
in determining admissibility is evaluated under the harmless error standard. Id. at 118, 734
P.2d at 708.
[Headnote 5]
Although Dr. Frumkin was not qualified as an expert in forensic pathology, he could, from
his experience as a medical doctor, describe the injuries depicted in the photographs and
express an opinion concerning the force required to inflict such injuries. Moreover, Dr.
Frumkin's opinion concerning the force necessary to sever the child's spine was supported
by Dr.
to sever the child's spine was supported by Dr. Hollander, a qualified expert, who stated with
certainty that Brittany's broken back was the result of substantial blunt force trauma.
Robins suffered no prejudice from the testimony he viewed as objectionable by Dr. Frumkin.
[Headnote 6]
Finally, there was no error in admitting Dr. Hollander's opinion that Brittany was a
battered child. Under the standard announced in Townsend, the admissibility of Dr.
Hollander's testimony characterizing Brittany as a battered child was within the discretion of
the trial court. Dr. Hollander stated she had studied children who had been injured and killed
and had published two papers on the subject. The district court, after weighing these
credentials and evaluating Dr. Hollander's ability to assist the trier of fact in understanding
the evidence and determining issues of fact, allowed the testimony.
[Headnote 7]
Moreover, even without the testimony from Dr. Hollander that Robins finds objectionable,
it appears compellingly certain that the jury would have reached the same conclusion.
Demonstrably, Brittany had suffered a fractured spine and a twice broken right femur for
which medical attention had been delayed for approximately three weeks. She sustained
numerous internal injuries over a period of time in addition to external injuries reflected by
the presence of a number of bruises. Percipient witnesses also testified of the brutal physical
abuse inflicted on eleven-month-old Brittany by Robins. The trial court did not err in
admitting the expert testimony of Dr. Hollander and Dr. Frumkin, and even if error had
occurred in admitting the testimony, it would have been harmless beyond a reasonable doubt.
Next, Robins contends that he was unfairly prejudiced by the entry into evidence of
autopsy photographs.
2
Robins' challenge to the autopsy photographs is based solely on a
footnote from Sipsas v. State, 102 Nev. 119
__________

2
Robins objects to Exhibits 2, 6, 9, 10 and 11.
Exhibit 2 was described by the forensic pathologist, Dr. Hollander, as a photograph of the back of Brittany
Smith with three incisions which were made there . . . [showing] the hemorrhages under the skin. It also shows
an incision over the mongolian spot showing that there is no hemorrhage there.
Exhibit 6 was described as a photograph
[O]f the left side of the head of Brittany Smith. After the scalp was pulled over off the bone and shows
the hemorrhages that are present, it shows multiple small hemorrhages under the scalp itself and three
major areas of hemorrhage in the top, front and back of the head.
Dr. Hollander described Exhibit 9 as
[T]he surface of the brain. You can also see in this photograph a flattening of the surface of the brain, that
is the convolutions which
Robins' challenge to the autopsy photographs is based solely on a footnote from Sipsas v.
State, 102 Nev. 119, 716 P.2d 231 (1986), which stated in pertinent part:
No jury could be free from thoughts of compassion and sympathy after viewing an
8 x 10 color photograph of an eviscerated child. A photograph lends dimension to
otherwise non-dimensional testimonial evidence. That an erroneous admission of a
photograph would cause undue prejudice is certain. The extent of that prejudice is
immeasureable.
Id. at 124, n.6, 716 P.2d at 234.
Robins' reliance on Sipsas is misplaced. There, the State's witness testified that the
objectionable photograph might aid his explanation of the autopsy findings, and the trial
judge specifically made a factual finding that the photograph was too prejudicial. The
photograph was later improperly admitted during the defense's case. This court determined
that the lower court in Sipsas abused its discretion by admitting the photograph which had
previously been excluded as prejudicial.
On appeal, we review allegations of error concerning the admissibility of autopsy
photographs under an abuse of discretion standard. Ybarra v. State, 100 Nev. 167, 172, 679
P.2d 797, 800 (1984). Absent an abuse of discretion by the trial court, the decision will not be
overturned on appeal. Turpen v. State, 94 Nev. 576, 577, 583 P.2d 1083, 1084 (1978).
In the instant case, following an objection by counsel, the trial court reviewed the
photographs and held:
[I]t appears to the court that based on the nature of the testimony the pictures are not
unduly repetitious and I think they are illustrative of the testimony and for that
reason I believe they are probative, they will assist the jury in understanding the
doctor's testimony.
__________
make up the surface of the brain appear as if it were stuffed into a plastic bag and flattened.
. . . .
[T]he portion of the skull that has been removed and dura which is the membrane which is between the
skull and the brain. Here it is shown to be in the lower portion of the picture and it is adhering to that part
of the skull that was removed. It contains dark brown, reddish brown material which is blood and that is
also present as can be seen over the surface of the brain.
Exhibit 10 is
[T]he inside of the body of Brittany Smith after the internal organs were removed and it shows the inside
of the spine and its shows the transverse tear that I was talking about, the eleventh thoracic vertebrae
which is the lower spine, and shows very clearly a dark red to brown line across where the tear or fracture
is.
Exhibit 11 was described as one of the hemorrhages in the left flank with an incision I made over it to show
the hemorrhage underneath which is the accumulation of blood where it is not supposed to be.
they are illustrative of the testimony and for that reason I believe they are probative,
they will assist the jury in understanding the doctor's testimony.
[Headnote 8]
We have reviewed the challenged photographs and although they are indeed graphic and
troubling to human sensibility, they were not prejudicial. The photographs depicted exactly
what Dr. Hollander described and were undoubtedly helpful in assisting the jury to
understand the nature and gravity of the wounds inflicted upon Brittany by Robins. The trial
court did not abuse its discretion; the photographs were properly admitted into evidence.
Robins also charges that the evidence was insufficient as a matter of law to sustain his
conviction for child abuse with substantial bodily harm. This contention is without merit.
[Headnote 9]
Our review of the record reveals sufficient evidence to support the jury's determination
that Robins was guilty of child abuse with substantial bodily harm. Although it may be true
that Robins was not present immediately prior to Brittany's treatment for her fractured leg, it
was shown by substantial evidence that the infant's leg had been injured by as much as two or
three weeks before she was treated. Additionally, the autopsy revealed internal injuries
ranging in age from very recent, through various stages of healing, to the formation of scar
tissue, which takes approximately six weeks. Further, witnesses testified to observing Robins
kick Brittany, put her on a high closet shelf and allow her to fall, pull her arms and legs
behind her back, tie her up, and put her in a cold tub of water and hold her face under until
she was gasping for breath. All of these actions would create a substantial risk of death or
serious bodily injury or, in any event, would certainly cause prolonged physical pain to an
eleven-month-old infant.
3

Robins next argues that the trial court erred by limiting his cross-examination of a State
witness. This argument is also without merit.
[Headnote 10]
Robins sought to impeach a witness by delving into unsubstantiated personal matters. The
asserted basis for this effort was that the witness had a motive to conform her testimony to
that of her incarcerated fiance, who also testified.
__________

3
The jury was instructed that substantial bodily harm means (1) bodily injury which creates a substantial
risk of death, or which causes protracted loss or impairment of the function of any bodily member or organ; or
(2) prolonged physical pain. See NRS 0.060.
the witness had a motive to conform her testimony to that of her incarcerated fiance, who also
testified. The defense theory ascribed to the witness a motive to fabricate in an effort to
secure an early release for her fiance. Nothing in the record supports Robins' assertion that the
witness had a motive to perjure herself or that her testimony could prove efficacious on
behalf of her fiance. The trial court's constraints were proper. The frustrated
cross-examination was founded on speculation and sought merely to elicit testimony that was
unrelated, irrelevant and inadmissible. Finally, any error in the court's ruling was harmless
beyond a reasonable doubt. The State presented overwhelming evidence of Robins' guilt.
[Headnote 11]
Robins also contends that he was prejudiced when the trial court admonished defense
counsel during the cross-examination of State witness Robert Williams. Robins' argument is
unpersuasive. The record reflects confusion on the part of Williams during defense counsel's
interrogation regarding certain prior testimony. Williams was not certain which transcripts
counsel was referring to. The trial court eventually directed counsel to stop referring to the
transcripts and to just ask a question. Rather than try a new approach or move on, defense
counsel persisted in confusing Williams by referring to the transcripts. Finally, the trial court
admonished counsel. In doing so, the trial judge was appropriately controlling the flow of the
trial without prejudice to Robins.
Penalty Phase
Robins alleges that two penalty-phase errors require a reversal of his death sentence. We
disagree.
Robins first contends that the trial court erred in admitting certain derogatory character
evidence. The challenged evidence is: (1) testimony of events associated with his arrest for
the sale of drugs; (2) testimony that Robins was associated with gangs; and (3) testimony
about threatening notes received by Lovell McDowell's uncle and brother. Robins seeks to
support his claim based on our ruling in Allen v. State, 99 Nev. 485, 665 P.2d 238 (1983).
Allen held that character evidence is inadmissible in a penalty hearing if it is dubious or
tenuous or if its probative value is clearly outweighed by the danger of unfair prejudice, of
confusion of the issues or of misleading the jury.' Id. at 488-89, 665 P.2d at 240. As will be
shown hereinafter, Allen is readily distinguished from the instant case.
In Nevada, the statutory prescription for admissible evidence at penalty hearings is set
forth in NRS 175.552. In pertinent part, the statute reads as follows: In the [penalty]
hearing, evidence may be presented concerning aggravating and mitigating
circumstances relative to the offense, defendant or victim and on any other matter which
the court deems relevant to sentence, whether or not the evidence is ordinarily
admissible.
In the [penalty] hearing, evidence may be presented concerning aggravating and
mitigating circumstances relative to the offense, defendant or victim and on any other
matter which the court deems relevant to sentence, whether or not the evidence is
ordinarily admissible.
(Emphasis supplied.) The evidentiary latitude provided by the referenced statute serves to
facilitate the purposes explained by this court in Gallego v. State, 101 Nev. 782, 711 P.2d 856
(1985):
Individuals who are identified as potential recipients of the death penalty because of
conduct statutorily defined as an aggravating circumstance must then be scrutinized
according to their individual characteristics. This process is facilitated by consideration
of mitigating circumstances and other reliable factors relevant to the life of the
defendant as a whole person. Only then may a sentencing authority render an informed
judgment based upon the crime and the defendant who committed it.
If the death penalty option survives the balancing of aggravating and mitigating
circumstances, Nevada law permits consideration by the sentencing panel of other
evidence relevant to sentence. NRS 175.552. Whether such additional evidence will be
admitted is a determination reposited in the sound discretion of the trial judge.
Id. at 791, 711 P.2d at 862-63 (emphasis added). Here, we are called upon to determine
whether the challenged character evidence is dubious or tenuous and whether its probative
value is outweighed by its prejudicial effect.
A. Evidence of Drug Sales
[Headnote 12]
At the penalty phase, testimony was adduced concerning Robins' alleged involvement in
sales of rock cocaine. Robins stresses that any probative value in the testimony was far
outweighed by its prejudicial effect on the jury's penalty assessment. Also emphasizing the
fact that he was never charged for such crimes, Robins urges us to reject evidence of
uncharged crimes in the penalty phase as we do in the guilt phase of trial. Berner v. State, 104
Nev. 695, 765 P.2d 1144 (1988). We reject both contentions.
This court has held that evidence of uncharged crimes may be admitted during the penalty
hearing once any aggravating circumstances have been established beyond a reasonable
doubt. Crump v. State, 102 Nev. 158, 161, 716 P.2d 1387, 1388 (1986); Gallego, 101 Nev. at
791, 711 P.2d at S63. See also Barclay v. Florida, 463 U.S. 939 {19S3).
Gallego, 101 Nev. at 791, 711 P.2d at 863. See also Barclay v. Florida, 463 U.S. 939 (1983).
In Crump, the court allowed testimony by a person who had witnessed the defendant commit
a homicide for which he was not yet charged. We determined that the testimony was neither
dubious, tenuous, nor of questionable probative value. 102 Nev. at 161, 716 P.2d at 1388. In
Gallego we stated that properly qualified evidence of [the uncharged murders] was highly
relevant to meaningful considerations of Gallego's death worthiness. 101 Nev. at 791, 711
P.2d at 863.
The testimony in Gallego and Crump had greater potential for prejudice than the testimony
adduced concerning Robins' involvement in drug sales. Moreover, the testimony here was
given by percipient witnesses. In that regard, this case is unlike Allen, where a jail employee
testified without personal knowledge of defendant's disciplinary problems. The testimony
presented here was clearly relevant to Robins' character, and was appropriately considered by
the jury in assessing his penalty. The trial court did not abuse its discretion in admitting the
evidence of Robins' involvement in the sale of drugs.
B. Evidence of Gang Affiliation
[Headnote 13]
Robins also challenges the admissibility of testimony connecting him with gang activity.
He contends that the evidence was both dubious and tenuous because no testimony was
presented that proved his actual involvement with gangs. Although the evidence was
somewhat tenuous, there was testimony presented both verbally and by demonstration
regarding various gang signs used by Robins. The testimony indicated that the signs given
by Robins had significance only to gang members. Based upon the detailed testimony
presented concerning the use of gang signs by Robins, we are not persuaded that the trial
judge abused his discretion in admitting the testimony.
Moreover, the testimony concerning Robins' use of gang signs was far less prejudicial than
the testimony we condemned in Young v. State, 103 Nev. 233, 737 P.2d 512 (1987). In
Young an expert witness testified concerning gangs in the Los Angeles area in general and
stated that he had seen the defendant in the company of gang members and had been told that
the defendant belonged to a gang. More importantly, the witness testified that the gang
members would do anything, including torture and killing, to exact information about the
hiding place of a victim's valuables. Id. at 237, 737 P.2d at 515. We concluded in Young that
the testimony that the defendant was part of a gang that tortured the victims of its crimes was
both highly dubious hearsay and inflammatory.
and inflammatory. There is little or no similarity between the testimony here and that
presented in Young.
The testimony challenged by Robins, although somewhat less than compelling, did
provide a basis for further insight into his character. On balance, we cannot conclude that its
admission was error. In any event, given the overwhelming evidence of Robins' guilt, and his
aggravated and inhumane abuse of the tiny victim, any error in admitting this testimony is
harmless beyond a reasonable doubt.
C. Testimony of Threatening Notes
[Headnotes 14, 15]
Lastly, Robins contends that McDowell's testimony regarding threatening notes allegedly
sent to members of her family is also of a dubious and tenuous nature. We are inclined to
agree. Although the testimony was adduced to show Robins' violent propensities, it was based
solely on hearsay. McDowell testified that her uncle and brother received the threatening
notes. Neither the uncle nor the brother testified; moreover, the notes themselves were not
admitted into evidence. Under our ruling in Young, the hearsay was probably sufficiently
dubious to warrant its exclusion.
If the notes were, in fact, written and sent by Robins, it would appear that evidence could
have been presented by the State that would have been more credible. Under the
circumstances, the challenged testimony should not have been allowed. We are nevertheless
convinced that the error was harmless beyond a reasonable doubt. The portrait of violence
painted by Robins himself on the body of his eleven-month-old victim caused any attributions
of violence stemming from the testimony concerning the notes to pale in comparison. Viewed
as a whole, Robins' entire trial, including the penalty hearing, reflected due regard for
fundamental fairness.
[Headnote 16]
Finally, Robins challenges the instructions given at his penalty hearing as
unconstitutionally vague.
4
He relies upon Deutscher v. Whitley, 884 F.2d 1152 (9th Cir.
1989), in which the court held that the depravity of mind instruction failed to meet the
requirements of Godfrey v. Georgia, 446 U.S. 420 {19S0).
__________

4
The jury instructions at issue read as follows:
Instruction No. 8:
You are instructed that the following factor is a circumstance by which Murder of the First Degree
may be aggravated:
(1) The murder involved torture and/or depravity of mind.
Instruction No. 9:
Murder which is perpetrated by torture is murder of the first degree.
The essential elements of murder by torture are (1) the act or acts
that the depravity of mind instruction failed to meet the requirements of Godfrey v. Georgia,
446 U.S. 420 (1980). Robins contends that because the instruction was unconstitutionally
vague, he is entitled to a reversal of the murder conviction or, in the alternative, a
modification of his sentence to life without the possibility of parole. Again, we disagree.
Godfrey requires states imposing the death penalty to:
channel the sentencer's discretion by clear and objective standards that provide
specific and detailed guidance, and that make rationally reviewable the process for
imposing a sentence of death.
Id. at 428. The Supreme Court's concern is the avoidance of death sentences arbitrarily or
capriciously imposed. See Furman v. Georgia, 408 U.S. 238 (1972).
It must first be noted that the statute in Godfrey, which is similar to our statute, was not
determined to be facially unconstitutional. Godfrey, 446 U.S. at 422, citing Gregg v. Georgia,
428 U.S. 153 (1976). The aggravating circumstance at issue in both Godfrey and Gregg
provided:
The offense [enumerated] was outrageously or wantonly vile, horrible or inhuman in
that it involved torture, depravity of mind or an aggravated battery to the victim.
Gregg, 428 U.S. at 165, n.9; Godfrey, 446 U.S. at 422. Prior to Godfrey, the statute had been
constitutionally applied. The Godfrey court cited Georgia's prior applications of the
aggravating circumstance with approval. In those cases, the Georgia Supreme Court had
construed the aggravating circumstance to require depravity of mind and torture or
aggravated battery. Godfrey, 446 U.S. at 430-31.
In Godfrey, however, the state court did not affirm the death sentence under the statute as
written and previously construed.
__________
which caused the death must involve a high degree of probability of death, and (2) the defendant must
commit such act or acts with the intent to cause cruel pain and suffering for the purpose of revenge,
persuasion or for any sadistic purpose.
The crime of murder by torture does not necessarily require any proof that the defendant intended to
kill the deceased nor does it necessarily require any proof that the deceased suffered pain.
Instruction No. 10:
The condition of mind described as depravity of mind is characterized by an inherent deficiency of
moral sense and rectitude. It consists of evil, corrupt and perverted intent which is devoid of regard for
human dignity and which is indifferent to human life. It is a state of mind outrageously, wantonly vile,
horrible or inhuman.
Consequently, the Godfrey court concluded that as applied in that case, the State had adopted
an overly broad and vague construction of the aggravating circumstance. The sentence had
been affirmed based upon no more than a finding that the offense was outrageously or
wantonly vile, horrible or inhuman.' Godfrey, 446 U.S at 428. The court found that as
applied, the aggravating circumstance was unconstitutionally vague because:
There is nothing in these few words, standing alone, that implies any inherent restraint
on the arbitrary and capricious infliction of a death sentence. A person of ordinary
sensibility could fairly characterize almost every murder as outrageously or wantonly
vile, horrible and inhuman.
Godfrey, 446 U.S. at 428-29 (emphasis added).
Godfrey is clearly distinguishable from the instant case. Unlike Godfrey, here the
imposition of the death penalty is not the standardless and unchanneled imposition of death .
. . in the uncontrolled discretion of a basically uninstructed jury. Godfrey, 446 U.S. at 429.
The jury instructions at issue here provide objective standards by which an aggravating
circumstance may be found. Moreover, those objective standards provide a basis for a rational
review by this court of the death sentencing process. As observed by the court in Deutscher,
[t]he torture and mutilation aspects of this circumstance are sufficiently clear and objective
to satisfy the requirements of Godfrey. Deutscher, 884 F.2d at 1162.
The Deutscher court's concern was that the depravity of mind aspect of the aggravating
circumstance was not conducive to the channeling of the jury's discretion as required by
Godfrey. However, the death sentence here is not solely based upon a depravity of mind
aspect as it was in Godfrey. This case also involves the torture of an eleven-month-old baby
under circumstances plainly covered by the instructions to the jury. In Maynard v. Cartwright,
486 U.S. 356 (1988), the court implied that torture or serious physical abuse could be a
limiting and saving construction of an otherwise vague aggravating circumstance. Id. at 365.
Nevada's aggravating circumstance contains such limiting language. Although Instruction
No. 8 specifies torture and depravity of mind in both the disjunctive and conjunctive, we
construe the instruction and the statute (NRS 200.033(8)) upon which it is based as requiring
torture, mutilation or other serious and depraved physical abuse beyond the act of killing
itself, as a qualifying requirement to an aggravating circumstance based in part upon
depravity of mind. In the instant case, the evidence supplied a cogent basis for the jury's
finding of the aggravating circumstance limited in scope by the construction we have
placed thereon.
supplied a cogent basis for the jury's finding of the aggravating circumstance limited in scope
by the construction we have placed thereon. In short, the evidence of record which the jury
heard and had a right to consider, revealed a tragically abundant presence of both torture and
depravity of mind.
It should thus be apparent from our ruling that the depravity of mind aspect of the
referenced statute is not to be viewed as a receptacle for all other homicides that do not fit
within the terms of the aggravating circumstances adopted by our legislature as a basis for
imposing sentences of death. Having concluded that the jury was properly and adequately
instructed so as to apply a focused judgment on Robins' death worthiness, we decline to
interfere with the jury's verdict. As applied to this case, the aggravating circumstance was not
unconstitutionally vague.
Conclusion
In reviewing the overall record, we conclude that Robins' sentence of death was not the
result of passion, prejudice or any arbitrary factor and that the sentence was not excessive,
considering both the crime and the individual characteristics and background of the
defendant. Having determined that Robins was fairly tried, convicted and sentenced, we
affirm in all respects the judgments of conviction and sentences imposed thereon.
Young, C. J. and Steffen, Springer and Rose, JJ., and Whitehead, D. J.,
5
concur.
____________
106 Nev. 630, 630 (1990) Donrey of Nevada v. Bradshaw
DONREY OF NEVADA, INC., AND RENO NEWSPAPERS, Appellants, v. ROBERT
BRADSHAW, RENO POLICE DEPARTMENT, ROBERT L. VAN WAGONER
AND THE CITY OF RENO, Respondents.
No. 20057
September 19, 1990 798 P.2d 144
Appeal from a district court order denying appellants' petition for a writ of mandamus.
Second Judicial District Court, Washoe County; William N. Forman, Judge.
Newspaper filed a petition for writ of mandamus under the statute which provides for
disclosure of public records, seeking disclosure of a police investigative report concerning
the City Attorney's dismissal of charges against a defendant, which dismissal police
opposed.
__________

5
The Honorable Jerry Carr Whitehead, Judge of the Second Judicial District, was designated by the
Governor to sit in the place of The Honorable John Mowbray, Justice. Nev. Const. art. 6, 4.
statute which provides for disclosure of public records, seeking disclosure of a police
investigative report concerning the City Attorney's dismissal of charges against a defendant,
which dismissal police opposed. The district court denied the petition, and newspaper
appealed. The Supreme Court, Young, C. J., held that a balancing of the interests involved
required disclosure of the entire report.
Reversed.
Woodburn, Wedge & Jeppson, and James W. Hardesty, Reno, for Appellants.
Georgeson, McQuaid, Thompson & Angaran, Reno; Patricia Lynch, Reno City Attorney,
and Stephen F. Volek, Deputy City Attorney, Reno, for Respondents.
Records.
Under statute which provides for disclosure of public records, balancing of interests involved required disclosure of police
investigative report on the City Attorney's dismissal of charges against defendant, which dismissal was opposed by police; general
policy is in favor of open government, and there were no privacy or law enforcement policy justifications for nondisclosure, as there
was no pending or anticipated criminal proceeding, there were no confidential sources or investigative techniques to protect, there was
no possibility of denying someone fair trial, and there was no potential jeopardy to law enforcement personnel. NRS 239.010.
OPINION
In March 1986, pursuant to a plea bargain, the Reno City Attorney's office dismissed
charges against Joe Conforte for contributing to the delinquency of a minor. Because the
Reno Police Department opposed the dismissal, it undertook an investigation of the
circumstances of the dismissal and prepared a written report. The report, which concluded
that there was no evidence of criminal wrongdoing (e.g. no bribery of a public official), was
sent to the City Attorney's office, the District Attorney, and a municipal judge. Thereafter,
both the City Attorney's office and the Police Department refused to release a copy of the
report to petitioners Donrey of Nevada, dba KOLO-TV (Donrey), and Reno Newspapers,
Inc., dba Reno Gazette-Journal (Reno Newspapers).
In April 1986, Donrey and Reno Newspapers filed a petition for a writ of mandamus based
on NRS 239.010 which provides for disclosure of public records. In March 1989, the district
court denied the petition, concluding that the report was a police investigative report intended
by the legislature to be confidential under NRS Chapter 179A. The court further concluded
that Chapter 179A did not involve a balancing test to determine whether such reports could
be released if public policy considerations outweighed privacy and/or security interests. The
court also found, following an in camera review, that the report was approximately 85 percent
criminal investigation and 15 percent recommendations on future administrative procedures.
Appellants contend that the district court erred in concluding that the entire report was a
police investigative report and in failing to release at least the 15 percent of the report that the
court found administrative. As discussed below, because we conclude that the entire report
was subject to disclosure based on a balancing of the interests involved, we need not address
this argument.
Appellants principally contend that the investigative report prepared by the Reno Police
Department is a public record subject to disclosure under NRS 239.010 because no statutory
provision declares the contents of this type of report confidential. Pursuant to NRS 239.010,
all public books and public records of . . . government[] . . . officers and offices . . . the
contents of which are not otherwise declared by law to be confidential, shall be open at all
times during office hours to inspection by any person . . . . (Emphasis added.) Specifically,
appellants maintain that the district court erred in concluding that NRS Chapter 179A
declares investigative and intelligence information confidential and not subject to disclosure.
NRS Chapter 179A was enacted in 1979 in response to the federal government's
requirement that states provide an acceptable plan concerning the dissemination of criminal
history records, or be subject to certain budgetary sanctions. See 83 Op. Att'y Gen. No. 3
(May 2, 1983). NRS 179A.100(5) provides that
[r]ecords of criminal history must be disseminated by an agency of criminal justice
upon request, to the following persons or governmental entities:
. . .
(i) Any reporter for the electronic or printed media in his professional capacity for
communication to the public.
. . .
A record of criminal history is defined at NRS 179A.070 and specifically excludes
investigative or intelligence information.1 Although this court has never interpreted the
criminal history records statute, in 19S3 the Attorney General rendered an opinion that
criminal investigative reports were confidential and were not public records subject to
NRS 239.010.
specifically excludes investigative or intelligence information.
1
Although this court has
never interpreted the criminal history records statute, in 1983 the Attorney General rendered
an opinion that criminal investigative reports were confidential and were not public records
subject to NRS 239.010. See 83 Op. Att'y Gen. No. 3, supra.
Appellants maintain that the exclusion of the records listed in NRS 179A.070(2) from the
definition of record of criminal history does not constitute a declaration of their
confidentiality. Accurately observing that other excluded records are clearly not considered
confidential, (e.g., posters of wanted persons, court records of public judicial proceedings),
appellants assert that the Attorney General's opinion that investigative reports are
confidential is inconsistent with the public status of the other records listed in NRS
179A.070{2).
__________

1
NRS 179A.070 provides:
Record of criminal history defined.
1. Record of criminal History means information contained in records collected and maintained by
agencies of criminal justice, the subject of which is a natural person, consisting of descriptions which
identify the subject and notations of arrests, detention, and indictments, informations or other formal
criminal charges and dispositions of charges, including dismissals, acquittals, convictions, sentences,
correctional supervision and release, occurring in Nevada. The term includes only information contained
in memoranda of formal transactions between a person and an agency of criminal justice in this state. The
term is intended to be equivalent to the phrase criminal history record information as used in federal
regulations.
2. Record of criminal history does not include:
(a) Investigative or intelligence information, reports of crime or other information concerning specific
persons collected in the course of the enforcement of criminal laws.
(b) Information concerning juveniles.
(c) Posters, announcements or lists intended to identify fugitives or wanted persons and aid in their
apprehension.
(d) Original records of entry maintained by agencies of criminal justice if the records are
chronological and not cross-indexed in any other way.
(e) Records of application for and issuance, suspension, revocation or renewal of occupational
licenses, including permits to work in the gaming industry.
(f) Court indices and records of public judicial proceedings, court decisions and opinions, and
information disclosed during public judicial proceedings.
(g) Records of traffic violations constituting misdemeanors.
(h) Records of traffic offenses maintained by the department to regulate the issuance, suspension,
revocation or renewal of drivers' or other operators' licenses.
(i) Announcements of actions by the state board of pardons commissioners and the state board of
parole commissioners.
(j) Records which originated in an agency other than an agency of criminal justice in this state.
(Emphasis added.)
Attorney General's opinion that investigative reports are confidential is inconsistent with the
public status of the other records listed in NRS 179A.070(2).
Furthermore, appellants note that while Chapter 179A was patterned after the federal
regulations concerning criminal history records, the Nevada legislature specifically deviated
from the federal regulations when it excluded, along with other records, investigative and
intelligence information from the definition of criminal history records. See NRS
179A.070(2). Under the federal regulations, while the definition of criminal history record
information is qualified not to extend to investigative information, a separate subpart
specifically excludes various other records from the regulations governing disclosure of
criminal history records. See 28 C.F.R. 20.3(b), 20.20(b) and (c), and
AppendixCommentary on 20.3(b) (1989). Unlike the federal regulations, the Nevada
statute lists investigative and intelligence information together with other excluded records in
the same subsection, NRS 179A.070(2), as not included in the definition of record of
criminal history contained in NRS 179A.070(1). Appellants assert that the inescapable
conclusion is that the Nevada legislature intended investigative reports to be subject to
disclosure as are the other records.
Respondents maintain that this overlap does not appear to be intentional and they note
that NRS 179A.070(1) states that [t]he term [record of criminal history] is intended to be
equivalent to the phrase criminal history record information' as used in the federal
regulations. However, we reject respondents' argument that the legislature mistakenly
lumped investigative reports together with other exclusions which are public records
disclosable under NRS 239.010. Rather, we hold that the legislature deviated from the federal
regulations with an intent to clarify that investigative reports are subject to disclosure if
policy considerations so warrant.
Because NRS 179A.070 does not expressly declare criminal investigative reports to be
confidential, we must determine to what extent they are disclosable under NRS 239.010.
While NRS 239.010 mandates unlimited disclosure of all public records, other courts
considering this question have recognized the common law limitations on disclosure of such
records. See, e.g., Carlson v. Pima County, 687 P.2d 1242, 1245 (Ariz. 1984); see also
Records and Recording Laws, 66 Am.Jur.2d 12 (1973).
2
Appellants argue that, under
common law, criminal investigative reports were not confidential unless confidentiality
was made necessary by considerations of public policy and on a case-by-case basis.
__________

2
The dissent argues that if the reports are non-confidential and subject to disclosure under NRS 239.010,
then the reports are to be made available to any person, at all times during office hours, for any advantage and
for copying in full. Stating that this is an untenable conclusion, the dissent
Appellants argue that, under common law, criminal investigative reports were not
confidential unless confidentiality was made necessary by considerations of public policy and
on a case-by-case basis. Appellants note that the Attorney General's 1983 opinion lists a
number of public policy considerations in support of the conclusion that criminal
investigative reports are confidential.
3
In the present case, appellants argue that those same
policy considerations favor disclosure of the report in question. Thus, appellants contend that
the court erred in refusing to apply a balancing test to determine whether the investigative
report should have been released.
Respondents assert that in enacting Chapter 179A, the legislature performed the necessary
balancing between the public's right to know and individuals' rights to privacy and that
consequently no additional judicial balancing is required. However, while the legislature may
have balanced interests in deciding to require the release of criminal history records to the
media, this is not dispositive of whether a court must balance public policy considerations
when release of records other than those specifically defined as criminal history records is
sought.
In support of their contention that the court should have used a balancing test to determine
disclosure, appellants rely on a number of cases from other jurisdictions. See, e.g., Carlson,
687 P.2d at 1245; Irvin v. Macon Telegraph Publishing Co., 316 S.E.2d 449, 452 (Ga. 1984).
Although respondents contend that these cases are inapposite, we hold that a balancing of the
interests involved is necessary regardless of the case law from other jurisdictions.
4
Moreover, in applying a balancing test to this case, none of the public policy considerations
identified in the case law and the Attorney General's opinion as justifying the withholding
of investigative information is present.
__________
asserts that we have rewritten NRS 239.010 with a balancing limitation regarding investigative and intelligence
files. Rather than rewriting the Public Records Act, however, we simply recognize a common law limitation on
the otherwise unlimited provisions of NRS 239.010.

3
The opinion states:
The legitimate public policy interests in maintaining confidentiality of criminal investigation records and
crime reports include the protection of the elements of an investigation of a crime from premature
disclosures, the avoidance of prejudice to the later trial of the defendant from harmful pretrial publicity,
the protection of the privacy of persons who are not arrested from the stigma of being singled out as a
criminal suspect, and the protection of the identity of informants.
83 Op. Att'y Gen. No. 3 (May 2, 1983).

4
The dissent suggests that we should adopt a categorical balancing test similar to that involved in the
federal Freedom of Information Act. 5 U.S.C. 552(b)(7) (1988). Contrary to the dissent's characterization of
our balancing test as ad hoc, however, we do not believe that there is a meaningful
case, none of the public policy considerations identified in the case law and the Attorney
General's opinion as justifying the withholding of investigative information is present. There
is no pending or anticipated criminal proceeding; there are no confidential sources or
investigative techniques to protect; there is no possibility of denying someone a fair trial; and
there is no potential jeopardy to law enforcement personnel. Even the district court
acknowledged in its order that if a [balancing] test were applied under the circumstances of
this case, petitioners would undoubtedly prevail.
Accordingly, weighing the absence of any privacy or law enforcement policy justifications
for nondisclosure against the general policy in favor of open government, we reverse the
district court's denial of appellants' petition and remand with instructions to issue a writ of
mandamus ordering respondents to release to appellants the entire police investigative report.
Springer, Mowbray and Rose, JJ., concur.
Police investigative and intelligence reports are not subject to disclosure under NRS
Chapter 179A. Nevada's Records of Criminal History Act (the Act). They are specifically
exempted from disclosure under the terms of the Act. Appellants contend that because other
records are also specifically exempted that are not confidential, the Act intended to treat
criminal investigative and intelligence reports as public records subject to disclosure to the
media. The most that can be said for appellants' position is that the Act does not classify such
reports as confidential or nonconfidential. Appellants' contention that the Attorney General's
opinion declaring investigative reports confidential is inconsistent with the public status of
other records listed in NRS 179A.070(2) appears to me to be unsound. All the referenced
exemptive provision does is exclude various items from the mandatory disclosure
requirements of the Act.
Appellants also contend that police investigative and intelligence reports are public
records subject to disclosure under NRS 239.010 because they have not been accorded a
confidential status by statute.
__________
difference between the two test, especially where a number of the considerations listed in federal Exemption 7
are virtually identical to policy considerations mentioned here. Furthermore, we do not perceive that it would be
any less burdensome to judicially screen these records under the dissent's proposed categorical test, if indeed
judicial screening is unduly burdensome at all.
status by statute. By so contending, appellants are seeking the realignment of two strongly
favored and juxtaposed public policies involving open government and effective law
enforcement. Heretofore, law enforcement agencies have released to the media selective
information on criminal investigations and procedures consistent with the ongoing interests of
effective and efficient police operations and the right of the public to be reasonably informed.
Obviously, if appellants had succeeded in achieving their optimum position, serious problems
would have resulted in the law enforcement community. Considerations of safety for officers
and informants, investigative methodology and efficacy, and cooperative efforts between
agencies, to name but a few, would be seriously impacted.
The majority appears to have assumed a position of neither fish nor fowl concerning the
status of criminal investigative and intelligence reports. As a result of the majority's rule of
equivocation, law enforcement agencies will be unable to predict with assurance the status of
their investigative and intelligence reports in any given case until they have been subjected to
the uncertainties of a judicial balancing test. I expect that the end result of such a rule will be
an altered method of maintaining or memorializing ongoing police investigations. In any
event, I suggest that the majority rule is unnecessarily vexatious and disruptive to law
enforcement. There is, I submit, a preferable alternative that I will address in due course.
As noted previously, appellants maintain that because some of the records excluded from
the definition of criminal history records are not confidential in nature, all excluded records
are public records and subject to dissemination under NRS 239.010. Aside from the fact that
the premise is a non sequitur, it would be highly unlikely that the Legislature would exclude
investigative and intelligence records from mandatory dissemination in one statute and
require their disclosure in another. Appellants also assert, and the majority agrees, that
because the Act deviated from the parent federal regulations by excluding investigative and
intelligence records along with other records, the inescapable conclusion is that the Nevada
Legislature intended such records to be subject to disclosure. I have reached a contrary
conclusion.
The fact that certain records are excluded from the definition of criminal history records
does not make them public records. For example, 28 C.F.R. 20.20(b) of the parent federal
regulations (hereinafter, in general, Federal Regulations) does not exclude information
concerning juveniles. However, that category of records is among the records excluded from
NRS 179A.070. NRS Chapter 62 prescribes a procedure for handling juvenile records,
including the sealing thereof.
juvenile records, including the sealing thereof. Although juvenile records are not explicitly
declared confidential by statute, their general inaccessibility to the public and the procedures
provided for their sealing compel the inference that they are confidential.
Similarly, criminal investigative and intelligence records are not among the enumerated
documents excluded from the definition of criminal history records in the Federal
Regulations. For this reason, the majority concludes that the Nevada Legislature deviated
from the Federal Regulations with the intention that such records be subject to disclosure. It
is clear, however, that NRS 179A.070(2) is not a deviation from the Federal Regulations.
Subsection 20.21(g)(6) of the Code of Federal Regulations provides that:
The individual's right to access and review of criminal history record information shall
not extend to data contained in intelligence, investigatory, or other related files and
shall not be construed to include any other information than that defined by 20.3(b).
(Emphasis added.)
The quoted section limits an individual's right of access to his criminal history records. An
individual who is the subject of a criminal history record is among those who must be given
access to such records under NRS 179A.100(5). It is unreasonable to assume that the Federal
Regulations, after which Chapter 179A was patterned, would preclude an individual from
obtaining investigatory information on himself while mandating the release of the same
information to the media. It is equally incredible that the Nevada Legislature, also precluding
an individual from accessing investigative data concerning himself (NRS 179A.159(1)),
would mandate the disclosure of such information to the media. I suggest, therefore, that
Nevada's Act does not constitute a deviation from its federal counterpart and that the majority
improperly concludes that the non-existent deviation was purposefully enacted in order to
clarify that investigative reports are subject to disclosure if policy considerations so
warrant.
In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court noted that [i]t has
generally been held that the First Amendment does not guarantee the press a constitutional
right of special access to information not available to the public generally. Id. at 684. The
court also observed that the press is regularly excluded from grand jury proceedings and
crime scenes to which the public has no access, despite the fact that news gathering may be
impeded. Id. Grand jury proceedings and crime scenes are generally loci of investigations
and intelligence which law enforcement agencies seek to protect from public access.
scenes are generally loci of investigations and intelligence which law enforcement agencies
seek to protect from public access. Thus, even the public's right to know must at times be
subordinate to criminal detection and investigation.
As previously noted, NRS 179A.070(2) does not make a declaration of confidentiality, but
rather of exemption. NRS 179.100(5) (Supp. 1989) mandates that records of criminal history
must be disseminated to certain enumerated individuals and entities, including the media. By
excluding investigative and intelligence information from criminal history records, the statute
is exempting such information from mandatory access. This position is supported by Opinion
of the Attorney General 83-3 (5-2-1983) in regards to NRS 239.010 as follows:
Criminal investigation and intelligence reports are confidential as internal intelligence
and investigative records collected in the course of the enforcement of criminal laws
and are not public records subject to inspection under this section.
Because appellants' contentions are founded on the Public Records Act (PRA) embodied
in NRS 239.010, it is illuminating to review cases in other jurisdictions interpreting similar
statutes and their federal counterpart, the Federal Freedom of Information Act (FOIA).
1

Appellants cite the PRA in support of the proposition that absent an express declaration
that a record is confidential, its disclosure is mandatory. They contend that because
investigative and intelligence records have not been expressly declared confidential, they are
public records subject to mandatory disclosure under the PRA. Importantly, however, that
statute provides that [a]ll public books and public records . . . the contents of which are not
otherwise declared by law to be confidential shall be available to the public. (Emphasis
added.) Equally important, before a document comes within the purview of the statute, it
must be a public record. And, if the public record is declared to be confidential, it is exempt
from disclosure under the PRA. Unfortunately, public record is not defined in the statute.
I am convinced that an investigative report is not, and was never intended to be, a public
record subject to the disclosure mandates of the PRA. It has been stated that:
A public record, strictly speaking, is one made by a public officer in pursuance of a
duty, the immediate purpose of which is to disseminate information to the public, or to
serve as a memorial of official transactions for public reference.
__________

1
5 U.S.C. 552.
Also a record is a public record which is required by law to be kept, or necessary to
be kept in the discharge of a duty imposed by law or directed by law to serve as a
memorial and evidence of something written, said or done. . . . It has also been held that
a written record of transactions of a public officer in his office, which is a convenient
and appropriate method of discharging his duties, and is kept by him as such, whether
required by express provisions of law or not, is admissible as a public record.
Matthews v. Pyle, 251 P.2d 893, 895 (Ariz. (1952) (emphasis supplied).
Moreover, the mere fact that a record is prepared by a public official or employee does not
make it a public record. Cowles Pub. Co. v. Murphy, 637 P.2d 966, 968 (Wash. 1981) (en
banc). Similarly, a document does not become a public record merely because public officials
collectively act upon it. Id. Nor does the fact that a document is kept by a public officer make
it a public record. Looby v. Lomenzo, 301 N.Y.S.2d 163 (1969). In Looby, the court ruled
that a card index file was not a public record because it was created to promote office
efficiency rather than to satisfy statutory mandate. Id. at 165.
In the case of In re Toth, 418 A.2d 272 (N.J.Super.A.D. 1980), the Right to Know Law
defined a public record as one required by law to be made, maintained or kept on file by
government officials. Toth was, in essence, an inverse disclosure action. An officer was
appealing a disciplinary action for disclosing an investigatory report on the chairman of the
Casino Control Board. His defense was that the record was public under the State's Right to
Know Law. The court held that because the statute did not require a written record or report
to be made, it was not a public record within the purview of the statute.
By its very nature, a criminal investigative report does not fit the category of a public
record. It is not prepared for dissemination to the public or to memorialize official
transactions for public reference. Neither is it required by Nevada law to be prepared,
maintained, or filed, unlike the situation in Carlson v. Pima County, 687 P.2d 1242 (Ariz.
1984), relied on by appellants. In Carlson, the report at issue dealt with an altercation
between inmates and was required by law to be made.
The court in Westchester Rockland Newspapers, Inc. v. Mosczydlowski, 396 N.Y.S.2d
857 (1977), noted that records of law enforcement agencies have traditionally been held
exempted from public disclosure. Id. at 860. That case involved an Internal Affairs Division
investigation into the untimely death of an inmate. As here, the inquiry focused on whether
any crimes had been committed and the extent to which any police department personnel
were guilty of breach of duty.
been committed and the extent to which any police department personnel were guilty of
breach of duty. The IAD prepared its report, and the district attorney concluded that no
evidence of criminal wrongdoing existed. The press, dissatisfied with a summary of the
report, unsuccessfully sought access to the original. One of the grounds for denial was that the
report was outside the purview of the Freedom of Information Law because it was part of a
police investigatory file. The lower court ordered disclosure under the rationale that because
the investigation had been closed without determining a basis for any criminal action, the
report was no longer protected by the statute.
In reversing, the appellate court recognized that the New York Public Officers Law (akin
to the Nevada's Public Records Law) subjected some police records to disclosure (e.g., police
blotter and booking entries). The court nevertheless stated that:
The subject report is not such a record. . . . [I]t is akin to an intra- or inter-agency
memorandum within the contemplation of the Federal Freedom of Information Act
(U.S. Code, tit. 5, 552[b][5]), upon which our law is patterned, or is, perhaps, a final
agency opinion on the facts and circumstances surrounding the death of an individual
while in police custody. . . . So viewed, the competing interests at bar are best satisfied
by directing disclosure of only so much of the subject report as represents purely factual
matter, with the names of police officers and jail personnel deleted.
Id. at 860. The competing interests in the instant case appear to have been satisfied by the
City Attorney's disclosure of the facts surrounding the dismissal of charges against Joe
Conforte, portions of the report, and corresponding data.
I suggest, therefore, that only if a record can be properly construed to be both public and
non-confidential in nature is it subject to mandatory dissemination. Although the majority has
rewritten the PRA with a balancing limitation regarding investigative and intelligence files, if,
as appellants contend, such files are non-confidential and subject to the terms of the PRA,
then, under its express terms, the reports are to be made available to any person, at all times
during office hours, for any advantage and for copying in full. In my opinion, such a
conclusion is untenable and inimical to society's interests.
Appellants also assert that publication of the investigation report is necessary so that the
public is not left in the dark about the policies and procedures of the City Attorney's office.
However, as emphasized by cases interpreting FOIA and its state counterparts, there are some
documents to which the public should not be privy.
Appellants cited Houston Chronicle Pub. Co. v. City of Houston, 531 S.W.2d 177 (Tex.
1975), for the proposition that the press and the public have a constitutional right of access to
information concerning crime in the community and activities of law enforcement agencies.
However, as stated by that court:
This constitutional right of access to information should not extend to such matters as a
synopsis of a purported confession, officers' speculation of a suspect's guilt, officers'
views as to the credibility of witnesses, statements by informants, ballistics reports,
fingerprint comparisons, or blood and other laboratory tests.
Id. at 187.
Prior to 1976, FOIA's Exemption 7 pertained to investigatory records compiled for law
enforcement purposes except to the extent available by law to a private party. 5 U.S.C.
552(b)(7). That phrase was broadly interpreted to include any records containing information
garnered in the investigation of possible criminal activity. For example, in Koch v. Dept. of
Justice, 376 F.Supp. 313 (D.C. 1974), three Congressmen sought disclosure of files
pertaining to themselves. The files contained background information on the Congressmen,
correspondence, internal memoranda, and citizen complaints and comments. The court ruled
that files maintained by the FBI in aid of investigations into the possibility that a subject had
engaged in criminal activity or other conduct that would disqualify the person from
government service were investigatory files and thus exempt under Exemption 7. The Koch
court reasoned that [i]n order to insure such confidentiality, F.B.I. files may be withheld if
law enforcement was a significant aspect of the investigation for which they were compiled. .
. . Id. at 315. Because all documents (investigatory and non-investigatory) had been mingled
together, the court ordered an in camera inspection. It stated that the inspection could have
been avoided had the Bureau clearly segregated investigatory material from other documents.
. . . Id.
Because Exemption 7 was subject to broad interpretation, it was amended by Congress in
1986 to narrow its scope. As amended, records and information compiled for law
enforcement purposes are exempt from disclosure. However, the exemption applies only
where disclosure would result in one of six specified harms.
2
In Abramson v. FBI, 456 U.S.
615 {19S1), the Supreme Court interpreted the meaning and scope of the 1976 version of
Exemption 7.3 Abramson involved a professional journalist who invoked the FOIA in an
attempt to obtain information compiled by the FBI regarding certain politicians.
__________

2
5 U.S.C. 552(b)(7) (1988 ed.) provides:
(b) This section does not apply to matters that are
. . . .
(7) records or information compiled for law enforcement purposes,
In Abramson v. FBI, 456 U.S. 615 (1981), the Supreme Court interpreted the meaning and
scope of the 1976 version of Exemption 7.
3
Abramson involved a professional journalist
who invoked the FOIA in an attempt to obtain information compiled by the FBI regarding
certain politicians. The desired reports had been incorporated into a document transmitted to
the White House. The Bureau denied the request on grounds that the information was exempt
from disclosure under Exemptions 6 and 7 of the FOIA. However, the Bureau did provide the
journalist with 84 documents, some of which had been partially redacted. The issue was
whether the FBI reports lost their exempt status when joined with records compiled for other
than law enforcement purposes.
The Abramson court approached the issue with the following analysis:
The language of the Exemption indicates that judicial review of an asserted Exemption
7 privilege requires a two-part inquiry. First, a requested document must be shown to
have been an investigatory record compiled for law enforcement purposes. If so, the
agency must demonstrate that release of the material would have one of six results
specified in the Act.
Id. at 622. The court of appeals had ordered disclosure on the basis that the record did not
qualify for the exemption. It reasoned that the record transmitted to the White House had not
been compiled for law enforcement purposes, even though it contained information that was.
The Supreme Court reversed, holding that: If a requested document . . . contains or
essentially reproduces all or part of a record that was previously compiled for law
enforcement reasons, it is reasonably arguable that the law enforcement record does not
lose its exemption by its subsequent inclusion in a document created for a non-exempt
purpose.
__________
but only to the extent that the production of such law enforcement records or information (A) could
reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right
to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted
invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential
source, including a State, local, or foreign agency or authority or any private institution which furnished
information on a confidential basis, and, in the case of a record or information compiled by criminal law
enforcement authority in the course of a criminal investigation or by an agency conducting a lawful
national security intelligence information, information furnished by a confidential source, (E) would
disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or
physical safety of any individual.

3
The 1976 version of Exemption 7 is substantially the same as the current Exemption 7. The amendment
substituted the words records and information for the words investigatory records.
If a requested document . . . contains or essentially reproduces all or part of a record
that was previously compiled for law enforcement reasons, it is reasonably arguable
that the law enforcement record does not lose its exemption by its subsequent inclusion
in a document created for a non-exempt purpose.
. . . .
[T]he statutory language is reasonably construable to protect that part of an
otherwise non-exempt compilation which essentially reproduces and is substantially the
equivalent of all or part of an earlier record made for law enforcement uses.
Id. at 624-25.
In the instant matter, the subject report unquestionably satisfies the threshold inquiry. The
investigation commenced to determine whether bribery or other misconduct was a factor in
the dismissal of charges against Conforte. Appellants contend, however, that because the
report did not result in a prosecution and was subsequently labeled administrative in nature,
the report is subject to disclosure. I do not agree.
Under the Abramson ruling, if a report is initially prepared for law enforcement purposes,
the threshold requirement is met, and the subsequent use to which the report is committed or
name it is given is of no significance. As declared by the court in Arenberg v. DEA, 849 F.2d
579 (11th Cir. 1988):
The information gathered by the agency need not lead to a criminal prosecution in order
to meet the threshold requirement. Courts should be hesitant to reexamine a law
enforcement agency's decision to investigate if there is a plausible basis for the agency's
decision.
Id. at 581.
Under the foregoing federal authorities interpreting the FOIA, it is apparent that the
investigative report compiled by the Reno Police Department would qualify as exempt under
subsection 7. However, the inquiry does not end there. Next, an agency claiming the
Exemption 7 privilege must demonstrate that one of six harms within Exemption 7 would
result.
Appellants contend that because the investigative report has not been declared by law to be
confidential, at the very least a balancing test should be used to determine whether the report
should be disseminated to the public. According to the Supreme Court, the FOIA does not
require such a test. The Abramson court interpreted the federal act to mean that [c]ongress . .
. created a scheme of categorical exclusion; it did not invite a judicial weighing of the
benefits and evils of disclosure on a case-by-case bases.
judicial weighing of the benefits and evils of disclosure on a case-by-case bases. Abramson,
456 U.S. at 631.
In U.S. Dept. of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749
(1989), the court discussed the categorical balancing approach to the FOIA exemptions.
Reporters there sought to obtain the rap sheets of individuals believed to have improper
dealings with a corrupt Congressman. The FBI invoked Exemption 7(C) in refusing the
request. The court rejected an ad hoc balancing approach in favor of categorical balancing.
Under the latter test, once a report falls into an exempted category, it is exempt from
disclosure without the need for case-by-case balancing. The court reasoned that:
establishing a discrete category of exempt information implements the congressional
intent to provide workable rules. . . . Only by construing the Exemption to provide a
categorical rule can the Act's purpose of expediting disclosure by means of workable
rules be furthered.
(Emphasis in original.) Id. 489 U.S. at 779 (quoting FTC v. Grolier Inc., 462 U.S. 19 at
27-28). The court declared that this approach may be undertaken for an appropriate class of
law-enforcement records or information. Reporters Comm., 489 U.S. at 777. Thus, the court
held:
as a categorical matter that a third party's request for law-enforcement records or
information about a private citizen can reasonably be expected to invade that citizen's
privacy, and that when the request seeks no official information about a Government
agency, but merely records that a Government happens to be storing, the invasion of
privacy is unwarranted.
Id. 489 U.S. at 780.
However, protection from disclosure is not limited to persons in their individual capacity.
In Buhovecky v. Dept. of Justice, 700 F.Supp. 566 (D.C. 1988), an inmate convicted of bank
robbery sought access to FBI records. The investigative file consisted of grand jury material,
rap sheets, information obtained through interviews with law enforcement officials and
individuals, and other materials. The FBI released some of the requested material, but
withheld information which included the names of individuals and FBI personnel and the rap
sheets. After undergoing a two-part inquiry to determine whether Exemption 7 was
applicable, the court ruled that:
The type of information defendants seek to protect is information which would lead to
discovery of the identity of participants in a criminal investigation.
participants in a criminal investigation. The interest in non-disclosure is obvious here;
there is a need to protect from harassment those who participate, in either an official
capacity or as investigative sources, in FBI investigations.
Id. at 570.
Here, among the reasons respondents refused disclosure is the invasion of privacy of those
who were investigated and against whom no charges were brought. Appellants claim the
invasion is minimal and thus the public's need to know should be balanced favorably
against the minimal intrusion. Such reasoning is inconsistent with the Supreme Court's
interpretation of Exemption 7.
Categorical balancing is consistent with the second prong of the Abramson court's two-part
analysis of Exemption 7. That is, once one of the six harms is demonstrated, the exemption
is applicable. Moreover, it would appear that a categorical balancing would be both
administratively and judicially efficient. In handling a records request, a government agency
should be able to rely on bright-line procedures for disseminating information rather than
awaiting a case-by-case judicial determination.
I have belabored federal case law concerning the FOIA by way of analogy only. In those
limited instances where public records are of an uncertain confidential status, I suggest that
the categorical balancing approach would be preferable to the ad hoc balancing fashioned by
the majority. Despite the absence of Exemption 7 in Nevada's PRA, it would appear that the
categories contained therein could be accorded judicial deference by Nevada courts as
guidelines for implementing a categorical balancing approach. In so doing, we would assume
no greater liberties with the language of the PRA than the majority rule limiting access to
investigative and intelligence reports under the PRA to material sifted by an ad hoc judicial
balancing.
Unfortunately, my preoccupation with the categorical balancing test amounts to little more
than vented frustration over the burdensome judicial screening imposed by the majority under
circumstances that, I respectfully submit, justify no balancing requirements at all. To me, it is
beyond cavil that the PRA operates only on public records, and that criminal investigative
and intelligence reports are not, and were never intended to be, classified as public records.
NRS Chapter 179A mandates the dissemination of specific criminal history information,
expressly excluding investigatory and intelligence reports. The PRA mandates a complete
dissemination of public records. It is illogical to assume that what the Legislature
specifically excluded from dissemination under the former, it intended to mandatorily release
in full under the latter.
release in full under the latter. Such contortive reasoning renders meaningless the exclusion
under Chapter 179A.
For the reasons hereinbefore expressed, I am convinced that the district court judge was
both perceptive and correct and should be affirmed. I therefore dissent.
____________
106 Nev. 647, 647 (1990) Wright v. State
VICTOR XAVIER WRIGHT, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20438
October 25, 1990 799 P.2d 548
Appeal from a judgment of conviction on twenty-three separate criminal counts. Eighth
Judicial District Court, Clark County; John F. Mendoza, Judge.
Defendant was convicted in the district court of twenty-three separate counts arising from
series of sexual assaults or attempted sexual assaults, and he appealed. The Supreme Court
held that: (1) there was sufficient evidence that abduction of victims was not incidental to
sexual assault to support separate kidnapping convictions; (2) evidence was insufficient to
support conviction of one attempted sexual assault count; (3) separate convictions based upon
same facts violated double jeopardy clause; and (4) presence of five victims in same room
during lineup did not violate due process clause.
Reversed in part, affirmed in part.
Ward & Maglaras, Las Vegas, for Appellant.
Tufteland, Deputy District Attorney, and Robert L. Langford, Deputy District Attorney, Clark
1. Kidnapping.
Jury had sufficient evidence to determine that abduction of victims was not merely incidental to sexual assault, such that defendant
could be convicted of separate kidnapping counts in addition to associated sexual assault counts.
2. Rape.
Evidence that attempted sexual assault occurred in same vicinity and within same time frame as other charged sexual assaults and
other offenses was insufficient to support defendant's conviction of attempted sexual assault, where victim was unable to identify her
attacker, her description of her attacker differed significantly from that of other victims, and modus operandi of her attacker
differed from that employed in other assaults.
victims, and modus operandi of her attacker differed from that employed in other assaults.
3. Double Jeopardy.
Double jeopardy clause precluded defendant's convictions of separate counts based upon same facts. U.S.C.A.Const. Amend. 5.
4. Double Jeopardy.
Defendant's conviction of attempted assault and of completed assault upon same victim did not violate double jeopardy clause,
though acts were result of single encounter and all occurred within relatively short time; victim's testimony established that between
attempted and completed assaults, defendant stopped and waited while car passed. U.S.C.A.Const. Amend. 5.
Tests for determining whether pretrial identification procedure violates due process clause involves inquiry of whether
identification procedure was unnecessarily suggestive and, if so, whether under all circumstances identification was reliable despite
necessarily suggestive procedure. U.S.C.A.Const. Amend. 14.
6. Constitutional Law; Criminal Law.
Presence of five victims in same room during lineup did not violate defendant's right to due process, despite defendant's claim that
reaction of one victim when he was asked to face viewing room and step forward improperly influenced other identifications;
identifications were reliable under all circumstances, where all victims had opportunity to observe their attacker at close range, two
victims testified they did not notice outburst of fellow victim, another victim remained unable to identify defendant as her attacker, and
public defender who was present did not object. U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
Between September 1988 and January 1989, a series of sexual assaults or attempted sexual
assaults took place within the vicinity of the Gold Coast Hotel in Las Vegas. Victor Xavier
Wright was arrested and eventually convicted on twenty-three separate counts arising from
these assaults. Wright was sentenced to twenty-four concurrent life sentences as well as lesser
concurrent sentences. This appeal ensued.
[Headnote 1]
First, Wright challenges his convictions upon Counts III (first degree kidnapping), V, VIII
and XIV (first degree kidnapping with use of a deadly weapon), and XXIII (attempted first
degree kidnapping with a deadly weapon) on the grounds that the movement of the victims
was incidental to the commission or attempted commission of sexual assault.
In Wright v. State, 94 Nev. 415, 417-18, 581 P.2d 442, 443-44 (1978) (unrelated to the
present appeal), we held that where the accused is convicted of first degree kidnapping and
an associated offense, the kidnapping conviction would not lie if the movement of the
victim was incidental to the associated offense and did not increase the risk of harm to
the victim beyond that necessarily present in the associated offense.
accused is convicted of first degree kidnapping and an associated offense, the kidnapping
conviction would not lie if the movement of the victim was incidental to the associated
offense and did not increase the risk of harm to the victim beyond that necessarily present in
the associated offense. In subsequent decisions, we have held that: Whether the movement
of the victim is incidental to the associated offense and whether the risk of harm is increased
thereby are questions of fact to be determined by the trier of fact in all but the clearest of
cases. Curtis D. v. State, 98 Nev. 272, 274, 646 P.2d 547, 548 (1982); Sheriff v. Medberry,
96 Nev. 202, 204, 606 P.2d 181, 182 (1980); Langford v. State, 95 Nev. 631, 638-39, 600
P.2d 231, 236-37 (1979).
We conclude that the jury had sufficient evidence to determine that the abduction of the
victims in these counts went beyond being merely incidental to the sexual assault. We
therefore reject appellant's first contention.
[Headnote 2]
Second, Wright challenges the sufficiency of evidence supporting his conviction on Count
XIII (attempted sexual assault). Appellant's contention has merit. The victim in this count was
unable to identify her attacker, both before and during trial. She provided a description of her
attacker that significantly differed from that of the other victims. The modus operandi of her
attacker also differed from that employed in the previous assaults. The only evidence before
the jury linking this assault to Wright was its occurrence in the same vicinity and within the
same time frame as the other counts. We do not consider this evidence which a rational trier
of fact could find supportive of the elements of the offense beyond a reasonable doubt, even
after consideration in a light most favorable to the prosecution. State v. Rhodig, 101 Nev.
608, 610, 707 P.2d 549, 550 (1985); Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313
(1980). Accordingly, we reverse appellant's conviction on Count XIII.
[Headnote 3]
Third, Wright asserts that several of his convictions were in violation of his Fifth
Amendment right against double jeopardy. The State concedes that Wright's convictions on
Counts II, VI, XXI and XXII were entered in violation of the prohibition against double
jeopardy, and that these counts should be vacated. We agree. Appellant's convictions on these
counts were based upon the same facts as Counts I, VII, XX and XXIII respectively. See
Blockburger v. United States, 284 U.S. 299, 304 (1972); Litteral v. State, 97 Nev. 503, 508,
634 P.2d 1226, 1229 (1981). We reverse appellant's convictions on Counts II, VI, XXI and
XXII. [Headnote 4]
[Headnote 4]
We do not agree that Wright's conviction on Count XVI was based on the same facts as
Count XVII. Count XVI involved an attempted assault. Count XVII involved a completed
assault upon the same victim. The testimony of the victim established that between the
attempted and completed assaults, Wright stopped and waited while a car passed. These facts
support separate convictions for separate acts, even though the acts were the result of a single
encounter and all occurred within a relatively short time. Deeds v. State, 97 Nev. 216, 217,
626 P.2d 271, 272 (1981); Wicker v. State, 95 Nev. 804, 806, 603 P.2d 265, 266-67 (1979).
We affirm appellant's conviction on Count XVI.
[Headnotes 5, 6]
Wright finally contends that the presence of five of the victims in the same room for lineup
purposes violated his right to due process. More specifically, Wright claims that the reaction
of one of the victims when he was asked to face the viewing room and step forward
improperly influenced the other identifications.
We adhere to the pre-trial identification standard enunciated in Stovall v. Denno, 388 U.S.
293 (1967). See Bias v. State, 105 Nev. 869, 872, 784 P.2d 963, 964 (1989). Considering the
totality of circumstances, the test is whether the identification was so unnecessarily
suggestive and conducive to irreparable mistaken identification that [appellant] was denied
due process of law. Stovall, 388 U.S. at 301-02. See also Jones v. State, 95 Nev. 613, 617,
600 P.2d 247, 250 (1979). Although the Stovall, Jones, and Bias decisions all involved
on-the-scene confrontations between the suspect and the identifying victim, the test
established in Stovall was applied to live lineups in Foster v. California, 394 U.S. 440, 442
(1969). The inquiry is two-fold: (1) whether the identification procedure is unnecessarily
suggestive, and (2) if so, whether under all the circumstances the identification is reliable
despite an unnecessarily suggestive procedure. Banks v. State, 94 Nev. 90, 94, 575 P.2d 592,
595 (1978).
We believe that the lineup at issue survives analysis under the totality of circumstances
test. All of the victims had an opportunity to observe their attacker at close range. Two of the
victims testified that they did not notice the outburst of their fellow victim and did not
associate it with the appellant's stepping forward. Another victim remained unable to identify
the appellant as her attacker despite witnessing the other woman's reaction. A representative
from the Public Defender's office who had participated in previous lineup identifications was
present and did not object to the conduct of the lineup.
to the conduct of the lineup. For these reasons, we believe that the conduct of the lineup was
not a violation of due process.
For these reasons, we reverse appellant's convictions on Counts II, VI, XIII, XXI and XXII
and affirm his convictions on the remaining eighteen counts.
____________
106 Nev. 651, 651 (1990) State v. McNichols
THE STATE OF NEVADA, Appellant, v. BILL AARON McNICHOLS, Respondent.
No. 20444
October 25, 1990 799 P.2d 550
Appeal from an order of the district court granting respondent's motion to dismiss. Eighth
Judicial District Court, Clark County; Earle W. White, Jr., Judge.
Defendant charged with controlled substance violations filed motion to suppress evidence
seized from his former residence. The district court granted suppression motions and
subsequently dismissed case. The State appealed. The Supreme Court held that defendant no
longer had reasonable expectation of privacy in his former residence after property had been
foreclosed and defendant had been evicted from premises and thus defendant's subsequent
re-entry was a trespass and did not give him a reasonable expectation of privacy.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, and Thomas L.
Leen, Deputy District Attorney, Clark County, for Appellant.
Kathy A. Teague, Las Vegas, Potter & Associates, Las Vegas, for Respondent.
Searches and Seizures.
Former occupant of house lost legal and possessory interest in property when it was foreclosed and he was evicted, and his re-entry
after new owner changed locks and constable's office had placed court seals on entry way was a trespass and did nothing to restore a
reasonable expectation of privacy. U.S.C.A.Const. Amend. 4.
OPINION
Per Curiam:
Respondent Bill Aaron McNichols lost his house at 60 Logan Street, Las Vegas, through
foreclosure.
Street, Las Vegas, through foreclosure. Three and four day notices of unlawful detainer were
served, as well as an order of summary eviction. The eviction was carried out sometime
between the 15th and 20th of September, 1988.
Responding to reports that the former occupants had re-entered the premises with a
weapon, police officers and an agent of the mortgagee went to 60 Logan Street on November
15, 1988. The lock and court seals had been removed, and someone had entered the residence
via the back door.
The police officers entered the house and found a small amount of marijuana above a
headboard in the northwest bedroom, and a methamphetamine laboratory spread throughout
the house and garage. The police took samples of suspected contraband, and ultimately the
state charged respondent with trafficking in a controlled substance.
On October 2, 1989, respondent filed a motion to suppress evidence in the district court.
Respondent alleged that the warrantless entry into 60 Logan Street was unreasonable and,
therefore, that the evidence derived from the entry should be suppressed. The state opposed
respondent's motion, and the district court heard the matter on October 13, 1989. The district
court granted the motion to suppress and subsequently granted defense counsel's motion to
dismiss the case. The state appeals.
The state contends that the district court erred by granting respondent's motion to dismiss.
Specifically, the state contends that at the time of the search, respondent no longer had a
reasonable expectation of privacy in the 60 Logan Street residence. The state maintains that
respondent's subsequent re-entry was a trespass and did nothing to restore a reasonable
expectation of privacy. We agree.
Although respondent may have had a subjective expectation of privacy in the 60 Logan
Street premises, this expectation was not one that society is prepared to recognize as
reasonable. Respondent lost his legal interest in the property when it was foreclosed.
Respondent lost his possessory interest in the property when he was evicted. The new owner
changed the locks, and the constable's office placed court seals on the entryway. Respondent's
trespassory re-entry did not create an objective expectation of privacy for respondent. See
Rakas v. Illinois, 439 U.S. 128 (1978). See also Katz v. United States, 389 U.S. 347 (1967)
(in order to implicate an interest protected by the fourth amendment, a claimant's expectation
of privacy must be both subjectively and objectively reasonable). Because the police did not
intrude into an area in which respondent had a reasonable expectation of privacy, their entry
was not a search within the meaning of the fourth amendment.
fourth amendment. Therefore, the district court erred when it measured the state's actions
against the warrant and probable cause requirements of the fourth amendment.
Accordingly, we reverse the district court's order and remand for further proceedings
____________
106 Nev. 653, 653 (1990) SIIS v. Woodall
STATE INDUSTRIAL INSURANCE SYSTEM, an Agency of the State of Nevada,
Appellant, v. REBECCA ANN WOODALL, Respondent.
No. 20979
October 25, 1990 799 P.2d 552
Appeal from a district court order affirming the decision of an administrative appeals
officer to increase the amount of disability compensation received by respondent. Eighth
Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Workman's compensation claimant appealed determination of hearing officer that she was
barred from claiming her tip income as part of her average monthly wage because she had not
reported tips to her employer, pursuant to statutory tip reporting guidelines. Appeals officer
ruled in favor of claimant, and the State Industrial Insurance System (SIIS) petitioned for
judicial review. The district court affirmed decision of appeals officer, and SIIS appealed.
The Supreme Court held that: (1) statute defining an employee's average monthly wage to
include cash tips reported by employee to employer unless tip total is less than $20 per month
does not create a special class of employees that can ignore tip reporting guidelines of
statute setting forth procedure for reporting tips to employer and to SIIS, as first statute
merely defines terms of reporting statute; (2) failure to use special form specified in
administrative regulation for reporting of tip income to employer does not act as bar to
benefits for such income otherwise reasonably reported to employer; and (3) claimant did not
reasonably report her tip income to employer when she declared tip income on her annual tax
filing with the Internal Revenue Service.
Reversed.
R. Scott Young, General Counsel, Carson City, and William A. Zeigler, Associate General
Counsel, Las Vegas, for Appellant.
James M. Stuart, Las Vegas, for Respondent.
Workman's compensation statute defining an employee's average monthly wage to include cash tips reported by employee to
employer, unless the tip total is less than $20 per month, does not create a special class of employees that can ignore tip reporting
guidelines of statute setting forth procedure for reporting tips to employer and to the State Industrial Insurance System, as first statute
merely defines terms of reporting statute. NRS 616.027, subd. 2, 616.401.
A reasonable, liberal and practical construction of workman's compensation statutes is preferable to a narrow one where such
statutes are enacted for purpose of giving compensation, not for denying it.
Statute setting forth procedure for reporting tips to employer and to the State Industrial Insurance System contemplates any type of
reasonable notice of tips to the employer; thus, failure to use special form specified in administrative regulation does not act as a bar to
workman's compensation benefits for tip income otherwise reasonably reported to an employer. NRS 616.401.
Employee did not reasonably report her tip income for workman's compensation purposes when she declared tip income on her
annual tax filing to the Internal Revenue Service; filing of an annual federal income tax return is not the type of reasonable notice
contemplated by statute setting forth procedure for reporting tip income to employer for workman's compensation purposes. NRS
616.401.
OPINION
Per Curiam:
Respondent, Rebecca Ann Woodall, sustained a compensable industrial injury on
September 16, 1987, when she slipped and fell during her shift as a card dealer at the Pioneer
Club in Laughlin, Nevada. Woodall's compensation at the Pioneer Club included her monthly
salary of $441.80, as well as any tip income she received from her customers.
Woodall filed a claim with the State Industrial Insurance System (SIIS) for temporary
total disability benefits because of her injury. Subsequently, SIIS informed Woodall that she
would receive benefits, but that these benefits would be based upon her monthly salary of
$441.80 only. SIIS refused to include Woodall's tip income as a part of her monthly wages.
This resulted in smaller disability benefits for Woodall and, therefore, she sought relief in an
appeal to an administrative hearing officer.
The hearing officer rejected Woodall's request for relief. The officer reasoned Woodall
was barred from including her tip income as part of her average monthly wage because she
had not reported her tips to her employer, the Pioneer Club, pursuant to the tip reporting
guidelines established in NRS 616.401.1
reported her tips to her employer, the Pioneer Club, pursuant to the tip reporting guidelines
established in NRS 616.401.
1

Woodall appealed again to a Nevada Department of Administration appeals officer who
found: (1) Woodall was not aware of the reporting requirements of NRS 616.401 because she
had not received assistance from SIIS or her employer on how to comply with the statute; (2)
Woodall's employer was already aware of her tip income and probably kept track of the tip
income through an internal audit; and (3) Woodall had filed an income tax return for 1987
declaring $7,100.00 as tip income.
The appeals officer then concluded a liberal and practical construction of NRS 616.401
was appropriate. In applying such a construction to the statute and the above findings of fact,
the appeals officer concluded that any reasonable notice, such as notice to the IRS, is
sufficient notice to comply with NRS 616.401. Woodall was given the relief she requested.
SIIS was ordered to include her tip income as part of her average monthly wage and,
consequently, Woodall's disability benefits from SIIS were increased.
__________

1
616.401 Election by employee to report his tips; effect; regulation.
1. An employee may elect to report the amount he receives as tips for the purpose of the calculation
of compensation by submitting to his employer a written notice of election to report his tips. The
employee must make his election separately for each pay period before the end of the next pay period.
The declaration may not be amended.
2. Upon receipt of such notice the employer shall:
(a) Make a copy of each report which the employee has filed with the employer to report the amount
of his tips to the United States Internal Revenue Service;
(b) Stamp or attach to the copy a declaration to be signed by the employee under penalty of perjury
which states that the contents of the report are true;
(c) Require the employee to sign the declaration;
(d) Submit the copy to the system upon request and retain another copy of his records or if the
employer is self-insured, retain the copy for his records; and
(e) If he is not self-insured, pay the system the premiums for the reported tips at the same rate as he
pays on regular wages, beginning 3 months after he receives the first notice of the election of the
employee to report tips.
3. An employee who elects to report his tips is not eligible to receive increased compensation based
on those tips until 3 months after his employer receives the notice of election to report his tips.
4. The department shall adopt regulations specifying the form of the declaration required pursuant to
subsection 2.
5. The system or the self-insured employer shall calculate compensation for an employee on the basis
of wages paid by the employer plus the amount of tips reported after the employee has become eligible
for increased compensation pursuant to subsection 3.
SIIS then filed a petition for judicial review with the district court. On judicial review, the
district court concluded that employees who had to report their tip income to an employer did
not have to comply with the tip reporting requirements of NRS 616.401, but, instead, reported
their tip income pursuant to NRS 616.027(2).
2
The district court further reasoned it would be
fundamentally unfair not to include Woodall's tips, reported to the Internal Revenue
Service in an annual tax return, as part of her gross income for workman's compensation
purposes. Based upon these conclusions, the district court affirmed the appeals officer's
decision that any reasonable notice, including notice to the Internal Revenue Service in an
annual tax return, is sufficient notice to comply with the reporting requirements established in
NRS 616.401. This appeal followed.
REPORTING TIPS PURSUANT TO NRS 616.027(2)
[Headnote 1]
The issues presented involve the proper construction of two statutes, NRS 616.027(2) and
NRS 616.401, and, therefore, independent appellate review is appropriate. Nevada Emp. Sec.
Dep't v. Capri Resorts, 104 Nev. 527, 763 P.2d 50 (1988).
The district court comparted NRS 616.027(2) and NRS 616.401, and concluded these two
statutes conflicted with each other where NRS 616.027(2) does not establish a particularized
procedure for reporting tips while NRS 616.401 does. The district court felt this conflict
required judicial interpretation of the statutes, and, after such an interpretation, reasoned NRS
616.401 was remedial legislation intended to cover a specific class of persons who had
exclusive knowledge of their tip income.
3
The district court further reasoned that NRS
616.027(2) was intended to cover another class of tip earners who did not have exclusive
knowledge of their tips, but could be required by their employers to report tip income. Based
upon this analysis, the district court concluded that any employee like Rebecca Woodall,
whose employer was aware of the amount of tip income the employee received, reported their
tip income for the purposes of compensation benefits pursuant to NRS 616.027(2) and were
not required to comply with the voluntary tip reporting procedure outlined in NRS
616.401 in order to get SIIS disability payments based upon that tip income.
__________

2
2. For the purposes of this section, wage is increased by the amount of tips reported by an
employee to his employer except:
(a) Tips in a form other than cash; and
(b) Tips in cash which total less than $20 per month.

3
The district court cited waitresses and taxi drivers as examples of employees who would fall within this
class, apparently because these employees could take tips from customers and conceal the tips from their
employers.
required to comply with the voluntary tip reporting procedure outlined in NRS 616.401 in
order to get SIIS disability payments based upon that tip income. We reject this analysis.
NRS 616.027(2) defines an employee's average monthly wage to include cash tips
reported by an employee to his employer unless the tips total less than $20.00 per month.
However, this statute does not establish a procedure for reporting tips to either the employer,
or to SIIS. More importantly, NRS 616.027(2) does not require the employer to pay increased
premium payments to SIIS based upon the reported tip income, while NRS 616.401 does. See
NRS 616.401(2)(e).
NRS 616.027(2) and NRS 616.401 complement each other, and are not ambiguous as the
district court suggests. NRS 616.027(2) defines the terms of NRS 616.401, while NRS
616.401 sets forth a procedure for reporting tips to the employer and to SIIS. These two
statutes should be read in conjunction with each other, not polarized. Since these two statutes
do not conflict with each other, and are not ambiguous in this regard, the district court's
statutory interpretation was not warranted.
Further, the district court's construction defeats the purpose of NRS 616.401. Even if an
employee must report tip income to the employer, a reporting mechanism is helpful to insure
that records of the employee's tips are kept, and that the employer in turn reports the income
to SIIS so that a premium on the tip income will be paid. If records are not accurate, and if
increased premiums for the reported tip income are not paid to SIIS, then SIIS may be
required to pay benefits on income not factored into their actuarial.
4

Finally, if two separate classes were intended by NRS 616.027(2) and NRS 616.401, the
legislature would have indicated as much in the statutes themselves so the judiciary would
not be required to divine such a rule out of thin air.
In sum, then, NRS 616.027(2) does not create a special class of employee that can
ignore the tip reporting guidelines of NRS 616.401.
REPORTING TIPS BY FILING AN ANNUAL TAX RETURN
The district court also affirmed the appeals officer's conclusion that any reasonable
notice, including notice to the Internal Revenue Service in an annual tax filing, is
sufficient notice to comply with NRS 616.401.
__________

4
NRS 616.1701(1) provides in pertinent part:
1. The state industrial insurance system is hereby established as an independent actuarially funded
system for the purpose of insuring employers against liability for injuries and occupational diseases for
which their employees may be entitled to benefits under this chapter or chapter 617 of NRS, and the
federal Longshoremen's and Harbor Worker's Compensation Act.
that any reasonable notice, including notice to the Internal Revenue Service in an annual tax
filing, is sufficient notice to comply with NRS 616.401. Here, the first question asks whether
NRS 616.401 contemplates any kind of reasonable notice of tip income from the employee.
We hold that it does.
NRS 616.401(1) provides that [a]n employee may elect to report the amount he receives
as tips for the purpose of the calculation of compensation by submitting to his employer a
written notice of election to report his tips. (Emphasis added). This statute does not
specifically prescribe the type of notice required, as long as it is written notice. Nonetheless,
SIIS argues that employees must use a prescribed form specified by NAC 616.673
5
to report
tip income pursuant to NRS 616.401. This demand is overly restrictive.
[Headnotes 2, 3]
A reasonable, liberal and practical construction of workman's compensation statutes is
preferable to a narrow one where these statutes are enacted for the purpose of giving
compensation, not for denying it. SIIS v. Buckley, 100 Nev. 376, 381, 682 P.2d 1387, 1390
(1984); Industrial Commission v. Peck, 69 Nev. 1, 239 P.2d 244 (1952). Under a reasonable
liberal and practical construction of the statute, we conclude NRS 616.401 contemplates any
type of reasonable notice of tips to the employer.
6
Therefore, the failure to use the special
form specified in NAC 616.673 does not act as a bar to workman's compensation benefits for
tip income reasonably reported to an employer under NRS 616.401(1).
[Headnote 4]
The next question asks whether Woodall reasonably reported her tip income when she
declared the tip income on her annual tax filing to the Internal Revenue Service. We hold she
did not.
__________

5
NAC 616.673 provides:
An employee who elects to declare, pursuant to NRS 616.401, the amount he receives in cash tips in
the calculation of his average monthly wage must use the form entitled Employee's Notice of Election to
Report Tips.

6
SIIS argues that NRS 616.401(4) compels the creation and use of the NAC 616.673 form by employees
who report tip income to their employer pursuant to the statute. We disagree.
NRS 616.401(4) requires [t]he department [to] adopt regulations specifying the form of the declaration
required pursuant to subsection 2 [of NRS 616.401]. (Emphasis added.) A close examination of NRS 616.401
indicates that the declaration referred to in subsection 2 is one that the employee must sign under penalty of
perjury, stating that the contents of the employee's report of tips is true. This statute does not refer to the written
notice of tips the employee is required to provide an employer in subsection 1 of NRS 616.401.
If courts construe a tax return as reasonable notice of tips pursuant to NRS 616.401, then
every tip employee in Nevada who complies with mandated federal tax law on an annual
basis will automatically include their tips in their wages for the purposes of workman's
compensation benefits, yet their employers may not pay premiums on that tip income to SIIS
because the employers may not recognize a mandatory annual tax filing as notice of the tip
income under the voluntary scheme of NRS 616.401(1). While a ruling from this court could
inform employers that a tax filing is reasonable notice under NRS 616.401, we elect not to
make such a ruling where an annual tax filing is involved for the following reasons.
First, an annual tax return may be filed after a tip employee is injured as is demonstrated
by this case. Woodall reported her tip income for 1987 in an attachment to her Internal
Revenue Service 1040 Form. This form was signed on April 11, 1988, and was presumably
sent to the IRS sometime thereafter. Woodall sustained her injury on September 6, 1987, and
it appears she received notice from SIIS that her benefits would be calculated upon her
monthly salary, excluding tips, on or about December 31, 1987. Therefore, Woodall reported
her tip income on her 1987 tax return approximately seven months after she was injured, and
approximately three months after she received the notice from SIIS that the tip income would
not be included in her monthly wage assessment. Allowing an employee to provide notice of
tip income for increased compensation benefits after an injury occurs invites abuse.
Employees who otherwise would not have reported the tips in their annual federal tax return,
may elect to do so after an injury occurs so they can receive added disability benefits.
Second, such a tax filing is filed once a year. This conflicts with NRS 616.401 which
requires that the written notice of an election to report tips be made to an employer separately
for each pay period before the end of the next pay period. See NRS 616.401(1). An IRS
annual tax return will not be filed for each pay period, before the end of the next pay period,
unless an employee is only paid once a year.
For these reasons, the filing of an annual federal income tax return is not the type of
reasonable notice contemplated by NRS 616.401, and, accordingly, we reverse the order of
the district court.
____________
106 Nev. 660, 660 (1990) Tahoe Village Homeowners v. Douglas Co.
TAHOE VILLAGE HOMEOWNERS ASSOCIATION, JOHN ZACHAU and DAVID GEE,
Appellants, v. DOUGLAS COUNTY, Respondent.
No. 20528
October 25, 1990 799 P.2d 556
Appeal from an order of the district court granting respondent's motion to dismiss pursuant
to NRCP 12(b)(5). Ninth Judicial District Court, Douglas County; Archie E. Blake, Judge.
Condominium developers brought action against county after defects were discovered in
condominiums. The district court granted county's motion to dismiss, and developers
appealed. The Supreme Court held that: (1) developers had viable claim based on allegations
that county issued necessary documentation despite knowledge of defects, but (2) developers
did not have viable claim for willful misconduct or negligent inspection.
Linda E. Johnson, Carson City, for Appellant.
Brent T. Kolvet, District Attorney, Robert W. Story, Deputy District Attorney, Douglas
In reviewing trial court's grant of summary judgment, state Supreme Court accepted nonmoving party's allegations as true and
would affirm decision below only if, as a matter of law, moving party established that there was no genuine issue of material fact.
2. Counties.
Developers' allegations that county issued necessary documentation for condominium project despite knowledge of defects
supported tort claim against county.
Limitations period applicable to claim based on tortious injury to real property begins to run at time plaintiff learns, or in exercise
of reasonable diligence should have learned, of harm to property caused by construction defect.
4. Judgment.
Material fact issue existed as to whether developers' delayed discovery of defects in condominiums was made in exercise of
reasonable diligence, precluding summary judgment for county on developers' claim that county issued necessary documentation for
project despite knowledge of defects.
5. Counties.
Developers' allegations that county inspected during construction of condominiums, discovered defects, and, despite knowledge of
defects, wrongfully issued necessary documentation did not support claim for willful misconduct absent any allegation of intent to
harm.
6. Counties.
County was immune from condominium developers' claim for negligent inspection absent any allegation that county had
knowledge of alleged defects in condominiums. NRS 41.033.
OPINION
Per Curiam:
According to allegations in the parties' briefs and documentation contained in the record
on appeal, appellants, Tahoe Village Homeowners Associations, John Zachau, David Gee,
and others (Tahoe), sought to build condominiums on certain properties in Stateline, Nevada.
Respondent Douglas County (the County) issued building permits for the properties on May
31, 1973. Certificates of occupancy were issued on October 5 and 6, 1976. In October 1985,
Tahoe identified areas in need of repair, and in October 1986, Tahoe hired an engineer to
inspect the properties. The engineer detected numerous obvious structural defects in the
properties.
On August 10, 1988, Tahoe filed a complaint against the County which it amended on
October 26, 1988. The first amended complaint alleged that the County wrongfully issued
building permits for the properties despite knowledge of defects, and negligently inspected
the properties. The County filed a motion to dismiss on the grounds that Tahoe's complaint
failed to state a claim for relief pursuant to NRCP 12(b)(5). Tahoe subsequently filed a
motion for leave to amend its complaint to specifically include an action for willful
misconduct. The district court granted the County's motion to dismiss. The court did not rule
on Tahoe's motion to amend its complaint, but Tahoe concedes that the court impliedly
denied the motion to amend when it granted the County's motion to dismiss. Tahoe then filed
a motion for rehearing and to amend the district court's order and decision. The court denied
the motion. Tahoe then filed this appeal from the district court's order granting the County's
motion to dismiss.
[Headnote 1]
Initially, we note that the district court properly treated the County's motion to dismiss as a
motion for summary judgment. Accordingly, in reviewing the court's order, we accept
Tahoe's allegations as true and will affirm the decision below only if, as a matter of law, the
County has established that there is no genuine issue of material fact. See Torres v. Farmers
Ins. Exch., 106 Nev. 340, 793 P.2d 839, 842 (1990).
[Headnote 2]
As discussed below, the first cause of action in Tahoe's first amended complaint fails to
state a cause of action for willful misconduct. Nevertheless, we hold that the first cause of
action in Tahoe's first amended complaint does state a cause of action which may permit
Tahoe to go forward. As we stated in Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d
662, 663 (1985), [i]f the County had knowledge of the defects, the County owed a duty to
take action as a result of the discovery of the deficiencies. Immunity will not bar actions
based on the public entity's failure to act reasonably after learning of a hazard. In this case,
Tahoe has alleged in its first cause of action that the County issued the necessary
documentation despite knowledge of defects. Therefore, pursuant to Butler, there exists a
genuine issue of fact as to whether the County had knowledge of the defects at the time it
inspected; consequently, dismissal of this cause of action was improper.
1

[Headnotes 3, 4]
Upon remand, the district court must determine whether the first cause of action in Tahoe's
first amended complaint timely states a claim for relief against the County for failing to act
reasonably after learning of the deficiencies. Construction was allegedly completed in this
case in 1976. Tahoe avers that the alleged deficiencies were discovered in 1985-86. Tahoe
filed its complaint in 1988, approximately two years after it allegedly discovered the defects
and approximately twelve years after completion of construction. As noted in our recent
decision in Lotter v. Clark County, 106 Nev. 366, 370, 793 P.2d 1320, 1323 (1990), the
statutes of repose enacted in 1983 do not apply retroactively to claims such as this because
the cause of action accrued prior to the statutes' enactment.
2
The cause of action accrued
upon substantial completion of the property in 1976. See id. at 370, 793 P.2d at 1323. Thus,
NRS 11.220, the statute of limitations applicable to a claim based upon tortious injury to real
property, applies. Id. at 370-71, 793 P.2d at 1323. The four-year limitations period begins to
run at the time the plaintiff learns, or in the exercise of reasonable diligence should have
learned, of the harm to the property caused by a construction defect.
__________

1
Although appellant does not raise this issue on appeal, we hold that the district court's failure to recognize a
viable cause of action constituted plain error. Reversal is therefore warranted. See Bradley v. Romeo, 102 Nev.
103, 105, 716 P.2d 227, 228 (1986).

2
We are not unmindful of the County's contention that in responding to this appeal it relied on our decision
in Elley v. Stephens, 104 Nev. 413, 760 P.2d 768 (1988), regarding applicability of the statutes of repose.
However, we note that, because neither party in Elley raised the issue addressed in Lotter, the issue was simply
not considered. We hold, therefore, that the sound reasoning of Lotter controls.
limitations period begins to run at the time the plaintiff learns, or in the exercise of reasonable
diligence should have learned, of the harm to the property caused by a construction defect.
Oak Grove Inv. v. Bell & Gossett Co., 99 Nev. 616, 621-23, 668 P.2d 1075, 1078-79 (1983).
In this case, Tahoe alleges that it discovered the defects in 1986. It filed suit in 1988,
approximately two years laterwell within the four-year statute of limitations. Accordingly,
there exists a genuine issue of material fact as to whether Tahoe's delayed discovery was
made in the exercise of reasonable diligence. Id. at 623, 668 P.2d at 1079. Therefore, reversal
is warranted, and we remand to the district court for a determination of timeliness.
[Headnote 5]
Next, we hold that the district court correctly concluded that Tahoe's first amended
complaint did not establish a material issue of fact regarding willful misconduct.
3
The first
cause of action in Tahoe's first amended complaint states that the County inspected during
construction, discovered defects, and, despite knowledge of the defects, wrongfully issued the
necessary documentation. These allegations are insufficient to allege willful misconduct.
Willful misconduct requires some degree of intent to do harm, see Rocky Mt. Produce v.
Johnson, 78 Nev. 44, 51, 369 P.2d 198, 201-02 (1962), yet Tahoe's complaint contains no
allegations regarding intent. Therefore, the district court properly concluded that Tahoe failed
to plead facts to support a cause of action alleging willful misconduct.
[Headnote 6]
Lastly, we hold that it was proper for the district court to grant the County's motion as to
the second cause of action. The second cause of action in Tahoe's first amended complaint
alleges an action for negligence against the County. NRS 41.033 provides the County
immunity from liability in actions based upon failure to inspect or negligent inspections.
Although Tahoe's complaint alleges negligence arising from activities in addition to
inspection, the basic thrust of the action is for negligent inspection. This second cause of
action does not allege that the County had knowledge of the alleged defects and is therefore
distinguishable from the Butler type of action discussed above. Consequently, the complaint
fails to state a cause of action for negligence because the County is immune from such
action.4 It was therefore properly dismissed.
__________

3
In its brief, Tahoe mistakenly relies on its proposed second amended complaint, which specifically
included an action for willful misconduct. Tahoe concedes, however, that by granting the County's motion to
dismiss, the district court impliedly denied Tahoe's motion to amend its complaint. On appeal, Tahoe does not
challenge the district court's denial of its motion to amend its complaint. We, therefore, have relied on Tahoe's
first amended complaint in deciding this appeal.
complaint fails to state a cause of action for negligence because the County is immune from
such action.
4
It was therefore properly dismissed.
Accordingly, we reverse the order granting the County's motion to dismiss and remand the
case to the district court for a determination of whether Tahoe's delayed discovery was made
in the exercise of reasonable diligence; in the event that the court answers that question in the
affirmative, then a trial must be held with respect to the first cause of action of Tahoe's first
amended complaint.
____________
106 Nev. 664, 664 (1990) Muije v. A North Las Vegas Cab Co.
JOHN W. MUIJE, LTD., and CUMMINGS, CUMMINGS & DUDENHEFER, Appellants v.
A NORTH LAS VEGAS CAB COMPANY, INC., Respondent.
No. 20564
October 25, 1990 799 P.2d 559
Appeal from the district court's denial of appellants' motion that the court give priority to
appellants' attorney's lien over respondent's right to recover costs from the suit. Eighth
Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Personal injury plaintiff's counsel appealed from order entered in the district court denying
motion to have attorney's lien given priority over defendant's right to recover costs as result of
having offered to settle for more than trial verdict. The Supreme Court held that offset for
costs was part of trial judgment and took priority over attorney's lien.
Affirmed.
John W. Muije, Las Vegas, Cummings, Cummings & Dudenhefer, New Orleans, Louisiana,
for Appellants.
Alverson, Taylor, Mortensen & Gould and Richard W. Black, Las Vegas, for Respondent.
Attorney and Client.
Offset against personal injury damages award to which defendant was entitled for its costs and attorney fees as result of its offering
to settle case for more than damages actually awarded was part of trial judgment and thus took priority over
perfected attorney's lien, which attached to net judgment after offset.
__________

4
Because the County failed to claim immunity in the court below, the district court unnecessarily determined
that the action was time barred. However, as discussed supra, the action was nevertheless properly dismissed.
case for more than damages actually awarded was part of trial judgment and thus took priority over perfected attorney's lien, which
attached to net judgment after offset. NRS 17.115, 18.015.
OPINION
Per Curiam:
Opal Jean Peregoy was injured when her car was hit from behind by a cab driven by an
employee of A North Las Vegas Cab Company, Inc. (Cab Company). Peregoy hired
appellants John W. Muije, Ltd. and Cummings, Cummings & Dudenhefer (hereinafter Muije)
to represent her in a negligence action against respondent Cab Company.
Before trial, Cab Company gave Peregoy two offers of judgment to settle the case, first for
$200,000 and then for $250,000. Muije advised Peregoy to accept the offer both times. Muije
also advised Peregoy of the adverse consequences imposed by NRS 17.115 that could result if
her award at trial were less favorable than either of these offers. Nevertheless, Peregoy
wanted her day in court and she refused to settle.
The jury awarded Peregoy $12,311.75 in damages. Before the jury's verdict, Muije filed an
attorney's lien pursuant to NRS 18.015. After trial, Cab Company filed a motion for attorney's
fees and costs. The court awarded $86,098.06 to Cab Company pursuant to NRS
17.115(4)(b), which permits the court to award fees and costs to a party that had offered to
settle for more than the trial verdict. Thus, Peregoy won nothing in the aggregate, and in fact
owed Cab Company $73,786.31.
Muije contends that his lien against his client's recovery pursuant to NRS 18.015 must be
satisfied before Cab Company can collect its award of fees and costs from the suit. Muije
proposes three different reasons for his position. First, Muije asserts that his claim is superior
because it was first in time among conflicting claims. Second, he asserts that as the equitable
assignee of any judgment his client might receive, his claim should take priority over Cab
Company's, since Cab Company is not a secured creditor or a lienholder of his client. Finally,
Muije claims that the policy behind an attorney's ability to perfect a judgment lien outweighs
the policy behind awarding fees and costs when reasonable offers of judgment are rejected.
Muije argues that this lien was perfected as soon as he notified the other parties of its
existence. NRS 18.015(2) does state that, [a]n attorney perfects his lien by serving notice in
writing . . . upon his client and upon the party against whom his client has a cause of action. .
. . Thus, Muije claims that he had an actual lien on the jury's verdict even before the jury
deliberated.
lien on the jury's verdict even before the jury deliberated. Moreover, Muije contends that Cab
Company's lien was not perfected until after trial because the court did not award the offset to
Cab Company until the trial was over.
Muije's claim was first in time. In addition, he did perfect his lien against his client
pursuant to NRS 18.015(2). The question before the court is whether Cab Company's claim is
a competing claim, or part of the trial judgment. Thus, Muije cannot prevail under his first
theory that his claim is first in time, or his second theory that he is the only lienholder, unless
the trial in this case ended in a judgment against which he could attach his lien.
Many cases in other jurisdictions have held that an offset is part of the trial judgment, and
thus it takes priority over an attorney's lien. Salaman v. Bolt, 141 Cal.Rptr. 841 (Ct.App.
1977); Galbreath v. Armstrong, 193 P.2d 630 (Mont. 1948); Hobson Constr. Co., Inc. v. Max
Drill, Inc., 385 A.2d 1256 (N.J.Super.App.Div. 1978); Johnson v. Johnston, 254 P. 494
(Okla. 1927).
In Salaman, the court gave priority to an offset arising from an unrelated matter between
the two parties. In explaining that an offset must be satisfied before attorney's fees, the court
stated:
[E]quitable offset is a means by which a debtor may satisfy in whole or in part a
judgment or claim held against him out of a judgment or claim which he has
subsequently acquired against his judgment creditor. The right exists independently of
statute and rests upon the inherent power of the court to do justice to the parties before
it.
Salaman, 141 Cal.Rptr. at 847.
Thus, the Salaman court determined that equity requires settlement of the net verdict
between the two parties before attorneys' liens may attach.
The argument that Cab Company is not a lienholder nor a secured creditor ignores Cab
Company's status as a party to the case. The purpose of the suit was to determine what Cab
Company owed, and the net result of the suit was that Cab Company owed nothing. In
Hobson, the plaintiff won a judgment in the Law Division but lost a greater judgment in a
related action in the Chancery Division. The court held that, [u]nder such circumstances the
attorney's lien could not be enforced for there would be no judgment or fund available to the
client to which it could attach. . . . Hobson, 385 A.2d at 1258. The Hobson court reasons that
the prevailing party should not be burdened by the claims asserted by the losing party's
attorney. Id. at 1258. The purpose of a lawsuit is to settle a dispute between two parties.
Only after that dispute is settled, should the courts or legislature supervise the division of a
recovery between attorney and client.
In Galbreath, Hobson, and Salaman, each court weighed the equities and determined that
a perfected attorney's lien attaches to the net judgment that the client receives after all setoffs
arising from that action have been paid. Once a net judgment is determined, then the
attorney's lien is superior to any later lien asserted against that judgment. See United States
Fidelity & Guarantee v. Levy, 77 F.2d 972 (5th Cir. 1935) (attorney's lien is superior to offset
from a claim arising out of a different matter from which the judgment arose); Cetenko v.
United California Bank, 638 P.2d 1299 (Cal. 1982) (attorney's lien is superior to that of
another creditor who obtained a lien on the same judgment); Haupt v. Charlie's Kosher
Market, 112 P.2d 627 (Cal. 1941) (attorney's lien is superior to that of third-party judgment
creditor).
The purpose of NRS 17.115 is to promote settlement of suits by rewarding defendants who
make reasonable offers and penalizing plaintiffs who refuse to accept them. Early settlement
saves time and money for the court system, the parties, and the taxpayers. NRS 18.015 also
accomplishes an important function of securing attorney's fees and thereby encouraging
attorneys to take cases of those who could not otherwise afford to litigate. However, the
imposition of attorney's fees pursuant to NRS 18.015 should not reduce the advantage the
defendant gains by making a reasonable offer to settle. NRS 17.115 requires a plaintiff's
attorney to advise his or her client to accept reasonable offers. The possibility that a client
will not heed sound advice is a risk that the attorney, not the opposing party, must bear.
Having determined that Cab Company's setoff is superior to Muije's attorney's lien, we
hereby affirm the judgment of the trial court.
____________
106 Nev. 667, 667 (1990) Harris v. State
ROBERT JAMES HARRIS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20725
October 25, 1990 799 P.2d 1104
Appeal from a judgment of conviction of one count of first degree murder with use of a
deadly weapon and resulting consecutive sentences of life imprisonment without possibility
of parole. Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
Following the jury trial in capital murder prosecution before the district court defendant
was convicted of first degree murder with use of deadly weapon and received consecutive
sentences of life imprisonment without possibility of parole. Defendant appealed. The
Supreme Court held that: (1) refusal to give defendant's requested jury instructions on
self-defense and justification was error; (2) refusal to instruct jury regarding consequences of
verdict of not guilty by reason of insanity was reversible error; (3) refusal to instruct jury that
evidence of defendant's felony convictions could be considered only on issue of his credibility
of witness and not as substantive proof of his guilt of crime was error; and (4) refusal to allow
defendant during penalty phase to introduce documentary evidence to establish that prior
California felony conviction for escape, which State had introduced, was accomplished
without force or violence was error.
Morgan D. Harris, Public Defender, and Gary H. Lieberman, Deputy Public Defender,
Clark County, for Appellant.
Tufteland, Deputy District Attorney, and William P. Henry, Deputy District Attorney, Clark
1. Homicide.
Refusal to give defendant's requested instructions on self-defense and justification in murder trial was error; sufficient evidence to
support defendant's self-defense theory was adduced by defendant's own testimony that victim attacked and attempted to rob him.
2. Homicide.
District court committed reversible error in refusing to instruct jury regarding consequences of verdict of not guilty by reason of
insanity in capital murder case in which evidence against finding of insanity was not overwhelming and jury was not otherwise
apprised of consequences of verdict.
3. Criminal Law.
Refusal to instruct jury that evidence of defendant's prior felony convictions could only be considered on issue of defendant's
credibility and not as substantive proof of his guilt of murder was error. NRS 50.095.
4. Homicide.
Refusal to allow defendant in capital murder prosecution to introduce mitigating evidence that prior felony escape conviction
involved escape that was accomplished without force or violence was error.
OPINION
Per Curiam:
During the morning hours of October 11, 1987, Sammy Lee Young was stabbed to death
on the streets of downtown Las Vegas. At approximately 7:30 p.m. on October 11, 1987,
appellant Robert James Harris approached LaPryce Spencer at a downtown Las Vegas bus
stop, sat down, informed Spencer that he had stabbed a man earlier in the day, and displayed
a blood-stained folding pocket knife. Spencer excused herself and located alternate
transportation. Approximately one hour later, Harris approached Eddie Griffin at a downtown
Las Vegas gas station. As with his previous confidante, Harris informed Griffin that he had
stabbed someone earlier that day and again displayed the blood-stained knife. Like Spencer,
Griffin removed himself from Harris' company.
Later that evening, Griffin heard a news report about a downtown stabbing. Suspecting he
may have encountered the assailant, Griffin drove back to the area where he had met Harris
and hailed a passing police car. In the company of two police officers, Griffin spotted Harris
approximately two blocks from where Young had been stabbed. The officers arrested Harris
and confiscated a blood-stained knife. Harris denied any knowledge of or involvement in the
killing.
A court appointed psychiatrist, Dr. Jack Jurasky, examined Harris on November 9, 1987.
Jurasky concluded that Harris was suffering from severe and incapacitating mental illness and
was incapable of assisting his attorney. A second psychiatrist, Dr. Franklin Master, examined
Harris on December 6, 1987. Due to Harris' uncooperativeness, Master declined to offer a
diagnosis. Harris was thereafter committed to Lake's Crossing Center for the Mentally
Disordered Offender.
In April of 1988, a sanity commission comprised of three psychiatrists, Doctors Philip
Rich, Jerry Howle, and Lynn Gerow, was appointed to reevaluate Harris. The three doctors
unanimously concluded that Harris was capable of assisting his attorney and able to
understand the charges against him. Accordingly, the district court ruled that Harris was
competent to stand trial, and criminal proceedings were commenced.
The State charged Harris with murder with use of a deadly weapon and filed a notice of
intent to seek the death penalty. Harris pled not guilty and not guilty by reason of insanity. At
trial, Harris testified that Young had tried to attack and rob him, and that he defended himself
by stabbing Young. Dr. Jurasky testified that Harris was unable to distinguish right from
wrong and incapable of premeditation. Dr. Master offered a contrary opinion.
and incapable of premeditation. Dr. Master offered a contrary opinion. The jury found Harris
guilty of first degree murder with use of a deadly weapon. Following a penalty hearing, the
same jury returned a sentence of life imprisonment without possibility of parole. The sentence
was enhanced due to Harris' use of a deadly weapon and consecutive life terms without
possibility of parole were imposed. This appeal ensued.
The Guilt Phase
Harris contends that the district court erred in refusing to deliver jury instructions offered
by the defense which related to self-defense and justification. This contention has merit.
[Headnote 1]
We have previously held that [a] defendant in a criminal case is entitled, upon request, to
a jury instruction on his theory of the case so long as there is some evidence, no matter how
weak or incredible, to support it. Roberts v. State, 102 Nev. 170, 172-73, 171 P.2d 1115,
1116 (1986) (quoting Williams v. State, 99 Nev. 530, 531, 665 P.2d 260, 261 (1983)).
Sufficient evidence to support appellant's self-defense theory was adduced in this
caseHarris testified that Young attacked and attempted to rob him. Thus, the district court
erred in refusing to deliver the requested instructions.
[Headnote 2]
Next, Harris contends that the district court erred in refusing to instruct the jury regarding
the consequences of a verdict of not guilty by reason of insanity. Again, we agree.
Where, as in the instant case, the evidence against a finding of insanity is not
overwhelming, and the jury is not otherwise apprised of the consequences of a verdict of not
guilty by reason of insanity, it is reversible error not to instruct the jury as to such
consequences. See Bean v. State, 81 Nev. 25, 33-34, 398 P.2d 251, 256-57 (1965).
[Headnote 3]
Third, Harris contends that the district court erred in refusing to instruct the jury that
evidence of Harris' prior felony convictions could only be considered on the issue of Harris'
credibility as a witness and not as substantive proof of his guilt. The requested instruction
reflects the law of this state as set forth in NRS 50.095. The district court erred in refusing to
deliver the requested instruction.
The Penalty Phase
In both the penalty and guilt phases of the instant case, the State presented evidence that
in 1979 Harris had been convicted by a California jury on a felony charge of escape from a
state prison.
State presented evidence that in 1979 Harris had been convicted by a California jury on a
felony charge of escape from a state prison. In response, Harris sought permission to
introduce documentary evidence which established that the escape was accomplished without
force or violence. Harris contends that the district court erred in denying his request. We
agree.
In a capital case, possession of the fullest information possible regarding the defendant's
life and characteristics is essential to the selection of an appropriate sentence. Wilson v.
State, 105 Nev. 110, 115, 771 P.2d 583, 586 (1989) (citing Lockett v. Ohio, 438 U.S. 586,
603 (1978)). The sentencing body may not be precluded from considering any relevant
mitigating evidence. Wilson, 105 Nev. at 115, 771 P.2d at 586 (citing Skipper v. South
Carolina, 476 U.S 1, 4 (1986)). The district court's refusal to allow the proffered evidence in
the instant case was in error.
For the foregoing reasons, we reverse Harris' conviction and remand this case to the
district court for a new trial.
____________
106 Nev. 671, 671 (1990) Morgan v. Demille
DWAYNE MORGAN and ESTHER MORGAN, Appellants, v. MELANIE DEMILLE,
Respondent.
No. 20904
October 25, 1990 799 P.2d 561
Appeal from an order of the district court denying appellants' motion for attorney's fees
following a bench trial wherein appellants prevailed in their action for personal injury and
loss of consortium. Eighth Judicial District Court, Clark County; Jack Lehman, Judge.
Motorists brought action against driver whose vehicle struck theirs. After plaintiff
motorists obtained damage award, they moved for costs and attorney fees. The district court
denied the motion, and plaintiff motorists appealed. The Supreme Court held that: (1)
multiple plaintiffs who made unapportioned joint offer of judgment to defendant were not
entitled to award of costs and attorney fees after judgment exceeding the offer of judgment
was obtained in trial on theory defendant was not able to obtain more favorable judgment
than that offered, and (2) plaintiffs who had requested admission from defendant that her
negligence was sole cause of vehicular collision and that defendant was liable for any
damages resulting from collision were not entitled to award of attorney fees based upon
denial of request for admission, even though plaintiffs recovered at trial.
Affirmed.
Christensen & Pike, Las Vegas, for Appellants.
Pearson and Patton and Ronald M. Pehr, Las Vegas, for Respondent.
1. Costs.
Multiple plaintiffs who made unapportioned joint offer of judgment to defendant were not entitled to award of costs and attorney
fees after judgment exceeding the offer of judgment was obtained in trial on theory defendant was not able to obtain more favorable
judgment than that offered. NRCP 68.
Supreme Court did not need to consider appellants' claim for attorney fees pursuant to civil rule where appellants failed to cite any
authority to support their claim for fees. NRCP 37(c).
Plaintiffs who had requested admission from defendant that her negligence was sole cause of vehicular collision and that defendant
was liable for any damages resulting from collision were not entitled to award of attorney fees based upon denial of request for
admission although plaintiffs recovered at trial; request for admission called for crucial facts central to lawsuit or legal concessions,
rather than for admission of facts which were in no real dispute, so denial of request for admission was proper. NRCP 37(c).
Purpose of procedural statute such as rule providing for award of attorney fees incurred in proving matter which party fails to
admit upon request is to obtain admission of facts which are in no real dispute and which adverse party can admit cleanly, without
qualifications. NRCP 37(c).
OPINION
Per Curiam:
Appellants Dwayne Morgan (Dwayne) and Esther Morgan (Esther) filed an action against
respondent Melanie Demille (Melanie), alleging that Melanie negligently drove through a red
light and struck Dwayne's vehicle. Dwayne sought damages for personal injuries sustained as
a result of the accident. Further, although Esther was not physically injured, appellants
alleged that Esther was entitled to damages for loss of consortium. Dwayne and Esther made
an offer of judgment for $27,000.00 to Melanie pursuant to NRCP 68. The amount of the
offer was not apportioned between Dwayne and Esther. Melanie countered with an offer of
judgment of $8,001.00 for Dwayne and $1,000.00 for Esther. None of the offers were
accepted. Prior to trial, both Dwayne and Esther submitted a request to Melanie seeking
Melanie's admission that her negligence was the sole cause of the collision and that she was
liable for any damages that resulted from the collision.
resulted from the collision. Melanie rejected this request for admission. Following a bench
trial, the district court awarded Dwayne and Esther $30,540.20 in damages.
Following the judgment, Dwayne and Esther moved for costs and attorney's fees pursuant
to NRCP 68 and pursuant to NRCP 37(c). The district court denied the motion. This appeal
followed.
[Headnote 1]
Appellants argue that the question after the judgment is not whether the multiple plaintiffs
or the individual plaintiffs were able to exceed the offer, but whether defendant was able to
obtain a more favorable judgment. As appellants note, they made an offer of judgment of
$27,000.00 to respondent, and respondent ultimately paid more to appellants than that offer
of judgment. Therefore, appellants maintain that the district court erred.
The main Nevada case addressing a situation such as the one at hand is Ramadanis v.
Stupak, 104 Nev. 57, 752 P.2d 767 (1988). As appellants observe, Ramadanis holds that a
defendant making an offer of judgment must bifurcate that offer of judgment between the
plaintiffs. Appellants argue, therefore, that this case is distinguishable from Ramadanis
because the offer of judgment came from multiple plaintiffs to a defendant. Appellants note
that the reasoning behind Ramadanis is that a joint offer from a defendant makes it
impossible to say that any plaintiff received a less favorable result that he would have under
the offer of compromise.
Ramadanis involved a defendant who made an offer of judgment of $15,000.00 pursuant
to NRCP 68 to both plaintiffs. The amount of the offer was not apportioned between the
plaintiffs. The offer was rejected. Following the trial, a jury awarded plaintiffs $17,528.75. Id.
at 58, 752 P.2d at 768. Plaintiffs, by separate motions, moved for prejudgment interest
pursuant to NRS 17.130(2) and attorney's fees pursuant to NRS 18.010. Defendant opposed
plaintiffs' motions and made a counter motion for attorney's fees and costs pursuant to NRCP
68. The district court denied all motions.
In Ramadanis, this court held that the offer of judgment was invalid as an unapportioned
joint offer.
1
This court reasoned that where an offer is made jointly to all plaintiffs and does
not apportion the offer among plaintiffs, it is impossible to say that any plaintiff received
a more favorable result than he would have under the compromise." Id. at 59.
__________

1
We relied on Randles v. Lowry, 84 Cal.Rptr. 321 (Cal.App. 2 Dist. 1970). In Randles, a mother, father, and
child sought damages against defendant arising out of an automobile accident. Prior to trial, defendant made an
offer of judgment by permitting plaintiffs (mother, father and child) to take judgment against him for the sum of
$2,300, each party to bear costs. In Randles, the offer, however, did not designate the amount offered to each
plaintiff. The offer was not accepted. Id. at 321. The case then went to trial,
apportion the offer among plaintiffs, it is impossible to say that any plaintiff received a more
favorable result than he would have under the compromise. Id. at 59.
Although Ramadanis addressed the issue of an unapportioned joint offer of judgment
made by a defendant to multiple plaintiffs, the validity of an unapportioned joint offer made
by multiple plaintiffs to one defendant has not been addressed by this court.
The California Court of Appeal, however, addressed this issue in Hurlbut v. Sonora
Community Hospital, 254 Cal.Rptr. 840 (Cal.App. 5 Dist. 1989). The court reasoned that:
To consider plaintiffs' joint settlement offer as valid would deprive defendant of the
opportunity to evaluate the likelihood of each party receiving a more favorable verdict
at trial. Such an offer makes it impossible to make such a determination after verdict.
We hold that the joint settlement offer presented by plaintiffs was not a valid settlement
offer under Code of Civil Procedure section 998 and the order after judgment directing
defendant to pay to plaintiffs certain expert witness fees must be reversed.
Id. at 852-53.
The reasoning in Hurlbut is persuasive. NRCP 68 is similar in substance to Cal. Civ. Code
section 998. The language in NRCP 68, like Cal. Civ. Code section 998, speaks in the
singular: [A]ny person may serve upon the adverse party an offer to allow judgment to be
entered for the money or property or to the effect specified in the offer . . . . Therefore, we
conclude that the rule enunciated in Ramadanis, regarding defendant's offer of judgment to
more than one plaintiff, should apply where more than one plaintiff makes an offer of
judgment to one defendant.
Moreover, we note that the purpose of NRCP 68 is to encourage the settlement of lawsuits
before trial. T. M. Cobb Co. v. Superior Court, 682 P.2d 338 (Cal. 1984). In order to best
effectuate the purpose of the offer of judgment rule, it is important to treat plaintiffs and
defendants on an equal basis when an offer of judgment is made without designating how it
should be divided between the respective defendants or plaintiffs.
__________
and the jury awarded the mother $1,840.49 and the child $40.50, but ruled against the father and in favor of
defendant. Id. at 322.
The trial court applied California Code of Civil Procedure section 997, and concluded that defendant was
entitled costs incurred after the offer of judgment was made. Id. at 325. On appeal, the court of appeal reversed
the trial court's decision regarding defendant's award of costs. The court further stated that section 997 could not
apply because the offer of compromise was a nullity. The offer was made jointly to all plaintiffs, without
designating how it should be divided between them. It is therefore impossible to say that any one plaintiff
received a less favorable result that he would have under the offer of compromise. Id. at 325.
offer of judgment is made without designating how it should be divided between the
respective defendants or plaintiffs. Applying the rule announced in Ramadanis to plaintiffs as
well as defendants encourages the settlement of lawsuits before trial.
Appellants next contend that because respondent denied appellants' request to admit
liability in this case, the trial court erred in failing to award them attorney's fees pursuant to
NRCP 37(c).
2
As noted, respondent rejected appellants' request for an admission of
negligence and liability.
[Headnote 2]
Appellants fail to cite any authority to support their claim for attorney's fees under NRCP
37(c). Therefore, this court need not consider appellants' contention. Bennett v. Fidelity &
Deposit Co., 98 Nev. 449, 652 P.2d 1178 (1982). Nonetheless, we have considered
appellants' contention and conclude that it is without merit.
[Headnote 3]
Although this court has not previously interpreted NRCP 37(c), in Reid Sand & Gravel v.
Bellevue Properties, 502 P.2d 480 (Wash.Ct.App. 1972), the Washington Court of Appeals
addressed a substantially similar situation arising under Washington's counterpart to NRCP
37(c). The court stated:
As pointed out earlier, the procedure for obtaining admissions of fact is to be used to
obtain admission of facts as to which there is no real dispute and which the adverse
party can admit cleanly, without qualifications. Typical of such facts are delivery,
ownership of an automobile, master and servant relationship, and other facts of that
nature which are not in dispute and of which an admission will greatly facilitate the
proof at trial. It is not intended to be used to cover the entire case and every item of
evidence.
Id. at 483 (quoting 2 Moore's Federal Practice 2658, 36.03 and Weyerhaeuser Sales Co. v.
Holden, 203 P.2d 685 (Wash. 1949)).
[Headnote 4]
In the instant case, appellants requested respondent to admit that her negligence was the
sole cause of the collision and that respondent was liable for any damages proximately
caused to appellants as a result of the collision.
__________

2
NRCP 37(c) provides:
If a party fails to admit the genuineness of any document or the truth of any matter as requested under
Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or
the truth of the matter, [she] he may apply to the court for an order requiring the other party to pay him
the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court
shall make the order unless it finds that there was good reason for the failure to admit.
that her negligence was the sole cause of the collision and that respondent was liable for any
damages proximately caused to appellants as a result of the collision. This request is too
broad and involves both factual issues as well as legal issues. The purpose of procedural
statutes such as NRCP 36 is to obtain admission of facts which are in no real dispute and
which the adverse party can admit cleanly, without qualifications. See Reid Sand & Gravel,
502 P.2d at 483. Here, appellants' request for admission called for either crucial facts central
to the lawsuit or legal concessions. Therefore, respondent's response to this request for
admission was proper and appellants' request for attorney's fees is without merit.
Accordingly, the decision of the trial court is affirmed.
____________
106 Nev. 676, 676 (1990) Thornton v. Agassiz Construction
HURD THORNTON AND SALLY KRUEGER, Appellants, v. AGASSIZ
CONSTRUCTION, INC., a Minnesota Corporation, and GARY G. BRIDGEFORD,
Respondents.
No. 20809
October 25, 1990 799 P.2d 1106
Appeal from a district court order of dismissal for failure to state a claim. Eighth Judicial
District Court, Clark County; Carl J. Christensen, Judge.
Purchasers in a vendor/construction contract for a house sued vendor/contractor, alleging
that contractor failed to construct the house according to specifications. The district court
dismissed the action for failure to state a claim, and purchasers appealed. The Supreme Court
held that: (1) vendor/contractor was on notice that purchasers would plead excuse, and (2) a
buyer in a vendor/construction contract can bring suit prior to tendering the full purchase
price whenever the vendor/contractor deviates substantially from the contract specifications.
Wells, Kravitz, Schnitzer, Sloane & Lindsey, Las Vegas, for Appellants.
Marquis, Haney & Aurbach and Avece Higbee, Las Vegas, for Respondents.
1. Vendor and Purchaser.
Where home purchaser alleged in pleadings that seller failed to construct home according to specifications, seller
was on notice that purchasers would plead excuse.
construct home according to specifications, seller was on notice that purchasers would plead excuse. NRCP 9(c).
Payment of purchase price is excused where seller's breach was material; materiality is generally question of fact.
Purchaser in vendor/construction contract can bring suit prior to tendering full purchase price whenever vendor/contractor deviates
substantially from contract specifications.
OPINION
Per Curiam:
Agassiz Construction (Agassiz) was the owner of real property located at 2279 Rivercity
Drive, Laughlin, Nevada (lot 10). On July 1, 1989, Agassiz executed a written contract,
through its president, Aaron Stover, to sell lot 10 to Hurd Thornton and/or nominees for
$245,000. Agassiz further agreed to finish construction of the house on lot 10 with the
equivalent quality and workmanship of the house constructed by Agassiz on lot 20 before the
close of escrow. Closing of escrow was contingent upon sale of lot 20 by Agassiz to a third
party.
Escrow was to close on or before September 1, 1989. On July 21, 1989, Thornton
deposited $10,000 into escrow. More than $50,000 additional dollars were deposited
sometime after the initial deposit. Sometime after July 21, 1989, Thornton nominated Sally
Krueger as buyer in place and stead. Sally Krueger agreed to this nomination.
The sale of lot 20 closed. At the time of closing, this lot included a patio. Prior to
September 1, 1989, appellants, or their agent, inspected lot 10 and advised Agassiz that a
patio of equivalent quality and workmanship needed to be constructed on lot 10 in order to
fulfill the July 1, 1989, contract. Respondent failed and refused to construct a patio of the
equivalent quality and workmanship as constructed on the lot 20 residence.
On September 14, 1989, Agassiz purportedly transferred title to respondent Gary
Bridgeford. Appellants allege that this was a sham transfer and that Bridgeford was aware of
appellants' contractual rights.
The district court found the pleadings insufficient to state a breach of contract action. The
only possible deficiency in appellants' complaint was that it failed to allege that appellants
were excused from tendering full performance.
1
[Headnote 1]
[Headnote 1]
__________

1
Full payment of the purchase price may be deemed a constructive condition concurrent to conveyance of
title.
[Headnote 1]
While appellants did not specifically plead excuse, appellants did allege that Agassiz failed
to construct lot 10 according to specifications. This fact notified respondents that appellants
would plead excuse. See Hay v. Hay, 100 Nev. 196, 198, 678 P.2d 672, 674 (1984) (courts
should liberally construe pleadings to place into issue matters which are fairly noticed to the
adverse party).
Respondents contend that NRCP 9(c) requires appellants to specifically plead excuse. No
such language is found in the statute. Only a denial of performance need be made specifically
and with particularity.
2
Therefore, we conclude that the pleadings were sufficient to state a
cause of action.
Having established that the pleadings are sufficient, we now consider whether the district
court was entitled to conclude as a matter of law that appellants' breach was unexcused.
[Headnote 2]
Payment of the purchase price is excused where respondent's breach was material. 4 A.
Corbin, Corbin on Contracts 977; see also Hinckley v. Pittsburgh Bessemer Steel Co., 121
U.S. 264 (1886). Materiality is generally a question of fact. See Converse v. Zinke, 635 P.2d
882 (Colo. 1981). In setting a standard for determining materiality, we note that a
vendor/construction contract is a special case.
[Headnote 3]
Nevada case law holds that a purchaser who closes an escrow is held to have waived the
right to seek damages for any discrepancies he has knowledge of at the time of closing.
Epperson v. Roloff, 102 Nev. 206, 719 P.2d 799 (1986); Freemen v. Soukup, 70 Nev. 198,
265 P.2d 207 (1953). Thus, if the buyer in a vendor/construction contract tendered full
payment, buyer could be found to have waived any defects. Such a result demands that a
buyer be able to withhold payment when construction has not been completed according to
specification.
Therefore, we hold as a matter of law that a buyer in a vendor/construction contract can
bring suit prior to tendering the full purchase price whenever the vendor/contractor deviates
substantially from the contract specifications.
Accordingly, we reverse the order of dismissal and remand the case to the district court.
__________

2
The statute also requires plaintiff to aver generally that all conditions precedent have been performed or
have occurred.
____________
106 Nev. 679, 679 (1990) Moore v. Bannen
ALEXANDER MOORE, A MINOR, BY HIS GUARDIAN AD LITEM, DARLENE V.
MOORE, and DARLENE MOORE and HENRY L. MOORE, INDIVIDUALLY,
Appellants, v. WILLIAM E. BANNEN, M.D., and WILLIAM E. BANNEN, M.D.,
LTD., Respondents.
No. 20469
October 25, 1990 799 P.2d 564
Appeal from denial of plaintiff's motion for additur or, in the alternative, motion for new
trial on the issue of damages. Eighth Judicial District Court, Clark County; Myron E. Leavitt,
Judge.
Medical malpractice action was brought against two physicians. Prior to trial, plaintiffs
settled with one physician, and proceeded to trial solely against the other physician. The
district court entered judgment on a jury verdict for plaintiffs, and subsequently denied
plaintiffs' motion for additur or, in the alternative, motion for new trial on the issue of
damages. Plaintiffs appealed. The Supreme Court held that the jury was improperly informed
of the settlement.
Galatz, Earl, Catalano & Smith, Las Vegas, for Appellants.
Barker, Gillock, Koning, Brown & Earley, Las Vegas, for Respondents.
Damages.
Allowing jury to be informed about existence of settling co-defendants can lead to improper speculation; thus, where there has
been settlement between plaintiff and one of several defendants, jury may not be informed as to either fact of settlement or sum paid.
NRS 41.141.
OPINION
Per Curiam:
The issue to be decided in this appeal is whether the district court erred in instructing the
jury as to the existence of a settlement between plaintiffs and a former co-defendant. For the
reasons set forth below, we find that the district court did so err and therefore reverse and
remand for a new trial on the issue of damages.
Facts
About a day after his birth in a Las Vegas, Nevada hospital, appellant Alexander Moore
{Alexander) showed signs of a problem known as jaundice.
appellant Alexander Moore (Alexander) showed signs of a problem known as jaundice. Soon
after being brought home by his parents, Alexander's condition began to worsen, and the
infant was taken by his mother to a local clinic. A doctor at the clinic, respondent Dr. William
E. Bannen, ran some tests in an attempt to determine the cause of the problem. The results of
these tests were not reported to Alexander and his parents in a timely manner, however,
Alexander developed a serious condition known as kernicterus. Alexander's parents then
brought suit individually and on his behalf against both Dr. Bannen, and Alexander's
pediatrician, Dr. Gary Hoffman, alleging that the negligence of these doctors had been the
cause of Alexander's injuries.
Just prior to trial, appellants reached a monetary settlement with Dr. Hoffman, and thus
proceeded to trial solely against Dr. Bannen. The Moores then sought to exclude any mention
of this compromise to the jury. The trial court granted the motion, but reserved the right to
determine at a later time whether it would instruct the jury on the settlement. At the
conclusion of the evidence, the district court did, in fact, instruct the jury that a settlement
was reached between plaintiffs and Dr. Hoffman.
1
The jury then returned a verdict in
Alexander's favor, awarding him damages in the amount of $112,000.00. The Moores
appealed.
Appellants contend that the trial court erred in giving the jury any information with regard
to the settlement with Dr. Hoffman. The Moores argue that the instruction given by the trial
court allowed the jury to speculate that appellants were seeking a double recovery to which
they were not entitled, and that the jury therefore returned an unfairly low verdict in order to
prevent such a recovery from occurring. For the reasons discussed below, we agree that it was
error for the trial court to have given the disputed instruction, and declare that henceforth
where there has been a settlement between a plaintiff and one of several defendants, the
jury may not be informed as to either the fact of the settlement or the sum paid.
__________

1
The instruction read as follows:
INSTRUCTION NO, 19: Dr. Gary Hoffman was named as a defendant in this action, but prior to trial
a settlement was reached with Dr. Hoffman and all claims against him were removed from your
consideration.
The terms of that settlement are confidential and may not be disclosed to you. You are to determine
the liability, if any, of the remaining defendants in this action and to assess such damages, if any, as you
may deem appropriate. If you conclude that defendants are liable, you may return an award that fully
compensates the plaintiffs for all of their injuries without regard to the fact that the plaintiffs received
compensation from Dr. Hoffman. The court will determine any apportionment of compensation.
been a settlement between a plaintiff and one of several defendants, the jury may not be
informed as to either the fact of the settlement or the sum paid.
Discussion
The question presented, whether it is proper to instruct the jury regarding absent settling
defendants, has not been addressed by the courts of this state. In many recent cases, however,
courts in other states have held that it was error to so inform the jury. See, e.g., Slayton v.
Ford Motor Co., 435 A.2d 946 (Vt. 1981); cf. Greenemeier by Redington v. Spencer, 719
P.2d 710, 714 (Colo. 1986) (jury may be informed of existence, but not amount, of
settlement); Tatum v. Schering Corp., 523 So.2d 1042, 1045 (Ala. 1988) (jury may be
informed of both the existence and amount of settlement). In Slayton, the Vermont Supreme
Court adopted this so-called court rule, reasoning that giving the jury any information on
the subject could lead to speculation that the settling defendant admitted liability and is
therefore solely responsible. Id. at 947. See also De Lude v. Rimek, 115 N.E.2d 561, 565 (Ill.
1953).
Alternatively, the Slayton court postulated that providing the jury with such information
might lead to speculation that one defendant's settlement is an admission of negligence that
should be imputed to a non-settling defendant. Id. See also Azure v. City of Billings, 596
P.2d 460, 466 (Mont. 1979). Because allowing the jury to receive such information can thus
lead to speculation in favor of either party, the court in Slayton noted that the court rule is
favored by both plaintiffs and defendants alike. Id. at 947-48. For this reason, the Slayton
court held that the jury could not be informed as to either the amount or existence of a
previous settlement, and that any apportionment that was needed would be done by the court.
Id. at 947.
We agree with the Vermont Supreme Court that allowing the jury to be informed about the
existence of settling co-defendants can lead to improper speculation.
2
In fact, a close
examination of the record reveals that such speculation may have occurred in this case. The
jury here found that Dr. Bannen was negligent, yet also returned a verdict of only
$112,000.00. While this verdict may not have been so inadequate as to justify an additur, see
Drummond v. Mid-West Growers, 91 Nev. 698, 712, 542 P.2d 198, 208 (1975), it was
certainly at the low end of the scale, given the evidence presented.3 Due to the paucity of
this verdict, we therefore feel that it is quite possible that the jury in this case speculated
that Alexander had already received a total recovery from Dr.
__________

2
Our conclusion is further consistent with NRS 41.141 which bars instructions informing the jury of the
amount of a settlement. This statute does not control our decision in this case, however, since it applies only to
claims arising after July 1, 1987, the appellants' cause of action arose in 1981.
evidence presented.
3
Due to the paucity of this verdict, we therefore feel that it is quite
possible that the jury in this case speculated that Alexander had already received a total
recovery from Dr. Hoffman and was seeking a windfall in the case at bar. Because the jury's
verdict may thus have reflected an attempt to deny Alexander such a double recovery, rather
than a true assessment of his damages, we feel it is necessary to remand this case for a new
trial in that issue.
Because we so conclude, we need not address the other contentions raised by appellant.
____________
106 Nev. 682, 682 (1990) Bove v. Prudential Insurance Co.
DOMINICK BOVE and NANCY BOVE, as husband and wife, Appellants, v.
PRUDENTIAL INSURANCE COMPANY OF AMERICA, PRUDENTIAL
PROPERTY & CASUALTY INSURANCE COMPANY and WILLIAM KEVIN
JOHNSTON, Respondents.
No. 20906
October 25, 1990 799 P.2d 1108
Appeal from denial of a petition for declaratory relief. Eighth Judicial District Court, Clark
County; Earle W. White, Jr., Judge.
Pedestrian who owned three cars and was struck by vehicle driven by uninsured motorist
filed uninsured motorist claim with insurer which had issued single policy covering the three
cars and requested that uninsured motorist (UM) coverage limits on the three cars be stacked.
Insurer denied that request, and car owner petitioned for declaratory judgment determining
that anti-stacking clause contained in policy was invalid and ordered that UM coverages were
to be stacked. The district court refused the petition, and car owner appealed. The Supreme
Court held that: (1) anti-stacking provision was sufficiently clear and displayed with
sufficient prominence to be valid under statute authorizing anti-stacking clauses, but (2)
insurer had burden of proving that insureds had not purchased separate coverage for UM risk
for the three insured vehicles or paid premiums calculated for full reimbursement under
that coverage to establish that the anti-stacking clause was valid.
__________

3
The issue of damages was fiercely contested at trial, with plaintiff presenting evidence that placed
Alexander's damages at between $1.5 and $2 million. Although Dr. Bannen did present expert testimony that
disputed the extent of Alexander's injuries, even respondent's experts agreed that Alexander was permanently
and severely damaged, and would require much therapy and rehabilitation. Therefore, even under respondent's
theory of the case, $112,000.00 was a very low verdict.
three insured vehicles or paid premiums calculated for full reimbursement under that
coverage to establish that the anti-stacking clause was valid.
Jason A. Awad, and Michael V. Dentico, Las Vegas, for Appellants.
Vannah & Roark, Las Vegas, for Respondents.
1. Insurance.
Anti-stacking clause contained in motor vehicle policy was sufficiently clear to be valid under statute authorizing anti-stacking
clauses; the anti-stacking provision was written in clear, concise English and avoided legal jargon, the provision was organized in
readable manner, and the provision specifically stated that insurer would not pay more than uninsured motorist coverage for one car,
that the limitation applied regardless of number of vehicles covered or number of policies purchased, and that the limitation applied to
this policy. NRS 687B.145, subd. 1.
2. Insurance.
Motor vehicle policy provision providing that uninsured motorist coverage available for several insured vehicles could not be
stacked was displayed with sufficient prominence in policy to be valid under statute authorizing anti-stacking clauses. NRS 687B.145,
subd. 1.
3. Insurance.
Insurer had burden of proving that separate uninsured motorist premiums were not paid for several vehicles insured under single
policy and that premium was not calculated for full reimbursement to establish that anti-stacking clause was valid. NRS 687B.145,
subd. 1.
OPINION
Per Curiam:
Appellants Dominick and Nancy Bove (Dominick and Nancy, respectively) owned three
cars, a 1987 Oldsmobile, a 1979 Dodge, and a 1988 Pontiac, all of which were covered under
the same insurance policy issued by Prudential. Each of the cars carried UM coverage of
$25,000.00 per person or $50,000.00 per accident. On February 7, 1988, while driving his
1987 Oldsmobile, Dominick was struck by a vehicle driven by respondent William K.
Johnston (Johnston). In connection with the accident, Johnston was cited with DUI, felony hit
and run, and having no insurance. Dominick was seriously injured in the collision.
Because Johnston had not insurance, Dominick filed a claim with Prudential under the
uninsured motorist (UM) coverage provision in his policy.
provision in his policy. Prudential agreed that the provision applied, and paid Dominick
$25,000.00, representing the single person limit for UM coverage on that policy. Dominick
requested, however, that the $25,000.00 UM coverage limits on all his cars be stacked, i.e.,
combined to add up to a total limit of $75,000.00. Prudential denied this request on the basis
of an anti-stacking clause contained in the contract. This provision read as follows:
HOW WE WILL SETTLE A CLAIM (PART 4) LIMIT OF
LIABILITYBODILY INJURY: EACH PERSON
The limit stated under UNINSURED MOTORISTSEACH PERSON on the
Declarations is the limit of our liability for all damages, including damages for care or
loss of services, arising out of bodily injury to one person as a result of any one
accident.
LIMIT OF LIABILITYBODILY INJURY: EACH ACCIDENT
The limit stated under UNINSURED MOTORISTSEACH ACCIDENT on the
Declarations is the limit of our liability for all damages, including damages for care or
loss of services, arising out of bodily injury as a result of any one accident.
LIMIT OF COVERAGE
IF YOU OR ANY OTHER PERSON INSURED UNDER THIS POLICY IS IN
AN ACCIDENT:
1. IN A CAR THAT IS INSURED BY THIS POLICYWE WILL NOT PAY
MORE THAN THE LIMIT OF COVERAGES FOR THAT PARTICULAR
CAR.
2. IN A CAR THAT IS NOT INSURED BY THIS POLICY OR WHILE A
PEDESTRIANWE WILL NOT PAY FOR MORE THAN THE LIMIT
OF COVERAGES WHICH YOU HAVE ON ANY ONE OF YOUR CARS.
THIS LIMIT OF COVERAGE APPLIES REGARDLESS OF THE NUMBER OF
POLICIES, INSUREDS, INSURED CARS, CLAIMS MADE, OR CARS
INVOLVED IN THE ACCIDENT OR LOSS. COVERAGES ON OTHER CARS
INSURED BY US CANNOT BE ADDED TO OR STACKED ON THE
COVERAGE OF THE PARTICULAR CAR INVOLVED.
Appellants then brought a petition for declaratory judgment in which they asked the court
to find this provision invalid, and order that the coverages be stacked. The court below
refused to do so, holding that the limiting language quoted above complied with the clarity
and prominence requirements of NRS 687B.145(1). The district court further held that
Dominick had failed to produce any evidence tending to show that he had purchased separate
coverage for the same risk or paid a premium calculated for full reimbursement under that
coverage. This appeal followed.
The issue to be decided in this appeal is whether the anti-stacking clause contained in
appellant's car insurance policy is valid under NRS 687B.145(1). For the reasons set forth
below, we find that the district court did not properly consider the issue and, therefore,
reverse so that the district court may correctly determine whether appellants purchased
separate coverage on the same risk.
Prior to 1979, this court held that all anti-stacking provisions were void, and thus we
allowed insureds to combine their coverage limits on separate policies. In 1979, however, the
legislature passed NRS 687B.145(1), which authorized anti-stacking clauses under certain
conditions.
1

In Neumann v. Standard Fire Ins., 101 Nev. 206, 699 P.2d 101 (1985), we interpreted the
new statute, holding that under NRS 678B.145(1), a valid anti-stacking clause must meet
three requirements. First, the limiting provision must be expressed in clear language. Second,
the provision must be prominently displayed in the document. Finally, the insured must not
have purchased separate coverage on the same risk nor paid a premium calculated for full
reimbursement under that coverage. Id. at 209, 699 P.2d at 103. We turn now to a discussion
of whether the clause contained in Dominick's policy meets these requirements.
__________

1
NRS 687B.145(1) provides in pertinent part:
1. Any policy of insurance or endorsement providing coverage under the provisions of NRS
690B.020 or other policy of casualty insurance may provide that if the insured has coverage available to
him under more than one policy or provision of coverage, any recovery of benefits may equal but not
exceed the higher of the applicable limits of the respective coverages, and the recovery or benefits must
be prorated between the applicable coverages in the proportion that their respective limits bear to the
aggregate of their limits. Any provision which limits benefits pursuant to this section must be in clear
language and be prominently displayed in the policy, binder, or endorsement. Any limiting provision is
void if the named insured has purchased separate coverage on the same risk and has paid a premium
calculated for full reimbursement under that coverage.
Is the provision expressed in clear language?
[Headnote 1]
In Neumann, we held that anti-stacking provisions must be written in clear language. This
court went on to explain that in order to be clear the clause should be neither ambiguous nor
difficult to understand. Id. at 210, 699 P.2d at 104. Because the anti-stacking provision at
issue in Neumann was confusing and difficult for a layman to comprehend, the clause was
found to be invalid. Id.
This court again addressed the clarity requirement of NRS 687B.145(1) in Torres v.
Farmers Ins. Exchange, 106 Nev. 340, 793 P.2d 839 (1990). In Torres, we held that
anti-stacking language must be truly comprehensible to the average insured. Id. at 347, 793
P.2d at 843 (emphasis in original). The Torres court then concluded that the provision under
consideration was not comprehensible in this manner and was therefore void under the
statute. Id.
This court offered several reasons in support of its Torres decision. First, the clause failed
to specify that the total UM coverage was limited to the highest coverage on any single
vehicle. Id. Second, the provision did not specify that the limitation applied regardless of the
number of separate UM premiums paid, or the number of vehicles covered. Id. at 347, 793
P.2d at 844. Third, the anti-stacking clause failed to state clearly that the limitation applied to
insurance issued by Farmers, as well as other insurers. Id. at 347-48, 793 P.2d at 844. Finally,
the limitation did not expressly state that the restriction applied regardless of whether
insureds' vehicles were covered under single, multi-car, or separate policies. Id. at 348, 793
P.2d at 844.
Our decisions in Neumann and Torres reveal that the anti-stacking clause in Dominick's
policy is sufficiently clear to pass muster under NRS 687B.145(1). The terms of the provision
are written in clear, concise English, using simple terms such as car instead of vehicle,
and avoiding legal jargon such as party in the first part, etc. Also, the provision is organized
in a readable manner, with each of its different requirements broken into distinct sections.
Moreover, the clause contains none of the defects enumerated in Torresit specifically
states: (1) that Prudential will not pay more than the UM coverage for the particular car; (2)
that the limitation applies regardless of the number of vehicles covered or number of policies
purchased; and (3) that the limitation applies to this policy. In short, it would be hard to
express a difficult concept such as stacking any more clearly than was done by this provision.
Is the provision displayed prominently in the policy? [Headnote 2]
[Headnote 2]
[Headnote 2]
The second requirement under NRS 687B.145(1) is that any anti-stacking provision must
be prominently displayed. In Neumann, we held that in order to meet this requirement, the
clause must direct the reader's attention toward the critical language, and have greater
prominence than other provisions. Neumann, 101 Nev. at 211, 699 P.2d at 105. We then
reasoned that because the entire document at issue contained large, double-spaced print, the
fact that the anti-stacking clause was also displayed in this manner did not create sufficient
prominence under the statute. Id.
Applying the Neumann test to this case reveals that the anti-stacking clause was
prominently displayed. Appellants contend that because the provision was not contained in
the first of two documents that comprised the policy, it failed to meet the statutory
requirement. This argument misses the thrust of the statute's meaning, however, for the
question is one of prominence, not of immediacy. Here, the provision appears at the
beginning of the second document in a section entitled: PART 4 UNINSURED
MOTORISTS. The anti-stacking clause is then set apart from the rest of the section by virtue
of the subheading LIMIT OF COVERAGE. The reader's attention is directed toward this
provision because it is the only part of the policy containing an entire section (18 lines) in
bold-faced capital letters. By comparison, no other part of the policy has more than two lines
printed in such a manner. Because the provision was displayed in this way, it complied with
the second requirement of the statute.
Did Dominick purchase separate coverage for the same risk or pay a premium calculated for
full reimbursement under that coverage?
[Headnote 3]
The final requirement under NRS 687B.145(1) is that an anti-stacking clause cannot be
used to force the insured to purchase separate coverage for the same risk or pay a premium
calculated for full reimbursement under that coverage. The court below found that appellants
failed to produce any evidence in support of their claim on this issue. This finding was made
prior to Torres, however, in which we clearly stated that the burdens of persuasion and
production on the issue of the validity of an anti-stacking clause . . . rest on the insurer.
Torres, 106 Nev. at 346, 793 P.2d at 842.
2
Although Torres did not specifically deal with
the double premium issue, we believe that placing the burden of proof on the insurer is
especially appropriate in this area.
__________

2
This finding also ignored the fact that appellants attached to their petition for declaratory relief a copy of
their most recent insurance bill, which plainly showed that the Bove's were charged separate UM premiums of
$23.00, $22.00, and $22.00 respectively, per six month period, for each car insured under the policy.
Although Torres did not specifically deal with the double premium issue, we believe that
placing the burden of proof on the insurer is especially appropriate in this area. First, the
insurer has ample access to the documents that are needed in order to determine whether
double premiums have been paid on the same risk. Second, the insurer possesses the expertise
needed to explain and justify any added premiums. In short, much of the essential evidentiary
material is already within the insurer's control, and thus it is proper to require that the insurer
be given the duty of presenting such evidence to the court.
3
Because the court below
erroneously placed the burden of proof on the insured, we remand this matter to the district
court for further proceedings consistent with the views expressed herein.
4

____________
106 Nev. 688, 688 (1990) Albany v. Arcata Associates
A. W. ALBANY, Appellant/Cross-Respondent, v. ARCATA ASSOCIATES, INC., a
California Corporation, JAMES C. SAXTON, Respondents, and ROBERT P.
DICKERSON, Respondent/Cross-Appellant.
No. 21140
October 25, 1990 799 P.2d 566
Appeal and cross-appeal from an order imposing sanctions. Eighth Judicial District Court,
Clark County; Joseph T. Bonaventure, Judge.
Order imposing sanctions on defendants and their attorney jointly and severally was
entered by the district court and the part of order imposing sanctions on attorney was certified
as final. Attorney appealed. The Supreme Court held that attorney had no right of appeal
because he was not a party to the underlying civil action.
Appeal dismissed.
John Peter Lee and Barney C. Ales, Las Vegas, for Appellant/Cross-Respondent.
Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas;
Jimmerson & Davis, Las Vegas, for Respondents.
__________

3
At oral argument, even respondent agreed that the burden of proof correctly rested with the insurance
companies.

4
this appeal.
Dickerson, Dickerson, Lieberman & Consul, Las Vegas, for Respondent/Cross-Appellant.
Order imposing sanctions on a non-party is not appealable. NRAP 3A(a).
Where no statutory authority to appeal is granted, no right to appeal exists.
Defendants' attorney had no right to appeal order imposing sanctions on defendants and himself jointly and severally, since he was
not a party to the underlying civil action, and thus district court erroneously certified as final that part of the order imposing sanctions
on attorney and Supreme Court lacked jurisdiction to consider appeal. NRCP 54(b); NRAP 3A(a).
4. Courts.
Supreme Court's discretionary review of district court order imposing sanctions on non-party attorney could appropriately be
invoked by a properly documented petition for extraordinary relief.
OPINION
Per Curiam:
[Headnote 1]
This is an appeal from an order of the district court imposing sanctions jointly and
severally upon respondents Arcata Associates, Inc., James C. Saxton, and their attorney
below, Robert P. Dickerson. Pursuant to NRCP 54(b), the district court certified as final only
that part of its order imposing joint and several liability sanctions upon attorney Dickerson.
The sole issue that we must decide is whether an order imposing sanctions upon a non-party
is appealable. We conclude that it is not.
Robert P. Dickerson was the attorney of record for both Arcata Associates Inc. and James
C. Saxton, the defendants in the underlying civil action below. After the jury was impaneled
and the attorneys presented their opening statements, the existence of a conflict between
Arcata and Saxton became apparent. The district court decided that it would be improper for
attorney Dickerson to continue to represent both defendants. The district court entered an
order directing Arcata, Saxton and Dickerson, jointly and severally, to pay plaintiff A. W.
Albany $17,139.75 in sanctions. Thereafter, the district court certified only that portion of its
order imposing joint and several liability for the sanctions upon attorney Dickerson as a final
judgment pursuant to NRCP 54(b). See NRCP 54(b). Dickerson and Albany filed timely
notices of appeal.
[Headnotes 2, 3]
Where no statutory authority to appeal is granted, no right to appeal exists. Kokkos v.
Tsalikis, 91 Nev. 24, 530 P.2d 756 (1975). NRAP 3A(a) states that [a]ny party aggrieved
may appeal from an appealable judgment or order in a civil action or proceeding. Dickerson
has no right of appeal because he is not a party to the underlying civil action. See generally,
Whitley v. State, 79 Nev. 406, 386 P.2d 93 (1963). Therefore, the district court erroneously
certified its order as final under NRCP 54(b). Because the certification is without effect, this
court consequently lacks jurisdiction to consider Albany's appeal as well. See Taylor Constr.
Co. v. Hilton Hotels, 100 Nev. 207, 678 P.2d 1152 (1984).
[Headnote 4]
We conclude, therefore, that this court lacks jurisdiction to consider this appeal and
cross-appeal.
1
Accordingly, we dismiss this appeal and cross-appeal.
2

____________
106 Nev. 690, 690 (1990) Britton v. City of North Las Vegas
GEORGE L. BRITTON, Appellant, v. CITY OF NORTH LAS VEGAS; NORTH LAS
VEGAS CIVIL SERVICE BOARD OF TRUSTEES; DON DIXON IN HIS
CAPACITY AS CHIEF OF MARSHALLS OF THE CITY OF NORTH LAS
VEGAS; THOMAS STEPHENS, IN HIS CAPACITY AS PERSONNEL
DIRECTOR FOR THE CITY OF NORTH LAS VEGAS, AND IN HIS CAPACITY
AS SECRETARY TO THE NORTH LAS VEGAS CIVIL SERVICE BOARD, AND
IN HIS CAPACITY AS EQUAL EMPLOYMENT OPPORTUNITY OFFICER FOR
NORTH LAS VEGAS, Respondents.
No. 20980
October 25, 1990 799 P.2d 568
Appeal from a district court order for summary judgment.
__________

1
Because attorney Dickerson's status as a non-party deprives this court of appellate jurisdiction., it appears
that Dickerson may have no speedy, adequate remedy in the ordinary course of law. We note, however, that this
court's discretionary review of the district court's order holding him jointly and severally liable to Albany for
$17,139.75 may be appropriately invoked by a properly documented petition for extraordinary relief.

2
In light of this disposition, it is unnecessary for us to resolve the captioning issues presented in this appeal.
Accordingly, we deny all pending motions regarding the proper captioning of this appeal.
The Honorable John C. Mowbray, Justice, did not participate in the decision of this appeal.
Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
After it was determined that actions of deputy city marshall constituted resignation, he
brought action for wrongful termination and breach of fiduciary duty. Summary judgment on
basis of res judicata was granted by the district court and former deputy city marshall
appealed. The Supreme Court held that: (1) res judicata may apply to administrative
proceedings, and (2) prior denial of petition for writ of mandamus challenging determination
of civil service board that deputy marshall had resigned was res judicata.
Affirmed.
Potter & Associates and Robert J. Kossack, Las Vegas, for Appellant.
Roy A. Woofter, City Attorney, and Thomas L. Leeds, Deputy City Attorney, North Las
Vegas, for Respondent.
Res judicata may apply in administrative proceedings.
2. Judgment.
Exclusive remedy clause is not a prerequisite for application of res judicata.
3. Judgment.
Three inquiries are pertinent in res judicata determination; whether issue decided in prior adjudication was identical to issue
presented in present action; whether there was final judgment on the merits; and whether party against whom judgment is asserted was
a party, or in privity with a party, to the prior adjudication.
4. Judgment.
Denial of petition for writ of mandamus challenging determination of civil service board that actions of deputy city marshall had
constituted resignation was res judicata, precluding subsequent action for wrongful termination and breach of fiduciary duty.
OPINION
Per Curiam:
While serving as Deputy Marshall for respondent City of North Las Vegas (City),
appellant became involved in a verbal argument with Chief Marshall Don Dixon concerning
the administration of the overtime call-out program. Appellant became upset and requested
leave time. Upon being denied leave time, appellant removed his radio and badge, placed
them on his desk, and proceeded home. Before leaving work, however, appellant telephoned
Thomas Stephens, in his capacity as City's equal employment opportunity officer, and
scheduled an appointment.
Sometime after appellant left work, Dixon telephoned Stephens regarding the incident.
Stephens advised Dixon to treat appellant's actions as a resignation.
One hour and forty-five minutes after leaving work, appellant returned. Upon arrival back
at work, appellant was told that his actions had been treated as a resignation.
Appellant went before the North Las Vegas Civil Service Board (Board). In those
proceedings, appellant argued that he had not resigned and that Stephens violated a fiduciary
duty owed to Britton. The Board issued a written decision stating that the incident could be
reasonably treated as a resignation.
Appellant filed a writ of mandamus in the Clark County District Court. The district court
reviewed the Board's decision and denied appellant's petition.
Appellant then filed the instant action for wrongful termination and breach of fiduciary
duty. The district court granted summary judgment based upon res judicata, and we affirm.
[Headnote 1]
It is well-settled rule of law that res judicata may apply to administrative proceedings. U.S.
v. Utah Construction and Mining Co., 384 U.S. 394, 422 (1966). See also University of
Tennessee v. Elliott, 478 U.S. 788, 797 (1986) (We have previously recognized that it is a
sound policy to apply principles of issue preclusion to the fact finding of administrative
bodies acting in a judicial capacity.). The Third Circuit interpreted Utah as follows: The
Supreme Court has held that, owing to the similarity in issues facing both judicial and
quasi-judicial officers, res judicata principles apply to administrative as well as judicial
adjudications. Purter v. Heckler, 771 F.2d 682 (3rd Cir. 1985). The Fourth Circuit has
spoken as well, stating that administrative res judicata is a well-settled rule of law. Rosenfeld
v. Dept. of Army, 769 F.2d 237, 240 (4th Cir. 1985).
Numerous states have held that res judicata applies to administrative hearings. See e.g.,
Shoemaker v. City of Bremerton, 745 P.2d 858 (Wash. 1987); State v. Alvey, 678 P.2d 5, 8
n.4 (Haw. 1984); Fourakre v. Perry, 667 S.W.2d 483, 486-487 (Tenn.App. 1983). The weight
of authority holds that administrative res judicata is a matter of sound policy. We therefore
adopt a general rule of administrative res judicata.
1

Having established that res judicata generally applies to administrative hearings, we next
consider whether any public policy exceptions apply to this case. Appellant cites a number of
cases
__________

1
Res judicata does not apply to factual determinations of the employment security department. NRS
612.533.
which hold that administrative collateral estoppel should not be invoked in cases dealing with
employment discrimination. See Hahn v. Arbat Systems, Ltd., Inc., 491 A.2d 58, 59 (N.J.
1985); Rosenfeld v. Dept. of Army, 769 F.2d 237 (4th Cir. 1985). Since no allegations of
employment discrimination were made in the present case, no such exception applies.
[Headnote 2]
Appellant further contends that lack of an exclusive remedy clause should bar
application of res judicata as a matter of public policy. We disagree. Such a clause is not a
prerequisite for application of res judicata.
[Headnotes 3, 4]
Having determined that no public policy exceptions apply to this case, we next consider
whether all the elements of res judicata were met. In reviewing the district court's res judicata
determination, three inquiries are pertinent: (1) whether the issue decided in the prior
adjudication was identical to the issue presented in the action in question; (2) whether there
was a final judgment on the merits; and (3) whether the party against whom the judgment is
asserted was a party, or in privity with a party to the prior adjudication. See Horvath v.
Gladstone, 97 Nev. 595, 596, 637 P.2d 531, 533 (1981).
Appellant argues that the board merely determined the issue of resignation. He suggests
that a resignation can be a constructive discharge. However, appellant does not plead
constructive discharge, nor does he plead any facts which support such a theory. Thus, we
determine that the issues litigated are the same.
The adjudication by the Board was on the merits and appellant was a party. We therefore
conclude, that res judicata applies to appellant's action and affirm the decision of the district
court.
____________
106 Nev. 693, 693 (1990) Donner v. SIIS
DARLENE DONNER, Appellant, v. STATE INDUSTRIAL INSURANCE SYSTEM, an
No. 20742
October 25, 1990 799 P.2d 570
Appeal from district court decision which reversed decision of appeals officer regarding
disability compensation. Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Workman's compensation claimant appealed ruling of hearing officer that she could not
receive credit for her tips because she had not submitted notice of election to report tips
pursuant to statute.
106 Nev. 693, 694 (1990) Donner v. SIIS
had not submitted notice of election to report tips pursuant to statute. Appeals officer ruled in
claimant's favor, and the State Industrial Insurance System filed petition for judicial review.
The district court reversed decision of appeals officer, and claimant appealed. The Supreme
Court held that where employer never provided employee with notice of election form to
claim tips for purposes of workman's compensation, employee satisfied notice of election
requirement by providing employer with regular, written records of her tips for federal
income tax purposes.
Nancyann Leeder, State Industrial Claimants' Attorney, Las Vegas, for Appellant.
R. Scott Young, SIIS General Counsel, Carson City, and William A. Zeigler, Associate
General Counsel, Las Vegas, for Respondent.
Barbara Gruenewald, Reno, for Amicus Curiae.
Where an employer has provided an employee with form for giving notice of election to report tips for purposes of workman's
compensation, and has informed employee that form will be required, employee is bound to use the form; however, where employer
does not provide employee with election forms, employee substantially complies with statutory requirement of a written notice of
election to report tips, where employee reports actual tips to employer pursuant to the Internal Revenue statutes for each pay period or
another reasonable period prescribed by employer. NRS 616.401; 26 U.S.C.A. 6053(a), (c).
Where employer never provided employee with notice of election form to report tips for purposes of workers' compensation,
employee satisfied statutory notice of election requirement by providing employer with regular, written records of her tips for federal
income tax purposes. NRS 616.401; 26 U.S.C.A. 6053(a), (c).
Failure of employee to sign declaration which employers are required to utilize by statute setting forth procedure for reporting tips
for worker's compensation purposes was not a bar to the consideration of her tips for such purposes, because it is employer's duty to
provide form to employee. NRS 616.401, subd. 2(b).
OPINION
Per Curiam:
The question presented by this appeal is whether appellant Darlene Donner (Donner)
satisfied the requirements of NRS 616.401 for counting tip income toward her disability
compensation.
106 Nev. 693, 695 (1990) Donner v. SIIS
616.401
1
for counting tip income toward her disability compensation. We hold that Donner
satisfied the requirements of NRS 616.401.
FACTS
On January 25, 1988, Donner suffered a compensable industrial injury to her back while
working as a waitress at Macayo Vegas (Macayo), a restaurant where she had worked for
about six years. Respondent State Industrial Insurance System (SIIS) accepted Donner's claim
for temporary total disability, but refused to count Donner's tips as part of her average
monthly wage for purposes of calculating her disability. This was so even though Donner had
faithfully reported her tips to her employer and had paid federal income tax on the tips. As
with most long-term tip earners, Donner's tips were a large part of her income. Thus, SIIS'
refusal to count the tips severely reduced the amount of her disability compensation.
In 1986, the Department of Industrial Insurance Regulation (DIIR) had promulgated a form
entitled Employee's Notice of Election To Report Tips."
__________

1
616.401 Election by employee to report his tips; effect; regulation.
1. An employee may elect to report the amount he receives as tips for the purpose of the calculation
of compensation by submitting to his employer a written notice of election to report his tips. The
employee must make his election separately for each pay period before the end of the next pay period.
The declaration may not be amended.
2. Upon receipt of such notice the employer shall:
(a) Make a copy of each report which the employee has filed with the employer to report the amount
of his tips to the United States Internal Revenue Service;
(b) Stamp or attach to the copy a declaration to be signed by the employee under penalty of perjury
which states that the contents of the report are true;
(c) Require the employee to sign the declaration;
(d) Submit the copy to the system upon request and retain another copy for his records or if the
employer is self-insured, retain the copy for his records; and
(e) If he is not self-insured, pay the system the premiums for the reported tips at the same rate as he
pays on regular wages, beginning 3 months after he receives the first notice of the election of the
employee to report tips.
3. An employee who elects to report his tips is not eligible to receive increased compensation based
on these tips until 3 months after his employer receives the notice of election to report his tips.
4. The department shall adopt regulations specifying the form of the declaration specified pursuant to
subsection 2.
5. The system or the self-insured employer shall calculate compensation for an employee on the basis
of wages paid by the employer plus the amount of tips reported after the employee has become eligible
for increased compensation pursuant to subsection 3.
106 Nev. 693, 696 (1990) Donner v. SIIS
Election To Report Tips. NAC 616.673. NAC 616.673 provides that employees must use
this form before their tips can be counted toward their disability compensation. Donner never
used this form to report her tips, largely because Macayo never informed her of NRS
616.401's requirements.
Although Donner did not use the DIIR form, she faithfully reported her tips for federal
income tax purposes. See 26 U.S.C.A. 6053(a)-(c) (1986) (Internal Revenue Code)
(henceforth, IRC). Pursuant to IRC 6053(c), Donner gave Macayo her gross receipts and
Macayo then calculated each employee's Internal Revenue Service (IRS) tip allocation based
in part on the assumption that the total tips equalled 8 percent of gross sales. Each month
Macayo gave Donner a computer printout of her tip allocation based on the 8 percent
calculation; these printouts for several months preceding the accident are in the record. The
printouts also reflect actual tips which Donner reported to Macayo pursuant to IRC
6053(a). The exact manner in which Donner reported her actual tips is not indicated in the
record. Nevertheless, Macayo's written printouts reflect that she reported these tips, because
the printouts contain records of her actual tips.
On April 22, 1988, Donner filed a request for a hearing with SIIS on the issue of tips. On
June 1, 1988, the hearing officer affirmed the initial determination of Donner's monthly wage
which excluded her tips. The hearing officer ruled, in essence, that Donner could not receive
credit for her tips because she had not submitted the notice of election to report tips pursuant
to NRS 616.401. Donner appealed. On August 25, 1988, after a hearing, Appeals Officer
Charles York ruled in Donner's favor, remanding the case for determination of Donners's tip
income based on the tax records. SIIS filed a petition for judicial review of the appeals
officer's decision in district court. On November 16, 1989, the district court reversed. The
court reasoned that NRS 616.401 was unambiguous in requiring employees to use a notice
of election to claim tips for purposes of worker's compensation. Donner appeals this
decision. Barbara Gruenewald filed an amicus curiae brief on behalf of the Northern Nevada
Association of Injured Workers (NAW), which claims to represent about 90,000 tip earners in
Nevada.
LEGAL DISCUSSION
This dispute concerns only the amount of disability compensation to which Donner is
entitled, and SIIS does not dispute the basic facts as stated above. The question presented is
one of law. That question is whether NRS 616.401 bars Donner from receiving credit for her
tips in calculating her disability compensation where Donner reported her tips for federal
tax purposes, but did not file a form denominated as a "notice of election."
106 Nev. 693, 697 (1990) Donner v. SIIS
where Donner reported her tips for federal tax purposes, but did not file a form denominated
as a notice of election. Donner argues that her regular written records of tips constitute
substantial compliance with the notice of election requirement. We agree, and accordingly
reverse the judgment of the district court. We further note that the problem involved in this
and similar cases would not have arisen if SIIS, Macayo or NAW had better informed Donner
and other employees of NRS 616.401's requirements.
No particular form is required to constitute a written notice of election under subsection
1 of NRS 616.401. Subsection 4 of NRS 616.401 directs the DIIR to promulgate a form to be
used for the declaration, not the notice of election. Neither NRS 616.401 nor its legislative
history indicates that any particular form of written notice is required. In fact, the legislative
history demonstrates that the primary purpose for a voluntary notice of election was to ensure
that NRS 616.401 would not force all tip-earning employees to report their tips as a matter of
state law. This supports the conclusion that the employer is deemed to have notice of the tips
when the employee begins reporting them regularly and in writing. We have long held that a
reasonable, liberal and practical construction of our worker's compensation statutes is
preferable to a narrow one. SIIS v. Weaver, 103 Nev. 196, 199-200, 734 P.2d 740, 742
(1987). Certainly, an employer aware of this statute should expect that its employees who
regularly report and pay taxes on their tips would also expect their disability compensation to
reflect those tips.
[Headnote 1]
Based on the foregoing, we conclude that where the employer has provided the employee
with election forms and informed the employee that the form will be required pursuant to
NRS 616.401, the employee is bound to use the form. Although NRS 616.401 does not
require any particular form, employers may wish to use a form to facilitate their
record-keeping for SIIS. Where, however, as here, the employer does not do this, we conclude
that there has been substantial compliance with the requirement of a written notice of
election to report tips under NRS 616.401 where any employee reports actual tips pursuant
to IRC 6053(a) or 6053(c) for each pay period or another reasonable period prescribed by
the employer. Had Macayo informed Donner of NRS 616.401 and provided a form to be used
in making the election, failure to submit such a form would evidence Donner's election not to
report tips.
[Headnote 2]
Applying our conclusions, since Macayo never provided a particular form, Donner has
satisfied the notice of election requirement by producing written records showing her
periodic reports of actual tips for purposes of federal income tax. Cf. SIIS v. Woodall, 106
Nev. 653
106 Nev. 693, 698 (1990) Donner v. SIIS
particular form, Donner has satisfied the notice of election requirement by producing written
records showing her periodic reports of actual tips for purposes of federal income tax. Cf.
SIIS v. Woodall, 106 Nev. 653, 799 P.2d 552 (1990) (employee was not eligible for disability
compensation based on tips, because there was no direct evidence of written records of tips
for each pay period before the injury, only a tax return filed after the fact of the injury). Based
on the language of NRS 616.401, the actual tips must be included in calculating Nevada
disability compensation. It is on the amount of wages and actual tips reported that employers
must pay premiums to SIIS.
[Headnote 3]
We further note that Donner never signed the declaration which employers are required to
utilize by subsection (2)(b) of NRS 616.401. This requirement is not a bar to consideration of
tips because subsection 2 refers to employer, not employee, duties. It is the employer's duty to
provide this form to the employee.
CONCLUSION
Since Macayo never provided Donner with a notice of election form, Donner satisfied the
notice of election requirement of subsection 1 of NRS 616.401 by virtue of the regular,
written records of her tips for federal income tax purposes. The records of Donner's tip
income satisfy the requirement of a 12-week history of earnings. See NRS 616.401(3) and
NAC 616.678. Accordingly, we reverse the judgment of the district court and remand this
case with instructions that the district court direct SIIS to calculate Donner's disability based
on her wages and actual reported tips. In light of this conclusion, we need not reach the
parties' remaining contentions.
____________
106 Nev. 698, 698 (1990) American Bank Stationery v. Farmer
AMERICAN BANK STATIONERY and AMERICAN STANDARD, INC., Appellants, v.
JOHN FARMER, Respondent.
No. 19912
October 25, 1990 799 P.2d 1100
Appeal from a jury verdict awarding respondent damages for wrongful termination.
Second Judicial District Court, Washoe County; Robin A. Wright, Judge.
Employee sued employer for wrongful termination. The district court entered judgment for
employee. Employer appealed.
The Supreme Court, Rose, J., held that: (1) express oral employment contract required good
cause for termination; (2) employer did not have cause; and (3) employee had not waived his
right to sue for wrongful termination.
Affirmed.
McAuliffe, White, Guinan, Kahan & Young, Reno, for Appellants.
Jack E. Kennedy & Associates, Reno, for Respondent.
1. Master and Servant.
All employees are presumed to be at will, but employee may rebut presumption by proving by preponderance of evidence that
there was express or implied contract between employer and himself and that employer would fire him only for cause.
Finding that employee had express oral contract which permitted firing only for good cause was supported by evidence that job
offer included explicit promise to keep employee on job if he performed adequately and extensive references to employee handbook
stating employee could be discharged only for cause.
Finding that employer did not have just cause to terminate employee was supported by evidence that employee was popular with
those who worked under him, was instrumental in a major sale, was supported by almost all his supervisors, ranked as number one
salesperson for one quarter, and had unequaled annual sales figure.
4. Compromise and Settlement.
Agreement between employer and resigning employee, which compensated employee in consideration for employee's agreement
not to call competing financial institutions for three months was not a waiver of employee's right to sue for wrongful termination.
OPINION
In April of 1989, a jury awarded John Farmer $410,478.88 in damages for wrongful
termination by American Bank Stationery. We affirm the court's judgment entered pursuant to
the jury's verdict.
FACTS
In August of 1979, John Farmer (Farmer) applied for the position of plant manager at
American Bank Stationery's (ABS) manufacturing plant in Sparks, Nevada.
1
Bill McDonald
{McDonald), the hiring authority for ABS, informed Farmer that he was looking for an
individual who was willing to make a long term commitment to the company.
__________

1
ABS is a subsidiary of American Standard Incorporated. Its major business is printing and selling checks
and other forms to banks.
(McDonald), the hiring authority for ABS, informed Farmer that he was looking for an
individual who was willing to make a long term commitment to the company. McDonald's
superiors expressed concern to McDonald that Farmer had held numerous jobs in a short
period of time.
Despite his superiors' concern, McDonald offered Farmer the job as plant manager for
ABS. When McDonald made the offer he believed that Farmer could only be terminated for
good cause.
2
He told Farmer that if he performed his job he would keep his job and that if he
did not perform his job he would be fired. He explained that [t]hat's the way American Bank
Stationery operates.
McDonald next reviewed an employee handbook with Farmer. Part of this handbook
explained the reasons for which an employee could be fired. All of the reasons given for
termination indicated that an employee could be fired only for cause. McDonald believed that
the manual applied to Farmer and he communicated his belief to Farmer. Finally, McDonald
explained to Farmer that ABS was only interested in him if he was able to make a long term
commitment.
Farmer accepted ABS's offer and worked as plant manger for ABS from October of 1979,
until January of 1982. While working as plant manager he received several salary increases
and was well liked by the employees who worked under him. He refused an offer by ABS to
transfer him to California or Texas. He also refused to take a better paying job with another
company in Texas.
In January of 1982, ABS promoted Farmer to account executive. The major part of his
work consisted of selling and servicing printing contracts with banks and credit unions. ABS
required Farmer to make reports to John Kreiter, Farmer's new supervisor.
Kreiter and Farmer did not get along. Farmer claims that Kreiter continually called him on
weekends, made uncomplimentary remarks to him, and told him to change his successful
sales methods. Kreiter claims Farmer did not get reports in on time. Farmer requested and
was given a transfer to another supervisor.
Due to changes in ABS, Farmer was reassigned to various supervisors. One of these
supervisors was John Beaulieu who testified that Farmer ranked in the top ten percent of all
sales managers he had worked with in 30 years. Farmer was the number one ranked
salesperson for the first quarter of 19S4.
__________

2
It is noteworthy that many senior management officials at ABS testified that they believed that employees
at ABS could only be terminated for good cause.
number one ranked salesperson for the first quarter of 1984. His sales exceed 1.3 million
dollars in 1984, a figure that has never been equaled by anyone else in ABS.
In July of 1984, Farmer began reporting to Kreiter once again. Kreiter and Farmer met on
December 10, 1984. Kreiter told Farmer the he wanted a report from him. Farmer assumed
that he was expected to begin writing this report on his return for his vacation which began on
December 14, 1984, and ended January 2, 1985.
On December 31, 1984, while Farmer was on vacation, Kreiter sent him a critical letter
claiming that he had made various mistakes. He complained in particular that Farmer had
never sent him the report he requested. Farmer sent Kreiter a letter, apologizing for not
sending the report and explaining that he had thought that he was to start on it after his
vacation.
On January 10, 1985, Kreiter told Farmer that if he did not voluntarily leave ABS he
would be fired. Farmer resigned the next day. He signed an agreement promising not to
compete with ABS for three months if ABS paid him a certain sum of money and gave him
title to his company car.
Farmer filed a complaint in June of 1987, charging ABS with, among other things,
wrongful termination and the tort of breach of the covenant of good faith and fair dealing.
The jury returned a unanimous verdict for Farmer for $393,048. The court found that $13,300
in tort damages, which the jury awarded Farmer for breach of the implied covenant of good
faith and fair dealing, should not have been awarded, and that Farmer should only get contract
damages. A judgment was entered for Farmer in April of 1989, in the amount of $410,478.88,
including prejudgment interest.
ABS appeals the judgment.
LEGAL DISCUSSION
I. Whether Farmer was an at-will employee.
ABS contends that Farmer was an at-will employee. We disagree.
[Headnote 1]
We note that all employees in Nevada are presumed to be at-will employees. An employee
may rebut this presumption by proving by a preponderance of the evidence that there was an
express or implied contract between his employer and himself that his employer would fire
him only for cause. Bally's Employees' Credit Union v. Wallen, 105 Nev. 553, 779 P.2d 956,
957 (1989).
[Headnote 2]
There is substantial evidence which rebuts the presumption that Farmer was an at-will
employee and demonstrates that the jury was justified in finding he had an express oral
contract with ABS that permitted his firing only for good cause. First, when McDonald (the
hiring authority for ABS) offered Farmer a job at ABS he told him that if he did his job
adequately he would keep his job but if he did not perform well he would be fired. He added
[t]hat's the way American Bank Stationery operates. This language is part of an offer which
includes an explicit promise by ABS to keep Farmer as an employee if he performed
adequately. Alternatively, the language also indicates that Farmer's continued employment
was subject to a condition subsequent, namely, that if Farmer failed to perform adequately,
ABS could fire him.
We emphasize that McDonald's promise is not a general expression of anticipated long
term employment pursuant to Vancheri v. GNLV Corp., 105 Nev. 417, 777 P.2d 366 (1989).
Rather, it was part of a specific offer that would lead a reasonable person in Farmer's position
to believe that if he accepted the job he could only be fired for good cause.
3
Thus, when
Farmer accepted ABS's offer of employment a contract was formed in which ABS promised
that it would fire Farmer only for good cause.
Additionally, when offering Farmer a job at ABS, McDonald reviewed an employee
handbook with Farmer. This handbook set forth reasons for which an employee could be
terminated by ABS. The handbook stated that an employee could be discharged only for
cause. McDonald believed that the policies in the handbook applied to Farmer. He discussed
the handbook with Farmer extensively, asked him to read it in front of him, and strongly
implied that the handbook applied to Farmer. Since it was made contemporaneously with the
express oral promise, McDonald's reference to the handbook further strengthens the argument
that ABS made an express oral agreement with Farmer that it would only fire him for cause.
The handbook became a part of the oral contract between Farmer and ABS when McDonald
indicated that it applied to Farmer.
4
We emphasize that this opinion does not stand for the
proposition that an employee handbook explaining a company's policies regarding
termination automatically transforms an at-will employee into an employee who may only
be fired for cause.
__________

3
It is Farmer's objective belief that he had an express contract that ABS could only fire him for cause which
distinguishes this case from Bally's Employees' Credit Union, supra, where this court held that the subjective
expectation of continued employment was not legally sufficient to rebut the presumption of at-will employment.

4
In Foley v. Interactive Data Corp., 765 P.2d 373 (Cal. 1988), the court stated in dicta that an employee may
state a cause of action for breach of an express oral contract if he proves that the employer and he agreed that the
terms of an employee handbook applied to him. Foley, 765 P.2d at 383.
We emphasize that this opinion does not stand for the proposition that an employee
handbook explaining a company's policies regarding termination automatically transforms an
at-will employee into an employee who may only be fired for cause. Such a holding could
discourage companies from publishing such handbooks. This case is distinguishable from
Smith v. Cladianos, 104 Nev. 68, 752 P.2d 234 (1988), in which this court held that a
provision in an employee handbook did not modify an employer's ability to discharge an
at-will employee. In the instant case, ABS's handbook is written evidence of an express oral
contract between ABS and Farmer that ABS would only fire Farmer for cause.
We further stress that we have decided this case on contractual principles only and have
not modified the presumption that all employees are at-will employees. We simply hold that
employers and employees are free to contractually change an employee's at-will status by
either a written or oral agreement. We leave it to the jury to find whether such a contract has
been entered into.
II. Whether Farmer was terminated for just cause.
[Headnote 3]
ABS contends that it fired Farmer for good cause. It asserts that Farmer performed poorly,
failed to hand in reports on time, and was insubordinate. Farmer insists that he was very
popular with those who worked under him, was instrumental in obtaining the Nevada portion
of a 16 million dollar sale to First Interstate Bank, was supported by almost all of his
supervisors, was the number one ranked salesperson for the first quarter of 1984, and had
sales of more than 1.3 million dollars in 1984, a figure that has never been equaled at ABS.
Farmer asserts that Kreiter was jealous of him, provided only negative information about him
to his superiors, and never gave him a chance to respond to criticism.
The court must assume that the jury believed all the evidence which was helpful to Farmer
and also that the jury inferred favorable conclusions from this evidence. K Mart Corp. v.
Ponsock, 103 Nev. 39, 43, 732 P.2d 1364, 1366 (1987). There is substantial evidence that
McDonald promised Farmer that he would not be terminated if he did his job properly. There
is substantial evidence that the employee's manual regarding dismissal for cause applied to
Farmer. Thus, we hold that the jury was justified in finding that an express oral contract
existed between Farmer and ABS, that Farmer could be terminated only for cause, and that
ABS did not have cause to fire Farmer.
III. Whether there was a settlement which precludes Farmer from getting damages for
wrongful discharge.
[Headnote 4]
ABS argues that Farmer made a settlement agreement with it which served as a waiver of
his right to sue for wrongful termination. ABS states that before signing the settlement
agreement Farmer said: Well, I asked Mr. Kreiter what the company wouldwhat kind of
offer they were going to make me, what kind of settlement, what kind of compensation they
were going to give me for just dropping me when I was doing a good job. A short time later
the following written agreement was prepared:
John, your resignation is accepted as of 1-11-85. In consideration of your agreement
not to call financial institutions for three months American will:
1. Pay 9 weeks salary.
2. Pay Guarantee prorated on 9 weeks.
3. Be covered for hospital coverage (9 weeks) covering for all benefits.
4. Pay three weeks vacation pay.
5. At the end of the third month send to you title (free and clear) for your company car
1981 Ford Stationwagon.
6. All bonuses due (last six months 84).
(Emphasis added.)
The above agreement was handwritten and signed by Kreiter, but not Farmer. However,
both parties performed the terms of the agreement.
The signed agreement was not a waiver and the district court so held. Farmer simply
promised not to call on financial institutions in return for which ABS promised to pay him a
certain sum of money and give him the company car. The written settlement is clear. Had
Farmer agreed not to sue the agreement would have so stated.
CONCLUSION
We hold that there is substantial evidence that ABS and Farmer entered into an express
oral contract in which ABS promised to terminate Farmer only for good cause, and that ABS
did not have cause to fire Farmer. Finally, we conclude that ABS and Farmer did not enter
into a settlement in which Farmer waived his right to sue ABS for wrongful termination. The
judgment of the trial court is therefore affirmed.
Steffen, J., concurring:
I concur only in the result reached by the majority.
Standing alone, I do not view the evidence of discussions antedating and postdating
Farmer's employment as a sufficient basis for overcoming the presumption of at-will
employment. It would appear, however, that the employee handbook issued by ABS strongly
corroborates Farmer's contention that he was informed that he would be subject to discharge
only for cause. If ABS intends to have its employees working on a terminable-at-will basis, it
should pay attention to representations expressed in its employee handbook.
Although I do not favor the judicial conversion of employee handbooks to instruments of
contract in general, I do recognize that employers may expressly undertake obligations to
their employees that negate employment relationships that would otherwise be terminable at
will. In the instant case, testimony favorable to Farmer's position was sufficiently
corroborated by the employee handbook to permit jury consideration of the nature of the
employment relationship. Although the evidence was conflicting, we do not interfere with
findings of the trier of fact where, as here, there is substantial supporting evidence.
I separately concur in the result of the opinion written by my respected brother Rose only
because I am fearful that some of the language of the opinion, including conclusions reached
and authorities cited, may unduly encourage the filing of future wrongful termination actions
of dubious merit.
____________
106 Nev. 705, 705 (1990) Fondren v. K/L Complex, Ltd.
ELLANOR ANN FONDREN, SHARON COCHRAN and SEBS CORPORATION,
Appellants, v. K/L COMPLEX LTD., EXCALIBUR PRODUCTS, LTD., and
TOLEDO MANUFACTURING COMPANY, INC., Respondents.
No. 20603
November 7, 1990 800 P.2d 719
Appeal from order granting respondents' motion for partial summary judgment and
entering judgment foreclosing mechanics' liens. Second Judicial District Court, Washoe
County; Robert L. Schouweiler, Judge.
Action was brought to foreclose mechanics' liens against lessor of restaurant. Plaintiffs
were subcontractors who had supplied services and various items under contract with lessee
for remodeling of the restaurant. The district court entered judgment foreclosing the
mechanics' liens, and lessor appealed. The Supreme Court held that: {1) because the lessor
had actual knowledge of the construction, subcontractors' failure to deliver pre-lien
notices to lessor did not defeat their claims; {2) items supplied by one contractor were
"fixtures," while items supplied by another subcontractor were "trade fixtures"; and {3) a
minor error in one lien claim did not invalidate the lien.
Court held that: (1) because the lessor had actual knowledge of the construction,
subcontractors' failure to deliver pre-lien notices to lessor did not defeat their claims; (2)
items supplied by one contractor were fixtures, while items supplied by another
subcontractor were trade fixtures; and (3) a minor error in one lien claim did not invalidate
the lien.
Michael B. Springer and Stephen Sprinkel, Reno, for Appellants.
Lionel Sawyer & Collins and Paul D. Bancroft, Reno, for Respondents.
Where lessor of commercial premises had knowledge that lessee had contracted to have remodeling work done on premises, and
lessor failed to file notice of non-responsibility, mechanics' liens on that property could be enforced against lessor, even though
subcontractors who sought to enforce liens failed to deliver pre-lien notice to lessor. NRS 108.234.
Real property is subject to mechanics' lien for labor and material only if chattels become fixtures attached to realty and labor
performed resulted in permanent improvement to realty. NRS 108.234.
3. Fixtures.
In determining whether or not item is either fixture or trade fixture, for purposes of enforcement of mechanics' lien, factors
considered are annexation, adaptation, and intent. NRS 108.234.
4. Fixtures; Mechanics' Liens.
Booths, wine cabinets, and other items provided by subcontractor to restaurant were fixtures, and thus, court properly foreclosed
mechanics' lien on those items in subcontractor's favor; those items were annexed to property, items were custom built to match
design and layout of building, and it appeared that parties to agreement intended custom built goods supplied by subcontractor to be
fixtures. NRS 108.234.
Kitchen equipment supplied to restaurant by subcontractor consisted of trade fixtures that were not subject to mechanics' lien;
none of equipment provided was attached to building such that it became part of realty, and removal of those items in no way
necessitated any change or damage to premises. NRS 108.234.
Holder of mechanics' line on remodeled restaurant who performed variety of services in remodeling including development of
design and layout drawings, performance of process inspections, review of installment of kitchen equipment, and preparation of all
areas to comply with health department regulations, did not have necessary control over structural features of building to be considered
architect, contractor, or construction manager in performing those services, and thus, his lien was properly foreclosed even though he
was not licensed. NRS 623.010 et seq., 624.005 et seq.
Minor error in lien claim does not invalidate lien. NRS 108.234.
Nonlienable services included in lien claim were de minimis, and thus, did not invalidate mechanics' lien. NRS 108.234.
OPINION
Per Curiam:
Facts
In 1983, Appellant Ellanor Ann Fondren (Fondren) leased space in a commercial building
she owned on Tahoe Boulevard in Incline Village, Nevada, to Ralph Spinelli (Spinelli). The
space leased by Fondren to Spinelli was designed to accommodate a restaurant and it was
Spinelli's intent to open a new restaurant, Tahoe Junction.
Remodeling began on the leased space in May 1983. In the process of remodeling the
restaurant, Spinelli contracted with respondents K/L Complex d/b/a Allan King & Friends
(King), Excalibur Products, Ltd. (Excalibur), and Toledo Manufacturing Company, Inc.
(Toledo). King performed a variety of services including development of design and layout
drawings, performance of process inspections, review of the installation of kitchen equipment
and preparation of all areas to comply with health department regulations. Toledo provided
custom built items to match the design and layout of the restaurant. This included, in part,
booths, wine bottle displays and storage, and associated pilasters and moldings and two
mirrored sections which were installed on an existing wall. Excalibur supplied kitchen
equipment.
Following remodeling, Tahoe junction opened for business in September 1983. However,
a fire on October 3, 1985 caused substantial damage to the interior of the premises and forced
the permanent closure of the establishment.
On October 11, 1985, King, Toledo and Excalibur executed mechanics' liens against the
premises. King claimed a mechanics' lien for design, consulting services and labor. Toledo's
lien was for the value of goods it supplied to the premises. Excalibur claimed a lien for the
deficiency it suffered in the resale of the equipment they repossessed. In April, 1984, Tahoe
Junction filed for protection under the U.S. Bankruptcy Code but the premises reverted back
to Fondren. Eventually, Excalibur and Toledo retook possession of the property they had
supplied and an action was brought to foreclose on the liens.
On December 28, 1988 the trial court granted respondents' motion for partial summary
judgment concerning the issue of whether or not the mechanics' liens had been properly
perfected. The trial court then heard evidence on the remaining issues and entered judgment
foreclosing the mechanics' liens. This appeal was taken by Fondren. She raises three issues.
Discussion
[Headnote 1]
Fondren first challenges the trial court's entry of partial summary judgment on the issue of
the perfection of the mechanics' liens. The essential facts are not in dispute.
1
The material
facts regarding the issue of the perfecting of the mechanics' liens show that Fondren failed to
record a notice of non-responsibility and that respondents King, Toledo and Excalibur did not
deliver a pre-lien notice to Fondren. Fondren simply argues that the trial court failed to
properly apply the law to the given facts.
2
To support her argument, Fondren relies on NRS
108.234 for the proposition that it places lessors, upon whose property improvements are
being made and who fail or elect not to file a notice of nonresponsibility, on the same footing
as an owner who is having a general contractor improve his property. Based on this reliance
__________

1
NRCP 56(c) allows summary judgment when there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774
P.2d 432, 433 (1989).

2
Specifically, the trial court held:
Fondren knew that a work of improvement was to occur on the property she was leasing to RASA,
she was apprised of the progress of construction and she approved specific construction activities. She
did not, however, file the notice of nonresponsibility provided for in N.R.S. Section 108.234.
Consequently, the work each Plaintiff performed is deemed to be at the instance of such owner. Since
the Plaintiffs are deemed to have a direct contract with the owner, they were not required to deliver the
prelien notice specified in N.R.S. Section 108.245. Matter of Stanfield, 6 B.R. 265 (Bankr.D.Nev. 1980);
Gould v. Wise, 18 Nev. 253, 3 P. 20 (1884); see Arthur Gensler, Jr. & Associates v. Larry Barrett, Inc.,
103 Cal.Rptr. 247, 499 P.2d 503 (1972). Furthermore, the actual notice of construction independently
satisfies the requirements of Section 108.245. Board of Trustees v. Durable Developers, 102 Nev. 401,
724 P.2d 736 (1986). Fondren's contention that she did not know the various subcontractor's names or the
extent of RASA's expenditures, misses the point: she knew that a construction project was underway on
the Property. At that point, service of a prelien notice would have been a vain and useless act because she
had notice. Instead, her knowledge that construction was underway places the burden on her to file the
notice of nonresponsibility.
on NRS 108.234. Fondren asserts that the trial court's reliance on Board of Trustees v.
Durable Developers, 102 Nev. 401, 724 P.2d 736 (1986), was erroneous and the partial
summary judgment must be reversed. This argument is meritless.
We have previously held:
[S]ubstantial compliance with the technical requirements of the lien statutes is
sufficient to create a lien on the property where, as here, the owner of the property
receives actual notice of the potential lien claim and is not prejudiced.
Board of Trustees v. Durable Developers, Inc., 102 Nev. 401, 410, 724 P.2d 736, 743 (1986).
Additionally, it has been held that:
[T]he purpose of the pre-lien statute is to put the owner on notice of work and materials
furnished by third persons with whom he has no direct contact.
If the owner fails to file a notice of nonresponsibility within the time provided in the
law, after knowledge of the construction, the statute provides that the construction is at
the instance of the owner. It is a direct contract.
Matter of Stanfield, 6 B.R. 265, 269 (Bankr.D.Nev. 1980) (emphasis in original).
In this case, it is clear that Fondren had actual knowledge of the construction on her
property. It was understood by both Fondren and Spinelli that substantial remodeling would
be required when the lease was negotiated. Additionally, Fondren's attorney regularly
inspected the progress of the remodeling efforts. These inspections were on behalf of
Fondren. See Gould v. Wise, 18 Nev. 253, 3 P. 30 (1884) (actual knowledge of owner's agent
will be imputed to the owner for purposes of this statute). Fondren could easily have
protected herself by filing a notice of non-responsibility. She had actual knowledge of the
work being performed on her property.
Furthermore, a pre-lien notice was not required. This reasoning is supported by a line of
cases from California, including M. Arthur Gensler, Jr. & Associates, Inc. v. Larry Barrett,
Inc., 103 Cal.Rptr. 247, 499 P.2d 503 (1972), which is very similar to the instant case on its
facts. In Gensler, as here, the lessor argued that the lien claims were barred because there had
been no pre-lien notice as required by Section 1193(a) of the California Code of Civil
Procedure. The court in Gensler held that:
[I]f a lien claimant contracts directly with the lessee, and the lessor knows of the
construction and fails to file a notice of nonresponsibility, such claimant then has a
"direct contract with the owner" for the purposes of section 1193.
nonresponsibility, such claimant then has a direct contract with the owner for the
purposes of section 1193.
Id. at 255, 499 P.2d at 511.
The purpose underlying the notice requirement is to provide the owner with knowledge
that work and materials are being incorporated into the property. The failure to serve the
pre-lien notice does not invalidate a mechanics' or materialmen's lien where the owner
received actual notice. See Board of Trustees v. Durable Developers, supra.
In the instant case, the evidence supports the conclusion that Fondren had actual
knowledge of the work of improvement. Delivery of any pre-lien notice would have
accomplished little or nothing and, therefore, was not required.
The trial court was correct in its application of the law to the facts before it and Fondren's
challenge against the partial summary judgment is without merit.
[Headnotes 2, 3]
Next, Fondren asserts that the trial court's findings that Toledo and Excalibur provided
lienable improvements, i.e., fixtures, is not supported by substantial evidence. Fondren argues
that the court below should have found that the items provided by both Toledo and Excalibur
were trade fixtures, which are not subject to mechanics liens. Real property is subject to a
mechanic's lien for labor and material only if the chattels became fixtures attached to the
realty . . . and the labor performed resulted in a permanent improvement to the realty.
Cornell v. Sennes, 95 Cal.Rptr. 728, at 731 (Cal.App. 1971). Cornell also held that: There
were three factors used in making the determination of whether or not an item is either a
fixture' or a trade fixture.' These three factors are: (1) annexation, (2) adaptation and (3)
intent. Id. See also Reno Electric Works, Inc. v. Ward, 51 Nev. 291, 274 P. 196 (1929)
(all-important questions are intent, use and fitness for intended use).
The annexation test is met where the chattel is actually or constructively joined to the real
property. Rayl v. Shull Enterprises, Inc., 700 P.2d 567, 570-71 (Idaho 1984).
The adaptation test is met when the object in question is adapted to the use to which the
real property is devoted. Id. at 571. However, the most important factor in making the
determination of whether an item is a fixture for purposes of a mechanics' lien is the intention
of the parties at the time the items were installed. Id.
The trial court specifically held that as to both Toledo and Excalibur there was sufficient
evidence on each of the three tests to find a valid mechanics' lien.
to find a valid mechanics' lien. We sustain the court's holding as to Toledo. However, as to
Excalibur, we must reverse.
[Headnote 4]
The items supplied by Toledo clearly fall within the traditional notice of fixtures for
purposes of a mechanics' lien. First, the booths, wine cabinets and other items provided by
Toledo were annexed to the property. They were physically attached to the building and had
become a part thereof.
Second, the adaptation test was clearly met by the fixtures provided by Toledo. The
section of Fondren's building housing the Tahoe Junction restaurant was specifically designed
for the restaurant and was used almost exclusively as such. The items provided by Toledo
were custom built to match the design and layout of the building. Additionally, the color of
the fabric covering the booths was truly unique, making the booths not readily usable
anywhere else. Finally, it appears clear that the parties to the agreement intended the custom
built goods supplied by Toledo to be fixtures. The design was unique and specially suited to
use in the restaurant. Additionally, it is clear from the record that the parties intended to have
these fixtures remain with the building following the termination of the lease. Therefore, in
conclusion, we hold that the items supplied by Toledo were fixtures and the trial court
properly foreclosed the mechanics' lien on those fixtures in Toledo's favor.
[Headnote 5]
With respect to the trial court's finding that the kitchen equipment supplied by Excalibur
were fixtures, we reverse. The evidence of record supports the conclusion that the kitchen
equipment consisted of trade fixtures that were not subject to a mechanics' lien.
First, the three-part test of annexation, adaptation and intent was not met. Excalibur
provided kitchen equipment which was basic and necessary for the operation of the
restaurant. None of the equipment provided was attached to the building such that it became
part of the realty. The only real connection occurred through electric, gas and water hookups
and sheer weight. Removal of these trade fixtures in no way necessitated any change or
damage to the premises. Furthermore, it is not clear that the parties intended this equipment to
remain with the premises after the termination of the lease, an inference warranted by
Excalibur's retrieval of the equipment at Fondren's request.
[Headnote 6]
Finally, Fondren argues that the trial court erred in granting King a lien for the services he
provided. The basis for her argument is two fold.
argument is two fold. First, she contends that King was not a licensed architect, contractor or
construction manager as required by NRS chapters 623 and 624. Second, she asserts that
King's lien claim included non-lienable services. This argument is without merit.
The statute defining the practice of architecture requires both a holding out to the public
and rendering or offering to render services. King never held himself out to be an architect.
King worked as a food facility designer and as a member of the International Food Service
Consultant Society. His primary responsibilities were to arrange the furniture to maximize the
efficient operation of the kitchen and for aesthetic effect. To construe King's responsibilities
and work as falling within the definition of architecture would ascribe an overly broad
meaning to the term.
Additionally, King did not operate as a contractor. Jack Morgan (Morgan) was employed
by RASA as the general contractor. It was Morgan who signed for the necessary building
permit and accepted responsibility for insuring that all of the construction met code standards.
King only worked with Morgan concerning the appearance of pony walls and raised floors,
not how to construct them. King also signed a contract on behalf of an absent Spinelli giving
the building department the name of the contractor for purposes of the building permit,
insuring that electrical and plumbing connections were in the right location for placement of
the kitchen equipment, and granting subcontractors access to the building. None of these
activities may be construed as a basis for characterizing King as a contractor within the well
understood meaning of the profession.
King was not operating as an architect, contractor or construction manager. He did not
have the necessary control over the structural features of the building. There was no violation
of the statute. The trial court's finding is supported by substantial evidence of record.
Fondren also argues that King's lien must fail because his claim included items such as
menu review, selection of dishes and silverware, and other non-improvement aspects of
Tahoe Junction. The thrust of Fondren's contention is that since King cannot apportion
between the arguably lienable and the clearly non-lienable activities, his claim must fail. This
argument also lacks merit.
[Headnote 7]
A minor error in a lien claim does not invalidate the lien. In Hayes v. Pigg, 515 P.2d 924
(Or. 1973), the Oregon court held:
If the non-lienable charge is extremely small as compared to the total item in which it
is included, and if it is inserted without malicious intent, the rule of de minimum non
curat lex should apply.
the total item in which it is included, and if it is inserted without malicious intent, the
rule of de minimum non curat lex should apply. No one is perfect and small errors are
bound to exist in any lien filed upon a construction project of any considerable size. It
is not realistic to become so technical that such errors defeat an otherwise valid lien for
a large amount.
Id. at 927.
[Headnote 8]
The record shows that RASA paid King in full for the services he rendered on May 23 and
24, 1983, which included some of the non-lienable services itemized by Fondren.
Additionally, the services provided by King on July 7, 1983, which included reviewing the
menu, amounted to only three hours of work. Since the allegedly non-lienable services
rendered by King, if any, appear to be de minimus, Fondren's argument must fail.
Therefore, in conclusion, we sustain the trial court's foreclosure of mechanics' liens as to
claims made by King and Toledo. However, we reverse the judgment declaring that the
equipment sold by Excalibur constituted fixtures and was subject to a mechanics' lien.
____________
106 Nev. 713, 713 (1990) Howard v. State
SAMUEL HOWARD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20368
November 7, 1990 800 P.2d 175
Appeal from a denial of a petition for post-conviction relief. Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
Defendant, who was convicted of two counts of robbery with use of deadly weapon and
one count of murder and sentenced to death, filed post-conviction petition claiming
ineffective assistance of counsel. The district court dismissed petition. Defendant appealed.
The Supreme Court, Rose, J., held that: (1) defendant's trial and appellate attorneys were
remiss in failing to object to or raise on appeal prosecutor's misconduct during closing
argument in penalty phase of capital murder trial; (2) defendant failed to show that he was
prejudiced by his attorneys' derelictions; (3) record failed to support defendant's contention
that his attorneys' failure to present mitigating evidence during penalty phase of capital
murder trial constituted ineffective assistance; and {4) history of persistent disregard for
established rules of professional conduct regarding improper argument before jury by
prosecutor warrants referral to state disciplinary board for review and appropriate action.
phase of capital murder trial constituted ineffective assistance; and (4) history of persistent
disregard for established rules of professional conduct regarding improper argument before
jury by prosecutor warrants referral to state disciplinary board for review and appropriate
action.
Affirmed.
[Rehearing denied February 7, 1991]
Steffen and Mowbray, JJ., dissented in part.
Schieck & Derke, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney and Daniel M. Seaton, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Prosecutor's statements during closing argument, during penalty phase of capital murder trial, injecting his personal belief that
defendant should be put to death, constituted prosecutorial misconduct.
2. Criminal Law.
Prosecutor's statements in closing argument during penalty phase of capital murder trial asking jury to vote in favor of future
victims and against the defendant constituted prosecutorial misconduct.
3. Criminal Law.
Pleas by prosecutor to jury to return death penalty verdict on behalf of victims are improper.
4. Criminal Law.
Comments by prosecutor in closing argument during penalty phase of capital murder trial warning jury that defendant might
escape from prison if not given death penalty was improper absent any evidence of any prior escape attempts.
5. Criminal Law.
Prosecutor is permitted to argue that defendant may attempt to escape, if it is supported by evidence.
6. Criminal Law.
Defendant's trial and appellate attorneys were remiss in failing to object to or raise on appeal prosecutor's questionable remarks to
jury in closing argument during penalty phase of capital murder trial regarding prosecutor's personal belief that defendant should be
put to death, argument that jury should vote in favor of future victims of defendant and against defendant, and that defendant might
escape from prison if not sentenced to death; however, defendant failed to show that he was prejudiced by his attorneys' derelictions,
and thus, derelictions did not constitute ineffective assistance of counsel, where jury had ample reasons to find that aggravating
circumstances outweighed any mitigating circumstances justifying death penalty even absent errors by defense counsel.
U.S.C.A.Const. Amend. 6; NRS 175.554, subd. 2, 200.033, subd. 2.
7. Criminal Law.
Defense attorney should object to all apparent instances of prosecutorial misconduct.
8. Criminal Law.
To establish ineffective assistance of counsel, defendant was required to prove not only that his attorneys were remiss but that
attorneys' errors were so serious as to deprive defendant of fair trial, trial whose result was reliable. U.S.C.A.Const. Amend. 6.
9. Criminal Law.
Prosecutor's warnings to jury in penalty phase of capital murder trial that defendant could kill again if not sentenced to death did
not constitute prosecutorial misconduct where defendant's past acts provided ample evidence that he could kill again.
10. Criminal Law.
Prosecutor's statement in closing argument to jury in penalty phase of capital murder trial referring to notorious criminal by name
did not constitute prosecutorial misconduct where prosecutor made no direct comparison between defendant and notorious criminal but
instead made general statement about criminals.
11. Criminal Law.
Prosecutor's rephrasing of reasonable doubt standard did not constitute argument that jury must put defendant to death or it is not
acting morally, and thus, remarks did not constitute prosecutorial misconduct.
12. Criminal Law.
Record failed to support defendant's contention that his attorneys were ineffective during penalty phase of capital murder trial
because they failed to get records to corroborate defendant's mitigating testimony where record indicated that defendant refused to sign
releases for records.
13. Criminal Law.
On matters of credibility, Supreme Court will not reverse trial court's finding absent clear showing that court reached wrong
conclusion.
14. Criminal Law.
Defense attorneys' alleged failure to offer, aside from defendant's own testimony, any mitigating evidence to jury during penalty
phase of capital murder trial did not constitute ineffective assistance of counsel where court found that defendant frustrated his
attorneys' attempts to present mitigating evidence and defendant failed to state what additional mitigating evidence aside from his own
testimony his attorneys should have provided court. U.S.C.A.Const. Amend. 6.
15. Criminal Law.
Tactical decisions of defense counsel are virtually unchallengable absent extraordinary circumstances.
History of persistent disregard for established rules of professional conduct regarding improper argument before jury warrants
referral of prosecutor to state disciplinary board for review and appropriate action.
17. Criminal Law.
Supreme Court will not reverse district court's holding if substantial evidence supports it.
OPINION
Appellant Samuel Howard (Howard) was convicted of two counts of robbery with the use
of a deadly weapon and one count of murder. The jury sentenced Howard to death. Howard
filed a post-conviction petition in district court claiming ineffective assistance of counsel. The
district court dismissed Howard's petition. We affirm the district court's dismissal.
Facts
On March 26, 1980, a security guard detained Howard for attempting to defraud Sears
Roebuck. Howard pulled out a .357 magnum, took the guard's badge and portable radio, and
escaped.
Howard then telephoned a Mrs. Monahan and told her he wanted to buy a van which she
and her husband (Dr. Monahan) had advertised for sale. Later that day Howard met the
couple at a casino parking lot. Howard claimed to be a security guard who was interested in
buying the Monahans' van. He agreed to meet with Dr. Monahan at his office the next
morning.
Dr. Monahan was found robbed and murdered in his van on March 27, 1980. The Clark
County Grand Jury indicted Howard for the murder of Dr. Monahan in May of 1981. Howard
pled not guilty, but did not plead not guilty by reason of insanity.
In April of 1983, a two-week jury trial was held to determine Howard's guilt or innocence.
At its conclusion, the jury found Howard guilty of two counts of robbery with the use of a
deadly weapon and one count of murder with the use of a deadly weapon.
Howard testified at the penalty hearing regarding his commitments to mental hospitals, his
Vietnam War record, and the fact that he had completed two years of junior college. He also
claimed that he had a good prison record. Howard, however, denied during cross-examination
that he was mentally ill. He also stated I know what I am doing at all times in response to a
question by the prosecutor. Howard was the only witness called by the defense during the
penalty phase of the trial. Howard's attorneys attempted to present mitigating evidence to the
jury during the penalty phase of the trial. This evidence included: (1) Howard's history of
commitments to mental institutions; (2) Howard's Vietnam War record which included an
honorable discharge and a Purple Heart; and (3) Howard's prison records. Howard's attorney
testified that they could not get these records because Howard refused to sign releases for
them. Howard contends that he readily agreed to sign any release but his attorneys refused to
get any records for him.
During his closing argument the prosecutor, Dan Seaton, told the jury that he believed that
Howard should be put to death and that if Howard was not put to death he could escape from
jail. He also asked the jury to side with the future victims of Howard rather than with
Howard. The prosecutor further stated that he believed that, if released, Howard could kill
again, mentioned Charles Manson, and asked the jury to help society by sentencing Howard
to death. Howard's attorneys failed to object to the prosecutor's remarks.
At the conclusion of the penalty phase and deliberations, the jury sentenced Howard to
death on May 2, 1983.
Attorney Lizzie Hatcher (Hatcher) was appointed by the court to proceed with Howard's
appeal to this court. Hatcher argued that Howard's trial counsel was ineffective because the
public defender, who was a friend of the victim, was his supervisor. Hatcher, however, did
not raise any other specific instances of ineffective assistance of counsel. Hatcher also did not
raise on appeal the issue of prosecutorial misconduct. She testified that we've always been
taught that if there has been no objection at the time of trial, that issue is waived.
This court affirmed Howard's conviction and his death sentence on December 18, 1986.
See Howard v. State, 102 Nev. 572, 729 P.2d 1341 (1986).
Howard filed a petition for post-conviction relief in October of 1987. An evidentiary
hearing was held on August 25, 1988. Howard argued that his trial attorneys were ineffective
because they failed to present evidence that he was legally insane at the time he killed Dr.
Monahan. He further asserted that his attorneys should have called jail personnel, fellow
inmates, and psychiatrists to testify that if he was given life imprisonment he would not be a
threat to fellow inmates. He insisted that his attorneys were ineffective because they failed to
object to the prosecutor's improper remarks made during the penalty hearing. Finally, Howard
contended that his appellate counsel had failed to argue on appeal that the prosecutor's
remarks were improper.
The district court found that Howard's attorneys acted effectively and that Howard's
penalty hearing was more than fair. Therefore, the court denied Howard's petition for
post-conviction relief. Howard now appeals that decision.
Legal Discussion
I. Prosecutorial Misconduct.
[Headnote 1]
Howard contends that he was denied effective assistance of counsel because his trial
attorneys failed to object to improper comments made by the prosecutor in closing
argument during the penalty phase of the trial.
comments made by the prosecutor in closing argument during the penalty phase of the trial.
Howard further asserts that his appellate attorney was ineffective because she failed to argue
on appeal that the prosecutor made improper comments.
The first issue presented is whether certain of the prosecutor's comments made during
closing argument constituted prosecutorial misconduct. We conclude that, pursuant to Collier
v. State, 101 Nev. 473, 705 P.2d 1126 (1985), the prosecutor made three improper arguments
to the jury. First, Mr. Seaton stated to the jury that he believed Howard should be put to
death:
Mr. Harmon and Iwell, before that even other prosecutors in our office had to
okay this case for prosecution. Mr. Harmon and I then come in and we have to do what
we have done over the past several weeks. We have to tell you that we believe in what
we're telling you, that Sam Howard should be put to death, and we do believe that. We
have a responsibility.
In Collier, this court stated:
Such an injection of personal beliefs into the argument detracts from the
unprejudiced, impartial, and nonpartisan role that a prosecuting attorney assumes in
the courtroom. By stepping out of the prosecutor's role, which is to seek justice, and by
invoking the authority of his or her own supposedly greater experience and knowledge,
a prosecutor invites undue jury reliance on the conclusions personally endorsed by the
prosecuting attorney.
Id. at 480, 705 P.2d at 1130 (citations omitted). In the instant case the prosecutor used his
position of authority to tell the jury that he personally believed that Howard should be put to
death. Thus, his statement was improper and constituted prosecutorial misconduct.
[Headnotes 2, 3]
Second, Mr. Seaton told the jury that in this case as I see it you're either for the defendant
or you're for these unnamed, uncertain victims that I am referring to. The prosecutor then
closed his final argument by saying: And then I ask you, on behalf of those same citizens of
the State of Nevada, to come back into this courtroom and tell us beyond a reasonable doubt
that you won't stand for the possibility of any future victim at the hands of Sam Howard.
Thank you. We have held that arguments asking the jury to place themselves in the shoes of
a party or the victim (the Golden Rule argument) are improper. See McGuire v. State, 100
Nev. 153, 677 P.2d 1060 (1984). Equally improper are pleas to return a death penalty
verdict on behalf of the victims.
to return a death penalty verdict on behalf of the victims. See Nevius v. State, 101 Nev. 138,
699 P.2d 1053 (1985). If it is improper to argue that a jury should align itself with the victim,
it is equally improper to ask the jury to vote in favor of future victims and against the
defendant. See McGuire, supra.
[Headnotes 4, 5]
Third, Mr. Seaton warned the jury that Howard might escape from prison. In Collier this
court held that the prospect of escape is not part of the calculus that the jury should consider
in determining a defendant's sentence. Collier, 101 Nev. at 479. Since then we have decided
Haberstroh v. State, 105 Nev. 739, 782 P.2d 1343 (1989), where we determined that a
prosecutor may argue in closing argument that the defendant might kill again if such
argument is supported by evidence in the record. This was done on the rationale that a
prosecutor should be permitted to argue those facts in evidence and the reasonable inference
that can be drawn from them. Following this rationale, we see no reason why a prosecutor
should not be permitted to argue that a defendant may attempt to escape if it is supported by
the evidence. To this extent, we modify Collier. However, there was no evidence presented of
any prior escape attempts, and we therefore conclude that the prosecutor's remarks concerning
the possibility that Howard might escape were improper.
[Headnotes 6, 7]
We further conclude that pursuant to Strickland v. Washington, 466 U.S. 668, 674 (1984),
Howard's trial and appellate attorneys were remiss in failing to object to or raise on appeal the
prosecutor's three questionable remarks to the jury. Defense attorneys should object to all
apparent instances of prosecutorial misconduct.
[Headnote 8]
Howard, however, must also prove pursuant to Strickland that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland,
466 U.S. at 687. Strickland also held that overwhelming evidence of guilt is a consideration
of whether a client had ineffective counsel. Strickland, 466 U.S. at 696; see also, Ybarra v.
State, 103 Nev. 8, 731 P.2d 353 (1987). Strickland further specified the standard which
should be used to determine whether prejudice occurred during the penalty phase of a capital
case:
When a defendant challenges a death sentence such as the one at issue in this case, the
question is whether there is a reasonable probability that, absent the errors, the
sentencerincluding an appellate court, to the extent it independently reweighs the
evidencewould have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.
reasonable probability that, absent the errors, the sentencerincluding an appellate
court, to the extent it independently reweighs the evidencewould have concluded that
the balance of aggravating and mitigating circumstances did not warrant death.
Strickland, 466 U.S. at 695.
We conclude that Howard has failed to show that he was prejudiced by his attorneys'
derelictions pursuant to Strickland. First, in the instant case the prosecutorial misconduct
complained of was not as serious as that which occurred in other cases we have reversed.
Second, we note that the only mitigating circumstances Howard presented to the jury came
from his own testimony which was not verified by any transcripts or any other testimony.
Third, the prosecution presented the jury with aggravating circumstances by proving that
Howard committed the murder during the course of a robbery, and that he had committed a
previous felony involving the use or threat of violence. See NRS 200.033(2). Fourth, the jury
also heard evidence concerning Howard's past violent acts. Hence, the jury had ample reasons
to find that the aggravating circumstances outweighed any mitigating circumstances. See NRS
175.554(2). Therefore, even absent the errors by Howard's counsel, there was not a
reasonable probability that the jury would have reached a contrary result.
[Headnote 9]
Howard asserts that two other arguments made by the deputy district attorney constituted
prosecutorial misconduct. He contends that the district attorney's warnings to the jury that
Howard could kill again were improper. We disagree. In Haberstroh, supra, this court held
that where a defendant's past actions support a reasonable inference that he may kill again a
prosecutor may comment on the defendant's dangerousness. Howard's past acts provide ample
evidence that he could kill again. First, Howard was previously convicted of robbing a female
nurse with a gun. He also threatened to kill her, made her take off her clothes and crawl, and
stole her car. Second, Howard was convicted of robbing a man at gun point. Third, after
Howard was detained for attempting to defraud Sears, he pointed a gun at a security guard
and threatened to kill him. Fourth, after a minor traffic accident Howard threatened to kill the
other driver. Since Howard's past acts would lead a reasonable person to believe he could kill
again, the prosecutor's comments concerning his propensity for violence did not constitute
prosecutorial misconduct.
[Headnote 10]
Howard further asserts that the prosecutor improperly compared him to Charles Manson
contrary to this court's holding in Collier. We disagree. In Collier, the prosecutor made the
following statement to the jury: Prison didn't keep Patrick McKenna, one of our more
notable inmates, from strangling his fellow inmate in jail, J.J. Nobles. Collier, 101 Nev. at
478, 705 P.2d at 1129. This court held in Collier that it was improper for a prosecutor to
compare a defendant to a notorious criminal. In the instant case the prosecutor said to the
jury: You yourself at sometime may have made the comment, . . . that we ought to get rid of
those guys, speaking in general terms about Charlie Manson or somebody like that. The
instant case differs from Collier in that here the prosecutor made a general statement about
criminals. He made no direct comparison between Howard and Manson in his remarks to the
jury. The prosecutor's comment thus did not create the type of direct reference which
occurred in Collier.
[Headnote 11]
Howard also contends that the prosecutor engaged in misconduct when he made the
following statement to the jury at the close of the penalty phase: And now I ask you, let that
reasonable doubt benefit society. Let it benefit the citizens of Las Vegas and yourselves and
your loved ones, as it did not benefit Doctor Monahan. When a prosecutor begins to
rephrase the reasonable doubt standard, he or she is often venturing into troubled water.
However, here the remarks were not a distortion of the standard proof. In Collier this court
held that prosecutorial misconduct occurs when a prosecutor argues that a jury must put a
defendant to death or it is not acting morally. Id. at 479, 705 P.2d at 1130. The prosecutor's
statement did not convey this message to the jury. Thus, Howard's argument lacks merit.
II. Failure to present penalty phase evidence.
[Headnote 12]
Howard contends that his attorneys were ineffective because they failed to present
evidence to corroborate Howard's testimony at the penalty phase of his trial. Howard insists
that he offered to sign releases so that his attorneys could get his records proving that: (1) he
received an honorable discharge from the Marines; (2) he received a Purple Heart medal
while in Vietnam; (3) he had severe mental problems; and (4) he had a good jail record.
[Headnote 13]
Howard's attorneys testified that Howard refused to sign releases for these records. The
court believes Howard's attorneys rather than Howard.
rather than Howard. On matters of credibility this court will not reverse a trial court's finding
absent a clear showing that the court reached the wrong conclusion. See King v. State, 87
Nev. 537, 490 P.2d 1054 (1971). While we are troubled that no records of any type were
presented by Howard during the penalty phase, there is no showing that the court ruled
incorrectly. Therefore, Howard's argument that his attorneys were ineffective because they
failed to get records to corroborate his testimony is without merit.
[Headnotes 14, 15]
Finally, Howard claims that his attorneys were ineffective because they offered, aside from
his own testimony, no mitigating evidence to the jury. We disagree. First, there is evidence
that Howard did not want mitigating evidence presented to the jury. Second, the court found
that Howard frustrated his attorneys' attempts to present mitigating evidence. Third, Howard
fails to state what additional mitigating evidence, aside from his own testimony, his attorneys
should have provided the court. Fourth, the decision as to what mitigating evidence to put
forth is a tactical decision based on many factors. Tactical decisions are virtually
unchallengeable absent extraordinary circumstances. Strickland, 466 U.S. at 691. We find no
extraordinary circumstances in the instant case.
III. Sanctions for attorney misconduct.
[Headnote 16]
The prosecutor, Dan Seaton, made three improper arguments to the jury. In all three
instances the case law was unambiguous that such remarks were not permitted. Mr. Seaton is
a veteran prosecutor and knows very well that these remarks were improper. This case is not
the first time we have dealt with improper arguments made to a jury by Mr. Seaton.
1
Time
after time we say, as we did, for example, in Santillanes, 104 Nev. at 702, 765 P.2d at
1149, "[w]e agree that Mr.
__________

1
A non-exhaustive sampling of cases in which Mr. Seaton has participated reveals a history of persistent
disregard for established rules of professional conduct regarding improper argument before a jury. In Downey v.
State, 103 Nev. 4, 731 P.2d 350 (1987), Seaton improperly hinted that there was additional inculpatory evidence
to which the jury was not privy. In Browning v. State, 104 Nev. 269, 757 P.2d 351 (1988), Seaton committed
misconduct by characterizing the crime as a Friday-the-13th kind of scenario. He further characterized the
presumption of innocence as a farce, a comment this court deemed outrageous. In Pellegrini v. State, 104 Nev.
625, 764 P.2d 484 (1988), Seaton referred to the possibility that the defendant could kill again if allowed to live.
Although the comment did not require reversal, it nevertheless violated our holding in Collier v. State, 101 Nev.
473, 705 P.2d 1126 (1985). In Santillanes v. State, 104 Nev. 699, 765 P.2d 1147
Time after time we say, as we did, for example, in Santillanes, 104 Nev. at 702, 765 P.2d
at 1149, [w]e agree that Mr. Seaton's remarks were improper; however we do not believe a
reversal is warranted in this case. We say it again here. However, there is no reason why
these issues should be continually presented to us by the misconduct of one experienced
prosecutor. Rather than deal with the appropriate sanction that should be levied against Mr.
Seaton, we refer this case to the Southern Nevada Disciplinary Board of the State Bar of
Nevada for review and appropriate action.
Conclusion
[Headnote 17]
This court will not reverse a district court's holding if substantial evidence supports it. See
Mitchell v. State, 92 Nev. 458, 552 P.2d 1378 (1976). Substantial evidence supports all of the
district court's holdings. Howard's remaining contentions lack merit and the court correctly
rejected them. Therefore, we affirm the district court's decision.
Young, C. J. and Springer, J., concur.
Steffen, J., with whom Mowbray, J., joins, concurring and dissenting:
I concur in the result reached by the majority, but specifically dissent from Part III of the
opinion entitled Sanctions for attorney misconduct.
My decision to separate myself from my respected colleagues on the question of sanctions
was reached advisedly and with a degree of regret. The lack of enthusiasm with which I write
is not derived from the position I take; rather, it stems from an awareness that whenever this
court seeks to instruct the bar through its opinions, greater effect is achieved when the
members of the court are united in their views. My reluctance notwithstanding, I am
compelled to dissent because I am convinced that my brethren in the majority have allowed
an excess of zeal or preoccupation to possiblyand in my opinion,
unnecessarilyjeopardize the future of a highly talented prosecutor whose efforts have
been of lasting benefit to the state and community which he serves.
__________
(1988), we concluded that Seaton distinctly traversed the boundary separating proper from improper argument
by communicating to the jury his personal opinion as to the accused's guilt. This, again, was in clear violation of
a prior decision of this court, namely, Yates v. State, 103 Nev. 200, 734 P.2d 1252 (1987). In 1989, Seaton
again violated our ruling in Collier. See Valerio v. State (Case No. 19008, order dismissing appeal filed
September 6, 1989). Seaton disingenuously argued that he believed his comment was permissible under our
holding in Pellegrini, even though Pellegrini had not yet been published at the time he made his comments at
Valerio's trial.
future of a highly talented prosecutor whose efforts have been of lasting benefit to the state
and community which he serves.
I would observe at the outset that I do agree, albeit to a lesser degree than the majority, that
improper argument occurred in this case. Under our prior rulings, the prosecutor did inch his
way beyond what this court has approved in those areas identified by the majority.
Nevertheless, I also agree that the prosecutor's inappropriate argument failed to reach a level
that deprived Howard of fundamental fairness in the overall trial. Indeed, neither defense
counsel nor the trial judge perceived the need to interfere with Mr. Seaton's argument, a point
that I shall presently address.
I am firmly of the opinion that a trial judge has the responsibility to control courtroom
proceedings, including the conduct of trial counsel. Moreover, counsel has an obligation to
object to comments or actions by opposing counsel whenever their effect may be considered
to be prejudicial or otherwise deserving of an objection and perhaps a request for an
admonition by the judge. Trial counsel will often withhold objections for tactical reasons,
concluding that an objection may appear offensive to the jury or at least an unnecessary
annoyance. In any event, for whatever reason, defense counsel was uninspired to object to the
comments which this court seizes upon as a final straw.
1
More importantly, however, the
veteran trial judge who presided over the trial was unmoved by the prosecutor's remarks. I
find it somewhat unseemly for this court to refer the prosecutor to the embarrassing stigma
and ordeal of a bar discipline proceeding when neither the trial judge nor defense counsel
was motivated to find fault with the prosecutor's conduct.
__________

1
It is clear from the majority opinion that the harsh sanction imposed against Mr. Seaton is calculated to
exact payment for sins both past and present. In that regard, it would appear that the beleaguered prosecutor is
actually being subjected to double punishment for historical conduct that has been previously criticized and
otherwise addressed by this court.
Another reason why I believe the metaphorical camel's back should have endured the latest burden from Mr.
Seaton is that I have seen conduct far more egregious passing muster in other courts. As an example, one need
not look beyond the case of Darden v. State, 329 So.2d 287 (Fla. 1976). Some of the comments from the
prosecutor included the following:
The second part of the trial I will request that you impose the death penalty. I will ask you to advise the
Court to give him death. That's the only way that I know that he is not going to get out on the public. It's
the only way I know. It's the only way I can be sure of it. . . .
. . . .
I don't know, he said on final argument I wouldn't lie, as God is my witness, I wouldn't lie. Well, let me
tell you something: If I am ever over in that chair over there, facing life or death, I guarantee you I will
lie until my teeth fall out.
. . . .
I wish he [the victim] had had a shotgun in his hand when he walked in the back door and blown his
[the defendant's] face off. I wish that I
the trial judge nor defense counsel was motivated to find fault with the prosecutor's conduct.
It is the trial judge who should refer trial counsel who are clearly deserving of such sanctions
to a bar discipline board, just as we should refer appellate counsel who are similarly
deserving. I find it highly anomalous that this court, which apparently has found no basis for
criticizing the control of the trial arena by the presiding trial judge, nevertheless perceives the
prosecutor's conduct as being sufficiently egregious to warrant the supervening sanctions
imposed by the majority.
I am also concerned that the majority's preoccupation has reached a crescendo
prematurely. I am quite willing to acknowledge Mr. Seaton's obvious dislike for certain of
this court's rulings and his obstinate disregard of our previous admonitions. Moreover, I am
not entirely without sympathy for the majority's unwillingness to continue dancing to the
same tune.
__________
could see him sitting here with no face, blown away by a shotgun, but he didn't.
. . . .
. . . I wish someone had walked in the back door and blown his [the defendant's] head off at that point.
Id. at 289-290 (emphasis in original).
Justice Sundberg, in his dissent, included some of the following comments from the prosecutor:
He [the defendant who was out of prison on a brief furlough when he committed the crimes] shouldn't be
out of his cell unless he has a leash on him and a prison guard at the other end of that leash.
. . . .
[A]nd he [the defendant] fired in the boy's back, number five, saving one [bullet]. Didn't get a chance to
use it. I wish he had used it on himself. . . .
. . . .
. . . And Mr. Darden saved one. Again, I wish he had used it on himself. . . .
. . . .
In asserting that the appellant had attempted to change his appearance subsequent to the date of the
crimes the prosecutor concluded with the remark, The only thing he hasn't done that I know of is cut his
throat.
Id. at 291, 292-293 (dissenting opinion).
The Florida Supreme Court concluded that the quoted remarks were fair comments by the prosecutor. Id. at
290. In Darden v. Wainwright, 477 U.S. 168 (1985), the United States Supreme Court characterized the
prosecutor's remarks as improper, but concluded that they did not deprive Darden of a fair trial and that the
argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused
such as the right to counsel or the right to remain silent. Id. at 180-82.
I burden the reader with the Darden history only because it is illustrative of a more tempered approach to a
trial record reflecting improper prosecutorial argument. I am of the opinion that justice would have been served
if this court had simply analyzed the prosecutor's remarks in the instant case, determined their propriety and
whether they deprived Howard of a fair trial.
unwillingness to continue dancing to the same tune. On the other hand, I am not entirely
convinced that Mr. Seaton's seeming recalcitrance is more reflective of disdain for this court's
rulings than it is the product of a prosecutorial zeal that is characteristic of his efforts. It in
fact may involve an element of both. As Mr. Seaton himself has explained to this court, there
are times when the heat of battle will produce some outpourings that, under more quiescent
settings, would never reach human ears. And yet, I have sufficient regard for Mr. Seaton's
intelligence and control mechanisms to believe that if he truly concentrated on the inner
periphery of acceptable argument as opposed to its outer limits beyond which the temptation
to travel is obviously great, he could readily and effectively eliminate future sources of
conflict with this court.
In short, I would have voted to meet with Mr. Seaton personally in an atmosphere of
reason and respect to discuss our mutual concerns and differences. My respect and
appreciation for his efforts of the past and the talent and commitment he brings to the
prosecutor's office would cause me to accord him nothing less. The people of Nevada are
indeed fortunate to have men and women of Mr. Seaton's caliber serving as prosecutors and
defenders in our criminal justice system. In many instances, they could vastly improve their
situations financially by entering the private practice of law. Although this court must be
vigilant in exacting high ethical standards of practice from our attorneys both in the public
and private sectors of the law, we must also be careful not to overreact to the point of
discouraging public service where it is not truly warranted. My own experience on the bench
causes me to believe that judges in particular ought to be wary and introspective before
casting stones capable of inflicting injury or impairing careers when questions of judgment
rather than honesty are at stake.
For the reasons set forth above, I do not agree with the majority's sense of justice
concerning Mr. Seaton and therefore dissent from the aspect of the majority's opinion. I do,
however, concur in the result of the opinion insofar as it affirms the judgment of the district
court.
___________
106 Nev. 727, 727 (1990) Jim Marsh American v. Century Construction
JIM MARSH AMERICAN CORPORATION, a Nevada Corporation, Appellant, v.
CENTURY CONSTRUCTION CO. (NEVADA) LTD., a Nevada Corporation,
TARRY TOWNE HOMEOWNERS ASSOCIATION, Respondents.
No. 20628
November 28, 1990 802 P.2d 1
Appeal from a judgment denying appellant's request for a declaration of easement. Eighth
Judicial District Court, Clark County; Jack Lehman, Judge.
Dominant estate owner brought petition for declaration of easement against serving estate
owner's successor. The district court entered judgment against dominant estate owner, which
appealed. The Supreme Court held that: (1) absent any writing subscribed to by servient
estate owner, alleged easement was never created; (2) recordation of parcel map does not
satisfy statute of frauds where map is not subscribed by both parties; and (3) caveat unless
by act or operation of law, within meaning of statute generally requiring creation of
easements to be in writing, is intended to create exception for property dedicated for public
use, not for wholly private purposes.
Affirmed.
Greenman, Goldberg, Raby & Martinez, Las Vegas, for Appellant.
Gordon & Silver and Joseph S. Kistler, Las Vegas, for Respondents.
1. Frauds, Statute of.
Existence of easement may not be established through parol evidence.
Absent any writing subscribed to by servient estate owner, alleged easement was never created. NRS 111.205, subd. 1.
Recordation of parcel map does not satisfy statute of frauds where map is not subscribed by both parties.
Caveat unless by act or operation of law, within meaning of statute prohibiting creation or assignment of estates or most
interests in lands unless by act or operation of law, or by deed or conveyance, in writing . . . is intended to create exception for
property dedicated for public use, not for wholly private purposes. NRS 111.205, subd. 1.
OPINION
Per Curiam:
This action was initially brought as a petition for a declaration of easement. Respondents
opposed the petition on the grounds that appellant had abandoned his easement. Rather than
ruling on the issue of abandonment, the court below determined that the easement had never
been created in the first place. We agree.
Appellant Jim Marsh American Co. (Marsh) owned three parcels of property in Las Vegas
(parcels 1, 2, and 3). In May 1974, Marsh conveyed parcel 1 to respondents'
predecessor in interest, while retaining parcels 2 and 3. The conveyance did not reserve any
easement rights. Marsh subsequently prepared and recorded a parcel map indicating the
presence of an easement. The owner of parcel 1 never subscribed to this map. Respondent
Century Construction Co. (Century) purchases parcel 1 without knowledge of the existence of
the alleged easement.
[Headnotes 1, 2]
Marsh claims that Century's predecessor in interest orally agreed to the creation of an
easement running the length of the boundary between parcels 1 and 2. The creation of an
easement is subject to the statute of frauds. NRS 111.205(1).
1
The existence of an easement
may not be established through parol evidence. Elliot v. McCombs, 17 Cal.2d 23, 30, 109
P.2d 329, 333 (Cal. 1941). We agree with the trial court that, in the absence of any writing
subscribed to by the servient estate owner, the alleged easement was never created.
[Headnote 3]
The recordation of a parcel map does not satisfy the statute of frauds where the map is not
subscribed by both parties. Huggins v. Castle Estates, Inc., 369 N.Y.S.2d 80, 83 (1975). The
map filed by Marsh was signed by the dominant estate owner alone. Consequently, Marsh's
recordation of the parcel map fails to satisfy the requirements of NRS 111.205(1).
[Headnote 4]
Appellant argues that the caveat unless by act or operation of law, as used in NRS
111.205(1), brings his recordation of the plat map within the statute of frauds.
__________

1
NRS 111.205(1) states:
No estate or interest in lands, other than for leases for a term not exceeding 1 year, nor any trust or
power over or concerning lands, or in any manner relating thereto, shall be created, granted, assigned,
surrendered or declared after December 2, 1861, unless by act or operation of law, or by deed or
conveyance, in writing, subscribed by the party creating, granting, assigning, surrendering or declaring
the same, or by his lawful agent thereunto authorized in writing.
plat map within the statute of frauds. We are unpersuaded by this argument. We believe the
trial judge correctly determined that this language is intended to create an exception for
property dedicated for public use. Here, it is uncontroverted that the alleged easement was
intended for wholly private purposes.
In light of this determination, we find it unnecessary to reach the abandonment issue, and
do hereby affirm the judgment of the trial court.
____________
106 Nev. 729, 729 (1990) Beals v. State
SHANE MARK BEALS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19797
November 28, 1990 802 P.2d 2
Appeal from judgment conviction of causing substantial bodily harm to another while
driving a motor vehicle under the influence of intoxicating liquor. First Judicial District
Court, Carson City; Michael R. Griffin, Judge.
Defendant was convicted in the district court of causing substantial bodily harm to another
while driving motor vehicle under influence of intoxicating liquor, and he appealed. The
Supreme Court held that trial court failed to canvass defendant to determine if he knowingly
and intelligently waived his right to be assisted by counsel.
Law Offices of Jerome M. Polaha and John L. Conner, Reno, for Appellant.
Brian McKay, Attorney General; Noel S. Waters, District Attorney, Carson City, for
Respondent.
1. Criminal Law.
Defendant has sixth amendment right to be assisted by counsel at any critical stage of criminal proceeding which includes
sentencing hearing or any other hearing that will affect substantial rights of defendant. U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Defendant has constitutional right to waive assistance of counsel and act as his own attorney during critical stage of criminal
proceeding as long as waiver of counsel is knowingly and intelligently made, and court should determine if waiver is knowingly and
intelligently made with penetrating and comprehensive examination of waiver and circumstances surrounding it. U.S.C.A.Const.
Amend. 6.
106 Nev. 729, 730 (1990) Beals v. State
3. Criminal Law.
Trial judge's failure to canvass defendant to determine if he knowingly and intelligently waived his right to be assisted by counsel
required remand. U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
The appellant, Shane Mark Beals, entered a plea of guilty to causing substantial bodily
harm to another while driving a motor vehicle under the influence of an intoxicating liquor.
However, on the day he was to be sentenced for this crime, Beals filed a motion to retract his
guilty plea, and his attorney requested leave of court to withdraw from the case because of an
alleged conflict of interest. Beals likewise asked the court to appoint new counsel.
The court refused to appoint new counsel to the case and refused to continue the
sentencing hearing. Beals then informed the court that under the circumstances he would
represent himself. The district court granted Beals' request to act as his own counsel and
allowed Beals' attorney to withdraw from the case.
1

Immediately thereafter, the district court considered Beals' motion to withdraw the guilty
plea, denied the motion, and proceeded to a sentencing hearing.
__________

1
The following colloquy took place between the court and Beals:
THE COURT: All right. Chronologically, I guess the first thing to handle is the motion to withdraw
as counsel, because we have a motion by Mr. Shane Beals for me to allow the substitution of counsel for
him
. . . .
Now, with that, Mr. Beals, on his own behalf, and he represents to me with Mr. Ralph Crow's help,
has filed something saying he wants to substitute Mr. Ralph Crow and/or his father for [his present
counsel].
To the best of my knowledge, Mr. Crow is not allowed to practice law in the State of Nevada, and he,
even in filing this for you is not allowed, the Supreme Court said, to the best of my knowledge, he's not
able to practice law . . . .
To the best of my knowledge, your father, Mr. Beals, is not licensed to practice law in the State of
Nevada. Since he is not licensed to practice law in the State of Nevada. I'm not allowed to have him
represent you.
THE DEFENDANT: Well, then, I'll have appointed counsel, Your Honor . . . .
THE COURT: Well, this is thebut see this is the second counsel you've had.
What you seek to do is to delay the trial so you can have me appoint counsel, and I'm disinclined to
do so.
THE DEFENDANT: Well, I'm ready to continue on my own, Your Honor, pro se.
THE COURT: Okay, then, you're going to do that because I'm not necessarily entitled or going to
delay the sentencing so you can obtain
106 Nev. 729, 731 (1990) Beals v. State
proceeded to a sentencing hearing. At sentencing, Beals changed his mind and renewed his
request for appointed counsel. When this request was denied, Beals asked for a public
defender. This request was denied as well, and Beals asked the court to continue sentencing.
The request for a continuance was likewise denied. Beals was then sentenced to 15 years at
the Nevada State Prison and a fine of $2,000.
[Headnote 1]
A defendant has a sixth amendment right to be assisted by counsel at any critical stage of a
criminal proceeding. Brinkley v. State, 101 Nev. 676, 678, 708 P.2d 1026, 1028 (1985). A
critical stage of the criminal proceeding includes a sentencing hearing, Cunningham v. State,
94 Nev. 128, 130, 575 P.2d 936, 938 (1978), or any other hearing that will affect the
substantial rights of the defendant. Barton v. State, 96 Nev. 267, 268, 607 P.2d 586, 587
(1980). A hearing on a motion to retract a guilty plea can affect substantial rights because the
motion may question the validity of the guilty plea and whether or not the plea should be
vacated. Accordingly, Beals acted as his own counsel at two critical stages of the proceeding:
First, when he represented himself at the hearing to change his plea, and second, at
sentencing.
[Headnote 2]
A defendant has the constitutional right to waive the assistance of counsel and act as his
own attorney during a critical stage of a criminal proceeding as long as the waiver of
counsel is "knowingly and intelligently" made.
__________
additional counsel, because this has been set for, since October the 12th for sentencing. So there's not
going to be a continuance.
THE DEFENDANT: I do not wish to continue
THE COURT: Pardon? I cannot hear you.
THE DEFENDANT: I do not wish to have [present counsel] represent me at this time, Your Honor.
THE COURT: You're entitled to withdraw, but you'll remain.
[BEALS' COUNSEL]: Thank you, Your Honor.
THE DEFENDANT: I also wish to have the right to counsel at the sentencing. In NRS I have
THE COURT: Pardon?
THE DEFENDANT: I have the right to counsel at sentencing.
THE COURT: Excuse me. You have a right to counsel, but you filed something Monday saying you
wanted Mr. Crow to represent you. He's not entitled to do so. You wanted your father to represent you.
He's not entitled to do so.
This has been set for two months. You have rights. Everybody else involved has rights, too, including
the victim, sir. This is not going to be continued.
THE DEFENDANT: Okay.
THE COURT: You'll either, you will represent yourself or you could continue with [your present
counsel]. That's the choices you have.
THE DEFENDANT: No, Your Honor, I wish to represent myself.
THE COURT: Okay, We'll proceed . . . .
106 Nev. 729, 732 (1990) Beals v. State
of counsel and act as his own attorney during a critical stage of a criminal proceeding as long
as the waiver of counsel is knowingly and intelligently made. Faretta v. California, 422
U.S. 806 (1975). The court should determine if the waiver is knowingly and intelligently
made with a penetrating and comprehensive examination of the waiver and the
circumstances surrounding it. Garnick v. Miller, 81 Nev. 372, 376, 402 P.2d 850, 853 (1965),
citing Von Moltke v. Gillies, 332 U.S. 708, 724 (1948).
[Headnote 3]
It is apparent from the colloquy that took place between the district court judge and Beals,
that the court did not canvass Beals to determine if he knowingly and intelligently waived his
right to be assisted by counsel. Accordingly, Beals' sentence is vacated, and the case is
remanded to the district court so the court can reconsider the motion to withdraw the guilty
plea in a manner consistent with this opinion. Thereafter, if Beals is sentenced, the sentencing
hearing must likewise comport with Beals' right to be assisted by counsel, or to be properly
canvassed in the event of a requested waiver of counsel.
____________
106 Nev. 732, 732 (1990) Starlets International v. Christensen
STARLETS INTERNATIONAL, INC., and ELIZABETH CATTONAR, Appellants, v.
PAUL J. CHRISTENSEN, WILLIAM U. PEARSON, JAY BINGHAM, THALIA
DONDERO, KAREN HAYES, MANNY CORTEZ, BRUCE WOODBURY, in their
capacity as CLARK COUNTY COMMISSIONERS; JOHN MORAN, in his capacity
as Sheriff of Clark County, Nevada, and in his capacity as Chairman of the Las Vegas
Metropolitan Police Department, and NED SOLOMON, in his capacity as Director of
Business Licenses, Respondents.
No. 19802
November 28, 1990 801 P.2d 1343
Appeal from order dismissing complaint for injunctive relief and confirming
constitutionality of Clark County Code 6.140. Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Operators of outcall entertainment businesses and entertainer brought action to have
declared unconstitutional a county ordinance designed to regulate outcall promoters
providing services to hotels and motels.
ordinance designed to regulate outcall promoters providing services to hotels and motels. The
district court entered summary judgment for county, and plaintiffs appealed. The Supreme
Court held that: (1) the ordinance did not violate equal protection; (2) the ordinance did not
violate plaintiffs' rights of association; and (3) the ordinance was both clear and not violative
of due process requirements.
Affirmed.
James L. Buchanan, II, Las Vegas, for Appellants.
County, for Respondents.
Legislative enactment is presumed to be constitutional absent clear showing to contrary.
2. Constitutional Law; Licenses.
Ordinance which regulated outcall promotion business in hotels and motels where they were found to function primarily as pretext
for prostitution was reasonably and rationally related to legitimate government interest in controlling prostitution; thus, fact that
ordinance distinguished between outcall promoters providing services to hotels and motels and other outcall promoters did not
violate equal protection of the law. U.S.C.A.Const. Amend. 14.
3. Constitutional Law; Municipal Corporations.
City ordinance regulating outcall promotion business in hotels and motels where it was found to function primarily as pretext for
prostitution did not violate businesses' rights of association; businesses failed to show that outcall promotion in hotels and motels was
anything other than pretext for prostitution, and, even in absence of illegal activity, types of association protected by Constitution are
less likely to be implicated within privacy of hotel or motel room accommodating paid exotic entertainer and her or his patron.
To satisfy due process, statute must clearly delineate conduct it proscribes. U.S.C.A.Const. Amend. 14.
5. Criminal Law.
Vague laws are unacceptable because they entrap innocent without sufficiently defining what is prohibited.
Ordinance must set forth reasonably precise standards for law enforcement officials and triers of fact to follow.
7. Constitutional Law; Licenses.
Ordinance requiring person who provides outcall services to hotels and motels to satisfy licensing provisions, and requiring
managers and entertainers to be similarly licensed, was clear and not violative of due process, as ordinance facilitated legitimate
governmental interest in controlling prostitution. U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
Facts
This case represents another episode in Clark County's efforts to control prostitution. The
business of illegal prostitution in Clark County has proved to be resilient, resourceful and
persistent. The County banned escort services in 1986 after determining that they were
merely operating pseudonyms for prostitution. The County thereafter adopted bill number
10-87-2an amendment to Title 6 of the Clark County Codein response to the
chameleonic transformation of the prohibited businesses from escort services to outcall
entertainment.
1

In August, 1988, appellants Starlets Internationalan outcall promoter
2
and Elizabeth
Cattonaran entertainer
3
filed a complaint asking for a temporary restraining order and
preliminary and permanent injunctions enjoining the County from enforcing the ordinance.
Appellants also sought to have the ordinance declared unconstitutional.
__________

1
The ordinance, adopted in part as Clark County Code 6.140.010, reads as follows:
The escort business then instituted a new business method, by obtaining promoter's licenses and offering
in response to a telephone call, what they purported to be entertainment. Police undercover activities
have established that these promoters are actually operating as modified brothels, sending individuals to
hotel and motel guestrooms for the purpose of prostitution under the subterfuge of entertainment. . . .
The purpose of the ordinance codified in this chapter is to regulate the outcall entertainment business to
the end that many types of criminal activities will be curtailed, without defacto prohibiting or curtailing
protected expression. This chapter represents a balancing of legitimate ends of the community by
imposing an incidental, content neutral place, time and manner regulation on the outcall promoter
business, without limiting alternative avenues of communication, and at the same time, requiring the
business to carry its share of financing law enforcement activities.

2
6.140.020 (c) and (i) define the relevant terms as follows:
(c) Outcall means the business procedures whereby one person is sent or referred to a hotel or motel
guestroom by another person or business entity for a fee, in response to a telephone request of said
referral for entertainment purposes.
. . . .
(i) Outcall promoter means a person or business entity holding him, her or itself out as a source of
outcall entertainers or one who engages in the business of providing outcall entertainment for a fee.

3
Subsection (f) of 6.140.020 defines entertainer thusly:
Entertainer means the person referred by the outcall entertainment business entity to visit the hotel
or motel guestroom of a patron for a fee.
declared unconstitutional. Respondents filed a NRCP 12(b)(5) motion to dismiss, and the
district court, treating the motion as one for summary judgment, granted judgment favoring
the County.
Discussion
[Headnote 1]
A legislative enactment is presumed to be constitutional absent a clear showing to the
contrary. Westinghouse v. Dept. of Taxation, 101 Nev. 184, 698 P.2d 866 (1985); Allen v.
State, Pub. Emp. Ret. Bd., 100 Nev. 130, 676 P.2d 792 (1984); List v. Whisler, 99 Nev. 133,
660 P.2d 104 (1983). Appellants failed to satisfy their heavy burden.
Appellants contend that the ordinance creates an arbitrary and capricious classification that
violates equal protection of the law, deprives them of due process and their freedom of
association.
1. Equal Protection
[Headnote 2]
Appellants argue that the ordinance unconstitutionally distinguishes between outcall
promoters providing services to hotels and motels and other outcall promoters in three
aspects: (1) the distinction creates a discriminatory tax; (2) the distinction is arbitrary; and (3)
the classification results in discriminatory treatment.
Because the ordinance does not affect fundamental rights, a deferential standard of review
applies to our analysis.
4
Chapter 6.140 will therefore satisfy equal protection requirements if
there is a rational basis for the differing classifications established by the ordinance. Allen,
100 Nev. at 136, 676 P.2d at 795-96; City of New Orleans v. Dukes, 427 U.S. 297 (1976).
5
In Edwards v. City of Reno, 103 Nev. 347
__________

4
Even under a strict scrutiny approach, classifications involving fundamental rights will be valid if there is a
substantial government interest that cannot be achieved by a less restrictive means. Schad v. Mt. Ephraim, 452
U.S. 61, 70 (1981), discussing Village of Schaumburg v. Citizens for a Better Environ., 444 U.S. 620, 637
(1980). Moreover, even fundamental rights may not be exercised at all times and places or in any manner that
may be desired. See Heffron v. Int'l Soc. For Krishna Consc., 452 U.S. 640, 647 (1981).
Because Chapter 6.140 was enacted pursuant to a substantial governmental interest, the classification was
proper in time, place and manner of restriction. Chapter 6.140 would therefore most probably pass constitutional
muster even if we were to apply a strict scrutiny standard of review.

5
If, as here, there is no fundamental right involved, the court is left with the rather benign and deferential
prospect of scrutinizing the challenged legislation for foundational support containing an ingredient of rational
bases. Allen, 100 Nev. at 136, 676 P.2d at 795-96.
City of Reno, 103 Nev. 347, 742 P.2d 486 (1987), this court concluded that there was a valid,
rational basis for distinguishing between door-to-door peddlers and door-to-door solicitors.
Id. at 351, 742 P.2d at 488-89. After a number of findings on how the two businesses were
conducted, the City of Reno placed a higher licensing fee on peddlers than solicitors. We
concluded that the City's determination that peddlers were more likely to defraud customers
than solicitors was reasonable. Id. Similarly, in applying the deferential standard to Chapter
6.140, we are persuaded that the classification is reasonable. The ordinance regulates the
outcall promotion business in hotels and motels where it was found to function primarily as a
pretext for prostitution. Clark County Code 6.140.010. Thus, the ordinance merely provides
Clark County with a weapon against prostitution. We hold the ordinance is reasonably and
rationally related to a legitimate government interest.
2. Rights of Association
[Headnote 3]
In Techtow v. City Council of North Las Vegas, 105 Nev. 330, 775 P.2d 227 (1989), we
invalidated part of an ordinance requiring massage parlors to keep records of the names of
patrons open for inspection because it violated the patrons' rights to privacy and association.
Id. at 334, 775 P.2d at 230-31. We there concluded that the requirement would deter law
abiding people from seeking a legitimate massage. Id. at 335, 775 P.2d at 231. Moreover, the
ordinance provided less obtrusive and equally effective alternatives for monitoring and
preventing prostitution. We accordingly determined that the requirement infringed too far on
the rights of privacy and association. Id.
The same concerns are not present in this case. Unlike massage parlors, the problem of
controlling prostitution in outcall promotion does not occur on business premises. Rather,
prostitution occurs within the privacy of hotel or motel rooms. Problems of surveillance and
detection are costly and difficult for law enforcement operatives in such locations. The
information required by the ordinance, such as name of entertainer and name and location of
patron, is designed to aid law enforcement officials in these operations.
6
Furthermore, the
patron relinquishes some of his or her rights to privacy and association by voluntarily signing
his or her name at the check-in desk of the hotel or motel.
Appellants have failed to show that outcall promotion in hotels and motels is anything
other than a pretext for prostitution. The right to engage in prostitution or other illegal
activity is not encompassed within the right of association.
__________

6
Moreover, the licensing fee requirement in the ordinance helps defray the cost in conducting the secret
operations.
right to engage in prostitution or other illegal activity is not encompassed within the right of
association. Even in the absence of illegal activity, the types of association protected by the
constitution are less likely to be implicated within the privacy of a hotel or motel room
accommodating a paid exotic entertainer and her or his patron. See FW/PBS v. City of Dallas,
------
U.S.
------
,
------
, 110 S.Ct. 611 (1990).
3. Due Process
[Headnotes 4-6]
Appellants contend that Chapter 6.140 violates their due process rights. To satisfy due
process, a statute must clearly delineate the conduct it proscribes. Kev, Inc. v. Kitsap
County, 793 F.2d 1053, 1057 (9th Cir. 1986), citing Grayned v. City of Rockford, 408 U.S.
104, 108 (1972). Vague laws are unacceptable because they may entrap the innocent without
sufficiently defining what is prohibited. Kev, 793 F.2d at 1057; Papachristou v. City of
Jacksonville, 405 U.S. 156, 162 (1972). Moreover, an ordinance must set forth reasonably
precise standards for law enforcement officials and triers of fact to follow. Kev, 793 F.2d at
1057, citing Smith v. Goguen, 415 U.S. 566, 572-73 (1974); Grayned, 408 U.S. at 108-09.
[Headnote 7]
There can be no doubt 6.140 meets these standards. If a person provides outcall services to
hotels and motels, that person must satisfy the licensing provisions of Chapter 6.140.
Managers and entertainers must be similarly licensed. We conclude that the standard is both
clear and not violative of due process requirements. Having previously concluded that the
ordinance facilitates legitimate governmental interests, we perceive no basis for determining
that appellants' rights to due process were violated by Chapter 6.140.
We have considered appellants' other issues and conclude that they are without merit.
The judgment of the district court is affirmed.
____________
106 Nev. 737, 737 (1990) Marcoz v. Summa Corporation
FRANCO A. MARCOZ, Appellant, v. SUMMA CORPORATION, Respondent.
No. 19874
November 28, 1990 801 P.2d 1346
Appeal from amended order granting in part and denying in part appellant's motion to
dismiss.
part appellant's motion to dismiss. Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
Employee sued former employer alleging age discrimination, breach of employment
contract, tortious discharge in violation of public policy, bad faith discharge in violation of
implied covenant of good faith and fair dealing, and intentional infliction of emotional
distress. The district court dismissed breach of employment contract, bad faith discharge and
tortious discharge claims, which were at least partially dependent on claim of discharge with
intent to save money through deprivation of enhanced retirement and other benefits, as being
preempted by ERISA. Employee appealed. The Supreme Court held that employee's
allegation of bad faith termination for purpose of saving or reducing employer's obligation for
future contributions to employee's retirement plan was preempted by ERISA.
Affirmed.
Brian K. Berman, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy, Jemison & List and Carol R. Davis, Las Vegas, for
Respondents.
1. Master and Servant; States.
Action by employee against former employer alleging bad faith termination for purpose of saving or reducing employer's
obligation for future contributions to employee's retirement plan was preempted by Employee Retirement Income Security Act of 1974.
Employee Retirement Income Security Act of 1974, 502, 510, 514(a), 29 U.S.C.A. 1132, 1140, 1144(a).
2. States.
Question of whether particular state action is preempted by federal law involves interpreting language of statute in accordance with
congressional intent.
Intent of Congress in creating civil cause of action under ERISA for persons discharged by employer for purpose of interfering
with attainment of any right to which such person may become entitled under ERISA plan was to prohibit employers from discharging
or harassing their employees in order to prevent them from obtaining their statutory or plan-based right and was designed to protect
employment relationship. Employee Retirement Income Security Act of 1974, 502(a)(3), 510, 514, 514(a), (c)(1), (2), 29 U.S.C.A.
1132(a)(3), 1140, 1144, 1144(a), (c)(1), (2).
4. Master and Servant; States.
If employee alleges that deprivation of pension benefits was reason employee was discharged, then employee's claim is preempted
by ERISA; but, if loss of pension benefits is mere consequence of discharge, then claim is not preempted by ERISA. Employee
Retirement Income Security Act of 1974, 510, 514, 29 U.S.C.A. 1140, 1144.
OPINION
Per Curiam:
This is an action by appellant Franco A. Marcoz (Marcoz) against his former employer
Summa Corporation (Summa) for wrongful termination of employment. In a question of first
impression, this court must determine whether a discharged employee's allegation of bad faith
termination for the purpose of saving or reducing the employer's obligation for future
contributions to the employee's retirement plan is preempted by the provisions of section 510
of the federal Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. 1001
et seq. (1982)). Marcoz is attempting to bring his claim under our narrow holding of K Mart
Corp. v. Ponsock, 103 Nev. 39, 732 P.2d 1364 (1987), in which we upheld a general jury
award based on a similar claim and some uniquely egregious conduct.
Facts and Disposition Below
In reviewing a motion to dismiss, we are bound to accept all the factual allegations in the
complaint as true. Edgar v. Wagner, 101 Nev. 226, 227-228, 699 P.2d 110, 111-112 (1985).
Having made this assumption, our function, then, is to determine whether Marcoz has
specified allegations sufficient to constitute the elements upon which relief can be granted. Id.
Marcoz had been a Summa employee since December 1973. From the date of his hiring in
1973 until 1981, Marcoz worked as a training representative in food services at Summa's
gaming properties. This position was phased out and Marcoz was transferred to Summa's
Central Personnel Office (CPO) where he was an employment representative responsible for
interviewing candidates for subsequent assignment to union jobs at various Summa
properties.
In January 1985, Summa dissolved the CPO, electing to handle personnel matters on a
property-by-property basis. Apparently, management made general representations to all CPO
employees, assuring each that they would be placed in other positions within Summa. Marcoz
alleges that he was specifically promised an alternative position with Summa and that all
CPO employees were placed as promised except Marcoz.
Marcoz further alleges that no serious effort was made to place him in another position
with Summa although he wanted to remain in Summa's employ. He claims he not only relied
on the representations but that he even offered to work in a lesser position and at a reduced
salary.
After Summa officials unsuccessfully attempted to persuade Marcoz to voluntarily accept
early retirement, he was terminated.
Marcoz to voluntarily accept early retirement, he was terminated. At the time of his
termination, Marcoz was vested in Summa's retirement plan, but receives less money from
the plan than he would receive had he been allowed to remain working until age 65 or older.
Marcoz was 57 years old at the time of his termination.
The complaint alleged wrongful, discriminatory employment discharge and the following
five causes of action: (1) age discrimination in violation of the Federal Age Discrimination
Act; (2) breach of employment contract; (3) tortious discharge in violation of public policy;
(4) bad faith discharge in violation of implied covenant of good faith and fair dealing; and (5)
intentional infliction of emotional distress. The district court reviewed these causes of action
and determined that the second, third and fourth causes of action were at least partially
dependent on the claim of discharge with intent to save money through deprivation of
enhanced retirement and other benefits and was therefore preempted by the federal ERISA
legislation.
The particular allegation which the district court ordered dismissed alleges Summa was
[a]ttempting to force an early retirement upon Plaintiff in order to reduce his benefits,
thereby saving Defendant Summa money. This claim or its equivalent was realleged in the
dismissed portions of the other causes of action.
The district court held that because of ERISA preemption, a claim as stated by Marcoz
above could not be the basis of a state breach of contract action. It did not completely dismiss
the second cause of action because it noted that Marcoz might be able to raise other valid
claims which would demonstrate Summa's breach of contract. The court further dismissed
part (b) of the third cause of action insofar as it was predicated on the ERISA preempted
allegation but let the age discrimination claim in part (a) stand, as it was not preempted by
ERISA.
The fourth cause of action for bad faith discharge was completely dismissed. This
dismissal was apparently based on the district court's conclusion that because ERISA
preempted causes of action based on claims that the discharge was designed to interfere with
a plan participant's benefits, it would not be possible for Marcoz to allege a cause of action
that satisfied the narrow, fact-specific requirements of K Mart. In short, the district court held
that ERISA eliminated an actionable K Mart claim of bad faith discharge in violation of the
implied covenant of good faith and fair dealing. Although there are some factual similarities
between K Mart and this case, the issue of ERISA preemption was not raised by the parties in
K Mart and was therefore not addressed in our opinion.
For the reasons set out below, we find no error in the district court's preemption
determination. We affirm the dismissals as proper recognition that the affected claims are
federal claims concerning which the federal forum has exclusive jurisdiction.
Preemption Discussion
[Headnotes 1, 2]
ERISA applies, inter alia, to all employee benefit plans established or maintained by any
employer engaged in interstate commerce or in any industry affecting commerce. 29 U.S.C.
1003(a)(1) (1982). Summa meets the statutory interstate requirement and the plan in question
is clearly an ERISA plan.
1
The question of whether particular state action is preempted by
federal law involves interpreting the language of the statute in accordance with congressional
intent. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985).
It is well established that the breadth of ERISA preemption is unique among federal
statutes. See, e.g., Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 9 (1987); Franchise Tax
Bd. v. Construction Laborer Vacation Trust, 463 U.S. 1, 24 n.26 (1983). The original ERISA
bill draft contained limited preemption language. This limited language was consciously
rejected by the conference committee and ultimately altered to reflect the more expansive
approach now contained in the law. Shaw v. Delta Airlines, Inc., 463 U.S 85, 96-100 (1983).
The accompanying legislative history clearly show the extensive preemptive effect Congress
intended ERISA to have. Id.
The Supreme Court has consistently maintained an expansive construction of ERISA
preemption even to the extent of making ERISA claims an exception to the well-pleaded
complaint rule. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66-67 (1987); Hartle v.
Packard Elec., 877 F.2d 354, 355 (5th Cir. 1989). An additional illustration of ERISA's
preemptive scope can be found in Alessi v. Raybestos-Manhattan Inc., 451 U.S. 504 (1981),
where the court held that a New Jersey law which prohibited the set-off of workmen's
compensation benefits against employee retirement benefits was preempted even though the
law was directed at worker's compensation benefits. The court noted that the Act (ERISA)
was designed to occupy fully the field of employee benefit plans and to establish it as
exclusively a federal concern. Id. at 523.
__________

1
The ERISA status of the plan cannot reasonably be disputed. Its status was clearly demonstrated below
using the plan documents. There was no claim that the Summa plans were not ERISA plans and this conclusion
is not challenged or disputed on appeal.
Similarly, in Shaw the court unanimously struck down a New York law requiring
compensation for pregnancy-related disability that would have gone uncompensated under the
existing plans were it not for the New York requirement. The court said that Congress meant
the relate to language in the statute to have the normal sense meaning that the state law
claim is preempted if it has a connection with or reference to such a plan. Id. at 97.
2
This
encompasses direct regulation as well as regulations by implication. Id. at 96-99. The Shaw
court did note that some state actions might be too tenuous or peripheral to satisfy the relate
to language of the statute. Id. at 100 n.21.
3

The most recent Supreme Court ERISA cases retrenched the preemption aspect somewhat
but not in a manner that affects the outcome of this case. Fort Halifax-Packing Co., Inc. v.
Coyne, 482 U.S. 1 (1987); Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S.
825, 108 S.Ct. 2182 (1988). In Fort Halifax, the court decided that ERISA preemption of a
Maine plant closing statute requiring lump sum severance payments would not serve the
purposes of ERISA and, therefore, in recognition of the state's interest declined to allow
preemption. Similarly, in Mackey, a Georgia state law which allowed garnishment of ERISA
employee welfare benefits was not preempted despite the fact that the law clearly impacted an
ERISA plan.
Here, the district court primarily based its decision on its interpretation of 29 U.S.C.
1144(a), 1140, and 1132 (1982).
4
ERISA provides, with exceptions that do not apply to
these facts,
5
that it "shall supersede any and all State laws insofar as they may now or
hereafter relate to any employee benefit plan [within the Act's coverage]."
__________

2
To highlight the expansiveness of relate to, the court cites Black's Law Dictionary 1158 (5th ed. 1979)
which provides: Relate. To stand in some relation; to have bearing or concern; to pertain; refer, to bring into
association with or connection with. Obviously, the definition does not decide the question, but it illustrates the
breadth of the term used by Congress. We must assume that the term was deliberately chosen.

3
The court furthered the expansive interpretation of ERISA preemption provisions in the companion cases
of Pilot Life Ins. Co. v. Dedeaux, 480 U.S. 41 (1987); and Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58
(1987).
Pilot Life is not directly relevant as it related to improper processing of insurance claims. The court
unanimously held that the language of 1132 preempted such claims in that the claim did relate to an ERISA
plan making the claims federal claims with exclusive federal remedies.
Taylor, likewise involved the question of improper administration of an ERISA plan in an action against the
plan fiduciary. The court held this to be an obvious area of federal concern and preemption applied.

4
For ease of reference, all statutory citations in the opinion shall be to the various citations in the United
States Code and not to the particular sections of ERISA.

5
In broad characterization, the exceptions concern causes of action which accrued prior to January 1, 1975;
state insurance, banking, and securities laws; state criminal law; and state domestic relations laws. 28 U.S.C.
1003(b); 1144(b) (1982).
that it shall supersede any and all State laws insofar as they may now or hereafter relate to
any employee benefit plan [within the Act's coverage]. 29 U.S.C. 1144(a) (1982). State
law is defined broadly enough to encompass almost any imaginable legislative, judicial or
administrative action a state might take. 29 U.S.C. 1144(c)(1)(2) (1982).
Given the plain meaning of the statutory language and the broad construction accorded
ERISA preemption, Marcoz's claims appear to relate to an employee benefit plan. If
1144(a) were the only applicable section, we would have to determine whether the
relationship was too tenuous given the state interest. However, any uncertainty on the point is
resolved when that section is read in conjunction with 1140.
Section 1140 provides:
Interference with protected rights
It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or
discriminate against a participant or beneficiary for exercising any right to which he is
entitled under the provisions of an employee benefit plan . . . or for the purpose of
interfering with the attainment of any right to which such participant may become
entitled under the plan, this subchapter, or the Welfare and Pension Plans Disclosure
Act . . . . The provisions of section 1132 of this title shall be applicable in the
enforcement of this section [emphasis added].
The 1132 enforcement provision referred to in 1140 provides:
A civil action may be brought
. . . .
(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which
violates any provision of this subchapter or the terms of the plan, or (B) to obtain other
appropriate equitable relief (i) to redress such violations (ii) to enforce any provisions
of this subchapter or the terms of the plan[.]
29 U.S.C. 1132(a)(3) (1982).
[Headnote 3]
Congress enacted these sections in order to completely secure the rights and expectations
brought into being by this landmark reform legislation. S. Rep. No. 127, 93d Cong., 2d Sess.
36, reprinted in 1974 U.S. Code Cong. & Admin. News 4838, 4872 (1974). The intent was to
prohibit employers from discharging or harassing their employees in order to prevent them
from obtaining their statutory or plan-based rights and was designed to protect the
employment relationship.
harassing their employees in order to prevent them from obtaining their statutory or
plan-based rights and was designed to protect the employment relationship. West v. Butler,
621 F.2d 240, 244-46 (6th Cir. 1980).
Section 1140 prohibits any person
6
from discharging an employee for the purpose of
interfering with the attainment of any right. Although 1144 leaves open the question of
relatedness, it is in 1140 where the dismissed Marcoz claims run aground on the explicit
preemptive language. It clearly applies to the type of termination allegedly suffered by
Marcoz and provides a federal remedy therefor. A fair reading of the broad language supports
the lower court's determination that the dismissed claims were preempted by the above
statute.
In reaching its decision, the district court relied on Sorosky v. Burroughs, 826 F.2d 794
(9th Cir. 1987); Lembo v. Texaco, 239 Cal.Rptr. 596 (Cal.App. 1987); and Johnson v. TWA,
196 Cal.Rptr. 896 (Cal.App. 1983). In Sorosky, the 55-year-old plaintiff lost his job in a
Burroughs' work consolidation and relocation action. He sued in state court, claiming breach
of contract/wrongful discharge, breach of duty of good faith and fair dealing, and conspiracy
to interfere with a protected property interest. Burroughs removed the case to federal court
(the opinion does not disclose on what grounds) and the federal district court granted
summary judgment. Sorosky then challenged the district court's jurisdiction, claiming that the
removal was erroneous. Id. at 798.
Burroughs claimed federal jurisdiction existed based on both 1140 and 1144. The
Sorosky court said, the preemption issue seems clear to us and held that the claims were
preempted by the explicit language of 1140 and under the relate to language of 1144.
Id. at 799. The court concluded:
Sorosky therefore had a federal claim under section [1132(a)(3)] to enforce his right
under [1140] to noninterference with his employee benefits. We need not address
whether Sorosky could seek damages . . . . The allegations in Sorosky's complaint that
relate to the employee benefit plan state a claim under, and are therefore within the
scope of [1132(a)(3)] even if that section does not provide the entire remedy that
Sorosky seeks in his complaint. These claims are thus so completely preempted as to
state a claim arising under federal law [citing Metropolitan Life].
Id. at 800.
__________

6
The statutory definition of person encompasses almost any conceivable entity, organization or
corporation. 29 U.S.C. 1002(9) (1982).
In Lembo v. Texaco, 239 Cal.Rptr. 596 (Cal.App. 1983), Texaco made misrepresentations
inducing the plaintiffs to retire shortly before a lucrative voluntary retirement program would
be available. By retiring when they did, the former employees forfeited the right to take
advantage of the program's generous provisions. The employees alleged that as a result of
Texaco's conduct, they had lost valuable pension and life insurance benefits. The action was
removed to federal court. Plaintiffs sought to have it remanded back to the state court,
claiming there was no federal jurisdiction. The federal district court agreed and remanded the
action back to the state court.
The Lembo court stated that once Congress has expressed the intention to occupy the field,
state law is preempted even if it does not directly interfere with substantive federal
legislation. Id. at 599 (citing Alessi v. Raybestos-Manhattan Inc., 451 U.S. 504 (1981), and
Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208 (8th Cir. 1981)). It concluded that the
claim made was an exclusively federal claim for which there was no concurrent state
jurisdiction and reversed and remanded for further action consistent with its holding.
7

Johnson v. TWA, 196 Cal.Rptr. 896 (Cal.App. 1983), is in accord with Sorosky and
Lembo. The Johnson court concluded that the statutory language and legislative history of
ERISA resolves the issue of preemption by observing,
Here, section 1140 expressly proscribes the wrongful conduct alleged in appellant's first
cause of action; i.e., discharge for the sole purpose of depriving appellant of employee
benefits. The remedial provisions of ERISA, sections 1132 and 1140, coupled with
section 1144 establish that, to the extent that the employee benefits enumerated in the
first cause of action are within the regulation of the act, appellant's state law claims are
preempted.
Id. at 902.
In the recent case, Barnick v. Longs Drug Stores, Inc., 250 Cal.Rptr. 10 (Cal.App. 1988),
the California appellate court, following the lead of Sorosky, held that an employee's claim
that he was fired to deprive him of pension benefits and who sued for (1) wrongful
termination, (2) breach of employment contract, (3) breach of (benefits plan) contract, (4)
conversion, and (5) breach of covenant of good faith and fair dealing was partially
preempted.
__________

7
The Supreme Court of California granted review of this case and then ordered the lower court to republish
its original opinion with citations to the recent Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41 (1987), case.
This leads to a fairly strong inference that the law in California is that such claims are exclusively federal claims.
of covenant of good faith and fair dealing was partially preempted. The court dismissed
outright the third, fourth and fifth causes of action and the first and second to the extent they
referred to the plan. The court allowed the remaining independent, non-ERISA claims to
stand. Id. at 14.
Beyond the cases cited and discussed above, substantial additional authority can be cited
for the proposition that allegations of employment discharge to prevent someone from
obtaining benefits under an ERISA plan and similar conduct prohibited by 1140 is a federal
claim.
8
The conclusion that such federal claims preempt any state law claims naturally
follows.
One recent Texas Supreme Court decision on the subject appears contra but we decline to
follow it. In McClendon v. Ingersoll-Rand Co., 779 S.W.2d 69 (Tex. 1989), a divided court
created an exception to its employment at will doctrine for terminations that are motivated by
the employer's desire to avoid making payments to the employee's retirement/pension fund.
The court held that the state had an interest in the integrity of pension plans and recognized
the allegation as a state cause of action.
The Texas approach implicitly denies preemption. However, the preemption issue was
lightly passed over by the majority which sought to use the language of 1140 to validate its
conclusion of the importance of the Texas interest in the issue with little apparent thought for
the effect this language would have on the newly created state right. Id. at 71. The majority
focus seemed to be on the undesirability of the employer's conduct rather than the question of
the exclusivity of federal remedies. In a well-reasoned, three-judge dissent (Cook, J., author),
the minority objected to the court's holding and argued that the cause of action was clearly
preempted by ERISA. Id. at 71-73. We agree with the McClendon dissent on this issue. The
broad, explicit preemption language of ERISA and the clear language of 1140 present a
federal barrier which is difficult to circumvent.
Marcoz's attempts to explain away 1140 are unpersuasive. He asserts that termination of
an employee to prevent further pension accruals did not state a claim under 1140 because
the section only applies to interference with vesting.
__________

8
See Fitzgerald v. Codex Corp., 882 F.2d 586 (1st. Cir. 1989); Gilbert v. Burlington Industries, Inc., 765
F.2d 320, 328 (2d Cir. 1985); Kross v. Western Elec. Co., Inc., 701 F.2d 1238 (7th Cir. 1983); Dependahl v.
Falstaff Brewing Corp., 653 F.2d 1208 (8th Cir. 1981); Rose v. Intelogic Trace, Inc., 652 F. Supp. 1328
(W.D.Tex. 1987); Bumpers v. International Mill Services, 595 F.Supp. 166 (E.D.Penn. 1984); King v. James
River-Pepperell, Inc., 593 F.Supp. 1344 (D.Mass. 1984); Gordon v. Matthew Bender & Co., 562 F.Supp. 1286
(N.D.Ill. 1983); Witkowski v. St. Anne's Hosp. of Chicago, Inc., 447 N.E.2d 1016 (Ill.App. 1983).
section only applies to interference with vesting. Weir v. Litton Bionetics, Inc., 41 F.E.P.
Cases 1150 (D.C.Md. 1986). This argument focuses on an ostensible literal reading of the
1140 language. It emphasizes the segment of the statutory language that forbids interference
with any right to which the individual may become entitled. This claim is refuted by the
plain language of 1140. Moreover, the context of Weir is inapposite to Marcoz's situation.
Marcoz insists that because he was vested, 1140 does not apply to his claim. This
argument has been rejected by other courts for the reason that it leads to an absurdity. Such an
interpretation results in an ERISA application to individuals who are not vested in ERISA
plans and an exemption form ERISA to individuals who have vested interests in such plans.
See Clark v. Resitoflex Co., 854 F.2d 762 (5th Cir. 1988); Garry v. TRW, Inc., 603 F.Supp.
157 (N.D. Ohio 1985).
This argument also ignores the facts. Marcoz is not seeking damages for lost vested
benefits which by definition the employer cannot legally avoid providing. Marcoz wants to
claim the benefits that he would or might have attained had he not been discharged. ERISA
either preempts these claims or it does not. Vesting is irrelevant to the effect of an ERISA
plan and we are persuaded that it is a mistake to make a distinction on these grounds.
Marcoz contends that the ERISA relationship is too tenuous, and that 1140, when read in
conjunction with 1144, requires a different result. This proposition relies heavily on Teper
v. Park West Galleries, Inc., 427 N.W.2d 535 (Mich. 1988), a well-reasoned but inapposite
case. The Teper court did an exhaustive analysis of whether an award of damages based on
lost future pension benefits was preempted because it related to an ERISA plan. The court
noted that the plan was uninvolved. The plan or its administrators had not been joined; it was
not a party and would not have to do anything as a result of the award nor would it incur any
administrative burdens. The court concluded that the relationship (citing Shaw) was too
tenuous to trigger preemption. Id. at 541.
The issue before the Teper court is not the issue we must decide. There is a distinction
between calculating damages with reference to the benefits that would have been available
and the claim that the purpose of the discharge was to deprive the plaintiff of ERISA plan
benefits. Marcoz's complaint falls into the latter category. Teper is distinguishable for this
reason and cannot save Marcoz's allegations implicating acts and motives prohibited by
1140.
[Headnote 4]
Other courts have wrestled with the distinction between ERISA claims and monetary
awards in this same context. The conclusion they generally come to is that if you allege that
deprivation of benefits was the reason you were discharged, then the claim is preempted. But,
if the loss is a mere consequence of the discharge, then it is not preempted. Ethridge v.
Harbor House Restaurant, 861 F.2d 1389 (9th Cir. 1988). This conclusion is a rather fine
distinction but recognizes that if you can prove a non-preempted state law claim which
entitles you to recovery, then you may recover the lost benefits as part of your damages. But,
if you must rely on the bad faith contract breach or tortious conduct as it relates to depriving
you of ERISA plan benefits to make a claim, then your remedy is an exclusively federal
remedy provided by ERISA and must be sought in federal court.
Ethridge, which was decided subsequent to Sorosky, is illustrative of this approach. The
plaintiff in Ethridge stated that he had been tortiously discharged and that part of his damages
was loss of benefits. Harbor House attempted to remove the case to federal court on the basis
of this reference to lost benefits. Both the federal district court and the circuit court of appeals
rejected this claim. They noted that nowhere was there an allegation that the reasons given for
the discharge were pretextual or that the true purpose of the firing was to deprive the plaintiff
of benefits. Id. at 1405 (citing Rose v. Intelogic Trace, Inc., 652 F.Supp. 1328, 1330
(W.D.Tex. 1987)).
The Ethridge court approved of this distinction by saying,
We agree with those courts which have held that [n]o ERISA cause of action lies . . .
when the loss of pension benefits was a mere consequence of, but not a motivating
factor behind, the termination of benefits. (Citing Rose and Titsch v. Reliance Group,
Inc., 548 F.Supp. 983, 985 (S.D.N.Y. 1982), aff'd mem. 742 F.2d 1441 (2d Cir. 1983)).
Id.
Although this distinction is not entirely satisfactory, we concede that it appears to
accurately state the law as it is currently set out in the ERISA legislation and accompanying
interpretative case law.
9
Preemption of Non-ERISA Benefits
__________

9
Successful state allegations will have to be based on something other than loss of ERISA benefits. Once a
proper non-preempted allegation has been made and proven then damages could be calculated on the lost
benefits. Ordinarily, this distinction would raise the prospect of artful, tactical pleading which could render any
decision adopting this approach meaningless. However, we think the McClendon dissent has merit when it
asserts that true
Preemption of Non-ERISA Benefits
Marcoz attempts to avoid complete preemption of some of his claims by alleging
compensable losses of non-ERISA benefits. Under the narrow confines of K Mart, Marcoz
has not stated a viable cause of action for other employment benefits after the ERISA
preemption of the retirement benefits issues. Our ruling in K Mart has no application to
claims involving ERISA benefits. The reasoning of the court below is sound and we perceive
no error in its decision on this aspect of the case.
CONCLUSION
We are persuaded that the legislative history of ERISA, the expansive nature of 1144(a),
the explicit language of 1140, and the weight of authority all support the conclusion that
claims of purposeful denial of ERISA benefits are preempted. Arguments that the connection
between this cause of action and the ERISA plan is too tenuous and remote do not adequately
address the plain language of the statute and the clear congressional intent to prevent
purposeful discharge with the intent to deprive plan participants of ERISA benefits. The
remedy for such conduct by an employer is exclusively federal. Consequently, the district
court did not err in determining that Marcoz's claims which assert prohibited conduct and
motives in relation to a ERISA plan are preempted.
The judgment below is affirmed.
____________
106 Nev. 749, 749 (1990) Amen v. State
JIM AMEN, aka JIM ALLEN; VINCE BEDELL, aka VINCE EVANS; CLARK CREECH,
aka C.W. DENNIS; DAVID MAXWELL, aka J.D. McCORMICK; BETH MOREY,
aka RACHEL TRUMAN, aka JAN GILBERT, Appellants, v. THE STATE OF
NEVADA, Respondent.
No. 19990
November 28, 1990 801 P.2d 1354
Consolidated appeals from judgments of conviction upon jury verdicts of multiple counts
of obtaining money under false pretenses, attempting to obtain money under false pretenses,
and racketeering.
__________
ERISA claims which attempt to avoid ERISA may be removed and upon removal be subject to a preemption
defense in federal court. Clearly, to avoid ERISA all claims of liability will have to be independently sufficient
without allegations of federally prohibited conduct and motives relating to ERISA plans.
106 Nev. 749, 750 (1990) Amen v. State
racketeering. Eighth Judicial District Court, Clark County; Earle W. White, Jr., Judge.
Defendants were convicted of multiple counts of obtaining money under false pretenses,
attempting to obtain money under false pretenses, and racketeering for their participation in a
telemarketing scheme following a jury trial in the district court. Defendants appealed. The
Supreme Court held that: (1) testimony of unconnected victims who were defrauded in scam
constituted corroborating circumstances to support false pretense convictions; (2) offense of
conditioning prize upon a purchase is not a lesser included offense of obtaining money under
false pretenses; and (3) denial of defendants' motion to sever was proper.
Affirmed.
[Rehearing denied March 12, 1991]
Morgan D. Harris, Public Defender, Clark County, for Appellant Jim Amen.
Nathaniel Reed, Las Vegas, for Appellant Vince Bedell.
Leslie Mark Stovall, Las Vegas, for Appellant Clark Creech.
Lee Elizabeth McMahon, Las Vegas, for Appellant David Maxwell.
Lovell & Potter, Las Vegas, for Appellant Beth Morey.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, Carolyn
Ellsworth, Deputy District Attorney, and David B. Barker, Deputy District Attorney, Clark
1. False Pretenses.
When a tight-knit group is engaged in a fraudulent enterprise, corroboration of false pretense charges derived from unconnected
victims defrauded in a similar, consistent pattern may constitute corroborating circumstances on interrelated counts as required by
corroboration statute regarding false pretense charges. NRS 175.261.
2. False Pretenses.
Testimony of victims concerning participation of co-owners and salesmen in telemarketing scam provided sufficient corroboration
to support defendants' convictions for obtaining money under false pretenses since testimony of unrelated victims, who lived in
different states and had no business connections, was reliable. NRS 175.261.
Misdemeanor offense of conditioning prize upon purchase was not a lesser included offense of obtaining money under false
pretenses, a felony, since only conditioning prize offense applied to advertising activity and required notification of victim
of winning a prize, since defendants' conduct fell under more serious proscriptions of false pretenses, and
since amount of loss sustained by victims made defendants' conduct punishable as a felony.
106 Nev. 749, 751 (1990) Amen v. State
activity and required notification of victim of winning a prize, since defendants' conduct fell under more serious proscriptions of false
pretenses, and since amount of loss sustained by victims made defendants' conduct punishable as a felony. NRS 205.380, 598.080.
Two or more defendants may be charged in single indictment if defendants participated in same series of acts or transactions
constituting an offense or offenses even if indictment charges different offenses. NRS 173.135.
Testimony that three different victims received identical letters and several victims received identical certificates of eligibility for
cash prizes after they had been guaranteed a cash bonus in a prior phone call established that co-owners and salespersons of
telemarketing scam worked in unison in a single enterprise with an overall plan to obtain money under false pretenses and thus,
co-owners and salespersons were properly charged in single indictment. NRS 173.135.
6. Criminal Law.
Trial court may sever a joint trial if a defendant is prejudiced by joinder. NRS 174.165.
7. Criminal Law.
Co-owners and salespersons of a telemarketing scam were not prejudiced by joint trial, even though defendants may have
presented competing defenses, where inconsistent defenses were not antagonistic to the point that they were mutually exclusive,
evidence against one defendant could have been admissible in a related charge against other defendants, jury was not exposed to prior
convictions or other unsavory activities which would not have been heard in a separate trial and strong nexus existed between
defendants' respective transactions. NRS 174.165.
8. Criminal Law.
Inconsistent defenses must be antagonistic to point they are mutually exclusive to demonstrate prejudice to defendants sufficient to
warrant severance of joint trial. NRS 174.165.
9. Criminal Law.
Decision to sever joint trial is left to discretion of trial court.
10. Criminal Law.
Trial court's decision to join cases will not be reversed absent an abuse of discretion.
11. Criminal Law.
Trial court did not abuse its discretion by denying motion to sever made by co-owners and salespersons charged with obtaining
money under false pretenses for their participation in a telemarketing scam since co-owners and salespersons were appropriately
charged in a single indictment and no prejudice was shown to have resulted from joinder.
OPINION
Per Curiam:
The primary issues in this appeal are whether statutory evidentiary requirements for
corroboration of false pretense charges are sufficient to support individual convictions,
whether a misdemeanor crime is a lesser included offense in the more serious felony false
pretense offense, and whether severance should have been ordered in the trial of the
defendants.
106 Nev. 749, 752 (1990) Amen v. State
sufficient to support individual convictions, whether a misdemeanor crime is a lesser
included offense in the more serious felony false pretense offense, and whether severance
should have been ordered in the trial of the defendants. Having concluded that none of the
issues has merit, we affirm.
The Facts
Appellants are either co-owners or salespersons involved in an extended telemarketing
scam which operated from Henderson, Nevada, under the name of J & W Marketing (J & W).
Conveniently, the victims of the scam were small out-of-state businessmen. In order to secure
novelty advertising orders (mugs, pens, baseball caps or key tags), J & W called winners in
a self-generated advertising lottery. The victims were offered guaranteed cash promotions.
Relying on these so-called cash bonuses, customers placed orders ranging between $239 and
$279.
The victims who testified never saw the promised cashier's checks, even after many phone
calls and letters of complaint. Instead, they were eventually told that names would be placed
in a drawing. Some nineteen victims testified in the month-long trial. One defendant was
acquitted.
1

In operating the scam, both salespersons and owners used special phone names. Victims
received letters from J & W's Nancy Walker, a nonexistent person, confirming cash awards.
Salespersons pitching customers from standardized scripts were monitored by tapes which
were periodically reviewed by J & W. Salespersons and owners would alternate in calling
customers, some of whom were duped more than once. Several out-of-state victims made
contemporaneous tape recordings which were admitted into evidence. These tapes reveal that
victims were told: You'll never ever regret this, or When I'll get back to you I'll have some
good news.
Discussion
[Headnote 1]
The primary issue before us concerns the requisite evidentiary requirements under NRS
175.261,2 the corroboration statute regarding false pretense charges.
__________

1
It was noted during oral argument that the State did not have corroborating evidence against this defendant
in the form of a tape recording. A tape recording offered into evidence combined with evidence considered as a
whole may satisfy a requirement of corroboration. See State v. Holmes, 476 P.2d 878, 881 (Ariz.Ct.App. 1970),
cert. denied, 403 U.S. 936 (1971). NRS 179.500, which requires court authorization for any intercepted wire or
oral communication, is not implicated since the tapes in question were recorded out of state.
106 Nev. 749, 753 (1990) Amen v. State
requirements under NRS 175.261,
2
the corroboration statute regarding false pretense
charges. We are persuaded that when a tight-knit group is engaged in a fraudulent enterprise,
corroboration derived from unconnected victims defrauded in a similar, consistent pattern
may constitute corroborating circumstances on interrelated counts as contemplated by the
statute.
[Headnote 2]
Under the facts of this case, it is highly unlikely that victims in different states with no
mutual business dealings could have prefabricated stories for trial. On the other hand, the
record reflects a concerted effort by appellants, through deceptive and repetitive tactics, to
induce customers to place orders. Concerns for reliability underlying the policy behind the
corroboration statute applicable to false pretense cases are satisfied by the testimony of
unrelated victims caught in a similar pattern of deceit. Independent evidence need only
tend[] to connect the defendant to the commission of the illegal offense. LaPena v. State,
96 Nev. 43, 47, 604 P.2d 811, 813, (1980); People v. Fujita, 43 Cal.App.3d 454, 470, 117
Cal.Rptr. 757, 766 (1974), cert. denied, 421 U.S. 964 (1975) (jury needs to be reasonably
satisfied that the complaining witness is telling the truth).
Cases cited by appellants are inapposite. In Sheriff v. Gordon, 96 Nev. 205, 606 P.2d 533
(1980), both witnesses required corroboration independent of each other because of statutes
applicable to each.
3
Moreover, unlike the instant case, the witnesses were husband and wife
and involved together in the meeting upon which the criminal charges were based. Id. at
206-07, 606 P.2d at 533. Understandably, the Gordon court would not allow the witnesses to
corroborate each other's testimony. Appellants' reliance on State v. Sorensen, 617 P.2d 333
(Utah 1980), is also misplaced as the two victims worked closely together and not
independently as in the instant case.
__________

2
Upon a trial for having, with an intent to cheat or defraud another designedly, by any false pretense,
obtained the signature of any person, to a written instrument, or having obtained from any person any
money, personal property, or valuable thing, the defendant shall not be convicted if the false pretense
shall have been expressed in language, unaccompanied by a false token or writing, unless . . . the pretense
be proved by the testimony of two witnesses, or that of one witness and corroborating circumstances . . . .

3
One witness' testimony required corroboration under the evidentiary requirements of NRS 175.291 for
accomplice testimony; the other required corroboration under NRS 175.301 concerning testimony by a person
claiming to be enticed for prostitution. See, Gordon, 96 Nev. at 206, 606 P.2d at 534.
106 Nev. 749, 754 (1990) Amen v. State
[Headnote 3]
Next, we are called upon to decide whether NRS 598.080,
4
conditioning a prize upon a
purchase, a misdemeanor, is a lesser included offense of NRS 205.380,
5
obtaining money
under false pretenses, a felony. Appellants testified that customers were not notified that they
had in fact won a prize, but were simply told that they were eligible for a cash bonus through
a drawing. Taking appellants' testimony at face value, it is apparent that they placed
themselves outside the purview of the misdemeanor statute by claiming not to have informed
the victims that they had won a prize. Moreover, it is clear that the misdemeanor crime is not
a lesser included offense of the felony crime because the former applies specifically to
advertising activity and the latter does not. Additionally, the former requires notification of
winning a prize and the latter does not. See McKinnon v. State, 96 Nev. 821, 618 P.2d 1222
(1980).
False pretense is a representation of some fact or circumstance which is not true and is
calculated to mislead . . . [and] may consist of any act, word, symbol or token calculated and
intended to deceive. Buckner v. State, 95 Nev. 117, 119, 590 P.2d 628, 630 (1979); Bright v.
Sheriff, 90 Nev. 168, 170, 521 P.2d 371, 373 (1974). Unlike the mala prohibita aspect of
NRS 598.080, obtaining money by false pretense is a crime of specific intent to separate a
victim from his property by means of a misrepresentation. There is ample evidence in the
record that appellants' conduct falls under the more serious proscriptions of NRS 205.380.
__________

4
NRS 598.080 states:
1. It is unlawful to notify any person by any means, as a part of an advertising plan or scheme, that he
has won a prize and that as a condition of receiving such prize he must purchase or rent any item.
2. A violation of the provisions of subsection 1 shall be a misdemeanor.

5
The pre-1989 version of NRS 205.380 provides in pertinent part:
1. Every person who knowingly and designedly by any false pretense obtains from any other person
any chose in action, money, goods, wares, chattels, effects or other valuable thing, including rent or the
labor of another person not his employee, with intent to cheat or defraud the other person, is a cheat, and,
unless otherwise prescribed by law, shall be punished:
(a) If the value of the thing or labor so fraudulently obtained was $100 or more, by imprisonment in
the state prison for not less than 1 year nor more than 10 years, or by a fine of not more than $10,000, or
by both fine and imprisonment, and be sentenced to restore the property so fraudulently obtained, if it can
be done, or tender payment for rent or labor.
106 Nev. 749, 755 (1990) Amen v. State
Additionally, in the former version of NRS 205.380 under which appellants were charged,
a $100 loss determined the financial threshold between a misdemeanor and a felony.
6
The
national scope and dollar losses sustained by J & W victims fall comfortably within the
conduct that the legislature intended to deter by the imposition of a felony.
[Headnotes 4, 5]
Finally, we conclude that the trial court's denial of appellants' motion to sever was proper.
See McDowell v. State, 103 Nev. 527, 530, 746 P.2d 149, 150-51 (1987). NRS 173.135
permits two or more defendants to be charged in a single indictment if they have participated
in the same series of acts or transactions constituting an offense or offenses, even if the
indictment charges different offenses. Although business responsibility varied among
appellants, there is abundant evidence in the record proving that appellants worked in unison
in a single enterprise with an overall plan. The record establishes that victim contacts
displayed a striking congruity. For example, at least three different victims testified that they
had received identical Nancy Walker letters. Several victims also testified that they had
received identical certificates of eligibility for a cash prize after they had been guaranteed
a cash bonus in a prior phone call.
[Headnotes 6, 7]
NRS 174.165 provides that the district court may sever a joint trial if it appears that a
defendant . . . is prejudiced by the joinder. We are persuaded that no substantial showing of
prejudice to appellants exists. Evidence of a charge against one appellant could have been
admissible in a related charge against another appellant to show intent or a common scheme
of operation. McDowell v. State, 103 Nev. 527, 530, 746 P.2d 149, 151 (1987); United States
v. Woods, 484 F.2d 127, 135 (4th Cir. 1973), cert. denied, 415 U.S. 979 (1974). We are also
convinced that evidence against one defendant was not disproportionate in regard to another,
thereby creating the potential for an unfair overlapping effect. United States v. Clayton, 450
F.2d 16, 19 (1st Cir. 1971), cert. denied, 405 U.S. 975 (1972). Nor was there an issue
suggesting that the jury would not have heard admissions of prior convictions or other
unsavory activities in a separate trial. Cross v. United States, 335 F.2d 987, 990 (D.C.Cir.
1964). In addition, we conclude that a strong nexus exists between appellants' respective
transactions.
__________

6
The Nevada Legislature's 1989 amendment to NRS 205.380(1)(a) changed the value of the thing or labor
so fraudulently obtained to $250 or more.
106 Nev. 749, 756 (1990) Amen v. State
[Headnote 8]
Allegations of competing defenses raised by appellants because some were employees
and others employers do not persuade us that appellants were prejudiced by the court's refusal
to sever. Inconsistent defenses must be antagonistic to the point that they are mutually
exclusive. McDowell v. State, 103 Nev. 527, 530, 746 P.2d 149, 151 (1987). This the
appellants failed to prove. Different defenses are simply a part of the adversarial process
when defendants are tried together.
We note further that appellants did not demonstrate that the jury was in fact confused.
McDowell v. State, 103 Nev. 527, 530, 746 P.2d 149, 151 (1987). Exhibits were clearly
marked and identified. The trial court's instructions on the corroboration necessary for
individualized determinations of guilt properly stated the law of corroboration in false
pretense cases.
[Headnotes 9-11]
The decision to sever is left to the discretion of the trial court. See Schaffer v. United
States, 362 U.S. 511, 516, reh'g denied, 363 U.S. 858 (1960). The decision to join cases will
not be reversed absent an abuse of discretion. Lovell v. State, 92 Nev. 128, 132, 546 P.2d
1301, 1303 (1976). Appellants have failed to carry the heavy burden of showing that the
district court abused its discretion.
We have considered other claimed errors and conclude that they are without merit.
Accordingly, the convictions are affirmed.
____________
106 Nev. 756, 756 (1990) Scalf v. State, Dep't of Human Resources
VERNA SCALF, Appellant, v. NEVADA STATE DEPARTMENT OF HUMAN
RESOURCES, Respondent.
No. 20019
November 28, 1990 801 P.2d 1359
Appeal from order terminating parental rights. Second Judicial District Court, Washoe
County; Charles M. McGee, Judge.
Mother appealed from an order of the district court which terminated her parental rights to
four of her children. The Supreme Court held appeal in abeyance for six months and directed
parties to work toward reunifying mother and her children and, after six-month period
elapsed, held that clear and convincing evidence supported termination of parental rights on
grounds of failure of parental adjustment.
Affirmed.
James Fallman, Fair Oaks, California, for Appellant.
Brian McKay, Attorney General, Cynthia A. Pyzel, Deputy Attorney General and Nancy
Angres, Deputy Attorney General, Carson City, for Respondent.
1. Infants.
Termination of parental rights is two-part inquiry; first, there must be jurisdictional grounds for termination, which relate to
parental conduct or incapacity and are found in some specific fault or condition directly related to parents and, if jurisdictional grounds
are found, inquiry turns to dispositional grounds, which relate to best interest of child.
2. Infants.
Because of tremendous value placed on parental rights, grounds for termination of parental rights must be established by clear and
convincing evidence.
3. Infants.
Clear and convincing evidence supported termination of mother's parental rights to four of her children based on failure of parental
adjustment, even after reviewing court held appeal in abeyance for six months and directed parties to work toward reunifying mother
and her children. NRS 128.0126, 128.108, 128.019.
OPINION
Per Curiam:
On January 9, 1989, the district court entered an order terminating appellant Verna Scalf's
parental rights as to four of her children. The district court found that Scalf had been shown
by clear and convincing evidence to have (1) subjected her children to chronic, intermittent
neglect since 1984; (2) failed to adjust to become a proper parent within a period of over
eighteen months, despite the efforts of the agencies involved; and (3) made only token efforts
to avoid being an unfit parent to her children. Scalf appealed the district court's order and oral
argument was heard in this court on February 12, 1990. Following oral argument, we entered
an order holding this appeal in abeyance for six months. We directed the parties to work
toward the goal of reunifying appellant and her children, and to file reports concerning their
efforts at reunification at the conclusion of the six-month period. The six months have now
elapsed and the parties have filed their reports.
[Headnotes 1, 2]
Termination of parental rights is a two-part inquiry. First, there must be jurisdictional
grounds for termination. Jurisdictional grounds relate to parental conduct or incapacity and
are "found in some specific fault or condition directly related to the parents."
found in some specific fault or condition directly related to the parents. Champagne v.
Welfare Division, 100 Nev. 640, 646-47, 691 P.2d 849, 854 (1984). If jurisdictional grounds
for termination are not found, the inquiry ends. Id. at 647, 691 P.2d at 854. If jurisdictional
grounds are found, the inquiry turns to whether there are dispositional grounds for
termination. Dispositional grounds relate to the best interest of the child, and focus[] on
the placement which will be most beneficial to the child. Id. Because of the tremendous
value placed on parental rights, the grounds for termination of parental rights must be
established by clear and convincing evidence. Id. at 648, 691 P.2d at 854.
[Headnote 3]
Scalf contends that the evidence on which the termination of her parental rights was based
was not clear and convincing. Based on our review of the briefs, the oral argument of the
parties, and the reports of the parties submitted in response to our order, we conclude that
there was clear and convincing evidence to support the district court's finding of jurisdictional
grounds for termination based on failure of parental adjustment. NRS 128.0126, 128.109, see
also NRS 128.108. Having determined that jurisdictional grounds were correctly found on
this basis, it is unnecessary for us to discuss other findings supporting jurisdictional grounds.
Further, we also conclude that there was clear and convincing evidence to support
dispositional grounds for the termination of Scalf's parental rights. We are cognizant of the
gravity of our decision and, as demonstrated by our order holding this appeal in abeyance for
six months, we do not make it lightly. However, as we stated in Champagne, the time finally
comes when society must give up on a parent. Champagne, 100 Nev. at 651, 691 P.2d at 857.
We reluctantly conclude that this time has come in regard to Scalf. Accordingly, we affirm
the order of the district court.
____________
106 Nev. 758, 758 (1990) First Federal v. Racquet Club Condominiums
FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF NEVADA, Appellant, and
Cross-Respondent, v. RACQUET CLUB CONDOMINIUMS, Respondent and
Cross-Appellant.
No. 20363
November 28, 1990 801 P.2d 1360
Appeal and cross-appeal from an order of the district court granting summary judgment in
an action to reform a deed.
Second Judicial District Court, Washoe County; Robert L. Schouweiler, Judge.
Mortgagee brought action to reform deeds of trust on condominium units. The district
court granted summary judgment in favor of condominium association, and mortgagee
appealed. The Supreme Court held that mortgagee was entitled to reformation of deeds of
trust encumbering condominium units, where mortgagee and mortgagors, by mutual mistake,
described wrong condominium units in mortgage instruments, and there was no question that
units were mistakenly described.
Stephens, Knight & Edwards, Reno, for Appellant and Cross-Respondent.
Margo Piscevich, and Kimberley Palmer Fenner, Reno; Hale, Lane, Peek, Dennison &
Howard, Reno, for Respondent and Cross-Respondent.
1. Reformation of Instruments.
Courts will reform contracts and deeds in accordance with true intention of parties when their intentions have been frustrated by
mutual mistake.
Reformation is available to party seeking to alter a written instrument, which, because of a mutual mistake of fact, fails to conform
to parties' previous understanding or agreement.
Reformation is an equitable remedy and should be available when fairness demands such relief.
Mortgagee was entitled to reformation of deeds of trust encumbering condominium units, where mortgagee and mortgagors, by
mutual mistake, described wrong condominium units in mortgage instruments, and there was no question that units were mistakenly
described.
Privity does not restrict reformation for a mutual mistake only to those who were parties to the mistake.
Party seeking reformation must introduce clear, concise, convincing evidence that omission, void description, or similar deficiency
occurred either by mutual mistake of the parties to the instrument sought to be reformed or by mistake of one of the parties and any
inequitable conduct of the other.
OPINION
Per Curiam:
This case arises out of a dispute between appellant First Federal Savings and Loan (First
Federal) and respondent Racquet Club Condominiums {RCC) as to the legal ownership of
two condominiums, units 49 and 50.
Club Condominiums (RCC) as to the legal ownership of two condominiums, units 49 and 50.
Prior to September 14, 1982, Western Camino Leasing (Western Camino), a partnership
comprised of Phillip and Karen Benner and Stephen and Judy Sampaulesi, owned units 49
and 50. On September 14, 1982, Western Camino conveyed unit 49 to the Benners and unit
50 to the Sampaulesis. Deeds of trust identifying First Federal as the beneficiary were
executed on both conveyances. These deeds, however, mistakenly described the encumbered
units. The deed of trust recorded pursuant to the conveyance on unit 49 encumbered unit 50.
The deed of trust recorded pursuant to the conveyance of unit 50 encumbered unit 49.
On November 8, 1985, First Federal Savings commenced foreclosure proceedings on units
49 and 50, when both the Benners and the Sampaulesis defaulted on their obligations to First
Federal under the terms of the loan. RCC, however, had already foreclosed on units 49 and 50
due to the owners' failure to pay their association fees. Because First Federal had a deed of
trust describing incorrect units, RCC claimed that First Federal had no interest in the
property. First Federal thus filed an action against RCC alleging that First Federal was the
legal owner of units 49 and 50, and that its foreclosure extinguished all of RCC's rights, title,
and interest in units 49 and 50.
1
After several motions and the trial judge reversing his orders
on at least two occasions, RCC was granted summary judgment. The district court ruled that
First Federal, as a matter of law, acquired no interest in units 49 and 50. The district court
also stated that since First Federal had not interest in units 49 and 50, it lacked any standing
to reform the deeds.
On appeal, First Federal contends the following: (1) that the district court erred when it
determined that it could not reform the deeds because the original parties to the transaction
were not before the court; (2) that the necessary and proper parties to an action of reformation
do no necessarily include the original parties to the transaction; (3) that those persons having
a legal or equitable interest in the property and who would be affected by a decree reforming
the deed are necessary parties to a claim for a deed reformation; and (4) that the only
necessary and proper parties to the issue of reformation are First Federal and RCC because
they are the only parties claiming an interest in units 49 and 50.
__________

1
First Federal first asked the district court for reformation of the deeds when it filed its opposition to RCC's
motion for summary judgment. First Federal requested formation of the original deeds to conform to the intent of
the parties.
and 50. We agree with First Federal's position and reverse the judgment of the trial court.
[Headnotes 1-3]
Courts in this state will reform contracts and deeds in accordance with the true intention of
the parties when their intentions have been frustrated by a mutual mistake. Lattin v. Gray, 75
Nev. 128, 335 P.2d 778 (1959); Roberts v. Hummel, 69 Nev. 154, 243 P.2d 248 (1952);
Holman v. Vieira, et al., 53 Nev. 337, 300 P. 946 (1931); Ruhling v. Hackett, 1 Nev. 360
(1865). Reformation is available to a party seeking to alter a written instrument which,
because of a mutual mistake of fact, fails to conform to the parties' previous understanding or
agreement. Helms Constr. v. State ex rel. Dep't Hwys., 97 Nev. 500, 634 P.2d 1224 (1981).
Reformation is an equitable remedy and should be available when fairness demands such
relief. See Anderson v. Weise, 95 Nev. 540, 598 P.2d 1144 (1979).
[Headnote 4]
A case similar to the instant case is Johnston v. Sorrels, 729 S.W.2d 21 (Ark.App. 1987).
In Johnston the Sorrels sought a loan from Central Arkansas Production Credit Association
(also a respondent). When the Sorrels defaulted, Central Arkansas Production Credit
Association foreclosed. The Johnstons bought the property at the foreclosure sale.
Approximately two years after the foreclosure, the Johnstons discovered that the legal
description contained in the mortgages, the foreclosure documents, and the commissioner's
deed did not include a 29.41 acre tract of land which the Johnstons thought had been part of
the land sold at the foreclosure sale. The Johnstons sought reformation of all relevant
documents, claiming that it had been the clear intent of the Sorrels to include the 29.41 acre
tract as part of the land being mortgaged and that the tract had been omitted by mutual
mistake from the legal description in the mortgages and all subsequent documents. The lower
court dismissed the Johnstons' complaint because they were not parties to the mortgage, nor
had they shown that the mortgagors (the Sorrels) engaged in any conduct causing a bid on the
property which would not otherwise have been made. Id. at 23. In reversing the trial court, the
Arkansas Court of Appeals noted:
It is well established that when land is held pursuant to a deed of trust or mortgage so as
to secure a debt, and by mutual mistake the parties have omitted from the legal
description a tract of land intended to be conveyed, a party to the mutual mistake who
subsequently purchases under a decree of foreclosure is entitled to reformation of the
deed of trust or mortgage, the decree, and the commissioner's deed so as to include
the omitted tract.
trust or mortgage, the decree, and the commissioner's deed so as to include the omitted
tract.
Id. at 23 (citations omitted).
Here, although condominiums and not land are involved, and the mistake was in the unit
number rather than omission of a tract of land, the Johnston principles should still apply. First
Federal, like the Central Arkansas Production Credit Association in Johnston, took from the
Benners and the Sampaulesis pursuant to its deeds of trust on both units. First Federal, and
the mortgagors, by mutual mistake, included the wrong condominium units in the mortgage
instruments, and there is no question that the units were mistakenly described.
[Headnotes 5, 6]
The court in Johnston also noted that, [r]eformation is predicated upon the equitable
maxim that equity treats that as done which ought to be done. Id. at 23 (citation omitted).
Here, not allowing First Federal to reform its deeds would result in a windfall profit to RCC,
a nonprofit organization. RCC's interest arose out of the Benners' and Sampaulesis' failure to
pay their association fees. RCC's lien was in the amount of $2,293.27 on unit 49 and
$2,125.27 on unit 50. For RCC to now receive the unencumbered interests in both
condominiums would result in an award to RCC of over $200,000.00 (the estimated worth of
the units) and a loss to First Federal of over $160,000.00 (the amount of the unpaid loans).
RCC would reap an extraordinary benefit from a technical mistake which never caused harm
to RCC. In light of our resolution of this issue, we need not consider the other contentions
raised by appellant; nor need we consider RCC's cross-appeal for attorney's fees.
2

Accordingly, we reverse and remand this matter to the district court with instructions to
reform First Federal's deeds of trust.
__________

2
The district court also found, as one of its reasons for not allowing reformation, that there was no privity.
However, the Johnston court notes that privity does not restrict reformation . . . only to those who were parties
to the mistake. Id. at 23. Johnston only required that the party seeking reformation is able to introduce such
clear, concise, and convincing evidence as to whether the omission, void description, or similar deficiency
occurred either by mutual mistake of the parties to the instrument sought to be reformed or by mistake of one of
the parties and the inequitable conduct of the other. Id. at 24.
____________
106 Nev. 763, 763 (1990) Phillips v. State
ANTHONY PHILLIPS and MICHAEL PERRY, Appellants, v. THE STATE OF NEVADA,
Respondent.
No. 20527
November 28, 1990 801 P.2d 1363
Appeal from a conviction, pursuant to a jury verdict, of one count of possession of a
controlled substance and one count of use of a controlled substance. Third Judicial District
Court, Churchill County; Archie E. Blake, Judge.
Defendants were convicted before the district court of possession of a controlled substance
and use of a controlled substance, and they appealed. The Supreme Court held that officer's
belief that sound of soft drink can being crushed was sound of automatic weapon did not
satisfy State's burden of showing that exigencies of situation required warrantless entry into
apartment; State offered no evidence to suggest that officer was faced with an emergency
situation of any kind; police were not in hot pursuit of either occupant of apartment, and
neither was known to be dangerous or was suspected of a crime.
Reversed.
Rick Lawton, Public Defender, Churchill County, for Appellant Phillips.
John R. S. McCormick, Fallon, for Appellant Perry.
Kevin Pasquale, District Attorney, Robert V. Bogan, Deputy District Attorney, Churchill
Searches and Seizures.
Officer's belief that sound of soft drink can being crushed was sound of automatic weapon being prepared for use did not satisfy
State's burden of showing that exigencies of situation required warrantless entry into apartment; State offered no evidence to suggest
that officer was faced with an emergency situation of any kind; police were not in hot pursuit of either occupant of apartment, and
neither was known to be dangerous or was suspected of a crime.
OPINION
Per Curiam:
On November 6, 1987, officers from the Churchill County Sheriff's Department initiated a
surveillance at the Chapparal Bar to determine if juveniles were attending or participating in a
wet-tee-shirt contest. Corporal Mike Kolsch (Kolsch), one of the investigating officers,
testified that in the bar there were thirty individuals watching females clothed in
bikini-type pants and see-through, white tee-shirts on a stage in the bar.
investigating officers, testified that in the bar there were thirty individuals watching females
clothed in bikini-type pants and see-through, white tee-shirts on a stage in the bar. Kolsch
observed appellants leaving the bar. Undersheriff Nelson told Kolsch that appellants were
entering apartment No. 3 in a hotel behind the bar. Kolsch was interested in appellants as
potential witnesses to or participants in the wet-tee-shirt contest. Kolsch thus went to the
apartment in order to talk about the show in the bar.
Kolsch, together with Undersheriff Nelson, approached the apartment. At trial, Kolsch
testified that the following sequence of events occurred: Kolsch knocked on the door and
Michael Perry opened it. Kolsch showed Perry his identification and informed Perry that he
was an investigator with the Churchill County Sheriff's Department. While speaking with
Perry, Kolsch observed Anthony Phillips partially behind the bathroom door, his hands out of
sight. Kolsch then heard a metallic clicking sound coming from the area where Phillips was
standing. Kolsch thought the noise to be the sound of the slide action of an automatic pistol
being prepared for use. Kolsch further stated that he ordered Phillips to remove his hands and
drop what was in his hand but Phillips did not respond. Kolsch further added that when
Phillips did not respond Kolsch drew his service revolver and ordered Phillips to drop what
was in his hands. When Phillips again did not respond, Kolsch covered the distance between
him and Phillips and knocked the object from his hands. A crushed Seven-Up can fell out of
Phillips' hands.
As Kolsch escorted Phillips out of the room to speak with Perry, Kolsch observed, on the
bed, a clear piece of glass with a white crystalline substance on it. Kolsch also noticed a white
powdery substance in appellants' nasal cavities and noticed that their speech was slurred. This
led Kolsch to place both appellants under arrest for possession of a controlled substance.
After placing appellants under arrest, an officer was assigned to stand by the door of the
apartment. Meanwhile, Kolsch obtained a search warrant and a seizure order, reentered the
apartment, and seized the piece of glass and the white powdery substance that he had
previously discovered on the bed. Appellants were given a urinalysis, which showed cocaine
residue in their system.
Appellants were charged with possession and unlawful use of a controlled substance.
Before trial, appellants filed a motion to suppress the evidence seized from the apartment on
the ground that it was the product of an unlawful entry by the Churchill County Sheriff's
Department. The court denied appellants' motion concluding that, This court does find that
the officer acted reasonably under the circumstances, and the court does find that exigent
circumstances did exist."
that exigent circumstances did exist. Following a jury trial, Perry was sentenced to three
years on the first count and two years on the second count. Phillips was sentenced to two
years on each count. This appeal followed.
On appeal, appellants contend that the initial police entry into their apartment was
unlawful because the police did not have a warrant, appellants were not suspected of
committing a crime, and there were no exigent circumstances justifying the police intrusion.
Appellants also contend that because the entry was unlawful, the plain-view doctrine does not
support the admission of the discovered evidence at trial. We agree.
When the United States Supreme Court established the exclusionary rule for federal courts
in Weeks v. United States, 232 U.S. 383 (1914), it stated:
The effect of the Fourth Amendment is to put the courts of the United States and
Federal officials, in the exercise of their power and authority, under limitations and
restraints as to the exercise of such power and authority, and to forever secure the
people, their persons, houses, papers and effects against all unreasonable searches and
seizures under the guise of law. This protection reaches all alike, whether accused of
crime or not.
Id. at 391-392. Sixty-six years later, this court, in Nelson v. State, 96 Nev. 363, 365, 609 P.2d
717, 718 (1980), adhered to the spirit and reasoning of Weeks when it stated: We emphasize
the cardinal principal of search and seizure law: searches conducted outside the judicial
process, without prior approval by magistrate or judge, are per se unreasonable.
In Nelson, we also explained the exigent circumstances exception: In the absence of a
showing, by the State, of a true necessitythat is, an imminent and substantial threat to life,
health, or propertythe constitutionally guaranteed right to privacy must prevail. Id. at 366,
609 P.2d at 719 (quoting People v. Smith, 496 P.2d 1261, 1263 (Cal. 1972)). We also
recognized that the state bears the burden of showing that the exigencies of the situation
required intrusion without a warrant. State v. Hardin, 90 Nev. 10, 13, 518 P.2d 151, 153
(1974).
Here, the state contends that Kolsch's belief that the crushing of a Seven-Up can was the
sound of an automatic weapon was enough to constitute exigent circumstances. Accepting the
state's assertion would be to do exactly what Nelson warns against. When considering our
citizens' constitutional right to be secure in their homes, to be free from unreasonable
searches and seizures, then this Court, on review, must be careful not to permit the exception
to swallow the rule."
the exception to swallow the rule. Nelson, 96 Nev. at 366, 609 P.2d at 719 (citation omitted)
(emphasis added). At trial, not only did the state fail to meet its burden of showing exigent
circumstances, it offered no evidence to suggest that Kolsch was faced with an emergency
situation of any kind. The police were not in hot pursuit of either Phillips or Perry.
Furthermore, neither Phillips nor Perry was known to be dangerous or was suspected of a
crime. Kolsch himself testified that he knocked at the door of the apartment solely to talk to
them about the wet-tee-shirt contest. Moreover, if Kolsch really feared for his safety it is
unlikely that he would have entered an apartment in this manner if he believed that an
automatic weapon was being readied to fire. Thus, Kolsch's claimed fear that Phillips or Perry
posed a danger for Kolsch's safety was unreasonable. There are no exigent circumstances
here, reasonably perceived or otherwise.
We therefore conclude that the district court erred when it denied appellants' motion to
suppress the evidence seized from the apartment on the ground that it was discovered as a
result of unlawful entry by officers from the Churchill County Sheriff's Department.
Accordingly, we reverse appellants' convictions.
We have fully examined appellants' remaining issue concerning the proposed jury
instruction and conclude that it is without merit.
____________
106 Nev. 766, 766 (1990) Collins Discount Liquors v. State of Nevada
COLLINS DISCOUNT LIQUORS AND VENDING, Appellant, v. THE STATE OF
NEVADA, NEVADA DEPARTMENT OF TAXATION, AND NEVADA TAX
COMMISSION, Respondents.
No. 20713
November 28, 1990 802 P.2d 4
Appeal from denial of a petition for judicial review of an administrative ruling upholding a
deficiency assessment for sales tax liability. Second Judicial District Court, Washoe County;
Deborah A. Agosti, Judge.
Convenience store petitioned for review of an administrative ruling that upheld a
deficiency assessment for sales tax liability. The district court upheld the assessment. Store
appealed. The Supreme Court held that canned carbonated soft drinks sold from vending
machines were prepared food intended for immediate consumption and were subject to
sales tax.
Affirmed.
Hamilton and Lynch, Reno, for Appellant.
Brian McKay, Attorney General, John S. Bartlett, Deputy Attorney General, Carson City,
for Respondents.
Taxation.
Canned carbonated soft drinks sold from vending machines were prepared food intended for immediate consumption subject to
sales tax; canned drinks were not exempt from taxation as general food sales. NRS 372.284, 372.284, subds. 1, 2(d).
OPINION
Per Curiam:
Appellant Collins Discount Liquors and Vending (Collins) is a small convenience store
with an adjunct vending machine operation. In May 1988, Collins received a Notice of Audit
Deficiency from respondent Nevada Tax Commission (NTC) for the period between January
1984 and December 1987, in the amount of $48,049.66, plus interest of $17,227.05 as of the
date of the notice. This amount represented the applicable sales tax for those years from
Collins' vending machine operations.
Following receipt of this notice, appellant filed a petition for redetermination of the
assessment. A hearing was held, after which NTC rendered a decision and order upholding
the judgment. Collins then filed a petition for judicial review of the assessment in the Second
Judicial District Court in Washoe County. After a hearing in which both sides' arguments
were presented, Judge Agosti rendered a written decision upholding the assessment.
Collins now appeals from this ruling. Appellant contends that the trial court erred in
finding that its vending machine sales of canned carbonated soft drinks were taxable as sales
of prepared food intended for immediate consumption. Rather, Collins argues, the sales
from its vending machines were general food sales, and therefore exempt from taxation under
NRS 372.284(1). For the reason discussed below, we disagree, and therefore uphold the
agency regulation that makes these vending machine sales subject to taxation.
In 1979, the Nevada Legislature proposed the adoption of a statute, ultimately enacted by
the people through referendum, which was codified as NRS 372.284.
1
This statute exempted
food for human consumption from the provisions of the Nevada sales tax law.
__________

1
NRS 372.284 reads as follows:
1. There are exempted from the taxes imposed by this chapter the
Nevada sales tax law. Not all food sales were immunized from sales tax, however; NRS
372.284(2)(d) also specified that prepared food intended for immediate consumption
remained subject to tax even after the passage of the referendum.
The phase prepared food intended for immediate consumption is nowhere defined in the
statute itself. Assembly Bill No. 616, which contained the referendum submitted to the people
in 1979, however, stated that the legislature expected that [t]he exemption is not intended to
include sales by or from . . . vending machines. 1979 Nev. Stats. ch. 286, 156(2) at 432.
2

In order to carry out this legislative intent, NTC promulgated a regulation containing a list
of establishments in which sales of food were generally considered to be intended for
immediate consumption. Thus Nevada Administrative Code (NAC) 372.610 states, [t]he
exemption does not apply to any foods or beverages sold for immediate consumption through
. . . vending machines.
In State v. Morros, 104 Nev. 709, 713, 766 P.2d 263, 266 (1988), we held that great
deference should be given to the agency's interpretation when it is within the language of the
statute. This holding was premised on the fact that the agency, and not the judicial system, is
given the job of creating regulations that serve to carry out legislative policy. Thus courts
should not substitute their own construction of a statutory provision for a reasonable
interpretation made by an agency.
This case presents an excellent example of when such an agency decision should be
upheld. Here, the legislature gave the agency the task of determining which foods should be
included in the definition of prepared food intended for immediate consumption. It is
reasonable to conclude that machine sales come within this definition since refrigeration is
certainly a form of preparation, and it is beyond doubt that canned drinks purchased in
vending machines are ordinarily consumed immediately. In addition, it should be
remembered that the legislature itself clearly intended such sales to remain subject to
taxation.3 Thus the NTC construction of the statute is certainly a reasonable one.
__________
gross receipts from sales and the storage, use or other consumption of food for human consumption.
2. Food for human consumption does not include:
(a) Alcoholic beverages.
(b) Pet foods.
(c) Tonics and vitamins.
(d) Prepared food intended for immediate consumption.

2
This language was not contained in the referendum itself, but was included in the bill, simply as a guideline
to NTC, so that administration of the statute could be facilitated. See Minutes of the Assembly Committee on
Taxation, 60th Sess. 667-668 (April 3, 1979).
itself clearly intended such sales to remain subject to taxation.
3
Thus the NTC construction
of the statute is certainly a reasonable one.
We hold that the agency regulation making canned drinks sold in vending machines
subject to sales tax must be sustained. For this reason, the assessment of appellant's tax
liability is upheld, and the ruling of the court below is affirmed.
____________
106 Nev. 769, 769 (1990) Jimenez v. State
VICTOR MAXIMILLIAN JIMENEZ, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 20723
November 28, 1990 801 P.2d 1366
Appeal from a judgment upon a jury verdict sentencing appellant to death. Eighth Judicial
District Court, Clark County; J. Charles Thompson, Judge.
Defendant's convictions for burglary, robbery with use of deadly weapon, and two counts
of first degree murder were affirmed but defendant's death sentence was remanded for second
penalty hearing before newly empaneled jury, 105 Nev. 337, 775 P.2d 694 (1989). Defendant
was again sentenced to death after a new penalty hearing in the district court. Defendant
appealed. The Supreme Court held that: (1) prosecutor's conduct during second penalty
hearing was neither improper nor unfair, and (2) committing murder during robbery, torture
and mutilation of victims, and murder of two victims were aggravating circumstances.
Affirmed.
Moran & Weinstock, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Jury verdict sentencing defendant to death during penalty phase of criminal prosecution will not be disturbed on
appeal if supported by substantial evidence.
__________

3
Contemporaneous constructions of a referendum by the legislature are given great weight, especially where
they do not conflict with information presented to the people. See Amador Valley Joint Union High School Dist.
v. State Bd. of Equalization, 149 Cal.Rptr. 239, 245-246 (Cal. 1978); Tacoma v. Taxpayers of City of Tacoma,
743 P.2d 793, 797 (Wash. 1987).
criminal prosecution will not be disturbed on appeal if supported by substantial evidence.
2. Criminal Law.
Prosecutor's presentation, during penalty hearing, of hypotheticals of criminal conduct which did not warrant death penalty was
used to suggest basis for imposing harsher penalty against defendant rather than to inflame jury by comparing defendant to other
specifically named criminals and thus, was not misconduct.
3. Criminal Law.
Generally, prosecutor's reference to evidence not before jury in argument is improper.
4. Criminal Law.
Prosecutor's reference to evidence of defendant's guilt during argument to new jury during penalty phase of trial was justified since
defense counsel's attempt to cast doubt on defendant's guilt by selectively referring to evidence presented to a different jury in guilt
phase invited State's efforts to eliminate confusion.
5. Homicide.
If aggravating circumstance supporting death penalty for first degree murder is based upon depravity of mind, circumstance must
include torture, mutilation or some other serious and depraved physical abuse beyond act of killing itself; depravity of mind, torture
and mutilation are closely related components of a single aggravating circumstance. NRS 200.033, subd. 8.
6. Homicide.
Jury's separation of torture and mutilation into two separate aggravating circumstances was not basis for reversal of defendant's
death sentence since evidence was sufficient to view jury's findings as justification for one aggravating circumstance and defendant's
murder of two victims was a second aggravating circumstance. NRS 200.033, subds. 4, 8.
OPINION
Per Curiam:
We first reviewed this matter on direct appeal from a judgment upon a jury verdict
convicting appellant Victor Maximillian Jimenez of burglary, robbery with use of a deadly
weapon, and two counts of first degree murder. Jimenez was sentenced to death, and this
court affirmed all of his convictions but vacated the death sentence and remanded to the
district court for a second penalty hearing before a newly empaneled jury. See Jimenez v.
State, 105 Nev. 337, 775 P.2d 694 (1989). After the new penalty hearing, Jimenez was again
sentenced to death. In appealing from his second death sentence, Jimenez contend that the
sentence may not stand because of prejudicial error resulting primarily from prosecutorial
misconduct and an erroneous construction of an aggravating circumstance. We are convinced
that Jimenez was fairly sentenced, and therefore affirm.
Facts
The facts surrounding the crimes committed by Jimenez are set forth in Jimenez v. State
and need not be recounted here. Suffice it to say that although we perceived no prejudicial
error in the guilt phase of the first trial, and therefore affirmed each of the convictions, it was
clear that the jury found certain aggravating circumstances in the initial penalty hearing that
could not be sustained on the facts. We therefore found it necessary to vacate the first death
sentence and to remand the case for a new penalty hearing. In the earlier opinion, we
concluded that the only agruably sustainable aggravating circumstances presented to the jury
were that Jimenez acted with depravity of mind' (NRS 200.033(8)) and that he committed
the murders during a robbery (NRS 200.033(4)). Id. at 343, 775 P.2d at 698. The second
penalty phase hearing lasted three days, and after the jury again found Jimenez deserving of
death on both counts, Jimenez appealed.
Discussion
[Headnote 1]
A jury verdict will not be disturbed on appeal if supported by substantial evidence. Bolden
v. State, 97 Nev. 71, 73, 624 P.2d 20 (1981). Our review of the record reveals both
substantial evidence to support the jury's verdict and fundamental fairness in the proceedings.
A. Prosecutorial Misconduct
Jimenez alleges that the prosecutor injected his personal opinion into the penalty hearing,
and improperly referred to evidence not before the jury. He contends that as a result of this
misconduct, the jury was influenced by prejudice, passion and other arbitrary factors. We
disagree.
[Headnote 2]
On a number of occasions, this court has declared the impropriety of prosecutors
buttressing argument by force of their personal opinions. As we stated in Collier v. State, 101
Nev. 473, 705 P.2d 1126 (1985):
Such an injection of personal beliefs into the argument detracts from the
unprejudiced, impartial, and nonpartisan role that a prosecuting attorney assumes in
the courtroom. . . . [B]y invoking the authority of his or her own supposedly greater
experience and knowledge, a prosecutor invites undue jury reliance on the conclusions
personally endorsed by the prosecuting attorney. . . . Prosecutors therefore must not
express their personal beliefs, as was done here.
Id. at 480, 705 P.2d at 1130 (citations omitted). We nevertheless recognize that prosecutors
must be free to express their perceptions of the record evidence and inferences properly
drawn therefrom. We have simply directed them to do so without using such expressions as I
personally believe, or In my opinion, so as to in effect place their own certification on
their arguments. Thus, a prosecutor may properly argue in a manner such as, Based upon the
testimony just recounted to you, I suggest that Mr. Witness is unworthy of belief, or For the
reasons just mentioned, I submit that the penalty of death is suitable punishment for Mr.
Defendant. The foregoing examples of proper and improper argument merely attest to the
obviousthat much of the problem rests with semantics since the prosecutor is in truth
expressing his personal opinion or conclusion in each of the four examples. We nevertheless
expect our prosecutors to be sensitive to the need to avoid expressions that clearly reflect or
state a condition of personal belief or opinion.
In the instant case, Jimenez complains that the prosecutor injected his own opinion
concerning gradations of the first degree murder and the differing degrees of punishment that
each may justify. The prosecutor's argument was not improper. We have previously
recognized the right of a prosecutor in a penalty phase hearing to discuss general theories of
penology, such as the merits of punishment, deterrence and the death penalty. Ybarra v.
State, 103 Nev. 8, 15, 731 P.2d 353, 358 (1987). Here, the prosecutor presented hypotheticals
apparently or approximately base upon actual cases to the jury as examples of criminal
conduct not warranting the death penalty. The prosecutor was thus contrasting the
circumstances of the hypothetical cases with those of the instant case in order to illustrate the
qualitative differences between the crimes and to suggest a basis for imposing the harsher
penalty against Jimenez. The prosecutor's argument represented proper persuasion rather than
improper inflammation. The argument was not designed to inflame the jury by comparing
Jimenez to other specifically named criminals, as was the case in Collier. The prosecutor's
general discussion of the death penalty did not constitute misconduct.
[Headnotes 3, 4]
Jimenez also contends that the prosecutor improperly referred to evidence outside the
record. Usually, counsel's references in argument to evidence not properly before the jury is
improper. Ybarra, 103 Nev. at 15, 731 P.2d at 358. Here, however, defense counsel noted
that two $100 bills were found in the pocket of one of the victims. The clear purpose of the
statement was to cast doubt on whether the murders occurred during the commission of a
robbery.
a robbery. That issue, however, had been decided in the guilt phase by the original jury and
affirmed on appeal by this court. Jimenez, 105 Nev. at 342, 775 P.2d at 697. Therefore,
defense counsel was not entitled to argue that Jimenez did not murder the victims in
connection with the robbery. Rather, defense counsel should have concentrated on mitigating
factors that would arguably outweigh aggravating factors and justify the imposition of a
penalty less than death. In any event, because defense counsel elected to argue matters
pertaining to innocence or guilt before a new jury in a penalty hearing, the prosecutor
understandably and properly informed the jury that it had not heard all the evidence
concerning the hundred dollar bills. Defense counsel's objection was sustained, and the
prosecutor again sought to argue that the issue had been decided in prior proceedings. After a
second successful objection by defense counsel, the prosecutor changed his line of argument.
Both prosecutors and defense counsel share a duty to confine arguments to the jury within
proper bounds. United States v. Young, 470 U.S. 1, 8 (1985). In the instant case, defense
counsel's attempt to cast doubt on his client's guilt by selectively referring to evidence
presented to a different jury in the guilt phase of trial invited the State's effort to eliminate
confusion introduced by the defense. The prosecutor's conduct was justified.
Based upon our review of the record, we are not persuaded that the conduct complained of
by Jimenez was either improper or unfair. To the contrary, it appears that the prosecutor
argued persuasively but not inappropriately.
B. Aggravating and Mitigating Factors
As noted above, our original opinion stated that [t]he only arguably sustainable
aggravating circumstances presented to the jury were that Jimenez acted with depravity of
mind' and that he committed the murders during a robbery. Jimenez, 105 Nev. at 343, 775
P.2d at 698 (citations omitted). It was established at trial in the original guilt phase that
Jimenez murdered the victims while robbing Gabe's Bar. We held that the evidence
substantially and fairly supported the jury's finding in that regard. Id. at 342, 775 P.2d at 697.
Committing murder during the commission of a robbery is an aggravating circumstance under
NRS 200.033(4).
[Headnote 5]
The State offered two additional aggravating circumstances to the jury: torture and
mutilation. We have held that the aggravating circumstance specified at NRS 200.033(8)
requires torture, mutilation or other serious and depraved physical abuse beyond the act
of killing itself, as a qualifying requirement to an aggravating circumstance based in part
upon depravity of mind."
mutilation or other serious and depraved physical abuse beyond the act of killing itself, as a
qualifying requirement to an aggravating circumstance based in part upon depravity of mind.
Robins v. State, 106 Nev. 611, 629, 798 P.2d 558, 570 (1990). Despite the disjunctive
language used in NRS 200.033(8), the referenced provision embraces only one aggravating
circumstance. As we held in Robins, if an aggravating circumstance is based upon depravity
of mind, it must include torture, mutilation or some other serious and depraved physical
abuse beyond the act of killing itself. Here, the jury did not base its findings upon depravity
of mind. Rather, it found both torture and mutilation as distinct and separate aggravating
circumstances. Depravity of mind, torture and mutilation are the closely related components
of a single aggravating circumstance. Although depravity of mind requires one or more of the
components discussed above, the natural meaning attached to the discrete acts of mutilation
or torture are sufficiently clear to support a constitutionally valid aggravating circumstance
without the need for a limiting clarification. Nevertheless, NRS 200.033(8) provides the basis
for only one aggravating circumstance. If the Legislature had intended to include more than
one aggravating circumstance within the referenced provision it would have done so under
separate numbers and categories as it had with the other aggravating circumstances defined
under NRS 200.033. We thus conclude that whenever an aggravating circumstance is based
upon NRS 200.033(8), it may consist of depravity of mind, as discussed above, or either
mutilation or torture, singularly or in combination.
[Headnote 6]
In this case, the jury's separation of torture and mutilation into two separate aggravating
circumstances does not constitute a basis for reversal. In the first place, because the jury had a
sufficient evidentiary foundation for finding that the victims were tortured and mutilated in
the course of the murders, we need only view the jury's findings as justification for one
aggravating circumstance. Second, Jimenez murdered two victims while robbing Gabe's Bar,
clearly an aggravating circumstance under NRS 200.033(4). Because the jury discerned no
mitigating circumstances sufficient to outweigh the aggravating circumstance or
circumstances found, the death sentence will affirmed.
We have considered Jimenez' other assignment of error and conclude that they are without
merit.
Based upon our review of the record, we are persuaded that the sentence of death was not
the result of passion, prejudice or any arbitrary factor, and that the sentence was not
excessive, considering both the crime and the individual characteristics and background of
the defendant. Having determined that this, the second penalty hearing accorded Jimenez,
was free of prejudicial error, we affirm the judgment upon the jury verdict sentencing
Jimenez to death.
penalty hearing accorded Jimenez, was free of prejudicial error, we affirm the judgment upon
the jury verdict sentencing Jimenez to death.
____________
106 Nev. 775, 775 (1990) Magiera v. Luera
DAWN MARIE MAGIERA, Appellant, v. DAVID LUERA, Respondent.
No. 21133
November 28, 1990 802 P.2d 6
Appeal from an order of the district court to change the surname of a minor. Eighth
Judicial District Court, Clark County; Donald M. Mosley, Judge.
Mother appealed from an order of the district court requiring that surname of minor child
be changed from that of mother to that of father. The Supreme Court held that district court
erred in changing surname of child born out-of-wedlock from surname of mother to surname
of father, as record demonstrated that it would not be in child's best interest to bear father's
surname.
Reversed.
Thorndal, Backus, Maupin & Armstrong, and Ginger R. James, Las Vegas, for Appellant.
Samuel S. Anter, Las Vegas, for Respondent.
1. Children Out-of-Wedlock.
The father has not greater right than mother to have a child born out-of-wedlock bear his surname; only factor relevant to
determination of what surname child should bear is the best interest of the child.
Burden is on party seeking to change surname of a child born out-of-wedlock to prove, by clear and convincing evidence, that
substantial welfare of the child necessitates the change.
District court erred in changing surname of child born out-of-wedlock from surname of mother to surname of father, as record
demonstrated that it was not in child's best interest to bear father's surname; child had lived exclusively in custody of her mother for
more than three years, and would continue in primary custody of mother; changing child's surname might adversely affect child's
relationship with the mother.
OPINION
Per Curiam:
This is an appeal from an order of the district court requiring that the surname of
appellant's minor child be changed.
On November 27, 1986, Dawn Marie Magiera gave birth to a baby daughter. David Luera,
the father of the child, acknowledged his paternity and signed the birth certificate. Magiera
and Luera were not and have never been married. The surname given to the child that was
reflected on the birth certificate was Magiera.
On April 2, 1987, Magiera petitioned the district court to require Luera to pay child
support. On July 24, 1987, following the recommendation of a domestic relations referee, the
district court ordered Luera to pay Magiera child support in the amount of $175.00 per month.
Luera did not remain current on his child support payments and, on January 6, 1988, Magiera
petitioned the district court to reduce the arrearages to judgment. On February 4, 1988, the
district court raised Luera's child support obligation to $207.00 per month, and ordered Luera
to pay an additional $23.00 per month toward the $700.00 arrearage for past support owed to
Magiera. On November 27, 1989, Luera sought visitation privileges with the child. The
referee recommended that Luera be allowed visitation rights. During all of these proceedings,
Luera never suggested that the child's surname should be changed to Luera.
On December 20, 1989, at a hearing before the referee, counsel for Luera orally requested
that the child's surname be changed to Luera. Counsel for Luera contended that because Luera
had been ordered to pay child support, the child should bear his name.
On January 22, 1990, another hearing was held before the referee. Luera was represented
by counsel; Magiera appeared in proper person. Issues of visitation rights were discussed, and
the referee again concluded that Luera should continue to pay child support. Counsel for
Luera argued that because Luera was required to make child support payments, the child
should bear Luera's name. Neither party offered any argument to the referee concerning the
interests of the child. The referee recommended that the child's surname should be changed to
Luera.
On January 25, 1990, at a hearing before the district court, Magiera contested the referee's
recommendation that the child's surname be changed to Luera. Magiera was represented by
counsel who appeared pro bono and had been retained on the day prior to the hearing.
Counsel represented to the court that she had not had sufficient time to fully research the
issue, but that preliminary research indicated that a child's surname should not be changed
based on the interests of the father alone.
research indicated that a child's surname should not be changed based on the interests of the
father alone. Nevertheless, the district court adopted the recommendation of the referee on the
sole ground that, because the father was making child support payments, he deserved a
tangible benefit' for providing financial support for the child. Thus, the district court
ordered the surname of the child changed to Luera.
Magiera sought a stay of the district court's order. At a hearing, counsel for Magiera asked
the district court, in order to clarify the record, whether it was true that the sole ground on
which the district court relied for ordering the surname change was to provide the father with
a tangible benefit from his child support payments. In response, the district curt stated: Well,
that was a factor. The fact that he's a father, I think, has something to do with it as well. The
district court denied the requested stay on the ground that the name change was a matter of
discretion, making the likelihood of success on appeal slight. This appeal followed.
[Headnotes 1, 2]
The father of a child has a legal duty to support his child. NRS 125B.020. The father is
entitled to no tangible benefit for fulfilling this responsibility. The father has no greater
right than the mother to have a child bear his surname. See, e.g., Laks v. Laks, 540 P.2d 1277
(Ariz.Ct.App. 1975); In Re Marriage of Schiffman, 620 P.2d 579 (Cal. 1980); Application of
Rossell by Yacono, 481 A.2d 602 (N.J.Super.Ct. Law Div. 1984). Instead, the only factor
relevant to the determination of what surname a child should bear is in the best interest of the
child. See Schiffman, 620 P.2d at 583; Jacobs v. Jacobs, 309 N.W.2d 303 (Minn. 1981).
Finally, the burden is on the party seeking the name change to prove, by clear and compelling
evidence, that the substantial welfare of the child necessitates a name change. See, e.g.,
Robinson v. Hansel, 223 N.W.2d 138 (Minn. 1974); Collinsworth v. O'Connell, 508 So.2d
744 (Fla.Dist.Ct.App. 1987).
[Headnote 3]
When judged by this standard, it is apparent that the district court's order cannot stand. At
no time did the district court consider the interests of the child in this matter. No evidence
was presented tending to suggest, let alone prove by clear and compelling evidence, that it
would be in the interest of the child to have her surname changed.
Further, the record demonstrates that it would not be in the child's best interest to bear her
father's surname. The child has lived exclusively in the custody of her mother using her
mother's surname for more than three years, and will continue in the primary custody of her
mother.
primary custody of her mother. When a child bears a surname different from the surname of
the parent with whom the child lives, the child may experience confusion about her identity,
difficulties in school and society, and embarrassment among friends. Changing the child's
surname might adversely affect the child's relationship with her mother. These consequences
are surely not warranted at the request of a father who did not even support his child until a
court ordered his wages garnished. Under the circumstances of this case, the district court
erred in ordering the child's surname changed.
Accordingly, we reverse that portion of the district court's order that requires the surname
of appellant's child to be changed.
____________
106 Nev. 778, 778 (1990) White Pine Lumber v. City of Reno
WHITE PINE LUMBER COMPANY and LAKE-RIDGE, Appellants, v. THE CITY OF
RENO, Respondent.
No. 20731
November 28, 1990 801 P.2d 1370
Appeal from an order dismissing appellant's complaint as being barred under the statute of
limitations. Second Judicial District Court, Washoe County; Roy L. Torvinen, Judge.
Landowner brought action in 1988 alleging that city's requirement that owner dedicate a
separate parcel of land for use by city as condition for city's approval of owner's
condominium project in 1979 constituted a taking. The district court found that owner's suit
was barred by four-year statute of limitations for wrongful taking cases and dismissed
complaint. Owner appealed. The Supreme Court that fifteen-year period of limitations
applicable to adverse possession applied to owner's taking action.
Vargas and Bartlett and C. Thomas Burton and Robert W. Marshall, Reno, for Appellants.
Patricia Lynch, Reno City Attorney, Madeline Shipman, Deputy City Attorney, Reno, for
Respondent.
1. Eminent Domain.
Fifteen-year period of limitation for acquiring title by adverse possession where possessor is not paying taxes, rather than five-year
period of limitation applicable to possessor who does pay taxes, applied to taking action arising from landowner's irrevocable offer to
dedicate parcel of land as required by city as condition of approval of owner's condominium project, where
landowner rather than city was paying taxes.
parcel of land as required by city as condition of approval of owner's condominium project, where landowner rather than city was
paying taxes. U.S.C.A.Const. Amend. 14; NRS 11.150, 40.090.
2. Eminent Domain.
No statute of limitations short of period required to obtain title to property interest by adverse possession may bar landowner's
action for alleged wrongful taking in absence of any specifically applicable statute of limitations. NRS 11.150, 40.090.
3. Eminent Domain.
Period of limitation for one acquiring title by adverse possession, rather than shorter limitations period contained in catch all
statute, applied to action challenging as unconstitutional taking requirement that made landowner irrevocable offer to dedicate parcel
of land, as condition to city's approval of owner's condominium project. U.S.C.A.Const. Amend. 14; NRS 11.220, 40.090.
OPINION
Per Curiam:
In late 1979, appellant White Pine Lumber Company (White Pine) irrevocably offered for
dedication to respondent City of Reno (Reno) a parcel of land in Washoe County. This offer
was required by Reno as a condition for approval of a condominium project proposed in part
by White Pine. On December 24, 1979, Reno approved the project, but rejected the offer of
dedication. Seven years later, on November 10, 1986, Reno adopted a resolution accepting
the offer of the parcel.
White Pine then commenced this lawsuit on March 30, 1988, alleging that Reno's action,
conditioning approval of the project on the donation of the parcel, constituted a taking of
appellant's property, in violation of the fifth and fourteenth amendments of the United States
Constitution. The district court held that White Pine's suit was barred by the statute of
limitations and therefore dismissed the complaint. Specifically, the court below held that: (1)
the four-year limitations period provided under NRS 11.220 applies to wrongful takings
cases; and (2) the taking, if any, occurred in December of 1979.
[Headnote 1]
On appeal, White Pine challenges both of these conclusions. We address only the issue
concerning the applicable limitations period, however, and hold that the fifteen-year period
found in NRS 40.090 applies in takings actions.
1
[Headnotes 2, 3]
__________

1
Although Nevada has two adverse possession statutes, NRS 11.150 (five years) and NRS 40.090 (fifteen
years), NRS 40.090 provides the most appropriate limitations period. This is because NRS 11.150 is used only
where the adverse possessor has paid taxes throughout the period. Here, White Pine paid taxes until 1986, and
thus NRS 40.090, and not NRS 11.150, should apply.
[Headnotes 2, 3]
A majority of courts that have considered the issue have applied the adverse possessions
statute rather than the catch all provision, to takings claims.
2
See, e.g., Frustuck v. City
of Fairfax, 212 Cal.App.2d 345, 374, 28 Cal.Rptr. 357, 374-75 (1963); Difronzo v. Village of
Port Sanilac, 419 N.W.2d 756, 759 (Mich. 1988); Krambeck v. City of Gretna, 254 N.W.2d
691, 695 (Neb. 1977); Brazos River Authority v. City of Graham, 354 S.W.2d 99, 109-110
(Tex. 1961); Ackerman v. Port of Seattle, 348 P.2d 664, 667 (Wash. 1960). Cf. Scott v. City
of Sioux City, 432 N.W.2d 144, 147 (Iowa 1988) (applying catch-all statute); Millison v.
Wilzack, 551 A.2d 899, 902 (Md.Ct.Spec.App. 1989) (same).
In Frustuck v. City of Fairfax, 212 Cal.App.2d 345, 374, 28 Cal.Rptr. 357, 374-75 (1963),
cited by this court with approval in Alper v. Clark County, 93 Nev. 569, 571 P.2d 810 (1977),
the court applied this majority rule. The Frustuck court reasoned that the landowner's right of
recovery grows out of his title to the land, and thus the landowner should have a right to bring
the action until he has lost title to the land by virtue of adverse possession. Id. at 374, 28
Cal.Rptr. at 374-75.
In Ackerman v. Port Seattle, 348 P.2d 664 (Wash. 1960), the court reached the same
conclusion by way of a different analysis. The Ackerman court reasoned that because
takings claims are of a constitutional magnitude, these claims cannot be cut off by the
passage of time short of the government's acquiring title through adverse possession. Id. at
667.
We find the reasoning expressed in these decisions compelling. We feel that had the
taker in this case been a private party, the applicable limitations period would have been the
one for acquiring title by adverse possession. The identity of the party doing the taking
should not change this analysis, especially in light of the constitutional nature of appellant's
claim. Consequently, we hold that the fifteen-year period provided in NRS 40.090 is the
appropriate limitations period in takings actions.
3
Because of our resolution of this issue,
we find it unnecessary to determine the exact time that White Pine's cause of action, if
any, arose, since even if the limitations period began to run in 1979, appellant's claim was
filed well within the applicable fifteen-year period.
__________

2
Perhaps the only broadly recognized general rule that may be extracted . . . involving [this issue] is the one
that in absence of any specifically applicable statute of limitations . . . no statute of limitations short of the period
required to obtain title by adverse possession . . . may bar the landowner's action . . . . 26 A.L.R.4th 68, 73
(1983). See also Difronzo v. Village of Port Sanilac, 419 N.W.2d 756 (Mich. 1988) (application to inverse
condemnation actions of the fifteen year period found in the adverse possession limitation statute comports with
the general rule in this country).

3
Respondent contends that our decision in Alper v. Clark County, 93 Nev. 569, 571 P.2d 810 (1977),
controls this case, and mandates the application of
Because of our resolution of this issue, we find it unnecessary to determine the exact time
that White Pine's cause of action, if any, arose, since even if the limitations period began to
run in 1979, appellant's claim was filed well within the applicable fifteen-year period. We
therefore remand this matter to the district court for further proceedings consistent with the
views expressed herein.
____________
106 Nev. 781, 781 (1990) Smith v. State
MICHAEL LEE SMITH, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21416
December 20, 1990 802 P.2d 628
(Replaces opinion issued November 28, 1990
Appeal from denial of petition for post-conviction relief. Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
Defendant was convicted of two counts of first degree murder with use of deadly weapon,
following plea bargain. Judgment was entered in the district court. Defendant appealed. The
Supreme Court held that guilty plea was not rendered involuntary by defendant's having been
misled by his attorney into believing that board of pardons could commute sentence of life
without parole to sentence allowing for parole, as advice was correct.
Appeal dismissed.
Michael Lee Smith, In Proper Person, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, Las Vegas, for
Respondent.
__________
the four-year limitation period set forth in NRS 11.220. We disagree. Alper involved a situation where Clark
County had allegedly taken plaintiff's land in 1967. Id. at 572, 571 P.2d at 811. Clark County argued that the
suit was barred by the statute of limitations because plaintiff filed his takings claim in 1972. Id. at 574, 571
P.2d at 813.
In support of this position, the county urged application of either NRS 11.190 (one-year limitation on all
claims brought against county) or NRS 11.220 (four-year catch-all statute). Id. Because Clark County had
affirmatively misled plaintiff into not filing suit, however, we held that the county was estopped from raising a
statute of limitations defense. Id. Therefore, we did not decide, nor even hint, in Alper that either of the statutes
offered by the county was applicable.
106 Nev. 781, 782 (1990) Smith v. State
Pardon and Parole.
Board of pardons may commute sentence of life imprisonment without parole to a sentence allowing for parole. NRS 213.1099,
subd. 4; Const. art. 5, 14, subd. 2.
OPINION
Per Curiam:
This is a proper person appeal from an order of the district court, denying appellant's
proper person petition for post-conviction relief.
On July 18, 1989, appellant was convicted, pursuant to a negotiated guilty plea, of two
counts of first degree murder with use of a deadly weapon. Pursuant to the plea negotiations,
appellant was sentenced to four consecutive terms of life without the possibility of parole in
the Nevada State Prison. No direct appeal was taken. On April 27, 1990, appellant filed a
petition for post-conviction relief. In that petition, appellant set forth a number of grounds
which appellant alleged should be sufficient for allowing appellant to withdraw his guilty
plea. That petition was opposed by the state. On June 4, 1990, the district court denied
appellant's petition. This appeal followed.
Appellant contended in his petition for post-conviction relief that his guilty plea was not
knowingly and voluntarily entered because he was misled by his attorney. Specifically,
appellant's attorney informed appellant that it was possible that the board of pardons could
commute a sentence of life without parole to a sentence allowing for parole. Appellant
contends that this advice was erroneous.
In 1982, article 5, section 14(2) of the Nevada Constitution was added to read as follows:
2. Except as may be provided by law, a sentence of death or a sentence of life
imprisonment without possibility of parole may not be commuted to a sentence which
would allow parole.
NRS 213.1099(4) was enacted along with article 5, section 14(2) of the Nevada
Constitution so as to become effective if and only if the constitutional amendment above was
approved by the voters. That statute reads as follows:
4. Except as otherwise provided in NRS 213.1215 [concerning mandatory parole for
some prisoners], the board may not release on parole a prisoner whose sentence to
death or to life without possibility of parole has been commuted to a lesser penalty
unless it finds that the prisoner has served at least 20 consecutive years in the state
prison, is not under an order that he be detained to answer for a crime or violation
of parole or probation in another jurisdiction, and that he has no history of:
106 Nev. 781, 783 (1990) Smith v. State
least 20 consecutive years in the state prison, is not under an order that he be detained
to answer for a crime or violation of parole or probation in another jurisdiction, and that
he has no history of:
(a) Recent misconduct in the institution, and that he has been recommended for
parole by the director of the department of prisons;
(b) Repetitive criminal conduct;
(c) Criminal conduct related to the use of alcohol or drugs;
(d) Repetitive sexual deviance, violence or aggression; or
(e) Failure in parole, probation, work release or similar programs.
The amendment of the Nevada Constitution, when read with NRS 213.1099(4), creates an
ambiguity in Nevada law. The Nevada Constitution allows for the commutation of a sentence
of life without parole as may be provided by law. NRS 213.1099(4) appears to contemplate
that such sentences may be commuted. Nevertheless, NRS 213.1099(4) does not contain any
express language granting the board of pardons authority to commute a sentence of life
without the possibility of parole to a sentence allowing for parole.
1
Instead, NRS
213.1099(4) simply provides certain restrictions on granting parole to prisoners whose
sentences have been commuted. The argument could be made, therefore, that these
restrictions were intended to apply only to commutations made before the amendment of the
Nevada Constitution. We do not believe this construction of the statute reflects the true intent
of the legislature.
The fact that the legislature enacted, at the same time the constitution was amended, a set
of restrictions on the parole board regarding parole for prisoners whose sentences had been
commuted, and expressly conditioned the operation of the statute on the passage of the
constitutional amendment, suggests that the legislature was not attempting to eliminate the
power of the board of pardons to commute such sentences, but rather that the legislature
intended to place restrictions on the parole board incident to the new constitutional
amendment. The inference that may be drawn from the statute is that the legislature intended
that the commutation power would continue to exist, albeit with restrictions on the parole of
prisoners whose sentences had been commuted.
In many cases, including the instant case, interpreting article 5, section 14(2) of the
Nevada Constitution and NRS 213.1099(4) as stripping the board of pardons of its power to
commute a sentence of life without parole would produce an especially harsh result.
__________

1
Further, no other Nevada statute provides for commutation of sentences of death or of life without the
possibility of parole.
106 Nev. 781, 784 (1990) Smith v. State
stripping the board of pardons of its power to commute a sentence of life without parole
would produce an especially harsh result. For example, Nevada's habitual criminal statutes
provide for a sentence of life without the possibility of parole for habitual criminals. It is
possible under Nevada law for a defendant, possibly a quite young defendant, upon
conviction of his third nonviolent, property crime to receive a sentence of life without the
possibility of parole. Assuming, without deciding, that the state constitution may, consistent
with the United States Constitution, decree that such a defendant could never have his
sentence reviewed by the board of pardons, he would die in prison, possibly having served
sixty or seventy calendar years behind bars. When compared to other sentences imposed for
violent crimes in this state, this result appears entirely unfair.
When interpreting a penal statute, this court will generally resolve a genuine ambiguity in
favor of the defendant. See In re Laiolo, 83 Nev. 186, 426 P.2d 726 (1967). We are unwilling
to ascribe to the legislature a motive to create the result of the example above unless and until
the legislature expresses such an intent in clear and unambiguous terms.
We conclude, therefore, that the board of pardons retains the power to commute a sentence
of life without the possibility of parole to a sentence allowing for parole, and that the parole
board is subject to the restrictions of NRS 213.1099(4). Thus, the advice given to appellant
by his attorney was not erroneous, and his guilty plea was knowingly and voluntarily entered.
Appellant also contended in his petition below that (1) his counsel coerced him into
pleading guilty by telling him that he could not win at trial; (2) his sentence violates the
eighth amendment to the United States Constitution; (3) he was not provided with a
presentence report; and (4) his plea was involuntary because he was not informed of his rights
before the grand jury. We have reviewed these contentions, and we conclude that they are
without merit. Specifically, issues one and four are naked claims for relief unsupported by
sufficient factual allegations to warrant consideration, and issues two and three could have
been raised in a direct appeal from appellant's judgment of conviction, but were not. Thus, the
district court did not err in denying these claims for relief without an evidentiary hearing. See,
e.g., Grondin v. State, 97 Nev. 454, 634 P.2d 456 (1981).
Having reviewed the record on appeal, and for the reasons set forth above, we conclude
that appellant cannot demonstrate error in this appeal and that briefing and oral argument are
unwarranted. See Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975), cert.
denied, 423 U.S. 1077 (1976). Accordingly, we dismiss this appeal.
____________
106 Nev. 785, 785 (1990) Gaitor v. State
JAMIE GAITOR and DONALD LEE ALLEN, Appellants, v. THE STATE OF NEVADA,
Respondents.
No. 19986
November 28, 1990 801 P.2d 1372
Consolidated appeals from judgments of conviction upon jury verdicts of robbery and
conspiracy to commit robbery and an adjudication of habitual criminality. Eighth Judicial
District Court, Clark County; John F. Mendoza, Judge.
Defendants were convicted of robbery and conspiracy to commit robbery and adjudicated
habitual criminals following a jury trial in the district court. Defendants appealed. After
consolidating appeals, the Supreme Court, Mowbray, J., held that: (1) trial court's declaration
of mistrial did not subject defendant to double jeopardy for same offense; (2) police
supervised identification did not violate defendants' right to counsel or taint in-court
identifications; (3) sufficiency of evidence was question for jury; and (4) State established
one defendant's status as a habitual criminal.
Affirmed.
Rose, J., dissented in part.
Mark B. Bailus, Las Vegas, for Appellant Jamie Gaitor.
Leslie Mark Stovall, Las Vegas, for Appellant Donald Lee Allen.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney and James N.
Tufteland, Chief Deputy District Attorney and William P. Henry, Deputy District Attorney,
Clark County, for Respondent.
1. Double Jeopardy.
Generally, a mistrial declared at request of defense counsel or with defense counsel's consent, does not bar a retrial under
constitutional provisions prohibiting double jeopardy. U.S.C.A.Const. Amend. 5; Const. art. 1, 8.
2. Double Jeopardy.
Defendant was not subjected to double jeopardy when trial court declared a mistrial because juror discussed seeing a State's
witness in handcuffs with foreperson since defense counsel tacitly approved mistrial declaration by not objecting and manifest
necessity made it incumbent upon trial judge to declare a mistrial. U.S.C.A.Const. Amend. 5; Const. art. 1, 8.
3. Double Jeopardy.
Prohibition against double jeopardy does not apply in cases of manifest necessity where trial court, in exercise of its sound
discretion under legal principles, has power to declare mistrial and discharge jury without consent of defendant.
jury without consent of defendant. U.S.C.A.Const. Amend. 5; Const. art. 1, 8.
4. Criminal Law.
Supreme Court is not obligated to hear argument that police supervised identifications violated defendant's right to counsel and
tainted in-court identification, where contemporaneous objections were not made to the trial court. U.S.C.A.Const. Amend. 6.
5. Criminal Law.
Photographic display of police supervised lineup was not so suggestive as to require exclusion of robbery victim's in-court
identification of defendant, since defendant's counsel examined photographic display but did not object, defendant made no offer of
proof to indicate how lineup was suggestive, and police officer who created photo display was available for cross-examination.
6. Constitutional Law; Criminal Law.
Police supervised confrontation between co-defendant and robbery victim was not so unnecessarily suggestive and conducive to
irreparable mistaken identification that co-defendant was denied due process of law since victim saw assailants' faces at short distance
prior to and during robbery and victim made positive identification of co-defendant to police within minutes of assault. U.S.C.A.Const.
Amend. 14.
7. Criminal Law.
A pre-trial, police supervised confrontation between defendant and victim at scene of crime may be justified, even if confrontation
implies that officers believe defendant was one of assailants, since victim's memory will be fresher minutes after crime, and prompt
identification may expeditiously exonerate innocent persons.
8. Criminal Law.
Defendant is entitled to attorney when prosecutorial process shifts from investigatory to accusatory stage and focuses upon
defendant; identifications made while police attempt to eliminate suspects found within perimeter of crime scene are investigatory.
9. Criminal Law.
Weight and credibility of eyewitness testimony during trial on charges of robbery and conspiracy to commit robbery is solely
within province of the jury.
10. Robbery.
Evidence was sufficient to support defendants' convictions for robbery where two eyewitnesses identified defendants as
perpetrators of crime and record supported finding that police supervised pre-trial identification of defendant's had sufficient indicia of
reliability to remove any taint of suggestiveness.
11. Conspiracy.
Evidence was sufficient to support defendants' convictions for conspiracy to commit robbery since jury could have found existence
of an agreement essential to conspiracy verdict, even though there was little direct proof, where defendants approached victim together,
at same time of night, and same location, with same apparent motive, simultaneously robbed victim and then fled.
12. Criminal Law.
Defendant was properly sentenced as a habitual criminal, based, in part, on conviction in Nebraska of possession of meprobamate
when, under Nebraska law, defendant's conviction was for a felony. NRS 207.010, subd. 2; Neb.Rev.St. 28-4, 117, 28-4, 125(2)
(Repealed).
OPINION
By the Court, Mowbray, J.:
Sometime around 8:30 p.m. on September 9, 1988, the victim, James Lockhart was
approached by two men while walking in a parking lot near 7th and Carson Streets in Las
Vegas, Nevada. One of the men called, Hey, you! and Lockhart turned and saw the faces of
the men who were standing about an arm's length away.
Lockhart was grabbed by one of the men and an altercation ensued. He felt a hand go into
his back pocket where he kept his wallet, and the wallet either fell out of his pocket, or was
taken by the assailants. Lockhart was then thrown to the earth, and his glasses fell off making
it difficult for him to see. As the assailants fled from the scene, Lockhart located his glasses
and retrieved his wallet. Putting his glasses back on, Lockhart looked down the alley to see
the two men as they ran.
Lockhart gave chase after he discovered $50.00 was missing from his wallet, and was
fortunate enough to run by a police car, which he flagged down. Lockhart gave a description
of the assailants to the police officer, and a perimeter was established around the crime scene.
Within fifteen minutes, a police dog located appellant, Jamie Gaitor inside the perimeter
hiding under a Cadillac automobile.
Gaitor was immediately taken to Lockhart who positively identified Gaitor as one of the
men who had attacked him. According to the police report, after Gaitor was Mirandized, he
identified co-appellant, Donald Allen as the other male involved in the assault.
Approximately five days later, Allen was located at the Clark County Detention Center where
he was incarcerated for an unrelated offense.
Allen was taken from his cell and placed in a line-up. The public defender's office was
notified of the line-up, but did not send an attorney to view the line-up proceedings. After
photographs were taken of the individuals in the line-up, Lockhart selected Allen as the other
man who had attacked him in the parking lot on September 9, 1988.
The appellant's first trial was declared a mistrial by the district court judge because a juror
saw one of the State's witnesses in handcuffs outside the courtroom and mentioned this to the
jury foreman, as well as some fellow jurors. At a retrial, Lockhart positively identified Gaitor
and Allen as the assailants without objection from defense counsel. Another witness also
positively identified Gaitor and Allen as the assailants. After hearing the evidence, the jury
returned verdicts of guilty against both Gaitor and Allen on one count each of robbery and
conspiracy to commit robbery.
evidence, the jury returned verdicts of guilty against both Gaitor and Allen on one count each
of robbery and conspiracy to commit robbery. Thereafter, both defendants were sentenced as
habitual criminals.
In his appeal, Gaitor contends his retrial offended the United States and Nevada
constitutional prohibitions against double jeopardy where the original trial was aborted
without an explicit request from Gaitor to do so. We reject this argument.
[Headnotes 1, 2]
No person shall be subject to be twice put in jeopardy for the same offense. . . . Nev.
Const. art. I, 8. See also, U.S. Const. amend. V. However, in general, a mistrial declared at
the request of defense counsel or with defense counsel's consent, does not bar a retrial under
this double jeopardy rule. Melchor-Gloria v. State, 99 Nev. 174, 178, 660 P.2d 109, 111
(1983). Gaitor's counsel did not explicitly request the mistrial, but was silent when the trial
judge informed counsel that he did not believe the court had any other alternative but to
declare a mistrial. The failure of defense counsel to object or express an opinion to the district
court regarding the propriety of the mistrial implied consent and indicated tacit approval.
[Headnote 3]
Furthermore, the double jeopardy rule does not apply in cases of manifest necessity
where trial courts, in the exercise of sound discretion under established legal principles, have
the power to declare a mistrial and discharge a jury without the consent of the defendant.
Williamson v. Sheriff, 89 Nev. 507, 508, 515 P.2d 1028, 1029 (1973). In this case, manifest
necessity made it incumbent upon the district judge to declare a mistrial when a juror saw one
of the State's witnesses in handcuffs outside the courtroom and discussed this event with the
jury foreman and fellow jurors.
Next, both appellants argue on appeal that the victim's eyewitness identification at the trial
should have been excluded by the trial judge because the pre-trial, police supervised
identifications violated the appellants' sixth amendment right to counsel and tainted the
in-court identifications. We disagree.
[Headnotes 4, 5]
A photographic display of Allen's line-up at the detention center was created and was
made available at trial. Allen's counsel was allowed to examine the photographs but did not
register an objection or make an offer of proof to indicate to the district court how the
pre-trial, police supervised line-up at the detention center was suggestive. Likewise, there is
nothing in this appeal to indicate how the line-up identification of Allen was suggestive.
appeal to indicate how the line-up identification of Allen was suggestive. This court is not
obligated to hear issues on appeal where a contemporaneous objection was not made to the
district court. McKague v. State, 101 Nev. 327, 330, 705 P.2d 127, 129 (1985). Furthermore,
since Allen's counsel had an opportunity to cross-examine the officer who created the
photographic display of the line-up, as well as any witness involved with the identification,
the exclusion of Lockhart's eyewitness identification at the trial was not required by the sixth
amendment. French v. State, 95 Nev. 586, 590, 600 P.2d 218, 221 (1979).
[Headnotes 6-8]
With respect to Gaitor's appeal, the pre-trial, police supervised confrontation between
Gaitor and the victim at the scene of the crime was inherently suggestive because it implied
the officers believed Gaitor was one of the assailants. Jones v. State, 95 Nev. 613, 617, 600
P.2d 247, 250 (1979). However, such a confrontation can be justified by countervailing policy
considerations, where a victim's memory will be fresher minutes after the crime, and prompt
identifications may expeditously exonerate innocent persons. Id. at 617, 600 P.2d at 250.
Further, the facts of this case indicate the police supervised confrontation at the scene of the
crime was not so unnecessarily suggestive and conducive to irreparable mistaken
identification that [Gaitor] was denied due process of law. Stovall v. Denno, 388 U.S. 293,
301-302 (1967). Lockhart saw his assailants' faces at a short distance just prior to, and during
the assault, and Lockhart's attention was drawn to both of the assailants when one called out
Hey you!. Furthermore, Lockhart was able to make a positive identification of Gaitor to the
police within minutes of the assault. These facts indicate Lockhart's trial identification of
Gaitor was reliable. Manson v. Braithwaite, 432 U.S. 98, 114 (1977). Also, while a defendant
is entitled to an attorney when the prosecutorial process shifts from an investigatory to an
accusatory stage and focuses upon the defendant, Thompson v. State, 85 Nev. 134, 451 P.2d
704 (1969), cert. denied 396 U.S. 893 (1969), Gaitor was not entitled to an attorney at the
on-scene identification because the facts indicate the police were trying to eliminate suspects
found within the perimeter of the crime scene when Gaitor was identified. At that point, the
process had not shifted from an investigatory to an accusatory stage.
[Headnotes 9, 10]
The appellants' argument that there was insufficient evidence produced at the trial to
support their convictions also lacks merit. Two eyewitnesses identified the appellants as the
perpetrators of the crime.
the crime. The weight and credibility of the eyewitness testimony is solely within the
province of the jury. Wise v. State, 92 Nev. 181, 183, 547 P.2d 314, 315 (1976). This court
will not usurp that function, especially where, as here, the record supports a finding that the
pretrial identification of [the appellants] had sufficient indicia of reliability to remove any
taint of suggestiveness. Jones, 95 Nev. at 617, 600 P.2d at 250.
[Headnote 11]
Likewise the appellants' conspiracy conviction is also supported by the record. The jury
could have found the existence of an agreement essential to the conspiracy verdict upon the
facts of this case, and where, as here, there is substantial evidence to support the jury's
verdict, it should not be overturned on appeal. Isbell v. State, 97 Nev. 222, 226, 626 P.2d
1274, 1276 (1981).
1

[Headnote 12]
Finally, Allen argues that the state failed to meet its burden of proof under NRS 207.010
2
to establish Allen's status as an habitual criminal. Allen asserted at sentencing that one of the
three convictions used for the habitual criminal enhancement, a conviction for possession of a
controlled substance out of Nebraska, was not a felony conviction. The district court rejected
this argument and concluded that there was not doubt under the Nebraska statutes that
Allen's conviction for possession of a controlled substance represented a felony offense.
__________

1
We recognize and appreciate the concerns expressed in the dissenting opinion. Nonetheless, [c]onspiracy
is seldom susceptible of direct proof and is usually established by inference from the conduct of the parties.
State v. Dressel, 513 P.2d 187, 188 (N.M. 1973), citing Oliver v. United States, 121 F.2d 245 (10th Cir. 1941),
cert. denied, 314 U.S. 666 (1941). The facts of this case do demonstrate a coordinated series of acts, sufficient to
infer the existence of an agreement essential to the conspiracy convictions of the appellants: Gaitor and Allen
approached the victim together, at the same time of night, in the same location, with the same apparent motive;
they simultaneously robbed Mr. Lockhart, each taking a role in the attack, and then they fled. It may be possible
that through some symbiotic relationship the two appellants happened to be on the same street, at the same time,
with the same intent to rob someone and, without more, elected to approach the victim together and coordinate
their assault. However, the realm of possibilities is not controlling here. Rather, the issue asks whether there is
substantial evidence to support the jury's conclusion that the appellants conspired to commit the crime. We
conclude there was.

2
NRS 207.010 (2) provides in pertinent part:
Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or
of petit larceny, or of any felony, who has previously been three times convicted, whether in this state or
elsewhere, of any crime which under the laws of the situs of the crime or of this state would amount to a
felony, . . . shall be punished by imprisonment in the state prison for life with our without possibility of
parole.
Nebraska statutes that Allen's conviction for possession of a controlled substance represented
a felony offense. We agree.
Allen was convicted in Nebraska of possession of the controlled substance meprobamate.
Meprobamate was a Schedule IV controlled substance at the time of Allen's offense,
3
and
was punishable by a term in the Nebraska Penal and Correctional Complex.
4
In Nebraska, if
an offense is not designated by the statute creating it as either a felony or a misdemeanor, the
grade of the offense is determined by the maximum punishment authorized by statute. State
v. Redwine, 223 N.W.2d 488 (Neb. 1974). Since Allen was sentenced to the Nebraska Penal
and Correctional Complex for his conviction for possession of a controlled substance, the
conviction represented a felony. Id. The district court did not err when it found Allen to be an
habitual criminal.
Therefore, the appellants' judgments of convictions and Allen's sentence as an habitual
criminal are affirmed.
Young, C. J., Steffen and Springer, JJ., concur.
Rose, J., concurring and dissenting:
I wholeheartedly concur in the affirmance of the convictions of Gaitor and Allen for
robbery. However, I find the evidence insufficient to support their convictions for conspiracy
to commit robbery and dissent from the affirmance on that issue.
Gaitor and Allen shoved the victim to the pavement in a parking lot, took his wallet from
him and ran. From these facts establishing the robbery, the State argues that we can infer a
conspiracy to commit the robbery which preceded the actual attack. I do not believe this can
or should be done.
A conspiracy to commit robbery requires that two or more people conspire to commit it.
NRS 199.480. Mere association with a co-defendant is insufficient to support the charge of
conspiracy. Peterson v. Sheriff, 95 Nev. 522, 598 P.2d 623 (1979). There is no direct
evidence to establish that the defendants met or even agreed to commit a crime before the
assault on the victim. The facts of the primary offense, the robbery, give no indication that
there was a predetermined plan or agreement. Had the facts of the robbery shown a more
thought-out or planned crime, then the inference of a prior agreement to commit the crime
would be reasonable. See People v. Larsen, 572 P.2d 815 (Colo. 1978) (conviction of getaway
car driver for conspiracy to commit robbery was affirmed because actual robbers ran directly
to the driver's car after the robbery, the driver responded to the robbers' direction and
drove away, and the car was equipped with stolen license plates).
__________

3
See Neb. Rev. Stat. 28-4, 117 (1975).

4
See Neb. Rev. Stat. 28-4, 125(2) (1975).
driver's car after the robbery, the driver responded to the robbers' direction and drove away,
and the car was equipped with stolen license plates). However, facts showing a coordinated
series of acts from which a prior agreement can be reasonably inferred are lacking in this
case.
When a co-conspirator's out-of-court statement is offered to prove that the defendant
agreed to commit an unlawful act with another, the hearsay rule requires corroboration of that
conspiracy with independent evidence. See Peterson, supra. Consequently, to prove the crime
of conspiracy, should not we require some independent evidence other than the fact that two
people committed the crime? At the very least, the facts establishing the primary offense
should show a reasonably clear inference that an agreement preceded the perpetration of the
crime.
Judge Learned Hand called conspiracy the darling of the modern prosecutor's nursery.
Harrison v. United States, 7 F.259, 263 (2nd Cir. 1925). In argument before this court, the
deputy district attorney stated that approximately 80 percent of the criminal complaints
against multiple defendants filed in Clark County charge a conspiracy as well as the primary
offense. Time has not changed the attractiveness of this crime to prosecuting attorneys.
From our decision today, a prior conspiracy can be inferred whenever a crime is
committed by two people. I do not believe this is good law or sound policy. For that reason, I
dissent from the affirmance of the conspiracy convictions, but concur in all other aspects of
the majority opinion.
____________
106 Nev. 792, 792 (1990) Nevada State Bank v. Jamison Partnership
NEVADA STATE BANK, a Nevada Corporation, Appellant/Cross-Respondent, v. THE
JAMISON FAMILY PARTNERSHIP, a Nevada Limited Partnership; THE GOLDEN
SPIKE CORPORATION, a Nevada Corporation, dba CHUCK'S GOLDEN SPIKE
CASINO; D.I. JAMISON; CLAIRE JAMISON and J.R. (SPIKE) JAMISON,
Respondents/Cross-Appellants.
No. 20468
November 28, 1990 801 P.2d 1377
Appeal from a district court order granting cross-motions for partial summary judgment.
First Judicial Court, Carson City; Mario G. Recanzone, Judge.
Borrowers filed suit alleging that trustee's sale was not conducted in commercially
reasonable manner and that bank had breached stipulated agreement precluding any
trustee sales beyond a certain date without a written agreement.
breached stipulated agreement precluding any trustee sales beyond a certain date without a
written agreement. Bank filed counterclaim requesting deficiency judgment and alleging
breach of fiduciary duty. The district court dismissed all claims and counterclaims. Bank
appealed and borrowers cross-appealed. The Supreme Court held that: (1) statute of
limitations barred bank's claim for deficiency, but bank could nonetheless assert its claim as
an affirmative defense of recoupment; (2) borrowers were not estopped from asserting statute
of limitations defense; (3) fact questions precluded summary judgment on bank's
counterclaim alleging breach of fiduciary duty; (4) complaint was sufficient to put bank on
notice of allegation that trustee's sale was not conducted in commercially reasonable manner;
and (5) fact question as to whether borrowers were aware that trustee's sale had been
extended precluded summary judgment on borrower's claim alleging breach of stipulation and
order for relief from bankruptcy stay.
Jolley, Urga, Wirth & Woodbury and Jay Earl Smith, Las Vegas, for
Appellant/Cross-Respondent.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell and Karen A. Peterson, Carson
City, for Respondents/Cross-Appellants.
1. Judgment.
Litigant has right to a trial where there remains slightest doubt as to remaining issues of fact.
2. Set-Off and Counterclaim.
Bank's counterclaim for deficiency judgment was compulsory counterclaim because claim arose out of same transaction or
occurrence as was subject matter of borrowers' complaint. NRCP 13.
Borrowers did not, by instituting action against bank before expiration of statute of limitations on bank's deficiency judgment
claims, toll running of statute against compulsory counterclaims filed by bank after statute had expired. NRS 40.455.
Although bank's deficiency claims were time barred, bank could assert such claims as affirmative defense of equitable
recoupment.
5. Estoppel.
Equitable estoppel operates to prevent party from asserting legal rights that, in equity and good conscience, party should not be
allowed to assert because of his or her conduct.
6. Estoppel.
Defense of estoppel requires clear showing that party relying upon it was induced by adverse party to make detrimental change in
position.
7. Estoppel.
Burden is on party asserting estoppel.
Borrowers did not induce bank's reliance upon their first complaint, as required to estop borrowers from asserting statute of
limitations defense against bank's deficiency counterclaims asserted in response to borrower's second complaint; bank was never
served with the first complaint, but rather answered complaint after discovering it through the news media.
9. Fraud.
Breach of fiduciary duty is fraud and therefore governed by three-year statute of limitation. NRS 11.190, subd. 3(d).
Statute of limitation will not commence to run until aggrieved party knew, or reasonably should have known, of facts giving rise to
the breach.
11. Judgment.
Fact question as to when bank knew, or reasonably should have known, of facts surrounding claim that director of bank breached
his fiduciary duty to bank by wrongfully using his position and influence to obtain release of deed of trust and shares of stock pledged
to secure loan to partnership of which he was general partner precluded summary judgment on limitations ground. NRS 11.190, subd.
3(d).
12. Mortgages.
Complaint was sufficient to place bank on notice of allegation that trustee's sale was improperly continued and therefore was not
conducted in commercially reasonable fashion; cause of action specifically stated facts that indicated that stipulation and order
modified or terminated trustee's right to continue sale by public announcement. NRCP 8(a).
13. Judgment.
Fact question as to whether borrowers were aware that trustee's sale had been extended precluded summary judgment on
borrower's claim alleging breach of stipulation and order for relief from bankruptcy stay.
OPINION
Per Curiam:
THE FACTS
On November 8, 1977, Nevada State Bank (Bank) loaned $1,000,000.00 to the Jamison
Family Partnership and the Golden Spike Corporation (Golden Spike). The loan was
originally secured by the Golden Spike Casino, a thirty-seven (37) acre parcel of real property
located in Henderson, Nevada, and a pledge of 3,439 shares of Greyhound stock. However,
within two years of the loan, the Bank had relinquished its security interest in the Henderson
property and the Greyhound stock. D.I. Jamison was a general partner of the Jamison Family
Partnership, as well as a director of the Bank, at the time the loan was made and when the
Bank released its security interest in the stock and real property.
when the Bank released its security interest in the stock and real property.
Golden Spike and the Jamison Family Partnership defaulted on the loan, and on April 15,
1981, Golden Spike filed a petition in the United States Bankruptcy Court for relief and
reorganization under Chapter 11 of the United States Bankruptcy Code. On February 9, 1982,
the terms of the loan agreement between Golden Spike and the Bank were modified pursuant
to a plan for reorganization, but another default, this time on the modified loan agreement,
caused the Bank to schedule a trustee's sale of the Golden Spike Casino for April 26, 1985.
On April 26, 1985, Golden Spike forestalled the trustee's sale by filing a second petition
for relief under Chapter 11 of the United States Bankruptcy Code. Shortly thereafter, Golden
Spike and the Bank entered into a stipulation and order for relief from the bankruptcy
automatic stay. Pursuant to the stipulation, the Bank agreed to continue the trustee's sale,
previously set for April 26, 1985, on one month intervals upon receipt of $16,000.00 each
month. By August 15, 1985, the remaining amounts due on the loan were to be paid in full.
The stipulation and order provided that there would be no further continuances beyond the
August 15, 1985, foreclosure sale date, unless agreed to in writing by Nevada State Bank and
the debtor.
Golden Spike did not repay the remaining amounts due on the loan by August 15, 1985,
and the Bankwithout an agreement in writing from Golden Spike to do so, continued the
trustee's sale by the trustee's public announcement on monthly intervals up to October 1,
1985, upon receipt of $16,000.00 for each month that the sale continued. On October 1, 1985,
the trustee's sale was postponed again until November 1, 1985, and then again to November
4, 1985, and then once more to November 12, 1985. On November 7, 1985, D.I. Jamison
received a letter from the Bank wherein the Bank offered not to sell the Golden Spike Casino
as long as it continued to receive monthly payments of $16,000.00. This letter warned D.I.
Jamison that in order to accept this offer, the Bank would have to receive a payment of
$16,000.00 by 12:00 p.m. on November 12, 1985.
When the Bank did not receive a $16,000.00 payment on the loan by 12:00 p.m. on
November 12, 1985, the Bank held a trustee's sale of the Golden Spike Casino at 4:00 p.m.
that same day. The Bank was the only bidder at the sale and purchased the casino with a
credit bid of $400,000.00.
On January 14, 1986, the Jamison Family and Golden Spike filed a complaint in the
district court against the Bank, but voluntarily dismissed this complaint two days later
pursuant to NRCP 41{a){1) because the suit had not been approved by the bankruptcy
trustee.
NRCP 41(a)(1) because the suit had not been approved by the bankruptcy trustee. The Bank
was not served with this complaint, but after hearing about it in the news media, answered it
on February 7, 1986, some three weeks after the complaint had been voluntarily dismissed.
Attached to the Bank's answer were five counterclaims.
On February 11, 1986, the Jamisons and the Golden Spike filed a second complaint
alleging, among other things, that the trustee's sale of the Golden Spike Casino was not
conducted in a commercially reasonable fashion, and that the Bank had breached the
stipulated agreement precluding any trustee sales beyond August 15, 1985, without a written
agreement between the Bank and the debtor to do so. On February 12, 1986, the Bank's
opportunity to make a claim for a deficiency judgment pursuant to the trustee's sale expired.
See NRS 40.455.
On March 5, 1989, the Bank responded to the second complaint with another answer and
the counterclaims it had erroneously filed against the dismissed complaint. The first
counterclaim requested a deficiency judgment; the second alleged D.I. Jamison breached a
fiduciary duty; and the fourth asserted D.I. Jamison was personally liable for the deficiency
judgment asserted in the first counterclaim.
Ruling upon cross-motions for summary judgment, the district court dismissed all of the
above-mentioned claims for relief and counterclaims, and this appeal followed.
SUMMARY JUDGMENT
[Headnote 1]
Summary judgment is appropriate only where there are no genuine issues of fact to be
resolved, and one party is entitled to judgment as a matter of law. NRCP 56(c); Leven v.
Wheatherstone Condominium Corp., 106 Nev. 307, 309, 791 P.2d 450, 451 (1990). A litigant
has the right to a trial where there remains the slightest doubt as to remaining issues of fact.
Oak Grove Inv. v. Bell & Gossett Co., 99 Nev. 166, 623, 668 P.2d 1075, 1079 (1983). In
deciding whether to grant a motion for summary judgment, the court should review the
evidence in a light most favorable to the party against whom summary judgment may be
rendered. Id.
THE BANK'S DEFICIENCY JUDGMENT COUNTERCLAIMS
The opportunity to make a claim for a deficiency judgment resulting from the trustee's sale
of the Golden Spike Casino expired on February 12, 19S6, pursuant to NRS 40.455.1 The
second complaint was filed on February 11, 19S6, and the Bank filed its answer and
counterclaims requesting a deficiency judgment on March 5, 19S6.
expired on February 12, 1986, pursuant to NRS 40.455.
1
The second complaint was filed on
February 11, 1986, and the Bank filed its answer and counterclaims requesting a deficiency
judgment on March 5, 1986. Therefore, the second complaint was filed one day prior to the
expiration of the statute of limitations, but the Bank filed its answer and counterclaims for a
deficiency judgment twenty-three (23) days after the statutory deadline for filing such claims.
For this reason, the district court judge ruled the Bank's first and fourth counterclaims were
barred by the statute of limitations. However, the district court also ruled the Bank could
assert its deficiency judgment claims as an affirmative defense of recoupment.
2

A. Tolling.
First, the Bank argues the district court erred when it refused to toll the statute of
limitations against the Bank's compulsory counterclaims. We disagree.
[Headnotes 2, 3]
The Bank's first and fourth counterclaims for deficiency judgments were compulsory
counterclaims because they arose out of the same transaction or occurrence as the subject
matter of the opposing complaint. See NRCP 13. This court has not previously considered
whether a plaintiff, by instituting an action before the expiration of a statute of limitation,
tolls the running of that statute against compulsory counterclaims filed by the defendant after
the statute has expired.
3
Those jurisdictions in favor of tolling generally reason that a
primary purpose for a statute of limitationsto afford parties needed protection against
the evidentiary problems associated with defending stale claimsis negated where the
evidence to support the compulsory counterclaim will be similar or identical to the
evidence used to support the complaint.
__________

1
NRS 40.455, as it appeared at the time the complaint and counterclaims were filed in 1986, provided:
40.455. Deficiency judgment: Award to judgment creditor or beneficiary of deed of trust.
Upon application of the judgment creditor or the beneficiary of the deed of trust within 3 months after
the date of the foreclosure sale or the trustee's sale held pursuant to NRS 107.080, respectively, and after
the required hearing, the court shall award a deficiency judgment to the judgment creditor or the
beneficiary of the deed of trust if it appears from the sheriff's return or the recital of consideration in the
trustee's deed that there is a deficiency of sale proceeds and a balance remaining due to the judgment
creditor or the beneficiary of the deed of trust, respectively.

2
Recoupment is a common law remedy designed to avoid the harsh results of a statute of limitations. Stulz v.
Boswell, 453 A.2d 1006, 1009 (Pa.Super.Ct. 1982). Generally, the doctrine of equitable recoupment reduces or
extinguishes any judgment the plaintiff is awarded, but does not allow the defendant to pursue damages in excess
of the plaintiff's judgment award. See, Vari-Build, Inc. v. City of Reno, 622 F.Supp. 97 (D.Nev. 1985).

3
In French Bouquet Flower Shoppe v. Hubert, 106 Nev. 835, 793 P.2d 835 (1990), this court ruled that
swearing of a witness who gives testimony is
Those jurisdictions in favor of tolling generally reason that a primary purpose for a statute
of limitationsto afford parties needed protection against the evidentiary problems
associated with defending stale claimsis negated where the evidence to support the
compulsory counterclaim will be similar or identical to the evidence used to support the
complaint. See Armstrong v. Logsdon, 469 S.W.2d 342 (Ky. 1971); Azada v. Carson, 252
F.Supp. 988 (D.Haw. 1966); Lewis v. Merrill, 365 P.2d 1052 (Or. 1961). Thus, once a party
files an affirmative action, he cannot thereafter profess to be surprised . . . or prejudiced by . .
. compulsory counterclaims that stem from that action. Allie v. Ionata, 503 So.2d 1237, 1240
(Fla. 1987).
However, this analysis does not go far enough. While statutes of limitations are intended
to protect a defendant against the evidentiary problems associated with defending a stale
claim, these statutes are also enacted to promote repose by giving security and stability to
human affairs . . . . They stimulate to activity and punish negligence. Wood v. Carpenter,
101 U.S. 135, 139 (1879). In this case, it is questionable whether stale claims and lost
evidence represent the paramount concern addressed by a three-month statute of limitation.
Since the statute also addresses viable concerns other than stale evidence, it should be
enforced.
[Headnote 4]
Nonetheless, equity is also a consideration, and for this reason, we hold the district court
did not err when it ruled the Bank could assert its deficiency claims in an affirmative defense
of equitable recoupment. Accordingly, we affirm the district court's ruling that a plaintiff, by
instituting an action before the expiration of a statute of limitation, does not toll the running
of that statute against compulsory counterclaims filed by the defendant after the statute
has expired.
__________
sufficient to commence trial and thus toll the limitations period specified in NRCP 41(e) against the complaint.
Similarly, French Bouquet ruled that compulsory counterclaims under these circumstances should not be
dismissed under the statute of limitations.
However, we conclude that there is an important distinction between the ruling in French Bouquet and the
question which asks whether a plaintiff, by instituting an action before the expiration of a statute of limitations,
tolls the running of that statute against compulsory counterclaims filed by the defendant after the statute has
expired. In French Bouquet, the same rule of law was applied equally to all parties, and favored the parties in a
similar fashion. In the case at hand, the parties would not be similarly treated if the court were to rule that the
statute of limitations is tolled against compulsory counterclaims upon the filing of a complaint prior to the
expiration of the statute. Such a ruling from this court would favor the party who neglected to timely file their
claim within the statutory period, and disfavor the party who was careful to file their claim in a timely manner.
Therefore, we conclude that the ruling in French Bouquet is not controlling here.
against compulsory counterclaims filed by the defendant after the statute has expired. We also
affirm the district court's conclusion that while the statute of limitations is not tolled, the
defendant can nonetheless assert his claim as an affirmative defense of recoupment.
B. Estoppel.
Next, the Bank contends the district court erred when it refused to estop the statute of
limitations defense. Here the Bank argues it was induced to detrimentally rely upon the first
complaint filed in this case. We disagree.
[Headnotes 5-7]
Equitable estoppel operates to prevent a party from asserting legal rights that, in equity and
good conscience, they should not be allowed to assert because of their conduct. United
Brotherhood v. Dahnke, 102 Nev. 20, 22, 714 P.2d 177, 178-179 (1986). The defense of
estoppel requires a clear showing that the party relying upon it was induced by the adverse
party to make a detrimental change in position, and the burden of proof is upon the party
asserting estoppel. In Re MacDonnell's Estate, 56 Nev. 504, 508, 57 P.2d 695, 696 (1936).
[Headnote 8]
Since the Bank was never served with the first complaint, but rather answered the
complaint after discovering it through the news media, the Jamisons and Golden Spike did
not induce the Bank's reliance upon that complaint, and the district court did not err when it
elected not to estop the Jamisons and Golden Spike from asserting a statute of limitations
defense. We affirm the district court on this issue as well.
THE BANK'S SECOND CLAIM FOR RELIEF
The Bank alleged in its second counterclaim that sometime between November 8, 1977,
and November 12, 1985, D.I. Jamison breached his fiduciary duty to the Bank by wrongfully
using his position and influence as a member of the Bank's board of directors to obtain a
release of the deed of trust on the Henderson parcel of real property and the 3,439 shares of
Greyhound stock. Pursuant to a motion for partial summary judgment, the district court
dismissed this counterclaim, reasoning that it was barred under a three-year statute of
limitation.
[Headnotes 9-11]
A breach of fiduciary duty is fraud and, therefore, the three-year statute of limitation set
forth in NRS 11.190(3)(d) is applicable. Shupe v. Ham, 98 Nev. 61, 64-65, 639 P.2d 540, 542
{19S2).
(1982). However, the statute of limitation will not commence to run until the aggrieved party
knew, or reasonably should have known, of the facts giving rise to the breach. Id. The Bank
contends it did not discover the evidence indicating the alleged breach of fiduciary duty until
the foreclosure sale. When the plaintiff knew or in the exercise of proper diligence should
have known of the facts constituting the elements of his cause of action is a question of fact
for the trier of fact. Oak Grove Inv., 99 Nev. at 623, 668 P.2d at 1079. We conclude a viable
issue of fact exists regarding when the Bank knew, or reasonably should have known, of the
facts surrounding this breach of fiduciary duty counterclaim and, accordingly, we reverse the
district court's grant of summary judgment on this issue.
THE COMPLAINT'S FIRST AND SECOND CLAIMS FOR RELIEF
Next, the Jamisons and Golden Spike argue that viable issues of fact precluded the district
court's grant of partial summary judgment against the first and claims for relief in the
complaint. We agree.
Proper notice of a foreclosure sale is mandated by NRS 107.080. The Jamisons and
Golden Spike concede that the Bank properly noticed the foreclosure of sale of April 26,
1985, as required by statute. Thereafter, the foreclosure sale was continued by the trustee's
public announcement at the time and place of saleas allowed by the terms of the trust deed,
until the property was eventually sold on November 12, 1985. However, the parties agreed,
and the Bankruptcy Judge ordered, that there would be no further continuances of the
foreclosure sale beyond August 15, 1985, unless agreed to in writing by Nevada State Bank
and the Debtor.
A. The Complaint's First Claim for Relief.
The first claim for relief in the complaint asserts that the sale of the Golden Spike Casino
was not conducted in a commercially reasonable fashion because the Bank failed to properly
notice the trustee's sale of November 12, 1985, as required by NRS 107.080. The allegation
here is that the Bank was prohibited by the stipulation from continuing the trust deed sale
beyond August 15, 1985, by public announcement without an agreement in writing to do so.
Logically, then, the Bank would have to renotice the sale pursuant to statute if they could not
continue it.
[Headnote 12]
However, the district court granted summary judgment against this claim reasoning it did
not specifically allege that the stipulation and order novated the trustee's right to
continue the sale by public announcement.
this claim reasoning it did not specifically allege that the stipulation and order novated the
trustee's right to continue the sale by public announcement. We disagree with the district
court's analysis of this issue.
Nevada is a notice-pleading jurisdiction and pleadings should be liberally construed to
allow issues that are fairly noticed to the adverse party. See NRCP 8(a). See also Hay v. Hay,
100 Nev. 196, 198, 678 P.2d 672, 674 (1984). The first claim for relief sets forth, verbatim,
the relevant portions of the stipulation and order that precluded a continuance of the sale
beyond August 15, 1985, without a written agreement between the parties to do so. The cause
of action specifically states facts that indicate the stipulation and order modified or terminated
the trustee's right to continue the sale by public announcement. This was enough to place the
Bank on notice of the allegation that the trustee's sale of the Golden Spike Casino was
improperly continued and, therefore, was not conducted in a commercially reasonable
fashion. Accordingly, we reverse the district court on this issue.
4

B. The Complaint's Second Claim for Relief.
[Headnote 13]
The district court likewise granted summary judgment against the complaint's second
claim for relief which alleged a breach of the stipulation and order. Here the court reasoned it
was obvious that the sale was postponed until November 12, 1985, at 4:00 p.m., in order to
accommodate plaintiffs and that plaintiffs accepted benefits of the extension and were aware
of all extensions. However, this finding is contradicted by D.I. Jamison's affidavit submitted
in opposition to the cross-motion for summary judgment.
5
"[The] 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."
__________

4
We note, however, that if appellants elect to proceed under their first and second claims for relief, and
succeed in an order invalidating the trustee's sale, the Bank may, in the event of a lawful, subsequent trustee's
sale, pursue its entitlement, if any, to a deficiency judgment in conformity with NRS 40.455.

5
The affidavit says in relevant part:
1. Affiant has been and was the President of the GOLDEN SPIKE CORPORATION, one of the
plaintiffs herein, from September 20, 1977, until the corporation's charter was revoked on September 1,
1986; from the date of incorporation to September 20, 1977, Affiant was Secretary of said corporation . .
. .
2. That prior to November 12, 1985, Affiant was never informed by Nevada State Bank, nor any of
its employees, agents or representatives, that Nevada State Bank's foreclosure of the Golden Spike
Casino was postponed to Tuesday, November 12, 1985, at 4:00 p.m.
3. That prior to November 12, 1985, Affiant was never informed by
[The] 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. Short v.
Hotel Riviera, Inc., 79 Nev. 84, 103, 378 P.2d 979, 984 (1963), quoting 6 Moore, Federal
Practice, 2070. D.I. Jamison's affidavit is not so incredible that it cannot be accepted by
reasonable minds and, consequently, it establishes a genuine issue of fact precluding
summary judgment. Accordingly, we reverse the district court on this issue as well.
____________
106 Nev. 802, 802 (1990) Choose Life Campaign 90' v. Del Papa
CHOOSE LIFE CAMPAIGN 90', an Unincorporated Association; ANN DANKWORTH;
JANNA GARDNER; PAT ROBERTS; MARGARET BUSHMAN; FRANCES
HYNE; SHARRON ANGLE; PAT GLENN; JUDY DALLUGE; MARY ANNE
POLISH; TERRY JENSEN; DIANA HILL; BETTY REYNOLDS; EVA TRIMBLE;
JANINE HANSEN; and JANINE GRIFFIN, as Representatives of said Association
and as Individuals, Residents, Citizens, Taxpayers, and Electors of the State of
Nevada, Appellants, v. FRANKIE SUE DEL PAPA, Secretary of State of Nevada;
and CAMPAIGN FOR CHOICE, A Cooperative Association, Respondents.
No. 21325
November 28, 1990 801 P.2d 1384
Appeal from order dismissing petition for injunctive and other extraordinary relief.
__________
Gregory O. Taylor, Esq., Senior Vice-President and Legal Counsel of Nevada State Bank that Nevada
State Bank's foreclosure sale was postponed to Tuesday, November 12, 1985, at 4:00 p.m.
4. On November 12, 1985, after 4:00 p.m., a local Carson City resident informed Affiant that the
Golden Spike Casino may have been sold.
5. That Affiant contacted Josephine Leverett, Assistant Vice-President of First Commercial Title,
Inc., between 4:30 p.m. and 5:00 p.m. on November 12, 1985, that Ms. Leverett would neither confirm
nor deny that the Golden Spike Casino had been sold.
6. That at approximately 5:00 p.m. on November 12, 1985, Affiant informed the Nevada Gaming
Control authorities that the Golden Spike Casino may have been sold, but that Affiant could not confirm
that fact.
7. That on the morning of November 13, 1985, Affiant contacted Josephine Leverett at First
Commercial Title, Inc., who stated that the foreclosure sale of the Golden Spike Casino had taken place
on November 12, 1985. Later that morning, Gaming Control agents confirmed to Affiant that the Golden
Spike Casino had been sold.
extraordinary relief. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Unincorporated association and seventeen individual taxpayers filed complaint for
injunctive and other relief, alleging that arguments drafted by the secretary of state in favor of
and against passage of referendum were false and misleading. The district court dismissed
complaint, and an appeal was taken. The Supreme Court held that arguments drafted by the
secretary of state for and against referendum asking approval of state statute regulating
abortion, which posed issue in terms of who should decide, rather than in terms of
advisability of placing present statute beyond legislative control, did not fairly represent
arguments of opponents to referendum, and thus secretary of state was directed to delete
arguments.
Writ of mandamus issued; appeal dismissed.
Thorndal, Backus, Maupin & Armstrong and Stephen C. Balkenbush, Reno; Edwards,
Hunt, Hale & Hansen, Las Vegas; Gubler & Peters, Las Vegas, for Appellants.
Brian McKay, Attorney General and Jonathan Andrews, Deputy Attorney General, Carson
City, for Respondent Del Papa.
Laura Wightman FitzSimmons, Carson City, for Respondent Choice.
1. Constitutional Law; Statutes.
Implicit in statute requiring the secretary of state to prepare condensations and explanations for constitutional amendments and
statewide measures proposed by initiative or referendum is requirement that secretary of state make a good faith effort to present
arguments fairly. NRS 293.250, subd. 5.
2. Statutes.
Arguments drafted by the secretary of state for and against referendum asking approval of state statute regulating abortion, which
posed issue in terms of who should decide, rather than in terms of advisability of placing present statute beyond legislative control, did
not fairly represent arguments of opponents to referendum, and thus secretary of state was directed to delete arguments. NRS 293.250,
subd. 5, 442.250.
3. Mandamus.
Writ of mandamus is available to compel performance of an act which the law requires as a duty resulting from office, trust or
station, or to control an arbitrary or capricious exercise of discretion. NRS 34.160.
4. Mandamus.
Writ of mandamus will not issue if petitioner has a plain, speedy and adequate remedy in the ordinary course of the law. NRS
34.170.
OPINION
Per Curiam:
This is an appeal from an order of the district court dismissing appellant's petition for
injunctive and other extraordinary relief.
1

On September 12, 1990, following the oral argument in this appeal, we directed the clerk
of this court forthwith to issue a writ of mandamus compelling the secretary of state to
modify the language of the arguments for and against passage of question 7, the referendum
for approval or disapproval of NRS 442.250, which the secretary of state prepared for
inclusion in the sample ballots. Specifically, we directed the secretary of state to delete the
last complete sentence of the argument for passage of the referendum, and the last complete
sentence of the argument against passage of the referendum. We further directed that such
language not appear in any sample ballot distributed to any voter in the State of Nevada. We
indicated that a formal opinion setting forth the grounds for our decision would be issued at a
later date.
Through the efforts of a cooperative association named Campaign for Choice (Choice),
a referendum was placed on the November general election ballot. It is uncontested that the
referendum was properly placed on the ballot. See Nev. Const. art. 19, 1.
Pursuant to the referendum, the people of the state were asked to approve NRS 442.250, a
state statute regulating abortion adopted by the legislature in 1973 in direct response to the
United States Supreme Court's decision in Roe v. Wade, 410 U.S. 113 (1973). If NRS
442.250 were approved, it would become the law of the state and [could] not be amended,
annulled, repealed, set aside, suspended or in any way made inoperative except by the direct
vote of the people. Nev. Const. art. 19, 1(3). If the statute were disapproved, it would
become void. Id.
2

[Headnote 1]
The secretary of state, after consulting with the attorney general, drafted arguments for and
against the referendum. See NRS 293.250(5).
3
The arguments were released on June 12,
1990.
__________

1
In the district court, appellants did not specify the relief that they sought as extraordinary. However, they
sought to compel the secretary of state to perform an act or to refrain from performing an act. Thus, the relief
they sought was in the nature of injunction, mandamus, and prohibition.

2
At the general election on November 6, 1990, the people approved NRS 442.250.

3
The condensations and explanations for constitutional amendments and statewide measures proposed
by initiative or referendum must be
On July 12, 1990, an unincorporated association entitled Choose Life Campaign 90' and
seventeen individual taxpayers (hereinafter collectively referred to as Life) filed in the
district court a complaint for injunctive and other relief. The complaint named only the
secretary of state as a defendant. Life alleged that the arguments in favor of and against
passage of the referendum drafted by the secretary of state were false and misleading, and did
not correctly reflect the arguments of [Life] or any other person opposed to the referendum .
. . .
On July 19, 1990, Choice moved the district court for leave to intervene in the action as a
defendant. Choice also moved to dismiss Life's complaint.
On July 20, 1990, the district court held a hearing on the pending motions. At the hearing,
the district court orally granted Choice's motion to intervene. The district court then indicated
its intention to grant Choice's motion to dismiss. The district court concluded that the only
issue properly before it was whether the statutory procedure for placing arguments for and
against a referendum on the sample ballot violated Life's right to due process. The district
court determined there had been no violation of Life's due process rights and that NRS
293.250(5) is not unconstitutional on its face.
On July 23, 1990, the district court dismissed Life's complaint for the reasons expressed
orally at the hearing of July 20, 1990. This timely appeal followed.
[Headnote 2]
In this appeal, Life did not challenge the referendum on November's ballot. Instead, Life
challenged the secretary of state's proposed arguments for and against passage of the
referendum which, absent judicial intervention, would have been printed on the sample
ballots mailed to every registered voter, and would have been published in the newspapers of
every county. Specifically, Life contended that the arguments for and against passage of the
referendum were false and misleading, and did not represent the views of the opponents
to the referendum.4
__________
prepared by the secretary of state, upon consultation with the attorney general. They must be in easily
understood language and of reasonable length, and whenever feasible must be completed by April 1 of
the year in which the general election is to be held.
NRS 293.25(4) provides that the arguments drafted by the secretary of state must be included on all sample
ballots. No other provisions with respect to the preparation or content of the arguments for and against a
referendum are provided. Nevertheless, implicit in the statute is the requirement that the secretary of state make
a good faith effort to present the arguments fairly.
of the referendum were false and misleading, and did not represent the views of the
opponents to the referendum.
4

The last line of the proposed argument against the referendum state: The legislature and
not the people of Nevada should decide how abortion is to be regulated. The corresponding
last line of the argument in favor of passage stated: The people of Nevada and not the
legislature should decide how abortion is to be regulated.
These arguments were misleading because it was not the position of Life or any opponent
of the referendum that the people should not be allowed to decide how abortion will be
regulated in Nevada. The arguments were particularly unfair because they appealed to the
natural tendency in people to want to be in control, and misrepresented the role of the
legislature in our system of government.
Nevertheless, respondents asserted that the language was fair and balanced. Counsel stated
that Choice commenced this referendum for the sole purpose of taking from the legislature
and reserving to the people the power to regulate the right to an abortion. Thus, respondents
argued that the central issue in this matter was who should decide.
By definition, every referendum seeks to take from the legislature and reserve to the
people the power to change an existing law. See Nev. Const. art. 19, 1. Thus, the purpose of
every referendum is to decide whether an existing law should be placed beyond legislative
control. It does not follow, however, that the issue in every referendum is whether the
legislature or the people should decide how a particular matter will be regulated.
Had the present law not favored the position of Choice, and had Life commenced a
referendum to place that law beyond legislative control, Choice would most certainly have
considered an argument posing the issue as a question of who should decide as false,
misleading and unfair to its position. Although Choice would most certainly favor
regulation by the people rather than by the legislature, Choice would be opposed to the
referendum.
__________

4
In the district court, Life challenged as misleading every word of the argument against passage of the
referendum. In this court, Life's arguments focused on only two sentences in the argument against passage, the
first and the last. At oral argument in this matter, counsel for Life stated that Life would be satisfied if this court
required only the last lines of the arguments for and against passage of the referendum altered. Although the
argument against passage of the referendum certainly could have been better drafted to more accurately and
fairly express the views of the opponents to the referendum, we do not consider the text, other than the last lines
of the arguments for and against the referendum, to be so misleading as to warrant judicial intervention. Thus,
we have confined our discussion in this opinion to the final lines of the arguments for and against the
referendum.
would most certainly favor regulation by the people rather than by the legislature, Choice
would be opposed to the referendum.
The arguments drafted by the secretary of state, posing the issue in terms of who should
decide, rather than in terms of the advisability of placing the present law of the state beyond
legislative control, did not fairly represent the arguments of the opponents to the referendum.
Thus, under the circumstances of this case, it was inappropriate for the secretary of state to
include these arguments in the proposed language of the sample ballots.
[Headnotes 3, 4]
A writ of mandamus is available to compel the performance of an act which the law
requires as a duty resulting from an office, trust or station, NRS 34.160, or to control an
arbitrary or capricious exercise of discretion. See Hickey v. District Court, 105 Nev. 494, 782
P.2d 1336 (1989); Barnes v. District Court, 103 Nev. 679, 748 P.2d 483 (1987); Round Hill
Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981); Russell v. Thompson, 96
Nev. 830, 619 P.2d 537 (1980); Henderson v. Henderson Auto, 77 Nev. 118, 359 P.2d 743
(1961). A writ of mandamus will not issue, however, if the petitioner has a plain, speedy and
adequate remedy in the ordinary course of the law. See NRS 34.170.
In this case, due to the impending election, appellants had no effective remedy in the
ordinary course of the law. Further, this matter involved an issue of great importance that has
engendered controversy and has split the people of this state. It was necessary, therefore, that
the election on this issue proceed in a fair and representative manner. Finally, as concluded
above, the arguments drafted by the secretary of state did not fairly represent the issues to be
decided.
Accordingly, under the peculiar circumstances of this case, on September 12, 1990, this
court issued a writ of mandamus compelling the secretary of state to correct the injustice that
might have resulted from dissemination of the proposed arguments in favor of and against
question 7 on the November ballot.
We have reviewed appellants' remaining contentions, and we conclude that they lack
merit. In light of this court's order of September 12, 1990, we dismiss this appeal.
____________
106 Nev. 808, 808 (1990) McKay v. Bergstedt
D. BRIAN McKAY, Attorney General, State of Nevada, Appellant, v. KENNETH A.
BERGSTEDT, Respondent/Cross-Appellant, v. REX A. BELL, District Attorney of
Clark County, Nevada, Cross-Respondent.
No. 21207
November 30, 1990 801 P.2d 617
Appeal from a declaratory judgment permitting respondent to terminate life-sustaining
medical treatment. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Quadriplegic petitioned for order permitting removal of respirator by one who could
administer sedative and granting immunity from civil or criminal liability for anyone
providing assistance. The district court confirmed right to die. Attorney General appealed, but
offered only token adversarial stance. The Supreme Court, Steffen, J., held that quadriplegic's
right to withdraw respirator outweighed State interests.
Affirmed.
Donald H. Haight, Deputy Attorney General, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy, Jemison & List, Jack C. Cherry and Daniel F. Polsenberg,
Las Vegas, for Respondent/Cross-Appellant.
Janson F. Stewart, Chief Deputy District Attorney, Clark County, for Cross-Respondent.
Importance of resolving issues concerning right to die asserted by quadriplegic who was dependent on respirator justified review of
case despite quadriplegic's death.
2. Physicians and Surgeons.
Right to refuse medical treatment is not absolute.
Privacy right in federal or state constitution is not basis for refusing or withdrawing medical treatment and support.
Due process liberty interest is fundamental constitutional value implicated in right to die cases. U.S.C.A.Const. Amends. 5, 14;
Const. art. 1, 8.
Quadriplegic's request to be relieved of his respirator implicated due process liberty interest under federal and state
constitutions.
process liberty interest under federal and state constitutions. U.S.C.A.Const. Amends. 5, 14; Const. art. 1, 8.
6. Constitutional Law; Physicians and Surgeons.
Common law right to refuse treatment and due process liberty interest are not absolute and are subject to balancing of relevant
state interests. U.S.C.A.Const. Amends. 5, 14; Const. art. 1, 8.
State's interest in preserving life, such as that of quadriplegic dependent on respirator, was fundamental and compelling, but was
not absolute.
Individual's right to refuse treatment or discontinue artificial life support will generally outweigh State's interest in preserving life,
if adult is competent, is irreversibly sustained or subject to being sustained by artificial life support systems or some form of heroic,
radical medical treatment, and is enduring physical and mental pain and suffering.
Common law right to refuse medical treatment and due process liberty interest of thirty-one-year-old, competent quadriplegic, who
was dependent on respirator, outweighed State's interest in preserving life, preventing suicide, protecting innocent third persons, and
preserving integrity of medical profession; although able to read, watch television, and orally operate computer, quadriplegic feared
quality of life following imminently expected death of his only surviving parent and sought removal from respirator and sedative to
ease pain; and State essentially agreed with petition and offered only token adversarial stance on appeal. U.S.C.A.Const. Amends. 5,
14; Const. art. 1, 8.
Due process liberty interest of physically healthy person who views life as unbearably miserable because of mental state would
provide no basis for asserting right to terminate life with or without assistance of others; societal regard for value of individual life, as
reflected in federal and state constitutions, would never countenance assertion of liberty over life under such circumstances.
U.S.C.A.Const. Amends. 5, 14; Const. art. 1, 8.
State has no overriding interest in interfering with natural processes of dying among citizens whose lives are irreparably devastated
by injury or illness to point where life may be sustained only by contrivance or radical intervention; in those situations only competent
adult patient can determine extent to which artificially extended life has meaning and value in excess of the death value.
Because State has interest in preserving life and preventing suicide, circumstances such as attitude or motive of patient must be
considered in evaluating exercise of due process liberty interest in dying or common law right to refuse medical treatment.
If competent adult is beset with irreversible condition such as quadriplegia, where life must be sustained artificially and under
circumstances of total dependence, adult's attitude or motive may be presumed not to be suicidal when adult exercises due
process liberty interest or common law right to refuse treatment.
not to be suicidal when adult exercises due process liberty interest or common law right to refuse treatment. U.S.C.A.Const. Amends.
5, 14; Const. art. 1, 8.
14. Suicide.
Declining life sustaining medical treatment is not attempt to commit suicide; refusing medical intervention merely allows disease
or effect of injury to take natural course; and if death were to eventually occur, it would be result primarily of underlying disease or
injury, not result of self-inflicted injury.
State has duty to insure that integrity of medical profession is preserved and that it is never allowed to become instrument for
selective destruction of lives deemed to have little utility.
Informing quadriplegic of available care alternatives after feared, imminent death or incapacity of his only parent would have been
necessary before withdrawing respirator.
Physicians and health care providers are immune from criminal or civil liability when following, in good faith, Supreme Court's
procedures for assisting competent adult patient who desires to refuse or discontinue medical treatment, unless physician or provider
commits fraud by deliberately seeking to accomplish termination of life for unlawful reasons.
Clear and convincing evidence is necessary to support claim of fraud by physician or health care provider deliberately terminating
life of competent adult patient desiring to refuse or discontinue medical treatment.
If competent adult patient desires to refuse or discontinue medical treatment, two non-attending physicians must examine patient
to determine and certify in writing that patient is mentally competent, was apprised of treatment alternatives and consequences,
suffered irreversible condition, is or reasonably appears to be free of coercion or pressure, and, if patient has estimated life expectancy
of six months or more with or without artificial life support, was apprised of care options available through governmental, charitable,
and private sources.
Due process and common law rights of self-determination of terminally ill or injured patient, i.e., patient with estimated remaining
natural life expectancy of less than six months with or without artificial life support, are deemed to prevail over State interest, and
patient may refuse treatment or elect termination of existing therapy after requirement of certification by two non-attending physicians
is satisfied. U.S.C.A.Const. Amends. 5, 14; Const. art. 1, 8.
District court judge is to perform weighing of State interests against right to refuse treatment or withdraw existing medical therapy
for competent, adult patient who is not terminally ill or injured, i.e., has prognosis for natural survival in excess of six months with or
without life support.
Decision of district court judge that competent adult patient who is not terminally ill may refuse treatment or
withdraw existing medical therapy is not subject to appeal, but appeal is permitted if district judge
determines that interests of State outweighed patient's rights.
not terminally ill may refuse treatment or withdraw existing medical therapy is not subject to appeal, but appeal is permitted if district
judge determines that interests of State outweighed patient's rights.
District court order in favor of competent adult patient seeking to refuse treatment or withdraw existing therapy must specify that
any physician or health care provider assisting patient in receiving benefits of decision with minimal pain is not subject to civil or
criminal liability.
Patient's right to be free from pain at time that ventilator or other life support system is disconnected is inseparable from right to
refuse medical treatment.
Written certifications provided by two non-attending physicians has same force and effect as order of district court with respect to
request of terminally ill, competent adult patient to refuse treatment or to withdraw existing therapy.
26. Suicide.
Petition of competent adult quadriplegic to be humanely relieved of respirator was not prelude to suicide.
OPINION
Kenneth Bergstedt was a thirty-one-year-old mentally competent quadriplegic who sought
to vindicate on appeal the lower court's decision confirming his right to die. Convinced that
Kenneth's position has merit, we affirm.
1

[Headnote 1]
Prefatorily, we note that the State has essentially agreed with Kenneth's petition and has
accordingly assumed only a token adversarial stance on appeal. Ordinarily, this court would
deny appellate review to an appeal so lacking in controversy, especially where the intervening
death of the petitioner forecloses the possibility of granting the relief sought. Nevertheless,
we have concluded that the issues before us are of such importance to the citizens of this
State that an appellate resolution is virtually compelled.
__________

1
Despite this court's efforts to expedite the disposition of this appeal, Kenneth did not survive the process.
As a result, we have revised certain aspects of the opinion to reflect changes necessitated by what we consider to
be the tragic and untimely demise of a young man who had managed to create a modicum of quality in a life
devastated by quadriplegia and total dependence on artificial respiration and the care of others. We also note that
Kenneth's fear of being left at the mercy of strangers would now present an added challenge to the struggle for
quality in his life if he had survived, as his devoted and caring father passed away within a matter of days after
Kenneth's death.
compelled. In that regard, our perception of duty is shared by other courts faced with issues of
similar nature and magnitude in an appellate environment lacking in controversy and the
existence of a live supplicant. The Supreme Court of Georgia, in State v. McAfee, 385 S.E.2d
651 (Ga. 1989), decided a case involving a ventilator-dependent quadriplegic under
circumstances where the state concluded there was no basis for opposing McAfee's right to
refuse treatment. In Matter of Farrell, 529 A.2d 404 (N.J. 1987), and Bartling v. Super. Ct.
(Glendale Adven. Med.), 163 Cal.App.3d 186 (Cal.Ct.App. 1984), the courts concluded that
the issues involving the right to die were of such extreme importance that appellate
jurisdiction would be exercised despite the intervening death of appellants. For the reasons
stated, we elect to review and decide the issues presented by this appeal.
FACTUAL BACKGROUND
At the tender age of ten, Kenneth suffered the fate of a quadriplegic as the result of a
swimming accident. Twenty-one years later, faced with what appeared to be the imminent
death of his ill father, Kenneth decided that he wanted to be released from a life of paralysis
held intact by the life-sustaining properties of a respirator. Although Kenneth was able to
read, watch television, orally operate a computer, and occasionally receive limited enjoyment
from wheelchair ambulation, he despaired over the prospect of life without the attentive care,
companionship and love of his devoted father.
The limited record before us reflects substantial evidence of facts relevant to the
proceedings below and material to the framework upon which the resolution of this appeal is
constructed. First, a board-certified neurosurgeon determined that Kenneth's quadriplegia was
irreversible. Second, a psychiatrist examined Kenneth and found him to be competent and
able to understand the nature and consequences of his decision. Third, Kenneth arrived at his
decision after substantial deliberation. Fourth, Kenneth's trusted and devoted father
understood the basis for his son's decision and reluctantly approved. Fifth, although Kenneth's
quadriplegia was irreversible, his affliction was non-terminal so long as he received artificial
respiration.
Kenneth thus petitioned the district court as a non-terminal, competent, adult quadriplegic
for an order permitting the removal of his respirator by one who could also administer a
sedative and thereby relieve the pain that would otherwise precede his demise. Kenneth also
sought an order of immunity from civil or criminal liability for anyone providing the
requested assistance. Additionally, he petitioned the court for a declaration absolving him of
suicide in the removal of his life-support system.
absolving him of suicide in the removal of his life-support system.
In ruling, the district court determined that Kenneth was a mentally competent adult fully
capable of deciding to forego continued life connected to a respirator. The court also found
that he understood that the removal of his life-support system would shortly prove fatal.
In concluding that Kenneth had a constitutional privacy right to discontinue further
medical treatment, the court also ruled that given Kenneth's condition, judicial recognition of
the primacy of his individual rights posed no threat to the State's interest in preserving life,
adversely affected no third parties, and presented no threat to the integrity of the medical
profession. The district court thus concluded that Kenneth was entitled to the relief sought.
DISCUSSION
I
Our research revealed five cases involving decisions by competent adults to discontinue
the use of life-support systems. Two of the five cases were brought by petitioners who were
terminally ill. The other three actions, like the instant case, involved non-terminal, competent
adults who were dependent upon artificial life support systems. Relief was granted in each of
the five cases, albeit posthumously in two of the cases where petitioners had died before their
appeals were decided.
One of the verities of human experience is that all life will eventually end in death. As the
seasons of life progress through spring, summer and fall, to the winter of our years, the
expression unknown to youth is often heard evincing the wish to one night pass away in the
midst of a peaceful sleep. It would appear, however, that as the scientific community
continues to increase human longevity and promote the greying of America, prospects for
slipping away during peaceful slumber are decreasing. And, for significant numbers of
citizens like Kenneth, misfortune may rob life of much of its quality long before the onset of
winter.
Because many individuals find themselves facing a terminal condition susceptible to
indefinite suspension by medical intervention, the question arises with increasing frequency
and fervor concerning the extent to which persons have the right to refuse an artificial
extension of life. Courts considering the question have basically agreed that the answer is to
be found in the balancing of interests between the person in extremis and the State. On the
other hand is the interest of the individual in determining the extent to which he or she is
willing to have a devastated life continued artificially or by radical medical treatment.
artificially or by radical medical treatment. On the other hand, courts agree that the State has
several interests of significance that must be weighed in determining whether the rights of the
individual should prevail. Those interests have generally been defined as: (1) the interest of
the State in preserving the sanctity of all life, including that of the particular patient involved
in a given action; (2) the interest of the State in preventing suicide; (3) the interest of the State
in protecting innocent third persons who may be adversely affected by the death of the party
seeking relief; and (4) the State's interest in preserving the integrity of the medical profession.
We add to the list of State interests, a fifth concern which is the interest of the State in
encouraging the charitable and humane care of those whose lives may be artificially extended
under conditions which have the prospect of providing at least a modicum of quality living.
[Headnote 2]
Under the common law, [n]o right is held more sacred, or is more carefully guarded . . .
than the right of every individual to the possession and control of his own person, free from
all restraint or interference of others, unless by clear and unquestionable authority of law.
Cruzan v. Director, Missouri Department of Health,
------
U.S.
------
, 110 S.Ct. 2841, 2846
(1990) (quoting Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891)). Continuing, the
Cruzan court declared that [t]his notion of bodily integrity has been embodied in the
requirement that informed consent is generally required for medical treatment. Id. The
corollary embodied in the right of informed consent is the right to refuse the proffered
medical treatment or regimen irrespective of consequences. See Bartling, 163 Cal.App.3d at
194. Obviously, if a patient is powerless to decline medical treatment upon being properly
informed of its implications, the requirement of consent would be meaningless. We
nevertheless agree with other courts which have held that the right to refuse medical
treatment is not absolute. See Satz v. Perlmutter, 362 So.2d 160, 162 (Fla.App. 1978); State v.
McAfee, 385 S.E.2d at 652; Cruzan, By Cruzan v. Harmon, 760 S.W.2d 408, 421 (Mo. 1988)
(en banc); Matter of Farrell, 529 A.2d at 410. Courts have consistently balanced the
fundamental right of the individual to refuse medical treatment against the four state interests
enumerated above. See, e.g., Bouvia v. Superior Court, 179 Cal.App.3d 1127 (Cal.Ct.App.
1986); Bartling v. Super. Ct. (Gendale Adven. Med.), 163 Cal.App.3d at 186; Satz v.
Perlmutter, 362 So.2d at 160; State v. McAffee, 385 S.E.2d at 651; Superintendent of
Belchertown v. Saikewicz, 370 N.E.2d 417 (Mass. 1977); Cruzan, By Cruzan v. Harmon,
------
U.S.
------
, 110 S.Ct. at 2841; Matter of Farrell, 529 A.2d at 404.
[Headnotes 3-5]
Additionally, most courts considering issues involving the so-called right to die have held
that individuals have a fundamental constitutional privacy right to withhold or withdraw
medical treatment and support that would prolong the process of dying. See, e.g., Rasmussen
by Mitchell v. Fleming, 741 P.2d 674 (Ariz. 1987); Bouvia v. Superior Court, 179
Cal.App.3d at 1127; Bartling v. Super. Ct. (Glendale Adven. Med.), 163 Cal.App.3d at 186;
In re Guardianship of Barry, 445 So.2d 365 (Fla.Dist.Ct.App. 1984); Superintendent of
Belchertown v. Saikewicz, 370 N.E.2d at 417; Matter of Quinlan, 355 A.2d 647 (N.J. 1976);
Matter of Welfare of Colyer, 660 P.2d 738 (Wash. 1983). We do not perceive a privacy right
in either our federal or state constitution as a basis for refusing or withdrawing medical
treatment and support. However, we do agree with the United States Supreme Court in
Cruzan that a person's liberty interest is the fundamental constitutional value implicated in
right to die cases. See Cruzan, 110 S.Ct. at 2851 n.7. Indeed, the Cruzan court noted that
[t]he principle that a competent person has a constitutionally protected liberty interest in
refusing unwanted medical treatment may be inferred from our prior decisions. Cruzan, 110
S.Ct. at 2851. Article 1, section 8 of the Constitution of the State of Nevada tracks the
Fourteenth Amendment of the United States Constitution in protecting its citizens against
deprivation of their right to liberty without due process of law. We conclude that Kenneth's
liberty interest under both the federal and Nevada constitutions was implicated in his request
to be relieved of his respirator.
[Headnote 6]
The Cruzan court also noted that an individual's liberty interest in refusing medical
treatment is not necessarily dispositive. Declaring that the inquiry does not end with the
determination that a person has a liberty interest under the Due Process Clause, the Court held
that whether respondent's constitutional rights have been violated must be determined by
balancing his liberty interests against the relevant state interests. Cruzan, 110 S.Ct. at
2851-52 (quoting Youngberg v. Romeo, 457 U.S. 307, 321 (1982)). It is thus seen that under
both the common law right to refuse treatment and an individual's constitutionally protected
liberty interest, such rights are not absolute and are subject to a balancing of relevant State
interests.
II
Turning, as we must, to the legitimate interests of the State, we now balance those
interests against Kenneth's constitutional liberty interest and common law right of
self-determination, and we do so for decisional purposes despite Kenneth's death.
now balance those interests against Kenneth's constitutional liberty interest and common law
right of self-determination, and we do so for decisional purposes despite Kenneth's death.
[Headnote 7]
1. The interest of the State in preserving life. The State's interest in preserving life is both
fundamental and compelling. Indeed, it constitutes a basic purpose for which governments are
formed. Nevertheless, the State's interest in the preservation of life is not absolute. For
example, state-sponsored executions may constitute an exception to the duty to preserve life
for a complex of reasons ranging from an emphasis on the value of the lives of innocent
victims to the necessity of maintaining an orderly society where the quality of life is of
preeminent concern. Moreover, as the quality of life diminishes because of physical
deterioration, the State's interest in preserving life may correspondingly decrease. However,
the State's attenuated interest does not evince a lesser appreciation for the value of life as the
physical being deteriorates, but rather a recognition of the fact that all human life must
eventually succumb to the aging process or to intervening events or conditions impacting the
health of an individual. Moreover, an interest in the preservation of life at all costs is
demeaning to death as a natural concomitant of life. Despite its frightening aspects, death has
important values of its own. It may come as welcome relief to prolonged suffering. It may end
the indignities associated with life bereft of self-determination and cognitive activity. In the
mind of some, it may satisfy longings for loved ones preceding them in death. In short, death
is a natural aspect of life that is not without value and dignity.
Courts have recognized that persons may reach a condition in life where the individual
preference for a natural death may have greater primacy than the State's interest in preserving
life through artificial support systems. Although we would have stated it differently, the court
in Matter of Conroy, 486 A.2d 1209 (N.J. 1985), declared that [i]n cases that do not involve
the protection of the actual or potential life of someone other than the decision-maker, the
state's indirect and abstract interest in preserving the life of the competent patient generally
gives way to the patient's much stronger personal interest in directing the course of his own
life. Id. at 1223. We do not view the State's interest in preserving the life of a competent
patient as either abstract or indirect. It remains, in our view, not only compelling and
fundamental, but focused and direct as well. The State's interest in preserving all human life,
including that of the particular patient, should not be suspended or minimized under any
conditions. We nevertheless agree with the court in Satz v. Perlmutter that [t]here can be no
doubt that the State does have an interest in preserving life, but . . . 'there is a substantial
distinction in the State's insistence that human life be saved where the affliction is
curable, as opposed to the State interest where, as here, the issue is not whether, but
when, for how long and at what cost to the individual [his] life may be briefly extended.'"
Perlmutter, 362 So.2d at 162 {quoting from Superintendent of Belchertown v. Saikewicz,
370 N.E.2d 417, 425-26 {Mass.
doubt that the State does have an interest in preserving life, but . . . there is a substantial
distinction in the State's insistence that human life be saved where the affliction is curable, as
opposed to the State interest where, as here, the issue is not whether, but when, for how long
and at what cost to the individual [his] life may be briefly extended.' Perlmutter, 362 So.2d
at 162 (quoting from Superintendent of Belchertown v. Saikewicz, 370 N.E.2d 417, 425-26
(Mass. 1977)). In Perlmutter, however, the competent adult patient was terminally ill with a
prognosis of a short remaining life even while connected to a respirator. Kenneth, of course,
was not terminally ill despite his dependence on the respirator. The Perlmutter ruling is
therefore of limited value to the instant case.
In both Bouvia and Bartling the adult patients were, as here, non-terminal and competent.
2
The Bartling court disposed of the right to die issue with little comment other than to
recognize the preeminence of the patient's constitutional privacy right. We therefore do not
regard Bartling as persuasive authority. Bouvia, however, discusses in some detail its
justification for recognizing the petitioner's right to decide over the state's interest in
preserving life. In pertinent part, the Bouvia court stated:
At bench the trial court concluded that with sufficient feeding petitioner could live
an additional 15 to 20 years; therefore, the preservation of petitioner's life for that
period outweighed her right to decide. In so holding the trial court mistakenly attached
undue importance to the amount of time possibly available to petitioner, and failed to
give equal weight and consideration for the quality of that life; an equal, if not more
significant, consideration.
. . . .
If her [Bouvia's] right to choose may not be exercised because there remains to her, in
the opinion of a court, a physician or some committee, a certain arbitrary number of
years, months, or days, her right will have lost its value and meaning.
Who shall say what the minimum amount of available life must be? Does it matter if
it be 15 to 20 years, 15 to 20 months, or 15 to 20 days, if such life has been physically
destroyed and its quality, dignity and purpose gone? As in all matters lines must be
drawn at some point, somewhere, but the decision must ultimately belong to the one
whose life is in issue.
__________

2
Although the petitioner William Bartling was not diagnosed as terminal, he nevertheless expired before the
hearing on his petition. His death was apparently due to natural causes.
Here Elizabeth Bouvia's decision to forego medical treatment or life-support through
a mechanical means belongs to her. It is not a medical decision for her physicians to
make. Neither is it a legal question whose soundness is to be resolved by lawyers or
judges. It is not a conditional right subject to approval by ethics committees or courts of
law. It is a moral and philosophical decision that, being a competent adult, is her's [sic]
alone.
. . . .
We do not believe it is the policy of this State that all and every life must be preserved
against the will of the sufferer. It is incongruous, if not monstrous, for medical
practitioners to assert their right to preserve a life that someone else must live, or, more
accurately, endure, for 15 to 20 years. we cannot conceive it to be the policy of this
State to inflict such an ordeal upon anyone.
Bouvia, 179 Cal. App.2d at 1142-44.
[Headnote 8]
Although we may have a difference of opinion over some of the statements quoted above
from Bouvia, we do believe that at some point in the life of a competent adult patient, the
present or prospective quality of life may be so dismal that the right of the individual to refuse
treatment or elect a discontinuance of artificial life support must prevail over the interest of
the State in preserving life. In instances where the prospects for a life of quality are smothered
by physical pain and suffering, only the sufferer can determine the value of continuing
mortality. We therefore conclude that in situations involving adults who are: (1) competent;
(2) irreversibly sustained or subject to being sustained by artificial life support systems or
some form of heroic, radical medical treatment; and (3) enduring physical and mental pain
and suffering, the individual's right to decide will generally outweigh the State's interest in
preserving life.
[Headnote 9]
On the assumption that Kenneth would survive the issuance of this opinion, we reviewed
his record carefully in an effort to sensitively analyze the circumstances under which he lived
and the reasons that prompted him to seek a judicial imprimatur of his decision to disconnect
his respirator. It appeared that Kenneth's suffering resulted more from his fear of the unknown
than any source of physical pain. After more than two decades of life as a quadriplegic under
the loving care of parents, Kenneth understandably feared for the quality of his life after the
death of his father, who was his only surviving parent.3 Although Kenneth completed
elementary and high school through private tutoring, study and telephone communication
with his teachers, and wrote poetry and otherwise lived a useful and productive life, his
physical condition was dire.
father, who was his only surviving parent.
3
Although Kenneth completed elementary and
high school through private tutoring, study and telephone communication with his teachers,
and wrote poetry and otherwise lived a useful and productive life, his physical condition was
dire. His quadriplegia left him not only ventilator-dependent, but entirely reliant on others for
his bodily functions and needs. His limited sources of entertainment, including reading,
watching television and writing poetry through the oral operation of a computer, also required
the attentive accommodations of others. Since the death of his mother in 1978, all of these
services were provided by his father and attending nurses occasionally called to the home.
It thus appears, and the record so reflects, that Kenneth was preoccupied with fear over the
quality of his life after the death of his father. He feared that some mishap would occur to his
ventilator without anyone being present to correct it, and that he would suffer an agonizing
death as a result. In contemplating his future under the care of strangers, Kenneth stated that
he had no encouraging expectations from life, did not enjoy life, and was tired of suffering.
Fear of the unknown is a common travail even among those of us who are not imprisoned by
paralysis and a total dependency upon others. There is no doubt that Kenneth was plagued by
a sense of foreboding concerning the quality of his life without his father.
Someone has suggested that there are few greater sources of fear in life than fear itself. In
Kenneth's situation it is not difficult to understand why fear had such an overriding grasp on
his view of the quality of his future life. Given the circumstances under which he labored to
survive, we could not substitute our own judgment for Kenneth's when assessing the quality
of his life. We therefore conclude that Kenneth's liberty interest in controlling the extent to
which medical measures were used to continue to sustain his life and forestall his death
outweighed the State's interest in preserving his life. As a competent adult beset by conditions
noted above, Kenneth also enjoyed a preeminent right under the common law to withdraw his
consent to a continued medical regimen involving his attachment to a respirator. In so ruling,
we attach great significance to the quality of Kenneth's life as he perceived it under the
particular circumstances that were afflicting him.
Notwithstanding our ruling on this issue, we note that if Kenneth had survived, our
concerns under the fifth State interest discussed hereafter, would have had to be satisfied
prior to Kenneth's withdrawal of his life support system.
__________

2
Kenneth was adopted by Robert and Mildred Bergstedt shortly after his birth. Mildred died of cancer in
1978. Kenneth never attempted to discover the identity or whereabouts of his natural parents.
discussed hereafter, would have had to be satisfied prior to Kenneth's withdrawal of his life
support system.
2. The interest of the State in preventing suicide. Controversy continues to rage over this
semantics-laden issue. Opponents of Kenneth's position describe it in terms of a
state-sponsored suicide. Our research reveals no court declaring it so. We nevertheless
recognize the controversy as a healthy concern for the value of an individual life.
The dictionary definition of suicide is the act or an instance of taking one's own life
voluntarily and intentionally; the deliberate and intentional destruction of his own life by a
person of years of discretion and of sound mind; one that commits or attempts self-murder.
Webster's Third New International Dictionary (1968). As we will attempt to show, Kenneth
harbored no intent to take his own life, voluntarily or otherwise. He did not seek his own
destruction and he most certainly eschewed self-murder, a fact made evident by his petition to
the district court for an order declaring that the exercise of his right to decide would not
amount to an act of suicide.
[Headnote 10]
It is beyond cavil in one sense, that Kenneth was taking affirmative measures to hasten his
own death. It is equally clear that if Kenneth had enjoyed sound physical health, but had
viewed life as unbearably miserable because of his mental state, his liberty interest would
provide no basis for asserting a right to terminate his life with or without the assistance of
other persons. Our societal regard for the value of an individual life, as reflected in our
federal and state constitutions, would never countenance an assertion of liberty over life
under such circumstances.
It must nevertheless be conceded, as noted above, that death is a natural end of living.
There are times when its beckoning is sweet and benevolent. Most would consider it
unthinkable to force one who is wracked with advanced, terminal, painful cancer to require a
therapy regimen that would merely prolong the agony of dying for a brief season. In allowing
such a patient to refuse therapy could it seriously be argued that he or she is committing an
act of suicide?
The informed consent doctrine presupposes that persons faced with difficult medical
decisions that will, at best, substantially alter the quality of their future lives, may elect to
refuse treatment and let the processes of nature take their course. Few would conclude that
exercising the right to refuse treatment would be tantamount to suicide. Such persons have
not sought to contract the disease or condition that threatens both the quality and duration of
their lives. Rather, they have evaluated their circumstances and determined that a future
sustained by radical medical treatment or artificial means and entailing a drastic decrease
in the quality of their lives, is not a valued alternative despite its effectiveness in
extending life or delaying death.
treatment or artificial means and entailing a drastic decrease in the quality of their lives, is not
a valued alternative despite its effectiveness in extending life or delaying death. Moreover, we
see no difference between the patient who refuses treatment and the one who accepts
treatment and later refuses its continuance because of a resulting loss in the quality of life.
The primary factors that distinguish Kenneth's type of case from that of a person desiring
suicide are attitude, physical condition and prognosis. Unlike a person bent on suicide,
Kenneth sought no affirmative measures to terminate his life; he desired only to eliminate the
artificial barriers standing between him and the natural processes of life and death that would
otherwise ensue with someone in his physical condition. Kenneth survived artificially within
a paralytic prison from which there was no hope of release other than death. But he asked no
one to shorten the term of his natural life free of the respirator. He sought no fatal potions to
end life or hurry death. In other words, Kenneth desired the right to die a natural death
unimpeded by scientific contrivances.
Justice Scalia's concurring opinion in Cruzan suggests that insofar as balancing the
relative interests of the State and the individual is concerned, there is nothing distinctive
about accepting death through the refusal of medical treatment,' as opposed to accepting it
through the refusal of food, or through the failure to shut off the engine and get out of the car
after parking in one's garage after work. Cruzan, 110 S.Ct. at 2862. We respectfully disagree
with the learned justice. The distinction between refusing medical treatment and the other
scenarios presented by Justice Scalia is the difference between choosing a natural death
summoned by an uninvited illness or calamity and deliberately seeking to terminate one's life
by resorting to death-inducing measures unrelated to the natural process of dying.
Impliedly, Justice Scalia's last two hypotheticals involved persons who were ambulatory
and able to survive without artificial intervention. If they were physically healthy, society's
respect for human life demanded that the State prevent, if possible, their deaths by suicide.
There was no need to present either person with life-extending medical options, and both
enjoyed the prospect of mental rehabilitation that might restore the will to live. There is a
significant distinction between an individual faced with artificial survival resulting from
heroic medical intervention and an individual, otherwise healthy or capable of sustaining life
without artificial support who simply desires to end his or her life. The former adult, if
competent, exercises a judgment based upon an assessment of the quality of an artificially
maintained life vis-a-vis the quality of a natural death.
vis-a-vis the quality of a natural death. Conversely, the latter acts from a potentially reversible
pessimism or mental attitude concerning only the quality of life.
[Headnote 11]
We are not deciding competing interests between a nonexistent right to choose suicide and
the interest of the State in preserving life. The State's interest in the preservation of life relates
to meaningful life. Insofar as this State's interest is concerned, the State has no overriding
interest in interfering with the natural processes of dying among citizens whose lives are
irreparably devastated by injury or illness to the point where life may be sustained only by
contrivance or radical intervention. In situations such as Kenneth's, only the competent adult
patient can determine the extent to which his or her artificially extended life has meaning and
value in excess of the death value.
[Headnotes 12, 13]
Other courts have consistently agreed that rejecting treatment in the form of artificial
life-support systems is not a euphemistic exercise in suicide. See, e.g., Bouvia v. Superior
Court, 179 Cal.App.2d at 1144; Bartling v. Superior Court, 163 Cal.App.3d at 196; Foody v.
Manchester Memorial Hosp., 482 A.2d 713, 720 (Conn.Super.Ct. 1984 ); Satz v. Perlmutter,
362 So.2d at 162-63; State v. McAfee, 385 S.E.2d at 652 (by implication); Brophy v. New
England Sinai Hosp., 497 N.E.2d 626, 638 (Mass. 1986); Matter of Farrell, 529 A.2d at 411;
Matter of Storar, 420 N.E.2d 64, 71 (N.Y. 1981); Leach v. Akron General Medical Center,
426 N.E.2d 809, 815 (Ohio Com.Pl. 1980); Matter of Welfare of Colyer, 660 P.2d 738, 743
(Wash. 1983). However, we do not necessarily agree with the analysis of other courts on the
subject. For example, the court in Bouvia concluded that the trial court seriously erred by
basing its decision on the motives' behind Elizabeth Bouvia's decision to exercise her rights.
If a right exists, it matters not what motivates' its exercise. Bouvia, 179 Cal.App.3d at 1145.
In the first place, as we have already seen, the right is not absolute. It must be balanced
against the previously enumerated interests of the State. Secondly, because the State has an
interest in both preserving life and preventing suicide, the circumstances under which the
individual seeks to exercise his liberty interest or common law right of refusal must be
considered. Part of the complex of circumstances to be considered relates to the attitude or
motive of the patient. To a large extent, a patient's attitude or motive may be judged from
such factors as severity of physical condition, diagnosis, prognosis, and quality of life. If a
competent adult is beset with an irreversible condition such as quadriplegia, where life
must be sustained artificially and under circumstances of total dependence, the adult's
attitude or motive may be presumed not to be suicidal.
with an irreversible condition such as quadriplegia, where life must be sustained artificially
and under circumstances of total dependence, the adult's attitude or motive may be presumed
not to be suicidal. In our view, there is a substantial difference between the attitude of a
person desiring non-interference with the natural consequences of his or her condition and the
individual who desires to terminate his or her life by some deadly means either self-inflicted
or through the agency of another.
As medical science continues to develop methods of prolonging life, it is not
inconceivable that a person could be faced with any number of alternatives that would delay
death and consign him or her to a living hell in which there is hopelessness, total dependence,
a complete lack of dignity, and an ongoing cost that would impoverish loved ones. The State's
interest in preserving life and preventing what some may erroneously refer to as suicide does
not extend so far.
Kenneth did not wish to commit suicide. He desired only to live for as long as the state of
his health would permit without artificial augmentation and support. Society had no right to
force upon him the obligation to remain alive under conditions that he considered to be
anathema. To rule otherwise would place an unwarranted premium on survival at the expense
of human dignity, quality of life, and the value that comes from allowing death a natural and
timely entrance.
[Headnote 14]
By way of summary on this point, we agree with the expression of the New Jersey
Supreme Court reaffirmed in Matter of Farrell to the effect that declining life sustaining
medical treatment may not properly be viewed as an attempt to commit suicide. Refusing
medical intervention merely allows the disease [or effects of an injury] to take its [their]
natural course; if death were to eventually occur, it would be the result, primarily of the
underlying disease [injury], and not the result of a self-inflicted injury. Matter of Farrell,
529 A.2d at 411 (quoting Matter of Conroy, 486 A.2d 1209, 1224 (N.J. 1985)).
3. The interest of the State in protecting innocent third persons. Kenneth never married
and had no children. No third persons were dependent upon him financially or for comfort,
support and counsel. It is true that Kenneth's father still lived at the time of Kenneth's
petition, but it was realistically anticipated that the father would not survive for any extended
period of time. Moreover, Robert Bergstedt acquiesced in his son's decision given the
circumstances Kenneth was facing. This State interest was simply not implicated in Kenneth's
request.
[Headnote 15]
4. The State's interest in preserving the integrity of the medical profession. In Matter of
Farrell, the competent adult patient was a thirty-seven-year-old woman who was terminally
ill with amyothrophic lateral sclerosis (Lou Gehrig's disease). Although Kathleen Farrell died
before her appeal was decided, the Farrell court nevertheless determined that medical ethics
create no tension in this case. Our review of well-established medical authorities finds them
in unanimous support of the right of a competent and informed patient such as Mrs. Farrell to
decline medical treatment. Matter of Farrell, 529 A.2d at 411-12 (discussing authorities).
We deem it unnecessary to quote from medical authorities to further support the conclusion
reached in Farrell. The State has an unquestioned duty to see that the integrity of the medical
profession is preserved and that it is never allowed to become an instrument for the selective
destruction of lives deemed to have little utility.
Despite the medical profession's healing objectives, there are increasing numbers of people
who fall in the category of those who may never be healed but whose lives may be extended
by heroic measures. Unfortunately, there are times when such efforts will do little or nothing
more than delay death in a bodily environment essentially bereft of quality. Under such
conditions or the reasonably likely prospect thereof, the medical profession is not threatened
by a competent adult's refusal of life-extending treatment. The President's Commission,
established by Congress in 1978, and consisting of doctors, ethicists, lawyers, theologians and
others, concluded:
The voluntary choice of a competent and informed patient should determine whether or
not life-sustaining therapy will be undertaken, just as such choices provide the basis for
other decisions about medical treatment. Health care institutions and professionals
should try to enhance patients' abilities to make decisions on their own behalf and to
promote understanding of the available treatment options. . . . Health care professionals
serve patients best by maintaining a presumption in favor of sustaining life, while
recognizing that competent patients are entitled to choose to forego any treatments,
including those that sustain life.
President's Commission for the Study of Ethical Problems in Medicine and Biomedical and
Behavioral Research, Deciding to Forego Life-Sustaining Treatment, p. 3 (U.S. Gov't
Printing Office 1983); see 42 U.S.C. 300v (1982).
We are of the opinion that Kenneth's request to be relieved of his connection to a respirator
did not present an ethical threat to the medical profession.
the medical profession. Because a competent adult would have enjoyed a qualified
constitutional and common law right to refuse a life-sustaining attachment to a respirator in
the first instance, there is no reason why such an adult could not assert the same rights to
reject a continuation of respirator-dependency that has proven too burdensome to endure.
[Headnote 16]
5. The State's interest in encouraging the charitable and humane care of afflicted persons.
There is a clear national and State public policy to encourage charitable contributions for the
humane care and treatment of citizens stricken with various maladies and disabilities. The
policy is reflected nationally by allowing deductions from the federal income tax for
charitable contributions. It is also reflected throughout our society by committing scarce
public assets to the funding of special legislation designed to create opportunities and
facilities for physically handicapped persons. Both the purpose and effect of such legislation
is to enhance the quality of life among those who are disabled in one form or another.
Moreover, national and State efforts to improve the circumstances of disabled citizens are
indicative of the highest social charactera society attuned to the worth of an individual
irrespective of physical or mental handicap.
Kenneth's condition and predicament directly implicated the State interest here considered.
Kenneth was not without a meaningful life. His ability to give expression to his intellect by
means of an orally operated computer, to learn, to enjoy reading and watching videos and
television all reflected the possibility of a life imbued with a potential for significant quality
and accomplishment. He nevertheless feared life in the care of strangers after the demise of
an attentive and caring father. It appeared to us that Kenneth needed some type of assurance
that society would not cast him adrift in a sea of indifference after his father's passing.
Perhaps available governmental, private and charitable support systems would not have been
adequate to provide Kenneth the assurance he needed to alleviate his fears. We nevertheless
conclude that absent Kenneth's intervening death, it would have been necessary to fully
inform him of the care alternatives that would have been available to him after his father's
death or incapacity.
III
We elected to review this matter despite Kenneth's death and the basic lack of a
controversy in order to provide guidance to others who may find themselves in similar
predicaments. In so doing, we are keenly mindful of the cost and delay Kenneth suffered in
order to obtain a final ruling through the court system.
We agree with other courts that have concluded that persons in Kenneth's situation should not
be subjected to such a burdensome process in attempting to exercise their constitutional and
common law right of choice. As evidenced by the instant case and those reported in other
jurisdictions, if the process involved in validating a patient's election to refuse or terminate
medical treatment is unduly protracted, the patient's rights become hollow and meaningless, if
not entirely ineffectual.
After studying the procedural methodology employed or discussed by the courts in the
cited opinions we felt somewhat like the dinner guest who enjoyed the meal but left with an
unsatiated appetite. As noted previously, other courts have agreed that a patient's right to
refuse medical treatment must be weighed against the State interests we have heretofore
enumerated. Unfortunately, none of the courts has provided guidance as to how and by whom
the weighing process is to be accomplished. Even the well-conceived procedure adopted by
the New Jersey Supreme Court in Matter of Farrell is silent as to the methodology involved
in an authoritative weighing process.
4
The procedural lacuna common to these opinions
may reflect a judicial timidity resulting from a tacit recognition of the legislative hue
court-supplied procedures would assume.
__________

4
In Farrell, the court indicated that it would define who may make such a decision [to withdraw
life-sustaining medical treatment] and how it may be made. 529 A.2d at 408 (emphasis added). Later in the
opinion, the court held that after the assessments concerning competency, prognosis, alternative treatments, the
risk associated with the withdrawal of life-sustaining treatment, and the presence or absence of voluntary choice
or coercion have been made by two non-attending physicians, the patient's right to choose to disconnect the
life-sustaining apparatus must be balanced against the four potentially countervailing state interests. . . . 529
A.2d at 413 (emphasis supplied). Unfortunately, the court failed to identify who would be authorized to conduct
the balancing process. Although the court placed emphasis on the importance of the decision of the patient and
his family, it is clear that the court did not intend that the patient or family engage in the process of weighing the
State interests against their own. Moreover, the Farrell court emphasized that the procedure outlined in the
opinion did not contemplate the involvement of the judicial system. See 529 A.2d at 415. In brief, the court
required a balancing of individual and State interests as a condition to an authoritative decision concerning the
patient's right to withdraw life-sustaining treatment, but failed to identify either how the process was to occur or
who had the authority to decide which of the potentially competing interests would prevail.
Similarly, in both Bouvia and Bartling the courts determined that the judiciary was not to be involved in the
decisional process, but failed to identify who would have the responsibility or authority to accomplish the
balancing process concerning individual vis-a-vis State interests, and reach an authoritative determination.
Again, it would make no sense to determine that State interests may be weighed against the rights of the
individual by the very patient who is seeking to implement his or her own decision to refuse or terminate medical
treatment.
The McAfee and Perlmutter courts both performed the balancing of the interests between the individual
patient and the State, but did not provide any form of non-judicial procedure for satisfying the balancing process.
common to these opinions may reflect a judicial timidity resulting from a tacit recognition of
the legislative hue court-supplied procedures would assume. It seems clear that the
specification of measures involved in properly weighing the interests of the individual and the
State is more suited to a statutory resolution by the Legislature.
Given the fact that our ruling has confirmed the rights of the individual and the interests of
the State, and the need to weigh both in the decisional process, we feel constrained to suggest
a procedural matrix by which the weighing and decisional process may be satisfied pending
statutory treatment by the Legislature. We therefore stress that the following procedure is
designed to fill a temporary void which we trust will be supplanted by timely legislative
action. We also emphasize that until such time as the Legislature enacts superseding
legislation, the procedure established here will suffice in the determination of a competent
adult patient's right to refuse or discontinue medical treatment, including the use or
discontinuance of life support systems.
[Headnotes 17-22]
Guided in part by the decisions of courts in other jurisdictions, and in particular that of the
New Jersey Supreme Court in Matter of Farrell, we conclude that hereafter competent adult
patients desiring to refuse or discontinue medical treatment need only conform to the
following procedure:
5
(1) Two non-attending physicians must examine the adult to
determine and certify in writing, without liability except for fraud,
6
that (a) the patient is
mentally competent to understand his or her prognosis and was properly informed thereof,
and that the patient was apprised of treatment alternatives and the consequences that will
or are likely to result from refusing medical treatment or electing to withdraw medical
therapy, including life-support systems then in use; {b) the patient's condition is
irreversible or the extent to which the condition may be improved through medical
intervention; {c) the patient is or reasonably appears to be free of coercion or pressure in
making his or her decision; {d) if the patient is non-terminal, i.e., has an estimated life
expectancy of six months or more either with or without artificial life-support systems,
that he or she was apprised of the care options available to the patient through
governmental, charitable and private sources with due regard for the value of life, and
certify in writing without liability except for fraud, that the aforesaid explanation of care
alternatives was given and the patient's response thereto; {2) After the preceding steps
have been satisfied, if the patient chooses to refuse medical treatment or to withdraw
existing medical therapy, including life-support systems, one of the following alternatives
will apply: {a) if the patient is terminally ill or injured, i.e.,
__________

5
Obviously, Kenneth's case presents only issues involving competing interests and procedures relating to
competent adults. Although this ruling does not involve a terminally ill, competent adult it will nevertheless
apply to such persons since their predicament implicates no additional or different rights and would impact the
countervailing State interests to an even lesser degree than in cases such as Kenneth's where the competent adult
patient is not terminally ill. Issues relating to juveniles and incompetent adults afflicted by catastrophic illness or
injury are not affected by this opinion and must, in the absence of legislation applicable to their situations, either
await additional legislation or an appropriate case filed in the judicial system.

6
It is the clear intention and office of this opinion to encourage responsible physicians and health care
providers to assist patients in the proper exercise of their constitutional and common law rights by eliminating
the possibility of criminal or civil liability for all such persons who, in good faith, involve themselves in the
procedures outlined in the opinion. Their single exception relating to fraud shall be of effect only in the event
any such person deliberately seeks to accomplish a termination of life for unlawful reasons. Moreover, any claim
of fraud must be supported by clear and convincing evidence.
treatment alternatives and the consequences that will or are likely to result from refusing
medical treatment or electing to withdraw medical therapy, including life-support systems
then in use; (b) the patient's condition is irreversible or the extent to which the condition may
be improved through medical intervention; (c) the patient is or reasonably appears to be free
of coercion or pressure in making his or her decision; (d) if the patient is non-terminal, i.e.,
has an estimated life expectancy of six months or more either with or without artificial
life-support systems, that he or she was apprised of the care options available to the patient
through governmental, charitable and private sources with due regard for the value of life,
and certify in writing without liability except for fraud, that the aforesaid explanation of care
alternatives was given and the patient's response thereto; (2) After the preceding steps have
been satisfied, if the patient chooses to refuse medical treatment or to withdraw existing
medical therapy, including life-support systems, one of the following alternatives will apply:
(a) if the patient is terminally ill or injured, i.e., has an estimated remaining natural life
expectancy (with or without artificial life-support systems) of less than six months and the
two non-attending physicians so certify in writing (again, without liability except for fraud),
the patient's constitutional and common law rights of self-determination shall be deemed to
prevail over the previously enumerated State interests, and the patient may refuse treatment or
elect to have existing therapy, including any life-support systems, terminated and any
physician or health care provider
7
who assists the patient in the implementation of his or her
decision, including the administration of any sedative or pain medication to ease the patient's
pre-death anxieties or pain, will not be subject to civil or criminal liability; (b) if the patient is
non-terminal, either by virtue or artificial life-support systems or a prognosis for a natural
survival period in excess of six months, then the patient's decision to refuse treatment or to
withdraw existing medical therapy, including life-support systems, must be weighed against
the aforesaid State interests; the weighing process, pending legislative action, shall be
preformed by any district court judge, whose decision, with due regard for the patient's rights
and the certifications of the physicians described above, will be final and not subject to appeal
unless the district court judge shall determine that the interests of the State outweigh the
patient's rights to refuse or terminate medical treatment. In the latter event, the patient shall
enjoy a right of an expedited appeal in the event he or she elects to pursue it. [Headnotes 23,
24]
__________

7
Whenever the term health care provider appears in this opinion it shall refer to any medically trained
person who is licensed to provide medical care and to prescribe and dispense controlled, legal medications.
[Headnotes 23, 24]
In all cases decided by a district court in favor of the patient, the court's order shall specify
that any physician or health care provider who assists the patient in receiving the benefits of
his or her decision with minimal pain, shall not be subject to civil or criminal liability. In the
latter regard, we agree with the court in State v. McAfee that a patient's right to be free from
pain at the time the ventilator [or other life support system] is disconnected is inseparable
from his right to refuse medical treatment. State v. McAfee, 385 S.E.2d at 652.
[Headnote 25]
In those cases classified above as terminal, the written certifications provided by the two
non-attending physicians shall have the same force and effect as the order of a district court.
The original of the written certifications by the physicians shall be provided to the patient as
an authoritative basis for enlisting necessary assistance in accommodating the patient's
decision. Any physician or health care provider who assists the patient and administers
medication to minimize pain, shall enjoy the same immunity from civil or criminal liability as
any such person who acted pursuant to an order of the district court. The non-attending
physicians providing the certificates should retain a copy thereof in their own files.
We have burdened this opinion with the procedures set forth above in an attempt to
eliminate uncertainty and minimize cost in these types of cases. We trust that our ruling will
also provide a reasonably simple and expeditious method for facilitating a competent patient's
decisions, while at the same time emphasizing the value of a human life and the seriousness
with which these difficult and sensitive matters should be approached.
8
IV
__________

8
We are in accord with those courts that have concluded that a patient's rights should be considered and
given effect outside the judicial system. As we have previously noted, the three courts we have cited in favor of
such a proposition did not provide procedural machinery for accomplishing a balancing of the patient's rights
and the State's interests exclusive of the court system. Were it not within the peculiar province of the Legislature
to define such procedure by statute, we would have undertaken the task.
By way of illustration only, the Legislature could determine that a designee of the Director of the Nevada
Department of Human Resources could provide non-terminal patients with a complete apprisal of the health care
alternatives available to such patients instead of burdening the two non-attending physicians with that
responsibility. Moreover, the Legislature could select someone such as a Deputy Attorney General designated by
the Attorney General to perform the responsibility of weighing the rights of the patient and the interests of the
State. Such a procedure could be final and incontestable unless the Deputy ruled in favor of the State, in which
case a right of judicial review could be provided to the patient.
We would not presume to suggest to the Legislature the method best suited
IV
If Kenneth had survived the date of the issuance of this opinion, we would have confirmed
his right to discontinue his artificial life-support systems subject only to a prior consultation
with a responsible health care provider or representative of the Nevada Department of Human
Resources who would have informed him of the care alternatives available to him after his
father's death. The value of Kenneth's life demanded nothing less.
9

[Headnote 26]
In view of Kenneth's death, we leave him with an official ruling that his petition to be
humanely relieved of the artificial contrivance to which he was attached did not constitute a
prelude to suicide. As a competent adult, Kenneth sought to exercise, through lawful means,
his valued constitutional and common law right to allow the natural consequences of his
condition to occurunimpeded by artificial barriers. His memory is deserving of no taint or
inference relating to an act of suicide.
For the reasons set forth above, the judgment of the district court is affirmed.
10

Young, C. J., and Rose, J., concur.
__________
to accomplish the procedural requirements necessary to balancing the rights of the individual patient vis-a-vis
the State. We merely supply the above illustration to demonstrate the type of approach the Legislature could take
in order to satisfy the demands of due process in this difficult and sensitive area. In any event, we sincerely urge
the Legislature to timely enact legislation that will provide a sound, expeditious and inexpensive procedure for
individuals faced with circumstances similar to Kenneth's.
Finally, until the Legislature acts, we would expect our district courts to assign a priority status to these
types of cases. We would also trust that patients who are not in a position to bear the burden of attorney's fees,
could contact the Nevada State Bar and be referred to attorneys who would be willing to handle these cases on a
pro bono basis. Also, to the extent permitted by law, petitions seeking to vindicate a patients' right to refuse or
terminate medical treatment should be accepted for filing without imposition of filing fees.

9
We have read with dismay editorials that pressed for an expedited accommodation of Kenneth's desire to
disconnect his respirator. We would have much preferred reading expressions of concern for the value of
Kenneth's life and the various sources of organizational support that might have been explored in an effort to
provide Kenneth with incentives to live. We trust that Kenneth did not conclude from such editorials that his life
was without value or purpose or that meaningful alternatives to the disconnecting of his respirator did not exist.
Finally, we regret not being able to inform Kenneth and his father that this court has done everything possible to
responsibly expedite the disposition of this appeal notwithstanding its extreme importance to both Kenneth and
the citizens of Nevada.

10
Given the court's disposition of this matter, we have deemed it unnecessary to decide the issues raised by
the cross-appeal.
Mowbray, J., concurring in part:
I concur in the result of the majority opinion only.
The bottom line is whether the district judge in the court below ruled correctly in
permitting Kenneth to leave his life-sustaining ventilator, knowing that his death would most
probably follow and, secondly, permitting the administration of medication to Kenneth to
ease Kenneth's expected demise. The district judge did rule correctly on both issues, and
therefore the judgment below should be affirmed.
The majority opinion goes on to establish a procedure for the disposition of these life
termination cases. The majority places the ultimate and final life or death decision in a group
of doctors characterized as non-attending physicians. This proposed procedure will have a
far reaching effect.
While the members of the medical profession subscribed to and are governed by the
Hippocratic oath, which is predicated on the preservation of life, the establishment by judicial
fiat of a convenient cadre of colleagues who would be on tap as non-attending physicians to
decree the death of a fellow citizen without relevant standards and safeguards concerns me.
I would leave the establishment of such a procedure to the people acting through the
wisdom of their representatives in the legislature.
I dissent on two grounds. The first ground is that there was no real case or controversy
before the district court. Therefore, it had no judicial power to decide that Kenneth Bergstedt
could lawfully take his own life or that another person could lawfully assist him in taking his
life. The second ground is that even if this had been a true case instead of a show case, it
would not be a proper exercise of judicial power for a court to authorize one person to take
the life of another person.
I.
Absence of Judicial Power
Article 6, section 6 of the Nevada Constitution gives to the district court the power to
decide cases. This is not a case. A case is defined as a controversy, at law or in equity; a
question contested before a court of justice.
1
As this court has put it, the exercise of judicial
power must be confined to controversies in the true sense. The parties must be adverse . . . .
2
There is no controversy here.
__________

1
Black's Law Dictionary 195 (5th ed. 1979).

2
City of North Las Vegas v. Cluff, 85 Nev. 200, 201, 452 P.2d 461, 462 (1969).
controversy here. The state's attorney even went so far as to tell the trial court that there does
not appear to be any controversy between the attorney general's office and Mr. Bergstedt. I
do not want to belabor the point because it is so obvious. There has never been any
controversy here and no question contested before a court of justice because at all times,
even on appeal, everyone has been in cordial agreement as to what the outcome was going to
be.
Not only did the nonadversarial, nonantagonistic posture of this case deprive the trial court
of its constitutional power to decide the claims presented by Mr. Bergstedt, it deprived the
court of the truth-seeking benefits ordinarily attached to the adversary system. This is an
agonizingly difficult case and a unique one, a case desperately in need of a two-sided debate.
If there had been a life-side versus a death-side to this case, surely the life-side would at least
have raised the point that the plaintiff's case must fail because it sought court approval of a
killing act, an act which knowingly caused the immediate death of a human being. As I
indicate below, this would have been a strong argument to be made under the circumstances
of this case. I know of no court that has adopted a rule which sanctions suicide
3
by a
conscious, competent and alert human being who was not dying and who was expressing a
frank desire for immediate self-destruction.
4
There are a number of novel and perplexing
questions to be answered in this case.
__________

3
Suicide may at first seem like a harsh word to be using under these circumstances, but it is a necessary
word and a word that cannot be avoided. The majority defines suicide as the taking of one's own life voluntarily
and intentionally. Mr. Bergstedt breathed for twenty-three years with mechanical assistance. Taking away the
ventilator was taking away his lifea life that would have gone on indefinitely had he not made the conscious
decision to take it away.

4
The Bouvia case cited in the majority opinion came very close to outright judicial approval of suicide by a
suffering but nonterminal, bedridden patient. One of the three justices of the California Court of Appeal who
decided the Bouvia case candidly took the position that some undefined types of persons should be granted by
the courts the right to commit suicide, abetted by the kind help of medical personnel who would kill the person
in a manner that was as quick and painless as possible. But what about the state's criminal law forbidding the
aiding and abetting of suicide? This law was, according to Justice Compton, archaic and inhumane, and
apparently, to be ignored by the court. Although I disagree with Justice Compton's position (I think it is the
legislature's business to change the statutory law of homicide if it is going to be changed.), I think the justice was
correct in pointing out in Bouvia that in permitting a suffering paralytic to be starved to death at her own request,
the majority justices did not come to grips with the suicidal nature of Elizabeth Bouvia's quite understandable
death wish. As Justice Compton correctly declared: Even the majority opinion here must necessarily dance'
around the issue [of suicide]. I respectfully suggest that the majority is dancing around the issue in this case.
tions to be answered in this case. I certainly would have had an easier time in dealing with
these questions if they had been properly and adversarily litigated in the court below.
The trial court did not have the constitutional power to decide a noncontroversy and then
to take the action that it did; but even if this had been a real case, I maintain that the trial
court had no power to sanction or facilitate by court decree Kenneth Bergstedt's announced
plan to take his own life by means of the mortal killing act of taking away his breathing
apparatus. The Nevada Supreme Court's affirmance of the district court's decree may make it
law, but it does not make it true.
5

II.
State-Assisted Suicide: Our Clouded Ability to Assess the Suicidal Basis of Mr. Bergstedt's
Request to Die
[V]alue judgments . . . about the worth of Mr. Bergstedt's life have clouded [the] ability
to properly assess the suicidal basis for Mr. Bergstedt's request to die . . . .
6

As I have already suggested, having the benefit of arguments on only one side of any
controversy is a severe limitation upon decision-makers' ability to arrive at an informed and
just decision. This limitation has in no small measure clouded the truth and the ability of
almost everyone to access the suicidal basis of Mr. Bergstedt's request to die. Added to the
one-sidedness of this case are other clouding factors that I think may well have affected
its outcome: the extremely dramatic and sympathetic nature of Mr. Bergstedt's plea for mercy;
faulty reliance on right-to-die cases which deal with the comatose and the terminally ill and
have no application here; and, cloudiest of all, the flawed impression that persons whose lives
depend on life-sustaining devices may kill themselves at will, merely by calling removal of
essential-to-life machines a refusal to accept unwanted medical treatment or by calling their
users' immediate and directly resultant demise a natural death.
__________

5
New York v. Harris, 110 S.Ct. 1640, 1649 (1990) (Marshall, J., dissenting).

6
This quote is taken from the amicus curiae brief written by Thomas J. Marzen, general counsel for the
National Legal Center for the Medically Dependent and Disabled. Although his brief was rejected by the court
because of its late filing, I refer to it in this dissent because it is the only argument to be found in this case that
favors life instead of death. Mr. Marzen represents a national organization of disabled individuals, with some
3000 active members, some of whom depend on ventilators to breathe.
I see Kenneth Bergstedt's breathing device as being more than medicine. It is true that
the machine was introduced during a medical emergency by medical personnel. It is true also
that medical and mechanical monitoring of the device must be continued and that medical
personnel or paramedical personnel are required to fulfill the daily needs of persons in this
kind of condition. Notwithstanding all of this, I cannot escape the conclusion that, after
twenty-three years of living and breathing in this machine-aided manner, the whole process
becomes something quite more than mere medical treatment. The mechanical breather
becomes a new way of life for its user, and life cannot go on without it. Mr. Bergstedt lived at
home. The treatment in any real sense is over; and just as heart pace-makers, artificial
venous or arterial shunts, a variety of prosthetic devices and other such medically sponsored
and introduced artifacts may begin as a medical treatment modality, the ventilator begins as a
form of medical treatment but ends up as an integral part of its dependent user. Even if it is
insisted that these things continue indefinitely to be considered as treatment, they indeed
become far, far more than just treatment after years and years of dependency on them.
When Kenneth Bergstedt asked the court to give legal sanction to the death-inducing act of
disconnecting his breathing apparatus, he was not to my mind merely exercising his right to
be let alone,
7
and his right to refuse unwanted medical treatment. Withdrawal of medicine
or so-called life support may be a humane way of letting nature take its course in the lives
of the near-dead or irreversibly comatose, but it is a different matter when withdrawal of
these items is admitted to be the immediate and proximate cause of the death of a person who
concededly is seeking to take his own life.
Use of the term natural death in this case is only a natural and understandable way of
averting the excruciating truth. Bergstedt's explicit and express desire and intention was that
of putting an immediate end to his own life. That is not what one would call a natural
death. There was nothing natural about Mr. Bergstedt's death; he killed himself. Masking
this unpleasant but inescapable fact has the unfortunate result of masking the really hard
question presented by this case, and that is this: If, when and how should a person in Kenneth
Bergstedt's condition (or perhaps other comparable conditions) be given legal permission to
have outside assistance in taking his own life, without the incurrence of civil or criminal
liability by anyone involved in the process?
__________

7
Olmstead v. United States, 227 U.S. 438 (1928) (Brandeis, J.).
process? By avoiding the question, we avoid the answer; and by avoiding the answer, we
invite future agonies suffered by persons like Mr. Bergstedt, who, in my view, was not given
an acceptable solution to his plight. Mr. Bergstedt is dead now, and this may let us look at
these cases in a more dispassionate way and address the problems presented by this case in a
proper and rational manner.
Once again: In light of his expressed intentions and in view of the direct and active way in
which he chose to end his own life, Mr. Bergstedt cannot be said to have died a natural
death. Mr. Bergstedt's injuries, though perhaps permanent, have not incapacitated Mr.
Bergstedt completely. He is not terminally ill' or otherwise close to death. His request to
forego mechanical respiration has been made in a context suggesting that his intent may be
suicidal . . . .
8
Mr. Bergstedt was not dying, except in the sense that we are all dying, and he
was not in the least danger of imminent death. He had been living steadily for over
twenty-three years, breathing with the aid of a ventilator, until he reached a time in his life
when he decided to die because, like most other suicides, life had become, temporarily at
least, intolerable for him. The means by which he chose to take his own life was to have
someone remove his breathing device during a time that he was sedated for the calculated
purpose of bringing his life to a painless end. The result of the ventilator's removal, known to
him and to everyone concerned, was immediate death. Withholding the ventilator was for this
man not a withholding of medical treatment, it was the withholding of life itself.
If we reflect for a moment on the nature and use of this ventilator, it does not take long to
see that the machine had become an integral part of Mr. Bergstedt's person and was not mere
treatment.
Life support systems such as ventilators, electric wheelchairs, or other automated
devices enhancing one's functions are real extensions of the person, and should be
treated as such. Persons with disabilities use artificial supports as a matter of daily
course, and find them vital to carrying on their productive lives. Mr. Bergstedt's
ventilator should not be transformed into a form of extraordinary support because his
father is in ill health and Mr. Bergstedt thus far has not received appropriate
professional and peer assistance in coping with personal fears.
9

(My emphasis.)
Kenneth Bergstedt did not want to die a natural death; he wanted to die an immediate
death.
__________

8
Marzen, p. 1.

9
Marzen, p. 11.
wanted to die an immediate death. He sought an immediate death by means of disconnecting
the extension of his person that had enabled him to live and breathe for the preceding
twenty-three years. Construing the ventilator in this case as a form of extraordinary support
that can be removed at will is a terrible and terrifying rationalization and, as well, a
prejudicial treatment of Mr. Bergstedt because his assisted suicide was sanctioned and
facilitated only because of his disabled condition.
It is crucial that the court not put its judicial stamp of approval on negative stereotypes
about disability. This would result if it were to allow the state to assist an individual to
die only because he or she has a disability. Judicial decisions which are based upon
societal prejudices merely reinforce those prejudices, making them even more difficult
to eradicate.
10

I register now my strong disapproval of our court's putting their judicial stamp of
approval on allowing the state to assist an individual to die only because he . . . has a
disability. What other conditions, physical or mental, I ask myself, will be brought to the
courts as grounds for judicially approved and assisted self-destruction? We now have a
growing population of people who are alive but throughout history would have been dead.
Some live under conditions under which many if not most of us would probably not want to
survive; yet there are those who do survive and who continue to survive under the most trying
of circumstances. The distinguishing aspect of the described persons is that, unlike most of
us, they do not have, because of their paralytic condition, the power to bring their lives to an
end, however intolerable their lives might become. They are trapped. Life is thrust upon
themforced upon them. If a person like Mr. Bergstedt comes to the courts saying, I have
come to the end of my rope; I cannot stand it any more; you must give me the means to end
my own life in peace and in dignity; it is difficult indeed to say no. Unfortunately it does
not belong to the judicial realm to say yes. The judicial department of government is not the
proper agency to address the novel and perplexing question presented here, namely, the
question of under what, if any, circumstances should a right to state-assisted suicide be
granted. Although not called upon to do so by the writing of this dissent, I have some more to
say on the subject.
__________

10
Stradley, Elizabeth Bouvia v. Riverside Hospital; Suicide, Euthanasia, Murder: The Line Blurs, 15
Golden Gate Univ. L. Rev. 407, 424 (1985).
III.
A Right to State-Assisted Suicide?
I know of no judicially created or other legal right to commit suicide or to have
court-ordered assistance in carrying out one's self-destruction. Although suicide is not a crime
in Nevada or in any other state, there is certainly a strong enough public policy against suicide
to preclude the courts from assisting in its enactment. Further, it is most certainly a crime to
conspire to commit suicide or to aid and abet a suicide. Our law of crimes is legislative, and
no statutory crime should be abolished or absolved without legislative enactment or repeal.
The issues presented here, though unique in many respects, are only part of a whole array
of social, ethical, theological and legal problems that have come to us through the
advancements of medical science. Until very recently in our history this kind of predicament
was, necessarily, not a matter that was subject to being dealt with by our law. We have here a
man whose consciousness was entombed in a body immobile. Unlike most of the readers of
this opinion, Mr. Bergstedt did not have the power to end his life by himself, no matter how
tortured his life became. If I am not mistaken, the technical ability to keep a person with these
kinds of injuries alive by means of mechanical respiration has not been available for much
more than fifty years. When we are faced with protecting the interests and dignity of a person
like Mr. Bergstedt, we are dealing with a problem completely unknown and probably
unthinkable to the law throughout most of its history. Still, there is a history of suicide in the
law and even a history of state-sanctioned suicide. This might be useful to us in thinking
through the problem at hand.
Although ancient Greece and Rome opposed suicide, and sanctions were imposed on the
properties of those who committed suicide, laws were enacted in both Greece and Rome
which excused suicide under certain circumstances. These societies provided for access to the
courts for the purpose of hearing the applications of persons who were desirous of quitting
life; and the courts could grant or refuse permission in each case as they saw fit. In the margin
I have included a relatively modern commentary on this subject.
11
I bring this up only to
show that in times past societies did grant state approval for certain kinds of selfdestruction
under certain kinds of circumstances and to show that the problem facing us today is not
an entirely new one and perhaps only a new twist on a very old problem.
__________

11
[Suicide] is an alternative which can at times be accepted by the individual with advantage to
himself, the domestic community and the state. * * *
Briefly, then, I would suggest a court of suicide to which application could be made, and where all
proposals would be considered on points
destruction under certain kinds of circumstances and to show that the problem facing us today
is not an entirely new one and perhaps only a new twist on a very old problem. It seems
reasonable to assume that a Roman or Grecian court would find Mr. Bergstedt's plea to end
his life to be one justified under their laws. As I have maintained throughout, however, this is
a matter for our democratically-elected representatives in the legislature. They are the ones
who must answer these questions and particularly the pressing and specific question: What
are we going to do about a totally paralyzed person who is undergoing the unbearable
suffering that continued consciousness brings, and who wants desperately to bring his life to
an end but does not have the physical capability of doing it?
IV.
Conclusion
It is not death, it is the dying that alarms me.
Montaigne
I want to be sure that the reader of this dissent does not get this case mixed up with the
right-to-die cases in which there is present either imminent death or permanent
unconsciousness. We are not dealing here with overtreatment or unwanted prolongation of
the dying process. Kenneth Bergstedt was severely paralyzed and ventilator-dependent and
suffered from what neurologists self-descriptively call the locked-in syndrome; but his
consciousness was intact, and he had a life-expectancy of indefinite duration. It is unclear,
however, whether his decision to take his own life was completely rational or possibly a
product of some kind of clinically identifiable depression. The mentioned Mr. Marzen points
out that Mr. Bergstedt was completely lacking in positive support, that all input was
one-sided, all death and no life. According to Mr. Marzen,
12
Mr. Bergstedt was a man with
"a one sided support system of persons who espouse the erroneous view that, in the
words of [psychiatrist] Dr.
__________
of equity and with regard to personal and public advantage in camera, and without a jury. The applicant
would have to satisfy the presiding judge or judges that this removal by death would be the best thing in
his circumstances . . ., and that such a course would not be attended by counterbalancing disadvantages to
other persons. Upon receiving satisfactory evidence on these points the court would be empowered to
grant the applicant a suicide license, authorizing him to take his own life legally, and without prejudice, at
the place and time named therein, and (as in the case of a marriage license) at any time within three
months of the date thereon, due notice first being given to one of the court's properly authorized medical
practitioners.
A Modest Defence of Suicide, The Green Bag, Volume XI, The Boston Book Company (1899).

12
Marzen, p. 8.
a one sided support system of persons who espouse the erroneous view that, in the words of
[psychiatrist] Dr. Jurasky, [t]he quality of life for this man is . . . forever profaned by a future
which offers no relief and only the possibility of worsening.' With this kind of support it is
no wonder that he decided to do himself in.
I have agonized over this case. At one moment I am haunted by the picture of a hopeless,
wretched and tortured person who has no desire except to end his suffering by ending his life.
As we know, however, he did not have it within his capacity to end his life, so that he must
live on, locked into a condition which at the time of his death Mr. Bergstedt probably saw
as one of intolerable and unrelenting misery. How can any one who can help him possibly
turn down his plaint? But, then, we are not even sure of the exact nature of his mental and
emotional condition, or that his depression was not a temporary one, as suggested by Mr.
Marzen. In this case we will never know the truth because we heard only one side of the case,
namely, Mr. Bergstedt's unopposed claim to the right to put an abrupt end to his life. Even
if we assume, however, that Mr. Bergstedt's death wish was not generated by a one-sided
support system and depression, my views of this case would remain the same.
As I have said, I know in our jurisprudence of no right to commit suicide or to be
mercifully put away by the medics, as quick[ly] and painless[ly] as possible.
13
There is no
natural, constitutional, statutory or court-created right that would permit a person to have the
assistance of another person in deliberately taking his own life. I am sure that no one would
contend that Mr. Bergstedt had a right to suicidal assistance if he had not been incapable of
doing the deed himself. So this brings us to the point, discussed above, that Mr. Bergstedt has
been given the court-decreed right to assisted suicide only because he was disabled to the
extent described. Such a decree should not have been entered.
I would reverse the judgment of the trial court; first, on the ground that the district court
was without jurisdiction to decide an uncontested, one-sided test case and thereafter enter the
subject decree; and second, on the ground that, there being no right vested in anyone to be put
to death by another, the district court had no power to disregard the law of homicide and
decree the legality of assisted suicide in this case.
__________

13
See footnote 4, supra.
____________
106 Nev. 840, 840 (1990) Bejarano v. State
JOHN BEJARANO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20466
December 7, 1990 801 P.2d 1388
Appeal from denial of post-conviction relief in a death penalty case. Second Judicial
District Court, Washoe County; Jerry Carr Whitehead, Judge.
Petition was filed for post-conviction relief in death penalty case. The district court denied
petition. Petitioner appealed. The Supreme Court held that: (1) trial counsel's failure to call
any witnesses, including petitioner, to testify that his Miranda rights were not read to him did
not constitute ineffective assistance of counsel, and (2) trial counsel's decision not to present
evidence concerning petitioner's personality disorders and low intelligence did not constitute
ineffective assistance of counsel.
Affirmed.
Douglas Norberg, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Gary H.
Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Law of first appeal, that record supported finding of all six aggravating circumstances required for death penalty, was law of the
case on subsequent appeal from denial of post-conviction relief.
2. Criminal Law.
Post-conviction petitioner failed to establish that he was prejudiced by trial counsel's failure to call any witnesses, including
petitioner, to testify that his Miranda rights were not read to him and, thus, failed to establish ineffective assistance of counsel; trial
judge, at post-conviction relief hearing made it clear that calling petitioner to the stand would have made little difference given
evidence that arresting officers had read petitioner his Miranda rights and petitioner failed to mention in his brief any other witnesses
who could have testified that he was not read his Miranda rights. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
To prove claim of ineffective assistance of counsel, defendant must show that counsel's performance was deficient, which requires
showing that counsel made errors so serious that counsel was not functioning as counsel guaranteed by sixth amendment, and
defendant must show that deficient performance prejudiced defense, which requires showing that counsel's errors were so serious that
they deprived defendant of fair trial. U.S.C.A.Const. Amend. 6.
4. Criminal Law.
In determining claim of ineffective assistance of counsel, court need not determine whether counsel's performance was deficient
before examining prejudice suffered by defendant as a result of alleged deficiencies.
examining prejudice suffered by defendant as a result of alleged deficiencies. U.S.C.A.Const. Amend. 6.
5. Criminal Law.
Defense counsel's decision not to present evidence concerning defendant's personality disorders and low intelligence did not
constitute ineffective assistance of counsel; trial counsel made tactical decision not to present that evidence at penalty hearing phase of
death penalty case and evidence of defendant's anti-social personality may have inflamed the jury even more. U.S.C.A.Const. Amend.
6.
OPINION
Per Curiam:
This is an appeal from a petition for post-conviction relief. Appellant John Bejarano was
charged in the death of Roland Wright, a Reno cab driver who was found shot in the head.
Appellant was convicted of first degree murder with the use of a deadly weapon, robbery with
the use of a deadly weapon, possession of a sawed-off rifle, possession of a stolen vehicle,
carrying a concealed weapon, and possessing a firearm while an ex-felon. Appellant was
sentenced to death, pursuant to a jury verdict, as well as to six prison terms of fifteen years,
six years, six years, one year, and six years, respectively. Appellant's direct appeal was
dismissed by this court. He then filed a petition for post-conviction relief in the district court,
but was denied. This appeal followed.
[Headnote 1]
Appellant challenges the legality of his death penalty, claiming that four of the six
aggravating circumstances are inapplicable as a matter of law or were not proved as a matter
of fact. This court, pursuant to NRS 177.055(2)(b),
1
reviewed this contention on direct
appeal and concluded that the record supported the finding of all six aggravating
circumstances. The law of a first appeal is the law of the case on all subsequent appeals in
which the facts are substantially the same. Hall v. State, 91 Nev. 314, 315, 535 P.2d 797,
798 (1975) (citations omitted). Therefore, this court's prior ruling represents the law of the
case and will not be disturbed.
__________

1
NRS 177.055(2)(b) provides in relevant part:
2. Whether or not the defendant or his counsel affirmatively waives the appeal, the sentence must be
reviewed on the record by the supreme court, which shall consider, in a single proceeding if an appeal is
taken:
. . . .
(b) Whether the evidence supports the finding of an aggravating circumstance or circumstances; . . . .
[Headnote 2]
Appellant next contends that his trial attorney's failure to call any witnesses, including
himself, to testify that his Miranda
2
rights were not read to him constitutes ineffective
assistance of counsel.
[Headnotes 3, 4]
Appellant's claim of ineffective assistance of counsel is analyzed under the reasonably
effective assistance standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984),
and adopted by this court in Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert.
denied 471 U.S. 1004 (1985). The Strickland standard requires a two-prong analysis. First,
the defendant must show that counsel's performance was deficient. This analysis requires a
showing that counsel made errors so serious that counsel was not functioning as the
counsel guaranteed by the sixth amendment. Second, defendant must show that the
deficient performance prejudiced the defense. This analysis requires showing the counsel's
errors must be so serious that they deprived defendant of a fair trial. Id. at 687, Moreover, a
court need not determine whether counsel's performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies. Strickland
explained prejudice as showing that the decision reached would reasonably likely have been
different absent the asserted errors. Id. Here, appellant cannot make this showing because the
trial judge, at appellant's post-conviction relief hearing, made it clear that calling Bejarano to
the stand would have made little difference: the evidence before the Court was that the
arresting officers had read the defendant his Miranda rights. At most, calling the petitioner to
testify would have raised a credibility issue to be decided by the court since there would have
been conflicting testimony.
Moreover, no other witnesses who could have testified that appellant was not read his
Miranda rights are mentioned in appellant's brief; thus, without knowing who these other
witnesses are, or indeed, if any even exist, we cannot determine whether appellant was
prejudiced by his trial attorney's failure to call witnesses to testify that his Miranda rights
were not read to him. Therefore, because appellant has failed to make the requisite showing
of prejudice, he has failed to show that he received ineffective assistance of counsel, and we
are not required to address the other prong of the test.
[Headnote 5]
The record contains evidence that appellant has personality disorders and a low
intelligence.
__________

2
Miranda v. Arizona, 384 U.S. 436 (1966).
disorders and a low intelligence. Appellant's trial counsel, however, failed to present these
factors as mitigating circumstances at the penalty hearing. We consider sua sponte whether
failure to present such evidence constitutes ineffective assistance of counsel in light of
Deutscher v. Whitley, 884 F.2d 1152 (9th Cir. 1989). In Deutscher, appellant's trial counsel
failed to investigate and present appellant's mental history as a mitigating circumstance at the
penalty hearing. The Deutscher court found that such a failure constitutes ineffective
assistance of counsel. Here, the record indicates that appellant's trial counsel made a tactical
decision not to present such evidence at the penalty hearing phase. Furthermore, evidence of
appellant's anti-social personality may have inflamed the jury even more. Therefore, we hold
that counsel's decision not to present evidence concerning appellant's personality disorders
and low intelligence does not constitute ineffective assistance of counsel.
Because appellant's contentions lacked merit, the district court properly denied appellant's
petition for post-conviction relief. Accordingly, we hereby affirm the order of the district
court.
____________
106 Nev. 843, 843 (1990) DePasquale v. State
VINCENT DePASQUALE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20641
December 7, 1990 803 P.2d 218
Appeal from a judgment of conviction and sentence of death following a jury verdict of
guilty of first degree murder. First Judicial District Court, Carson City; Michael E. Fondi,
Judge.
Defendant was convicted for first degree murder in the beating death of his prison cellmate
and was sentenced to death by the district court. Defendant appealed. The Supreme Court
held that: (1) there was no error in denying motion for appointment of co-counsel; (2) any
error in defense counsel telling jury that he was court appointed was harmless; (3) statement
of defendant to correctional officer was not result of custodial interrogation; (4) defendant
was not prejudiced by amendment of indictment; (5) evidence was sufficient to sustain
finding of premeditation and deliberation; (6) defendant's psychiatric history did not negate
the finding of premeditation and deliberation; and (7) sentence of death was not excessive.
Affirmed.
[Rehearing denied March 12, 1991 and May 2, 1991]
Thomas E. Perkins, Carson City, for Appellant.
Brian McKay, Attorney General, David F. Sarnowski, Deputy Attorney General, Carson
City, for Respondent.
1. Criminal Law.
There was no error in denying first degree murder defendant's pre-trial motion for appointment of co-counsel, made on the day
before trial was to commence, after preparation and investigation were already complete. U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Appointment of co-counsel is discretionary, even in a capital case, and denial of co-counsel is appropriate when amount of
preparation and investigation required is not unduly burdensome. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Any error that may have occurred when defense counsel told jury that he was court appointed, allegedly in breach of duty of
loyalty, was harmless.
4. Criminal Law.
Correctional officer's action of shaking his head when defendant smiled at him during break between psychiatric examinations did
not constitute custodial interrogation, and thus defendant's response, inconsistent with his insanity defense, was admissible regardless
of whether fifth amendment applied. U.S.C.A.Const. Amend. 5.
5. Criminal Law.
Psychiatric examination for the limited purpose of rebutting a defendant's insanity defense does not implicate the fifth amendment.
Indictment is sufficient if offense is clearly and distinctly set forth in ordinary and concise language.
Amendments to indictments are allowed where court makes a finding that no substantial rights of defendant are prejudiced.
8. Criminal Law.
Defendant was not prejudiced by amendment to murder indictment deleting reference to hands and fists as instrumentalities of the
killing, where the amended language was neither inconsistent with the defense nor the State's case; moreover, defense hypotheticals as
to how victim was killed gave grounds to amend.
9. Criminal Law.
Standard of review regarding sufficiency of the evidence is whether any reasonable trier of fact could have found essential
elements of crime beyond a reasonable doubt.
10. Homicide.
Evidence in prosecution for first degree murder, including brutal and extensive nature of victim's injuries and a statement by
defendant, was sufficient to find premeditation and deliberation.
11. Homicide.
Premeditation and deliberation in connection with alleged first degree murder can be inferred from nature and extent of the
injuries, coupled with repeated blows.
12. Homicide.
Defendant's psychiatric history, indicating both episodic psychosis and sociopathic personality disorder, did not negate jury's
finding of premeditation and deliberation in first degree murder prosecution.
13. Homicide.
Sentence of death for first degree murder of defendant's cellmate in prison was not excessive, though jury found that some or all of
aggravating factors arose while defendant was under influence of extreme mental or emotional disturbance, in light of brutality of
beating of victim and defendant's significant history of criminal behavior.
14. Jury.
Jury in first degree murder prosecution was not unqualified on ground that some members were not asked if they would always
vote for the death penalty.
15. Jury.
There was no error in allowing juror to remain seated in murder prosecution after he had twice been exposed to outside pressure to
return a death sentence, where juror stated that he was not prejudiced by the incident and defense counsel declined to object.
16. Criminal Law.
There was no error in admission of previous judgment of conviction during murder prosecution where defendant opened door, on
direct examination of psychiatric witness, by eliciting testimony as to assault underlying the conviction and conclusion that defendant
may have been unable to distinguish right from wrong at that time.
17. Criminal Law.
District court did not err in not hearing murder defendant's motion for new trial, filed one day late. NRS 176.515, subd. 4.
18. Homicide.
In prosecution of defendant for murder of his prison cellmate, testimony of correctional officer at penalty hearing as to details of
the battery did not constitute a victim impact statement.
19. Homicide.
In obtaining death sentence for first degree murder, prosecution did not have to prove beyond a reasonable doubt that aggravating
circumstances outweighed litigating circumstances.
OPINION
Per Curiam:
On February 2, 1988, Ronald Cane, appellant's cellmate, was beaten to death. Mr. Cane
suffered numerous skull fractures accompanied by bleeding in and around the brain. Bruises
extended all over Mr. Cane's arms, legs, and back. Additionally, a metal rod was inserted into
Mr. Cane's right ear canal.
At approximately 8:30 p.m. on the night of February 2, 1988, officers responded to a fire
coming out of cell A-11, appellant's cell. Appellant was ordered to step out of the cell. He
complied. After the unit had been evacuated, Nurse Hanke entered the cell and discovered
Mr. Cane dead on the floor.
Detective Cooper took photographs of the scene. There was an incredible amount of blood
in the cell. Blood splatters were on the wall and a sea of blood was on the floor.
After the incident, Officer Bauer and Nurse Hanke heard appellant say I am sorry Ron.
Officer Bauer also heard appellant say Ron, I am sorry I killed you.
Upon trial by jury, appellant was convicted of first degree murder and sentenced to death.
Appellant raises several issues on appeal. Considered individually or collectively, the
issues do not justify interfering with jury's decision.
[Headnotes 1, 2]
Appellant first contends that it was error to deny his pre-trial motion for appointment of
co-counsel. We conclude that there was no error. Appointment of co-counsel is discretionary,
even in a capital case. Sechrest v. State, 101 Nev. 360, 705 P.2d 626 (1985). Denial of
co-counsel is appropriate when the amount of preparation and investigation required is not
unduly burdensome. Id. Since appellant's oral motion
1
for co-counsel took place on the day
before trial was to commence, preparation and investigation were already complete.
[Headnote 3]
Appellant next contends that trial counsel breached his duty of loyalty by telling the jury
he was court appointed. Appellant cites King v. Strickland, 748 F.2d 1462, 1464 (11 Cir.
1984), cert. denied, 471 U.S. 1016 (1985), as support for his position. In Strickland, defense
counsel attempted to distance himself from his client. Strickland at 1464. His closing
argument served only to dehumanize his client. Id. This is in contrast to the present case
where defense counsel merely stated I am asked by the Court to represent Mr. DePasquale
and I am privileged to do so. Unlike the defendant in Strickland, Mr. DePasquale was not
prejudiced by trial counsel's statement. Thus, any error that may have occurred was harmless.
[Headnote 4]
Appellant's third argument is that the trial court erred in admitting statements made to a
correctional officer during a break between psychiatric examinations. We find that there was
no error.
On August 11, 1989, Correctional Office John Messick transported appellant to Lake's
Crossing to be examined by Dr. Molde and Dr.
__________

1
Counsel failed to file a written motion demonstrating the complexity of the case pursuant to the court's
request.
and Dr. Henson. In between examinations, appellant looked at Officer Messick and smiled.
Officer Messick smiled back and shook his head. Appellant responded by saying It's just a
game. You have to talk to each one of them differently.
No Miranda warnings were given on the scene. However, appellant had previously been
informed of his Miranda rights by the court.
The court allowed the State to present appellant's statement during the rebuttal case in
response to the insanity defense. The State's theory was that appellant constructed a facade of
mental illness to avoid responsibility for his conduct.
[Headnote 5]
Preliminarily, we note that a psychiatric examination for the limited purpose of rebutting a
defendant's insanity defense does not implicate the fifth amendment. Buchanan v. Kentucky,
483 U.S. 402 (1987); see also Haynes v. State, 103 Nev. 309, 318, 739 P.2d 497, 503 (1987)
(statement is not incriminatory merely because it tends to show that the defendant is sane).
Thus, it is questionable whether the fifth amendment even applies to this statement. We need
not reach this issue, however, as we determine that Officer Messick's action of shaking his
head did not constitute a custodial interrogation. See Rhode Island v. Innis, 446 U.S. 291
(1980).
Appellant's next contention is that the court erred in concluding its case-in-chief. The
original information, dated January 20, 1989, charged that appellant did with malice
aforethought, deliberation and premeditation, kill Ronald Cane by stabbing him with a sharp,
pointed instrument, and beating him with his hands and fists, in violation of Sections 200.010
and 200.030. The amended information, dated September 14, 1989, reads exactly the same
except that the words with hands and fists were deleted.
[Headnotes 6, 7]
An indictment is sufficient if the offense is clearly and distinctly set forth in ordinary and
concise language. Brimmage v. State, 93 Nev. 434, 440, 567 P.2d 54, 58 (1977).
Amendments are allowed where the court makes a finding that no substantial rights of the
defendant are prejudiced. See State v. Jones, 96 Nev. 71, 73-74, 605 P.2d 202, 206 (1980)
(reversible error exists only where the variance between the charge and proof was such as to
affect the substantial rights of the accused); Biondi v. State, 101 Nev. 252, 256, 699 P.2d
1062, 1064-1065 (1985) (presentation of alternate theory during closing argument was not
prejudicial where defendant was able to properly prepare defense).
[Headnote 8]
Appellant asserts that he was prejudiced by the amendment. At trial, appellant proffered
evidence that Mr. Cane was killed with a heavy club and that appellant had no club or other
weapon.
2
Appellant asserts that the State, by amending the information, changed its theory
as to the means by which Cane was killed.
The record does not support appellant's contention. The district court properly found that
the amended language was neither inconsistent with the defense, nor the State's case.
Moreover, defense hypotheticals of sitting on top of the victim and slamming his head into
the floor gave grounds to amend. We therefore conclude, that appellant was not prejudiced by
the amendment.
Turning now to some of the more difficult issues, we first consider whether the evidence
was sufficient as a matter of law to support a conviction of murder in the first degree.
[Headnote 9]
The standard of review regarding sufficiency of the evidence is whether any reasonable
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980).
[Headnotes 10, 11]
As evidence of premeditation and deliberation, the prosecution put forth a letter written by
the defendant (dated February 21, 1988) in which he said I am immature in a lot of ways,
more like a stubborn, rebellious child. I do need to learn responsibility and accountability in
my life. Other than this, the only real evidence of premeditation and deliberation was the
beating itself. No motive for the killing was presented.
Appellant argues that the evidence presented cannot support the jury's finding of
premeditation and deliberation. We disagree. Premeditation is generally established by
circumstantial evidence. Hern v. State, 97 Nev. 529, 533, 635 P.2d 278, 281 (1981).
Premeditation and deliberation can be inferred from the nature and extent of the injuries,
coupled with repeated blows. Id. Given the brutal and extensive nature of Mr. Cane's injuries
(including injuries to the head, torso, ribs and back), an inference of premeditation and
deliberation can be reasonably drawn. This is particularly true when considering the metal rod
which was inserted deeply into the victim's ear. It is difficult to imagine such a process
occurring without deliberate thought.
__________

2
Dr. Salvadorini, a pathologist, expressed an opinion that a weapon was used in the killing. Detective Brian
Kennedy reached the sane conclusion by analyzing the blood splatters on the wall of the cell.
[Headnote 12]
Appellant asserts that his composite psychiatric history, combined with the clearly
impulsive nature of the offense, negates any possibility that the offense was committed on
rational deliberation of the kind thought to separate first from second degree murder. We
conclude otherwise.
Several psychiatrists testified as to appellant's psychiatric condition. The consensus was
that appellant suffers from both episodic psychosis
3
and a sociopathic personality disorder.
The relevant question is whether appellant was acting while in a psychotic state, or whether
he was merely exhibiting his sociopathic tendencies.
The jury found that some or all of the aggravating factors arose while appellant was under
the influence of extreme mental or emotional disturbance. The jury declined to find, however,
that appellant was under the influence of extreme mental or emotional disturbance when he
murdered Ronald Cane. The jury's finding should not be disturbed if it is supported by
substantial evidence.
Prison psychologist Mace Knapp testified that he had observed appellant leaving the chess
club at 6:20 p.m. on February 2, 1988. Appellant appeared normal and rational.
Approximately two hours later appellant was pulled out of his cell and the body of Ronald
Cane was discovered. Appellant was very talkative, yet calm and co-operative. He
acknowledged the presence of Officer Bauer and Sergeant Cartwright.
Defense counsel brought various inmates to testify that appellant was acting bizarre on
the day of the incident. The jury nevertheless found the prosecution testimony persuasive.
Substantial evidence supports the jury's finding. We therefore conclude, that appellant's
psychiatric history does not negate the jury's finding of premeditation and deliberation.
[Headnote 13]
Having concluded that appellant's psychiatric history will not negate premeditation and
deliberation, we next consider whether the sentence of death is excessive, considering both
the crime and the defendant.
Preliminarily, we note that the jury found two aggravating circumstances. First, the murder
was committed by the defendant while under a sentence of imprisonment.
4
Second, appellant
had been previously convicted of a felony involving the use of violence.5 The record
supports a finding of both aggravating circumstances.6
__________

3
Appellant has a history of psychotic episodes. On one occasion, appellant pulled his own eye out of its
socket.

4
Appellant was serving a sentence of 10 years incarceration upon a judgment of guilty for the crime of
larceny from the person.
been previously convicted of a felony involving the use of violence.
5
The record supports a
finding of both aggravating circumstances.
6

The jury also found three mitigating circumstances. First, the jury found that some or all of
the aggravating factors arose while the defendant was under the influence of extreme mental
or emotional disturbance. Second, appellant came from a dysfunctional family. Third,
appellant had a history of drug abuse.
The jury found the mitigating circumstances insufficient to outweigh the aggravating
circumstances and sentenced appellant to death.
Appellant argues that the sentence is excessive because the offense had no appreciable
degree of premeditation and because it was the product of mental illness. He relies principally
on Haynes v. State, 103 Nev. 309, 739 P.2d 497 (1987).
In Haynes, this court found a sentence of death to be excessive. The killing was crazy
and motiveless. Haynes, 103 Nev. at 319, 739 P.2d at 503. The offender was a mentally
disturbed person lashing out irrationally, and probably delusionally, and striking a person he
did not know and probably had never seen before. Id.
The present case is distinguishable from Haynes. First, the jury declined to find that
appellant was acting under the influence of extreme mental or emotional disturbance at the
time of the killing. Second, appellant had a criminal record, including several convictions
dating back to the late 1970's.
7
And third, every psychiatrist who examined appellant
concluded that he had an anti-social personality disorder. Compare Moran v. State, 103 Nev.
138, 734 P.2d 712 (1987) (where murders were acts of senseless and mindless violence, but
where mitigating circumstances of lack of prior significant criminal history and remorse were
relatively weak, sentences of death were properly imposed pursuant to NRS 200.030 and
were not disproportionate to other cases involving similar circumstances).
__________

5
Appellant had been convicted of battery with use of a deadly weapon. Specifically, appellant struck
Correctional Officer Campbell with an aluminum flashlight, causing head injuries, an eye injury, and cracked
teeth.

6
In order to prove the aggravating circumstances alleged against appellant, the State introduced the testimony
of Officer Charles Campbell, and the amended information and judgment of conviction on the prior felony. The
State also introduced certified court documents reflecting that appellant had been convicted of larceny from the
person in Clark County.

7
Contrast this to Mr. Haynes whose death sentence was based on a single aggravating circumstance which the
court characterized as a prior violent act in the form of an armed robbery committed fifteen years prior to this
crime when Haynes was eighteen years old. Haynes, 103 Nev. at 319, 739 P.2d at 503.
In light of the brutality of the beating and appellant's significant history of criminal
behavior, we determine that a sentence of death was not excessive. We further determine that
the sentence was not imposed under the influence of passion, prejudice, or any arbitrary
factor.
[Headnote 14]
Appellant's remaining contentions are meritless. First, appellant claims that the jury was
unqualified because some members of the jury were not asked if they would always vote for
the death penalty. Appellant cites no authority which would require the court or counsel to
ask every juror this question.
[Headnote 15]
Second, appellant claims it was error to allow juror Berg to remain seated after he had
been twice exposed to outside pressure to return a death sentence.
8
Juror Berg stated clearly
for the record that he was not in any way prejudiced by the incidents. Defense counsel
declined to object to Berg's continued participation.
[Headnote 16]
Third, appellant alleges error in that a previous judgment of conviction was entered during
the guilt phase of the trial. Appellant opened the door, however, to this admission. It was
appellant's witness, Dr. Master, who testified regarding the assault in question and concluded
that appellant may have been unable to distinguish right from wrong at that time. On rebuttal,
the State then offered the judgment of conviction as evidence that appellant knowingly pled
to the assault. Since appellant was found competent to enter the plea, he was presumed to be
sane at the time of the commission of the offense.
[Headnote 17]
Fourth, appellant argues that the district court should have heard his motion for new trial.
The record reflects, however, that appellant filed his motion on September 22, 1989eight
days after the conclusion of proceedings.
9
Appellant thus missed the seven day deadline
imposed by NRS 176.515(4).
[Headnote 18]
Fifth, appellant contends that the testimony of Correctional Officer Campbell at the
penalty hearing constituted impermissible victim impact statements under Booth v. Maryland,
482 U.S. 496 {19S7).
__________

8
On two occasions, fellow employees urged juror Berg to fry the son of a bitch.

9
The record indicates that the proceedings concluded at 11:53 p.m. on September 14, 1989.
(1987). Officer Campbell's testimony did not constitute a victim impact statement; he merely
testified as to the details of the battery.
[Headnote 19]
Finally, appellant argues that the prosecution should have to prove beyond a reasonable
doubt that aggravating circumstances outweigh mitigating circumstances. He asserts that this
court should overturn previously established case law to the contrary.
10
See Ybarra v. State,
100 Nev. 167, 679 P.2d 797 (1984); Gallego v. State, 101 Nev. 782, 711 P.2d 856 (1985). We
decline to disturb established precedent.
For the reasons discussed above, appellant's judgment of conviction and sentence of death
are affirmed.
__________
106 Nev. 852, 852 (1990) State, Dep't of Mtr. Vehicles v. McLeod
Appellant, v. MICHELLE H. McLEOD, Respondent.
No. 20304
December 7, 1990 801 P.2d 1390
Appeal from an order of the district court reversing a decision of the Department of Motor
Vehicles and Public Safety revoking respondent's driving privileges. Eighth Judicial District
Court, Clark County; Donald M. Mosley, Judge.
State appealed from order of the district court which reversed decision of the Department
of Motor Vehicles and Public Safety revoking driving privileges. The Supreme Court held
that: (1) failure to give Miranda warnings to motorist did not make her statements
inadmissible in revocation hearing; (2) corpus delicti rule did not apply to revocation
proceeding; (3) officer had adequate grounds for requiring motorist to submit to evidentiary
test; and (4) there was substantial evidence to support revocation.
Brian McKay, Attorney General, Carson City, Grenville T. Pridham, Deputy Attorney
__________

10
Under Nevada law, the State is required to prove beyond a reasonable doubt the existence of aggravating
circumstances; the accused is then allowed to present evidence of mitigating circumstances. Ybarra v. State, 100
Nev. 167, 176, 679 P.2d 797, 802 (1984). See also Gallego v. State, 101 Nev. 782, 711 P.2d 856 (1985). The
sentencing authority must then weigh whether the mitigating factors outweigh the aggravating factors; if they do
not, the death penalty may be imposed. Ybarra, 100 Nev. at 176, 679 P.2d at 802.
Goodman, Stein & Chesnoff and Eckley M. Keach, Las Vegas, for Respondent.
1. Automobiles.
Absence of Miranda warnings did not make motorist's statements to officer inadmissible in license revocation proceeding.
2. Criminal Law.
Corpus delicti rule requires that corpus delicti of crime be established before admissions of defendant may be considered in
deciding whether defendant committed the crime.
3. Administrative Law and Procedure; Automobiles.
Corpus delicti rule did not apply with respect to consideration of motorist's admissions in license revocation proceeding.
4. Automobiles.
Officer who administered horizontal gaze nystagmus test to motorist and noticed that motorist had an odor of alcohol on her breath
and that her eyes were bloodshot had reasonable grounds to believe that motorist had been driving under the influence and adequate
grounds for requiring her to submit to evidentiary test with respect to blood alcohol content, even though motorist was suffering from a
head injury and officer knew that head injury could affect the results of the horizontal gaze nystagmus test.
5. Automobiles.
Revocation of motorist's driver's license was supported by evidence that officer found her sitting behind wheel of automobile with
an injury, that her eyes were bloodshot, that her breath smelled of alcohol, and that her blood alcohol level was .16 percent.
Neither the Supreme Court nor district court may substitute its judgment for that of administrative agency as to weight of evidence
on questions of fact.
OPINION
Per Curiam:
On March 8, 1988, at approximately 5:50 a.m., Officer Timothy Hagen of the Las Vegas
Metropolitan Police Department was dispatched to the Suburban Lounge to investigate an
accident. When Hagen arrived at the lounge, he found respondent, Michelle McLeod, sitting
in her car. Medical personnel were attending to her. When Officer Hagen asked what
happened, McLeod responded that she had been driving northbound on a street just up the
road from the lounge when she came to a stop sign. She noticed a woman on the corner
putting a letter into a mailbox. McLeod stated that she then made a right turn on to Spring
Mountain Drive and struck the rear of a vehicle parked in a no-parking zone. The woman
who had been dropping off the mail told McLeod that it was her car, but that she could not
wait for the police to arrive. The women wrote her name and address for McLeod before
leaving.
address for McLeod before leaving. While talking to McLeod, Officer Hagen noticed that she
had an odor of alcohol on her breath and her eyes were bloodshot. McLeod stated that she had
had one drink.
After McLeod was transported to the hospital, Officer Hagen conducted a horizontal gaze
nystagmus test on her. Following the test, Officer Hagen believed that McLeod was
intoxicated, and he therefore informed McLeod of her responsibility to submit to an
evidentiary test. McLeod agreed to submit to a blood test which revealed a blood alcohol
level of 0.16 percent. Consequently, the Department of Motor Vehicles and Public Safety
(DMV) revoked McLeod's driving privileges.
Upon McLeod's request, an administrative hearing was held on May 10, 1988. During
Officer Hagen's testimony, he recounted the statements McLeod had made to him at the
lounge. The DMV hearing officer upheld the revocation of McLeod's driving privileges. The
hearing officer concluded that Officer Hagen had reasonable grounds to believe that McLeod
was driving under the influence of intoxicating liquor and that her blood alcohol level was
over 0.10 percent.
McLeod then petitioned the district court for judicial review. On June 28, 1989, the district
court issued an order reversing the revocation of McLeod's driving privileges. The court
stated that McLeod's statements to Officer Hagen should not have been admitted at the
hearing, because Officer Hagen had not given McLeod Miranda
1
warnings before
questioning her. The court also stated that the hearing officer's decision violated the corpus
delicti rule. The court further concluded that Officer Hagen should not have required McLeod
to submit to an evidentiary test, because he had not had reasonable grounds to believe that she
was intoxicated. See NRS 484.383(1) (a driver is deemed to consent to a test when
administered by a police officer having reasonable grounds to believe that the person to be
tested was driving under the influence). Finally, the district court held that there was not
substantial evidence that McLeod had been driving while under the influence of intoxicating
liquor.
[Headnote 1]
We first conclude that the district court erred in ruling that the lack of Miranda warnings
made McLeod's statements to Officer Hagen inadmissible. This case is a civil license
revocation proceeding, not a criminal prosecution. In Yohey v. State, Dep't Motor Vehicles,
103 Nev. 584, 587, 747 P.2d 238, 240 (1987), this court noted that [t]he objective of
administrative revocation of a driver's license under NRS 4S3.460 is not to impose
additional punishment but to protect the unsuspecting public from irresponsible drivers."
__________

1
See Miranda v. Arizona, 384 U.S. 436 (1966).
of a driver's license under NRS 483.460 is not to impose additional punishment but to protect
the unsuspecting public from irresponsible drivers. Consequently, McLeod's statements
made without the Miranda warnings were admissible in the DMV proceedings. Further,
Miranda warnings are not necessary before reasonable questioning and administration of field
sobriety tests at a normal traffic stop. Dixon v. State, 103 Nev. 272, 274, 737 P.2d 1162, 1164
(1987).
[Headnotes 2, 3]
We further conclude that the district court erred in ruling that the corpus delicti rule had
been violated. The district court's order stated that McLeod's own admission was the only
evidence that she had been driving. The court stated that this was a violation of the corpus
delicti rule.
We note, however, that the corpus delicti rule requires that the corpus delicti of a crime be
established before the admissions of a defendant may be considered in deciding whether the
defendant committed the crime. See Sheriff v. Larsgaard, 96 Nev. 486, 488, 611 P.2d 625,
626 (1980). Because this case is a civil proceeding, no crime has been charged. Accordingly,
the corpus deliciti rule does not apply. See Ballard v. State, Motor Vehicle Division, 595 P.2d
1302, 1305 (Utah 1979).
[Headnote 4]
We next conclude that the district court erred in ruling that Officer Hagen did not have
reasonable grounds to believe that McLeod was driving under the influence. The district court
noted that McLeod had a head injury when Officer Hagen administered the horizontal gaze
nystagmus test. Officer Hagen admitted at the hearing that a head injury can affect the results
of the horizontal gaze nystagmus test. Thus, the district court found that the results of the test
were unreliable and could not serve as grounds for requiring McLeod to submit to an
evidentiary test.
We note, however, that Officer Hagen also testified that he noticed that McLeod had an
odor of alcohol on her breath and that her eyes were bloodshot. These indications of
intoxication were adequate grounds for Officer Hagen to have required McLeod to submit to
an evidentiary test.
[Headnotes 5, 6]
Finally, we conclude that substantial evidence otherwise supports the decision of the
hearing officer. Officer Hagen found McLeod sitting behind the wheel of her vehicle with an
injury. She admitted to having driven and having been in an accident nearby. Officer Hagen
noticed that her eyes were bloodshot and her breath smelled of alcohol. Her blood alcohol
level was 0.16 percent.
percent. These facts constitute substantial evidence to sustain the revocation. Neither this
court nor the district court may substitute its judgment for that of the administrative agency as
to the weight of the evidence on questions of fact. State, Dep't Mtr. Veh. v. Jenkins, 99 Nev.
460, 462, 663 P.2d 1186, 1188 (1983).
Accordingly, we reverse the order of the district court, and remand for further proceedings
____________
106 Nev. 856, 856 (1990) Fondi v. Fondi
JANICE I. FONDI, Appellant, v. MICHAEL E. FONDI, Respondent.
No. 20744
December 7, 1990 802 P.2d 1264
Appeal from a judgment and decree of divorce. First Judicial District Court, Carson City;
Jerry Carr Whitehead, Judge.
Divorce action was brought in which wife's interest in husband's retirement plan and
alimony were disputed. Judgment and decree of divorce was entered in the district court.
Wife appealed. The Supreme Court held that: (1) wife's community share in husband's
retirement plan must be measured using pension which husband will receive upon retirement;
(2) trial court improperly presumed that husband's continued participation in pension plan
was dependent upon husband's extraordinary efforts; and (3) denial of wife's request for
alimony was not an abuse of discretion.
Affirmed in part; reversed and remanded in part.
Feldman, Shaw & DeVore, Zephyr Cove, for Appellant.
Robison, Belaustegui, Robb & Sharp, Reno, for Respondent.
1. Divorce.
The wait and see approach to division of community interest in employed spouse's pension plan as part of divorce action does
not require that actual division of pension plan must wait until employee spouse is able to retire; the approach simply requires that
community share in retirement plan be measured using the pension received upon retirement.
2. Divorce.
In divorce action where community interest in husband's retirement plan was divided, trial court improperly calculated wife's
community share based on husband's current service in retirement system rather than determining her community share based on size
of pension which will ultimately be received by employee spouse. 3.
106 Nev. 856, 857 (1990) Fondi v. Fondi
3. Divorce.
In divorce action in which community interest in husband's retirement plan was divided, trial court improperly presumed that
husband's future participation in pension plan would be dependent upon husband's extraordinary effort to be re-elected as district court
judge, since this presumption improperly shifted burden to wife to show that husband's continued participation in retirement plan did
not result from husband's extraordinary post-divorce efforts.
4. Divorce.
Where community interest in spouse's retirement plan have been divided as part of divorce action, non-employee spouse may
begin to collect benefits from her portion of community interest in employee spouse's retirement plan when employee spouse becomes
eligible for full retirement benefits rather than waiting until employee spouse actually retires.
5. Divorce.
Denial of wife's request for alimony was not an abuse of discretion since wife received $91,000 cash award, significant amount of
husband's pension plan, each party left marriage with same marketable skills and talents that were brought to union, and wife was
never obligated to stay home and raise children during the marriage, which lasted approximately sixteen years. NRS 125.150, subd. 8.
6. Divorce.
Failure to retain jurisdiction over future alimony claims was not an abuse of discretion since present alimony award was
determined to be improper and present alimony determination was based on facts known when decision was made, and did not involve
termination of present alimony award based on future events.
OPINION
Per Curiam:
Janice and Michael Fondi were married on August 25, 1973. At the time of the marriage,
Janice worked as a legal secretary in the Carson City district attorney's office, where Michael
also served as district attorney. Following the marriage, Janice worked for various state
agencies, first as a legal secretary and then as an administrative assistant. She quit full-time
employment in 1975, and remained at home for several years before returning to part-time
work in 1977 as a secretary for the lieutenant governor. This employment lasted for the
duration of the legislative session. Janice also worked for the legislature during the 1979 and
1981 sessions as secretary for the assembly minority leader.
In 1986, appellant began working for the Western Nevada Development District (WNDD)
on a part-time basis. In 1989, Janice became employed full-time by that agency as an
administrative assistant. At the time of trial, she remained employed by the WNDD, at an
annual salary of $16,600.00.
Respondent Michael Fondi is now a district judge for the First Judicial District Court in
Carson City.
106 Nev. 856, 858 (1990) Fondi v. Fondi
Judicial District Court in Carson City. He was appointed to this position in 1977, following
several years service in the Carson City district attorney's office, both as a deputy and district
attorney. Judge Fondi has been re-elected as district judge several times and was again
re-elected this year.
Janice petitioned for divorce on February 10, 1989. The complaint was originally filed in
Clark County, but on March 7, 1989 venue was transferred to the parties' Carson City
residence. Trial of this matter proceeded on June 12 and 13, 1989 in district court. Although
much testimony was heard by the court, the main issues disputed at trial were the ones
contested in this appealnamely, Janice's share of Michael's retirement pension, and whether
she should be awarded alimony.
With regard to the pension issue, the court below determined that Janice was entitled to
$1015.00 per month, payable in eight years when Michael reached the minimum retirement
age of sixty years. In calculating this award, the court first divided the number of years the
parties were married (15.77), by the number of years (25.9) Judge Fondi has currently
contributed to the Public Employees Retirement System (PERS). This figure, approximately
sixty percent (15.77 25.9), was deemed the community share of Michael's pension. The
court then determined that Michael's pension would be $3384.00 per month, were he to retire
today. Thus the court took sixty percent of this number and labeled it the community's
interest in the pension$2030.00 per month. Janice was then awarded one-half of this, or
$1015.00 per month. Finally, the court retained jurisdiction over the pension distribution in
case future events revealed the division to be inequitable.
On the other main issue of contention, alimony, the court rejected most of Janice's claims.
Appellant sought an award of alimony so that she could receive education and retraining (in
the field of accounting) in order to obtain a better paying job. The court below found that
Janice was able and intelligent and would be sought after by many employers if she [would
pursue] her previous training as a legal secretary . . . . Therefore, the court refused to provide
alimony, although it did award Janice $3000.00 in order to familiarize herself with computer
technology changes that had occurred since appellant had last worked as a legal secretary in
1974. Finally, the district court declined to retain jurisdiction in order to consider future
alimony requests by Janice. This appeal followed.
The Community Interest in the Retirement Plan
Appellant's initial contention is that the district court failed to apportion properly the
community interest in Michael's retirement plan.
106 Nev. 856, 859 (1990) Fondi v. Fondi
apportion properly the community interest in Michael's retirement plan. Our recent decision
in Gemma v. Gemma, 105 Nev. 458, 778 P.2d 429 (1989), controls our analysis on this issue.
In Gemma, we held that the time rule should be used by the district court in determining the
community interest in a retirement plan. Id. at 462-63, 778 P.2d at 432. Under this rule, we
explained, the community interest is represented by a fraction, the numerator of which is the
time the parties were married, the denominator is the total time worked before full retirement
benefits may be received. Id. at 461, 778 P.2d at 431. Hence, we use the name time rule,
since the community share is directly proportionate to the amount of time the parties were
married.
[Headnote 1]
In Gemma, we did not simply adopt the time rule, however, we also mandated that the
community share of benefits must be measured using the wait and see approach. Id. at 462,
778 P.2d at 431. More specifically, the Gemma court held that the community gains an
interest in the pension ultimately received by the employee spouse, not simply the pension
that would be recovered were the spouse to retire at the time of divorce. Id. at 462, 778 P.2d
at 432 (emphasis added). Because the size of the ultimate benefits are unknown to the court at
the time it renders its decision, the parties must therefore wait and see to determine the size
of the actual community benefit.
1

In Gemma, the employee spouse pointed out an apparent flaw in this wait and see
approach. Id. at 462, 778 P.2d at 431. Namely, appellant in Gemma complained that the
pension ultimately received is often measured using the highest salary earned by the
employee, and this salary, in turn, is usually the one earned just before retirement, after the
divorce has occurred. Id. Therefore, Mr. Gemma argued that using the pension ultimately
received, rather than the hypothetical pension were the employee to retire at the time divorce,
unfairly allowing the community to benefit from post-divorce labor. Id.
We recognized that such an argument may occasionally have merit. Id. at 462-63, 77S
P.2d at 431-32.
__________

1
The important principle to be gleaned from this wait and see discussion is not that actual division of the
pension plan must wait until the employee spouse is able to retire, it is simply that the community share in the
retirement plan must be measured using the pension received upon retirement. In practice, the uncertainties
involved in calculating future pension increases will often mean waiting until retirement age in order to
determine the size of the community benefit. If the size of the pension that will ultimately be received may be
determined to a reasonable certainty, however, nothing in this opinion would prohibit division of the pension
interests at the time of divorce.
106 Nev. 856, 860 (1990) Fondi v. Fondi
merit. Id. at 462-63, 778 P.2d at 431-32. We also noted, however, that in the usual case the
early working periods were often the building blocks to upward mobility and . . . increased
salary. Id. at 462, 778 P.2d at 431. Because the size of the full pension was therefore based
on earlier community labor, we concluded that the community should receive a share of this
full benefit, even though such a share may have been based in part upon post-divorce income.
Id.
We further recognized in Gemma, however, that occasionally a substantial increase in
retirement benefits might be almost completely due to work or achievement after the
marriage. Id. As we noted in Gemma, since an extraordinary increase in benefits might occur
where the employee spouse attains a significantly higher-paying position while remaining
within the coverage of the same pension plan, either through earning a post-divorce degree, or
transfer within the company to an unrelated area of service. Id. Such a situation, we reasoned,
stood in sharp contrast to the usual one, where the employee's wage increases were simply
due to a rise in the cost of living, or a gradual movement up the corporate ladder. Id. at 462,
778 P.2d at 432.
To accommodate this unusual situation, we held that where an employee spouse believes
that the income he or she will receive on retirement will be a reflection of increased effort
after marriage, this spouse can request that the court retain jurisdiction in the event such
predictions become realized. Id. at 463, 778 P.2d at 432. Should the district court later agree
that the pension was increased due to such extra effort, benefits may then be recalculated
using the highest income the employee spouse would have received under the normal course
of events, this being ordinary promotions and cost increases . . . . Id. We reasoned that
providing such a procedure would allow the lower courts to accommodate those relatively
few cases where allowing the non-employee spouse to recover a share of the full pension
would be inequitable. Id.
[Headnote 2]
It is clear from the above discussion that the court below improperly applied the principles
set out in Gemma. The trial court in this case calculated the community share in Michael's
pension by dividing the number of years the parties were married by the number of years
Michael had worked in earning the pension at the time of the proceedings. The district court
then multiplied this fraction by the amount Michael would receive in benefits based on his
current service in the Nevada retirement system; that is, the court calculated Michael's
pension as if the day of the proceedings were his final working day. Thus the method used by
the trial court runs counter to this court's Gemma decision, which required that the
community share be determined using the size of the pension ultimately received.
106 Nev. 856, 861 (1990) Fondi v. Fondi
method used by the trial court runs counter to this court's Gemma decision, which required
that the community share be determined using the size of the pension ultimately received.
[Headnote 3]
In rendering its decision, the court below realized that it was departing from the time
rule.
2
The district court attempted to justify this departure, however, by reasoning that,
because Michael was an elected district court judge, his future participation in the pension
plan was dependent on his being re-elected. Reasoning that re-election would almost certainly
require extraordinary effort, the district court decided that any increase in Michael's pension
would be the result of this increased toil, and therefore should not be shared by the
community. Nevertheless, since it was possible that Michael would not need to put forth
remarkable effort in getting re-elected, the court retained jurisdiction so that if only ordinary
effort were expended, the community share of the pension could be adjusted accordingly.
A close examination reveals that the trial court's reasoning is inconsistent with the
principles expressed in Gemma. In Gemma, we held that the initial calculation must always
comply with the time rule and wait and see approaches. Nevertheless, because
occasionally this determination would be unfair, we allowed the trial court to retain
jurisdiction, in order to permit the employee spouse to show that a pension increase was due
to extraordinary post-divorce effort.
[Headnote 4]
Under Gemma, the trial court cannot, however, presume that such spectacular effort will
occur, and simply retain jurisdiction to allow the non-employee spouse to show that such
effort never came to fruition. The trial court did so here by deciding to calculate Michael's
pension as if re-election would necessarily require extra exertion, and then placing the burden
on Janice to show that only ordinary effort had taken place. By shifting the burden to the
non-employee spouse (who is unlikely to have much information about the amount of energy
expended by the other party) in this manner, the trial court improperly applied Gemma, and
hence, incorrectly calculated the community interest in Michael's pension.
3
The Alimony
Question
The Alimony Question
__________

2
In the opinion of the court below, as well as the Gemma opinion itself, both time rule and wait and see
concepts are often referred to under the time rule label. We make clear today that the two are distinct concepts.

3
We note that the trial court was correct in its holding that Janice may begin to collect her benefits at the
time Michael becomes eligible for full retirement benefits; she need not wait until Michael actually retires. See
Gemma, 105 Nev. at 464, 778 P.2d at 432.
106 Nev. 856, 862 (1990) Fondi v. Fondi
The Alimony Question
Appellant's second contention is that the district court abused its discretion in failing to
award her alimony. Our decision on this issue is guided by our recent ruling in Heim v. Heim,
104 Nev. 605, 763 P.2d 678 (1988). In Heim, we held that the district judge must, in making
an alimony decision, form a judgment as to what is equitable and just, having regard to the
respective merits of the parties and to the condition in which they will be left by divorce. Id.
at 609, 763 P.2d at 680. We then applied this standard and concluded that, under the
circumstances, a $500.00 per month alimony award was not equitable and just, and
therefore was an abuse of discretion. Id. at 612-13, 763 P.2d at 683.
Heim involved a couple that had been married for thirty-five years. Id. at 606, 763 P.2d at
678. During the marriage, the husband had earned a Ph.D and achieved a position as
department chairperson of a state university, at a salary of $5600.00 per month. Id. at 606-07,
763 P.2d at 678-79. By contrast, the wife did not pursue her own employment or career so
that she could remain at home and raise the parties' six children. Id. at 606, 763 P.2d at 678.
At the time of the divorce, therefore, the wife had no professional skills, was fifty-seven years
old, and had never earned more than $600.00 per month. Id. at 607, 763 P.2d at 679.
Consequently, under the terms of the district court award in Heim, the wife was left with only
a 1982 Buick, a mortgaged house in Detroit (worth approximately $10,000.00), and a future
interest in half of her husband's retirement benefits, in addition to her $500.00 per month
alimony award. Id.
We reasoned in Heim that such a settlement created an enormous disparity in the status
and quality of life of the two marital partners . . . . Id. at 611, 763 P.2d at 681. We further
noted that part of this unfairness was due to the fact that the husband had obtained the ability
during the marriage to earn $67,000.00 per year, while the wife left the marital partnership
having obtained virtually nothing. Id. at 611, 763 P.2d at 682. This court pointed out that if
the trial court's distribution were allowed to stand, divorce would take Mrs. Heim from a
position of relative prosperity to one of destitution.
4
Because such a result would have
been manifestly unjust, we vacated the $500.00 alimony stipend and remanded the case for
reconsideration of the award, "not necessarily limited to the $1500.00 per month prayed
for by [Mrs.]
__________

4
Id.at 612, 763 P.2d at 683. On this point, the court further noted that, [a] woman is not a breeding cow to
be nurtured during her years of fecundity, then conveniently and economically converted to cheap steaks when
past her prime. Id at 611, 763 P.2d at 682 (citation omitted).
106 Nev. 856, 863 (1990) Fondi v. Fondi
not necessarily limited to the $1500.00 per month prayed for by [Mrs.] Heim. Id. at 613,
763 P.2d at 683.
5

Appellant contends that her situation is closely analogous to that in Heim. There are,
however, several important differences between that case and the one at bar. First, the Fondis'
marriage was of much shorter duration that the one in Heim, and here Judge Fondi had
obtained both his legal degree, and his standing in the legal community, prior to the marriage.
Second, Janice leaves the marriage with marketable skills as a legal secretary.
6
These skills,
especially after they are brought up to date with the $3000.00 awarded by the district court,
indicate that this is not a situation where one party leaves the marriage without a viable means
of supporting her or himself.
__________

5
The Heim case is not this state's only response to the situation where one spouse leaves the marriage having
obtained marketable skills, while the other leaves with virtually nothing. In 1989, the legislature passed
amendments to NRS 125.150 that must now serve as a guide to district courts presented with such a
predicament. These amendments, which became effective October 1, 1989, require that in formulating alimony
awards, the lower courts shall consider a spouse's need for obtaining career-related training. NRS 125.150(8)
further mandates that the lower courts, in addressing the problem, consider both: (1) whether the spouse who
would pay such alimony has obtained greater job skills during the marriage; and (2) whether the spouse who
would receive such alimony provided financial support while the other spouse obtained job skills or education.
The legislative history of these amendments indicates that they were passed as a response to the growing
number of unskilled spouses who are forced into poverty as the result of a divorce. See Minutes of the Assembly
Committee of Judiciary, 65th Sess. at 4-5 (May 22, 1989). The legislature therefore created this measure as a
way of allowing these spouses to obtain some sort of job skill, especially in situations where community funds
and labor have been used to educate and train the other spouse. Id. at 5. Such a measure, the bill's sponsors
reasoned, would have the added benefit of increasing Nevada's workforce and reducing the state's welfare roles.
Id. at 6.
The trial court's ruling in this case does not run afoul of the requirements of NRS 125.150(8). To begin, that
section merely requires that the trial court consider the possibility of job training for the non-working spouse.
In this case, the trial court did examine this option, but rejected it because it found that Janice already possessed
marketable skills as a legal secretary. Also, since Janice already boasts these abilities, she is not within the class
of unskilled workers that this statute was designed to benefit. Finally, neither of the scenarios posited under NRS
125.150 exist here, since Michael brought both his legal skills and reputation into the marriage, and therefore did
not receive any financial support from Janice in acquiring these assets. Accordingly, NRS 125.150 provides no
support for appellant's argument that the trial court's failure to provide alimony was error.

6
The record reveals that Janice received nine months of training as a legal secretary form the Reno Business
College. After completing this training in 1967, she worked as a legal secretary from 1968 until 1974. As
discussed above, she has also held several part-time secretarial jobs since 1975.
106 Nev. 856, 864 (1990) Fondi v. Fondi
Another important difference between this case and Heim is that Janice leaves the
marriage with far more property than did the spouse in Heim. Janice received a $91,000.00
cash award under the district court order, not including her interest in Michael's retirement
plan. A further distinguishing characteristic is that Janice was never obligated to stay home
and raise children. The marriage here was childless, and although Michael's twelve-year-old
son from a previous marriage moved in with the Fondis in 1978, the record indicates that
Janice was not required to stay home and care for him. Nor did she always do so, as her work
for the legislature in 1979 and 1981 reveals.
[Headnote 5]
The conclusion that Janice's situation after divorce will not be as critical as Mrs. Heim's
does not end our inquiry. Any examination into the equity and justice of the lower court's
ruling requires more than a mechanical comparison with the facts of the Heim case itself.
Heim mandates that this court examine the totality of the circumstances in order to determine
whether the court below abused it discretion in rendering its alimony decision.
Such an examination reveals that the district court did not abuse its discretion under the
facts and circumstances of this case. Although an exhaustive list of our reasons for so
concluding is impossible, we find the following facts especially persuasive: the size of the
cash award received by Mrs. Fondi, the amount of the pension plan that she will ultimately
secure, and the fact that each party leaves the marriage with the same marketable skills and
talents that were initially brought to the union. We caution, however, that each situation will
be examined on its own facts, and although Janice's situation is substantially different from
that of Loretta Heim, our review of the record indicates that this was a very close case.
Consequently, we are slow to approve the trial court's denial of alimony.
Retention of Jurisdiction Over Future Alimony Claims
Appellant's final contention is that the district court abused its discretion by failing to
retain jurisdiction over future alimony claims. In support of this position appellant cites In re
Marriage of Morrison, 20 Cal.3d 437, 143 Cal.Rptr. 139 (1978). In Morrison, the court held
that [a] trial court should not terminate jurisdiction to extend a future support order after a
lengthy marriage unless the record clearly indicates that the supported spouse will be able to
adequately meet his or her financial needs at the time selected for termination of jurisdiction.
Id. at 453, 143 Cal.Rptr. at 150 (emphasis added).
106 Nev. 856, 865 (1990) Fondi v. Fondi
Janice asserts that, based on the above-quoted passage, the trial court erred in failing to
retain jurisdiction, because it was not clear from the record that she would be able to support
herself adequately after her $3000.00 retraining stipend became exhausted.
[Headnote 6]
We disagree. By its very terms, the quoted passage applies only to decisions to extend
future alimony payments. In such a situation, the trial court has made a decision that alimony
is proper, and has also made a prediction as to how long such an award should continue.
Because the course of the future events on which such a prediction rests is unknowable, it is
logical to require the retention of jurisdiction, unless, as stated in Morrison, the record clearly
indicates that alimony will no longer be necessary at the time set by the court for the
termination of payments.
The present situation is properly treated differently, however, for two reasons. First, unlike
the scenario in Morrison, the trial court here has determined that alimony is improper.
Further, this determination was not based on future events, but on facts known to the trial
judge at the time the decision was made. Thus the decision of whether to retain jurisdiction
after alimony has been denied involves an analysis of the same factors as the decision of
whether alimony was proper in the first place. Accordingly, where, as here, the decision to
deny alimony was proper, it follows that the court's decision to terminate jurisdiction is also.
Conclusion
The trial court failed to apportion properly the community interest in Michael's retirement
plan. The district judge measured the community share using the pension that Michael would
receive were he to retire today, and then retained jurisdiction in case Janice could later show
that such a distribution was inequitable. Our holding in Gemma, however, requires that the
district court measure the community interest using the pension ultimately received by
Michael, and, if necessary, retain jurisdiction to allow Michael to show that his future salary
increases (and corresponding pension increases) were the result of extraordinary effort.
The ruling denying Janice an award of alimony, however, was not an abuse of the district
court's discretion. Janice possesses marketable employment skills, received a good deal of
money from the settlement, and did little to enhance Michael's earning power. Thus it was not
inequitable to deny her an award of alimony. Since no support payments were awarded, the
district court properly declined to retain jurisdiction over the alimony question.
106 Nev. 856, 866 (1990) Fondi v. Fondi
court properly declined to retain jurisdiction over the alimony question.
Accordingly, the opinion of the court below is reversed and remanded for a recalculation
of the community interest in Michael's pension, and affirmed in all other respects.
__________
106 Nev. 866, 866 (1990) State, Dep't of Mtr. Vehicles v. Moss
Appellant, v. GLENN MOSS, Respondent.
No. 20810
December 7, 1990 802 P.2d 627
Vehicles revoking respondent's driving privileges. Eighth Judicial District Court, Clark
County; Joseph S. Pavlikowski, Judge.
Driver petitioned for review of suspension of driving privileges. The district court granted
petition due to failure of Department of Motor Vehicles and Public Safety (DMV) to file
responsive brief within fourteen-day period ordered by court. The DMV appealed. The
Supreme Court held that failure of DMV to comply with court order to answer driver's brief
within fourteen days did not warrant dismissal.
Brian McKay, Attorney General, Carson City; Grenville Thomas Pridham, Deputy
Attorney General, Las Vegas, for Appellant.
Automobiles.
Failure of Department of Motor Vehicles and Public Safety (DMV) to comply with court order to answer driver's brief within
fourteen days did not warrant dismissal, where failure was due to erroneous, but good faith, belief that driver had served ninety-day
suspension of driving privileges, and where driver could have informed DMV of stay of suspension order. NRS 233B.140, subd. 1;
EDCR 2.20(b).
OPINION
Per Curiam:
On July 14, 1988, at approximately 3:45 a.m., Trooper Julie Young of the Nevada
Highway Patrol stopped for a light on Harmon Avenue in the westbound lane.
Young of the Nevada Highway Patrol stopped for a light on Harmon Avenue in the
westbound lane. While waiting for the light to change, Young was nearly struck in the rear by
respondent Glenn Moss. Moss was driving a red and white Chevrolet pickup. He swerved to
the left to miss the patrol car and stopped in the eastbound travel lane facing oncoming
traffic. Young stopped Moss and noticed that he had slurred speech and bloodshot eyes. Moss
also had alcohol on his breath. His feet where unsteady and he used the truck to balance
himself. Young administered a field sobriety test, which Moss failed. Young arrested Moss
for driving under the influence of intoxicating liquor. Young read Moss the implied consent
admonition and transported him to the Clark County Detention Center. Moss voluntarily
submitted to a blood test, which revealed that his blood contained 0.21 percent alcohol. The
Department of Motor Vehicles and Public Safety (DMV) subsequently revoked Moss' driving
privileges for a ninety-day period, effective November 12, 1988, through January 16, 1989.
Moss requested an administrative hearing. The hearing officer upheld the DMV's
revocation of Moss' license. He found that Trooper Young had reasonable grounds to believe
Moss was driving on a highway while under the influence of intoxicating liquor. He further
found that the results of the evidentiary test disclosed 0.10 percent or more, by weight, of
alcohol present in Moss' bloodstream.
On October 28, 1988, Moss filed a petition for judicial review in the district court. On the
same day, the district court granted Moss' ex parte motion for a temporary stay order pursuant
to NRS 233B.140(1). On November 15, 1988, the DMV filed an answer to Moss' petition for
judicial review.
On May 26, 1989, Moss filed his opening brief. On July 3, 1989, the DMV filed a motion
to dismiss Moss' petition due to mootness. The DMV erroneously believed that Moss had
served his revocation period. In its decision and order dated August 31, 1989, the district
court denied the DMV's motion to dismiss, and ordered counsel for the DMV to answer
Moss' brief within fourteen (14) days. On September 25, 1989, the DMV appealed the
decision and order of the district court to this court.
1

On October 9, 1989, the DMV filed a brief in opposition to Moss' petition for judicial
review. Thereafter, on October 20, 19S9, Moss filed a motion for an order granting his
petition for judicial review.
__________

1
The district court dismissed the appeal on October 10, 1989, pursuant to a stipulation by the parties. On
November 22, 1989, this court, unaware of the district court's order, dismissed the DMV's appeal for lack of
jurisdiction. See Department of Motor Vehicles v. Moss, No. 20396 (Dec. 20, 1989) (order granting petition for
rehearing).
1989, Moss filed a motion for an order granting his petition for judicial review. This motion
was based on the fact that the DMV had failed to file a responsive brief within the
fourteen-day period ordered by the court. The district court granted the petition pursuant to
EDCR 2.20(b).
2

Dismissal is a severe sanction which should not be lightly ordered. Policy strongly favors
deciding cases on their merits. Adams v. Lawson, 84 Nev. 687, 448 P.2d 695 (1968). See also
Dean Witter Reynolds, Inc. v. Roven, 609 P.2d 720, 721 (N.M. 1980) (courts universally
favor a trial on the merits). In the present case, there are no countervailing factors which
outweigh this policy.
The DMV failed to comply with an order of the court.
3
This failure was due to an
erroneous belief that respondent had served his ninety-day suspension. While respondent
could have informed appellant of the stay, he did not.
4
Instead, he misled the DMV into
believing that his revocation period had been served.
5
Respondent should not be rewarded
for his actions. He was not in any way prejudiced by the delay which he himself caused. The
DMV made its error in good faith. We therefore hold that it was an abuse of discretion for the
district court to overturn the decision of the administrative hearing officer.
Accordingly, we reverse the order of the district court, and remand this case for further
proceedings not inconsistent with this opinion.
__________

2
Failure of the opposing party to serve and file his written opposition may be construed as admission that the
motion is meritorious and a consent to granting the same. EDCR 2.20(b). We note that such a construction is
inappropriate in a case such as the present where the failure to file results from a misrepresentation of the facts
by the opposing party.

3
We acknowledge that sanctions are appropriate where a party fails to comply with a court order. We hold,
however, that dismissal was too severe a sanction to apply in the present case.

4
The DMV had no knowledge of the stay order until September 25, 1989, and did not receive a copy of the
order until October 9, 1989.

5
Moss' brief in opposition to the DMV's motion to dismiss suggests that he served his revocation time.
Specifically, Moss says [t]he 90 day period ran and the Petitioner, was permitted to reinstate his driving
privilege in the state of Nevada, . . . .
____________
106 Nev. 869, 869 (1990) American Federal Savings v. Washoe County
AMERICAN FEDERAL SAVINGS BANK, fka FIRST FEDERAL SAVINGS AND LOAN
ASSOCIATION OF NEVADA, Appellant, v. COUNTY OF WASHOE, a political
subdivision of the State of Nevada, Respondent.
No. 20787
December 7, 1990 802 P.2d 1270
Appeal from a district court order granting summary judgment. Second Judicial District
Court, Washoe County; Brent T. Adams, Judge.
County brought action seeking declaration of its obligations under lease agreement in
event a county employee recovered damages from lessor. Lessor counterclaimed against
county to recover damages it paid to another injured employee of county. County brought
motion for summary judgment. The district court granted the summary judgment motion,
holding that indemnity provisions of contract requiring county to indemnify lessor was void
under the Nevada Industrial Insurance Act. Lessor appealed. The Supreme Court held that
express contracts that require an employee to indemnify a third party for compensation
third-party has paid to employer's employee for work-related accident are not void under
Nevada Industrial Insurance Act.
A. D. Jensen and Allan D. Jensen, Reno, for Appellant.
Erickson, Thorpe & Swainston, Ltd., Reno, for Respondent.
1. Judgment.
Grant of summary judgment is only appropriate where there are no genuine issues of fact to be resolved, and one party is entitled
to judgment as matter of law. NRCP 56(c).
Employee who was not totally compensated for his work-related injury by employer because of restrictions of exclusive remedy
rule in Nevada Industrial Insurance Act is not precluded by Act from bringing third-party action against party who exists outside
employer-employee relationship if the third-party is concurrently or exclusively responsible for employee's injuries. NRS 616.270,
616.370, subd. 1, 616.580.
Express contracts that require an employer to indemnify a third-party for compensation third-party has paid to employer's
employee for work-related accident are not void under Nevada Industrial Insurance Act. NRS 616.265; NRS 616.265 (1988).
OPINION
Per Curiam:
THE FACTS
In this appeal, the court is asked to determine the effect of the Nevada Industrial Insurance
Act (NIIA) on an express contract that may require an employer to indemnify a third-party
for compensation the third-party was required to pay the employer's employee for a work
related accident. Appellant American Federal Savings Bank, formerly known as First Federal
Savings & Loan Association of Nevada (First Federal), appeals from the district court's
ruling that the NIIA voids such indemnity contracts because they increase the liability of an
employer. For the following reasons, we reverse.
On May 24, 1983, respondent, Washoe County, contracted to lease the Union Federal
Building from appellant, First Federal. Under the terms of the lease contract, Washoe
County was required to pay for the maintenance of the leased building, and was also required
to secure $1,000,000.00 in public liability insurance covering both itself and First Federal.
Further, the lease agreement required Washoe County to indemnify First Federal for any loss,
injury, death, or damage to persons allowed to use or occupy the premises.
Thereafter, on April 17, 1986, an employee of Washoe County named Rosslyn Fuller
injured herself as she exited the leased building's elevator. On March 17, 1987, another
employee of Washoe County, Robert M. Howell, injured himself when he fell down some
stairs in the building. Since the County was a self-insured employer under the NIIA, Ms.
Fuller and Mr. Howell were entitled to receive workman's compensation benefits, but were
precluded from initiating personal injury lawsuits against Washoe County. See NRS
616.370(1). However, both employees filed separate actions for their personal injuries against
First Federal as the owner of the building.
First Federal attempted to have Washoe County's attorney file a third-party complaint on
behalf of First Federal for indemnification and breach of contract against Washoe County in
Mr. Howell's lawsuit. First Federal's claims were based upon the indemnification provision of
the lease agreement and First Federal's allegation that Washoe County had failed to maintain
the building and had not obtained $1,000,000.00 in public liability insurance. The third-party
complaint was never filed in the Howell case, but the parties stipulated to preserve any issues
of liability between themselves for a later determination.
After a trial, Howell was awarded $120,000.00 in damages against First Federal, who was
also required to pay court costs and attorney's fees of $15,619.04.
and attorney's fees of $15,619.04. Rosslyn Fuller's action was still pending when the Howell
judgment was entered.
Washoe County commenced the instant action against First Federal on June 6, 1988,
seeking a declaration of Washoe County's obligations under the lease agreement in the event
Rosslyn Fuller recovered damages from First Federal. First Federal counterclaimed against
Washoe County to recover the damages it paid in the Howell case.
1

On October 19, 1989, Washoe County moved for summary judgment in the declaratory
action. The district court judge granted the motion, reasoning that the indemnity,
maintenance, and insurance provisions of the lease agreement enlarged Washoe County's
liability for its employees' work related injuries and, therefore, were void as a matter of law.
This appeal followed.
SUMMARY JUDGMENT
[Headnote 1]
A grant of summary judgment is only appropriate where there are no genuine issues of fact
to be resolved, and one party is entitled to judgment as a matter of law. NRCP 56(c); Leven v.
Wheatherstone Condominium Corp., 106 Nev. 307, 791 P.2d 450, 451 (1990). First Federal
asserts the County may have breached the insurance, maintenance and indemnification
provisions of the lease agreement, and that the contract breach claims present viable issues of
fact precluding a summary judgment. In response, Washoe County contends that the breach
of contract allegations do not represent viable issues of fact because the lease agreement was
void under the NIIA to the extent the lease required the County to indemnify First Federal for
the compensation First Federal paid to Washoe County employees for work related injuries.
BACKGROUND OF THE NIIA EXCLUSIVE REMEDY
[Headnote 2]
One of the basic operation principles of the NIIA is that an employee is entitled to receive
benefits when he suffers a personal [injury] by accident . . . arising out of and in the course
of . . . employment. NRS 616.270.
2
This operating principle provides an employee with the
security of virtually guaranteed compensation for job-related accidents, even in cases
where the accident may not have been the consequence of the employer's negligence;
however, in exchange for this security, the NIIA covered employee relinquishes his right
to any remedy not allowed by the exclusive remedy provision of NRS 616.370{1).
__________

1
Eventually, Rosslyn Fuller's case was settled and dismissed without liability to First Federal.

2
1. Every employer within the provisions of this chapter, and those employers who shall accept the
terms of this chapter and be governed
compensation for job-related accidents, even in cases where the accident may not have been
the consequence of the employer's negligence; however, in exchange for this security, the
NIIA covered employee relinquishes his right to any remedy not allowed by the exclusive
remedy provision of NRS 616.370(1). This statute says:
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.
Since the NIIA imposes arbitrary maximum limits upon the benefits the employee receives
from the employer for a work related injury, (see, e.g., NRS 616.580), it is possible that the
employee may not be totally compensated for his loss by the employer because of the
restrictions of the exclusive remedy rule in NRS 616.370(1). This makes a common law tort
action against a third-partywho exists outside the employer-employee relationshipan
appealing alternative to the injured employee, if that third-party is concurrently or exclusively
responsible for the employee's injuries.
Such third-party lawsuits are not proscribed by the exclusive remedy provisions of the
NIIA. Leslie v. J. A. Tiberti Constr., 99 Nev. 494, 496, 664 P.2d 963, 965 (1983). However,
where the third-party, in an effort to defend against an adverse monetary judgment seeks
indemnity back from the employee's employer pursuant to an implied or express contract
agreement, the employer may turn to the exclusive remedy provisions of the NIIA for a
defense.
THE INDEPENDENT DUTY ANALYSIS
[Headnote 3]
On first glance, it would appear the employer should be allowed such a defense under the
exclusive remedy provision of the NIIA, where the exclusive remedy restriction of NRS
616.370(1) appears to limit the employer's overall liability to exactly the same degree that it
limits the employee's rights against the employer. However, as Professor Larson points out in
2B A.
__________
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.
2B A. Larson, Workmen's Compensation Law 76.41 (1989), at pages 14-733 to 14-734:
A closer reading of the [statutes] . . . makes this interpretation questionable, and the
majority of courts have preferred a narrower construction. They reason as follows: the
immunity conferred is only against actions for damages on account of the employee's
injury; a third-party's action for indemnity is not exactly for damages but for
reimbursement, and it is not on account of the employee's injury, but on account of
breach of an independent duty owed by the employer to the third-party.
(Emphasis added.)
This court likewise has held that [a]bsent an independent duty owed to a third-party,
employers and co-employees are insulated by the provisions of the Nevada Industrial
Insurance Act . . ., not only from liability to employees, but also from liability by way of
indemnity to a third-party. Kellen v. District Court, 98 Nev. 133, 134, 642 P.2d 600,
600-601 (1982). (Emphasis added). See also, Outboard Marine Corp. v. Schupbach, 93 Nev.
158, 561 P.2d 450 (1977). However, while this court has adopted an independent duty
analysis in its prior rulings, our decisions have defined independent duty by exception,
rather than by rule.
A. Implied Indemnity Contracts.
3

This court has rejected the contention that an implied indemnity contractbased upon an
alleged independent duty of an employer to reimburse a third-party for compensation the
third-party was required to pay to the employer's employee for a work related injuryarises
out of an employer's purchase of a product from the third-party, or from the employer's
negligent use of that product. See Outboard Marine, 93 Nev. at 164-165, 561 P.2d at 454;
Kellen, 98 Nev. at 134-135, 642 P.2d at 600-601. In Outboard Marine, this court concluded
that the manufacturer of an electric utility cart that set off an explosion injuring two
employees could not recover the damage award paid to the employees by asserting an implied
indemnity contract against the employer who purchased the cart.
The policy supporting this position was articulated in Santisteven v. Dow Chemical
Company, 506 F.2d 1216 (1974), where the federal court, while interpreting Nevada law,
considered Dow Chemical's claim that Kennecott Copper Corporation had an implied
contract to indemnify Dow for damages Dow paid to a Kennecott employee.
__________

3
The right to indemnity may be expressarising out of a written contract, or impliedarising out of a
relationship between the parties. Whether express or implied, indemnity shifts an entire monetary loss from one
party to another. Chenery v. Agri-Lines Corp., 766 P.2d 751 (Idaho 1988).
where the federal court, while interpreting Nevada law, considered Dow Chemical's claim
that Kennecott Copper Corporation had an implied contract to indemnify Dow for damages
Dow paid to a Kennecott employee. Dow's claim rested upon an allegation that Kennecott
had allowed the employee to misuse a product Dow had sold to Kennecott. The federal court
felt Dow's argument turned indemnity on its head, and reasoned:
Dow's liability arises because of a breach of a duty it owes to users of its productsin
this instance, a worker. Assumably, Kennecott has also breached a duty owed to the
same worker by negligence. Under Dow's theory, the whole burden of loss would be
shifted whenever the employer was negligent in any way because the employer would
have failed in its duty to extricate the third-party from possible liability.
Id. at 1219. Another court aptly framed the analytical problem by stating that it would
stretch the concept of contract out of relation to reality to impose upon the purchaser an
implied contract with the manufacturer to use the [purchased] goods in such a way as to not
bring liability upon the manufacturer. Olch v. Pacific Press & Shear Co., 573 P.2d 1355,
1358 (Wash. 1978).
B. Express Indemnity Contracts.
While there are strong policy reasons to support our prior refusal to recognize implied
indemnity contracts based upon the above fact situations, express indemnity contracts present
entirely different issues and policy considerations. Virtually every state that has considered
the question has concluded that an express contract does give rise to an independent duty that
will allow a third-party to seek indemnity back from the employer where that third-party has
paid damages to the employer's employee pursuant to a work related injury. See 2B A.
Larson, Workmen's Compensation Law 76.42 at 14-734 to 14-751. This majority of states
so rule despite the exclusive remedy statutes common to their respective jurisdictions. Id. The
next question asks whether Nevada should follow this majority position in light of a third
statute, NRS 616.265, which is unique to this state. NRS 616.265, as it appeared at the
inception of the lease agreement between Washoe County and First Federal,
4
provided as
follows: 1.
__________

4
It should be noted that in 1989, this statute was modified to read:
1. Except as otherwise provided in subsection 2:
(a) A contract of employment, insurance, relief benefit, indemnity, or any other device, does not
modify, change or waive any liability created by this chapter.
(b) A contract of employment, insurance, relief benefit, indemnity,
1. No contract of employment, insurance, relief benefit, indemnity, or any other
device, shall modify, change or waive any liability created by this chapter.
2. A contract of employment, insurance, relief benefit, indemnity, or any other
device having for its purpose the waiver or modification of the terms or liability created
by this chapter shall be void.
Whether NRS 616.265 voids express contracts that require an employee to indemnify a
third-party for compensation the third-party has paid to the employer's employee for a work
related accident is an issue that has never been addressed by the Nevada Supreme Court.
However, this issue has been addressed by the United States Court of Appeals for the Ninth
Circuit in Aetna Cas. & Sur. Co. v. L. K. Comstock & Co., Inc., 684 F.2d 1267 (1982), where
the federal court ruled such contracts were void because of NRS 616.265, and the Nevada
Supreme Court's interpretation of this statute in Outboard Marine and Corrao Constr. Co. v.
Curtis, 94 Nev. 569, 584 P.2d 1303 (1978). Respectfully, we disagree. We conclude that
neither the NIIA nor this court's prior rulings support the federal court's conclusion in Aetna.
First, the overall structure and policy of the NIIA indicates the Act's purpose to regulate
the rights and obligations running between an employer and an employee, as opposed to the
rights and obligations running between an employer and a third-party.
5
Thus, as the
dissenting opinion
__________
or any other device, having for its purpose the waiver or modification of the terms or liability created by
this chapter is void.
2. Nothing in this section prevents an owner or lessor of real property from requiring an employer
who is leasing the real property from agreeing to insure the owner or lessor of the property against any
liability for repair or maintenance of the premises.
Since the modified version of NRS 616.265 came into effect before the district court rendered its grant of
summary judgment, it is arguable that the modified version may be applicable to this case, but we conclude it is
not. If the indemnity agreement between Washoe County and First Federal was void, it would have been void at
its inception in 1983 under the pre-1989 version of NRS 616.265. Accordingly, we apply the pre-1989 version
of NRS 616.265 to this analysis.

5
The dissenting opinion in Aetna aptly pointed out that while the NIIA establishes liability from the
employer to the employee in a number of areas, there is nothing in the NIIA to establish any liability running
between an employer and a third-party. As between an employer and an employee, under NRS 616.270, the
employer has a duty to compensate an employee who sustains a work related injury. Under NRS 616.340, the
employer has a duty to render all necessary first aid to the employee, and NRS 616.375 creates a common law
liability when the employer fails to comply with the provisions of the NIIA. As has already been mentioned, the
employee's remedies
Thus, as the dissenting opinion in Aetna argued, [s]ection 616.265 prohibits indemnity
contracts only if they affect rights created by the NIIA. Since an express indemnity contract
between an employer and a third-party creates a contractual liability to a third-party, rather
than waiving or modifying any liability created by the NIIA [between the employer and
employee], such an agreement is not barred by the language of section 616.265. Id. at 1274.
On the contrary, as a matter of public policy, we conclude the indemnity contracts in these
cases should be enforced because they allocate risk between an employer and a third-party
that is not allocated or covered by the Nevada Workman's Compensation Act.
Second, as this court has said, [t]o date, the [Nevada] legislature has insulated the
contributing employer and has voided indemnity absent an independent duty owing from the
employer to the third-party. Outboard Marine, 93 Nev. at 165, 561 P.2d at 454 (emphasis
added). Conversely, if an independent duty supports an indemnity agreement, the indemnity
agreement will not be void under NRS 616.265. However, as already noted, implied
indemnity generally cannot create this independent duty between and employer and a
third-party. See Outboard Marine, 93 Nev. at 164-165, 561 P.2d at 454; Kellen, 98 Nev. at
134-135, 642 P.2d at 600-601. Thus, an express indemnity contract is all that remains to
establish the independent duty recognized in Outboard Marine. Were we to rule that an
express contract cannot establish an independent duty, there would be no means existent to
establish such a duty even though we have recognized the independent duty analysis in our
prior decisions.
Finally, enforcing the indemnity contract between First Federal and Washoe County would
not be inconsistent with prior rulings of this court. In Outboard Marine, we reasoned that
although an express contract for indemnity was not at issue, if such a contract is voided by
NRS 616.265, it is certain that there exists no room for implied indemnity, absent an
independent duty owing from the employer . . . to the third-party. Outboard Marine, 93 Nev.
at 165, 561 P.2d at 454. The federal court in Aetna offered this dicta to support its ruling that
indemnity contracts in these cases are always void under NRS 616.265. We reason otherwise.
Under a proper reading, we conclude this dicta mirrors the basic proposition that an
indemnity agreement will be voided in these cases unless the agreement is based upon an
independent duty.
__________
against the employer for a work related injury covered by the NIIA is limited under the exclusive remedy rule of
NRS 616.370, but the employee is not restricted in his remedies against a third-party who exists outside of the
employee-employer relationship. Leslie, 99 Nev. 495, supra.
voided in these cases unless the agreement is based upon an independent duty.
Likewise, in Corrao, this court once again did not reach the question of whether or not
NRS 616.265 voids an express indemnity contract. However, in Corrao, this court said:
It would appear . . . that an indemnity agreement which changes or enlarges the liability
of the employer by imposing a liability to its employee for damages caused by the
negligence of a third-party would be void by reason of the express mandate of NRS
616.265; Outboard Marine Corp. v. Schupbach, 93 Nev. 158, 561 P.2d 450 (1977),
concerning an alleged implied indemnity to the third-party found to have been
negligent. The case before us, however, does not concern this situation at all since the
third-party owners were found free of fault and, therefore, not responsible for the
employee's injuries.
Corrao, 94 Nev. at 571, 584 P.2d at 1304. It is possible to read this dicta as creating an
absolute bar to an indemnity agreement regardless of an independent duty analysis.
6
However, we conclude that a better reading of this dicta merely underscores the proposition
that if an indemnity agreement enlarges the liability imposed by NIIA as between an
employer and an employee, the indemnity agreement is not based upon an independent duty
between the employer and a third-party, and is, therefore, void under NRS 616.265.
CONCLUSION
In sum, we reject the federal court's holding in Aetna, and conclude that NRS 616.265, as a
matter of law, does not void an express contract that requires an employer to indemnify a
third-party for compensation the third-party has paid to the employer's employee for a work
related accident.
__________

6
The majority in Aetna concluded from this dicta, that:
[a]lthough it ultimately found it unnecessary to decide the question, the Nevada Supreme Court's
statements in Corrao strongly suggest that the express and all-inclusive prohibition of the NIIA is
applicable notwithstanding the existence of any particularized obligation' or independent duty,' and that
the court would not create an implied exception to the plain statutory language prohibiting indemnity
agreements. Id. at 1270.
We reject this view because it rests upon a faulty assumption that the Corrao decision overruled the holding in
Kellen ([a]bsent an independent duty owed to a third-party, employers and co-employees are insulated by the
provisions of the Nevada Industrial Insurance Act . . . .) and the analysis used by this court in Outboard Marine
([t]o date, the legislature has insulated the contributing employer and has voided indemnity absent an
independent duty owing from the employer to the third-party.).
employee for a work related accident. Accordingly, we reverse the district court's grant of
summary judgment in this case, and remand for further proceedings.
__________
106 Nev. 878, 878 (1990) Brown v. SIIS
BONNIE BROWN, Appellant, v. STATE INDUSTRIAL INSURANCE SYSTEM, an
No. 20726
December 20, 1990 803 P.2d 223
Appeal from order denying petition for judicial review in a worker's compensation case.
Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Employee petitioned for worker's compensation benefits for two broken wrists sustained
when thrown from a horse approximately two months after surgery for employment-related
carpel tunnel syndrome. An appeals officer upheld hearing officer's decision that claimant
was negligent for riding horse too soon after carpel tunnel surgery. The district court denied
employee's petition for judicial review. Employee appealed. The Supreme Court held that
appeals officer's determination that claimant's negligence was superseding cause of her
broken wrists was not arbitrary or capricious.
Affirmed.
King, Clark, Gross & Sutcliffe, Las Vegas, for Appellant.
R. Scott Young, General Counsel, SIIS, Carson City, and William A. Zeigler, Associate
General Counsel, SIIS, Las Vegas, for Respondent.
Judicial review of administrative decision arising out of claim for industrial insurance benefits is limited to reviewing decision of
appeals officer. NRS 616.543, subd. 2.
On appeal from order of district court adjudicating petition for judicial review of administrative decision regarding industrial
insurance, Supreme Court must review evidence presented to administrative agency and ascertain whether that body acted arbitrarily or
capriciously.
Negligence of workers' compensation claimant may break chain of causation from initial industrial accident to claimant's final
condition.
106 Nev. 878, 879 (1990) Brown v. SIIS
Determination by appeals office of State Industrial Insurance System, that negligence of workers' compensation claimant was
superseding cause of claimant's two broken wrists, which were sustained when claimant was thrown from horse, was not arbitrary or
capricious even though claimant had recently had surgery for employment-related carpel tunnel syndrome and weakness of hands from
surgery allegedly contributed to fall from horse, where claimant knew that horses may suddenly lunge, and claimant's carpel tunnel
syndrome created definite medical probability that claimant's lack of arm strength resulted in her inability to control horse.
OPINION
Per Curiam:
1

Appellant, Bonnie Brown, developed carpel tunnel syndrome, a painful condition in her
wrists, as a result of her employment. Surgery was performed on both wrists to alleviate the
condition.
Approximately two months after her last surgery, Brown, an experienced equestrian, was
walking a horse through a barrel racing course when the horse suddenly bolted and ran for the
finish line. Brown attempted to grab the saddle horn, but because of the carpel tunnel surgery,
her hand lacked sufficient strength to hold on. Brown fell from the horse and broke both of
her wrists.
A hearing officer ruled that Brown was negligent for riding the horse so soon after the
carpel tunnel surgery. Therefore, the officer ruled that because of Brown's intervening
negligence, SIIS would not cover the injuries that Brown received in the fall from her horse.
An appeals officer upheld the decision of the hearing officer, and the district court denied
Brown's petition for judicial review. This appeal followed.
Brown contends that the district court erred when it denied her petition for judicial review.
Specifically, she argues that her broken wrists were a natural consequence of her prior
industrial injury. She also argues that no evidence was presented in the administrative
proceedings that she could reasonably foresee being thrown from the horse and suffering the
injuries that she sustained. We disagree.
[Headnotes 1, 2]
It is well-settled that judicial review of an administrative decision arising out of a claim for
industrial insurance benefits is limited to reviewing the decision of the appeals officer.
__________

1
This appeal was previously dismissed on the merits in an unpublished order of this court. Upon motion of
the respondent, we have determined that our decision should be issued in a published opinion. Accordingly, we
grant respondent's motion. We issue this opinion in place of our Order Dismissing Appeal filed September 14,
1990.
106 Nev. 878, 880 (1990) Brown v. SIIS
limited to reviewing the decision of the appeals officer. See NRS 616.543(2); SIIS v. Hicks,
100 Nev. 567, 688 P.2d 324 (1984). In an appeal from an order of the district court
adjudicating a petition for judicial review of an administrative decision regarding industrial
insurance, this court must review the evidence presented to the administrative agency and
ascertain whether that body acted arbitrarily or capriciously. Hicks, 100 Nev. at 569, 688 P.2d
at 325.
[Headnote 3]
This court has previously held that [s]o long as there is a causal nexus between the final
condition and the industrial injury, the employer remains liable. Warpinski v. SIIS, 103 Nev.
567, 569, 747 P.2d 227, 229 (1987). We note, however, that the negligence of a workers'
compensation claimant may break the chain of causation from the initial industrial accident to
the final condition. See Johnnie's Produce Company v. Benedict & Jordan, 120 So.2d 12 (Fla.
1960); 1 Larson, The Law of Workmen's Compensation 13.12(c), at 3-558 to 3-564 (1990).
[Headnote 4]
In the present case, the evidence presented to the administrative tribunal clearly showed
that Brown was an experienced rider, that the horse she was riding was trained to barrel race
and that Brown knew of other horses who suddenly lunged toward the finish line after
walking through a barrel course. Other evidence indicated that carpel tunnel syndrome often
causes considerable weakness in the extremities, and that there was definite medical
probability that Brown's lack of strength in her arms could have resulted in her inability to
control her horse. Under these circumstances, we conclude that the appeals officer did not act
arbitrarily or capriciously when it determined that Brown's negligence was a superseding
cause of her latest injury. Accordingly, we affirm the order of the district court denying
Brown's petition for judicial review.
____________
106 Nev. 880, 880 (1990) State of Nevada v. American Bankers Ins.
THE STATE OF NEVADA, Appellant, v. AMERICAN BANKERS INSURANCE
COMPANY and JOE'S BAIL BONDS, SURETIES FOR BETTY SALERNO, Respondents.
No. 20791
December 20, 1990 802 P.2d 1276
Appeal from district court order exonerating bail bonds. Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
State appealed decision of the district court exonerating bail bonds due to failure to mail
notice to surety and local agent until twenty days after defendant's failure to appear. The
Supreme Court held that statute, which states that court shall order notice to be given to bail
bond surety and local agent by certified mail within fifteen days after defendant's failure to
appear, is mandatory, rather than directory.
Affirmed.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, and Mitchell M.
Cohen, Deputy District Attorney, Clark County, for Appellant.
Carmine J. Colucci, Las Vegas, for Respondents.
1. Bail.
Statute, which states that court shall order notice to be given to bail bond surety and local agent by certified mail within fifteen
days after defendant's failure to appear, is mandatory, rather than directory. NRS 178.508.
2. Statutes.
Shall in statute is presumptively mandatory, and may in statute is construed as permissive unless legislative intent demands
another construction.
Mandatory, rather than directory, construction of shall in statute, which states that court shall order notice to be given to bail
bond surety and local agent by certified mail within fifteen days after the defendant's failure to appear, does not infringe upon judicial
functions and prerogatives. NRS 178.508; Const. art. 3, 1.
OPINION
Per Curiam:
[Headnote 1]
This court is asked to interpret the meaning and effect of a 1987 amendment to NRS
178.508 requiring that a surety and its local agent be notified within fifteen days after their
bonded criminal defendant fails to appear in court.
1
We agree with the ruling of the district
court and affirm.
__________

1
If the undertaking exceeds $50 or money deposited instead of bail bond exceeds $500, the court shall
direct that the sureties and the local agent of each surety, or the depositor if he is not the defendant, be
given notice that the defendant has failed to appear, by certified mail within 15 days after the failure to
appear, and shall execute an affidavit of such mailing to be kept as an official public record of the court.
The
Respondent Joe's Bail Bonds, acting as local agent for respondent American Bankers
Insurance Company, posted bail bonds totaling $20,000 to secure freedom for Betty Salerno,
who was charged with two counts of trafficking in a controlled substance. On April 21, 1989,
the day after bail was posted, Salerno failed to appear before the court and a bench warrant
was issued for her arrest. Notices of intent to forfeit the bonds were issued and dated on the
same date Salerno failed to appear, but were inadvertently not mailed to respondents until
twenty days later. Ninety days thereafter, on August 10, 1989, the bonds were forfeited
pursuant to NRS 178.508.
The sole contention raised by respondents is that forfeiture was improper because the
fifteen-day notice requirement of the statute is mandatory, and notice was sent to respondents
five days beyond the statutory period.
This court has previously stated that in construing statutes, the first great object of the
courts . . . [is] to place such construction upon them as will carry out the manifest purpose of
the legislature . . . . Thomas v. State, 88 Nev. 382, 384, 498 P.2d 1314, 1315 (1972). In other
situations, substantial compliance has validated statutory notice despite technical,
nonprejudicial errors. See Harris v. State, 104 Nev. 246, 247, 756 P.2d 556, 556 (1988)
(failure to include an affidavit of mailing required by NRS 178.508 did not invalidate the
notice of intent to forfeit). In the instant case, adherence to the specified notice period is
essential to effectuating the legislature's enactment of a bright line rule.
[Headnotes 2, 3]
In construing statutes, shall is presumptively mandatory and may is construed as
permissive unless legislative intent demands another construction. Givens v. State, 99 Nev.
50, 54, 657 P.2d 97, 233 (1983); Thomas v. State, 88 Nev. 382, 384, 498 P.2d 1314, 1315
(1972). The State contends that the NRS 178.508 notice provision must be construed as
directory rather than mandatory in order to avoid an unconstitutional legislative interference
with judicial prerogatives.
2

Prior decisions by this court have held that a statute is directory rather than mandatory
when the adjudicative function of the court is inherently threatened by legislative intrusion.
__________
undertaking or money instead of bail bond is forfeited upon the expiration of 90 days after the notice is
mailed, except as otherwise provided in NRS 178.509. . . .
(The legislature's 1987 amended wording is italicized for clarity.)

2
Nev. Const. art. III, 1, requires tripartite government with a separate legislative, executive and judicial
department.
is inherently threatened by legislative intrusion. Waite v. Burgess, 69 Nev. 230, 233, 245 P.2d
994, 996 (1952). When statutory provisions relate to judicial functions, they should be
regarded as directory only.
3
Id. at 234. In the instant matter, the fifteen-day notice
requirement to a surety constitutes a basically nonjudicial action of a ministerial nature
occurring after a judicial function has taken place and before a final resolution of the dispute.
The amended statute facilitates the fair and orderly administration of the bail bond business
and does not infringe upon judicial functions and prerogatives.
The decision to grant exoneration or discharge of a bond rests with the discretion of the
trial judge, as long as the sureties do not aid in the defendant's absence. NRS 178.509; NRS
178.512(2); State v. Indemnity Ins. Co. of N. Am., 2 Kan.App.2d, 672 P.2d 251, 254
(Kan.Ct.App. 1983). The trial court did not abuse its discretion. The legislature adopted an
express notice requirement in order to draw a well-defined line.
4
In adopting a specific
notice requirement to sureties and their agents, the legislature did not create a basis for
determining that substantial compliance is sufficient. Literal compliance is necessary in order
to give force and effect to the 1987 amendment to NRS 178.508. The judgment below is
affirmed.
____________
106 Nev. 883, 883 (1990) Pida v. State, Dep't of Mtr. Vehicles
RICHARD W. PIDA, Appellant/Cross-Respondent, v. THE STATE OF NEVADA,
DEPARTMENT OF MOTOR VEHICLES AND PUBLIC SAFETY,
No. 20860
December 20, 1990 803 P.2d 229
Appeal from an order of the district court denying a petition for judicial review, and
cross-appeal from order denying a motion to dismiss.
__________

3
See also Lovelock Lands Inc. v. Lovelock Land & Dev. Co., 54 Nev. 1, 6-7, 2 P.2d 126, 127 (1931)
(statute that required a judicial decision within five days was directory as to the specific time designated); Ratliff
v. Sadlier, 53 Nev. 292, 298-99, 299 P. 674, 675-76 (1931) (statutes requiring a court to render a decision within
a fixed time period have always been held to be merely directory).

4
Respondents argued in their brief that given the number of courts in Clark County it is impossible to be
fully aware of the location of a particular defendant at any given time. Furthermore, the public interest is not
served by giving bail violators more time to abscond and perhaps continue their criminal activities.
dismiss. Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Order was appealed from order of the district court which affirmed revocation of driving
privileges. The Supreme Court held that it was error to affirm the decision of the hearing
officer where tape recording of administrative hearing had been destroyed.
Vacated and remanded.
John G. Watkins, Las Vegas for Appellant.
Brian McKay, Attorney General, Carson City; Grenville Thomas Pridham, Deputy
Attorney General, Las Vegas, for Respondent.
1. Administrative Law and Procedure; Jury.
Judicial review of administrative decision must be conducted by the court without a jury and must be confined to the record. NRS
233B.135.
2. Administrative Law and Procedure; Automobiles.
It was error for district court to affirm decision of hearing officer revoking driving privileges where tape recording of
administrative hearing had been destroyed by Department of Motor Vehicles; proper course of action was to vacate the decision and
remand for a new hearing.
OPINION
Per Curiam:
Following a traffic stop for suspicion of driving under the influence of alcohol, appellant
submitted to a blood test which indicated a blood alcohol content of 0.26 percent. The
arresting officer then sent an officer's certification of cause to the Department of Motor
Vehicles (DMV), requesting revocation of appellant's driving privileges. See NRS 484.385.
Appellant requested an administrative hearing pursuant to NRS 484.387. On February 16,
1989, appellant was informed by the DMV that his driver's license was revoked. On March
10, 1989, appellant filed in the district court a petition for judicial review. For reasons which
are not clear, it does not appear that the state actually received a copy of this petition until
July 25, 1989. Accordingly, the state moved to dismiss the petition on the ground that it was
not timely served; the motion was denied by the district court. The state then filed an
opposition to appellant's petition. The district court affirmed the decision of the DMV hearing
officer, and this appeal followed.
Appellant contends that the district court erred in affirming the decision of the hearing
officer.
decision of the hearing officer. Specifically, appellant notes that the tape recording of the
administrative hearing was destroyed by the DMV. Appellant further notes that this tape
recording constitutes almost the entire record in this case.
[Headnotes 1, 2]
This contention has merit. In Nevada, judicial review of an administrative decision must
be conducted by the court without a jury and be confined to the record. See NRS 233B.135.
The decision of the administrative agency must be upheld if there is substantial evidence in
the record to support it. It is difficult, if not impossible, to determine whether there is
substantial evidence in the record when the record is not before the court. See SIIS v.
Thomas, 101 Nev. 293, 701 P.2d 1012 (1985). We conclude that it was an abuse of discretion
for the district court to review the administrative hearing in the absence of a record. The
proper course of action would have been for the district court to vacate the decision of the
DMV and remand this matter to the DMV for a new hearing.
Accordingly, we vacate the order entered below and remand to the district court with
directions to remand this matter to the DMV for a new hearing. We have considered the
issues raised by the state in its cross-appeal and conclude that they are without merit.
____________
106 Nev. 885, 885 (1990) Ross v. Carson Construction
JAMES D. ROSS and SHARON L. ROSS, Appellants, v. CARSON CONSTRUCTION,
GENERAL CONCRETE, Respondent.
No. 20886
December 20, 1990 803 P.2d 657
Appeal from an order of the district court granting respondents' motion for summary
judgment. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Employment seeker brought action against general contractor and subcontractor to recover
for injuries caused by driving vehicle into trench. The district court entered summary
judgment in favor of contractors. Seeker appealed. The Supreme Court held that statute
requiring erection of fence or other safeguard around excavation, hole, or shaft applies to all
excavations regardless of temporary or permanent nature, whether or not excavation is on
private property and is accessible to public traffic.
Piazza & Associates and Robert M. Ebinger, Las Vegas; Katten, Muchin & Zavis,
Chicago, Illinois, for Appellants.
Lyles, Austin & Burnett and Scott R. Schreiber, Las Vegas, for Respondent General
Concrete.
Alveson, Taylor, Mortensen & Gould and Gary C. Milne, Las Vegas, for Respondent
Carson Construction.
1. Negligence.
Statute requiring erection of fence or other safeguard around excavation, hole, or shaft applies to all excavations regardless of
temporary or permanent nature, whether or not excavation is on private property and is accessible to public traffic. NRS 455.010.
2. Judgment.
Questions of fact precluding summary judgment in employment seeker's action against general contractor and subcontractor to
recover for injuries caused by driving vehicle into excavation were raised by contractors' claims that ongoing construction work
provided seeker with necessary warning and that seeker was adult. NRCP 56; NRS 455.010.
OPINION
Per Curiam:
In April 1987 appellant James Ross was working as a sheet metal worker on a construction
site. Ross was informed by his supervisor that he would be temporarily laid off. The next day
Ross went to the Nellis Crossing shopping center site in search of work. Ross first drove to
the foreman's trailer at the entrance to the property. After discovering that no one was at the
trailer, Ross observed men at work toward the rear of the site. While driving toward the
workers, Ross drove his vehicle into a six foot wide, three foot deep, trench. As a result, Ross
alleges that he suffered serious injuries including a broken neck.
Respondent Carson Construction was the general contractor on the Nellis Crossing site.
Respondent General Concrete, a subcontractor, was working under Carson Construction.
Ross and his wife filed suit against Carson Construction and General Concrete, alleging
negligence in their failure to safeguard and barricade the excavation. Respondents' answers
alleged various affirmative defenses. Respondents also filed a Motion for Summary Judgment
pursuant to NRCP 56. The motion maintained that no breach of duty occurred in the absence
of willful or wanton conduct because Ross was a trespasser when he entered the
construction site. Appellants countered by asserting that Mr. Ross was an invitee on the
construction site and that genuine issues of material fact existed as to his status and the
duty of care owed him.
genuine issues of material fact existed as to his status and the duty of care owed him.
The district court granted the motion for summary judgment on November 7, 1989. The
Rosses filed a motion for reconsideration on December 16, 1989, asserting that the duty
imposed by NRS 455.010
1
to safeguard open excavations superseded the common law duty.
An order denying this motion was issued on December 18, 1989, the court ruling that NRS
455.010 was inapplicable to temporary excavations.
[Headnote 1]
Appellants assert that the district court erred in holding that NRS 455.010 applies only to
permanent excavations. Although this issue was raised in response to the district court's
December 18, 1989 order denying the Rosses' motion for reconsideration and need not be
considered on appeal, we elect to reach the merits of this contention. In its order denying the
motion for reconsideration, the district court stated, NRS 455.010 applies only to
excavations which are permanent in nature; not the temporary diggings found on construction
sites. Were it otherwise, the construction industry would be building more fences than
buildings. Our interpretation of the statute indicates that it applies equally to all excavations
regardless of their permanency. We believe that the district court was incorrect in stating that
an interpretation other than its own would require the fencing of every temporary construction
excavation. The statute reads fence or other safeguard. In this very case, an other
safeguard was employed by the respondents at one time: the fifty-five gallon drum
barricades. The Rosses contend that the removal of these safeguards shortly before Mr. Ross
entered the property proximately contributed to his injuries.
The Rosses cite Dixon v. Simpson, 74 Nev. 358, 332 P.2d 656 (1958), and Anderson v.
Feutsch, 31 Nev. 501, 103 P. 1013 {1909), in support of their argument that NRS 455.010
applies equally to permanent and temporary excavations.
__________

1
Erection of fence or other safeguard around excavation, hole or shaft required. Any person or persons,
company or corporation, who shall dig, sink or excavate, or cause the same to be done, or being the
owner or owners, or in the possession under any lease or contract, of any shaft, excavation or hole,
whether used for mining or otherwise, or whether dug, sunk or excavated for the purpose of mining, to
obtain water, or for any other purpose, within this state, shall, during the time they may be employed in
digging, sinking or excavating, or after they may have ceased work upon or abandoned the same, erect, or
cause to be erected, good and substantial fences or other safeguards, and keep the same in good repair,
around such works or shafts, sufficient to guard securely against danger to persons and animals from
falling into such shafts or excavations.
(1909), in support of their argument that NRS 455.010 applies equally to permanent and
temporary excavations. In both of these decisions, the statutory standard found in NRS
455.010 was applied to hold the property owner liable for injuries sustained when the plaintiff
fell into an open excavation. In both cases, the excavations were dug for construction
purposes and were, presumably, temporary in nature. The Dixon case involved an excavation
dug for sewer line purposes, as was the hole into which Mr. Ross drove his vehicle. 74 Nev.
at 359, 332 P.2d at 657. In light of this authority we cannot agree with the district court's
interpretation of NRS 455.010.
Respondents argue that the Dixon and Anderson decisions are distinguishable from the
present controversy because both involved excavations that bordered public roadways.
2
They
assert that the hole into which Ross fell was wholly situated on private property, not
accessible to public traffic, and therefore not subject to NRS 455.010. This argument is
unpersuasive. From its wording, it appears that the primary intent of the statute was the
prevention of injuries suffered from falling into unprotected mine shafts. See Orr Ditch &
Water Co. v. Justice Court, 64 Nev. 138, 144-45, 178 P.2d 558, 561-62 (1947). Assuming
that mines are often wholly situated on private property, respondents' private/public
distinction in applying the statutory standard of care fails. It should also be noted that
Washington statute (RCW) 78.12.010, which is identical to NRS 455.010, was specifically
applied to [U]nguarded excavations on private property in Dernac v. Pacific Coast Coal
Co., 188 P. 15, 16 (Wash. 1920). We hold that the trial court was incorrect in determining
that NRS 455.010 was inapplicable because the excavation was temporary or situated on
private property.
[Headnote 2]
The Rosses also contend that NRS 455.010 creates a duty to safeguard excavations, and a
corresponding right to recovery for breach of this duty, regardless of the injured party's status
as a trespasser, licensee or invitee under the common law. They cite Dixon v. Simpson for the
proposition that statutory liability under NRS 455.010 exists side-by-side with common law
landowner liability. Appellants also point out that in Dixon this court stated we are
concerned with statutory as well as common law liability. 74 Nev. at 360, 332 P.2d at 657.
Perry v. Tonopah Mining Co.,
__________

2
The excavation at issue in Dixon was cut across an alleyway. The opinion does not indicate whether the
alley was open to public access or was wholly situated on private property. 74 Nev. at 359, 332 P.2d at 657. The
excavation in Anderson was partially in the path of a public sidewalk. 31 Nev. at 503, 103 P. at 1014.
Co., 13 F.2d 865 (D.Nev. 1915), supports appellants' contention that liability may be imposed
under NRS 455.010 regardless of the injured party's common law status. In that decision, the
court held that [t]he protection intended by the act was for the public generally, and that the
statute imposed an absolute duty, non-performance of which, resulting in injury, is
negligence as a matter of law, for which, in the absence of contributory negligence, a recovery
may be had. 13 F.2d at 866. Based upon these conclusions, the Perry court found a duty to
the plaintiff despite his common law trespasser status.
Respondents attempt to distinguish Perry on the basis of the type of excavation at issue. In
Perry the plaintiff was killed after falling into an abandoned mine stope. Carson Construction
suggests that this abandoned excavation was different from the excavation on the Nellis
Crossing site where work was ongoing at the time of Mr. Ross' accident. Carson maintains
that the existence of ongoing construction work provided Mr. Ross with necessary warning.
This distinction conflicts with the language of the statute. By its terms, NRS 455.010 applies
to both situations: during the time they may be employed in digging, sinking or excavating,
or after they may have ceased work upon or abandoned the same . . . .
The identical Washington statuteRCW 78.12.010, was held to create a duty and a
corresponding right where none existed at common law in McDermott v. Kaczmarek, 469
P.2d 191, 194 (1970). See also Dernac, 188 P. at 17. Respondents attempt to distinguish
McDermott, Dernac and Perry on the grounds that the victims in all three cases were children
and that Mr. Ross was an adult construction worker familiar with the existence of excavations
on construction sites. There is no language in any of these decisions, or in NRS 455.010 or
RCW 78.12.010, limiting application of the statutory standard of care to minors.
We conclude that the district court erred in granting summary judgment. NRS 455.010
imposes an absolute duty to safeguard open excavations regardless of their permanency. In
light of this holding, we elect not to reach the issue of Mr. Ross' status under the common law
landowner liability classifications. Respondents' defenses raise questions of material fact
whether they should be excused from the duties imposed by NRS 455.010. Accordingly, we
hereby reverse the grant of summary judgment and remand this matter to the district court.
____________
106 Nev. 890, 890 (1990) Buschauer v. State
STEVEN JOHN BUSCHAUER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20820
December 20, 1990 804 P.2d 1046
Appeal from judgment of conviction of one count of involuntary manslaughter with a
deadly weapon pursuant to plea. Eighth Judicial District Court, Clark County; Miriam
Shearing, Judge.
Defendant was convicted in the district court of involuntary manslaughter with deadly
weapon, and he appealed. The Supreme Court, Rose, J., held that: (1) inclusion of polygraph
results in presentence report was reversible error; (2) victim impact statement made by
defendant's mother-in-law violated due process as result of lack of notice, oath, and
cross-examination; and (3) deadly weapon enhancement did not apply to unintentional crime
of involuntary manslaughter.
Reversed in part; vacated in part; remanded with instructions.
Wright & Stewart, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney and James
Tufteland, Chief Deputy District Attorney, Frank Ponticello, Deputy District Attorney, Clark
1. Criminal Law.
Inclusion of reference to defendant's polygraph result in presentence report was reversible error, absent written stipulation of
parties; general rule limiting use of polygraph results at trial applied to sentencing as well.
2. Criminal Law.
Reasonable discussion of prior acts of defendant by witness giving victim impact statement does not exceed scope authorized for
impact statement; witness may give view of defendant which clearly encompasses opinion as to general character including prior acts.
NRS 176.015, subds. 3, 4; A.R.S. 13-702, subd. F; Cal.Penal Code 1191.1; W.Va.Code, 61-11A-2(b).
3. Criminal Law.
If victim gives oral impact statement at sentencing hearing, court must balance dictates due process with legitimate interests of
victim.
4. Criminal Law.
If impact statement will refer only to facts of crime, impact on victim and need for restitution, victim testifying as witness before
court must be sworn before testifying but cross-examination and prior notice of contents of statement are not required. NRS 176.015,
subds. 3, 4; A.R.S. 13-702, subd. F; Cal.Penal Code 1191.1; W.Va.Code, 61-11A-2(b).
If victim impact statement includes references to specific prior acts of defendant, due process requires reasonable notice, that
accuser be under oath, and opportunity for cross-examination; all hearsay testimony is not barred from impact statement as long as
defendant receives adequate opportunity to rebut statements. NRS 176.015, subds. 3, 4; A.R.S. 13-702, subd. F; Cal.Penal Code
1191.1; W.Va.Code, 61-11A-2(b).
6. Criminal Law.
Lack of notice, oath, and cross-examination of witness giving victim impact statement was reversible error in involuntary
manslaughter prosecution where witness made statements accusing defendant of pattern of wife and child abuse; defendant raised
doubts as to whether accusation of child and spousal abuse were accurate. NRS 176.015, subd. 4.
7. Criminal Law.
Sentencing enhancement for use of deadly weapon was not authorized in prosecution for involuntary manslaughter which involved
allegedly unintentional shooting; by definition crime of involuntary manslaughter did not involve use of weapon in conscious
furtherance of crime. NRS 176.015, subd. 3, 193.165.
8. Statutes.
Penal statutes are narrowly construed if they are ambiguous.
OPINION
Appellant Steven John Buschauer (Buschauer) entered a plea of guilty to one count of
involuntary manslaughter with use of a deadly weapon for accidentally shooting his wife
when he was playing fast draw with his gun in his home. Buschauer stated that he did not
know the gun was loaded, and the investigating detective concluded that Buschauer's story
appeared consistent with the crime scene. The presentence report contained the following
reference to a polygraph examination taken by Bushchauer: [f]urther investigation by this
writer revealed that the defendant failed the polygraph test police gave him concerning his
wife's death.
At the sentencing hearing, Buschauer's mother-in-law gave an oral victim's impact
statement (herein, impact statement) pursuant to NRS 176.015(3). Defense counsel was not
given prior notice of the contents of this statement. Buschauer's mother-in-law was not under
oath and was not subjected to cross-examination. Ranging well beyond the impact of the
crime, the statement referred to several prior bad acts by Buschauer, including: (1) that
Buschauer had been jailed in California for spousal abuse; (2) that Buschauer's spouse had
broken her leg once when Buschauer was chasing her; {3) that Buschauer once had
attempted to run his spouse over with a truck; and {4) that Buschauer physically abused
the couple's daughter.
Buschauer was chasing her; (3) that Buschauer once had attempted to run his spouse over
with a truck; and (4) that Buschauer physically abused the couple's daughter. The district
court imposed on Buschauer the maximum possible sentence: 6 years for involuntary
manslaughter, plus a consecutive 6 years for use of a deadly weapon. In doing so, the court
referred to a pattern of domestic violence.
On appeal, Buschauer contends that: (1) inclusion of polygraph results in the presentence
report was error; (2) the impact statement by his mother-in-law was broader than is
authorized by NRS 176.015(3), and, further, violated due process due to lack of notice, oath,
and cross-examination; (3) errors in the presentence report denied him a fair sentencing due
to suspect or impalpable evidence; and (4) defense counsel was ineffective for failing to
present available mitigating evidence. This court further permitted Buschauer to file a
supplemental opening brief raising a fifth contention: (5) that the court erred in enhancing the
sentence based on use of a deadly weapon because this was an accidental shooting. We
address contentions one, two and five, which present issues of first impression in this court.
We need not reach the third and fourth assignments of error.
[Headnote 1]
We first conclude that inclusion of the reference to the polygraph result in the presentence
report was error. Polygraph results are inadmissible at trial absent written stipulation of the
parties. Aguilar v. State, 98 Nev. 18, 21, 639 P.2d 533, 535 (1982). The State argues that a
similarly strict rule is unnecessary at the sentencing stage, given the more relaxed standards
for inclusion of evidence in the presentence report. We disagree. Evidence which is highly
suspect or impalpable may not be considered by the court at sentencing. Silks v. State, 92
Nev. 91, 94, 545 P.2d 1159, 1161 (1976). The reliability of polygraph results is no greater,
and the need for reliability no less, at sentencing than at trial. Therefore, in accord with other
jurisdictions who have addressed the question, we conclude that the general rule limiting use
of polygraph results at trial applies at sentencing as well. See, e.g., Ex Parte Hinton, 548
So.2d 562 (Ala. 1989); State v. Zuck, 658 P.2d 162 (Ariz. 1982) (general rule of exclusion
absent stipulation applies to sentencing phase); People v. Allen, 211 N.W.2d 533
(Mich.Ct.App. 1973).
[Headnote 2]
The second assignment of error concerns the impact statement. Buschauer contends first
that the scope of the statement given by Buschauer's mother-in-law exceeded the scope of the
statement authorized by NRS 176.105{3).1 We disagree.
authorized by NRS 176.015(3).
1
We disagree. The Nevada statute is similar in scope to
statutes enacted in Arizona and California. See Ariz. Rev. Code 13-702(F); Cal. Penal Code
1191.1. NRS 176.015(3) authorizes the victim to express in a reasonable fashion any views
concerning four subjects: the crime, the impact of the crime on the victim, the need for
restitution, and the defendant. The fourth subject, views concerning the defendant, goes
beyond victim impact. Cf. W. Va. Code 61-11A-2(b) (statement shall relate solely to the
facts of the case and the extent of any injuries . . . resulting directly from the crime).
Views on the defendant clearly encompass opinions as to the defendant's general character.
Since an assessment of character usually turns in part on prior acts, this language permits
some reasonable discussion of prior acts by the defendant. Buschauer does not contend that
this is unconstitutional; his arguments in this case go only to the procedural protections
afforded a defendant in connection with the impact statement.
[Headnotes 3, 4]
Buschauer further contends that NRS 176.015(3) violates due process because it does not
require notice, oath, and cross-examination in connection with the impact statement.
Preliminarily, we note that an impact statement may be introduced at sentencing in two ways.
First, where a victim cannot or does not wish to appear in court, the statement may be placed
in written form in the presentence report pursuant to NRS 176.145. Second, the victim may
give an oral statement at the sentencing hearing pursuant to NRS 176.015(3). When, as here,
the second of the two alternatives is used, we must balance the dictates of due process with
the legitimate interests of the victim, as expressed by the legislature. We conclude that the
scope of due process protections depends on the scope of the impact statement. First we
address the situation where the impact statement will refer only to three subjects: the facts of
the crime, the impact on the victim, and the need for restitution. In this situation, we conclude
that the victim, testifying as a witness before the court, must be sworn before testifying, but
that cross-examination and prior notice of the contents of the impact statement normally are
not required.
__________

1
Subsections (3)-(4) of NRS 176.015 provide in part:
3. Before imposing sentence the court shall afford the victim an opportunity to:
(a) Appear personally or by counsel; and
(b) Reasonably express any views concerning the crime, the person responsible, the impact of the
crime on the victim and the need for restitution.
4. The prosecutor shall give to the victim reasonable notice of the hearing to impose sentence. . . .
required. In most cases, the defendant and defense counsel should already be aware of, and
able to rebut, a statement whose scope is limited in this manner; (if, however, the victim's
statement of the crime presents significant facts not previously raised, cross-examination and
even a continuance prior to cross-examination, if requested, may be required). In this first
situation, the State should inform defense counsel that an impact statement will be offered,
but need not disclose the contents of the statement.
[Headnote 5]
The second situation is where the impact statement includes references to specific prior
acts of the defendant, as occurred in this case. Where the impact statement will refer to any
prior acts by the defendant, we conclude that due process requires that the accuser be under
oath, an opportunity for cross-examination and, perhaps most importantly, reasonable notice
of the prior acts which the impact statement will contain. Our conclusion is supported by
language in Booth v. Maryland, 482 U.S. 496 (1987), in which the U.S. Supreme Court held
that use of an impact statement in capital cases is unconstitutional. In discussing impact
statements, the Booth court indicated that the defendant must be given the opportunity to
rebut the impact statement and stated that the defendant [p]resumably would have the right
to cross-examine the declarants. Booth, 482 U.S. at 506-07. A case interpreting the very
similar Arizona statute further supports our conclusion. See State v. Asbury, 701 P.2d 1189
(Ariz.App. 1984) (vacating sentence; basic fairness and due process require that defendant
have opportunity to cross-examine victim giving a statement at sentencing hearing).
Buschauer also contends that hearsay should be inadmissible in an impact statement. Notice
of the identity of the source of a hearsay statement reported in the impact statement is an
important component of the defendant's right to rebut information at sentencing.
Nevertheless, in accord with the allowance of hearsay in presentence reports, we decline to
bar all hearsay testimony in an impact statement, provided the defendant receives adequate
opportunity to rebut any hearsay statements.
As a practical matter, our decision will require the prosecutor to ascertain the scope of the
impact statement from the victim prior to sentencing. This could be done when the prosecutor
gives the victim notice of the sentencing hearing pursuant to NRS 176.015(4). If the defense
is not given reasonable prior notice of an impact statement which refers to specific prior acts,
then the defense will be entitled to a continuance to rebut the impact statement, unless the
court can disclaim any reliance on the prior acts in imposing sentence.
[Headnote 6]
Based in large part on the impact statement, the court referred to a pattern of wife abuse in
sentencing Buschauer. Buschauer was not afforded notice or cross-examination to test the
reliability of the impact statement, and the accuser was not under oath. As noted above,
Buschauer's mother-in-law made several specific accusations, many of which were not
included in the presentence report. Buschauer has raised some doubts as to whether the
accusations of child and spousal abuse were completely accurate. Contrary to the impact
statement, Buschauer told the court that it was his wife, not him, who was arrested in
California for spousal abuse. This assertion is consistent with the presentence report. Defense
counsel further represented, based on personal knowledge of the case, that charges of child
abuse against Buschauer were dropped and that authorities had proceeded against Buschauer's
wife until Buschauer refused to testify. Additionally, Buschauer specifically denied the
allegations of wife and child abuse. We cannot be certain that inclusion of the polygraph
result in the presentence report did not compromise Buschauer's credibility before the
sentencing court. For these reasons, we cannot conclude that, when combined with the
polygraph result, the lack of notice, oath and cross-examination in connection with the impact
statement in this case constituted harmless error.
[Headnotes 7, 8]
The last of Buschauer's contentions which we address concerns the legality of the sentence
enhancement imposed on Buschauer for use of a deadly weapon. Buschauer contends that
NRS 193.165
2
does not apply to this case because this was an unintentional shooting. The
State responds that enhancement was proper because Buschauer used a gun in the
commission of a crime, albeit an unintentional crime. We conclude that Buschauer is correct.
First, the plain language of the statuteuse of a weapon in the commission of a
crimeindicates that the instrumentality must be used in conscious furtherance of a criminal
objective. See, e.g., People v. Chambers, 498 P.2d 1024 (Cal. 1972) (discussing definition of
term use in statute creating deadly weapon sentence enhancement; quoting Webster
International Dictionary's definition of use as the carrying out of a purpose by means of an
instrumentality).
__________

2
Subsection 1 of NRS 193.165, the deadly weapon enhancement statute, provides in part:
1. Any person who uses a firearm or other deadly weapon . . . in the commission of a crime shall be
punished by imprisonment in the state prison for a term equal to and in addition to the term of
imprisonment prescribed by statute for such crime.
purpose by means of an instrumentality). Second, this court will narrowly construe penal
statues where they are ambiguous. Carter v. State, 98 Nev. 331, 334-35, 647 P.2d 374, 376
(1982). Although the State's literal interpretation of the statutory language is not
unreasonable, it is one of two reasonable interpretations. Therefore, the statute is ambiguous
and it must be read narrowly in accordance with Buschauer's equally tenable interpretation.
Finally, Buschauer has cited to minutes of legislative committee meetings on this statute
which indicate that several legislators express uncontradicted doubts about imposing the
enhancement for the unintentional crime of involuntary manslaughter. For these reasons, we
conclude that Buschauer's sentence was improperly enhanced because, by definition, his
crime of involuntary manslaughter does not involve use of the weapon in conscious
furtherance of a crime. We note, however, that the brandishing of a weapon during, and in
conscious furtherance of, some other crime normally suffices to support an enhancement; this
is true even if a defendant should happen accidentally to shoot someone during the course of
the crime.
CONCLUSION
The deadly weapon enhancement of NRS 193.165 does not apply to the unintentional
crime of involuntary manslaughter. For this reason, we hereby vacate the enhanced portion of
Buschauer's sentence for use of a deadly weapon. We further reverse Buschauer's six-year
base sentence for involuntary manslaughter for two reasons. First, inclusion of the polygraph
result in the presentence report was error. Additionally, due process required notice, oath, and
cross-examination in connection with the victim's impact statement pursuant to NRS
176.015(3), because this statement included several accusations of specific prior acts by the
defendant. Accordingly, we remand this case with instructions to delete the reference to the
polygraph from the presentence report and, as in Allen, 211 N.W.2d at 536, for re-sentencing
before a different judge.
Young, C. J. Steffen, Springer and Mowbray, JJ., concur.
____________
106 Nev. 897, 897 (1990) State, Dep't of Mtr. Vehicles v. Pida
Appellant, v. RICHARD PIDA, Respondent.
No. 20996
December 20, 1990 803 P.2d 227
Vehicles and Public Safety revoking respondent's driving privileges. Eighth Judicial District
Court, Clark County; Thomas A. Foley, Judge.
Department of Motor Vehicles and Public Safety appealed from order of the district court
which reversed order revoking driving privileges. The Supreme Court held that: (1) personal
service of order of revocation is required; (2) placing the document in a prisoner's property
bag at the jail does not amount to personal service; but (3) motorist was not prejudiced by
lack of personal service.
Brian McKay, Attorney General, Carson City; Grenville T. Pridham, Deputy Attorney
1. Automobiles.
Statute providing that officer who directs that blood alcohol test be given or who obtains the result of the test must immediately
serve an order of revocation of the license on any person who fails to submit or who has a blood alcohol content of .10 percent or more
requires personal service of the order, and placing the document in a jail inmate's property bag is not personal service. NRS 484.385,
subd. 1.
2. Automobiles.
Where motorist timely requested administrative hearing with respect to revocation of driving privileges, and thus knew that his
driving privileges had been revoked, he was not prejudiced by lack of personal service of the order of revocation. NRS 484.385, subd.
1.
OPINION
Per Curiam:
On March 9, 1987, Officer Mitchell Spears of the Las Vegas Metropolitan Police
Department received a report that a drunk driver was leaving the Lady Luck Casino. Officer
Spears was in the area, and he observed a vehicle changing lanes without the use of turn
signals. Office Spears also noticed that the vehicle was following a van too closely. The
vehicle almost rear-ended the van when the van began to make a left turn.
the van when the van began to make a left turn. The vehicle then changed lanes abruptly,
again without the use of turn signals.
Officer Spears stopped the vehicle and approached the driver. The driver identified himself
as appellant, Richard Pida. Officer Spears asked Pida for his driver's license, registration and
proof of insurance. Pida could not find any of these documents, but instead gave Officer
Spears his bank statement. Officer Spears returned the bank statement to Pida and asked him
to step out of his vehicle. Pida had trouble getting out of his vehicle, but he managed to do so.
Pida had to lean on the patrol car, his speech was slurred, and he had trouble keeping his eyes
straight on Officer Spears.
Officer Spears administered field sobriety tests, which Pida failed. Officer Spears then
placed Pida under arrest and transported him to the Las Vegas City Jail. When asked which
evidentiary test he wished to take, Pida selected the breath test.
At the jail, Officer Spears and another officer explained the breath test to Pida. Pida stated
that he understood the test. When taking the test, however, Pida did not cooperate. He
initially blew into the breathalyzer, but failed to continue. Officer Spears twice asked Pida if
he would rather take a blood test, but Pida declined. Each time, the officers explained that if
appellant did not cooperate, it would be deemed a refusal to take the test. After the third
failure to complete the test, the officers decided to revoke Pida's driving privileges for failure
to submit to an evidentiary test.
Accordingly, Officer Spears completed a form which ordered Pida's driving privileges
revoked. Meanwhile, Pida was placed in confinement in the jail. Rather than serving Pida
personally with the order of revocation, Officer Spears gave a copy of the order to a
corrections officer. Officer Spears watched as the officer placed the document in Pida's
property bag at the jail.
Thereafter, Pida made a timely request for an administrative hearing. Following a hearing
on April 13, 1987, the hearing officer issued an order upholding the revocation of Pida's
driving privileges.
Pida then petitioned the district court for judicial review. On February 16, 1990, the
district court issued an order reversing the order of the hearing officer. The district court
stated that the sole issue of concern was whether NRS 484.385(1)
1
requires that the order of
revocation be personally served upon the party whose license is revoked.
__________

1
NRS 484.385(1) provides in part:
[T]he officer who directed that a test be given under NRS 484.382 or 484.383 or who obtained the result
of such a test shall immediately serve an order of revocation of the license, permit or privilege to drive on
a person who fails to submit to the test or has 0.10 percent or more by weight of alcohol in his blood, if
that person is present . . . .
the order of revocation be personally served upon the party whose license is revoked. The
district court concluded that NRS 484.385(1) requires personal service of the order of
revocation if the person whose license is being revoked is present. The court found that
appellant was present for the purpose of the statute, and that putting the order in Pida's
property bag was not personal service. Consequently, the district court reversed the decision
of the hearing officer.
The state contends on appeal that Pida was served when the corrections officer placed the
order of revocation into Pida's property bag. Alternatively, the state argues that even if Pida
was not served, the district court should not have reversed the hearing officer's decision,
because Pida failed to show that a substantial right had been prejudiced. See NRS
233B.135(3) ([t]he court may remand or affirm the final decision or set it aside in whole or
in part if substantial rights of the petitioner have been prejudiced . . . .).
[Headnote 1]
We conclude, as did the district court, that NRS 484.385(1) requires personal service of
the order of revocation. Placing the document in a prisoner's property bag does not amount to
personal service. Nevertheless, we note that the district court's order of reversal did not
discuss whether Pida's substantial rights had been prejudiced.
[Headnote 2]
The record in this case reveals that Pida timely requested an administrative hearing after
being released from jail. It is apparent, therefore, that he knew that his driving privileges had
been revoked. Pida was represented by counsel at the hearing and was able to contest the
order of revocation. Thus, this case proceeded just as if Pida had been personally served. We
therefore conclude that under these particular facts, Pida was not prejudiced.
2

Accordingly, we reverse the order of the district court, and remand for the district court to
reinstate the revocation of Pida's driving privileges.
__________

2
We note that the state's brief asserts that police officers uniformly put the order of revocation in the
prisoner's property bag. This opinion should not be read as an approval of this practice.
____________
106 Nev. 900, 900 (1990) Hernandez v. First Financial Insurance
ALFRED PAUL HERNANDEZ, Appellant, v. FIRST FINANCIAL INSURANCE
COMPANY, Respondent.
No. 21007
December 20, 1990 802 P.2d 1278
Appeal from summary judgment entered in favor of respondent. Second Judicial District
Court, Washoe County; Charles M. McGee, Judge.
Liability insurer under owner-landlord-tenant policy brought action against insured bar,
bar's bouncer, and beating victim to obtain declaratory judgment that policy did not cover
victim's injuries. The district court granted summary judgment for insurer. Victim appealed.
The Supreme Court held that bar's allegedly negligent hiring of bouncer who severely beat
victim was failure to prevent assault and battery for purposes of policy exclusion for any act
or omission in connection with prevention of assault and battery.
Affirmed.
Bradley and Drendel, and William C. Jeanney, Reno, for Appellant.
Margo Piscevich, Reno, for Respondent.
Insurance.
Bar's allegedly negligent hiring of bouncer who severely beat victim was failure to present assault and battery for purposes of
liability policy exclusion for any act or omission in connection with prevention of assault and battery.
OPINION
Per Curiam:
Pursuant to stipulation for purposes of this case, the facts are as follows. On November 5,
1988, a fight broke out at the Zephyr Bar in which appellant Alfred Hernandez (Hernandez)
was not involved. During the fight, bar employee David Kretchman, a bouncer, unprovokedly
beat and kicked Mr. Hernandez severely. Based on this incident, Hernandez sued Kretchman
and Zephyr Bar on two causes of action pertinent to this appeal: (1) assault and battery, and
(2) negligence in hiring, training and supervising Kretchman because Kretchman was known
to be dangerous.
Respondent First Financial Insurance Company (First Financial) had issued Zephyr Bar an
owner-landlord-tenant liability policy which covered various bodily injury damages for
occurrences on the property.
policy which covered various bodily injury damages for occurrences on the property.
Contained in an endorsement to the policy is the following exclusion of coverage for assault
and battery:
It is agreed and understood that this insurance does not apply to bodily injury or
property damage arising out of assault and battery or out of any act or omission in
connection with the prevention or suppression of such acts, whether caused by or at the
instigation or direction of the insured, his employees, patrons or any other person.
(Emphasis added.) Hernandez does not contest the clarity or prominence of this endorsement.
On behalf of Zephyr Bar and Kretchman, First Financial accepted the tender of defense of
Hernandez' lawsuit pursuant to reservation of rights letters. On May 4, 1989, First Financial
filed the instant complaint for declaratory relief against Zephyr, Kretchman and Hernandez on
the grounds that the assault and battery exclusion in the policy precluded any liability under
the policy based on this incident. The district court granted First Financial's motion for
summary judgment, concluding that the assault and battery exclusion precluded coverage.
Hernandez appeals.
Hernandez contends that district court erred in concluding that the assault and battery
exclusion covers his cause of action for negligent hiring, training and supervision. He asks
this court to apply multiple concurrent causation doctrines discussed in such insurance cases
as Garvey v. State Farm Fire and Cas. Co., 770 P.2d 704 (Cal. 1989). Garvey discusses
multiple concurrent causation doctrines in insurance law which allow recovery in some
circumstances where two causes, one excluded from and the other included in coverage,
combine to cause an injury. Hernandez argues that there were two concurrent causes of his
injuries operating in this case: (1) the assault and battery itself (clearly an excluded risk) and
(2) the antecedent negligent hiring (arguably a covered risk). Hernandez concedes that the
exclusion precludes coverage for the assault and battery. He contends, however, that the
antecedent negligent hiring is a separate concurrent cause of his injury.
We need not address Garvey and the question of the multiple concurrent causation
doctrines urged by Hernandez. Hernandez' argument assumes that the second, concurring
cause (negligent hiring, training or supervision) was a covered risk. In accord with First
Financial's contention, we conclude that this particular policy exclusion unambiguously
includes both damages arising from the assault and battery itself and negligent hiring, training
or supervision.
or supervision. First Financial correctly cites to a case which states that a virtually identical
exclusion covers negligent hiring. See St. Paul Surplus Lines Ins. Co. v. 1401 Dixon's, 582
F.Supp. 865 (E.D.Pa. 1984); see also Stiglich v. Tracks, D.C., Inc., 721 F.Supp. 1386 (D.D.C.
1989) (nearly identical assault and battery exclusion; damages for failure to hire adequate
security excluded). Additionally, and most important here, negligent hiring constitutes a
failure to prevent an assault and battery. Failure to prevent an assault and battery is covered
by the broad language in this particular exclusion, which refers to any . . . omission in
connection with the prevention of assault and battery. (Emphasis added.)
For the reasons stated above, we affirm the judgment of the district court in its entirety.
____________
106 Nev. 902, 902 (1990) Rohlfing v. District Court
SHAWN LEE ROHLFING, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, AND
THE HONORABLE BRENT T. ADAMS, JUDGE OF THE SECOND JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY
OF WASHOE, Respondent.
No. 21157
December 20, 1990 803 P.2d 659
Original proceedings for writ of prohibition. Second Judicial District Court, Washoe
County; Brent T. Adams, Judge.
Defendant sought writ of prohibition after the district court issued warrant for arrest of
defendant who had been released from county jail subsequent to another judge's granting
motion to dismiss. The Supreme Court held that district court judge exceeded his jurisdiction
by declaring void another judge's order dismissing state's case against defendant, and, thus,
further prosecution against defendant in connection with dismissed cases was prohibited.
Writ granted.
David G. Parraguirre, Public Defender, and Karen Grifall, Deputy, Washoe County, for
Petitioner.
Mills Lane, District Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe
1. Prohibition.
Writ of prohibition may be issued if lower court acts in excess of its jurisdiction.
2. Courts.
District courts have equal and coextensive jurisdiction, and, thus, various district courts lack jurisdiction to review acts of other
district courts. DCR 5, 18, subd. 1; Nev. Const. art. 6, 6; NRS 3.220; WDCR 2, subd. 2.
3. Judges.
District court judge exceeded his jurisdiction by declaring void another judge's order dismissing state's case against defendant,
and, thus, defendant was entitled to issuance of writ of prohibition enjoining further prosecution; because hearing on motion to dismiss
was scheduled for month after motion for mistrial was granted, hearing on motion to dismiss was held before judge other than judge
which had granted mistrial. NRS 177.015, subd. 1(b); Nev. Const. art. 6, 6; NRS 3.220.
OPINION
Per Curiam:
Petitioner (Rohlfing) was charged by information with one count each of grand larceny
and possession of a stolen motor vehicle. Judge Breen subsequently ordered Rohlfing to
undergo a psychiatric examination to determine his competency to stand trial. Judge Wright
later determined that Rohlfing was incompetent, and committed him to Lake's Crossing until
he regained his competency.
Judge Schouweiler later determined that Rohlfing was competent to stand trial. The trial
commenced on April 10, 1989, before the Honorable James J. Guinan in Department 6 of the
Second Judicial District Court. Pursuant to a pretrial motion in limine filed by the state, Judge
Guinan precluded Rohlfing from presenting as a part of his defense evidence of diminished
capacity. During the course of Rohlfing's defense, Dr. Jerry Howle (Howle) testified that he
first met Rohlfing when he participated in a competency evaluation at Lake's Crossing.
Thereafter, on cross-examination, the prosecutor asked Howle several questions regarding
Rohlfing's competency. On redirect, defense counsel asked Howle how he determines
competency. The district court interrupted this line of questioning, and directed counsel to
stop asking questions regarding competency. Defense counsel then asked Howle questions
regarding Howle's experience determining the competency of individuals who are charged
with crimes. At that point, Judge Guinan sent the jury out and asked the prosecutor if he
wished to make a motion for a mistrial. The prosecutor made the motion, and Judge Guinan
granted the motion and discharged the jury. The court reconvened in chamber, where it
allowed the parties to make a record regarding the motion for a mistrial.
motion for a mistrial. Defense counsel objected to the mistrial, claiming that manifest
necessity did not require a mistrial.
On April 13, 1989, the state filed in the district court an application to reset Rohlfing's
case for trial. Rohlfing responded on April 20, 1989, by filing in the district court a motion to
dismiss the criminal charges pending against him. Rohlfing argued in that motion that double
jeopardy precluded the state from conducting a retrial in his case. The state opposed the
motion to dismiss.
The motion to dismiss was heard on May 25, 1989. Because of the rotating criminal
calendar in the Second Judicial District Court, the motion was heard by Judge McGee.
Neither party objected to this procedure. On June 8, 1989, Judge McGee entered an order
granting the motion to dismiss.
The state did not appeal the order granting the motion to dismiss. On July 3, 1989, Judge
Guinan entered an order declaring void Judge McGee's order granting the motion to dismiss.
That order also purported to deny Rohlfing's motion to dismiss.
Rohlfing responded to this action by filing a motion to vacate Judge Guinan's order. The
state opposed Rohlfing's motion. During the pendency of that motion, the state filed in the
district court a motion to set the case for trial. Senior Judge Barrett denied that motion.
On September 27, 1989, Rohlfing's motion to vacate was heard by Judge Guinan's
successor in office, the Honorable Brent T. Adams. Judge Adams denied the motion after
hearing extensive arguments.
Sometime after Judge Adams issued his ruling, the state filed in the district court another
motion to set Rohlfing's case for trial. That motion was scheduled for hearing before Judge
Agosti. Judge Agosti did not have the file available to her at the time of the hearing;
therefore, she did not rule on that motion.
On November 2, 1989, after a hearing, Judge Adams issued a warrant for Rohlfing's arrest.
1
This proceeding followed.
In his order granting Rohlfing's motion to dismiss, Judge McGee stated, among other
things:
In this judge's opinion, Judge Guinan faced a situation where the jury was
inescapably exposed to forbidden competency testimony, but under the unique
circumstances, any trial in [Rohlfing's case] is going to inescapably expose the jury to
expert testimony on capacity issues, some of which mirrors those otherwise forbidden
by the court. The only reasonable procedure is to direct the jury to ignore general
competency evidence and focus only on the special capacity matter raised as a
defense.
__________

1
This was necessary because Rohlfing was released from the county jail when Judge McGee granted his
motion to dismiss.
reasonable procedure is to direct the jury to ignore general competency evidence and
focus only on the special capacity matter raised as a defense.
With great deference to Judge Guinan's experience and his right to run his own case,
I honestly disagree with his ruling [granting the state's motion for a mistrial].
In his order declaring Judge McGee's order void, Judge Guinan stated:
[Rohlfing's motion to dismiss], being a post-trial motion, should have been
presented to this department, but it was erroneously presented to Department 2. The
judge in Department 2 erroneously entertained the motion, and in a decision filed June
8, 1989, purported to overrule this department by holding the declaration of mistrial
unnecessary. He, therefore, granted the motion to dismiss the information.
The decision of this department was the law of the case, and no other district judge,
being without appellate jurisdiction, could overrule it. The decision of the judge in
Department 2 is, therefore, void.
This Court has read the points and authorities on the motion to dismiss. It is the
opinion of the Court that the motion is without merit and is denied.
It was and is the opinion of this Court that the trial in this case, because of the
introduction of testimony concerning mental competence, and the efforts of the defense
to present a defense of diminished capacity, had reached a point where the instructions
to the jury could not have prevented the jury from considering competency and
diminished capacity in their deliberations, and that, therefore, the declaration of mistrial
was necessary.
Further, when Judge Adams ruled on Rohlfing's motion to vacate Judge Guinan's order, he
stated that he read the transcript of what occurred in Judge Guinan's chambers after he
discharged the jury in the Rohlfing case. He then stated:
Judge Guinan, I think, expressly sets forth his basis for the mistrial and in the
context of a discussion by the Defense concerning double jeopardy, found that the
mistrial was necessary. I think Judge McGee acknowledged that in his decision. In fact,
Judge McGee characterizes his decision as an honest disagreement with Judge Guinan
but I don't believe honest disagreement can be the subject of orders by judges of this
bench which have as their effect the reversal of prior decisions by judges of this bench.
Rohlfing asserts that Judge Guinan violated DCR 18(1) when he vacated, sua sponte, the
order of Judge McGee granting Rohlfing's motion to dismiss. Therefore, Rohlfing argues that
the respondent Judge Adams exceeded his jurisdiction when he determined that Judge Guinan
properly vacated Judge McGee's order. We agree.
[Headnotes 1, 2]
A writ of prohibition may be issued if a lower court acts in excess of its jurisdiction. See
Goicoechea v. District Court, 96 Nev. 287, 607 P.2d 1140 (1980). The district courts of this
state have equal and coextensive jurisdiction; therefore, the various district courts lack
jurisdiction to review the acts of other district courts. See Nev. Const. art. 6, 6; NRS 3.220;
Warden v. Owens, 93 Nev. 255, 563 P.2d 81 (1977).
DCR 18(1) provides:
When any district judge shall have entered upon the trial or hearing of any cause,
proceeding or motion, or made any ruling, order or decision therein, no other judge
shall do any act or thing in or about such cause, proceeding or motion, unless upon the
written request of the judge who shall have first entered upon the trial or hearing of
such cause, proceeding or motion.
We note, however, that DCR 5 provides in pertinent part:
These rules cover the practice and procedure in all actions in the district courts of all
districts where no local rule covering the same subject has been approved by the
supreme court. Local rules which are approved for a particular judicial district shall be
applied in each instance whether they are the same as or inconsistent with these rules.
WDCR 2(2) provides:
One or more judges selected by the district judges shall preside over the criminal
division. The judge of department number 1 shall be the first judge of the criminal
division. The judge or judges of the criminal division shall change every month, with
each judge serving as such in rotating numerical order.
[Headnote 3]
In the present case, Rohlfing filed his motion to dismiss in the ordinary course of the
criminal litigation pending against him. Because the motion was filed in the same month that
his trial was held, it should have been heard by Judge Guinan in Department 6. See WDCR
2(2), supra. Examination of the front page of that motion reveals that it designates "Dept.
No. 6JS.
motion reveals that it designates Dept. No. 6/8.
2
The problem was created when the
hearing on the motion was scheduled for the month after the granting of the motion for a
mistrial. Pursuant to the normal operation of WDCR 2(2), the hearing was held before Judge
McGee. As noted earlier in this opinion, no party objected to this procedure.
When Judge McGee entered his order dismissing the information against Rohlfing, the
state's remedy was to appeal that decision to this court. See NRS 177.015(1)(b). The state
chose not to take this course of action. On July 3, 1989, Judge Guinan entered an order, sua
sponte, declaring void the order of Judge McGee. Because of the rotating procedure for
assignment of judges in criminal matters in the second judicial district, Judge Guinan's order
was clearly inappropriate. See Nev. Const. art. 6, 6 (setting the jurisdiction of the district
courts); NRS 3.220 (providing that district court judges possess equal, coextensive and
concurrent jurisdiction and power); Warden v. Owens, 93 Nev. 255, 563 P.2d 81 (1977)
(holding that a district court lacks jurisdiction to vacate another district court's judgment of
conviction and remand a case to another district court).
In light of the above, we conclude that Judge Guinan exceeded his jurisdiction when he
declared void Judge McGee's order dismissing the state's case against Rohlfing. Therefore,
we direct the clerk of this court to forthwith issue a writ of prohibition enjoining enforcement
of Judge Guinan's order of July 3, 1989, and also prohibiting further prosecution of Rohlfing
in case nos. CR88-1053 and CR88-1054.
____________
106 Nev. 907, 907 (1990) Murray v. State
ROBERT JAMES MURRAY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21259
December 20, 1990 803 P.2d 225
Appeal from order denying post-conviction petition for writ of habeas corpus. Eighth
Judicial District Court, Clark County; John F. Mendoza, Judge.
__________

2
The designation of two departments in this manner does not appear unusual. The order entered by Judge
Breen directing a competency evaluation designates Dept. No. 6/7 as the proper department. Further, the
points and authorities filed in support of Rohlfing's motion to dismiss designates Dept. No. 1/2 as the correct
department. See Supplemental Exhibits, Points and Authorities in Support of Motion to Dismiss, filed May 10,
1989. Other documents filed below do not designate a department for Rohlfing's case.
Defendant brought post-conviction petition for writ of habeas corpus. After case was
remanded by another district court the district court denied relief. Defendant appealed. The
Supreme Court, held that: (1) correction of sentence was not barred by law of case, and (2)
Supreme Court decision that multiple sentence enhancements could not be imposed for same
crime could be applied retroactively.
Reversed.
Morgan D. Harris, Public Defender, Clark County, for Appellant.
Brian McKay, Attorney General, Carson City; Rex A. Bell, District Attorney, and James
Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Courts.
District courts had equal and co-extensive jurisdiction.
2. Habeas Corpus.
District court of one judicial district had no power to remand defendant's habeas corpus petition challenging legality of sentence
to district court of another judicial district for resentencing, as district courts have equal and co-extensive jurisdiction, but court should
have granted habeas corpus relief if it believed sentence was illegal.
3. Habeas Corpus.
Doctrine of law of case did not bar defendant's habeas corpus petition challenging allegedly illegal sentence where, on direct
appeal, validity of sentence was upheld against claim of cruel and unusual punishment, and issue of statutory legality of sentence was
not addressed and Supreme Court had not addressed precise issue at time appeal was heard.
4. Courts.
Supreme Court decision barring use of multiple sentence enhancements could be applied retroactively since decision did not
announce new constitutional rule, but merely explained state statutory law as it existed at time of habeas corpus petitioner's original
sentencing. NRS 193.165, 207.010.
OPINION
Per Curiam:
On March 13, 1984, appellant was convicted, pursuant to a jury verdict, of two counts of
attempted robbery with the use of a deadly weapon, and one count of grand larceny auto. The
district court determined that appellant is a habitual criminal, and sentenced appellant to
consecutive fifteen year terms in the Nevada State Prison for each of the attempted robbery
convictions. See NRS 207.010(1). The district court also imposed two consecutive fifteen
year sentences for appellant's use of a deadly weapon.
fifteen year sentences for appellant's use of a deadly weapon. See NRS 193.165. Finally, the
district court imposed a concurrent five year sentence for the grand larceny conviction.
Appellant filed a direct appeal challenging his conviction and, on October 22, 1985, this court
dismissed that appeal. See Murray v. State, Docket No. 15821 (Order Dismissing Appeal,
filed October 22, 1985).
Appellant later filed in the First Judicial District Court a post-conviction petition for a writ
of habeas corpus, challenging the legality of his sentence. On August 16, 1989, that court
entered an order noting that the state had stipulated that appellant's sentence is illegal.
Therefore, the court remanded appellant's case to the Eighth Judicial District Court so that
appellant could be resentenced. The Eighth Judicial District Court refused to alter appellant's
sentence, and this appeal followed.
Appellant contends that his sentence is illegal because the district court sentenced him as a
habitual criminal and then impermissibly enhanced that sentence, pursuant to NRS 193.165,
for the use of a deadly weapon. See Odoms v. State, 102 Nev. 27, 714 P.2d 568 (1986). Thus,
appellant argues that the Eighth Judicial District Court erred when it refused to alter his
sentence. The state, on the other hand, argues that Odoms was a new rule of law that should
not be given retroactive effect.
[Headnotes 1, 2]
The district courts of this state have equal and co-extensive jurisdiction; therefore, the
judge of the First Judicial District Court had no power to remand appellant's case to the
Eighth Judicial District Court for resentencing. See Warden v. Owens, 93 Nev. 255, 563 P.2d
81 (1977). If the judge of the First Judicial District Court believed that appellant's sentence is
illegal, he should have granted appellant habeas corpus relief, and allowed the state to appeal.
[Headnote 3]
In our order dismissing appellant's direct appeal, we determined that appellant's sentence
was within the statutory limits. The state argues that our prior determination is the law of
the case and that appellant may not litigate the validity of his sentence in this proceeding. See
Hall v. State, 91 Nev. 314, 535 P.2d 797 (1975). We dismissed appellant's direct appeal,
however, prior to our decision in Odoms. Further, the language to which the state refers
addressed appellant's claim of cruel and unusual punishment. We conclude, therefore, that the
doctrine of law of the case is inapplicable.
[Headnote 4]
In its order denying appellant's motion, the district court stated that the Odoms court
promulgated a new constitutional rule that was not dictated by precedent existing at the time
appellant's conviction became final. Therefore, the district court concluded that the Odoms
decision should not be applied retroactively in appellant's case. See Butler v. McKellar, 494
U.S. 407, 110 S.Ct. 1212 (1990); Teague v. Lane, 489 U.S. 288 (1989). We disagree.
The Odoms decision did not announce a constitutional rule of any kind; rather, that case
was decided based on the plain language of NRS 193.165, NRS 207.010, and the existing
case law interpreting those statutes. See Odoms, 102 Nev. at 31-34, 714 P.2d at 571-73.
Central to the reasoning of the Odoms court was the reasoning of Carter v. State, 98 Nev.
331, 647 P.2d 374 (1982), which prohibited the district courts from imposing multiple
sentence enhancements pursuant to NRS 193.165 and 193.167. The Odoms court did not
announce a new rule; it merely explained the law as it exists in this state.
Imposition of consecutive sentences pursuant to NRS 207.010 and 193.165 is prohibited
under Nevada law. Therefore, we vacate the order of the district court denying appellant's
motion to correct his sentence, and we remand this matter to the district court with
instructions to vacate the sentences imposed against appellant for his use of a deadly weapon.
____________
106 Nev. 910, 910 (1990) Las Vegas Chamber of Commerce v. Del Papa
GREATER LAS VEGAS CHAMBER OF COMMERCE; GREATER RENO-SPARKS
CHAMBER OF COMMERCE; ECONOMIC DEVELOPMENT AUTHORITY OF
WESTERN NEVADA, a Nevada Not-for-Profit Corporation; NEVADA
DEVELOPMENT AUTHORITY, a Nevada Not-for-Profit Corporation; BUILDERS
ASSOCIATION OF NORTHERN NEVADA, a Nevada Not-for-Profit Corporation;
THE MOBILE HOME OWNERS LEAGUE OF SILVER STATE INC., a Nevada
Not-for-Profit Corporation; NATIONAL FEDERATION OF INDEPENDENT
BUSINESS/NEVADA, a Nevada Not-for-Profit Corporation; NEVADA
ASSOCIATION OF REALTORS, a Nevada Not-for-Profit Corporation; NEVADA
BANKERS ASSOCIATION, a Nevada Not-for-Profit Corporation; NEVADA
CHAPTER ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., a
Nevada Not-for-Profit Corporation; NEVADA FRANCHISED AUTO DEALERS
ASSOCIATION, a Nevada Not-for-Profit Corporation; NEVADA MANUFACTURERS
ASSOCIATION, a Nevada Not-for-Profit Corporation; NEVADA MOTOR TRANSPORT
ASSOCIATION, a Nevada Not-for-Profit Corporation; NEVADA TELEPHONE
ASSOCIATION, a Nevada Not-for-Profit Corporation; NEVADA WESTERN
PETROLEUM MARKETERS ASSOCIATION, a Nevada Not-for-Profit Corporation;
SOUTHERN NEVADA HOMEBUILDERS ASSOCIATION, INC., a Nevada Not-for-Profit
Corporation; WASHOE NEW CAR DEALERS ASSOCIATION, a Nevada Not-for-Profit
Corporation; A & A PLUMBING & HEATING, INC., a Nevada Corporation;
AMERICAN BANK OF COMMERCE, a Nevada Banking Corporation; AMERICAN
FABRIC & FLOORING INC., a Nevada Corporation; JOHN B. AYMAR PUBLIC
ACCOUNTANTS, LTD., a Nevada Corporation; BAKER APPLIANCE & VIDEO, INC., a
Nevada Corporation; BANK OF AMERICA NEVADA, a Nevada Banking Corporation;
BARRINGTON CORPORATION, a Nevada Corporation; BATTLE MOUNTAIN GOLD
COMPANY, a Nevada Mining Corporation; BENJAMINJPARKER RENO CREATIVE
GROUP, a Nevada Corporation; BILL PEARCE MOTORS, INC., a Nevada
Corporation; BING CONSTRUCTION CO. OF NEVADA, a Nevada Corporation;
BLANCHARD CONSTRUCTION INC., a Nevada Corporation; BULBMAN, INC., a
Nevada Corporation; CARAMELLA BALLARDINI, LTD. dba DISPOSAL SERVICES, a
Nevada Corporation; CASHMAN EQUIPMENT COMPANY, a Nevada Corporation;
CENTEX CORPORATION, a Nevada Corporation; CENTURY STEEL, INC., a Nevada
Corporation; CHAMPION CHEVROLET GEO, a Nevada Corporation; CITIBANK, a
National Association; CLARK & SULLIVAN CONSTRUCTORS, INC., a Nevada
Corporation; CNS, INC., a Nevada Corporation; COLDWELL BANKER PLUMMER &
ASSOCIATES, INC., a Nevada Corporation; COLLINS BROTHERS CORPORATION, a
Nevada Corporation; COMBINED METALS REDUCTION COMPANY, a Utah
Corporation; CONSTRUCTION NOTEBOOK, INC., a Nevada Corporation;
CONTINENTAL NATIONAL BANK, CRAGIN AND PIKE, INC.,
AUTO DEALERS ASSOCIATION, a Nevada Not-for-Profit Corporation; NEVADA
MANUFACTURERS ASSOCIATION, a Nevada Not-for-Profit Corporation;
NEVADA MOTOR TRANSPORT ASSOCIATION, a Nevada Not-for-Profit
Corporation; NEVADA TELEPHONE ASSOCIATION, a Nevada Not-for-Profit
Corporation; NEVADA WESTERN PETROLEUM MARKETERS ASSOCIATION,
a Nevada Not-for-Profit Corporation; SOUTHERN NEVADA HOMEBUILDERS
ASSOCIATION, INC., a Nevada Not-for-Profit Corporation; WASHOE NEW CAR
DEALERS ASSOCIATION, a Nevada Not-for-Profit Corporation; A & A
PLUMBING & HEATING, INC., a Nevada Corporation; AMERICAN BANK OF
COMMERCE, a Nevada Banking Corporation; AMERICAN FABRIC &
FLOORING INC., a Nevada Corporation; JOHN B. AYMAR PUBLIC
ACCOUNTANTS, LTD., a Nevada Corporation; BAKER APPLIANCE & VIDEO,
INC., a Nevada Corporation; BANK OF AMERICA NEVADA, a Nevada Banking
Corporation; BARRINGTON CORPORATION, a Nevada Corporation; BATTLE
MOUNTAIN GOLD COMPANY, a Nevada Mining Corporation;
BENJAMIN/PARKER RENO CREATIVE GROUP, a Nevada Corporation; BILL
PEARCE MOTORS, INC., a Nevada Corporation; BING CONSTRUCTION CO. OF
NEVADA, a Nevada Corporation; BLANCHARD CONSTRUCTION INC., a
Nevada Corporation; BULBMAN, INC., a Nevada Corporation; CARAMELLA
BALLARDINI, LTD. dba DISPOSAL SERVICES, a Nevada Corporation;
CASHMAN EQUIPMENT COMPANY, a Nevada Corporation; CENTEX
CORPORATION, a Nevada Corporation; CENTURY STEEL, INC., a Nevada
Corporation; CHAMPION CHEVROLET GEO, a Nevada Corporation; CITIBANK,
a National Association; CLARK & SULLIVAN CONSTRUCTORS, INC., a Nevada
Corporation; CNS, INC., a Nevada Corporation; COLDWELL BANKER PLUMMER
& ASSOCIATES, INC., a Nevada Corporation; COLLINS BROTHERS
CORPORATION, a Nevada Corporation; COMBINED METALS REDUCTION
COMPANY, a Utah Corporation; CONSTRUCTION NOTEBOOK, INC., a Nevada
Corporation; CONTINENTAL NATIONAL BANK, CRAGIN AND PIKE, INC., a
Nevada Corporation; DAVIS & SON SEAFOOD, INC., a Nevada Corporation;
DERMODY PROPERTIES, a Nevada Corporation; DESERT CHRYSLER PLYMOUTH,
INC., a Nevada Corporation; ELLISON RANCHING COMPANY, a Nevada
Corporation; ELRAY, INC., a Nevada Corporation; EMPLOYER BENEFITS, INC., a
Nevada Corporation; ENERGY EQUITIES GROUP, INC., a Nevada Corporation;
EXECUTIVE SUITES OF AMERICA, INC., a Nevada Corporation; FALLON NATIONAL
BANK OF NEVADA; FIRST AMERICAN TITLE COMPANY OF NEVADA, a Nevada
Corporation; FIRST INTERSTATE BANK OF NEVADA, a National Association;
FLANIGAN WAREHOUSE COMPANY, a Nevada Corporation; FORREST
ENTERPRISES, INC., a Nevada Corporation; FRANKOVICH & CO., INC., a Nevada
Corporation; GARDNER ENGINEERING, INC., a Nevada Corporation; GLOBAL
CONSUMER SERVICES, INC., a California Corporation; GOLD RANCH CASINO, a
Nevada Corporation; GUNTHER BROTHERS, INC., a Nevada Corporation; HMB &
ASSOCIATES, a Nevada Corporation; HOLLINGSWORTH, INC., a Nevada
Corporation; HOLMAN SECURITY CORPORATION, a Nevada Corporation; RALPH
JONES, INC., a Nevada Corporation; IMPACT INTERNATIONAL, INC., a Nevada
Corporation; KANGAROO NEVADA COMPANY, a Delaware Corporation; JACK N.
TEDFORD, INC., a Nevada Corporation; JAMES C. KINGSBURY, INC., a Nevada
Corporation; KRUMP CONSTRUCTION, INC., a Nevada Corporation; J & J
MECHANICAL INC., a Nevada Corporation; JOHNNIE WALKER RV, a Nevada
Corporation; JOHNNY'S FINE FOODS, a Nevada Corporation; L & M, INC., a Nevada
Corporation; LAND AIR BALANCE TECHNOLOGY, INC., a Nevada Corporation; LAND
TITLE OF NEVADA, INC., a Nevada Corporation; LAUGHLIN ASSOCIATES, INC., a
Nevada Corporation; LAUGHLIN NATIONAL BANK; LEE'S WESTERN WEAR, INC., a
Nevada Corporation; MACHABEE OFFICE ENVIRONMENTS, a Nevada Corporation;
MANPOWER TEMPORARY SERVICES, a Nevada Corporation; MARCOR RESORT,
INC., dba THE RIO HOTEL & CASINO, a Nevada Corporation; MARIA'S FOODS,
INC., a Nevada Corporation; McGLADREY & PULLEN, a Nevada Corporation;
MOAPA VALLEY TELECOMMUNICATIONS, INC.
DAVIS & SON SEAFOOD, INC., a Nevada Corporation; DERMODY
PROPERTIES, a Nevada Corporation; DESERT CHRYSLER PLYMOUTH, INC., a
Nevada Corporation; ELLISON RANCHING COMPANY, a Nevada Corporation;
ELRAY, INC., a Nevada Corporation; EMPLOYER BENEFITS, INC., a Nevada
Corporation; ENERGY EQUITIES GROUP, INC., a Nevada Corporation;
EXECUTIVE SUITES OF AMERICA, INC., a Nevada Corporation; FALLON
NATIONAL BANK OF NEVADA; FIRST AMERICAN TITLE COMPANY OF
NEVADA, a Nevada Corporation; FIRST INTERSTATE BANK OF NEVADA, a
National Association; FLANIGAN WAREHOUSE COMPANY, a Nevada
Corporation; FORREST ENTERPRISES, INC., a Nevada Corporation;
FRANKOVICH & CO., INC., a Nevada Corporation; GARDNER ENGINEERING,
INC., a Nevada Corporation; GLOBAL CONSUMER SERVICES, INC., a California
Corporation; GOLD RANCH CASINO, a Nevada Corporation; GUNTHER
BROTHERS, INC., a Nevada Corporation; HMB & ASSOCIATES, a Nevada
Corporation; HOLLINGSWORTH, INC., a Nevada Corporation; HOLMAN
SECURITY CORPORATION, a Nevada Corporation; RALPH JONES, INC., a
Nevada Corporation; IMPACT INTERNATIONAL, INC., a Nevada Corporation;
KANGAROO NEVADA COMPANY, a Delaware Corporation; JACK N.
TEDFORD, INC., a Nevada Corporation; JAMES C. KINGSBURY, INC., a Nevada
Corporation; KRUMP CONSTRUCTION, INC., a Nevada Corporation; J & J
MECHANICAL INC., a Nevada Corporation; JOHNNIE WALKER RV, a Nevada
Corporation; JOHNNY'S FINE FOODS, a Nevada Corporation; L & M, INC., a
Nevada Corporation; LAND AIR BALANCE TECHNOLOGY, INC., a Nevada
Corporation; LAND TITLE OF NEVADA, INC., a Nevada Corporation; LAUGHLIN
ASSOCIATES, INC., a Nevada Corporation; LAUGHLIN NATIONAL BANK;
LEE'S WESTERN WEAR, INC., a Nevada Corporation; MACHABEE OFFICE
ENVIRONMENTS, a Nevada Corporation; MANPOWER TEMPORARY
SERVICES, a Nevada Corporation; MARCOR RESORT, INC., dba THE RIO
HOTEL & CASINO, a Nevada Corporation; MARIA'S FOODS, INC., a Nevada
Corporation; McGLADREY & PULLEN, a Nevada Corporation; MOAPA VALLEY
TELECOMMUNICATIONS, INC., a Nevada Corporation; MOUNTAIN VIEW GUEST
RANCH, INC., a Nevada Corporation; NATIONAL HERITAGE INDUSTRIES, INC., a
Nevada Corporation; NATIONAL TITLE COMPANY, a Nevada Corporation; NEVADA
AUDIO VISUAL SERVICES, INC., a Nevada Corporation; NEVADA BANKING
COMPANY, a Nevada Banking Corporation; NEVADA CEMENT COMPANY, a Nevada
Corporation; NEVADA NILE RANCH, a Nevada Corporation; NEVADA STATE BANK, a
Nevada Banking Corporation; NEVADA WESTERN OFFICIAL SECURITY, INC., a
Nevada Corporation; OWEN DISTRIBUTION CO., a Nevada Corporation; PACIFIC
FREEPORT CORPORATION, a Nevada Corporation; PAHRUMP VALLEY VINEYARDS,
INC., a Nevada Corporation; PATTERSON REPORTING SERVICES, INC., a Nevada
Corporation; PETROLEUM DISTRIBUTING INC., a Nevada Corporation; PHOTO
FINISH, a Nevada Corporation; POLARIS PRINTING & PUBLISHING, INC., a
Nevada Corporation; PRECIOUS METAL MINES, INC., a Nevada Corporation;
PREFERRED FINANCIAL FUNDING, INC., a California Corporation; PULIZ MOVING
& STORAGE, a Nevada Corporation; QUANTUM COMMUNICATIONS, a Nevada
Corporation; REAL PROPERTIES, LTD., a Nevada Corporation; REESE TAX, a
Nevada Corporation; RONCO MEDIA, INC., a Nevada Corporation;
SAFETY-COMPENSATION ENERGY, INC., a Nevada Corporation; SCANDIA FAMILY
FUN CENTERS, INC., a Nevada Corporation; SECURITY PACIFIC BANK OF NEVADA,
a National Association; SHARON'S WORLD INTERIOR, a Nevada Corporation;
SIERRA BANK OF NEVADA, a Nevada Banking Corporation; SIERRA HEALTH
SERVICES, INC., a Nevada Corporation; SIMPSON ELECTRIC, INC., a Nevada
Corporation; SOLAS INC., a Nevada Corporation; SOUTHERN NEVADA TBA SUPPLY
CO., a Nevada Corporation; STACY EXHIBIT SERVICE, INC., a Nevada Corporation;
STAGE DOOR INC., a Nevada Corporation; STANHARRAH, a Nevada Corporation;
STILES & ASSOCIATES, INC.,
MOAPA VALLEY TELECOMMUNICATIONS, INC., a Nevada Corporation;
MOUNTAIN VIEW GUEST RANCH, INC., a Nevada Corporation; NATIONAL
HERITAGE INDUSTRIES, INC., a Nevada Corporation; NATIONAL TITLE
COMPANY, a Nevada Corporation; NEVADA AUDIO VISUAL SERVICES, INC.,
a Nevada Corporation; NEVADA BANKING COMPANY, a Nevada Banking
Corporation; NEVADA CEMENT COMPANY, a Nevada Corporation; NEVADA
NILE RANCH, a Nevada Corporation; NEVADA STATE BANK, a Nevada Banking
Corporation; NEVADA WESTERN OFFICIAL SECURITY, INC., a Nevada
Corporation; OWEN DISTRIBUTION CO., a Nevada Corporation; PACIFIC
FREEPORT CORPORATION, a Nevada Corporation; PAHRUMP VALLEY
VINEYARDS, INC., a Nevada Corporation; PATTERSON REPORTING
SERVICES, INC., a Nevada Corporation; PETROLEUM DISTRIBUTING INC., a
Nevada Corporation; PHOTO FINISH, a Nevada Corporation; POLARIS PRINTING
& PUBLISHING, INC., a Nevada Corporation; PRECIOUS METAL MINES, INC., a
Nevada Corporation; PREFERRED FINANCIAL FUNDING, INC., a California
Corporation; PULIZ MOVING & STORAGE, a Nevada Corporation; QUANTUM
COMMUNICATIONS, a Nevada Corporation; REAL PROPERTIES, LTD., a
Nevada Corporation; REESE TAX, a Nevada Corporation; RONCO MEDIA, INC., a
Nevada Corporation; SAFETY-COMPENSATION ENERGY, INC., a Nevada
Corporation; SCANDIA FAMILY FUN CENTERS, INC., a Nevada Corporation;
SECURITY PACIFIC BANK OF NEVADA, a National Association; SHARON'S
WORLD INTERIOR, a Nevada Corporation; SIERRA BANK OF NEVADA, a
Nevada Banking Corporation; SIERRA HEALTH SERVICES, INC., a Nevada
Corporation; SIMPSON ELECTRIC, INC., a Nevada Corporation; SOLAS INC., a
Nevada Corporation; SOUTHERN NEVADA TBA SUPPLY CO., a Nevada
Corporation; STACY EXHIBIT SERVICE, INC., a Nevada Corporation; STAGE
DOOR INC., a Nevada Corporation; STANHARRAH, a Nevada Corporation;
STILES & ASSOCIATES, INC., a Nevada Corporation; STREMMEL GALLERY, a
Nevada Corporation; SUNSHINE MINING COMPANY, a Delaware Corporation;
SUN STATE BANK, a Nevada Banking Corporation; THE GENOA COMPANY, INC.,
a Nevada Corporation; THE MORTGAGE CENTER, a Nevada Corporation; THE
PHILLIPS DEVELOPMENT CORPORATION, dba THE LAKE MEAD BUSINESS CENTER,
a Nevada Corporation; THUNDERBIRD PRINTING & SCREENING, INC., a Nevada
Corporation; TIM HAFEN RANCHES, INC., a Nevada Corporation; TRAVEL
UNLIMITED, INC., a Nevada Corporation; UNIFORMS INC., a Nevada Corporation;
UNITED ENGINE & MACHINE CO., a California Corporation; VALLEY BANK OF
NEVADA, a Nevada Banking Corporation; VIKING METALLURGICAL
CORPORATION, a Nevada Corporation; VTN NEVADA, a Nevada Corporation; WALT
CASEY WATER COND., INC., a Nevada Corporation; WASHOE BUILDING SUPPLY, a
Nevada Corporation; WASHOE FUEL INC., a Nevada Corporation;
WEDDLEJCALDWELL ADVERTISING, INC., a Nevada Corporation; WELSH
ENGINEERING, INC., a Nevada Corporation; WESTERN TITLE COMPANY, INC., a
Nevada Corporation; FRED H. DRESSLER COMPANY, a Nevada Partnership; HUGH
LANTZ AND ASSOCIATES, a Nevada Partnership; M-I DRILLING FLUIDS COMPANY,
a Texas Partnership; COLT SERVICE CENTER, a Nevada Sole Proprietorship;
LOUDERMILK INVESTMENTS, a Sole Proprietorship; SAGE OF NEVADA, a Sole
Proprietorship; STORYVILLE MOBILE HOME RESORT, a Sole Proprietorship;
CITIZENS FOR PRIVATE ENTERPRISE NORTHERN NEVADA COUNCIL, a Nevada
Political Action Group; PATRICK ALLISON, an Individual; JOSEPH J. EBERLE,
D.D.S., LTD., an Individual; C.
GENOA COMPANY, INC., a Nevada Corporation; THE MORTGAGE CENTER, a
Nevada Corporation; THE PHILLIPS DEVELOPMENT CORPORATION, dba THE
LAKE MEAD BUSINESS CENTER, a Nevada Corporation; THUNDERBIRD
PRINTING & SCREENING, INC., a Nevada Corporation; TIM HAFEN RANCHES,
INC., a Nevada Corporation; TRAVEL UNLIMITED, INC., a Nevada Corporation;
UNIFORMS INC., a Nevada Corporation; UNITED ENGINE & MACHINE CO., a
California Corporation; VALLEY BANK OF NEVADA, a Nevada Banking
Corporation; VIKING METALLURGICAL CORPORATION, a Nevada Corporation;
VTN NEVADA, a Nevada Corporation; WALT CASEY WATER COND., INC., a
Nevada Corporation; WASHOE BUILDING SUPPLY, a Nevada Corporation;
WASHOE FUEL INC., a Nevada Corporation; WEDDLE/CALDWELL
ADVERTISING, INC., a Nevada Corporation; WELSH ENGINEERING, INC., a
Nevada Corporation; WESTERN TITLE COMPANY, INC., a Nevada Corporation;
FRED H. DRESSLER COMPANY, a Nevada Partnership; HUGH LANTZ AND
ASSOCIATES, a Nevada Partnership; M-I DRILLING FLUIDS COMPANY, a Texas
Partnership; COLT SERVICE CENTER, a Nevada Sole Proprietorship;
LOUDERMILK INVESTMENTS, a Sole Proprietorship; SAGE OF NEVADA, a
Sole Proprietorship; STORYVILLE MOBILE HOME RESORT, a Sole
Proprietorship; CITIZENS FOR PRIVATE ENTERPRISE NORTHERN NEVADA
COUNCIL, a Nevada Political Action Group; PATRICK ALLISON, an Individual;
JOSEPH J. EBERLE, D.D.S., LTD., an Individual; C. THOMAS GOTT, M.D., an
Individual; S. EVERETT PERLBERG, an Individual; BETH RAY, an Individual;
ROBERT E. ROBINSON, an Individual; WM. BEN SCOTT, an Individual; VICTOR
S. SHAH, an Individual; FRED WALTERS, an Individual; CLAUDINE WILLIAMS,
an Individual; Appellants, v. FRANKIE SUE DEL PAPA, Secretary of State, and
NEVADA STATE EDUCATION ASSOCIATION, Respondents.
No. 21326
December 20, 1990 802 P.2d 1280
Appeal from order denying complaint for an injunction. First Judicial District Court,
Carson City; Michael R. Griffin, Judge.
Corporate and individual taxpayers brought action to preclude Secretary of State from
distributing to county clerks copies of corporate tax initiative for inclusion on ballot.
Education association was permitted to intervene. The district court dismissed complaint.
Taxpayers appealed. The Supreme Court held that violation of Federal Constitution by taxing
interest on federal obligations, but not interest on state or municipal obligations, even if
correct, was insufficient reason to preclude inclusion of initiative on ballot.
Affirmed.
Vargas & Bartlett and John P. Sande, III, Reno, for Appellants.
Brian McKay, Attorney General, and Jonathan L. Andrews, Deputy Attorney General, for
Secretary of State, Dyer & McDonald, for Nevada State Education Association, Carson City,
for Respondents.
Statutes.
Claim that corporate tax initiative violated Federal Constitution by taxing interest on federal obligations, but not interest on state
or municipal obligations, even if correct, was insufficient reason to preclude inclusion of initiative on ballot.
OPINION
Per Curiam:
On June 29, 1990, appellants, a group of individuals, for profit corporations and not for
profit corporations (taxpayers), filed in the district court a complaint seeking extraordinary
and injunctive relief to preclude the respondent Secretary of State from distributing to the
various county clerks copies of the corporate tax initiative (Question 6) for inclusion on the
ballot for the 1990 general election. The taxpayers alleged that various constitutional defects
were apparent on the face of Question 6. On July 2, 1990, the district court entered an order
directing the Secretary of State to show cause why the injunction requested in the complaint
should not be issued.
On July 2, 1990, the Nevada State Education Association (NSEA) filed a motion to
intervene as a defendant in the action below. The district court subsequently granted the
motion to intervene.
On July 3, 1990, the Secretary of State filed her opposition to the requested injunction.
Also on that date, the NSEA filed a motion to dismiss appellants' complaint.
motion to dismiss appellants' complaint. NSEA also filed in the district court points and
authorities opposing the issuance of the injunction requested by the taxpayers. On July 5,
1990, taxpayers filed their opposition to the motion to dismiss, and their reply points and
authorities in support of the requested injunction.
On July 6, 1990, the district court entered an order granting, in part, the NSEA motion to
dismiss. Specifically, the district court determined that the individual taxpayers and the not
for profit corporate plaintiffs lacked standing to maintain the action for injunctive relief. The
district court denied the motion to dismiss in all other respects.
On July 11, 1990, the Secretary of State filed her answer to the complaint. She also filed a
supplemental opposition to the requested injunction. On July 19, 1990, NSEA filed additional
points and authorities opposing the issuance of the requested injunction. The taxpayers filed
their additional reply points and authorities in support of the requested injunction.
On July 30, 1990, after a hearing, the district court entered an order dismissing the
taxpayers' complaint. This appeal followed.
1

The taxpayers argue primarily that Question 6 violates the United States Constitution
because it would tax the interest earned on federal obligations, but would not tax the interest
earned on state or municipal obligations. See Memphis Bank and Trust Co. v. Garner, 459
U.S. 392 (1983). Assuming, arguendo, that the taxpayers are correct, this would be an
insufficient reason to preclude the people of this state from exercising their right to vote for
or against an initiative petition.
In Caine v. Robbins, 61 Nev. 416, 131 P.2d 516 (1942), this court held that ballot
questions may be enjoined where a plain, palpable violation of the constitution is
threatened. Caine, 61 Nev. at 427, 131 P.2d at 520. This rule has remained inviolate in an
unbroken line of cases that has stood for almost fifty years. See Lauritzen v. Casady, 70 Nev.
136, 261 P.2d 145 (1953); Brown v. Georgetta, 70 Nev. 500, 275 P.2d 376 (1954); Beebe v.
Koontz, 72 Nev. 247, 302 P.2d 486 (1956); Lundberg v. Koontz, 82 Nev. 360, 418 P.2d 808
(1966); Cirac v. Lander County, 95 Nev. 723, 602 P.2d 1012 (1979).
All of the cases in which this court has intervened to prevent a ballot question from going
to a vote of the people have involved violations of the state constitutional or statutory rules
governing the procedures by which those questions were placed on the ballot. See Caine v.
Robbins, 61 Nev. 416, 131 P.2d 516 (1942) {lack of enacting language in the ballot
question rendered the question void); Lauritzen v. Casady, 70 Nev. 136, 261 P.2d 145
{1953) {failure of county commission to schedule election within statutory time
requirements rendered the election void); Lundberg v. Koontz, S2 Nev. 360
__________

1
On September 12, 1990, this court entered an order affirming the order of the district court, and indicated
that an opinion stating the reason for the court's decision would follow.
(lack of enacting language in the ballot question rendered the question void); Lauritzen v.
Casady, 70 Nev. 136, 261 P.2d 145 (1953) (failure of county commission to schedule election
within statutory time requirements rendered the election void); Lundberg v. Koontz, 82 Nev.
360, 418 P.2d 808 (1966) (failure to authenticate signatures on petition properly rendered the
ballot question void).
The authorities cited above demonstrate that this court has never voided a ballot question
because it may be held in the future to violate a provision of the United States Constitution.
Such action would be unwise for two reasons. First, a measure that initially appears
unconstitutional may be implemented in a constitutional manner. Second, even if an initiative
measure is unconstitutional, there is great political utility in allowing the people to vote on
the measure. Such a vote communicates clearly to the representative branches of government
the popular sentiment on a particular issue or issues.
Because Question 6 contained no defects that would render it void under the Nevada
constitution, the district court did not err when it denied the taxpayers' request for an
injunction. We have examined the taxpayers' remaining arguments of error, and have
determined that they lack merit. Accordingly, we affirm the order of the district court.
____________
106 Nev. 917, 917 (1990) Phelps v. District Court
ANNE PHELPS, ARMEN PHELPS and ANNETTE GRIFFITH, Individually, and ANNE
PHELPS, as Personal Representative of the ESTATE OF ARTHUR E. PHELPS,
Petitioners, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA, IN AND FOR THE COUNTY OF WASHOE, DEPARTMENT TWO,
AND THE HONORABLE CHARLES M. McGEE, DISTRICT JUDGE,
Respondents, and DONALD A. SPRING, M.D., Real Party in Interest.
No. 21561
December 27, 1990 803 P.2d 1101
Original petition for a writ of prohibition. Second Judicial District Court, Washoe County;
Charles M. McGee, Judge.
Claimants in medical malpractice action filed petition for writ of prohibition challenging
jurisdiction of trial court to issue declaratory judgment concerning affidavit of claimants'
medical expert submitted to medical legal screening panel.
expert submitted to medical legal screening panel. The Supreme Court held that the trial court
was without jurisdiction to entertain doctor's declaratory relief action where claimants were
not named as parties in declaratory relief action and where there was no dispute between the
doctor and the panel, which was named as defendant.
Writ granted.
Dale L. Sare & Associates and William B. Cherry, South Lake Tahoe, California, for
Petitioners.
Brian McKay, Attorney General, and James C. Smith, Deputy, Carson City; Hibbs,
Roberts, Lemons & Grundy, Reno, for Respondents.
Osborne, Jenkins & Gamboa, Reno, for Real Party in Interest.
District court lacked jurisdiction to entertain declaratory relief action by doctor who sought to prevent medical legal screening
panel from considering affidavit of claimants' medical expert; claimants in malpractice action were not named in doctor's declaratory
relief complaint, and there was no dispute between doctor and named defendants in declaratory judgment action. NRS 41A.003 et seq.,
41A.039, subd. 4.
Trial court may not collaterally review admissibility or sufficiency of documents filed before medical legal screening panel. NRS
41A.003 et seq., 41A.039, subd. 4.
Issue of whether affidavit filed with medical legal screening panel in medical malpractice action was responsive to allegations in
answer was question of administrative discretion, not question of law appropriate for declaratory relief action. NRS 30.030.
4. Prohibition.
Writ of prohibition was appropriate remedy by which claimants in medical malpractice action could challenge jurisdiction of trial
court over declaratory judgment action; claimants were not parties to declaratory judgment action and could not appeal. NRS 41A.003
et seq., 41A.039, subd. 4.
OPINION
Per Curiam:
This original petition for a writ of prohibition challenges an order of the district court
declaring that the affidavit of petitioners' medical expert cannot be presented to the joint
medical legal screening panel, and enjoining members of the joint medical legal screening
panel and other state officials from considering the affidavit of petitioners' medical expert.
Because we conclude that the district court was without jurisdiction to enjoin the action of
the medical legal screening panel, we grant this petition.
the district court was without jurisdiction to enjoin the action of the medical legal screening
panel, we grant this petition.
On December 22, 1989, petitioners filed with the joint medical legal screening panel
(screening panel) a complaint for wrongful death of Arthur E. Phelps. Real party in interest
Donald A. Spring, M.D., was a named defendant in that complaint. The complaint alleged
that the medical malpractice of Spring and others caused Phelps' death. Attached to the
complaint was a letter informing all defendants and the screening panel that petitioners
intended to rely on the expert testimony of Dr. Dennis R. Breen, a cardiologist from
Sacramento, California. The letter informed the defendants of Breen's telephone number. In
their answer to the complaint, defendants specifically referred to Breen as the Sacramento
Cardiologist. Petitioners attached to their response to defendants' answer the affidavit of
Breen, in which Breen opines that Phelps' death resulted from the defendants' negligence.
On May 2, 1990, the defendants filed with the Insurance Commissioner, under whose
authority the screening panel operates, a motion to strike the affidavit of Breen. This motion
was premised on the incorrect assumption that NRS 41A.039(4) and NAC 41A.050 preclude
a claimant in a medical malpractice action from submitting the affidavit of a medical expert
in his response to the defendant's answer.
1
The Insurance Commissioner denied the motion
to strike, finding that he lacked jurisdiction to strike documents submitted to the screening
panel, and that it was the sole right of the screening panel to consider or disregard the
pleadings submitted to it.
Spring then petitioned the district court for judicial review of the decision of the Insurance
Commissioner. Having later concluded that the remedy of judicial review was not available to
him, Spring filed in the district court a complaint for declaratory and injunctive relief on
September 26, 1990. The complaint named only Spring as a plaintiff, and the Insurance
Commissioner and the screening panel as the only defendants. Petitioners and the remaining
defendants were not named as parties to the declaratory relief action.
__________

1
Nothing in either NRS 41A.039(4) or NAC 41A.050 precludes a claimant from filing the affidavit of an
expert witness in a response to an answer. Instead, NRS 41A.039(4) simply requires that a response must
address only the allegations of the answer, and NAC 41A.050 allows for the filing of such affidavits with the
original complaint. Indeed, one would expect that a claimant in a medical malpractice action would file
affidavits in opposition to the medical assertions made in an answer. NAC 41A.050(3) requires only that a party
must, in his complaint or answer, list the name of any expert witness upon whose opinion he relies and offer the
services of that expert witness to the screening panel. The letter petitioners attached to and filed with their
complaint clearly satisfies this requirement.
and the remaining defendants were not named as parties to the declaratory relief action. Thus,
the matter proceeded in the absence of most of the interested parties.
[Headnote 1]
At a hearing on the complaint for declaratory relief, Spring argued that the affidavit of
Breen constituted new matter which could not be presented to the screening panel. The
Insurance Commissioner and the screening panel indicated to the court that the state was
neutral on the question of whether the affidavit of Breen should be considered by the
screening panel. Counsel for petitioners was allowed to argue the legal position of petitioners,
although petitioners were not parties to the proceeding.
On October 19, 1990, the district court entered a declaratory judgment in favor of Spring,
and permanently enjoined the Insurance Commissioner and the screening panel from
considering the affidavit of Breen. In that judgment, the district court concluded that it had
jurisdiction to entertain the action for declaratory and injunctive relief. In this conclusion, the
district court erred.
NRS 30.030 provides in part that courts of record shall have power to declare the rights,
status and other legal relations of persons who file appropriate complaints. In this case, there
was no dispute between the named defendants, the Insurance Commissioner and the
screening panel, and the plaintiff. The dispute involved the plaintiff and the petitioners in this
action. The district court was certainly without authority to declare the alleged rights of the
petitioners who were not parties to the action before it.
More importantly, however, this alleged declaratory judgment action on behalf of Spring
did not involve the declaration of any right, status or legal relation. The action of the
screening panel does not involve the substantial right of any party to a medical malpractice
action. If the plaintiff is unsuccessful in such an action, he may nonetheless pursue his suit to
trial. If the defendant is unsuccessful, he may demand that his liability be determined at a
trial. The determination of the screening panel simply affects the burdens of the parties with
respect to the payment of attorney's fees if the matter proceeds to trial, and the unsuccessful
party before the screening panel is also unsuccessful before the finder of fact. See NRS
Chapter 41A.
NRS 41A.039(4) (emphasis added) provides in relevant part that [t]he panel shall
disregard any portion of the response that does not address an allegation raised in the answer.
. . . The statute clearly contemplates that the panel, upon determining that any portion of the
response is not responsive to the answer, shall disregard that portion of the response. The
district court's judgment, rather than declaring the rights, status or legal relations of the
parties properly before it, instead simply usurps the authority of the screening panel to
conduct its own affairs and administer its own docket.
the parties properly before it, instead simply usurps the authority of the screening panel to
conduct its own affairs and administer its own docket.
[Headnote 2]
Spring argues, however, that he will be irreparably harmed if the panel views the affidavit,
because, in his opinion, the panel's decision will be tainted even if the panel elects to
disregard the affidavit. This argument lacks merit. The screening panel, like any tribunal, is
perfectly capable of reviewing the evidence before it and relying on only the appropriate
evidence. Indeed, the statute specifically enjoins this duty on the screening panel. More
importantly, acceptance of Spring's argument would lead to the collateral review by the courts
of virtually all of the pleadings filed with the screening panel. NRS Chapter 41A does not
contemplate collateral review of the pleadings filed before the screening panel, and collateral
review in any form would completely frustrate the legislative purposes behind the statutes.
We therefore conclude that the district courts lack jurisdiction to collaterally review the
admissibility or sufficiency of the documents filed before the screening panel.
Spring contends that this leaves him without a remedy if the screening panel acts
improperly. We disagree. If a matter is mishandled by the screening panel, and proceeds to
trial, the district court would be free to fashion an appropriate equitable remedy following
trial. We note, however, that the party who lost before the screening panel would have to lose
at trial before this situation could arise. Thus, it would be unlikely that the proceedings before
the screening panel could be considered to have prejudiced the losing party, because the
screening panel reached the correct result.
[Headnote 3]
Spring argues that this was an appropriate action for declaratory relief because it involved
a question of law not involving administrative discretion. See Prudential Ins. Co. v. Ins.
Comm'r, 82 Nev. 1, 409 P.2d 248 (1966). We disagree. The question of whether the affidavit
was responsive to allegations in the answer clearly involves a question of administrative
discretion.
[Headnote 4]
Finally, Spring contends that a writ of prohibition is an inappropriate remedy in this case
because an appeal may be taken from a declaratory judgment. Petitioners cannot appeal from
the declaratory judgment, however, because they were not parties to the action below. See
NRAP 3A(a) ([a]ny party aggrieved may appeal . . .")
appeal . . .) (emphasis added); Albany v. Arcata Associates, Inc., 106 Nev. 688, 799 P.2d
566 (1990) (attorney who was aggrieved by district court judgment could not appeal because
he was not a party); Rae v. All American Life & Cas. Co., 95 Nev. 920, 605 P.2d 196 (1979)
(a party is a named defendant who has been served with process). Thus, petitioners have no
remedy in the ordinary course of the law.
A writ of prohibition arrests proceedings that are without or in excess of the jurisdiction of
the lower tribunal. In this case, the district court was without jurisdiction to entertain Spring's
complaint for declaratory and injunctive relief. Therefore, the judgment of the district court is
void. Accordingly, we grant this petition, and we direct the clerk of this court forthwith to
issue a writ of prohibition to the district court prohibiting that court from taking any action to
enforce its void judgment.
____________
106 Nev. 922, 922 (1990) Carson v. State
JIMMY RAY CARSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20399
December 27, 1990 803 P.2d 230
Appeal from a judgment of conviction on two counts of sexual assault. Eighth Judicial
District Court, Clark County; Jack Lehman, Judge.
Defendant was convicted of sexual assault. Judgment was entered in the district court.
Defendant appealed. The Supreme Court held that defendant was entitled to introduce, over
hearsay objection, evidence that victim had moaned when defendant massaged her between
her legs.
William H. Smith, Las Vegas, for Appellant.
Tufteland, Deputy District Attorney, and Daniel M. Seaton, Deputy District Attorney, Clark
1. Criminal Law.
Defendant was entitled to introduce evidence, over hearsay objection, that victim in sexual assault case had emitted moans when
defendant had massaged her between her legs; evidence was admissible to show defendant's state of mind, that he thought victim was
consenting to sexual activity. NRS 51.105, subd. 1.
2. Criminal Law.
Trial court committed reversible error in sexual assault case, by refusing defendant's proffered testimony that victim had emitted
moans when defendant had massaged her between legs; defendant had not denied sexual contact with victim and his entire defense
rested on consent theory. NRS 51.105, subd. 1.
OPINION
Per Curiam:
Appellant Jimmy Ray Carson was charged with two counts of sexual assault involving the
same woman. At trial, Carson's attorney attempted to elicit testimony from his client
supporting a consent defense: namely, statements made by the victim during the course of the
alleged assaults. The State lodged numerous hearsay objections to this line of questioning.
Defense counsel maintained that the statements went toward Carson's state of mind and were
not being offered for their truth. The trial court sustained the objections. Carson was
convicted and sentenced to life in prison. Appellant appeals his inability to fully present the
consent defense. We hold that the hearsay rulings of the court below were in error and hereby
reverse appellant's convictions.
[Headnote 1]
Carson did not deny having sexual contact with the victim. He maintained however, that
she fully consented to the contact. At trial he testified that, at the victim's request, he
massaged her shoulders, neck, back, and legs, and that when he placed his hand between her
legs she responded with moans. Carson's counsel then asked his client whether she
indicated that she wanted him to stop. The State objected on hearsay grounds and the court
sustained the objection. Carson then testified that the victim sighed when he massaged
between her legs. The court instructed the jury to disregard this statement. Other attempts to
introduce statements the appellant took to imply consent met with similar exclusion on
hearsay grounds.
Appellant argues that the ability to show that the victim was responsive to his sexual
advances was a vital part of his consent defense. He asserts that the trial court's exclusion
prevented full presentation of this defense to the jury. We believe that appellant is correct in
asserting that the victim's out-of-court declarations were admissible to establish state of mind.
This exception is codified in NRS 51.105(1).1 In Beddow v. State, 93 Nev. 619,
__________

1
NRS 51.105(1) states:
A statement of the declarant's then existing state of mind, emotion, sensation or physical condition,
such as intent, plan, motive, design, mental feeling, pain and bodily health, is not inadmissible under the
hearsay rule.
572 P.2d 526 (1977), we sustained the admission of hearsay evidence when the statements
were offered as evidence relevant to the listener's existing state of mind. We cited 6
Wigmore, Evidence 314 (Chadbourn Rev. 1976):
Whenever an utterance is offered to evidence the state of mind which ensued in
another person in consequence of the utterance, it is obvious that no assertive or
testimonial use is sought to be made of it, and the utterance is therefore admissible, so
far as the hearsay rule is concerned. (Emphasis in original.)
93 Nev. at 623, 572 P.2d at 528-29.
[Headnote 2]
In its brief and in argument before this court, the State largely concedes the error of the
trial court's hearsay rulings. It maintains, however, that even if the hearsay rulings were
erroneous, they amounted to no more than harmless error. We cannot agree. Appellant did not
deny having sexual contact with the victim. His entire defense rested on a consent theory, the
effective presentation of which was prevented by the court's hearsay rulings. These rulings
went beyond mere harmless error and necessitate reversal.
Accordingly, we hereby reverse appellant's convictions and remand the matter to the
district court.
____________
106 Nev. 924, 924 (1990) Ross v. State
MONTE RAY ROSS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20785
December 27, 1990 803 P.2d 1104
Appeal from judgment of conviction pursuant to jury verdict of driving under the influence
of intoxicating liquor, third offense, a felony. Sixth Judicial District Court, Humboldt County;
Jerry V. Sullivan, Judge.
Defendant was convicted in the district court of driving under influence of intoxicating
liquor, and he appealed. The Supreme Court held that prosecutor's argument that defense
witness was liar was reversible error.
Hager & Mausert, Reno, for Appellant.
106 Nev. 924, 925 (1990) Ross v. State
Brian McKay, Attorney General, Carson City; and Jack T. Bullock, District Attorney and
Robert Griffy, Deputy District Attorney, Humboldt County, for Respondent.
1. Criminal Law.
Constitution guarantees fair trial, not necessarily perfect one. U.S.C.A.Const. Amends. 6, 14.
2. Criminal Law.
It is improper argument for counsel to characterize witness as liar.
3. Criminal Law.
It is improper for prosecutor to interject his personal opinion in closing argument.
4. Criminal Law.
It is generally outside boundaries of proper argument to comment on defendant's failure to call witness; such comment
impermissibly shifts burden of proof to defense.
5. Criminal Law.
Prosecutor may demonstrate to jury through inferences from record that defense witness' testimony is palpably untrue.
6. Criminal Law.
Though prosecutor could properly explain to jury why defense witness might be lying, statement that witness was liar, both as fact
and as conclusion, and that her situation provided assurance that she was liar, was not proper argument.
7. Criminal Law.
Prosecutor's improper argument that defense witness was liar was so patently prejudicial as to require appellate court to intervene
sua sponte, despite defense counsel's failure to object.
OPINION
Per Curiam:
A jury found appellant Monte Ray Ross guilty of driving under the influence of
intoxicating liquor, third offense, a felony.
1
Our review of the record persuades us that Ross
was denied a fair trial; we therefore reverse.
On November 6, 1988, Deputy Sheriff Phillip Bennett of the Humboldt County Sheriff's
Department received a citizen's report of a possible accident. Officer Bennett arrived at the
accident scene at approximately 1:30 a.m. and noticed a white Toyota pickup truck parked on
the wrong side of the two-lane road. The pickup was facing oncoming traffic and was parked
down a sloping shoulder some fifteen to eighteen feet off the road. Bennett found Ross
behind the steering wheel of the vehicle. The vehicle's lights were on and the engine was
running.
Officer Bennett smelled an odor similar to alcohol and noted that Ross's speech was
"slurred."
__________

1
Ross was sentenced to three years in Nevada State Prison and ordered to pay a $2,000 fine.
106 Nev. 924, 926 (1990) Ross v. State
that Ross's speech was slurred. Ross's motor ability was so impaired that he was unable to
stand or walk. A police check on Ross's social security number revealed that his license was
revoked for prior alcohol-related driving offenses. Ross was placed under arrest. A blood
alcohol test revealed that Ross's blood alcohol content was .275
2
percent by weight at the
time of withdrawal.
During trial, the defense called a total of only three witnesses. A central defense theory
turned on the testimony of appellant's wife, Lorraine Ross. Appellant did not testify at his
trial.
Mrs. Ross testified that she, and not her husband, had driven the vehicle that night.
According to her testimony, a phone call from a friend alerted her that her husband was
intoxicated at a nearby bar, thus prompting her to walk three miles in the dark to rescue him.
On the way home, the couple argued. Ross demanded to be returned to the bar. Mrs. Ross
then angrily turned the pickup around, causing it to become stuck off the road. She testified
that they tried unsuccessfully to push the pickup back onto the road. She left to walk back
home and Ross supposedly started back to the bar, but was forced by the cold temperature to
return to the car to warm himself.
Ross contends that prosecutorial misconduct grievously prejudiced his defense. During
closing argument, the prosecutor directed the jury's attention to the fact that the friend who
allegedly telephoned Lorraine Ross did not testify, and called upon the defense attorney to
explain why he [the friend] didn't come forward. Ross argues that the particularly damaging
statements by the prosecutor concurred when the prosecutor characterized Lorraine Ross as a
liar and further emphasized that couples in their type of situation usually come up with a story
that the wife or girlfriend was driving.
3
The inference, of course, is that the prosecutor was
speaking from experience as to what was "usual" in this type of case.
__________

2
1. It is unlawful for any person who:
(b) Has 0.10 percent or more by weight of alcohol in his blood, to drive or be in actual physical
control of a vehicle on a highway or on premises to which the public has access.

3
The prosecutor stated to the jury in closing argument:
I'm telling you here and now this woman was lying for her husband. She never came forward and told
anybody. This is where we hear it, right here for the first time, and it doesn't make sense that she didn't
come forward.
. . . .
. . . They know that the police didn't actually see him driving, so they were going to come up and say,
somebody else was driving, and try to explain away how he got there without driving. They come up
with some story, and it's usually the girlfriend or the wife who is the one supposedly driving when they
come up with that story. That's why we heard that testimony.
106 Nev. 924, 927 (1990) Ross v. State
the prosecutor was speaking from experience as to what was usual in this type of case.
[Headnotes 1-3]
The Constitution guarantees a fair trial, not necessarily a perfect one. Lutwak v. United
States, 344 U.S. 604, 619 (1953). Nevertheless, previous decisions of this court clearly state
that it is improper argument for counsel to characterize a witness as a liar. Witherow v. State,
104 Nev. 721, 724, 765 P.2d 1153, 1155 (1988). It is also improper for a prosecutor to
interject his personal opinion in closing argument. Yates v. State, 103 Nev. 200, 203, 734
P.2d 1252, 1254 (1987); Aesoph v. State, 102 Nev. 316, 322, 721 P.2d 379, 383 (1986);
Collier v. State, 101 Nev. 473, 480, 705 P.2d 1126, 1130 (1985).
[Headnote 4]
It is generally also outside the boundaries of proper argument to comment on a defendant's
failure to call a witness. Colley v. State, 98 Nev. 14, 16, 639 P.2d 530, 532 (1982). This can
be viewed as impermissibly shifting the burden of proof to the defense. Barron v. State, 105
Nev. 767, 778, 783 P.2d 444, 451 (1989). Such a shifting is improper because [i]t suggests
to the jury that it was the defendant's burden to produce proof by explaining the absence of
witnesses or evidence. This implication is clearly inaccurate. Id. (citing Mullaney v. Wilbur,
421 U.S. 684 (1975); In re Winship, 397 U.S. 358 (1970)).
[Headnote 5]
A prosecutor may demonstrate to a jury through inferences from the record that a defense
witness's testimony is palpably untrue. It was within the parameters of proper argument to
point out to the jury that Lorraine Ross's testimony might be incredible. For example, it could
be argued that she had a motive to lie, she waited until trial to come forward with a defense
instead of going directly to the police, she left her four children alone in the middle of the
night, and she walked three miles by herself at night along semi-deserted roads.
[Headnote 6]
With the statement, I'm telling you now this woman is lying for her husband, and that, in
effect, it is usual for couples in this type of situation to concoct this kind of a story, the
prosecutor did more than permissibly demonstrate bias on the part of a witness. His statement
was an improper conclusion to permissible argument. Explaining to the jury why she might be
lying is permissible argument. A prosecutorial statement that Lorraine Ross is a liar, both as a
fact and as a conclusion, and that her situation provided assurance that she is a liar, is not
proper argument.
106 Nev. 924, 928 (1990) Ross v. State
provided assurance that she is a liar, is not proper argument. The cumulative impact of these
statements had the practical effect of shifting the burden of proof on the defendant, the burden
which lies exclusively with the State.
[Headnote 7]
Defense counsel neither objected to the prosecutor's statements nor asked for a bench
conference and a curative instruction to the jury. As a general rule, the failure to object or
request an instruction will preclude review by this court. See Mercado v. State, 100 Nev. 535,
538, 688 P.2d 305, 307 (1984); Garner v. State, 78 Nev. 366, 372-73, 374 P.2d 525, 529
(1962).
There is, however, an exception to the general rule in instances where the errors are
patently prejudicial and require the court to intervene sua sponte to protect the defendant's
right to a fair trial. Downey v. State, 103 Nev. 4, 7, 731 P.2d 350, 352 (1987).
In order for error to be reversible, it must be prejudicial and not merely harmless. See
Garner v. State, 78 Nev. 366, 374, 374 P.2d 525, 529 (1962). The test is whether without
reservation . . . the verdict would have been the same in the absence of error. Witherow v.
State, 104 Nev. 721, 724, 765 P.2d 1153, 1156 (1988). The guilty verdict must be free from
doubt. Flanagan v. State, 104 Nev. 105, 107, 754 P.2d 836, 837 (1988); Yates v. State, 103
Nev. 200, 206, 734 P.2d 1252, 1256 (1987).
In their totality, the prosecutor's remarks unfairly undermined the defense theory by
improperly impugning a critical defense witness. It can be inferred that these remarks were
fresh in the jurors' minds as they entered the jury room and commenced their deliberations. In
addition, the imprimatur of the prosecutor's office added force and legitimacy to the
prosecutor's argument to the jury.
4
It is the jury's function to determine guilt or innocence.
Absent these errors, it cannot be said with sufficient confidence that the jury would have
reached the same verdict. The errors were not harmless beyond a reasonable doubt. Neal v.
State, 106 Nev. 23, 25-26, 787 P.2d 764, 765 (1990); Aesoph v. State, 102 Nev. 316, 322,
721 P.2d 379, 383 (1986); Moore v. State, 96 Nev. 220, 225, 607 P.2d 105, 108 (1980). The
prosecutor's comments ultimately deprived Ross of a fundamentally fair trial. See Darden v.
Wainwright, 477 U.S. 168, reh'g denied, 479 U.S. 911 (1986). Because of our determination
that Ross is entitled to a new trial for the reasons previously mentioned, it is unnecessary
to reach other issues raised by appellant.
__________

4
The responsibility of a prosecutor in a criminal case is to secure justice within the context of a fair trial.
Because of a prosecutor's position, improper suggestions, insinuations and, especially assertions of personal
knowledge are apt to carry much weight against the accused when they should properly carry none. Berger v.
United States, 295 U.S. 78, 88 (1934).
106 Nev. 924, 929 (1990) Ross v. State
Because of our determination that Ross is entitled to a new trial for the reasons previously
mentioned, it is unnecessary to reach other issues raised by appellant. The judgment entered
below is reversed and the matter is remanded to the district court for a new trial.
____________
106 Nev. 929, 929 (1990) Dallman v. Merrell
WILLIAM DALLMAN, JR., Appellant, v. MARK MERRELL, Respondent.
No. 20963
December 27, 1990 803 P.2d 232
Appeal from an order granting motion to dismiss pursuant to NRCP 4(i) for failure to
serve process within 120 days of the filing of the complaint. Second Judicial District Court,
Washoe County; William N. Forman, Judge.
Plaintiff appealed from an order of the district court which dismissed action against one
defendant. The Supreme Court held that dismissal for failure to serve process in timely
manner was appropriate.
Affirmed.
Digesti & Peck, Reno, for Appellant.
White, Guinan, Kahan & Young, and Terrence Shea, Reno, for Respondent.
Pretrial Procedure.
Action was properly dismissed against one defendant for failure to serve process in timely manner where process was served 108
days late, plaintiff's claim that he could not find defendant did not establish good cause given fact that defendant's address was listed
with Department of Motor Vehicles and County Assessor's Office, and delay prejudiced defendant. NRCP 4(i).
OPINION
Per Curiam:
On June 16, 1989, appellant William Dallman, Jr. filed in the district court a complaint
against respondent Mark Merrell, Hallman Chevrolet, Inc., a Nevada corporation, and Does
1-50. Dallman and Merrell had both been employed as automobile salesmen by Hallman
Chevrolet. Dallman served Hallman Chevrolet with the summons and complaint on June 20,
1989.
Dallman did not serve Merrell at this time because he could not locate him. Dallman had
attempted to locate Merrell through the telephone directory, a city directory and a process
server. On August 4, 1989, Hallman Chevrolet filed an answer. Trial was scheduled for
September 24, 1990.
In January of 1990, Dallman retained new counsel, who discovered that Merrell had not
been served and that Hallman Chevrolet did not intend to defend Merrell. A private
investigator obtained the address of Merrell's residence in Reno through auto salesmen and
drivers license records of the Department of Motor Vehicles. On February 1, 1990, 230 days
after the complaint was filed, Dallman served Merrell with an alias summons at Merrell's
residence.
Merrell moved to dismiss because service had not been accomplished within 120 days of
the filing of the complaint, as required by NRCP 4(i). Dallman opposed the motion. The
district court found that Dallman had not shown good cause for the failure to serve process
within 120 days of the filing of the complaint, and that some prejudice to Merrell would
result from the delay. On March 13, 1990, the district court entered an order granting the
motion to dismiss, without prejudice. See NRCP 4(i). Thereafter, pursuant to a stipulation of
the parties, the district court certified its order as final under NRCP 54(b). This appeal
followed.
Dallman contends that the district court abused its discretion in granting the motion to
dismiss. NRCP 4(i) provides:
If a service of the summons and complaint is not made upon a defendant within 120
days after the filing of the complaint and the party on whose behalf such service was
required cannot show good cause why such service was not made within that period,
the action shall be dismissed as to that defendant without prejudice upon the court's
own initiative with notice to such party or upon motion.
Dallman filed his complaint on June 16, 1989, but did not serve Merrell until February 1,
1990, 230 days later and 108 days after the period provided in NRCP 4(i) had expired.
Dallman contends that his initial inability to locate Merrell and his plan to obtain Merrell's
address from Hallman Chevrolet through discovery constitute good cause for the failure to
effect timely service of process. We note, however, that Merrell's address could easily have
been obtained earlier. Specifically, Dallman later obtained Merrell's address through the
automobile salesmen and drivers license records of the Department of Motor Vehicles. Also,
Merrell's address was listed at the Washoe County Assessor's Office. Dallman explains that
he did not know that the search for Merrell could be limited to Washoe County. The records
of the Department of Motor Vehicles and of Washoe County, are, however, an obvious
place to begin looking for a former Reno automobile salesman.
Department of Motor Vehicles and of Washoe County, are, however, an obvious place to
begin looking for a former Reno automobile salesman. The district court properly found that
Dallman did not show good cause for his failure to timely effect service of process.
Previously, we excused an untimely service of process because service was effected only
nine days after expiration of the period provided in NRCP 4(i), good cause was shown for the
delay, no prejudice resulted, and other extenuating circumstances were present. See Domino
v. Gaughan, 103 Nev. 582, 747 P.2d 236 (1987). In this case, however, in view of the delay in
serving process of 108 days past the time provided in NRCP 4(i), the failure to show good
cause for the delay, and the finding of prejudice, we conclude that the district court properly
granted the motion to dismiss. Accordingly, we affirm the order of the district court.
____________

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